Each capitalized term not defined below shall have the meaning assigned to it in the letter into which these terms and conditions have been incorporated by reference.
Section 1. Relationship. Company shall transfer to Heifer any funds received by it on Heifer’s behalf, or for Heifer’s benefit, along with a reasonable accounting thereof, on a quarterly basis. Company agrees that nothing contained in this Agreement shall be construed as Heifer “endorsing” Company’s services and/or products. Parties agree that this Agreement is effective for the Term, unless earlier terminated as set forth herein. Unless specifically indicated in the Agreement, the Promotion shall not result in any cost or expense to Heifer.
Section 2. Intellectual Property. Company grants Heifer a nonexclusive, royalty-free, limited, revocable license to use the Company IP during the Term (the “Company License”). Heifer agrees to maintain high standards when using the Company IP. Heifer may not alter or modify the Company IP in any way, nor may it grant a sublicense to any other individual or entity for the use of the Company IP. Heifer grants Company a nonexclusive, royalty-free, limited, revocable license to use the Heifer IP during the Term (the “Heifer License”). Company agrees to maintain high standards when using the Heifer IP. Company may not alter or modify the Heifer IP in any way, nor may it grant a sublicense to any other individual or entity for the use of the Heifer IP. Company agrees to comply with Heifer’s branding guidelines, as provided by Heifer and as amended from time to time.
Section 3. Standard of Care. Each Party (the “Promoting Party”) agrees to submit for the other Party’s (the “Promoted Party”) approval, prior to Promoting Party’s use thereof, all marketing and public relations materials related to the Promotion, including but not limited to any materials containing Promoted Party’s intellectual property. Promoting Party shall ensure its employees and representatives comply with the provision of this Agreement, as well. In the event Promoting Party discovers misuse of Promoted Party’s intellectual property, Promoting Party will immediately notify Promoted Party, and will cooperate with Promoted Party in preventing and remedying the misuse.
Section 4. Council of Better Business Bureaus. In accordance with standards recommended by the Council of Better Business Bureaus, and other applicable law, Company agrees that activities undertaken in connection with the Promotion shall (as and when applicable) clearly and conspicuously disclose the following in reasonably sized font and type on the packaging or promotion materials: (a) that Heifer is the promoted organization, (b) that information about Heifer is available by calling 1.800.422.0474 or by visiting Heifer’s website at Heifer.org, (c) the duration of the Promotion, and (d) any amount that Company is to contribute to Heifer in connection with the Promotion.
Section 5. Representations. Each Party warrants and represents, one to the other, that (a) the execution and delivery of this Agreement have been duly authorized by all necessary parties, (b) it has the power, authority and capacity to perform its obligations as set forth under this Agreement, (c) with regard to Heifer — it owns the Heifer IP and Company’s use thereof will not infringe upon any third party’s rights, and (d) with regard to Company, it owns the Company IP and Heifer’s use thereof will not infringe upon any third party’s rights, (e) it shall comply with all applicable federal, state and local laws in connection with the Promotion, and (f) to the best of its knowledge it is not, does not employ or associate with, and is not owned, controlled by, or acting for or on behalf of a “suspected terrorist” as defined in Executive Order 13224.
Section 6. Indemnification. Each Party (the “Indemnifying Party”) shall indemnify, hold harmless and defend the other Party (the “Indemnified Party”) from and against any and all claims, demands, damages, actions, causes of action and liabilities which may result from, arise out of, or relate to Indemnifying Party’s (a) misconduct or negligence under this Agreement, or (b) breach of this Agreement.
Section 7. Confidentiality. Each Party (the “Receiving Party”) may receive access to certain trade secrets and proprietary, secret, confidential and/or other information belonging to the other Party (the “Providing Party”), and not generally available to the public (the “Confidential Information”). Receiving Party is prohibited from disclosing Providing Party’s Confidential Information to any third party unless authorized in writing by Providing Party. Receiving Party shall take all steps requested by Providing Party to protect the Providing Party’s Confidential Information. If Company receives donor information from Heifer in connection with the Promotion, Company understands and agrees that such information shall remain Heifer’s exclusive property, and that Company may not use such information to contact any person for any purpose except as specifically authorized by Heifer.
Section 8. Termination. The Parties agree that, unless extended in writing by the Parties, this Agreement shall terminate immediately upon the expiration of the Term, and all licenses and rights granted under this Agreement shall terminate as of that date, as well. Heifer shall have the right to terminate this Agreement and/or the Heifer License within five (5) business days of Company’s receipt of written notice thereof from Heifer. Company shall have the right to terminate this Agreement and/or the Company License within five (5) business day of Heifer’s receipt of written notice thereof from Company. Company shall deliver to Heifer any funds received by it on Heifer’s behalf, or for Heifer’s benefit, along with a reasonable accounting thereof, within five (5) business days of the termination or expiration of this Agreement.
Section 9. Governing Law/Jurisdiction. This Agreement is to be construed and enforced in accordance with the laws of the State of Arkansas and the United States of America, without regard to any applicable rules addressing conflicts of laws. The State courts in Pulaski County, Arkansas, and the United States District Court for the Eastern District of Arkansas, all located in Little Rock, Arkansas, shall have jurisdiction and venue with respect to any and all disputes arising in connection with this Agreement.
Section 10. Notices. All notices, approvals, requests, demands or other communications hereunder must be in writing, and shall be deemed to have been given to the applicable Party, when delivered by hand, or upon receipt of proof of delivery by any mail or delivery service requiring such a receipt, or upon receipt of proof of an electronic transmission to the applicable Party.
Section 11. Miscellaneous. Parties are independent contractors, and nothing in this Agreement shall be construed to appoint either Party as the agent of the other, or create a partnership, joint venture, or similar relationship between the Parties that may result in vicarious liability, and neither Party shall have the power to bind the other Party in any manner whatsoever. This Agreement may be amended, supplemented, or modified, and the observance of any provision hereof may be waived, only by written and signed instrument making specific reference to this Agreement. This Agreement contains the entire understanding of the Parties with respect to the subject matter contained herein, and supersedes any prior or contemporaneous terms, representations, statements or agreements, whether made orally or in writing, with respect to said subject matter. The Parties agree that it is impossible to measure in money the damages that will accrue by reason of the failure of either Party to this Agreement to perform any of its obligations, and that the irreparable damage which would result from a breach of this Agreement may be remedied by immediate injunction or any other relief allowed by law. If any provision of this Agreement shall be held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or any remaining provisions of the Agreement. This Agreement may not be assigned by Company in whole or in part. The Parties agree that Sections 6, 7, 10 and 11 shall survive the termination of this Agreement.
Reviewed by Legal Services July 2019.