Charitable Donation Acceptance Agreement

This Agreement (“Agreement”) is made to be effective as of the date of the the Charity’s acceptance of this Agreement. This Agreement is between Memobed, Inc., a California corporation and a Qualified Charity that has been designated by a purchaser of Memobed Products to receive a Memobed Charitable Donation in the name of Memobed, Inc.

Terms

1. Definitions. As used in this Agreement, the following terms have the following meanings:
(a) “Qualified Charity”means any IRS recognized Section 503(c)(3) American based organization, not a private foundation, that supports charitable, educational or scientific causes which are not illegal and are in compliance with this Agreement.
(b) “ You”or “Your” means your charitable organization.
(c) “We” or “our” means Memobed, Inc. or its charitable donation program.
(d)” Memobed Products” means its retail priced mattresses and related accessories offered for sale online and shipped direct to the customer.
(e) “Memobed Charitable Donation” means a cash donation to a Qualified Charity by Memobed of 1% of the retail amount (exclusive of sales tax, delivery, refunds and other charges) paid by a purchaser of Memobed Products actually delivered and accepted by the customer. Such donations are paid quarterly.
(f) “Memobed.com” means the official website of Memobed, Inc., a California corporation.

Purpose

2. The purpose of this Agreement is to set forth the terms and conditions under which you as a charity can qualify to receive a Memobed Charitable Donation. It also sets forth the obligations and benefits of participating in our program.

Acceptance

3. After reviewing the terms set forth in this Agreement, your organization wishes to participate, please check the box “AGREE” when prompted during the course of registration with our website. Your application will be acknowledged and you will be notified by email if your organization qualifies. As long as your information on file is current and you continue to meet the criteria of a Qualified Charity, your organization will continue to receive the benefits of this program. By accepting this Agreement you are warranting that you have the authority to enter into this Agreement, your corporation is in good standing in the state in which it is incorporated and that you will remain in compliance with this Agreement. If your application is rejected, you will be informed of the reason and, upon correction, may apply again at any time.

Promotion of Memobed Products

4. You are under no obligation to promote Memobed products and Memobed is under no obligation to endorse or promote your charity. You may, in your discretion, as a way for raising money for your charity, promote our products, but only in accordance with the terms of this Agreement, IRS restrictions on your activities, your state laws and our Trademark Policies.

Trademarks

5. Memobed, Inc. Grants any Qualified Charity a limited, nonexclusive right to use, reproduce, and distribute our trademarks and service marks, if any, in connection with advertising and directing customers to our website and the performance of your charities rights and obligations under this Agreement. Any such use or any goodwill received therefrom shall accrue to Memobed, Inc., who shall remain the sole owner of the trademarks and service marks. Whenever you use a name, mark, or logo licensed under this Agreement, you shall print or display the following statement: “This name, mark or logo is used solely by permission of Memobed, Inc.” and print a registered trademark symbol or trademark symbol, whichever is appropriate. You shall provide us with a copy of all materials used that bear our trademark or service mark. The trademark rights granted under this Agreement are nonassignable. Any attempted transfer or assignment of such limited license shall terminate the license without further action from us. You shall not remove or destroy any proprietary markings placed on or contained within the licensed marks or products. At the expiration or earlier termination of this Agreement, all rights to use Memobed’s trademarks and service marks shall cease unless granted further written approval to continue each such use.

Rights and Obligations Cease

6. All rights and obligations of the parties cease on termination of this Agreement. Neither party will be liable to the other for damages of any kind, including without limitation incidental or consequential damages, resulting from the termination of this Agreement. Any pending Memobed Donations that qualified prior to termination will be paid provide your organization is otherwise eligible to continue to receive Memobed Donations.

Automatic Termination

7. This Agreement automatically terminates and the obligations of the parties under this Agreement cease on the occurrence of any of the following events:
(1) The loss of a 501(3)(c) designation by your charity;
(2) Breach of a material obligation of this Agreement;
(3) The termination of the corporate existence of your charity by merger, consolidation, or otherwise (except by a merger or consolidation with the parent corporation, or with a subsidiary or affiliate, that has or you retain an Internal Revenue Code section 501(3)(c) designation;
(4) The sale of all or substantially all of your assets ; or
(5) Your ceasing to continue to do business.

