Washington, D.C. Location
WEB SITE LINKING AGREEMENT
THIS AGREEMENT is made this [Date] by and between [Name of Website Developer], a [Type of Organization] with offices at [Address] (the “Website Operator”), and [US Patent Co.], a [Type of Organization] with offices at [Address] (the “US Patent Co.”).
W I T N E S S E T H
WHEREAS, US Patent Co. owns and operates a World Wide Web Site known as [“US Patent Co. Site”]; and;
WHEREAS, Website Operator owns and operates its own World Wide Web Site known as [“Website Operator Site”]; and
WHEREAS, Website Operator desires to have a hypertext Web link on the US Patent Co. Site directed to the Website Operator Site; and
WHEREAS, US Patent Co. and Website Operator mutually desire to set forth the terms applicable to such Web link;
NOW, THEREFORE, for the mutual consideration set forth herein, the adequacy of which is hereby acknowledged, US Patent Co. and Website Operator, intending to be legally bound, hereby agree as follows:
1. US PATENT CO.’S OBLIGATIONS
A. US Patent Co. agrees to place a hypertext link (the “Link”) to Website Operator’s Site in its standard format on a rotating basis with links to no more than [number] other Sites for the term of the Agreement. Rotation will occur following each access to US Patent Co.’s page bearing the link.
B. In connection with the Link, US Patent Co. agrees to incorporate the graphical image file provided by Website Operator (the “Image”) into the HyperText Markup Language (HTML) files located at US Patent Co.’s Site.
C. The Image shall appear on the default Web page (the “Home Page”) of US Patent Co.’s Site, which is the page a User’s Web browser will generate as the result of requesting the following Uniform Resource Locator (URL) address: [URL] or any other URL address with which US Patent Co. replaces the above-stated URL.
D. The Image shall appear in the Home Page such that it is visible to a User when loaded into and displayed by a Web browser at 640 by 480 standard VGA resolution running so that the browser occupies the full screen of the VGA monitor. Additionally, the Image shall appear in the Home Page such that the User will see the entire Image without scrolling. Furthermore, US Patent Co. will include HTML code such that the Image shall be centered in the User’s Result Page.
E. US Patent Co. may make stylistic and editorial changes to the format of the Image, subject to Website Operator’s approval, but will assure that the relative size and prominence of the link to Website Operator’s Site retains a reasonable equivalence to the size and prominence of the Image as provided by Website Operator. Website Operator agrees to provide the necessary graphic and textual material for the link to its Site to US Patent Co. as a computer-readable file in a compatible file format.
2. WEBSITE OPERATOR’S OBLIGATIONS
Website Operator hereby grants to US Patent Co., for the Term of this Agreement as provided for in Section 3, below, (the “Term”), a nonexclusive right to establish the Link to Website Operator’s World Wide Web Site, as described more fully in Paragraph 1, above. In addition, Website Operator grants to US Patent Co. a nonexclusive license to use, in connection with establishing this Link, certain intellectual property owned by Website Operator, including, but not limited to, copyrighted images, copyrighted text and trademarks.
This Agreement shall be effective as of the Effective Date and shall remain in force for a period of ninety-nine years, unless otherwise terminated as provided herein.
A. Website Operator agrees to pay US Patent Co. [number] percent (…%) of the product of all Advertising Revenues and the quotient of the number of requests by US Patent Co. Users to Website Operator’s Site divided by the total number of requests by all users of Website Operator’s Site.
B. For purposes of this provision:
1. “Advertising Revenues” shall mean the aggregate amounts collected plus the fair market value of other compensation received by or on behalf of Website Operator arising from the license or sale of promotional, advertising, sponsorship or marketing services, or rights directly related to Website Operator’s Site;
2. “US Patent Co. Users” shall be defined as users accessing Website Operator’s Site through the Link; and
3. “Requests” shall mean the number of visits to the Home Page of Website Operator’s Web Site, as determined by an independent third party, as provided for below.
