|AGENCY AND PROMOTION AGREEMENT|
|Charity Registration Number:|
|Street Address:||245 Eglinton Avenue East|
|City / Province:||Toronto, Ontario|
|Postal Code:||M4P 3J1|
|Monica Da Ponte|
|Title / Position:||Manager, Marketing Alliances|
|Postal Code:||M4P 3J1|
|A.||Charity Tunes Inc. (Charity Tunes), whose office is at 1187 Brimley Road, Toronto, Ontario, Canada M1P 3G5, operates a website under the URL www.charitytunes.com ("the Website") and offers web-based fundraising services. When we refer to the Website in this agreement, we are referring to all of the charity tunes related websites, including www.charitytunes.ca and other URL's containing the name charitytunes with various extensions that exist now or that will exist in the future.|
|B.||The Charity seeks to raise money and awareness of its cause through participation in promotional programs with Charity Tunes|
The parties agree that the following terms and conditions shall govern their relationship:
Participation in the Website
1. Charity Tunes agrees that it will:
1.1 Collect for the Charity an amount equal to a minimum of 10% of the purchase price (which does not include taxes or delivery fees that are added to the purchase price) (the "Purchase Price") of a song or other digital content or products sold on its Website ("Products"), or more than 10% if so agreed by the Artist and Charity Tunes (the Donation(s)), for which anyone making a purchase from the Website (the Customer) selects the Charity as the recipient of the donation.
1.2 Include the Charity in its database of charities connected to the Website and make available on the Website information on the Charity as approved by the Charity, including the name, location, URL, logo and a summary description of the Charity.
1.3 Notify the Charity if any artist or other licensor of Products (the "Artist") has elected to donate a portion of the Artists proceeds from the Purchase Price to the Charity and Charity Tunes shall account for such proceeds in calculating monies owed by Charity Tunes to the Charity.
1.4 Ensure that all content and information sold or otherwise made available on the Website is not be in violation of any law or regulation or in breach any intellectual property rights of a third party.
1.5 Pursuant to sales of the Products on the Website, make all required payments to the Artist and any royalty organizations entitled to payment.
1.6 Program its technology to disallow donations to be made to the Charity for any of the Products that the Charity deems obscene (and for which the Charity has provided Charity Tunes written notice).
1.7 Provide the Charity with special "tagged" link formats ("Special Link(s)") and graphical artwork to be used in linking to the Website. The Special Links will permit tracking, reporting, and donation calculations. The Special Links will include, without limitation, one or more of the following types of links to Charity Tunes Website:
|(a)||Portal Page Links|
|(c)||Search Results Link|
|(e)||General Link To Charity Tunes Home Page.|
1.8 Collect for the Charity an amount equal to 10% of the Purchase Price of Products that have been purchased through Special Links from the Charity's website.
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|Accounting and Reporting|
1.9 Provide the Charity with a secure, password protected user name to a secure, personalized webpage through which Charity Tunes will make available the following information:
|(a)||number of hits that the Charity's profile on the Website has received;|
|(b)||details on traffic on the Website that comes from links on the Charity's website;|
|(c)||details of the monies that has been collected by Charity Tunes on behalf of the Charity, including:|
|i.||percentages of Product sales where the Charity has been selected by the purchaser;|
|ii.||percentages of Product sales that result from a link from the Charity's website;|
|iii.||additional donations received by Charity Tunes for the Charity;|
|iv.||proceeds from any special promotions in which the Charity participates;|
|v.||proceeds from sales of more than 10% where a portion of the Artists' proceeds have been donated by the Artist to the Charity; and|
|vi.||the dates of each donation;|
|(d)||details of any fees charged by Charity Tunes;|
|(e)||names and addresses of the person donating to the Charity, in a format mutually approved by the Charity and Charity Tunes, which approval shall not be unreasonably withheld, ONLY where the person has selected to make an additional donation to the Charity and requested a tax receipt, OR where the purchaser has expressly agreed to allowing Charity Tunes to share his or her information with the Charity;|
|(f)||a description of the top 5 Products for which purchases have resulted in donations for the Charity; and|
|(g)||a statement detailing the amount of all donations Charity Tunes has collected on behalf of Charity Tunes, less any fees payable to Charity Tunes by the Charity and a description of the amount owing by Charity Tunes to the Charity|
|(the "Reporting Information").|
1.10 In the event that more than $100.00 is owed to the Charity by Charity Tunes for a calendar quarter, within thirty days of the end of the calendar quarter, Charity Tunes shall make a payment to the Charity for the full amount collected.
1.11 In the event that not more than $100.00 is owed to the Charity by Charity Tunes for a calendar quarter, such amount will carry over until the next calendar quarter until the amount collected exceeds $100.00.
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1.12 In the event that not more than $100.00 is owed to the Charity by Charity Tunes by the end of a calendar year, within thirty days of the end of the calendar year, Charity Tunes will make a payment to the Charity for the amount owed.
1.13 Allow the Charity to conduct, at any time, an audit by a Public Company Accounting Oversight Board approved auditor, or another auditor approved in writing by Charity Tunes prior to commencement of the audit (the "Approved Auditor") at the Charity's expense, to ensure the accuracy of the Reporting Information, and, if the Approved Auditor reports that Charity Tunes has underreported amounts owed to the Charity with an error of 10% or more during any fiscal year, Charity Tunes shall reimburse the Charity for all of the Approved Auditor's fees incurred by the Charity for the audit of Charity Tunes. Charity Tunes shall also pay any amounts that the Approved Auditor deems payable by Charity Tunes to the Charity.
1.14 Seek approval from the charity on all materials that incorporate the Charity logo and or trademark statements.
1.15 Subject to above section 1.14, where Charity Tunes deems it appropriate, it may create free promotional items to promote the Charity and any promotions that Charity Tunes and the Charity enter into. Such promotional items may include free greeting cards.
2. The Charity agrees that it shall:
2.1 Ensure that the content and information supplied by it to Charity Tunes for display on the Website will not be in violation of any law or regulation or be defamatory, obscene or breach any intellectual property rights of a third party or breach any right or duty owed to a third party.
2.2 Provide Charity Tunes with accurate and complete contact and payment information, and immediately notify Charity Tunes if any of the contact or payment information changes.
2.3 Ensure that each of Special Links on any area of the website are set up so that web traffic and performance may be tracked and reported; this may include the set-up of redirect links.
2.4 In the event that any Approved Auditor retained by the Charity to audit Charity Tunes determines that Charity Tunes has overpaid the Charity by any amount, the Charity shall pay Charity Tunes the amount determined payable.
3. Special Promotions
3.1 The parties agree that they may work together on a promotional program designed to increase visits and sales at the Charity Tunes website and to raise money and awareness for the Charity (the "Special Promotion"). For each of the Special Promotions, each party shall:
|Agency and Promotion Agreement - Page 4|
|(a)||include, at its own cost, a description of the Special Promotion on their respective web sites;|
|(b)||include, at its own cost, a description of the Special Promotion in at least one e-mail communication with its supporters and customers that have opted in or otherwise agreed to receive information on special offers and promotions;|
|(c)||make available an executive or other employee or consultant for interviews with the press for a period of at least two weeks;|
|(d)||work together with the other party to develop content for ,press releases and press packages, that are distributed to the press to describe the Special Promotion;|
|(e)||where an artist, record label or other content owner has agreed to participate in a Special Promotion, each party agrees to honor any agreement it makes with such content owner relating to the Special Promotion;|
|(f)||meaningfully consult with the other on an ongoing basis regarding the development of any promotional ads and copy, provided that WWF-Canada will have no obligation to incur financial costs in developing promotional ads.|
3.2 It shall be the responsibility of Charity Tunes to cover the expenses for the creation of press materials relating to each Special Promotion and to distribute them to the press. Charity Tunes may cover the expenses by involving a corporate sponsor, who is also acceptable to the Charity of the Special Promotion. In the event that a corporate sponsor is involved in any Special Promotion, , Charity Tunes shall provide details to the Charity of all expenses relating to the Special Promotion and all monies received from the Corporate Sponsorship.
4. Customers Purchasing
4.1 Order Processing and Reporting. Charity Tunes will process all product orders placed by customers who follow Special Links to Charity Tunes Website (the "Customers"). Charity Tunes reserves the right to reject orders that do not comply with any requirements that Charity Tunes has and may periodically establish. Charity Tunes will be responsible for all aspects of order processing and fulfillment. Among other things, Charity Tunes will prepare order forms, process payments and handle customer service. Charity Tunes will track sales made to Customers who purchase products using Special Links from your Website to Charity Tunes Website and will make available to you reports summarizing sales activity. Charity Tunes will use commercially reasonable efforts to present accurate information in the reports.
4.2 Customers. Customers who buy products through the Affiliate Program will be deemed to be customers of Charity Tunes. Accordingly, all of Charity Tunes rules, policies, and operating procedures concerning customer orders, customer service and product sales will apply to those Customers. Charity Tunes may change Charity Tunes policies and operating procedures at any time. Product prices and availability may vary from time to time, and such price changes may affect donations which you receive.
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|5.||Identification as a Charity Tunes Partner|
|5.1||Charity Tunes will make available to the Charity a small graphic image that identifies the Charity as a Charity Tunes Promotional Partner. The Charity shall display this logo somewhere on its website or web space.|
Tax Receipts and Additional Donations.
|6.1||The Charity agrees to allow Charity Tunes to collect additional money donations on behalf of the Charity that are not part of the Purchase Price. Charity Tunes may collect these amounts through:|
buttons or links during the check out process on the Website that allow customers to add donations to their purchase;
|(b)||links or buttons on the page of the Website providing information on the Charity that allow customers to make donations; or|
|(c)||other links or buttons throughout the Website that are approved by the Charity that allow customers to make donations|
6.2 As a service fee for accepting and collecting donations, Charity Tunes shall charge 6% of the gross amount of the Additional Donations. This amount will be charged to WWF-Canada as a separate line item. Out of this amount, Charity Tunes shall pay all merchant processing and credit card fees.
6.3 The Charity shall provide to Charity Tunes a list of information it requires in order to issue tax receipts to donors to the Charity. Charity Tunes agrees to collect such information and provide it to the Charity, on a monthly basis, where Charity Tunes has received money on behalf of the Charity for which a tax receipt may be issued. Issuing tax receipts shall be sole responsibility of the Charity.
|7.1||Charity License to Charity Tunes. The Charity grants Charity Tunes a limited nonexclusive, nontransferable, revocable right to use the Charity's logo, trademarks, graphic images and text provided to Charity Tunes by the Charity for use on the Website or in conjunction with Special Promotions. In addition, the Charity grants to Charity Tunes a limited, nontransferable, nonexclusive, right to reproduce and use all graphic images and other materials provided to Charity Tunes, in Canada, solely for the purpose of creating Special Links connecting the Charitys Website or web space to Charity Tunes Website and promoting the sale of products on Charity Tunes Website. Charity Tunes may not modify the Charity's logo, trademarks, graphic images or text unless such modification is first approved in writin g by the Charity. Charity Tunes will seek The Charitys approval on all materials that make use of the charitys logo and or trademark statements. The Charity may revoke the license at any time by giving Charity Tunes written notice. The Charity reserves all of its rights in the logo, graphic images, text, any other images, the Charity's trade names and trademarks, and all other intellectual property rights.|
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7.2 Charity Tunes License to the Charity. Charity Tunes grants the Charity a limited nonexclusive, nontransferable, revocable right to use the logo, graphic images and text provided to the Charity by Charity Tunes, for use on the Charity's website or web space, for the purposes of promoting or describing any Special Promotions or otherwise promoting sales of Charity Tunes' Products, or for identifying the Charity's website or web space as a Promotional Partner of Charity Tunes. In addition, Charity Tunes grants the Charity a limited, nontransferable, nonexclusive, worldwide right to reproduce and use all graphic images and other materials provided to the Charity for the purpose of creating Special Links connecting the Charity's website or web space to the Charity Tunes Website and promoting the sale of Products on the Charity Tunes Website. The Charity may not modify the graphic images or text, or any other of Charity Tunes images, in any way, without written approval from Charity Tunes. Charity Tunes may revoke the license at any time by giving the Charity written notice. Charity Tunes reserves all of its rights in the graphic images, text, any other images, Charity Tunes trade names and trademarks, and all other intellectual property rights.
8. Term and Termination.
8.1 Term. Subject to the other provisions of this section (8), the term of this Agreement shall be for one year from the date of this agreement. At the end of the term it shall automatically renew for one further year unless cancelled in writing by either party 30 days prior to the end of the term.
8.2 In the event that Charity Tunes is in breach of any term of this Agreement, and Charity Tunes has failed to cure the breach within 14 days of receiving written notification of breach from the Charity, the Charity shall have the right to terminate this Agreement immediately by sending written notice to Charity Tunes.
8.3 In the event that the Charity is in breach of any term of this Agreement, and the Charity has failed to cure the breach within 14 days of receiving written notification of breach from Charity Tunes, Charity Tunes shall have the write to terminate this Agreement immediately by sending written notice to the Charity.
8.4 Either party may terminate this Agreement upon 30 days notice in writing to the other party.
|8.5||Upon termination of this Agreement, the following shall occur:|
|Charity Tunes shall within 14 days pay any outstanding amounts owed to the Charity;|
|Charity Tunes shall remove the Charity from its Charity database;|
|Charity Tunes shall immediately notify any and all Artists that have agreed to donate a portion of their sales from Products to the Charity that Charity Tunes no longer has an agreement with the Charity to collect donations on its behalf; and|
|Charity Tunes shall immediately cease collecting money on behalf of the Charity.|
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9. Mutual Indemnification
9.1 Each party will, during the term and after the termination of this Agreement, indemnify and hold harmless the other from any loss, damage, claim, cost, expense or liability whatsoever that the other may incur, suffer or be required to pay pursuant to any claim, demand, action, suit, litigation, charge, complaint, prosecution or other proceeding that may be made or asserted against or affect the party indemnified by reason of an alleged breach by the other of the intellectual property rights of a third party, or by reason of a wrongful or negligent act or omission on the part of the indemnifying party, its employees, servants, agents, subcontractors or volunteers in the performance of obligations under this Agreement.
10.1 Except as otherwise agreed by the parties in writing, this Agreement shall be held in confidence by each of the parties and shall not be disclosed by a party in any manner whatsoever other than (i) as necessary to carry out or enforce its provisions, (ii) as required by the securities laws applicable to Charity Tunes in any jurisdiction, including but not limited to the Securities Act of 1933, the Securities and Exchange Act of 1934, and the rules, regulations and amendments promulgated therunder (collectively the Securities Laws), or (iii) as otherwise required by law. If, pursuant to subpoena or otherwise, disclosure of this Agreement is sought by compulsion of law, the party from whom such disclosure is demanded shall promptly provide the other party with sufficient notice in advance of such proposed disclosure to enable the other party to be heard with respect to any such proposed disclosure or to otherwise respond to any such compulsion; provided, however that the parties may disclose the Agreement and its terms as needed to their respective legal and other professional advisors, provided that such recipients are bound or likewise agree to maintain the confidentiality of this Agreement; provided further that the parties may disclose this Agreement and its terms in any subsequent litigation between the parties to enforce this Agreement. Notwithstanding the foregoing, nothing herein shall be construed to require that notice of disclosure be given by a party disclosing any information herein pursuant to any Securities Laws.
Both parties hereby agree to the terms and conditions contained in this Agreement.
|Signed this 17 day of December, 2007|
|Per:||/s/ Christina Topp|
|Name of Authorized Signatory:||Christina Topp|
|Title:||Director of Marketing|
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|Signed this 3rd day of January, 2008|
|CHARITY TUNES INC.|
|Per:||/s/ Robin Ram|
|Name of Authorized Signatory:||Robin Ram|
|Title:||President, Chief Executive Officer|
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