"Gagwrap Clauses in Current Shrinkwrap and Clickwrap Contracts

Gagwrap Clauses purportedly ban disparagement of a website, service, product or company through barring use of graphics, logos, trademarks and other intellectual property to criticize the website, service, product or company. The gagwrap clauses also occasionally condition certification and affiliate programs. The conditions may include a stated duty not only to forbear from disparagement but an affirmative duty to report disparagement.

Advanced Nicro Devices, Inc. - AMD
URL: http://www3pub.amd.com/logos/ Found by Lisa Arrasmith January 31, 2003

I. Trademarks
[ . . .]
2. Advertiser shall comply with the following terms and conditions:
[ . . .]
iv. Advertiser shall not use the AMD Trademarks in any manner that may disparage the AMD Trademarks or impair the validity, scope, title or goodwill of AMD in the AMD Trademarks.
[ . . .]
5. Advertiser acknowledges the great value of the goodwill associated with the AMD Trademarks and further acknowledges that AMD is the sole and exclusive owner of the AMD Trademarks and the goodwill associated therewith. Advertiser agrees that it will not, either during or after the term of this Agreement, contest, attack or dispute, or assist another party in contesting, attacking or disputing AMD's title or rights in the AMD Trademarks.
[ . . .]
II. AMD Graphics
1. Advertiser shall comply with the following terms and conditions:
[ . . .]
. ii. Advertiser shall not use the AMD Graphics in any manner that may disparage the AMD Graphics or impair the validity, scope, title or goodwill of AMD in the AMD Graphics.
[ . . .]
IV. Advertiser acknowledges that the AMD Trademarks and AMD Graphics shall not be modified to infringe the copyright, trademark or common law rights of any person or entity; and that nothing contained in material produced by the Advertiser that incorporates the AMD Trademarks or the AMD Graphics will constitute a libel or slander against, or violate or infringe upon any right, common law or otherwise, of any kind or nature whatsoever, of any person or entity, including, without limitation, any right of privacy or publicity. [ . . .]

Arel Communications and Software, Ltd. ("Arel")
URL: http://www.arel.net/legal.html Found by Lisa Arrasmith January 31, 2003

Referential trademark usage You may use an Arel trademark or product name to refer specifically to such Arel product in marketing and promotional materials, books, conferences, applications, demonstrations, and so on. You are permitted to use an Arel trademark referentially provided that: You adhere to these Arel Trademark Usage Guidelines. You do not disparage Arel or Arel products and services. You display your name or logo more prominently than any Arel trademark. You include a disclaimer that Arel does not sponsor, affiliate, or endorse your product, and/or services.

Carfax - Affiliate Agreement
URL: http://www.carfax.com/cfm/Consumer_Affiliate_Agreement.cfm Found by Lisa Arrasmith January 31, 2003

2. AGREEMENT. CARFAX hereby grants to You the nonexclusive, nontransferable, nonassignable right during the Term to use CARFAX's Icon, CARFAX's trademarks, including LEMON CHECK, CARFAX and CARFAX.COM (the Marks), and other related textual and graphic material that are provided by CARFAX to You for the purpose of inclusion on Your Web Site (collectively, the "Web Site Materials"). CARFAX will issue buttons, banners, logos, or other creative devices to You which You shall display in a reasonably prominent position on Your Web Site as a hyperlink to take Visitors from Your Web Site to CARFAX's Web Site. CARFAX also authorizes You to refer in Your advertising and promotion to the fact that CARFAX's Web Site is accessible through your Web Site. You agree that you shall not: (A) state, or imply by the wording or prominence of such a statement, or otherwise, that CARFAX sponsors, authorizes, and/or is the source or origin of Your Web Site; and/or (B) disparage CARFAX, its products or services; and/or (C) use the Marks in any manner other than as set forth in CARFAX's Trademark Guidelines.

Environmental Systems Research Institute, inc (ESRI)/Geography Network
URL: http://www.geographynetwork.com/aboutus/link.html Found by Lisa Arrasmith January 31, 2003

Web Link License and Logo Agreement Environmental Systems Research Institute, Inc. (ESRI) has developed Internet mapping software technology and has established the Geography Network Web portal that utilizes said technology for providing a global channel for access and distribution of geospatial information. ESRI will grant to you a personal, nonexclusive, nontransferable license to hyperlink your Internet Web site to ESRI's Geography Network Internet Web site, and/or use ESRI's Geography Network logo ("GN Logo") as part of your Internet Web site subject to the following terms and conditions: You must accept all terms and conditions in this Agreement. To indicate your acceptance, you will be asked to click the button marked "I Accept" following this Agreement. [ . . . ] You may not use the name "ESRI", or the GN Logo to disparage ESRI, its software, data, and/or services in any way that in ESRI's sole business judgment and discretion may diminish or damage the goodwill in ESRI's name or GN Logo, including, but not limited to, uses that could be deemed obscene, pornographic, or excessively violent, or to encourage unlawful activities.

Groove Networks
URL: http://www.groove.net/legal/trademark.html Found by Lisa Arrasmith January 31, 2003

[ . . .] In addition to the requirements set forth above, you must observe the following principles when using our marks: Maintain the Integrity of Our Marks. Your use of our marks must not disparage Groove Networks, our marks, products or services, and you must not mislead anyone as to your own or your organization's affiliation with Groove Networks or Groove Networks' sponsorship or endorsement of you, your company and/or your products or services.

Kawin Interactive, Inc.
URL: http://www.kawinforum.com/license.html Found by Lisa Arrasmith January 31, 2003

Image Files: All Image Files included with the SOFTWARE PRODUCT may only be used as part of the SOFTWARE PRODUCT. If you use any of the Image Files included with the SOFTWARE PRODUCT, you agree to: 1. not use the Image Files to disparage Kawin Interactive, Inc., its suppliers, its products, its services or for promotional goods or for products which, in Kawin Interactive, Inc.'s sole judgment, may diminish or otherwise damage Kawin Interactive, Inc.'s goodwill in the SOFTWARE PRODUCT including but not limited to uses which could be deemed under applicable law to be obscene or pornographic, uses which are excessively violent, unlawful, or which purpose is to encourage unlawful activities; [ . . . ]

Macromedia
URL: http://www.macromedia.com/software/director/download/power_aps/license.html Found by Lisa Arrasmith January 31, 2003

[ . . . ] 2. Licenses Pursuant to the terms and conditions of this License, Macromedia grants you a non-exclusive, nontransferable, worldwide license to use, copy, modify, create derivative works of, publicly display, publicly perform and distribute the Applications solely as part of, with or in conjunction with Your Product. 3. Restrictions By using the Licenses above, you agree to the following restrictions: (a) You will not distribute the Applications, modified or unmodified, as a stand-alone product. (b) Your Product will not consist primarily of the modified or unmodified Applications. (c) Your Product will not disparage in any manner Macromedia or its products and services, including but not limited to the Applications, Macromedia software or Macromedia Web sites. d) You will indemnify and hold Macromedia harmless from any claim related to Your Product or your modifications of the Applications including any claim by a third party that the Applications as modified by you infringe any copyright, patent, trademark, trade secret, rights of privacy or publicity or any other intellectual property right. (e) You will not decompile, reverse engineer, disassemble or otherwise modify the Applications so that the Applications are no longer compatible with the Macromedia Shockwave Player. f) You agree to incorporate any updates to the Applications, as provided by Macromedia, into Your Product as soon as practical, for example, at the next major revision or release of the Your Product. (g) You will not export or re-export, directly or indirectly, the Applications into any country prohibited by the United States Export Administration Act and the regulations thereunder.

Microsoft - Permission - Use of Images
URL: http://www.microsoft.com/permission/copyrgt/cop-img.htm Found by Lisa Arrasmith January 31, 2003

[ . . . ]Box Shots Microsoft does not allow use of our box shots on third party software packaging. However, Microsoft does not object to third party use of box shots of our products in advertising, on documentation, in books and other printed matter, on video tape, in software applications, on World Wide Web pages, or in television programs/commercials/movies ("Your Product"), so long as the use is not disparaging and falls within the definition of "fair use" under International and/or United States Copyright law, as applicable. Provided you adhere to the following guidelines, no further written permission is required: 1. You may not disparage Microsoft or any of its products in your use of Microsoft product box shots. [ . . . ]

Nortel Networks
URL: http://www.microsoft.com/permission/copyrgt/cop-img.htm Found by Lisa Arrasmith January 31, 2003

THIS AGREEMENT is made by and between Nortel Networks Limited, a corporation duly incorporated under the laws of Canada, having its registered offices at The World Trade Center of Montreal, 380 St. Antoine Street West, 8th Floor, Montreal, Quebec, Canada, H2Y 3Y4 ("Nortel Networks"), and YOU. ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT; AGREE TO COMPLY WITH AND BE BOUND BY THIS AGREEMENT; CERTIFY THAT THE INFORMATION YOU HAVE PROVIDED TO NORTEL NETWORKS IN CONNECTION WITH THE CERTIFICATION PROGRAM IS ACCURATE AND COMPLETE IN ALL RESPECTS; AND ACKNOWLEDGE THAT THIS AGREEMENT SHALL NOT BECOME EFFECTIVE UNLESS AND UNTIL NORTEL NETWORKS CERTIFIES YOU IN ACCORDANCE WITH THE CERTIFICATION PROGRAM. [ . . . ] 3.3 You shall not participate in or have any association with any activity or conduct that could in any way prejudice the rights of Nortel Networks with respect to the Certification Mark or diminish the value of the Certification Mark. [ . . . ] 3.6 You shall advise Nortel Networks of any infringement or apparent infringement of the Certification Mark as soon as you know of it. Nortel Networks shall have sole control to take proceedings, as it deems appropriate, for infringement of the Certification Mark and you shall cooperate fully with Nortel Networks in respect of any such proceedings. [ . . . ] 4.Conduct 4.1 You agree to: 4.1. Not disparage or otherwise harm the reputation of the products, services and business of Nortel Networks; [ . . . ] 5. Confidential Information 5.1 All technical information, Certification Program exams and materials, business plans and other information relating to the business, affairs or technology of Nortel Networks or any of its associated companies, which you may acquire directly or indirectly from Nortel Networks is considered confidential information of Nortel Networks ("Confidential Information"). Confidential Information includes information acquired directly or indirectly from Nortel Networks prior to the Effective Date of this Agreement. You agree not to disclose any Confidential Information to any third person and not to use the Confidential Information other than for purposes that are both consistent with the terms of this Agreement and beneficial to Nortel Networks. These obligations shall continue during the term of this Agreement and for a period of five (5) years thereafter. Upon termination of this Agreement, or upon the earlier request from Nortel Networks, you shall return to Nortel Networks all such information that is in written or documented form or certify its destruction. 5.2 Your obligations pursuant to this Article 5 shall not extend to any Confidential Information which (i) you can demonstrate through written documentation was already known to you; (ii) becomes known or generally available to the public (other than by your act) subsequent to its disclosure; (iii) is disclosed or made available in writing to you by a third party having a bona fide right to do so and without similar confidentiality obligations; (iv) is independently developed by you as demonstrated by your business records; or (va) is required to be disclosed by subpoena or other process of law, provided that you shall notify the disclosing party promptly of any such subpoena or other process of law requiring disclosure. 6. Intellectual Property You acknowledge and agree that Nortel Networks owns all rights in the Certification Program, and all documents and materials related thereto, including without limitation, all examination and testing materials. All rights not expressly granted hereunder are reserved by Nortel Networks. You agree not to reproduce, copy, or modify any Nortel Networks computer software in whole or in part except as authorized by Nortel Networks and shall not decompile, reverse engineer, disassemble, reverse translate, or in any other manner decode the source code, or the underlying structure, sequence, organization or logic of any Nortel Networks products. [ . . .] 9.4 This Agreement shall be construed in accordance with and governed by the laws of the Province of Ontario, Canada.

Novell
URL: http://www.novell.com/company/legal/permission/linkagreements.html Found by Lisa Arrasmith January 31, 2003

Novell permission Novell is pleased to provide links to the Novell World Wide Web Site from your business Web Site. We have provided several hotlink graphics for you to choose from. To assure the quality and integrity in the use of Novell's trademarks, anyone using the official Novell hotlink artwork must agree to the following terms and conditions: The Novell link(s) is to be used only on the Web and only as a hotlink to the Novell web page specified and for no other purpose. You may use only the Novell supplied hotlink artwork. The Novell hotlink artwork should appear only as a hotlink and not as an endorsement. Your use will not misrepresent your relationship with Novell. You will not disparage Novell using the hotlink artwork provided. Your use of the Novell logo will be truthful and not deceptive in any regard. You should not create a browser or border environment around Novell content. You may link to, but not replicate, Novell content. You should not present false information about Novell products or services. You should not use Novell logos without permission from Novell. Your web site should not contain content that could be construed as distasteful, offensive or controversial, and should contain only content that is appropriate for all age groups. You will comply with the [general terms and conditions] for using Novell proprietary information and goods. Novell shall have, in its sole discretion, the right to disapprove of the final use of the hotlink of your page (including elements of size, surrounding text, etc.) To make sure that it complies with the terms of this agreement and the other [trademark guidelines]. If Novell determines that your use does not comply with these terms, you agree to modify your use upon request. Novell reserves the right to rescind this agreement at any time. In such event, you agree to immediately remove the hotlink from your web site and destroy any copies in your possession. You may cease using the Novell hotlink at any time. Top of Form 1 Bottom of Form 1 YES, I agree to the terms of this Agreement, will fill out the personal identification form and usage survey accurately and truthfully. Top of Form 2 Bottom of Form 2 NO, I do not agree to the terms of this Agreement. © 2000 Novell, Inc. All Rights Reserved.

Questions, comments and suggestions to Manon Ress manon.ress@cptech.org

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