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LINK LICENSE AGREEMENT
BY COMPLETING THE LINK
APPLICATION AND CLICKING ON THE “I AGREE” BUTTON PROVIDED BELOW, YOU
(“LICENSEE”) AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT IN
CONNECTION WITH PROVIDING A LINK FROM YOUR WEBSITE TO THE [PEDIATRIX.COM]
WEBSITE. IF YOU DO NOT AGREE TO THE TERMS HEREOF, YOU MAY NOT LINK TO THE
PEDIATRIX.COM WEBSITE.
1. Link License. Pediatrix.com hereby grants to
Licensee, a non exclusive, revocable, non transferable right, subject to the
terms and conditions of this Agreement, to provide a hypertext link to the
Pediatrix.com website solely on Licensee’s Website specified in the Link
Application submitted below, for access to the Pediatrix.com website by
authorized users. Except as specifically authorized herein, the
Pediatrix.com website may not be accessed (whether by linking or otherwise),
used, displayed (whether by framing or otherwise) or otherwise exploited on any
other website, including mirror sites, or via any software system other than
Licensee’s Website. Except as set forth herein, no other use, copying,
dissemination, publication, display or distribution in any form of the
Pediatrix.com website or any element thereof, including but not limited to
content displayed on the Pediatrix.com website, in whole or in part, by Licensee
is permitted without the prior written consent of Pediatrix.com. No
sublicensing by Licensee of any of the rights granted hereunder shall be
permitted without the prior written consent of Pediatrix.com, which consent may
be granted or withheld by Pediatrix.com as it determines in its sole and
absolute discretion.
2. Form
of Link; User Registration Requirements. The link licensed hereunder shall
be included only on Licensee’s user display screen on Licensee’s Website.
The link licensed hereunder shall, upon each use, cause the Pediatrix.com
website home page to be displayed to users in maximized form with the applicable
Pediatrix.com uniform resource locator address appearing in the address bar of
said screen, so as to clearly indicate to users that said screen is part of the
Pediatrix.com website and is not within Licensee’s Website. Licensee shall
ensure that its users understand that they need to register themselves as
authorized users of the Pediatrix.com website, and that such registration will
not be completed or obtained by Licensee automatically by virtue of being an
authorized user of Licensee’s Website.
3. Limitations and Restrictions. Licensee will:
(a) operate Licensee’s Website in accordance with all applicable laws; (b)
display the Pediatrix.com website screens in the exact form in which they are
received by Licensee via the link licensed hereunder, and shall not modify or
edit any part of the same without Pediatrix.com’s prior written consent; (c)
ensure that neither the Pediatrix.com website nor any element thereof is changed
or distorted through its use under this Agreement; and (d) comply with any other
reasonable limitations or restrictions imposed by Pediatrix.com on the use,
display or distribution of Pediatrix.com website or any element thereof.
Licensee shall not view or store any Pediatrix.com website user login
information or passwords and shall not view, store, parse, modify, aggregate,
distribute, redisplay or otherwise use any of the content or information
provided by Pediatrix.com. Licensee shall not have or assume any
responsibility or control with respect to the content provided by the link
licensed hereunder. Licensee shall not collect any statistics regarding
use of the link licensed hereunder. Licensee agrees that all data or other
content provided from the Pediatrix.com website shall be delivered directly from
Pediatrix.com to Licensee’s authorized users without intervention by
Licensee. For all Pediatrix.com usage not covered by this Agreement,
Pediatrix.com’s standard restrictions and limitations, as set forth in the
Pediatrix.com website Terms of Use as then in effect, shall govern.
4. Withdrawal of the
Pediatrix.com Website. Pediatrix.com may cancel the provision hereunder of all
or part of the Pediatrix.com website if it: (a) becomes the subject of a claim
that the Pediatrix.com website infringes the ownership rights of any third party
or that Pediatrix.com otherwise does not have the right to permit others to use
such Pediatrix.com website; (b) depends on an agreement between Pediatrix.com
and a third party, and that agreement is modified or terminated for any reason
or breached by the third party and as a result Pediatrix.com is unable to
continue to provide all or part of the Pediatrix.com website upon terms
reasonably acceptable to Pediatrix.com; or (c) becomes illegal or contrary to
any applicable law. If this section applies, Pediatrix.com’s only
obligation to Licensee will be to make its best efforts to provide Licensee with
notice of any of the foregoing provisions.
5. Compliance. Licensee will ensure that
Licensee’s Website is designed and operates in a manner that allows Licensee and
users of Licensee’s Website to comply with the provisions of this Agreement as
well as all applicable laws.
6. Copyright Notices and Branding. Licensee will not
remove, conceal or obliterate any copyright or other proprietary notice or any
credit line or date line included in the Pediatrix.com website or any element
thereof, including but not limited to all Pediatrix.com website screens
displayed via the link licensed hereunder. Except as provided above,
neither party may use the other party’s marks without the other party’s prior
written approval. Licensee may not make any statement (whether oral or in
writing) in any external advertising, marketing or promotion materials regarding
Pediatrix.com or the Pediatrix.com website without the prior written consent of
Pediatrix.com. To the extent technologically feasible, Licensee shall not permit
any third party’s website or online service to frame Licensee’s Website such
that the link licensed hereunder or any Pediatrix.com website content appears on
the same screen as such third party’s website or online service. To the
extent that it is not technologically feasible to prevent such framing, upon
Pediatrix.com request, Licensee shall cooperate with Pediatrix.com in causing
such third party to cease and desist from such framing.
7. Reservation of Rights.
Licensee acknowledges that, as between Pediatrix.com and Licensee, Pediatrix.com
exclusively owns all intellectual property rights in and to the Pediatrix.com
website. All rights with respect to the Pediatrix.com website, whether now
existing or which may hereafter come into existence, which are not expressly
granted to Licensee herein, are reserved to Pediatrix.com. Licensee will
promptly notify Pediatrix.com of any unauthorized access, use, reproduction,
display, dissemination or other exploitation of the Pediatrix.com website, or
any element thereof, or any infringement or threatened infringement of
Pediatrix.com’ marks or any other Pediatrix.com intellectual property of which
it becomes aware, and will provide reasonable assistance to Pediatrix.com in
connection therewith.
8. Limitation of Liability. Although
Pediatrix.com makes reasonable efforts to ensure the accuracy and reliability of
the content and operation of the Pediatrix.com website, Licensee acknowledges
that Pediatrix.com and its officers, directors, employees, and information
providers will not be held liable for any claims, losses, expenses, damages or
any other liability suffered or incurred by Licensee, users of Licensee’s
website or any other third party arising out of: (a) any faults, interruptions
or delays in the Pediatrix.com website; (b) any use of or reliance on the
Pediatrix.com website by any third party; or (c) any inaccuracies, errors or
omissions in the Pediatrix.com website or content, however such faults,
interruptions, delays, inaccuracies, errors or omissions arise.
Neither party will be liable for any
failure to perform any obligation (other than payment obligations) hereunder, or
from any delay in the performance thereof, due to causes beyond its control,
including industrial disputes of whatever nature, acts of God, public enemies or
terrorists, acts of government, failure of telecommunications, fires or other
casualty. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT,
PEDIATRIX.COM MAKES NO REPRESENTATIONS OR WARRANTIES AS TO MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR ANY OTHER REPRESENTATIONS
OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, IN LAW OR IN FACT, ORAL OR WRITTEN,
AND ANY SUCH IMPLIED WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED, WITH RESPECT TO
THE PEDIATRIX.COM WEBSITE AND/OR USE OF SAME. LICENSEE HEREBY ACKNOWLEDGES
THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY BY PEDIATRIX.COM
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT. Under no circumstances
will Pediatrix.com or its officers, directors, employees and third party
providers be liable for any indirect, incidental, special or consequential
damages with respect to its party’s performance or nonperformance under this
Agreement or any claims relating to this Agreement or access or use of the
Pediatrix.com website, including but not limited to lost profits, regardless of
whether such damages could have been foreseen or prevented by
Pediatrix.com. Notwithstanding any provision contained herein to the
contrary, in no event will the aggregate liability of Pediatrix.com or its
officers, directors and employees to Licensee or to any third party for damages,
direct or otherwise, arising out of or in connection with this Agreement exceed
the total amount of fees, if any, actually paid to Pediatrix.com by users of
Licensee’s Website involved in the claim giving rise to such liability, who
become registered users of the Pediatrix.com website during the six (6) months
immediately prior to the date on which the alleged damages were claimed to have
been incurred, regardless of the cause or form of action.
9. Representations and
Warranties. Each of Licensee and Pediatrix.com hereby represents and
warrants to the other, as of the date hereof, that: (a) it is duly organized and
validly existing under the laws of its jurisdiction of organization and has all
powers and all material governmental licenses, authorizations, permits, consents
and approvals required to carry on its business as now conducted; (b) the
execution, delivery and performance by it of this Agreement are within its
powers and have been duly authorized by all necessary action on its part; (c)
this Agreement constitutes a valid and binding agreement of it enforceable
against it in accordance with its terms, except as (i) the enforceability hereof
and thereof may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting the enforcement of creditors’ rights generally and (ii)
the availability of equitable remedies may be limited by equitable principles of
general applicability; (d) the execution, delivery and performance of this
Agreement by it require no action by or in respect of, or filing with, any
governmental body, agency or official; (e) the execution, delivery and
performance of this Agreement by it do not and will not (i) violate its
organizational documents, (ii) violate any applicable law, judgment, injunction,
order or decree, or (iii) require any notice or consent or other action by any
third party under, constitute a default under, or give rise to any right of
termination, cancellation or acceleration of any right or obligation of it or to
a loss of any benefit to which it is entitled under, any agreement or other
instrument binding upon it or any license, franchise, permit or other similar
authorization held by it.
10. Indemnification. Licensee will indemnify and
hold Pediatrix.com and its officers, directors and employees harmless from and
against any and all damages relating to (a) Licensee’s Website or any other
products or services of Licensee, or the use thereof by third parties, including
but not limited to infringement of any third party’s intellectual property
rights; (b) any misrepresentation or breach of representation or warranty of
Licensee contained herein; or (c) any breach of any covenant or agreement to be
performed by Licensee hereunder.
11. Termination. Either party may terminate this
Agreement immediately upon advance written notice to the other party regardless
of the reason for termination. Promptly upon termination of this Agreement
for any reason, Licensee will remove the link licensed hereunder and all
references to Pediatrix.com, the Pediatrix.com website from Licensee’s Website
and anywhere else that Licensee has included such link pursuant to this
Agreement, and Licensee shall have no further right to refer to or provide
access to the Pediatrix.com website.
12. General. Nothing will be deemed to limit or
restrict Pediatrix.com from entering into similar agreements with any third
party. Neither party will make or issue any external press statement
regarding the terms of this Agreement unless: (a) it has received the
express written consent of the other party, which will not be unreasonably
withheld; or (b) it is required to do so by law. This Agreement
constitutes the entire agreement between the parties regarding the subject
matter hereof and supercedes any prior understanding or agreement, written or
oral, between the parties with respect to same. This Agreement shall be
governed by and construed in accordance with the laws of the State of Florida,
without application of conflicts of laws principles. The parties hereby
irrevocably consent to the exclusive jurisdiction of the state and federal
courts located in Broward County, Florida for the purpose of any action or
proceeding brought by either of them in connection with this Agreement.
All notices, requests and other communications to any party hereunder will be in
writing (including facsimile transmission or similar writing) and will be given
to Licensee at its address set forth on the Link Application and if to
Pediatrix.com, at the address specified on the Pediatrix.com website. This
Agreement will be binding upon and inure to the benefit of the parties, their
respective heirs, personal representatives, successors and permitted
assigns. 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
party. 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. The parties are
independent contractors and have no authority to act on each other’s
behalf. This Agreement may not be amended, modified or superseded, unless
expressly agreed to in writing by both parties. No provision of this
Agreement may be waived except by an instrument in writing executed by the party
against whom the waiver is to be effective. The failure of either party at
any time or times to require full performance of any provision hereof will in no
manner affect the right of such party at a later time to enforce the same. If
any provision or term of this Agreement, not being of a fundamental nature, is
held to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remainder of this Agreement will not be affected.
The provisions of Sections 7-12 of this Agreement will survive the termination
of this Agreement.
MIA-FS1\1721277v01
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