Washington, D.C. Location
Washington, DC 20015
Princeton, NJ Location
Princeton, NJ 08540
THIS AGREEMENT is made as of this [Date] by and between [Foreign Patent Co.] a [Foreign Patent Co.’s State of Incorporation] corporation with offices at [Foreign Patent Co.’s Address] (“Foreign Patent Co.”) and [Worldwide Patent Co.’s Name], a [Worldwide Patent Co.’s State of Incorporation] corporation with offices at [Worldwide Patent Co.’s Address] (“Worldwide Patent Co.”) (collectively the “Parties”).
W I T N E S S E T H:
WHEREAS, Foreign Patent Co. develops, markets and maintains an Internet Web Site featuring consumer-oriented products and services, including [specify products and/or services], as well as advertising and promotional services, at [Internet web site address] (the “Foreign Patent Co. Web site”);
WHEREAS, Worldwide Patent Co. markets and sells [specify products and/or services] on the Internet at [Internet web address] (the “Worldwide Patent Co. Web site”) (collectively, the Foreign Patent Co. Web site and the Worldwide Patent Co. Web site shall hereinafter be referred to as the “Sites”); and
WHEREAS, Worldwide Patent Co. desires to have certain rights with respect to [specify products and/or services] on the Foreign Patent Co. Web site and Foreign Patent Co. desires to promote Worldwide Patent Co. for [specify products and/or services] pursuant to the terms and conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, the Parties, each intending to be legally bound hereby, do promise and agree as follows:
A. During the Term of this Agreement as provided for herein, Worldwide Patent Co. shall be the Worldwide Patent Co. of and advertiser for [specify products and/or services] on the Foreign Patent Co. Web site, and shall receive sponsorship and promotional placements on the Foreign Patent Co. Web site as mutually agreed upon by the Parties, including, but not limited to, [specify the pages or areas on the Foreign Patent Co. Web site] (collectively, the “Worldwide Patent Co. Areas”).
B. Foreign Patent Co. shall regularly create content and advertising appropriate for the Worldwide Patent Co. Areas (“Foreign Patent Co. Advertising Content”) which shall be displayed to the same extent and subject to the same restrictions as the advertising placements, including all banner advertisements and e-commerce links (the “Worldwide Patent Co. Advertising Content”), owned by Worldwide Patent Co. and displayed in the Worldwide Patent Co. Areas.
C. Foreign Patent Co.’s obligations hereunder shall apply to Foreign Patent Co. Web site pages and/or areas currently existing on the Foreign Patent Co. Web site or pages and/or areas developed or created at any time during the Term of this Agreement.
2. LICENSE GRANT
A. Worldwide Patent Co. hereby grants to Foreign Patent Co., for the Term of this Agreement as provided for herein, a non-exclusive, non-transferable, royalty-free, worldwide license to reproduce and display the logos, trademarks, trade names and similar identifying material relating to Worldwide Patent Co. identified in the attached Schedule A (the “Worldwide Patent Co. Marks”) solely in connection with the promotion, marketing and distribution of the Sites.
B. Foreign Patent Co. hereby grants to Worldwide Patent Co., for the Term of this Agreement as provided for herein, a non-exclusive, non-transferable, royalty-free, worldwide license to reproduce and display all logos, trademarks, trade names and similar identifying material relating to Foreign Patent Co. identified in the attached Schedule A (the “Foreign Patent Co. Marks”) solely in connection with the promotion, marketing and distribution of the Sites.
C. The licenses granted hereunder are subject to the condition that each Party shall not make any specific use of any of the other Party’s marks without first submitting a sample of such use to the other Party and obtaining its prior written consent, which consent shall not be unreasonably withheld.
A. Worldwide Patent Co. shall provide Foreign Patent Co. with all content for each of its placements for display on the Foreign Patent Co. Web site, including all trademarks, logos or banners, in accordance with the specifications set forth in the attached Schedule A.
