Affiliate Membership agreement for W3 Consortium
1994 Membership
Affiliate Member
CONSORTIUM PARTICIPATION AGREEMENT (the "Agreement") dated as of the day of
____________________________,
by and between the Massachusetts Institute of Technology,
having an office at 545 Technology square, Cambridge,
Massachusetts 02139 ("MIT") and _______________________________________,
having an office at __________________________________________,
(the "Member"). WHEREAS,
the Member wishes to participate in the MIT World Wide Web (the "Consortium"
or "W3 Consortium"),
the purposes of which are more fully set forth below and in
Appendix 1,
which is attached hereto and expressly made a part hereof ("Description of MIT
W3 Consortium" dated October 1994) on the terms and conditions hereinafter
provided;
WHEREAS,
MIT has agreed to the Member's participation as an Affiliate Member in the
Consortium, subject to said terms and conditions;
and
WHEREAS,
the Member's participation in the Consortium and cooperation with MIT under
this Agreement will further the instruction and research objectives of MIT in
a manner consistent with its status as a non-profit, tax-exempt,
educational institution.
NOW, THEREFORE,
MIT and the Member AGREE AS FOLLOWS:
1. Purposes of Consortium.
The purposes of the Consortium are to support the advancement of information
technology in the field of networking,
graphics and user interfaces by evolving the World Wide Web toward a true
information infrastructure,
and to encourage cooperation in the industry through the promotion and
development of standard interfaces in the information environment known as the
"World Wide Web."
2.
Participation as an Affiliate Member
The Member hereby agrees to participate in the Consortium as an Affiliate
Member, as described in Appendix 1,
and agrees to pay a membership fee (the "Membership Fee") of Five Thousand
($5,000) Dollars per year for a period of three years
Payment will be made in U.S. Dollars to MIT per the schedule in Appendix 1.
Except as provided for in this Agreement,
the Membership Fee is non-refundable.
3.
Term of Membership.
The period of the Member's participation in the Consortium shall begin on
October 1, 1994 and shall end on September 30,
1997. This term may be extended or renewed only by mutual agreement of the
parties.
4. Rights and Obligations of MIT.
MIT shall have the following rights and obligations under this Agreement,
which rights and obligations are more fully described in Appendix
1:
a.
MIT shall use diligent efforts to provide the vendor-neutral architectural and
administrative leadership required to accomplish the Consortium's
goals.
b.
MIT shall use the Membership Fees as outlined in Appendix 1.
c.
MIT shall establish and maintain a committee comprised of one representative
of each member organization (the "Advisory Committee"),
which shall operate as set forth in Appendix 1.
d.
MIT shall appoint and maintain an MIT-employed Consortium director (the
"Director"),
who will act as chief architect for all specifications produced by the
Consortium.
The Director shall have final authority on all decisions regarding the
Consortium's proposals for new standards pursuant to its Standards Review
Process, as set forth in Appendix 1.
e.
MIT shall collect,
maintain and distribute software and documentation created under the auspices
of the Consortium, as set forth in Appendix 1.f.
MIT shall establish and maintain Internet connection and computer resources to
facilitate the work of,
and permit the Member with Internet access to communicate effectively with,
the Consortium.
5. Rights and Obligations of Member.
The Member shall have the following rights and obligations under this
Agreement,
which rights and obligations are more fully described in Appendix
1:
a.
The Member shall appoint one representative to serve on the Advisory Committee
and to participate in the Standards Review Process.
b.
The Member shall have the right to establish and maintain computer network
links via the Internet with MIT sufficient to participate in Consortium
activities.
c.
The Member shall have access to software and documentation produced by the
Consortium prior to release of such software and documentation to
non-members.
d.
Subject to the restrictions contained in this Agreement,
the Member may incorporate Consortium software and documentation into products
at any time after the materials have been released to the members of the
Consortium.
The Member shall not adopt or incorporate such software and documentation
into products prior to such release.
e.
The Member may volunteer staff members on short assignment to MIT,
who will serve the Consortium as Visiting Engineers subject to the approval of
the Director.
f.
If the Member has subsidiaries,
the rights and privileges granted under this Agreement shall extend to all
subsidiaries the voting stock of which is directly or indirectly at least
fifty percent (50%) owned or controlled by the Member.
g.
If the Member is itself a consortium, user society,
or otherwise has members or sponsors,
the rights and privileges granted under this Agreement extend only to the paid
employees of the Member, not to its members or sponsors.
