Washington, D.C. Location
THIS AGREEMENT is made as of this [date] by and between [Annapolis MD Patent Attorney Co. the Company’s name] a [Annapolis MD Patent Attorney Co. the Company’s state of incorporation] corporation with offices at [Annapolis MD Patent Attorney Co. the Company’s address] (the “Company”) and [Marketing the Company’s name], a [Marketing the Company’s state of incorporation] corporation with offices at [Marketing the Company’s address] (the “Marketer”).
W I T N E S S E T H:
WHEREAS, the (Annapolis MD Patent Attorney Co.)provides an extensive business-to-business [describe] environment through a number of its own web sites and certain co-branded web sites and has developed certain proprietary software that is made available for access by users on a subscription basis (the “Software”); and
WHEREAS, the (Patent Lawyer Baltimore Maryland Co.) has experience and expertise in the marketing of various products through the Internet;
WHEREAS, the parties have agreed to enter into a strategic e-commerce marketing relationship under which the (Patent Lawyer Baltimore Maryland Co.) will promote the Software to the Marketer’s current and future business customers as a solution of choice and the (Annapolis MD Patent Attorney Co.)will promote the purchase of the Marketer’s services by its subscribers as the preferred marketing provider.
NOW, THEREFORE, for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. OBLIGATIONS OF THE PARTIES
A. The (Patent Lawyer Baltimore Maryland Co.) will actively market and promote the Software, as the preferred e-commerce solution for [describe], to the Company’s current and future business customers, including in each of the following segments of the Marketer’s business: [identify]
B. The (Patent Lawyer Baltimore Maryland Co.) will actively promote the Software including by use of text, material or other formats reasonably acceptable to the (Annapolis MD Patent Attorney Co.)in the Marketer’s marketing and promotional literature, customer billing inserts and other promotional items or materials
C. The (Patent Lawyer Baltimore Maryland Co.) and the (Annapolis MD Patent Attorney Co.)will conduct joint marketing and promotional efforts as mutually agreed
D. The (Patent Lawyer Baltimore Maryland Co.) will promote the sale to the Marketer’s customers of subscriptions to access and use the Software (the “Subscriptions”)
E. The (Patent Lawyer Baltimore Maryland Co.) and the (Annapolis MD Patent Attorney Co.)will establish a co-branded web site, through which the Marketer’s customers who purchase Subscriptions (the “Customers”) will access the Software
F. The (Patent Lawyer Baltimore Maryland Co.) will provide level one (the “First Call”) support for Customers as it relates to the referral process
G. The Customers will access and use the Software under the Company’s standard terms and conditions
H. The (Annapolis MD Patent Attorney Co.)will actively market and promote the sale of the (Patent Lawyer Baltimore Maryland Co.) services to its subscribers by designating the (Patent Lawyer Baltimore Maryland Co.) as the preferred communications provider on its network;
I. The Customers will purchase the Marketer’s services pursuant to standard promotional offerings and the applicable tariff or standard terms and conditions governing such services
J. The (Annapolis MD Patent Attorney Co.)will actively promote the Marketer’s services, including by use of text, material or other formats reasonably acceptable to the (Patent Lawyer Baltimore Maryland Co.) in the Company’s marketing and promotional literature, customer billing inserts and other promotional items or materials.
A. The (Annapolis MD Patent Attorney Co.)will receive all of the Net Revenues received from the sale of the Software Subscriptions sold by the (Patent Lawyer Baltimore Maryland Co.) (determined and tracked in accordance with the Company’s standard practices) and shall pay to the (Patent Lawyer Baltimore Maryland Co.) a quarterly sales commission equal to 25% of net collected Net Revenues. Net Revenues shall be defined as the gross revenues received by the (Annapolis MD Patent Attorney Co.)less shipping, packaging, taxes and insurance as well as less any returns.
B. Each party will bear its own costs and expenses
This Agreement shall commence on the Effective Date and shall remain in effect for a period of one (1) year. Thereafter, this Agreement shall be renewed automatically on a year to year basis, unless one party notifies the other of its desire to terminate this Agreement at least ninety (90) days prior to the expiration of the Initial Term or then current renewal term, as applicable.
4. INTELLECTUAL PROPERTY
Each party shall exclusively own its respective trademarks and service marks, copyrights, trade secrets, and patents (collectively, the “Intellectual Property”) and no party will have any claim or right to the Intellectual Property of the other by virtue of this Agreement or the performance of services hereunder. Neither party will take any action or make any claim to any Intellectual Property belonging to the other party, whether during the Term or thereafter, which is inconsistent with this Paragraph.
A. This Agreement may be terminated by either party upon [number] ([#]) days written notice to the other party in the event of a breach of a material provision of this Agreement by the other party, provided that, during the [number] ([#]) days period, the breaching party fails to cure such breach.
B. The (Annapolis MD Patent Attorney Co.)shall have the right, but not the obligation, to terminate this Agreement on [number] days prior written notice within [number] days after the event in question, if there is merger, consolidation or other reorganization of or involving Operator in which Operator is not the surviving entity, or any change in control of Operator on account of the sale of at least [number] ([#]%) of the equity interests of Operator.
C. The (Annapolis MD Patent Attorney Co.)shall have the right to immediately terminate this Agreement in the event that (Patent Lawyer Baltimore Maryland Co.) fails to meet or achieve any of the milestones:
Time Period Milestone
Within 30 days after execution Develop a Marketing Plan
of this Agreement Acceptable to Company
Within 60 days after execution Generate at least [ # ] sales of
of this Agreement the Software
Within 120 days after execution Generate at least [ # ] sales of
of this Agreement the Software
6. REPRESENTATIONS AND WARRANTIES
A. Each party represents and warrants that it has the right, title, interest and authority to enter into this Agreement and to fully perform its obligations hereunder, and that the rights granted hereunder shall not violate the rights of any third party. Each party represents and warrants that its conduct hereunder shall conform to all applicable federal, state and local law and regulation.
B. Except for liability for indemnity, neither party will have liability for any damages other than direct damages. NEITHER PARTY MAKES ANY WARRANTY REGARDING THE QUALITY OF THEIR GOODS AND SERVICES. NEITHER PARTY MAKES ANY WARRANTY THAT ALL ERRORS OR FAILURES IN THEIR RESPECTIVE SITES WILL BE CORRECTED. THE PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BEYOND THE WARRANTIES CONTAINED IN THIS PARAGRAPH, THE PARTIES DO NOT WARRANT THAT THEIR SITES ARE ERROR-FREE OR THAT OPERATION OF THEIR SITES WILL BE SECURE OR UNINTERRUPTED. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY REPRESENTATION OR WARRANTY MADE TO ANY END USER OR THIRD PARTY BY THE OTHER PARTY, OR ANY AGENT OF THE OTHER PARTY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR FAILURE OF ITS NETWORK OR SUPPORT SERVICES. THESE LIMITATIONS SHALL SURVIVE AND APPLY NOTWITHSTANDING THE VALIDITY OF THE LIMITED REMEDIES PROVIDED FOR IN THIS AGREEMENT.
Each party hereby indemnifies and holds harmless the other party, its parent, affiliated and subsidiary companies, their officers, directors and employees (“Indemnities”) from any and all liabilities, claims, causes of actions, suits, losses damages, fines, judgments and expenses (including reasonable attorney’s fees) which may be incurred by the Indemnities arising out of any breach of the covenants, warranties, representations and agreements herein.
8. RELATIONSHIP OF PARTIES
Nothing in the Agreement shall be deemed to constitute, create, give effect to or otherwise recognize a partnership, joint venture or formal business entity of any kind; and the rights and obligations of the Parties shall be limited to those expressly set forth herein.
A. “Confidential Information” shall mean any confidential technical data, trade secret, know-how or other confidential information disclosed by any party hereunder in writing, orally, or by drawing or other form and which shall be marked by the disclosing party as “Confidential” or ”Proprietary”. If such information is disclosed orally, or through demonstration, in order to be deemed Confidential Information, it must be specifically designated as being of a confidential nature at the time of disclosure and reduced in writing and delivered to the receiving party within [number] ([#]) days of such disclosure.
B. Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is known to the receiving party at the time of disclosure or becomes known to the receiving party without breach of this Agreement; (ii) is or become publicly known through no wrongful act of the receiving party or any subsidiary of the receiving party; (iii) is rightfully received from a third party without restriction on disclosure; (iv) is independently developed by the receiving party or any of its subsidiary; (v) is furnished to any third party by the disclosing party without restriction on its disclosure; (vi) is approved for release upon a prior written consent of the disclosing party; (vii) is disclosed pursuant to judicial order, requirement of a governmental agency or by operation of law.
C. The receiving party agrees that it will not disclose any Confidential Information to any third party and will not use Confidential Information of the disclosing party for any purpose other than for the performance of the rights and obligations hereunder during the term of this Agreement and for a period of [number] ([#]) years thereafter, without the prior written consent of the disclosing party. The receiving party further agrees that Confidential Information shall remain the sole property of the disclosing party and that it will take all reasonable precautions to prevent any unauthorized disclosure of Confidential Information by its employees. No license shall be granted by the disclosing party to the receiving party with respect to Confidential Information disclosed hereunder unless otherwise expressly provided herein.
D. Upon the request of the disclosing party, the receiving party will promptly return all Confidential information furnished hereunder and all copies thereof.
E. The Parties agree that all publicity and public announcements concerning the formation and existence of this Agreement shall be jointly planned and coordinated by and among the Parties. Neither party shall disclose any of the specific terms of this Agreement to any third party without the prior written consent of the other party, which consent shall not be withheld unreasonably. Notwithstanding the foregoing, any party may disclose information concerning this Agreement as required by the rules, orders, regulations, subpoenas or directives of a court, government or governmental agency, after giving prior notice to the other party.
F. If a party breaches any of its obligations with respect to confidentiality and unauthorized use of Confidential information hereunder, the non- breaching party shall be entitled to equitable relief to protect its interest therein, including but not limited to injunctive relief, as well as money damages notwithstanding anything to the contrary contained herein.
10. EFFECT OF TERMINATION
Upon termination or expiration of this Agreement, all rights granted to the Operator shall forthwith revert to The (Annapolis MD Patent Attorney Co.)who shall be free to contract with others without any obligation to the Operator.
11. FORCE MAJEURE
Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
12. NOTICE AND PAYMENT
A. Any notice required to be given under this Agreement shall be in writing and delivered personally to the other designated party at the above stated address or mailed by certified, registered or Express mail, return receipt requested or by Federal Express.
B. Either party may change the address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.
This Agreement shall be governed in accordance with the laws of the State of [State]. All disputes under this Agreement shall be resolved by litigation in the courts of the State of [State] including the federal courts therein and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.
14. AGREEMENT BINDING ON SUCCESSORS
The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns.
Neither party may assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of the other party which shall not be unreasonably withheld.
No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
This Agreement constitutes the entire understanding of the Parties, and revokes and supersedes all prior agreements between the Parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the Parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents which may conflict with this Agreement.
IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound hereby, have each caused to be affixed hereto its or his/her hand and seal the day indicated.