Joint Marketing Agreement
This
Joint Marketing Agreement ("Agreement") is made and effective this
____________ (Date) by and between _____________________________________________
("Second Party") and _______________________________________
("First Party").
First Party and Second Party separately market products
and/or services which are often used for complementary or for related
purposes. The parties desire to
cooperate in marketing their products for their mutual benefit.
Therefore, it is mutually agreed:
1.Products.
First Party and Second Party agree to market jointly their
product lines, provided for in this Agreement.
The First Party’s product line is ___________________________ and the
Second Party’s product line is ___________________________________ (“Product
Lines”).
2.
General Duties.
In
connection with the joint marketing of the Product Lines, the parties agree to
the following mutual duties:
A. To share information with respect to product
distribution channels, methods of distribution, competitive information and any
other information which can be disclosed without violating any law or breaching
any obligations of confidentiality.
B.
To
include, where appropriate, literature concerning the other party's product in
individual direct mail or other direct marketing and with product shipments.
C. To provide advanced information about
product development, new Products or modification to existing Products jointly
marketed pursuant to this Agreement.
D. To share information with respect to sales
leads.
E. To provide a reasonable number of samples,
demonstration units or other models of products to the other party, on a timely
basis.
F. To mention or
include the other party's products in advertisements, brochures, and related communications.
G. To share information with respect to trade
shows, seminars and meetings, which may be beneficial to the other party.
H. To advise the other party about ideas or
recommendations for new products or enhancements to existing Products which may
be appropriate for the other party's product lines.
3. Specific Duties.
In addition to the
general duties set forth in Section 2 above, the parties agree to engage in the
following specific marketing activities during the Initial Term of this
Agreement:
Press Releases. Within 30 days of the date of this Agreement,
the parties shall jointly prepare and issue a press release announcing this
joint marketing program and generally promoting the Product Lines as defined
above. Any later press release, which
refers to the other party or its products, must be approved by the other party
prior to its release.
Trade shows. The parties agree to jointly participate in
the following trade show(s): _________________________________________. The
parties will register for each designated trade show in their joint names, if
permitted. If joint registration is not permitted, First Party shall register
on behalf of both the parties. The
parties shall jointly share the cost of registration and participation in the
trade show; transportation, preparation, construction and removal of a booth at
the trade show; and reasonable related expenses, such as cost of refreshments
and other items not specific to the Product lines. Each party shall separately pay its own cost
for transportation of its samples, demo units or products to the trade show,
travel, lodging and meals for representatives at the trade show and special or
extra customer meetings or entertainment.
The parties agree to jointly staff the trade show booth at all times,
unless agreed otherwise in writing.
Training. Each party agrees to provide one individual
to attend a sales meeting of the other party for the purpose of demonstrating
and training sales personnel with respect to the party's product. Each party shall bear its own expenses for
transportation and other out-of-pocket expenses for sending its representative
to the other party's sales meeting.
Advertising. The parties shall select an advertising
agency and shall jointly pay the expenses related to preparation for any ads
resulting from that relationship. The
parties shall share evenly the expenses related to these activities. Each party may elect to use any resulting
and approved material or in the media of its choice without limitation,
provided that party pays all the costs associated with media placement and
specific production thereto. Additional
joint advertisements may be prepared following additional agreement of the
parties.
4.
Confidentiality.
During this Agreement, each party may disclose to the
other information that is confidential and proprietary to the disclosing party
("Confidential Information").
Confidential Information may include, but is not limited to, business
plans, marketing plans, financial statements, competitive analysis, market
research, Product development plans, computer programs, designs, and models,
communicated orally, in writing, or by electronic media. Confidential Information disclosed orally or
electronically shall be identified as such within five (5) days of
disclosure. Confidential Information
disclosed in writing shall be marked "Confidential". Each party agrees that it will maintain the
Confidential Information of the other party in confidence and shall use such
information only for the purposes of this Agreement. Confidential Information may be disclosed by
a receiving party within its organization only to specific employees who have a
need to know such information for the purposes of this Agreement and who have
agreed in writing not to disclose it.
Upon expiration or termination of this Agreement or, sooner if demanded
by a party, a receiving party shall return to a disclosing party any of the
disclosing party's Confidential Information including all copies thereof. The obligations of each party in this section
shall continue for a period following the expiration or termination of the
Agreement. The obligations of this
section shall not apply to any Confidential Information that:
A. Is or becomes public through no act of a
receiving party,
B. Is rightfully received from a third party
without obligations of confidentiality; or
C. Is independently developed by a receiving
party without reference to the other party's Confidential Information.
5. Conflicts.
During
this Agreement and for a period of _________________ thereafter, each party
agrees that it will not engage in any marketing, promotion, advertising or
sales effort, individually or jointly, with respect to any product that is
competitive with the other party's Product line or with respect to any entity
that markets, promotes or sells a product in competition with the other party. Nothing stated here shall prevent either
party from engaging in any activity that promotes any other product or entity
that does not compete with the other party or its products.
6. Term and
Termination.
A.
The "Initial Term" of this Agreement shall start on __________ and
shall end on__________________. At least sixty (60) days prior to the end of
the Initial Term or any renewal term as provided herein, the parties shall each
notify the other as to whether they desire to renew this Agreement. If either party notifies the other that it
does not desire to continue this Agreement, then the Agreement shall end upon
the expiration of the Initial Term or renewal term. If, however, both parties desire to renew the
Agreement, then the parties shall meet to confer and determine the following:
(i) their specific
duties for the renewal term in lieu of the specific duties set forth in Section
3 herein as applicable to the preceding Initial Term or renewal term;
(ii) the period for the renewal term; and
(iii) any other proposed amendments. If the parties fail to agree on all of the
foregoing items before end of the Initial Term or renewal term, then this
Agreement shall expire as of the end of the Initial Term or the renewal
term. If the parties agree to all of the
foregoing items, then the Agreement will continue with such specific duties and
other amendments for the renewal term agreed upon.
B.
This Agreement may be terminated at any time upon the occurrence of any of the
following events:
(i) if either of the parties shall default on
any material obligation and such default is not cured within 30 days following
written notice from the other party.
(ii) if either party files a petition of bankruptcy,
is insolvent, makes an assignment for benefit of creditors or if a trustee or
receiver is appointed for a party, and such remaining of the foregoing remains
undismissed for a period of sixty (60) days.
(iii) if either party shall cease to do business,
the First Party ceases to market First Party's Product or Second Party ceases
to market Second Party's Product.
7.
Notices.
Any notice required by this Agreement or given in
connection with it, shall be in writing and shall be given to the appropriate
party by personal delivery or a recognized over night delivery service such as
FedEx.
If
to the First Party: _____________________________________________________.
If
to the Second Party: ___________________________________________________.
8. No Waiver.
The
waiver or failure of either party to exercise in any respect any right provided
in this agreement shall not be deemed a waiver of any other right or remedy to
which the party may be entitled.
9. Entirety
of Agreement.
The terms and conditions set forth herein constitute the
entire agreement between the parties and supersede any communications or
previous agreements with respect to the subject matter of this Agreement. There are no written or oral understandings
directly or indirectly related to this Agreement that are not set forth
herein. No change can be made to this
Agreement other than in writing and signed by both parties.
10. Governing Law.
This
Agreement shall be construed and enforced according to the laws of the State of
____________________ and any dispute under this Agreement must be brought in
this venue and no other.
11. Headings in this Agreement
The
headings in this Agreement are for convenience only, confirm no rights or
obligations in either party, and do not alter any terms of this Agreement.
12. Severability.
If
any term of this Agreement is held by a court of competent jurisdiction to be
invalid or unenforceable, then this Agreement, including all of the remaining
terms, will remain in full force and effect as if such invalid or unenforceable
term had never been included.
In
Witness whereof, the parties have executed this Agreement as of the date
first written above.
_________________________ _______________________
First
Party Second
Party
___________________
Date
Joint Marketing Agreement
Review List
This
review list is provided to inform you about the document in question and assist
you in its preparation.
1. Joint marketing agreements sound good in
principle but have a high rate of failure due to the many things that can lead
to dissatisfaction among the parties.
One way marketing agreements tend to do better since one party is “in
charge” and dealings are not subject to continual quests for agreement and
approval.
2. Having said that, if you wish to pursue
this high risk strategy, first be sure to investigate the reputation and credit
standing of the proposed joint marketer to make sure it is a worthy marketing
partner.
3. Further
to the point, both companies must also be sure their product lines are truly
complementary, that their marketing styles are the similar, and that each is
committed to carrying out the agreed upon joint marketing tasks.
4. As
we have said before, laws vary from state to state and change over time. Before using this document, which is subject
to much downside if things do not work out as you anticipate, be sure to have a
lawyer review it prior to signing.
5. Print
two copies of the Agreement, one for each party. Both parties should sign each copy so that
each can have an original copy.
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