Marketing Services Agreement

MARKETING SERVICES AGREEMENT

Effective Date: ________

(Prince Edward Island)

CONTEXT

This Marketing Services Agreement ("Agreement") is entered into and is binding on all Parties as of ________.

The Parties to this Agreement are:

________ (the "Client")
having a principal address at:

________

-AND-

________ (the "Marketer")
having a principal address at:

________

WHEREAS, ________ and ________ desire to establish a strategic marketing agreement by which the Parties to the contract commit to each other;

AND WHEREAS the objective is to improve the quality of services offered to customers;

NOW THEREFORE in consideration of the mutual covenants set forth herein, and with the intention of being legally bound hereby, the Parties agree as follows:

Article 1 - DEFINITIONS

1.1. The Parties agree to the following definitions used in this Marketing Services Agreement:

1.1.1. "Certificate" means a document created by the Client and issued to the Marketer that indicates that the Marketer is working to advertise the Client's business;

1.1.2. "Client" means (i) an entity whose head office is located in the Territory (defined below), and persons residing in the Territory, and (ii) with the prior written authorization of the Client, an entity that is a subsidiary of a Client, where sales decisions regarding the Client's business are made for the entity by the Client;

1.1.3. "Documentation" means any user manual or instruction materials, if any, and specifications, if any, relating to the goods or services provided by the Client's business;

1.1.4. "Effective Date" means the date on which the Parties enter into and agree to be bound by the terms of this Agreement;

1.1.5. "Marketer" is an entity that acquires goods or services from the Client for marketing purposes;

1.1.6. "Order" or "Orders" means a contract created by the Client for the purchase of goods or services by client(s);

1.1.7. "Purchase" means the purchase of goods or services for sale in the Territory;

1.1.8. "Personal Data" means information relating to individuals;

1.1.9. "Territory" means the geographical boundaries within which the Marketer may market the Client's goods and services;

1.1.10. "Sale" means the date on which each such transaction takes place. The Client executes an Order, the Client receives the Order from the Marketer and the Client accepts the Order.

Article 2 - SCOPE OF ACTIVITIES

2.1. The Marketer is responsible for undertaking the following activities under this Agreement:

2.1.1. Invest the necessary resources and engage in best efforts to advertise, market, promote, demonstrate, offer to sell and sell goods and/or services to customers in the Territory, through the business contacts of the Marketer, using only marketing, advertising, and promotional materials provided by the Client or previously approved in writing by the Client;

2.1.2. Promptly inform the Client of any unauthorized use of the goods and/or services of which it has knowledge, and assist the Client in asserting its rights to the goods and/or services;

2.1.3. Protect the Client's confidential and proprietary information and intellectual property, including but not limited to its trade secrets, copyrights, trade names, service marks, and trademarks, with the same level of protection as it uses for its own confidential and proprietary information and intellectual property, and inform the Client if it becomes aware of any unauthorized use of any of the above;

2.1.4. If it receives orders from customers, promptly transmit to the Client all orders executed by the Client and payment in full from the Client in accordance with the orders, as instructed by the Client;

2.1.5. Communicate with and receive communications from the Client, send documents to the Client and receive documents from the Client, as required for the execution of this Agreement;

2.1.6. During the Term and for a period of one year thereafter, the Marketer shall maintain books and records relating to the Client's transactions contemplated under this Agreement. Upon reasonable notice, the Marketer shall provide such books and records to the Client for review by the Client to ensure compliance with the Requested Party with the terms and conditions of this Agreement;

2.1.7. Refrain from holding himself/herself out as an employee, agent, representative, or member of a joint venture with the Client and shall not make or promise to make any representations on behalf of the Client, including guarantees, refunds, and/or credits;

2.1.8. Comply with all laws, rules, regulations, and executive directives in the execution of this Agreement and in accordance with all of the Client's policies and procedures;

