THIS SPONSORSHIP AGREEMENT (“Agreement”) is entered into effective as of the date of electronic acceptance on our web site of this Agreement in 2008 by and between BAM Racing LLC, located at 11881 Vance Davis Drive Charlotte, North Carolina 28269 (“BAM”) and the DIAMOND SPONSOR who electronically accepted this agreement on our web site.
WITNESSETH:WHEREAS, BAM is engaged in the business of stock car auto racing and intends to enter race cars which it owns into stock car races currently known as the NASCAR Sprint Cup Racing Series, (collectively, the “Races”), and wishes to secure Diamond Sponsors, a special type of Associate Sponsor, for its current racing car, the #49 Sprint Cup race car (the 49 Car), or future racing cars;
WHEREAS, DIAMOND SPONSOR desires to become an “Official #49 NASCAR Sprint Cup Team Sponsor” by becoming an Associate Sponsor of the 49 Car through the 49 Car Diamond Sponsorship Program;
NOW, THEREFORE, in consideration of the premises and the mutual promises and agreements contained herein, the parties hereto agree as follows:
1. TermThe term (“Term”) of this Agreement shall be for a period commencing upon electronic acceptance of this Agreement and, unless sooner terminated in accordance with the provisions hereof, expiring on December 31, 2008. For purposes of this Agreement, a Season (“Season”) will consist of the balance of race events entered by BAM Racing after the execution of this agreement.
2. Terminationa. Either party may terminate this Agreement by giving written notice of termination to the other party only if the other party either (a) fails to cure its material breach of this Agreement within thirty (30) days of its receipt of notice of such breach; or (b) makes a general assignment for the benefit of creditors, files a voluntary petition in bankruptcy or for reorganization or arrangement under the bankruptcy laws, if a petition in bankruptcy is filed against such party, or if a receiver or trustee is appointed for all or any part of the property or assets of such party.
b. In addition, BAM may terminate this agreement if DIAMOND SPONSOR is rejected by NASCAR™. If such rejection occurs DIAMOND SPONSOR will receive a full refund of their sponsorship fee detailed in Section 3.a.
c. Other than the conditions described above in paragraphs 2a.and 2b., no full or partial refunds will be given for any reason once agreement is executed online and the sponsor space is secured.
3. Considerationa. Sponsorship Fee: DIAMOND SPONSOR will pay BAM a sponsorship fee in the amount presented on the Diamond Sponsor order page on the date of electronic acceptance of this agreement.
b. Payment: Sponsorship fee is due immediately upon electronic acceptance of this agreement.
4. Branding, Advertising and Promotional Rightsa. DIAMOND SPONSOR shall be a type of Associate Sponsor of the 49 Car for the Races and shall have “Official #49 Team Sponsor” status and shall have the right to an advertisement in the form of text, subject to approval by BAM and NASCAR, representing its company name or brand name on a designated Diamond Sponsor section of an exterior surface of the 49 Car pre-selected by BAM. DIAMOND SPONSOR acknowledges that its name will be on the 49 Car, which is a public display, and thus, DIAMOND SPONSOR’S association with BAM will be of public record.
b. Additional Sponsorships: BAM may appoint and/or contract with additional Sponsors as Primary Sponsorships, Associate Sponsorships, or Diamond Sponsorships.
c. Contingency Sponsorships: DIAMOND SPONSOR acknowledges that the 49 Car, and all race cars competing on NASCAR race circuits, routinely feature decals for various official NASCAR Sponsorships on the cars’ front quarter panels pursuant to NASCAR’s contingency Sponsorship program.
d. Other Racing Cars: DIAMOND SPONSOR acknowledges that BAM Racing may change and/or add car numbers for the Races. In the event a car number is added or changed, BAM, in its sole discretion, has the right to switch the DIAMOND SPONSOR from the 49 Car to the newly added or newly changed car number for the Races. If such a move occurs, DIAMOND SPONSOR would be provided with updated Diamond Sponsor materials and information.
e. Other Teams: DIAMOND SPONSOR acknowledges that BAM may operate other teams or cars on the NASCAR Nextel Cup, Busch Grand National, or Craftsman Truck series, or on other non-NASCAR race series. Nothing in this Agreement shall be read or interpreted to prevent BAM from operating or seeking Sponsorships for such other teams.
5. BAM’s UndertakingsBest Efforts: BAM will use its best efforts to enter and qualify for all of the Races covered by this agreement. BAM will also use its best efforts to add sponsor’s name or logo to the 49 Car within three race events of receiving the order.
6. Promotional Rightsa. Image Rights: BAM hereby grants to DIAMOND SPONSOR the right to advertise and promote the sponsorship relationship between DIAMOND SPONSOR and the 49 Car in print, radio and television media during the Term of and in accordance with the provisions of this Agreement. The DIAMOND SPONSOR may advertise and promote the sponsorship relationship by stating “DIAMOND SPONSOR is a proud sponsor of BAM Racing, a NASCAR 2008 Sprint Cup Racing Team.” If DIAMOND SPONSOR does not use the above language exactly, DIAMOND SPONSOR must receive approval from BAM Racing in writing for any other statements used when advertising and promoting the sponsorship relationship.
b. Promotional Items License: Subject to all of the provisions of this Agreement, BAM hereby grants to DIAMOND SPONSOR, a limited, non-exclusive, non-transferable, revocable, royalty free, license, without the right to grant sublicenses, to use images and specific references designated by BAM in the DIAMOND SPONSOR’S admin site for marketing and promoting DIAMOND SPONSOR’S products and services only in a manner defined in DIAMOND SPONSOR’S admin site. Any other references to BAM, use of other BAM owned intellectual property or methods of promoting and/or marking products or services not defined in the DIAMOND SPONSOR’S admin site is strictly prohibited.
