A Co-Branding Agreement is an agreement between two parties whereby the parties
agree to work together and cooperate to promote or sell a product or service. The
Provider sells or offers products or services and should have existing marketing
procedures and strategies, while the Brander will provide further marketing procedures
and strategies. This agreement outlines the terms of the promotion and advertisement
of a product or services and includes other standard clauses, such as indemnification,
confidentiality, and intellectual property rights. The benefit of a co-branding agreement
is that it associates a product or service with more than one brand name.
THIS CO-BRANDING AGREEMENT (the “Agreement”) entered into this ____ day of
____________, 2______ (the “Effective Date”) by and between _______________ (the
“Provider”) and __________________ (the “Brander”).
WHEREAS, the Provider ________________________;
[Comment: enter description of Provider’s services and the products it sells/offers]
AND WHEREAS, the Provider markets its products by ______________________;
[Comment: enter description of Provider’s marketing procedures and strategies]
AND WHEREAS, the Brander _________________________;
[Comment: enter description of Brander’s marketing procedures and strategies]
AND WHEREAS, the Provider and the Brander are desirous of entering into this Agreement to
jointly market and promote _____________________ (the “Product”) on the terms and
conditions contained herein.
THIS AGREEMENT WITNESSES that for good and valuable consideration, and in
consideration of the mutual covenants and agreements contained herein, the receipt and adequacy
of which is hereby acknowledged, it is agreed between the Provider and the Brander as follows:
In this Agreement, the following terms shall have the meanings set out below unless the context
requires otherwise (in which case the term will not be capitalized):
A. “Content” means all of the content provided by the Brander to the Provider,
including but not limited to, images, text, graphics, audio, video and all other forms
B. “Domain Name” means the domain name _______________.
C. “Intellectual Property” means all of the trademarks, trade names, copyrights,
patents and industrial designs of the Provider and the Brander.
D. “Product" means the Product of the Provider in connection with this Agreement.
E. “Promotions” means the agreed upon promotions by the Provider and the Brander in
respect to the promotion of the Product as set out in Schedule “A” annexed hereto.
F. “Launch Date” means the first day on which the Promotions commence.
G. “User” means an individual who accesses the Service.
2. INTELLECTUAL PROPERTY RIGHTS
A. The Provider shall retain all of its right, interest and title in and to the Product,
including but not limited to, all copyrights, trademarks and patents.
B. The Brander shall retain all of its right, interest and title in and to any and all Content
provided to the Provider for the purposes of the promotion of the Product.
C. Pursuant to the terms and conditions of this Agreement, the Provider and the Brander
hereby grant to each other, a non-exclusive right and license to use and display the
others intellectual property for the purposes of the promotion of the Product.
D. The Brander represents and warrants to the Provider that it now owns and will own at
the Effective Date, all of the right, title and interest in and to the Content provided to
the Provider for the promotion of the Product and does not require the consent of any
third parties to provide the Content to the Provider.
E. The Brander hereby grants to the Provider and its users of the Product, a royalty-free
and worldwide right and license to display, distribute, copy and reproduce the
Content provided by the Brander during the term of this Agreement for the purpose of
the promotion of the Product.
3. PROMOTION AND ADVERTISEMENT OF PRODUCT
A. The Provider and the Brander hereby agree that they shall promote the Product in
accordance with the promotions set out in Schedule “A” annexed hereto.
B. The Provider and the Brander hereby agree that each may issue a press release or
releases related to this Agreement within _________ (___) days of the Effective Date
of this Agreement. Should the Provider or the Brander elect to issue such press
release or releases, that party shall submit such press release or releases to the other
party for approval prior to the press release or releases being viewed by the general
C. The Provider shall be entitled to provide information relating to the Brander to its
customers and users about the Brander’s promotions during the term of this
4. REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION
A. The Provider and the Brander hereby represent and warrant to each other that each of
them have the right and capacity to enter into this Agreement and to perform its
obligations contemplated herein.
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B. By the Provider and the Brander entering into this Agreement they hereby represent
and warrant to each other that this Agreement shall not conflict with any other
Agreements entered into by the Provider and the Brander.
C. The representations and warranties contained in this Article 4 shall remain true and in
full force and effect for a period of ________ (__) after the termination of this
D. The Provider and the Brander hereby agree to indemnify and hold each other and
their respective directors, officers and employees harmless from and against any
claim, demand, action, cause of action, damage, loss, deficiency, cost, liability or
expense (in this Agreement, a “Loss”) which may be made or brought against the
Provider or the Brander or which the Provider or the Brander may suffer directly or
indirectly as a result of, in respect of or arising out of:
(i) any incorrectness, inaccuracy, misrepresentation or breach of any representation
or warranty made by the Provider or the Brander in this Agreement or under any
other agreement, certificate or instrument executed and delivered pursuant to this
(ii) any non-performance or non-fulfillment of any covenant or agreement on the part
of the Provider or the Brander contained in this Agreement or in any other agreement,
certificate or instrument executed and delivered pursuant to this Agreement; and
(iii) all costs and expenses, including legal fees on a solicitor-and-client basis,
incidental to or in respect of the foregoing.
The obligation of the Provider and the Brander to indemnify the other for any Loss shall
be subject to the limitation period referred to in Article 4(C) with respect to survival of
representations and warranties.
5. TERM AND TERMINATION
A. This Agreement will become effective on the Effective Date and shall continue to be
in full force and effect for a term of __________ (___) [months/years]. The
Provider and the Brander agree to negotiate in good faith a renewal of this Agreement
in the event the Provider and the Brander should desire to do so at the end of the
B. Any party (the “Terminating Party”) may terminate its future obligations under this
Agreement for any reason at any time (the “Termination Date”) provided (i) it
delivers at least _____ (___) [days/months/years] advance written notice (the
“Termination Notice”) of the Termination Date to the other party, and (ii) the other
party consenting to entering into negotiations and agreeing upon the terms and
conditions upon which this Agreement will terminate.
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C. Should one party (the “Defaulting Party”) breach a material provision of this
Agreement and having received written notice from the other party, fails to remedy
the breach within _____ (___) days from receipt of such notice, the other party shall
have the right at any time (the “Termination Date”) to terminate this Agreement by
delivering written notice (the “Termination Notice”) to the Defaulting Party, in which
case, the Defaulting Party shall indemnify, defend and save harmless the other party
in respect of any and all losses, costs, expenses, liabilities, payments or damages that
the other party suffers, for the period from the Termination Date until the end of the
Term, which but for the default by the Defaulting Party, it would not have suffered.
D. Upon termination of this Agreement for any reason, the indemnification provisions
set out herein shall continue to apply and bind the Provider and the Brander.
E. This Agreement shall, subject to the provisions set out below, terminate at the
expiration of the term. Each party shall deliver written notice to the other party at
least _____ (____) [days/months/years] prior to the end of the term indicating
whether it is interested in continuing on with the Agreement upon the expiry of the
term and the term and conditions, if any, as to its continued involvement; provided,
however, any renewal of this Agreement shall be on such terms and conditions as the
parties may determine, in their absolute discretion.
A. Neither the Provider nor the Brander (or either of them) shall make any public
announcement concerning the transaction or related negotiations without the other party’s
prior written approval (which approval may not be unreasonably withheld or delayed),
except as may be required by applicable law. If such an announcement is required by law,
the party required to make the announcement shall inform the other party of the contents
of the announcement proposed to be made and the proposed date of the announcement and
shall use its reasonable efforts to obtain the other party’s approval for the announcement,
which approval must not be unreasonably withheld or delayed. Except as may be required
by applicable law, in no event shall any announcement be made until this Agreement has
been signed by all parties and the transactions contemplated herein are concluded.
B. Each of the Provider and the Brander shall (and shall cause each of its officers,
employees and agents) to hold in strictest confidence and not use in any manner
whatsoever, other than as expressly contemplated by this Agreement, any confidential
information of the other party or relating to the content of this Agreement. This
provision shall not apply to the disclosure of any confidential information where such
disclosure is required by Applicable Law.
Neither the Provider nor the Brander shall be liable or lost profits or special, incidental or
consequential damages arising out of or in connection with this Agreement, however arising,
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including negligence, even if the Provider and the Brander are aware of the possibility of such
8. GENERAL PROVISIONS
A. Except as otherwise set out herein, the Parties shall be responsible for their own legal
and other expenses incurred in connection with the negotiation, preparation,
execution, delivery and performance of this Agreement.
B. Any notice, certificate, consent, determination or other communication required or
permitted to be given or made under this Agreement shall be in writing and shall be
effectively given and made if (i) delivered personally, (ii) sent by prepaid courier
service or mail, or (iii) sent prepaid by fax or other similar means of electronic
communication, in each case to the following addresses:
Facsimile: (_____) ________
With a copy to:
________________________ (Provider’s Attorney)
Facsimile: (_____) ________
Facsimile: (___) __________
With a copy to:
________________________ (Brander’s Attorney)
Facsimile: (_____) ________
Any such communication so given or made shall be deemed to have been given or
made and to have been received on the day of delivery if delivered, or on the day
of faxing or sending by other means of recorded electronic communication,
provided that such day in either event is a business day and the communication is
so delivered, faxed or sent prior to 4:30 p.m. on such day. Otherwise, such
communication shall be deemed to have been given and made and to have been
received on the next following business day. Any such communication sent by
mail shall be deemed to have been given and made and to have been received on
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the fifth Business Day following the mailing thereof; provided however that no
such communication shall be mailed during any actual or apprehended disruption
of postal services. Any such communication given or made in any other manner
shall be deemed to have been given or made and to have been received only upon
actual receipt. Any Party may from time to time change its address under this
Article by notice to the other parties given in the manner provided by this Section.
C. Time shall be of the essence of this Agreement in all respects.
D. Each of the Provider and the Brander shall, promptly do, execute, deliver or cause to
be done, executed and delivered all further acts, documents and things in connection
with this Agreement that the other party may require, for the purposes of giving effect
to this Agreement.
E. This Agreement shall inure to the benefit of, and be binding on, the Provider and the
Brander and their respective successors and permitted assigns. No party may assign
or transfer, whether absolutely, by way of security or otherwise, all or any part of its
respective rights or obligations under this Agreement without the prior written
consent of all of the other party.
F. This Agreement (together with all other agreements or documents executed by the
Provider and the Brander contemplated by this Agreement) constitutes the entire
agreement between the Provider and the Brander pertaining to the subject matter of
this Agreement and such other agreements and documents and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or written
including, without limitation, any confidentiality agreements which may have been
entered into between the Provider and the Brander prior to the date hereof. There are
no conditions, warranties, representations or other agreements between the Provider
and the Brander in connection with the subject matter of this Agreement (whether
oral or written, express or implied, statutory or otherwise) except as specifically set
out in this Agreement or in such other agreements and documents.
G. A waiver of any default, breach or non-compliance under this Agreement is not
effective unless in writing and signed by the party to be bound by the waiver. No
waiver shall be inferred from or implied by any failure to act or delay in acting by a
party in respect of any default, breach or non-observance or by anything done or
omitted to be done by the other party. The waiver by a party of any default, breach or
non-compliance under this Agreement shall not operate as a waiver of that party's
rights under this Agreement in respect of any continuing or subsequent default,
breach or non-observance (whether of the same or any other nature).
H. Any provision of this Agreement which, as it may relate to a party, is prohibited or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the
extent of such prohibition or unenforceability and shall be severed from the balance
of this Agreement, all without affecting the remaining provisions of this Agreement
or affecting the validity or enforceability of such provision in any other jurisdiction.
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I. This Agreement may be executed in any number of counterparts, each of which shall
be deemed to be an original and all of which taken together shall be deemed to
constitute one and the same instrument. Counterparts may be executed either in
original or faxed form and the Parties adopt any signatures received by a receiving
fax machine as original signatures of the Parties; provided, however, that any Party
providing its signature in such manner shall promptly forward to the other Parties an
original of the signed copy of this Agreement which was so faxed.
J. This Agreement shall be governed by and construed in accordance with the laws of
the Province/State of ________________ and the laws of __________ [Comment:
enter country] applicable in that Province/State.
IN WITNESS WHEREOF the Provider and the Brander have executed this Agreement.
DATED this _________day of ____________, 2_____.
I have authority to bind the Company.
I have authority to bind the Company.
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[Comment: set forth any agreed upon promotions]
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