PARTICIPATING ORGANIZATION AGREEMENT
This PARTICIPATING ORGANIZATION AGREEMENT (“Agreement”) is entered
into and effective as of May 26, 2015 (“Effective Date”) by and between ART, CULTURE,
AND ENTERTAINMENT, INC. (“ACE”) and _______________________ (“Participating
Organization”).
RECITALS
WHEREAS, ACE is the organizer and promoter of the FooFoo Festival (the “Festival”),
which will occur in and around Pensacola, Florida, from November 5, 2015, through November
16, 2015;
WHEREAS, Participating Organization plans to host an event (the “Event”) as part of
the FooFoo Festival, and will receive a grant from ACE towards funding the Event should it
meet ACE’s requirements for the grant;
WHEREAS, ACE and Participating Organization wish to enter into this Agreement to
set forth the terms and conditions on which ACE is willing to award a grant to Participating
Organization for use exclusively for the purpose of hosting the Event;
WHEREAS, ACE, as owner of all rights (intellectual property and otherwise) in the
name “FooFoo Festival” (the “Name”), and the Festival logo (the “Logo”), has agreed to grant to
Participating Organization a license to use the Name and Logo set forth on Exhibit A hereto; and
NOW THEREFORE, in consideration of the mutual covenants and promises contained
in this Agreement and other good and valuable consideration, the parties agree as follows:
1.
Recitals. The recitals set forth above are acknowledged as true and correct and
are incorporated into the body of this Agreement by reference.
2.
Grant Funds/Program Description.
(a)
Grant. It is ACE’s intent that Participating Organization will receive $_______
from ACE to present and promote its Event in conjunction with the Festival. In order to receive
grant funds (“the Grant Funds”), Participating Organization’s proposed and actual use of the
Grant Funds must comply with the intent of the grant and meet ACE’s approval.
(b)
Program Description. At signing, Participating Organization shall provide to
ACE a detailed document that outlines how Participating Organization specifically intends to use
the Grant Funds (the “Program Description”). The Program Description must include a detailed
description of both the Event and how Participating Organization will allocate funds for that
Event (Budget).
(c)
Documentation of Expenditures. No later than 14 days after the receipt of
Grant Funds, Participating Organization shall submit to ACE complete and detailed
documentation of its expenditures of Grant Funds satisfactory to ACE in order to receive
reimbursement under the Grant. This documentation must show all expenses Participating
Organization incurred for the Event, and shall be in accordance with the expenses and budget as
detailed in the Program Description. Such documentation should include, but is not limited to,
all receipts, invoices, and any other evidence of expenditures (i.e., invoices for services from
artists and performers, invoices for venue rentals, invoices for equipment rentals, invoices for
travel expenses, etc.).
(d)
Final Report. By November 30, 2015, Participating Organization shall submit to
ACE a Final Report of all completed transactions involving Participating Organization’s
expenditure of Grant Funds, which shall include copies of cleared checks (not merely images of
written checks), bank statements, and/or any other evidence of expenditures, to demonstrate that
Participating Organization actually incurred those expenses and made those expenditures.
(e)
Repayment of Grant Funds. Participating Organization will be required to
repay all or part of the Grant Funds to ACE if any of the following occur:
(i)
Any expenditure of Grant Funds not adequately documented shall be
repaid by Participating Organization to ACE;
(ii)
Should Participating Organization fail to provide a complete, adequate,
and timely Final Report by November 30, 2015, Participating
Organization will be required to repay the Grant Funds in full to ACE by
December 15, 2015;
(iii)
Any expenditure of Grant Funds that is inconsistent with the purpose of
the Festival or the Grant;
(iv)
Any expenditure of Grant Funds that constitutes a Prohibited Use, as
detailed in Section 3 below.
3.
Prohibited Uses. Participating Organization shall not use any portion of the
Grant Funds granted herein, or any income therefrom:
(a)
To undertake any activity for any purpose other than a religious, charitable,
scientific, literary, educational, or other purpose specified in Internal Revenue
Code Section 170(c)(2)(B);
(b)
To cause any private inurement or improper private benefit to occur, or to take
any other action inconsistent with Section 501(c)(3) of the Internal Revenue
Code;
(c)
To make any substantial attempt to influence legislation in any nation or other
political unit;
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(d)
To influence in any nation or other political unit the outcome of any election for
or against any candidate for public office;
(e)
To violate any U.S. law including but not limited to laws prohibiting the support
of terrorism.
(f)
Grant funds may not be used to purchase equipment that has a unit cost of
$1,000 or more.
4.
License. Beginning on the Effective Date and subject to the terms, conditions
and restrictions set forth in this Agreement, ACE hereby grants to Participating Organization and
Participating Organization hereby accepts, a revocable, royalty-free, non-transferable, nonexclusive right, license and privilege, to use the Name and Logo, solely in connection with the
Participating Organization’s advertising and promotion for the Festival (including all
advertisements, promotional materials, and products, and reasonable extensions related thereto
and thereof). As part of this license and privilege, ACE grants to Participating Organization
permission to create an internet or web link to the Festival’s web page on Participating
Organization’s web page. For avoidance of doubt, no license to use the ACE Logo is granted to
any individual, including, but not limited to employees of Participating Organization for use in
their individual capacity. This license may be terminated by ACE in its sole discretion, in which
event said termination shall be effective upon Participating Organization’s receipt of written
notice from ACE.
5.
Use of the Festival Name and Logo. Participating Organization agrees that it:
(a)
Shall use the Festival Name and Logo (as set forth in Exhibit “A”) only in the
manner specified in this Agreement;
(b)
Shall use the Festival Name and Logo solely in connection with its advertising
and promotion for the Festival, and not for any other goods or services;
(c)
Shall not use any third party trademark or service mark in combination with the
Festival Name and Logo such that it creates a unified, composite mark, without
the written approval of ACE;
(d)
Shall not use the Festival Name and Logo in any manner which disparages the
Name and Logo, or impairs the validity, scope, title or goodwill of ACE in the
Name and Logo; and
(e)
Shall use the Festival Name and Logo in compliance with all applicable legal
requirements.
Nothing herein shall prevent the Participating Organization from using the Participating
Organization’s house mark (and/or logo) or trade name (or third party mark) in connection with
the Name and Logo (but not as a unified, composite mark).
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6.
Intellectual Property. For purposes of this Agreement, the term "Intellectual
Property" means all United States and worldwide trademarks, service marks, trade dress, logos,
copyrights, rights of authorship, inventions, patents, rights of inventorship, moral rights, rights of
publicity and privacy, trade secrets, rights under Unfair Competition and Unfair Trade Practice
laws, and all other intellectual and industrial property rights related thereto. All Intellectual
Property and related materials developed by ACE, including all trademarks, logos, and company
brands, shall remain the sole property of ACE. Any and all advertising, product, and Intellectual
Property created by Participating Organization that incorporates ACE’s Intellectual Property
shall become the property of ACE.
Participating Organization acknowledges that ACE is the owner of ACE’s Intellectual
Property (including the Festival Name and Logo), and agrees that Participating Organization will
not do anything inconsistent with such ownership, and that all uses of ACE’s Intellectual
Property by Participating Organization and all goodwill resulting therefrom shall inure to the
benefit of and be on behalf of ACE. Participating Organization agrees that nothing in this
Agreement shall give Participating Organization any right, title or interest in ACE’s Intellectual
Property, other than the right to use the Intellectual Property as expressly and specifically
authorized by ACE.
Participating Organization represents and warrants that, with the exception of ACE’s
Intellectual Property: (a) it owns all right, title and interest in and to any and all trademarks, logos,
company brands, or other Intellectual Property it uses or displays, or provides to ACE to use or
display, in connection with the Festival; (b) the use or display by Participating Organization of any
and all trademarks, logos, company brands, or other Intellectual Property does not and will not
infringe, misappropriate or otherwise violate the intellectual property or other rights of any third
party; (c) the use or display by ACE of any and all trademarks, logos, company brands, or other
Intellectual Property provided by Participating Organization does not and will not infringe,
misappropriate or otherwise violate the intellectual property or other rights of any third party; (d) it
is not aware of any asserted, unasserted or threatened claim by any third party with respect to the
use of any trademarks, logos, company brands, or other Intellectual Property it uses or displays, or
provides to ACE to use or display, in connection with the Festival, and; (e) it has the right to enter
into this Agreement, to grant the rights granted hereunder and to perform its obligations hereunder,
and that to do so will not violate or conflict with any material term or provision of its articles or
bylaws, or of any agreement, instrument, or law to which it is a party or by which it is bound.
7.
Indemnification.
(a)
General Liability. To the fullest extent permitted by applicable law, Participating
Organization will indemnify, defend, and hold harmless ACE from and against any and all loss,
damage, costs (including, but not limited to, attorneys’ fees, expert fees and expenses, and court
costs), or liability resulting from any and all demands, claims, suits, costs, fines, penalties,
proceedings, or actions of any kind or character (“Claim”) against ACE caused by, arising out of,
or related to any act or omission of Participating Organization (anyone directly or indirectly
employed by any of them, or anyone for whose acts any one of them may be liable that is in any
way associated with or connected with any obligation of Participating Organization), and
regardless of whether such loss, damage, costs, or liability may be caused by or arise out of the
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joint, concurrent, or contributory negligence of ACE; provided, however, if any Claim is
determined to have been caused by the sole negligence of the ACE, then Participating
Organization will not be liable under this section. Participating Organization’s indemnity
obligation includes, without limitation, court costs, attorneys’ fees, costs of investigation, costs
of defense, expert fees and expenses, settlements, and judgments associated with any Claims. At
ACE’s sole and absolute discretion, it may retain counsel of its choice to defend any Claim, with
all defense costs and fees.
(b)
Intellectual Property. Participating Organization shall defend, indemnify and
hold harmless ACE from and against any and all third party claims and liabilities (including, but
not limited to, attorneys’ fees, expert fees and expenses, and court costs), regardless of the form
of action, arising out of or in connection with a claim that any trademarks, logos, company
brands, or other Intellectual Property displayed or used by Participating Organization, or that it
provides to ACE to use or display, in connection with the Festival (other than the ACE Name
and Logo as set forth on Exhibit A), infringe, violate, or misappropriate a third party Intellectual
Property or proprietary right. At ACE’s sole and absolute discretion, it may retain counsel of its
choice to defend any Claim, with all defense costs and fees. Participating Organization also
agrees to cure any infringement as soon as possible by either: (a) providing non-infringing logos
or images, or; (b) obtaining the necessary permission to use the infringing logos/images (at its
own expense).
(c)
No Limitations. Participating Organization’s indemnification obligations will in
no way be limited by any limitation on the amount or type of damages, or by any compensation
or benefits payable by or for Participating Organization, under any worker’s compensation act,
employer liability act, disability act, or other employee benefit act. Participating Organization
will pay any and all attorneys’ fees, expenses, and costs incurred by ACE that relate to the
enforcement of Participating Organization’s indemnity requirements and obligations, including,
without limitation, the additional insured protection and other obligations of Participating
Organization. The indemnification obligations of Participating Organization will be independent
of and will not be limited by Participating Organization’s obligations to procure and maintain
insurance under Section 12 (Insurance) of the Agreement.
8.
Insurance.
(a)
Insurance Requirements. Participating Organization, at its expense, will procure
and maintain in effect, without interruption during the Term, policies of insurance providing, at a
minimum, the coverages and limits specified and complying with the other requirements stated
below:
(i)
Commercial General Liability insurance (or equivalent) on an
occurrence (not claims made) basis, in an amount not less than $1 million for any one
occurrence, including broad form contractual liability coverage, products liability
coverage, broad form property damage coverage, and severability of interest for each
insured. This insurance must not exclude liability coverage for bodily injury or property
damage arising from errors and omissions in the rendering of (or failure to render)
professional services.
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(ii)
Business Auto Liability insurance covering any owned, non-owned, and
hired vehicles in an amount not less than $1 million combined single limit for bodily
injury and property damage for any one occurrence. If the Participating Organization
does not have any owned autos Hired & Non-Owned Auto coverage can be provided
through an endorsement to the General Liability policy.
(b)
Subrogation. Participating Organization hereby waives and relinquishes, and if
required by the above policies, must require its insurer(s) to issue an endorsement thereto to
waive and relinquish, any right of subrogation against ACE they might possess for any policy of
insurance required under the Agreement.
(c)
Additional Insured. Participating Organization agrees to cause its insurer(s) to
issue endorsements to name ACE as an additional insured to the Commercial General Liability
insurance policy described above with respect to liability arising out of Participating
Organization’s Event.
(d)
Certificates. Participating Organization certifies it has submitted to ACE,
certificates of insurance evidencing the coverage prescribed by the Agreement and certifying the
amount and nature of such coverage, the expiration date(s) of each applicable policy, and that
such policies have been endorsed as required by the Agreement. Participating Organization will
furnish to ACE additional information concerning its insurance coverage as ACE may
reasonably request. In no event, however, will ACE’s collection and retention of such certificates
(or decision not to collect and review such certificates) create any responsibility on the part of
ACE to verify the appropriateness and validity of Participating Organization’s insurance, to
notify Participating Organization with regard to any matter related to its insurance, or to ensure
that the insurance requirements above have been satisfied; nor does such collection and retention
create a waiver by ACE of any of its rights in connection with such insurance. All such
certificates of insurance will be submitted to ACE at the following address:
Art, Culture, and Entertainment, Inc.
6120 Enterprise Drive
Pensacola, Florida 32505
(e)
Deductibles. To the extent that Participating Organization uses deductibles in
conjunction with the insurance required by the Agreement (including self-insurance), all
deductible expenses will be assumed and paid by Participating Organization and will be
considered as Participating Organization expenses and not part of reimbursable expenses
associated with the Agreement, or any indemnification obligation.
(f)
No Waiver. The obligations for Participating Organization to procure and
maintain insurance will not be construed to waive or restrict other obligations of Participating
Organization or to limit the liability of Participating Organization whether or not same is covered
by insurance.
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(g)
General Requirements. At any time during the Term, ACE may require
Participating Organization to obtain and maintain additional insurance with coverage or limits in
addition to those above described. Insurance is to be placed with insurers with a Best’s rating of
no less than A- VII or equivalent. Participating Organization’s insurance and the insurance of
any Representatives must be primary insurance with respect to the Event for ACE. Any
insurance or self-insurance maintained by ACE is in excess of Participating Organization’s
insurance and will not contribute with it.
(h)
Participating Organization’s Property. Participating Organization will be
solely responsible for and will bear the risk of loss of or damage to any property of Participating
Organization and any property for which it is responsible, wherever located, and any insurance
provided for such property will be solely at Participating Organization’s expense.
9.
Relationship of the Parties. It is mutually understood and agreed that neither
party is the agent, employee, or servant of the other. Nothing in the Agreement is intended to
create any partnership, joint venture, lease, or equity relationship, expressly or by implication,
between the parties. The parties expressly agree that the extent of their relationship consists of
ACE providing a grant funding mechanism for Participating Organization to present the Event.
Participating Organization agrees that ACE will not exercise any control over the production or
performance of the Event, and Participating Organization bears full responsibility for
preparations, construction, performance, and all other aspects of the Event. ACE assumes no
liability for any incidents or occurrences that take place in connection with the Event, including
those which result in bodily injury to attendees of the Event. Participating Organization agrees
that ACE bears no responsibility or liability for any of Participating Organization’s acts or
omissions in connection with the Event.
10.
Entire Agreement.
This Agreement contains all of the agreements,
representations and understandings of the Parties hereto and supersedes and replaces any and all
previous understandings, commitments or agreements, oral or written, related to the subject
matter hereof.
11.
Amendments, Modifications, and Non-Waiver of Rights. This Agreement
shall not be amended, modified, or extended, nor shall any waiver of any right hereunder be
effective, unless set forth in a document executed by duly authorized representatives of both
parties, specifically referencing the provision of this Agreement to be amended, modified,
extended, or waived. The failure of either party to insist upon performance of any provision of
this Agreement, or to exercise any right, remedy, or option provided herein, shall not be
construed or deemed as a waiver of the right to assert any of the same at any time thereafter.
12.
Assignment. This Agreement may not be assigned by either party without the
prior written consent of the other party, which consent may be withheld or granted in said party’s
sole discretion. Any purported assignment in violation of this clause is void. Such written
consent, if given, shall not in any manner relieve the assignor from liability for the performance
of this Agreement by its assignee.
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13.
Choice of Law; Venue; Actions. This Agreement and all disputes or
controversies arising out of or relating to this Agreement or the transactions contemplated hereby
shall be governed by, and construed in accordance with, the internal laws of the State of Florida,
without regard to the laws of any other jurisdiction that might be applied because of the conflicts
of laws principles of the State of Florida. Any legal action or proceeding arising out of or
relating to this Agreement brought by either party or its successors or assigns shall be brought
and determined in any Florida state or federal court sitting in the County of Escambia (or, if such
court lacks subject matter jurisdiction, in any appropriate Florida state or federal court), and each
of the parties hereby irrevocably submits to the exclusive jurisdiction of the aforesaid courts for
itself and with respect to its property, generally and unconditionally, with regard to any such
action or proceeding arising out of or relating to this Agreement and the transactions
contemplated hereby.
In the event of a default by either party hereto which becomes the subject of litigation,
the losing party agrees to pay the reasonable legal fees and costs (taxable or otherwise) of the
prevailing party. For purposes of this Section, a party will be considered to be the “prevailing
party” if: (a) such party initiated the litigation and substantially obtained the relief which it
sought (whether by judgment, voluntary agreement or action of the other party, trial, or
alternative dispute resolution process); (b) such party did not initiate the litigation and either (i)
received a judgment in its favor, or (ii) did not receive judgment in its favor, but the party
receiving the judgment did not substantially obtain the relief which it sought, or (c) the other
party to the litigation withdrew its claim or action without having substantially received the relief
which it was seeking. The provision of this Section shall survive the termination of this
Agreement.
14.
Counterparts. This Agreement may be executed in any number of counterparts,
all of which taken together shall constitute one and the same original, and the execution of
separate counterparts by ACE and Participating Organization shall bind ACE and Participating
Organization as if they had each executed the same counterpart. The parties agree that this
Agreement shall be deemed validly executed and delivered by a party if a party executes this
Agreement and delivers a copy of the executed Agreement to the other party by facsimile or
electronic mail.
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The parties have executed this Agreement as of the Effective Date.
ART, CULTURE, AND
ENTERTAINMENT, INC.
_______________________________
PARTICIPATING ORGANIZATION
By:
By:
Name: David Bear
Name:
Title: President
Title:
Date Signed:
Date Signed:
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EXHIBIT A
1. FooFoo Festival (the “Name”)
2. Logo (may be presented in various colors, to be approved by ACE)
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