5. THIRD-PARTY MONITORING
US Patent Co. will engage an independent third party to electronically monitor and record requests for the linked Web page at Website Operator’s Site via the link on US Patent Co.’s Site, and report the recorded information to US Patent Co. on a monthly basis. To the extent possible, US Patent Co. will direct the third party to employ measures that record Web Site visits by individual users, rather than automated or repeated accesses. US Patent Co. agrees to cooperate with the third party to ensure that the Tracking Software is installed and operational on US Patent Co.’s Web Site. US Patent Co. agrees not to interfere with the operation of the Tracking Software. The parties agree not to artificially inflate the number of reported requests through their own visits to the linked Web page or other surreptitious means.
6. EDITORIAL CONTROL
Both parties agree to notify each other of any significant changes to the content or structure of their Web Sites within [number] days of the change. A party may terminate this agreement upon providing [number] days notice after any significant change to the other party’s Web Site.
7. LINK RESTRICTION
US Patent Co. agrees to provide initially only those hypertext links specified in Exhibit B. US Patent Co. agrees to notify Website Operator of the nature of any new links US Patent Co. wishes to add to its site prior to adding such links. In the absence of any objection from Website Operator, US Patent Co. may place the new links on its Site [number] days after notice was given. Notwithstanding the above, US Patent Co. agrees that, for the term of this agreement, it will not provide links from its Site to entities whose product lines compete with those of Website Operator.
The parties agree to allow unrestricted access to each other’s Web Sites by their users. The parties agree that this agreement covers all conditions of access and use, and that they will not impose any restrictions or surcharges not specifically described herein.
9. CODE OF CONDUCT PROVISION
The parties agree to require all visitors to their Site to agree to codes of conduct for their respective Sites, which the parties agree to make available as a link from the entry page of their Web Site and are attached as Exhibit C. To the extent that either party shall wish to revise such codes of conduct during the term of this agreement, such revisions shall be approved in writing by the other party, which approval shall not be unreasonably withheld or delayed.
10. REPRESENTATIONS, WARRANTIES AND
A. Website Operator represents and warrants that it has duly registered the domain name of its Web Site with all required authorities and possesses and will maintain all rights necessary to use, and grant US Patent Co. a license to use, such domain name.
B. Website Operator further represents and warrants that no content or materials available at the Website Operator Web Site (including, without limitation, content and materials supplied by users of Website Operator’s Web Site) infringes any valid rights of any third party, including, but not limited to any copyright, patent, trademark or other proprietary right.
C. Website Operator further represents and warrants that no content or materials available at the Website Operator Web Site (including, without limitation, content and materials supplied by users of Website Operator’s Web Site) infringes any applicable law, regulation or nonproprietary third-party right.
D. Website Operator hereby agrees to defend, indemnify and hold US Patent Co., its shareholders, directors, officers, employees, parent companies, subsidiaries, and affiliates, harmless from and against any and all claims, liabilities, judgments, penalties, and taxes, civil and criminal, and all costs, expenses (including, without limitation, reasonable attorneys’ fees) incurred in connection therewith, which any of them may incur or to which any of them may be subjected, arising out of or relating to a breach of the Website Operator’s representations and warranties.
11. DISCLAIMER OF WARRANTY
THE WARRANTIES CONTAINED HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL US PATENT CO. BE LIABLE FOR DAMAGES, DIRECT OR INDIRECT, INCLUDING INCIDENTAL OR CONSEQUENTIAL DAMAGES, SUFFERED BY THE WEBSITE OPERATOR, USER, OR OTHER THIRD PARTY ARISING FROM BREACH OF WARRANTY OR BREACH OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL GROUND OF ACTION.
12. INFORMATION DATA COLLECTION
A. For purposes of this Section, “User Information” shall be defined as (i) navigational information, including but not limited to usage of other hyperlinks within or available through Website Operator’s Site, (ii) transactional information, including but not limited to billing information, including products purchased and method of payment, and (iii) users’ Internet address and/or other identifying information such as actual name or address.
