GoFly Prize Competitor Agreement

PLEASE READ THIS CAREFULLY!

You (“Innovator”) and GOFLY Prize Group LLC (“GOFLY”) are entering into this Phase I Competition Agreement (this “Agreement”) which applies to Phase I of the GOFLY Prize Competition (the “Competition”). In order to participate in this Competition, Innovator must accept these terms, and therefore should take the time to understand them.

 

IF YOU CLICK "ACCEPT" AND PROCEED TO REGISTER FOR THIS COMPETITION, THIS AGREEMENT WILL BE A VALID AND BINDING AGREEMENT BETWEEN INNOVATOR AND GOFLY for all purposes relating to this Competition. Innovator should print and keep a copy of this Agreement.  GOFLY and Innovator are referred to herein individually as a “Party” and jointly as the “Parties.”  

1. General.  The Competition consists of three phases, and this Agreement applies to your participation only in Phase I of the Competition.  The phases of the Competition and the requirements for each are described in the Competition Guidelines, which can be found at www.herox.com/GoFly/guidelines (the “Competition Guidelines”).  Participation in subsequent phases of the Competition will have additional requirements and will be governed by different rules and legal documents than Phase I of the Competition, all as more fully described in the Competition Guidelines.  The Competition Guidelines are an important part of this Agreement and are incorporated herein by reference.   

2. Competition Sponsors.  The Competition is being administered by GOFLY and sponsored and funded by The Boeing Company and individual and corporate sponsors (collectively with any future individual or corporate sponsors, the “Competition Sponsors”).  Certain provisions of this Agreement are included for the benefit of the Competition Sponsors, and Innovator acknowledges that the Competition Sponsors are third-party beneficiaries of this Agreement.  

3. Eligibility. The Competition is open to individual Innovators and business entities who meet the following requirements.  GOFLY will determine an Innovator’s compliance with these requirements in its sole discretion.

(a) Individual Innovators:  The Competition is open to individual Innovators who meet all of the following requirements at all times during the Competition:

i. be at least 18 years old and the age of majority in his/her jurisdiction of residence if it is older than 18; 

ii. comply fully with all terms and conditions of this Agreement, including Section 15 which requires Innovator to obtain GOFLY’s prior written approval of all sponsors;

iii. be able to participate in this Competition without violation of any third-party rights or obligations, including without limitation an employer’s policies or procedures.  To the extent an individual’s participation is within the scope of his or her employment as an employee, contractor, or agent, the individual must have notified his or her employer or principal for whom that individual is working at the time of entry of participation in the Competition, including without limitation the potential receipt of a prize.  For the avoidance of doubt, individuals who are students, instructors, or professors at a university, or otherwise employed by a university must meet the requirements of this subsection.

iv. Exclusions:  Individual Innovators may not be:

(A) A Boeing employee or a member of any Boeing employee’s immediate family,

(B) Located in a jurisdiction where participation in the Competition is prohibited or otherwise restricted by law (or an individual with a residence in or who is a national of Cuba, Iran, Syria, North Korea or Sudan); or

(C) An Individual who is subject to export controls or sanctions of the U.S.

(b) Business Entities:  The Competition is open to business entities that wish to compete as a team and meet all of the following requirements at all times during the Competition:

i. be validly formed and in existence under applicable law.  

ii. comply fully with all terms and conditions of this Agreement, including Section 15 which requires Innovator to obtain GOFLY’s prior written approval of all sponsors.

iii. be able to participate in this Competition without violation of any third-party rights or obligations, including without limitation any non-compete or other agreements it may have with third parties.  

iv. Exclusions:  entity Innovators must not have any presence in Cuba, Iran, Syria, North Korea or Sudan or be subject to export controls or sanctions of the United States. 

4. Teams and Team Members.  Eligible Innovators can participate in the Competition individually or as part of a group.  For the purposes of this Agreement, a Team can be a team of one Innovator or a team of multiple Innovators (as a group of Innovators or a group of Innovators who are part of a single business entity).  Registration of a Team requires the Team to identify and list each Innovator that is part of the Team (“Team Members”).   All Team Members must register at www.herox.com/GoFly and sign this Agreement.  Teams will designate a Team Member to act as “Team Leader”, and the Team Leader will be responsible for receiving communications from and communicating with GOFLY and the Judging Panel.  The Team Leader must be at least 18 years old (or the age of majority in their jurisdiction of residence, if such age is older than 18 years).  Team may replace the designated Team Leader and add or remove any Team Member at any time through the Team Portal.  Team has the sole responsibility for adding and removing Team Members.  Team and Team Members are solely responsible for all of their own costs related to participation in the Competition and preparation of a Team’s competition submissions.  Neither GOFLY nor its agents will officiate or be responsible for any disputes between or among members of any team (including disputes regarding conduct, cooperation, contributions, intellectual property ownership, or prize distribution or sharing).

5. Innovator Representations and Warranties.  By entering the Competition, Innovator represents, warrants, and agrees that:  

(a) Innovator has read and is in full compliance with the Competition Guidelines.  

(b) Innovator is free to enter into this Agreement without the consent of any third party and has the capability to fully perform its obligations hereunder;

(c) Innovator’s participation in the Competition, including acceptance of any Prize, will not violate any law, regulation, policy or rule in Innovator’s country, state, province, or local municipal location or Innovator’s employment contract or arrangement; 

(d) Innovator will not infringe, violate, misappropriate or interfere with the Intellectual Property, contract or other right of any third party in the course of performance of this Agreement or cause GOFLY or its affiliates to do any of the same;

(e) As of the date of any Submission, Innovator owns (or will own) all technologies, methods, resources and Intellectual Property in Innovator’s Submission(s) and/or has (or will have) all appropriate license rights in any and all third-party technologies, methods, resources and Intellectual Property (“Third-Party Technology”) in such Submission(s), and that Innovator’s Submission(s) will be accompanied by and made in accordance with all appropriate licenses in such Third-Party Technology.

6. Innovator to Retain Innovator’s Intellectual Property.  Innovator will retain ALL right, title and other ownership interests in Innovator’s submission and in all inventions, patents, patent applications, designs, copyrights, trademarks, trade secrets, software, source code, object code, processes, formulae, ideas, methods, know-how, techniques, devices, creative works, works of authorship, publications, and/or other intellectual property (“Intellectual Property”) developed by Innovator during the Competition, except for the media rights granted by Innovator to GOFLY pursuant to this Agreement.    

7. Use of Intellectual Property. No Party shall use the Intellectual Property of the other Party in a manner that: (i) impairs the validity or enforceability of such Intellectual Property; (ii) in any way disparages or dilutes such Intellectual Property; (iii) reflects poorly upon the good name of the other Party (or any Competition Sponsor or Organization Partner) or upon the goodwill and reputation associated with such Intellectual Property; or (iv) violates any applicable law, regulation or rule. No Party shall contest or deny the validity or enforceability of, or the right or title of the other Party in or to, such Intellectual Property or otherwise and shall not encourage or assist others directly or indirectly to do so. No party shall attempt to register the Intellectual Property of the other Party. In addition, no Party shall make any derivative works based on, or improvements to, any of the Intellectual Property of the other Party, except as authorized by this Agreement, nor shall any Party otherwise exploit the Intellectual Property of the other Party in any manner not expressly authorized by this Agreement. 

8. Compliance with Applicable Laws.  Innovator shall obey all local, national, and international laws in undertaking any activities related to the Competition and must acquire all necessary licenses, waivers, and/or permits from the applicable regulatory bodies or other applicable third parties. GOFLY is not required to advise Innovator regarding such legal and regulatory compliance and is not responsible for Innovator’s compliance with laws applicable to Innovator.  GOFLY’s acceptance of Innovator into the Competition does not constitute approval of Innovator’s compliance with applicable laws.

9. Noncompliance.  GOFLY may, in its sole discretion, temporarily suspend or disqualify an Innovator for any reason, including due to its failure to comply with any provision of this Agreement or the Competition Guidelines.  If GOFLY notifies Innovator of noncompliance, Innovator agrees to cure such noncompliance as promptly as practicable and in any case within 30 days of receipt of such notice.   Innovator shall abide by any decision made by GOFLY to remove, suspend, deem ineligible, or disqualify Innovator, without contest, legal recourse, or any other action of protest of the decision. Such decisions may be made by GOFLY for any reason including ethical transgressions, breach or violation of this Agreement or actions that jeopardize the Competition or sponsorship of the Competition.

10. Phase I Submissions.  To be eligible for a prize, Innovator’s will make a submission of information to GOFLY that meets the requirements set out in the Competition Guidelines (a “Submission”), and which also complies with the following:  

(a) Except for purchased or licensed content, any Submission must be the original work of Innovator;

(b) Submissions must include only content (including any technical information, algorithms, designs, music, audio, visual or illustrative content, including logos, images, graphics, art, or other content, information, or materials protected any intellectual property right) that Innovator owns or has proper rights to use; 

(c) Innovator is required to disclose any purchased or licensed content that is part of a Submission. 

(d) Submissions must not contain any incomplete, corrupt, damaged, or malicious material;

(e) Submissions must not contain material that violates or infringes another’s rights, including but not limited to privacy, copyright, trade secret, patent, trademark, publicity or any intellectual property rights;

(f) Submissions must not disparage GOFLY, any Competition Sponsor or any Organization Partner;

(g) Submissions must not contain material that is inappropriate, offensive, indecent, obscene, tortious, defamatory, slanderous or libelous and must not contain material that promotes bigotry, racism, hatred or harm against any group or individual or promotes discrimination based on race, gender, religion, nationality, disability, sexual orientation, or age; and

(h) Submissions must not contain material that is unlawful, in violation of, or contrary to applicable laws or regulations.

(i) Submission must contain a publicly-releasable graphic representation (silhouette, drawing, video, or abstracted cartoon, e.g.) of the entry.

11. Judging.  All Submissions will be judged against the criteria set forth in the Competition Guidelines and judges will determine, in their sole discretion, which Submission best addresses the Competition Guidelines.  GOFLY has absolute and sole discretion to determine whether to accept Innovator’s Submission, or any Submission, and whether to make a Prize, multiple Prizes or any Prize available to Innovator. Innovator agrees that GOFLY’s determination as to the winner(s) of any Prize(s) are final and binding. Meeting the Competition Guidelines does not automatically mean that a Submission will be eligible for a Prize.  

12. Media Rights.  Innovator grants GoFly or any Competition Sponsor (including its parent and affiliate companies) and its agents an exclusive (even to the extent that it may restrict Innovator’s right to exploit the Competition Media as set forth herein), perpetual, royalty-free, fully paid-up, sublicensable, worldwide, irrevocable right and license, exercisable in the sole and absolute discretion of GoFly to capture footage and otherwise record preparations for, participation in and the proceedings of the Competition, including but not limited to Innovator’s name, voice, image, statements or any indicia of their, his or her identity (“Likeness”) in any and all Competition Media.  For the purposes of this Agreement, “Competition Media”  shall be defined as all pre-existing or developed media emanating from documenting, filming , recording, or otherwise fixing any aspect of the Competition in a tangible means of expression by any means or in any manner or medium now existing , including without limitation, audio, video, digital, and photographic material, or developed in the future, including without limitation, Innovator preparation to enter or register for the Competition, the story of Innovator’s participation, other Competition participants, and events related to the Competition whether such Competition Media is owned, controlled, or created by, or on behalf of Innovator, any team member, or GoFly or any Competition Sponsor (or any of GoFly or Competition Sponsor’s agents), or partner of the Team or Innovator.  GoFly and Competition Sponsors shall have the right to exploit all Competition Media in any manner and in any medium, including licensing the media to third parties.  GoFly will retain all rights and title in and to any Competition Media.

13. Marks.  Innovator will not use the marks or logos of GOFLY, any Competition Sponsor without the prior written consent of GOFLY, which GOFLY may grant or deny in its sole discretion.  

14. Publicity. Innovator shall not release any publicity, advertisement, news release or denial or confirmation of same regarding GOFLY, the Competition or the Innovator’s entry into this Agreement, the terms of the Agreement or any Competition Sponsor’s role as a sponsor of the Competition, in any case without the prior written consent of GOFLY, which GOFLY may grant or deny in its sole discretion.

15. Sponsorship.  All sponsors of an Innovator or a Team must be approved in writing by GOFLY, which approval may be granted or denied in GOFLY’s sole discretion.  GOFLY will not approve any Innovator or Team sponsor that is a competitor of Boeing.  Innovator cannot publicize any sponsor without GOFLY’s prior written consent.  Any Innovator who has an approved sponsor(s) shall provide reports and updates on such sponsors as requested by GOFLY. 

16. Other Contracts, Confidentiality. Innovator agrees that Innovator will not disclose to GOFLY any information for which Innovator is under an existing contractual or other legal obligation to maintain in confidence or otherwise does not have the right to sell or license. Innovator agrees that Innovator will not discuss any confidential information of other parties or GOFLY. If Innovator’s participation in the Competition should be found to breach any legal obligations that Innovator has with third parties, or in the event of a breach of these confidentiality obligations, Innovator agrees to defend, indemnify, and hold harmless GOFLY, the Competition Sponsors, the Organization Partners and their respective affiliates, officers, directors, employees and agents from and against all claims, actions or demands, liabilities, and settlements, including, without limitation, reasonable legal and accounting fees, arising in connection with such unauthorized and prohibited disclosure. 

17. Nondisparagement.  At any time during or after the Competition, Innovator will not make, solicit or encourage others to make or solicit disparaging, critical or otherwise detrimental comments concerning GOFLY, the Competition Sponsors, the Organization Partners or any of their respective affiliates, employees, officers, directors, or agents.       

18. Changes and Cancellation. GOFLY has the right to make updates and/or make any changes to, or to modify the scope of the Competition Guidelines, competition schedule, any technical requirements for the Prizes or any other details of the Competition, at any time during the Competition, for any reason.  Innovator is responsible for regularly reviewing the Competition Guidelines to ensure that they understand and are meeting all rules and requirements of the Competition. GOFLY has the right to cancel the Competition at any time, without warning or explanation, and to subsequently remove the Prizes completely. 

19. Payments to Innovator.  Innovator shall only be paid upon winning a Prize and shall not receive payment for preparation or participation in the Competition. GOFLY shall make any necessary payment in US dollars to the bank account specified by Innovator during Registration within ninety (90) days after Innovator being declared the winner of a Prize. Compliance with payment instructions provided by Innovator (or, where Innovators have formed a group, by the Team Leader) constitute payment of the applicable Prize. Innovator shall be solely responsible for any taxes arising from or relating to the payment of any Prize.  GoFly shall not be involved in how any Prize is allocated among Team Members.  If Innovator wins a Prize, it will receive an IRS form 1099 or other applicable tax documentation from or on behalf of GOFLY reflecting the value of the Prize received, as required by law.  

