1. BENEFITS
(a) Performance. STATION Austin shall use commercially reasonable efforts to provide Participant with access to the programming and opportunities detailed in the Order Form (the “Benefits”). The Benefits are subject to change at any time, in STATION Austin’s sole discretion, provided, that STATION Austin will seek input from Participant in an effort to improve value for Participant.
(b) Policies. In addition to the terms and conditions of this Agreement, access to and use of certain Benefits may be subject to additional terms and conditions, as identified in the Order Form or as reasonably implemented by STATION Austin and made known to Participant before application (“Policies”).
2. FEES
(a) Fees and Payment. Participant shall pay STATION Austin the fees set forth in the Order Form (the “Fees”), which are in United States dollars. Payment of fees will be due no later than thirty (30) days prior to an event. If there are less than 30 days remaining before the event date, payment must be made on receipt of invoice by STATION Austin, and must be made via (i) wire transfer, (ii) automated clearing house (ACH) transfer, (iii) check or (iv) credit card. In the event Participant chooses to make payments towards Fees by credit card, a credit card processing fee equal to 3% of the transaction value will be applied per transaction. Late Payments are subject to an interest rate of 1.5% per month paid late. Late payments more than 30 days late are subject to termination of this Agreement
(b) Non-Payment. The failure of Participant to pay amounts due shall constitute a material breach of this agreement. STATION Austin reserves the right, at its sole discretion, to seek remedy as it sees fit, including, but not limited to, pursuit of any legal remedies available to address the breach. Participant shall be responsible for any costs incurred by STATION Austin in the collection of overdue payments, including reasonable attorney’s fees and court costs. If your event/program Benefits increase substantially after agreement signature, additional fees may be required. Additional Benefits will be determined in discussions with STATION Austin. If required, payment for additional Benefits must be made on receipt of invoice by STATION Austin.
(c) Representatives of Participant and STATION Austin shall inspect the premises after the event/program and STATION Austin shall identify any damage to STATION Austin property or premises for which Participant is responsible. STATION Austin shall secure two (2) bids for repair or replacement of such damaged property, if feasible, and Participant agrees that the lowest such bid shall be the agreed upon amount of damages to be paid to STATION Austin. Participant is required to pay any additional amounts upon receipt of invoice by STATION Austin.
(d) Taxes. All fees specified in this Agreement are exclusive of any sales, use, value-added, excise and other similar taxes and assessments (collectively, “Taxes”). Participant is solely responsible for paying all applicable Taxes. If STATION Austin has the legal obligation to collect any Taxes, Participant shall reimburse STATION Austin. If applicable law requires Participant to withhold any Taxes, Participant shall provide STATION Austin with appropriate documentation to support such payments and take reasonable steps to minimize such payments.
3. USE OF MARKS
(a) Definition. “Marks” means all trademarks, service marks, names, titles, symbols, logos, designs, artwork, phrases, trade names and trade dress, and any combination thereof associated with each party or any of its affiliates, whether registered, pending registration, or subsisting at common law.
(b) License to Marks. During the Term and subject to compliance with the terms and conditions of this Agreement in all material respects, each party hereby grants the other party a non-exclusive, non-transferable (subject to Section 12(d)), non-sublicensable, royalty free license to use such party’s Marks in all formats and media, whether now known or later developed, as necessary or appropriate to: (i) with respect to STATION Austin, provide the Benefits to Participant or identify or promote Participant’s participation in the programming and opportunities detailed in Benefits, or (ii) with respect to Participant, make use of Benefits as contemplated herein and identify and promote Participant’s participation in the programming and opportunities detailed in Benefits.
(c) Guidelines. Each party shall use the other party’s Marks solely in accordance with such other party’s usage guidelines, quality control standards, and any other guidelines or restrictions communicated by such other party. All uses of a party’s Marks, and all goodwill associated therewith, shall inure solely to the benefit of such party, and each party shall retain all right, title and interest in and to its Marks.
4. CONFIDENTIAL INFORMATION
(a) Definition. “Confidential Information” means information that the disclosing party discloses or makes available to the receiving party pursuant to this Agreement that the disclosing party identifies in good faith as confidential or proprietary or, given the nature of the information or the circumstances surrounding its disclosure, the receiving party should reasonably understand to be confidential or proprietary. Confidential Information may include information belonging to a third-party to which the disclosing party has an obligation of confidentiality.
(b) Use and Disclosure. Each party may use Confidential Information only as necessary to exercise its rights and discharge its obligations under this Agreement. Neither party may disclose Confidential Information to a third-party, except to its directors, officers, employees, contractors, agents and advisers who: (i) have a need to know such Confidential Information in connection with this Agreement; (ii) are informed of the confidential nature of such Confidential Information; and (iii) have obligations with respect to such Confidential Information that are at least as restrictive as those in this Agreement. To safeguard Confidential Information, the receiving party shall use the same degree of care that it uses to protect the confidentiality of its own confidential or proprietary information of like nature, but no less than a reasonable degree of care.
(c) Exclusions. The obligations set forth in this Section 4 do not apply to any Confidential Information that: (i) was, or becomes, part of the public domain not due to any unauthorized act or omission by the receiving party; (ii) is independently developed or acquired by the receiving party without reference to or reliance upon such Confidential Information; (iii) is provided to the receiving party by a third party who is under no obligation to the disclosing party to keep the information confidential; or (iv) is required to be disclosed by law, in which case the receiving party shall take reasonable actions to minimize such disclosure and promptly notify the disclosing party of the request for disclosure, to the extent permitted by law.
(d) Return or Destruction. Upon the request of the disclosing party, the receiving party shall promptly return to the disclosing party or destroy (at the receiving party’s option) all tangible materials or portions thereof constituting or containing Confidential Information (including all copies, summaries and excerpts of Confidential Information) that are within its custody or control.
5. REPRESENTATIONS AND WARRANTIES
Participant and STATION Austin each represents and warrants to the other that: (i) it has the necessary power and authority to enter into this Agreement; (ii) the execution and performance of this Agreement have been authorized by all necessary corporate or institutional action; (iii) entry into and performance of this Agreement will not conflict with any organizational documents of such party or conflict with any contract or agreement to which it is a party or by which it is bound; (iv) no action, approval, or license by any governmental organization is necessary to make this Agreement valid and binding upon such party, or is necessary for such party to perform its obligations under this Agreement; and (v) it will comply with all laws, rules and regulations applicable to the exercise of its rights and discharge of its obligations under this Agreement, and the provision or use of the Benefits.
6. INDEMNIFICATION
(a) Indemnification. Each party (the “Indemnifying Party”) shall indemnify, defend and hold the other party and its directors, officers, employees and agents (the “Indemnified Parties”) harmless from and against any loss, damage, cost, liability or expense (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction or paid in settlement arising from any action or claim of a third party to the extent based upon or resulting from: (i) infringement of such third party’s Marks attributable to the Indemnified Parties’ use of the Indemnifying Party’s Marks in full compliance with the terms and conditions of this Agreement; (ii) the Indemnifying Party’s breach of Sections 4 or 5, or (iii) the Indemnifying Party’s gross negligence or willful misconduct.
(b) Procedure. The Indemnified Parties shall: (i) give the Indemnifying Party prompt written notice of any indemnified claim, provided that failure of the Indemnified Parties to give such prompt written notice will not relieve the Indemnifying Party of any obligation to indemnify pursuant to this Section 6 except to the extent it has been materially prejudiced thereby; (ii) cooperate fully, at the Indemnifying Party’s expense, in the defense or settlement of any indemnified claim; and (iii) give the Indemnifying Party sole and complete control over the defense or settlement of any indemnified claim, provided that any settlement must include a complete release of the Indemnified Parties without requiring the Indemnified Parties to make any payment or bear any obligation. The Indemnified Parties shall have the right to retain its own counsel at their own expense to participate in the defense or settlement of any indemnified claim.
7. INSURANCE
(a) STATION Austin shall carry liability and other insurance in such dollar amount as deemed necessary by STATION Austin to protect itself against any claims arising from any officially scheduled activities during the event/program period(s).
(b) Participants only accessing STATION Austin spaces and not utilizing building resources as mentioned in 7c below shall provide proof of general public liability insurance. Detailed insurance information and instructions will be provided to Participant after Agreement signature.
(c) Participants using Austin Centre building resources (the freight elevator or loading dock) shall provide proof of general public liability insurance and other necessary insurance via a Certificate of Insurance (COI) to protect itself against any claims arising from any officially scheduled activities during the event/program period(s); and to indemnify STATION Austin and building owner and landlord, which shall be named as additional insureds for the duration of this Agreement. Detailed insurance information and instructions will be provided to Participant at after Agreement signature.
(d) If participant plans to serve alcohol at their event, (i) whomever is serving the alcohol must be TABC certified, whether a member of the Participant’s organization, or any other and (ii) either the client or the company providing the bartender should carry a minimum of $1,000,000 Liquor Liability Policy and to indemnify STATION Austin which shall be named as an additional insured for the duration of this Agreement. Detailed insurance information and instructions will be provided to Participant after Agreement signature.
