1 TEAM RELEASE AND WAIVER
EXHIBIT A STANDARD TERMS AND CONDITIONS
Team acknowledges and agrees that Mars City Design LLC (MCT) and the Competition sponsors, administrators, and prize fulfillment companies (including, without limitation, incubators and VCs), and each of the foregoing entities’ officers, directors, employees, sponsors, workmen, judges, and their employers, vendors, servants, independent contractors, representatives and invitees, and agents (collectively, the “Released Parties”) will not be liable for any losses, liabilities, damages (including, without limitation, personal injury or property damage), or claims, or any related costs and expenses (including, without limitation, legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest, and penalties) (“Losses”) arising from, related to, or connected in any way with any loss or personal injury, including, without limitation, death, sustained by Team, any Team Member, any partner or affiliate of Team, any Team sponsor, or any person or entity claiming on behalf of Team, arising from, relating to, or connected in any way with Team’s participation in the Competition, even in the event of negligence or fault of any of the Released Parties, whether such negligence is present at the execution of this Agreement or arising in the future. Team assumes full responsibility for any Losses which may occur to Team, any Team Member, any partner or affiliate of Team, any Team sponsor, or any person or entity claiming on behalf of Team, arising from, relating to, or connected in any way with Team’s participation in the Competition. Team hereby releases and waives all of the Released Parties from any claims alleging Losses, whether existing now or arising in the future that in any way relate to the Released Parties’ execution or duties under this Agreement.
1.2 WAIVER OF CALIFORNIA CIVIL CODE SECTION 1542
The releases in this Agreement are intended to be, and are, full, complete, and general releases with respect to all claims, demands, causes of action, defenses, and other matters described above, or any other theory, cause of action, occurrence, matter or thing which might give rise to liability, related to or arising out of any and all acts, omissions, or events occurring prior to the date of this Agreement.
Team and all Team Members acknowledge that he, she, or it is familiar with Section 1542 of the California Civil Code, which reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
With respect to those claims being released hereunder, each of the parties acknowledges that he, she, or it is releasing unknown claims and waives all rights he, she, or it has or may have under California Civil Code Section 1542 or any other statute or common law principle of similar effect. Each of the parties acknowledges that he, she, or it may hereafter discover claims or facts in addition to or different from those now known or believed to exist with respect to the subject matter of the claims being released pursuant hereto, and which, if known or suspected at the time of entering into the Agreement, may have materially affected this Agreement. Nevertheless, each of the parties hereby waives any right, claim(s), or cause of action that might arise as a result of such different or additional claim(s) or facts. Each of the parties acknowledges and understands the significance and consequence of such release and such specific waiver of California Civil Code Section 1542.
1.3 NO LIABILITY
Team agrees that MCT and its affiliates and Competition sponsors, administrators, and prize fulfillment companies, (including, without limitation, incubators and VCs) will not be held liable for any Losses that accrue or may accrue to Team, any Team Member, any partner or affiliate of Team, any Team sponsor, or any person or entity claiming on behalf of Team, arising in any way from Team’s participation in the Competition.
2 INDIVIDUAL TEAM MEMBER RELEASE AND WAIVER
“Team Member” means an individual, third party consultant, or contractor employed by or otherwise engaged by Team as a material participant in Team’s effort to win the Competition. For purposes of this Agreement, the term “material participant” means any individual or entity who makes any contribution of significance to Team’s efforts to win the Competition, as determined by MCT in its sole discretion.
Team Members include without limitation: (i) contributors of any pre-existing or developed Intellectual Property to Team; (ii) individuals or entities involved in the design, development, testing, or launch of the Craft; and (iii) any individual having a management, supervisory, or other leadership role within Team.
Team Members do not include: (i) investors, donors, and sponsors who make only financial contributions to Team, (ii) suppliers of off-the-shelf parts and hardware, or (iii) customers of a Team.
Except as provided herein, Team Members must be over the age of majority in their jurisdiction of residence in order to be eligible to participate. MCT may, in its sole discretion, disqualify, or suspend Team if any Team Member is below the age of majority in his/her jurisdiction of residence, unless he or she supplies consent from a parent or legal guardian.
2.2 TEAM MEMBER WAIVER
Team shall ensure that each Team Member will consider this EXHIBIT A as the individual form known as the “Release, Waiver, and Confidentiality Agreement” to be received, reviewed, and signed. Team agrees that prior to an individual becoming a Team Member, Team shall ensure that each such individual executes a Release, Waiver, and Confidentiality Agreement. Team agrees that prior to third-party consultants or other contractors contributing to Team’s participation in the Competition, such consultants or contractors must register as a Team Member pursuant to this Section 2 (Individual Team Member Release and Waiver) of this Exhibit A (Standard Terms and Conditions) prior to commencing participation; provided, however, that such consultants/contractors do not have to do so if they would not be deemed Team Members pursuant to Section 2.1 (Definition) above.
If a consultant or contractor is an individual, then such individual must comply with all requirements imposed on Team Members. If the consultant or contractor is a legal entity, then such entity (but not individual employees thereof) must comply with all requirements imposed on Team Members. Unless specifically requested by MCT, individual employees of corporate entities who are Team Members do not have to individually execute Release, Waiver, and Confidentiality Agreements. Team shall provide MCT with a copy of the Release, Waiver, and Confidentiality Agreement duly and voluntarily signed by such Team Member. Team shall use reasonable efforts to obtain each such signature in ink, but where doing so is impractical due to circumstances (e.g., open teams consisting of more than one hundred (100) Team Members), such signatures may be obtained through “click- through” or similar, legally enforceable means of assent.
3 REPRESENTATIONS AND WARRANTIES
3.1 TEAM REPRESENTATIONS AND WARRANTIES
Team hereby represents and warrants that: (a) it is free to enter into this Agreement without the consent of any third party and has the capability to fully perform its obligations under this Agreement according to its terms and that all Team Members have executed all necessary documents, including, without limitation, the Release, Waiver, and Confidentiality Agreement; (b) it is an Eligible Entity; (c) it is not a party to (and it agrees that it shall not become a party to) any agreement, obligation, or understanding that is inconsistent with this Agreement or might limit or impair MCT’s rights or Team’s obligations under this Agreement; (d) there is no suit, proceeding, or any other claim pending or threatened against Team, nor does any circumstance exist, to its knowledge, which may be the basis of any such suit, proceeding, or other claim, that could limit or impair Team’s performance of its obligations pursuant to this Agreement; (e) it will not infringe, violate, or interfere with the Intellectual Property, contract or other right of any third party in the course of performance of this Agreement or cause MCT or its affiliates to do any of the same; (f) it will comply with all Laws in performing under this Agreement; and (g) it will follow principles of good sportsmanship in participating in the Competition, including, without limitation, by competing in an ethical manner, not defaming or disparaging any other Team or a third party, not attempting to sabotage or disrupt the activities of any Team, not breaching any binding agreement that Team may have with any other Team, and not “poaching” the Members or customers of any other Team in any unethical or illegal manner. Subsection (g) will not be construed to limit the rights of Teams to compete fairly and ethically or the rights of Team Members to switch Teams voluntarily and in good faith.
3.2 Mars City Design LLC REPRESENTATIONS
MCT hereby represents that: (i) it has collaborated with partners in order for MCT to create the facilities and connections for the winning Team(s), subject to Team’s compliance with the terms of this Agreement and (ii) it will use reasonable efforts to judge all Teams in a non-preferential and equal manner.
4 DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS
4.1 DISCLAIMER OF WARRANTIES
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, MCT MAKES No WARRANTY, EXPRESS OR IMPLIED, REGARDING THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, RESULTS OF THE COMPETITION, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THE RELEASED PARTIES EXPRESSLY DISCLAIM ALL SUCH WARRANTIES. WITHOUT LIMITATION, MCT MAKES NO EXPRESS WARRANTIES OF ANY KIND AS TO THE DESIGN FEASIBILITY, CONSTRUCTABILITY, SAFETY, LICENSING, LAUNCH OR COMMERCIAL PROSPECTS ASSOCIATED WITH THE OPERATING OR COMMERCIAL SALE OF TEAM’S CRAFT AND RELATED HARDWARE. STATEMENTS MADE BY MCT OR THE JUDGING PANEL DO NOT CONSTITUTE WARRANTIES.
4.2 EXCLUSION OF DAMAGES
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, OR IN THESE STANDARD TERMS AND CONDITIONS, WHETHER AS A RESULT OF ANY TORT CLAIMS (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), BREACH OF CONTRACT, WARRANTY, STRICT LIABILITY OR PRODUCT LIABILITY, OR OTHERWISE, THE RELEASED PARTIES (INCLUDING, WITHOUT LIMITATION, INCUBATORS AND VCS, PARTNERS) WILL NOT BE LIABLE TO TEAM OR ANY OTHER PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES OF ANY KIND, WHETHER OR NOT SUCH A PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4.3 LIMITATION OF LIABILITY
PARTICIPANTS AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS MCT FOR ANYTHING ARISING OUT OF THIS AGREEMENT.
5 INTELLECTUAL PROPERTY INFRINGEMENT
5.1 MCT INTELLECTUAL PROPERTY AND SPONSORS MARKS
Team shall immediately inform MCT of any third-party allegations, claims, or demands (actual or threatened) against Team, any of its affiliates, or any Team Members for infringement of any Intellectual Property rights by reason of the use or the grant of use of the MCT title logo, the Competition logo, or the Logo Cluster pursuant to this Agreement (a “Team Infringement Claim”), and will provide all particulars reasonably requested by MCT. The parties acknowledge and agree that the person or entity that is the owner of the applicable Marks will be responsible for defending any alleged Team Infringement Claim arising from the use of such Mark (i.e., the person or entity that owns the Marks that are alleged to infringe a third-party Intellectual Property right will be responsible for defending the Claim).
To the extent Team is required to defend a Team Infringement Claim under this Section 5 (Intellectual Property Infringement) of this Exhibit A (Standard Terms and Conditions), MCT, at its option, may assist in its defense in any such action to the extent MCT reasonably believes such assistance is necessary. Team acknowledges and agrees that MCT may also permit Competition and MCT sponsors, including, MCT partners, to assist MCT in its defense of a Team Infringement Claim. To the extent the conduct of Team gave rise to such third-party allegations, claims, or demands (actual or threatened), Team will bear the costs and expenses, including, without limitation, attorneys fees and disbursements, of defending such action in proportion to the degree of causation of the third-party allegations, claims, or demands (actual or threatened) attributable to Team’s conduct. In no event will Team have the right, without the prior written consent of MCT, to (i) acknowledge the validity of any claim of ownership by a third-party of any Intellectual Property rights in the applicable Mark, (ii) obtain or seek a license from such third-party, or (iii) take any action that might impair the ability of the Mark owner to contest the claim of such third-party.
Team will promptly inform MCT of any unauthorized use by any person or entity of a trademark, service mark, or design similar to the Competition sponsors’ Marks, MCT’s Marks, the Competition logo, or Competition Media of which Team becomes aware. MCT will have the right to determine whether or not any action (legal or otherwise) will be taken on account of any infringement or potential infringement of MCT’s Marks, the Competition logo, or the Logo Cluster, and Team may join in such action at its own expense if MCT determines any action is appropriate. If MCT determines that no action is appropriate, Team may, at its sole cost and expense, initiate an action (legal or otherwise). Notwithstanding the foregoing, to the extent the wrongful conduct of a party gave rise to such infringement or potential infringement, such party will bear the costs and expenses, including, without limitation, attorneys’ fees and disbursements, of joining in such action in proportion to the degree of causation of the infringement or potential infringement attributable to such party’s wrongful conduct. The parties will share any award of damages net of costs, including, without limitation, attorneys’ fees and disbursements, as a result of such actions, in proportion to their respective damages suffered by such infringement.
The use of logo: The copyrighted logo of MCT should be integrated in Team’s each rendering images and pages. Team is allowed to use ONLY the logo provided by MCT, after MCT’s approval. MCT has the right to ask candidates to edit the logo integrated in the presentation.
5.2 MCT INTELLECTUAL PROPERTY, RELEASE AND COLLABORATION
Team’s submission signifies that Team gives the authorization and the exclusive right to MCT, to publish, and use your design and all content related to Team’s design, for further research and development of technology and design, both for educational and commercial purpose of MCT & Partners.
6 RELEASE OF LIABILITY AND INDEMNIFICATION
Team agrees to indemnify, defend, release from liability, and hold harmless the Released Parties from and against any and all Losses arising from, relating to, or connected with Team, or any Team Member, in the Competition, or any activities incidental thereto (including, without limitation: (i) any third-party claims, including, without limitation, any claims by members of the Judging Panel, for personal bodily injury and/or personal property damage, arising from the participation of the Judging Panel, Team, or any Team Member, in the Competition, or any activities incidental thereto; (ii) claims based on Team’s alleged breach of this Agreement; (iii) failure of Team to procure an effective Release, Waiver, and Confidentiality Agreement; or (iv) actual or alleged agreements or arrangements with other Teams). Team acknowledges and agrees that the obligation to indemnify and hold harmless as set forth in this Section 6 (Release of Liability and Indemnification) of this Exhibit A (Standard Terms and Conditions) will survive the expiration, lapse, or termination of this Agreement.
Any party seeking indemnification under this Section 6 (Release of Liability and Indemnification) of this Exhibit A (Standard Terms and Conditions) (the “Indemnified Party”) will promptly notify Team; provided that the failure to give such notice will not affect the right of the Indemnified Party to indemnification except to the extent the failure to give notice directly prejudices Team’s ability to contest the claim.
If any claim, demand or liability is asserted by any third party against any Indemnified Party (a “Third Party Claim”), the Indemnified Party will, upon notice of the claim or demand, promptly notify Team, and subject to the terms herein, Team will defend and/or settle any actions or proceedings brought against the Indemnified Party in respect of matters embraced by the indemnity with counsel reasonably satisfactory to the Indemnified Party. If Team does not promptly defend or settle any such claims, the Indemnified Party will have the right to control any defense or settlement at the expense of Team. No claim will be settled or compromised without the prior written consent of each party to be affected, with such consent not being unreasonably withheld or delayed. The Indemnified Party will at all times also have the right to participate fully in the defense at its own expense unless there is, under Laws, a conflict on any significant issue between Team and the Indemnified Party, in which case the fees and expenses of one counsel in respect of such claim incurred by the Indemnified Party will be paid by Team. In connection with the defense of any claim, each party will make available to the party controlling such defense any books, records or other documents within its control that are reasonably requested in the course of such defense.
7 TERM AND TERMINATION
This Agreement commences as of the commencement of Team’s participation in the Competition (“Effective Date”), and unless terminated earlier pursuant to this Agreement, continues throughout the duration of Competition and, except as provided in Section 1.3 (Term of Competition) of the Agreement, will automatically expire on the one (1) year anniversary of the final day of the Competition (the “Term”).
7.2.1 BREACH OF AGREEMENT If Team:
- commits a breach of this Agreement, which breach is capable of being cured within thirty (30) days after notice of breach from MCT to Team, but is not cured in such thirty (30) day period;
- commits a breach of this Agreement that is not capable of being cured within thirty (30) days but is capable of being cured within sixty (60) days and Team fails to (i) proceed promptly and diligently to correct the breach, (ii) develop within thirty (30) days following written notice of breach from MCT a complete plan shared with MCT for curing the breach, and (iii) cure the breach within sixty (60) days of notice thereof; or
- commits a breach of this Agreement that is not subject to cure with due diligence within sixty (60) days of written notice thereof, then MCT may, at its sole discretion and upon written notice to Team, disqualify Team from the Competition and terminate this Agreement, in whole or in part, as of the Termination Date specified in the notice, without cost or penalty and without payment of any termination charges.
7.2.2 OTHER GROUNDS FOR DISQUALIFICATION
Should the Judging Panel or MCT determine that Team falls within the requirements of any grounds for disqualification, whether stated in this Agreement, imposed later by the Judging Panel, or provided elsewhere, the Judging Panel or MCT may disqualify Team from the Competition and terminate this Agreement in whole immediately upon written notice to Team. Further, in the event that Team or any Team Members engage in conduct that is determined by MCT to be immoral, offensive, obscene, lewd, lascivious, or inappropriate in a manner that is reasonably determined by MCT to reflect poorly on MCT and/or any of the Competition prize fulfillment entities, then MCT may suspend or disqualify Team and/or terminate this Agreement in whole immediately upon written notice to Team. MCT acknowledges that it does not intend to use its rights under the preceding sentence to disqualify Team for incidental, mild, off-color humor and other immaterial incidents. Disqualification may occur at any time up to and including the Termination Date or during the Awards Ceremony Interval.
7.2.3 WITHDRAWAL FROM COMPETITION Team may withdraw from the Competition by written notice to MCT.
7.3 CANCELLATION OF THE COMPETITION
Team agrees that MCT may, in its sole discretion, (a) cancel the Competition at any time and immediately terminate this Agreement but only if the Agreement between MCT and partners terminates or expires or if partners repudiates its obligation to fulfill any of part of the Purse, and/or (b) adjust the Competition schedule, including, without limitation, payment schedule and Awards Ceremony. Should MCT elect to cancel the Competition, terminate this Agreement and/or adjust the Competition schedule pursuant to this Agreement, MCT will notify Team.
7.4 EFFECT OF TERMINATION
If this Agreement is terminated pursuant to this Section 7 (Term and Termination) of this Exhibit A (Standard Terms and Conditions), Team acknowledges and agrees that Team will be ineligible to receive any portion of the Purse.
Any dispute arising from this contract must be resolved by both parties in arbitration in Los Angeles, California. Both parties agree they have had the ability to consult legal advice from a licensed professional prior to entering this agreement and that if any conflict arises as regards which party drafted the agreement, this contract shall be treated as if both equally constructed it as a work product by both parties, not giving preference to either party in its understanding, or to the advantage of MCT over all other stakeholders.