WEB LINKING AGREEMENT
THIS AGREEMENT dated as of August 17, 1999
BETWEEN:
CITIZENS BANK OF CANADA, having an office at 401 - 000 Xxxx Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0 (fax: (000) 000-0000)
("Citizens")
AND:
QUOTES CANADA FINANCIAL NETWORK LTD., having an office at 1409 - 000 Xxxx
Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0 (fax: (000) 000-0000)
("Quotes Canada")
(each of Citizens and Quotes Canada are referred to herein as a "Party")
WHEREAS:
A. Quotes Canada maintains a world wide web ("Web") site located at
xxx.xxxxxxxxxxxx.xxx (the "Investment Site");
B. Citizens maintains a Web site located at xxx.xxxxxxxxxxxx.xx (the
"Citizens Site");
C. Quotes Canada wishes Citizens to develop certain content for the Citizens
Site which Quotes Canada intends to have the Investment Site linked to: and
D. Citizens wishes Quotes Canada to provide links on the Investment Site to
certain pages of the Citizens Site.
NOW THEREFORE the Parties have agreed to the following terms and conditions:
1. Linking. Quotes Canada agrees to provide links from the Investment Site
to the Citizens Site in accordance with the terms of this Agreement and Citizens
hereby agrees to permit Quotes Canada to link from the Investment Site to the
Citizens Site in accordance with the terms of this Agreement. This permission
is given on the basis that Quotes Canada's linking rights hereunder are
non-exclusive and non-transferable. Citizens agrees to provide links from the
Citizens Site to the Investment Site in accordance with the terms of this
Agreement and Quotes Canada hereby agrees to permit Citizens to link from the
Citizens Site to the Investment Site in accordance with the terms of this
Agreement. This permission is given on the basis that Citizens' linking rights
hereunder are non-exclusive and non-transferable.
2. Link Locations. Quotes Canada agrees to link the Investment Site only to
the locations within the Citizens Site noted on Schedule A (the "Locations")
with such links being only being provided by Buttons (as defined in Section 8).
Citizens agrees to link to the Investment Site only from (i) the Locations; or
(ii) such other Web pages in the Citizens Site as approved by Quotes Canada with
such links only being provided by Buttons.
3. Content and Style. Citizens agrees to develop the Locations within a
reasonable period of time so that they have a style and content as more
particularly described in Schedule A. Quotes Canada shall provide input and
assistance to Citizens in the development of the Locations. The ultimate style
and content of the Locations shall, however, be determined by Citizens in its
sole discretion. Citizens shall be the exclusive owner of the Locations and all
intellectual property rights related thereto (collectively, the "Content").
Quotes Canada hereby assigns to Citizens any and all right, title and interest
throughout the world and universe, including without limitation, all copyright,
trade-marks, trade secrets, patent rights and any other intellectual property
rights in and to the Content which it may otherwise acquire, effective at the
time each is created. Quotes Canada covenants that it shall not, either during
the term of this Agreement of thereafter, directly or indirectly, contest, or
assist any third party to contest, Citizens' ownership of the Content. Without
limiting the generality of the foregoing, Quotes Canada agrees that it shall not
duplicate, reproduce, copy, use or otherwise take any action either directly or
indirectly with respect to the Content except as otherwise expressly set out in
this Agreement. Notwithstanding the foregoing, Citizens acknowledges and agrees
that Link Logos (as defined in Section 7(3)) of Quotes Canada used in the
Locations or otherwise used by Citizens shall be the sole and exclusive property
of Quotes Canada pursuant to Section 7(2) below.
4. Reporting. Within thirty (30) days after the end of each calendar month
Citizens shall provide a report to Quotes Canada of (i) total number of web
pages of each Location that have been loaded into the browser of a Web user
("Impressions"); (ii) total number of completed on-line applications from the
Locations ("Applications"); and (iii) total number of approved and (as
applicable) funded Applications. Quotes Canada and its employees or related
person or parties shall not take any actions, directly or indirectly, which will
artificially increase the number of Impressions. For greater certainty any
information reported by Citizens to Quotes Canada pursuant to this Section shall
be deemed to be Confidential Information (as defined in Section 14(1)).
5. Fees. Citizens agrees that it shall pay to Quotes Canada these fees as
more particularly described in Schedule B (the "Fees"). The Fees shall be
payable within thirty (30) days after the end of each calendar quarter for Fees
calculated and payable with respect to such calendar quarter.
6. Uptime. Quotes Canada acknowledges that the availability of the
Investment Site to users is important for maximizing Impressions. Consequently,
Quotes Canada agrees to use commercially reasonable efforts to make the
Investment Site available to users twenty-four hours a day seven days a week.
7. Trade-Xxxx License.
(1) Citizens hereby grants to Quotes Canada a non-exclusive,
non-transferable, limited license to use only those trade-marks on Citizens
listed on Schedule A to create links to the Locations.
(2) Quotes Canada hereby grants to Citizens a non-exclusive,
non-transferable, limited license to use only those trade-marks of Quotes Canada
listed on Schedule A to create links to the Investment Site.
(3) Each Party agrees that:
(a) they will not alter the appearance of the other Party's trade-marks as
listed in Schedule A (the "Link Logos");
(b) they will use only the approved graphical image of the Link Logo
supplied by the other Party;
(c) the Link Logos may not be reduced in size beyond what is electronically
provided by the other Party;
(d) the Link Logo must stand by itself and must include a minimum amount of
[30] pixels of empty space around it so as to avoid unintended associations with
other objects, including without limitation, type, photography, borders and
edges;
(e) they will comply with any other reasonable trade-xxxx usage policies
established by the other Party from time to time;
(f) all goodwill associated with the other Party's Link Logos shall accrue
to the other Party;
(g) they will not use any other logos, slogans, copyright material or
trade-marks of the other Party except for the Link Logos;
(h) they will not use the other Party's Link Logo as a feature or design
element of another logo;
(i) they will not use the other Party's Link Logo more prominently than its
own company, product or Web site name or Logo; and
(j) they will include a notice on their Web site to the effect that the
other Party's Link Logo is a trade-xxxx of the other Party and is used under
license.
4. Each Party acknowledges the other Party's worldwide ownership of its
Link Logos and will not contest such ownership.
8. Approvals. The initial location and appearance, and any subsequent
change in location or appearance, of the other Party's Link Logos or other forms
of links to the other Party's Web site (collectively, the "Buttons") on each
Party's Web site shall be subject to prior approval by the other Party which
approval may be conditional upon the inclusion of notices or statements as
required by the approving Party. Each Party shall notify the other Party in
advance of any move or modification of the Buttons utilized by that Party.
Notwithstanding the foregoing, neither Party shall be responsible for the
content of the other Party's Web site.
9. Appropriate Conduct. Neither Party will use the Buttons in any manner
that implies sponsorship or product endorsement by the other Party. Neither
Party will make negative or disparaging references to the other Party's products
or services. Neither Party will place the other Party's Web pages in a "frame"
within its own site, or otherwise cause a user's browser to frame the other
Party's Web site such that both Party's sites appear on the same screen, without
prior written permission from the other Party. Each Party agrees not to use the
other Party's Link Logos in a manner or take any other action likely to cause
confusion with, dilute or damage the reputation or image of the other Party or
its products or services. Each Party agrees that its Web site will not contain
material that is obscene, pornographic, excessively violent or which breaches
any Canadian federal or provincial statute or regulation. Subject to the
foregoing, each Party reserves the right to alter, modify or discontinue its Web
site at any time.
10. Warranties. Each Party represents and warrants to the other Party that
(i) each has duly registered the domain name of its respective Web site with all
applicable authorities and possesses all rights necessary to use such domain
name, and (ii) the content and material which it has placed on its Web site does
not infringe upon or violate any (a) copyright, patent, trade-xxxx or
proprietary right of a third party, or (b) any applicable law, regulation or
non-proprietary third-party right.
11. Indemnity. Each Party (the "First Party") agrees to indemnify, defend
and hold harmless the other Party and its directors, officers, employees and
agents from any and all actions, claims, costs, damages, demands, expenses,
liabilities, losses and suites (including reasonable legal fees) arising from,
in whole or in part, (i) a breach by the First Party of the warranties in
Section 10(ii), a claim that the First Party's Link Logos infringe or violate
the intellectual property rights of a third party, or (iii) any acts or
omissions of the First Party or its employees or agents in performing under this
Agreement.
12. Term and Termination.
(1) This Agreement shall continue until (i) such time as either Party
terminates this Agreement upon giving the other Party at least five days written
notice; or (ii) immediately upon delivery by one Party to the other Party of
written notice that such other Party has breached a material provision of this
Agreement.
(2) Upon termination of this Agreement (i) each Party shall immediately
remove all Buttons from its Web site; and (ii) neither Party shall under any
circumstances provide any link from its Web site to the other Party's Web site
nor shall either Party represent or otherwise take any action which could be
construed as suggesting that such Party has any relationship with or is
otherwise associated with the other Party.
(3) Sections 5, 7(4), 11, 13, 14 and 16 and this Section 12 shall
survive termination of this Agreement.
13. Limitation of Liability Neither Party shall be liable to the other
Party for any special or punitive damages, damages for lost profits or revenues,
or for any other types of economic loss or consequential damages.
14. Confidential and Restricted Information
(1) Each Party acknowledges that the other Party (the "Discloser") may
disclose to such Party (the "Recipient"), or allow the Recipient access to,
trade secrets and other information, in the possession of the Discloser and
owned by the Discloser or entities affiliated, associated or related to the
Discloser, or by their respective suppliers, customers or other business
partners, that is not generally known to the public including, without
limitation, financial information, legal, corporate, marketing, product,
technical, personnel, customer and supplier information and any other
information, in whatever form or media, specifically identified as confidential
by the Discloser, or the nature of which is such that it would generally be
considered confidential in the industry of the Discloser, or which the Discloser
is obliged to treat as confidential or proprietary (collectively, "Confidential
Information"). The Recipient acknowledges that this information is of
significant value to the Discloser.
(2) The non-disclosure obligations of the Recipient under this Section
14 shall not apply to Confidential Information which the Recipient can
establish:
(a) is, or becomes, readily available to the public other than through a
breach of this Section;
(b) is disclosed, lawfully and not in breach of any contractual or other
legal obligation, to the Recipient by a third party; or
(c) through written records, was known to the Recipient, prior to the date
of first disclosure of the Confidential Information to the Recipient by the
Disclosure.
(3) The Recipient acknowledges that Confidential Information is and
shall be the sole and exclusive property of the Discloser or its designate and
that the Recipient shall not acquire any right, title or interest in or to any
Confidential Information.
(4) The Recipient shall keep all Confidential Information strictly
confidential and shall take all necessary precautions against unauthorized
disclosure of the Confidential Information during the term of this Agreement and
thereafter. Without limitation, the Recipient shall not, and shall take all
reasonable steps to ensure that its employees do not, directly or indirectly,
disclose, allow access to, transmit or transfer the Confidential Information to
a third party without the Discloser's consent, or use or reproduce Confidential
Information, in any manner, except as reasonably required to fulfil the purposes
of this Agreement. Notwithstanding the foregoing, to the extent that the
Recipient can establish it is required by law to disclose any Confidential
Information, it shall be permitted to do so, provided that notice of this
requirement to disclose is first delivered to the Discloser, so that it may
contest this potential disclosure. The Recipient shall ensure that all copies
of Confidential Information are clearly marked, or
otherwise identified as confidential and proprietary to the Discloser, and are
stored in a secure location while in the Recipient's possession, control, charge
or custody.
(5) Notwithstanding any other provisions of this Section 14 or any
other term of this Agreement, there is certain information which Citizens is
prohibited by law from disclosing to third parties including, without
limitation, financial and personal information relating to its customers
(collectively, "Restricted Information"). Quotes Canada therefore covenants and
agrees that it shall not either directly or indirectly take any steps or actions
which result in or which could have the effect of resulting in Quotes Canada
having access to any Restricted Information and Quotes Canada shall take all
reasonable steps to ensure that none of its employees or users of the Investment
Site obtain access to Restricted Information.
15. Citizens Ethical Policy. Quotes Canada covenants and agrees to comply
with Citizens' ethical policy as such policy is amended from time to time (the
"Ethical Policy"). The form of the Ethical Policy as of the date of this
Agreement is attached hereto as Schedule C.
16. General
(1) Entire Agreement. This Agreement constitutes the entire agreement
and understanding between the Parties on the subject hereof and supersedes any
and all prior oral or written agreements, statements, representations,
warranties or understandings by any Party, and all of which are merged herein
and superseded hereby. Neither Party shall be bound by any definition,
warranty, condition or representation other than as expressly set forth in this
Agreement or as may be set forth in a writing signed by the Party to be bound
thereby. This Agreement may not be modified except by a written agreement
signed by the Parties hereto.
(2) Interpretation. In construing this Agreement or determining the
rights of the Parties hereto, no Party shall be deemed to have drafted or
created this Agreement.
(3) Governing Law. This Agreement is made and entered into under the
laws of the Province of British Columbia and shall be interpreted, applied and
enforced under those laws. The Parties hereby agree to attorn to the
jurisdiction of the courts of British Columbia.
(4) Severability. The provisions of this Agreement are severable, and
if any one or more provisions is determined to be illegal, indefinite, invalid
or otherwise unenforceable, in whole or in part, the remaining provisions of
this Agreement shall continue in full force and effect and shall be binding and
enforceable.
(5) Assignment. Neither this Agreement nor any right or duty hereunder
shall be assignable or delegable by either Party without the express consent of
the other Party, and nothing in this Agreement, express or implied, is intended
to confer upon any person other than the Parties hereto any rights or remedies
under or by reason of this Agreement. This Agreement shall be binding upon and
shall inure to the benefit of the Parties hereto and their respective heirs,
administrators, executors, legal representatives, successors in interest and
permitted assigns.
(6) Waiver. No waiver of any provisions of this Agreement shall be
deemed to be or shall constitute a waiver of any provision, whether or not
similar, nor shall any waiver constitute
a continuing waiver. No waiver shall be binding unless executed in writing by
the Party making the waiver. The failure of any Party to object to any act,
omission or breach by the other Party or to declare the other Party in default,
irrespective of how long such failure continues, shall not constitute a waiver
by such Party of any rights or remedies hereunder or otherwise provided at law
or in equity.
(7) Notices. All notices, requests, demands and other communications
to be given hereunder shall be in writing and shall be deemed to have been duly
given on the date of personal service or on the fifth day after mailing by
certified or registered mail or on the date sent by facsimile addressed to the
Parties at the addresses noted on page one or at such other address as either
Party may hereafter indicate by appropriate notice.
(8) No Agency. Nothing in this Agreement creates a relationship of
agency, partnership, joint venture, or the like between the Parties, and neither
Party shall be entitled to, or purport to, bind or represent the other Party.
Neither party shall do or allow any act which would imply apparent authority to
act for the other Party.
IN WITNESS WHEREOF the Parties have signed this Agreement as of the date first
above written.
CITIZENS BANK OF CANADA
QUOTES CANADA FINANCIAL NETWORK LTD.
By: By:
Name: "Xxxxxxx Xxxxxxx" Name: "Xxxx Xxxxxxx"
Title: "Manager, Interactive Services" Title: "VP-Operations"
SCHEDULE A
Locations and Link Logos
1. Locations
URLs Content
(a) Calculators and rate tables
(b) on-line account application ("Account Application")
(c) on-line mortgage application ("Mortgage Application")
(d) on-line VISA applications ("VISA Applications")
(e) on-line personal loan / line-of-credit application ("Loan Application")
(f) Printable term deposit application
(g) Citizens Net
2. Link Logos
(a) Citizens
(b) Quotes Canada
SCHEDULE B
Fees
Action Fee
1. Approved Account Application $15 Cdn.
2. Approved and Funded Mortgage Application 10 basis points of funds
advanced pursuant to the Mortgage Application which fee is a one time payment to
Quotes Canada and not a reoccurring payment
3. Approved VISA Application $15 Cdn.
4. Approved and Funded Loan Application $15 Cdn.
SCHEDULE C
Citizens Ethical Policy
