EXHIBIT 10.3
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WEB SITE LINKING AGREEMENT
WEB SITE LINKING AGREEMENT ("Agreement") made as of the 1st day of
August 2003 by and among Accessity Corp., a New York corporation ("Seller"),
American Member Corp., a Florida corporation (the "Buyer"), and DriverShield ADS
Corp., a New York corporation (the "Company").
WITNESSETH:
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WHEREAS, Seller, Buyer and Company entered into a Stock Purchase
Agreement, dated as of August 1, 2003 (the "Stock Purchase Agreement"),
providing for the acquisition by Buyer, of all of the issued and outstanding
shares of stock of DriverShield ADS Corp.;
WHERAS, Seller is the owner and operator of World Wide Web siteS with
Internet domain names XXXXXXXXXXXXX.XXX and xxxxxxxxxxxx.xxx (the "Seller's
Site"); and
WHEREAS, the Company anticipates to that it will own and operate its
own World Wide Web site with Internet domain name XXXXXXXXXXXXXXXXXXXXX.XXX or
such other domain name as the Company determines (the "Company's Site"); and
WHEREAS, pursuant to the Stock Purchase Agreement, Buyer, Company and
Seller agreed to enter this Agreement for Seller to maintain on Seller's Site a
hypertext link to Company's Site in connection with the Business.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties agree as
follows:
1. Seller's Obligations.
(a) Seller agrees to place on Seller's Site a hypertext
link (the "Link") to Company's Site in its standard
format located at the Uniform Resource Locator ("URL")
address as set forth on Exhibit A or any other URL
address with which the Company replaces the
above-stated URL. The Link shall be no larger than
10,000 bytes of memory and take up no more space than
fifty pixels high by two hundred pixels wide.
(b) In connection with the Link, Seller agrees to
incorporate the graphical image file provided by
Company (the "Image"), and
approved by Seller, in its reasonable sole discretion,
into hypertext markup language ("HTML") files located
at Seller's Site.
(c) The Image shall appear on the default web page (the
"Home Page") of Seller'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: xxx.XXXXXXXXXXXXX.XXX/XXXX.XXX OR
XXXXXXXXXXXX.XXX/XXXX.XXX, or any other URL address
with which Seller replaces the above-stated URLs.
(d) Seller may make stylistic and editorial changes in the
format of the image, subject to prior notice to
Company, but will assure that the relative size and
prominence of the Link to Company's Site retains a
reasonable equivalence to the size and prominence of
the Image as provided by Company, previously approved
by Seller, in its reasonable sole discretion. and that
any copyrighted images, copyrighted tests, or
trademarks within the Image are not altered.
(e) Seller shall use all reasonable efforts using existing
personnel at nominal cost to extract the present link
xxx.xxxxxxxxxxxxx.xxx/xxxx_xxxx/xxxxx.xxxx from the
Seller's Site and move it to the Company's Site.
Otherwise, the Seller will maintain this present link
for the Term of this Agreement without incurring any
costs in addition to the normal cost of maintaining
the Seller's Site.
2. Company's Obligations. Company hereby grants to Seller, for
the term of this Agreement as provided for in Section 3,
below, a nonexclusive right to establish the Link to Company's
Site, as described more fully in Paragraph 1, above. In
addition, Company grants to Seller a nonexclusive license to
use certain intellectual property owned or licensed by
Company, including, but not limited to, copyrighted images,
copyrighted text and trademarks, only in connection with
establishing this Link. All such intellectual property, with
the exception of the trademarks licensed by Company from
Seller under their separate Trademark License Agreement will
hereafter be referred to as "Company's Intellectual Property."
Company may revise the Link as set forth on Exhibit A no more
than twice during any twelve (12) month period.
3. Company's Intellectual Property.
(a) Company may grant a license to use Company's
Intellectual Property, to any corporation,
governmental authority, individual, limited liability
company, partnership, trust, unincorporated associate
or other entity (a "Person") other than Seller.
(b) Seller agrees that the nature and quality of all
services rendered by Seller in connection with, and
all related advertising, promotional and other related
uses of, Company's Intellectual Property, by Seller
will conform to standards set by and under the control
of Company.
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Company acknowledges and agrees that the content, the
nature and quality of all services rendered by the
Seller and its Affiliates immediately prior to the
commencement date of this Agreement satisfies this
requisite standard of quality. The Seller agrees that
all use of Company's Intellectual Property shall inure
to the benefit of and be on behalf of the Company.
(c) No right, title, or interest in Company's Intellectual
Property is being transferred to Seller under this
Agreement, except as specifically set forth in this
Agreement. Other than the right to use Company's
Intellectual Property under this Agreement, Seller is
not obtaining any proprietary or other interest in
Company's Intellectual Property. Seller may not (i)
modify Company's Intellectual Property, (ii)
sublicense or otherwise allow any other person or
entity to use Company's Intellectual Property or (iii)
grant to any person or entity the right to do anything
prohibited in clause (i) or (ii) of this sentence.
(d) Seller acknowledges that all right, title and interest
in Company's Intellectual Property is in the name of
Company and waives any right it may have to challenge
or contest any right, title or interest of the
Company. The Seller shall indicate all of Company's
Intellectual Property as being owned by Company and
that they are being used with the permission of the
Company.
(e) Seller will notify Company in writing of any
infringements or imitations by others of Company's
Intellectual Property that come to Seller's attention,
and Company will have the sole right to determine
whether any action will be taken on account of any
such infringements or imitations. Seller will not
institute any suit or take any action on account of
any such infringements or imitations without first
obtaining the written consent of Company. Seller
agrees to cooperate fully and in good faith with
Company for the purpose of securing and preserving
Company's rights in and to Company's Intellectual
Property, and Company will reimburse Seller for any
reasonable costs incurred in connection with its
cooperation (unless Seller is in breach of this
Agreement).
4. Term. This Agreement shall commence as of the date hereof and
shall expire five (5) years thereafter, unless terminated
earlier in accordance with the provisions of this Agreement
(the "Term"). The Term shall be renewable by the Company, at
the option of the *Seller*, by the Company providing the
Seller written notice of its intention to renew this Agreement
for additional five (5) year terms within six (6) months prior
to the expiration of the Term. Thereafter, the new renewed
terms shall be referred to as the Term herein.
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5. Compensation. The parties acknowledge that there shall be no
fees payable by the Company to the Seller for the benefits
received herein as consideration has been paid by the Buyer on
behalf of the Company pursuant to the Stock Purchase
Agreement.
6. Editorial Control. Each party agrees to notify the other of
any significant changes to the content or structure of the
Company's Site or the Seller's Site, respectively, within
thirty (30) days of such change.
7. Link Restriction. Seller agrees to place on Seller's Site
initially only the Link to Company's Site as specified in
Exhibit A. Except as provided herein, the Seller may not at
any time during the five-year period immediately following the
date of this Agreement provide Links from Seller's Site to
websites of other entities that provide vehicle accident
repair and management services to self-insured corporate and
government fleets.
8. 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 OF FITNESS FOR A PARTICULAR PURPOSE. IN NO
EVENT SHALL SELLER BE LIABLE FOR DAMAGES, DIRECT OR INDIRECT,
INCLUDING INCIDENTAL OR CONSEQUENTIAL DAMAGES, SUFFERED BY THE
COMPANY, USER, OR OTHER THIRD PARTY ARISING FROM BREACH OF
WARRANTY OR BREACH OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL
GROUND OF ACTION.
9. 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, except
for Site maintenance that shall be performed upon Site at the
sole discretion of the owner of said Site. In the event that
one of the party's web sites should be inoperable due to
unforeseen circumstances of which the party has no control,
such as power outages, break-ins at the Site, or seizure of
equipment by a government entity, that party shall promptly
have the Site operational once the unforeseen event has been
rectified. Notwithstanding the above, either party may, at its
sole discretion, determine to shutdown their respective Site
at anytime, without prior notice to the other party due to an
unforeseeable event.
10. Termination.
(a) Company's Right to Terminate. Company shall have the
right to immediately terminate this Agreement at any
time during the Term upon providing Seller written
notice thereof. The Seller shall have the right to
terminate this Agreement upon providing the Company
six (6) months advance written notice.
(b) Right to Terminate on Notice. Either party may
terminate this Agreement on forty-five (45) days
written notice to the other party in the event of a
breach of any of the provisions of this Agreement
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by the other party provided that during the forty (45)
day period the breaching party fails to cure such
breach.
(c) Seller's Right to Terminate. Seller shall have the
right to immediately terminate this Agreement at any
time upon the Seller transferring ownership to the
Company of the Internet domain names:
xxx.xxxxxxxxxxxx.xxx and xxx.xxxxxxxxxxxxx.xxx
pursuant to Section 1.2 of the Stock Purchase
Agreement.
11. Post-Termination Rights.
(a) Upon expiration or termination of this Agreement,
Seller shall within 10 days thereof:
1. Remove the Link to Company's Site and provide
proof of the removal, except if termination
pursuant to Section 10(c) herein;
2. Erase or destroy any of the Company's
Intellectual Property contained in the computer
memory or data storage apparatus under the
control of Seller;
3. Return to Company each copy of Company's
Intellectual Property and each document and
other tangible item containing or relating to
Company's Intellectual Property in the
possession or under the control of Seller; and
4. Not use, nor permit any Person or entity under
the control of Seller to use, Company's
Intellectual Property.
12. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given,
upon receipt, if mailed by registered or certified mail,
postage prepaid, return receipt requested, overnight delivery,
or hand delivered, and sent via confirmed facsimile
transmission as follows:
(a) if to the Company:
Xxxxx X. Xxxxxxx
c/o American Member Corp.
00000 Xxxx Xxxxxxxx Xxxx
Xxxxx Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx X.Xxxxx, Esquire and
Xxxxxxxxxxx X. Xxxxxxx, Esquire
Xxxxxxx Xxxx LLP
0000 X. Xxxxxxxx Xxxxx
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Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
(b) if to the Seller:
Xxxxx Xxxxxx
Accessity Corp.
00000 Xxxx Xxxxxxxx Xxxx
Xxxxx Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxx X. Xxxxx, Esquire
Meritz & Xxxxx XXX
Xxxxx Xxxxxx Xxxxx
Xxx Xxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
or to such other address as the party to whom notice is given may have
previously furnished to the other party in writing in accordance herewith.
13. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF FLORIDA OTHER THAN CONFLICT OF LAWS PRINCIPLES
THEREOF DIRECTING THE APPLICATION OF ANY LAW OTHER THAN THAT
OF FLORIDA. COURTS WITHIN THE STATE OF FLORIDA (LOCATED WITHIN
THE COUNTY OF BROWARD, FLORIDA) WILL HAVE JURISDICTION OVER
ALL DISPUTES BETWEEN THE PARTIES HERETO ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND THE AGREEMENTS, INSTRUMENTS AND
DOCUMENTS CONTEMPLATED HEREBY. THE PARTIES HEREBY CONSENT TO
AND AGREE TO SUBMIT TO THE JURISDICTION OF SUCH COURTS. EACH
OF THE PARTIES HERETO WAIVES, AND AGREES NOT TO ASSERT IN ANY
SUCH DISPUTE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY CLAIM THAT (I) SUCH PARTY IS NOT PERSONALLY SUBJECT
TO THE JURISDICTION OF SUCH COURTS, (II) SUCH PARTY AND SUCH
PARTY'S PROPERTY IS IMMUNE FROM ANY LEGAL PROCESS ISSUED BY
SUCH COURTS OR (III) ANY LITIGATION COMMENCED IN SUCH COURTS
IS BROUGHT IN AN INCONVENIENT FORUM. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
PROCEEDING (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
TRANSACTION OR AGREEMENT CONTEMPLATED HEREBY OR THE ACTIONS OF
ANY PARTY HERETO IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT HEREOF.
14. Miscellaneous.
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(a) Entire Agreement. This Agreement constitutes the
entire agreement between the parties hereto and
supersedes all prior agreements and understandings,
oral or written, between parties hereto with respect
to the subject matter hereof and hereof.
(b) Amendments. This Agreement may not be amended,
modified or supplemented except by written agreement
of the parties hereto.
(c) No Waiver. Nothing contained in this Agreement shall
cause the failure of either party to insist upon
strict compliance with any covenant, obligation,
condition or agreement contained herein to operate as
a waiver of, or estoppel with respect to, any such
covenant, obligation, condition or agreement by the
party entitled to the benefit thereof.
(d) Headings. The headings contained in this Agreement are
for reference purposes only and shall not affect in
any way the meaning or interpretation of this
Agreement.
(e) Counterparts. This Agreement may be executed in
counterparts each of which shall be deemed to
constitute an original. When counterparts containing
signatures of all signatories are assembled together,
they will constitute one and the same instrument.
(f) Severability. If any provisions hereof shall be held
invalid or unenforceable by any court of competent
jurisdiction or as a result of future legislative
action, such holding or action shall be strictly
construed and shall not affect the validity or effect
of any other provision hereof; provided, however, that
the parties shall use reasonable efforts, including,
but not limited to, the amendment of this Agreement,
to ensure that this Agreement shall reflect as closely
as practicable the intent of the parties hereto.
(g) Specific Performance. Each of the parties hereto
acknowledges and agrees that the other party hereto
would be irreparably damaged in the event any of the
provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise
breached. Accordingly, each of the parties hereto
agrees that they each shall be entitled to an
injunction or injunctions to prevent breaches of the
provisions of this Agreement and to enforce
specifically this Agreement and the terms and
provisions thereof in any action instituted for that
purpose, in addition to any other remedy to which such
party may be entitled, at law or in equity.
(h) Independent Contractors. Nothing herein contained
shall be construed to place the parties in the
relationship of partners or joint venturers, and
neither party shall have any power to obligate or bind
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the other in any manner whatsoever, except as
otherwise provided for herein.
(i) Exhibits. Each of the Exhibits attached hereto is
fully incorporated herein and made part hereof.
(j) Binding Agreement. This Agreement is binding upon and
inures to the benefit of the parties and each
successor and assignee of the parties.
IN WITNESS WHEREOF, the duly authorized officers of the parties hereto
have executed this Agreement as of the day and year first written above.
SELLER: ACCESSITY CORP.
By: ____________________________________
Name:
Title:
COMPANY: AMERICAN MEMBER CORP.
By: _____________________________________
Name:
Title:
DriverShield ADS Corp.
By: ____________________________________
Name:
Title:
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1. EXHIBIT A
xxx.xxxxxxxxxxxxxxxxxxxx.xxx
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