Merchandising and Marketing Agreement (India)
This Merchandising and Marketing Agreement is created for use in India and is available for immediate download.
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There are numerous businesses which give other companies the exclusive right and licence to manufacture and market their merchandise. Whether you are the company providing the products or the company selling the goods, it is important that you have a well-written Merchandising and Marketing Agreement. This agreement sets forth the specific terms of the arrangement including the products to be licensed and the territory to be served. A written Merchandising and Marketing Agreement will prove valuable in the event of disagreements, misunderstandings or litigation.
Among others, this Merchandising and Marketing Agreement contains the following provisions:
This lawyer-prepared packet contains:
Among others, this Merchandising and Marketing Agreement contains the following provisions:
- Parties to the Agreement: This provision contains the identity and addresses of the businesses entering into the agreement;
- Licence: This provision sets out the specific purpose and licensing terms;
- Territory: This provision sets out the geographical territory to be served;
- Term and Termination Provisions: Sets out the date of the initial agreement and agreement termination procedures;
- Intellectual Property Rights: Sets out the intellectual property interests and rights of each party.
This lawyer-prepared packet contains:
- General Information
- Instructions and Checklist
- Merchandising and Marketing Agreement for use in India
Number of Pages13
DimensionsDesigned for Letter Size (8.5" x 11")
EditableYes (.doc, .wpd and .rtf)
UsageUnlimited number of prints
Merchandising and Marketing Agreement
THIS MERCHANDISING & MARKETING AGREEMENT made and entered on this ____ day of ___________, 20________ by and between _________________________________ having an address at ___________________________________________________ (“Company”) and ______________________________________________________ having an address at _____________________________________________________________ (“Merchandiser”) with respect to certain merchandising and marketing of the following: ___________________________________________________________________________ (the “Property”).
Subject to the terms and conditions contained hereunder, Company for the term of this Agreement, grants to Merchandiser an exclusive right and license to utilise the Property for the following purposes: ______________________[manufacturing, advertising, distribution, sale etc]______________________. The Merchandiser shall use the Property solely in connection with the Products as specified in the Exhibit “A” attached hereto and by this reference made a part hereof. Merchandiser hereby expressly agrees that it will not utilise the Property in any other manner which is not specifically authorised by this Agreement. Company specifically reserves all rights not specifically granted hereunder.
The license granted to the Merchandiser under this Agreement shall extend only to the following geographical territory ______________________________________________ (the “Territory”). Merchandiser shall not use whether directly or indirectly or authorise others to use the Products in any other area except in the Territory.
This Agreement shall commence on the date above written and shall continue for a period of ______________ years (the “Initial Term”) and, upon expiration of the Initial Term, this Agreement shall automatically renew for an additional period of ___________ years unless one party gives the other party sixty (60) days’ prior written notice terminating this Agreement.
The rights and license granted by the Company hereunder to the Merchandiser shall not include the following rights: ___________________________________________________.
Merchandiser shall pay to Company an amount as specified on the Exhibit “B” attached hereto and by this reference made a part hereof. The said compensation amount shall be paid in a manner and at the time specified in said Exhibit “B”.
The Merchandiser shall furnish a complete and accurate monthly or quarterly statement to the Company, specifying the quantity, description and sales price realised by the distribution or sale of the Product by the Merchandiser during the preceding month or quarter to which such statement pertains. All payments as specified in Exhibit “B” shall be payable by the Merchandiser simultaneously with the rendering of statements. If any inconsistencies or mistakes are discovered in such monthly or quarterly statements or in the payments advanced by the Merchandiser, the Merchandiser shall immediately rectify the statements and make appropriate payments to the Company.
7. BOOKS AND RECORDS
Merchandiser shall keep and maintain accurate books of account and records showing all transactions made by the Merchandiser in relation to the license granted under this Agreement. Merchandiser agrees to keep all books of account and records for at least two (2) years after the expiration or termination of this Agreement. The Company and any duly authorised representatives of the Company shall have the right upon giving reasonable advance notice to examine the said books of account and records and all other related documents in connection with the transactions contemplated hereunder. Company and any duly authorised representatives of Company shall have free and full access to the books and accounts for the purpose of making extracts and or copies there from. The costs of all such inspection shall be borne by Company and if any such inspection shows an under reporting or under payment, then Merchandiser shall pay the costs of such inspection.
8. INTELLECTUAL PROPERTY RIGHTS
(a) The Company shall retain all rights, title and interest in and to all copyrights, trademarks and other intellectual property rights embodied in or associated with the Products. Except as provided under this Agreement, no implied licenses are granted to the Merchandiser and any rights not expressly granted hereunder are solely reserved by the Company. The Merchandiser shall not exceed the scope of the licenses granted hereunder. Merchandiser acknowledges that all rights in any additional material, new versions, translations, rearrangements, or other changes in and to the Property which may be created by or for Merchandiser, shall be and will remain the exclusive property of Company and the same shall be and will remain a part of the Property under the terms and conditions of this Agreement. Merchandiser agrees to assign over to Company, at Company’s request, formal and absolute title subject to the license granted herein, to any protectable new version, variation, revision, arrangement of compilation of the Property, ownership of which shall be absolute in Company.
(b) Merchandiser shall put a copyright notice on all Products saying: © [name of copyright owner date of copyright]. Merchandiser shall also put a trademark notice on all Products saying either “TM” or “R”. Company will have the right to check and approve the trademark or copyright notice, upon obtaining approval of the Company Merchandiser will not deviate from the Company-approved notice.
(c) Company may in its reasonable discretion, commence or prosecute any claims or suits against infringement of its right in the Property and may also join Merchandiser as a party in such suit. Merchandiser shall immediately notify Company of any infringements of any of the Products of the Company. Merchandiser shall assist the Company and or its authorised agents in obtaining and maintaining in Company’s name any and all available protection of Company’s rights in and to the Property. In connection therewith, Merchandiser agrees to sign documents, give testimony, provide facts and otherwise cooperate with Company and its agents in obtaining registrations, assignments, certificates evidencing Company’s rights in the Property.
9. COMPANY’S APPROVAL
Prior to the distribution or sale of the Products licensed hereunder, Merchandiser at its expense shall deliver the following: (a) samples of the Product; (b) the packaging materials, promotional materials and advertising materials to the Company for Company’s written approval of the same. Company may in its sole discretion either grant or withhold such approval. Any failure on the part of the Company to approve or disapprove in writing any of the samples furnished to Company within two (2) weeks from the date of submission of the samples shall be deemed approval thereof. Once Merchandiser obtains approval for the samples, Merchandiser shall not depart therefrom in any respect without the express prior written approval of Company.
Merchandiser hereby indemnifies and holds harmless the Company, its parents, subsidiaries, affiliates, officers, employees, agents, representatives from and against all costs and expenses of any and all claims, demands, causes of action and judgments arising out of any acts of the Merchandiser, its officers, employees, agents or anyone, directly or indirectly, acting by, through, on behalf of, the Merchandiser arising from any unauthorised use of the Product or out of infringement of any copyright, trademark, patent or libel or invasion of the right of privacy, publicity, or other property right, or failure to perform any of the obligations hereunder.
Merchandiser shall at its cost obtain and maintain throughout the term of this Agreement a Product Liability Insurance, in the form acceptable to Company, from a qualified insurance company, naming Company as additional named insured, and the said policy shall provide protection against any and all claims, demands and causes of action arising out of any defects or failures to perform, alleged or otherwise, in the Products or any material used in connection therewith or any use thereof. The amount of coverage shall be a minimum of ____________________________ Rupees. Merchandiser shall furnish Company a certified copy of the policy providing such coverage within thirty (30) days after the date of this Agreement.
12. WARRANTY DISCLAIMER
Company makes no warranty or representation concerning the quality of the Property or that production of the Property will be completed. COMPANY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
(a) Company warrants, represents and agrees that:
(i) It has full authority to enter into this Agreement and to carry out the obligations under this Agreement. The execution, delivery and performance of this Agreement by the Company will not result in any material liability to the Company nor shall it constitute a violation of or a default under, any existing term or provision of any other agreement.
(ii) It has ownership rights in the Property and has the right to grant licenses and rights to the Property to the Merchandiser under this agreement.
(iii) To the best of Company’s knowledge, there is no litigation, proceeding either pending or threatened against the Company affecting the sale of the Products at law or in equity, before any court, arbitration tribunal, licensing authority or governmental agency. There are no outstanding or threatened orders, writs, injunctions or deliverers of any court, governmental agency or arbitration tribunal against or affecting the Products.
(b) Merchandiser warrants, represents and agrees that:
(i) It has full authority to enter into this Agreement and to carry out the obligations under this Agreement. The execution, delivery and performance of this Agreement by the Merchandiser will not result in any material liability to the Merchandiser nor shall it constitute a violation of or a default under, any existing term or provision of any other agreement.
(ii) To the best of Merchandiser’s knowledge, there is no litigation, proceeding either pending or threatened against the Merchandiser affecting the sale of the Products at law or in equity, before any court, arbitration tribunal, licensing authority or governmental agency. There are no outstanding or threatened orders, writs, injunctions or deliverers of any court, governmental agency or arbitration tribunal against or affecting the Products.
(iii) It will not dispute the title of Company in and to the Property or any copyright or trademark pertaining thereto, nor will it harm, misuse or bring into dispute the Property or any part thereof.
(iv) It will manufacture, sell and distribute Products which are of a high standard, quality, style and appearance. It shall promptly and diligently solicit sales of the Products at a competitive price.
(a) The Company and the Merchandiser may terminate this Agreement without cause at any time by giving notice of thirty (30) business days to the other.
(b) This Agreement may be terminated for cause if:
(i) The Merchandiser or the Company files a bankruptcy petition or is adjudicated as bankrupt or if a petition in bankruptcy is filed against Company or if Merchandiser becomes insolvent or makes an assignment for the benefit of its creditors or an arrangement pursuant to any bankruptcy law or if Merchandiser discontinues its business or if a receiver is appointed for it or its business, this Agreement shall automatically terminate without notice.
(ii) If Merchandiser violates or defaults any of its obligations or conditions under this Agreement, Company shall terminate this Agreement upon fourteen days’ notice in writing, and such notice of termination shall become effective, unless Merchandiser shall completely remedy the violation and satisfy Company that such violation has been remedied within the fourteen day period.
(iii) Upon termination of this Agreement, all payments due and accrued shall become due and immediately payable to the Company and all rights granted to Merchandiser hereunder shall forthwith revert to Company, and Merchandiser thereafter, directly or indirectly, shall not use the Property in connection with the manufacture, sale or distribution of products of the Merchandiser. Merchandiser shall upon the expiration or termination turn over to Company all materials which reproduce the Products, or give Company satisfactory evidence of their destruction.
All notices, demands, and requests which may be given or which are required to be given by either party to the other, hereunder shall be in writing. Such notices shall be deemed delivered when personally delivered to the address of the party to receive such notice set forth below or, whether actually received or not, five (5) days after having been deposited in any post office or registered mail, return receipt requested, postage prepaid, properly addressed as follows:
If to Merchandiser:
If to Company:
16. WAIVER, MODIFICATION
No waiver, modification or cancellation of any term or condition of this Agreement shall be effective unless executed in writing by the party charged therewith. No written waiver shall excuse the performance of any act other than those specifically referred to therein. Company makes no warranties to Merchandiser except those specifically expressed herein.
17. NO PARTNERSHIP
This Agreement does not constitute and shall not be construed as constituting an agency, a partnership or joint venture between Company and Merchandiser. Neither Company nor Merchandiser shall become liable for any representation, act or omission of the other contrary to the provisions hereof. This contract shall not be deemed to give any right or remedy to any third party whatsoever unless said right or remedy is specifically granted by Company in writing to such third party.
The license granted under this Agreement is and shall be personal to Merchandiser, and shall not be assignable by any act of Merchandiser or by operation of law. Any attempt by Merchandiser to grant sub-licenses or to assign or part with possession or control of the License granted hereunder or any of Merchandiser’s rights hereunder shall constitute a material breach of this Agreement. Company shall have the right to assign this Agreement, in which event Company shall be relieved of any and all obligations hereunder, provided such assignee shall assume this Agreement and all rights and obligations hereunder in writing.
19. GOVERNING LAW
This Agreement shall be deemed to have been made in, and shall be construed in accordance with the laws of India, and its validity, construction, interpretation and legal effect shall be governed by the laws of India applicable to contracts entered into and performed entirely therein.
20. ENTIRE AGREEMENT
This Agreement sets forth the entire understanding of the parties hereto relating to the subject matter hereof. No modification, amendment, waiver, termination or discharge of this Agreement or of any of the terns or provisions hereof shall be binding upon either party hereto unless confirmed by a written instrument signed by Merchandiser and Company. No waiver by Company or Merchandiser of any term or provision of this contract or of any default here under shall affect the other’s respective rights thereafter to enforce such term or provision or to exercise any right or remedy in the event of any other default whether or not similar.
If any provision of this Agreement shall be held void, voidable, invalid, or inoperative, no other provision of this Agreement shall be affected as a result thereof, and, accordingly, the remaining provisions of this Agreement shall remain in full force and effect as though such void, voidable, invalid, or inoperative provision had not been contained herein.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the day and year first above written.
AGREED TO AND ACCEPTED:
PRODUCTS & SERVICES
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Very detailed and thorough.