6. Use of Names.
Neither party will use the name of the other in any form of publicity without
the written permission of the other,
which in the case of MIT shall be obtainable from the Director of the News
Office.
7.
Intellectual Property Rights.
a. Rights of Publication.
MIT and the Member shall be free to use and publish any research results,
ideas, algorithms,
techniques and other information developed under the auspices of the
Consortium during the term of this Agreement except that intellectual property
described in (b) and (c) below shall be subject to the licenses specified
therein. b. Ownership of Copyrights and Patents.
The Member agrees that all right,
title and interest in and to any and all software and documentation created or
developed,
and in and to all patentable inventions conceived or first reduced to
practice, by the Director,
MIT staff or industrially-employed visitors when working at MIT for the
Consortium shall vest in MIT.
To the extent necessary,
Member agrees to execute such assignment documents as may be required to vest
title in MIT, at no expense to the Member.
Except as provided above,
patentable inventions and copyrighted materials developed jointly by MIT and
Member pursuing Consortium activities, shall be jointly owned.
Each joint owner shall be entitled to exercise all rights of ownership as
provided by law without, however,
an obligation of accounting from one to the other.
Member understands that MIT will make all such jointly owned inventions and
copyrights available to the general public for unrestricted use.
c.
Licenses.
MIT agrees to grant and hereby grants to Member a non-exclusive royalty-free,
irrevocable, right and license to use, reproduce, modify, translate,
distribute,
publicly display and publicly perform all computer software and documentation
described in Section 7 (b) throughout the world,
subject to the notices with respect to copyright, trademarks,
and disclaimer of liability which shall appear on all copies of the software
and documentation provided to the Member by MIT and which must be reproduced
on each copy reproduced or distributed by the Member.
It is the intention
of MIT grant to members of the general public as well as to Member license
rights as described above, including rights to use MIT trademarks, if any,
relating to W3 products and services provided they conform to W3
specifications established by MIT.
8.
Notices.
All notices or other communications to or upon either party shall be in
writing delivered by first class, air mail or facsimile,
dispatched to or given at the following addresses:
For MIT:
Paul C. Powell, Coordinator
Office of Sponsored Programs, E19-702
Massachusetts Institute of Technology
77 Massachusetts Avenue
Cambridge, MA 02139
UNITED STATES
For the Member:
In the event notices and statements required under this Agreement are sent by
certified or registered mail by one party to the party entitled thereto as its
above address,
they shall be deemed to have been given or made as of the date so mailed.
9.
Relationship of Parties.
The relationship of the parties under this Agreement shall be that of a
voluntary association.
The Consortium is not a separate legal entity,
and this Agreement does not create a partnership or joint venture.
Neither MIT nor the Member can bind the other or create any relationship of
principal or agent.
10.
Dissolution of Consortium;
Termination.
MIT shall have the right, upon sixty (60) days prior written notice,
to dissolve the Consortium,
by terminating the agreements (including this Agreement) with each member of
the Consortium, if:
a. Failure to Attain Minimum Membership Amount.
By October 1, 1995,
MIT has not received signed agreements with prospective Consortium members
representing a total of $1,400,000 per year in membership fees; or
b.
Event of Force Majeure.
An event of force majeure, as described in Section 13 below,
occurs which MIT determines in good faith will prevent MIT from carrying out
its administrative and leadership duties under this Agreement.
11. DISCLAIMER OF WARRANTIES.
MIT MAKES NO WARRANTIES OR REPRESENTATIONS,
EXPRESS OR IMPLIED,
WITH RESPECT TO ANY SOFTWARE OR DOCUMENTATION PROVIDED OR MADE AVAILABLE TO
THE MEMBER, OR WITH RESPECT TO ANY STANDARD ENDORSED BY MIT OR THE CONSORTIUM,
INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE,
OR THAT SOFTWARE AND DOCUMENTATION DOES NOT INFRINGE THE PROPRIETARY RIGHTS OF
THIRD PARTIES, INCLUDING PATENTS, COPYRIGHTS AND TRADE SECRETS.
THE MEMBER AGREES THAT ALL SOFTWARE AND DOCUMENTATION SHALL BE ACCEPTED BY
MEMBER "AS IS".
12.
Limitation of Liability.
In the event of dissolution of the Consortium and termination of this
Agreement by MIT pursuant to Section 10 hereof,
the Member shall be entitled to receive, as its sole and exclusive remedy,
a refund of all of the Member's duly paid and uncommitted Membership Fee,
and upon such refund,
any further liability of MIT to the Member shall be extinguished.
This remedy is in lieu of all other remedies, whether oral or written,
express or implied.
MIT's liability to the Member in the event of any other claim by Member shall
be limited to the amount of the Member's duly paid Membership Fee.
In no event shall MIT be liable for any indirect, incidental, consequential,
or special damages, including lost profits,
sustained or incurred by the Member in connection with or as a result of its
participation in the Consortium or under this Agreement.
13.
Force Majeure.
If the performance of any obligation by MIT under this Agreement is prevented,
restricted or interfered with by reason of natural disaster, war, revolution,
civil commotion, acts of public enemies, blockade, embargo, strikes, any law,
order, proclamation, regulation, ordinance,
demand or requirement having a legal effect of any government or any judicial
authority or representative of any such government,
or any other act or event which is beyond the reasonable control of the party
affected,
then MIT shall be excused from such performance to the extent of such
prevention, restriction, or interference,
provided that MIT shall use reasonable commercial efforts to avoid or remove
such causes of nonperformance,
and shall continue performance hereunder with reasonable dispatch whenever
such causes are removed.
14.
Export Controls.
The Member acknowledges that export and/or re-export of technical data,
computer software,
laboratory prototypes and other commodities (the "Controlled Commodities") may
be subject to the export control laws and regulation of the United States
(including the Arms Export Control Act, as amended,
and the Export Administration Act of 1979),
and that such laws and regulations could preclude or delay export of such
Controlled Commodities.
MIT's obligations hereunder are contingent on compliance with such applicable
laws and regulations.
Neither party will directly or indirectly export across any national
boundary, or communicate or transfer to any third party,
any Controlled Commodities without first obtaining any and all licenses that
may be required from a cognizant agency of the United States government,
and/or any and all written assurances from the Member that it will not
re-export or transfer such Controlled Commodities to certain foreign countries
or third parties without prior approval of the cognizant government agency.
While MIT agrees to cooperate in securing any license which the cognizant
agency deems necessary in connection with the export, re-export,
transfer or communication of any Controlled Commodities,
MIT cannot guarantee that such licenses will be granted.
15.
Assignment.
Neither this Agreement nor any rights hereunder,
in whole or in part,
are assignable by either party without the prior written consent of the other
party.
Any attempt to assign the rights,
duties or obligations under this Agreement without such consent shall be a
breach of this Agreement and be null and void.
16.
Entire Agreement.
This Agreement, together with Appendix 1,
embodies the entire understanding between MIT and the Member for the Member's
participation in the Consortium,
and cancels and supersedes any other agreements, oral or written,
entered into by the parties hereto as to its subject matter.
17. No Modifications.
This Agreement may be amended only by a writing signed by both parties.
18.
Governing Law.
This Agreement shall be deemed to have been entered into and shall be
interpreted and governed in all respects by the laws of The Commonwealth of
Massachusetts and the United States of America.19.
Arbitration.
Any controversy or claim arising out of or relating to this Agreement,
its execution or breach, and any damages allegedly suffered there from,
first shall be submitted to friendly negotiation between the parties.
Matters which cannot be resolved through negotiation shall be finally
settled:
(i) if the Member is organized or incorporated within any of the United
States,
under the Commercial Rules of Arbitration of the American Arbitration
Association, by one (1) arbitrator appointed in accordance with said Rules,
or (ii) if the Member is organized or incorporated outside the United States,
under the Rules of Conciliation and Arbitration of the International Chamber
of Commerce, by one (1) arbitrator appointed in accordance with said Rules.
In any event, the place of arbitration shall be Cambridge, Massachusetts.
The arbitrator shall determine the matters in dispute in accordance with the
laws of the Commonwealth of Massachusetts pursuant to Section 18 of this
Agreement. The English language shall be used throughout the proceedings.
Any award,
order or judgment pursuant to such arbitration may be entered and enforced in
any court of competent jurisdiction.
The Member agrees to submit to the jurisdiction of any such court for
purposes of the enforcement of any such award,
order or judgment.20.
Survivability.
The obligations of MIT and the Member under Sections 6, 7, 9, 11-14, 18,
and 19 of this Agreement shall survive expiration or termination hereof,
and shall continue hereafter in full force and effect. IN WITNESS WHEREOF,
the parties hereto have cause this Agreement to be signed by their duly
authorized representatives,
effective as of the day and year first above written.Massachusetts
Institute of
Technology
by:____________________________
title:
_____________________________
by:____________________________
title: