Co-Branding Agreement

Joint Marketing or Co-Branding Agreement

This Joint Marketing Agreement (the Agreement) is made and entered into on the (date) (the Effective Date), by and between (Name of Corporation), a corporation organized and existing under the laws of the state of , with its principal office located at , referred to herein as the Company, and , a corporation organized and existing under the laws of the state of , with its principal office located at , referred to herein as the Vendor. Company and Vendor are collectively referred to as Parties, and individually referred to as a Party.

Whereas, the Parties desire to establish a cooperative business relationship with each other focused on joint marketing activities with the goal of generating sales and customer prospects;

Now, therefore, for and in consideration of the mutual covenants contained in this agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1. License of Marks

A. Subject to the terms and conditions of this Agreement, each Party grants the other Party a limited, royalty-free, nonexclusive, nontransferable license to use its logos, trademarks, copyrights and copyrightable works (the Marks) solely in connection with the joint marketing activities contemplated by this Agreement.

B. Neither Party will use nor permit others to use the other Party's Marks except as permitted in this Agreement nor for any purpose other than in connection with the joint marketing activities without the prior written consent of the other Party. Neither Party will use or permit the Marks of the other Party to be used in any manner that would dilute or adversely affect the value and distinctiveness of the Marks or that would disparage, embarrass or be detrimental to the licensing Party or in any way use or take any action that may associate the Marks with any illegal, offensive, obscene, immoral, or improper purpose or action. Each Party agrees, subject to the terms and conditions of this Agreement, that any and all rights that may be acquired by its use of the other Party's Marks shall inure to the sole benefit of the other Party.

C. Each Party will comply with the other Party's guidelines or conditions provided to it with respect to style, appearance and manner of use of the Marks and will obtain other Party's consent prior to using the Marks in a manner that deviated from such guidelines and conditions. In addition, upon the other Party's request, each Party will promptly provide the other Party with specimens of the marketing materials, products, or other use that incorporate the Marks to monitor compliance with this Agreement.

2. Territory and Marketing Channels

The territory covered by this Agreement shall be the fifty states of the United States of America, and the marketing channels shall be .

3. Website Information

A. Vendor will provide its logo, a description of its business and a description of its goods and services to Company. Company will include this information in the Vendor listing on the Company website, once this listing is launched.

B. Company will provide its logo, a description of its business and a description of its goods and services to Vendor. Vendor will include this information in the Vendor listing on the Vendor website, once this listing is launched.

4. Sales Material

A. Company will provide Vendor with sales presentation and prospect qualifications which Vendor may use to describe Company's products and services to prospective customers and to determine whether a prospect is a qualified candidate for Company's services.

B. Vendor will provide Company with sales presentation and prospect qualifications which Company may use to describe Vendor's products and services to prospective customers and to determine whether a prospect is a qualified candidate for Vendor's services.

C. Each Party may provide collateral packages, as requested by the other Party, containing reports, announcements, appropriate brochures, and the like, which the other Party may distribute to prospective customers.

5. Joint Event Participation

A. Each Party may invite the other party to participate in tradeshows, conferences, seminars and other events, as deemed appropriate by both parties. Each Party may determine whether to participate in an event at its discretion.

B. Each Party is responsible for its own travel, entertainment and other costs to participate in these events, unless agreed to in writing in advance by both Parties.

6. Joint Sales Plan

A. Company and Vendor will work together to develop a plan for identifying joint sales opportunities. They may conduct joint sales calls to accounts as mutually agreed to by the sales organizations of both Parties.

B. Once a prospective customer has been identified, according to each Party's qualification procedures, each Party will assign a person in its respective organizations to sell jointly to the prospective customer.

7. Press Releases

A. The Parties will provide each other with quotes to be used in respective press releases that announce the formation of the relationship between Vendor and Company and for participation in each other marketing programs.

B. Company and Vendor may participate in other joint press releases, as deemed appropriate, when mutually agreed to by both Parties. Neither Party will issue a press release regarding the other Party without the other Party's prior written approval.

8. Point of Contact

A. Company will provide Vendor with the name of a single point of contact within the Company's Business Development organization that shall be called the Vendor Manager.

B. Vendor will provide Company with the name of a single point of contact within the Vendor's Business Development organization that shall be called the Company Manager.

9. Ownership and Proprietary Rights.

Each Party agrees that all rights, title and interest in the other Party's Marks and any other intellectual property of the other Party shall remain vested in the other Party and that this Agreement does not transfer ownership of any of these rights. Each Party shall notify the other Party promptly of any actual or threatened infringements, imitations or unauthorized use of the other Party's Marks or intellectual property by third parties of which such Party becomes aware. Each Party shall cooperate with the other, at its request, in connection with any action brought by the other Party. Each Party agrees not to challenge, oppose, petition to cancel or otherwise attack the other Party's Marks or intellectual property and the other Party's ownership thereof.

10. Compensation

A. For completed sales of Vendor's products made pursuant to this Agreement, the Parties agree that the compensation shall be as follows:

• % Sale Commission

• % Joint Sale

B. Each Party will deliver to the other quarterly reports of sales generated pursuant to this Agreement during the immediately preceding calendar quarter, together with a calculation of the compensation due to the other Party hereunder and identification in reasonable detail of each customer and prospect, in such form as the Parties may mutually agree. Each such report shall be accompanied by a check in the amount of such compensation for invoices that have already been paid by customers.

C. Each Party shall have the right, upon reasonable notice to the other and not more often than once each year, to review the books and records of the other Party relating to sales generated and compensation paid pursuant to this Agreement. Each Party shall bear its own cost of such review, provided that if any review indicates that a Party (the Audited Party) has paid less than % of the compensation actually due under this Agreement for any month, then the Audited Party shall pay the cost of such review, together with interest on any overdue payment(s) at the rate of % per annum.

11. Relationships with Customers

Each Party will independently enter into agreements with its own customers, and neither Party will knowingly solicit customers of the other Party during the term of this Agreement and for a period of one (1) year thereafter.

12. Sales of Vendor's Products

A. For all completed sales of the Vendor's products made by the Company: (i) Vendor reserves all authority for credit approvals; (ii) Vendor will drop ship the product to customer's location; and (iii) Vendor will provide technical support but no legal or regulatory advice to customer.

B. Vendor guarantees and warrants that it has the full legal right and authority to produce and to assign Vendor's products for sales by Company.

C. Vendor will provide Company with (number) months' written notice prior to eliminating any or all of its products from sale. After expiration of such notice, Vendor will continue to provide full support for an additional (number) months if Company so requests in writing.

D. If for any reason Vendor ceases to offer any or all of its then current products and does not replace them within a reasonable time, Company shall have the right to establish its own support needs and the right to purchase any or all discontinued products for one dollar ($1.00) each.

13. Disclaimer of Certain Damages

IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FAILURE TO REALIZE ANTICIPATED PROFITS OR SAVINGS, OR OTHER COMMERCIAL OR ECONOMIC LOSS, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THEY ARE FORESEEABLE.

14. Term and Termination

A. The term of this Agreement shall commence on the date of signing and shall continue for one (1) year, and will survive the merger, acquisition, sale, or takeover of either Party. The term of this Agreement shall automatically renew thereafter for successive and consecutive one (1) year terms unless either Party provides written notice of termination to the other Party at least (number) days prior to the expiration of such term of its desire not to renew.

B. This Agreement may be terminated: (i) by either Party upon (number) days by giving notice to the other Party in the event of a material breach of this Agreement by the other Party that remains uncured (number) days after the nonbreaching Party's notice of breach; (ii) by either Party in the event that the other Party makes a general assignment for the benefit of creditors, files a voluntary petition in bankruptcy or for reorganization or arrangement under the bankruptcy laws, if a petition in bankruptcy is filed against such other Party, or if a receiver or trustee is appointed for all or any part of the property or assets of such other Party; or (iii) by a written agreement executed by Parties.

