This is an Agreement between WebMD, LLC ("WebMD"), and "Linking Party" as set forth in the Registration Page above, the individual or entity who agrees and accepts the following terms and conditions of this Agreement.
a. "Linking Party" means the responsible party of the website linking to WebMD at the URL designated by Homepage URL in the Registration Information form above.
b. "Registration Page" means the webpage on which the Linking Party entered the identifiable information required by WebMD to complete this Linking Agreement, which page and the information contained therein is incorporated herein by reference.
c. WebMD Website" means the website of WebMD currently located at http://www.webmd.com.
2. LICENSE GRANT AND RESTRICTIONS
WebMD hereby grants to Linking Party a nonexclusive, nontransferable, royalty-free, personal right to link to any URL(s) on WebMD solely for the purpose of linking. Viewing the contents of WebMD's Website while it is framed by information from another site ("Framing") is strictly prohibited. All rights not expressly granted herein are reserved by WebMD. The license granted herein is personal to Linking Party, and such Linking Party shall not assign, transfer, or sublicense this Agreement (or any right granted herein) in any manner without the prior written consent of WebMD.
3. OWNERSHIP, IDENTIFICATION & USE
Linking Party acknowledges that WebMD retains all right, title, and interest in and to the "WebMD" trademark and all associated goodwill. Linking Party represents and warrants that it will use the WebMD Materials solely as provided in this Agreement, and will not use the WebMD Materials in any manner that will diminish or otherwise damage WebMD's goodwill in the WebMD Materials. Linking Party agrees that all use of the WebMD Materials will inure to the benefit of WebMD. Linking Party shall promptly notify WebMD of any suspected infringement of or challenge to the WebMD Materials. WebMD shall have the sole right to, and in its sole discretion may commence, prosecute, or defend, and control any action concerning the WebMD Materials. As between WebMD and Linking Party, all right, title and interest in and to all trademarks, copyrights, design, look and feel, including without limitation the "WebMD" trademark, content, graphics and other materials of any type appearing on or in the WebMD Website and all technology related thereto (the "WebMD Materials") are owned by WebMD.
4. QUALITY CONTROL
Linking Party agrees to maintain the quality of the Linking Party Website such that its content and activities conducted on such website remain current, in good taste, compliant with all applicable laws, rules and regulations and appropriate for users of the WebMD Website. Linking Party will not violate or infringe any right of any third party in connection with the operation of the Linking Party Website.
5. UPDATES AND CONTACT FROM WEBMD.
From time to time, WebMD may modify, update or otherwise change URL's and/or the content and the way it is displayed on its website without prior notice to Linking Party. WebMD may contact Linking Party from time to time via email or other means for the purpose of providing relevant information about linking to WebMD or this Agreement.
6. INDEMNIFICATION FROM LINKING PARTY
Linking Party agrees to indemnify, defend (at WebMD's option) and hold WebMD and its affiliates, and their respective officers, directors, agents and employees, harmless from and against any and all liability, damages, losses, expenses (including attorneys' fees and expenses and allocable costs of in-house counsel), claims, demands, suits, fines or judgments, and costs and expenses incidental thereto, which may be suffered by, accrued against, charged to or recoverable from WebMD or any of its affiliates, or any of their respective officers, directors, agents or employees, arising out of or resulting from: (i) a claim that the Linking Party Website, or any other materials (tangible or intangible) provided by Linking Party to WebMD hereunder or any portion or use thereof, infringes or misappropriates any patent, copyright, trade secret, trademark or other proprietary right; or (ii) claims regarding the performance, nonperformance, or defect in performance of the Linking Party Website or items found on or through such website, or any statement, misstatement, representation or misrepresentation made by Linking Party.
7. LIMITATION OF LIABILITY
IN NO EVENT WILL WEBMD BE LIABLE FOR ANY INDIRECT DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE THE WEBMD WEBSITE WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WEBMD IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WEBMD WILL BE LIABLE TO LINKING PARTY ONLY FOR ACTUAL DIRECT DAMAGES UP TO US$1,000.00.
8. DISCLAIMER OF WARRANTY
WEBMD'S WEBSITE AND WEBMD MATERIALS ARE PROVIDED ON AN 'AS IS' BASIS WITHOUT ANY WARRANTIES OF ANY KIND. WEBMD, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY (I) OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES' RIGHTS, OR FITNESS FOR PARTICULAR PURPOSE OR (II) ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. WEBMD MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, CURRENTNESS OR TIMELINESS OF THE CONTENT, SERVICES, TEXT, GRAPHICS, LINKS, OR COMMUNICATIONS PROVIDED ON OR THROUGH USE OF THE WEBMD WEBSITE OR WEBMD. WEBMD DOES NOT MAKE ANY WARRANTY THAT THE CONTENT CONTAINED ON THE WEBMD WEBSITE SATISFIES GOVERNMENT REGULATIONS REQUIRING DISCLOSURE OF INFORMATION ON PRESCRIPTION DRUG PRODUCTS.
9. TERM AND TERMINATION
a. This Agreement shall be effective until terminated in accordance with this Section 9. Subject to Section 9(b) below, WebMD may terminate this Agreement immediately upon written notice if the other party has failed to perform or abide by any of its obligations under this Agreement unless such default or breach has been cured within fifteen (15) days after receipt of such notice. Either party may terminate this Agreement for any reason upon fifteen (15) days written notice to the other party as set forth in Section 10 below.
b. WebMD may, in its absolute discretion, immediately terminate this Agreement if it determines that Linking Party or Linking Party's Website would or would tend to: (i) violate or infringe the copyright, trademark or other rights of third parties, or any other law, court order, governmental regulation or other ruling of any governmental agency or entity; (ii) subject WebMD to any liability; or (iii) jeopardize WebMD's ability to protect its rights or its property in the manner it deems appropriate.
c. In the event this Agreement terminates, Linking Party must immediately cease all use thereof and cease all linking to the WebMD Website. The provisions of Sections 3, 5, 6, 7, 8(c), 9 and 10 shall survive any expiration or termination of this Agreement.
All notices in connection with this Agreement shall be addressed as stated below and shall be deemed given on the day they are: (i) deposited in the U.S.A. mails, postage prepaid, certified or registered, return receipt requested; or (ii) sent by air express courier, charges prepaid or (iii) via email.
WebMD email: firstname.lastname@example.org.
1175 Peachtree S
Linking Party: Information listed in the Registration Page.
a. Entire Agreement. . This Agreement contains the entire agreement of the parties with respect to the subject matter hereof, and shall supersede and merge all prior and contemporaneous communications. WebMD reserves the right to modify the terms and conditions of this Agreement in its sole discretion at any time by posting a revised version or by otherwise making such revised terms available for review to Linking Party. Any such modifications will supersede all prior versions after the revised version has been posted or otherwise made available as described above. The continued Linking to the WebMD Website after posting or availability constitutes Linking Party's agreement to the revision, and WebMD shall not be obligated to provide a notice under Section 10 for such revision to be effective.
b. Governing Law. This Agreement will be governed by the laws of the State of New York, excluding its conflict of laws provisions. The parties agree that the exclusive jurisdiction and venue for any action relating to this Agreement will be a federal or state court sitting in New York, New York, and the parties hereby consent to such jurisdiction and venue.
c. No Entitlement. Linking Party is not entitled to share in and has no claim to any subscription, advertising or other revenues WebMD may realize in connection with the WebMD Website.
d. Equitable Relief. Linking Party acknowledges that a breach by it of this Agreement may cause WebMD irreparable damage that cannot be remedied in monetary damages in an action of law. In the event of any breach that could cause irreparable harm to WebMD, or cause some impairment or dilution of its reputation, WebMD shall be entitled to an immediate injunction, in addition to any other legal or equitable remedies.
e. Miscellaneous. 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 provision hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. 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. Neither this Agreement, nor any terms and conditions contained herein, shall be construed as creating a partnership, joint venture or agency relationship or as granting a franchise. If either party employs attorneys to enforce any rights arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees, costs, and other expenses.