NCSI MOONLIGHT GRANT WRITING TERMS AND CONDITIONS
PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING ON THE “I AGREE” BUTTON YOU ARE ACCEPTING THE TERMS AND CONDITIONS OF AND AGREEING TO BE BOUND BY THIS AGREEMENT.
The National Center for Social Impact (“NCSI”) and the individual grant writer (“Partner”) participating in the Moonlight Grant Writing Program enter into this MASTER AGREEMENT (“Agreement”) for the Term. In consideration of the obligations, covenants, and agreements set forth below and other valuable consideration the sufficiency of which is hereby acknowledged, the Parties have entered into this Agreement effective as of the last date of signature in the initial Order Form signed by Partner hereunder (“Effective Date”).
- “Commission” represent the percentage amount to be paid to the Partner by NCSI for the successful submission and winning of grants substantially written by the Partner and submitted by the NCSI customer.The percentage amount is based on the total funds raised as a result of the grant proposal and does not include funding for future agreements between the NCSI customer and Donor parties.
- “NCSI Customers” are those customers who have engaged NCSI to source funding and resources for their projects. NCSI reserves the right to accept or reject any potential advocacy opportunity at its discretion for any reason.
- “Confidential Information” shall mean any non-public information of the Disclosing Party or of third parties that is designated as confidential or proprietary and that derives independent value from not being generally known to the public.
- “NCSI Materials” shall mean all content, processes, documentation, and other resources that include NCSI Customer content, proposal materials, media, and other assets available to the Partner during the engagement. It also includes NCSI marketing materials, logos, business partner logos, marketing materials, technical materials, training materials, and other information of NCSI and of third parties including Confidential Information.
- “Offerings” shall mean (as the case may be):
- NCSI Offering – any and all services and products offered by NCSI for sale, lease, rent, and/or hire to the public; or
- Partner Offering – any and all services and products offered by Partner for sale, lease, rent, and/or hire to the public.
- “Partner Materials” shall mean business partner logos, marketing materials, technical materials, training materials, and other information of Partner or of third parties including Confidential Information.
- “Qualified Project” means any written agreement between the NCSI Moonlight Grant Writing Program and the Partner concerning a Customer project.
- “Non-Compete Term” shall mean two (2) years from the Date of Assignment to the NCSI Customer project.
- REFERRAL RELATIONSHIP
2.1. Program Participation
NCSI reserves the right to accept or reject any applicants to the NCSI Moonlight Grant Writing Program with or without cause.
NCSI reserves the right to terminate Partner participation in the NCSI Moonlight Grant Writing Program without restriction with or without cause.
Partner has the right to participate or terminate this agreement at any point. Partner will continue to be paid commissions for all grants submitted prior to agreement termination, including grants already awarded.
2.2. Restrictions. At no time shall Partner:
(i) make any false or misleading representations with respect to NCSI, NCSI Partners, or NCSI Customers and/or their products or services;
(ii) make any representations with respect to NCSI, NCSI Partners, or NCSI Customers and/or their Offerings that are inconsistent with documentation supplied by NCSI and NCSI Customers; or
(iii) make any offer to a Qualified Opportunity or other party that would give rise, or could reasonably be expected to give rise, to any claim or cause of action against NCSI, NCSI Partners, or NCSI Customers.
2.3. Qualifications. Partner shall be eligible to receive a Commission from NCSI when all of the following requirements are met:
(i) Partner has been approved by NCSI to engage in an NCSI Customer Moonlight Grant Writing project. NCSI reserves the sole right to refuse to approve or assign any NCSI Partner to any NCSI Customer project.
(ii) Partner approves or accepts in writing the NCSI Customer project;
(iii) Partner identifies potential grant opportunity.
(iv) Partner substantially organizes and writes NCSI Customer grant response that is submitted by the NCSI Customer. The NCSI Customer reserves the right to fail to submit the grant for any reason with or without cause.
2.4. Non-Compete Restriction. Partner will not pursue Grant Writing opportunities nor engage in grant writing sourcing, proposal preparation, proposal professional services, or proposal submission activities with NCSI Customer for a period of two (2) years following the assignment to the NCSI Customer project.
