ADVERTISING AGREEMENT

THIS AGREEMENT is made as of this [Date] by and between [PCT Co.] a [PCT Co.’s State of Incorporation] corporation with offices at [PCT Co.’s Address] (“PCT Co.”) and [International Patent Co.’s Name], a [International Patent Co.’s State of Incorporation] corporation with offices at [International Patent Co.’s Address] (“International Patent Co.”) (collectively the “Parties”).

W I T N E S S E T H:

WHEREAS, PCT Co. has developed and intends to market and sell a new and unique product identified more fully in the attached Schedule A (the “Product”) over its Internet world wide web site (the “PCT Co. Site”); and

WHEREAS, PCT Co. seeks to retain the services of an experienced International Patent Co. who will provide advertisements and promotions for said Product.

NOW, THEREFORE, in consideration of the premises and the mutual covenants of this Agreement, the parties hereto agree as follows:

1. GRANT OF PROMOTIONAL RIGHTS
International Patent Co. agrees to provide to PCT Co. the links, advertisements and promotions specified in the attached Exhibit B.

2. TERM
A. This Agreement and the provisions hereof, except as otherwise provided, shall be in full force and effect commencing on the date International Patent Co. first provides PCT Co. with all links, advertisements and other promotions set forth in “Phase 1,” as more particularly described in the attached Exhibit B (the “Commencement Date”).

B. PCT Co. shall have the option to renew the term of this Agreement for an additional term of [number] ([#]) years (the “Renewal Term”) by giving International Patent Co. written notice, at least [number] ([#]) days prior to the expiration of the current term, indicating PCT Co.’s exercise of its option to renew. During any such renewal term, all terms and conditions of this Agreement will remain in full force and effect, except that the fixed development and placement fees will be increased. The Parties will equitably adjust the fixed fees payable during the renewal period to reflect any reduction in traffic.

3. COMPENSATION
A. In consideration for International Patent Co.’s performance under this Agreement, PCT Co. agrees to pay International Patent Co. the Fixed Development Fee and Fixed Placement Fees set forth in the attached Schedule A during the Initial Term.

B. In addition to the fees set forth above, PCT Co. agrees to pay International Patent Co. [number] percent (# %) of the aggregate gross revenues derived by PCT Co. from sales of Product that occur during each instance in which a user accesses the PCT Co. Site via a hypertext link embedded in any link, advertisement or other promotion provided by International Patent Co. under this Agreement, and then views one or more consecutive PCT Co. Site pages, less any taxes, shipping and handling charges and, further, less any bona fide returns “Advertising Revenues”)

C. The payment of the Fixed Development Fee shall occur within [number] ([#]) days following the execution of this Agreement.

D. The Advertising Revenues and Fixed Development Fee shall be calculated on a quarterly calendar basis and shall be payable no later than [number] ([#]) days after the termination of the preceding full semiannual period, i.e., commencing on the first (1st) day of January, April, July and October except that the first and last calendar periods may be “short,” depending on the Commencement Date of this Agreement

E. PCT Co. shall provide International Patent Co. with a written statement in a form acceptable to International Patent Co. with each payment. Such statement shall be certified as accurate by a duly authorized officer of PCT Co. reciting the actual number of sales of the Product attributable to the links, advertisement or other promotion provided by International Patent Co. under this Agreement. Such statements shall be furnished to International Patent Co. regardless of whether any sales were made during the applicable Period.

F. All payments due International Patent Co. shall be made in U.S. currency by check drawn on a U.S. bank, unless otherwise specified by International Patent Co..

G. Late payments shall incur interest at the rate of [number] Percent ([#]%) per month from the date such payments were originally due.

4. IMPLEMENTATION
A. International Patent Co. and PCT Co. acknowledge that “time is of the essence” in the design, development and commencement of the links, advertisements and promotions specified in this Agreement. Accordingly, the Parties will devote all commercially reasonable efforts to launch each link, advertisement and promotion as soon as reasonably possible, in accordance with a written development plan to be negotiated by the Parties in good faith.

B. International Patent Co. agrees to test the links, advertisements and promotions required under this Agreement prior to time that they are implemented and enabled by International Patent Co. on its World Wide Web site located at the URL [specify web site address] and any and all other web sites maintained by or on behalf of International Patent Co. or its affiliates either on the Internet or on any other data network (collectively, the “International Patent Co. Sites”).

