PRO-AM
Terms & Conditions
ARNOLD PALMER INVITATIONAL PRO-AM PARTICIPATION TERMS AND CONDITIONS
In consideration of the mutual promises contained herein, the parties agree as follows:
TOURNAMENT:
Pursuant to the Pro-Am Agreement entered into between API and Participant (“Pro-Am Agreement”), API shall allow Participant to participate in the Pro-Am Tournament set forth therein (“Tournament”). The Pro-Am Agreement describes the golf events in which Participant may engage, including any additional tickets, passes, invitations, and/or parking permits that shall be included as part of the Agreement. The parties acknowledge and agree that Participant shall be solely responsible for complying with any and all applicable rules and regulations related to the Tournament as well as the Tournament venue.
TERM:
This Agreement shall commence as of the Effective Date set forth on the applicable Pro-Am Agreement, upon full execution by the parties hereto, and unless terminated earlier in accordance with the provisions hereof, the “Term” of this Agreement shall begin on the date of the Tournament set forth in the Pro-Am Agreement and end on the last day of the Arnold Palmer Invitational Golf Tournament (“Invitational”) immediately following the Tournament, whichever happens last.
EVENT PARTICIPATION:
Participant hereby agrees that Participant’s participation shall be subject to and in accordance with these Terms and Conditions and all applicable federal, state and local laws, rules, regulations, codes, ordinances and guidelines, including without limitation all federal and state Occupational Safety and Health Regulations, as applicable, and API rules, regulations, and guidelines, as they may be amended from time to time, which include, but are not limited to, the signing of waivers and releases required by API or any sanctioning body.
API reserves the right to make any changes as it may deem reasonably appropriate to the Arnold Palmer Invitational Golf Tournament dates and times and the Term in connection with any such changes. API shall communicate any changes to the Invitational dates and times to Participant as soon as commercially practicable.
If the Tournament or any day(s) of the Invitational contemplated by this Agreement is postponed from the scheduled date(s), API’s sole liability, and Participant’s sole remedy, shall be to furnish at no additional charge Tournament access or Invitational passes for the date(s) on which the Tournament or Invitational is held.
Participant’s participation in the Tournament shall be subject to acceptance by the Pro-Am Chairman of the Tournament. Participant’s participation may be rejected or revoked at any time hereafter, either before or after the start of play in the Tournament without liability or obligation, and that, in such event, Participant shall not be eligible to play or continue to play therein, as the case may be, or to participate in any Tournament prizes. Participant agrees to wear spikeless golf shoes during the Tournament and further understands and agrees that if, in the judgment of the Tournament director or his designee, adverse weather conditions or other occurrence or conditions beyond the control of API or the PGA Tour renders commencement or continuance of the Tournament impractical then, in any such events, the Tournament may be delayed, postponed, shortened, or canceled, whichever may be deemed appropriate by the Tournament director or his/her designee; and, API shall have no obligation to refund any portion of the entry fee remitted herewith by reason of any such postponement, rescheduling or cancellation. The Tournament and Invitational are subject to annual sanctioning body approval. The date(s) and time(s) of any event is not certain, and event(s) may not even occur at the discretion of the sanctioning body. Any failure to conduct a sanctioned event, or the date change of an event(s), shall in no way be construed as a default or breach of this Agreement; however, in such case an event is not held, each party shall be relieved of any obligation to the other party created hereunder that occurs following the date of the official announcement by the relevant sanctioning body that such event is not to be conducted at the API’s facility.
Participant agrees that in consideration of Tournament and Invitational Participant (and any of Participant’s guests or assigns) hereby grant(s) and assign(s) to API, without limitation, my individual television, radio, motion picture, photographic, electronic, “Interactive Applications” (as defined below) and all other media rights with respect to my participation in the Tournament, Invitational, or any other golf event conducted in conjunction with the Tournament or Invitational (e.g. clinics, long-drive contests, galas), or any portion thereof. “Interactive Applications” shall mean the presentation in any medium in a way that permits the viewer to interact with or manipulate the presentation or access other relevant information during the presentation. Participant agrees to refrain from any action which will interfere with API’s ownership of the rights hereunder granted and assigned to API or with any authorized use thereof. Participant also agrees to abide by and be governed by the Tournament and Invitational Regulations currently in effect and by the Rules of Golf of the United States Golf Association, subject to any modifications thereof approved by API.
API is not responsible for loss of or damage to any property that Participant or Participant’s guests bring to the Tournament venue, Invitational venue, or any venue hosting an event related to the Tournament or Invitational.
NAMES, MARKS AND LOGOS:
Participant shall not use any trademark, logo or other indicia of API, the Bay Hill Club & Lodge, or any event or title sponsor thereof in any manner (including without limitation on or in connection with any apparel, souvenir items, or any other product or service), whether alone or with another mark, without the prior express written consent of the API, and, in the case where a third party also has interest in the indicia to be used, the written consent of such third party. Nothing herein grants and nothing herein shall be interpreted as granting Official Sponsor, Title Sponsor or other promotional or sponsorship status to Participant or Principal with respect to API or to any event at API’s facility.
NO ASSIGNMENT:
Participant may neither assign this Agreement or any rights or obligations hereunder, without the prior express written consent of API. Further, any change in control of Participant (whether by merger, asset sale, stock purchase or other assignment or operation at law) shall for the purposes of this Agreement be deemed an assignment of the rights and obligations contained herein and shall require the prior written approval of API, which shall not be unreasonably withheld.
PROHIBITION ON COMMERCIAL USE OF CONTENT FROM ELECTRONIC RECORDING DEVICES:
The use of content captured by any electronic, film or recording devices, either currently available or to be developed, by Participant and/or its guests and invitees for commercial purposes is strictly prohibited unless Participant has secured express written consent from API prior to any use of such device.
PAYMENT:
In consideration for the benefits granted Participant hereunder, Participant agrees to pay API the fees set forth in the Pro-Am Agreement. Applicable federal, state, or local sales or occupancy taxes associated with the rental in accordance with the payment schedule contained thereon are included in the amount referenced in the Pro-Am Agreement. Should Participant fail to make payments to API according to the Pro-Am Agreement, API may immediately declare a default of this Agreement, and revoke Participant’s privileges (without forfeiting any rights or remedies available therein). Fees which are due and payable but have not been received by the applicable due date shall be subject to a monthly late charge of 1.5% of the amount(s) owed, which Participant hereby agrees to pay. Further, Participant hereby agrees to pay any and all reasonable costs of collection incurred for delinquent payments, including court costs, and/or attorney’s fees.
INDEMNITY:
Participant agrees to be responsible for, to hold harmless, indemnify, defend and/or provide contribution for API, its parent, subsidiaries, limited liability and affiliated companies, and their respective shareholders, members, directors, officers, employees, agents, sponsors, (collectively, the “Indemnified Parties”) from any and all claims, including reasonable attorney’s fees and costs, of liability whether by reason of injury to or death of the person or of damage to the property of another or otherwise arising in connection with (i) Participant’s participation in the Tournament, or attendance at the Invitational, or any Invitational-related events; or (ii) the acts or omissions or violation of any law, code, ordinance or otherwise (including but not limited to the Americans with Disabilities Act and analogous state or local laws relating to nondiscrimination and/or physical and/or technological accessibility for guests with disabilities) of Participant, its respective agents, employees, contractors or subcontractors, or (iii) any default or breach of this Agreement by Participant. Participant’s obligation to defend hereunder shall not extend to claims which have been determined by a court of competent jurisdiction by final and non-appealable judgment or written settlement between the parties, to have resulted from the gross negligence or willful misconduct of API. The Indemnified Parties shall have the right to retain their own counsel, in which case those reasonable attorney’s fees shall be covered by Participant’s agreement to indemnify such parties for such fees set forth immediately above in this paragraph.
API agrees to hold harmless, indemnify and defend Participant, its parent, subsidiaries, limited liability and affiliated companies, and their respective shareholders, members, directors, officers, employees, agents, sponsors, (collectively, the “Participant’s Indemnified Parties”) from and against all claims, including attorneys’ fees and costs, of liability arising out of i) gross negligence or willful misconduct of API, its employees, agents, or assigns, ii) bodily injury, death or damage to tangible personal property due to API’s negligence.
The liability of API and Indemnified Parties under this agreement for any losses suffered by Participant will be limited to the License Fee paid by Participant to API hereunder or the limits of API’s insurance policy. In no event shall either party be liable to the other for any special, indirect, punitive, incidental, exemplary or consequential losses or damages, including lost profits, loss of business opportunity or other similar damages resulting from or arising out of this agreement, by statute, in tort or contract.
The provisions of this section shall survive the expiration or termination of this Agreement.