2.1.9. Engage in the following additional responsibilities:

________

2.1.10. Do everything reasonably expected of them to perform their obligations under this Agreement.

2.2. The Client is required to undertake the following activities under this Agreement:

2.2.1. Protect the Marketer's confidential and proprietary information and intellectual property, including but not limited to, its trade secrets, copyrights, trade names, service marks, and trademarks with the same level of protection it uses for its own confidential and proprietary information and intellectual property, and notify the Marketer if it becomes aware of any unauthorized use of any of the above;

2.2.2. Make future improvements, if any, or upgrades, if any, to the goods and/or services that the Client deems only appropriate. Such improvements and upgrades shall at all times be considered the "Products";

2.2.3. Prepare and distribute to the Marketer marketing, advertising and/or promotional materials, contracts, and other documents in an accessible digital format; and, at the Marketer's discretion, add such materials in a physical medium;

2.2.4. Provide initial training to the Marketer regarding all Client procedures, pricing, fees, policies, and contracts;

2.2.5. Have sole discretion to issue refunds to any customer and to credit any customer account;

2.2.6. Engage in the following additional responsibilities:

________;

2.2.7. Comply with all laws, rules, regulations, and executive directives in the performance of this Agreement.

Article 3 - REPORT

3.1. The Marketer shall provide (or provide access) to the Client a data report that will enable the Client to determine the value (traffic, sales achieved, revenues generated, etc.) resulting from the activities of the Marketer described in this Agreement at the following frequency: ________.

Article 4 - USER TRACKING

4.1. The Marketer will use and implement reasonable tracking mechanisms to enable the Client to accurately track orders to connect the Marketer to the Client and purchasing the Client's goods and/or services.

Article 5 - LICENCES

5.1. The Client grants the Marketer a non-exclusive, non-transferable, royalty-free licence to use the Client's trade names, trademarks, logos, and service marks (collectively, the "Marks") in connection with the performance of this Agreement.

5.2. The Marketer shall not use the Client's Marks for any purpose without the prior written consent of the Client.

5.3. The Client shall not alter or permit the alteration, deletion, or modification of any of the Client's Marks or other identifying marks placed by the Client or its agents on the products or associated documentation or literature without the Client's prior written consent.

5.4. The Client will not alter or permit the alteration, deletion, or modification of any of the Client's or its agents' identifying marks on the products or associated documentation or literature without the Client's prior written approval. Except as specifically provided in this Agreement, nothing in this Agreement shall confer upon the Marketer any right, title, or interest in the Client's trademarks or goodwill. The Marketer acknowledges that the Client's Marks and any related goodwill are the sole and exclusive property of the Client, and the Marketer agrees not to use any confusingly similar marks, works, or symbols.

5.5. At no time during or after the term of this Agreement shall the Marketer challenge or assist others to challenge the Client's Marks or their registration or attempt to register any trademarks, marks, or trade names that are confusingly similar to the Client's Marks.

5.6. The Client acknowledges that it retains ownership of all its trademarks and other intellectual property rights licensed to it. The Marketer acknowledges that its use of the Client's Marks will not create, and will not represent that it has any right, title, or interest in the Client's Marks other than the express and limited right to use the Client's Marks on the Marketer's website granted under this Agreement.

5.7. The Marketer agrees to cease using the Client Marks immediately upon request and in no event shall this license survive the term of this Agreement.

Article 6 - ADVERTISING

6.1. The Parties will cooperate in creating appropriate public and promotional announcements or press releases concerning the relationships set out in this Agreement.

6.2. All public announcements of one Party that mention the other Party, but excluding those announcements that merely mention one Party as a Client or Marketer of the other Party, are subject to prior review and approval, which shall not be unreasonably withheld or delayed.

Article 7 - DURATION AND TERMINATION

7.1. The term of this Agreement shall commence on the Effective Date and shall continue in full force and effect as described herein.

7.2. This Agreement shall take effect on the Effective Date and shall continue in full force and effect in accordance with the provisions of this Agreement. This Agreement shall remain in force for the following term: ________, unless earlier terminated in accordance with the provisions of this Agreement.

Thereafter, the Agreement shall be automatically renewed for successive periods of the following Term, without notice, unless terminated in writing by either party: ________.