20. Release and Waiver.  Innovator hereby:

(a) ACKNOWLEDGES THAT PARTICIPATION IN THE COMPETITION MAY BE DANGEROUS AND COULD LEAD TO BODILY INJURY OR DEATH; 

(b) AGREES TO VOLUNTARILY ASSUME ANY AND ALL RISKS ASSOCIATED WITH PARTICIPATING IN THE COMPETITION, INCLUDING, BUT NOT LIMITED TO, THE RISK OF BODILY INJURY OR DEATH; 

(c) ACKNOWLEDGES THAT NONE OF GOFLY, ANY COMPETITION SPONSOR, ANY ORGANIZATION PARTNER OR ANY OF THEIR RESPECTIVE AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS OR AGENTS WILL BE RESPONSIBLE OR LIABLE FOR ANY LOSSES, LIABILITIES, DAMAGES (INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY AND PROPERTY DAMAGE) AND 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”) THAT MAY OCCUR DUE TO PARTICIPATION IN THE COMPETITION;

(d) RELEASES AND FOREVER DISCHARGES GOFLY, THE COMPETITION SPONSORS, THE ORGANIZATION PARTNERS AND ALL OF THEIR RESPECTIVE AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS AND AGENTS FROM ANY AND ALL LOSSES ARISING FROM PARTICIPATION IN THE COMPETITION;

(e) WAIVES ANY AND ALL RIGHTS OR CLAIMS FOR LOSSES AGAINST GOFLY, ANY COMPETITION SPONSOR, ANY ORGANIZATION PARTNER AND ALL OF THEIR RESPECTIVE AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS AND AGENTS FOR ANY AND ALL LOSSES SUFFERED RESULTING FROM INNOVATOR’S PARTICIPATION IN THE COMPETITION AND COMPETITION-RELATED EVENTS;

(f) COVENANTS NOT TO SUE GOFLY AND/OR ANY OTHER COMPETITION SPONSOR, ANY ORGANIZATION PARTNER AND/OR ANY OF THEIR RESPECTIVE AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS AND AGENTS FOR ANY LOSSES THEREFOR ON ACCOUNT OF INJURY, DAMAGE TO PERSONAL PROPERTY, OR DEATH ARISING FROM INNOVATOR’S PARTICIPATION IN THE COMPETITION OR ANY OTHER LOSSES WHATSOEVER.

21. Acknowledgment.  Innovator acknowledges and expressly agrees that the foregoing releases and waivers are intended to be as broad and inclusive as permitted by law and that if any portion thereof is held to be invalid, it is agreed that the balance will, notwithstanding, continue in full legal force and effect.  

22. Affiliates; Agents; Organization Partners.  For all purposes under this Agreement, (a) the term “affiliates” means a person or entity which directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with another person or entity, (b) GOFLY’s “agents” shall be deemed to include each of the Masters, Mentors, Advisors, and Judges who are at any time involved in the Competition with such title or who are identified as such in GOFLY’s website from time to time, and (c) the term “Organization Partners” means those organizations listed under the Partner tab in GOFLY’s website.

23. Indemnification.  Innovator acknowledges and agrees to indemnify, defend, release from liability, and hold harmless GOFLY, the Competition Sponsors, and the Organization Partners and all of their respective affiliates, employees, officers, directors and agents from and against any and all Losses arising from, relating to, or connected with participation in the Competition or any part of the Submission, or any activities incidental thereto including, without limitation: (i) any third-party claims, including, without limitation, any claims for personal bodily injury and/or personal property damage; (ii) claims based on any alleged breach of this Agreement by any person who is part of a Submission or a Competition; (iii) failure of  Innovator to procure an effective waiver; (iv) any claims that the Submission infringes upon or violates the intellectual property rights of any third party, infringes upon or violates any person’s or entity’s right of privacy, or otherwise is in breach of Section 5(d);  or (v) actual or alleged agreements or arrangements with other Innovators or participants.  Innovator acknowledges and agrees that the obligation to indemnify and hold harmless as set forth in this Section will survive the expiration, lapse, or termination of this Agreement.

24. DISCLAIMER OF WARRANTIES.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NO PARTY MAKES ANY WARRANTY, EXPRESS OR IMPLIED, REGARDING THE SUBJECT MATTER OF THIS AGREEMENT. EACH PARTY EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES.

25. EXCLUSION OF DAMAGES.  NO PARTY SHALL BE LIABLE TO ANY OTHER PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF GOODWILL, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES OF ANY KIND, WHETHER OR NOT SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF CIRCUMSTANCES CAUSE AVAILABLE REMEDIES TO FAIL.

26. LIMITATION OF LIABILITY.  

(a) THE TOTAL AGGREGATE LIABILITY OF GOFLY FOR ANY CLAIMS, CAUSES OF ACTION, DISPUTES OR DEMANDS ARISING FROM, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO SUCH LIABILITY RESULTING FROM GOFLY’S BREACH OF ANY TERM OF THIS AGREEMENT AND/OR GOFLY’S NEGLIGENCE OR OTHER TORTIOUS CONDUCT AND/OR ANY DECISION BY GOFLY TO DISQUALIFY INNOVATOR AND/OR TERMINATION OF THIS AGREEMENT BY GOFLY, SHALL BE LIMITED TO THE LESSER OF (A) THE AMOUNT INNOVATOR PAID TO GOFLY UNDER THIS AGREEMENT; OR (B) INNOVATOR’S DIRECT DAMAGES NOT TO EXCEED ONE THOUSAND DOLLARS ($1,000.00).

(b) To the extent permitted under applicable law, none of GOFLY, any Competition Sponsor or any Organization Partner shall be liable for: (1) any incorrect or inaccurate information, whether caused by Team, printing, typographical or other errors, or by any of the equipment or programming associated with or utilized in the Competition; (2) technical failures of any kind; (3) unauthorized human intervention in any aspect of the Competition; (4) any other claims of damages arising from participation in this Competition or acceptance or use of Prizes; and  (5) any claims by a Team that its submission is similar to or competitive with technologies or products received by GOFLY from third parties, including other Teams.

27. Privacy.  As part of this Competition, GOFLY may receive some of Innovator’s personal information. The collection, use, and disclosure of this information will be governed by GOFLY’s Privacy Policy located at http://www.GOFLY.com/privacy-policy. The Privacy Policy includes several ways to contact GOFLY with questions.  By submitting such information, Innovator agrees that (i) GOFLY may use the personal information collected as described in the Privacy Policy and (ii) GOFLY may disclose such contact information and Competition registration information to Boeing.  Innovator expressly authorizes Boeing to contact Innovator if Boeing so desires. 

28. Dispute Resolution.  In light of the Competition’s ultimate goal of inspiring innovation from around the world, any public dispute regarding any claim or controversy arising out of or related to this Agreement or the making, performance, breach, or interpretation of this Agreement, including, without limitation, any challenge to any decision by the Judging Panel, would detract from this goal and would reflect poorly on Innovator, GOFLY, the Competition Sponsors and the Organization Partners. Further, any public dispute regarding any claim or controversy arising out of or related to this Agreement or the making, performance, breach, or interpretation of this Agreement, including, without limitation, any challenge to any decision by the judges, will result in irreparable harm to GOFLY, the Competition Sponsors and the Organization Partners and prize fulfillment entities of the Competition.  Accordingly, Innovator and GOFLY agree that (i) any claim, controversy and/or dispute arising out of or related to this Agreement (“Dispute”); (ii) any issues pertaining to a Dispute; and/or (iii) any claim that this Agreement or any part hereof is invalid, illegal, or otherwise voidable or void, shall be submitted to and finally determined by mandatory and binding arbitration. Arbitration will be in accordance with the rules of the American Arbitration Association (“AAA”), which shall administer the arbitration, with the place of arbitration in New York, New York, United States of America.  Innovator and GOFLY agree that the mandatory and exclusive dispute resolution procedures in this Agreement are in the best interests of both Parties.   

29. General Provisions.

(a) Governing Law.  This Agreement and all Disputes arising hereunder shall be governed and construed in accordance with the laws of the State of New York, United States of America (“Laws”), without giving effect to any conflict of laws rules that would result in the application of the laws of any other jurisdiction.  

(b) Voluntary Agreement.  THE PARTIES BY VOLUNTARILY ENTERING INTO THIS AGREEMENT HEREBY AGREE TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT.  IF INNOVATOR DOES NOT AGREE TO BE BOUND BY AND COMPLY WITH THIS AGREEMENT, THEN INNOVATOR SHOULD NOT ENTER THE COMPETITION. BY SIGNING THIS AGREEMENT, INNOVATOR REPRESENTS AND WARRANTS THAT IT UNDERSTANDS AND AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT.

(c) Review by Counsel. This Agreement contains important limitations on Innovator’s rights that are necessary in light of GOFLY’s mission and dedication to the development of technology for the good of society. In light of these limitations, Innovator is encouraged to consult with legal counsel and ask any questions regarding its decision to enter into this Agreement and agree to these limitations. By entering into this Agreement, Innovator represents and warrants that it has had such opportunity to consult with legal counsel and ask questions regarding this Agreement.

(d) Not Agents, Partners, or in Joint Venture.  Parties are not agents or partners of or with one another. Parties are not engaged in any form of joint venture with one another. Parties cannot bind one another by contract.

(e) No Third Party Beneficiaries.  Except as expressly provided herein, Parties agree and acknowledge that there are, and shall be, no third party beneficiaries to this Agreement.

(f) No Waiver.  No failure of either Party to insist upon strict compliance with any covenant, obligation, condition, warranty or agreement contained herein will operate as a waiver of, or estoppel with respect to, any such covenant, obligation, condition, or agreement. Waiver by any Party of any breach of any provision of this Agreement will not be considered as, nor constitute, a continuing waiver or waiver of any other breach of any provision of this Agreement.

(g) Headings.   Article, section, subsection and paragraph headings in this Agreement are included for convenience of reference only and will not constitute a part of this Agreement for any other purpose. 

(h) Survival.  Notwithstanding any termination of this Agreement for any reason, the following provisions shall survive for all purposes:  Sections 12 (Media Rights), 17 (Nondisparagement), 20 (Release and Waiver), 23 (Indemnification), 24 (Disclaimer of Warranties), 25 (Exclusion of Damages), 26 (Limitation of Liability), 28 (Dispute Resolution), 29 (General Provisions) and any other provision which, expressly by its terms, survives termination of this Agreement.     

(i) Severability.  If any provision of this Agreement conflicts with the law under which this Agreement is construed or that is otherwise applicable to Innovator, or if any such provision is held invalid by a competent authority, such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law. If the competent authority holds the provision illegal, invalid, or unenforceable even after restatement, the provision will be limited or eliminated to the minimum extent necessary. The remainder of this Agreement will remain in full force and effect.

Extension and Amendment of Phase I Competition Agreement

 

PLEASE READ THIS CAREFULLY!

As a participant in Phase I of the GOFLY Prize Competition (the “Competition”), you (“Innovator”) and GOFLY Prize Group LLC (“GOFLY”) entered into a Phase I Competition Agreement (the “Phase I Agreement”).

During the period between the submission deadline for entries in Phase I of the Competition and the formal acceptance of your team as a competitor in Phase II of the Competition, you understand that to continue to participate in the Competition, you and GOFLY agree as follows:

1. Notwithstanding anything in the Phase I Agreement to the contrary, all terms and provisions of the Phase I Agreement that by their terms would only apply to Phase I of the Competition are hereby extended and will continue to apply during the period beginning upon the submission deadline for Phase I entries on April 18, 2018 and ending upon the earliest to occur of (i) the formal acceptance by you or your team as a participant in Phase II of the Competition in accordance with the documents and guidelines governing Phase II, (ii) formal notification by GOFLY that you have not been accepted as a participant in Phase II of the Competition, (iii) your formal notice to GOFLY that you decline to apply to participate in Phase II of the Competition or (iv) December 8, 2018 or such other deadline for Phase II applications as GOFLY determines in its discretion from time to time (such period, the “Interim Period”). 

 

1. Other than as described in paragraph 1 above, you hereby reaffirm all terms and provisions of the Phase I Agreement and agree and acknowledge that the terms and provisions of such agreements remain in full force and effect, and that all representations and warranties of Innovator in the Phase I Agreement are true and correct as of the date hereof as if made on and as of the date hereof.

 

1. Concurrently with or prior to your execution and delivery of this Extension and Amendment of Phase I Competition Agreement (this “Extension and Amendment”), you are executing and delivering, or have previously executed and delivered, to GOFLY:

 

1. an agreement with GOFLY regarding your use of certain software, services, products, advice and other offerings posted to the GOFLY website at [LINK] (and if you previously executed and delivered such agreement, you hereby reaffirm and acknowledge that the terms of such agreement remains in full force and effect);

 

1. a new Release of Liability and Indemnification Agreement in the form posted to the GOFLY website at [LINK].

 

1. This Extension and Amendment shall be governed by the provisions of Sections 28 and 29 of the Phase I Agreement, which are hereby incorporated herein by reference. 

 

 

GoFly In-kind Sponsor Benefit Agreement

GOFLY Innovators may have the opportunity from time to time to receive software, services, products, advice and other offerings, subject to certain terms and conditions of GOFLY, its sponsors and other partners, including this agreement (this “Agreement”).   In order to utilize these offerings, please carefully read the following.  If acceptable, please click on the “I Accept” button below. 

IF YOU CLICK “I ACCEPT,” THIS AGREEMENT WILL BE A VALID AND BINDING AGREEMENT BETWEEN YOU (“INNOVATOR”) AND GOFLY PRIZE GROUP LLC (“GOFLY”).  Innovator should print and keep a copy of this Agreement.

1. Innovator’s Acknowledgments.  Innovator acknowledges that GOFLY, The Boeing Company (“Boeing”), other sponsors (including financial, in-kind and organizational sponsors) of GOFLY or the competition being administered by GOFLY (the “Competition”) and GOFLY’s direct or indirect equity holders (all of the foregoing, collectively, the “GOFLY Partners”), and may make available to Innovator and its team members certain services, products, equipment, data, documentation, technical assistance, materials, advice and other information during the Competition (collectively, “Competition Materials and Services”), including, without limitation, access to, advice and information provided by GOFLY masters, mentors and judges and software or other products and services provided by GOFLY Partners.  Innovator agrees and acknowledges that neither Innovator nor any of its team members is required to use any such Competition Materials and Services and that its election to do so is at its own option.  Nothing herein entitles Innovator to any Competition Materials and Services, and such Competition Materials and Services may be discontinued, revoked or otherwise ceased at GOFLY’s sole discretion.  This Agreement is signed by a duly authorized representative of Innovator.  Innovator understands that the terms of this Agreement are contractual and not a mere recital.
2. Separate Agreements.  Any use by Innovator or any of its team members of any Competition Materials and Services offered by a GOFLY Partner shall be governed by such licenses or other agreements between Innovator and the respective GOFLY Partner, which are separate and apart from this Agreement, and no other GOFLY Partner (including GOFLY) shall have any responsibility or liability with respect to such arrangement.
3. Indemnification.  Innovator hereby agrees that it will indemnify and hold harmless GOFLY, Boeing and its divisions, subsidiaries, subcontractors, suppliers and affiliates, each other GOFLY Partner, each GOFLY master, mentor or judge, each affiliate of the foregoing parties, and with respect to all of the foregoing, each of their members, directors, officers, agents, managers, subcontractors and employees (each, a “Competition Indemnified Party”)) from and against all liabilities, claims, losses, or damages of any nature, including costs and expenses (including attorneys’ fees) incident thereto or incident to successfully establishing the right to indemnification, for injury to or death of any person or persons, or for loss of or damage to any property, including without limitation any aircraft or part thereof, and for any loss of use, revenue or profit, or other things or for any other direct, indirect, incidental, consequential, economic or statutory civil damages arising directly or indirectly out of or in any way connected with use of any of the Competition Materials and Services or any other item furnished by a Competition Indemnified Party under this Agreement, whether or not arising in tort or occasioned in whole or in part by its negligence.
4. EXCLUSION OF LIABILITIES.
   1. DISCLAIMER AND RELEASE.  ANY COMPETITION MATERIALS AND SERVICES PROVIDED TO INNOVATOR ARE PROVIDED ON AN AS-IS, WHERE-IS BASIS, AND NO COMPETITION INDEMNIFIED PARTY MAKES ANY WARRANTY,  GUARANTEE OR REPRESENTATIONS WITH REGARD THERETO.   EACH COMPETITION INDEMNIFIED PARTY SPECIFICALLY DISCLAIMS AND INNOVATOR, ON ITS BEHALF AND ON BEHALF OF ITS TEAM MEMBERS, HEREBY WAIVES, RELEASES AND RENOUNCES ALL WARRANTIES AND OBLIGATIONS AND LIABILITIES, AND ANY OTHER RIGHTS, CLAIMS AND REMEDIES OF INNOVATOR OR ITS TEAM MEMBERS AGAINST SUCH COMPETITION INDEMNIFIED PARTY, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY NONCONFORMANCE OR DEFECT IN ANY COMPETITION MATERIALS AND SERVICES OR ANY OTHER THINGS PROVIDED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO:
      1. ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
      2. ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
      3. ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF A COMPETITION INDEMNIFIED PARTY; AND
      4. ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF OR DAMAGE TO ANY PROPERTY OF INNOVATOR OR ITS TEAM MEMBERS, INCLUDING WITHOUT LIMITATION ANY AIRCRAFT OR FLYING DEVICE.
   2. EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES.  NO COMPETITION INDEMNIFIED PARTY SHALL HAVE ANY OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT (WHETHER OR NOT ARISING FROM ITS NEGLIGENCE), OR OTHERWISE, FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES WITH RESPECT TO ANY NONCONFORMANCE OR DEFECT IN ANY COMPETITION MATERIALS AND SERVICES OR ANY OTHER THINGS PROVIDED UNDER THIS AGREEMENT.
5. Result of Discussions and Negotiations.  Innovator agrees and acknowledges that this Agreement has been the subject of discussion and negotiation and is fully understood by Innovator and its team members, and that the mutual agreements of the parties set forth in this Agreement were arrived at in consideration of each of the provisions of this Agreement.
6. Miscellaneous.  Innovator agrees that this Agreement may be enforced to the full extent permitted by law. If any section or part of this Agreement is held not to be enforceable under the applicable law, the remainder of the Agreement shall be enforced.  THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED IN ACCORDANCE WITH, AND ENFORCED UNDER, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS OR INSTRUMENTS ENTERED INTO AND PERFORMED ENTIRELY WITHIN SUCH STATE. ANY DISPUTE RELATING HERETO SHALL BE HEARD IN THE STATE OR FEDERAL COURTS OF THE STATE OF NEW YORK, AND THE PARTIES AGREE TO THE EXCLUSIVE JURISDICTION AND VENUE THEREIN.  Other than the Competition Indemnified Parties, who are express third party beneficiaries of this Agreement, nothing contained in this Agreement will be deemed to create, or be construed as creating, any third party beneficiary right of action upon any third party whatsoever.  No waiver of any provision of this Agreement will be effective, except pursuant to a written instrument signed by the party or parties waiving compliance.  All amendments, supplements, or modifications of this Agreement must be in writing and executed by the parties hereto.  This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns and may not be assigned by Innovator without GOFLY’s prior written consent.  

RELEASE OF LIABILITY AND INDEMNIFICATION AGREEMENT

 

This Release of Liability and Indemnification Agreement (this “Release”) is made pursuant to that certain Extension and Amendment of Phase I Competition Agreement (the “Extension and Amendment”), which extends the provisions of the Phase I Competition Agreement to which I (“Innovator”) and GoFly Prize Group LLC (“GOFLY”) are a party (the “Phase I Agreement”). The provisions of this Release are in addition to, and in no way qualify or limit, the provisions of the Phase I Agreement, as modified by the Extension and Amendment.

 

I wish to continue to participate as an Innovator in the GoFly Prize Competition (the “Competition”) offered by GOFLY, sponsored by The Boeing Company (“Boeing”) and other sponsors (including financial, in-kind and organizational sponsors) of GOFLY or the Competition, and funded by GOFLY and its direct or indirect equityholders (all of the foregoing, collectively, the “GOFLY Partners”).

 

FOR AND IN CONSIDERATION OF the right to continue to participate in the Competition, I acknowledge and agree as follows, on behalf of myself, my heirs, executors and administrators:

 

1. I acknowledge that my participation in the Competition is entirely voluntary.

 

1. I am aware that the Competition may involve risks and dangers, including the risk of serious injury or death.  I certify that I am aware of and accept full responsibility for all of the risks involved in the Competition, including but not limited to the risks inherent in operating a personal flying device, whether caused by weather conditions, terrain conditions, the forces of nature, equipment malfunctions, inexperience, the hazards of transportation, the actions or negligence of GOFLY, Boeing, each GOFLY Partner, each GOFLY master, mentor or judge, each affiliate (as defined in the Phase I Agreement) of the foregoing parties, and with respect to all of the foregoing, each of their directors, officers, agents, managers, subcontractors and employees (collectively, the “Competition Indemnified Parties”), and I understand that no Competition Indemnified Party will be responsible for any losses, damages, liabilities or claims that my occur in connection with my continued participation in the Competition.

 

1. I accept my responsibility and adhere to any rules, policies and instructions provided by GOFLY.

 

1. I HEREBY AGREE TO UNCONDITIONALLY RELEASE, HOLD HARMLESS, INDEMNIFY AND DEFEND GOFLY, BOEING AND EACH OTHER COMPETITION INDEMNIFIED PARTY FROM ANY AND ALL LIABILITY, CLAIMS AND CAUSES OF ACTION ARISING OUT OF OR CONNECTED IN ANY WAY WITH MY PARTICIPATION IN THE COMPETITION, INCLUDING ANY COSTS OR EXPENSES, REASONABLE ATTORNEYS' FEES, INCURRED IN CONNECTION WITH SUCH CLAIMS.  FURTHER, I HEREBY WAIVE ANY RIGHTS TO ANY SUCH CLAIMS, AND COVENANT NOT TO SUE FOR LOSSES, DAMAGES, LIABILITIES OR CLAIMS SUFFERED ARISING FROM TEAM’S PARTICIPATION IN THE COMPETITION.

 

1. I ACKNOWLEDGE THAT I AM RELEASING AND INDEMNIFYING GOFLY, BOEING AND EACH OTHER COMPETITION INDEMNIFIED PARTY AGAINST ANY AND ALL CLAIMS THAT I MAY HAVE TO THE FULLEST EXTENT PERMITTED UNDER THE APPLICABLE LAW.

 

1. I ACKNOWLEDGE THAT THE RELEASE AND INDEMNITY PROVISIONS IN PARAGRAPHS 4 AND 5 APPLY TO ALL CLAIMS FOR INJURY OR DAMAGE RESULTING FROM ANY CAUSE, INCLUDING THE NEGLIGENCE OF ANY PARTY RELEASED HEREIN. I FURTHER ACKNOWLEDGE THAT THIS RELEASE SHALL BE BINDING ON ALL OF MY FAMILY MEMBERS, INCLUDING MINORS, GUARDIANS, HEIRS AND ANY EXECUTOR OR PERSONAL REPRESENTATIVE OR BENEFICIARY.

 

1. I agree that this Release should be enforced to the full extent permitted by law. If any section or part of this Release is held not to be enforceable under the applicable law, the remainder of this Release shall be enforced. The release and indemnification provisions of this Release do not apply to reckless or intentional acts unless such provisions are permitted by the applicable law.

 

1. I am signing this Release as an adult participant, I state that I am 18 years of age or older and legally competent to sign this Release. I understand that these terms are contractual and not a mere recital. I have signed this document of my own free act.

 

1. I HAVE FULLY INFORMED MYSELF OF THE CONTENTS OF THIS RELEASE AND INDEMNITY BY READING IT BEFORE I HAVE SIGNED IT.