INDEMNIFICATION AND CONFIDENTIALITY AGREEMENT
This Indemnification and Confidentiality Agreement (the “Agreement”) is made and entered into as of the ____day of ____________, 2020 (the “Effective Date”) by, and between, NINJA SPORT, INC d/b/a WORLD NINJA SPORT, with its principal place of business located at 145 Beverly Rd., Babylon, NY 11702 (hereinafter “WNS”) and _____________________, with its principal place of business located at ___________________________ (hereinafter “Facility”) (referred to individually as a “Party” and collectively as the “Parties”).
WHEREAS, WNS has developed a Ninja and obstacle course coach certification program (hereinafter “The Spotted Course”, or “Spotted”), and designs and builds obstacle courses and related equipment; and
WHEREAS, Facility owns, manages, and/or controls an entertainment, camp, gym, health, or center located at ______________________ (the ”Venue”), which WNS has, under separate agreement, contracted to build and/or install obstacle course equipment, and/or leased or licensed from Facility to host its Spotted training course to be conducted on __________________________; and
NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1. Hold Harmless and Indemnification
To the fullest extent permitted by law, Facility shall, and does hereby agree to, indemnify, defend (with counsel reasonably acceptable to WNS), and hold harmless WNS, its shareholders, officers, directors, members, managers, partners, employees, contractors, agents, representatives, affiliates, related companies, successors and assigns (the ”WNS Indemnified Parties”), from, and against, any claims, demands, causes of action, suits, liabilities, losses, costs, damages, and expenses (including, without limitation, attorneys’, investigators’, and experts’ fees and courts costs) (collectively, the ”Claims”) for any personal or bodily injury, illness, death, property damage, or other tort, arising out of, or relating to, any contracted obstacle course equipment and/or installation, the use of any equipment built and/or installed by WNS by any parties that may have access to the equipment at Venue, and the use of the Venue by WNS for any Spotted or similar training course or certification program, unless such Claims are solely due to the negligence or willful misconduct of the WNS Indemnified Parties. Additionally, Facility shall, and does hereby agree to, waive any and all rights of subrogation, reimbursement, indemnity, exoneration, and contribution against WNS, unless the Claims are due to the gross negligence or willful misconduct of the WNS Indemnified Parties.
Facility shall, and does hereby agree to, maintain general liability insurance, which insures against personal and bodily injury, property damage, and other loss, arising out of, or relating to, the use of the Venue by WNS for any Spotted or similar training course or certification program. The insurance required hereunder shall have a single limit liability of not less than $1 million, and general aggregate liability of not less than $2 million, and WNS shall be named as an additional insured of said insuarnce policy at no cost or expense to WNS.
3. Health and Safety
Facility shall, and does hereby agree to, maintain Venue in good order, condition, and repair, and shall regularly inspect, test, repair, and clean the machinery and equipment therein. Additionally, Faciltiy shall, and does hereby agree to, maintain on the premises, in good order, condition, and repair, emergency first aid equipment, including, without limitation, CRP equipment and an automated external defibrillator (AED).
4. Relationship of the Parties
The Parties acknowledge, represent, and warrant that this Agreement shall not create any employer-employee, partnership, joint venture, agency, or other relationship as between them, and further, that they shall not be authorized to make any representations, contracts, or commitments for each other, unless otherwise expressly provided in a writing duly executed by the Parties.
5. Confidential Information
Facility acknowledges, represents, and warrants that it shall not, at any time, except as expressly authorized in writing by WNS, (a) use or permit the use of Confidential Information (as defined below) in any manner or for any purpose; (b) disclose, publish, or permit others to disclose or publish any Confidential Information to any third party without first obtaining WNS’s express written consent on a case-by-case basis; or (c) remove or copy any documents containing any Confidential Information from WNS without WNS’s prior written consent. Facility also acknowledges and agrees that it shall limit access to such Confidential Information to only its personnel who need to know such information in connection with WNS’s use of the Venue.
“Confidential Information” means all information related to WNS’s business and its actual or anticipated research and development, or work product, including without limitation (i) curricula, certification information, trade secrets, inventions, ideas, processes, computer source and object code, formulae, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs, and techniques; (ii) information regarding products or plans for research and development, marketing and business plans, products, product plans, services, service plans, outlines, materials, diagrams, budgets, financial statements, contracts, prices, suppliers, and customers; (iii) information regarding the skills and compensation of WNS’s employees, contractors, and any other service providers; (iv) information designated by WNS, either in writing or orally, as Confidential Information; (v) the existence of any business discussions, negotiations, or agreements between WNS and any third party; and (vi) all such information related to any third party that is disclosed to WNS or to Facility during the course of WNS’s business. Notwithstanding the foregoing, it is understood and agreed that Facility is free to use information that is generally known in the trade or industry, was known to Facility prior to WNS’s disclosure (provided it was not obtained by Facility under, or subject to, an obligation of confidentiality or non-use), or which becomes publicly available through no fault of Facilty.
6. Force Majeure
World Ninja Sport will be excused for any failure or delay in performing any of its obligations under this Agreement to the extent such failure or delay is caused by any illness, injury, act of God, any accident, explosion, fire, act of war or terrorism, storm, earthquake, flood, pandemic, or any other circumstance or event outside of the control of World Ninja Sport and/or its employees.
This Agreement constitutes the entire agreement of the Parties concerning the subject matter hereof and supersedes all prior understandings and writings on such subject. This Agreement may not be modified or amended other than in a writing executed by duly authorized representatives of both Parties.
The validity, interpretation, construction, and performance of this Agreement shall be governed by the laws of the State of New York, without giving effect to the principles of conflict of laws. The Parties irrevocably consent to the exclusive jurisdiction and venue of any state and federal court located within New York County, State of New York, and courts with appellate jurisdiction therefrom, in connection with any dispute arising from, or related to, this Agreement.
No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s), or of the same provision on another occasion.
Should any provision of this Agreement be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, such provision may be modified by such court in compliance with the law giving effect to the intent of the Parties, and thereupon, be enforced as modified. All other terms and conditions of this Agreement shall remain in full force and effect and shall be construed in accordance with the modified provision.
The Parties acknowledge that, in executing this Agreement, they have had the opportunity to seek the advice of independent legal counsel and have read and understood all of the terms and provisions of this Agreement. The Parties further acknowledge and agree that any rules of construction relating to interpretation against the drafter of an agreement shall not apply to this Agreement and are hereby expressly waived.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may also be executed by facsimile or .pdf signature and a facsimile or .pdf signature shall constitute an original for all purposes.
IN WITNESS WHEREOF, the Parties hereto have duly executed and delivered this Agreement as of the date set forth in the first paragraph above.
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