VIEWS: 15,599 PAGES: 13 CATEGORY: Marketing Agreements POSTED ON: 10/27/2009
This Marketing Services Agreement is an agreement between a company (a client) and marketing consultant for the provision of marketing services. The marketing consultant will provide expert advice on developing the client's marketing strategy, including traditional and online marketing strategies, direct marketing campaigns, development of corporate identity and branding, and the development of campaigns to launch new products. A consultant may be engaged to manage all marketing activities for an organization, to assist in specific areas, or to undertake individual projects. This agreement should include specific terms for the services the marketing consultant has agreed to render as well as restrictive covenants such as non-competition, non-solicitation, non-disclosure of confidential information, and ownership of work product.
This Marketing Services Agreement is an agreement between a company (a client) and marketing consultant for the provision of marketing services. The marketing consultant will provide expert advice on developing the client's marketing strategy, including traditional and online marketing strategies, direct marketing campaigns, development of corporate identity and branding, and the development of campaigns to launch new products. A consultant may be engaged to manage all marketing activities for an organization, to assist in specific areas, or to undertake individual projects. This agreement should include specific terms for the services the marketing consultant has agreed to render as well as restrictive covenants such as non-competition, non- solicitation, non-disclosure of confidential information, and ownership of work product. MARKETING SERVICES AGREEMENT This Marketing Services Agreement (this “Agreement’) is herby made and entered into on this ______ day of _____________, 20__ (the “Effective Date”) by and between ____________________________ (“Client”) and ______________________ (“Service Provider”). RECITALS WHEREAS Client is engaged in the business of manufacturing and supplying _______________________________________________; WHEREAS, Service Provider is engaged in the business of advising, directing, and managing business methods and systems for marketing, promotion, and sales for companies and organizations; and WHEREAS, Client wishes to obtain the services of Service Provider for the purpose of marketing and selling its products. NOW, THEREFORE, in consideration of the premises and mutual obligations contained herein, and intending to be legally bound, the parties hereto agree as follows: A. MARKETING SERVICES 1. Service Provider shall consult with and assist Client in the execution of its branding strategy for the purpose of successfully differentiating Client’s products and services. Service Provider shall provide the services (“Marketing Services”) more particularly set forth in Appendix “1” attached hereto. 2. The foregoing services shall be performed in accordance with milestones established by Client, shall be consistent with the documented discussions Client and Service Provider have had to date, and shall be subject to such performance measures for each stage of performance as the parties shall identify prior to commencement of each stage of Marketing Services. Service Provider will perform the Services in a timely and professional manner, consistent with industry standards, at a location, place, and time that Service Provider deems appropriate, and in accordance with this Agreement. The manner and means that Service Provider chooses to perform the Services shall be within Service Provider’s sole discretion and control. 3. Service Provider, in consultation with Client, will determine the method, details, and means of performing the work to be carried out for Client. In addition, Client shall be entitled to exercise a broad general power of supervision and control over the results of work performed by Service Provider to ensure satisfactory performance. This power of supervision shall include the right to inspect, stop work, make suggestions or recommendations as to the details of the work, and request modifications to the scope of the Marketing Services. Modifications to the scope of the Marketing Services by Client resulting in additional services to be rendered by Service Provider shall be compensated accordingly. Modifications to the scope © 2011 by Docstoc®, Inc. 2 of the Marketing Services by Client resulting in the extension of the duration of any assignment will not limit Service Provider’s ability to attain any bonus associated with said assignment. B. COMPENSATION AND PAYMENT TERMS 1. In consideration for Service Provider rendering the Marketing Services, Client shall Alternative 1: (a) Pay ______ dollars ($____) as an advance deposit prior to Service Provider’s commencement of Marketing Services and (b) pay ______ dollars ($____) per month/hour due and payable upon receipt of invoices from Service Provider on net ____ (__) day’s terms. Such an advance deposit shall not be refundable. OR Alternative 2: Pay to Service Provider a monthly retainer of ______ dollars ($____) due and payable upon receipt of invoices from Service Provider on net _____ (__) day’s terms. OR Alternative 3: Pay Service Provider in accordance with Appendix “2” attached hereto. 2. Service Provider shall submit written, signed reports of the time spent performing Marketing Services, itemizing in reasonable detail the dates upon which services were performed, the number of hours spent on such dates and a brief description of the services rendered. 3. Client shall also reimburse Service Provider for its reasonable out-of-pocket expenses incurred in providing the Marketing Services. All such expenses are subject to prior approval by Client and shall not exceed ______ dollars ($__). Client shall pay Service Provider for the following expenses incurred in the performance of Marketing Services: a. All travel expenses to and from all work sites; b. Meal expenses; c. Administrative expenses; d. Lodging Expenses if work demands overnight stays; and e. Miscellaneous travel-related expenses (parking and tolls). 4. Where payment of any amount due is not made on the due date, Service Provider, without prejudice to any other right or remedy it may have, shall be entitled to charge interest on the outstanding amount at a rate of _____ percent (__%) per month/week. Such interest shall be calculated from the due date for payment to the date of actual payment, both days inclusive, © 2011 by Docstoc®, Inc. 3 compounded monthly in arrears and Client agrees and undertakes to pay such interest, which it hereby accepts as fair and reasonable, on demand, and suspend the provision of Marketing Services or such portion thereof as Service Provider in its sole discretion chooses until all payments in arrears have been paid in full. 5. By the last business day of each month, Service Provider shall submit for compensation due for that particular month. Each invoice should include, at a minimum: a. Invoice number; b. The month during which Marketing Services were rendered; c. Description of the above Services; d. The agreed-upon compensation rate; e. Any authorized and approved expenses pursuant to Paragraph B.3; and f. Other disbursements pursuant to Paragraph B.4. C. MEDIA COMMISSION For all advertising space engaged by Service Provider for Client, Services shall be eligible for advertising agency commission of ____ percent (___%) on any such advertising placement. D. OTHER DISBURSEMENTS All fees to be paid to publishers, radio and television stations, and other media personnel engaged as third parties or subcontractors by Service Provider, shall be treated as “other disbursements,” and shall be included in Service Provider’s invoices to Client. Payment of such “other disbursements” shall be made in accordance with the billing terms of the respective third party or subcontractor engaged. E. TERM This Agreement shall be effective on the Effective Date first above written and continue with full effect unless terminated earlier according to any of the provisions in Paragraph F below. F. TERMINATION 1. Cancellation If a party violates its obligations under this Agreement or as set forth in Appendix “1,” the other party may terminate the Agreement if the non-complying party fails to cure the non-compliance with _____ (____) days from the date of notice to cure any such noncompliance. © 2011 by Docstoc®, Inc. 4 2. Nonpayment Notwithstanding Paragraph F.1, Client’s failure to pay an invoice when due shall be sufficient cause for cancellation of this Agreement by Service Provider as provided hereunder. If Client fails to pay within ___ (___) days of a notice by Service Provider, Service Provider shall have the right to cancel the Agreement and any and all Marketing Services being rendered as of the _______ (___) day after the date of the notice. 3. Refund Upon termination or cancellation of this Agreement or the Services to be rendered as set forth in Appendix “1,” Service Provider shall be entitled to retain all payments made until that point (including any non-refundable deposit) paid to Service Provider under this Agreement for the Services or in anticipation of the Services. 4. Payment Obligation. Termination or cancellation of this Agreement shall not terminate or cancel any payment obligation of Client under this Agreement for work that has already been performed. G. OWNERSHIP; GRANT OF LICENSES 1. Except as otherwise provided herein, the parties agree that all documents, designs, inventions, products, pricing, costs, future plans, business information, process information, technical information, customer lists, computer programs, computer systems, data, computer documentation, ideas, processes, techniques, know-how, knowledge, and other proprietary and/or tangible materials authored or prepared by Service Provider (and its employees, agents, consultants, or subcontractors) for Client shall remain the sole and exclusive property of Service Provider and/or its third-party licensees. 2. Client acknowledges that Service Provider provides similar consulting services to other customers, and agrees, subject to Service Provider’s confidentiality obligations hereunder, that nothing in this Agreement shall be deemed or construed to prevent Service Provider from carrying on such business during the Term of this Agreement. In particular, Client agrees that as part of Service Provider’s provision of the Services hereunder, Service Provider may utilize proprietary works of authorship that have not been created specifically for Client, including without limitation, software, methodologies, tools, specifications, drawings, sketches, models, samples, records, and documentation, as well as copyrights, trademarks, service marks, ideas, concepts, know-how, techniques, knowledge, or data, which were originated with or developed or purchased by Service Provider or by third parties under contract to Service Provider (all of the foregoing, collectively, “Service Provider’s Information”), and Service Provider’s Information and administrative communications, records, files, and working papers relating to the Services are and shall remain the sole and exclusive property of Service Provider. © 2011 by Docstoc®, Inc. 5 3. Except as otherwise provided herein, upon payment in full of all fees and other amounts due under this Agreement and provided that Client is not in material breach of this Agreement, Service Provider grants to Client a perpetual, worldwide, non-exclusive, non- transferable license to use deliverables of the Marketing Services solely for the purpose expressly set forth herein, and Service Provider’s Information incorporated into the deliverables solely in connection with Client’s use of the deliverables. Except as otherwise provided herein, Client shall not have the right to license, sublicense, or otherwise transfer to others the right to use the deliverables or Service Provider’s Information without Service Provider’s prior written consent. 4. Any and all data, information, reports, analysis, artwork, logos, graphics, video, text, and other materials, including without limitation, financial data supplied by Client to Service Provider in connection with this Agreement, if any, shall remain the sole and exclusive property of Client (the “Client Content”). 5. Service Provider shall have the right to use Client’s name and trademark in its advertising, Client lists, and marketing materials, subject to Client’s approval. 6. Except as expressly authorized in this Agreement, Client shall not rent, sell, lease, sublicense, distribute, transfer, copy, reproduce, display, modify, or time share the deliverables of the Marketing Services. H. CONFIDENTIALITY 1. Client and Service Provider may disclose confidential information one to the other to facilitate work under this Agreement. Such information shall be so identified in writing at the time of its transmittal, and shall be safeguarded and not disclosed to third parties by the receiving party. Any party disclosing Confidential Information shall herein be referred to as the “Disclosing Party,” and a party receiving Confidential Information hereunder shall herein be referred to as the “Receiving Party.” Information disclosed to Receiving Party by Disclosing Party shall be marked “confidential,” “proprietary,” or with another similar legend. For information disclosed verbally, the Disclosing Party must notify the Receiving Party regarding the confidential nature of the information at the time of disclosure or transmittal. Confidential information shall not include information that: a. Is already known to the party to which it is disclosed; b. Is or becomes part of the public domain without breach of this Agreement; c. Is obtained from third parties who have no obligations to keep confidential to the parties to this Agreement. 2. This Paragraph shall survive any termination of this Agreement. 3. Unless the Receiving Party has a license to use the confidential information, upon any termination of this Agreement, or at any time upon Disclosing Party’s request. Receiving © 2011 by Docstoc®, Inc. 6 Party shall promptly, at Disclosing Party’s option, either return or destroy all (or, if Disclosing Party so requests, any part) of the Confidential Information previously disclosed, including all copies thereof, and Receiving Party shall certify in writing as to its compliance with the foregoing. I. SERVICE PROVIDER’S WARRANTIES AND INDEMNIFICATIONS. 4. Service Provider represents and warrants to Client that: a. Service Provider possesses full power and authority to enter into this Agreement and to carry out its obligations hereunder; b. With respect to the Marketing Services Service Provider will deliver to Client in performance of this Agreement, Service Provider warrants that it has the right to make and disclose thereof without liability to any third party; c. The Marketing Services shall not infringe upon or violate any right of privacy or publicity or any patent, copyright, trademark, trade secret, or other proprietary right of any third party; d. The performance of the terms of this Agreement and the performance of Service Provider’s duties hereunder will not breach any separate agreement by which Service Provider is bound, or violate or infringe any rights of any third party. Further, so long as this Agreement remains in effect, Service Provider shall not commit any act or enter into any agreement or understanding with any third party that is inconsistent or in conflict with this Agreement; e. There are no now-existing or future liens, claims, or encumbrances against Service Provider’s Marketing Services that would derogate from or be inconsistent with any of Client’s proprietary rights with respect thereto; f. Service Provider is, and at all times during the Term of this Agreement will be, the holder of all consents necessary for it to perform its obligations hereunder; and g. There is presently no litigation or other claim, pending or threatening, or existing fact that may be the basis of any claim against Service Provider, and Service Provider has not taken any action or failed to take any action that would interfere with the rights of Client under this Agreement. 5. The representations, warranties and indemnification rights set forth in this Agreement shall survive execution of this Agreement, the performance of the obligation of Service Provider hereunder, and cancellation or termination of this Agreement. 6. EXCEPT AS EXPRESSLY SET FORTH IN THIS PARAGRAPH I, SERVICE PROVIDER EXPRESSLY DISCLAIMS AND CLIENT HEREBY EXPRESSLY WAIVES ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING © 2011 by Docstoc®, Inc. 7 WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY SET FORTH IN THIS PARAGRAPH I, ALL SERVICES AND DELIVERABLES ARE PROVIDED “AS IS.” J. NON-COMPETITION During the Term of this Agreement and for a period of ________ (__) years thereafter, Client will not directly or indirectly, either individually, in partnership, jointly, or in conjunction with or through the activities of any third person, firm, partnership, corporation or organization of any kind, offer to any person or entity of any kind, whether as an officer, director, stockholder, partner, proprietor, associate, representative, Service Provider, principal, agent, employee, or independent contractor, manage, control, own, operate, be employed by, or otherwise render consulting services similar to or competitive with the services offered by Service Provider to Client within any territory in which Service Provider offers its services. K. LIMITATION OF LIABILITY CLIENT ACKNOWLEDGES AND AGREES THAT IN NO EVENT SHALL SERVICE PROVIDER OR ANY OF SERVICE PROVIDER OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, OR REPRESENTATIVES BE LIABLE TO CLIENT OR ANY OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR LOSS OF GOODWILL IN ANY WAY, WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY, OR OTHERWISE, ARISING FROM OR RELATING TO THIS AGREEMENT OR RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICES AND DELIVERABLES OR THE PERFORMANCE OR NON- PERFORMANCE OF ANY SERVICES, INCLUDING THE FAILURE OF ESSENTIAL PURPOSE, EVEN IF SERVICE PROVIDER HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING. EACH PARTY AGREES THAT THE OTHER PARTY’S LIABILITY HEREUNDER FOR DAMAGES, REGARDLESS OF THE FORM OF ACTION, WILL NOT EXCEED THE TOTAL AMOUNT ACTUALLY PAID FOR SERVICES AND DELIVERABLES SET FORTH IN APPENDIX “A” AND GIVING RISE TO THE DAMAGES. NOTWITHSTANDING THE ABOVE, THE LIABILITY OF CLIENT MAY BE INCREASED TO INCLUDE SERVICE PROVIDER’S COSTS OF COLLECTION OF SERVICES FEES, INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYS’ FEES AND COURT COSTS. THE PARTIES AGREE THAT AMOUNTS STATED HEREIN ARE FAIR UNDER THE CIRCUMSTANCES AND THAT THE PRICES REFLECT THIS LIMITATION OF LIABILITY. L. INDEMNIFICATION Each Party will defend, indemnify and hold the other party harmless from and against any and all liabilities, losses, damages, costs and expenses (including legal fees and expenses) associated with any claim or action brought against the party for actual or alleged infringement of any patent issued as of the Effective Date of this Agreement, copyright, trademark, service © 2011 by Docstoc®, Inc. 8 mark, trade secret or other property right based upon the duplication, sale, license or use of the materials provided by that party. M. INDEPENDENT CONTRACTOR Nothing herein shall be construed to create an employer-employee relationship between Client and Service Provider. Service Provider is an independent contractor and not an employee of Client or any of its subsidiaries or affiliates. The compensation shall be the sole consideration due Service Provider for the Marketing Services rendered hereunder. It is understood that Client will not withhold any amounts for payment of taxes from the compensation of Service Provider hereunder. Service Provider shall not represent to be or hold herself out as an employee of the Client. N. MISCELLANEOUS 1. No Exclusivity Nothing in this Agreement shall be construed to prohibit either party from dealing with any other person or entity regarding the distribution, purchase, or use of any product or service or for any other business relationship or any other reason. 2. No Assignment This Agreement may not be assigned by the either party without the prior written consent of the other party, which consent shall not be unreasonably withheld. 3. Severability If any provision of this Agreement shall be held invalid in a court of law, the remaining provisions shall be construed as if the invalid provision were not included in this Agreement. 4. Waiver No failure or delay on the part of either party in exercising any right, power, or privilege granted under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any such right, power, or privilege or of any other right, power, or privilege operate as a waiver of any subsequent exercise thereof. 5. Arbitration Any controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration in accordance with the Arbitration Rules of the American Arbitration Association (“AAA”). Judgment upon an award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Qualified arbitrators shall be selected by the parties in accordance with AAA Arbitration Rules. Each party shall have the right of discovery © 2011 by Docstoc®, Inc. 9 as set forth in the Federal Rules of Civil Procedure. The Arbitration shall be administered by AAA. 6. Governing Law This Agreement shall be construed according to and governed by the laws of the State of __________, without regard to the conflict of laws principles. All legal proceedings, including the rendering of any award, shall take place in courts of the State of ________________, which shall be the exclusive forum for resolving any dispute, controversy, or claim arising out of or related in any manner to this Agreement. 7. Notices Any notice required by this Agreement or given in connection with thereto, shall be made in writing and shall be given to the appropriate party by personal delivery or by certified mail, postage prepaid, or recognized overnight delivery services to the addresses provided at the end of this Agreement. 8. Entire Agreement This Agreement sets forth the entire agreement between the parties hereto and terminates and supersedes all prior understandings or agreements relating to the subject matter hereof. This Agreement may be modified only by a further writing that is duly executed by both parties. 9. Survival Paragraphs G, H, I, K, and M of this Agreement shall survive any termination of this Agreement. IN WITNESS WHEREOF, the parties hereto have caused their duly authorized Agents to execute this Agreement, effective as of the date first above written. ____________________________ ____________________________ Signature Signature ____________________________ ____________________________ Printed Name Printed Name ____________________________ ____________________________ Title Title © 2011 by Docstoc®, Inc. 10 APPENDIX “1” MARKETING SERVICES Marketing Services shall include, but are not limited to: 1. Consult with and assist Client’s management in establishing strategies for branding based on the market research. 2. Assist Client with marketing, public relations, and customer relations strategies to provide a clear and consistent brand positioning message to its customers and prospects. 3. Assist Client with creative supervision and copywriting, planning, and preparation and placement of all marketing materials authorized by Client as needed for all advertising and communications. 4. Service Provider shall also be responsible for engaging subcontractors, models, media, and talent as may be required. 5. ____________________________________________ (Add more description) © 2011 by Docstoc®, Inc. 11 APPENDIX “2” SERVICE PROVIDER PAYMENT SCHEDULE Deliverables Milestone Dates 1. 2. 3. © 2011 by Docstoc®, Inc. 12
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