Washington, D.C. Location

McNeely, Hare & War LLP
5335 Wisconsin Ave, NW, Suite 440,
Washington, DC 20015
(202) 274-0214

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Princeton, NJ Location

McNeely, Hare & War LLP
12 Roszel Road, Suite C104,
Princeton, NJ 08540
(609) 240-2533

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ONLINE COMMERCE WEB-MALL AGREEMENT

THIS AGREEMENT is made this [date] by and between [name of the dot.com], a [State of Incorporation of the dot.com] corporation with offices at [address of the dot.com] (“(COMPUTER NETWORK PATENT CO.)”), and [name of Operator(Internet Patent Co.)], a [State of Incorporation of Operator(Internet Patent Co.)] corporation with offices at [address of Operator(Internet Patent Co.)] (the “Operator(Internet Patent Co.)’).

W I T N E S S E T H:

WHEREAS, (COMPUTER NETWORK PATENT CO.) operates an Internet web site located at www.(Computer Network Patent Co.).com (the “(COMPUTER NETWORK PATENT CO.) Site”);

WHEREAS, (COMPUTER NETWORK PATENT CO.) seeks to establish an on-line commerce center (the “(COMPUTER NETWORK PATENT CO.) Mall”) on the (COMPUTER NETWORK PATENT CO.) Site that will enable various merchants (the “Merchants”) to have listings that promote or market consumer-related goods or services to the public (the “Merchant Listings”);

WHEREAS, the Operator(Internet Patent Co.) is in the business of managing on-line commerce centers such as the (COMPUTER NETWORK PATENT CO.) Mall and (COMPUTER NETWORK PATENT CO.) would like to retain the services of the Operator(Internet Patent Co.) to manage the (COMPUTER NETWORK PATENT CO.) Mall.

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. EXCLUSIVE REPRESENTATION
A. (COMPUTER NETWORK PATENT CO.) hereby grants to the Operator(Internet Patent Co.) the exclusive right during the Term of this Agreement: (a) act as (COMPUTER NETWORK PATENT CO.)’s representative for sales to Tenants of Merchant Listings on the (COMPUTER NETWORK PATENT CO.) Mall; (b) establish and administer Merchant Listings on the (COMPUTER NETWORK PATENT CO.) Mall; (c) establish links to local malls composed of Merchant Listings (“Local Malls”), as more fully described below; (d) sell and administer Tenant promotions on the (COMPUTER NETWORK PATENT CO.) Mall and Local Malls to manufacturers and suppliers of products and services offered to the public; and (e) establish and administer an official “Store” on the (COMPUTER NETWORK PATENT CO.) Site from which branded and non-branded merchandise will be sold on-line to consumers visiting the (COMPUTER NETWORK PATENT CO.) Site (the “(COMPUTER NETWORK PATENT CO.) Store”). During the Term of this Agreement, the Operator(Internet Patent Co.) will host the (COMPUTER NETWORK PATENT CO.) Mall and Local Malls on its servers and otherwise use its technical infrastructure and experience to create a shopping destination in each Merchant Listing and Local Mall, subject to guidelines established by (COMPUTER NETWORK PATENT CO.) and subject to its review and approval.

B. Operator(Internet Patent Co.) shall use commercially reasonable efforts to: (a) solicit and obtain Merchant Listings on the (COMPUTER NETWORK PATENT CO.) Mall and administer all Merchant Listings and Local Malls in accordance with the standards established by (COMPUTER NETWORK PATENT CO.) and subject to (COMPUTER NETWORK PATENT CO.)’s approval; (b) collect all accounts receivable on a timely basis; (c) require that all Tenants comply with the policies and procedures set forth for Tenants in their Merchant Listing agreements, and (d) require Tenants to adhere to the standards of operation described below. All Merchant Listings will be hosted on Operator(Internet Patent Co.)’s servers with an interface that will allow consumers to access such Merchant Listings through the (COMPUTER NETWORK PATENT CO.) Mall or Local Mall.

C. “Promotion” shall refer to copy or graphics which link to a storefront in the Mall and/or to a direct purchase opportunity within the Mall and/or (COMPUTER NETWORK PATENT CO.) Store, or which describe or promote and market a storefront or purchase opportunity within the Mall and/or (COMPUTER NETWORK PATENT CO.) Store. “Advertising and Sponsorship” shall refer to, without limitation, banner advertising, pop-up and/or interstitial advertising or framing of a site by a company with respect to its product or services and brands.

