MARKETING ASSISTANCE AGREEMENT

 

THIS MARKETING ASSISTANCE AGREEMENT (“Agreement”) is entered into effective as of the date listed on the above-submitted form(“the Effective Date”), by and between the Daniel and Kimberly Chew Foundation, a Texas nonprofit corporation (the “Foundation”), and the above listed nonprofit, a Texas nonprofit (the “Company”).

 

WITNESSETH:

 

WHEREAS, the Company operates as nonprofit, qualified as such under both Texas and Federal law, and provides nonprofit services in and around Williamson County, Texas;

 

WHEREAS, the Company desires to engage the assistance and services of the Foundation in marketing or increasing exposure of the Company to potential donors, volunteers and clients through a searchable presence on the internet;

 

WHEREAS, the Foundation seeks to offer assistance to underutilized family and community focused nonprofit organizations within the Central Texas area in fulfilling the specific nonprofit organization’s mission for serving those in need.  In order to meet such goal, The Foundation maintains a website found at h(the “Foundation Website”), which is intended as a clearinghouse for information about various nonprofit organizations deemed by the Foundation, as determined solely within the discretion of the Foundation, to be centered around, governed by, and operated according to conservative Christian values. By agreeing to include the Company as part of this website, the Foundation hopes to broaden public awareness of and accessibility to services, volunteer support, donations, etc. for the Company, and agrees to provide such assistance as the Foundation deems appropriate pursuant to the terms of this Agreement;

 

WHEREAS, the parties understand the Foundation will not be fundraising or soliciting donations of any kind on the Foundation Website for itself or the Company; rather, the use of the Foundation Website is solely intended to provide information to the public about to the Company such that the public may independently evaluate and pursue services or opportunities directly with the Company; and  

 

WHEREAS, the parties desire to set forth the terms of their understanding in writing. 

 

NOW, THEREFORE, for and in consideration of the mutual agreements and promises contained herein, including the recitals above, - the mutuality, adequacy, and sufficiency all of which are hereby acknowledged - and intending to be legally bound hereby, the parties agree as follows:

 

1. Services/Assistance

 

The Company and the Foundation shall jointly contribute their knowledge and skill to help create marketing and branding strategies, and materials for use, publication, and distribution to the public by means of creating and including the Company’s subpage (the “Subpage”) as part of the Foundation Website (the “Services”). Beginning on the Effective Date of this Agreement and continuing thereafter for twelve (12) consecutive months, subject to the terms for early termination set forth below, the Foundation agrees to provide its Services, as determined in cooperation with the Company, at no charge to the Company.

 

The services to be provided by the Foundation under this Agreement are as an independent contractor.  The Foundation will have the absolute right and sole discretion to control and determine the methods and the means of performing the Services in any manner it may deem appropriate.  The Foundation shall be responsible for all permits required for its work, if any.  The Foundation shall be responsible for all expenses required in the performance of the Services and the hosting of the Foundation Website.  The Foundation shall provide all equipment, tools, and supplies necessary to perform its Services.  The Foundation shall indemnify the Company, including attorney’s fees and costs, and hold harmless the Company for any claims of whatever nature made as a result of the Foundation’s actions or the actions of its employees or agents, or performance under the terms of this Agreement.

 

The Company acknowledges and agrees that the Foundation will merely use its best efforts in providing the Services to the Company but makes no representation or guarantee as to any measurable result or specific benefit to the Company from such services.

 

2. Company’s Obligations and Right of Revision

 

The Company shall provide to the Foundation copies of any of the Company’s formation, governing, or financial disclosure documents requested by the Foundation from time to time.  The Company will cooperate with the Foundation in developing the concept for the Company’s Subpage, and will use reasonable efforts to provide original content, stories, images, videos, logos, etc. to the Foundation for inclusion on the Company’s Subpage on the Foundation Website.  In providing such materials, the Company represents and warrants to the Foundation, upon which the Foundation may rely without further independent investigation, that Company has all rights, releases, and legal authority needed for the use of all names, images, and content contained therein; and Company shall provide written proof of all such authority within three (3) days of any written request by the Foundation, regardless of whether before or after the use.  The Company shall maintain the exclusive responsibility of revision with respect to the content, materials, and information produced under this Agreement, and can modify, edit or revise the same in any way it desires once produced.  The Company shall indemnify the Foundation, including attorney’s fees and costs, and hold harmless the Foundation for any claims of whatever nature made as a result of the Company’s actions or the actions of its employees or agents, or performance under the terms of this Agreement.

 

The Company acknowledges and agrees that this Agreement is not nor may it be construed as an endorsement of the Company by the Foundation (either as an organization or as to the quality of services it provides to the pubic); and the Company shall not use the names of the Foundation or its principals (specifically Daniel and Kimberly Chew), officers, and agents in any way related to the Company or its activities and services without the prior written consent of the Foundation, with this approval require being specific and continuing as to each and every proposed use from time to time.

 

3. Copyright

 

The Company shall maintain all rights to the materials and services produced as part of the Company’s Subpage, including but not limited to the exclusive copyright over the materials produced.  Should the Company desire to retain the materials and services, it may do so by providing a written request and a digital storage device to the Foundation for that purpose within five (5) days following the termination of this Agreement and removal of Company’s Subpage from the Foundation Website.  The Foundation forever releases any rights and copyright claim it may have to the products, materials, and services produced under state or federal law, including the Copyright Act, 17 U.S.C. §§ 106 et seq, and expressly assigns its copyright interest to the Company.  Foundation shall not copy, duplicate or distribute the products, materials, and services produced, or grant permission for others to do the same, without the express written consent of the Company. 

 

4. Representation of Originality

 

Each party represents and warrants to the other that the products, materials, and services produced are original and originate from the party providing it, and it does not violate the copyright of third parties (whether in limited passages or in its entirety).  Each party shall indemnify the other, including attorney’s fees and costs, and hold harmless the other for any and all claims of whatever nature made as a result of its plagiarism, copyright violation or other violation of the representations contained herein. 

 

5. Assignment

 

This Agreement shall inure to the benefit of and be binding upon the Foundation and the Company, their affiliates, subsidiaries, successors and assigns.  This Agreement may not be assigned by the Company. 

 

6. Entire Agreement; Modification

 

This Agreement sets forth the entire agreement between the parties as to the subject matter of this Agreement and supersedes all prior agreements, commitments, representations, writings, and discussions between them whether written or oral, with respect to the subject matter hereof. This Agreement may not be amended except in writing and signed by the proper and duly authorized representative of the party to be bound thereby.  

 

  7. Termination

 

Either party may terminate this Agreement, with or without cause, upon seven (7) days written notice to the other party.  Should neither party have terminated this Agreement prior to the initial 12-month term set forth in section 1 above, then this Agreement will automatically renew for successive terms of 12 months each until terminated.

 

8. Non-Waiver

 

No party shall be deemed to have waived any right, power or privilege under this Agreement or any provision hereof unless such waiver shall have been duly executed in writing and acknowledged by the party to be charged with such waiver.  The failure of any party to enforce at any time any of the provisions of this Agreement shall in no way be construed as a waiver of such provisions nor in any way affect the validity of this Agreement or any part thereof, or the right of any party to thereafter enforce each and every such provision. 

 

9. Severability; Replacement

 

If any provision of this Agreement or its applications to any person or circumstances is adjudged invalid or unenforceable, then a suitable and equitable provision shall be substituted therefore in order to carry out, so far as may be valid and enforceable, the intent and purpose of this Agreement including the invalid or unenforceable provision.

 

  10. Notice

 

Any notice or other communication to be given or served upon any party hereto in connection with this Agreement must be in writing and delivered to the party at the following addresses (or any other change of address given by notice by a party):

 

If to the Foundation: Attn: Kimberly Chew or Daniel Chew at kchew@austin.rr

 

If to the Company via the information provided on this form.

 

11. Counterparts

 

This Agreement may be executed in any number of counterparts, and each such counterpart shall be deemed an original instrument. 

 

12. Governing Law; Attorney’s Fees and Court Costs

 

This Agreement shall be governed by and interpreted in accordance with the laws of the State of Texas.  The parties acknowledge that performance of all obligations shall occur in Williamson County, Texas.  In the event suit is brought to enforce any of the provisions of this Agreement, the prevailing party shall be entitled to recover such party’s costs and expenses of suit, and any appeals there from, including reasonable attorney’s fees. 

 

13. No Partnership 

 

Nothing contained herein and no act by either party in the performance of, or in any way related to, this Agreement will be construed to create or evidence in any manner an employment, partnership, agency or joint venture relationship between the parties hereto.

 

IN WITNESS WEHREOF, the parties have duly executed this Agreement to have been effective as of the Effective Date.