COWABUNGA RECIPCAL WEB SITE LINKING AGREEMENT
This AGREEMENT (this "Agreement") entered into this ___ day of April, 1999
("Effective Date"), by and between Cowabunga Enterprises Inc, a wholly owned
subsidiary of Gateway 2000 Inc., ("Cowabunga"), having an office at 000
Xxxxxxx Xxxxx, X. Xxxxx Xxxx, XX 00000 and XxxxxXxxx.xxx, Inc. a Nevada
corporation, having an office at 000 Xxxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxxx,
XX 00000 ("Provider").
In consideration of the mutual promises and covenants herein contained,
Cowabunga and Provider agree as follows:
1. This Web Linking Agreement ("Agreement") shall take effect on the date
set forth above and shall remain in effect until sooner terminated as set forth
in this Agreement.
2. Provider hereby grants to Cowabunga during the term of this Agreement the
worldwide, non-exclusive, non-transferable license, subject to the terms and
conditions of this Agreement, to establish one or more hyperlinks ("Link(s)") to
the Provider's URL xxxx://xxx.xxxxxxxxx.xxx/xxxxxxxxxx and from Provider's URL
to xxxxxxx.xxx's URL: xxxx://xxx.xxxxxxx.xxx,("Site") under the guidelines
provided by Cowabunga.
2.1 Provider acknowledges and agrees that its use of the Link will comply
with the Logo and Distribution Guidelines provided by Cowabunga. If Provider
makes a new release of the Link or component thereof, then: the Link will comply
with the Logo and Distribution Guidelines provided by Cowabunga. If Cowabunga
utilizes Provider's icon or brand features to indicate the location(s) of the
Links, then Provider further grants to Cowabunga a worldwide, non-exclusive,
non-transferable license to use, reproduce, distribute and display Provider's
icon or brand features solely for the purpose of indicating the location of the
Link(s), as set forth above.
2.2 Cowabunga may display Provider's icon or brand features to establish one
or more Links, provided that set-up fee is timely paid.
2.3 Cowabunga may not use or modify the Provider's icon, brand features, marks
or logos without the prior written consent of Provider.
3. Inclusion of Link. During the term of this agreement, Cowabunga shall
designate the Provider's Site Link on the Site in the Travel and Family
category.
3.1 Within 30 days following the completion of each calendar quarter,
Provider shall submit to Cowabunga a report setting forth the number of
end-users that accessed the Provider's Site pursuant to Section 2 above and
Provider shall pay Cowabunga the amounts due pursuant to Section 3.6 above.
3.2 Neither Cowabunga nor Provider make any representations(s) of fact or
opinion or promises to each other with respect to anticipated or minimum
commercial activity, revenues, customer volume or other tangible results from
their respective activities under this Agreement.
3.3 Cowabunga shall have the right to audit Providers' books and records, no
more than twice per year to determine revenue due and owing. If errors in
payments resulting from the audit are greater than five percent (5%), Provider
agrees to pay for all the costs of the audit. Cowabunga shall not engage the
auditors under a contingency fee basis.
3.4 Cowabunga will offer its users a Free Premium Account. This has a value
of $29.95 and entitles the user to 50Mbytes of disk space for image storage on
Providers site and password protection of the users on-line photo albums for a
period of one year.
Web Link Agreement -1
3.5 Provider will create a co-branded site with a unique Cowabunga entrance
page that will contain the Cowabunga logo and branding information on each page.
3.6 Provider will share 10% of the page view advertising revenue generated
from the Cowabunga co-branded site. All advertising revenue sharing is based on
net income received by Provider after allowances are made for commissions,
agency fees, and any other fees.
3.7 Cowabunga will feature the Free Premium Account offer to its customer base
in the following manner a) list the special offer in the Special Offer section
of the xxxxxxx.xxx web page, c) display Providers logo and link information in
the family and travel sections of the Cowabunga site.
4. Neither Cowabunga, its officers, directors or employees may be held
liable for any damages suffered or incurred by Provider arising out of
Cowabunga's failure to display Provider's icon or brand features, or Cowabunga's
failure to display Provider's icon or brand features within a certain time
period.
5. Neither party will be liable for any failure to perform any obligations
hereunder, or from any delay in the performance hereof, due to causes beyond its
control.
6. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THERE ARE NO WARRANTIES,
CONDITIONS, GUARANTIES OR REPRESENTATIONS AS TO MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR OTHER WARRANTIES, CONDITIONS, GUARANTIES OR
REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, IN LAW OR IN FACT, ORAL OR IN
WRITING.
7. Under no circumstances will either party, or their respective officers,
directors or employees be liable for any indirect, special or consequential
damages with respect to the provision of the Provider's Content to Cowabunga,
including lost profits regardless of whether such damages could have been
foreseen or prevented by either party.
9. Notwithstanding any provision contained herein to the contrary, in no
event will the aggregate liability of Cowabunga or its officers, directors and
employees to Provider for damages, direct or otherwise, arising out of or in
connection with this Agreement exceed $1,000.00, regardless of the cause or form
of action.
10. Provider will indemnify, defend and hold Cowabunga and its officers,
directors and employees harmless from and against any claim, suit, action, or
other proceeding and all damages resulting from or arising out of claims that
any of the Provider's icon or brand features infringes any United States
trademark right of any third party or breach of representation or warranty of
Provider contained herein.
11. Term; Termination.
11.1 Term. This Agreement will remain in effect for a period of one year from
the date hereof and shall automatically renew for successive one-year periods
unless terminated by either party upon written notice at least 30 days prior to
expiration of the then current term.
11.2 Automatic Immediate Termination. This Agreement shall be automatically
terminated immediately upon either party becoming the subject of any bankruptcy,
liquidation, receivership or similar proceedings, making an assignment for the
benefit of its creditors, or becoming unable to pay its debts as they become
due.
11.3 Termination for Non-compliance of Linking Policies. Without prejudice
to any other rights or remedies available at law non-breaching party demands in
writing (email included) or in equity, either party may terminate this Agreement
at any time if the other party does not comply with the terms and policies in
this Agreement and does not cure its breach within five (5) days after notice do
so.
Web Link Agreement -2
11.4 Cowabunga may terminate the Agreement on thirty (30) days notice for
any reason.
12. Nothing will be deemed to limit or restrict either party from
entering into agreements with any other person-covering establishment of branded
Links similar to Provider's or to Cowabunga's Site or from offering such similar
Links itself.
13. Neither party will make or issue any press statement or publicity
regarding the terms of this Agreement.
14. The terms and conditions of this Agreement shall be considered
confidential and shall not be disclosed to any third parties except to such
party's accountants or attorneys or except as otherwise required by law.
15. This Agreement represents the entire agreement of the parties regarding
the subject matter hereof.
16. This Agreement will be governed by and construed in accordance with the
laws of the State of New York.
17. All notices, requests and other communications to any party hereunder
will be in writing and will be given to such party at its address set forth in
this Agreement.
18. Neither party may assign any of its rights or delegate any of its duties
under this Agreement without the prior written consent of the other.
19. There is no joint venture, partnership, agency or fiduciary relationship
existing between the parties and the parties do not intend to create any such
relationship by this Agreement.
20. This Agreement may not be amended, modified or superseded unless
expressly agreed to in writing by both parties.
21. If any provision or term of this Agreement is held to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remainder of this Agreement will not be affected.
22. The provisions of Paragraphs 5 through 10, 12, 14, 15, 16, 18, 19, 21
and 22 shall survive the termination of this Agreement.
IN WITNESS WHEREOF, the parties to this Agreement have caused it to be duly
executed by their respective duly authorized offices or representatives as of
the date and year first above written.
Cowabunga: Provider:
By: __________________________ By: __________________________
Name: Name:
Title: Title:
Web Link Agreement -3
