Washington, D.C. Location
Washington, DC 20015
Princeton, NJ Location
Princeton, NJ 08540
THIS AGREEMENT is made as of this [Date] by and between [International Patent Co.] a [International Patent Co.’s State of Incorporation] corporation with offices at [International Patent Co.’s Address] (“International Patent Co.”) and [DC Patent Lawyer Co.’s Name], a [DC Patent Lawyer Co.’s State of Incorporation] corporation with offices at [DC Patent Lawyer Co.’s Address] (“DC Patent Lawyer Co.”) (collectively the “Parties”).
W I T N E S S E T H:
WHEREAS, DC Patent Lawyer Co. develops, markets and maintains an Internet Web Site featuring consumer-oriented products, and offering such products for sale online, including [specify products] (the “Products”); and
WHEREAS, the International Patent Co. is desirous of retaining the services of an experienced online supplier and provider of such Products;
NOW, THEREFORE, in consideration of the promises and agreements set forth herein, the parties, each intending to be legally bound hereby, do promise and agree as follows:
1. FULFILLMENT SERVICES
A. During the Term of this Agreement, as provided for herein, DC Patent Lawyer Co. shall provide exclusive, worldwide fulfillment services to International Patent Co. with respect to the Products (the “Fulfillment Services”). DC Patent Lawyer Co. shall be the exclusive partner for International Patent Co.’s online sales of Products both online and otherwise.
B. In connection with the Fulfillment Services, DC Patent Lawyer Co. shall grant to International Patent Co. the right to control and operate a section of the DC Patent Lawyer Co. web site (the “International Patent Co. Section”), which shall include the following [specify goods or products]. It is understood and agreed that International Patent Co. will provide DC Patent Lawyer Co. with content for the International Patent Co. Section.
C. In exchange for DC Patent Lawyer Co.’s partnership rights hereunder, International Patent Co. shall receive from DC Patent Lawyer Co. promotion, the right to sell advertising and profit sharing relative to the sale of Products, as further set forth in the attached Schedule A.
This Agreement and the provisions hereof, except as otherwise provided, shall be in full force and effect commencing on the date on which the International Patent Co. first links to DC Patent Lawyer Co. in accordance with the terms of this agreement and shall extend for an Initial Term of [number] ([#]) year(s) (the “Term”). This Agreement shall be automatically renewed for additional “Extended Terms” of [number] ([#]) year(s) unless either party notifies the other in writing of its intention not to renew the Agreement, such notification to be provided at least [number] ([#]) days prior to the expiration of the then in-effect Term.
3. INTERNATIONAL PATENT CO.’S OBLIGATIONS
A. During the Term of this Agreement, International Patent Co. shall not partner or associate with any third party supplier offering products identical to or similar to the Products for online fulfillment services.
B. International Patent Co. shall promote its relationship with DC Patent Lawyer Co. as its partner and as the exclusive retailer of Products online in its online store as set forth more specifically in the attached Schedule A.
C. International Patent Co. agrees to provide online links to the International Patent Co. Section throughout International Patent Co.’s web site (the “International Patent Co. Web site”). Specifically, whenever a user selects a specific Product on the International Patent Co. Web site, a link to the DC Patent Lawyer Co.’s Web site will be provided to allow the user to purchase the Product. In addition, a link to the International Patent Co. Section will be included in the International Patent Co. Web site navigation bar.
D. International Patent Co. shall make available to DC Patent Lawyer Co. its informational and news headlines for storage on the DC Patent Lawyer Co. database (the “Database”) during the Term of this agreement. In connection therewith, International Patent Co. shall assist DC Patent Lawyer Co. in the technical implementation of mirroring such data from the International Patent Co. servers to DC Patent Lawyer Co. servers. These headlines shall be sent to DC Patent Lawyer Co. to be used and stored in the Database as source material during the Term of the agreement. DC Patent Lawyer Co. shall provide links from such headlines to the web pages the International Patent Co. Web sites.
E. International Patent Co. shall be responsible for the creation and maintenance of web pages including International Patent Co. branded products and special materials on the server with links to DC Patent Lawyer Co. for purchase.
4. DC PATENT LAWYER CO.’S OBLIGATIONS
A. DC Patent Lawyer Co. shall exclusively feature the products and brands of International Patent Co. in the International Patent Co. Section, and no other third party source or competitor (“Competitors”) shall provide information or brands relating to Products on those pages, or anywhere else on the DC Patent Lawyer Co. site where information relating to Products appears. “Competitors” shall include [specify specific companies] as well as any other informational web site or webzine covering or featuring information relating to the specific Products. International Patent Co. acknowledges, however, that DC Patent Lawyer Co. may have commitments to link to existing databases, and DC Patent Lawyer Co. may continue to link to such databases as long as it continues to contain no editorial content.
B. It is understood and agreed that DC Patent Lawyer Co. is in no way precluded from selling advertising to such Competitors outside of the International Patent Co. Section which link to the respective Competitor web sites.
C. The Fulfillment Services shall include providing competitive pricing on the Products, as well as special sale prices which shall be regularly made available for up to [number] ([#]) specific products in International Patent Co.’s Product inventory. Such sale prices shall be computed based upon the list price of the Products.
D. With respect to shipping and handling charges for Products purchased through DC Patent Lawyer Co. Fulfillment Services, DC Patent Lawyer Co. agrees to make no margin on such charges. If International Patent Co. can secure a better priced plan for shipping and handling and such plan is implemented by DC Patent Lawyer Co., then the shipping and handling charges shall be reduced accordingly.
A. International Patent Co. shall have the right to sell advertising and retain revenues generated therefrom in connection with the International Patent Co. Section, including all International Patent Co. sub-pages and all pages accessible through links from the International Patent Co. Section of DC Patent Lawyer Co. (“Sub-pages”). However, it is understood and agreed that for any pages utilizing materials provided by a third-party for which DC Patent Lawyer Co. is under a contractual obligation to provide advertising revenues generated relative thereto, International Patent Co. shall pay the net revenue from such pages to DC Patent Lawyer Co., for accounting directly to such third party.
B. International Patent Co. shall have the right to sell advertising on the following DC Patent Lawyer Co. home pages: [specify web pages]. In connection with any revenues generated from the sale of advertising on said home pages, International Patent Co. and DC Patent Lawyer Co. shall split the net advertising revenue evenly. In the event there is a redesign of the DC Patent Lawyer Co. site, and DC Patent Lawyer Co. desires to remove any of the above mentioned pages, DC Patent Lawyer Co. shall grant to International Patent Co. the right to sell advertising on the same basis on other DC Patent Lawyer Co. pages with similar functionality and similar levels of traffic.
C. On a quarterly basis, each party shall provide the other party with a statement of net revenues along with the payment for any amounts due within [number] ([#]) days following the close of the preceding calendar quarter. Additionally, DC Patent Lawyer Co.’s statement shall include actual sales and expenditures. International Patent Co. shall have the ability to access the advertising usage reports and traffic of the advertisements remotely.
A. All web pages featuring International Patent Co. products shall be branded with the International Patent Co. name and logo, and shall include links to specific categories of products and services.
B. In addition to providing links, International Patent Co. shall provide information, reviews, editorials, news and headlines to DC Patent Lawyer Co. for incorporation on the International Patent Co. Section on a regular basis.
C. DC Patent Lawyer Co. shall include mention of International Patent Co. and the International Patent Co. Web site in all DC Patent Lawyer Co. inserts included with Product. In addition, upon International Patent Co.’s request, DC Patent Lawyer Co. agrees to include International Patent Co. created inserts in its packaging, provided International Patent Co. pays for all associated costs including manufacturing and insertion costs. DC Patent Lawyer Co. shall have approval over the inserts and shall not make any profit on International Patent Co. created inserts.
D. DC Patent Lawyer Co. and International Patent Co. will issue a joint press release announcing the relationship.
A. DC Patent Lawyer Co. hereby commits to purchasing advertising online for the International Patent Co. Section and products in the amount of [Amount] UNITED STATES DOLLARS ($[#]) during the first year of the Term. In each successive year the Parties will negotiate in good faith for the advertising commitment for such year. The Parties agree that the majority of such advertising expenditure shall be spent on advertising on the International Patent Co. Web site in areas where there are no DC Patent Lawyer Co. links. The remaining money will be spent by advertising the International Patent Co. section of DC Patent Lawyer Co. on third party sites, with a direct link to the International Patent Co. area on DC Patent Lawyer Co..
B. With respect to any advertising on the International Patent Co. Web site, DC Patent Lawyer Co. shall be charged the lowest rate paid by any advertiser on the International Patent Co. Web site during the initial term of the agreement.
International Patent Co. has the right of prior approval over all uses by DC Patent Lawyer Co. of the International Patent Co. logos and trademarks, identified more fully in the attached Schedule A. DC Patent Lawyer Co. has the right of prior approval over all uses by International Patent Co. of DC Patent Lawyer Co. trademarks and logos including the DC Patent Lawyer Co. logo, identified more fully in the attached Schedule A. International Patent Co. has the right to approve a substantial redesign of the International Patent Co. Section, including its subpages.
Nothing in this Agreement shall be construed to prevent International Patent Co. from directly selling Products.
10. WARRANTIES AND INDEMNIFICATIONS
Each party 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. Web site or the DC Patent Lawyer Co. Web site or the violation of any third-party intellectual property rights by an editorial content or other materials provided by the party, or of any breach of any representation and warranty made in this Agreement
11. 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.
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 Party 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. Client Right to Terminate. International Patent Co. shall have the right to terminate this Agreement at any time on [number] ([#]) months’ written notice to Advertiser for any reason.
13. 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. Except as provided for herein, International Patent Co. shall remain solely responsible for the operation of the International Patent Co. Web site, and DC Patent Lawyer Co. shall remain solely responsible for the operation of the DC Patent Lawyer Co. Web 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.
14. RELATIONSHIP OF PARTIES
Neither Party 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.
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.
16. AUDIT AND RECORD INSPECTION
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.
17. 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.
18. 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.
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.
20. 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.
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.
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.
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 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.
[International Patent Co.] [DC Patent Lawyer Co.]
By: By: Title: Title:
TO FULFILLMENT AGREEMENT BETWEEN
[International Patent Co.]
[DC Patent Lawyer Co.]