1.  IN THE EVENT OF ANY CONFLICT BETWEEN THESE STANDARD TERMS AND CONDITIONS AND ANY OTHER DOCUMENT (INCLUDING THE PURCHASE ORDER AND ANY EXHIBIT ATTACHED THERETO OR HERETO), THE TERMS OF THESE STANDARD TERMS AND CONDITIONS SHALL GOVERN, EXCEPT TO THE EXTENT THAT SUCH OTHER DOCUMENT IS SIGNED ON BEHALF OF COMPANY EXPRESSLY MAKES REFERENCE TO THESE STANDARD TERMS AND CONDITIONS AND EXPRESSLY STATES THAT SUCH DOCUMENT, OR PORTIONS THEREOF, ARE INTENDED TO SUPERSEDE ALL OR A PORTION OF THESE STANDARD TERMS AND CONDITIONS.

 

2.  Goods and Services. Contractor shall provide all goods and services specified in the Purchase Order (the “Goods and Services”) on a non-exclusive but first-priority basis. Contractor shall devote its best efforts and necessary resources (including, without limitation, labor, materials, equipment and tools) in providing the Goods and Services and shall perform and provide the Goods and Services in accordance with the highest professional standards and in a diligent, competent, efficient and faithful manner commensurate with the responsibilities involved. Contractor will perform inspections to ensure that the Goods and Services delivered pursuant to the Purchase Order conform to the Purchase Order’s requirements. All Goods and Services are subject to Company inspection at all places and all reasonable times before acceptance to ensure strict compliance with the terms of the Purchase Order and these Standard Terms and Conditions. Goods and Services delivered or performed are subject to inspection and approval by Company before acceptance and payment. Company will rely on Contractor to work as many hours as may be reasonably necessary to fulfill Contractor’s obligations under the Purchase Order. Contractor will not provide any additional Goods and Services other than the Goods and Services specified in the Purchase Order unless the parties mutually agree on the provision of such additional Goods and Services in writing. Time is of the essence in performing and completing the delivery of the Goods and Services.

 

3.  Vendor Workers. Any and all personnel provided by Vendor in connection with the delivery of the Goods and Services are employees or temporary workers of Vendor and will, at all times, be subject to the sole and direct supervision, control and management of Vendor. Vendor will be solely responsible for paying its employees’ or temporary workers’ salaries, as well as all applicable State and Federal withholding taxes, Federal Social Security taxes, State unemployment and disability insurance, Workers’ Compensation Insurance, and all disability insurance, and all other expenses relating to any such employee(s) or temporary worker(s). Upon request by Company, either written or verbal, Vendor will remove from service immediately any of its employees or temporary workers who are, in Company’s opinion, not qualified or acceptable for any reason to perform the work assigned. Notwithstanding the foregoing, in no event shall Company pay for flights, hotels, trucking, amenities, meals, taxis and any other ancillary costs to the Goods and Services.

 

4.  Loss / Damage / Equipment. Contractor shall be responsible for any loss of, theft or damage to Contractor’s or any other personal property or any personal injury to any person for any reason caused by Contractor’s machinery or other equipment, Contractor or any persons or entities under (or who should have been under) Contractor’s control, direction or supervision. If Contractor is operating machinery or equipment, Contractor shall obtain and maintain at all times during the Term (as defined herein) all licenses, permits and authorizations necessary to operate any machinery or other equipment at and in connection with the Event (as defined in the Purchase Order attached hereto) or otherwise required in connection with the delivery of the Goods and Services. Use of such machinery and equipment by Contractor personnel shall be at Contractor’s

risk, and Contractor shall be responsible for any loss or damage or personal injury to third parties or to Contractor personnel caused while using such machinery and equipment and, except as otherwise set forth in writing by Company, it shall be Contractor’s responsibility to maintain reasonable and customary insurance to cover such risks.

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5.  Confidentiality and Non-Disclosure. In connection with the Goods and Services to be provided by Vendor pursuant to the Vendor Application, it is acknowledged and agreed that Vendor may receive certain business, financial and legal information that is confidential and proprietary in nature, and Vendor may be exposed to and obtain information regarding certain personal and professional activities with respect to the artists, promoters or other parties performing, presenting or otherwise providing goods and services in connection with the Company events or businesses. Such information may include, but is not limited to, any information regarding the content of shows and properties, product concepts, ideas, creative designs, choreographies, show elements, acts, drawings, specifications, artwork, still photographs, film, or other depictions of elements of the shows, business strategies, timelines and schedules, business plans, financial information, financial projections, sponsoring cases and presentations, marketing or promotional strategies, customer identities, operational information, technological information (e.g., source code, templates, software designs, methods, formulas, personnel information, passwords or other similar credentials) and other materials delivered or communicated to Vendor either directly or indirectly or to which Vendor becomes privy, as well as other intellectual property, client lists, vendor lists, sponsor lists, good will, brand materials and business processes, including information regarding Company brands, in any case, whether or not marked confidential, together with any analyses, compilations, studies, summaries, extracts or other documents or derivatives thereof that contain or otherwise reflect or are generated from any of the foregoing information or material (referred to collectively herein as the “Confidential Information”). Confidential Information shall also include all knowledge, information and materials, whether of a technical or financial nature or otherwise relating to the business or affairs of any entities participating in such events or businesses and any of their respective officers, affiliated entities, business partners and/or clients. Confidential Information shall not include any information that (i) is or becomes generally available to the public (other than as a result of a disclosure by Vendor), (ii) becomes rightfully available to Vendor on a non-confidential basis from a source not bound by any confidentiality obligation to Company or an affiliate, successor, parent or subsidiary thereof, (iii) was otherwise rightfully within Vendor’s possession on a non-confidential basis prior to its being furnished to Vendor by or on behalf of Company, or (iv) was independently developed by Vendor without violating any of the confidentiality provisions herein. Vendor shall not disclose any Confidential Information, provided that in the event Vendor becomes legally compelled to disclose any of the Confidential Information, Vendor shall provide Company with prompt written notice of such requirement.

 

6.  Assignment. Vendor acknowledges that the Goods and Services to be provided by Vendor pursuant to the Vendor Application are unique and agrees that Vendor shall not assign the Vendor Application, in whole or in part, to any person or entity.

 

7.  Representations and Warranties. Vendor hereby represents and warrants that: (i) it has the full right and authority to enter into the Vendor Application, to furnish the Goods and Services upon the terms and conditions set forth herein and therein, and to grant the rights herein and therein granted; (ii) it is not subject to any obligation or disability that will materially prevent or interfere with the full completion and performance of all the obligations and conditions to be kept and performed under the Vendor Application and these Standard Terms and Conditions; (iii) it has not made and will not make any commitment or do any act in conflict with the Vendor Application or Company’s rights thereunder or hereunder; (iv) it shall comply with all applicable laws, statutes, ordinances, rules and regulations, as well as all local and regional governmental agencies in connection with its performance and delivery of the Goods and Services; (v) the Goods and Services as well as any and all machinery and other equipment provided by Vendor in connection with the delivery thereof shall be free from faults and defects of design, material and workmanship, and shall be in such condition as to operate in accordance with the manufacturer’s specifications and operation instructions; (vi) at all times Vendor and its employees, agents and representatives will not, directly or indirectly, disparage or otherwise discredit Company or any of its clients, representatives, employees, shareholders or other affiliated persons or entities, or any of their products, goods and services or operations, or any aspect of any event in which any of them participates, in any manner whatsoever; (vii) it shall obtain, and maintain at all times, any and all

necessary permits, licenses and approvals from appropriate authorities in order to fulfil Vendor’s obligations under the Vendor Application and hereunder; and (viii) Vendor has had the opportunity to obtain the advice of legal counsel in connection with the execution of the Vendor Application prior to executing and Vendor acknowledges and agrees that Vendor’s failure to seek counsel in connection with the Vendor Application shall be at Vendor’s sole risk, and such failure shall not give rise to a claim that the Vendor Application or these Standard Terms and Conditions or any provision thereof or hereof should be null and void for lack of proper representation.

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8.  Assumption of Risk. All work performed under the Vendor Application will be performed entirely at the sole risk of Vendor or any of Vendor’s employees, agents, officers, affiliates or representatives, and Vendor assumes all responsibility for the condition of equipment or machinery used in the performance of the Vendor Application.

 