7.3. If either Party materially fails to perform any provision of this Agreement and such failure is not cured within thirty (30) days, written notice of such failure shall be delivered by the non-defaulting Party, and the non-defaulting Party shall be entitled to terminate the Agreement immediately upon written notice of termination by the defaulting Party.

7.4. Termination shall not relieve either Party of any obligations incurred prior to a termination. Upon termination, the Marketer agrees to (i). cease all promotions of the Client's goods and/or services; (ii). cease all use of the Client's technology and trademarks; and (iii). cease making the Client's services available on or through a website or otherwise, and upon request, promptly destroy or return all copies (electronic or written) of the content, technology, and any other confidential or proprietary information in the possession or control of the Marketer. Without in any way limiting the foregoing, the Parties agree that after the termination, each Party may continue to make its products/services directly available to users who subscribed to the product/service prior to a termination, without any liability or obligation to the other party.

Article 8 - EXCLUSIVITY

8.1. During the term of this Agreement, the Marketer shall have the exclusive rights to market the Client's goods and/or services to customers.

Article 9 - FEES AND PAYMENT

9.1. The Marketer's fee is calculated as ________% of the net value of goods and/or services purchased by customers based on the Marketer's traffic to the Client. The net value does not include value-added tax, postage, packaging, insurance, refunds, and payments not honoured by a financial institution

9.2. After determining the fees owed by the Marketer, the Marketer shall issue an invoice to the Client and payment shall be made within thirty (30) days from the date of the invoice.

9.3. Acceptable forms of payment include the following:

________.

Article 10 - LATE PAYMENTS

10.1. For any fee payment that is not made within 30 days after its due date, the Client shall pay a late fee of ________ ($________).

Article 11 - WARRANTIES

11.1. Each Party represents and warrants to the other that:

11.1.1. It has the right and power to enter into this Agreement and to perform the acts required of it hereunder;

11.1.2. The performance of this Agreement by that Party and the performance of that Party of its obligations and duties hereunder do not and will not violate any other agreement to which that Party is a party or by which it is otherwise bound;

11.1.3. When executed and delivered by such Party, this Agreement shall constitute the valid, legal, and binding obligation of such Party, enforceable against such Party in accordance with its terms;

11.1.4. Such Party acknowledges that the other Party makes no representations, warranties, or agreements relating to the subject matter hereof that are not expressly set forth in this Agreement.

Article 12 - INDEMNIFICATION

12.1. The Marketer will indemnify, defend and hold harmless the Client and its directors, officers, employees, and agents from and against any costs, expenses (including reasonable legal fees), losses, damages, or liabilities incurred to the extent that such costs, expenses, losses, damages or liabilities are based on a claim that the Marketer's technology or trademarks infringe the intellectual property rights of a third party.

12.2. The Client shall indemnify, defend and hold harmless the Marketer and its directors, officers, employees, and agents from and against all costs, expenses (including reasonable legal fees), losses, damages, or liabilities incurred to the extent that such costs, expenses, losses, damages or liabilities are based on a claim that the Client's technology or trademarks infringe the intellectual property rights of a third party.

12.3. The Indemnified Party shall provide the Indemnifying Party with prompt written notice of any such claim. The indemnifying Party shall have exclusive control and authority over the defence and resolution of such claims. The Indemnified Party shall cooperate fully with the Indemnifying Party, at the sole cost and expense of the Indemnifying Party, in the defence of any such claim. The Indemnifying Party shall not accept any such claim which does not include a full release of the Indemnified Party from any liability in respect thereof or which imposes any liability, obligation, or restriction on the Indemnified Party without the prior written consent of the Indemnified Party. The Indemnified Party may participate in the defence of any claim through its own counsel and at its own expense.

Article 13 - 888258585582558

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Article 14 - LIMITATION OF LIABILITY

14.1. Except in the case of death or personal injury caused by the negligence of either party, the contractual, tort, or other liabilities of either Party arising out of this Agreement or the performance of obligations under this Agreement shall be limited to the fees paid by the Client to the Service Provider.

14.2. To the extent permitted by law, neither Party shall be liable to any other party, whether in contract, tort, negligence, breach of statutory duty, or otherwise, for any loss, damage, cost, or expense of any nature whatsoever incurred or suffered by such other Parties, whether indirect or consequential, including, without limitation, any economic loss, loss of data, loss of goodwill or other loss of revenue, profit or business.

Article 15 - ADDITIONAL PROVISIONS

15.1. Force Majeure. If the performance of this Agreement or any other obligation under this Agreement is prevented, limited or hindered by causes beyond the reasonable control of either Party, and if the Party unable to perform its obligations notifies the other Party in writing promptly, the obligations of the Party invoking this provision shall be suspended until such time as those circumstances so require:

15.1.1. The term "force majeure" includes, but is not limited to, acts of God, fire, explosion, vandalism, flood, storm, sickness, injury, earthquakes, general unavailability of essential materials, orders of military or civil authorities, national emergencies, riots, strikes, lockouts, work stoppages or other labour disputes or supplier failures;

15.1.2. The Party excused by such events shall do everything reasonably possible, having regard to the circumstances, to avoid or remove such causes of non-performance and shall proceed with due diligence whenever such causes are removed or have ceased;

15.1.3. An act or omission shall be deemed to be within the reasonable control of a Party if it is committed, omitted, or caused by that Party or its employees, officers, agents, subsidiaries, or affiliates.

15.2. Notice. All notices that either Party is required or may wish to serve on the other Party shall be in writing and addressed to the Party on whom they are to be served at the respective addresses set forth herein and shall be sent by express courier or private courier with confirmation of receipt and shall be effective immediately upon receipt at the addresses set forth herein (unless the Parties are notified in writing of a change of address, in which case the notice shall be sent to the new address).

15.3. Entire Agreement. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof, and there are no other promises or conditions in any other agreement, whether oral or written.

15.4. Waiver of Contractual Rights. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party's right to enforce and subsequently enforce strict compliance with each provision of this Agreement.

15.5. Headings. The section and paragraph headings contained in this Agreement are inserted for convenience only and in no way define, govern, limit, modify or interpret the scope or extent of the provisions of this Agreement to which they may relate. Such headings do not form part of this Agreement and have no legal effect.

15.6. Amendments. This Agreement may be modified or amended if, and only if, the amendment is in writing and signed by both Parties.

15.7. Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions shall remain valid and enforceable. If a court finds any provision of this Agreement to be invalid or unenforceable, but that by restricting such provision it would become valid and enforceable, then such provision shall be deemed to be in writing and shall be construed and enforced in the manner so restricted.

15.8. Assignment. This Agreement shall be binding upon and enure to the benefit of each party's successors and assigns. Neither Party may assign this Agreement, in whole or in part, without the prior written consent of the other Party; provided, however, the sale of a portion of the assets of either Party, or any of its subsidiaries, or its acquisition by merger into another company, shall not be deemed an assignment of this Agreement by that Party:

15.8.1. It is further provided that the Party to be sold or acquired in accordance with the above provisions shall notify the other Party in writing of any such sale or acquisition within thirty (30) calendar days of closing;

15.8.2. Any attempt to assign this Agreement other than in accordance with this provision shall be null and void.

15.9. Independent Contractors. The Parties to this Agreement are independent contractors:

15.9.1. Neither Party is an agent, representative, or partner of the other party;

15.9.2. Neither Party has the right, power, or authority to enter into any agreement for or on behalf of the other party, or to incur any liability or bind the other Party in any manner whatsoever;

15.9.3. This Agreement shall not be construed to create an association, joint venture, partnership, franchise, sales, representative, or working relationship between the Parties, nor shall it be construed to impose any partnership obligation or liability on either party;

15.9.4. Each Party shall bear its own costs and expenses in the performance of this Agreement.

15.10. Applicable Law. This Agreement shall be governed by provincial laws. Both Parties consent to the jurisdiction of the provincial, territorial and federal courts. The Parties agree that this choice of law, choice of venue, and choice of jurisdiction provision is not optional, but rather mandatory.

EXECUTION

_________________________________
________, Client

__________________
Date

_________________________________
________, Marketer

__________________
Date