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Marketing Services Agreement

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Marketing Services Agreement Powered By Docstoc
					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


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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,



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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.



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       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.




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        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



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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



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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



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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



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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




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                                      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)




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                              APPENDIX “2”
                    SERVICE PROVIDER PAYMENT SCHEDULE

Deliverables                                            Milestone Dates

1.

2.

3.




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DOCUMENT INFO
Description: 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.
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