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CHECKLIST

CO-BRANDING AGREEMENT TERMS AND PROVISIONS



Not all items are relevant in all contractual situations. In some situations, other provisions may be appropriate that are not listed below. The following checklist is, however, a basic and general guide as to what provisions it may be important to include, or at least consider, in a Co-branding agreement that you enter into. This document is not intended to substitute for legal advice nor legal wording provided by a competent advisor in the relevant legal jurisdiction.


Title of contract


Identity of the parties
Individuals or business entities
In a Co-branding agreement, one party who generally has a developed web concept, creates a Co-branded page, accessible through the web page of the other party.
If businesses, what type? (partnership, corporation, LLC, etc.)
Name of person signing on behalf of the business
Signers official title. Does he or she have authority to bind the business?


Addresses of the parties


General Purpose of Co-Branding Agreements 
The Co-branded page(s) generally include the business concept and certain of the content of the first party. 
The parties generally agree to the financial relationship relative to revenues from the Co-branded page.
Agreement allocates responsibilities for development and ongoing financial responsibility.


Preliminary Matters C Matters generally contained in the opening paragraph 
What party owns the copyrights? Make sure all parties with rights that are affected are made parties to the Agreement.
Describe the purpose for entering the agreement.
Describe the general business of the page to be Co-branded.
What is the scope of that page? What scope of rights are being subject to the Co-branded page? Describe all aspects of what is being Co-branded.
Describe the URL locations of the various pages. 
Generally described the fact of the development responsibility over the Co-branded pages.





Responsibilities Concerning Development of Co-Branded Pages
Describe what party is responsible for developing the Co-branded page(s). Generally this will be the owner of the primary page.
Any compensation for creating the Co-branded page? Will expenses be passed to the non-developing party? What will those expenses be?
What content will be included in the Co-branded page(s)?
Will look, feel and functionality be the same as the primary site?
Is any material from primary site prohibited from being used in the Co-branded page?
Will the non-developing party have approval rights over final page?
Will the site be accessible during the development?
What delivery obligations relative to website content? (Text, Graphics, Logo, Product, etc.)
What obligations concerning updating the Co-branded pages?
What if the primary site changes. Does the Co-branded site also change?


Marketing and Linking Obligations
What are the responsibilities of each party to market the Co-branded page(s)?
Define any specific requirements relative to marketing
Must a specific marketing budget be dedicated to marketing the site? Or to the site through which users will gain access to the Co-branded site?
Must the owner of the primary site provide a link from its page to the Co-branded or other pages of the developing party? What is the positioning, size, content of those links? Must the primary site owner provide graphics etc for placement on the website?
Will the owner of the primary site have any responsibilities concerning marketing? Will it provide assistance in marketing, consultation, etc.?
Will there be any special offers or promotions that will apply to users what party access the Co-branded site? Will these users be offered the same promotions etc. as the primary customers?
What party will be responsible for funding advertising? Will owner of primary site make any contribution to advertising?
Can either party use the affiliation in their marketing and advertising materials? Must approval be received prior to use?
Will the parties do a joint press release announcing the affiliations? If so, what party will pay the cost? What is the scope of the press release? What service will be used? 


Customer and Technical Support
What party will provide customer service to users accessing the Co-branded page?
It usually makes sense to have the owner of the primary site provide customer service as that party has existing mechanisms and knows its own business.
Is there any additional compensation for customer support?
Define parameters of customer service responsibilities.






Copyrights, Trademarks, Other Intellectual Property
Define what party has rights to various intellectual property.
Content, logos, graphics, etc.
Provide for licenses where one party is permitted to use the intellectual property of the other party.
Provide for license of materials contained in links that will be included on websites. This should include a license to use trademarks where appropriate.
Permit use of trademarks of the non-developing party to be included on the Co-branded page.
What party owns the rights to the Co-branded pages upon termination of the agreement? Generally these rights will go to the owner of the primary site, subject to trademarks and other proprietary materials of the other party which revert to that party.


Monitoring of Activity
What party will collect revenues from the Co-branded page?
What party will keep track of sales, click-throughs, impressions on the Co-branded page?
What responsibilities for reporting this information to the other party?
Does it tie into compensation?


Compensation 
Fixed up front payment to the developing party?
Development fee, plus license fee One time up front payment.
Percentage of advertising revenues?
Percentage of sales made through Co-branded page(s)?
Click-throughs to Co-branded pages?
Percentage of membership fees?


Exclusivity
Should the party for whom the Co-branded site is created be permitted to enter into other Co-branding relationships?
Within the scope of the products, services and content of the Co-branded page?
Competitors or non-competitors of the developing party?


Confidentiality and Trade Secrets
Almost inevitably, each party will come into contact with confidential information and trade secrets of the other party in the course of the relationship.
This material may include marketing plans and strategies, programming techniques, financial information, advertising and referral source, and a what partyle host of other information that the disclosing party will consider of strategic importance.
It is important to include a standard confidentiality clause in a Co-branding agreement.




Representations and Warranties
What representations and warranties are to be made by the parties?
Are certain warranties disclaimed (e.g., merchantability or fitness for a particular purpose)?
How long are any warranties good for?


Term and Termination of Agreement
How long will the agreement last?
What are occurrences that can lead to early termination?
Can either party terminate the relationship without cause?
Where significant marketing dollars are involved, the parties will want to give the relationship a long enough time to determine whether it will be fruitful. At the same time, if there are ongoing payments required for marketing and advertising, at some point the party responsible for these payments may want to say enough is enough 
What obligations do the parties have to each other upon termination?
Ongoing payments for receivables received after termination?
Delivery of proprietary information?
Discontinue using trademarks and other intellectual property?
Do any provisions (i.e. confidentiality requirements) survive the termination of the agreement? If so, how long do they last? 


Indemnification agreement
Is there indemnification for certain breaches or problems?
What is the procedure required to obtain indemnification?
Is there a cap on or exclusions from indemnification?


Default
What are the events of default?
Does a party have a period to cure a default?
What are the consequences of a default?


Arbitration clause
How are disputes to be handled C litigation, mediation or arbitration?
If arbitration, what rules will govern? (e.g., JAMS/Endispute or the American Arbitration Association)
If arbitration, how many arbitrators and how will they be picked?
If arbitration, will there be procedures for discovery and what the arbitrator can and cant do?
If litigation, where can or must the litigation be brought?

Waiver
An assertion that any delay or partial pursuit by one party of its rights against the other party does not constitute a forfeiture of the right to later seek further or complete remedy or redress to a situation, should the need arise.

Assignment
Identifies if either party to the contract can transfer the contract, in what partyle, or in part, to another party, and under what conditions (if any).


Severability
Explains that if any of the provisions of the contract are rendered null and void, all other provisions remain in force.


Notice
Describes how and where the parties shall formally communicate to each other in the event they need to take such action (e.g., all notices shall be deemed to have been received by the other party within five working days if sent by regular mail to the addresses below).


Entire Agreement
Explains that the written contract is the only description of the agreement between the vendor and buyer, regardless of what may have been previously stated or written down. Explains the process for updating the contract (often based upon mutual agreement, in writing).


Signatures of authorized signatories
What authority is required for one party to sign the contract (e.g., Board of Directors approval)?
How many signatures are required?
Are the signature blocks correct? 


Miscellaneous
Attorneys fees
Modification of Agreement
Time of the Essence
Survival
Ambiguities
Headings
Necessary Acts and Further Assurances
Execution
Jury Trial Waivers
Specific Performances 
Governing law 
Notarization
Representation on Authority of Parties
Force Majeure 
Company seal
Witness(es) 


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