AMENDED AND RESTATED DOMAIN MONETIZATION AGREEMENT
EXHIBIT
10.36
Certain
portions of this Exhibit 10.36 have been omitted based upon a request for a
confidential treatment and filed separately with the Securities and Exchange
Commission.
AMENDED AND
RESTATED
THIS AGREEMENT (the “Agreement”), made
effective this 24th day of June, 2009 (“Effective Date”) by
and between NAME
DRIVE, LLC, a limited
liability company duly organized under the laws of State of Maryland,
(hereinafter “NAME
DRIVE”), and DOT VN, Inc., a corporation duly organized
under the laws of the State of Delaware (hereinafter “DOT VN”) (referred to collectively as the
“Parties”).
WHEREAS, NAME DRIVE provides domain parking services
internationally;
WHEREAS, DOT VN desires to provide such services in
Vietnam; and
WHEREAS, NAME DRIVE and DOT VN are both willing to work jointly to
provide such services in Vietnam;
NOW, THEREFORE, in light of the mutual
promises and covenants hereinafter set forth and for consideration the
sufficiency and receipt of which is hereby acknowledged, the Parties agree to as
follows:
Definitions:
Registry Monetization Services –
Specific advertising based on automated semantic rendering of type-in
traffic.
Domain Parking – the pointing of a
domain or domains to NAME DRIVE’S system where NAME DRIVE creates an automated
webpage with pay per click advertising on said page.
Reseller – a party who acts in the shoes
of NAME DRIVE for the purpose of promoting NAME DRIVE’S landing page
services.
ARTICLE
I
REGISTRY
MONETIZATION PROGRAM
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A.
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Structure of Registry
Monetization Program
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1. The Parties will implement and operate monetization program for
unregistered or expired domain names for the Vietnamese ccTLD (the
“Registry Monetization Program”).
2. NAME
DRIVE shall provide technical support, including but not limited to hardware and
software, and business development support in the creation and
commercialization
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of the
Registry Monetization Program, as well as such other support as may be required
for the project from time to time.
3. DOT
VN shall provide governmental policy support, infrastructure and technological
access in furtherance of the creation and commercialization of Registry
Monetization Program, as well as such other support as may be required for the
project from time to time.
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B.
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Distribution of
Revenue and Accounting of Registry Monetization
Program
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1. In
consideration for their respective investment in the development of a Registry
Monetization Program, DOT VN and NAME DRIVE shall divide any revenue derived
from the Registry Monetization Program as follows:
i) DOT
VN shall be entitled to [CONFIDENTIAL
TREATMENT REQUESTED]
percent ([CONFIDENTIAL
TREATMENT REQUESTED]%) of all revenue derived from the Registry
Monetization Program; and
ii) NAME DRIVE shall be
entitled to [CONFIDENTIAL
TREATMENT REQUESTED] percent ([CONFIDENTIAL
TREATMENT REQUESTED]%) of all revenue derived from the Registry
Monetization Program.
2. NAME
DRIVE shall be responsible for the receipt, accounting and distribution of all
monies received in connection with the Registry Monetization Program and shall
provide DOT VN with reports and accounting information, in a format itemized by
domain name, on a (i) bi-weekly; (ii) monthly; (iii) quarterly; (iv) six month;
and (v) annual basis. Further, DOT VN shall have the right to audit
all records and reports upon three (3) days notice. However, DOT VN
understands that some material is confidential in accordance with Name Drive’s
contract with other partners and NAME DRIVE back office access will not be
provided in any audit except as it pertains to revenue generated under this
contract.
3. Distributions
of all revenue, in accordance with Article I(B)(1), shall be made on a net 15
basis to DOT VN via wire transfer to DOT VN’s account. DOT VN shall
provide all wire information in writing within ten (10) business days of the
signing of this agreement.
ARTICLE II
DOMAIN PARKING
PROGRAM
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A.
