Joint Marketing Agreements • 133
those additional terms, separate, more detailed agreements may be required
to fully address the parties’ respective integration and support obligations.
KEY CONSIDERATIONS AND ESSENTIAL TERMS
Since the parties to a joint marketing agreement will be working closely
together, two primary concerns arise. First, the parties will be sharing
information about their products and, therefore, each will be concerned
about protection of its intellectual property. Second, the parties will want
to avoid any inference that either is seen as the other’s partner or agent,
designations which can raise signicant legal issues.
When draing and negotiating a joint marketing agreement, consider
these terms to ensure that the draing and negotiation process is ecient
and that your company’s business and legal objectives are achieved.
Determine the Scope of the Engagement
• Because joint marketing relationships can take one of many dier-
ent forms, the rst step will always be to determine the scope of the
engagement and ensure that the agreement covers all relevant activi-
ties in which the parties will engage.
• Depending on the nature of the information to be shared between the
parties, a nondisclosure agreement should be entered into prior to com-
mencing substantive discussions. Critical condential information
may exchange hands prior to draing and negotiating an denitive
joint marketing agreement. You will want to ensure that the appropri-
ate protections are in place with respect to that information. As dis-
cussed in Chapter 3 (Nondisclosure Agreements), the condentiality
provisions of the joint marketing agreement will take precedence over
any condentiality agreement entered into during negotiations.
• A common error in these engagements is attempting to do too much
in a single agreement. Except in instances where a highly specialized
contract is used, joint marketing agreements should not be used for
joint development work, signicant engagements where the parties
will integrate their support organizations, or instances in which the
other party is in reality serving as a reseller. In those cases, a devel-
opment or reseller agreement is more appropriate.