A naming rights agreement is a contract between two or more parties that allows one party the exclusive right to name a property, location, or event for a set period. Naming rights agreements are commonly used for things like naming stadiums and sporting events. Sometimes this agreement includes sponsorship clauses that outline the terms and conditions of a company sponsoring an event while also gaining naming rights.
These agreements can also be involved with institutions like universities when acquiring naming rights to public property. In that case, the parties involved would be the government entity that owns the property and the university that wants to name the property.
Below is a list of common sections included in Naming Rights Agreements. These sections are linked to the below sample agreement for you to explore.
CERTAIN INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS NOT MATERIAL AND WOULD LIKELY CAUSE COMPETITIVE HARM TO THE REGISTRANT IF PUBLICLY DISCLOSED. [***] or [Redacted] INDICATES THAT INFORMATION HAS BEEN REDACTED.
SPONSORSHIP AND NAMING RIGHTS AGREEMENT
This Sponsorship and Naming Rights Agreement (this “ Agreement ”) is made as of the 17th day of November, 2016 by and among HOF Village, LLC, a Delaware limited liability company (“HOFV”), National Football Museum, Inc. d/b/a Pro Football Hall of Fame, an Ohio corporation (“ PFHOF ” and, together with HOFV, the “ HOF Entities ”), and Johnson Controls, Inc., a Wisconsin corporation (the “ Company ” and, together with the HOF Entities, the “ Parties ”).
WHEREAS, HOFV is developing the Hall of Fame Village, a development in Canton, Ohio which will include the Pro Football Hall of Fame Museum (the “ Museum ”) and be located on approximately 90 acres of real estate, the current renderings for which are attached hereto as Exhibit A (collectively, the “ Village ”);
WHEREAS, the Company desires to acquire from the HOF Entities certain sponsorship and naming rights, and the HOF Entities desire to grant such rights to the Company, all on the terms and subject to the conditions set forth in this Agreement; and
NOW, THEREFORE, for the consideration stated in this Agreement, the Parties hereby agree as follows (the definitions for certain defined terms contained herein and other definitional and interpretative provisions are set forth in Exhibit B attached hereto):
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1.1.1 The HOF Entities hereby grant the Company the exclusive right to designate the name of the Village throughout the Term.
1.1.2 As of the date hereof, the Village Name shall be “Johnson Controls Hall of Fame Village.”
1.1.3 Except as set forth in Section 1.1.4 , the Company shall not be entitled to change the name of the Village without the prior written approval of each of the HOF Entities, which approval will not be unreasonably withheld, conditioned or delayed, and each Governmental Authority or other Person whose approval is required under Law.
1.1.4 In the event that a single entity, person or group whose primary line of business consists of a business included in the then-existing Category (the “ Acquiror ”) acquires or otherwise owns more than fifty percent (50%) of the voting shares of the Company on a non-diluted basis and elects to change the Village Name, then Acquiror may effect a change of the Village Name (the “ Proposed Name Change ”), provided that (i) the Proposed Name Change must be to a name which is reasonably acceptable to the HOF Entities, (ii) there is no material breach of this Agreement by the Company or the Acquiror on the date on which the Proposed Name Change is submitted by the Acquiror, (iii) the Acquiror and the Parties shall work in good faith to develop replacement Co-Branded Village Marks reflecting the Proposed Name Change which are reasonably acceptable to the Parties and (iv) the Acquiror and the Company shall provide to the HOF Entities such rights, licenses, representations, warranties, covenants and indemnification with respect to the Intellectual Property of the Acquiror as shall be reasonably required by the HOF Entities (consistent with the rights, licenses, representations, warranties, covenants and indemnification with respect to the Company included in this Agreement) in order to allow the Company to perform its obligations pursuant to this Agreement and to enjoy all of the benefits thereof with respect to the replacement Co-Branded Village Marks to the same extent as it was able to perform its obligations hereunder and enjoy the benefits thereof with respect to the former Co-Branded Village Marks prior to the request for the Proposed Name Change. In the event such conditions are satisfied, then in such event the Parties shall work together to change the Co-Branded Village Marks to reflect the Proposed Name Change, at which time (subject to Section 7.3 , which shall apply solely with respect to use of the former Co-Branded Village Marks from the effective date of the change in Co-Branded Village Marks, as determined by the Parties in good faith, as though this Agreement had been terminated as of such effective date) the Parties shall cease use of the former Co-Branded Village Marks. Notwithstanding anything to the contrary in this Agreement, the Company shall pay or cause to be paid by the Acquiror all direct and indirect expenses and costs incurred by the HOF Entities (or either of them or any of their respective Affiliates) in modifying the Co-Branded Village Marks and any other direct or indirect actual expenses and costs incurred by the HOF Entities (or either of them or any of their respective Affiliates) to effect such renaming.
1.1.5 Subject to the terms of this Agreement, including this Section 1.1.5 and Section 1.10 , the Company hereby acknowledges and agrees that certain areas within the Village (as it is currently designed or in the future) may be named by a third party, and that the HOF Entities may grant certain other naming rights, in each case not in violation of any of the provisions of this Agreement (collectively, the “ Other Naming Rights ”). Throughout the Term, neither HOF Entity shall enter into a definitive agreement with a third party with respect to naming rights for any material area within the Village (a) without first offering to the Company a 15 day right of first negotiation to enter into a naming rights agreement for such area (it being agreed that, for a period of 15 days following the Company’s notice of such opportunity, the HOF Entities and the Company shall negotiate exclusively and in good faith regarding such a naming rights agreement unless the Company notifies the HOF Entities in writing prior to the conclusion of such period that the Company is not interested in entering into a naming rights agreement for such area and, unless a naming rights agreement for such area shall have been executed by the Parties during such 15 day period and subject to subsection (b) hereof, the HOF Entities shall thereafter be permitted to enter into a definitive agreement with a third party with respect to naming rights for such area) or (b) in violation of any of the provisions of this Agreement, including Section 1.10 ; provided, however, that nothing in this Agreement shall restrict the ability of the HOF Entities to grant any naming or sponsorship rights for philanthropic purposes without receipt of any naming or sponsorship fees.
1.2 Logos . The HOF Entities have developed or shall develop, at their own expense, one or more logos (including without limitation those logos listed on Exhibit P , each, a “ Village Logo ”), which when used in connection with the JOHNSON CONTROLS mark, shall constitute and serve as a “Co-Branded Village Logo.” The Parties shall work together in good faith in connection with the development of one or more Co-Branded Village Logos, with fifty percent (50%) of the cost of such development to be borne by each of the Company, on the one hand, and the HOF Entities, on the other hand. Upon the completion of the development of any logo which is acceptable to each of the Parties for such purpose, such logo shall be added to Exhibit C and shall serve as a Co-Branded Village Logo. One or more of the HOF Entities shall own all right, title and interest in and to each Village Logo, subject to the license of same to the Company pursuant to Section 3.2 . The Company shall own all right, title and interest in and to the JOHNSON CONTROLS mark, subject to license of same to the HOF Entities pursuant to Section 3.3 .
1.3 Village Branding and Advertising Signage . In addition to the naming rights granted to the Company pursuant to Section 1.1 above, throughout the Term, the HOF Entities shall use and promote the Village Name and Co-Branded Village Logos (collectively, the “ Co-Branded Village Marks ”), including (from and after the construction of the Village) through the use of signage in the Village as set forth in Exhibit D (such branding contemplated by Exhibit D , the “ Village Branding ”). In addition, throughout the Term (from and after the construction of the Village), the HOF Entities shall place certain advertising signage for the Company throughout the Village as set forth in Exhibit D (such signage contemplated by Exhibit D , the “ Advertising Signs ”).
1.4 Advertising . The HOF Entities shall provide to the Company throughout the Term (and, to the extent such construction is a precondition to the HOF Entities’ ability to perform certain specific obligations as set forth on such Exhibit, from and after the construction of the Village) those advertising and sponsorship rights set forth in Exhibit D . If the HOF Entities are unable to provide the Company with any benefit identified in Exhibit D in accordance with this Agreement at any time during the Term, then the HOF Entities shall propose a credit against the Fees, substitute benefit or other “make good” having a value necessary to fully compensate the Company for the benefit not so provided. If such proposal is not reasonably acceptable to the Company, the Parties shall work together in good faith to provide a credit against the Fees, substitute benefit or other “make good” having a value necessary to fully compensate the Company for the benefit not so provided. If the Parties are unable to agree upon a credit against the Fees, substitute benefit or “make good” within thirty (30) days and if either Party so elects, the Parties shall designate an appraiser which is reasonably acceptable to both Parties, has no material relationship to either of the Parties or their respective Affiliates and has experience in valuing similar benefits to determine the amount of the credit against the Fees which is necessary to fully compensate the Company for the value of the benefits identified on Exhibit D which the HOF Entities are unable to provide to the Company. The determination of such appraiser with respect to the amount of such credit shall be final, binding and non-appealable, and fifty percent (50%) of the costs and expenses charged by the appraiser for such services rendered shall be paid by each of the Company, on the one hand, and the HOF Entities, on the other hand. Promptly following the final determination in accordance with this Section 1.4 of such credit against the Fees, substitute benefit or other “make good”, the HOF Entities shall pay to the Company an amount equal to the credit against the Fees and/or provide to the Company such substitute benefit or other “make good,” as applicable.
1.5 Branding and Advertising Costs and Maintenance .
1.5.1 Subject to Section 1.5.3 , the HOF Entities shall build and install, or cause to be built and installed, at the HOF Entities’ sole cost and expense, the Village Branding and Advertising Signs in accordance with the terms of this Agreement.
1.5.2 Subject to Section 1.5.3 , the Company shall arrange for, in consultation with the HOF Entities and at the HOF Entities’ sole cost and expense, the creative development and design of the Advertising Material/Artwork. The creative content of any and all advertising material displayed on or affixed to the Advertising Signs (the “ Advertising Material/Artwork ”) shall be subject to the approval of the HOF Entities, not to be unreasonably withheld, conditioned or delayed. All such Advertising Material/Artwork (including any intellectual property rights related thereto) shall remain at all times property of the HOF Entities (subject to the HOF Entities’ license thereof to the Company as set forth in Section 3.2 and subject to the retention by the Company of any intellectual property in such Advertising Material/Artwork which is owned by the Company as of the creation of such Advertising Material/Artwork).
1.5.3 Notwithstanding anything to the contrary in this Agreement, including without limitation in Section 1.5.1 or Section 1.5.2 hereof, in the event that the aggregate costs associated with the initial build and installation pursuant to Section 1.5.1 , together with the aggregate costs associated with the creative development and design of the Advertising Material/Artwork pursuant to Section 1.5.2 (such costs collectively the “ Initial Signage Costs ”), shall exceed [***] (the “ Initial Signage Credit ”), (i) the Company shall be responsible for, and promptly following its receipt of an invoice with respect thereto shall promptly reimburse the HOF Entities for, fifty percent (50%) of any Initial Signage Costs in excess of [***], up to [***] payable by the Company pursuant to this subsection (i), and (ii) the Company shall be responsible for, and promptly following its receipt of an invoice with respect thereto shall promptly reimburse the HOF Entities for, any Initial Signage Costs in excess of [***]. In no event will the HOF Entities (or either of them) be obligated to pay more than [***] with respect to the Initial Signage Costs.
1.5.4 The HOF Entities shall conduct, or cause to be conducted, all repair and maintenance, including routine and preventative repair and maintenance, of the Village Branding and Advertising Signs after installation as are necessary to keep the Village Branding and Advertising Signs in good condition and repair. In the first calendar quarter of each of 2022, 2027 and 2032, a representative of each of the Parties shall tour the Village to evaluate signage positions within the Village (including permanent, digital and media) to determine if they believe any update or refurbishment is required to the Village Branding and/or Advertising Signs. Any Party shall be entitled, at any time and from time to time, to request any change to the Village Branding and/or Advertising Signs, and if such change is necessary to keep the Village Branding and Advertising Signs in good condition and repair or the Parties agree to such change, then the HOF Entities shall take such steps as are necessary to effect such requested changes as soon as reasonably practicable. In the event that such change is necessary to keep the Village Branding and Advertising Signs in good condition and repair or the Parties agree to such change, all costs associated with such change which are necessary to address issues of normal wear and tear (as mutually agreed by the Parties or, failing such agreement, as reasonably determined by an independent third party professional signage company which is reasonably acceptable to the Parties) shall be borne by the HOF Entities and all excess costs (i.e., costs in excess of those which are necessary to address issues of normal wear and tear) associated therewith shall be borne equally by the HOF Entities, on the one hand, and the Company, on the other hand. In the event that such change is unnecessary to keep the Village Branding and Advertising Signs in good condition and repair and the Parties do not agree to such change but the HOF Entities, on the one hand, or the Company, on the other hand, shall nonetheless request such change, such change shall be made only with the approval (which shall not be unreasonably withheld, conditioned or delayed) of the Company, on the one hand, or the HOF Entities, on the other hand, and, in the event such change is made, all costs associated with such change shall be borne by the HOF Entities (if the change was requested by an HOF Entity) or the Company (if the change was requested by the Company).
1.5.5 The Company shall have, in the aggregate, the most prominent signage (both permanent and digital) at the Village in comparison to each other Founding Sponsor of the Village. The HOF Entities shall come into compliance with these requirements by either decreasing the signage of any Founding Sponsor of the Village having more prominent signage at the Village than the Company or increasing the signage of the Company. In no event will the Company or any of its Affiliates be required to purchase additional signage to enable the HOF Entities to comply with this Section 1.5.5 .
1.6 Construction and Operation .
1.6.1 The HOF Entities shall ensure that the construction of the Village shall be performed in accordance with all applicable Laws and this Agreement. The HOF Entities shall keep the Company reasonably apprised of all decisions regarding the construction of the Village that would reasonably be expected to impact this Agreement in any material respect. The HOF Entities shall provide the Company with periodic updates regarding the schedule for completion of the Village. Nothing in this Agreement shall be deemed to provide to the Company any approval rights or decision making authority with respect to the construction of the Village.
1.6.2 The HOF Entities shall cause the Village (including all Village Branding and Advertising Signs) to be maintained and operated in a good, clean, tenantable and safe repair, order and condition. The HOF Entities shall manage and operate, or cause to be managed and operated, the Village (including all Village Branding and Advertising Signs) in compliance with all applicable Laws and the requirements of this Agreement. Without limiting the generality of the foregoing, the HOF Entities shall have the right to take such actions, including without limitation covering or not displaying any permanent or digital signage, as is reasonably necessary for the safe and orderly operation of the Village.
1.6.3 The HOF Entities agree that, in performing their obligations hereunder, there shall be no discrimination against or segregation of any person or group of persons on account of race, color, religion, creed, national origin, ancestry, sex, sexual preference/orientation, age, disability, medical condition, Acquired Immune Deficiency Syndrome (AIDS) — acquired or perceived, retaliation for having filed a discrimination complaint, or marital status, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Village (except to the extent required by applicable Law), nor shall either HOF Entity, or any Person claiming under or through either HOF Entity, establish or permit (to the extent that it is within the HOF Entities’ control) any such practice or practices of discrimination or segregation.
1.6.4 Each Party agrees not to commit fraud in connection with the performance of its obligations under this Agreement.
1.7 Venue Materials . Announcements and Contracts .
1.7.1 Throughout the Term, the HOF Entities shall cause any materials produced by the HOF Entities referring to the Village to refer to the Village exclusively as the Village Name and to have the Village Name and/or a Co-Branded Village Logo be included in all advertising, promotional and publicity materials produced by the HOF Entities relating to the Village to the extent that it is reasonable and customary to include the name or logo on such materials.
1.7.2 Throughout the Term, the HOF Entities shall use commercially reasonable efforts to cause all other third parties promoting, presenting or producing performances or events at the Village to refer to the Village exclusively as the Village Name and to have the Village Name and/or a Co-Branded Village Logo be included in all advertising, promotional and publicity materials relating to the Village to the extent that it is reasonable and customary to include the name or logo on such materials.
1.7.3 Throughout the Term, the HOF Entities shall use commercially reasonable efforts to cause any and all announcements relating to the Village in broadcast media to identify the Village as the Village Name.
1.8 Co-Branded Village Merchandise . The HOF Entities may produce, or have produced or manufactured by third party licensees, manufacturers or vendors, Co-Branded Village Merchandise in commercially reasonable quantities, as determined by the HOF Entities in their sole discretion. As between the Parties, and except as otherwise agreed in writing among the Parties, all expenses associated with the production, manufacture and sale of the Co-Branded Village Merchandise shall be borne by the HOF Entities, and all revenues related to the sale of the Co-Branded Village Merchandise shall be for the account and benefit of the HOF Entities. Co-Branded Village Merchandise may be sold by the HOF Entities at the Village, via the Village Websites or as otherwise determined by the HOF Entities and, without limiting the generality of the foregoing, the HOF Entities may permit third parties to sell and distribute the Co-Branded Village Merchandise through customary industry channels for such products, including gift shops, retail stores and through e-commerce channels. As between the Parties, the HOF Entities shall have the sole right to set the retail price for the Co-Branded Village Merchandise, and nothing contained herein shall prevent the HOF Entities from offering Co-Branded Village Merchandise in the form of giveaways, prizes or premiums, without charge.
1.9 Annual Reporting . The HOF Entities, on not less than an annual basis, shall analyze and present to the Company the HOF Entities’ analysis of the Company’s sponsorship rights granted to it under this Agreement, with the information included in such presentation to (a) be both qualitative and quantitative, (b) address, without limitation, attendance metrics, brand surveys, raw and equivalent media value, earned media for the applicable year and web, digital, social, and mobile impressions and engagement and (c) be verified, to the extent reasonably practicable, by an independent third party designated by the HOF Entities and reasonably acceptable to the Company to conduct an independent study (the “ Valuation Auditor ”), which study shall be designed, developed and implemented as directed by the Parties or (failing agreement of the Parties with respect thereto) as reasonably determined by the Valuation Auditor consistent with industry standards. The HOF Entities, on the one hand, and the Company, on the other hand, shall bear equally the costs and expenses of engaging the Valuation Auditor; provided, however, that in the event that the aggregate costs and expenses associated therewith exceed [***] in any calendar year, the Company shall bear all of such costs and expenses in excess of [***].
1.10.1 Except as otherwise set forth in this Agreement, throughout the Term, (a) the Company shall have the exclusive right to name the Village and (b) the Company (and its Designated Subsidiaries) shall be the exclusive sponsor of the Village in the Category, including without limitation with respect to all naming rights, sponsorship, marketing, advertising, promotional and publicity rights granted for the Village and for all events held at the Village.
1.10.2 Except as otherwise set forth in this Agreement, without limiting the generality of Section 1.10.1 , neither the HOF Entities nor any of their Affiliates will enter into any: (A) sponsorship, advertising or promotional relationship, (B) sponsorship, advertising or promotional agreement, or (C) sponsorship, advertising or promotional arrangement, in each case with respect to the Village and in the Category (other than with the Company or the Company’s Affiliates).
1.10.3 Except as otherwise set forth in this Agreement, without limiting the generality of Section 1.10.1 , neither the HOF Entities nor any of their Affiliates shall authorize or permit any Person (other than the Company, any Person listed on Exhibit E and any of their respective Affiliates, none of whom shall be treated as an Excluded Sponsor) whose business primarily relates to the provision of goods or services in the Category (each an “ Excluded Sponsor ”) to advertise or promote in, upon or in association with the Village (such advertising or promotion, “ Third Party Sponsorship ”), including on any Village Website or other PFHOF-owned or HOFV-owned social media channels. As of the date hereof, each of the Persons listed on Exhibit F shall be deemed an Excluded Sponsor throughout the Term unless the nature of the business of such Person changes such that its business no longer is primarily related to the provision of goods or services in the Category, and no other Person shall be deemed an Excluded Sponsor as of the date hereof. In the event that the HOF Entities are uncertain as to whether a Person constitutes an Excluded Sponsor, the HOF Entities may, by written notice delivered to the Company, inquire as to whether the Company believes such Person to be an Excluded Sponsor. In the event that the Company confirms that such Person is not an Excluded Sponsor or fails to notify the HOF Entities as to whether the Company believes such Person to be an Excluded Sponsor within ten (10) business days of such written notice, such Person shall be deemed not to be an Excluded Sponsor or subject to the restrictions set forth in this Section 1.10 as of the conclusion of such ten (10) business day period and the HOF Entities shall then be free to enter into an agreement with such Person providing for Third Party Sponsorship by such Person. In the event that the Company notifies the HOF Entities within such ten (10) business day period that the Company believes such Person to be an Excluded Sponsor and the HOF Entities do not believe such Person to be an Excluded Sponsor, the Parties shall address and resolve such dispute only as follows: (i) the Parties shall first negotiate in good faith for a period of not less than thirty (30) days in an effort to agree as to whether or not such Person is an Excluded Sponsor, (ii) in the event that the Parties are unable to agree during such thirty (30) day good faith negotiation period, either Party may initiate non-binding mediation as to such issue as provided for in Section 9.8 and (iii) only in the event that resolution as to such issue is not reached within ninety (90) days of the commencement of such non-binding mediation, either Party may initiate a dispute resolution process as provided for in Section 9.8 with respect to such issue. The Parties agree that any sponsorship or naming rights agreement (“ Earlier Agreement ”) between the HOF Entities or any of their Affiliates, on the one hand, and any Person which is not an Excluded Sponsor as of the date of this Agreement but which is later deemed to be an Excluded Sponsor, on the other hand, shall remain in full force and effect for the remainder of the term of the Earlier Agreement (without any extension or renewal thereof unless such extension or renewal is automatic or occurs as a result of the Person exercising a renewal option that the HOF Entities or their Affiliates cannot reject), and the HOF Entities shall not be deemed in breach of this Agreement as a result of such Earlier Agreement.
1.10.4 “ Category ” shall mean the subcategories identified on Exhibit G . For the avoidance of doubt, the Category shall not include any of the subcategories identified on Exhibit E . The Parties agree to meet approximately once every twelve (12) months during the Term to discuss in good faith any amendments to Exhibit E and/or Exhibit G which are necessary to reflect any material change, whether resulting from an acquisition, disposition, use of new and emerging technologies, failure to use old or obsolete technologies and/or changes in business direction, in the business of the Company and to ensure that the “Category” covers the core business of the Company, as the core business of the Company may change from time to time throughout the Term.
1.10.5 Notwithstanding anything to the contrary in this Agreement, including without limitation this Section 1.10 , neither the HOF Entities nor any of their Affiliates, officers, directors, managers, employees, agents or representatives shall be restricted or prohibited from contracting with any Person, including without limitation any Excluded Sponsor, for sponsorship rights to host bona fide events, including without limitation national tours, the Youth Sports Complex and other events, at (or outside of) the Village or rights to advertise and promote itself, in the Village or otherwise, in connection with any such event. By way of example and not limitation, if an Excluded Sponsor sponsors a national tour, neither the HOF Entities nor any of their Affiliates, employees or agents shall be restricted or prohibited from contracting with that Excluded Sponsor to host such tour in the Village even if, as a result of such contract, the Excluded Sponsor would advertise and promote itself, in the Village or otherwise, in connection with the event.
1.10.6 Notwithstanding anything to the contrary in this Agreement, including without limitation this Section 1.10 , neither of the HOF Entities shall be in default under this Agreement if the Company is prohibited or otherwise prevented from receiving any benefit of and/or rights set forth on Exhibit D or if one or more Excluded Sponsors or other Person otherwise prohibited from such promotion by the terms of this Section 1.10 is able to promote such Person (or such Person’s goods or services) under limited circumstances in connection with one or more Village Events in a manner which would otherwise be in violation of the terms of this Section 1.10 as a result, in either case, of rules, regulations, restrictions, limitations, agreements, laws, ordinances, judgments, orders, decrees or requirements to the extent that either (i) the existence or the adoption of such rules, regulations, restrictions, limitations, agreements, laws, ordinances, judgments, orders, decrees or requirements was not the result of the acts or omissions of either HOF Entity or their Affiliates; (ii) the avoidance of implementation or the application of rules, regulations, restrictions, limitations, agreements, laws, ordinances, judgments, orders, decrees or requirements satisfying the requirements of (i) above is beyond the “commercially reasonable control” of the HOF Entities and their Affiliates; or (iii) the existence or adoption of such rules, regulations, restrictions, limitations, agreements, laws, ordinances, judgments, orders, decrees or requirements resulted from the affirmative actions of the HOF Entities or their Affiliates, but such affirmative actions were not within the commercially reasonable control of the HOF Entities or their Affiliates to avoid taking (rules, regulations, restrictions, limitations, agreements, laws, ordinances, judgments, orders, decrees and/or requirements that satisfy (i), (ii) or (iii) above are individually a “ Permitted Restriction ” and are collectively “ Permitted Restrictions ”). For purposes of this Agreement, the term “commercially reasonable control” shall mean the level of control exercised in the normal course of business by a similar party in a similar situation. Without limiting the scope of what may constitute Permitted Restrictions, the rights and benefits granted by the HOF Entities to the Company are subject to each of the following, each of which is and shall be deemed a Permitted Restriction:
(a) League . Conference and Governing Body Rules . Rules and regulations restricting the rights and benefits imposed by (i) leagues (e.g., the National Football League), the National Collegiate Athletic Association (“NCAA”) or NCAA conferences (e.g., the Big 10) whose teams participate in Village Events, or (ii) other governing bodies (e.g., USA Rugby) for certain events (e.g., rugby matches). It is expressly acknowledged and agreed that, by way of example and not limitation, rights of the NCAA may supersede rights of the Company under this Agreement for NCAA event advertising and logos on college football and other events.
(b) National or Regional Television or Radio Limitations . Rules and regulations imposed on the HOF Entities (or either of them) by a national or regional television network or radio station with the right to broadcast one or more of the Village Events.
(c) Local Television or Radio . Limitations imposed by local television or radio broadcasters with the right to broadcast one or more of the Village Events on local television or radio.
(d) Blackout Rights . Blackout rights or other prevention of public display required by a league, conference or other governing body, or which are otherwise required by an owner, promoter or agent of a Village Event.
(e) Village Events Not Under Control of the HOF Entities . Restrictions or limitations imposed by any owner, promoter or producer of Village Events not under the Control of the HOF Entities (or either of them).
(f) Applicable Laws . All applicable Laws.
1.10.7 Notwithstanding anything to the contrary in this Agreement, including without limitation this Section 1.10 , no Excluded Sponsor or other Person shall be restricted or prohibited from procuring or receiving any hospitality elements, including without limitation tickets and access to suites, for any Village Event or providing access to the Village or any portion thereof, including without limitation the Museum, or from visiting the Village or any portion thereof, including without limitation the Museum.
1.11 Required Approvals . The Parties shall use commercially reasonable efforts to obtain, as promptly as reasonably practicable following the date hereof, all approvals required by Law in connection with this Agreement.
2.1 Payment of Fees . The Company shall make payments to HOFV in the amounts and on the dates set forth in Exhibit H (collectively, the “Fees”). The Company shall promptly pay the Fees as and when the same shall become due and payable and, in the event of the Company’s failure to pay same when due, the HOF Entities shall have all of the rights and remedies provided for in this Agreement or, subject to the terms of this Agreement, at law or in equity in the case of nonpayment of amounts thereunder. The Company’s obligation to pay any Fees due and payable through the date of expiration or sooner termination (as applicable) shall survive the expiration or sooner termination of this Agreement (as applicable). All payments due hereunder by the Company shall be payable when due by wire transfer pursuant to instructions from HOFV. The Company acknowledges and agrees that HOFV has the right to assign the receipt of any payments payable by the Company hereunder to a Lender or other Person and the Company shall accept and act in accordance with such payment instructions from HOFV with respect to any such assignment.
2.2 Currency for Payments . All payments due hereunder shall be made in United States dollars.
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3.1.1 HOF Entity Marks . The Company accepts and acknowledges that the Intellectual Property owned directly or indirectly by the HOF Entities (or either of them), including but not limited to the HOF Entity Marks (which shall include the Village Logos), are Intellectual Property and important assets of the HOF Entities. The Company will not use any trademark (other than the Co-Branded Village Marks) that is confusingly similar to the HOF Entity Marks (or any of them). As between the Company and the HOF Entities, the HOF Entities (or the applicable HOF Entity) shall at all times be the sole and exclusive owner of all rights in and to the HOF Entity Marks, subject to the rights of the Company with respect to the use thereof as set forth in this Agreement. Any use by the Company of any HOF Entity Mark beyond the use expressly authorized in this Agreement requires the additional express written consent of the HOF Entities. Throughout the Term and thereafter: (i) all right, title and interest in and to the HOF Entity Marks and any derivatives thereof, including the goodwill associated therewith, shall remain vested in the HOF Entities (or the applicable HOF Entity), subject to the rights of the Company with respect to the use thereof as set forth in this Agreement, and (ii) all use of the HOF Entity Marks shall inure to the benefit of the HOF Entities (or the applicable HOF Entity). At the HOF Entities’ expense, the Company shall take such action as the HOF Entities may reasonably request to effect, perfect or confirm the HOF Entities’ (or the applicable HOF Entity’s) ownership of, and any other rights in, the HOF Entity Marks.
3.1.2 Company Marks . The HOF Entities accept and acknowledge that the Intellectual Property owned directly or indirectly by the Company, including but not limited to the Company Marks, are Intellectual Property and important assets of the Company. The HOF Entities will not use any trademark (other than the Co-Branded Village Marks) that is confusingly similar to the Company Marks (or any of them). As between the Company and the HOF Entities, the Company shall at all times be the sole and exclusive owner of all rights in and to the Company Marks, subject to the rights of the HOF Entities with respect to the use thereof as set forth in this Agreement. Any use by the HOF Entities of any Company Mark beyond the use expressly authorized in this Agreement requires the additional express written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed. Throughout the Term and thereafter: (i) all right, title and interest in and to the Company Marks and any derivatives thereof, including the goodwill associated therewith, shall remain vested in the Company, subject to the rights of the HOF Entities with respect to the use thereof as set forth in this Agreement, and (ii) all use of the Company Marks shall inure to the benefit of the Company. At the Company’s expense, the HOF Entities shall take such action as the Company may reasonably request to effect, perfect or confirm the Company’s ownership of, and any other rights in, the Company Marks.
3.1.3 Co-Branded Village Marks . The Parties acknowledge and agree that the Co-Branded Village Marks constitute composite trademarks, a constituent element of which includes wording that constitutes a discrete trademark that is owned by Company and wording and a design element that constitutes discrete trademarks that are owned by the HOF Entities (or either of them). The Parties acknowledge that nothing in this Agreement shall confer on the Company any ownership interest or other rights in or to any HOF Entity Mark, apart from any rights granted explicitly herein, nor shall this Agreement confer on the HOF Entities any ownership interest or other rights in or to any Company Mark, apart from any rights granted explicitly herein. Except as explicitly set forth herein, nothing in this Agreement shall be deemed to limit or restrict the right of the HOF Entities to use or license to any Person any HOF Entity Mark nor shall it be deemed to limit or restrict the right of the Company to use or license to any Person any Company Mark.
3.2 The HOF Entities’ License to the Company . Subject to the terms and conditions set forth in this Agreement, the HOF Entities hereby grant to the Company a limited, non-exclusive, non-sublicensable (except to Designated Subsidiaries or as otherwise provided herein), non-assignable (except to Designated Subsidiaries or as otherwise provided herein), royalty-free license to use the HOF Entity Marks, throughout the world, in any media now known or not yet existing, solely for purposes of promoting the Company’s sponsorship of the Village throughout the Term. For purposes of clarity, the foregoing license shall expressly include use of the Village Logos as part of the Co-Branded Village Marks. Upon notice by the HOF Entities to the Company of any use not in compliance with this Section 3.2 , the Company shall, as promptly as possible, withdraw any violating materials that use any HOF Entity Mark. Upon notice of any other objection by the HOF Entities to any use by the Company licensed under this Section 3.2 , the Company shall work with the HOF Entities in good faith to resolve such objection promptly and to the satisfaction of the HOF Entities, including, if appropriate and practicable, withdrawal of any materials that use the HOF Entity Marks. All use of the HOF Entity Marks anywhere by the Company shall inure solely to the benefit of the HOF Entities (or the applicable HOF Entity) and to no one else. All goodwill accrued by, and due to, the Company’s use of the HOF Entity Marks anywhere shall be the sole and exclusive property of the HOF Entities (or the applicable HOF Entity). The Company shall submit to the HOF Entities for prior written approval all materials bearing any HOF Entity Mark which the Company proposes to use, and the Company shall not use any such material without the prior written approval of the HOF Entities, which shall not be unreasonably withheld. If the HOF Entities fail to respond to the Company’s submission (or resubmission) within five (5) business days of submission by the Company, then the HOF Entities shall be deemed to have approved such submitted (or resubmitted) materials. In the event the HOF Entities disapprove any of the Company’s submissions (or resubmissions), the Company shall have the right to make modifications consistent with those specified by the HOF Entities and resubmit the relevant materials to the HOF Entities for approval. Following the HOF Entities’ initial approval of such use, the Company shall have the right to use the HOF Entity Marks without further permissions so long as a subsequent use does not materially deviate from a previously approved use. The Parties acknowledge and agree that the rights pursuant to this Section 3.2 are non-exclusive and similar rights may also be provided to other Persons. Subject to the terms and conditions set forth in this Agreement, the HOF Entities hereby grant to the Company a non-exclusive, non-sublicensable (except to Designated Subsidiaries or as otherwise provided herein), non-assignable (except to Designated Subsidiaries or as otherwise provided herein), royalty-free license to use the Advertising Material/Artwork solely to the extent necessary to perform its obligations under this Agreement or as contemplated by Section 1.5.2 .
3.3 Company License to the HOF Entities . Subject to the terms and conditions set forth in this Agreement, the Company hereby grants to the HOF Entities a non-exclusive, non-sublicensable (except to Affiliates of the HOF Entities or as otherwise provided herein), non-assignable (except to Affiliates of the HOF Entities or as otherwise provided herein), royalty-free license to use the Company Marks throughout the world, in any media now known or not yet existing, solely (i) in connection with the operation, management, advertisement, marketing and promotion of the Village and (ii) in connection with the manufacture, sale, advertisement, marketing and promotion of Co-Branded Village Merchandise, such licensed use in (ii) subject to the approval of the Company pursuant to Section 3.3.1 , not to be unreasonably withheld, conditioned or delayed. For purposes of clarity, the foregoing license shall expressly include use of the Company Marks as part of the Co-Branded Village Marks as well as in connection with the Village Domain Names and the Branded Social Media Accounts. Notwithstanding anything herein, the Company acknowledges and agrees that the Co-Branded Village Marks will be used in connection with events held at the Village, and may be used by third parties performing services in connection therewith, by third party sponsors of the Village and third party manufacturers, suppliers and licensees of Co-Branded Village Merchandise and that the HOF Entities are hereby authorized to grant to third parties the right to use the Co-Branded Village Marks in connection with (i) events held at the Village, (ii) performance of services in connection with events held at the Village, (iii) third party sponsorship of the Village and (iv) subject to Section 3.3.1 , third party manufacture, supply and license of the Co-Branded Village Merchandise, in each case subject to an agreement that incorporates the limitations which apply to use thereof by the HOF Entities. Upon notice by the Company to the HOF Entities of any use not in compliance with this Section 3.3 , the HOF Entities shall, as promptly as possible withdraw or make commercially reasonable efforts to cause to be withdrawn any violating materials that use the Company Marks. All use of the Company Marks anywhere by the HOF Entities shall inure solely to the benefit of the Company and to no one else. All goodwill accrued by, and due to, the HOF Entities’ use of the Company Marks anywhere shall be the sole and exclusive property of the Company.
3.3.1 Trademark Approval and Other IP Approvals . The HOF Entities shall submit to the Company for prior written approval all samples of materials that the HOF Entities receive for approval from third party manufacturers, suppliers and licensees of Co-Branded Village Merchandise. If the Company fails to respond to the HOF Entities’ submission (or resubmission) within five (5) business days of submission by the HOF Entities, then the Company shall be deemed to have approved such submitted (or resubmitted) materials. In the event the Company disapproves any of the HOF Entities’ submissions (or resubmissions), the HOF Entities shall have the right to make modifications consistent with those specified by the Company and resubmit the relevant materials to the Company for approval. Following the Company’s initial approval of such use or proposed Co-Branded Village Merchandise, the HOF Entities shall have the right to use the Co-Branded Village Marks in connection with Co-Branded Village Merchandise without further permissions so long as a subsequent use does not materially deviate from a previously approved use and such use is consistent with the “style guide” attached hereto as Exhibit L .
3.3.2 For the avoidance of doubt, and except as otherwise expressly set forth herein, (a) the Company shall not have the right to use any trademarks, copyright protected materials or other intellectual property owned by the HOF Entities (or either HOF Entity) without the prior written consent of the HOF Entities (or the applicable HOF Entity) and (b) neither HOF Entity shall have the right to use any trademarks, copyright protected materials or other intellectual property owned by the Company without the prior written consent of the Company.
3.4 Registration and Protection of the Co-Branded Village Marks .
3.4.1 Domestic Registration and Protection of Certain Marks . Throughout the Term, the Company shall, at its expense, use commercially reasonable efforts to obtain and maintain in its own name trademark registrations for the JOHNSON CONTROLS mark with the United States Patent and Trademark Office, for goods and services as may be determined by the Parties. Throughout the Term, an HOF Entity shall, at its expense, use commercially reasonable efforts to obtain and maintain in its own name trademark registrations for the Village Logo(s) and/or HALL OF FAME VILLAGE and/or PRO FOOTBALL HALL OF FAME VILLAGE marks with the United States Patent and Trademark Office, for goods and services as may be determined by the Parties. Each Party acknowledges and agrees that no other Party makes any warranty or representation on its ability to successfully register or maintain any registration hereunder. Each Party also agrees to provide reasonable assistance to the other Parties, at the requesting Party’s sole expense, in protecting, obtaining and/or maintaining applications for registration or registrations pursuant to this Section 3.4.1 .
3.4.2 International Registration and Protection of Certain Marks . Throughout the Term, the Company shall, at its expense, use commercially reasonable efforts to obtain and maintain in its own name trademark registrations for the JOHNSON CONTROLS mark for goods and services as may be determined by the Parties, in jurisdictions that may be agreed upon by the Parties. Throughout the Term, an HOF Entity shall, at its expense, use commercially reasonable efforts to obtain and maintain in its own name trademark registrations for the Village Logo(s) and/or HALL OF FAME VILLAGE and/or PRO FOOTBALL HALL OF FAME VILLAGE marks for goods and services as may be determined by the Parties, in jurisdictions that may be agreed upon by the Parties. Each Party acknowledges and agrees that no other Party makes any warranty or representation on its ability to successfully register or maintain any registration hereunder. Each Party also agrees to provide reasonable assistance to the other Parties, at the requesting Party’s sole expense, in protecting, obtaining and/or maintaining applications for registration or registrations pursuant to this Section 3.4.2 .
3.4.3 Restrictions on Registration of and Challenge to the Co-Branded Village Marks , Company Marks and HOF Entity Marks . The Parties agree that neither the HOF Entities (in the case of (b) and (c), with respect to the Company Marks) nor the Company (in the case of (b) and (c), with respect to the HOF Entity Marks) shall, during the Term or at any time thereafter, (a) make application for or aid or abet others to seek trademark registration for any Co-Branded Village Mark, (b) make application for or aid or abet others (except to aid the Company or the HOF Entities, as the case may be) to seek trademark registrations or recordings of trade names or company names in any state within the United States, in the United States Patent and Trademark Office or other United States governmental agencies or in any foreign country of, or claim, directly or indirectly, any right, title or interest in or to, any Company Mark or HOF Entity Mark, respectively, or variations thereof; or (c) directly or indirectly challenge or assist any Person in challenging, in any jurisdiction, or take any other action adverse to, (i) the Company’s or the HOF Entities’ (or the applicable HOF Entity’s) exclusive right, title and/or interest in and to the Company Marks or the HOF Entity Marks, respectively, or (ii) the validity or enforceability of the Company Marks or the HOF Entity Marks, respectively, or any applications or registrations therefor.
3.5 Policing and Enforcement of Co-Branded Village Marks , Company Marks and HOF Entity Marks . The Company shall have the exclusive right to control all aspects of policing and enforcement of the Company Marks. The HOF Entities shall have the exclusive right to control all aspects of policing and enforcement of the HOF Entity Marks (including the Village Logo). If any Party discovers any third-party uses of marks that potentially infringe, dilute or tarnish the Co-Branded Village Marks (or any of them), it shall promptly notify the other Parties of all known particulars, and the Parties shall proceed as follows:
3.5.1 The HOF Entities shall have the primary right with respect to enforcement of rights to the Co-Branded Village Marks, and any decision whether or not to take any enforcement action in any case shall, except as otherwise set forth in Section 3.5 , lie exclusively and at the sole discretion of the HOF Entities. The HOF Entities shall have the exclusive right to issue any cease and desist, demand or similar letters to any third party infringers or violators of the Co-Branded Village Marks, and (except as set forth in Section 3.5.3 ) the Company shall not issue any such letters or other threats or demands without the prior written consent of the HOF Entities.
3.5.2 In the event that the HOF Entities (or either of them) institutes a legal proceeding or similar action to enforce its (or their) rights in any of the Co-Branded Village Marks, it (or they) may do so in its (or their) own name, with the choice of counsel and control of the action, and with all expenses therefor, lying exclusively with the HOF Entities. To the extent that the Company is a necessary party in order for the HOF Entities to have standing to bring such legal proceedings, the Company agrees to join the legal proceedings as a party and to comply with any reasonable instructions provided by the HOF Entities in connection with the HOF Entities’ control of the action. Any economic or other benefit obtained in such action shall be retained by the HOF Entities. In the event of any such enforcement action by the HOF Entities (or either of them), the HOF Entities (or the applicable HOF Entity) shall confer with the Company regularly regarding the progress of the action, and the Company shall, at the HOF Entities’ expense, cooperate fully and in good faith in the conduct of such action, including by way of example, the furnishing of documents or witnesses. In addition, the Company may, at its own expense and upon execution of an appropriate joint defense agreement, participate in such litigation in a subordinate role, including attending depositions, court events and meetings (including settlement negotiations), assisting in the drafting of pleadings and briefs, and consulting with the HOF Entities (or the applicable HOF Entity) on strategy and tactics, provided that the Company will not be allowed to participate in any court event or meeting or in any other manner related to the Co-Branded Village Marks (or any of them) if such participation is not allowed under any applicable Law. The HOF Entities shall, prior to filing any lawsuits related to the Co-Branded Village Marks (or any of them), consider in good faith any input on strategy and tactics offered by the Company, but the Parties understand and agree that at all times ultimate control of any litigation not filed under Section 3.5.3 herein shall remain exclusively with the HOF Entities.
3.5.3 In the event that neither HOF Entity decides to institute enforcement actions (which may include cease and desist letters or other formal demands) against such an adverse use for a period of thirty (30) days after notification of such adverse use from the Company, the Company may initiate and prosecute enforcement actions (including cease and desist letters and legal proceedings) in its own name, with the choice of counsel and control of the action, and with all expenses therefor, lying exclusively with the Company (subject to the last sentence of this Section 3.5.3 ). To the extent that an HOF Entity is a necessary party in order for the Company to have standing to bring such legal proceedings, the HOF Entities agree to join the legal proceeding as a party and to comply with any reasonable instructions provided by the Company in connection with the Company’s control of the action. Any economic or other benefit obtained in such action shall be retained by the Company. In the event of any such enforcement action by the Company, the Company shall confer with the HOF Entities regularly regarding the progress of the action, and the HOF Entities shall, at the expense of the Company, cooperate fully and in good faith in the conduct of such action, including by way of example, the furnishing of documents or witnesses. In addition, the HOF Entities may, at their own expense and upon execution of an appropriate joint defense agreement, participate in such litigation in a subordinate role, including attending depositions, court events and meetings (including settlement negotiations), assisting in the drafting of pleadings and briefs, and consulting with the Company on strategy and tactics, provided that the HOF Entities will not be allowed to participate in any court event or meeting or in any other manner related to the Co-Branded Village Marks (or any of them) if such participation is not allowed under any applicable Law. The Company shall, prior to filing any lawsuits related to the Co-Branded Village Marks (or any of them), attend to and consider in good faith any input on strategy and tactics offered by the HOF Entities, but the Parties understand and agree that at all times ultimate control of any litigation filed by the Company under this Section 3.5.3 shall remain exclusively with the Company.
3.5.4 Nothing herein shall preclude the Parties from bringing any enforcement action jointly, if they so choose, all expenses and benefits thereof being shared equally (i.e., 50% by the Company, on the one hand, and 50% by the HOF Entities, on the other hand), or as otherwise agreed to, by the Parties. Notwithstanding anything in this Section 3.5 to the contrary, no Party shall settle any proceeding or litigation described in this Section 3.5 without the other Parties’ prior written consent. Each Party shall also ensure that each other Party is allowed full disclosure of all relevant settlement terms and conditions in any settlement agreement.
3.6 Domain Names; Social Media Accounts .
3.6.1 Domain Names . The Parties agree that the HOF Entities (or one of them) shall, at their expense, obtain, register and, at their sole discretion, maintain the domain names listed on Exhibit I (“ Village Domain Names ”). All Village Domain Names shall be registered by and in the name of the HOF Entities (or one of them) on behalf of and for the benefit of the Company and shall remain registered in such manner throughout the Term. Throughout the Term, the HOF Entities shall, as between the Parties, be exclusively responsible for the design, content, hosting, operation, maintenance and support of, and all transactions conducted via, any website at the Village Domain Names (each a “ Village Website ”), and shall pay all costs and expenses relating thereto. As between the Parties, except as otherwise set forth herein, the HOF Entities (or the appropriate HOF Entity) will own all rights in the content of any Village Website, other than any content provided by the Company, and the Company hereby provides the HOF Entities a non-exclusive, paid-up license to use all such content. The HOF Entities will operate, or cause to be operated, each Village Website, each of which shall feature the Company brand and include a Co-Branded Village Mark. The HOF Entities shall determine, in their reasonable discretion, the initial design, functionality, aesthetic and content of any Village Website and any material changes thereto, but will take into consideration the Company’s requests and preferences in this regard; provided that in the event the Company notifies the HOF Entities that it objects, in its reasonable discretion, to any design or content on a Village Website, then the HOF Entities shall promptly remove or modify, or cause to be removed or modified, such design or content and the Parties shall work in good faith on the design, functionality and aesthetics of the Village Website in an effort for mutually agreed upon quality.
3.6.2 Social Media Accounts . The Parties agree that the HOF Entities (or one of them) shall, at their expense, obtain, register and, at their sole discretion, maintain one or more social media and other online accounts and profiles for the purpose of promoting or marketing the Village or similar business purposes featuring or displaying the Co-Branded Village Marks or derivatives thereof (“ Branded Social Media Accounts ”). All Branded Social Media Accounts shall be registered in the name of the HOF Entities (or one of them) on behalf of and for the benefit of the Company and shall remain registered in such manner throughout the Term. Throughout the Term, the HOF Entities shall, as between the Parties, be exclusively responsible for the design, content, hosting, operation, maintenance and support of, and all transactions conducted via, any Branded Social Media Accounts and shall pay all costs and expenses relating thereto. As between the Parties, except as otherwise set forth herein, the HOF Entities (or the appropriate HOF Entity) will own all rights in the content of any Branded Social Media Accounts, other than any content provided by the Company, and the Company hereby provides the HOF Entities a non-exclusive, paid-up license to use all such content. The HOF Entities will operate, or cause to be operated, each Branded Social Media Account, which shall include a Co-Branded Village Mark. The HOF Entities shall determine, in their reasonable discretion, the initial design, functionality, aesthetic and content of any Branded Social Media Accounts and any material changes thereto, but will take into consideration the Company’s requests and preferences in this regard; provided that in the event the Company notifies the HOF Entities that it objects, in its reasonable discretion, to any design or content on a Branded Social Media Account, then the HOF Entities shall promptly remove or modify, or cause to be removed or modified, such design or content and the Parties shall work in good faith on the design, functionality and aesthetics of the Branded Social Media Accounts in an effort for mutually agreed upon quality. The Company agrees that it will not create, develop or maintain any Branded Social Media Accounts without the express prior authorization of the HOF Entities.
3.7 Quality Standards .
3.7.1 Style Guides . All use, promotions, marketing and advertising under, in connection with, and/or associated with the HOF Entity Marks by the Company or a permitted designee shall be conducted in accordance with the standards, rules and procedures set by the HOF Entities as set forth in the “style guide” attached hereto as Exhibit J . All use, promotions, marketing and advertising under, in connection with, and/or associated with the Company Marks by the HOF Entities or a permitted designee shall be conducted in accordance with the standards, rules and procedures set by the Company as set forth in the “style guide” attached hereto as Exhibit K . All use, promotions, marketing and advertising under, in connection with, and/or associated with the Co-Branded Village Marks by the Parties or a permitted designee shall be conducted in accordance with the standards, rules and procedures as set forth in the “style guide” attached hereto as Exhibit L . In the event that such “style guide” is not finalized as of the date hereof, the Parties shall work together in good faith to finalize such “style guide” (which shall be reasonably acceptable to each of the Parties) as promptly as reasonably practicable, which “style guide” shall be attached hereto as Exhibit L once it has been finalized and approved by the Parties.
3.7.2 Products . The HOF Entities agree that (a) all Co-Branded Village Merchandise shall be of good quality and free of defects in design, material and workmanship and shall be suitable for their intended purpose, (b) no injurious, poisonous, deleterious or toxic substance, material, paint or dye will be used in or on the Co-Branded Village Merchandise; and (c) the Co-Branded Village Merchandise will be manufactured, packaged, marketed, sold and distributed in compliance with all applicable Laws and the then-prevailing industry standards.
3.7.3 Advertising . Each Party agrees that it shall not use or authorize the use of any Company Mark, HOF Entity Mark or Co-Branded Village Mark in any manner that is contrary to public morals, deceptive, or defamatory, or that could reasonably be expected to reflect unfavorably on the good name, goodwill, reputation and/or image of any Party or the Village.
3.8 Restrictions on Use of “Gold Jacket ”. In the event that the Company or any of its Affiliates desires to use the term “Gold Jacket,” whether in connection with any advertising, marketing, media or promotional activities or otherwise, including without limitation in connection with any media, marketing or communications materials or collateral, any such use shall be subject to the prior written approval of PFHOF. The Parties acknowledge and agree that nothing in this Agreement shall be deemed a grant by either HOF Entity of any rights in or to the term “Gold Jacket.”
3.9 Trademark Notices . Each Party shall comply with the other Parties’ reasonable requests to include appropriate trademark legends, copyright notices and photography credits with respect to any materials provided by one Party to any other.
REPRESENTATIONS , WARRANTIES AND INDEMNIFICATION
4.1 Mutual Warranties . Each Party represents and warrants to the other Parties that (a) this Agreement has been duly authorized, executed and delivered by such Party, (b) such Party has the full power and authority and is free to enter into this Agreement and to perform its obligations hereunder, (c) such Party is in good standing under the laws of its state of formation, (d) this Agreement constitutes such Party’s valid and binding obligation, enforceable in accordance with its terms (except to the extent enforceability is limited by bankruptcy, reorganization and other similar laws affecting the rights of creditors generally and by general principles of equity), (e) except as otherwise set forth herein, no consent of a third party is necessary to execute, deliver and perform such Party’s obligations under this Agreement and (f) except as otherwise set forth herein, the making of this Agreement and the performance of such Party’s obligations hereunder do not violate any agreement, right or obligation existing between such Party and any other third party.
4.2 Company Warranties . The Company represents and warrants to the HOF Entities that (a) the Company owns all right, title and interest in and to the Company Marks, free and clear of any liens, claims or encumbrances, (b) the Company has the right and authority to license to the HOF Entities the rights to use any Company Marks, as expressly authorized in this Agreement, and the Company has not granted any rights in such Company Marks to any third party which conflict with the rights licensed hereunder, (c) the HOF Entities’ use of the Company Marks, as authorized herein, shall not require the payment by the HOF Entities (or either of them) of any fees, royalties or other payment of any kind, or the grant by the HOF Entities (or either of them) of any right or interest, to any third party, (d) no Company Mark infringes or will infringe the copyright, trademark or other rights of any third party, (e) there is no litigation, action or other proceeding pending or threatened against the Company or any of its assets, properties or rights that relates to this Agreement or would reasonably be expected to impair, restrict or prohibit the Company’s ability to perform its obligations hereunder and (f) except for IdeaQuest LLC (whose fees related to this Agreement shall be paid by the Company), the Company has not dealt with or engaged, directly or indirectly, any brokers, finders, consultants or like agents who will be entitled to any fees in connection with this Agreement.
4.3 The HOF Entity Warranties . The HOF Entities represent and warrant to the Company that (a) the HOF Entities (or an HOF Entity) owns all right, title and interest in and to the HOF Entity Marks free and clear of any liens, claims or encumbrances, (b) the HOF Entities (or an HOF Entity) has the right and authority to license to the Company the rights to use the HOF Entity Marks as expressly authorized in this Agreement, and neither HOF Entity has granted any rights in such HOF Entity Marks to any third party which conflict with the rights licensed hereunder, (c) the Company’s use of the HOF Entity Marks, as authorized herein, shall not require the payment by the Company of any fees, royalties or other payment of any kind, or the grant by the Company of any right or interest, to any third party, (d) no HOF Entity Mark infringes the copyright, trademark or other rights of any third party, (e) there is no litigation, action or other proceeding pending or threatened against the HOF Entities (or either of them) or any of their respective assets, properties or rights that relates to this Agreement or would reasonably be expected to impair, restrict or prohibit the HOF Entities’ ability to perform their respective obligations hereunder and (f) except for Premier Partnerships and TSAV (whose fees related to this Agreement shall be paid by the HOF Entities), neither HOF Entity has dealt with or engaged, directly or indirectly, any brokers, finders, consultants or like agents who will be entitled to any fees in connection with this Agreement.
4.4.1 The HOF Entities shall indemnify, defend and hold the Company (and the Company’s Affiliates and the officers, directors, shareholders, agents, employees and representatives of the Company or any of the Company’s Affiliates) harmless from and against all claims, liabilities, damages, demands, costs, fees, fines, penalties, other expenses, suits, proceedings, actions and causes of action of any and every kind and nature (including reasonable attorneys’ fees) incurred or to be incurred by the indemnified party (collectively, “ Claims ”) arising out of, in connection with or as a result of (a) a breach by the HOF Entities (or either of them) of their representations, warranties or covenants under this Agreement or (b) the use by the Company or any of the Designated Subsidiaries of the HOF Entity Marks as authorized herein (including with respect to the infringement or alleged infringement of any third party intellectual property). In no event shall the HOF Entities’ indemnification or hold harmless obligations in this Agreement be construed as requiring the HOF Entities (or either of them) to indemnify or hold harmless the Company or any other Person for any damages or injuries to the extent caused by the negligence or willful misconduct of the Company or such other Person or their respective officers, directors, shareholders, agents, employees or representatives.
4.4.2 The Company shall indemnify, defend and hold the HOF Entities (and their Affiliates and the officers, directors, managers, equityholders, agents, employees and representatives of the HOF Entities or any of their Affiliates) harmless from and against all Claims arising out of, in connection with or as a result of (a) a breach by the Company of its representations, warranties or covenants under this Agreement or (b) the use by the HOF Entities (or either of them) of the Company Marks, as authorized herein (including with respect to the infringement or alleged infringement of any third party intellectual property). In no event shall the Company’s indemnification or hold harmless obligations in this Agreement be construed as requiring the Company to indemnify or hold harmless the HOF Entities (or either of them) or any other Person for any damages or injuries to the extent caused by the negligence or willful misconduct of the HOF Entities (or either of them) or such other Person or their respective officers, directors, managers, equityholders, agents, employees or representatives.
4.4.3 Any Party asserting any claim to indemnification under this Section 4.4 (the Company, on the one hand, or the HOF Entities, on the other hand, as applicable, the “ Indemnified Party ”) shall promptly notify the other Party (the HOF Entities, on the one hand, or the Company, on the other hand, as applicable, the “ Indemnifying Party ”) of such claim, provided that any delay or failure to so notify the Indemnifying Party shall only relieve the Indemnifying Party of its indemnification obligations to the extent, if at all, that it is prejudiced by reason of such delay or failure. Except as otherwise set forth in ARTICLE 3 , if an Indemnified Party is entitled to indemnification hereunder because of a claim asserted by any claimant (other than an Indemnified Party) (“ Third Person ”), the Indemnifying Party shall have the right, upon written notice to the Indemnified Party within twenty (20) days of its receipt of the notice contemplated by the first sentence of this Section 4.4.3 and using counsel reasonably satisfactory to the Indemnified Party, to investigate, defend, contest or settle the claim alleged by such Third Person (a “ Third Person Claim ”). The Indemnified Party may thereafter participate in (but not control) the defense and/or settlement of any such Third Person Claim with its own counsel at its own expense, unless separate representation is necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party. In the event the Indemnifying Party fails to timely provide notice of its exercise of control of the defense and/or settlement of such Third Party Claim, the Indemnified Party shall have the right, at its option, to assume and control defense and/or settlement of the matter and to look to the Indemnifying Party for the full amount of the reasonable costs of defense and/or settlement thereof and the Indemnifying Party may participate in (but not control) the defense and/or settlement of such action, with its own counsel at its own expense. The Parties shall make available to each other all relevant information in their possession relating to any such Third Person Claim and shall cooperate in the defense thereof.
5.1 Throughout the Term, the HOF Entities shall maintain in full force and effect Commercial General Liability Insurance with commercially reasonable limits and terms and conditions, but in any event, not less than the greater of (x) One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in the aggregate in Commercial General Liability Insurance and (y) those limits and terms and conditions required by applicable Law, which insurance shall (a) contain broad form contractual liability endorsement, (b) insure against claims for bodily injury (including death), property damage, personal injury and advertising injury, (c) name as additional insureds each of the Persons listed on Exhibit M-1 hereto, (d) provide that it may not be canceled, terminated, reduced, materially changed, or allowed to expire without renewal unless at least thirty (30) days advance notice has been given to the Company, (e) be written by one or more insurers that have a policyholder’s rating of not less than A VIII in the most current edition of Best’s Rating Guide, and (f) if available, upon commercially reasonable terms, contain a waiver of the insurer’s rights of subrogation. Such liability insurance shall be primary to the Company’s insurance. The limits of such insurance shall not limit the liability of the Parties. Upon the date hereof and thereafter upon written request, the HOF Entities shall furnish the Company with a current certificate of insurance. Upon written request by the Company in the event of a dispute about the applicability of coverage to a specific loss or claim, the HOF Entities shall provide a copy of their insurance policy within 30 days of the Company’s request; provided, however, that the HOF Entities shall be permitted to redact proprietary business information from such copy before providing the same to the Company.
5.2 Throughout the Term, the Company shall maintain in full force and effect insurance policies with commercially reasonable limits and terms and conditions covering the Company’s obligations under this Agreement, but in any event, not less than such insurance coverage as is required by applicable Law, which insurance shall (a) contain broad form contractual liability endorsement, (b) insure against claims for bodily injury (including death), property damage, personal injury and advertising injury, (c) name as additional insureds each of the Persons listed on Exhibit M-2 hereto, (d) provide that it may not be canceled, terminated, reduced, materially changed, or allowed to expire without renewal unless at least thirty (30) days advance notice has been given to the HOF Entities, (e) be written by one or more insurers that have a policyholder’s rating of not less than A VIII in the most current edition of Best’s Rating Guide, and (f) if available, upon commercially reasonable terms, contain a waiver of the insurer’s rights of subrogation. Such liability insurance shall be excess to the HOF Entities’ insurance. The limits of such insurance shall not limit the liability of the Parties. Upon the date hereof and thereafter upon written request, the Company shall furnish the HOF Entities with a current certificate of insurance. Upon written request by the HOF Entities in the event of a dispute about the applicability of coverage to a specific loss or claim, the Company shall provide a copy of its insurance policy within 30 days of the HOF Entities’ request; provided, however, that the Company shall be permitted to redact proprietary business information from such copy before providing the same to the HOF Entities. Nothing in this Section 5.2 shall be deemed to reduce or eliminate any obligation of the Company with respect to insurance under the Design Assist Services Agreement.
TERM OF AGREEMENT
6.1 Term . Subject to Section 9.11 , the term of this Agreement shall commence on the date hereof and shall expire, without the need for notice or further action from either Party, on December 31, 2034 (the “ Expiration Date ”), unless terminated earlier in accordance with the terms of this Agreement or extended pursuant to Section 9.11 or otherwise as provided for in this Agreement, (the term of this Agreement, as the same shall expire or be terminated or extended in accordance with the provisions of this Agreement, the “Term”). Except as otherwise expressly provided herein, the rights granted to, and the obligations imposed on, any Party hereto under this Agreement shall be effective and enforceable during the Term only.