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Structure of Domain Parking
Program
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1. DOT
VN shall assist and promote NAME DRIVE’S parking platform as a reseller of NAME
DRIVE’S services (the “Domain Parking Program”). DOT VN shall provide
any advertising using NAME DRIVE’S trademarks or logos (“The Marks”) at least
five (5) business days prior to use and NAME DRIVE shall have the opportunity to
ascent to the use of The Marks prior to use. Nothing herein shall be
deemed as an assignment of The Marks. All other reseller terms as
listed on NAME DRIVE’S terms and conditions website shall apply.
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2. NAME
DRIVE shall provide technical support, including but not limited to hardware and
software, and business development support in the creation and commercialization
of the Domain Parking Program, as well as such other support as may be required
for the project from time to time.
3. DOT
VN shall provide governmental policy support; infrastructure and technological
access in furtherance of the creation and commercialization of Domain Parking
Program; sales support, as well as such other support as may be required for the
project from time to time.
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B.
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Distribution of
Revenue and Accounting of Domain Parking
Program
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1. In
consideration for their respective investment in the development of a Domain
Parking Program, DOT VN and NAME DRIVE shall divide any revenue derived from the
Domain Parking Program as follows:
iii) DOT VN shall be
entitled to [CONFIDENTIAL
TREATMENT REQUESTED] percent ([CONFIDENTIAL
TREATMENT REQUESTED]%) of all revenue derived from the Domain Parking
Program; and
iv) NAME DRIVE shall be
entitled to [CONFIDENTIAL
TREATMENT REQUESTED] percent ([CONFIDENTIAL
TREATMENT REQUESTED]%) of all revenue derived from the Domain Parking
Program.
2. NAME
DRIVE shall provide DOT VN with a web interface which provides all relevant
information and statistics on a real-time basis related to the calculation of
revenue.
3. NAME
DRIVE shall be responsible for the receipt, accounting and distribution of all
monies received in connection with the Domain Parking Program and shall provide
DOT VN with reports and accounting information, in a format itemized by domain
name, on a (i) bi-weekly; (ii) monthly; (iii) quarterly; (iv) six month; and (v)
annual basis. Further, DOT VN shall have the right to audit all
records and reports upon three (3) days notice. However, DOT VN
understands that some material is confidential in accordance with Name Drive’s
contract with Google and thus payments from Google, associated claw backs and
NAME DRIVE back office access will not be provided in any audit except as it
pertains to revenue generated under this contract.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
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A.
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Representations
and Warranties by NAME
DRIVE.
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1. Organization. NAME DRIVE is a limited liability company duly
organized, validly existing and in good standing under the laws of the state of
Maryland, USA.
2. Authority;
Consents and Approvals; No Violations. NAME DRIVE has the full corporate power and
authority and legal right to execute and deliver this Agreement, and otherwise
to perform its obligations hereunder. This Agreement has been validly
executed and delivered by NAME DRIVE and will constitute a valid and binding
obligation of NAME
DRIVE enforceable in
accordance with its terms, except to the extent such enforceability may be
limited by the effects of bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally, and by the
effect of general principles of equitable law, regardless of whether such
enforceability is considered in a proceeding in equity or at law. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby do not and will not violate any provision of
NAME DRIVE's Certificate of Formation or Operating
Agreement or violate, conflict with, result in a breach of or constitute (with
or without due notice, lapse of time or both) a default under any agreement,
license, contract, franchise, permit, indenture, lease, or other instrument to
which NAME
DRIVE is a party, or by
which it or any of its assets are bound.
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3. Intellectual
Property. NAME DRIVE warrant and represent that the exercise
of any rights by DOT
VN in accordance with this
Agreement will not infringe upon the any right of any third
party.
i) All intellectual property that
NAME DRIVE uses and provides to DOT VN does not infringe any patent,
trademark, trade name, copyright or title.
ii) NAME DRIVE has taken all reasonable steps to
secure such licenses and/or patents, trademarks, trade name or copyright related
to the technology, software
or processes associated with the operation of the Registry Monetization
and Domain Parking
Programs.
iii) NAME DRIVE shall grant and assign to DOT VN the benefit of all warranties and
representations made for NAME DRIVE’s benefit by any third party if DOT VN
has a cause of action against such third party or requires such grant or
assignment to defend itself against a lawsuit.
iv) That there are no liens, encumbrances
and/or obligations in connection with the technology or processes that
Registry Monetization and
Domain Parking Programs is based or any of the intellectual property of
NAME DRIVE other than such liens, encumbrances
and/or obligations specifically set forth herein or that will not have a
materially adverse effect on the consummation of the transactions contemplated
hereby.
4. Vietnamese
law. NAME DRIVE shall, in connection with the Registry
Monetization and Domain Parking
Programs, comply with any and all restrictions required by applicable Vietnamese
laws and regulations, as amended, including but not limited to content
restrictions so long as DOT VN first notifies NAME DRIVE of such content
restrictions.
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B.
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Representations
and Warranties by DOT
VN.
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1. Organization. DOT VN is a corporation duly organized,
validly existing and in good standing under the laws of the state of Delaware,
USA.
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2. Authority; Consents
and Approvals; No Violations. DOT VN has the full corporate power and
authority and legal right to execute and deliver this Agreement, and otherwise
to perform its obligations hereunder. This Agreement has been validly
executed and delivered by DOT VN and will constitute a valid and binding
obligation of DOT
VN enforceable in
accordance with its terms, except to the extent such enforceability may be
limited by the effects of bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally, and by the effect of
general principles of equitable law, regardless of whether such enforceability
is considered in a proceeding in equity or at law. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby do not and will not violate any provision of DOT VN's Certificate of Incorporation or
Bylaws or violate, conflict with, result in a breach of or constitute (with or
without due notice, lapse of time or both) a default under any agreement,
license, contract, franchise, permit, indenture, lease, or other instrument to
which DOT VN is a party, or by which it or any of
its assets are bound.
3. DOT VN understands that Name Drive is
not familiar with Vietnam law and that DOT VN is responsible for informing NAME
DRIVE of any content restrictions pertaining to Vietnam Law prior to there being
any problems and as such DOT VN agrees to indemnify NAME DRIVE for any such
problems or issues regarding content which it fails to provide written
notification to NAME DRIVE in accordance with A(4) above.
ARTICLE
IV
CONFIDENTIALITY
A. Acknowledgment. Both Parties acknowledge
and agree that both the DOT
VN Information and the
NAME DRIVE Information (collectively the
“Information”) is confidential and proprietary. The Parties agree not
to use the Information during the term of this Agreement for any purpose other
than as permitted or required for the performance by each Party
hereunder. The Parties further agree not to disclose or provide any
such Information to any third party and to take all necessary measures to
prevent any such disclosure by its employees, agents, contractors, or
consultants during the term hereof. Nothing contained herein shall
prevent either Party from using, disclosing or authorizing the disclosure of any
Information which (i) was
in the public domain at the time it was disclosed or has entered the public
domain through no fault of the receiving party; (ii) was independently developed
by the receiving party without any use of the Information; or (iii) became known
to the receiving party, without restriction, from a source other than the
disclosing party, without breach of this Agreement by the receiving party and
otherwise not in violation of the disclosing party's
rights. In addition, the receiving party may disclose the other
party’s Information as required under applicable law or regulation, including
rules of any applicable securities exchange, or pursuant to the order or
requirement of a court, administrative agency, or other governmental body;
provided, however, that the receiving party will provide prompt prior notice of
such disclosure to the disclosing party to enable the disclosing party to seek a
protective order or otherwise restrict such disclosure.
ARTICLE
V
INDEMNIFICATION
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A. NAME
DRIVE’s
Obligations. The NAME DRIVE
agrees to indemnify, defend, and shall hold harmless DOT VN, its directors,
employees and/or its agents, and to defend any action brought against said
parties with respect to any claim, demand, cause of action, debt or liability,
including reasonable attorneys' fees to the extent that such action is based
upon a claim, resulting from any action by NAME DRIVE, its officers, directors,
agents or affiliates during the term of this Agreement, and is based upon a
claim that: (i) is true, (ii) would constitute a breach of any of NAME DRIVE's
representations, warranties, or agreements hereunder, (iii) arises out of the
negligence or willful misconduct of NAME DRIVE, or (iv) arises out of the breach
of any agreement between NAME DRIVE and any third party.
B. DOT
VN’s
Obligations. DOT VN agrees to
indemnify, defend, and shall hold harmless NAME DRIVE, its directors, employees
and agents, and defend any action brought against same with respect to any
claim, demand, cause of action, debt or liability, including reasonable
attorneys' fees, to the extent that such an action is based upon a claim,
resulting from any action by DOT VN, its officers, directors, agents or
affiliates during the term of this Agreement, and is based upon a claim that:
(i) is true, (ii) would constitute a breach of any of DOT VN’s representations,
warranties, or agreements hereunder, (iii) arises out of the
negligence or willful misconduct of DOT VN or (iv) arises out of the breach of
any agreement between DOT VN and any third party.
C. Notice. In claiming any
indemnification hereunder, the indemnified party shall promptly provide the
indemnifying party with written notice of any claim, which the indemnified party
believes falls within the scope of the foregoing paragraphs. The
indemnified party may, at its expense, assist in the defense if it so chooses,
provided that the indemnifying party shall control such defense, and all
negotiations relative to the settlement of any such claim. Any
settlement intended to bind the indemnified party shall not be final without the
indemnified party's written consent, which shall not be unreasonably
withheld.
ARTICLE
VI
TERM AND
TERMINATION
A. Term. This Agreement shall take
effect as of the Effective Date and shall continue for a period of one (1)
year. Thereafter, this Agreement shall be renewed for additional
periods of one (1) year each, if each of the parties shall have give the other
notice of its renewal of this agreement no later then one hundred twenty (120)
days prior to the end of the term of this Agreement.
B. Termination. Notwithstanding the
provisions of Article VI(A) above, this Agreement may be terminated in
accordance with the following provisions:
1. Either party hereto may terminate this
Agreement at anytime by giving notice in writing to the other party, which shall
be effective upon dispatch, should the other party file a petition of any type
as to its bankruptcy, be declared bankrupt, become insolvent, make an assignment
for the benefit of its creditors, go into liquidation or
receivership.
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2. Either party may terminate this
Agreement by giving notice in writing to the other party should an event of
Force Majeure continue for more than six (6) months as provided in Article
VII(D) below.
3. Either party may terminate this
Agreement by giving notice in writing to the other party in the event the other
party is in material breach of this Agreement and shall have failed to cure such
breach within thirty (30) days of receipt of written notice thereof from the
non-breaching party.
4. Either party may terminate this
Agreement for any reason via notice in writing to the other party provided that
such termination is effective sixty (60) days after receipt of such written
notice.
5. The Parties may at any time mutually
terminate this Agreement, provided that such termination is evidenced by written
document signed by both Parties.
C. Rights and
Obligations upon Termination. In the event of termination
of this Agreement for any reason, the parties shall have the following rights
and obligation:
1. Termination of the Agreement shall not
release either party from the obligation to make payment on all amounts due as
of the date of Termination.
2. The Parties obligations pursuant to
Article IV and V hereof shall survive the termination of this
agreement.
3. Upon termination of this Agreement, the
Parties will cease to display or otherwise use all trademarks, service marks,
trade names, copyrights, other proprietary designations, and variations and
combinations thereof, for which consent to display or otherwise use was granted,
and will deliver to the owner or destroy them, at the owner’s sole discretion,
free of any charge, all materials of any type or kind displaying or otherwise
using the same which are in the other Party’s control.
4. Upon termination any revenue shall
continue to be split in accordance with the terms of this agreement until there
is no more revenue.
ARTICLE
VII
FORCE
MAJEURE
A. Definition. Force Majeure shall mean any event or
condition, not existing as of the date of signature of this Agreement, not
reasonably foreseeable as of such date and not reasonably within the control of
either party, which prevents in whole or in material part, the performance by
one of the parties of its obligations hereunder or which renders such
obligations so difficult or costly as to make such performance commercially
unreasonable. Without limiting the foregoing, the following shall
constitute events or conditions of Force Majeure: acts of State or governmental
action, riots, disturbance, war, strikes, terrorism, lockouts, slowdowns,
prolongs shortage of energy supplies, epidemics, fire, flood, hurricane,
typhoon, earthquake, lightning and explosion. It is in particular
expressly agreed that any changes to any applicable Vietnamese laws or
regulations which would affect the fulfillment by DOT VN of its obligations hereunder shall
constitute an event of Force Majeure.
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B. Notice. Upon giving notice to the
other party, a party affected by an event of Force Majeure shall be released
without any liability on its part from the performance of obligations under this
Agreement, except for the obligations under Articles IV, V and VI(C), but only
to the extent and only for the period that its performance of such obligations
is prevented by the event of Force Majeure. Such notice shall include
a description of the event of Force Majeure, and its cause and possible
consequences. The party claim Force Majeure shall promptly notify the
other party of the termination of such event.
C. Suspension
of Performance. During the period that the
performance by one of the parties of its obligations under this Agreement has
been suspended by reason of an event of Force Majeure, the other party may
likewise suspend the performance of all or part of its obligations hereunder to
the extent that such suspension is commercially reasonable.
D. Termination. Should the period of Force
Majeure continue for more than six (6) consecutive months, either party may
terminate this Agreement without liability to the other party except for
payments due to such date, upon giving written notice to the other
party.
ARTICLE
VIII
MISCELLANEOUS
A. Relationship. This Agreement does not
make either party the employee, agent or legal representative of the other for
any purpose whatsoever. Neither party is granted any right or
authority to assume or to create any obligation or responsibility, express or
implied, on behalf of or in the name of the other party. In
fulfilling its obligations pursuant to this Agreement each party shall be acting
as an independent contractor.
B. Assignment. Neither party shall have
the right to assign or to otherwise transfer its rights and obligations under
this Agreement except with the prior written consent of the other
party. Further any successor in interest by merger, operation of law,
assignment, purchase or otherwise of the entire party shall acquire all rights
and obligations of such party hereunder. Any prohibited assignment
shall be null and void. If such other party consents as stated above,
any potential assignee must agree to abide by the terms and conditions of this
Agreement. "Assignment" shall be deemed to include the transfer of
substantially all the assets of, or majority interest in the voting stock of,
either party, or the merger of either party with one or more third parties which
changes the majority ownership of the party.
C. Disputes. In the event of any dispute, the parties
respective decision makers agree to meet within ten (10) business days and in
good faith seek an informal resolution of the disputed issue. If no
resolution is reached, the parties agree to submit any claim, dispute or
controversy (“Claim”) against the other, or against the employees, agents or
assigns of the other, arising from or relating in any way to this Agreement,
including Claims regarding the applicability of this arbitration clause or the
validity of the entire Agreement, to binding arbitration to be administered by
JAMS, in San Diego, California, under its Streamlined Rules, unless the parties
otherwise agree. The sole arbitrator shall have the power to
determine issues of arbitrability, and shall apply the laws of the State of
California, except for, and limited only to claims or issues where California
law is preempted by federal statute. All other issues shall be
governed by applicable California law, excluding the Convention on Contracts
for the International Sale of Goods and that body of law known as conflicts of
laws. If the
parties cannot agree on a single arbitrator, a panel of 3 arbitrators shall be
employed, the parties each selecting one arbitrator, and the two arbitrators so
selected shall choose a third “independent” arbitrator. All
arbitrators must either be licensed attorneys or retired judges. The
parties shall have right to full discovery to the extent permitted by the
California Code of Civil Procedure and California Rules of Court applicable to
judicial arbitrations. The arbitrator(s) shall be empowered to
appoint experts and/or consultants, resolve discovery disputes grant equitable
relief, compensatory and punitive damages, and grant any relief a party could
obtain in an action initiated in the a California Superior Court, proceed
ex-parte should one party fail to appear, and grant any other type of relief
appropriate to the particular circumstances. The arbitrator shall
have the power to award the prevailing party its litigation expenses including
reasonable attorneys fees and costs, and expert witness fees. The
hearing shall take place within 6 months of submission to
arbitration. No pre-hearing motions may be filed, other than with
respect to requests for injunctive relief and discovery disputes. All
arbitration hearings shall be via telephone. Judgment may be entered
in any court of competent jurisdiction. The parties agree that all
proceedings are confidential in perpetuity, except as required by applicable law
or pursuant to the authority of a regulatory body.