B. The Parties agree to cooperate in the establishment of all links, buttons and banners placed pursuant to this Agreement. Links from one party’s Site to the other party’s Site shall in no way alter the look, feel or functionality of the linked Site.
C. Worldwide Patent Co. shall not be required to change or update Worldwide Patent Co. Advertising Content more than [number] ([#]) times a month. When updating Worldwide Patent Co. Advertising Content, Worldwide Patent Co. shall provide Foreign Patent Co. with artwork and any additional content at least [number] ([#]) business days in advance of the publication date.
This Agreement and the provisions hereof, except as otherwise provided, shall be in full force and effect commencing on the date on which the Worldwide Patent Co. Areas of the Foreign Patent Co. Web site are operational in accordance with the terms of this Agreement and the links to the Worldwide Patent Co. Web site contained in the Worldwide Patent Co. logos or the Worldwide Patent Co. banner advertisements are established in accordance with the terms of this Agreement (the “Launch Date”). If the Launch Date has not occurred by [date], Worldwide Patent Co. shall, in its sole discretion, be entitled to terminate this Agreement without any liability and receive a full refund of all amounts paid by Worldwide Patent Co. to Foreign Patent Co. pursuant to this Agreement prior to the date of such termination
A. Foreign Patent Co. shall provide Worldwide Patent Co. with Worldwide Patent Co. usage reports on a [specify frequency] basis. Worldwide Patent Co. shall have the right to use such data for its internal business purposes, but may not provide such data for use by third parties. Such reports shall contain substantially the same types of information delivered to other of Foreign Patent Co.’s similarly situated partners, which reports will include information regarding impressions, clickthroughs and any information known about the users of such areas in aggregate form.
B. Foreign Patent Co. shall provide advertising banner and e-commerce impressions consisting of Worldwide Patent Co. Advertising Content, which shall be delivered during each month of the Initial Term. If by the end of the Initial Term Foreign Patent Co. has not delivered [number] [(#)] such impressions, then the Term of this Agreement shall be extended until Foreign Patent Co. has satisfied its obligations under this Section. Specifically excluded from such impressions are any permanent Worldwide Patent Co. links, banners or buttons. The extension of the Term of this Agreement shall be Worldwide Patent Co.’s sole remedy for such breach.
C. Foreign Patent Co. agrees to use commercially reasonable efforts to keep the Foreign Patent Co. Web site online and display the Worldwide Patent Co. Advertising Content [number] ([#]) hours per day during the Term of the Agreement. Foreign Patent Co. shall install and maintain a commercially acceptable system of collecting information about impressions and other data relating to the use of the Worldwide Patent Co. Advertising Content.
A. In consideration of the full performance by Foreign Patent Co. of its obligations hereunder and of and of all rights granted hereunder to Worldwide Patent Co., Worldwide Patent Co. agrees to pay Foreign Patent Co. the Sponsorship Fee in the sum total of [Amount] UNITED STATES DOLLARS ($ [#]), payable as follows:
[Amount] UNITED STATES DOLLARS ($ [#]), payable on or before [date]
[Amount] UNITED STATES DOLLARS ($ [#]), payable on or before [date]
[Amount] UNITED STATES DOLLARS ($ [#]), payable on or before [date]
[Amount] UNITED STATES DOLLARS ($ [#]), payable on or before [date]
B. All payments due Foreign Patent Co. shall be made in U.S. currency by check drawn on a U.S. bank, unless otherwise specified by Foreign Patent Co..
C. Late payments shall incur interest at the rate of [number] Percent ([#]%) per month from the date such payments were originally due.
D. Worldwide Patent Co. shall be responsible for the collection of any and all value added, consumption, sales, use or similar taxes and fees payable with respect to all sales made on the Worldwide Patent Co. Web site.
7. OWNERSHIP OF USER DATA
A. It is understood that any personal information collected by Foreign Patent Co. from its users when they sign up for services, including requesting specific information and chat room/forum usage (“User Data”) shall be owned exclusively by each specific user (the “Individual User”), and Foreign Patent Co. does not use or disclose any such User Data without the consent of the Individual User. With respect to any User Data for which an Individual User has specifically authorized release to Worldwide Patent Co., Worldwide Patent Co. shall use its best efforts to keep such User Data confidential and shall only use such data in an ethical manner. Worldwide Patent Co. may use User Data for its owns purposes, but User Data may not be disclosed, sold, assigned, leased or otherwise disposed of to third parties by Worldwide Patent Co..
B. User Data shall be considered “Confidential Information” as such term is defined hereunder, and Worldwide Patent Co.’s obligations to treat the User Data as Confidential Information shall continue in perpetuity following termination of this Amendment. In this respect, Worldwide Patent Co. shall also be liable for the conduct of its employees, agents and representatives.
C. All users of the Worldwide Patent Co. Web site, including those users linked to the Worldwide Patent Co. Web site from the Foreign Patent Co. Web site, will be deemed to be customers of Worldwide Patent Co.. Accordingly, all rules, policies and operating procedures of Worldwide Patent Co. concerning customer orders, service and sales will apply to those customers. Worldwide Patent Co. may change its policies and operating procedures at any time. Worldwide Patent Co. will determine the prices to be charged for products and other merchandise sold on the Worldwide Patent Co. Web site in accordance with its own pricing policies.
D. The Parties hereby agree that title to any information obtained by Worldwide Patent Co. relating to users of the Worldwide Patent Co. Web site, including, but not limited to the name, address and e-mail address of such users, shall be owned by the Worldwide Patent Co.. The Parties further agree that they may each collect and own similar information from and with respect to individuals who visit each of their Sites.
8. INTELLECTUAL PROPERTY
A. Each Party shall retain all right, title, and interest in and to its own intellectual property, including, without limitation, any trademarks, patents, copyrights and trade secrets. Except for the licenses granted herein, neither Party shall acquire any interest in the other party’s Web site, intellectual property, or any other products, services or materials, or any copies or portions thereof, provided by such Party pursuant to this Agreement.
B. Each Party reserves the right to reject or remove any content, information, data, logos, trademarks and/or other materials (collectively, “Materials”) provided by the other from its servers at any time if, in its reasonable opinion, it believes that any such Materials infringe any third-party intellectual property right, are libelous or invade the privacy or violate other rights of any person, violate applicable laws or regulations, or jeopardize the health or safety of any person. Each party will use reasonable efforts to contact the other prior to removing any of its Materials from its servers and will work with the other to resolve the issue as quickly as possible.
C. Worldwide Patent Co. shall have the right, during the Term of this Agreement, to use the logo and tag lines set forth in the attached Schedule A on the Worldwide Patent Co. Web site, in its catalogs, and in its stores in connection with its marketing and promotion efforts. Such use shall be made in accordance with the terms of this Agreement and subject to the reasonable approval of Foreign Patent Co..
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.
10. REPRESENTATIONS AND WARRANTIES
A. Worldwide Patent Co. hereby represents and warrants that it has the right and to grant the licenses granted herein and that there are no other agreements with any other party in conflict herewith. Worldwide Patent Co. further represents and warrants that the Worldwide Patent Co. Advertising Content and Worldwide Patent Co. Marks are true and correct and do not infringe upon or violate: (i) any intellectual property rights, including any copyright or trademark rights, of any third party and do not and will not constitute a defamation or invasion of the rights of privacy or publicity of any kind of any third party; or (ii) any applicable law, regulation or non-proprietary third-party right. In addition, Worldwide Patent Co. represents and warrants that the Worldwide Patent Co. Advertising Content does not contain any material which is unlawful, harmful, abusive, hateful, obscene, threatening or defamatory.
