By linking to the web site of Elk Group, Inc. (“Elk”)
at www.elkcorp.com (this “Site”), the person, corporation,
company or other business entity placing or using on another website
a link to this Site (“You”) thereby agrees to the
following terms and conditions of this Web-Linking Agreement (this
1. Revocable Right.
In consideration of the other terms and conditions hereof, Elk
hereby grants to You a non-exclusive limited revocable non-sublicensable
non-assignable non-transferable right to (i) establish a link
to this Site (the “Link”) under the terms and conditions,
and as described more fully, in this Agreement and (ii) use such
trade and service marks included in the Image (as defined below)
or the Non-Image Link (as defined below) solely for the purpose
of establishing the Link. You may link, and any Link shall resolve,
directly solely to the homepage of this Site. You may not deep-link
to any subsites or pages of this Site or link to this Site or
any subsite or page of this Site by framing.
2. No Other Rights or Grants.
Apart from the non-exclusive limited revocable non-sublicensable
non-assignable non-transferable right expressly set forth in the
immediately preceding sentence, Elk does not grant to You or any
third party under or in connection with this Agreement, and nothing
in this Agreement or its performance grants, or shall be interpreted
to grant, You or any third party any rights or license to any
trademark, service mark, trade dress, tradename, name, domain
name, Uniform Resource Locator, brand or logo of Elk or any of
its affiliates (collectively, “Elk Marks”) or to any
copyright, work, patent, patent application, technology, idea,
invention or discovery of Elk or any of its affiliates.
3. No Right to Payments.
You are and shall not under any circumstances be entitled or
have any right or expectation to any linking, referral, transaction
or usage revenues, commissions, membership or hit fees, or any
other fees, expenses, payments, consideration or value of any
kind for establishing, placing or using the Link or for any third
party’s visiting this Site or any other site of Elk or any
of its affiliates or its conducting any business with Elk or any
of its affiliates, whether or not it results from its use of the
You agree to use as any Link, for the duration of such Link,
solely either (i) the graphical image file specifically provided
to you by Elk for the purpose of the Link (the “Image”)
into the HTML files located at Limited Licensee’s web site,
or (ii) a simple underlined link appearing as www.elkcorp.com
without any graphical image associated with it (the “Non-Imaged
Link”). For any Link, you may not use any image, trademark,
service mark, or logo other than the Image or the Non-Imaged Link.
5. Definition of “User”
and “User Information”.
For purposes of this Agreement, the terms (i) “User”
means any user (whether individual or entity) accessing this Site
through the Link; and (ii) “User Information” means
(aa) navigational information, including, but not limited to,
usage of other hyperlinks within or available through this Site,
(bb) transactional information, including, but not limited to,
billing information, including products purchased and method of
payment, and (cc) User’s Internet address and/or other identifying
information such as actual name or address.
6. Location of the Link.
The Link shall be placed on Your web site in accordance with
the terms and conditions of this Agreement and such as not give
the appearance of Elk’s sponsorship of You, Your products
or services or Your website or Your sponsorship of Elk, Elk’s
products or services or Elk’s websites.
7. No Negative Association.
Without limiting Your rights to any fair use or under any applicable
federal or state law, the Link shall (i) appear in the Home Page
such that it is not associated with images, marks, logos, text
or words that are inappropriate, defamatory, disparaging, or otherwise
likely to impair the quality, image or goodwill associated with
the Elk Marks, or that editorialize as to Elk or Elk’s products,
(ii) not be placed or used in any way that might prejudice the
distinctiveness or validity of or the goodwill in any Elk Marks,
or that creates the appearance of sponsorship or a likelihood
of confusion between Elk and its products and any other provider
and such provider’s goods or services; and (iii) shall not
bear a subordinate relationship or position as to Elk’s
competitors or such competitor’s respective products. The
Image shall not be displayed in a manner that states or implies
that You are a partner, principal, officer, director, employee,
agent or other representative of Elk.
8. Notice to Elk.
Without limiting Your rights to any fair use or under any applicable
federal or state law, at least ten (10) days prior to adding any
new Links to this Site, You agree to notify Elk of the nature
of the new Links. In the absence of any objection from Elk, You
may place such Links on Your site ten (10) days after notice was
given if such Links and the placement of such Links comply with
the terms of this Agreement.
9. Use of this Site.
Any access, viewing and use of this Site, or any of its subsites
or pages, is subject to the Terms and Conditions and the Website
Privacy Statement. You agree not to furnish or disclose to any
third party any User Information concerning Users who link to
10. Representations and Warranties.
You represent and warrant to Elk that, as of the date of this
a. You have duly registered
the domain name of Your web site on which the Link is placed with
all applicable authorities and possess all rights necessary to
use, and grant others a license to use, such domain name; and
b. The content and materials
which You have placed within Your web site do not and will not
(i) infringe upon or violate (a) any U.S. copyright, patent, trademark
or other intellectual or proprietary right of any third party,
or (b) any applicable law, regulation or non-proprietary third-party
right, or (ii) contain any obscene, defamatory, harassing, offensive,
or malicious material.
Elk shall have no obligation to verify the current or continued
accuracy of any information provided by You or the current or
continued accuracy of the Link or any link, and Elk shall not
be responsible or liable for any errors contained in the Link
or any link or any viruses, worms, cookies, or similar code transmitted
or placed on any User’s system through the use, view or
access of the Site or any Link. Elk shall have no obligation to
verify the current or continued accuracy of any information, text,
materials, images, or data contained on, or obtained from or through,
this Site or any of its subsites or pages, or any sites linked
through or from this Site. The Links and any information, text,
materials, images, or data are provided “AS IS” WITHOUT
WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE, WORKMANSHIP, OR NON-INFRINGEMENT.
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE,
SHALL ELK BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL
OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS
OF DATA OR PROFIT, ARISING OUT OF THE USE, OR THE INABILITY TO
ACCESS, VIEW OR USE, THIS SITE OR ANY INFORMATION, TEXT, MATERIALS,
IMAGES, DATA OR LINKS ON THIS SITE OR ANY SUBSITES OR PAGES OF
THIS SITE, EVEN IF ELK OR AN AUTHORIZED REPRESENTATIVE OF ELK
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In the event
that any applicable law does not allow or limits the use of any
disclaimer or exclusion of warranties or liability, solely to
the extent that such applicable law does not allow or limits the
use of the disclaimer or exclusion of warranties or liability
herein, the disclaimer or exclusion of warranties or liability
herein shall be interpreted so that they are valid and enforceable
to the greatest extent possible under such applicable law.
Elk may revoke the right under Section 1 of this Agreement and
terminate this Agreement at any time and for any reason by (i)
posting such revocation and termination on this Site without any
prior notice, and/or (ii) providing You with written notice of
revocation or termination by e-mail, facsimile, mail or other
means. In each case, the revocation and/or termination shall be
effective immediately. You may terminate this Agreement at any
time by removing any and all Links, and any other links to this
Site, without any prior notice. Any renewed placing or using of
any link to this Site shall be again subject to the terms of this
Agreement. Upon revocation of the right under Section 1 of this
Agreement or termination of this Agreement for any reason, all
rights granted under this Agreement shall expire and terminate,
and You agree to immediately cease use of any Elk Marks and remove
any and all Links to this Site.
a. You and Elk are independent contractors, each without the
power or authority to bind, contract or commit the other. Elk
is not, and nothing in this Agreement or on this Site, shall be
interpreted that, directly or indirectly, (i) Elk is a partner,
joint venturer, co-owner or otherwise participant in a joint or
common undertaking with you, or (ii) Elk is an employer or agent
of you, or (iii) you are an employee or agent of Elk.
b. Nothing in this Agreement or on this Site, or any act or omission,
including, without limitation, selection or seeking or failure
to select or seek a certain right or remedy, constitutes, and
shall not be construed to constitute, any waiver by Elk of any
right or remedy provided under this Agreement or a breach of this
Agreement. Any such waiver by Elk must be express and written.
c. Should any section, or portion thereof, of this Agreement
be held invalid by reason of any law existing now or in the future
in any jurisdiction by any court of competent authority or by
a legally enforceable directive of any governmental body, such
section or portion thereof shall be validly reformed so as to
approximate the intent of this Agreement as nearly as possible
and, if unreformable, shall be deemed divisible and deleted with
respect to such jurisdiction; this Agreement shall not otherwise
d. This Agreement constitutes the entire terms and agreement
regarding the linking to this Site or any subsites or pages thereof.
Elk may, at any time, without the need for notice, assign, transfer,
convey, or delegate any rights or obligations under this Agreement.
e. ELK AND YOU AGREE THAT THIS AGREEMENT, AND THE INTERPRETATION
AND ENFORCEMENT OF ANY RIGHTS AND OBLIGATIONS IN CONNECTION WITH
OR SET FORTH IN THIS AGREEMENT, SHALL BE GOVERNED BY THE LAWS
OF THE STATE OF TEXAS, UNITED STATES OF AMERICA, WITHOUT REGARD
TO ANY CONFLICT OF LAWS PRINCIPLES THAT MAY REQUIRE THE APPLICATION
OF THE LAWS OF ANY OTHER JURISDICTION. EXCEPT FOR ANY LITIGATION
OR PROCEEDING BY ELK TO OBTAIN ANY INJUNCTIVE RELIEF, ELK AND
YOU HEREBY CONSENT AND SUBMIT TO THE EXCLUSIVE JURISDICTION OF
COMPETENT STATE AND FEDERAL COURTS IN THE STATE OF TEXAS FOR ANY
LITIGATION OR PROCEEDING IN CONNECTION WITH THIS AGREEMENT, THE
LINKING TO THIS SITE, AND ANY OTHER MATTER RELATED THERETO, AND
TO THE VENUE OF SUCH LITIGATION OR PROCEEDING IN THE COUNTY OF
DALLAS, TEXAS, UNITED STATES OF AMERICA.