| Linking
Agreement
1. License. earthsphere.com, Inc. ("earthsphere.com")
hereby grants to you, and you hereby accept, a non-exclusive,
non-transferable license to display (A) a Link (as
defined below) to the home page of earthsphere.com
and/or (B) the Search Box (as defined below) which
shall link to the result page of earthsphere.com,
each on the World Wide Web site owned or operated
by you (the "Linking Site"). Such
Link shall consist solely of the earthsphere.com
logo (the "Logo") as specified by
earthsphere.com from time to time. Such Quote
Search Box shall consist of a stock quote search box
provided to you by earthsphere.com, which includes the Logo.
You may not modify, edit or in any way alter the Logo
or Search Box in any manner. Nothing in this Agreement
shall grant to you any rights in the Logo or the Search
Box, the earthsphere.com site or any other
intellectual property of earthsphere.com or
any of its affiliates, other than as expressly set
forth herein. For purposes of this Agreement "Link"
shall mean a hypertext link located on the Linking
Site which shall link directly to the home page of
earthsphere.com located at www.earthsphere.com
(as such URL may be modified from time to time), and
"Search Box" shall mean a box containing
a Logo and a hypertext link which shall link directly
to the result page of earthsphere.com located
at a URL that will be provided to you from time to
time. You shall implement the Link and the Search
Box on the Linking Site solely in accordance with
this Agreement.
2. Guidelines. You agree to comply with the
following guidelines:
(a) You may use only the Logo and the Quote Search
Box in the specific format provided to you by earthsphere.com,
as such Logo, Quote Search Box and format may be modified
and provided to you by earthsphere.com from time to time.
Such Logo, Quote Search Box and format shall be provided
to you after you agree to be bound by the terms and
conditions of this Agreement by signing this Agreement
on the bottom of this page and faxing back this Agreement
to earthsphere.com.
(b) You may only use the Logo and/or the Quote Search
Box on the Linking Site as set forth herein, and not
in any other manner or in any other media. The Logo
must always be an active link to the homepage of the
earthsphere.com site, and the Quote Search Box must always
be an active link to the stock quote result page of
earthsphere.com located at the URL that will be provided
to you. The Logo and the Quote Search Box may not
actively link to any other page. "Deep linking"
past the earthsphere.com homepage is strictly prohibited.
Any Links must display such homepage or stock quote
result page exactly as it has been created by earthsphere.com;
no "framing" or other alterations or additions
are permitted.
(c) The Logo and Quote Search Box may be used only
on web pages that make accurate references to earthsphere.com
or its products or services, and must be displayed
adjacent to the reference or at the bottom of the
same page. Your web page title and other trademarks
and logos must appear at least as prominent as the
Logo. You may not display the Logo or Quote Search
Box in any manner that implies sponsorship, endorsement,
or license by earthsphere.com, Cearthsphere.com or earthsphere.com.
(d) The Logo and/or Quote Search Box must appear
by themselves, with a minimum of 10 pixels of spacing
between each side of the Logo, the Quote Search Box
and the other graphic or textual elements on your
page. Neither the Logo nor the Quote Search Box may
be used as a feature or design element of any other
logo.
(e) You may not alter the Logo, the Quote Search
Box or any elements thereof in any manner, including
size, proportions, colors, etc., or animate, morph
or otherwise distort their perspective or appearance.
(f) You may not use the Logo or the Quote Search
Box on any site that disparages earthsphere.com or
any of its affiliates or their respective products
or services.
3. Representations and Warranties. You hereby
represent and warrant to earthsphere.com that you (a) have
the right, power and authority to enter into this
Agreement and perform your obligations as set forth
herein, (b) are under no obligation or restriction,
nor will you assume any such obligation or restriction,
that does or would interfere or conflict with your
obligations under this Agreement, (c) the information
provided above is true, correct and complete, and
(d) understand and agree that Cearthsphere.com and the earthsphere.com Peacock
are a registered trademark of earthsphere.com, and that all rights
in and to the Logo not granted herein are reserved
by earthsphere.com.