Mutual Termination Or By Right by Either Party

8. This Agreement may be terminated by mutual agreement in writing at any time or by either party at any time, at will, with or without cause, with or without the giving of any reasons, upon five days written notice.

Assignment and Delegation

9. You may not assign any of you rights or delegate any of your duties under this Agreement. As used in this provision, “assignment” and “delegation” means any sale, gift, pledge, hypothecation, encumbrance, or other transfer of all or any portion of the rights, obligations, or liabilities in or arising from this Agreement to any person or entity, whether by operation of law or otherwise, and regardless of the legal form of the transaction in which the attempted transfer occurs.

No Third Party Beneficiary Intended

10. This Agreement is made solely for the benefit of the parties to this Agreement. No other person or entity may have or acquire any right by virtue of this Agreement.

Validity of Agreement Challenged

11. Any material provision of this Agreement or any other document executed in connection with this Agreement is at any time for any reason be declared by a court of competent jurisdiction to be null and void, or if you contest the validity or enforceability of this Agreement, or commences a proceeding seeking to establish the invalidity or unenforceability of this Agreement or other document, or you deny that you have any liability or obligation purported to be created under this Agreement or other document, the remainder of the Agreement or document remains enforceable.

Mediation Required

12. If a dispute arises out of or relates to this Agreement or its breach that cannot be resolved through negotiation, the parties agree to try in good faith to settle the dispute by mediation.

Mechanics of Mediation

13. The mediator will be a retired judge appointed by the parties or if the parties cannot agree, a mediator selected by a Superior Court judge of Sacramento County, Sacramento, California. The mediation will be held at Sacramento, California. The mediation will be conducted according to the rules specified by the mediator. The cost of mediation will be borne by the parties equally.

At least 10 business days before the date of the mediation, each side will provide the mediator with a mediation brief and copies of all supporting documents. Each party will send to the mediation a person who has authority to bind the party. If a party has participated in the mediation and is dissatisfied with the outcome, that party may proceed with litigation in an appropriate court.

Choice of Forum

14. Any dispute that arises under or relates to this Agreement (whether contract, tort, or both) will be resolved in the Superior Court of the County of Sacramento, Sacramento, California or the federal District Court for the Eastern District of California.

Choice of Law

15. This Agreement, and any dispute arising from the relationship between the parties to this Agreement, will be governed by California law.

Modification of Agreement

16. This Agreement and our Trademark Policy may be supplemented, amended, or modified at any time in our sole discretion by posting a notice of such changes on our website. If you do not accept such changes you may terminate this Agreement and cease further participation in the Memobed Charity Donation Program. Your continued participation in the program however will then be deemed your consent to any such change.

Word Usage

17. Unless the context clearly requires otherwise, (a) usage of plural and singular forms of words are each deemed to include the other; (b) the masculine, feminine, and neuter genders are each deemed to include the others; (c) the words “shall,” “will,” or “agrees” are mandatory, and “may” is permissive; (d) “or” is not exclusive; and (e) “includes” and “including” are not limiting.

Entire Agreement

18. This Agreement constitutes the final, complete, and exclusive statement of the terms of the agreement between the parties pertaining to the Memobed Charitable Donation Program and supersedes all other prior or contemporaneous oral or written understandings and agreements of the parties. No party has been induced to enter into this Agreement by, nor is any party relying on, any representation or warranty except those expressly set forth in this Agreement.

Severability of Agreement

19. If a court or an arbitrator of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable, or invalid for any reason, the validity and enforceability of the remaining provisions of this Agreement shall not be affected.

Headings

20. The headings in this Agreement are included primarily for convenience of reference and shall not be construed alone, by themselves, without reference to all other relevant provisions of this Agreement.

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