General Terms & Conditions
Event Management & Production
My Old Kentucky Blog Presents, LLC (“MOKB”);
Boiler Room Industries, LLC (“Boiler Room”);
Do317 Media, LLC (“Do317”);
OneByOne Events, LLC (“OneByOne”); or
HiFi Indianapolis, LLC (“HiFi”)
Boiler Room Industries, LLC (“Boiler Room”);
Do317 Media, LLC (“Do317”);
OneByOne Events, LLC (“OneByOne”); or
HiFi Indianapolis, LLC (“HiFi”)
- “Client” means the person, firm, or entity identified in the accepted Services Proposal.
- “Provider” means the entity identified in the accepted Services Proposal as providing the event management and production services, whether MOKB, Boiler Room, Do317, OneByOne, or Hifi.
- “Fans” or “Ticketholders” means the third party end user ticket holders for attendance at the Event.
- “Event” means the event identified in the accepted Services Proposal.
2. TERM, DATE CHANGES, AND TERMINATION.
- The term of this Agreement (“Term”) begins on the date on which the Client accepts the Services Proposal (“Effective Date”) and, unless earlier terminated, expires upon the completion of the Event and the final settlement of the Event accounting.
- If the Event repeats annually or is part of a series, Client will give Provider the first right to submit a proposal for the follow-up event before contracting with another event manager or promoter.
- Once the Event booking is confirmed in writing, any change in a contracted Event date instigated by the Client within 30 days of the Event date will incur an administration fee of 10% of the total contracted Event fee. The contracted Event date cannot be changed within 30 days of the Event date without the full Event fee being incurred.
- Provider may terminate the Agreement upon five (5) days written notice upon any of the following occurrences:
- Client fails to comply with or to perform any material term, obligation, covenant or condition contained in this Agreement which is not cured within seven (7) days after notice from Provider.
- A receiver, liquidator or trustee is appointed for Client, or if Client is adjudicated a bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, is filed by or against, consented to, or acquiesced in by, Client, or if any proceeding for the dissolution or liquidation of Client is instituted, or if Client makes an assignment for the benefit of creditors.
- Provider determines, in its sole discretion, that the Event is unsafe, including due to weather.
- Client may terminate the Agreement upon five (5) days written notice if Provider fails to comply with or to perform any material term, obligation, covenant or condition contained in this Agreement which is not cured within seven (7) days after notice from Client.
- In the event of termination as stated above, Provider will be entitled to all monies due or earned by Provider up to the date of termination, plus any additional costs incurred by Provider in connection with the Event or cancellation (including payment to artists, venues, or other obligations incurred by Provider in connection with the Event). For ticketed events, Provider will retain any ticket fees or rebates due or collected on all tickets, whether or not the Event is held. Provider will have sole discretion over ticket refunds (with respect to both base prices and any processing/service fees).
3. FINAL ACCOUNTING
- Provider will remit a final settlement payment and report to Client within fourteen (14) business days following successful completion of the Event (“Final Settlement”).
- The Final Settlement will include all amounts due to Client, less any deductions for unpaid fees or charges owed by Client to Provider, and/or mutually approved out-of-pocket expenses.
4. INTELLECTUAL PROPERTY
- Client is responsible for all payments and licenses due to any third party in connection with the event and any performances, including but not limited to the performing rights organizations ASCAP, BMI, SESAC and SOCAN.
- Provider will retain all ownership rights in all work product created in connection with its work for Client. However, Provider hereby grants to Client a worldwide, non-exclusive, fully paid-up, royalty-free, irrevocable, perpetual, sub-licensable, and fully transferable license to use, reproduce, distribute, prepare derivative works of, and display all photographs, video recordings or images created by Provider in connection with the Event.
- Each party grants the other party a personal, non-transferable and non-sublicensable license, to market, advertise, and use each other’s organization logo or trademarks (each a “Licensed Mark”) solely in connection with the Event, or, in the case of Provider, for Provider to advertise or market its services.
- Each party will strictly comply with the other party’s directions regarding the form and manner in which the Licensed Mark is to be used or displayed.
- Any goodwill derived from the use by Client of Provider’s Licensed Mark will inure to the benefit of Provider, and any goodwill derived from the use by Provider of Client’s Licensed Mark will inure to the benefit of Client.
- Neither party will, directly or indirectly: (i) do, omit to do, or permit to be done, any act which will or may dilute the other party’s Licensed Mark or tarnish or bring into disrepute the reputation of or goodwill associated with the Licensed Mark or which will or may invalidate or jeopardize any registration of the Licensed Mark; or (ii) apply for, or obtain, or assist any person or entity in applying for or obtaining any registration of the other party’s Licensed Mark, or any trademark, service mark, trade name or other indicia confusingly similar to the Licensed Mark in any country, state, or locality.
- Each party acknowledges and is familiar with the high standards, quality, style and image of the other, and each party will, at all times, conduct its business and use the other party’s Licensed Mark in a manner consistent with these standards, quality, style and image. Each party will comply with the other party’s specifications, standards and directions relating to the use of the Licensed Mark.
- “Confidential Information” includes all materials, information, and disclosures, whether or not marked as “Confidential” or “Proprietary,” obtained by either party in connection with the Services, including but not limited to the content of this Agreement, trade secrets, know-how, designs, drawings, sales information, customer lists, prices, purchasing information, costs, product information, business plans, marketing or merchandising plans, and any information which the receiving party should know under the circumstances is confidential or proprietary.
- The parties agree that at all times, and notwithstanding any termination or expiration of this Agreement, they will not disclose to any third party any Confidential Information, except as approved by the other, and will use the Confidential Information for no purpose other than as intended herein. The parties shall only permit access to Confidential Information to those of its employees, volunteers or authorized representatives having a need to know and who have agreed to be bound by these terms. The parties shall immediately notify each other upon discovery of any loss or unauthorized disclosure of the Confidential Information.
- Upon termination or expiration of the Agreement, or upon written request, each party shall promptly destroy all Confidential Information in its possession.
- Client represents and warrants that (i) it has full power, capacity, and authority to enter into this Agreement; (ii) as of the Effective Date of this Agreement, there is currently no actual or threatened suit by any third party based on alleged violation of any right by Client; and (iii) it will comply with this Agreement and all applicable local, state, and federal laws and regulations.
- Provider represents and warrants that (i) it has full power, capacity, and authority to enter into this Agreement; (ii) as of the Effective Date of this Agreement, there is currently no actual or threatened suit by any third party based on alleged violation of any right by Provider; and (iii) it will comply with this Agreement and all applicable local, state, and federal laws and regulations.
- EXCEPT AS STATED ABOVE, THE SERVICES ARE PROVIDED “AS IS” AND “AS-AVAILABLE,” WITH ALL FAULTS, AND, WITHOUT WARRANTY OF ANY KIND. PROVIDER AND ITS VENDORS AND LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, OR
- TITLE/NON-INFRINGEMENT, WHETHER SAID WARRANTY ARISES UNDER PROVISIONS OF ANY LAW OF THE UNITED STATES OR ANY STATE THEREOF OR ANY OTHER COUNTRY. ALL SUCH WARRANTIES ARE HEREBY SPECIFICALLY DISCLAIMED.
- NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PROVIDER OR ITS AFFILIATES, EMPLOYEES OR AUTHORIZED REPRESENTATIVES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF PROVIDER’S OBLIGATIONS HEREUNDER.
- SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, SO CERTAIN OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO CLIENT. TO THE EXTENT THAT PROVIDER CANNOT DISCLAIM A PARTICULAR WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF THE WARRANTY WILL BE THE MAXIMUM PERMITTED UNDER SUCH LAW.
- IN NO EVENT SHALL PROVIDER OR ITS VENDORS AND LICENSORS BE LIABLE TO CLIENT, USER OR ANY THIRD PARTY, INCLUDING CLIENT’S EMPLOYEES, AGENTS, INDEPENDENT CONTRACTORS, CLIENTS, OR CONTRACTING PARTIES, FOR ANY LOSS OF PROFITS, BUSINESS, DATA, OR OTHER INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGE OR LOSS OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY, INCLUDING USE OF THE SERVICES EVEN IF PROVIDER HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE REASONABLY BEEN FORESEEN BY PROVIDER.
- THE TOTAL LIABILITY OF PROVIDER AND ITS VENDORS AND LICENSORS TO CLIENT (INCLUDING CLAIMS BY OR ON BEHALF OF FANS), OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR USE OF THE SERVICES IN CONNECTION WITH ANY CLAIM OR TYPE OF DAMAGE (WHETHER IN CONTRACT OR TORT) WILL NOT EXCEED THE TOTAL FEES CLIENT PAID TO PROVIDER. THIS LIMITATION OF LIABILITY REFLECTS THE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL APPLY EVEN IF THE EXPRESS WARRANTIES PROVIDED ABOVE FAIL OF THEIR ESSENTIAL PURPOSE. THE LIMITATIONS SPECIFIED IN THIS SECTION WILL SURVIVE AND APPLY IN ANY AND ALL CIRCUMSTANCES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO CERTAIN OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO CLIENT.
- CLIENT WILL DEFEND, INDEMNIFY, AND HOLD HARMLESS PROVIDER, AND ITS PARENTS, PARTNERS, SUBSIDIARIES, DIVISIONS AND AFFILIATES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES (COLLECTIVELY, THE “PROVIDER PARTIES”), FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, SUITS, CAUSES OF ACTION, LIABILITY, JUDGMENTS, DAMAGES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COURT COSTS) (COLLECTIVELY, “CLAIMS”) ASSERTED AGAINST ANY OF THE PROVIDERPARTIES AND ARISING OUT OF OR RELATING TO (I) THE ACTS OR OMISSIONS OF CLIENT, ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS (II) ANY PORTION OF THE EVENT FOR WHICH PROVIDER HAS NOT EXPRESSLY ASSUMED RESPONSIBILITY, WHICH FOR CLARITY WILL INCLUDE ANY PORTION OF THE EVENT OTHER THAN THE ARTIST PERFORMANCE AND/OR TICKETING (III) ANY BREACH OR ALLEGED BREACH BY CLIENT OF ANY REPRESENTATION, WARRANTY OR OBLIGATION OF THIS AGREEMENT..
- THE FOREGOING WILL INCLUDE, WITHOUT LIMITATION, ANY CLAIMS FOR BODILY INJURY, DEATH OR PROPERTY DAMAGE. THE PARTIES AGREE, HOWEVER, THAT CLIENT WILL NOT BE OBLIGATED TO DEFEND OR INDEMNIFY THE PROVIDER PARTIES FOR ANY CLAIMS THAT ARISE SOLELY OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PROVIDER PARTY.
- In addition to any requirements under any other contract relating to the Event, Client will maintain and pay all premium costs for and ensure that Client’s contractors maintain and pay all premium costs for the following insurance coverages in amounts not less than specified throughout the duration of the Artist Performance, including load-in and load-out:
- Statutory Workers’ Compensation, including Employer’s Liability Insurance, subject to limits of not less than $1,000,000.00, affording coverage under the Workers Compensation laws of the applicable state. Client will cause, if allowed by law, its workers’ compensation carrier to waive insurer’s right of subrogation with respect to Provider, its parents, partners and their affiliated companies.
- Commercial General Liability Insurance for limits of not less than $1,000,000.00 per occurrence Bodily Injury and Property Damage combined; $1,000,000.00 per occurrence Personal and Advertising Injury; $2,000,000.00 aggregate Products and Completed Operations Liability; $100,000.00 Fire Legal Liability, and $2,000,000.00 general aggregate limit per event. The policy will be written on an occurrence basis.
- Automobile Liability Insurance with a limit of not less than $1,000,000.00 combined and covering all owned, non-owned and hired vehicles.
- Umbrella Liability Insurance at not less than $4,000,000.00 limit providing excess coverage over all limits and coverages noted in sections above. This policy will be written on an occurrence basis.
- The policies listed above, excluding Statutory Workers Compensation, will be endorsed to name Provider, its parents, partners, subsidiaries, divisions and affiliates, and each of their respective officers, directors, shareholders, employees, agents and representatives as “Additional Insureds” with respect to any and all claims arising from Provider’s operations. The Provider will deliver to Provider satisfactory evidence of the above-described insurance coverage on a certificate form approved by Provider or, if required, copies of the policies. All required insurance will be placed with carriers licensed to do business in the applicable state(s), will have a rating in the most current edition of A.M. Best’s Property Casualty Key Rating Guide that is reasonably acceptable to Provider and will provide notice of cancellation or change in policy in accordance with policy provisions.
- Should any additional premium be charged for such coverages or waivers, Client will be responsible to pay said additional premium charge to its insurer. All insurance furnished by Client hereunder will be in full force and effect at all times during the Artist Performance, including load-in and load-out.
- In the event of any dispute, claim, question, or disagreement between Client and Provider (“Dispute”), Client and Provider shall first use reasonable best efforts to settle the dispute, claim, question, or disagreement. The parties agree to each have an appointed representative consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. Neither Client nor Provider shall file or pursue any Disputes in any court, administrative, arbitral, or other adjudicative body prior to or during the engagement of such consultations and negotiations.
- Force Majeure: The failure of any party hereto to comply with the terms and conditions hereof because of a “Force Majeure Occurrence” will not be deemed a breach of this Agreement. “Force Majeure Occurrence” will be defined to include, without limitation, Act of God, strike, labor disputes, war, fire, earthquake, acts of public enemies, acts of terrorism, epidemic, action of federal, state or local governmental authorities, Internet or communications failures, or an event or reason beyond the reasonable control of a party. In the event that the artist performance or Event is prevented by a Force Majeure Occurrence, Provider will not be obligated to compensate Client for any expenses incurred in connection with such prevented performance.
- Relationship of the Parties: The parties are acting herein as independent contractors. Except as specifically authorized herein, nothing herein contained will create or be construed as creating a partnership, joint venture or agency relationship between the parties and no party will have the authority to bind the other in any respect. Each party will be solely responsible for all wages, income taxes, worker’s compensation requirements and any other requirements for all personnel it supplies pursuant to this Agreement.
- Applicable Law: This Agreement will be governed by and construed in accordance with the laws of the State of Indiana, without regard to its conflicts of laws principles. Both parties additionally consent to jurisdiction of the courts in Marion County, Indiana.
- No Waiver of Rights: If either party fails to enforce any of the provisions of this Agreement or any rights or fails to exercise any election provided in the Agreement, it will not be considered to be a waiver of those provisions, rights or elections or in any way affect the validity of this Agreement. The failure of either party to exercise any of these provisions, rights or elections will not preclude or prejudice such party from later enforcing or exercising the same or any other provision, right or election which it may have under this Agreement.
- Invalidity: If any term, provision, covenant or condition of the Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of this Agreement will remain in full force and effect and will in no way be affected, impaired or invalidated.
- Notices: All notices given hereunder will be in writing and will be deemed to have been duly given if delivered personally with receipt acknowledged or sent by registered or certified mail or equivalent, if available, return receipt requested, or by facsimile (which will be confirmed by a writing sent by registered or certified mail or equivalent on the same day that such facsimile is sent), or by nationally recognized courier, addressed or sent to the parties at the addresses set forth herein.
- Other Instruments: The parties hereto covenant and agree that they will execute such other and further instruments and documents as are or may become necessary or mutually desirable in effectuating and carrying out the provisions of this Agreement.
- Headings; Bolded Terms: The headings used in this Agreement are used for administrative purposes only and do not constitute substantive matter to be considered in construing the terms of this Agreement.
- Assignment; Successors & Assigns: Neither party may transfer, assign or convey any of its rights or obligations hereunder without the prior consent of the other party, provided, however that Provider may assign this Agreement to a parent, affiliate or subsidiary of Provider without the prior written consent of Provider. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
- Counterpart: This Agreement may be executed by facsimile, PDF or digitally via third party document execution provider and in any number of counterparts, and each of such counterparts will for all purposes be deemed to be an original.
- Entire Agreement and Modification:This Agreement contains the entire agreement between the parties relating to the subject matter hereof and all prior agreements relative hereto which are not contained herein are terminated. This Agreement may not be amended, revised, or terminated orally but only by a written instrument executed by the party against which enforcement of the amendment, revision, or termination is asserted.
- Compliance with Laws: Provider will be responsible for compliance with all federal, state and local laws and regulations applicable to Provider’s activities in connection with this Agreement including, without limitation, obtaining any permits applicable to the event or the activities contemplated herein.
- Non-Disparagement: During the term of this agreement, Client will take no action which is intended, or would reasonably be expected, to materially harm the Provider, any affiliate of the Provider, their respective businesses, officers, directors, or employees, harm the reputation of any of the foregoing persons or entities, or which would reasonably be expected to lead to unwanted or unfavorable publicity to any of the foregoing persons or entities.
- Survival of Commitments: All covenants, representations and warranties made in this Agreement continue in full force until this Agreement has terminated pursuant to its terms and all obligations have been satisfied. The rights and obligations of the parties regarding confidentiality, payment of monies, and any right or obligation of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration. The obligations of insurance and indemnity shall survive until the statute of limitations with respect to such claim or cause of action shall have run.
- Miscellaneous: This Agreement sets forth the entire agreement between Provider and Provider and supersedes any prior Agreements or understandings, oral or written. Neither party may assign their rights or obligations hereunder without the written approval of the other. This Agreement will bind and benefit the parties’ successors, assigns, members, volunteers and employees. For all domestic and international purposes, the Agreement will be governed, interpreted, construed, and enforced solely and exclusively in accordance with the laws of the State of Indiana without regard to conflicts of law provisions thereof. The courts located in Marion County, Indiana shall constitute the sole and exclusive forums for the resolution of any and all disputes arising out of or in connection with this Agreement. Any waiver of any right or remedy under this Agreement shall not affect future rights of enforcement. If any provision is found unenforceable, the remaining provisions shall continue to apply. The parties hereto have read and fully understand this Agreement, and, if necessary, have consulted with independent legal counsel.
LIMITATION OF LIABILITY AND DAMAGES
DISPUTE RESOLUTION AND OPTIONAL ARBITRATION
Notwithstanding the adjudication requirement above, for any Disputes involving ten thousand dollars ($10,000) or less, either party may choose to resolve such Dispute through binding, non-appearance-based arbitration (i.e., arbitration conducted online, through written filings, and/or via teleconference). Such arbitration shall be conducted through an established alternative dispute resolution provider mutually agreed upon by the parties, and any judgment rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator’s decision shall be final and legally binding.
In the event of any litigation (including arbitration) between Client or User and Provider, the non-prevailing party shall reimburse the prevailing party for all reasonable and documented attorneys’ fees, costs, and expenses relating to the Dispute.