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Prepare a Co-Branding Agreement with an Application Provider using this template form for Canadian based companies.
- The Agreement is between a service provider who operates one or more websites which deliver third party content, products and/or services to its customers, and an application provider which has distributions rights for certain content, products and/or services it wants to disseminate through the service provider websites.
- The co-branded application will be developed, hosted and maintained by application provider, and integrated into the service provider's systems.
- Details of the specifications and standards to be met.
- Mutual agreement between the parties not to serve advertising of competitors of either party.
- Ownership rights and restrictions of each party with respect to data collected.
- The parties grant each other limited licenses for use of their respective trademarks, content, and intellectual property.
- The application provider is responsible for maintenance and customer support.
- The service provider is responsible for promotion of the websites.
This Canada Co-Branding Agreement with Application Provider is provided in MS Word format, and is fully editable to fit your specific circumstances.
CO-BRANDING AGREEMENT (between a service provider such as an online marketplace, network services provider, etc and an application provider) THIS AGREEMENT made effective as of the _____ day of ______________, _______. BETWEEN: [NAME OF SERVICE PROVIDER] of ____________________________ [address] (the “Service Provider”) - and - [NAME OF APPLICATION PROVIDER] a _____________ corporation with an office address at _________________________ [address] (the “Application Provider”) WHEREAS: A. Service Provider is a provider of _________________________ (describe services provided, eg ISP, network services, electronic marketplace, etc) (the “Service Provider Network”) which incorporates content supplied by, and promotes the products and/or services of, third parties for the purposes of providing value to Service Provider’s users and providing access to the content, products and/or services of such third parties. B. Application Provider owns or has the right to distribute certain content, products and/or services (the “Application Provider Content”), and maintains a related site on the Internet at ______________ (insert URL of website) (the “Application Provider Site”). C. The parties wish to distribute the Application Provider Content through the Service Provider Network, establish and maintain related co-branded pages on the Application Provider Site, establish links between the Service Provider Network and the co-branded pages on the Application Provider Site, and promote the Application Provider on the Service Provider Network. NOW THEREFORE the parties hereby agree as follows: 1. DEFINITIONS & INTERPRETATION 1.1 Wherever used throughout this Agreement, the following terms shall have the following meanings: (a) “Application Provider Content” shall mean all content, information and functionality provided by Application Provider through the Co-Branded Application, including but not limited to, _____________________ (insert description of content, etc.) (b) “Co-Branded Application” shall mean an Internet application designed, hosted, and managed by Application Provider whose purpose is to _________________________ (insert description of application's purpose). -2- (c) “Confidential Information” shall mean information about the disclosing party’s (or its suppliers’) business or activities that is proprietary and confidential, which shall include all business, financial, technical and other information of a party marked or designated by such party as “confidential” or “proprietary”; or information which, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as confidential. Confidential Information will not include information that (i) is in or enters the public domain without breach of this Agreement, (ii) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation or (iii) the receiving party knew prior to receiving such information from the disclosing party or develops independently. (d) “Launch Date” shall mean the date the Co-Branded Application becomes accessible to Service Provider Users. (e) “Program Member” shall mean a Service Provider User who has registered as a member of Service Provider’s ________________ (insert name of program) Program and, because of such registration: (i) has access to the Co-Branded Application; (ii) has opted-in to allow all of his/her registration information to be shared with Application Provider and/or unspecified third parties. (f) “Service Provider Content” shall mean all content, information and functionality provided by Service Provider to Application Provider, including but not limited to, ___________ (insert description of content, etc.) (g) “Service Provider User” shall mean an end-user customer of the Service Provider Network of web-sites and services, regardless of whether or not such customer is a Program Member. (h) “Transactional Data” shall mean data elements descriptive of a specific purchase or purchase intent event which is enabled by the Co-Branded Application, including but not limited to purchase amount, payment method, items purchased. (i) “User Data” shall mean all information regarding an individual Program Member, including but not limited to name, address, gender, date of birth, email address and any other identifying, demographic or personal information provided by such Program Member. 1.2 Article, section and paragraph headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. 1.3 Words importing the singular number include the plural and vice versa and words importing the masculine gender include the feminine and neuter genders. 2. CO-BRANDED APPLICATION 2.1 Application Provider will, at its sole expense, develop, host and maintain the Co-Branded Application for Service Provider. The primary function of the Co-Branded Application will be ___________________________. (insert function description) 2.2 Application Provider will design and create web pages containing the Application Content (“Application Pages”). The Application Pages will be presented in accordance with Service Provider’s guidelines, which include, but are not limited to, page performance standards and header and other design/user interface standards. The Application Pages will prominently feature Service Provider -3- branding and will be presented in a “look and feel” consistent with the “look and feel” of the Service Provider Network. Service Provider will have final approval over all Application Pages. The Application Pages shall be developed in all material respects in accordance with the requirements set out in Exhibit _______ (insert letter or number) attached hereto. 2.3 Application Provider will develop its category/directory structures to be similar to those found on the Service Provider Network and in accordance with the requirements set out in Exhibit _______ (insert letter or number) attached hereto. 2.4 Application Provider will host the Co-Branded Application on its Internet servers, but will serve the Co-Branded Application from a masked domain name (or such other domain as Service Provider may elect at its sole option) so that Service Provider can receive the reach and page view credit. Application Provider will have sole responsibility for providing and maintaining, at its expense, the Application Provider Site, the Co-Branded Application, the Application Content (excluding the provision of Service Provider Content), and any updates thereto. 2.5 Each Co-Branded Page will include one or more links to Service Provider Network, as set forth in Article 3 of this Agreement. Service Provider will supply Application Provider with the URLs for all such links. 2.6 With the exception of updates to the Application Content and to advertising displayed on the Application Pages, Application Provider will not change the Co-Branded Application without Service Provider’s prior written consent, which consent will not be unreasonably withheld. Service Provider will respond to all change requests within seven (7) days of receipt, and any failure to so respond shall be deemed an approval. 2.7 Service Provider may, upon fifteen (15) days prior notice to Application Provider, request reasonable revisions to the Co-Branded Application as needed to reflect changes that will not adversely affect Application Provider, such as changes to Service Provider’s name and/or brand or changes to the URLs for the links to Service Provider Network. Application Provider will use reasonable efforts to accommodate Service Provider’s requested changes within the 15-day period. 2.8 Service Provider will have editorial control over all email or other similar communication with Service Provider Users. Correspondence solely regarding the Co-Branded Application will only be presented to Program Members; communication with all other Service Provider Users will be tied to regular Service Provider email schedules, which may or may not be integrated with other email content at Service Provider’s sole option. Communications with Service Provider Users shall further be subject to the requirements of Exhibit ____ (insert letter or number) hereof. 3. INTEGRATION WITH SERVICE PROVIDER SERVICES 3.1 Application Provider will integrate the Co-Branded Application with Service Provider’s user registration system according to Service Provider’s technical and operational specifications. Each party will bear its own costs related to such integration. 3.2 Information collected through the Co-Branded Application will include without limitation, User Data and Transactional Data. 3.3 All Information collected under this Agreement will be transmitted between the parties in a manner to be mutually agreed upon. -4- 3.4 The Co-Branded Application will include content with links that direct Users to other Service Provider Content, including but not limited to community products, which include message boards, chat, clubs, home pages, instant messaging, calendar, address book, email, photos and any other community products which Service Provider may develop during the term of this Agreement (“Community Products”). The number of links to other Service Provider Content shall be consistent with the general quantity of links implemented on comparable portions of the Service Provider Network. Application Provider will not feature non-Service Provider Community Products on the Co-Branded Application without the written permission of Service Provider. 3.5 Application Provider will publish to Service Provider subsets of its Content in a mutually-agreed XML or pre-defined text format in order to allow Service Provider to integrate, at its option, portions of the Application Provider Content into its search results, directory results and other areas in order to drive traffic to the Co-Branded Application, as deemed appropriate by Service Provider in its sole discretion. Neither party will export to the other party any licensed third-party data for which the providing party does not have redistribution rights. 3.6 Application Provider will provide and regularly update database mappings necessary to maximize search and directory integration for the Co-Branded Application into Service Provider’s services. 3.7 Application Provider will provide Service Provider with a regularly updated data feed of product information for integration into Service Provider’s services. The data feed will be provided according to Service Provider’s then-applicable standard product data import specifications, which specifications shall be substantially similar to those required by similar service providers in the industry. 3.8 Service Provider will provide Application Provider with a regularly updated data feed of product information for integration into the Co-Branded Application. The data feed will be provided according to Service Provider’s standard product data export specifications, which specifications shall be substantially similar to those required by similar service providers in the industry. 3.9 Service Provider shall not offer any Service Provider-branded or Service Provider-co-branded service during the Term of this Agreement that is substantially similar in functionality to the Co-Branded Application. 4. ADVERTISING ON THE CO-BRANDED APPLICATION 4.1 Service Provider will have the right to sell and serve Service Provider banner, sponsorship, and text link advertising on the Co-Branded Application, as limited by the terms of this Article 4 hereof. Service Provider will have the right to sell and serve such advertising on all pages within the Co-Branded Application. Revenues from such advertising shall accrue wholly to Service Provider. Application Provider will enable the ad-serving and accommodate Service Provider’s technical requirements, which shall be consistent with those of Service Provider’s other partners and the standards generally used in the industry, at its own expense. 4.2 Banner advertising shall be limited to one (1) standard-size banner below the Co-Branded Application’s content area, as described in Article 2. 4.3 Sponsorship modules will be present on the Co-Branded Application in a quantity consistent with the overall quantity within other shopping content areas of Service Provider. Each party shall have the right to sell and serve advertisements on 50% of the sponsorship tiles within the Co-Branded Application. As of the Effective Date of this Agreement, pages within Service Provider’s shopping service -5- contain ______ (insert number) sponsorship tiles arranged horizontally/vertically (delete inapplicable) on the right/left (delete inapplicable) side of each page, though over time this may change at Service Provider’s sole option, but such changes shall not conflict with Application Provider’s contractual obligations. Within this framework, Application Provider will have access to the _________ (insert name) tiles; Service Provider will have access to the _______________ (insert name) tiles. Should additional tiles be added during the term of this Agreement, the first incremental tile shall be allocated to Application Provider, the following to Service Provider, and so forth. Revenue generated by the parties from such activities shall not be shared but rather shall be retained by the respective party to whom the sponsorship tile(s) are allocated. 4.4 Service Provider will not serve advertising on the Co-Branded Application for any “Application Provider Named Competitor”, as set out in Exhibit ___ (insert letter or number) attached hereto. Application Provider may designate no more than ______ (insert number) competitors as Application Provider Named Competitors. Not more than once per quarter, Application Provider may update its list of Application Provider Named Competitors, but may not add to the list any company with which Service Provider has a material existing relationship as of the Effective Date of this Agreement. Within three (3) business days of receiving Application Provider’s written update, Service Provider will remove any advertising from Application Provider Named Competitors which is displayed on the Co-Branded Pages. 4.5 Application Provider will not serve advertising on the Co-Branded Application for any “Service Provider Named Competitor,” as set out in Exhibit ___ (insert letter or number) attached hereto. Service Provider may designate no more than ____ (insert number) competitors as Named Competitors. Not more than once per quarter, Service Provider may update the list of Service Provider Named Competitors, but may not add to the list any company with which Application Provider has a material existing relationship as of the Effective Date of this Agreement. Within three (3) business days of receiving Service Provider’s written update, Application Provider will remove any advertising from Service Provider Named Competitors displayed on the Co-Branded Pages. 4.6 Application Provider will not serve advertising on the Co-Branded Application that (a) violates any law, rule, or regulation, (b) relates to pornography, gaming, tobacco, or alcohol, (c) is the subject of a claim regarding trademark, trade name, service mark, or other proprietary rights. In the event that Application Provider is in breach of this provision, Service Provider shall have the right to demand removal of any such advertising from the Co-Branded Application, and Application Provider shall remove any such advertising within twenty-four (24) hours of receipt of any such written demand. 5. PROMOTION OF THE CO-BRANDED APPLICATION 5.1 Service Provider will provide promotion for the Co-Branded Application as described in Exhibit ____ (insert letter or number) hereof. Service Provider may provide additional links to, or other promotion for, the Co-Branded Application from elsewhere on or off the Service Provider Network, at its sole discretion. 6. OWNERSHIP OF DATA 6.1 Ownership of Data (a) User Data collected through the operation of the Co-Branded Application will be jointly owned by the parties/owned by the Service Provider/owned by the Application Provider (delete inapplicable). The parties’ respective ownership rights shall be subject to the restrictions set forth in this Agreement. -6- (b) Transactional Data, when available, shall be jointly owned by the parties, except in those cases where Application Provider’s contractual agreement(s) with its merchant partner(s) prevent the sharing of said Transactional Data with third parties. In all cases Application Provider shall use commercially reasonable efforts to ensure that Transactional Data may be shared with and co- owned by Service Provider. The parties’ respective ownership rights shall be subject to the restrictions set forth in this Agreement. 6.2 Restrictions (a) During the Term of this Agreement, Application Provider shall have ownership rights in User Data solely for the purpose of providing the services of the Co-Branded Application. Application Provider may not use any User Data to solicit User traffic to the Application Provider Site or any other co-branded version of the Application Provider Site with the intent of enticing such Users away from using the Co-Branded Application. (b) Application Provider may not sell, disclose, transfer, rent, or license any Data collected in a form which may identify any particular User to any third party. Notwithstanding the foregoing, Application Provider may disclose Data only if it is aggregated in a non-associatable way with data from multiple online properties or in an anonymous format on a per user basis. (c) In no event may either party sell, disclose, transfer, rent, or license User Data to the other party’s Named Competitors as listed in Exhibit ___ (insert letter or number) hereof. (d) In no event may Service Provider sell, disclose, transfer, rent or license any Transactional Data to any other party whatsoever. (e) The collection, storage, and usage of all Data shall comply with Service Provider’s then-current security and privacy guidelines. (f) Application Provider will not solicit any Service Provider User on behalf of any Service Provider Named Competitor during the Term of this Agreement or thereafter. The list of Service Provider Named Competitors is defined in Exhibit ___. (insert letter or number) hereof. 6.3 Effect of Termination or Expiration (a) In the event that this Agreement is terminated as provided herein due to the sale to, acquisition by, merger with or transfer of all or a major part of Application Provider’s assets to a Service Provider Named Competitor, or by an entity controlling or controlled by a Service Provider Named Competitor, Application Provider shall transfer to Service Provider all of its right, title and interest in and to all Data. (b) In the event that this Agreement expires or is terminated for any reason other than termination for the reasons set out in subparagraph (a) above, the ownership rights and the restrictions set out in this Article 6 hereof shall continue to apply. 7. PAYMENTS AND DELIVERY OF USER DATA 7.1 Service Provider will supply to Application Provider a minimum of ____ (insert number) User Data records for Program Members, ___________________ (insert the type of data to be provided, number of records, when and how often Service Provider is to deliver this data to Application Provider, e.g. quarterly, etc). -7- 7.2 Application Provider will pay Service Provider the sum of $_____ (insert amount) per unique User Data record for the first _____ (insert number) records. In the event that Service Provider delivers more than _____ (insert number) User Data records during the Term of this Agreement, Application Provider will pay Service Provider, on a quarterly basis, _____% (insert number) of net revenue (gross revenue less direct third party commissions) generated from the delivery of ________________ to any such excess Program Members. This provision shall apply to net revenue generated during the year following the end of the calendar quarter in which the User Data records were supplied, irrespective of the Term of this Agreement. 7.3 The failure of Service Provider to deliver a minimum of _____ (insert number) User Data records as provided in Section 7.1 hereof shall not be deemed a breach of this Agreement. To the extent that Service Provider fails to deliver the minimum number of User Data records, however, Application Provider’s total payment obligations hereunder shall be correspondingly reduced at the rate of $_____ (insert amount) per record for any shortfall. In no event will any failure to deliver at least _____ (insert number) User Data records constitute cause to extend the Term of this Agreement. 7.4 Payment Schedule (a) Within _____ (insert number) days of the Effective Date of this Agreement, Application Provider shall make a non-refundable payment to Service Provider of $_____ (insert amount) as pre- payment for User Data records. (b) During the Term of this Agreement, on the first day of each quarter following the quarter in which the Launch Date falls, Application Provider shall make additional non-refundable payments for the User Data records. In the event that the Launch Date is delayed beyond _______________, (insert date) the ______ payment due pursuant to this subsection shall be postponed and shall instead be made within _____ (insert number) days following the Launch Date. Payments under this subsection shall be calculated as follows: (insert how payments are calculated, i.e. percentages, numbers, etc.) 8. PERFORMANCE MEETINGS The parties will meet on a quarterly basis to review Program Member User Data record delivery goals and performance and adjust their marketing plans and member signup goals as mutually agreed in such meetings. 9. SERVICE PROVIDER PURCHASES FROM APPLICATION PROVIDER 9.1 Service Provider will purchase, in bulk, a minimum of $___________ (insert amount) in _________ from Application Provider at the rate of $_____ (insert amount) per ________ delivered, for the purpose of resale to Service Provider’s advertisers and partners. Within ___ (insert number) days of the Launch Date, Service Provider will pay Application Provider a non-refundable payment of $_____ (insert amount) and will continue to pay a minimum payment of $_____ (insert amount) each quarter, payable at the beginning of the quarter, during the Term of this Agreement for such _________. Unless sold by Service Provider within ____ (insert number) months of purchase, such purchased _________ shall expire and no longer be available for resale by Service Provider. Any purchases beyond the minimum shall be at Service Provider’s sole discretion. Such _________ shall be governed by Application Provider’s standard terms and conditions. To the extent that Service Provider elects in its sole discretion to purchase in excess of $_____ (insert amount) in _________ during any quarter, any such excess purchases shall constitute a credit which Service Provider may apply against its minimum purchase obligations in any subsequent quarter(s). -8- 9.2 Service Provider will determine, at its sole discretion, the size and nature of each ________ bought under these terms. Service Provider shall not be limited to a standard size or format of _________. 9.3 Service Provider will pay Application Provider _____% (insert number) of net revenue (gross revenue less $_____ (insert amount) purchase price and cost of sales not to exceed _____% (insert number) of gross revenues) generated from sales of the _________. 9.4 Application Provider may not extend exclusive offers developed for Service Provider by its advertisers to non-Service Provider users of the Application Provider service for a period of ____ (insert number) days following the day on which the offer is first made available through Service Provider. 10. USAGE REPORTS 10.1 Application Provider will provide usage reports to Service Provider on a daily/weekly/monthly (delete inapplicable) basis in a mutually agreed upon format. The usage reports will be co-owned by the parties. The usage reports will include the following: (insert what information is to be included in the reports) 11. TRADEMARK OWNERSHIP AND LICENSE FOR USE 11.1 Each party will retain all right, title and interest in and to its trademarks, service marks and trade names worldwide, subject to the limited license granted to the other party in Section 11.2 hereof. 11.2 Each party hereby grants to the other party a non-exclusive, limited license to use its trademarks, service marks or trade names only as specifically described in this Agreement. All such use shall be in accordance with each party’s reasonable policies regarding advertising and
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