(e) Any third party suppliers/vendors used or contracted by Participant shall carry liability and other necessary insurance in the amount of no less than One Million Dollars ($1,000,000) to protect itself against any claims arising from any officially scheduled activities during the event/program period(s); and to indemnify STATION Austin and building owner and landlord, which shall be named as additional insureds for the duration of this Agreement. Detailed insurance information and instructions will be provided to Participant at time of booking.
8. TERMINATION
(a) Term. The term for this Agreement will commence on the Effective Date and continue in effect until STATION Austin provides all Benefits to Participant, unless terminated sooner pursuant to Section 8(b).
(b) Termination. Notwithstanding anything to the contrary, either party may terminate this Agreement as follows: (i) upon written notice to the other party for cancellation for Room Rental Reservations (excluding those scheduled during South by Southwest) (ii) upon written notice to the other party of a material breach of this Agreement by the other party, which breach the other party does not cure within thirty (30) days after receipt of written notice of the breach; or (ii) upon written notice to the other party in the event the other party becomes insolvent or bankrupt; becomes the subject of any proceedings under bankruptcy, insolvency of debtor relief law; has a receiver or manager appointed; makes an assignment for the benefit of creditors; or takes the benefit of any applicable law or statute in force for the winding up or liquidation of such party’s business. Notwithstanding the termination of this Agreement for any reason, neither party will be relieved of any duty, obligation, debt or liability that arose or accrued prior to the effective date of termination. Room Rental Cancellations will be subject to refund schedule pursuant to Section 8(c).
(c) If Room Rental cancellation occurs: (i) Cancellation 30 or more days prior to the event will be fully refunded. (ii) Cancellation less than one month (29-0 days out) is subject to 50% refund. If Room Cancellation is due to a STATION Austin scheduling conflict, a full refund will be provided.
(d) Suspension. In the event that Participant does not pay any Fees when due under this Agreement, STATION Austin may suspend all Benefits under this Agreement, without any liability to Participant, until Participant has paid all such Fees, and all Fees that would normally be incurred during such suspension will still be in incurred and due.
(e) Survival. Any provision that, by its terms, is intended to survive the termination of this Agreement will survive the termination of this Agreement, including Sections 3 (Use of Marks); 4 (Confidential Information); 5 (Representations and Warranties), 6 (Indemnification), 8(d) (Survival), 10 (Disclaimer of Warranties), 11 (Limitation of Liability) and 12 (Miscellaneous).
9. ATTORNEY’S & COLLECTIONS FEES
In the event of a breach of the terms of this Agreement, subject to compliance with Section 8 hereof, the nonbreaching party shall be entitled to pursue any remedy provided in law or equity, including injunctive relief and the right to recover any and all damages and costs, including reasonable attorneys’ fees and court costs, it may have suffered or incurred by reason of such breach, whether or not suit is brought. You agree to reimburse STATION Austin the fees of any collection agency, which will be added to the account at the time it is placed with an agency for collection and may be based on a percentage at a maximum of 25 % of the debt, and all reasonable costs and expenses, including reasonable attorneys’ fees, incurred in such collection efforts.
10. DISCLAIMER OF WARRANTIES
Except as expressly set forth in Section 5, all benefits are provided “as is,” “as available” and “with all faults.” STATION Austin, to the maximum extent permitted by law, expressly disclaims all warranties and representations (except as expressly set forth in Section 5), express or implied, including: (a) the implied warranties of merchantability and fitness for a particular purpose; and (b) any warranty with respect to the quality, accuracy, currency or completeness of the benefits, or that use of or access to the benefits will be error-free, uninterrupted, and free from other failures or will meet participants requirements.
11. LIMITATION OF LIABILITY
Except with respect to either party’s gross negligence, willful misconduct, breach of its confidentiality obligations under Section 4, or indemnification obligations under Section 6: (a) In no event will either party be liable to the other party for any lost profits, cost of cover, or incidental, indirect, special, punitive or consequential damages, including damages arising from any type or manner of commercial, business or financial loss occasioned by or resulting from any use of or access to (or inability to use or access) the benefits, even if such party had actual or constructive knowledge of the possibility of such damages and regardless of whether such damages were foreseeable; and (b) in no event will either party’s aggregate liability under this agreement exceed the amount in fees received by STATION Austin from participant under this agreement in the twelve (12)-month period immediately preceding the date on which the events giving rise to liability arose.
12. MISCELLANEOUS
(a) Independent Contractors. It is understood and agreed that STATION Austin shall have the right on behalf of and in the name of Participant to enter into agreements with others for necessary services, supplies, equipment, employees or otherwise in the carrying out of duties and services outlined in this Agreement. It is understood that in all such matters, STATION Austin is an independent contractor, not an agent or employee of Participant and is not authorized to act on behalf of Participant except as outlined in this Agreement. Participant is entitled to provide STATION Austin with general guidance to assist in completing the scope of services to Participant’s satisfaction, nevertheless STATION Austin is ultimately responsible for directing and controlling the performance of the services comprising the scope of work, in accordance with the terms and conditions of this Agreement.
(b) Notices. Notices under this Agreement shall be given in writing and delivered by hand, email, registered or certified mail (return receipt requested) or internationally-recognized courier service (with delivery confirmation) to the address for each party set forth below.
For STATION Austin:
STATION Austin Properties, LLC
9450 SW Gemini Dr, PMB 70468
Beaverton, Oregon 97008-7105
Attention: Eric Stober
For Participant:
[Company.Name]
Address:
Attention (Name):
(c) Assignment. Upon the prior written consent of STATION Austin, which consent shall not be unreasonably withheld, Participant may assign this Agreement as part of the transfer by merger, acquisition, stock transfer or other consolidation of Participant with another entity, or sale of all or substantially all of Participant’s assets. Except as permitted in the preceding sentence, Participant may not assign this Agreement, or sublicense, assign or delegate any right or obligation hereunder, by operation of law or otherwise. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
(d) No Third-Party Beneficiaries. Nothing in this Agreement shall confer any rights upon any person or entity other than the parties hereto and their respective successors and permitted assigns.
(e) Interpretation. For the purposes of this Agreement: (i) the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation;” (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. If any provision of this Agreement shall be held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this Agreement.
(f) Section headings, numbers, letters and emphasis marks have been inserted for convenience of reference only. If there shall be any conflict between any such headings, numbers, letters or emphasis marks and the text of this Agreement, the text shall control.
(g) Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all previous or contemporaneous oral or written negotiations or agreements with respect to such subject matter. Any terms contained on Participant’s purchase order document or other confirmatory document shall have no force and effect.
(h) Amendment and Waiver. This Agreement may not be amended or modified except in a writing executed by an authorized representative of each party. The failure of either party to require strict performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
(i) Governing Law and Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the United States of America and the State of Texas, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. The parties agree that any action, proceeding, controversy or claim between them arising out of or relating to this Agreement or the relationship between the parties (collectively, an “Action”) shall be brought only in a court of competent jurisdiction in Texas. Each party hereby submits to the personal jurisdiction and venue of such courts and waives any objection on the grounds of venue, forum non-conveniens or any similar grounds with respect to any Action.
(j) Force Majeure. Any prevention of or delay in either party’s performance hereunder due to labor disputes, acts of God, war, government regulation or advisory, disaster, fire, illness, pandemics, accidents or other casualty, strikes or threats of strikes, civil disorder, acts and/or threats of terrorism or other casualty or other causes beyond such party’s reasonable control shall excuse such party’s performance of its obligations hereunder for a period equal to the duration of any such prevention or delay. Notwithstanding the above, Client bears the risk of cancellation due to inclement weather and shall pay all third party contractors, acts and entertainment in full, if this occurs.
(k) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.
13. POLICIES AND PROCEDURES FOR USE OF STATION AUSTIN
(a) Participant represents and warrants by signing this Agreement that it has read and fully understands the “Policies and Procedures” for use of STATION Austin. Any acts, deliberate or not, that are not in compliance with the Policies and Procedures for use of the venue may result in cancellation of the event or penalty imposed by STATION Austin.
(b) STATION Austin is not responsible for music licensing.
(c) Participant understands that many of the decorations, furniture items, serving items, equipment items and props are rented for the occasion or are the property of STATION Austin or other contractors. Should any such items be damaged or converted by Participant or its employees, agents or guests, then Participant agrees to pay the repair and/or replacement costs of such items.
(d) STATION Austin may place a 3′ wide vertical banner on the event stage with STATION Austin branding.
(e) Participant is prohibited from covering or moving existing STATION Austin and Partner branding including clings, stage gear, and signage.
(f) Participant is prohibited from affixing any adhesive-type materials to any surfaces without STATION Austin prior approval. Additional approvals may be required by the Austin Centre landlord depending on the application site identified.
(g) Participant will provide detailed schematics for any room decorations prior to activation. Upon request, STATION Austin can provide floor plans to Participant for planning purposes.
(h) AV equipment offerings are as-is and unique to specific venue spaces. Participant agrees to accept such space related AV constraints, as STATION Austin is not able to customize existing AV options beyond what is currently offered. STATION Austin agrees to maintain AV equipment in good working condition but is not responsible for unforeseen and unplanned technical issues beyond STATION Austin’s control. STATION Austin is unable to provide laptops or specialty dongles beyond HDMI Cables for A/V presentations.