D. The (COMPUTER NETWORK PATENT CO.) Mall and (COMPUTER NETWORK PATENT CO.) Store shall have a credit in a place and size subject to (COMPUTER NETWORK PATENT CO.)’s reasonable prior approval, as follows: “Powered by Operator(Internet Patent Co.).”

2. EXCLUSIONS
Unless otherwise agreed to by the parties, the following are excluded from Operator(Internet Patent Co.)’s exclusive rights: [identify]

3. (COMPUTER NETWORK PATENT CO.).COM STORE
Operator(Internet Patent Co.) will also develop, manage and administer the (COMPUTER NETWORK PATENT CO.) Store. Operator(Internet Patent Co.) will be responsible for arranging all order processing and fulfillment for the (COMPUTER NETWORK PATENT CO.) store. The (COMPUTER NETWORK PATENT CO.) store will be used to sell consumer-type merchandise directly to the public visiting the (COMPUTER NETWORK PATENT CO.) Site and contain a variety of merchandise from (COMPUTER NETWORK PATENT CO.), and (COMPUTER NETWORK PATENT CO.) subsidiaries, and other manufacturers and suppliers selected by Operator(Internet Patent Co.) in accordance with the standards and subject to (COMPUTER NETWORK PATENT CO.)’s approval rights described below. There will be only one location on the (COMPUTER NETWORK PATENT CO.) Site like the (COMPUTER NETWORK PATENT CO.) Store. (COMPUTER NETWORK PATENT CO.) shall use its best efforts to promote the (COMPUTER NETWORK PATENT CO.) Store and (COMPUTER NETWORK PATENT CO.) Mall on the (COMPUTER NETWORK PATENT CO.) Site and shall provide icons and identification that are at least as prominent as any other service offered on the (COMPUTER NETWORK PATENT CO.) Site.

4. PROMOTIONS WITHIN THE (COMPUTER NETWORK PATENT CO.) MALL
A. Operator(Internet Patent Co.) may solicit and sell promotional opportunities, storefronts and/or direct purchase opportunities within (COMPUTER NETWORK PATENT CO.) Mall, Local Malls and (COMPUTER NETWORK PATENT CO.) store as well as e-commerce partnerships and promotions. Operator(Internet Patent Co.) shall make best efforts to solicit such promotions and e-commerce opportunities and to administer such sales in accordance with the provisions of this Agreement. Operator(Internet Patent Co.) shall manage mall promotions and e-commerce partnerships. Notwithstanding the foregoing, all advertising, such as banners, interstitial and pop-ups, will be managed by (COMPUTER NETWORK PATENT CO.)’s then current banner advertising representative.

B. Operator(Internet Patent Co.) will use commercially reasonable efforts to collect all accounts receivable in connection with advertising and sponsorships on a timely basis, and to tender (COMPUTER NETWORK PATENT CO.)’s share of Gross Receipts (as later defined).

5. TERM
The Term of this Agreement shall be effective upon the date hereof and shall continue for [number] ([#]) years thereafter (the “Initial Term”). At the expiration of the Initial Term, this Agreement shall be automatically renewed for successive periods of [number] ([#]) years each in the absence of at least [number] ([#]) days prior written notice by any party of its desire to terminate this Agreement upon the expiration of then in effect Term.

6. EXCLUSIVITY
Operator(Internet Patent Co.)’s rights hereunder shall be exclusive during the Term, provided, however, that commencing at the end of the [number] year of the Term, (COMPUTER NETWORK PATENT CO.) may at its option terminate such exclusivity by giving written notice thereof to Operator(Internet Patent Co.) within [number] days after the end of any year of the Term in which (COMPUTER NETWORK PATENT CO.) has maintained at least [number] subscribers throughout the year, and in which (COMPUTER NETWORK PATENT CO.) has not received at least $[number] in that year pursuant to this Agreement. Operator(Internet Patent Co.) shall have the right to make up any shortfall by tendering the requisite payment in order to retain its rights of exclusivity within thirty days after receiving (COMPUTER NETWORK PATENT CO.)’s notice described above.