TERMINATION/REVOCATION OF LICENSE:
API may terminate this Agreement and revoke the rights and permissions granted under the Pro-Am Agreement immediately for cause, provided API provides written notice of such revocation to Participant, upon the following events: i) non-payment by the Participant of the License Fee or any amounts that may be due and payable pursuant to the Agreement, ii) breach of any of the terms of this Agreement or these Terms and Conditions by Participant including failure to fulfill any obligations herein, or iii) inappropriate, lewd or obscene behavior, conduct, or acts by the Participant or Participant’s invitees and guests. If API revokes the License because of subsection iii) then API shall refund the License Fee, less any amounts for damages caused by Participant or Participant’s invitees or guests. In all other instances of termination and revocation of the License, API shall be entitled to retain all amounts paid to API as liquidated damages and not as a penalty. API further reserves the right to pursue any additional relief as may be granted by a court of competent jurisdiction. Time is of the essence with respect to each and every provision of the Agreement.
In the event that API breaches any provision of this Agreement, Participant shall provide written notice of such breach to API. API shall have thirty days, or if within thirty days of the Invitational or applicable event commencement date, up until the event date, to cure such breach. If API is unable to cure the breach, then Participant shall have the option to terminate this Agreement immediately for cause and have the applicable License Fee refunded.
Upon the termination of this Agreement, this Agreement shall become null and void, except that either party may enforce any and all obligations of the other party arising out of acts or failures to act occurring prior to such termination.
NO WAIVER:
The failure by API to enforce any provision of this Agreement, or any rights with respect hereto, or the failure to exercise any right in the event of a default, shall in no way be considered a waiver of such provisions, rights, or elections, or in any way affect the validity of this Agreement. The failure of API to enforce any of such provisions will not affect it from later enforcing or exercising any rights it may have under the Agreement.
TITLE:
The Participant agrees that it does not and shall not claim at any time any right, title, interest, or estate of any kind or extent whatsoever in the premises or any portion thereof, by virtue of this Agreement or any occupancy or use hereunder.
DELIVERY OF WRITTEN NOTICE:
All notices given or required to be given under this Agreement shall be in writing and sent by personal delivery or registered mail to the parties at their respective addresses or other such address as may subsequently be given in writing by either party. Proper written notice shall not include notice by electronic media, such as “e-mail” or facsimile.
NO PARTNERSHIP OR JOINT VENTURE:
Nothing in this Agreement is intended or shall be deemed to constitute a partnership or joint venture between the parties, or to create any employee/employer or agency relationship between the parties. Neither party shall hold itself out as a partner, joint investor or agent of the other under this Agreement.
ENFORCEABILITY AND SEVERABILITY:
If any provision of this Agreement shall, in whole or in part, prove to be invalid or unenforceable for any reason, this Agreement shall remain in effect for all other provisions as if the invalid or unenforceable portion had not been part thereof.
PARTICIPANT/PRINCIPAL DISPUTES (if applicable):
If applicable and in the event of any dispute between Participant and Principal regarding this Agreement, API in its discretion, shall have the right to:
Terminate this Agreement as set forth herein; and/or
Deal directly with Principal, if any, to the exclusion of Participant, in which event Participant shall have no further rights pursuant to this Agreement and API shall have not liability to Participant hereunder; and/or
Deal directly with Participant, to the exclusion of Principal, if any, in which event Principal, shall have no further rights pursuant to this Agreement and API shall have no liability to Principal hereunder.
JURISDICTION:
The validity, interpretation and performance of this Agreement shall be governed by the laws of the State of Florida, without giving effect to the principles of comity or conflicts of laws thereof.
WAIVER OF JURY TRIAL:
API AND PARTICIPANT, TO THE EXTENT THEY MAY LEGALLY DO SO, HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, CAUSE OF ACTION OR PROCEEDING ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT, OR IN ANY WAY CONNECTED WITH, OR RELATED TO, OR INCIDENTAL TO, THE DEALINGS OF THE PARTIES HERETO WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND IRRESPECTIVE OF WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE. TO THE EXTENT THEY MAY LEGALLY DO SO, API AND PARTICIPANT HEREBY AGREE THAT ANY SUCH CLAIM, DEMAND, ACTION, CAUSE OF ACTION OR PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE OTHER PARTY OR PARTIES HERETO TO WAIVER OF ITS OR THEIR RIGHT TO TRIAL BY JURY.
FORCE MAJEURE:
Neither Party will be liable for any failure or delay in performing an obligation under this Agreement that results in the delay or cancellation of the event and is due to any of the following causes, to the extent beyond its reasonable control: acts of God, accident, riots, war, terrorist act, epidemic, pandemic (including the COVID-19 pandemic), quarantine, civil commotion, breakdown of communication facilities, breakdown of web host, breakdown of internet service provider, natural catastrophes, governmental acts or omissions, changes in laws or regulations, national strikes, fire, explosion, or generalized lack of availability of raw materials or energy (“Force Majeure Events”). For the avoidance of doubt, Force Majeure Events shall not include a party’s financial inability to perform its obligations hereunder. In the event of such failure, API or Participant, as the case may be, shall use its best efforts to cure such cause and to resume performance.
ATTORNEYS’ FEES AND COSTS:
In the event that it is necessary for an action (at law, in equity, or arbitration) to establish, obtain or enforce any right by either of the parties under this Agreement, then the prevailing party in such action or suit (after all appeal periods have expired) shall be entitled to reasonable attorneys’ fees, costs and expenses, including fees, costs and expenses for any such appeals).
AUTHORIZED AGENT (if applicable):
If applicable and to the extent Participant is entering into this Agreement on behalf of a Principal, Participant represents and warrants that it is the authorized agent and representative of Principal and that it has all requisite authority to enter, and hereby does enter, into this Agreement and thereby to be bound by this Agreement and assume all obligations hereunder both individually and on behalf of Principal.
RESERVATION OF RIGHTS:
API reserves all rights not expressly granted to Participant in this Agreement.
NON-EXCLUSIVITY:
This Agreement does not grant Participant an exclusive position at the Tournament. Participant specifically acknowledges that API may also enter into separate agreements with other companies, including companies competitive with Participant.
COUNTERPARTS:
This Agreement may be executed in several counterparts that together shall constitute but one and the same Agreement.
CONFIDENTIALITY:
The financial terms and conditions of this Agreement and the substance of this Agreement are and shall remain confidential, and shall be communicated and available only to such employees or agents of either party with a legitimate business need to know such confidential terms and conditions. Each party shall be responsible for any breach of this Section by such party’s employees, related companies and/or agents and each such party shall cooperate with the other party to remedy the breach.
NO CONSTRUCTION AGAINST DRAFTING PARTY:
Each party to this Agreement expressly recognizes that this Agreement results from a negotiation process in which each party was represented by counsel and contributed to the drafting of this Agreement. Given this fact, no legal or other presumptions against the party drafting this Agreement concerning its construction, interpretation or otherwise accrue to the benefit of any party to this Agreement, and each party expressly waives the right to assert such a presumption in any proceedings or disputes connected with, arising out of, or involving this Agreement.
DEFAULT:
The parties agree, without prejudice to any other rights of API, that Participant is in default in the event of any and/or all of the following: (i) Participant fails to make any and all payments required under this Agreement on or before 15 days after receipt of written notice that a payment has not been made; (ii) Participant fails to observe or perform any and/or all material obligations required by this Agreement on or before 15 days after receipt of written notice that Participant has failed to perform an obligation; (iii) Participant files bankruptcy and/or is adjudicated to be bankrupt whether under federal, state and/or foreign laws; (iv) Participant enters into and or becomes the subject of any reorganization proceeding, liquidation proceeding, receivership and/or similar proceeding whether under federal, state, and/or any foreign laws; and/or (v) Participant, in the reasonable determination of API (it is not necessary that any of the following actually occur but rather only that API has a reasonable belief that the one or more of the following has occurred), becomes insolvent, fails to pay its debts when they come due, and/or does not have the ability to pay its debts when they come due. In the event of a default, API may terminate this Agreement, without prejudice to the rights and remedies of API, by giving written notice of termination to Participant as herein. The rights set forth in the preceding paragraph are in addition to all other rights and remedies provided under this Agreement and/or by applicable law.
ENTIRETY:
This document, including the cover page, contains the entire Agreement of the parties relating to the subject matter contained herein. There are no promises, terms, conditions, rights or obligations other than those contained herein. This Agreement shall supersede all previous communications, representations, or agreement, whether verbal or written, between the parties hereto. No modification, alternation, or amendment to this Agreement shall be effective unless in writing and signed by both parties. This Agreement shall become a binding obligation on both parties hereto only upon full execution by the parties.