9.  LIMITATIONS OF LIABILITY. VENDOR’S SOLE REMEDY FOR ANY BREACH OR ALLEGED BREACH OF THE VENDOR APPLICATION BY COMPANY SHALL BE AN ACTION AT LAW TO RECOVER SUCH DAMAGES AS MAY HAVE BEEN ACTUALLY SUFFERED BY VENDOR AS A DIRECT AND PROXIMATE RESULT THEREOF, IF ANY, AND VENDOR WILL NOT HAVE THE RIGHT TO SEEK INJUNCTIVE RELIEF, ENCUMBER OR TERMINATE OR RESCIND THE VENDOR APPLICATION OR TO ENJOIN IN ANY MANNER THE ADVERTISING, PRODUCTION OR EXPLOITATION OF ANY OF COMPANY’S PROJECTS, GOODS AND SERVICES, PROGRAMS OR OTHER VENTURES, INCLUDING, WITHOUT LIMITATION, ANY EVENT IN CONNECTION WITH WHICH THE GOODS AND SERVICES ARE INTENDED TO BE PROVIDED. UNDER NO CIRCUMSTANCES SHALL ANY COMPANY INDEMNIFIED PERSON BE LIABLE TO VENDOR FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE VENDOR APPLICATION OR THESE STANDARD TERMS AND CONDITIONS AND IN NO EVENT SHALL COMPANY’S TOTAL OBLIGATIONS OR LIABILITY HEREUNDER EXCEED THE VALUE OF THE SERVICES PROVIDED TO COMPANY THEREUNDER. REGARDLESS OF ANY LAW TO THE CONTRARY, NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST COMPANY MORE THAN ONE YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE.

 

10.  Termination. The Vendor Application shall be subject to early termination as specified therein. In addition, Company may terminate the Vendor Application by written notice to Vendor in the event that: (i) Vendor breaches any of the material terms, conditions or covenants contained in the Vendor Application or these Standard Terms and Conditions and Vendor fails to cure any such breach within 5 business days following receipt of written notice of such breach by Vendor (provided that such cure period shall not be applicable if Company determines, in its sole discretion, that the success of the Event in connection with which the Goods and Services are provided would be jeopardized if termination is not effective immediately and provided that such notice and cure period shall be shortened to a reasonable period of time if the Event is less than 15 days from the date of the notice); (ii) any representation or warranty made by Vendor in the Vendor Application or these Standard Terms and Conditions proves to have been false or misleading in any material respect as of the date when made; (iii) Vendor becomes insolvent, or there occurs any filing of a petition in bankruptcy or under any similar insolvency law by Vendor or the making of any assignment for the benefit of creditors, or any involuntary petition in bankruptcy or under any similar insolvency law is filed against Vendor and such petition is not dismissed within 30 days after the filing thereof; or (iv) Vendor discontinues its business. If such termination is made during an Event, Vendor will immediately leave the grounds of the Event and any dispute regarding the existence or lack of existence of cause to terminate the Vendor Application will be resolved after the Event. Vendor may terminate this agreement by five (5) business days prior written notice if Company: (i) becomes insolvent, or there occurs any filing of a petition in bankruptcy or under any similar insolvency law by Company or the making of any assignment for the benefit of creditors, or any involuntary petition in bankruptcy or under any similar insolvency law is filed against Company and such petition is not dismissed within 30 days after the filing thereof; (ii) if Company breaches a material provision of this Agreement and does not cure such breach within 5 business days; or (iii) if Company discontinues its business.

 

This Section 10 shall survive the Term.

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11.  Relationship of the Parties. Nothing in the Vendor Application or these Standard Terms and Conditions shall be deemed to create an employer-employee, joint venture, or partnership relationship between the parties. At all times, Vendor is an independent Vendor of Company. Company will not provide fringe benefits, including health insurance benefits, paid vacation, or any other employee benefit, for Vendor’s or Vendor’s personnel’s benefit. Vendor is solely responsible for all State or Federal taxes and requirements related to the employment or engagement of its employees.

 

12.  Non-Solicitation. During the Term of the Vendor Application and for a period of 12 months following the conclusion of any Event, unless consented to in writing by Company in each instance (which consent Company may withhold in its sole and absolute discretion), Vendor shall not, directly or indirectly, whether on Vendor’s own behalf or on behalf of any other individual, partnership, firm, corporation or business organization: (i) solicit, induce, encourage or entice, or endeavor to solicit, induce, encourage or entice in any manner whatsoever, any person who is or was at any time during the Term of the Vendor Application employed, contracted or otherwise engaged by Company to leave that employment or cease providing or performing those services; or (ii) solicit, induce, encourage or entice, or endeavor to solicit, induce, encourage or entice in any manner whatsoever, any person or entity who is or was at any time during the Term of the Vendor Application, a client of Company, including without limitation, event promoters, artist management, talent, sponsors, advertisers, and production companies, or to divert all or any part of such person or entity’s business from Company or otherwise interfere in the business relationship between any such client or vendor and Company.

 

13.  Working Under the Influence. Vendor understands and agrees that its personnel are required to remain completely sober and refrain from drinking alcoholic beverages while providing Goods or Services at the Event, while driving or operating machinery at the at any time at the Event, or when driving to/from the Event. Vendor will not, and will not permit its employees or other personnel to use or ingest any alcohol, drugs or other substances that might inhibit their ability to work safely and efficiently with respect to the Event. If Company believes in its sole and absolute discretion that (i) any Vendor or any of Vendor’s employees or other personnel is under the influence of any alcohol, drug, or other inhibiting substance, or (ii) Vendor caused any damage to property or injury to Vendor and/or another person, or committed a negligent, illegal or willfully dangerous act, Company shall have the right to terminate the Vendor Application immediately and escort such Vendor personnel from the Event premises. Notwithstanding the foregoing, Vendor agrees that Company’s omission of drug/alcohol testing on Vendor personnel or any other person and/or its failure to exercise the foregoing right shall not amount to negligence or any misconduct, and hereby fully and forever releases, waives and discharges Company from, and covenants not to sue Company in connection with, any and all such claims, demands, actions, or causes of action.

 

14.  Emergency Medical Care. In the event of injury to any Contractor personnel, in the absence of such person’s contrary authorization, Contractor hereby authorizes Company and/or its designee(s) to act on such person’s behalf to obtain emergency medical care that may be necessary. Notwithstanding the foregoing, Contractor acknowledges that this paragraph does not create any duty of care owed to Contractor personnel nor shall Company and/or its designee(s) be obligated to Contractor personnel for any medical attention or expenses, and, without limitation to Contractor’s indemnification obligations, Contractor shall immediately reimburse Company and/or its designee(s) for any such medical expenses incurred.

 

15.  Name and Likeness. Without limiting the generality of anything otherwise contained herein, Vendor acknowledges and agrees and its employees, representatives, agents and assigns agree that Company, its designee(s), and other parties authorized by Company shall have the right to film or otherwise record the events at which the Goods and Services are provided for use by Company during or after such event in any and all manner and in any and all media now known or hereafter discovered without any additional payment to any party, including but not limited to Vendor, and any of its staff, employees, independent Vendors, representatives, agents or assigns. By participating in such event, Vendor expressly authorizes and its employees, representatives, agents, or assigns expressly agree, to the taping, recording and/or other fixation of such event and the inclusion of the Vendor or any of its employees, representatives, agents or designees’ names, marks or images in such fixation, and that the results of such filming and/or taping shall become the intellectual property of Company, and Company shall solely own and control all rights contained therein. 

Vendor does hereby grant, and shall ensure that its employees, independent Vendors, representatives, agents and assigns grant to Company a world-wide, non-exclusive, irrevocable, perpetual and royalty-free license to use Vendor and its employees, independent Vendors, representatives, agents and assigns’ names, likenesses, images, logos, and trademarks in connection with such event and any and all marketing and publicizing thereof, without any additional payment whatsoever. Vendor shall have no right to film, photograph or otherwise record any such event or any part thereof. This provision shall survive the Term.

 

16.  Miscellaneous. The Vendor Application and these Standard Terms and Conditions constitute the entire agreement between Company and Vendor with reference to the subject matter of the Vendor Application, and supersedes all prior agreements, written or oral. The Vendor Application cannot be amended or modified except by written instrument signed by Company and Vendor. Neither Vendor nor Company shall hold itself out contrary to the terms of the Vendor Application and these Terms and Conditions and neither party shall become liable for or be bound by any representation, act or omission of the other contrary to the provisions hereof. Vendor agrees to execute and deliver to Company any and all documents consistent herewith reasonably necessary to effectuate the purposes of the Vendor Application when and as directed by Company or an applicable authority. Vendor has had an opportunity to review the Vendor Application and these Standard Terms and Conditions with an attorney of Vendor’s choice and agrees that no presumptions or rules of construction or interpretation shall be applied to the Vendor Application based upon the party that drafted the Vendor Application. The Vendor Application shall be governed by the laws of the State of Illinois applicable to agreements made and wholly performed therein, and any disputes shall be settled by expedited arbitration pursuant to the rules of the American Arbitration Association, by an arbitrator experienced in entertainment matters, in Chicago, Illinois. If any provision of the Vendor Application or these Terms and Conditions shall be found illegal, invalid or unenforceable, then such provision shall not invalidate or in any way affect the enforceability of the remainder of the Vendor Application or these Standard Terms and Conditions. The captions and headings of the paragraphs of the Vendor Application and these Standard Terms and Conditions are for convenience and reference only and are not to be used to interpret or define the provisions hereof or thereof. The Vendor Application may be executed simultaneously or in two or more counterparts and via facsimile or emailed scans, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Facsimile and electronic signatures shall have the same force as original signatures.