7. COMPENSATION
A. In consideration of the services rendered hereunder, during the Term hereof, Operator(Internet Patent Co.) shall retain [number] Percent ([#]%) and (COMPUTER NETWORK PATENT CO.) shall receive the remainder:

1. of Gross Receipts from (COMPUTER NETWORK PATENT CO.) Mall and Local Mall leases and set up fees, less only actual costs of establishing Merchant Listings;

2. of Gross Receipts from basis points received from the local merchants paid to Operator(Internet Patent Co.) on account of leases from such merchants on the (COMPUTER NETWORK PATENT CO.) Mall and Local Malls;

3. of Gross Receipts from basis points received by (COMPUTER NETWORK PATENT CO.) from its credit card partners from those who sign up for such credit cards, such receipts being calculated for as long as (COMPUTER NETWORK PATENT CO.) continues to receive such payments;

4. of Gross Receipts from promotions and e-commerce partners on the (COMPUTER NETWORK PATENT CO.) Mall and Local Malls, with the exception of excluded commerce and/or promotions;

5. of (COMPUTER NETWORK PATENT CO.)’s Gross Receipts from advertising and sponsorships of the Mall and/or (COMPUTER NETWORK PATENT CO.) Store; and

6. of Gross Receipts derived from the exploitation of any other of Operator(Internet Patent Co.)’s rights under this Agreement.

C. As used in this Agreement, “Gross Receipts” means the total revenues actually received in the applicable category, less (a) actual sales, use and similar taxes collected and paid to a governmental authority, refunds, allowances, and collection costs; and (b) in the case of revenues derived from sales of products, the actual cost of goods, and bona fide returns; or (c) in the case of revenues derived from (COMPUTER NETWORK PATENT CO.) Mall leases and Local Mall leases and (COMPUTER NETWORK PATENT CO.) Mall advertising, the actual costs of producing the applicable Merchant Listing or advertising.

D. In further consideration of the rights granted Operator(Internet Patent Co.) hereunder, Operator(Internet Patent Co.) shall spend at least [$ amount] in promotions.

E. Upon execution hereof, Operator(Internet Patent Co.) shall pay (COMPUTER NETWORK PATENT CO.) a non-refundable Advance of [$ amount] against the amounts described herein; provided, however, if for any reason the (COMPUTER NETWORK PATENT CO.) Site shall permanently cease operating during the first year of the Term, (COMPUTER NETWORK PATENT CO.) shall refund such Advance to Operator(Internet Patent Co.) on a prorated basis, less any amounts actually earned from Gross Receipts hereunder.

8. RECORD INSPECTION AND AUDITS
A. Operator(Internet Patent Co.) will tender a monthly report of all Gross Receipts from the (COMPUTER NETWORK PATENT CO.) Site. Operator(Internet Patent Co.) will tender the above report, along with (COMPUTER NETWORK PATENT CO.)’s share of revenue within [number] days after the end of the month in which Gross Receipts were received.

B. (COMPUTER NETWORK PATENT CO.) will account for and pay to Operator(Internet Patent Co.) its share of any Gross Receipts collected by (COMPUTER NETWORK PATENT CO.) as to which Operator(Internet Patent Co.) is entitled to under this Agreement.

C. 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.

D. 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 ONE PERCENT (1%) per month. If such underpayment be in excess of ONE THOUSAND UNITED STATES DOLLARS ($1,000.00) for any period, the party shall also reimburse the inspecting party for the cost of such inspection.

E. 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 two (2) years after termination of this Agreement.

9. APPROVALS
The (COMPUTER NETWORK PATENT CO.) Mall and the Local Malls shall have a policy which prohibits Merchant Listings, promotions and/or e-commerce involving pornographic or sexual content or materials, firearms, get-rich-quick schemes, products or services that involve illegal or deceptive marketing practices, and gambling. (COMPUTER NETWORK PATENT CO.) shall have the right to approve the standard rates established by Operator(Internet Patent Co.) for Merchant Listings, advertising and sponsorships. If (COMPUTER NETWORK PATENT CO.) disapproves of any (COMPUTER NETWORK PATENT CO.) Mall tenants, or any advertiser, sponsor, or content on the (COMPUTER NETWORK PATENT CO.) Mall or (COMPUTER NETWORK PATENT CO.) Store, (COMPUTER NETWORK PATENT CO.) shall have the right to notify Operator(Internet Patent Co.) in writing of such disapproval, whereupon Operator(Internet Patent Co.) shall, as soon as possible terminate such Merchant Listing or discontinue such advertising or sponsorship to which (COMPUTER NETWORK PATENT CO.) objects, or cause the change of the objectionable content. (COMPUTER NETWORK PATENT CO.) shall make good faith efforts to respond to submissions within five business days and shall exercise its approval and disapproval rights reasonably.

10. INTELLECTUAL PROPERTY
Each party shall exclusively own its respective trademarks and service marks, copyrights, trade secrets, and patents (collectively, the “Intellectual Property”) and no party will have any claim or right to the Intellectual Property of the other by virtue of this Agreement or the performance of services hereunder. Neither party will take any action or make any claim to any Intellectual Property belonging to the other party, whether during the Term or thereafter, which is inconsistent with this Paragraph.

11. REPRESENTATIONS AND WARRANTIES
A. Each party represents and warrants that it has the right, title, interest and authority to enter into this Agreement and to fully perform its obligations hereunder, and that the rights granted hereunder shall not violate the rights of any third party. Each party represents and warrants that its conduct hereunder shall conform to all applicable federal, state and local law and regulation.

B. Except for liability for indemnity, neither party will have liability for any damages other than direct damages. NEITHER PARTY MAKES ANY WARRANTY REGARDING THE QUALITY OF THEIR GOODS AND SERVICES. NEITHER PARTY MAKES ANY WARRANTY THAT ALL ERRORS OR FAILURES IN THEIR RESPECTIVE SITES WILL BE CORRECTED. THE PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BEYOND THE WARRANTIES CONTAINED IN THIS PARAGRAPH, THE PARTIES DO NOT WARRANT THAT THEIR SITES ARE ERROR-FREE OR THAT OPERATION OF THEIR SITES WILL BE SECURE OR UNINTERRUPTED. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY REPRESENTATION OR WARRANTY MADE TO ANY END USER OR THIRD PARTY BY THE OTHER PARTY, OR ANY AGENT OF THE OTHER PARTY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR FAILURE OF ITS NETWORK OR SUPPORT SERVICES. THESE LIMITATIONS SHALL SURVIVE AND APPLY NOTWITHSTANDING THE VALIDITY OF THE LIMITED REMEDIES PROVIDED FOR IN THIS AGREEMENT.

12. INDEMNITY
Each party hereby indemnifies and holds harmless the other party, its parent, affiliated and subsidiary companies, their officers, directors and employees (“Indemnities”) from any and all liabilities, claims, causes of actions, suits, losses damages, fines, judgments and expenses (including reasonable attorney’s fees) which may be incurred by the Indemnities arising out of any breach of the covenants, warranties, representations and agreements herein.

13. RELATIONSHIP OF PARTIES
Nothing in the Agreement shall be deemed to constitute, create, give effect to or otherwise recognize a partnership, joint venture or formal business entity of any kind; and the rights and obligations of the Parties shall be limited to those expressly set forth herein.

14. 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.

15. TERMINATION
A. This Agreement may be terminated by either party upon [number] ([#]) days written notice to the other party in the event of a breach of a material provision of this Agreement by the other party, provided that, during the [number] ([#]) days period, the breaching party fails to cure such breach.

B. (COMPUTER NETWORK PATENT CO.) shall have the right, but not the obligation, to terminate this Agreement on [number] days prior written notice within [number] days after the event in question, if there is merger, consolidation or other reorganization of or involving Operator(Internet Patent Co.) in which Operator(Internet Patent Co.) is not the surviving entity, or any change in control of Operator(Internet Patent Co.) on account of the sale of at least [number] ([#]%) of the equity interests of Operator(Internet Patent Co.).

16. EFFECT OF TERMINATION
Upon termination or expiration of this Agreement, all rights granted to the Operator(Internet Patent Co.) shall forthwith revert to (COMPUTER NETWORK PATENT CO.) who shall be free to contract with others without any obligation to the Operator(Internet Patent Co.).

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.

19. 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.

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.

21. 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.

22. 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.

23. 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.

24. 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.

[(COMPUTER NETWORK PATENT CO.)]      [Operator(Internet Patent Co.)]

By:        By:
Title:      Title:
Date:      Date: