I. SPARK FACTORY & Affiliate PARTNERSHIP AGREEMENT
This Partnership Agreement, made and entered into by and between Pilates Web Co dba Spark Factory™ https://sparkfactory.io located at 455 Corporation Lane Suite 275 Virginia Beach VA 23462 (hereinafter referred to as “Spark Factory”), and Located at , is to evidence the following:
II. RECITALSSpark Factory is an accomplished marketing agency focused on increasing revenue and expanding business growth in a wide variety of industries. Spark Factory is led by a highly experienced management team, providing visionary strategy and support for their in-house stable of experts. Spark Factory executives have assembled the finest grouping of Internet marketing professionals one can find in any digital agency. Spark Factory’s Pay Per Click, Google Shopping, Exclusive Lead Generation & Social Media solutions maximize online presence for companies and help increase organic search results for organizational websites and guarantee outstanding results.
A. WHEREAS, in consideration of mutual promises, Spark Factory and Affiliate desire to enter into this Agreement (the “Contract”) and agree to abide by and comply with fulfilling all respects of the covenants herein set forth; and
B. WHEREAS, as a consequence of this agreement, Spark Factory and Affiliate may become deeply engaged with each other’s business methods, including, but not limited to, unique technical services, management practices, business techniques, clients and their cases; and
C. WHEREAS, it is mutually agreed, while engaged with each other, neither Spark Factory nor Affiliate shall enter into agreements with other companies or organizations which compete with the business of either Spark Factory or Affiliate.
D. IN ADDITION, Both Spark Factory and Affiliate would be irreparably injured, and the value of and the goodwill of either Spark Factory or Affiliate would be irreparably damaged, if either Spark Factory or Affiliate was to disclose (otherwise than as permitted in this agreement) any of the confidential information concerning Spark Factory’s or the Affiliate’s business which either Spark Factory or Affiliate has acquired about the other, or will acquire about the other, as a result of this agreement, or if either was to solicit the clients in competition with either Spark Factory or Affiliate, or if either was otherwise to impair the goodwill of Spark Factory or Affiliate; and
E. WHEREAS, Both Spark Factory and Affiliate acknowledge and agree that Spark Factory and Affiliate needs appropriate safeguards to protect both its investments in their business, relationships within the government and the public, as well as to maintain the confidentiality of the information held within; and
F. WHEREAS, Both Spark Factory and Affiliate desire the other to perform such duties required under the Contract subject to and in accordance with the terms and conditions hereinafter set forth.
G. NOW, THEREFORE, in consideration of the mutual promises hereinafter set forth, Spark Factory and Affiliate hereby agree as follows:
A. SERVICES:1. Affiliate: During the term of this Contract, Affiliate will make reasonable efforts to leverage Affiliate’s brand and credibility in the Veteran market to help promote and market Spark Factory’s “Social Media All-in-One Plans,” “Exclusive Lead Programs,” “Google Shopping,” and “Content Marketing (SEO)” programs:
2. Affiliate: During the term of this Contract, Affiliate will allow Spark Factory to use Affiliate’s logo and name on any and all of Spark Factory’s marketing material to demonstrate Spark Factory’s commitment to patriotically supporting our Nation’s Warriors.
3. Spark Factory: During the term of this Contract, Spark Factory will sell Spark Factory’s “Social Media All-in-One Plans,” “Exclusive Lead Programs,” “Google Shopping,” and “Content Marketing (SEO)” programs
4. Spark Factory: For the term of this Contract, Spark Factory will provide Spark Factory’s programs to Affiliate to support Affiliate’s promotion of this contract and for Affiliate to use to enhance awareness of its mission and for its own fundraising efforts.
a. Spark Factory will serve in an oversight position with no fees and provide recommendations and advice on how to improve Affiliate’s website, social media, lead generation, etc. However, the Affiliate staff will conduct the work.
B. PAYMENTS:a. Each purchase of a Spark Factory’s programs by the Affilate referral will be paid for by the referral ordering the program, not Affiliate (This would be subject to change should Affiliate establish a separate fund to purchase services).
b. Each payout to Affiliate, in accordance to the agreement herein, will be contributed to Affiliate by Spark Factory within 20 days of the following month. Meaning all sales contributed by Affiliate via this program from July 1, 2020, to July 31, 2020, will be accounted for and paid out via ACH payment (3 days processing) within 20 days thereafter.
C. TERM:1. This Contract and the relationship hereunder shall be for a minimum term of 12 months commencing as of , herein referred to as the “initial term.”
2. After the “initial term” both parties have the right to evaluate this entire contract and if desired renegotiate terms. Silence (if no renegotiation occurs after the initial term) means this contract will automatically renew as the “renewal term” for one year (the initial term, together with any and all renewal terms, are hereinafter collectively referred to as the “Contract Period”), and shall be automatically renewed from year to year unless either Spark Factory or Affiliate terminate the agreement.
3. Either Spark Factory or Affiliate may terminate this agreement, in writing, with 30 days’ notice, for any reason.
4. Spark Factory will continue to honor its commitment to making donations to Affiliate, in accordance with the agreements herein, based upon purchases of any Spark Factory’s programs which occur prior to termination of this agreement and based upon any new agreements made up to 90 days after the termination of this agreement. This is to take into account new contracts established between Veterans and Spark Factory as a result of Affiliate’s advertising, marketing, and/or direct mail programs which Affiliate may have initiated prior to termination of this agreement.
D. COVENANTS OF NON-DISCLOSURE1. During the term of this Contract, Affiliate and Spark Factory shall both use reasonable efforts to further and promote both Spark Factory’s business and Affiliate’s fundraising efforts.
2. Neither Affiliate nor Spark Factory shall, at any time during the term of this Contract, or thereafter, directly or indirectly, use for Affiliate’s or Spark Factory’s own benefit or purposes for the association, or business organization, or disclose (except in the performance of Affiliate’s or Spark Factory’s duties hereunder) in any manner to any person, firm, partnership, association, or business organization, any trade secrets, information, know-how, or knowledge relating to the other’s organization, to include technical services, business methods and techniques, market development programs, revenues, costs, management practices, manuals contracts, documents, designs, plans or partner’s belonging to, or relating to the affairs of either Affiliate or Spark Factory except where required in good faith to transact the business of the Affiliate and the Spark Factory during the term of this Contract; and
3. To provide to either Affiliate or Spark Factory, at either’s request and in any event within three (3) days after the termination of Contract, in good condition, reasonable wear and tear excepted, all documentation and records which are the property of the other and any and all copies thereof, including, but not limited to, all manuals, promotional and instructional materials, and similar aids and equipment, all reports as well as all equipment and other property in the other’s hands or under the other’s control at the time of the termination of Contract hereunder; and
4. To keep in strict confidence all trade information, technical services, management practices, business methods and techniques, lists, trade secrets, case information - especially those still active, and other confidential information concerning Affiliate’s or Spark Factory ‘s business, clients, and its methods of doing business.
E. NON-DISPARAGEMENT:1. Affiliate and Spark Factory agree they shall not disparage one another during the period covered by this agreement and beyond, regardless of when, or who terminates the agreement.
2. For purposes of this section, “disparage” means any negative statement, whether written or oral, or images, to include, but not limited to posts to social media (e.g., Facebook, Twitter, LinkedIn, Instagram, etc.) or comments during media engagements (e.g., interviews via radio, TV, newspaper, etc.) by Affiliate’s officers, directors, or employees about Spark Factory or by Spark Factory about Affiliate, its officers, directors, employees, former Warrior Fund clients, current Warrior Fund clients, and/or attorneys retained by Warrior Fund supported Warriors.
3. Both Parties agree and acknowledge this non-disparagement provision is a material term of this Agreement, the absence of which would have resulted in Affiliate and Spark Factory refusing to enter into this Agreement.
4. Both parties agree that if a breach were to occur, it would be difficult to determine actual damages. Based on what the parties presently know, they agree that $10,000.00 is a reasonable estimate of the damages that would accrue if a breach occurred in the future. Both parties agree that the amount of liquidated damages is fair and reasonable.
F. ARBITRATION. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The number of arbitrators shall be one. The place of arbitration shall be in Virginia Beach, VA.
G. GOVERNING LAW. This Agreement shall be construed in accordance with the applicable laws of the Commonwealth of Virginia.
H. MISCELLANEOUS:1. This Contract represents the entire Contract between the parties hereto and supersedes any other Contract’s, representations or understandings, written or oral, between the parties.
2. This Contract may be amended from time to time as the parties’ desire so long as such amendments are in writing and executed by the parties hereto.
3. The parties agree that this agreement may be electronically signed. The parties agree that the electronic signature appearing on this document is the same as handwritten signatures for the purpose of validity, enforceability, and admissibility.
V. SIGNATURESIN WITNESS WHEREOF, the parties hereto have set their hands the day first written below through digital signatures.
Signed Date: October 16, 2020
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Document Name: Affiliate Agreement
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