2019 PROGRAM AGREEMENT
This FATHERS EVE® PROGRAM AGREEMENT (the “Agreement”) is an agreement by and between FATHERS EVE, LLC, a Minnesota limited liability company (“we,” “us” or “our”), and you or the entity you represent (“you” or “your”) and contains the terms and conditions that govern your promotion and hosting of a “Fathers Eve” event on Saturday, June 15, 2019 at the geographic location requested by you (“Designated Territory”) in the web pages or documents used by you to request permission to host such an event.
THIS AGREEMENT TAKES EFFECT AFTER YOU CLICK A “SUBMIT” OR “I ACCEPT” CHECK BOX OR BUTTON PRESENTED WITH THESE TERMS AND YOU RECEIVE SUBSEQUENT CONFIRMATION FROM US THAT YOUR DESIGNATED TERRITORY HAS BEEN APPROVED (THE “EFFECTIVE DATE”). YOU REPRESENT TO US THAT YOU ARE LAWFULLY ABLE TO ENTER INTO CONTRACTS. IF YOU ARE ENTERING INTO THIS AGREEMENT FOR AN ENTITY, YOU REPRESENT TO US THAT YOU HAVE LEGAL AUTHORITY TO BIND THAT ENTITY. IF YOU DID NOT RECEIVE CONFIRMATION FROM US THAT YOUR DESIGNATED TERRITORY HAS BEEN APPROVED OR YOU DO NOT AGREE WITH THE TERMS AND CONDITION OF THIS AGREEMENT, THEN YOU DO NOT HAVE OUR PERMISSION TO HOLD A FATHERS EVE EVENT.
We have developed certain concepts, policies, procedures and techniques for hosting events and experiences for men, and particularly, fathers, to attend, featuring entertainment, activities, community service, and sponsorships (a “Fathers Eve Event”), on the day before Father’s Day, a day which we designate as “Fathers Eve ,” using other proprietary names and information we have developed. You would like to promote and host a Fathers Eve Event this year. We have agreed to work with you under this Agreement.
Therefore, in consideration of our mutual promises, and for other good and valuable consideration, the receipt and sufficiency of which we each acknowledge, you and we agree as follows:
1. Grant of License. Subject to the terms and conditions of this Agreement, we hereby grant to you a limited, personal, revocable, non-exclusive, non-sublicensable, one-time license (the “License”) to use the concepts, methods, procedures and techniques we have developed for marketing and hosting Fathers Eve Events (collectively, “Our Policies”), and to use the “Fathers Eve” name, logo and taglines , and other proprietary names or marks we have developed (the “Trademarks”) solely in marketing and hosting one or more Fathers Eve Events on June 15, 2019, in the Designated Territory. We will provide to you information concerning Our Policies. Our Policies will remain our property, and you will maintain them in confidence. We will also provide, upon your reasonable request, during normal business hours, phone and email support to you in promoting and hosting your Fathers Eve Events. We and our representatives will have the right to attend your Fathers Eve Events, without cost, for the purposes of observing and inspecting the activities, and interviewing attendees and your employees and agents, without prior notice. All references in this Agreement to “your Fathers Eve Events,” will include references to the Fathers Eve Events marketed and hosted by you under this Agreement.
2. Marketing and Sponsorships.
a. Internet. We will maintain a website for marketing Fathers Eve Events under the Trademarks (“Our Website”). At your request, we will provide you (i) a webpage listing and links on Our Website for the advertisement of your Fathers Eve Events, and (ii) a Facebook event page for your Fathers Eve Events, all of which will be based on templates we provide. You hereby authorize us to include on these pages any additional content we desire to include, including sponsorships, advertising, promotions and solicitations, and all revenues derived therefrom belong to us. We will not be liable to you for our failure to fulfill our obligations with respect to these pages, if our failure is caused by power outages, system failures, downtimes, viruses or any other cause that is not within our exclusive control. You will advertise your Fathers Eve Events on the Internet only on the pages we provide to you and as we otherwise approve. We have agreed that you have our approval to use meetup.com, and your own website/blog, as well as Facebook, Twitter and Instagram accounts to promote your Fathers Eve Events.
b. Local Marketing. You will, at your expense, conduct local marketing campaigns and promotional programs designed primarily to promote your Fathers Eve Events (collectively, “Local Marketing”). All Local Marketing must meet our specifications. Before using any marketing or promotional materials, advertisements or other advertising not prepared by or at our direction, you must submit such items to us for our prior approval.
c. Sponsorships. You may obtain third party local, regional, and national sponsors for your Fathers Eve Events (collectively, “Your Sponsors”), and any revenues you receive from Your Sponsors will belong to you; provided, however that all Your Sponsors are subject to our prior approval. You acknowledge that we may obtain third party local, regional and national sponsors for your Fathers Eve Events or any other Fathers Eve Event (collectively, “Our Sponsors”), that any revenues we receive from Our Sponsors belong solely to us, and that in some cases, we may grant exclusive sponsorships that may preempt your ability to obtain a competing sponsorship. We reserve the right to advertise Our Sponsors and Your Sponsors on Our Website, including on the webpage for your Fathers Eve Events, and on other social media we select, and you will display any signage for Our Sponsors or Your Sponsors in the manner we prescribe at your Fathers Eve Events and on any Local Marketing.
3. Your Fathers Eve Events. You will host your Fathers Eve Events on Fathers Eve in the Designated Territory. You are responsible for all expenses you incur in promoting and hosting your Fathers Eve Events. You agree, however, to comply with Our Policies pertaining to the promotion and operation of your Fathers Eve Events. You will not sell any tangible products at your Fathers Eve Events, without our prior approval, which approval may be withheld in our sole discretion. Under no circumstances will you have the right to license any supplier or others to use or reproduce any of the Trademarks on any products or otherwise. However, if we offer any products for sale to consumers at any Fathers Eve Event we host, we will make those products available for you to purchase at wholesale prices (which may include a profit to us). You are not obligated to purchase any such products, but if you choose to do so, you must pay us the purchase price for such products in advance, unless we make other credit arrangements with you. All such items will be shipped F.O.B. St. Paul, Minnesota.
4. Our Trademarks. You will operate under, and prominently display, the Trademarks in the marketing and operation of your Fathers Eve Events in the manner we specify, and pursuant to Our Policies. We have the right to review and approve your use of the Trademarks. You agree to correct any uses that we deem, in our sole discretion, to fall below our standards of quality. You may not use all or part of any of the Trademarks, or any similar name, word, symbol or variant thereof, in a company name, domain name, account name, profile or URL, except as we specifically approve. You acknowledge that we own the Trademarks and your right to use the Trademarks is derived solely from this Agreement. All such usage and any goodwill established thereby will inure to our exclusive benefit. You waive any right to challenge our entitlement or ownership of the Trademarks.
5. Consideration to Us – Information. You are not required to pay any fees to us or our affiliates under this Agreement. Rather, we have granted the License to you to enable us to have a test on the viability of Fathers Eve Events in various markets. Thus, in consideration for the grant of the License, you agree to provide to us such information as we may require from time to time, including but not limited to budgets, contracts you enter into with third parties, attendee names and addresses (including email addresses), marketing and sponsorship and operating information, sales and expense information, and any other pertinent information concerning the marketing and hosting of your Fathers Eve Events, and such other information relating to your Fathers Eve Events as from time to time we may reasonably require (collectively, the “Information”). We may use the Information in any manner and for any purpose we, in our sole and absolute judgment, deem appropriate. All Information we obtain from you (including, but not limited to, attendee names and addresses) or about your Fathers Eve Events, and all revenues we derive from the Information, is our property. You are responsible for obtaining from your attendees appropriate permission for you to share their personal information with us. You may use the Information to the extent lawful and at your sole risk and responsibility, but only in connection with marketing and hosting your Fathers Eve Events. The Information will become our Confidential Information, which we may use for any reason we deem necessary or appropriate. You and we will comply with all applicable laws pertaining to the privacy and security of personal information, including, but not limited to, local, regional and national requirements applicable to your Fathers Eve Events.
6. Indemnification. You agree to indemnify us against, and reimburse us for, all obligations and damages for which we are liable and for all costs we reasonably incur in the defense of any such claim brought against us, or in any such action in which we are named as a party, arising out of any act or omission of yours (i) as a result of any activities occurring at, by, for or through your Fathers Eve Events, or (ii) in breach of the terms of this Agreement. Such indemnification will include, without limitation, reasonable attorneys’ fees, costs of investigation or proof of facts, court costs, other litigation expenses and travel and living expenses. We will have the right to defend any such claim against us.
7. Restrictive Covenant. You acknowledge that we must be protected against the potential for unfair competition by your use of Our Policies, assistance and trade secrets in direct competition with us. You therefore agree that you will not, in 2020 or 2021, either directly or indirectly: (a) operate, own, market, host, manage or be employed by or consult with, any event specifically directed toward fathers (whether or not directed to men in general) that offer activities and entertainment to fathers, whether or not they include community service opportunities or sponsorships on the Thursday or Friday immediately preceding Father’s Day, on Father’s Eve, on Father’s Day, or on the day (or night) following Father’s Day (a “Competitive Event”) other than one operated under a valid agreement with us; or (b) divert or attempt to divert any of Our Sponsors to any competitor of ours, or to sponsor a Competitive Event, or attempt to persuade any of Our Sponsors to terminate their business relationship with us. You agree that the restriction contained in this Section 7 is reasonable and necessary to protect our interests and the interests of our other licensees. If you violate this restriction, then in addition to damages we incur for which you will be liable, we will be entitled to injunctive relief to prevent the continuation of such breach.
8. Term; Termination. The term of this Agreement and the License will begin on the Effective Date and expire on June 30, 2019, unless earlier terminated as set forth below. Upon expiration of the term, you will have no right to renew this Agreement. We also may terminate this Agreement and the License effective immediately upon your receipt of notice of termination, if you breach this Agreement or fail to comply with any provision of this Agreement or any of Our Policies, and you do not correct such failure within seven (7) days after notice to you. You agree, upon expiration or termination of this Agreement and the License, to not indicate directly or indirectly, in any manner, that you are or ever were affiliated with us in any capacity, identify yourself or any business as associated with us, or use, in any manner or for any purpose, any of the Trademarks.
9. Warranty Disclaimers. In connection with your Fathers Eve Events, you may have interactions with third parties such as venue operators, food and beverage vendors, and others. Any such interactions are solely between you and these third parties. We disclaim any liability with respect to such interactions, and you release us and our affiliates from any liability related to such interactions.
THE TRADEMARKS, OUR POLICIES AND SERVICES UNDER THIS AGREEMENT ARE PROVIDED “AS IS.” WE AND OUR AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE TRADEMARKS, OUR POLICIES, FATHERS EVE EVENTS, AND SERVICES. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE AND OUR AFFILIATES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
10. Limitation of Liability. IN NO EVENT SHALL EITHER WE OR OUR AFFILIATES BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR FATHERS EVE EVENTS OR THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, WARRANTY, STRICT LIABILITY OR OTHERWISE, EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.
UNDER NO CIRCUMSTANCES WHATSOEVER SHALL WE OR OUR AFFILIATES’ AGGREGATE LIABILITY RESULTING FROM OR RELATING TO YOUR FATHERS EVE EVENTS OR THIS AGREEMENT EXCEED FIFTY U.S. DOLLARS ($50.00).
11. Independent Contractor. You are a licensee of ours. You will not represent or imply to any person that this Agreement authorizes you to act as our agent. Neither we nor you will be obligated by any agreement, representation or warranty made by the other.
12. Notices. All communications and notices to be made or given pursuant to this Agreement must be in the English language. We may provide any notice to you under this Agreement by sending a message to the email address we have on file for you. Notice to you shall be deemed given when we send the notice email to such email address on file, whether or not you actually receive the email. It is your responsibility to keep your email address on file with us current. You may give notice to us at any time by any letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to us at the following address: Fathers Eve, LLC, Attn: John Francis, 2280 Riverwood Place, St. Paul, MN 55014. Notice to us shall be deemed given when received by us.
13. Governing Law; Disputes. Except to the extent governed by the United States Trademark Act of 1946 (Lanham Act; 15 U.S.C. § 1050 et seq.), as amended, this Agreement is governed by the laws of the State of Minnesota. The parties each agree that any litigation arising from this Agreement must be exclusively venued in the state or federal courts located in Ramsey County, Minnesota. You waive any objection you may have to either the jurisdiction or venue in such courts and you consent to personal jurisdiction and venue in such courts. If any dispute concerning this Agreement, or the relationship of the parties under this Agreement, proceeds to litigation, the prevailing party will be awarded its attorneys’ fees in such litigation.
14. Miscellaneous. The sections of this Agreement which, by their terms apply following the termination or expiration of this Agreement, will survive the termination or expiration of this Agreement. You may not assign, transfer, delegate or subcontract any obligations under this Agreement without our prior written consent. We may assign, transfer, delegate or subcontract any obligations under this without your consent and without providing notice to you. No purported amendment or waiver of any provision hereof will be binding unless set forth in a written document signed by both parties. Any waiver will be limited to the circumstance or event specifically referenced in the written waiver document and will not be deemed a waiver of any other term hereof or of the same circumstance or event upon any recurrence thereof. This Agreement is binding upon and will inure to the benefit of all of the parties hereto, their heirs, executors, administrators, permitted assigns and successors in interest. This Agreement includes Our Policies and sets forth the entire understanding between the parties, there being no terms, conditions, warranties or representations other than those contained herein, and will supersede any previous agreements regarding the subject matter hereof. If the terms of this document are inconsistent with the terms contained in Our Policies, the terms contained in this document will control.