Washington, D.C. Location
AFFINITY MARKETING AGREEMENT
THIS AGREEMENT is made as of this [Date] by and between [PCT Patent Co.’s Name] a [PCT Patent Co.’s State of Incorporation] corporation with offices at [PCT Patent Co.’s Address] (“PCT Patent Co.”) and [WIPO International Co.], a [WIPO International Co.’s State of Incorporation] corporation with offices at [WIPO International Co.’s Address] (“WIPO International Co.”) (collectively the “Parties”).
W I T N E S S E T H:
WHEREAS, WIPO International Co. desires to obtain the services of PCT Patent Co. as more fully described below;
WHEREAS, PCT Patent Co. agrees to provide services to WIPO International Co. on the terms set forth in this Agreement; and
WHEREAS, WIPO International Co. and PCT Patent Co. mutually desire to set forth the terms applicable to such services;
NOW, THEREFORE in consideration of the mutual covenants contained herein, the adequacy of which is hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows:
1. SCOPE OF WORK
WIPO International Co. agrees to engage PCT Patent Co. to develop, customize, maintain, and manage an Internet-based affinity marketing and member-benefits program known as the [Program Name] (the “Program”) and other services, as set forth in Exhibits A and B, to enable the membership of the WIPO International Co. (“Members”) to register Online or otherwise, review product information, and purchase product(s) and/or service(s) from various merchants over the Internet. PCT Patent Co. represents that the performance of the services shall be of a professional quality and shall be accomplished in compliance with all applicable laws and regulations and in accordance with any terms and conditions set forth in this Agreement.
A. This Agreement shall remain in effect for the period commencing with the effective date and terminating [number] ([#]) years after the Effective Date (the “Initial Term“).
B. This Agreement shall be automatically renewed for an additional [number] ([#])-month period (“Extension Term”) on the same terms and conditions as provided for herein without the requirement of further notice.
3. PCT PATENT CO.’S RIGHTS
A. PCT Patent Co. shall have the exclusive right during the Term of this Agreement to develop, customize, maintain, and manage an Internet-based affinity marketing and member-benefit program, and/or an Online commerce site consisting of product(s) and/or service(s) offered by merchants that are linked to WIPO International Co.’s Web-site.
B. WIPO International Co. shall not endorse, solicit, or market to its membership, any other online marketplace, mall, department store or similar commercial online sites offering product(s) and/or service(s) for sale or review, other than the Program provided by PCT Patent Co..
C. During the Initial Term, any Extension Term, and for [number] ([#]) years following the expiration of this Agreement, WIPO International Co. shall notify PCT Patent Co. of any offer, proposal or solicitation to WIPO International Co. by any entity wishing to provide services to WIPO International Co. similar to that provided by PCT Patent Co. under this Agreement. PCT Patent Co. shall have an absolute right to match any such offer, proposal or solicitation and WIPO International Co. shall execute an agreement with PCT Patent Co. to provide services pursuant to such matched contract terms.
4. RELATIONSHIP AND DUTIES
PCT Patent Co. is retained by WIPO International Co. solely for the purposes set forth herein. PCT Patent Co., in rendering performance under this Agreement, shall be deemed an independent contractor, and nothing contained therein shall constitute this arrangement to be employment, a joint venture, or a partnership. PCT Patent Co. shall not have the power to bind WIPO International Co. nor shall PCT Patent Co. make any such representation. PCT Patent Co. shall be solely responsible for and shall hold WIPO International Co. harmless for any and all claims for taxes, fees, or costs, including but not limited to withholding, income tax, FICA, and workmen’s compensation.
5. OWNERSHIP RIGHTS
A. WIPO International Co. hereby grants PCT Patent Co. a royalty free, non-exclusive right to use WIPO International Co.’s name, logo, trademarks and/or service marks, and all other such images for which WIPO International Co. grants PCT Patent Co. express permission, for the purpose of creating and developing WIPO International Co.’s Program under the terms of this Agreement. PCT Patent Co.’s use of WIPO International Co.’s name, logo, or trademarks owned by WIPO International Co. shall be limited to the purposes described in this Agreement. PCT Patent Co. agrees that ownership of such name, logo, and trademarks shall remain with WIPO International Co.. Any copyrightable material shall be exclusively owned by WIPO International Co. and shall be considered a “Works Made for Hire.” In the event that it should be determined that any of such copyrightable material does not qualify as a “Work Made for Hire,” PCT Patent Co. will and hereby does assign to WIPO International Co. for no additional consideration, all right, title and interest that it may possess in such copyrightable material including, but not limited to, all PCT Patent Co. and proprietary rights relating thereto.
