COOLEY GODWARD LLP
FORM CO-BRANDING AGREEMENT
This form agreement is designed to be used when representing a website who is requesting website service provider to build a co-branded version of its services. This form is very brander-favorable and contains many terms that are objectionable to providers. This form was developed in conjunction with a mass-market portal that routinely uses third party service providers to provide service to the portalís users (and usually charges the service provider for the privilege).
Among the core issues to consider when using this form:
This form was last updated on October 3, 1999 by Eric Goldman.
This Co-Branding Agreement (the "Agreement") is entered into as of __________, 1999 (the "Effective Date") by and between ___________, with its principal place of business at __________ ("Brander"), and _______________________, with its principal place of business at _______________________ ("Provider").
"Brander Marks" means all Brander domain names, trademarks and
logos reasonably necessary or desirable for Provider to perform under this Agreement.
"Brander Site" means all pages under Brander.com domain or
otherwise operated by Brander or any company it controls, is controlled by or
that is under common control.
"Co-Branded Pages" means all pages of the Service (including,
without limitation, any Java screens associated with the Service or emails or
other direct communications sent to Users or others by operation of the
"Domain Name" means the domain name described in Exhibit A.
"Launch Date" means the first date on which the Service is made
"Marks" means the Provider Marks or Brander Marks, as applicable.
"Page Templates" means Branderís standard page layout templates,
as revised by Brander from time to time.
"Provider Banners" means any banner, button, text or similar ads
Provider provides to Brander in connection with this Agreement.
"Provider Content" means any content or information (including
without limitation any text, music, sound, photographs, video, graphics, data
or software), in any medium, provided by Provider to Brander (other than
Provider Banners), as part of the Service or on the Co-Branded Pages, including
without limitation any content specified in Exhibit A.
"Provider Marks" means all Provider domain names, trademarks and
logos reasonably necessary or desirable for Brander to perform under this
"Provider Site" means the Provider-branded (i.e., non-co-branded)
version of the Service and associated pages.
"Service" means the services described in Exhibit A, as changed
over time in accordance with this Agreement, which are co-branded using the
Page Templates. The Service also includes any Provider-operated back-end
administration tools or pages used by Brander or Provider to exchange data in
accordance with this Agreement.
"Shadow Site" means the password-protected site where the
Co-Branded Pages are made available for Branderís review and approval prior to
being made publicly available.
n. "User" means any person who accesses any Co-Branded Page.
2. Development and Implementation.
2.1 Pre-Launch Deliverables. Promptly following the Effective Date, Brander shall deliver to Provider the Page Templates and the other materials specified in Exhibit A.
2.2 Co-Branded Page Development. Provider shall develop the Co-Branded Pages using the Page Templates and take all other steps required to co-brand the Service in accordance with Exhibit A. In addition, if Brander is passing any user data to Provider, Branderís standard Automatic Partner Registration procedure shall apply, and Provider shall perform the development necessary to use such procedure. The current procedure is described in Exhibit C. Provider shall make the Service implementation available to Brander on the Shadow Site prior to making it publicly available. Provider shall not make the initial Service implementation publicly available without Branderís prior written approval. Unless otherwise specified, each party shall be responsible for all development, hosting and other costs associated with the pages living on their servers and all emails they send.
Changes. Brander shall have sole control over the Serviceís look and
feel, and Provider shall not make any change in the Serviceís look and feel
without Branderís prior consent. Further, Provider shall notify Brander if
Provider changes or adds any functionality of the services described in Exhibit
A (as modified by Provider over time) as implemented on the Provider Site.
Unless requested by Brander, Provider shall implement such changes or additions
to the Service and make such implementation available on the Shadow Site for
Branderís approval within 30 days of their introduction on the Provider Site.
Under no circumstances shall Provider offer Users any community features (such
as email, chat, message boards, or the ability to create home pages) from the
Co-Branded Pages without Branderís approval. Provider shall make available via
the Shadow Site all changes to the Service or the Co-Branded Pages contemplated
in this Section 2, and Provider shall not implement such changes on the
publicly available Service or Co-Branded Pages until it has received Branderís
Service Operation. Provider shall host and operate, in accordance with the
terms of Exhibit B, the Service under the Domain Name.
