Entering into a Joint Marketing Agreement can expand your business without significant resources. It can increase the visibility of your brand, allow access to new markets, reduce the cost of advertising and may provide local support for your customers. In a Joint Marketing Agreement two parties separately market products and/or services which are often complementary or for related purposes. Both parties cooperate in marketing each products and/or services through cross-promotion for mutual benefit.
Checklist for Joint Marketing Agreements
Describe the subject matter of the contract
Provide a brief overview of the nature of the relationship and/or transaction contemplated.
In addition to marketing rights, is there a grant of license for use of a trademark?
Is the grant exclusive or nonexclusive?
Worldwide or restricted to a territory?
What are the obligations to market? Will you create joint marketing collateral? Who pays for marketing collateral?
Is there a minimum or maximum quantity of materials that can be ordered?
Are there restrictions on replication of materials?
Who owns the marketing materials, trademarks, any other jointly created materials etc.
Who owns integrated or bundled products or services?
What is the nature of the relationship?
Any warranties provided?
Disclaimers of the warranties?
Will either party provide any training? Marketing or sales training?
If so, under what conditions?
Are there sales quotas?
Deadlines for performance of services?
Can either party compete or offer competing products or services?
Can either party develop competing products or services?
How are revenues to be earned? Percentages? Commissions? Performance triggers?
How and when are revenues to be paid?
Are discounts to be offered?
What about credits or refunds?
What are the bookkeeping requirements?
Who pays any federal, state, or local taxes imposed on the agreement? (i.e. VAT, sales and/or use tax).
What is to be kept confidential?
How long does the obligation to keep the information confidential remain after termination of the Agreement?
Limitation of Liability
Is there a limit on the dollar amount of damages for breach of the Agreement?
Is there a limit on the type of damages for breach of the Agreement? (i.e. consequential damages, such as lost profits, or claims by third parties)
Is there a contractual limit on the time in which either party can file a lawsuit against the other?
Are there any limits on indemnification liability?
Are there any conditions for indemnification? (timely notice of claims, cooperation in defense, misconduct or gross negligence)
What are the party’s rights in the event of a breach of the agreement by the other party?
If a dispute arises between the parties, will they be required to submit to arbitration or some other method of alternate dispute resolution instead of going directly to court?
Term and Termination
When can either party terminate?
When is termination effective?
What rights and obligations continue on termination?
Entire Agreement/Merger Clause