7. Warranties and Representationsa. a. BAM represents and warrants that it has the right and authority to grant the license and rights granted by it under this Agreement, (subject to the rights of NASCAR, race venue owners, or NASCAR production or broadcast affiliates) and that has not granted any such rights to others in conflict with this Agreement; that it has the ability necessary to perform the services specified herein and will perform those services in a competent, professional and workmanlike fashion.
b. DIAMOND SPONSOR represents and warrants that it has the right and authority to use the text to be displayed as the DIAMOND SPONSOR’s advertisement of Section 4.a. of this Agreement.
8. IndemnificationIndemnification: Each party hereby agrees to indemnify, hold harmless and defend the other from and against any and all liability, damages, costs or expenses (including reasonable attorney's fees) suffered as a result of any third party claims, demands, suits, actions or cause of action that arise out of or result from (a) any breach of the other party’s warranties in Section 7, or (b) the other party's acts or omissions, including but not limited to trademark, copyright, privacy, publicity, product liability, personal injury, damage to property, or any other kind of claim or allegation. In no event will either party be liable to the other for consequential, indirect, incidental, special or other similar damages, even if the party had been specifically warned about the possibility of such damages.
9. InsuranceBAM shall maintain during the Term of this Agreement and any extensions or renewal thereof, general liability coverage of $1,000,000 per occurrence and Excess Liability coverage of $9,000,000 per occurrence with a reputable and financially responsible insurance company and shall name DIAMOND SPONSOR as an additional insured party and furnish DIAMOND SPONSOR certificates specifying the names of insurers, policy numbers and expiration dates establishing that such insurance has been obtained and is being maintained.
10. Relationship of the PartiesThe parties hereto are acting herein as independent contractors and independent employers and nothing herein contained shall create or be construed as creating a partnership, joint venture, or agency relationship between BAM or Driver and DIAMOND SPONSOR, and neither party shall have the authority to obligate or bind the other except as specifically set forth herein. DIAMOND SPONSOR will not, except as provided herein, exercise any control over the hours, schedule, performances, employees or equipment of BAM with respect to professional performance under this Agreement.
11. Noticesa. Service of notice from BAM concerning breach of this agreement by DIAMOND SPONSOR shall be sufficient if delivered personally or mailed (registered certified mail, return receipt request), or delivered by confirmed facsimile to the contact information provided by the DIAMOND SPONSOR during the ordering process. Delivery shall be deemed to have been made five (5) days after the date sent.
b. Notices from BAM to DIAMOND SPONSOR may be posted on our web site and will be deemed delivered within thirty (30) days after posting. Notices also may be delivered to DIAMOND SPONSOR via e-mail from BAM to the e-mail contact information provided by DIAMOND SPONSOR during the ordering process and will be deemed delivered within five (5) days after the e-mail is sent.
c. All Notices from DIAMOND SPONSOR to BAM must be sent to:
If to BAM: Attn: Diamond Sponsor RelationsNeither this Agreement nor any rights or obligations hereunder may be assigned or transferred by either party to any other person or entity, voluntarily or by operation of the law, without the advance written consent of the other party; provided, however, that DIAMOND SPONSOR may assign this Agreement to an affiliate. If DIAMOND SPONSOR makes such an assignment, it shall remain liable for all payment obligations to BAM hereunder.
13. ConfidentialityThe parties acknowledge that, in order to effectuate the purposes of this Agreement, each party may disclose to the other non-public confidential or proprietary information (“Confidential Information”). Each party agrees to treat as confidential and not disclose to any third party, without the prior written consent of the other party, Confidential Information disclosed by the other party. Each party will use the other party’s Confidential Information only as authorized for the purposes of this Agreement. Confidential Information includes but is not limited to business or marketing plans, sales data, financial forecasts, customer data, customer account or transaction information, non-public personal or financial information of any actual or potential customer, and contract terms, including the terms of this Agreement and the terms of Driver’s contract or the contracts of BAM employees.
14. Governing Law and Venue; ArbitrationThis Agreement and the parties’ rights and obligations shall be interpreted in accordance with the law of the State of North Carolina. In the event a dispute shall arise between the parties to this agreement, it is hereby agreed that the dispute shall be referred to a single arbitrator to be agreed between the parties, or failing agreement within fourteen days, after either party has given to the other a written request to concur in the appointment of an arbitrator, by an arbitrator to be appointed by the American Association of Arbitrators for arbitration in accordance with the applicable United States Arbitration and Mediation Rules of Arbitration. The arbitrator's decision shall be final and legally binding and judgment may be entered thereon. Each party shall be responsible for its share of the arbitration fees in accordance with the applicable Rules of Arbitration. In the event a party fails to proceed with arbitration, unsuccessfully challenges the arbitrator's award, or fails to comply with the arbitrator's award, the other party is entitled to costs of suit, including a reasonable attorney's fee for having to compel arbitration or defend or enforce the award.
15. Entire AgreementThis Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof, and supercedes all prior and contemporaneous agreements or communications, written or oral, with respect to such subject matter hereof. No waiver, modification or amendment to this Agreement shall be valid unless in writing signed by both parties hereto.
16. WaiverThe failure or inability of either party to enforce any right hereunder shall not waive any future rights.
17. AcceptanceBy checking the acceptance box on this order form, you signify that you have read and accept this Agreement. Your electronic acceptance on our web site of this Agreement constitutes a legally binding acceptance of this Agreement. The electronic acceptance of this Agreement shall have the same force and effect as if this Agreement was physically signed.