C. International Patent Co. will not cause any link, advertisement or promotion under the Agreement to be implemented an enabled on the International Patent Co. Site prior to [date].

5. USAGE INFORMATION
International Patent Co. will provide to PCT Co. usage information for the International Patent Co. Site, to the extent such information reasonably could relate to the online promotion or sale of Product, on a monthly basis. PCT Co. will hold such information in confidence, and will use it only in accordance with reasonable guidelines to be agreed upon by the Parties. It is understood and agreed that International Patent Co. will not be required to deliver to PCT Co. any user data in violation of its then-existing policies regarding the protection of user information.

6. EXCLUSIVITY AND OTHER RIGHTS
Nothing in this Agreement shall be construed to prevent International Patent Co. from directly selling other products or services on the International Patent Co. Site, including products related to PCT Co.’s Product (“Related Product”), provided that International Patent Co. does not offer to sell more than an agreed upon number of Related Products on a quarterly basis. At PCT Co.’s request, International Patent Co. will provide PCT Co. with reasonable documentation demonstrating its continuing compliance.

7. WARRANTIES AND INDEMNIFICATIONS
A. PCT Co. agrees to defend, indemnify, and hold the other party, and its officers, directors, agents, and employees, harmless against all costs, expenses, and losses (including reasonable attorney fees and costs) incurred through claims of third Parties against such party based on the operation of the PCT Co. Site or the violation of any third-party intellectual property rights by an editorial content or other materials provided by PCT Co. for display on the International Patent Co. Site, or of any breach of any representation and warranty made in this Agreement

B. International Patent Co. agrees to defend, indemnify, and hold the other party, and its officers, directors, agents, and employees, harmless against all costs, expenses, and losses (including reasonable attorney fees and costs) incurred through claims of third Parties against such party based on the operation of the International Patent Co. or the violation of third-party intellectual property rights by any materials provided by International Patent Co. for display on the PCT Co. Site, or of any breach of any representation and warranty made in this Agreement.

8. INTELLECTUAL PROPERTY RIGHTS
A. The Parties acknowledge and agree that (i) each party’s Marks are and shall remain the sole property of that party; (ii) nothing in the Agreement shall convey to either party any right of ownership in the other party’s Marks; (iii) neither party shall now or in the future contest the validity of the other party’s Marks; and (iv) neither party shall in any manner take any action that would impair the value of, or goodwill associated with, such Marks. The Parties acknowledge and agree that all use of the other party’s Marks by a party shall inure to the benefit of the party whose Marks are being used.

B. Each Party hereby grants to the other Party, during the term of this Agreement, a non-exclusive, non-transferable license to use that Party’s trade names, trademarks, service names and similar proprietary marks as is reasonably necessary to perform its obligations under this Agreement; provided, however, that any promotional materials containing a Party’s proprietary marks will be subject to that Party’s prior written approval.

C. Each Party agrees not to use the other Party’s proprietary marks in a manner that disparages the other Party or its products or services, or portrays the other Party or its products or services in a false, competitively adverse or poor light. Each Party will comply with the other Party’s requests as to the use of the other Party’s proprietary marks and will avoid any action that diminishes the value of such marks. Either Party’s unauthorized use of the other’s proprietary marks is strictly prohibited.

9. TERMINATION
The following termination rights are in addition to the termination rights that may be provided elsewhere in this Agreement:

A. Right to Termination Upon Notice. Either International Patent Co. or PCT Co. may terminate this Agreement on [number] ([#]) days written notice to the other party in the event of a breach of any provision of this Agreement by the other party, provided that, during the [number]-day period, the breaching party fails to cure such breach.

B. PCT Co. Right to Terminate. PCT Co. shall have the right to terminate this Agreement at any time on [number] ([#]) months’ written notice to International Patent Co. for any reason.

10. DISCLAIMERS, LIMITATIONS AND RESERVATIONS
A. EXCEPT AS SET FORTH IN THIS AGREEMENT, BOTH PARTIES SPECIFICALLY DISCLAIM ALL WARRANTIES PROVIDED THEREUNDER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN PARTICULAR, AND NOT BY WAY OF LIMITATION, THE PARTIES SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY REGARDING (A) THE AMOUNT OF SALES REVENUE THAT MAY GENERATED DURING THE TERM, AND (B) ANY ECONOMIC OR OTHER BENEFIT THAT THE PARTIES MIGHT OBTAIN THROUGH THEIR PARTICIPATION IN THIS AGREEMENT.

B. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA, LOSS OF BUSINESS OR OTHER LOSS ARISING OUT OR RESULTING FROM THE AGREEMENT, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY REGARDLESS OF THE NEGLIGENCE OR OTHER FAULT OF EITHER PARTY AND REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT OR ANY OTHER THEORY OF LIABILITY. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR THE GREATER OF (i) THE CUMULATIVE AMOUNT ACTUALLY PAID BY EACH PARTY TO THE OTHER PARTY, OR (ii) $[number].

C. PCT Co. shall remain solely responsible for the operation of the PCT Co. Site, and International Patent Co. will remain solely responsible for the operation of the International Patent Co. Site. Each Party acknowledges that the other’s Site may be subject to temporary shutdowns due to causes beyond the operating Party’s reasonable control. Furthermore, subject to the specific terms of this Agreement, each Party retains sole right and control over the programming, content and conduct of transactions over its respective site.

11. RELATIONSHIP OF PARTIES
The relationship between PCT Co. and International Patent Co. under this Agreement is that of independent contractors and neither shall be, nor represent itself to be, the joint venture, franchiser, franchisee, partner, broker, employee, servant, agent, or representative of the other for any purpose whatsoever. No party is granted any right or authority to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, another party or to bind another in any matter or thing whatsoever.

12. CONFIDENTIALITY
A. “Confidential Information” shall mean any confidential technical data, trade secret, know-how or other confidential information disclosed by any party hereunder in writing, orally, or by drawing or other form and which shall be marked by the disclosing party as “Confidential” or ”Proprietary”. If such information is disclosed orally, or through demonstration, in order to be deemed Confidential Information, it must be specifically designated as being of a confidential nature at the time of disclosure and reduced in writing and delivered to the receiving party within [number] ([#]) days of such disclosure.

B. Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is known to the receiving party at the time of disclosure or becomes known to the receiving party without breach of this Agreement; (ii) is or become publicly known through no wrongful act of the receiving party or any subsidiary of the receiving party; (iii) is rightfully received from a third party without restriction on disclosure; (iv) is independently developed by the receiving party or any of its subsidiary; (v) is furnished to any third party by the disclosing party without restriction on its disclosure; (vi) is approved for release upon a prior written consent of the disclosing party; (vii) is disclosed pursuant to judicial order, requirement of a governmental agency or by operation of law.

C. The receiving party agrees that it will not disclose any Confidential Information to any third party and will not use Confidential Information of the disclosing party for any purpose other than for the performance of the rights and obligations hereunder during the term of this Agreement and for a period of [number] ([#]) years thereafter, without the prior written consent of the disclosing party. The receiving party further agrees that Confidential Information shall remain the sole property of the disclosing party and that it will take all reasonable precautions to prevent any unauthorized disclosure of Confidential Information by its employees. No license shall be granted by the disclosing party to the receiving party with respect to Confidential Information disclosed hereunder unless otherwise expressly provided herein.

D. Upon the request of the disclosing party, the receiving party will promptly return all Confidential information furnished hereunder and all copies thereof.

E. The Parties agree that all publicity and public announcements concerning the formation and existence of this Agreement shall be jointly planned and coordinated by and among the Parties. Neither party shall disclose any of the specific terms of this Agreement to any third party without the prior written consent of the other party, which consent shall not be withheld unreasonably. Notwithstanding the foregoing, any party may disclose information concerning this Agreement as required by the rules, orders, regulations, subpoenas or directives of a court, government or governmental agency, after giving prior notice to the other party.

F. If a party breaches any of its obligations with respect to confidentiality and unauthorized use of Confidential information hereunder, the non- breaching party shall be entitled to equitable relief to protect its interest therein, including but not limited to injunctive relief, as well as money damages notwithstanding anything to the contrary contained herein.

13. AUDIT
A. Each party shall have the right, upon reasonable notice, to inspect the books and records and all other documents and material in their possession or control with respect to the subject matter of this Agreement. The inspecting party shall have free and full access thereto for such purposes and may make copies thereof.

B. In the event that such inspection reveals an underpayment of the actual monies or fee owed the other party, that party shall pay the difference, plus interest calculated at the rate of [number] percent ([#] %) per month. If such underpayment be in excess of [number] UNITED STATES DOLLARS ($[#]) for any period, the party shall also reimburse the inspecting party for the cost of such inspection.

C. All books and records relative to a party’s obligations hereunder shall be maintained and made accessible to the other party for inspection at a location in the United States for at least [number] ([#]) years after termination of this Agreement.

D. Each party shall provide the other party with monthly site usage reports within [number] ([#]) days of the end of each month.

14. FORCE MAJEURE
Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.

15. DUTIES AND OBLIGATIONS
A. Subject to the conditions herein specified, PCT Co. shall use its best efforts during the Term of this Agreement to find and conclude business arrangements with International Patent Co. for the Properties.

B. PCT Co. agrees to consult with and keep International Patent Co. reasonably informed as negotiations develop.

C. PCT Co. shall, from time to time when requested by International Patent Co., discuss with International Patent Co. potential licenses, product categories, possible markets and the like for planning purposes.

D. International Patent Co. shall have the full and total control over its Properties including its trademarks and the use thereof and will bear all costs associated with the protection and the enforcement of its rights in the Properties. PCT Co. shall use its best efforts to insure that provisions shall be contained in all agreements with third party Manufacturers affording International Patent Co. the right to make quality inspections at any place and at any reasonable time to insure that the quality is being maintained and that the Manufacturers agree to utilize proper trademark and copyright notices on all such Properties.

E. It is understood that the International Patent Co. may have concepts and properties other than the aforementioned Properties and such concepts and properties do not form part of this Agreement. International Patent Co. may not, either directly or indirectly during the Term of this Agreement or for a period of one (1) year thereafter, commercialize such concepts or properties with any Manufacturer introduced to International Patent Co. by PCT Co. during the Term of this Agreement. In the event that International Patent Co. shall enter into any such agreement with any such Manufacturer for any such concept or properties, such concept or properties shall be automatically added to this Agreement.

F. It is understood that PCT Co. may render similar services for other PCT Co.s and/or continue to develop properties of its own and license or sell such properties to manufacturers. Nothing contained in this Agreement shall preclude PCT Co. from rendering such services or continuing to develop and sell or license such properties.

G. In addition to the foregoing, PCT Co. agrees to provide the Additional Services identified in Schedule A in performance of its obligations hereunder.

H. In its performance of this Agreement, each Party will comply with all applicable laws, regulations, orders and other requirements, now or hereafter in effect, of governmental authorities having jurisdiction. Without limiting the generality of the foregoing, each Party will pay, collect and remit such taxes as may be imposed upon it with respect to any compensation, royalties or transactions under this Agreement. Except as expressly provided herein, each Party will be responsible for all costs and expenses incurred by it in connection with the negotiation, execution and performance of this Agreement.

16. NOTICE AND PAYMENT
A. Any notice required to be given under this Agreement shall be in writing and delivered personally to the other designated party at the above stated address or mailed by certified, registered or Express mail, return receipt requested or by Federal Express.

B. Either party may change the address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.

17. JURISDICTION/DISPUTES
This Agreement shall be governed in accordance with the laws of the State of [State]. All disputes under this Agreement shall be resolved by litigation in the courts of the State of [State] including the federal courts therein and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.

18. AGREEMENT BINDING ON SUCCESSORS
The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns.

19. ASSIGNABILITY
Neither party may assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of the other party which shall not be unreasonably withheld.

20. WAIVER
No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.

21. SEVERABILITY
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.

22. INTEGRATION
This Agreement constitutes the entire understanding of the Parties, and revokes and supersedes all prior agreements between the Parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the Parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents which may conflict with this Agreement.

IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound hereby, have each caused to be affixed hereto its or his/her hand and seal the day indicated.

[Licensor]     [Licensee]
By:      By:
Title:     Title:
Date:     Date:
EXHIBIT A
TO ADVERTISING AGREEMENT BETWEEN
[PCT Co.]
AND
[International Patent Co.]
DATED [Date]
1. Properties
[identify properties]

2. Territory
[identify territory]

3. Term
[identify term]

4. Retainer Fee
[identify retainer fee]

5. Commission
[identify commission]

6. Additional Services
[identify additional services]

7. Competitors
[identify competitors]

 

EXHIBIT B
TO ADVERTISING AGREEMENT BETWEEN
[PCT Co.]
AND
[International Patent Co.]
DATED [Date]
PLACEMENTS AND PROMOTIONS

1. GENERAL
A. International Patent Co. and PCT Co. will use commercially reasonable efforts to implement the placements and promotions provided in this Exhibit in a manner that maximizes click through to, and product sales on, the PCT Co. Site. On approximately a quarterly basis, the Parties will conduct program reviews to assess the performance of the placements and promotions. If any placement or promotion proves ineffective, the Parties will conduct good-faith negotiations to modify such placement or promotion to improve its performance.

2. PHASE 1 (TARGET START DATE [Date])
A. International Patent Co. will provide PCT Co. with advertising buttons and banners that yield a minimum number of hits. On a monthly basis, the Parties will develop a media plan designating such placements from among International Patent Co.’ available inventory of premium placements. PCT Co. will reasonably determine the content and appearance of such buttons and banners in accordance with International Patent Co.’ generally applicable technical specifications.

B. International Patent Co. will include PCT Co. in its trials of pop-up and interstitial advertisements. If following such trials, International Patent Co. elects to implement pop-ups and/or interstitial on a commercial basis, International Patent Co. will provide PCT Co. with a quantity of such advertisements to be negotiated in good faith (provided that such quantity will be no less than the quantity provided to any other strategic sponsor).

C. International Patent Co. continuously will provide PCT Co. with a prominent promotional button on the International Patent Co. Homepage. PCT Co. will reasonably determine the content and appearance of its button in accordance with International Patent Co.’ generally applicable technical specifications.

D. International Patent Co. continuously will provide PCT Co. with a prominent promotional button or other placement on each International Patent Co. homepage. The button or placement (a) will be presented with the buttons or placements, and (b) will be no smaller than the button or placement. In addition, International Patent Co. continuously will provide a “commerce special” area for the use, who will be entitled to post advertisements in such area on a rotating basis. PCT Co. will reasonably determine the content and appearance of its buttons, placements and advertisements in accordance with International Patent Co.’ generally applicable technical specifications.

E. International Patent Co. continuously will provide PCT Co. with a prominent promotional button on each International Patent Co. page. The button or placement (a) will be presented with the buttons or placements, and (b) will be no smaller than the button or placement. In addition, International Patent Co. will permit PCT Co. to place targeted advertisements on each International Patent Co. page (or on a Product Page linked to the Topic Page). Such advertising placements will be no less favorable than those provided. PCT Co. will reasonably determine the content and appearance of its buttons, placements and advertisements in accordance with International Patent Co.’ generally applicable technical specifications.

3. PHASE 2 (TARGET START DATE [Date])
A. International Patent Co. continuously will provide PCT Co. with a prominent advertising placement on the International Patent Co. Marketplace Page. The placement (a) will be above-the-fold, situated within the portion of a page that is designed to be visible on a standard computer screen with a resolution of [specify resolution, e.g., in inches, pixels, etc.] without requiring the user to scroll horizontally or vertically through the page. (b) will be no smaller than the placement, and (c) will be larger than the placements. PCT Co. will reasonably determine the content and appearance of its placement in accordance with International Patent Co.’ generally applicable technical specifications.

B. At PCT Co.’s option, International Patent Co. will develop and implement an incentive program for International Patent Co. to host product-related chat and discussion board sessions on their pages.

C. At PCT Co.’s option, International Patent Co. will list product-related chat sessions in a directory of active chat sessions and will experiment with placing direct buy buttons on product-related, member-hosted chat pages. Further, International Patent Co. will include targeted product offers in chat areas.

D. If International Patent Co. implements a key-word based navigation system, International Patent Co. will provide PCT Co. with banners or other placements on all pages that result when a user enters any key-word that reasonably relates to PCT Co. products.

4. PHASE 3 (TARGET START DATE [date])
International Patent Co. and PCT Co. will experiment with new promotional concepts and will implement those that appear to provide successful results (subject in each case to the agreement of both Parties). Areas that may be investigated include product offers on search result pages, product offers on interest pages, product offers on neighborhood script pages, product offers within instant messaging, buyers’ clubs, first-time buyers’ specials, limited-time discounts, greeting card/gift certificates and special offers for International Patent Co. Site visitors.
EXHIBIT C
TO ADVERTISING AGREEMENT BETWEEN
[PCT Co.]
AND
[International Patent Co.]
DATED [Date]
EXCLUSIVITY

1. Exclusive Areas
[identify any exclusive areas]

2. Additional Provisions
[identify additional provisions (if any)]