4. Covenants. You hereby covenant and agree
with earthsphere.com that (a) you shall comply with earthsphere.com’s
Privacy Policy and Usage Agreement, each as in effect
from time to time, (b) the Linking Site shall not
be operated in violation of any applicable federal,
state or local law, rule or regulation, (c) the content
included on the Linking Site, as well as the operation
of the Linking Site, will not violate or infringe
the copyright, trademark, trade name, patent, literary,
intellectual, artistic or dramatic right, right of
publicity or privacy or any other right of any entity
or person or contain any material which is libelous,
slanderous or obscene, (d) if any of the information
provided above changes at any time, you will notify
earthsphere.com as specified below in Section 10, and (e)
the Linking Site shall not publish, link to, sell
or otherwise distribute Adult Content (as defined
below), and you will remove any such Adult Content
as soon as you become aware, or are made aware, of
such Adult Content. For purposes of this Agreement,
"Adult Content" means any material,
including textual, audio or video material, which
is violent or pornographic or which contains nudity,
explicit violent or sexual material or depictions
of violent or sexual acts beyond those normally broadcast
on the earthsphere.com television network.
5. Use of Data. You shall not have the right
to use, publish, share, sell or otherwise distribute
any data collected with respect to users of the Linking
Site which relate to (i) their clicking on a Link
or the Quote Search Box, (ii) their use of earthsphere.com,
or (iii) any other information deemed proprietary
by earthsphere.com.
6. Disclaimer of Warranties. earthsphere.com HEREBY
DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED
OR STATUTORY, WITH RESPECT TO THE LOGO, THE QUOTE
SEARCH BOX, THE earthsphere.com SITE OR OTHERWISE, INCLUDING
WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF INFRINGEMENT,
TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. earthsphere.com obtains the content, including stock
quotes, appearing on the earthsphere.com Site from sources
that it considers to be reliable; however, neither
earthsphere.com nor any of its vendors warrants the accuracy
or completeness of such content. Neither earthsphere.com
nor any of its vendors shall be deemed to be providing
investment management, supervision or advisory services
to you or any of your users.
7. Limitation of Liability. IN NO EVENT SHALL
earthsphere.com BE LIABLE FOR ANY DAMANGES OF ANY KIND, INCLUDING
WITHOUT LIMITATION ANY DIRECT, INDIRECT, CONSEQUENTIAL,
SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, OR FOR ANY
LOST PROFITS, SAVINGS, DATA OR USE, HOWEVER CAUSED
AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE
OR STRICT LIABILITY), ARISING OUT OF THIS AGREEMENT.
BOTH PARTIES ACKNOWLEDGE AND AGREE THAT THE LACK OF
A REQUIREMENT OF ANY MONETARY PAYMENT HEREUNDER IS
BASED IN PART UPON THESE LIMITATIONS, AND FURTHER
AGREE THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING
ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Without limiting the foregoing, earthsphere.com and its vendors
shall have no responsibility for any monetary damages
under any contract, tort or other legal or equitable
theory, regardless of the form of the action. Such
limit shall apply whether or not earthsphere.com or its vendors
have been advised of the possibility of such damages.
8. Indemnity. You shall indemnify and hold
harmless earthsphere.com, its affiliates, and their respective
officers, directors, members, employees and agents
from and against any and all claims, actions, suits
or proceedings, as well as any and all losses, liabilities,
damages, costs and expenses (including reasonable
attorneys fees) arising out of or accruing from (a)
any misrepresentation or breach of your representations
and warranties set forth in this Agreement; and (b)
any non-compliance by you with any covenants, agreements
or undertakings contained in or made pursuant to this
Agreement.
9. Term and Termination.
(a) The term of this Agreement shall begin on the
date you agree to be bound by the terms hereof by
signing this agreement at the bottom of the page a
faxing this Agreement to earthsphere.com and shall continue
on a month to month basis until terminated as provided
herein.
(b) earthsphere.com may terminate this Agreement at any
time upon notice to you.
(c) You may terminate this Agreement at any time
upon thirty (30) days prior written notice to earthsphere.com.
(d) This Agreement shall terminate automatically
and simultaneously with the time you are in violation
of this Agreement.
(e) Whether or not earthsphere.com terminates this Agreement
as provided herein, earthsphere.com reserves the right to
take action against any use that does not conform
to this Agreement, infringes any intellectual property
or other right of earthsphere.com, or violates applicable law.
(f) Immediately upon the termination of this Agreement,
you shall disconnect all links to the earthsphere.com site
and cease all use of the Logo. The provisions of sections
3, 4, 5, 6, 7, 8, 9(f), 11 and 13 hereof shall survive
the termination of this Agreement.
10. Notices. Any notice required or permitted
by this Agreement shall be in writing and shall be
deemed sufficient upon receipt, when delivered personally
or by courier, overnight delivery service, confirmed
facsimile or confirmed e-mail, or forty-eight (48)
hours after being deposited in the regular mail as
certified or registered mail with postage prepaid.
Notices to you shall be sent to the address specified
above by you. Notices to earthsphere.com should be sent to
the following address:
earthsphere.com
6738 Eastridge Drive, Suite 107
Dallas, TX 75231
Attention: Linking Policy Coordinator
Fax: (801) 665-0121
Notices to you will be sent to the address specified
on the cover page of this Agreement. You may change
your address for notices by giving us written notice
in the manner set forth above. earthsphere.com may change
its address for notices by updating this page. In
the event you have not indicated an address, or your
address is no longer current, earthsphere.com may use (i)
the address indicated for the owner of the URL of
the Linking Site in the database maintained by Network
Solutions, Inc., or any other applicable domain registration
authority, or (ii) the e-mail address of the webmaster
of the Linking Site, or any other similar e-mail address
specified on the Linking Site.
11. Governing Law: Jurisdiction. This Agreement
shall be governed by and construed in accordance with
the laws of the State of Texas, without regard to
the conflicts of laws provisions thereof. The parties
hereby submit to the exclusive jurisdiction of the
federal and state courts located in the County of
Texas, and any action or suit under this Agreement
shall only be brought by the parties in any federal
or state court with appropriate jurisdiction over
the subject matter established or settled in the County
of Dallas. The parties shall not raise in connection
herewith, and hereby waive, trial by jury and/or other
defenses based upon the venue, the inconvenience of
forum, the lack of personal jurisdiction, the sufficiency
of service of process or the like in any action or
suit brought pursuant to this Agreement.
12. Amendment. earthsphere.com reserves the right
in its sole discretion to amend this Agreement by
providing you with prior written notice thereof. If
you do not wish to be bound by any such amendments,
you many terminate this agreement within thirty (30)
days of receiving notice of such amendment by providing
written notice of termination to earthsphere.com.
13. Miscellaneous. If either party employs
attorneys to enforce any rights arising out of or
relating to this Agreement, the prevailing party shall
be entitled to recover its reasonable attorneys' fees,
costs and other expenses. This Agreement constitutes
the entire agreement between the parties and supersedes
all oral or written agreements and understandings
made and entered into by the parties prior to the
date hereof. You may not assign this Agreement in
whole or in without the prior written consent of earthsphere.com.
Subject to the foregoing limitation, this Agreement
shall be binding upon and inure to the benefit of
the parties hereto, their respective heirs, personal
representatives, successors and assigns. If any provision
of this Agreement shall be held by a court of competent
jurisdiction to be illegal, invalid or unenforceable,
the remaining provisions shall remain in full force
and effect. No waiver of any breach of any provision
of this Agreement shall constitute a waiver of any
prior, concurrent or subsequent breach of the same
or any other provisions hereof, and no waiver shall
be effective unless made in writing and signed by
an authorized representative of the waiving party.
This Agreement shall not be construed or deemed to
create any partnership, joint venture, agency, franchise,
or other form of agreement or relationship than as
expressly set forth herein. |