Rebranding. If requested by Brander, Provider shall implement on the
Co-Branded Pages new versions of the Page Templates if Brander changes the Page
Templates across Brander Site generally. Further, if requested by Brander,
Provider shall create additional branded versions of the Service and Co-Branded
Pages branded with the branding of Branderís distribution partners, which
branded versions shall be implemented within 30 days and subject to approval in
accordance with this Section 2.
Provider Content. Provider shall provide Provider Content to Users via the
Co-Branded Pages, and Provider shall deliver to Brander those elements of
Provider Content residing on Branderís servers in accordance with the terms of
Exhibit A. Unless otherwise directed by Brander, the Co-Branded Pages shall
include all of the content displayed on the Provider Site, and the Provider
Content shall be updated to keep the Co-Branded Pages in parity with the
Provider Site. Any nonconformance with the terms of the frequency/quantity
columns of Exhibit A, even if the nonconformance was beyond Providerís control,
shall permit Brander to terminate immediately if the breach is not cured within
Navigation. Provider shall not, in conjunction with the Service, use any
interstitials, pop-up windows, other intermediate steps or any other technology
or content which acts as a barrier to the transition of a User from Brander
Site to the Co-Branded Pages, nor shall Provider otherwise frame the Co-Branded
Pages or use any other technology which interferes with or affects the page
layout of such pages. All Co-Branded Pages shall link back to Brander Site as
specified by Brander.
User Relations. Provider shall be responsible for providing all customer
support regarding the Service or the Co-Branded Pages, and Brander may redirect
to Provider any associated customer support inquiries. Provider shall have sole
control over the user agreement that governs the Service but shall consider
Branderís input, and Provider shall have the sole responsibility for dealing
with breaches of such user agreement. If Brander has an issue with the user
agreement or Providerís enforcement of it, the parties shall discuss such
disclosures, or obtain any User consent, necessary to make the disclosures
about Users back to Brander required by this Agreement. All Users shall be
treated at least as favorably in all respects (including without limitation
with respect to pricing, quality of service, and customer support
responsiveness) as Provider treats users of the Provider Site.
Database Synchronization. If requested by Brander and if Provider captures
relevant information, Provider shall use reasonable efforts to cooperate with
Brander to implement ways for Brander to obtain such User information to the
extent that such information would change the relevant information in Branderís
2.10 Promotions. The parties shall conduct the promotions specified in Exhibit A.
Ad Sales. Brander shall have sole control over all advertising and
promotion inventory on the Co-Branded Pages (including without limitation any
paid placement on such pages). Provider shall not introduce any advertising
spots or third party branding in conjunction with the Co-Branded Pages or the
Service without Branderís approval. If, after Brander (or its designee) uses
commercially reasonable efforts to sell such inventory, there remains unsold
inventory, then Brander may, in its sole discretion, place house or barter ads
in such inventory.
Ad Serving. Brander or its designee shall be solely responsible for serving
all advertisements and promotions in connection with the Co-Branded Pages.
Brander shall provide Provider with ad serving code, which Provider shall
implement at its own expense on all Co-Branded Pages. Brander hereby grants to
Provider a nonexclusive license to use such code solely to permit Brander or
its designee to serve ads in connection with the Co-Branded Pages. Provider
shall notify Brander at least 15 days prior to making any changes that would
affect serving ads on the Co-Branded Pages.
3.3 Provider Banners. Provider shall deliver to Brander any Provider Banners which are to be run in accordance with this Agreement. Such banners shall comply with Branderís then-current technical standards. The terms of any insertion order or similar document regarding the Provider Banners are expressly rejected, except to the extent that they specify the location, timing or duration of the display of the Provider Banners and such terms are accepted by Brander. Unless mutually agreed otherwise, Provider Banners shall link to the Co-Branded Pages. Brander may request that Provider Banners be co-branded with Brander Marks, in which case the parties shall work together to develop a mutually acceptable implementation. Brander may approve or reject any Provider Banner in its sole discretion.
4. Licenses and Standards.
Content. Provider hereby grants to Brander a non-exclusive, worldwide
license to use, reproduce, distribute, create derivative works of (only as
necessary to build pages in a manner consistent with this Agreement), publicly
display, publicly perform and digitally perform Provider Banners, and those
elements of the Provider Content served from Branderís servers (as denoted in
Exhibit A), on Brander Site or otherwise as reasonably appropriate to advertise
and promote the Service and the Co-Branded Pages. Subject to the approval
process in Section 2, Brander hereby grants to Provider a non-exclusive,
worldwide license to use, reproduce, distribute, create derivative works of
(only as necessary to build Co-Branded Pages), publicly display, publicly
perform and digitally perform the Page Templates on Co-Branded Pages.
Trademarks. Provider hereby grants to Brander a non-exclusive, worldwide
license to use the Provider Marks (including the Domain Name if applicable) to
advertise and promote the Service. Brander hereby grants to Provider a
non-exclusive, worldwide license to use Brander Marks (including the Domain
Name if applicable) on the Co-Branded Pages and, if requested by Brander, in
the Provider Banners.
Trademark Restrictions. The Mark owner may terminate the foregoing
trademark license if, in its reasonable discretion, the licenseeís use of the
Marks tarnishes, blurs or dilutes the quality associated with the Marks or the
associated goodwill and such problem is not cured within 10 days of notice of
breach; alternatively, instead of terminating the license in total, the owner
may specify that certain licensee uses may not contain the Marks. Title to and
ownership of the ownerís Marks shall remain with the owner. The licensee shall
use the Marks exactly in the form provided and in conformance with any
trademark usage policies. The licensee shall not take any action inconsistent
with the ownerís ownership of the Marks, and any benefits accruing from use of
such Marks shall automatically vest in the owner. The licensee shall not form
any combination marks with the other partyís Marks other than the Domain Name
(if applicable). If the Domain Name is deemed a combination mark, neither party
shall use the Domain Name for any purpose except as expressly provided herein or
attempt to register the Domain Name with any government office, and the parties
will jointly cooperate on any enforcement action of infringement of the Domain
Ownership. As between Brander and Provider: (a) Brander and its suppliers
retain all rights, title and interest in and to all intellectual property
rights embodied in or associated with the Page Templates, and (b) Provider and
its suppliers retain all rights, title and interest in and to all intellectual
property rights embodied in or associated with the Provider Content and
Provider Banners. There are no implied licenses under this Agreement, and any
rights not expressly granted to a licensee hereunder are reserved by the
licensor or its suppliers. Neither party shall exceed the scope of the licenses
4.5 Standards. Provider shall not provide Provider Banners (excluding any Brander Marks incorporated therein at Branderís request) or Provider Content, and Brander shall not provide to Provider any Page Templates, that: (a) infringe any third partyís intellectual property or privacy/publicity right; (b) violate any law or regulation; (c) are defamatory, obscene, harmful to minors or child pornographic; (d) contain any viruses, trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; or (e) are materially false, inaccurate or misleading.
6. Payment Terms.
Payments. The parties shall make the payments described in Exhibit A.
Overdue payments shall accrue interest, at the lesser of 1Ĺ% per month or the
maximum allowable interest under applicable law, from due date until paid, and
the owing party shall pay the owed partyís costs of collection (including
reasonable attorneysí fees).
Taxes. All fees and payments stated herein exclude, and the party making
payment shall pay, any sales, use or other tax related to the partiesí
performance of their obligations or exercise of their rights under this
Agreement, exclusive of taxes based on the receiving partyís net income.
6.3 Audit Rights. A party obligated to make payments hereunder shall keep for 3 years proper records and books of account relating to the computation of such payments. Once every 12 months, the party receiving payment or its designee may inspect such records to verify reports. Any such inspection will be conducted in a manner that does not unreasonably interfere with the inspected partyís business activities. The inspected party shall immediately make any overdue payments disclosed by the audit plus applicable interest. Such inspection shall be at the inspecting partyís expense; however, if the audit reveals overdue payments in excess of 5% of the payments owed to date, the inspected party shall immediately pay the cost of such audit, and the inspecting party may conduct another audit during the same 12 month period.
By Brander. Within 30 days following the end of each month, Brander shall
provide Provider with its standard reports regarding Branderís promotions
hereunder and, if applicable, reports regarding the computation of the fees it
owes under Section 6.
7.2 By Provider. Provider shall provide to Brander the following reports: (a) daily usage reports regarding the Co-Branded Pages describing the number of page impressions, number of Users and such other information as Provider generally provides to its other similar partners, (b) weekly demographic reports regarding the Service containing summary information regarding user demographic profiles, and (c) if applicable, within 30 days following the end of each month, reports regarding the computation of the fees it owes under Section 6.
8. Term and Termination.
Term. This Agreement will become effective on the Effective Date and will
continue in effect for _____ years following the Launch Date.
Termination for Failure to Perform. By providing written notice, a party
may immediately terminate this Agreement: (a) if the other party materially
breaches this Agreement and fails to cure that breach within 15 days after
receiving written notice of the breach, or (b) as provided in Sections 2.6 or
12.7 or Exhibit B. In addition, by providing written notice, Brander may
immediately terminate this Agreement, or at its option immediately suspend its
promotion and other efforts hereunder, in the case of Providerís breach of
Termination for Failure to Launch. By providing written notice, Brander may
terminate this Agreement in its sole discretion if the Launch Date does not
occur within 60 days of the Effective Date (which time period shall be extended
one day for each day of delay attributable solely to Branderís failure to
Termination for Changes. By providing written notice, Brander may terminate
this Agreement in its sole discretion if Providerís business model changes such
that the Service is no longer Providerís primary line of business.
8.5 Effects of Termination. Upon expiration or termination, all licenses granted hereunder shall terminate unless such licenses are expressly stated as surviving. Provider shall promptly remove all Brander Marks and Page Templates from its servers, and Brander shall promptly remove all Provider Marks, Provider Banners and Provider Content from its servers. Sections 1, 4.4, 5, 6.2, 6.3, 8.5, 9, 10, 11 and 12.2 to 12.9, and any obligation to pay any owed but unpaid amounts, shall survive any expiration or termination.
9. No Warranties. EACH PARTY PROVIDES ALL MATERIALS AND SERVICES TO THE OTHER PARTY "AS IS." EACH PARTY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. Each party acknowledges that it has not entered into this Agreement in reliance upon any warranty or representation except those specifically set forth herein. Unless an approval process is specified herein, all deliverables provided by one party to the other shall be deemed accepted (for purposes of the UCC) when delivered.
Limits. NEITHER PARTY SHALL BE LIABLE FOR LOST PROFITS OR SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE), EVEN IF THE PARTIES ARE
AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT IN THE EVENT OF A CLAIM UNDER SECTION 10 OR FAILURE TO PAY UNDER SECTION 6, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY IN AN AMOUNT GREATER THAN THE AMOUNT PROVIDER ACTUALLY PAYS TO BRANDER HEREUNDER.
Compliance with Laws. At its own expense, Provider shall comply with all
applicable laws and regulations regarding providing and operating the Service.
Governing Law. This Agreement will be governed and construed in accordance
with the laws of the State of California without giving effect to conflict of
laws principles. Both parties submit to personal jurisdiction in California and
further agree that any cause of action arising under this Agreement shall be
brought in a court in Santa Clara County, CA.
Publicity. Neither party shall issue any press release or similar publicity
statement regarding this Agreement without the prior approval of both parties
(not to be unreasonably withheld) or as required by law.
Independent Contractors. The parties are independent contractors, and no
agency, partnership, franchise, joint venture or employment relationship is
intended or created by this Agreement. Neither party shall make any warranties
or representations on behalf of the other party.
Assignment. Neither party may assign its rights or delegate its duties
hereunder (except to an affiliated company, or to a successor in interest in
the event of a merger, sale of assets of the business to which this Agreement
is related, or consolidation) without the other partyís prior written consent,
and any purported attempt to do so is null and void.
Severability; Headings. If any provision herein is held to be invalid or
unenforceable for any reason, the remaining provisions will continue in full
force without being impaired or invalidated in any way. The parties agree to
replace any invalid provision with a valid provision that most closely
approximates the intent and economic effect of the invalid provision. Headings
are for reference purposes only and in no way define, limit, construe or
describe the scope or extent of such section.
Force Majeure. Except as otherwise provided, if performance hereunder
(other than payment) is interfered with by any condition beyond a partyís
reasonable control, the affected party shall be excused from such performance
to the extent of such condition. However, if a force majeure detrimentally
affects a partyís performance of a material covenant hereunder for 14 days or
more, the other party can terminate this Agreement. Each party acknowledges
that website operations may be affected by numerous factors outside of a
Notice. Any notice under this Agreement will be in writing and delivered by
personal delivery, overnight courier, confirmed facsimile, confirmed email, or
certified or registered mail, return receipt requested, and will be deemed
given upon personal delivery, 1 day after deposit with an overnight courier, 5
days after deposit in the mail, or upon confirmation of receipt of facsimile or
email. Notices will be sent to a party at its address set forth above or such
other address as that party may specify in writing pursuant to this Section.
