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ZOUNDZ MUSIC FOR PETS

SHELTER PARTICIPATION AGREEMENT

 

This Participation Agreement (“Agreement”) is entered into as of the date it is electronically agreed to (the “Effective Date”), by and between MFTPS, Inc., an Connecticut corporation doing business as Zoundz (the “Company”), with an address of 700 Canal Street, Stamford, CT 06902, and the animal shelter who is electronically acknowledging and agreeing to be bound by this Agreement (the “Shelter”).

Recitals

WHEREAS, the Company is in the business of providing proprietary music for dogs and cats using its Zoundz Music for Pets mobile application (the “Program”);

WHEREAS, the goal of the Program is improved dog and cat health, welfare, and well-being, as well as enhancing the owner and pet connection;

WHEREAS, Shelter provides shelter, nutrition and medical services to dogs and cats that have no or unknown owners, and looks to reunite such pets with their owners, or to find new owners and forever homes;

WHEREAS, subject to the terms and conditions of this Agreement, the Company desires to provide certain music support services to Shelter in connection with the Program and Shelter desires to utilize the Program on the terms set forth herein.

NOW THEREFORE, in consideration of the mutual covenants and agreements of the parties herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

Agreement

  1. Support Services. The Company agrees to provide the following music and technical services (the “Support Services”) to Shelter during the Term (as defined below):
    1. The Company will provide the Program to the Shelter;
    2. The Company will list the Shelter on the Company’s website, along with URL links to the Shelter’s website, if desired by the Shelter;
    3. The Company will provide reasonable technical support to the Shelter for setting up the Program; and
    4. The Company will provide marketing materials to the Shelter that allows individuals adopting dogs or cats to have a free trial of the Program at their home.

Notwithstanding the forgoing, the Shelter will be responsible for the hardware necessary to utilize the Program, including but not limited to, a smart speaker (e.g., Amazon Alexa, Google Nest Speakers, Apple HomePod, etc.), other speakers, wires, and interface devices (e.g., device running iOS or Android operating systems capable of running the Company’s mobile application).

  1. License to Use Program Marks.
    1. During the Term, the Company grants to the Shelter a limited, non-exclusive, royalty-free, non-sublicenseable, non-transferable right to use the Company’s branding service marks, copyrights and logos, as such are provided to Shelter by Company, as they now exist or may be modified during the Term (collectively, the “Program Marks”), solely in connection with online and print materials used in connection with the promotion of the Program.
    2. Notwithstanding the preceding, the Shelter shall have no right to use the Program Marks in any manner whatsoever with a product or service other than as provided herein.
    3. All descriptive, promotional, marketing, and advertising materials using the Program Marks shall be accessible from the Zoundz website and may be used by the Shelter. Marks, copyrights and logos not herein specifically granted and licensed to “PROVIDER” are reserved to the Company, except as otherwise agreed to by the Company.
    4. The Company represents that it has all rights and authorities to allow Shelter to use the Program Marks as contemplated under this Agreement. The Program Marks are, and shall remain at all times, the sole and exclusive property of the Company, and may be used by the Shelter only in accordance with the terms of this Agreement.  Upon any termination of this Agreement, Shelter shall promptly cease use of the Program Marks.
    5. As part of the Company’s Harmony project, the Shelter will be recognized by the Company as meeting the program requirements for the Harmony project, but in no event will the Company be deemed to have formally endorsed or recommended the Shelter. Shelter agrees it will not directly or indirectly state, imply, or suggest that Shelter are endorsed or recommended by the Company.
  2. License to Use Shelter Marks.
    1. During the Term, Shelter grants to the Company a limited, non-exclusive, royalty-free right to use its trademarks, service marks, copyrights and logos, as they now exist or may be modified during the Term (collectively, the “Shelter Marks”), solely in connection with the Support Services described herein.
    2. Shelter represents that it has all rights and authorities to allow the Company to use the Shelter Marks as contemplated under this Agreement. The Shelter Marks are, and shall remain at all times, the sole and exclusive property of Shelter, and may be used by the Company only in accordance with the terms of this Agreement.  Upon any termination of this Agreement, the Company shall promptly cease use of the Shelter Marks.
  3. Pricing Discounts and Special Services. Shelter agrees it will on a continuous basis during the Term make available to adopting pet parents the specified discounts and/or special services as Zoundz may offer from time to time.
  4. Compensation. The Company will provide the Support Services and license to use the Program at no cost to the Shelter.  Both parties agree the marketing and usage of the Program by the Shelter shall constitute sufficient consideration to the Company for the purposes of this Agreement.
  5. Non-Exclusivity. Shelter acknowledges and agrees that the rights licensed and granted to Shelter in this Agreement are limited and non-exclusive, and, accordingly, the Company and its affiliates may at any time without notice to Shelter grant similar licenses and rights to other persons or entities that may offer products and/or services that are similar to and/or are competitive with the Shelter.
  6. Relationship of the Parties. The only relationship among the parties is the contractual relationship established by this Agreement.  Nothing contained in this Agreement shall be construed to create the relationship of principal and agent among the parties.  Further, nothing in the Agreement is intended nor shall it be construed to create a partnership or joint venture among the parties.  No party shall have the right to exercise any control over the hours, office location, rentals or employees of any other party.  No employment relationship shall be created hereunder.
  7. Representations and Warranties. The Company and Shelter each represent and warrant to the other that: (i) it is authorized to execute this Agreement and to act in accordance herewith; (ii) it will comply with all applicable state, federal and local laws and regulations, including without limitations, state unfair and deceptive practices and consumer privacy protection laws; (iii) it will comply with all applicable requirements regarding the imposition and payment of taxes, assessments, and governmental charges imposed on or in connection with its activities pursuant to this Agreement; and (iv) it will conduct and operate its business in the manner necessary to promptly perform its obligations hereunder.
  8. Indemnification. Shelter agrees it shall indemnify and hold the Company and its respective members, managers, officers, employees, affiliates, agents, successors, and assigns harmless against any claim, loss, liability, suit or judgment (including reasonable attorney’s fees and costs of defense or investigation related thereto) which arises from, as a result of or in connection with: (i) Shelter’s breach of this Agreement; (ii) any error, omission, negligence, misrepresentation, wrongful action or fault of Shelter or its successors and assigns, directors, managers, officers, employees or agents; and (iii) Shelter’s products and/or services.  This Section 10 shall survive the expiration or other termination of the Agreement for a period of three (3) years.
  9. Term & Termination.
    1. Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and, unless terminated sooner in accordance with the remaining provisions of this Section, shall expire on the first anniversary of the Effective Date. Thereafter, this Agreement shall automatically renew for successive periods of one (1) year unless a notice of non-renewal is given by either party to the other, in writing, at least thirty (30) days prior to the end of the Term or any renewal period.
    2. Termination with Notice. Each party may terminate this Agreement for any reason or no reason by providing the other party with thirty (30) days prior written notice of termination.
    3. Termination for Breach. If either party is in breach of this Agreement or any obligation under this Agreement, the non-breaching party may provide a written notice to the breaching party specifying the nature of the breach. The breaching party shall have ten (10) business days from receipt of such notice to correct the breach. If the breach is not cured within such period, the non-breaching party may immediately terminate this Agreement by providing the breaching party with written notice of termination. Consent to extend the ten (10) business day period shall not be withheld unreasonably if the breaching party has commenced cure efforts during such period and pursues cure of the breach in good faith.

 

  1. Termination for Insolvency. Each party may terminate this Agreement immediately upon written notice to the other party if any of the other party ceases conducting business, becomes insolvent, makes a general assignment for the benefit of creditors, has a receiver appointed for its business or assets, or is subject to voluntary or involuntary bankruptcy proceedings.
  2. Return of Materials. On or before the effective date of termination, the Shelter shall return any materials provided by Zoundz (e.g., signs, new pet owner free trial cards, etc.) and take down any electronic or physical signage stating that Zoundz is being provided or used.  The shipping cost to return such materials shall be paid by Zoundz, or in the alternative Zoundz may request the Shelter to destroy such physical items, and/or delete such digital items, and certify such destruction or deletion to Zoundz.
  1. Miscellaneous.
    1. Notice. All notices, requests, demands, claims, and other communications hereunder shall be in writing and addressed to the intended recipient as set forth in the introductory paragraph (or such other address as may be provided by written or electronic notice to the other party in accordance with the provisions hereof). Any notice, request, demand, claim, or other communication hereunder shall be deemed duly given (i) when delivered personally to the recipient, (ii) one business day after being sent to the recipient by reputable overnight courier service (charges prepaid), (iii) one business day after being sent to the recipient by facsimile transmission or electronic mail, or (iv) four business days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid.
    2. Entire Agreement and Amendment. This agreement, including any Exhibits attached hereto, constitutes the entire understanding among the parties with respect to this Agreement and supersedes all prior written and oral proposals, understanding, agreements and representations, all of which are merged herein.  No amendment or modification of the Agreement shall be effective unless it is in writing and executed by all of the parties hereto.
    3. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Connecticut, without regard to its conflicts of law rules or principles. Each party hereby irrevocably consents to the sole and exclusive jurisdiction and venue of the courts of the State of Connecticut and any Federal court located in the State of Connecticut in connection with any action or proceeding arising out of or relating to this Agreement, or the breach thereof.  Each party hereby irrevocably waives any objection that such party may now or hereafter have to the bringing of any action or proceeding in such jurisdiction in respect of this Agreement.  The prevailing party in any such action shall be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
    4. Waiver. The waiver by either party of a default or breach of any term or condition of the Agreement by the other party shall not operate or be construed as a waiver of any subsequent default or breach.
    5. Assignment. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. No party shall be able to assign any of its rights or delegate its obligations under this Agreement without the prior written approval of the other party hereto, except that the Company may assign this Agreement to its affiliates or successors.
    6. Severability. If any provision of this Agreement is determined to be unenforceable, such provision shall be ineffective only to the extent unenforceable and the remainder of such provision and all other provisions of the Agreement shall remain in full force and effect.
    7. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.

[End of Agreement]