C. After termination of this Agreement, the Company shall have the complete right to purchase a perpetual license for every customer and prospect for one dollar ($1.00) each.

15. Proprietary Information

A. Either Party may provide to the other Party certain confidential, proprietary and trade secret business and technical information in connection with the performance of this Agreement (Proprietary Information). Proprietary Information shall be clearly marked and designated as Confidential or Proprietary.

B. Each Party agrees to preserve the confidentiality of all Proprietary Information that is provided by the other Party in connection with this Agreement, and shall not, without the prior written consent of the other Party, disclose, display or make available to any person, or use for its own or any other person's benefit, other than as necessary in performance of its obligations under this Agreement, any Proprietary Information of the other Party. Parties shall exercise a commercially reasonable level of care to safeguard all Proprietary Information of the other Party against improper disclosure or use. The Party receiving the Proprietary Information shall be responsible for any breach of this Agreement by its agents, employees or representatives.

C. These restrictions on the use or disclosure of the information shall not apply to any information: (i) which is independently developed by the receiving Party without the use of the other Party having the right to so furnish such information; (ii) after it has become generally available to the public without breach of any confidentiality obligations; (iii) which at the time of disclosure to the receiving Party was known to such Party free of restriction as evidenced by documentation in its possessions; or (iv) which is required to be disclosed by law, regulation or valid order a court or other governmental body, but only to the extent required by such law, regulation or court order and only if the receiving Party first notifies the disclosing Party of the law, regulations or order and permits the disclosing Party to seek a protective order or other relief from disclosure.

D. The receiving Party agrees that irreparable damage would result to the disclosing Party in the event that any provision of this Agreement is not performed in accordance with its specific terms or is otherwise breached. Accordingly it agrees that, in addition to any other rights it may have at law or in equity, the disclosing Party will be entitled to injunctions, without being required to post a bond or prove that monetary damages are inadequate, to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof.

16. Independent Contractors

Parties and their respective personnel are and shall be independent contractors and neither Party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other Party and shall not hold itself out as having such authority. Nothing in this Agreement shall constitute a partnership or a joint venture between Parties, and all communications to third parties will clearly and accurately state the relationship between the Parties hereunder.

17. The Parties' respective obligations under this Agreement which by their nature would continue beyond the termination or expiration of this Agreement, including, without limitation, Sections 9, 12, 13, 14, and 15 shall survive the termination or expiration of this Agreement.

18. Severability

The invalidity of any portion of this Agreement will not and shall not be deemed to affect the validity of any other provision. If any provision of this Agreement is held to be invalid, the parties agree that the remaining provisions shall be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision.

19. No Waiver

The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as subsequently waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred.

20. Governing Law

This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of .

21. Notices

Unless provided herein to the contrary, any notice provided for or concerning this Agreement shall be in writing and shall be deemed sufficiently given when sent by certified or registered mail if sent to the respective address of each party as set forth at the beginning of this Agreement.

22. Mandatory Arbitration

Any dispute under this Agreement shall be required to be resolved by binding arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each party shall select one arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration Association then in force and effect.

23. Entire Agreement

This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement.

24. Modification of Agreement

Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if placed in writing and signed by each party or an authorized representative of each party.

25. Assignment of Rights

The rights of each party under this Agreement are personal to that party and may not be assigned or transferred to any other person, firm, corporation, or other entity without the prior, express, and written consent of the other party.

26. Counterparts

This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument.

27. Compliance with Laws

In performing under this Agreement, all applicable governmental laws, regulations, orders, and other rules of duly-constituted authority will be followed and complied with in all respects by both parties.

WITNESS our signatures as of the day and date first above stated.