12.9 Entire Agreement; Waiver. This Agreement sets forth the entire understanding and agreement of the parties, and supersedes any and all oral or written agreements or understandings between the parties, as to the subject matter of the Agreement. This Agreement may be changed only by a writing signed by both parties. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
Description of the Service:
Description of Provider Content:
Description of Provider Content
Host Server for Each Element of Content
Quantity Provided of Such Content
Frequency of Updates of Such Content
All Provider Content delivered to Brander shall be delivered in the following format and via the following protocol (DESCRIBE): _____________________.
Domain Name for the Co-Branded Pages: [provider.brander.com]
Brander Pre-Launch Deliverables: In addition to developing the Page Templates, Brander shall provide to Provider a media and promotional plan and a plan for doing the production/design services related to the Serviceís integration into Brander Site.
Branderís Promotions: [Describe]
Notwithstanding anything to the contrary herein, if Brander promises to deliver a minimum number of impressions or other promotions during a specified time period and fails to do so, Branderís sole and exclusive obligation in such circumstance shall be to continue performing the promotion until it delivers the total number of required impressions.
Brander may redesign or modify the organization, structure or "look and feel" of Brander Site at any time without notice. In the event such modifications affect the placement of such promotions, Brander shall notify Provider and shall work with Provider to display such promotions in comparable places on Brander Site.
Providerís Promotions: [Describe]
A. †††††† Service Availability. The Service shall be publicly available to Users a minimum of 90% of the time during any 24 hour period, 95% of the time during any 7 day period, and 98% of the time during any 30 day period; and there will be no period of interruption in such public accessibility that exceeds 1 continuous hour.
B. †††††† Response Time. The mean response time for server response to access the Service shall not exceed more than 6 seconds during any 1 hour period.
C. †††††† Bandwidth. The bandwidth representing the Service serversí connection to the Internet shall be operating at peak capacity no more than 10 minutes in any 24 hour period and at greater than 50% of peak capacity no more than 60 minutes of any 24 hour period.
D. †††††† Security. Provider shall prevent unauthorized access to restricted areas of its servers and any databases or other sensitive material generated from or used in conjunction with the Service. In addition, Provider shall immediately notify Brander of any known security breaches or holes in the Service or Co-Branded Pages.
F. ††††††† Browser Compatibility. The Service shall initially be compatible with Netscape Navigator 3.X and 4.X and Microsoft Internet Explorer 3.X and 4.X. Brander may unilaterally add additional browsers or versions that the Service must be compatible with, effective after 30 days advance written notice, if Brander certifies that it believes such additional browsers or versions are used by more than 5% of its Users. Users shall not require any plug-ins in order to access any Service functionality.
G. †††††† Data Authentication. Provider shall use commercially reasonable efforts, no less than industry-standard, to authenticate the origin of all information provided by Brander as having come from Brander.
H. †††††† Customer Support. Provider shall auto-respond to all customer and technical support inquiries from Users within 10 minutes of the receipt of inquiry. Provider shall manually respond to all such inquiries within 24 hours. Provider shall resolve all such inquiries within 72 hours or shall notify Brander that it cannot do so, in which case Brander at its sole discretion may intervene to assist in resolving the inquiry.
I. †††††††† Inapplicability of Force Majeure. The terms of this exhibit apply regardless of the cause of the nonconformance, even if the nonconformance was beyond the control of Provider, unless the failure to perform is attributable solely to Branderís failure to perform its obligations under this Agreement or the failure arises due to a factor that affects the Internet throughout the United States.
J. ††††††† Remedies. In addition to other applicable remedies, Brander may immediately terminate this Agreement without a further cure period if: (a) any breach of this Exhibit lasts 2 consecutive specified time periods, or if no time period for measurement is specified, 10 days, (b) the same provision is breached on two separate occasions (even if the first was cured), or (c) there are 2 incidents that cause independent breaches of separate provisions (even if cured) within any 6 month period.
Automatic Partner Registration
To maintain a consistent user experience, any Brander member should not need to separately log in to the Service or the Co-Branded Pages. The only login or registration that should be required to access the Service or the Co-Branded Pages is Brander Siteís login or registration. Because Provider hosts the Service and the Co-Branded Pages, Brander will pass to Provider information about each User accessing the Service or the Co-Branded Pages as described below:
Additional notes on account creation: