Archive:Wikipedia Zero Template Agreement

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This Partnership Agreement (this “Agreement”) is entered into and effective as of [DATE] (the “Effective Date”) by and between [PARTNER], with a registered office as provided in Exhibit A (“Company” or “Partner”), and WIKIMEDIA FOUNDATION, Inc., a non-profit entity having its registered office at 149 New Montgomery Street, San Francisco, CA 94105 (“Wikimedia”).

1. Definitions

"Partner Trademarks" mean the marks provided by Partner for use under this Agreement.

“Territory” means [territory], and any other area mutually agreed upon during the Term.

“Wikimedia Service” means Wikipedia, Wiktionary, Wikiquote, Wikibooks, Wikisource, Wikispecies, Wikinews, Wikiversity, Wikivoyage, Wikimedia Commons, Wikidata, MediaWiki, Meta-Wiki, and Incubator (collectively, "Wikimedia site") in all languages delivered through channels including but not limited to: mobile version of the Wikimedia sites (including m.wikipedia.org); desktop version of the Wikimedia sites; Wikipedia Android app; Wikipedia iOS app.

“Wikipedia Zero” means a service to access Wikimedia Services that does not result in a data charge to the user.

2. Scope of agreement

2.1. General

The Parties have agreed to enter into this Agreement where Partner will promote and distribute Wikipedia Zero. During the Term, Partner will provide free access to Wikimedia Services for Partner’s subscribers.

2.2. Scope & launch

Both Parties wish to make the Wikimedia Services available free of charge to as many of Partner’s subscribers as possible.

Partner will actively promote and distribute the Wikimedia Service to its subscribers.

The parties agree to use their best efforts to launch Wikipedia Zero within 6 weeks of entering into this Agreement.

3. Obligations

3.1. During the Term, Partner agrees to:

3.1.1. Provide free access to Wikimedia Services to its subscribers.

3.1.2. Promote and market Wikipedia Zero in the Territory.

3.1.3. Provide Wikimedia with the range of IP addresses that Partner uses to access Wikimedia Services.

3.1.4. Timely update the zero rated IP addresses in its billing system based on updates from Wikimedia.

3.2. During the term, Wikimedia agrees to:

3.2.1. Provide Partner with all IP-addresses that shall be zero rated in regards to Wikimedia Services, which means that such addresses shall not result in data charges to users. Wikimedia may update the IP-addresses to be zero rated from time to time.

3.2.2. Make reasonable efforts to operate and maintain Wikipedia Zero under this Agreement for access and joint promotion through Partner mobile networks.

3.2.3. Make reasonable efforts to enable pre-approved messaging on sites accessed via Wikipedia Zero.

4. Representations and warranties; limitation of liability

4.1. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement, and that the execution and delivery of this Agreement, and the performance of its obligations hereunder, will not constitute a breach or default of or otherwise violate any agreement to which such party or any of its affiliates are a party.

4.2. The parties agree that all materials are provided “as is” with all faults. They disclaim all warranties, expressed or implied, including, without limitation, those of merchantability, fitness for a particular purpose and noninfringement or arising from a course of dealing, usage or trade practice. In no event will either party be liable for any indirect, special, consequential or incidental damages, including without limitation, lost profits, or loss or damage to data arising out of this Agreement, even if they have been advised of the possibility of such damages. In no event will either party’s aggregate liability arising out of this Agreement exceed ten thousand dollars (USD10,000).

4.3. In no event will Wikimedia be liable for any third party or user generated content available through the Wikimedia Services.

5. Confidentiality

Each Party (the “Disclosing Party”) may during the term of this Agreement disclose to the other Party (the “Receiving Party”) certain confidential or proprietary information regarding the Disclosing Party’s business, including technical, marketing, financial, employee, planning, and other confidential or proprietary information, in each case which (a) relates to either Party’s employees, donors, or users, (b) relates to the Disclosing Party’s business, including technical, marketing, financial, or planning information, or (c) is clearly marked as confidential at the time of disclosure, or if disclosed orally, reduced to writing and marked as confidential (“Confidential Information”).

Notwithstanding the foregoing, Confidential Information shall not include information that (i) is or becomes publicly known through no wrongful act of the Receiving Party, (ii) was in Receiving Party’s possession prior to disclosure, as evidenced by Receiving Party’s written records, and was not initially obtained by Receiving Party subject to an expectation of confidentiality, (iii) was rightfully acquired by Receiving Party from a third party who was lawfully in possession of the information and was under no obligation to Disclosing Party to maintain its confidentiality, (iv) is independently developed by Receiving Party’s employees or agents who have not had access to the Confidential Information, (v) Receiving Party is required to disclose pursuant to a judicial order or other compulsion of law, provided that Receiving Party will promptly notify Disclosing Party of such order and comply with any protective order imposed on such disclosure, or (vi) is specifically pre-approved for release by the Disclosing Party in writing.

The Parties agree to use the Confidential Information only for the purposes contemplated pursuant to this Agreement and maintain the confidentiality of the Confidential Information relating to the matters of this Agreement.

This provision shall survive the termination of this Agreement.

Nothing in this provision entitles Partner to receive any personal data of Wikimedia users.

6. Use of partner trademarks

Wikimedia may only use the Partner trademarks and logos after having obtained the prior written consent from Partner. All use of the Partner trademarks and logos shall be according to the Partner guidelines for such use. Partner may at its sole discretion withdraw its consent to use any Partner trademark or logo, and Wikimedia shall immediately cease using such Partner Trademark upon written notice to Wikimedia.

7. Use of Wikimedia Trademarks

7.1. License Grant. Subject to the terms and conditions set forth in this provision, Wikimedia hereby grants Partner a worldwide, non-exclusive, non-transferable, non-sublicenseable, limited license to the specific WMF trademark(s) and logo(s) provided in Exhibit B (“Licensed Property”) solely for the Approved Use as set out in this Agreement.

7.2. Approved Use. “Approved Use” is a use for the purposes of providing access to Wikimedia Services through mobile devices and promoting Wikipedia Zero, approved in writing by Wikimedia (which may be in the form of an email from the Wikimedia legal team that can be reached at trademarks@wikimedia.org).

7.3. Additional Use. At any time during the Term of this Agreement, Partner may submit in writing to Wikimedia (which may be in the form of an email to trademarks@wikimedia.org) a request for permission for use of the Wikimedia Licensed Property outside the scope of this provision (“Additional Use”) for inclusion herein (“Permission Request”). Each submitted Permission Request must include:

• reference to this Agreement;
• attached samples of proposed use; and
• the date of proposed use.

Upon Wikimedia’s approval of the Permission Request in writing, the Additional Use shall effectively be an Approved Use herein subject to the terms and conditions of this Agreement. Except as specified in Sections 7.2 and 7.3 herein, no other use whatsoever is authorized or permitted by this Agreement.

7.4. Content of Wikipedia Article(s). The Approved Use is further limited to the display, use, and reproduction of Wikimedia Licensed Property in conjunction with actual, pre-existing, real Wikimedia content (including Wikipedia articles). Any use of the Wikimedia Marks in conjunction with fictional Wikimedia content (including Wikipedia articles) and any real Wikipedia articles that are altered, must be approved in advance in writing by Wikimedia prior to the use of such fictional or altered content; and the use of such approved fictional or altered Wikimedia content (including Wikipedia articles), shall be governed by the terms and conditions of this provision. Partner agrees not to use any actual active website of Wikimedia at any time whatsoever to alter or create fictional Wikimedia content (including Wikipedia articles).

7.5. Compliance with Guidelines. Partner agrees as it relates to the use of the Wikimedia Licensed Property to follow the Wikimedia Trademark Policy (which may be found in full at http://wikimediafoundation.org/wiki/Trademark_Policy) and Visual Identity Guidelines (which may be found in full at http://wikimediafoundation.org/wiki/Wikimedia_visual_identity_guidelines), which Wikimedia may amend from time to time, with regards to such use of the Wikimedia trademarks, logos, and/or screenshots.

7.6. Quality Standards. Wikimedia reserves the right to review and approve all products, services, publications, or other use incorporating or using the Wikimedia Marks in advance of any public release, publication, advertising, or distribution. Partner agrees that Wikimedia may object to any proposed use, and Partner may not use the Wikimedia Licensed Property in the intended manner if such an objection is raised. If Wikimedia objects to the use, Partner must not use the Wikimedia Marks in the manner Wikimedia objected to, and if Partner is already using the Wikimedia Licensed Property in the manner Wikimedia objected to, it must cease any and all use of the Wikimedia Licensed Property in the manner Wikimedia objected to within two (2) business days of written notice. Partner agrees that nothing in or related to the Approved Use will in any way tarnish, disparage, or otherwise harm Wikimedia’s brand or reputation, or expose Wikimedia or its community members to liability.

7.7. Extent of Promotional Use. Partner agrees that it may exhibit, display, or reproduce the Approved Use of the Wikimedia Marks in limited promotion of the Licensed Property or as sample text. However, Partner agrees that any promotion of the Licensed Property that involves significant or prominent use of the Wikimedia Marks in, among other things, a still-frame image or derivative works must be pre-approved and evidenced by the written consent of Wikimedia.

7.8. Proper Trademark Attribution. Partner agrees to include with any online or printed publication using the Wikimedia Licensed Property, whether referred to or displayed in a document, package, promotional materials, educational seminar, user group, trade show, conference, or expo, a trademark legend (printed in legible type and in a location typically used for legal notices or in an otherwise prominent location) indicating that the Wikimedia Licensed Property are registered as trademarks by Wikimedia, that Partner is independent of Wikimedia, and that the Wikimedia Licensed Property is used under license from Wikimedia.

7.9. No Derivative Works. Partner has no right to modify, adapt, alter, translate or create derivative works from the Wikimedia Marks or Licensed Property or combine any Wikimedia trademark or logo with any other trademark or logo without Wikimedia’s prior written approval.

7.10. No Endorsement. Partner may not represent itself or the Approved Use as being sponsored, approved, or endorsed by Wikimedia, or make any suggestions to that effect.

7.11. Wikimedia Ownership. Partner hereby acknowledges Wikimedia’s exclusive ownership of the Wikimedia Licensed Property and agrees not to take any action inconsistent with Wikimedia’s ownership of the Wikimedia Licensed Property. Nothing in this Agreement shall give Partner any right, title or interest in the Wikimedia Licensed Property other than the right to use the Wikimedia Licensed Property in accordance with this Agreement. Partner agrees that it will not challenge Wikimedia’s ownership of the Wikimedia Licensed Property or challenge the validity of this Agreement. All use of the Wikimedia Licensed Property by Partner shall inure to the benefit of and be on behalf of Wikimedia. Partner agrees to assist Wikimedia in recording this Permission Agreement with appropriate government authorities should Wikimedia elect to do so.

7.12. Enforcement Rights. Wikimedia shall have the sole right and discretion to enforce the rights being licensed hereunder.

7.13. Third Party Content. Other than Licensed Property which may be incorporated therein, Partner acknowledge that all content in the Wikimedia Services and all information, text and content provided on Wikimedia projects (fully shown at www.wikimedia.org), unless otherwise stated, is provided under the terms of the Creative Commons Attribution-ShareAlike License Version 3.0 (which may be found in full at http://en.wikipedia.org/wiki/Wikipedia:Text_of_Creative_Commons_Attribution-ShareAlike_3.0_Unported_License) and Wikimedia does not sublicense such content. Nor does Wikimedia write, edit or hold any copyrights to the user-generated content contained in Wikipedia articles, nor does it guarantee the accuracy or non-infringement of that content. If Partner utilizes any third party content in conjunction with the Licensed Property through a screen shot or otherwise, it agrees to abide by the terms of the applicable license including attribution as appropriate under that license, which may include the Creative Commons Attribution-ShareAlike License Version 3.0 disclosed on the Wikimedia project from which it obtained the content. In addition, Wikimedia expressly disclaims any liability or responsibility for the content contained in the Wikimedia Licensed Property, including but not limited to content contained, created and posted on the Wikimedia Sites by third parties, including Wikimedia contributors.

7.14. No Assignment. Neither party may assign any of rights or obligations set out in this trademark license without the prior written consent of the other Party.

7.15. Termination by Wikimedia. Wikimedia may terminate this trademark license immediately if Partner breaches any of its material terms. Wikimedia may terminate the trademark license immediately with respect to a specific use of the Wikimedia Licensed Property in the event that Wikimedia has a reasonable, good faith belief that that such use will in any way tarnish, disparage, or otherwise harm Wikimedia’s brand or reputation, or expose Wikimedia or its community members to liability.

7.16. Effect of Termination. Upon termination or expiration of this trademark license, all license rights granted by this Agreement shall terminate on a going-forward basis. Partner shall cease all further use of the Wikimedia Licensed Property, except that it will have no obligation to remove or otherwise recall any materials previously approved and in the chain of distribution that do not form the basis of the material breach.

7.17. Indemnification. Partner agrees to indemnify, defend and hold Wikimedia (and its directors, officer and employees) harmless from and against any and all losses, claims, damages, costs, expense or liability (including but not limited to reasonable attorneys’ fees) arising out of or in connection with the Approved Use, any use of the Wikimedia Marks outside the scope of this trademark license, and Partner’s breach of this trademark license.

7.18. Disclaimer, no warranty, limitation of liability. All Wikimedia licensed property are provided “as is” with all faults. Wikimedia disclaims all warranties, expressed or implied, including, without limitation, those of merchantability, fitness for a particular purpose and noninfringement or arising from a course of dealing, usage or trade practice with respect to the Wikimedia licensed property or third party content used by you. In no event will Wikimedia be liable for any indirect, special, consequential or incidental damages, including without limitation, lost profits, or loss or damage to data arising out of the use or inability to use any of the Wikimedia licensed property, even if Wikimedia has been advised of the possibility of such damages. In no event will Wikimedia’s aggregate liability arising out of this trademark license exceed one hundred dollars (USD100).

8. Term

8.1. This Agreement shall begin on the Effective Date and continue for a period of three (3) years (“Term”), unless otherwise earlier terminated in accordance with the provisions hereto. Upon expiration of the Term, the Parties may agree to renew this Agreement for additional one-year terms. 8.2. Beginning twelve (12) months after the Effective Date, either party may terminate this Agreement upon sixty (60) days notice in writing to the other party. 8.3. This Agreement may be terminated upon written notice by either party to the other party on the happening or occurrence of any of the following events or conditions:

• If other Party commits a material breach of any provision of this Agreement and fails to cure such breach within fourteen (14) days following receipt of written notice specifying the breach;
• If the other Party files a petition for relief under any bankruptcy legislation;
• If any involuntary bankruptcy petition should be filed against the other Party, and the same not be dismissed within thirty (30) days; and,
• If the other Party makes an assignment for the benefit of creditors.

9. Press releases and communications planning

Both Parties recognize that it is important to coordinate press releases relating to this Agreement. Accordingly, the Parties agree to each designate representatives to communicate in advance of the release of any press release to relating to this Agreement. Wikimedia requires ten (10) days advance notice to review Partner’s press draft, translated to English. No press release relating to this Agreement or its subject matter shall be released without prior consent, expressed in writing, by Wikimedia. Wikimedia may withhold this consent at its sole discretion.

10. Governing law and venue

This Agreement shall be governed by and construed in accordance with the laws of the State of California, USA without regard to conflict of laws principles. Any claim, cause of action or dispute ("claim") arising out of or relating to this Agreement or Wikimedia must be resolved exclusively in a state or federal court located in San Francisco County. Partner agrees to submit to the personal jurisdiction of the courts located in San Francisco, California, USA for the purpose of litigating all such claims.

11. Counterparts

This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. The parties hereto agree that this Agreement may be validly executed and delivered by fax or other electronic transmission and that they intend to be bound by their respective faxed or emailed signature.

12. Notices

Any notice or demand pursuant to this Agreement must be in English and delivered by email to the relevant contact person as provided in Exhibit A.

13. No waiver

Any waiver or failure to enforce any provision of this Agreement on any occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. No provision of this Agreement may be amended or waived except in writing signed by both Parties, and an email shall not be considered valid written form for the purposes of this section.

14. Successors and assigns

This Agreement shall inure to the benefit of, and shall be binding on, the Parties hereto and their respective successors and assigns, except that the rights and obligations under Section 7 shall terminate if this Agreement is assigned.

15. Severability

If any provision of this Agreement is unenforceable, that provision will be changed and interpreted to accomplish the objectives of that provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect.

16. Nature of relationship

Each Party is an independently owned business entity and the relationship of the Parties shall that be of independent contractors. Nothing in this Agreement shall make or deem to make either Party, its employees, associates or agents the employees, agents or legal representatives of the other Party for any purpose whatsoever. Neither Party has express or implied right or authority to assume or to undertake any obligation in respect of or on behalf of or in the name of the other Party or to bind the other Party in any manner other than as stated herein.

17. Entire agreement

This Agreement, including any exhibits and schedules attached, constitute the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral.

Signatures

Partner

By:

Name:

Title:

Wikimedia Foundation

By:

Name:

Title:

Exhibit A

Partner Contact Information:

Partner Name: ______________________________

Registered Office: ______________________________

Pursuant to Section 11.1, general notices to Partner regarding this Agreement shall be addressed to: ______________________________

Pursuant to Section 11.2, specific notices to Partner shall be addressed as follows.

Communications Issues: ______________________________

Technical Issues: ______________________________

Marketing/Partnership Issues: ______________________________

Wikimedia Contact Information:

Wikimedia Foundation: Wikimedia Foundation

149 New Montgomery , 6th Floor

San Francisco, CA 94105

Attention: LCA department

Communications Issues: [Communications manager]

Technical Issues: [Technical manager]

Marketing/Partnership Issues: [Partner manager]

Exhibit B

Wikimedia Marks or Wikimedia Licensed Property

1. The name “Wikipedia” – both stylized as it appears below and unstylized:

2. The Wikipedia puzzle globe logo – as it appears below:

3.The Wikipedia puzzle globe logo with the stylized Wikipedia trademark and the phrase “The Free Encyclopedia” – as it appears below: