E-commerce Agreement

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E-commerce Agreement Powered By Docstoc
					This is an agreement whereby various products of a company are to be marketed on an
unaffiliated company's website in exchange for a fee. This document sets forth the
material terms and conditions of the agreement including the services to be provided,
the commission arrangement, and a description of the products. It contains numerous
standard provisions that are commonly included in these types of agreements, and may
be customized to fit the specific needs of the contracting parties. This document is
useful to companies that use another company's website to conduct commerce.
                          E-COMMERCE AGREEMENT:
                          BETWEEN TWO CORPORATIONS
This E-Commerce Agreement (the “Agreement”) is entered into on this _____ day of
__________________, 201__, by and between _________________ [NAME OF THE
COMPANY], a ________________ [STATE WHERE COMPANY WAS
INCORPORATED] corporation (the “Company”) and ____________________ [NAME OF
THE STRATEGIC PARTNER], a _____________ [STATE WHERE STRATEGIC
PARTNER WAS INCORPORATED] corporation (the “Strategic Partner”).

RECITALS:

A. The Company owns a web site ______________________ [PROVIDE WEB ADDRESS
AND NAME OF THE SITE] (the “Site”). The Company manages this Website for the purpose
of _______________________ [PROVIDE PURPOSE].

B. The Strategic Partner desires to make e-commerce arrangements with the Company for the
purpose of marketing certain Strategic Partner’s Products, as specified in Exhibit A (the
“Products”). The Company accepts and agrees to provide such services.

NOW THEREFORE, in consideration of the promises and mutual covenants contained in this
Agreement, the parties agree as follows:

1.     MARKETING

For and during the Term of this Agreement, the Company hereby agrees to provide services by
promoting, distributing and selling the Products specified in Exhibit A for, and on behalf of, the
Strategic Partner. Such services may include providing links to Strategic Partner’s web sites,
framing over various pages of Strategic Partner’s web sites, or through mutual development of
co-branded web pages, etc. (“Services”).

2.     GRANT OF RIGHTS

(a) Strategic Partner grants to the Company and its business affiliates a worldwide, non-
transferable and non-exclusive right to act on behalf of the Strategic Partner and sell, distribute,
or market Strategic Partner’s Products during the term of this Agreement. Strategic Partner also
agrees to provide all customer service and support for the Products with reasonable
responsiveness and turn-around times.

(b) Strategic Partner grants to Company and its business affiliates a worldwide, non-transferable,
and non-exclusive license to create hypertext links from the Company Sites to Strategic Partner
sites.

(c) Strategic Partner grants to Company and its business affiliates a worldwide, non-transferable,
and non-exclusive license to display and/or index on Company Sites Strategic Partner logos,
trademarks, images, and information that Strategic Partner have specified to Company.

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3.     TERM

This Agreement shall commence on the date first above written and shall continue for an initial
term of _____ ( ) year(s). Thereafter, this Agreement will renew automatically for additional
terms of ____ ( ) year(s) unless either party gives a written notice at least 30 days prior to any
such renewal that the Agreement shall not so renew.

4.     TERMINATION

(a) Either Strategic Partner or Company may terminate this Agreement (i) upon thirty (30) days
notice for material breach by the other of any of its obligations under this Agreement unless such
breach is cured with a thirty (30) day period, or (ii) immediately after giving notice, if the other
party becomes insolvent or if any proceeding is commenced by or against the other party under
any law providing relief to such other party as debtor.

(b) Company may terminate this Agreement immediately upon notice without liability if (i)
Company is notified or otherwise determines in good faith that Strategic Partner are using the
Company Services, Company Sites or Company technology in any way that violates any law,
rule, or regulation, or (ii) Company, or its directors, officers, stockholders, employees or agents
are made the subject of a criminal or civil action or investigation or are threatened by such action
as a consequence of Strategic Partner use of the Company Services, Company Sites or Company
technology.

(c) Upon termination of this Agreement, Strategic Partner will immediately cease using the
Company Services. Within fifteen (15) days after the termination, Strategic Partner and
Company will deliver to the other or destroy all copies of Confidential Information and or other
materials owned solely by the other.

5.     COMPENSATION

(a) Strategic Partner agrees to pay the Company a commission set forth in Exhibit B for the sale
of Products by the Company to Customers.

(b) All amounts payable under this Agreement are due to Company on a monthly basis and
payments for the commission owed for all Products sold to Company Customers shall be made
within 30 days after the close of the month in which purchases are made.

(c) Any late payments of commissions shall accrue interest at the rate of 1% per month, or the
maximum permitted by law, whichever is less.
{Instruction: Parties may substitute in their own penalty terms, as they may agree-upon, and
insert them in this section. If this is done, make sure to cross out or delete any existing terms
that end up in conflict with the new terms.}

6.     REPORTING

Strategic Partner shall provide to the Company a written commission report within 30 days after
the close of each month setting forth (1) the names, addresses, phone numbers and email

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addresses (when provided) of Company Customers; (2) the Products purchased by Company
Customers with sales prices, (3) the commission owed to the Company, and (4) such additional
information as may be reasonably requested by Company.

7.     INSPECTION RIGHTS

The Company reserves the right to annually inspect Strategic Partner's records to verify amounts
paid by the Strategic Partner under this Agreement. Company may employ a certified public
accountant for this purpose. Any such inspection will be confidential and conducted during
ordinary business hours after giving a reasonable written notice. Company will pay for any such
inspection. Strategic Partner will provide all reasonable cooperation in assisting with any such
Company inspection.

8.     STRATEGIC PARTNER CONTENT

(a) Strategic Partner shall provide to the Company articles, advice, tips, or other necessary
information useful for the Company in connection with providing the Services hereunder (the
“Materials”). Such Materials shall be provided in formats and electronic files as reasonably
requested by the Company.

(b) Strategic Partner hereby represents that it has all the rights in and to such Materials and that
the Materials does not infringe or violate any third party’s rights, that it is accurate, complete and
up-to-date, and that it does not violate any law or regulation.

9.     COMPANY RESPONSIBILITIES

(a) Receive information from Customers;

(b) Deliver to the Strategic Partner the received information for each purchase transaction of
Strategic Partner Products;

(c) Receive payments from Customers and credit the funds to Strategic Partner account, minus
any applicable taxes charged on the sale of Products;

(d) Receive payment information from Customers and pass payment information to Strategic
Partner. Customers may pay Company or Strategic Partner in any mutually acceptable form,
including but not limited to credit card, check, cash, and/or pre-payment plans;

(e) Collect payments from Strategic Partner for the Commission and any fees due to the
Company;

10.    STRATEGIC PARTNER RESPONSIBILITIES

(a) Upon Company's request, Strategic Partner will promptly deliver Strategic Partner Product
information to Company.



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(b) Strategic Partner agrees that within _____ ( ) days, Strategic Partner will either deliver, or
have shipped, the Products to the Customer who has purchased the Products from Company; or,
initiate a refund of the money paid to Company for the purchase of Strategic Partner Products.

(c) Strategic Partner is responsible for all expenses relating to Product delivery or refund,
including shipping, handling, storage, insurance, delivery, replacements for defective Products,
and replacements for undelivered Products.

(d) Strategic Partner shall provide true and accurate information relating to Strategic Partner
Products, their prices, how the Customer can purchase them, and the point at which a sale has
been finalized and is irreversible.

(e) Strategic Partner shall be solely responsible for providing support for Products to Customers.
Strategic Partner further agrees that Strategic Partner is responsible for all costs related to
supporting Strategic Partner Products.

11.    RESTRICTIONS

In using the Company Services, Strategic Partner agrees:

(a) Not to use the Company Services to violate any law, rule, regulation, or contractual
obligation.

(b) Not to use the Company Services in any way that would cause Company to be subject to
investigation, prosecution or legal action.

(c) Not to use the Company Services to have Company transmit or to have Company associated
with any transmission of harassing, libelous, abusive, threatening, vulgar, obscene or otherwise
objectionable material of any kind, in Company's sole opinion.

(d) Not to use the Company Services to violate the privacy of the Customers.

(e) Not to use the Company web address or e-mail address in any manner that is illegal or
inappropriate.

12.    INTELLECTUAL PROPERTY RIGHTS

(a) Neither party will acquire any ownership interest in each other’s intellectual property. All
names and other information concerning a Customer shall be deemed jointly owned by the
Company and Strategic Partner with each side free to use such names and information in
compliance with applicable law.

(b) Company shall have the worldwide, non-transferable, and non-exclusive right to place the
Strategic Partner’s logo, trade name and trademark on the Site as a means to identify the
Strategic Partner and to otherwise use such items in connection with the purposes of this
Agreement.


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13.    CONFIDENTIAL INFORMATION

(a) “Confidential Information” means all materials or information disclosed by either Strategic
Partner or Company (the “Disclosing Party”) to the other (the “Recipient”).
Confidential Information does not include information that:

       (i) is or becomes generally available to the public other than as a result of a disclosure by
       the Recipient, the Recipient's employees, or any other person who receives the
       information from the Recipient or the Recipient's employees; or as a result of a disclosure
       by a third party who is known by the Recipient as having violated a confidentiality
       obligation to the Disclosing Party,

       (ii) is or becomes available to Recipient on a non-confidential basis from a source that is
       entitled to disclose it to Recipient, or

       (iii) was developed by employees or agents of the Recipient independently of and without
       reference to any information communicated to the Recipient by the Disclosing Party.

(b) During the term of this Agreement, the Disclosing Party may provide Confidential
Information to the Recipient, who agrees to the following:

       (i) The Recipient will hold the Confidential Information in strict confidence, with the
       understanding that the Recipient may disclose the Confidential Information to employees,
       contractors, and advisors who need to know the Confidential Information to fulfill the
       Recipient's obligations under this Agreement.

       (ii) The Recipient will advise these individuals that the Confidential Information is
       confidential and that by receiving such information they agree to be bound by the terms
       of this Section 13.

       (iii) Without the Disclosing Party's prior written consent, the Recipient will not, and will
       direct its employees, contractors, and advisors not to, disclose the Confidential
       Information in whole or part, except to the extent compelled by law.

       (iv) The Recipient will employ all reasonable steps to protect the Confidential
       Information from unauthorized or inadvertent disclosure or use, including all steps that
       the Recipient takes to protect its own trade secrets.

       (v) If any outside party attempts to use the legal or other system to compel Recipient to
       disclose any confidential information, Recipient agrees to immediately notify Disclosing
       Party, to allow Disclosing Party the opportunity to participate in permitting or resisting
       this attempt to compel disclosure.

(c) Strategic Partner understand and agree that monetary damages would not be a sufficient
remedy for any breach of the Recipient's confidentiality obligations under this Section and that



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the Disclosing Party will be entitled to specific injunctive relief as a remedy for any such breach.
Such remedy will be in addition to all other available legal or equitable remedies.

(d) Upon termination of this Agreement, each party shall promptly return all information,
documents, manuals and other materials belonging to the other party except as otherwise
provided in this Agreement.

14.    LIMITATION OF LIABILITY

(a) TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY
AND ITS BUSINESS AFFILIATES WILL NOT BE LIABLE TO STRATEGIC PARTNER OR
ANY OTHER PARTY, INCLUDING CUSTOMERS, FOR ANY INDIRECT, INCIDENTAL,
SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND
RESULTING FROM (i) THE USE OR INABILITY TO USE THE COMPANY SERVICES,
COMPANY SITES (ii) COST OF PROCUREMENT OF SUBSTITUTE GOODS RESULTING
FROM ANY PRODUCTS PURCHASED OR OBTAINED VIA USE OF THE COMPANY
SERVICES, COMPANY SITES OR COMPANY TECHNOLOGY, (iii) MESSAGES
RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE COMPANY
SERVICES, COMPANY SITES OR (iv) UNAUTHORIZED ACCESS TO OR ALTERATION
OF STRATEGIC PARTNER TRANSMISSIONS OR DATA, INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF PROFITS, REVENUE OR GOODWILL; WORK
STOPPAGE IN ANY WAY ARISING OUT OF OR RELATED TO THE COMPANY
SERVICES, COMPANY SITES, COMPANY TECHNOLOGY OR THIS AGREEMENT;
COMPUTER FAILURE OR MALFUNCTION; OR ANY AND ALL OTHER COMMERCIAL
DAMAGES, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR
OTHERWISE, EVEN IF A REPRESENTATIVE OF COMPANY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.

(B) TO THE MAXIMUM AMOUNT PERMITTED UNDER APPLICABLE LAW: IN NO
CASE WILL COMPANY'S TOTAL LIABILITY TO STRATEGIC PARTNER ARISING OUT
OF OR RELATING TO THIS AGREEMENT EXCEED THE TOTAL FEES AND
COMMISSIONS RETAINED BY COMPANY PURSUANT TO THIS AGREEMENT IN THE
TWELVE (12) MONTHS PRECEDING THE CIRCUMSTANCES GIVING RISE TO SUCH
DAMAGES. COMPANY'S BUSINESS AFFILIATES WILL HAVE NO LIABILITY
WHATSOEVER UNDER THIS AGREEMENT.

15.    TITLE AND INDEMNIFICATION BY COMPANY

Company represents that it has sufficient right, title, and interest in the Company Sites to enter
into this Agreement. Company will indemnify, defend, and hold Strategic Partner harmless
against any loss or damage, including attorneys' fees and costs of litigation, arising from claims
of a third party based in whole or part on the infringement of a U.S. copyright or U.S. trademark
by the Company Sites actually known to Company; or the willful misconduct of Company, its
employees or agents.



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16.    TITLE AND INDEMNIFICATION BY STRATEGIC PARTNER

Strategic Partner represent that Strategic Partner has sufficient right, title and interest in the
intellectual property associated with the Product and Strategic Partner Site. Strategic Partner will
indemnify, defend, and hold Company (its parents, subsidiaries, affiliates (including Business
Affiliates), officers, and employees) harmless against all loss, damage or expense of any kind,
including attorneys' fees and costs of litigation, arising from claims of a third party (including
claims, assertions and investigations of a governmental agency) that arise in whole or part from:
Strategic Partner misuse of the Data; any action arising from Products or use of the Products
purchased via the Company Services; the infringement by Strategic Partner Products, Product
Information, or Strategic Partner Site, of any patent, copyright, trademark, or other intellectual
property right or other right of any person or entity; Strategic Partner gross negligence or willful
misconduct or that of Strategic Partner employees or agents.

17.    DISCLAIMER OF WARRANTIES

(a) Company and its Business Affiliates make no warranty that the Company Services, or Site
will meet Strategic Partner requirements, or that the Company Services, Sites or use of Company
technology will be uninterrupted, timely, secure, or error free. Company and its business
affiliates make no warranty as to the results that Strategic Partner may obtain from the use of the
Company Services, Company Sites or Company technology or as to the accuracy or reliability of
information obtained through the Company Services, Company Sites or Company technology.

(b) COMPANY AND ITS BUSINESS AFFILIATES PROVIDE THE COMPANY SERVICES,
COMPANY SITES AND COMPANY TECHNOLOGY AS DESCRIBED IN THIS
AGREEMENT "AS IS" AND ON AN "AS AVAILABLE" BASIS WITHOUT ANY
WARRANTIES OF ANY KIND. STRATEGIC PARTNER EXPRESSLY AGREES THAT
STRATEGIC PARTNER USE OF THE COMPANY SERVICES, COMPANY SITES AND
COMPANY TECHNOLOGY IS AT STRATEGIC PARTNER SOLE RISK. EXCEPT FOR
THOSE WARRANTIES WHICH CANNOT BE DISCLAIMED UNDER APPLICABLE LAW,
COMPANY AND ITS BUSINESS AFFILIATES EXPRESSLY DISCLAIM ALL
WARRANTIES, CONDITIONS AND REPRESENTATIONS OF ANY KIND, WHETHER
EXPRESS OR IMPLIED IN FACT OR BY OPERATION OF LAW, STATUTORY OR
OTHERWISE, AS TO ANY MATTER WHATSOEVER INCLUDING, WITHOUT
LIMITATION, ANY AND ALL WARRANTIES, CONDITIONS AND REPRESENTATIONS
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-
INFRINGEMENT OF THIRD PARTY RIGHTS.

18.    RELATIONSHIP OF PARTIES

The parties shall perform all of their duties under this Agreement as independent contractors.
Nothing in this Agreement shall be construed to give either party the power to direct or control
the daily activities of the other party, or to constitute the parties as principal and agent, employer
and employee, franchisor and franchisee, partners, joint ventures, co-owners, or otherwise as
participants in a joint undertaking.



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19.    ENTIRE AGREEMENT

This agreement constitutes and contains the entire agreement between the parties with respect to
the subject matter hereof and supersedes any prior or contemporaneous oral or written
agreements. This Agreement may not be modified or amended, except by an instrument in
writing signed by duly authorized officers of both of the parties hereto.

20.    COUNTERPARTS

This Agreement may be executed in counterparts each of which shall be deemed an original and
all such counterparts shall constitute one and the same agreement.

21.    GOVERNING LAW

This Agreement will be governed by and interpreted in accordance with the laws of the State of
____________________, excluding that body of law known as conflicts of law. The parties
agree that any dispute arising under this Agreement will be resolved solely in the state or federal
courts in ____________________ [PROVIDE COUNTY AND/OR STATE WHERE
PARTIES AGREE THAT ANY DISPUTE WILL BE HEARD], and the parties hereby
expressly consent to jurisdiction therein. In the event of any dispute, the prevailing party shall be
entitled to recover its reasonable attorneys’ costs from the non-prevailing party.

22.    SURVIVAL

The provisions of this Agreement relating to payment of any fees or other amounts owed,
payment of any interest on unpaid fees, confidentiality and warranties and intellectual property
shall survive any termination or expiration of this Agreement.

23.    NOTICES

Any notice or other communication required or permitted to be given by either party to the other
shall be signed by or on behalf of the party given the notice and delivered personally, by
facsimile, or mailed by prepaid registered post to the other party’s current address. Any notice
delivered personally or by facsimile shall be deemed to have been given and received on the date
it is so delivered. Any notice given by mail shall be deemed to have been given and received 5
days following the resumption of normal mail service.

24.    ASSIGNMENT

Neither Strategic Partner nor Company may assign this Agreement to a third party without the
prior written consent of the other, with the understanding that consent will not be unreasonably
withheld or delayed. However, either Strategic Partner or Company, without the other's consent,
may assign this Agreement in connection with any merger, reorganization, sale of all or
substantially all of the company's assets, acquisition or similar combination. This Agreement will
apply to and bind any successor or permitted assignees.



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25.    ADDITIONAL TERMS




IN WITNESS WHEREOF, the parties have executed this Agreement as of ___________,
201____.

[COMPANY]




Phone: (    ) _________________
Fax: (   ) __________________

By: _______________________
Title: ______________________


Strategic Partner




Phone: (    ) ___________________
Fax: (   ) ___________________


By: ____________________
Title: ___________________




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                                Exhibit A

                                Products




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                                 Exhibit B

                                Commission




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DOCUMENT INFO
Description: This is an agreement whereby various products of a company are to be marketed on an unaffiliated company's website in exchange for a fee. This document sets forth the material terms and conditions of the agreement including the services to be provided, the commission arrangement, and a description of the products. It contains numerous standard provisions that are commonly included in these types of agreements, and may be customized to fit the specific needs of the contracting parties. This document is useful to companies that use another company's website to conduct commerce.
This document is also part of a package How to Design a Website 10 Documents Included