Purpose of this Agreement
MARS5, LLC herein referred to as Partner, wishes to obtain from company, listed in proposal herein referred to as, [Company], and [Company] is willing to grant to Partner, the non-exclusive right to offer [Company]’s Products / Services and/or Product Components for sale over the Internet.
[Company] wishes Partner to refer its clients to [Company] Products / Services and/or Product Components for which [Company] will compensate Partner.
[Company] grants to Partner, and Partner accepts from [Company], a revocable, nontransferable, NONEXCLUSIVE right to promote its Products / Services and/or Product Components.
In consideration for the mutual promises, covenants, and agreements made below, Partner and [Company], intending to be legally bound, agree as follows:
For purposes of this Agreement, the following terms will have the indicated definitions:
- “Agreement” This Agreement is by and between Partner and [Company].
- “End-User” Any person or entity that purchases or licenses the Products / Services(s) directly from either party’s Internet website.
- “Personal Information” includes personal identity, demographic, psychographic, and billing information and navigation of site visitors,“Intellectual Property Rights” The intangible legal rights or interests evidenced by or embodied in
- (1) any idea, design, concept, technique, invention, discovery, or improvement regardless of patentability, but including patents, patent applications, trade secrets and know-how;
- (2) any work of authorship, regardless of copyright-ability, but including copyrights and any moral rights recognized by law; and
- (3) any other similar rights, in each case on a worldwide basis.
- “Products / Services” The products and services owned by [Company] and Partner respectively and referred to by reference to their respective tradenames listed in Exhibit A attached to the bottom of this Agreement, along with all options to the Products / Services; all future versions of the Products / Services; and all enhancements, revisions, or modifications made to the Products / Services by Partner.
- “Product Component” These may be a partial of the above product, or a single document, spreadsheet, database, intellectual property, or other module that may be created separately and/or included with or within any of the above Products/Services.
- “Term” The duration of this Agreement.
- “Territory” Both parties understand that anyone may access each other’s website at any time from anywhere in the world and neither has control over who may access and/or place an order over the Internet.
- “Trademarks” The trademarks specified in Exhibit A (attached to the end of this Agreement).
2.1 NON-EXCLUSIVE. [Company] grants to Partner, and Partner accepts from [Company], a revocable, nontransferable, NON-EXCLUSIVE right to promote [Company]’s Products / Services and or Product Components.
2.2 Independent Contractors. Partner and [Company] agree that their relationship is that of the seller and the representative (or the licenser and the licensee) and not that of joint venturers, principals or agents, or franchiser and franchisee. Both are independent contractors acting for their own accounts, and neither is authorized to make any commitment or representation, express or implied, on the other’s behalf unless authorized to do so by the other in writing.
2.3 Use of Trademarks & Trade Names. No right, title or interest in or to any trademarks, trade names, slogans, labels and designs used by either Partner or [Company], nor the goodwill connected is conveyed by this Agreement. Both parties may, in connection with the promotion and sale of the other’s Products / Services pursuant to the terms of this Agreement, refer to the other’s applicable trade names or trademarks provided that all such references are in conformance with the other’s requirements regarding such use, as such requirements are communicated to the other party in writing from time to time. Neither party may register the other’s trademarks, or otherwise use Supplier’s trademarks for any purpose except as explicitly provided in this Agreement.
3.1 Term. This Agreement will commence on the date stated as the “Effective Date” above and will terminate December 31, 2017, unless it terminates sooner in accordance with the provisions of this Agreement. This Agreement will renew automatically for another One (1) year term unless either party communicates to the other, in writing, at least by September 30, 2017 that it wishes to discontinue this Agreement.
3.2 Continuation or Survival of Certain Sections. Certain sections, as indicated below, will survive and remain effective even after the termination of this Agreement. All other rights and obligations of each party to the other will terminate upon the termination of this Agreement.
4. Power to Promote
4.1 Partner will use its best efforts to promote and distribute the Products / Services and/or Product Components.
4.2 Customer Data
Partner agrees to share all End-User Personal Information as available with [Company] for [Company]’s ability to perform fulfillment of customer order in a functional manner.
5. Product / Service Content
5.1 Both [Company] and Partner reserve the right at any time without liability or prior notice to
(1) determine the contents of each party’s own respective Products / Services and Product Components, including its specifications, features, and functions, as well as any documentation or related materials;
(2) discontinue distribution of any or all of each party’s own respective Products / Services and Product Components in some or all markets or through some or all channels of distribution;
(3) change or terminate any of each party’s own respective specifications, features, or functions of the Products / Services or Product Components; or
(4) change or terminate the level or type of support or service that each party makes available for their Products / Services. Any change or discontinuance of a Products / Services or Product Components will be indicated by an addition or deletion from [Company] and /or Partner’s web page, [Company] may cancel any orders for discontinued Products / Services or Product Components without liability.
5.2 Modifications. Partner agrees that it will not copy, reverse engineer, disassemble, decompile, translate, or modify any of the [Company] Products/Services or Product Components, nor combine such with other Products / Services or material to form derivative works—nor grant any other person or entity the right to do so.
5.3 Compliance with Laws. [Company] and Partner will comply with all material applicable present and future federal, state, county, local, and, where necessary, foreign laws, ordinances, and regulations relating to the sale of the Products / Services and Product Components.
5.4 Service Support. Neither party is responsible to the other for any customer service support for purchases and fulfillment including but not limited to, providing qualified personnel to receive End-User inquiries.
Partner will pay [Company] a percentage of sales and/or fee according to the provisions of the signed proposal.
Taxes. Both [Company] and Partner are responsible for payment of any/all respective taxes.
Payment. Partner will pay [Company] its Commission for all Products / Services purchased, within Thirty (30) days after Partner receives payment from fulfillment company.
Interest. Interest will accrue on any delinquent amounts owed by either party to the other for at the rate of 1.5% percent per month (18% APR), or the maximum rate permitted by applicable law, whichever is less.
Auditing. [Company] has the right to audit Partner’s records and may do so by sending or designating a CPA of [Company]’s choice. If the audit proves that there is an inaccuracy of less than Five Percent (5%), [Company] will pay for the audit, if there is an inaccuracy of more than Five Percent (5%), Partner will pay for the audit.
7. Ownership Warranty & Indemnification
7.1 Disclaimer, No Other Warranty. Neither [Company] nor Partner grant any warranties, express of implied, by statute or otherwise, regarding their respective Products / Services and/or Product Components, its fitness for any purpose, its quality, its merchantability, or otherwise.
7.2 Limitation of Liability [Company]’s liabilities under any warranties will be limited to replacement, repair or credit for the customer’s purchase price if [Company] provides merchandise. In no event will [Company] be liable for the cost of procurement of substitute goods by the customer or for any special, consequential or incidental damages for breach of warranty.
7.3 Ownership Warranty [Company] represents and warrants to Partner that:
(1) its Products / Services and/or Product Components are original or under license with [Company];
(2) its Products / Services and/or Product Components do not infringe upon any patent, copyright, trade secret or other proprietary rights of others;
(3) [Company] has full power and authority to grant the rights granted within this Agreement to [Company]; and
(4) [Company] has not previously or otherwise granted any other rights in the Products / Services and/or Product Components to any third party that conflict with the rights in this Agreement granted by [Company].
7.4 Indemnification Partner and [Company] will indemnify and hold each other harmless for damages or expenses resulting from any claim, suit or proceeding brought against the other party on any issue including, but not limited to product liability.
Both parties agree that the other has the right to defend, or at its option to settle any claim, suit or proceeding brought against it or its Customer at its own expense, subject to the limitations described in this Agreement. The party whose product(s) or action(s) are the subject of any legal action will have sole control of any such action or settlement negotiations, and agrees to pay, any final judgment entered against it and/or the other party or its Customer on such issue in any such suit or proceeding.
The party whose product is the primary subject of any legal action will bear all associated legal costs of both parties. For example, if Partner is named in a lawsuit due to its participation in a marketing program with [Company], but [Company]’s product, [XYZ example] is the subject of the legal action, then [Company] shall bear all associated legal costs of both parties.
The foregoing provisions state the entire liability and obligations of [Company] and Partner and the exclusive remedies with respect to any legal action and/or alleged product liability suit related to the product(s) promoted in this Co-Marketing Agreement.
7.5 Survival of Warranties. The warranties and indemnities stated in this section will survive the expiration or termination of this Agreement.
8.1 Termination Events. This Agreement may be terminated by either party upon the occurrence of any of the following circumstances:
8.1.1 Any assignment for the benefit of the creditors, or any bankruptcy, reorganization, or other proceeding under any bankruptcy or insolvency law is initiated by the other party, or is initiated against it and not dismissed or stayed within Sixty (60) days;
A material breach by the other party of any of the terms of this Agreement, which breach is not remedied by the other party within Thirty (30) days of the other party’s receipt of notice of such breach; or
In the event [Company] or a substantial portion of [Company]’s assets are acquired, at any time, the acquiring party may terminate this Agreement unconditionally, at its option.
8.2 Fulfillment of Obligations. The termination of this Agreement will not otherwise release either party from its obligation to pay any sum that may be then or thereafter owing to the other party nor operate to discharge any liability that had been incurred by either party prior to any such termination. Except as qualified by the preceding sentence, neither party will, by reason of the termination of this Agreement, be liable to the other for any damages (whether direct, consequential or incidental to, and
including loss of profit or prospective profits of any kind) sustained or arising out of any such termination.
8.3 Effect of Termination & Survival. Upon termination of this Agreement, both parties will discontinue all further promotion of the other party’s Products / Services and/or Product Components. Without limiting the generality of the foregoing, both [Company] and Partner will cease all display, advertising, and use of all of the other party’s respective names, trademarks, logos, and designations and will not thereafter use, advertise, or display any such names, trademarks, logos, or designations. Upon termination of this Agreement, the due date of all outstanding invoices for the Products / Services and/or Product Components will automatically be accelerated and all such Commissions will become due and payable. Despite any termination of this Agreement, the provisions in Sections 7, 9, and 10 will remain in full force and effect.
9. Confidential Information, Trademarks & Intellectual Property Rights
9.1 Proprietary Information. Each party acknowledges that it may be furnished with or may otherwise receive or have access to information or material that relates to past, present or future Products / Services and/or Product Components, software, research development, inventions, processes, techniques, designs or technical information and data, and marketing plans. (The “Proprietary Information”). Each party agrees to preserve and protect the confidentiality of the Proprietary Information and all of its physical forms, whether disclosed to the other party before this Agreement is signed or afterward, including the terms of this Agreement. In addition, a party will not disclose or disseminate the Proprietary Information for its own benefit or for the benefit of any third party.
The previously stated obligations do not apply to any information that…
(1) is publicly known;
(2) is given to a party by someone else who is not obligated to maintain confidentiality; or
(3) a party had already developed prior to the day this Agreement is signed, as evidenced by documents.
Neither party will take or cause to be taken any physical forms of Proprietary Information (nor make copies of same) without the other party’s written permission. Within three (3) days after the termination of this Agreement (or any other time at the other party’s request), a party will return to the other party all copies of Proprietary Information in tangible form. Despite any other provisions of this Agreement, the requirements of this Section will survive termination of this Agreement.
9.2 Right to Injunction. If any party will attempt to use or dispose of any Information or any of its aspects or components or any duplication or modification thereof in a manner contrary to the terms of this Section, the other party will have the right, without the necessity of filing a bond or other security, in addition to such other remedies that may be available to it, to injunctive relief enjoining such acts or attempts, it being acknowledged that legal remedies are inadequate.
9.3 Press Releases. No press releases or other like publicity or advertising of any nature regarding this Agreement that mentions this Agreement or the other party by name will be released by a party without the prior written agreement of the other party.
9.4 Notification. [Company] will promptly notify Partner of
(1) any claims, allegations, or notification that its marketing, licensing, support, or service of the Products / Services and/or Product Components may or will infringe the Intellectual Property Rights of any other person or entity; and
(2) any determination, discovery, or notification that any person or entity is or may be infringing the Intellectual Property Rights of Partner. [Company] may take any legal action relating to the protection or defense of any Intellectual Property Rights pertaining to the Products / Services and/or Product Components without the prior written approval of Partner.
10. General Provisions
10.1 Independent Contractors. The relationship between both parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to give either party the power to direct and control the day-to-day activities of the other. Neither party is an agent, representative or partner of the other party. 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. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such relationship upon either party.
10.2 Non-Solicitation. Neither party shall solicit for employment or hire the other’s current or future employees, either directly or indirectly, during the Term of this Agreement, without obtaining the other’s prior written approval. Should an employee change employment from one party to the other, the new employer shall pay the old employer a fee equivalent to [Twenty Percent (20%)] of the employee’s new compensation, annualized for the first year.
10.3 Governing Law & Jurisdiction. This agreement and the parties’ actions under this Agreement shall be governed by and construed under the laws of the state of Montana without reference to conflict of law principles. The parties hereby expressly consent to the jurisdiction and venue of the federal and state courts within the state of Montana. Each party hereby irrevocably consents to the service of process in any such action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, to such party at its address set forth in the proposal for this Agreement, such service to become effective thirty (30) days after such mailing.
10.4 Entire Agreement. This Agreement and Proposal, including the attached exhibits, constitutes the entire Agreement between both parties concerning this transaction, and replaces all previous communications, representations, understandings, and Agreements, whether verbal or written between the parties to this Agreement or their representatives. No representations or statements of any kind made by either party, which are not expressly stated in this Agreement, shall be binding on such parties
10.5 All Amendments in Writing. No waiver, amendment, or modification of any provisions of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom such waiver, amendment or modification is sought to be enforced. Furthermore, no provisions in either party’s purchase orders, or in any other business forms employed by either party will supersede the terms and conditions of this Agreement.
10.6 Notices. Any notice required or permitted by this Agreement shall be deemed given if sent by registered mail, postage prepaid with return receipt requested, addressed to the other party at the address set forth in the preamble of this Agreement or at such other address for which such party gives notice hereunder. Delivery shall be deemed effective three (3) days after deposit with postal authorities.
10.7 Costs of Legal Action. In the event any action is brought to enforce this Agreement, the prevailing party shall be entitled to recover its costs of enforcement including, without limitation, attorneys’ fees and court costs.
10.8 Inadequate Legal Remedy. Both parties understand and acknowledge that violation of their respective covenants and Agreements may cause the other irreparable harm and damage, that may not be recovered at law, and each agrees that the other’s remedies for breach may be in equity by way of injunctive relief, as well as for damages and any other relief available to the non-breaching party, whether in law or in equity.
10.9 Arbitration. Any dispute relating to the interpretation or performance of this Agreement shall be resolved at the request of either party through binding arbitration. Arbitration shall be conducted in Flathead, Montana in accordance with the then-existing rules of the American Arbitration Association. Judgment upon any award by the arbitrators may be entered by any state or federal court having jurisdiction. [Company] and MARS5, LLC intend that this Agreement to arbitrate be irrevocable.
10.10 Delay is Not a Waiver. No failure or delay by either party in exercising any right, power or remedy under this Agreement, except as specifically provided in this Agreement, shall operate as a waiver of any such right, power or remedy.
10.11 Force Majeure. In the event that either party is unable to perform any of its obligations under this Agreement or to enjoy any of its benefits because of any Act of God, strike, fire, flood, governmental acts, orders or restrictions, Internet system unavailability, system malfunctions or any other reason where failure to perform is beyond the reasonable control and not caused by the negligence of the nonperforming party (a “Force Majeure Event”), the party who has been so affected shall give notice immediately to the other party and shall use its reasonable best efforts to resume performance. Failure to meet due dates resulting from a Force Majeure Event shall extend such due dates for a reasonable period. However, if the period of nonperformance exceeds sixty (60) days from the receipt of notice of the Force Majeure Event, the party whose ability to perform has not been affected may, by giving written notice, terminate this Agreement effective immediately upon such notice or at such later date as is therein specified.
10.12 Assignability & Binding Effect. Except as expressly set forth within this Agreement, neither party may transfer or assign, directly or indirectly, this Agreement or its rights and obligations hereunder without the express written permission of the other party, not to be unreasonably withheld; provided, however, that both parties shall have the right to assign or otherwise transfer this Agreement to any parent, subsidiary, affiliated entity or pursuant to any merger, consolidation or reorganization, provided that all such assignees and transferees agree in writing to be bound by the terms of this Agreement prior to such assignment or transfer. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns.
10.13 Severability. If any provisions of this Agreement are held by a court of competent jurisdiction to be invalid under any applicable statute or rule of law, they are to that extent to be deemed omitted and the remaining provisions of this Agreement shall remain in full force and effect.
10.14 Cumulative Rights. Any specific right or remedy provided in this Agreement will not be exclusive but will be cumulative upon all other rights and remedies described in this section and allowed under applicable law.
10.15 Headings. The titles and headings of the various sections and sections in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever, or to explain, modify or place any construction upon or on any of the provisions of this Agreement. Every copy shall be just as valid as the original.
10.16 Counterparts. This Agreement may be executed in multiple counterparts, any one of which will be considered an original, but all of which will constitute one and the same instrument. Even after the termination of the Agreement, the parties may still have certain responsibilities such as keeping information confidential.
10.17 Survival of Certain Provisions. The warranties and the indemnification and confidentiality obligations set forth in the Agreement shall survive the termination of the Agreement by either party for any reason.