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D. Amendment. This Agreement may not be
modified or amended except by an instrument in writing signed by each of the
parties hereto, or their respective permitted successors in
interest.
E. Waiver. No term or condition of
this Agreement shall be deemed to have been waived, nor any estoppel against the
enforcement of any provision of this Agreement, except by written instrument of
the party charged with such waiver or estoppel. In addition, no such
written waiver or estoppel that is in effect shall be deemed to be a continuing
waiver unless specifically stated therein, shall operate only as to the specific
term or condition waived and shall not constitute a waiver as to any act other
than that specifically waived or as to any term, condition or obligation that
comes into effect subsequent to the written waiver.
F. Agreement in
Counterparts. This Agreement may be
executed in counterparts, each of which thus executed shall be deemed an
original, but all of which, taken together, shall constitute one and the same
agreement, binding upon the parties hereto, their administrators, successors and
permitted assigns.
G. Severability. If any provision of this
Agreement, or the application thereof, shall be determined by a court of
competent jurisdiction to be invalid or unenforceable, then this Agreement shall
remain in full force and effect between the parties to the greatest extent
permitted by law unless the invalidity or unenforceability of such provision or
provisions destroys or materially impairs the basis of the bargain between the
parties as contained in this Agreement.
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H. Captions;
References. Article and paragraph
headings in this Agreement are for convenience of reference only and shall not
affect the construction or interpretation of this Agreement. Whenever
the terms "hereof", "hereby", "herein" or words of similar import are used in
this Agreement they shall be construed as referring to this Agreement in its
entirety rather than to a particular paragraph or provision, unless the context
specifically indicates to the contrary. Any reference to a particular
or "Paragraph" or “Article” shall be construed as referring to the indicated
paragraph or section of this Agreement unless the context specifically indicates
to the contrary.
I. Notices. Any notice, direction or other
instrument required or permitted to be given under or in connection with this
Agreement shall be effective when either delivered personally, mailed by
certified mail, return receipt requested (with postage prepaid), to the
addresses listed below, or deposited with Federal Express or other reputable
courier (with fee prepaid) for overnight delivery to the addresses listed
below:
If to DOT VN:
Attn:
Legal Department
0000
Xxxxxx Xxx., Xxxxx 000
Xxx
Xxxxx, Xxxxxxxxxx 00000
If to NAME
DRIVE:
NAME DRIVE, LLC
Attn: Xxxxxxx X.
Xxxxxxxxx
0000
Xxxxxxxxx Xxx., Xxxxx X-0
Xxxxxxxxxx,
XX 00000
Any party may change its address
for service from time to time by notice given in accordance with the foregoing
and any subsequent notice shall be sent to the party at its new address, as so
noticed.
J. Entire
Agreement. The
parties have read this Agreement and agree to be bound by its terms, and further
agree that it constitutes the complete and entire Agreement of the parties and
supersedes all previous and contemporaneous communications, oral, implied or
written, and all other communications between them relating to the subject
matter thereof. No representations or statements of any kind in
relation to the subject matter hereof made by either party, which are not
expressly stated herein, shall be binding on such party.
REMAINDER
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IN WITNESS
WHEREOF, the parties hereto
have signed this Agreement, thereunto duly authorized on the day and year above
written.
| NAME DRIVE, LLC | ||||
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/s/
Xxxxxx Xxxxxxx
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/s/
Xxxxxxx Xxxxxx
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By:
Xxxxxx Xxxxxxx
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By:
Xxxxxxx Xxxxxx
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Its:
Chief Executive Officer
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Its:
Chief Business Development Officer
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