2.5. Grant of Rights. Partner is not granted any right under this Agreement or otherwise to view, inspect, possess, or know the contents of any Qualified Contract other than the amounts of fees to be paid under the Qualified Contract that relate to Partner’s Commission under this Agreement.
2.6. Reservation of Rights. NCSI reserves the right to reject a Partner proposal in its sole discretion, and may be given for any reason or no reason at all.
2.7 Grant Writing. Should NCSI express the need and desire to obtain the services of the Partner or any Partner subsidiaries for grant writing, and whereas, Partner desires to perform said services detailed in 2. Services to Be Rendered and is able to do so in a professional manner; and whereas, NCSI has selected Partner to perform these services.
Now, therefore, in consideration of the mutual promises and covenants contained herein, the parties agree to engage Partner with assistance with grant writing including grant opportunity identification, proposal writing management, proposal writing, grantor/NCSI/NCSI Customer client meetings, grant submission, and post-award contract signing. When new grant funding opportunities are identified by Partner, Partner will notify NCSI, who will approve the opportunity as qualified opportunity, for the opportunity to be eligible for Commission.
2.8. Compensation. NCSI shall pay Partner a “commission” on all funds raised for an NCSI Customer project in which Partner was assigned the project and Partner’s proposal resulted in the award of funds to the NCSI Customer. Approval of a designated Officer of NCSI will be required before an opportunity can be identified to be eligible for “commission.” Compensation rates for Partner shall be determined by NCSI and expressed in writing to Partner prior to Partner engagement.
2.9 Payment Terms. For opportunities whereby the Partner’s proposal is submitted and funding is awarded to NCSI Customer, Partner will earn commission based on the total revenue received by the NCSI Customer. Partner will not receive a commission for future NCSI Customer grant awards, including grant renewals, from the donor(s) unless agreed upon in advance by NCSI.
NCSI agrees to pay the Partner their commission within sixty (60) days of the receipt of funds to the NCSI Customer from the Donor(s).
2.10 Expenses. NCSI will pay associated travel expenses for those opportunities whereby Partner is representing NCSI and approved by a designated Officer of NCSI. Travel expenses will be submitted to NCSI within 30 days, and travel and expenses will be reviewed and paid by NCSI within 30 days of submission. No expenses will be paid by NCSI or NCSI Customers without prior written approval of a designated Officer of NCSI.
2.11 Project Acceptance and Assignment. The Partner may, at its option and in its sole and absolute discretion and without any liability to Contract,
(i) refuse to accept any or all grant writing work proposed by NCSI for policy reasons or otherwise, and
(ii) grant such credits, rebates, refunds, allowances or incur such write-offs as NCSI may determine in its sole and absolute discretion.
2.11.1. NCSI may assign multiple Partners to an NCSI Customer project with the understanding that no materials will be shared between Partners during the engagement unless approved in writing by both Partners in advance.
2.12 NCSI Obligations. NCSI shall provide the Partner, at no charge, all existing information, data, and documents, available and necessary for the carrying out of services under this agreement.
2.13 Non-Discrimination. The Partner and and any subcontractors shall not discriminate against any employee or applicant for employment to be employed in the performance of this Agreement, with respect to firing, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment because of race, religion, color, sex, age, handicap, disability, national origin, ancestry, disabled veteran status, or Vietnam-era veteran status. Breach of this section shall constitute a material breach of this Agreement.
2.14 Conflict of Interest. Partner certifies and warrants to NCSI that neither it nor any of its agents, representatives, or employees who will participate in performance of any services required by this Agreement have or will have any conflict of interest, directly or indirectly with NCSI Moonlight Grant Writing projects, NCSI Customers, or NCSI Partners.
- INTELLECTUAL PROPERTY
3.1 Confidential Information. Each Party acknowledges that during the performance of this Agreement it will have access to Confidential Information. Receiving Party agrees to maintain, and shall cause its users, employees, agents and subcontractors (as applicable) to maintain the confidentiality of the Confidential Information. Receiving Party shall take commercially reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, to protect Confidential Information. Information shall not include:
- information previously known to or independently developed by the receiving Party without reference to Confidential Information,
- information which is or becomes publicly known through no act or omission of the receiving Party, or
- information received from a third party under no confidentiality obligation with respect to the Confidential Information.
3.2 NCSI Materials. Subject to the terms and conditions contained in the Agreement, during the Term, NCSI hereby grants to Partner, and Partner hereby accepts, a personal, non- exclusive, non-transferable right and license to use the NCSI Moonlight Grant Writing Materials and NCSI Customer materials solely to perform its obligations under the Agreement. Partner acknowledges that NCSI, NCSI Customers, and NCSI Partners, or its licensors own all rights, title, and interest to their respective materials. Partner acknowledges that this Agreement does not convey to Partner any right, license, title, or interest in or to Materials.
3.3 Partner Materials. Subject to the terms and conditions contained in the Agreement, during the Term, NCSI hereby grants to the Partner, and Partner hereby accepts, a personal, non-exclusive, non-transferable right and license to use the NCSI Moonlight Grant Writing Materials and NCSI Customer Materials solely to perform its obligations under the Agreement. Partner acknowledges that NCSI, NCSI Customer, and NCSI Partners, or its licensors own all rights, title, and interest to Materials, including materials created by the Partner during the engagement. Partner acknowledges that this Agreement does not convey to NCSI any right, license, title, or interest in or to the NCSI Offerings.
3.4 Limited Use & Non-Disclosure. Receiving Party shall use the Confidential Information solely in connection with this Agreement. Receiving Party shall not disclose, directly or indirectly, any Confidential Information to third parties except to Receiving Party’s and its affiliates’ officers, directors, employees, consultants, and agents on a need-to-know basis, provided such parties have executed appropriate written agreements sufficient to enable it to comply with all the provisions of this Agreement. Receiving Party may also disclose Confidential Information in accordance with judicial or other governmental order, provided Receiving Party shall give Disclosing Party reasonable notice prior to such disclosure and shall comply with any applicable protective order or equivalent.
3.5 Restrictions. Any rights not expressly granted by NCSI are reserved by NCSI, and all implied licenses are disclaimed. Partner shall not exceed the scope of the licenses granted. Partner shall not reverse engineer, decompile, translate, adapt or disassemble, or in any way attempt to reconstruct or discover any source code of any NCSI Materials, NCSI Customer Materials, or NCSI Partner Materials by any means whatsoever. Partner shall not remove any proprietary trademark or copyright markings incorporated in, marked on or affixed to any NCSI Materials, NCSI Customer Materials, or NCSI Partner Materials, by NCSI or its licensors. Partner agrees to notify NCSI immediately of any unauthorized use of any NCSI Materials, NCSI Customer Materials, or NCSI Partner Materials it becomes aware of.
3.6 Marketing. The Partner and NCSI agree that no marketing of the Partner will be conducted to protect and preserve the confidentiality of the Partner. The Partner is awarded the ability to use NCSI and NCSI Customer marketing materials, logos, and collateral for accepted NCSI Moonlight Grant Writing assignments.
For Accepted NCSI Moonlight Grant Writing Assignments, the Partner is authorized to represent themselves as a representative of the National Center for Social Impact.
4. WARRANTIES & COVENANTS
- Compliance With Laws. Each Party represents and warrants that its performance will not be in violation of any applicable law, rule, regulation, or obligation to third parties.
- Performance. Each Party warrants that its performance under this Agreement will be provided through the use of reasonable care and in a professional and workmanlike manner.
- Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED AND STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, INTERFERENCE, MERCHANTABILITY, NON-INFRINGEMENT AND SYSTEM INTEGRATION. IF THE EXCLUSIONS SET FORTH IN THIS SECTION ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, THEN ALL IMPLIED WARRANTIES AND CONDITIONS SHALL BE LIMITED IN DURATION FOR A PERIOD OF THIRTY (30) DAYS AFTER THE EFFECTIVE DATE, AND NO IMPLIED WARRANTIES OR CONDITIONS SHALL APPLY AFTER THAT PERIOD.
5. INDEMNIFICATION & LIMITS OF LIABILITY
- Partner Indemnification. Partner agrees to defend, indemnify and hold harmless NCSI, its affiliates, and their respective licensors, directors, officers, employees, and agents from and against any and all losses, liabilities, damages and claims incurred or asserted by any third party arising out of (i) the gross negligence or intentional misconduct of Partner, or its affiliates, employees and agents; and/or (ii) use of NCSI’s Materials by Partner, or its affiliates (including their employees and agents) not in accordance with this Agreement.
- NCSI Indemnification. NCSI agrees to defend, indemnify and hold harmless Partner, its affiliates, and their respective licensors, directors, officers, employees, and agents from and against any and all losses incurred or asserted by any third party arising out of the gross negligence or intentional misconduct of NCSI, or its affiliates, employees and agents.
- Limitation of Liability. NEITHER PARTY, THEIR AFFILIATES AND THEIR LICENSORS SHALL BE LIABLE TO THE OTHER PARTY FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS OR LOST DATA) OR FOR ANY LOSSES (EVEN IF ADVISED OF THE POSSIBILITY THEREOF) OTHER THAN DIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS OF LIABILITY IN THIS AGREEMENT SHALL NOT APPLY TO LIMIT DAMAGES AS A RESULT OF
- EITHER PARTY’S BREACH OF ITS OBLIGATIONS UNDER ARTICLE 3 (INTELLECTUAL PROPERTY) OR
- EITHER PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTIONS 6.1 AND 6.2 (PARTNER INDEMNIFICATION AND NCSI INDEMNIFICATION).
- Termination Without Cause. Either Party may terminate this Agreement without cause and for its convenience upon thirty (30) days written notice to the other Party.
- Effect of Termination. Upon expiration or termination of this Agreement for any reason, each Party shall immediately return to the other Party or destroy (at the other Party’s option) any property belonging to the other Party that is in its possession or control (including Confidential Information), and all rights granted to either Party hereunder immediately shall cease to exist. Further, both Parties agree to promptly refrain thereafter from using any Materials of the other Party and take all appropriate steps to remove and cancel its listing in websites, directories, public records or elsewhere, which state or indicate that it is an authorized partner of the other Party.
- Post-Termination Rights; Waiver of Damages. To the maximum extent permissible under law, each Party hereby waives all claims for termination compensation or any damages related to or arising as a consequence of the termination or expiration of this Agreement to which it may have a right under the law of any jurisdiction.
- Survival of Provisions. The Parties acknowledge and agree that Article 3 (Intellectual Property), Article 4 (Payment Terms), Section 6.3 (Limitation of Liability), Article 7 (Termination), and Article 8 (General) shall survive termination of this Agreement.
NCSI recognizes the importance of confidentiality as a critical aspect to the success of the Moonlight Grant Writing Program. As such, NCSI agrees to make confidential and not disclose any information concerning Partner to any party with the exception of NCSI Customers whereby the Partner has accepted an assignment, or law enforcement as legally required.
- Equitable Relief. Each Party acknowledges and agrees that if it breaches the provisions of Article 3 (Intellectual Property) damages to the other Party would be difficult if not impossible to ascertain. As a result of the immediate and irreparable damage and loss that may be caused to the other Party for which it would have no adequate remedy, in addition to and without limiting any other remedy or right it may have, the other Party shall be entitled to seek an injunction or other equitable relief in any court of competent jurisdiction enjoining any such breach. Except as otherwise provided, all rights and remedies contained in this Agreement or provided by law shall be cumulative and no one of them shall be exclusive of any other.
- Assignment. Neither Party may assign or transfer this Agreement (or any right herein) without the prior written consent of NCSI provided that a Party may assign this Agreement to an affiliate or successor in interest by merger, acquisition or reorganization. This Agreement shall bind and inure to the benefit of the Parties and their successors and permitted assigns.
- Governing Law & Venue. This Agreement shall be governed by, and construed in accordance with, the laws of the State of North Carolina without regard to its choice of law provisions, the United Nations Convention on Contracts for the International Sale of Goods. Except for a breach of Article 3 (Intellectual Property), any controversy or claim between the Parties or arising out of this Agreement shall be determined by one disinterested arbitrator in binding arbitration administered by the American Arbitration Association pursuant to its Commercial Arbitration Rules and Optional Rules for Emergency Measures of Protection in Raleigh, North Carolina.The arbitral decision and award will be final and binding on the Parties, and may be entered and enforced in any court of competent jurisdiction. The expenses of the arbitration shall be borne equally by the Parties, provided, that each Party shall pay for and bear the cost of its own experts, evidence and legal counsel. For any breach of Article 3 (Intellectual Property), Partner hereby submits to the personal jurisdiction and venue of the federal and state courts residing in North Carolina. Nothing in this clause shall be construed to preclude any Party from seeking injunctive relief in order to protect its rights. A request by a Party to a court for such injunctive relief shall not be deemed a waiver of the obligation to arbitration.
- Counterparts. This Agreement may be executed by facsimile, electronically signed document, and in one or more counterparts, each of which shall be deemed an original, but all of which will together constitute the same Agreement. Any and all previous agreements and understandings between the Parties regarding the subject matter hereof, whether written or oral, are superseded by this Agreement. Each Party agrees that any terms or conditions in a purchase order or other document issued by such Party to the other Party regarding or in connection with this Agreement are void and of no force and effect. The headings in this Agreement are solely for convenience and in the event of an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as drafted in English without regard to any translations, and as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provisions of this Agreement.
- Waiver; Amendments No failure of either Party to exercise any power or right granted hereunder or to insist upon strict compliance with any obligation hereunder shall constitute a waiver of the rights of such Party to demand full and exact compliance with the terms of this Agreement. This Agreement shall not be amended or modified, or any term or conduction waived, except by written instrument that has been duly executed by the signature of an authorized representative of each Party. Each Party is hereby put on notice that any individual purporting to amend or modify this Agreement by conduct manifesting assent or who is not at or above the vice-president level is not authorized to do so
- Relationship of Parties. Both Parties agree that they are independent entities. Nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship between the Parties. Each Party is responsible for the supervision, management and direction of its own employees. Each Party is responsible for the payment of compensation to its employees and for any injury to them occurring in the course of their employment and neither Party shall be responsible for the supervision, management and direction of the employees of the other Party
- Judicial Modifications. THE PARTIES INTEND THAT THIS AGREEMENT IS VALID AND SHALL BE ENFORCED AS WRITTEN. The provisions of this Agreement are severable and the unenforceability of any provision of this Agreement shall not affect the enforceability of this Agreement or any other provision hereof. In addition, in the event that any provision of this Agreement (or portion thereof) is determined by a court to be unenforceable as drafted, the Parties acknowledge that it is their intention that such provision (or portion thereof) shall be construed in a manner designed to effectuate the purposes of such provision to the maximum extent enforceable under applicable law.
- Notices. All notices, requests and demands, other than invoices and routine communications under this Agreement, shall be in writing and shall be deemed to have been duly given when delivered, or transmitted by confirmed facsimile or email (with a copy provided by another means specified in this Section), or one (1) business day after being given to an overnight courier with a reliable system for tracking delivery, or five (5) business days after the day of certified mail, return receipt requested, postage prepaid. Any notice required to be delivered under this Agreement shall be delivered via email, in the case of Customer, to the email or office address listed in the most recent Order Form, and in the case of NCSI, to [email protected] or National Center for Social Impact Attn: General Counsel, 1053 E Whitaker Mill Rd, Raleigh, NC 27604 , U.S.A. Either Party may from time to time change the individual(s) to receive notices under this Section and Its address for notification purposes by giving the other prior written notice as provided in this Section of the new individual(s) and address and the date upon which the change will become effective.