Marketing Services Agreement - Template, Sample Form Pro · EN-CA-law

MARKETING SERVICES AGREEMENT

Effective Date: ________

(Province of ________)

RECITALS

This Marketing Services Agreement (the "Agreement") is made and entered into and is binding upon all Parties as of ________ (the "Effective Date").

The Parties to this Agreement are:

________ (the "Client")
having a principal address at:

________

-AND-

________ (the "Marketer")
having a principal address at:

________

(each a "Party" and collectively the "Parties").

WHEREAS the Client carries on a business and desires to engage the Marketer to advertise, market and promote the Client's goods and/or services;

AND WHEREAS the Marketer has the capacity and expertise to provide such marketing services and is willing to do so upon the terms and conditions set out herein;

AND WHEREAS the objective of the Parties is to improve the quality and reach of the services and goods offered to customers;

NOW THEREFORE in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and with the intention of being legally bound, the Parties agree as follows:

Article 1 – DEFINITIONS AND INTERPRETATION

1.1. In this Agreement, the following terms shall have the meanings set out below:

1.1.1. "Agreement" means this Marketing Services Agreement, together with all schedules and any written amendments made in accordance with its terms;

1.1.2. "Client" means the party identified above as the Client, being the person whose goods and/or services are to be marketed under this Agreement;

1.1.3. "Confidential Information" has the meaning given to it in Article 13;

1.1.4. "Documentation" means any user manual, instruction materials and specifications, if any, relating to the goods or services provided by the Client's business;

1.1.5. "Effective Date" means the date on which the Parties enter into and agree to be bound by the terms of this Agreement;

1.1.6. "Marketer" means the party identified above as the Marketer, being the person engaged to market the Client's goods and/or services;

1.1.7. "Marks" has the meaning given to it in Article 5;

1.1.8. "Order" or "Orders" means a contract for the purchase of the Client's goods or services by a customer;

1.1.9. "Personal Data" means information about an identifiable individual within the meaning of applicable privacy legislation, including the federal Personal Information Protection and Electronic Documents Act (Canada) and any applicable provincial privacy legislation;

1.1.10. "Sale" means a completed transaction whereby an Order is executed, received and accepted in accordance with the Client's procedures;

1.1.11. "Term" has the meaning given to it in Article 7;

1.1.12. "Territory" means the geographical area within which the Marketer is authorized to market the Client's goods and/or services, being: ________.

1.2. In this Agreement, unless the context otherwise requires: (a) words importing the singular include the plural and vice versa; (b) references to a statute include any amendment, re-enactment or successor legislation and the regulations made thereunder; (c) "including" means "including without limitation"; and (d) headings are for convenience only and do not affect interpretation.

Article 2 – SCOPE OF SERVICES

2.1. The Marketer shall undertake the following activities under this Agreement:

2.1.1. Invest the necessary resources and use commercially reasonable efforts to advertise, market, promote, demonstrate, offer to sell and sell the Client's goods and/or services to customers in the Territory, using only marketing, advertising and promotional materials provided or approved in writing by the Client;

2.1.2. Promptly inform the Client of any unauthorized use of the goods and/or services of which it becomes aware, and reasonably assist the Client in asserting its rights;

2.1.3. Protect the Client's Confidential Information and intellectual property, including its trade secrets, copyrights, trade names, service marks and trademarks, with at least the same degree of care it uses for its own confidential information, and not less than a reasonable degree of care;

2.1.4. Promptly transmit to the Client all Orders and all payments received from customers in accordance with the Orders and the Client's instructions;

2.1.5. Communicate with the Client and exchange documents as required for the performance of this Agreement;

2.1.6. During the Term and for a period of one (1) year thereafter, maintain accurate books and records relating to the transactions contemplated under this Agreement and, upon reasonable notice, provide such books and records to the Client for review to confirm compliance with the terms of this Agreement;

2.1.7. Refrain from holding itself out as an employee, agent, representative, partner or joint venturer of the Client, and not make or promise any representations, guarantees, refunds or credits on behalf of the Client;

2.1.8. Comply with all applicable laws, regulations and lawful directives in the performance of this Agreement and with the Client's reasonable policies and procedures of which it has notice;

2.1.9. Perform the following additional responsibilities:

________;

2.1.10. Do all things reasonably required to perform its obligations under this Agreement.

2.2. The Client shall undertake the following activities under this Agreement:

2.2.1. Protect the Marketer's Confidential Information and intellectual property with at least the same degree of care it uses for its own confidential information, and not less than a reasonable degree of care;

2.2.2. Make such improvements or upgrades to the goods and/or services as the Client deems appropriate, which shall at all times be considered part of the goods and/or services;

2.2.3. Prepare and provide to the Marketer marketing, advertising and promotional materials, contracts and other documents in an accessible digital format and, at the Marketer's reasonable request, in physical form;

2.2.4. Provide initial training to the Marketer regarding the Client's procedures, pricing, fees, policies and contracts;

2.2.5. Retain sole discretion to issue refunds to any customer and to credit any customer account;

2.2.6. Perform the following additional responsibilities:

________;

2.2.7. Comply with all applicable laws, regulations and lawful directives in the performance of this Agreement.

Article 3 – REPORTING

3.1. The Marketer shall provide, or provide the Client with access to, a data report enabling the Client to determine the value (including traffic, sales achieved and revenues generated) resulting from the Marketer's activities under this Agreement, at the following frequency: ________.

Article 4 – USER TRACKING

4.1. The Marketer shall implement and maintain reasonable tracking mechanisms to enable the Client to accurately attribute Orders and Sales to the Marketer's marketing activities, in compliance with applicable privacy legislation, including Canada's Anti-Spam Legislation (CASL) and the Personal Information Protection and Electronic Documents Act (Canada).

Article 5 – LICENCE OF MARKS

5.1. The Client grants the Marketer a non-exclusive, non-transferable, royalty-free, revocable licence to use the Client's trade names, trademarks, logos and service marks (collectively, the "Marks") solely in connection with the performance of this Agreement and within the Territory.

5.2. The Marketer shall not use the Marks for any purpose other than as expressly permitted under this Agreement without the prior written consent of the Client.

5.3. The Marketer shall not alter, delete or modify any of the Marks or other identifying marks placed by the Client or its agents on the goods, services, Documentation or related materials without the Client's prior written consent.

5.4. Except as expressly provided in this Agreement, nothing herein confers upon the Marketer any right, title or interest in the Marks or the goodwill associated with them. The Marketer acknowledges that the Marks and all related goodwill are the sole and exclusive property of the Client, and agrees not to use any confusingly similar marks, names or symbols.

5.5. At no time during or after the Term shall the Marketer challenge, or assist others to challenge, the validity of the Marks or their registration, or attempt to register any trademark, mark or trade name confusingly similar to the Marks.

5.6. The Marketer acknowledges that its use of the Marks shall not create, and the Marketer shall not represent that it has, any right, title or interest in the Marks other than the limited licence expressly granted under this Agreement.

5.7. The Marketer shall cease all use of the Marks immediately upon the request of the Client and, in any event, upon the expiry or termination of this Agreement, and the licence granted herein shall not survive such expiry or termination.

Article 6 – ADVERTISING AND PUBLICITY

6.1. The Parties shall reasonably cooperate in the creation of appropriate public announcements, promotional materials or press releases concerning the relationship established under this Agreement.

6.2. All public announcements of one Party that reference the other Party, other than announcements merely identifying a Party as a client or marketer of the other, shall be subject to the prior review and approval of the referenced Party, such approval not to be unreasonably withheld or delayed.

Article 7 – TERM AND TERMINATION

7.1. This Agreement shall commence on the Effective Date and shall remain in full force and effect for the following initial term: ________ (the "Term"), unless earlier terminated in accordance with its provisions.

7.2. Upon expiry of the initial Term, this Agreement shall automatically renew for successive periods of the following duration, unless either Party gives written notice of non-renewal at least ________ prior to the end of the then-current term: ________.

7.3. Either Party may terminate this Agreement by giving the other Party not less than ________ days' prior written notice of termination for convenience.

7.4. If either Party materially breaches any provision of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice describing the breach from the non-defaulting Party, the non-defaulting Party may terminate this Agreement immediately upon further written notice.

7.5. Either Party may terminate this Agreement immediately upon written notice if the other Party becomes insolvent, makes an assignment for the benefit of creditors, is the subject of bankruptcy or insolvency proceedings, or ceases to carry on business.

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Article 8 – EXCLUSIVITY

8.1. During the Term, the Marketer shall have the ________ right to market the Client's goods and/or services to customers within the Territory.

Article 9 – FEES AND PAYMENT

9.1. The Marketer's fee shall be calculated as ________% of the net value of goods and/or services purchased by customers attributable to the Marketer's marketing activities. "Net value" excludes applicable taxes (including the goods and services tax/harmonized sales tax), postage, packaging, insurance, refunds and any payments not honoured by a financial institution.

9.2. The Marketer shall issue an invoice to the Client setting out the fees owing, and payment shall be made within thirty (30) days after the date of the invoice.

9.3. All amounts payable under this Agreement are exclusive of applicable taxes, which shall be added where required by law. Each Party shall be responsible for its own income and similar taxes.

9.4. Acceptable forms of payment include the following:

________.

Article 10 – LATE PAYMENTS

10.1. Any amount not paid within thirty (30) days after its due date shall bear interest at the rate of ________% per annum, calculated and compounded monthly (and at an equivalent annual rate as required by section 4 of the Interest Act (Canada)), together with a late fee of ________ dollars ($________).

Article 11 – REPRESENTATIONS AND WARRANTIES

11.1. Each Party represents and warrants to the other that:

11.1.1. It has the right, power and authority to enter into this Agreement and to perform its obligations hereunder;

11.1.2. The execution and performance of this Agreement does not and will not violate any other agreement to which it is a party or by which it is bound;

11.1.3. Upon execution and delivery, this Agreement constitutes its valid, legal and binding obligation, enforceable against it in accordance with its terms;

11.1.4. It acknowledges that the other Party makes no representations, warranties or agreements relating to the subject matter hereof other than those expressly set out in this Agreement, and, to the extent permitted by law, all implied warranties and conditions are hereby excluded.

Article 12 – INDEMNIFICATION

12.1. The Marketer shall indemnify, defend and hold harmless the Client and its directors, officers, employees and agents from and against any costs, expenses (including reasonable legal fees), losses, damages or liabilities to the extent arising from a claim that the Marketer's technology, materials or trademarks infringe the intellectual property rights of a third party, or arising from the Marketer's breach of this Agreement or negligence.

12.2. The Client shall indemnify, defend and hold harmless the Marketer and its directors, officers, employees and agents from and against any costs, expenses (including reasonable legal fees), losses, damages or liabilities to the extent arising from a claim that the Client's goods, services, technology or Marks infringe the intellectual property rights of a third party, or arising from the Client's breach of this Agreement or negligence.

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Article 13 – CONFIDENTIALITY AND PRIVACY

13.1. For the purposes of this Agreement, "Confidential Information" means any information disclosed by one Party (the "Disclosing Party") to the other (the "Receiving Party"), whether in writing, orally, electronically or otherwise, that is designated as confidential or that ought reasonably to be considered confidential, including trade secrets, business plans, customer lists, pricing, marketing strategies, financial information and Personal Data.

13.2. Confidential Information does not include information that: (i) is or becomes publicly available through no fault of the Receiving Party; (ii) was rightfully in the Receiving Party's possession prior to disclosure; (iii) is rightfully obtained from a third party without breach of any obligation of confidentiality; or (iv) is independently developed by the Receiving Party without reference to the Confidential Information.

13.3. The Receiving Party shall hold the Confidential Information in strict confidence and shall not disclose it to any third party without the prior written consent of the Disclosing Party, except as expressly permitted under this Agreement.

13.4. The Receiving Party shall use the Confidential Information solely for the purpose of performing its obligations under this Agreement.

13.5. The Receiving Party shall protect the Confidential Information using at least the same degree of care it uses to protect its own confidential information of a similar nature, and in no event less than a reasonable degree of care.

13.6. The Receiving Party may disclose Confidential Information to its directors, officers, employees, agents and professional advisors who have a need to know for the purposes of this Agreement, provided they are bound by confidentiality obligations no less restrictive than those set out herein.

13.7. If the Receiving Party is required by law or court order to disclose Confidential Information, it shall, to the extent permitted by law, provide the Disclosing Party with prompt written notice so that the Disclosing Party may seek a protective order, and shall disclose only that portion legally required to be disclosed.

13.8. Each Party shall comply with all applicable privacy laws relating to the collection, use, storage and disclosure of Personal Data, including the Personal Information Protection and Electronic Documents Act (Canada) and any applicable provincial privacy legislation, and shall implement appropriate technical and organizational measures to safeguard Personal Data.

13.9. Upon termination or expiry of this Agreement, or upon the written request of the Disclosing Party, the Receiving Party shall promptly return or destroy all Confidential Information in its possession or control, including all copies, and shall certify such return or destruction in writing if requested.

13.10. The confidentiality obligations in this Article shall survive the termination or expiry of this Agreement for a period of five (5) years thereafter, or for so long as the information remains confidential, whichever is longer.

13.11. The Receiving Party acknowledges that unauthorized use or disclosure of Confidential Information may cause irreparable harm for which monetary damages may be inadequate, and accordingly the Disclosing Party shall be entitled to seek injunctive or other equitable relief in addition to any other remedies available at law or in equity.

13.12. All Confidential Information remains the sole and exclusive property of the Disclosing Party, and nothing in this Agreement grants the Receiving Party any right, title or interest therein except as expressly set out herein.

13.13. Neither Party shall reverse engineer, decompile or disassemble any materials or technology disclosed by the other Party, except to the extent expressly permitted by applicable law.

13.14. The provisions of this Article are in addition to, and not in limitation of, any other confidentiality obligations set out elsewhere in this Agreement.

Article 14 – LIMITATION OF LIABILITY

14.1. Except in respect of liability for death or personal injury caused by negligence, fraud, or a Party's indemnification or confidentiality obligations, the aggregate liability of either Party arising out of or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall not exceed the total fees paid or payable under this Agreement during the twelve (12) months preceding the event giving rise to the claim.

14.2. To the extent permitted by law, neither Party shall be liable to the other for any indirect, incidental, special, consequential or punitive damages, including any loss of profits, revenue, business, goodwill or data, however caused, even if advised of the possibility of such damages.

Article 15 – GENERAL PROVISIONS

15.1. Force Majeure. If the performance of any obligation under this Agreement (other than a payment obligation) is prevented or delayed by causes beyond the reasonable control of a Party, and that Party promptly notifies the other in writing, the affected obligations shall be suspended for so long as the circumstances persist:

15.1.1. "Force majeure" includes acts of God, fire, explosion, vandalism, flood, storm, epidemic or pandemic, earthquakes, general unavailability of essential materials, orders of military or civil authorities, national emergencies, riots, strikes, lockouts, work stoppages, labour disputes and supplier failures;

15.1.2. The affected Party shall use commercially reasonable efforts to avoid or remove the cause of non-performance and shall resume performance with due diligence once the cause is removed;

15.1.3. An act or omission shall be deemed within the reasonable control of a Party if committed, omitted or caused by that Party or its employees, officers, agents, subsidiaries or affiliates.

15.2. Notice. All notices required or permitted under this Agreement shall be in writing and delivered to the address of the Party set out herein (or such other address as a Party may notify in writing) by personal delivery, courier with confirmation of receipt, or email with confirmation, and shall be deemed received upon actual receipt. Notices to the Client shall be sent to: ________; and notices to the Marketer shall be sent to: ________.

15.3. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior agreements, representations and understandings, whether oral or written.

15.4. Waiver. No failure or delay by a Party in enforcing any provision of this Agreement shall constitute a waiver of that or any other provision, and no waiver shall be effective unless in writing.

15.5. Headings. Headings are inserted for convenience only and do not affect the interpretation of this Agreement.

15.6. Amendments. This Agreement may be amended only by a written instrument signed by both Parties.

15.7. Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall continue in full force and effect, and the invalid or unenforceable provision shall be deemed modified to the minimum extent necessary to make it valid and enforceable while reflecting the original intent of the Parties.

15.8. Assignment. This Agreement shall enure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns. Neither Party may assign this Agreement, in whole or in part, without the prior written consent of the other Party, provided that the sale of all or substantially all of a Party's assets or its acquisition by merger shall not be deemed an assignment:

15.8.1. The Party so sold or acquired shall notify the other Party in writing within thirty (30) calendar days of closing;

15.8.2. Any purported assignment in breach of this provision shall be null and void.

15.9. Independent Contractors. The Parties are independent contractors:

15.9.1. Neither Party is an agent, representative or partner of the other;

15.9.2. Neither Party has any right, power or authority to enter into any agreement on behalf of, or to incur any liability or bind, the other Party;

15.9.3. Nothing in this Agreement creates any partnership, joint venture, franchise, agency or employment relationship between the Parties;

15.9.4. Each Party shall bear its own costs and expenses in performing this Agreement.

15.10. Dispute Resolution. The Parties shall first attempt to resolve any dispute arising out of or in connection with this Agreement through good faith negotiations and, failing resolution, by mediation administered in the Province of ________ before resorting to litigation, except where urgent injunctive relief is sought.

15.11. Governing Law and Forum. This Agreement shall be governed by and construed in accordance with the laws of the Province of ________ and the federal laws of Canada applicable therein. The Parties irrevocably attorn to the exclusive jurisdiction of the courts of the Province of ________.

15.12. Survival. Articles 5.7, 12, 13, 14 and any other provisions which by their nature are intended to survive shall survive the termination or expiry of this Agreement.

15.13. Counterparts. This Agreement may be executed in counterparts and by electronic signature, each of which shall be deemed an original and all of which together constitute one and the same agreement.

IN WITNESS WHEREOF the Parties have executed this Agreement as of the Effective Date.

_________________________________
________, Client

Date: ________

_________________________________
Witness (Name): ________

_________________________________
________, Marketer

Date: ________

_________________________________
Witness (Name): ________