Marketing Agreement - Template, Sample Form to Complete Pro · US-law

MARKETING AGREEMENT

State of ________

RECITALS:

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

B. The Parties to this Agreement are the following:

Client -- ________
a ________
of
________
Represented by ________, in the capacity of ________

-AND-

Marketer -- ________
of
________

C. WHEREAS, ________ and ________ desire to establish an exclusive strategic marketing relationship whereby ________ will promote ________'s business to customers. This Agreement may be modified from time to time in the form of a written instrument signed by both Parties (an "Amendment"). The terms of any Amendment executed during the Term of this Agreement will be subject to the terms of this Agreement unless otherwise expressly stipulated in the Amendment.

NOW, THEREFORE, in consideration of the mutual covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound thereby, the Parties agree as follows:

I. DEFINITIONS.

1. The following definitions govern the meanings of the capitalized terms used in this Agreement:

(a). "Certificate" shall mean a document created by the Client and issued to the Marketer that indicates that the Marketer is authorized to advertise the Client's business.

(b). "Customer" shall mean (i) an entity with its headquarters in the Territory (defined below), and persons with their residence in the Territory, and (ii) with the Client's prior written permission, an entity that is a subsidiary of a Customer, where the sales decisions regarding the Client's business are made for the entity by the Customer.

(c). "Documentation" shall mean any user manuals or instructional materials, if any, and specifications, if any, related to the goods or services provided by the Client's business.

(d). "Effective Date" is the date the Parties enter into and agree to be bound by the terms of this Agreement, as set forth in Recital A.

(e). "Marketer" is the party identified above engaged to advertise, promote, and market the Client's goods and/or services.

(f). "Order" or "Orders" shall mean a Client-created contract for the purchase of goods or services by the Customer(s).

(g). "Personal Data" shall mean information relating to an identified or identifiable natural person.

(h). "Purchase" shall mean the purchase of goods or services for sale in the Territory.

(i). "Quarter" shall mean each three-month calendar period commencing with the Effective Date of this Agreement, except that the first Quarter will run from the Effective Date to the date that is the last day of the first two full calendar months after the Effective Date.

(j). "Quarterly" shall refer to a "Quarter."

(k). "Sale" shall mean the occurrence of each of the following: a Customer executes an Order, the Client receives the Order, and the Client accepts the Order.

(l). "Territory" is the geographical boundaries within which the Marketer may market the Client's goods and services, more particularly described as: ________.

II. SCOPE OF ACTIVITIES.

2. The Marketer shall be responsible for undertaking the following activities under this Agreement, the completion of which shall serve as good and valuable consideration for this Agreement:

(a). Invest the necessary resources and engage in best efforts to advertise, market, promote, demonstrate, offer to sell, and sell the Client's goods and/or services to Customers in the Territory, via the Marketer's business contacts, using only marketing, advertising, and promotional material provided by or previously approved by the Client in writing.

(b). Promptly notify the Client of any unauthorized use of the goods and/or services of which it becomes aware and assist the Client in enforcement of its rights in the goods and/or services.

(c). Protect the Client's confidential and proprietary information and intellectual property, including but not limited to its trade secrets, copyrights, trade names, service marks, and trademarks, with the same level of protection it employs for its own confidential and proprietary information and intellectual property (and in no event less than a reasonable degree of care), and notify the Client if it becomes aware of any unauthorized use of any of the above.

(d). If it receives Orders from Customers, promptly transmit all Orders executed by the Customer and full payment from the Customer pursuant to the Orders to the Client as the Client so directs.

(e). Communicate with, and receive communications from, and send materials to, and receive materials from the Client as necessary to perform this Agreement.

(f). During the Term and for a period of one (1) year thereafter, the Marketer will maintain books and records related to the Customer transactions contemplated under this Agreement. Upon reasonable notice, the Marketer will provide such books and records to the Client for review to ensure compliance with the terms of this Agreement.

(g). Refrain from presenting itself as an employee, agent, representative, or member of a joint venture with the Client, and shall not make or promise to make any representations on behalf of the Client, including any warranties, refunds, and/or credits.

(h). Comply with all applicable federal, state, and local laws, rules, regulations, and executive directives in the performance of this Agreement, including without limitation the CAN-SPAM Act of 2003 (15 U.S.C. § 7701 et seq.), the Telephone Consumer Protection Act (47 U.S.C. § 227), and all applicable advertising, consumer protection, and data privacy laws, and in accordance with all of the Client's policies and procedures.

(i). Engage in the following additional responsibilities:

________

(j). Do whatever else is reasonably expected in order to perform its obligations under this Agreement.

3. The Client shall be responsible for undertaking the following activities under this Agreement, the completion of which shall serve as good and valuable consideration for this Agreement:

(a). Protect the Marketer's confidential and proprietary information and intellectual property, including but not limited to its trade secrets, copyrights, trade names, service marks, and trademarks, with the same level of protection it employs for its own confidential and proprietary information and intellectual property (and in no event less than a reasonable degree of care), and notify the Marketer if it becomes aware of any unauthorized use of any of the above.

(b). Make future enhancements, if any, or upgrades, if any, to the goods and/or services as the Client solely sees fit. Any such enhancements and upgrades shall at all times be considered the "Products."

(c). Prepare and distribute to the Marketer product marketing, advertising, and/or promotional material, contracts, and other documents in an accessible digital format, and, at its discretion, additional such material in a physical medium.

(d). Provide to the Marketer initial training regarding all of the Client's procedures, prices, fees, policies, and contracts.

(e). Retain sole discretion to issue refunds to any Customer and to credit any Customer account.

(f). Comply with all applicable federal, state, and local laws, rules, regulations, and executive directives in the performance of this Agreement.

(g). Engage in the following additional responsibilities:

________

III. REPORTING.

4. The Marketer shall provide the Client with (or provide access to) a report of data that will let the Client determine the value (traffic, completed sales, revenue generated, etc.) derived from the Marketer's activities described in this Agreement with the following frequency: ________.

IV. USER TRACKING.

5. The Marketer will use and implement reasonable tracking mechanisms in order to permit the Client to accurately track Orders linking from the Marketer to the Client and the purchase of the Client's goods and/or services. Each Party shall comply with all applicable data privacy and consumer protection laws in connection with such tracking, including obtaining any consents required by law.

V. LICENSES.

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

7. The Marketer shall not use any of the Client's Marks for any purpose without first obtaining the prior written consent of the Client.

8. The Marketer will not alter or permit alteration, removal, or modification of any of the Client's Marks or other identifying marks placed by the Client or its agents on the Products or associated documentation or literature, without the Client's prior written approval.

9. Except as specifically provided in this Agreement, nothing in this Agreement shall confer upon the Marketer any right, title, or interest in any of the Marks or goodwill of the Client. The Marketer acknowledges that the Client's Marks and any related goodwill are the sole and exclusive property of the Client, and the Marketer agrees not to use any confusingly similar marks, works, or symbols.

10. At no time during or after the Term of this Agreement shall the Marketer challenge or assist others to challenge the Client's Marks or the registration thereof, or attempt to register any trademarks, marks, or trade names that are in any way confusingly similar to the Client's Marks.

11. The Client acknowledges that it retains ownership of all its Marks and other intellectual property rights that are licensed to it. The Marketer acknowledges that its use of the Client's Marks will not create in it, nor will it represent that it has, any right, title, or interest in or to the Client's Marks other than the express and limited right to use the Client's Marks granted under this Agreement.

12. The Marketer agrees that it shall cease using the Client's Marks immediately upon request, and in no event shall this license survive the termination or expiration of this Agreement.

VI. PUBLICITY.

13. The Parties will cooperate to create appropriate public and promotional announcements or press releases relating to the relationship set forth in this Agreement.

14. All public announcements by one Party which mention the other Party, but specifically excluding announcements which simply mention one Party as a customer or strategic marketer of the other Party, shall be subject to prior review and approval, which shall not be unreasonably withheld or delayed.

VII. TERM AND TERMINATION.

15. The Term of this Agreement shall commence on the Effective Date and shall continue in full force and effect as described in this Agreement (the "Term").

16. This Agreement shall remain in effect for the following length of time: ________, unless terminated earlier pursuant to the provisions of this Agreement. Thereafter, the Term will automatically renew for successive terms of the following length without notice unless either Party terminates the Agreement in writing prior to the expiration of the then-current term: ________.

17. If either Party materially defaults in the performance of any provision of this Agreement, and such default is not cured within thirty (30) days after the non-defaulting Party gives the defaulting Party written notice of such default, then the non-defaulting Party shall be entitled to terminate the Agreement immediately upon written notice of termination to the defaulting Party.

18. Either Party may terminate this Agreement without cause upon ________ days' prior written notice to the other Party. Termination shall not relieve either Party of any obligations incurred prior to the termination, including any fees accrued. Upon termination, the Marketer agrees to (i) cease all promotions of the Client's goods and/or services; (ii) cease all use of the Client's technology and Marks; and (iii) cease making the Client's services available in or through any website or otherwise, and, upon request, to promptly destroy or return all copies (electronic or written) of the content, technology, and any other confidential or proprietary information in the Marketer's possession or control. Without limiting the foregoing in any way, the Parties agree that following termination, each Party may continue to make its products/services available directly to users subscribing to the product/service prior to termination, without any liability or obligation to the other Party.

VIII. EXCLUSIVITY.

19. For the Term of this Agreement, the Marketer shall have the exclusive right to market the Client's goods and/or services to Customers within the Territory.

IX. FEES AND PAYMENT.

20. The Marketer's fee shall be calculated as ________% of the net value of the goods and/or services purchased by Customers driven by traffic from the Marketer to the Client. The net value shall exclude value-added or sales tax, postage, packaging, insurance, refunds, and payments not honored by a financial institution.

21. Upon determination of the Marketer's fees due, the Marketer shall issue an invoice to the Client, and payment shall be due within thirty (30) days of the date of the invoice.

22. Acceptable forms of payment include the following:

________

X. LATE PAYMENTS.

23. For any fee payment that is not paid within thirty (30) days of its due date, the Client shall pay a late fee of $________ (________), provided that in no event shall any late fee or interest exceed the maximum rate permitted by applicable law.

XI. REPRESENTATIONS AND WARRANTIES.

24. Each Party represents and warrants to the other the following:

(a). It has the full right, power, and authority to enter into this Agreement and to perform the acts required of it hereunder.

(b). The execution of this Agreement by such Party and the performance by such Party of its obligations and duties hereunder do not and shall not violate any other agreement to which such Party is a party or by which it is otherwise bound.

(c). When executed and delivered by such Party, this Agreement shall constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.

(d). Such Party acknowledges that the other Party makes no representations, warranties, or agreements related to the subject matter hereof that are not expressly specified in this Agreement.

25. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

XII. INDEMNIFICATION.

26. The Marketer will indemnify, defend, and hold the Client and its directors, officers, employees, and agents harmless from any and all costs, expenses (including reasonable attorneys' fees), losses, damages, or liabilities incurred insofar as such costs, expenses, losses, damages, or liabilities are based on a claim that the Marketer's technology or marks infringe upon any intellectual property rights of a third party.

27. The Client will indemnify, defend, and hold the Marketer and its directors, officers, employees, and agents harmless from any and all costs, expenses (including reasonable attorneys' fees), losses, damages, or liabilities incurred insofar as such costs, expenses, losses, damages, or liabilities are based on a claim that the Client's technology or marks infringe upon any intellectual property rights of a third party.

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XIII. CONFIDENTIALITY.

29. The term "Confidential Information" shall include any proprietary information, in whatever form, that:

(a). is provided by the Client to the Marketer, including information regarding the Client's businesses, finances, prospects, operations, products, employees, technologies, contact lists, and financial models (including not only written information but also information transferred verbally, visually, electronically, or by any other means); or

(b). concerns any Sales that the Marketer may aid and that the Client is fulfilling; or

(c). consists of analysis and/or any other internal non-redacted memoranda or other documents prepared by the Marketer derived from or including material portions of the Confidential Information.

30. Confidential Information shall not include any information that:

(a). is already known to the receiving Party at the time of its disclosure;

(b). is or becomes publicly known through no wrongful act of the receiving Party;

(c). is communicated to a third party with the express written consent of the disclosing Party; or

(d). is lawfully required to be disclosed, provided that before making such disclosure, the receiving Party shall, to the extent legally permitted, immediately give the disclosing Party written notice and cooperate in the disclosing Party's actions to assure confidential handling of such information.

31. Each Party shall safeguard and keep confidential the Confidential Information obtained from the other Party and shall not disclose any Confidential Information to any other person or entity, except to its employees, agents, and advisors who have a need to know and who are bound by confidentiality obligations no less protective than those set forth herein.

32. Each Party shall refrain from using Confidential Information for any purpose other than those related to the activities it engages in while fulfilling its responsibilities and obligations under this Agreement.

33. All such Confidential Information and any copies obtained thereof shall be returned or destroyed promptly upon the disclosing Party's written request and shall not be retained in any form, except as required by applicable law or bona fide internal records-retention policies.

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35. This Section shall survive the termination or expiration of this Agreement.

XIV. LIMITATION OF LIABILITY.

36. EXCEPT FOR A BREACH OF THE CONFIDENTIALITY OBLIGATIONS OR THE INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF REVENUE, OR LOSS OF BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

37. EXCEPT FOR A BREACH OF THE CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS, THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. This Section shall survive the termination or expiration of this Agreement.

XV. ADDITIONAL PROVISIONS.

38. Force Majeure. If performance of this Agreement or any other obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either Party's reasonable control, and if the Party unable to carry out its obligations gives the other Party prompt written notice of the circumstances, then the obligations of the Party invoking this provision shall be suspended to the extent necessitated by such circumstances.

(a). The term "Force Majeure" shall include, but is not limited to, acts of God, fire, explosion, vandalism, flood, storm, illness, injury, epidemic or pandemic, earthquake, general unavailability of essential materials, orders of military or civil authority, national emergencies, riots, strikes, lock-outs, work stoppages, or other labor disputes or supplier failures.

(b). The Party excused by such events shall use all reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or cease.

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

39. Notices. All notices that either Party is required or may desire to serve upon the other Party shall be in writing and addressed to the Party to be served at the respective addresses set forth herein, and shall be sent via U.S. Express Mail or private express courier service with confirmed receipt, and will be effective upon receipt at the addresses listed herein (unless a Party is notified in writing of a change of address, in which case notice will be sent to the new address).

40. Entire Agreement. This Agreement contains the entire agreement of the Parties regarding the subject matter of this Agreement, and there are no other promises or conditions in any other agreement, whether oral or written. This Agreement supersedes all prior negotiations, representations, and agreements regarding the subject matter hereof.

41. Waiver of Contractual Rights. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that Party's right to subsequently enforce and compel strict compliance with every provision of this Agreement.

42. Headings. The section and paragraph headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, govern, limit, modify, or construe the scope or extent of the provisions of this Agreement to which they may relate. Such headings are not part of this Agreement and shall not be given any legal effect.

43. Amendments. This Agreement may be modified or amended if and only if the amendment is made in writing and signed by both Parties.

44. Severability. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.

45. Assignment. This Agreement shall be binding upon and inure to the benefit of each Party's successors and permitted assigns. Neither Party may assign this Agreement, in whole or in part, without the other Party's prior written consent; provided, however, that the sale of any portion of the assets of either Party, or any of its subsidiaries, or its acquisition by merger into another company, shall not be deemed an assignment of this Agreement by such Party.

(a). Provided further, that the Party to be sold or acquired in accordance with the above must provide written notice to the other Party of any such sale or acquisition within thirty (30) calendar days of the closing.

(b). Any attempt to assign this Agreement other than in accordance with this provision shall be null and void.

46. Independent Contractors. The Parties to this Agreement are independent contractors.

(a). Neither Party is an agent, representative, or partner of the other Party.

(b). Neither Party shall have any right, power, or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party.

(c). This Agreement shall not be interpreted or construed to create an association, joint venture, partnership, franchise, sales representative, or employment relationship between the Parties, or to impose any partnership obligation or liability upon either Party.

(d). Each Party shall bear its own costs and expenses in performing this Agreement, and each Party shall be solely responsible for its own taxes.

47. Dispute Resolution. The Parties shall first attempt in good faith to resolve any dispute arising out of or relating to this Agreement through negotiation. Any dispute not so resolved shall be finally resolved by the courts identified in Section 48, or, if the Parties so elect in writing, by binding arbitration administered in accordance with the rules of the American Arbitration Association in ________. In any action or proceeding to enforce this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys' fees and costs.

48. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of ________, without regard to its conflict-of-laws principles. Both Parties consent to the exclusive jurisdiction of the state and federal courts located in ________, State of ________. The Parties agree that this choice of law, venue, and jurisdiction provision is not permissive, but rather mandatory in nature.

49. Counterparts; Electronic Signatures. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Signatures transmitted electronically or by facsimile, and electronic signatures executed in accordance with the federal E-SIGN Act (15 U.S.C. § 7001 et seq.) and applicable state law, shall be deemed valid and binding.

50. Survival. The provisions of this Agreement which by their nature should survive termination or expiration, including without limitation those relating to confidentiality, indemnification, limitation of liability, and governing law, shall so survive.

EXECUTION:

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date.

_________________________________
________, ________ of ________, Client

_________________
Date

_________________________________
________, Marketer

_________________

Date