B. Foreign Patent Co. hereby represents and warrants that it has the right and to grant the licenses granted herein and that there are no other agreements with any other party in conflict herewith. Foreign Patent Co. further represents and warrants that the Foreign Patent Co. Marks are true and correct and do not infringe upon or violate: (i) any intellectual property rights, including any copyright or trademark rights, of any third party and do not and will not constitute a defamation or invasion of the rights of privacy or publicity of any kind of any third party; or (ii) any applicable law, regulation or non-proprietary third-party right. In addition, Foreign Patent Co. represents and warrants that the Foreign Patent Co. Marks do not contain any material which is unlawful, harmful, abusive, hateful, obscene, threatening or defamatory.
A. Each Party hereby 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 a breach of any representation or warranty set forth herein; any breach by it of the licenses granted by it hereunder; or the use by the Party of any trademarks or Content other than in accordance with the terms hereof.
B. Each Party’s right to indemnification is conditioned upon the indemnified party: (i) promptly notifying the indemnifying party of any claim, suit, or proceeding for which indemnity is claimed; (ii) cooperating reasonably with the indemnifying party at the latter’s expense; and (iii) allowing the indemnifying party to control the defense or settlement thereof. The indemnified party will have the right to participate in any defense of a claim and/or to be represented by counsel of its own choosing at its own expense.
12. DISCLAIMERS, LIMITATIONS AND RESERVATIONS
A. Each Party shall be solely responsible for the development, operation and maintenance of its Site and for all materials that appear on its Site. Such responsibilities include, but are not limited to: (i) the technical operation of its Site and all related equipment; (ii) the accuracy and appropriateness of materials posted on its Site; (iii) ensuring that materials posted on its Site do not violate any law, rule or regulation, or infringe upon the rights of any third party (including, for example, intellectual property, privacy or other personal or proprietary rights); and (iv) for ensuring that materials posted on its Site are not libelous or otherwise illegal. Each Party disclaims all liability for all such matters with respect to the other party’s Site.
B. 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 WITH RESPECT TO THEIR RESPECTIVE SITES, OR THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE THEREOF, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT.
C. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY TO THE OTHER PARTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT AND EACH PARTY HEREBY DISCLAIMS ANY AND ALL WARRANTIES WITH REGARD TO ITS SITE AND SERVICES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF NON-INFRINGEMENT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN PARTICULAR, AND NOT BY WAY OF LIMITATION, NEITHER PARTY WARRANTS THAT ITS SITE WILL OPERATE ERROR-FREE OR WITHOUT INTERRUPTION.
D. 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].
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:
1. of a breach of any provision of this Agreement by the other party;
2. that the other Party undertakes any action or fails to undertake any action, which the other party reasonably believes tarnishes the high quality of its name or trademarks; or
iii. that the other Party ceases to function as a going concern, becomes insolvent, makes an assignment for the benefit of creditors, files a petition in bankruptcy, permits a petition in bankruptcy to be filed against it, or admits in writing its inability to pay its debts as they mature, or if a receiver is appointed for a substantial part of its assets;
provided that, during the [number]-day period, the breaching party fails to cure such breach.
B. Client Right to Terminate. Client shall have the right to terminate this Agreement at any time on [number] ([#]) months’ written notice to Advertiser for any reason.
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.
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.
17. RELATIONSHIP OF PARTIES
The parties are independent contractors and will have no power or authority to assume or create any obligation or responsibility on behalf of each other. This Agreement will not be construed to create or imply any partnership, agency or joint venture.
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.
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.
[Worldwide Patent Co.] [Foreign Patent Co.]
TO WORLDWIDE PATENT CO.SHIP AGREEMENT BETWEEN
[Worldwide Patent Co.]
[Foreign Patent Co.]
1. Worldwide Patent Co. Marks
[specify trademarks, service marks, etc. owned by Worldwide Patent Co. that are part of Agreement]
2. Foreign Patent Co. Marks
[specify trademarks, service marks, etc. owned by Foreign Patent Co. that are part of Agreement]
3. Worldwide Patent Co. Content
[attach specifications, including file format, size, etc., for content provided by Worldwide Patent Co.]
4. Logos and Taglines
[list specific logos and taglines available to Worldwide Patent Co. under agreement]