This Marketing Agreement (this “Agreement”), dated as of _____________________ (the “Effective Date”), is between __________________________, (“The Marketer”) located _______________________________ and _____________________________ , located at ___________________________________________ , ________________________ , ______________________ , _______________ , Email Address ________________________________ (“The Publisher”). The Marketer and The Publisher are sometimes individually referred to as “Party” and collectively referred to as the “Parties”.
WHEREAS, The Marketer and The Publisher desire to establish strategic marketing agreement whereby The Marketer will serve as a marketing rep for the book publisher. This Agreement may be modified from time to time in the form of a written instrument signed by both Parties (an “Amendment”). The terms of any Amendment executed during this Agreement will be subject to the terms of this Agreement unless otherwise stipulated in the Amendment.
SCOPE OF ACTIVITIES
The Marketer will undertake to market the printed, eBook material, which includes: textbooks, the curriculum, and the flashcards and E-library books.
In consideration of the services rendered by the Marketer, the Marketer will be paid a 10% commission on all sales made for the printed and eBook, which includes: textbooks, the curriculum, and the flashcards. For the e-library, the payments will be made according to Appendix A. The payments will be made quarterly.
The Publisher grants to The Marketer a non-exclusive, non-transferable, royalty-free license to use The Publisher’s trade names, trademarks, logos and service marks (collectively Marks) in connection with the performance of this Agreement. Except as specifically provided in this Agreement, nothing in this Agreement shall confer upon The Marketer any right, title or interest in any of the Marks or goodwill of The Publisher. The Marketer acknowledges that The Publisher’s Marks and any related goodwill are the sole and exclusive property of The Publisher.
The Publisher acknowledges that it retains ownership of all its Marks and other intellectual property rights that are licensed to it. The Marketer acknowledges that its utilization of The Publisher’s Marks will not create in it, nor will it represent it has, any right, title or interest in or to The Publisher’s Marks other than the express and limited right to use The Publisher’s Marks as granted under this Agreement. The Marketer agrees that it shall cease using The Publisher’s Marks immediately upon request, and in no event shall this license survive the term of this Agreement.
TERM AND TERMINATION
The term of this Agreement shall be _____________ from the Commencement Date, unless terminated earlier pursuant to the provisions of this Agreement.
Termination for Cause
If either Party materially defaults in the performance of any provision of this Agreement, and such default is not cured within 30 days after the non-defaulting Party gives the defaulting Party written notice of such default, then the non-defaulting Party shall be entitled to terminate the Agreement immediately upon written notice of termination to the defaulting Party.
Effect of Termination
Termination shall not relieve either Party of any obligations incurred prior to the termination. Upon termination, The Marketer agrees to (i) cease all promotions of The Publisher’s offerings; (ii) cease all use of The Publisher’s technology and Marks; and (iii) cease making The Publisher’s offerings available in or through a website or otherwise, and upon request, to promptly destroy or return all copies (electronic or written) of the content, technology, and any other confidential or proprietary information in The Marketer’s possession or control. Without limiting the foregoing in any way, the Parties agree that following termination, each Party may continue to make their offerings/services available directly to users subscribing to the offering/service prior to termination, without any liability or obligation to the other Party.
WARRANTIES AND DISCLAIMER
Each Party represents and warrants to the other that:
(i) It has the full corporate right and authority to enter into this Agreement and to perform the acts required of it hereunder;
(ii) the execution of this Agreement by such Party and the performance by such Party of its obligations and duties hereunder do not and shall not violate any other Agreement to which such Party is a Party or by which it is otherwise bound;
(iii) When executed and delivered by such Party, this Agreement shall constitute the legal, valid and binding obligation of such Party, enforceable against such Party according to its terms;
(iv) Such Party acknowledges that the other Party makes no representations, warranties or Agreements related to the subject matter hereof that are not expressly specified in this Agreement.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES AND EACH PARTY HEREBY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, REGARDING THE PRODUCTS AND SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
Protection of Information
The parties may provide each other with confidential information and trade secrets, including without limitation, information on their respective organization, business, finances, personnel, services, systems, pricing, structure, proprietary products and processes, transactions and/or business relations (collectively, the “Information”). The term “Information” shall not include (i) information generally available to the public through no fault of the other Party, (ii) information which the other Party already had knowledge of, or (iii) information which has become part of the public domain through no fault of the other Party. Each Party agrees to retain in confidence at all times and to require its employees, consultants, professional representatives and agents to retain in confidence all information disclosed by the other Party. Each Party shall only use the other’s information solely for the purpose of performing obligations under this Agreement, and only disclose the Confidential Information on a need-to-know basis. Each party shall take all necessary precautions in handling the Confidential Information of the other party and limit disclosures on a strict need-to-know basis. Further, the receiving Party may disclose information to the extent ordered to be disclosed by subpoena, other legal process or requirement of law, after first giving the disclosing Party a reasonable opportunity to contest such disclosure requirement.
All notices that either Party is required or may desire to serve upon the other Party shall be in writing and addressed to the Party to be served at the respective addresses set forth herein and shall be sent via U.S. Express Mail or private express courier service with confirmed receipt and will be effective upon receipt at the addresses listed herein (unless the Parties are notified in writing of a change in address, in which case notice will be sent to the new address).
Unless the context of this Agreement clearly requires otherwise, any notice or other communication required by this Agreement, regardless of whether the applicable subsection of this Agreement contemplates email delivery of such notice or communication, may be done via email.
This Agreement constitutes the entire understanding and agreement between the parties with respect to the transactions contemplated, and supersedes any and all prior or contemporaneous oral or written representation, understanding, agreement or communication between the Parties concerning the subject matter hereof. Neither Party is relying upon any warranties, representations, assurances, or inducements not expressly set forth herein.
No waiver of any provision of this Agreement or any rights or obligations of either Party hereunder shall be effective, except pursuant to a written instrument signed by the Party waiving compliance, and any such waiver shall be effective only in the specific instance and for the specific purpose stated in such writing.
Neither Party shall be deemed in default hereunder, nor shall it hold the other Party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to earthquake, flood, fire, storm, natural disaster, act of God, war, armed conflict, labour strike, lockout, pandemic or boycott, provided that the Party relying upon this section (i) shall have given the other Party prompt written notice thereof and, in any event, within five (5) days of discovery thereof and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this section extends for a period in excess of thirty (30) days in the aggregate, either Party may immediately terminate this Agreement.
The section and paragraph headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, govern, limit, modify or construe the scope or extent of the provisions of this Agreement to which they may relate. Such headings are not part of this Agreement and shall not be given any legal effect.
Amendments and Severability
No amendment or modification of this Agreement, nor any waiver of any rights, will be effective unless assented to in writing by the party to be charged, and the waiver of any breach or default will not constitute a waiver of any other right hereunder or any subsequent breach or default. In the event that any provision of this Agreement should be found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained shall not, in any way, be affected or impaired thereby.
The Parties to this Agreement are independent contractors. 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, joint venture, partnership, franchise, sales, representative or employment relationship between the Parties or to impose any partnership obligation or liability upon either Party. Each Party shall bear its own costs and expenses in performing this Agreement.
This Agreement shall be governed by and construed in accordance with the laws of the State of Missouri, without reference to conflicts of laws or choice of laws rules. All legal actions relating to this Agreement shall be brought in the state or federal courts located in the State of Missouri.
In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed, or if any provision is held invalid by a court of competent jurisdiction, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the Parties, and the remainder of this Agreement shall remain in full force and effect. There shall be no presumption for or against either Party as a result of such Party being the principal drafter of this Agreement.
During the Term and for a period of 1 year thereafter, the Parties will maintain books and records related to the customer transactions contemplated under this Agreement. Upon reasonable notice, the requested Party will provide such books and records to the requesting Party for review to ensure the requested Party’s compliance with the terms of this Agreement.
IN WITNESS WHEREOF, each of The Marketer and The Publisher has caused this Agreement to be signed and delivered by its duly authorized representative.
Full name: __________________________
Full name: __________________________
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