B. All right, title and interest in and to any computer code (both source and object) including, but not limited to, all interfaces, navigational devices, menus, menu structures or arrangements, help and other operational instructions and the literal and non-literal expressions of ideas that operate, cause, create, direct, manipulate, access or otherwise affect the content and appearance provided hereunder (the “Software”) including without limitation, any copyrights, patents, trade secrets and other intellectual or industrial property rights therein is and shall be held by PCT Patent Co., except for the rights reserved to WIPO International Co. as more fully described in herein.
6. CONFIDENTIAL INFORMATION
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.
G. PCT Patent Co. understands the sensitive nature of Confidential Information and the underlying project. Accordingly, it hereby agrees that no employee of PCT Patent Co. shall work on WIPO International Co.’s software development project until WIPO International Co. has approved such employee.
7. PROTECTION OF PROPRIETARY RIGHTS
A. WIPO International Co. shall not assist or permit others to, de-compile, decrypt, disassemble, or otherwise reverse engineer the Software to create or derive the source code thereof from the object code thereof or from any other information.
B. Each party shall use its best efforts to ensure that its employees, independent contractor agents, sales and distribution agents and other acting in concert with it or on its behalf are prohibited from taking any action otherwise prohibited to each party hereunder and to promptly notify the other party of the circumstances surrounding any such use or possession of the Software or any part thereof.
8. INTELLECTUAL PROPERTY RIGHTS
A. PCT Patent Co. shall comply with the marking provisions of the trademark, patent and copyright laws of the United States, including placing on all services and associated documentation (and any parts thereof) the copyright notices, confidentiality legends, and other labels (singularly or collective “Proprietary Rights Notice”) in the exact form(s) reasonably specified in written notice(s) and as requested by WIPO International Co.. PCT Patent Co. shall not remove or alter any copyright or other Proprietary Rights Notice required by WIPO International Co..
B. WIPO International Co. agrees that PCT Patent Co. shall be credited as the developer of the services hereunder.
A. WIPO International Co. shall have the right to terminate this Agreement immediately in the event that PCT Patent Co. fails to perform any of the duties or obligations set forth in Schedule A.
B. Either party may terminate this Agreement on [number] ([#]) days’ written notice to the other party in the event of a breach of any material provision of this Agreement by the other party, provided that, during the [number] ([#])-day period, the breaching party fails to cure such breach or, should the breach not be curable within said [number] ([#])-day period, the breaching party has not initiated steps to cure such breach.
C. Either party may terminate this Agreement upon expiration of the Initial Term or any Extension Term by delivering written notice of such termination at least [number] ([#]) days prior to the expiration of the Initial Term or the then-current Extension Term, in which event the Agreement shall automatically terminate at the end of the Initial Term or such Extension Term.
D. In the event that this Agreement is terminated as a result of a breach of this Agreement by PCT Patent Co., WIPO International Co. shall have the right, in addition to any other claims that it might otherwise have against PCT Patent Co., to complete the services either itself or through the services of a third-party developer and charge back to PCT Patent Co. any costs incurred.
E. In the event that either party terminates this Agreement, WIPO International Co. and PCT Patent Co. shall be entitled to receive any and all unpaid commissions and fees due up to the date of termination. In no event, however, will PCT Patent Co. be obligated to refund to WIPO International Co. any monies paid.
F. Upon termination of this Agreement for any reason all intellectual property licenses granted to WIPO International Co. hereunder shall continue in full force and effect so long as WIPO International Co. has provided to PCT Patent Co. any and all payments required by this Agreement and all rights and licenses granted PCT Patent Co. hereunder shall remain in full force and effect.
G. Upon termination of this Agreement for any reason, if requested by PCT Patent Co., WIPO International Co. agrees to immediately return any and all PCT Patent Co. materials (including without limitation the designs, scripts, storyboards, masters and any and all other materials relating to the Software) delivered by PCT Patent Co. hereunder and all copies of the same, and certify by sworn statement of one of its officers that all such materials and copies have been delivered to PCT Patent Co., and, if requested by WIPO International Co., PCT Patent Co. shall immediately deliver to WIPO International Co. all documents or other property of WIPO International Co..
10. REPRESENTATIONS AND WARRANTIES
A. PCT Patent Co. represents and warrants that it is the sole and exclusive owner of all rights in and to the Software, including but not limited to the intellectual property therein, and that no element of the Software or content and appearance provided by PCT Patent Co. violates or infringes any copyright, trademark, or trade secret of any third party.
B. PCT Patent Co. represents and warrants to WIPO International Co. that it is authorized to enter into this Agreement and that its performance thereof will not conflict with any other agreement.
C. PCT PATENT CO. REPRESENTS AND WARRANTS TO WIPO INTERNATIONAL CO. THAT THE SERVICES PROVIDED SHALL CONFORM TO EXHIBIT A. PCT PATENT CO. DOES NOT WARRANT AGAINST FAILURE OF PERFORMANCE DUE TO FAILURE OR DISRUPTION OF THE INTERNET AND/OR WIPO INTERNATIONAL CO.’S WEB-SITE SERVER OR CONNECTIVITY, FAILURE OF WIPO INTERNATIONAL CO.’S COMPUTER HARDWARE OR SOFTWARE, AND/OR THIRD PARTY SERVICES UNDER WIPO INTERNATIONAL CO.’S CONTROL. THE FOREGOING WARRANTY IS THE ONLY WARRANTY MADE WITH RESPECT TO SERVICES PROVIDED UNDER THIS AGREEMENT AND IS A LIMITED WARRANTY. PCT PATENT CO. EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES EXPRESS OR IMPLIED. THE LIABILITY OF PCT PATENT CO. FOR ANY REASON AND UPON CAUSE OF ACTION WHATSOEVER SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID OR PAYABLE TO PCT PATENT CO. THROUGH WIPO INTERNATIONAL CO.’S PROGRAM. IN NO EVENT SHALL PCT PATENT CO. BE LIABLE TO WIPO INTERNATIONAL CO. OR ANY THIRD PARTY FOR ANY DIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR OTHER ECONOMIC LOSS (WHETHER ARISING FROM BREACH OF CONTRACT, TORT, STRICT LIABILITY) EVEN IF PCT PATENT CO. HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
D. PCT Patent Co. represents and warrants that it has not previously assigned, pledged or otherwise encumbered any rights to the Software in a manner that conflicts with the rights granted herein, and PCT Patent Co. shall not assume any obligations or restrictions which would in any way interfere with or be inconsistent with this Agreement.
E. WIPO International Co. represents and warrants that it is the owner of all rights in and to any material provided by the WIPO International Co. to PCT Patent Co. for inclusion in the content and appearance, and that no element of the material supplied by the WIPO International Co. for the content and appearance desired by WIPO International Co. violates or infringes any copyright, trademark, or trade secret of any third party.
F. WIPO International Co. represents and warrants that it has not previously assigned, pledged or otherwise encumbered any rights to the material supplied for the content and appearance by the WIPO International Co. in a manner that conflicts with the rights granted PCT Patent Co. herein, and WIPO International Co. shall not assume any obligations or restrictions which would in any way interfere with or be inconsistent with this Agreement.
WIPO International Co. and PCT Patent Co. shall require WIPO International Co.’s Members using WIPO International Co.’s Program to agree to follow certain security procedures including the use of passwords for access to the WIPO International Co.’s Program site, which the parties agree to make available as a link from the entry page of the WIPO International Co.’s Program. To the extent that either party wishes to revise such security procedures during the term of this Agreement, such revisions shall be agreed upon in writing by the parties.
PCT Patent Co. hereby agrees to defend, indemnify, and hold WIPO International Co., 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 WIPO International Co. based on any breach by PCT Patent Co. of its representations and warranties under this Agreement, and for any claims made by any third party alleging that Software infringes its intellectual property rights.
No waiver by either party of any default shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of this Agreement.
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. 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.
16. AGREEMENT BINDING ON SUCCESSORS
This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, and their heirs, administrators, successors and assigns.
Neither party shall assign any rights nor obligations under this Agreement without the express written authorization of the other party, except that the sale of substantially all of the assets of either, including but not limited to the private or public sale of securities, or the acquisition by or merger into another WIPO International Co. of either shall not be deemed an assignment which requires the other’s consent, provided prompt notice of any such sale, acquisition or merger shall be given.
18. JURISDICTION AND 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.
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.
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 that may be in conflict therewith.
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.
[PCT Patent Co.] [WIPO International Co.]
TO AFFINITY MARKETING AGREEMENT BETWEEN
[PCT Patent Co.]
[WIPO International Co.]
PCT PATENT CO. SERVICES
PCT Patent Co. shall provide the following services in accordance with its existing policies and pursuant to the terms and conditions of this Agreement:
TO AFFINITY MARKETING AGREEMENT BETWEEN
[PCT Patent Co.]
[WIPO International Co.]
1. Payments of Commissions/Fees:
A. PCT Patent Co. will track purchases made by WIPO International Co.’s Program Members on the Merchant web sites and will collect any and all commissions due to WIPO International Co. from Merchants;
B. PCT Patent Co. will also collect any and all advertising revenue which shall include, but not be limited to, advertising fees, fees for leads generated, position payments, exclusivity payments, and other types of fees. For the calculation below all fees shall be net of commissions, if any, paid by PCT Patent Co. to outside advertising agencies or other such firms for the placement of advertising in WIPO International Co.’s Program;
C. Commission and advertising revenue (the “Revenue”) shall be split by the parties and allocated to each party as follows:
[Program Name] Revenue % Payable to % Payable to
WIPO International Co. PCT Patent Co.
$0 to [dollar amount] [percent] [percent]
[dollar amount] and above [percent] [percent]
D. In order to effectuate this agreement, WIPO International Co. agrees to pay PCT Patent Co. a fee equivalent to [number] UNITED STATES DOLLARS ($ [#]), in addition to any further fees contemplated by this agreement. Upon signing, WIPO International Co. shall pay PCT Patent Co. [number] UNITED STATES DOLLARS ($ [#]). WIPO International Co. shall pay PCT Patent Co. an additional [number] UNITED STATES DOLLARS ($ [#]) the day before WIPO International Co.’s [Program Name] is posted for live use on the Internet.
E. PCT Patent Co.’s standard rate for computer programming is [number] UNITED STATES DOLLARS ($ [#]) per hour, which may be adjusted in the second year of this Agreement to a mutually agreed upon rate.
TO AFFINITY MARKETING AGREEMENT BETWEEN
[PCT Patent Co.]
[WIPO International Co.]
1. Marketing Plan
PCT Patent Co. and WIPO International Co. agree to develop, establish and administer the marketing of the WIPO International Co. Program.
2. Marketing Materials
A. Prior to entering into a final Agreement, the parties shall agree to an initial marketing plan related to the launch of WIPO International Co.’s Program. Thereafter, and prior to each calendar year, PCT Patent Co. and WIPO International Co. shall use their best efforts to agree to an overall marketing plan for the WIPO International Co. Program for that year, which PCT Patent Co. shall and WIPO International Co. shall implement through the use of Marketing Materials. Marketing Materials shall include, but not be limited to, any brochure, pamphlet, statement stuffer, advertisement, telemarketing script or talking points, sign, in-person promotion, convention exhibit, seminar, social event, program sponsorship, or other promotions used in connection with WIPO International Co.’s Program to encourage use of the Program. Until such a new plan is agreed upon the parties may continue marketing in the manner provided by the plan then currently in effect.
B. WIPO International Co. shall have the right to review and approve in writing all Marketing Materials developed by PCT Patent Co. for WIPO International Co.’s Program prior to their use, and PCT Patent Co. shall have the right to review and approve in writing any Marketing Materials that reference PCT Patent Co. and/or WIPO International Co.’s Program by name and are developed by WIPO International Co. prior to their use.
C. Each party hereto agrees to review any Marketing Materials submitted to it within [number] ([#]) calendar days of receipt of such Marketing Materials.