GRANT AGREEMENT
This Grant Agreement (this “Agreement”) is entered into between Boys & Girls Clubs of XXX) (the “Partner”), and
Endow1 a XXX LLC., (“Endow1”) each a (“Party”) and collectively the (“Parties”) effective as of January XXX (the “Effective
Date”)
WHEREAS:
A. Charities of America (“CAF”) is a 501 (c)(3) not-for-profit incorporated for the purpose of making grants to US and International
Charitable Organizations;
B. Endow1 provides an internet-based fundraising platform. (the "Platform") and engages in professional fundraising services for CAF
in connection with fundraising campaigns (the “Campaigns”, or individually, a "Campaign") for the purposes of generating charitable
contributions ("Donations") from members of the public ("Donor(s)”) for CAF;
C. Partner has demonstrated eligibility to receive a Grant from CAF ("Eligibility Requirements") and has been approved by CAF to
conduct Campaigns: and
D. In the event Campaign winner resides in the U.S., Partner wishes to be the recipient of Donations raised through the Platform in
connection with the Campaigns
Now therefore, for good and valuable consideration. the parties hereto agree as follows:
1. SCOPE OF SERVICES- Endow1 shall provide the following
services for the Partner during the Term of the Agreement
(the "Services"):
a. Operate Campaigns on the Platform during the Term.
Only" here the winner of the Campaign resides in the
United States of America.
b. Leverage the Partner Marks (pursuant to Section 5 of this
Agreement) for use on the Platform to encourage
Donations to the Campaigns.
c. Arrange for or donate prizing for each Campaign.
2. CONSIDERATION As consideration for the Services:
a. Partner will grant to Endow1 a limited license to use
me Partner Marks (pursuant to Section 5 of this
Agreement) on me Platform.
b. For each Campaign, Endow1 will retain the Endow1
Fee Amount (as defined in Section 6 of this
Agreement), pursuant to the calculation in Section 6 of
this Agreement,
3. TERM AND TERMINATION
a. Term. This Agreement shall be effective as of’ the Effective
Date and this Agreement shall continue until the
conclusion of the 2023 MLB All-Star game (the "Term”)
unless earlier terminated as set forth herein; provided,
however, that in the event that there are obligations of the
Parties to any Donor still to be performed as of the date of
termination, me Term shall be automatically extended until
the completion of such obligations.
b. Termination for Breach. Any Party may terminate this
Agreement immediately if another Party has materially
breached its obligations under this Agreement and such
breach is not cured within fourteen (14) days after written
notice from the non-breaching Party ("Event of Default").
Such termination to be effective thirty (30) days after
delivery of the notice of breach.
c. Termination by Partner. Partner may terminate this
Agreement at any time upon written notice in the event the
National Hockey League terminates its Agreement with
Endow1, or if CAFA or Endow1 do any of me following: (i)
make any material misrepresentations (ii) are convicted of
a crime or performed activity punishable as a
misdemeanor or a felony, or (iii) otherwise conduct
activities in a manner that causes or could cause public
disparagement of the Partner’s good name or goodwill.
d.
Termination for Bankruptcy. This Agreement
shall terminate automatically if a Party makes an
assignment of its assets for the benefit of creditors,
applies for me appointment of a receiver or trustee of its
assets, or files (or has filed against it) any petition under
the bankruptcy or insolvency laws of any jurisdiction, or
is adjudged to be bankrupt or insolvent; provided.
however, that in me event of any of the foregoing.
Endow1 acknowledges and agrees that: (i) the date of
such event shall constitute the close of Donation
collection: and (ii) all Donations collected as of the date
of such event shall be the property of CAF for the
benefit of Partner and not Endow1.
e. Effects of Termination. Upon termination of this
Agreement for any reason: (i) all licenses shall be
revoked; (ii) any Grants that have accrued prior to the
date of termination shall be accelerated and due; and
(iii) Endow1 shall remove all Partner content (such as
Partner name and logo, and Partner related signage,
displays. brochures or other marketing materials) from
Endow1’s website, offices, facilities and locations and
Endow1 controlled media. and post a mutually agreed
to notice regarding such termination to adequately
inform the public regarding the cancellation of one or
more of the prizes and rewards and me disposition of
Donations made prior to such termination.
4. MARKETING
a. Marketing schedule, Partner will promote each
Campaign pursuant to me promotional schedule agreed
to by the parties and set form in Exhibit "A" attached
hereto and incorporated herein by reference
("Marketing Schedule"), as the same may be amended
from time to time.
5. INTELLECTUAL PROPERTY AND DATA
a. Partner Marks. In consideration of the Grant, Partner
grants to Endow 1 and MLBAM and its affiliates (‘
MLBAM ") a worldwide. revocable. limited, non-
exclusive license to use the trademark(s) and the
official logo(s) of Partner (”Partner Marks”) during me
Term of the Agreement on me Platform and
otherwise in connection with the Campaigns,
including the creation, development, and authorship
of any online or offline materials ("Materials”) to
encourage Platform
engagement in connection with the Campaigns. Neither
Endow1, MLBAM nor CAF shall obtain any ownership
rights in any Partner Mark, which shall remain in the
sole and exclusive ownership of Partner, including all
goodwill therein. Prior to any public use, Endow1 or
MLBAM shall provide to Partner a representative mock-
up of its intended use of each Partner Mark in the form
that it intends to use in connection with the Platform (the
"Representative Sample"). Once Partner approves the
Representative Sample and Materials, Endow1and
MLBAM may use such Partner Marks and Materials
without additional approvals in all forms of media
connection with the platform, provided that (i) such use
does not materially deviate from the approved
Representative Sample and Materials without Partner’s
prior written approval, and (ii) the Partner Marks and
Materials are placed on third-party media platforms and
outlets that are pre-approved by the Partner (“Approved
Platform”), Partner reserves the right to object to any
use of its trademarks that deviate from Partner’s graphic
standards.
In the event Endow1 promotes a Campaign on an
Approved Platform, Partner agrees to provide Endow1
with a limited license to grant such Platform a world-
wide, limited. non-exclusive, non- transferrable, royalty-
free license to use the Partner Marks for the limited
purpose of promoting the Campaign.
b. Materials. Excluding any Partner Marks. all content,
results, deliverables and other work product developed
or produced by Endow1 in connection with the Platform
(in whatever stage of completion), whether or not in a
tangible medium of expression ("Work Product"), will
belong exclusively to Endow1. Further, the Platform is
and shall remain the sole and exclusive property of
Endow1, including all right. title and interest therein.
Partner shall have an unlimited, royalty-free and
perpetual license to access to and use the Materials.
c. Donor Data. The parties acknowledge and confirm that.
except as provided herein, Partner shall not have any
rights to any Donor Data collected during the Term.
“Donor Data” includes but is not limited to name, email
address and phone number of Donors. Notwithstanding
the foregoing, for each Campaign to, which this
Agreement relates. subject to the Major League
Baseball’s prior written approval (which may be withheld
by the Major League Baseball in its sole discretion), at
the point where Endow1 collects Donor Data, Endow1
agrees to include marketing consent language specified
by Partner and as requested by Partner, in consultation
with sell, give, or transfer the Donor Data to any other
non-Partner party without the applicable Donor’s prior
written consent.
6. PAYMENTS
a. Grant Calculation. For each Campaign where the winner
resides in the United tales of America, Endow1 shall
deduct and retain (subject to the other terms of this
Section 6) a portion of the total funds raised from all
Donations for such Campaign to cover its various.
applicable fees, costs and expenses, and shall remit the
remaining funds to CAF, as set forth below, within five
(5) business days after the close of the Campaign.
Within ten (10) days after the close of the Campaign.
CAF shall make a grant of such funds, less the CAF Fee
Amount, to the Partner (the amount granted to Partner
by CAF, “Grant”). For each Campaign, Endow1 shall
remit sufficient funds to CAF such that the Grant is equal
to the greater of (i) the Cash Prize Amount for such
Campaign and (ii) the Net Donations (Gross Donations
minus Endow1 Fee Amount minus Endow1 Expense
Retention Amount minus CAF Fee Amount minus Cash
Prize Amount).
b. Timing. ln the event estimated et Donations are greater
than the Cash Prize Amount, Endow1 shall remit the
estimated Net Donations to CAF within five (5) business
days after the close of the Campaign. Within forty-five
(45) days after the fulfillment of all prizes and rewards
for the Campaign, Endow1 shall remit to CAF the
remaining balance of the net Donations, if any, CAF
shall make a grant of the remaining Net Donations, less
any additional CAF Fee Amount, to Partner within ten
(10) business days following its receipt of the remaining
Net donations (“Final Grant”).
With respect to each Campaign:
(A) “Prize Amount” means the amount required to be
paid to the winner of such Campaign pursuant to
Campaign rules.
(B) “Endow1 Expense retention Amount” Means any
and all expenses for this campaign including the
prize shall be deducted.
(C) “CAF Fee Amount” means three percent (3%) of
Donations collected under such Campaign, minus
all expenses.
(D) “Endow1 Fee Amount" means the aggregate
Donations collected under such Campaign minus
the Cash Prize Amount for such Campaign;
multiplied by 10%. Provided that Endow1 will not
retain more than Three hundred and Sixty-Five
Thousand Dollars ($365,000 USD) in the aggregate
as Endow1’s Fee Amounts during the Term (the
"Endow1 Fee Cap").
7. TRANSPARENCY AND REPORTING. Endow1 shall
maintain and preserve for at least two (2) years complete
and accurate records relating to the applicable Platform
activity and of the calculation of the Grant. Endow1 will
provide the Partner with records relating to the applicable
Platform activity upon request.
8. INDEMNIFICATION AND REPORTING.
a. By Endow1: Endow1 represents and warrants that:
i. it shall develop and operate the Platform and
perform the Services and its obligations hereunder
in compliance with all applicable federal, state, and
local laws. regulations and requirements, including
state registration requirements related to
commercial fundraisers. and the applicable laws,
regulations. and requirements of any other
province, country, or territory from which it accepts
Donations or otherwise operates or promotes
("Other Territories"). and that it has obtained and
shall maintain all state, federal and local
registrations required to perform the services and
operate the Platform;
ii. it will operate the Platform and perform the services
in a professional manner. and use commercially
reasonable efforts to promote the Platform and
Services; and
iii. it has the power and authority to enter into this
Agreement and to carry out the transactions
contemplated by this Agreement.
b. By Partner. Partner represents and warrants that:
i. it performs acts of a charitable purpose and will
continue to satisfy CAF’s Eligibility Requirements
throughout the Term of this Agreement;
ii. all Grants will be used for acts of charitable
purposes and to pay for Partner’s charitable
purposes related expense;
iii. it is registered with all applicable governmental,
state, and taxing authorities to permit it to lawfully
and legally receive the Grant;
iv. it has the power and authority to enter into this
Agreement and to carry out the transactions
contemplated by this Agreement and it will
comply with all applicable federal, state, and local
laws, regulations, and requirements in performing
its obligations hereunder; and
v. it will provide Endow1 with accurate and complete
information reasonably necessary for conducting
the Services and effecting Donations.
c. Indemnification.
i. Endow1 shall indemnify and hold Partner, its officers.
directors, and employees (together. the "Partner
indemnitees") harmless from and against any loss,
liability, damage. cost, or expense, including
reasonable attorneys’ expenses. arising out of any
claims or suits against the Partner indemnitees by
reason of any breach of its obligations under this
Agreement or for any failure of CAF to remit a Grant in
the full amount due hereunder.
ii. Partner shall indemnify and hold Endow1, CAF, and its
and their officers, directors, and employees (together,
the "Endow1 indemnitees”) harmless from any loss,
liability, damage, cost. or expense, including
reasonable attorneys’ expenses, arising out of any
claims or suits against the Endow1 indemnitees by
reason of the Partner Marks or, Partner’s material
breach of any of its obligations under this Agreement.
iii. A Party seeking indemnification (”Indemnified Party”)
will provide the Party from which indemnification is
sought ("Indemnifying Party”) with prompt written
notice of the relevant claim (provided that the failure to
provide prompt notice will only relieve the Indemnifying
Party of its obligations to the extent it is materially
prejudiced by such failure) and permit the Indemnifying
Party to control the defense, settlement or compromise
of such claim. The Indemnified Party may employ
counsel at its own expense to assist it with respect to
such claim; provided, however, that if such counsel is
necessary because the Indemnifying Party does not
assume control, the Indemnifying Party will be
responsible for the expense of such counsel. Neither
Party shall have authority to settle any claim on behalf
of the other.
9. DISCLAIMER; LIMITATIONS ON LIABILITY. EXCEPT
FOR THE SPECIFIC REPRESENTATIONS AND
WARRANTIES PROVIDED HEREIN OR AS
EXPRESSLY SET FORTH IN THIS SECTION EACH
PARTY SPECIFICALLY DISCLAIMS ALL OTHER
REPRESENTATIONS, WARRANTIES, AND
GUARANTEES, WHETHER EXPRESS, STATUTORY,
OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES
OF ACCURACY, QUIET ENJOYMENT, TITLE, NON-
INFRINGEMENT, MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE. THE PLATFORM IS
PROVIDED ON AN “AS IS” AND "AS AVAILABLE"
BASIS AND ENDOW1 DOES NOT WARRANT THAT IT
WILL BE UNINTERRUPTED, ERROR-FREE, SECURE,
OR RELIABLE. NEITHER PARTY SHALL BE LIABLE
FOR SPECIAL, INCIDENTAL. OR CONSEQUENTIAL
DAMAGES OR LOST PROFITS (HOWEVER ARISING,
INCLUDING NEGLIGENCE) ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT.
.
The Parties are, and will at all times be deemed to be
independent contractors with respect to the subject matter of this
Agreement. Neither this Agreement, nor any terms and
conditions contained herein, may be construed as creating or
constituting a partnership, joint venture, employment. agency,
fiduciary, or other similar relationship between the parties except
for the Appointment. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware
exclusive of its rules respecting choice of law. Any action, suit, or
other proceeding brought by a Party hereunder against the other
shall be brought and maintained in the courts located in the State
of Delaware. This Agreement may not be assigned by any Party
without prior written approval from the other Party. Any
unauthorized assignment shall be null and void. The remedies
provided in this Agreement shall be cumulative, and the assertion
by any Party of any right or remedy shall not preclude the
assertion by such Party of any other rights or the seeking of any
other remedies. This Agreement represents the entire agreement
between Endow1 and Partner with respect to the subject mailer
hereof, and supersedes any prior or contemporaneous
arrangement, understanding, negotiations, or agreement with
respect thereto. The failure of any Party to enforce any of the
provisions of this Agreement or the waiver thereof in any instance
shall not be construed as a general waiver or relinquishment on
its part of such provision or any other provision, but the same
shall nevertheless be and remain in full force and effect. The
invalidity or unenforceability of any provision of this Agreement
shall in no manner affect the validity or enforceability of any other
provision hereof, unless the removal of that provision results in a
material change to this Agreement. In such a case. the parties
will negotiate in good faith to agree upon a replacement
provision. If the parties are unable to agree upon such a
replacement provision within a reasonable period of time, any
Party may terminate this Agreement on written notice to the other
Parties. In addition to those responsibilities that accrue during the
term of the Agreement, Sections 3(e)(ii), 5, 6, 7, 8b-c, 9, 10, and
11 shall survive any termination or expiration of this Agreement
as shall any other sections, or portions of sections, as applicable,
that are expressly described as surviving, or applying after
termination or expiration of this Agreement. The Parties shall not
be subject to a declaration of an Event of Default in the
circumstances which, through no fault of any party, such party is
unable to or prevented from fulfilling its obligations under this
Agreement. Such circumstances shall but without limitation
include Acts of God (fire, earthquakes, floods, pandemic, etc.),
labor disputes, unavailability of product inventory, or
unavailability and failure of third-party suppliers to provide either
Party with essential technical, electronic or internet connectivity
products or services (collectively, "Force Majeure Events").
10. CONFIDENTIALITY; PUBLICITY.
a. Generally. A Party’s "Confidential Information"
is defined as any confidential or proprietary
information of a Party which is disclosed to the
other Party in a writing marked confidential or, if
disclosed orally, is identified as confidential at
the time of disclosure and is subsequently
reduced to a writing marked confidential and
delivered to the other Party within ten (10) days
of disclosure, or any information the receiving
Party knew or should have known, under the
circumstances, was considered confidential or
proprietary
by the
disclosing Party. Each
Party shall hold the other
Party’s Confidential Information in confidence
and shall not disclose such Confidential
Information to third parties nor use the other
Party’s Confidential Information for any purpose
other than as required to perform under this
Agreement. Such restrictions shall not apply to
information which (a) is already known by the
recipient (b) becomes, through no act or fault of
the recipient. publicly known. (c) is received by
recipient from a third-party without a restriction
on disclosure or use or (d) is independently
developed by recipient without reference to the
Confidential information. The restriction on
disclosure shall not apply to Confidential
Information which is required to be disclosed by
a Court or Government agency.
b. Awards. The Parties will use their best efforts to
participate in and mutually agree upon any
submissions or entries for any industry award
programs, such as advertising awards.
marketing award, fundraising awards and
similar contests (”Awards") provided that
Partner shall not submit any promotional
advertising, video content, press releases.
marketing literature or other promotional
materials ("Press Materials") for consideration
for an Award without prior written consent of
Endow1.
11. GENERAL. Each Party shall have full and sole
responsibility for the acts and omissions of its
employees, representatives, and subcontractors.
and for all mailers relating to their conditions of
employment or retention.
In the event that either Party is delayed in or prevented
from performing its obligations under this Agreement due
to a Force Majeure Event then, upon written notice to the
other Party: (a) the affected obligations under this
Agreement will be suspended to the extent reasonably
necessary during the period of the Force Majeure Event, and
(b) the Party will not have any liability to the other Party or any
other person in connection with such suspended obligations. The
Section and paragraph headings used herein are
intended to be descriptive only and shall have no effect
on the meaning or interpretation of the provisions of this
Agreement. This Agreement may be executed in two or
more counterparts, each of which shall be an original.
All notices and other communications which are required or may
be given under this Agreement shall be in writing and shall be
deemed to have been duly given if delivered by electronic
mail to the addresses set forth as follows for Endow1,
Adam J. Stass, ajs@endow1.com and to Boys & Girls
Clubs America fsanchez@bgca.org for Partner. Notices
shall be deemed given when sent.
IN WITNESS WHEREOF, the Parties. by their authorized
signatures in the spaces provided below, have caused
this Agreement to be executed as of the Effective Date.
By the signature below. this contract has been approved
and accepted by all of Partner’s necessary Parties.
BOYS & GIRLS CLUBS AMERICA
Signature: _______________________________________________
Name: _______________________________________________
Title: _______________________________________________
Date: _______________________________________________
XXX., INC
Signature: _______________________________________________
Name: _______________________________________________
Title: _______________________________________________
Date: _______________________________________________
MARKETING SCHEDULEEXHIBIT A
The
Partner
and
Endow1
agree to
jointly
develop
a
marketing plan for each Campaign. No marketing expenses may be
approved without the express approval of the Partner. Channels used may include. but not limited to:
Players to send a unique link for the Campaign to their fan
base
Social Media
Emails
Radio or Newspaper
Text messages
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