B. The parties agree that Website Operator may collect, store and use any User Information not voluntarily provided by the User, including but not limited to, navigational information (“Silent User Information”). If Website Operator chooses to collect, store or use any Silent User Information, Website Operator must clearly and prominently disclose this to User in User’s first visit through the Link and explain what information is collected, what information is stored, and what information is used for what purposes. Website Operator must also disclose whether the User can “opt out” of any portion or all of the collection, storage, or usage of Silent User Information and provide a simple method to do so.
C. User Information that is knowingly and voluntarily provided by the User to Website Operator may be collected and stored and used for Website Operator’s own internal marketing or research efforts but only if Website Operator prominently and adequately discloses to User the intended uses of the User Information prior to User’s disclosure. This disclosure requirement can be satisfied by prominently placing the disclosure information on the registration screen, the ordering screen, or other such relevant screen.
D. Website Operator shall provide to US Patent Co. monthly reports of User Information. US Patent Co. notwithstanding, Website Operator may not disclose User Information of any kind to any third party without valid legal process and only in compliance with all applicable laws. In the event federal or state law prevents the collection, use or disclosure of User Information, the provisions affected shall be construed so as to comply with such laws or regulations.
13. SITE MAINTENANCE
Both parties shall reasonably maintain their respective Sites and take all commercially reasonable steps to ensure that their Web servers are running at all times. In the event that one of the party’s Web Site should be inoperable due to unforeseen circumstances over which the party has no control, such as power outages, break-ins at the Site, and seizure of equipment by a government entity, that party shall promptly have the Site operational once the unforeseen event has been rectified.
14. PROTOCOLS AND COMPATIBILITY
The parties agree that their respective Web pages will use only HTML codes that are approved under HTML 2.0.
A. Immediate Right of Termination. US Patent Co. shall have the right to immediately terminate this Agreement by giving written notice to Website Operator in the event that Website Operator does any of the following:
1. Files a petition in bankruptcy or is adjudicated a bankrupt or insolvent, or makes an assignment for the benefit of creditors, or an arrangement pursuant to any bankruptcy law, or if Website Operator discontinues or dissolves its business, or if a receiver is appointed for Website Operator or for Website Operator’s business and such receiver is not discharged within [number] days.
2. Makes any change in the current management of Website Operator that, in the opinion of US Patent Co., would substantially impair US Patent Co.’s rights under this Agreement.
3. Engages in any illegal, unfair, or deceptive business practices or unethical conduct whatsoever.
4. In the event of any sale of a majority interest in Website Operator to a third party.
B. Right to Terminate on 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.
16. POST-TERMINATION RIGHTS
A. Upon expiration or termination of this Agreement, US Patent Co. shall:
1. Discontinue all use of the Link.
2. Return to Website Operator any publicity materials provided to Website Operator by US Patent Co..
3. Erase or destroy any of the Website Operator’s intellectual property contained in the computer memory or data storage apparatus under the control of US Patent Co..
B. In the event US Patent Co. terminates the Agreement in view of a breach by Website Operator, US Patent Co. may, at its option, declare the compensation owed under this Agreement immediately due and payable.
C. It is understood and agreed that termination shall not entitle Website Operator to any compensation by US Patent Co. on any grounds whatsoever, including, but not limited to, lost profits, loss of goodwill, or consequential, direct, indirect, punitive, or exemplary damages.
17. RELATIONSHIP OF PARTIES
Nothing contained herein shall constitute this arrangement to be a joint venture or a partnership between US Patent Co. and Website Operator. Each party shall be solely responsible for and shall hold the other harmless for any and all claims for taxes, fees, or costs, including but not limited to withholding, income tax, FICA, and workmen’s compensation.
18. 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.
19. 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.
21. 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.
[US Patent Co.] [Website Operator]
[Hypertext Link to Website Operator’s Web Site]
[Preexisting Hypertext Links on US Patent Co.’s Web Site]