Exclusive Representation and Promotion Agreement

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This Exclusive Representation and Promotion Agreement is between a company who has developed a unique process and a company who agrees to market this process. This agreement sets out specific details about the process and who will own any intellectual property rights.

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This Exclusive Representation and Promotion Agreement is between a marketing company and a corporation and/or company who has developed a unique process and desires to market the process in specific countries. This agreement sets out the arrangement terms including specific details about the process, relationship between the parties and ownership of any intellectual property. It also sets forth that the process owner will assist the marketing company in promoting and demonstrating the process to prospective users. A written Exclusive Representation and Promotion Agreement will prove invaluable in the event of disagreements or litigation between the parties.

This Exclusive Representation and Promotion Agreement contains the following:
  • Parties: Sets forth the names of the marketing company and company who developed the process;
  • Recitals: Sets forth specifics about the process to be marketed and that marketing company desires to market the process in specific countries;
  • Process Ownership: Sets forth that ownership of the process will remain with the company who developed it;
  • Exclusivity: Company agrees to promote and market the process exclusively through the marketing company;
  • Marketing: Sets forth that the company will assist marketing company in the demonstration and use of the process when reasonably necessary;
  • Relationship: Each company is considered an independent contractor and no employment relationship is created;
  • Fees/Licenses: Sets forth the fees which marketing company will pay to company for marketing and distribution of the process. Company grants marketing company the non-exclusive rights to use its materials;
  • Confidential Information: Each party agrees to protect the confidentiality of any confidential information for a specific number of years;
  • Signature: Both parties must sign this agreement.

Protect your rights and your company by purchasing this attorney-prepared form.

This attorney-prepared package includes:
  1. General Information
  2. Instructions and Checklist
  3. Exclusive Representation and Promotion Agreement
State Law Compliance: This form complies with the laws of all states
This is the content of the form and is provided for your convenience. It is not necessarily what the actual form looks like and does not include the information, instructions and other materials that come with the form you would purchase. An actual sample can also be viewed by clicking on the "Sample Form" near the top left of this page.
 
 
Exclusive Representation and
Promotion Agreement

 

 
This Agreement is made this ___ day of ____________, ________, by and between:
 
ABC MARKETING, a corporation incorporated pursuant to the laws of _______________________ (hereinafter “ABC Marketing”)
 
- and
 
CORPORATION, a corporation incorporated pursuant to the laws of _____________________ (hereinafter “Corporation”)
 
RECITALS:
A.   ABC Marketing is primarily engaged in marketing, promotion, development and sales of _____________________.
B.   Corporation has developed a unique process of _______________ and has the proprietary technology necessary for the construction and operation of a ___________ system called __________ (“SYSTEM”) (see Exhibit A attached hereto).
C.   ABC Marketing wishes to finance the construction and testing of a SYSTEM pilot unit (“Pilot Unit”) and to market and promote full-scale, commercial versions of __________________ to be operated jointly by Corporation and ABC Marketing in the countries (“Subject Countries”) as specified in paragraph 1(f).
D.   Corporation desires ABC Marketing's assistance with the marketing and promotion of SYSTEM in the Subject Countries and wishes to engage ABC Marketing to assist in these endeavors under the following terms and conditions.
E.   All of the above recitals are hereby made an integral part of this Agreement and shall have a substantive effect in interpreting the provisions of this Agreement.
 
TERMS AND CONDITIONS
 
WHEREAS, ABC Marketing represents that it possesses the skill, ability and infrastructure to promote, develop, and market Corporation's SYSTEM technology as defined herein in the Subject Countries and where it is deemed to the mutual benefit of Corporation and ABC Marketing to enter into this Agreement upon the terms and conditions set forth.
 
NOW THEREFORE, in consideration for the mutual covenants and promises herein contained, the undersigned hereby agree to the following:
 
1.   RELATIONSHIP BETWEEN CORPORATION AND ABC MARKETING
 
(a)   ABC Marketing agrees to finance the construction and testing of a SYSTEM Pilot Unit and to market and promote scaled up SYSTEM units to be operated jointly by Corporation and ABC Marketing in the Subject Countries as set forth in this Agreement.
 
(b)   Corporation agrees to engage ABC Marketing under the following terms and conditions to finance the construction of the SYSTEM Pilot Unit and to provide marketing and promotion services for the SYSTEM technology contemplated herein.
 
(c)   ABC Marketing agrees and acknowledges that any present and future SYSTEM technology or any other technology developed by Corporation is exclusively owned and will continue to be exclusively owned by Corporation.
 
(d)   ABC Marketing acknowledges that this Agreement relates only to the _________________ application of the SYSTEM technology and no other application whatsoever.
 
(e)   ABC Marketing specifically acknowledges and agrees that the Pilot Unit contemplated in this Agreement shall remain the exclusive property of Corporation.
 
(f)   Corporation grants to ABC Marketing the marketing and promotion rights to market and promote SYSTEM (products) in the Subject Countries only and subject to the terms of this Agreement.  Specifically, this Agreement does not deal with or affect in any manner whatsoever the marketing and promotion rights for (countries) are retained by Corporation which are specifically not granted herein. Notwithstanding the foregoing, Corporation reserves the right and sole discretion not to install and operate the SYSTEM operation in any country or Subject Country where it has reasonable grounds to believe that its employees, technology or equipment may be subject to danger or risk of any kind whatsoever.
 
(g)   Corporation agrees to promote and market SYSTEM in the Subject Countries exclusively through ABC Marketing.  acknowledges and agrees that only SYSTEM's use in _______________________ is subject to the rights granted herein and that Corporation shall retain the rights to all other uses of SYSTEM technology including but not limited to use of SYSTEM byproducts.
 
(h)   Corporation will use its best efforts to assist ABC Marketing in the demonstration and use of the technology as may reasonably be necessary.
 
(i)   ABC Marketing shall incur all costs relating to the operation, stand-by and demonstration of the SYSTEM Pilot Unit.
 
(j)   Corporation shall be the sole and exclusive manufacturer, supplier and operator of SYSTEM equipment to ABC Marketing and to any of ABC Marketing's affiliates, associates or customers.
 
(k)   Corporation's employees and Corporation's authorized personnel shall have the sole authority and exclusive right to construct, install, operate and maintain any and all of the SYSTEM equipment and be responsible for the security of such equipment.
 
(l)   It is understood that neither party shall exercise any control over the activities and operation of the other party, each being recognized hereunder as independent business entities, bound together pursuant to the terms of this Agreement. Nothing contained in this Agreement shall be deemed to constitute either party as the partner, agent, employee or legal representative of the other party. Neither party hereto shall have any authority to act for or assume any obligations or responsibilities on behalf of the other party.
 
(m)   Neither party shall hold itself out contrary to the terms of this Agreement, and neither party shall become liable by any representation, act or omission of the other which is contrary to the provisions hereof. Neither party shall have the authority to make any public announcement or representation involving the other party without the prior written consent of the other party. The Agreement is not for the benefit of any third party and shall not be deemed to give any right or remedy to any third party whether referred to herein or not.
 
(n)   Corporation agrees to establish a reasonable plan as determined by Corporation in its sole discretion to protect the SYSTEM technology and ensure continuance of Corporation in the event of [insert name of principal]'s incapacitation or death.
 
(o)   Corporation may, at its sole discretion, use any means at its disposal to ensure protection of its SYSTEM technology from theft or misuse.
 
(p)   This Agreement creates an independent contractual relationship and is not to be construed as an employment agreement. Because of that, both parties, by their signature, represent they will make all required filings and pay all required taxes including any required worker's compensation, payroll taxes, withholding taxes and social security on any monies generated as warrant and represent that their businesses are properly registered and licensed with the appropriate State(s), and with any other federal, state or municipal licensing agencies necessary in order to operate in full accordance with this Agreement.
 
(q)   The parties hereto mutually agree that if either party shall be in default or breach of any of the terms or conditions of this Agreement, and such default or breach shall result in any loss or damage to the other party, then and in that event the defaulting party hereby agrees to pay the other party any such loss or damage and further agrees to indemnify and hold the other part harmless from any claim, demand, cause of action or lawsuit which may result from or be caused by such breach of this Agreement.
 
(r)   ABC Marketing agrees to use its best efforts to diligently, faithfully, loyally and legally promote, finance and market ___________________________ using Corporation's SYSTEM technologies in the Subject Countries subject to the terms of this Agreement.
 
2.   FEES
 
(a)    In consideration for the exclusive right to promote, market and distribute the technology of Corporation in the Subject Countries and to finance the construction of the SYSTEM Pilot Unit as agreed upon herein, ABC Marketing shall pay to Corporation the following:
 
i.   USD________________________
 
(b)   The parties agree that Corporation shall not commence the construction of the SYSTEM Pilot Unit until Corporation receives from ABC Marketing $_____________ of the fee described in paragraph 2(a) herein.
 
(c)   The parties acknowledge and agree that Corporation shall not be required to participate in or pay for any expenses incurred by ABC Marketing unless Corporation specifically agrees in writing to pay for such expenses prior to ABC Marketing incurring such expenses.
 
(d)   ABC Marketing commits to pay Corporation ________ percent (___%) of any fee (“Fee”) paid to ABC Marketing by any of the Subject Countries or any party for rights to exclusively engage a SYSTEM operation in that country subject to the following:
 
(i)   The minimum SYSTEM operation engagement Fee for each of the Subject Countries shall be one $__________________;
 
(ii)   Corporation must participate together with ABC Marketing in any Fee negotiations for any Subject Country or other ABC Marketing clients;
 
(iii)   ABC Marketing must provide Corporation with written evidence of the Fee paid to ABC Marketing, its associates or affiliates.
 
(e)   ABC Marketing guarantees that it shall comply with the following development schedule (“Development Schedule”) and enter into contracts (“Contract” or “Contracts”) to operate full scale SYSTEM operations in the Subject Countries on or before the following deadlines:
(i)   ________________________
(ii)   ________________________
(iii)   ________________________
 
 
3.   LICENSES
 
For the Term of this Agreement, Corporation hereby grants to ABC Marketing a non-exclusive, royalty-free, worldwide license to use, reproduce and distribute any advertising and promotional materials including all artwork, trademarks, logos, designs, ads and the like provided by Corporation to ABC Marketing in connection with the terms of Sections 1 (the "Corporation Materials"). Title to and ownership of all intellectual property rights of the Corporation Materials shall remain with Corporation or its third party licensors.
 
4.   REPRESENTATIONS AND WARRANTIES
 
(a)   Corporation shall be solely responsible for any legal liability arising out of or relating to the content on the Corporation Site, the Corporation Materials and any advertisements or other materials provided for or by Corporation under this Agreement (collectively, the "Corporation Content").  Corporation represents and warrants that the Corporation Content does not and will not, and ABC Marketing's use of the Corporation Content will not: (a) infringe on any third party's copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (b) violate any law, statute, ordinance or regulation, including without limitation the laws and regulations governing export control, unfair competition, antidiscrimination or false advertising; (c) be defamatory or trade libelous; (d) be defamatory, harmful to minors, obscene or child pornographic; (e) be materially false, misleading or inaccurate or cannot be promptly fulfilled; or (f) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines.
 
(b)   CORPORATION MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED WITH RESPECT TO THE CORPORATION SITE, THE ABC MARKETING CONTENT OR THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE THEREOF, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHER WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
 
5.   INDEMNIFICATION.
 
Corporation com agrees to defend, indemnify and hold harmless ABC Marketing and its directors, officers, agents and employees for any and all losses, costs, liabilities or expenses (including without limitation reasonable attorneys' and expert witnesses' fees) incurred or arising from: (a) any breach of the representations or warranties made by Corporation in Section 4 above; (b) any claim arising from the sale of license of Corporation's goods or services; or (c) any other act, omission or representation by Corporation. ABC Marketing may participate in the defense at its option and expense.
 
6.   CONFIDENTIALITY
 
(a)   Confidential Information. The parties agree and acknowledge that they may be required to disclose to each other certain confidential information, including, but not limited to, information concerning the other party's online services and web sites, technology, software, tools, business, or plans for the future in connection with any of the foregoing, information concerning customers, suppliers, personnel and other business relationships, sales and marketing plans, financial information and other confidential information, all of which shall be deemed "Confidential Information" for the purposes of this Section 6.
 
(b)   For a period of ____ (___) years from the date of receipt of any Confidential Information hereunder the receiving party agrees to protect the confidentiality of the disclosing party's Confidential Information with at least the same degree of care that it utilizes with respect to its own similar proprietary information, but in no event less than a reasonable standard of care, including without limitation agreeing:(a) Not to disclose or otherwise permit any other person or entity access to, in any manner, the Confidential Information, or any part thereof in any form whatsoever, except that such disclosure or access shall be permitted to (i) an employee or consultant of the receiving party requiring access to the Confidential Information in the course of his or her employment or consulting services in connection with this Agreement and who has agreed in writing to maintain the confidentiality of the confidential information of third parties in the receiving party's possession; or (ii) a director, legal advisor, or financial advisor of the recipient party hereunder, provided that such parties are bound to maintain the confidentiality of such information and provided further that they are permitted to use such Confidential Information only for the purposes of carrying out their fiduciary or other advisory responsibilities on behalf of the party hereto from which it received such Confidential Information; and (b) Not to use the Confidential Information for any purpose other than to carry out the purposes of this Agreement.
 
(c)   Exceptions. Nothing in this Section 6 shall restrict the receiving party with respect to information or data, whether or not identical or similar to that contained in the Confidential Information, if such information or data:
(i) was rightfully possessed by the receiving party before it was received from the disclosing party; (ii) is independently developed by the receiving party without reference to the disclosing party's information or data; (iii) is subsequently furnished to the receiving party by a third party not under any obligation of confidentiality with respect to such information nor data, and without restrictions on use or disclosure; or (iv) is or becomes public or available to the general public otherwise than through any act or default of the receiving party.
 
7.   TERM AND TERMINATION; SURVIVAL
 
(a)   Term. Unless terminated earlier in accordance with this Section 7, this Agreement shall commence on the Effective Date and shall remain in full force and effect until ______________, 20____  (the "Term").
 
(b)   Termination.  Either party may terminate this Agreement:
(i)   Immediately upon written notice if the other party breaches a material term or condition of the Agreement and does not cure such breach (or commence a cure in a manner satisfactory to the non-breaching party) within thirty (30) days (five (5) days in connection with late payment) after written notice of such breach; or
(ii)   Immediately upon written notice if the other ceases to do business, or otherwise terminates its business operations, except as a result of a permitted assignment; or
(iii)   Immediately and without notice if the other becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against the other.
 
8.   GENERAL
 
(a)   Entire Agreement. This Agreement, together with any agreement incorporated herein by reference and any Exhibits hereto or thereto, represents the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and thereof and supersedes all prior agreements and communications relating to such subject matter, oral or written. No Party shall be liable or bound to any other party in any manner by any representations, warranties or covenants relating to such subject matter except as specifically set forth herein. Notwithstanding the foregoing, the Parties hereby acknowledge and agree that they have entered into that certain Directory & Premium Services Agreement of even date herewith whereby the rights and obligations of the Parties with respect to the subject matter therein shall be governed thereby.
 
(b)   Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. No Party may assign its respective rights and obligations, in whole or in part, under this Agreement without prior written consent of the other Party hereto. Such consent shall not be unreasonably withheld. Any attempt to assign this Agreement without such consent shall be void and of no effect.
 
(c)   Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of __________ applicable to agreements made and to be performed entirely within such state, without regard to the conflicts of law principles of such state.
 
(d)   Severability. If any provision of this Agreement (or any portion thereof) or the application of any such provision (or any portion thereof) to any person or circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision hereof (or the remaining portion thereof) or the application of such provision to any other persons or circumstances, and such provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
 
(e)   Amendment and Waiver. This Agreement may not be amended except by an instrument in writing signed on behalf of each Party hereto. By an instrument in writing, Corporation or ABC Marketing, as the case may be, may waive compliance by the other party with any term or provision of this Agreement that Corporation or ABC Marketing, as the case may be, was or is obligated to comply with or perform. The waiver by any Party of a breach or default of any provision of this Agreement by any other Party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of any party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such Party.
 
(f)   Independent Contractors. The Parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency between the Parties. No Party shall have the power to bind any other Party or incur obligations on any other Party's behalf without such other Party's prior written consent.
 
(g)   Third Parties. This Agreement is for the sole benefit of the Parties hereto and their permitted assigns and nothing herein expressed or implied shall give or be construed to give to any person, other than the Parties hereto and their assigns, any legal or equitable rights hereunder.
 
(h)   Force Majeure. No Party shall be liable for failure to perform or delay in performing any obligation (other than the payment of money) under this Agreement if such failure or delay is due to fire, flood, earthquake, strike, war (declared or undeclared), embargo, blockade, legal prohibition, governmental action, riot, insurrection, damage, destruction or any other similar cause beyond the control of such Party.
 
(i)   Counterparts; Facsimile Signatures. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more such counterparts have been signed by each party and delivered to each other Party. This Agreement may be executed and delivered by facsimile and the Parties agree that such facsimile execution and delivery shall have the same force and effect as delivery of an original document with original signatures, and that each Party may use such facsimile signatures as evidence of the execution and delivery of this Agreement by all Parties to the same extent that an original signature could be used.
 
(j)   Headings; Exhibits. The headings contained in this Agreement hereto, if any, are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Any capitalized terms used in any Exhibit but not otherwise defined therein, shall have the meaning as defined in this Agreement. When a reference is made in this Agreement to a Section or Exhibit, such reference shall be to a Section of, or an Exhibit to, this Agreement unless otherwise indicated.
 
(k)   NO CONSEQUENTIAL OR SPECIAL DAMAGES. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OF USE, LOST BUSINESS, LOST DATA OR LOST PROFITS, INCOME OR GOODWILL, THE REJECTION OR REMOVAL OF ANY CONTENT, OR ANY DELAY IN DISPLAYING OR THE FAILURE TO DISPLAY THE CONTENT ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
 
(l)   LIABILITY. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, EACH PARTY'S AGGREGATE LIABILITY TO THE OTHER PARTY AND/OR ANY THIRD PARTY UNDER ANY CLAIMS RELATING TO OR ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED AN AMOUNT GREATER THAN THE CASH AMOUNTS RECEIVED BY CORPORATION UNDER THIS AGREEMENT.
 
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the date first above written.
CORPORATION   ABC MARKETING
By   ___________________________________   By   __________________________________
Name   ___________________________________   Name________________________________
Title   ___________________________________   Title   _________________________________
Date   ___________________________________   Date   _________________________________
 
 
Number of Pages13
DimensionsDesigned for Letter Size (8.5" x 11")
EditableYes (.doc, .wpd and .rtf)
UsageUnlimited number of prints
Product number#43607
This is the content of the form and is provided for your convenience. It is not necessarily what the actual form looks like and does not include the information, instructions and other materials that come with the form you would purchase. An actual sample can also be viewed by clicking on the "Sample Form" near the top left of this page.
 
 
Exclusive Representation and
Promotion Agreement

 

 
This Agreement is made this ___ day of ____________, ________, by and between:
 
ABC MARKETING, a corporation incorporated pursuant to the laws of _______________________ (hereinafter “ABC Marketing”)
 
- and
 
CORPORATION, a corporation incorporated pursuant to the laws of _____________________ (hereinafter “Corporation”)
 
RECITALS:
A.   ABC Marketing is primarily engaged in marketing, promotion, development and sales of _____________________.
B.   Corporation has developed a unique process of _______________ and has the proprietary technology necessary for the construction and operation of a ___________ system called __________ (“SYSTEM”) (see Exhibit A attached hereto).
C.   ABC Marketing wishes to finance the construction and testing of a SYSTEM pilot unit (“Pilot Unit”) and to market and promote full-scale, commercial versions of __________________ to be operated jointly by Corporation and ABC Marketing in the countries (“Subject Countries”) as specified in paragraph 1(f).
D.   Corporation desires ABC Marketing's assistance with the marketing and promotion of SYSTEM in the Subject Countries and wishes to engage ABC Marketing to assist in these endeavors under the following terms and conditions.
E.   All of the above recitals are hereby made an integral part of this Agreement and shall have a substantive effect in interpreting the provisions of this Agreement.
 
TERMS AND CONDITIONS
 
WHEREAS, ABC Marketing represents that it possesses the skill, ability and infrastructure to promote, develop, and market Corporation's SYSTEM technology as defined herein in the Subject Countries and where it is deemed to the mutual benefit of Corporation and ABC Marketing to enter into this Agreement upon the terms and conditions set forth.
 
NOW THEREFORE, in consideration for the mutual covenants and promises herein contained, the undersigned hereby agree to the following:
 
1.   RELATIONSHIP BETWEEN CORPORATION AND ABC MARKETING
 
(a)   ABC Marketing agrees to finance the construction and testing of a SYSTEM Pilot Unit and to market and promote scaled up SYSTEM units to be operated jointly by Corporation and ABC Marketing in the Subject Countries as set forth in this Agreement.
 
(b)   Corporation agrees to engage ABC Marketing under the following terms and conditions to finance the construction of the SYSTEM Pilot Unit and to provide marketing and promotion services for the SYSTEM technology contemplated herein.
 
(c)   ABC Marketing agrees and acknowledges that any present and future SYSTEM technology or any other technology developed by Corporation is exclusively owned and will continue to be exclusively owned by Corporation.
 
(d)   ABC Marketing acknowledges that this Agreement relates only to the _________________ application of the SYSTEM technology and no other application whatsoever.
 
(e)   ABC Marketing specifically acknowledges and agrees that the Pilot Unit contemplated in this Agreement shall remain the exclusive property of Corporation.
 
(f)   Corporation grants to ABC Marketing the marketing and promotion rights to market and promote SYSTEM (products) in the Subject Countries only and subject to the terms of this Agreement.  Specifically, this Agreement does not deal with or affect in any manner whatsoever the marketing and promotion rights for (countries) are retained by Corporation which are specifically not granted herein. Notwithstanding the foregoing, Corporation reserves the right and sole discretion not to install and operate the SYSTEM operation in any country or Subject Country where it has reasonable grounds to believe that its employees, technology or equipment may be subject to danger or risk of any kind whatsoever.
 
(g)   Corporation agrees to promote and market SYSTEM in the Subject Countries exclusively through ABC Marketing.  acknowledges and agrees that only SYSTEM's use in _______________________ is subject to the rights granted herein and that Corporation shall retain the rights to all other uses of SYSTEM technology including but not limited to use of SYSTEM byproducts.
 
(h)   Corporation will use its best efforts to assist ABC Marketing in the demonstration and use of the technology as may reasonably be necessary.
 
(i)   ABC Marketing shall incur all costs relating to the operation, stand-by and demonstration of the SYSTEM Pilot Unit.
 
(j)   Corporation shall be the sole and exclusive manufacturer, supplier and operator of SYSTEM equipment to ABC Marketing and to any of ABC Marketing's affiliates, associates or customers.
 
(k)   Corporation's employees and Corporation's authorized personnel shall have the sole authority and exclusive right to construct, install, operate and maintain any and all of the SYSTEM equipment and be responsible for the security of such equipment.
 
(l)   It is understood that neither party shall exercise any control over the activities and operation of the other party, each being recognized hereunder as independent business entities, bound together pursuant to the terms of this Agreement. Nothing contained in this Agreement shall be deemed to constitute either party as the partner, agent, employee or legal representative of the other party. Neither party hereto shall have any authority to act for or assume any obligations or responsibilities on behalf of the other party.
 
(m)   Neither party shall hold itself out contrary to the terms of this Agreement, and neither party shall become liable by any representation, act or omission of the other which is contrary to the provisions hereof. Neither party shall have the authority to make any public announcement or representation involving the other party without the prior written consent of the other party. The Agreement is not for the benefit of any third party and shall not be deemed to give any right or remedy to any third party whether referred to herein or not.
 
(n)   Corporation agrees to establish a reasonable plan as determined by Corporation in its sole discretion to protect the SYSTEM technology and ensure continuance of Corporation in the event of [insert name of principal]'s incapacitation or death.
 
(o)   Corporation may, at its sole discretion, use any means at its disposal to ensure protection of its SYSTEM technology from theft or misuse.
 
(p)   This Agreement creates an independent contractual relationship and is not to be construed as an employment agreement. Because of that, both parties, by their signature, represent they will make all required filings and pay all required taxes including any required worker's compensation, payroll taxes, withholding taxes and social security on any monies generated as warrant and represent that their businesses are properly registered and licensed with the appropriate State(s), and with any other federal, state or municipal licensing agencies necessary in order to operate in full accordance with this Agreement.
 
(q)   The parties hereto mutually agree that if either party shall be in default or breach of any of the terms or conditions of this Agreement, and such default or breach shall result in any loss or damage to the other party, then and in that event the defaulting party hereby agrees to pay the other party any such loss or damage and further agrees to indemnify and hold the other part harmless from any claim, demand, cause of action or lawsuit which may result from or be caused by such breach of this Agreement.
 
(r)   ABC Marketing agrees to use its best efforts to diligently, faithfully, loyally and legally promote, finance and market ___________________________ using Corporation's SYSTEM technologies in the Subject Countries subject to the terms of this Agreement.
 
2.   FEES
 
(a)    In consideration for the exclusive right to promote, market and distribute the technology of Corporation in the Subject Countries and to finance the construction of the SYSTEM Pilot Unit as agreed upon herein, ABC Marketing shall pay to Corporation the following:
 
i.   USD________________________
 
(b)   The parties agree that Corporation shall not commence the construction of the SYSTEM Pilot Unit until Corporation receives from ABC Marketing $_____________ of the fee described in paragraph 2(a) herein.
 
(c)   The parties acknowledge and agree that Corporation shall not be required to participate in or pay for any expenses incurred by ABC Marketing unless Corporation specifically agrees in writing to pay for such expenses prior to ABC Marketing incurring such expenses.
 
(d)   ABC Marketing commits to pay Corporation ________ percent (___%) of any fee (“Fee”) paid to ABC Marketing by any of the Subject Countries or any party for rights to exclusively engage a SYSTEM operation in that country subject to the following:
 
(i)   The minimum SYSTEM operation engagement Fee for each of the Subject Countries shall be one $__________________;
 
(ii)   Corporation must participate together with ABC Marketing in any Fee negotiations for any Subject Country or other ABC Marketing clients;
 
(iii)   ABC Marketing must provide Corporation with written evidence of the Fee paid to ABC Marketing, its associates or affiliates.
 
(e)   ABC Marketing guarantees that it shall comply with the following development schedule (“Development Schedule”) and enter into contracts (“Contract” or “Contracts”) to operate full scale SYSTEM operations in the Subject Countries on or before the following deadlines:
(i)   ________________________
(ii)   ________________________
(iii)   ________________________
 
 
3.   LICENSES
 
For the Term of this Agreement, Corporation hereby grants to ABC Marketing a non-exclusive, royalty-free, worldwide license to use, reproduce and distribute any advertising and promotional materials including all artwork, trademarks, logos, designs, ads and the like provided by Corporation to ABC Marketing in connection with the terms of Sections 1 (the "Corporation Materials"). Title to and ownership of all intellectual property rights of the Corporation Materials shall remain with Corporation or its third party licensors.
 
4.   REPRESENTATIONS AND WARRANTIES
 
(a)   Corporation shall be solely responsible for any legal liability arising out of or relating to the content on the Corporation Site, the Corporation Materials and any advertisements or other materials provided for or by Corporation under this Agreement (collectively, the "Corporation Content").  Corporation represents and warrants that the Corporation Content does not and will not, and ABC Marketing's use of the Corporation Content will not: (a) infringe on any third party's copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (b) violate any law, statute, ordinance or regulation, including without limitation the laws and regulations governing export control, unfair competition, antidiscrimination or false advertising; (c) be defamatory or trade libelous; (d) be defamatory, harmful to minors, obscene or child pornographic; (e) be materially false, misleading or inaccurate or cannot be promptly fulfilled; or (f) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines.
 
(b)   CORPORATION MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED WITH RESPECT TO THE CORPORATION SITE, THE ABC MARKETING CONTENT OR THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE THEREOF, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHER WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
 
5.   INDEMNIFICATION.
 
Corporation com agrees to defend, indemnify and hold harmless ABC Marketing and its directors, officers, agents and employees for any and all losses, costs, liabilities or expenses (including without limitation reasonable attorneys' and expert witnesses' fees) incurred or arising from: (a) any breach of the representations or warranties made by Corporation in Section 4 above; (b) any claim arising from the sale of license of Corporation's goods or services; or (c) any other act, omission or representation by Corporation. ABC Marketing may participate in the defense at its option and expense.
 
6.   CONFIDENTIALITY
 
(a)   Confidential Information. The parties agree and acknowledge that they may be required to disclose to each other certain confidential information, including, but not limited to, information concerning the other party's online services and web sites, technology, software, tools, business, or plans for the future in connection with any of the foregoing, information concerning customers, suppliers, personnel and other business relationships, sales and marketing plans, financial information and other confidential information, all of which shall be deemed "Confidential Information" for the purposes of this Section 6.
 
(b)   For a period of ____ (___) years from the date of receipt of any Confidential Information hereunder the receiving party agrees to protect the confidentiality of the disclosing party's Confidential Information with at least the same degree of care that it utilizes with respect to its own similar proprietary information, but in no event less than a reasonable standard of care, including without limitation agreeing:(a) Not to disclose or otherwise permit any other person or entity access to, in any manner, the Confidential Information, or any part thereof in any form whatsoever, except that such disclosure or access shall be permitted to (i) an employee or consultant of the receiving party requiring access to the Confidential Information in the course of his or her employment or consulting services in connection with this Agreement and who has agreed in writing to maintain the confidentiality of the confidential information of third parties in the receiving party's possession; or (ii) a director, legal advisor, or financial advisor of the recipient party hereunder, provided that such parties are bound to maintain the confidentiality of such information and provided further that they are permitted to use such Confidential Information only for the purposes of carrying out their fiduciary or other advisory responsibilities on behalf of the party hereto from which it received such Confidential Information; and (b) Not to use the Confidential Information for any purpose other than to carry out the purposes of this Agreement.
 
(c)   Exceptions. Nothing in this Section 6 shall restrict the receiving party with respect to information or data, whether or not identical or similar to that contained in the Confidential Information, if such information or data:
(i) was rightfully possessed by the receiving party before it was received from the disclosing party; (ii) is independently developed by the receiving party without reference to the disclosing party's information or data; (iii) is subsequently furnished to the receiving party by a third party not under any obligation of confidentiality with respect to such information nor data, and without restrictions on use or disclosure; or (iv) is or becomes public or available to the general public otherwise than through any act or default of the receiving party.
 
7.   TERM AND TERMINATION; SURVIVAL
 
(a)   Term. Unless terminated earlier in accordance with this Section 7, this Agreement shall commence on the Effective Date and shall remain in full force and effect until ______________, 20____  (the "Term").
 
(b)   Termination.  Either party may terminate this Agreement:
(i)   Immediately upon written notice if the other party breaches a material term or condition of the Agreement and does not cure such breach (or commence a cure in a manner satisfactory to the non-breaching party) within thirty (30) days (five (5) days in connection with late payment) after written notice of such breach; or
(ii)   Immediately upon written notice if the other ceases to do business, or otherwise terminates its business operations, except as a result of a permitted assignment; or
(iii)   Immediately and without notice if the other becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against the other.
 
8.   GENERAL
 
(a)   Entire Agreement. This Agreement, together with any agreement incorporated herein by reference and any Exhibits hereto or thereto, represents the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and thereof and supersedes all prior agreements and communications relating to such subject matter, oral or written. No Party shall be liable or bound to any other party in any manner by any representations, warranties or covenants relating to such subject matter except as specifically set forth herein. Notwithstanding the foregoing, the Parties hereby acknowledge and agree that they have entered into that certain Directory & Premium Services Agreement of even date herewith whereby the rights and obligations of the Parties with respect to the subject matter therein shall be governed thereby.
 
(b)   Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. No Party may assign its respective rights and obligations, in whole or in part, under this Agreement without prior written consent of the other Party hereto. Such consent shall not be unreasonably withheld. Any attempt to assign this Agreement without such consent shall be void and of no effect.
 
(c)   Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of __________ applicable to agreements made and to be performed entirely within such state, without regard to the conflicts of law principles of such state.
 
(d)   Severability. If any provision of this Agreement (or any portion thereof) or the application of any such provision (or any portion thereof) to any person or circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision hereof (or the remaining portion thereof) or the application of such provision to any other persons or circumstances, and such provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
 
(e)   Amendment and Waiver. This Agreement may not be amended except by an instrument in writing signed on behalf of each Party hereto. By an instrument in writing, Corporation or ABC Marketing, as the case may be, may waive compliance by the other party with any term or provision of this Agreement that Corporation or ABC Marketing, as the case may be, was or is obligated to comply with or perform. The waiver by any Party of a breach or default of any provision of this Agreement by any other Party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of any party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such Party.
 
(f)   Independent Contractors. The Parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency between the Parties. No Party shall have the power to bind any other Party or incur obligations on any other Party's behalf without such other Party's prior written consent.
 
(g)   Third Parties. This Agreement is for the sole benefit of the Parties hereto and their permitted assigns and nothing herein expressed or implied shall give or be construed to give to any person, other than the Parties hereto and their assigns, any legal or equitable rights hereunder.
 
(h)   Force Majeure. No Party shall be liable for failure to perform or delay in performing any obligation (other than the payment of money) under this Agreement if such failure or delay is due to fire, flood, earthquake, strike, war (declared or undeclared), embargo, blockade, legal prohibition, governmental action, riot, insurrection, damage, destruction or any other similar cause beyond the control of such Party.
 
(i)   Counterparts; Facsimile Signatures. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more such counterparts have been signed by each party and delivered to each other Party. This Agreement may be executed and delivered by facsimile and the Parties agree that such facsimile execution and delivery shall have the same force and effect as delivery of an original document with original signatures, and that each Party may use such facsimile signatures as evidence of the execution and delivery of this Agreement by all Parties to the same extent that an original signature could be used.
 
(j)   Headings; Exhibits. The headings contained in this Agreement hereto, if any, are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Any capitalized terms used in any Exhibit but not otherwise defined therein, shall have the meaning as defined in this Agreement. When a reference is made in this Agreement to a Section or Exhibit, such reference shall be to a Section of, or an Exhibit to, this Agreement unless otherwise indicated.
 
(k)   NO CONSEQUENTIAL OR SPECIAL DAMAGES. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OF USE, LOST BUSINESS, LOST DATA OR LOST PROFITS, INCOME OR GOODWILL, THE REJECTION OR REMOVAL OF ANY CONTENT, OR ANY DELAY IN DISPLAYING OR THE FAILURE TO DISPLAY THE CONTENT ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
 
(l)   LIABILITY. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, EACH PARTY'S AGGREGATE LIABILITY TO THE OTHER PARTY AND/OR ANY THIRD PARTY UNDER ANY CLAIMS RELATING TO OR ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED AN AMOUNT GREATER THAN THE CASH AMOUNTS RECEIVED BY CORPORATION UNDER THIS AGREEMENT.
 
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the date first above written.
CORPORATION   ABC MARKETING
By   ___________________________________   By   __________________________________
Name   ___________________________________   Name________________________________
Title   ___________________________________   Title   _________________________________
Date   ___________________________________   Date   _________________________________
 
 

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