JOINT PROMOTION AGREEMENT
This Joint Promotion Agreement (the “Agreement”) is made on July 02, 2015 by and between
TISCO BANK PUBLIC COMPANY LIMITED with registered office located at 1st Fl. TISCO Tower, 48/2 North Sathorn Road, Silom, Bangrak, Bangkok 10500 (hereinafter called the “TISCO”) of the one part; and
The party whose name and particulars are stated in Schedule 1 hereto (hereinafter called the “Partner”) of the other part.
WHEREAS, Partner desires to advertise and publicize its brand loyalty to a target group as well as to expand its customers, whilst TISCO who establishes TISCO Private Card, TISCO Platinum Card (hereinafter collectively called the “Cards”) and TISCO Voucher desires to build relationship among the top stores and outlets in order to encourage spending and to present a privilege to its customers.
NOW THEREFORE, the parties hereby agree as follows:-
1. Promotion
The Parties agree to participate in a joint promotion program (“Promotion”) as described in the Schedule 2.
2. Logo and Approvals
All advertising and promotional materials using “TISCO”, any other TISCO’s logo, logo of TISCO Financial Group PCL. (“TFG”), and/or affiliates of TFG’s logo; marks or slogans (“Logo”) shall be subject to prior written approval of TISCO.
Nothing herein shall be construed as transferring to the Partner, whether directly or by implication, any ownership or interests in the Logo. Any unauthorized use of such Logo shall constitute a material breach of this Agreement and an infringement of TISCO’s rights in and to such Logo.
TISCO is granted the right and license to use Partner’s name, trademark, description promotion or advertising to promote the Partner’s participation in any materials TISCO see as appropriate to the cardholders and public. The Partner represents that it has the authority to grant TISCO such right and license.
The Partner understands and agrees that TISCO reserve the right for the final approval of all copy, layout, artwork and production.
3. Relationship of the Parties
This Agreement is not intended to constitute, create, give effect to or otherwise recognise a joint venture, partnership or formal business entity of any kind. Any exchange of confidential information hereunder shall not be deemed as constituting any offer, acceptance, or promise of any further contract or amendment to any contract which may exist between the parties. Each party shall act as an independent contractor and not as an agent of the other for any purpose whatsoever and neither shall have the authority to bind the other party.
4. Responsibility of the Partner
The Partner shall be responsible for marketing and promoting the Promotion to its customers. The Partner agrees to provide the best services in a proper and efficient manner and not do anything likely to impair or damage the reputation or business of TISCO, TFG and/or affiliates of TFG.
In case that the Partner undertakes a reorganization, share sale, asset sale amalgamation, restructuring, reconstruction, take-over or any other scheme or arrangement including a transfer of the ownership of the business to a new entity, the Partner agrees that all terms under this Agreement including terms in relation to benefits given to TISCO will be extended by the new or resulting entity to execute a new agreement with TISCO on exactly the same terms as set out in this Agreement.
5. Representations
The Partner represents to TISCO that:
(a) it has the power to enter into, exercise its right, perform and comply with its obligations hereunder;
(b) all actions, conditions and things required to be taken, fulfilled and done (including the obtaining of any necessary consents) in order to (i) enable it lawfully to enter into, exercise its rights, perform and comply with its obligations hereunder and (ii) ensure that those obligations are legally binding, valid and enforceable;
(c) its entry into, exercise of its rights and/or performance of or compliance with its obligations hereunder do not and will not violate (i) any provision of its constitutive documents (ii) any agreements to which it is a party or which is binding on it or its assets or (iii) any law to which it is subject; and
(d) the Partner further undertakes to inform TISCO promptly of any proposed change in the way in which the Partner conducts its business or any other matter of which the Partner becomes aware, which is likely to have a material adverse affect on the ability of TISCO or the Partner to perform its obligations hereunder.
6. Termination
6.1 This Agreement shall be automatically terminated at the end of the Promotion Period as stated in Schedule 2.
6.2 Should either party commits a breach hereof (the “Defaulting Party”) and, in the case of such a breach which is capable of remedy, fails to remedy the breach within 7 days of written notice from the other party to do so then, the other party may, without prejudice to any other rights or remedies of the other party stated herein, take one or more of the following actions:
(a) at any time terminate this Agreement; and/or
(b) claim for all losses, costs and expenses including but not limited to the cost of all marketing materials printed under this agreement.
6.3 Without prejudice to any other rights or remedies, either party shall have the right at any time to terminate this Agreement if:
(a) the other party become insolvent or cease to trade or compound with its creditors;
(b) a bankruptcy petition or order is presented or made against the other party, or if a trustee in sequestration is appointed in respect of the assets of the other party;
(c) a receivership is app ointed in respect of any of the other party’s assets;
(d) an application for the appointment of a judicial manager is presented or such an order is made in relation to the other party; or
(e) a resolution or petition or order to wind up the other party is passed or presented or made or a liquidator is appointed in respect of the other party (otherwise than for reconstruction or amalgamation).
6.4 Upon the termination of this Agreement by TISCO for any breach committed by the Partner, the Partner agrees to pay TISCO its costs incurred in informing its cardholders of the cessation of the benefits hereunder.
6.5 Notwithstanding anything herein contained to the contrary, TISCO shall be entitled to terminate, by giving a written notice, this Agreement without having to assign any reasons for the termination. Such termination shall be without prejudice to any antecedent breaches of the parties hereunder.
6.6 Upon termination or expiry of this Agreement, the Partner shall return or destroy, at the request of TISCO, all information howsoever compiled and recorded in any format, including logo or marks provided by TISCO (if any).
7. Indemnity
The Defaulting Party, agrees to indemnify and hold the other party harmless from and against any claims, losses, costs, damages and expenses, including but not limited to, legal fees which the other party may incur or suffer as a result of the negligence, omission, willful act or breach of this Agreement of the Defaulting Party or its employees, agents or representatives including but not limited to infringement of any copyright or violation of any proprietary right.
8. Confidentiality
Each party hereto shall maintain in confidence all confidential information identified as such received from the other party, whether of a commercial or technical nature. The party receiving such confidential information shall use such confidential information only as expressly contemplated by this Agreement and shall not disclose any such confidential information to a third party or make any unauthorized use thereof. Each party hereto shall treat such confidential information with the same degree of care against disclosure or unauthorized use which it affords to its own confidential information of a similar nature or a reasonable degree of care, whichever is greater. The obligation of confidential treatment shall not apply to any confidential information that (a) has become generally available in the public domain, (b) was in the receiving party’s possession prior to disclosure as evidenced by documentary records, (c) was independently developed by the receiving party, provided that the person(s) developing the same did not have prior access to the confidential information received from the other party or (d) was received from a third party who had a right to disclose such information.
9. Governing Law
This Agreement shall be governed and construed in accordance with the laws of Thailand. The parties hereby submit to the exclusive jurisdiction of the courts of Thailand for any dispute arising out of or in connection with this Agreement.
10. Assignment
This Agreement shall not be assigned or transferred, whether in whole or in part, without the TISCO’s prior written consent. Any such assignment or transfer without such consent shall be void.
11. Consent of Third Party
A person who is not a party to this Agreement shall not enforce any of its terms. The consent of any third party is not required for any variation (including any release or compromise of any liability) or termination of this Agreement.
12. Waiver
Any failure of TISCO to take action against the Partner for non-performance of any term of this Agreement shall not be construed as a general waiver or relinquishment of any such right, term of condition. Notwithstanding TISCO’s consent to Partner’s performance of omission of any acts contrary to those mentioned herein, it shall be deemed that the consent is granted for the particular case and not for all or any others incurred thereafter.
13. Entire Agreement
This Agreement shall constitute the entire agreement between both parties hereto and shall supersede any communications, understandings, negotiations, agreements or promises in respect hereto which have been made either in writing or orally prior to the date he