Domain Purchase and Development Agreement
Exhibit 10.2
Execution Copy
This Domain Purchase and Development Agreement (this “Agreement”) is entered into this 30th day of
September 2010 (the “Effective Date”) by and between Xxxxx.xxx Corporation, a Delaware corporation
located at 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxxx, XX 00000 (“Xxxxx.xxx”), and SuperMedia, LLC, a
Delaware limited liability company located at 0000 Xxxx Xxxxxxxx Xxxxx, XXX Xxxxxxx, Xxxxx 00000
(“SuperMedia”). SuperMedia and Xxxxx.xxx shall collectively be referred to as the “Parties” and
each a “Party.”
Recitals
| A. | SuperMedia desires to purchase up to *** domain names meeting certain defined criteria owned by Xxxxx.xxx and Xxxxx.xxx desires to sell such domains to SuperMedia; | ||
| B. | Xxxxx.xxx’s Octane360 Platform provides certain proprietary website development technology through which Xxxxx.xxx can (i) develop and deploy websites. (ii) provide ongoing hosting and maintenance of websites, and (iii) develop content for such websites; | ||
| C. | SuperMedia desires to utilize the Octane360 Platform for the domains purchased from Xxxxx.xxx pursuant to this Agreement and Xxxxx.xxx desires to provide the Octane360 Platform to Xxxxx.xxx for such purposes, as more fully described below. |
NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises set forth below,
the parties do hereby agree as follows:
Agreement
1. Domain Sale and Purchase.
1.1 Assets to be Acquired, Transfer of Assets. Xxxxx.xxx shall, on the Effective Date,
sell, convey and assign to SuperMedia, free and clear of all claims, liens and interests of any
kind, all of Xxxxx.xxx’s right, title and interest in and to the domain names set forth on Exhibit
A (the “Domains”) and the Websites, as defined in Section 1.2 below. Xxxxx.xxx shall transfer the
Domains to SuperMedia’s *** account as soon as possible after the Effective Date, (“Transfer
Date”). Xxxxx.xxx shall cooperate fully with SuperMedia to make the proper arrangements with ***,
the entity with which the Domains are registered, (the “Registrar”) to effectuate the foregoing
transfer, including but not limited to the completion, signature and notarization of all documents
(including electronic) that are required by the Registrar to effectuate such transfer. If there is
a failure by Xxxxx.xxx to cooperate fully to effectuate the transfer, SuperMedia is authorized as
Xxxxx.xxx‘s agent and attorney-in-fact to complete the transfer and assignment on Xxxxx.xxx‘s
behalf and to make the necessary arrangements under the irrevocable authorization attached hereto,
duly executed by Xxxxx.xxx’s authorized signatories with such signatures notarized.
1.2 Domain and Website Characteristics. The Domains match the geographic and categories
(and associated keywords) identified by SuperMedia, as more completely set forth on Exhibit B
attached hereto. At least *** of the Domains consist of a geographic modifier plus no more than
*** additional words. Each of the Domains will have an SEO optimized website developed for it
delivered on the Effective Date (the “Websites). *** The privacy policy and terms of use may be
subsequently updated from time to time on two (2) business days prior notice,
provided the Platform supports the functionality required by an subsequent update. If the Platform
does not support the functionality required by a subsequent update, Xxxxx.xxx will work in good
faith to create such functionality as is required by law. ***
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1.3 Liabilities. SuperMedia shall, on the Transfer Date, assume all liabilities and
obligations arising out of the ownership, use and operation of the Domains and Websites after the
Transfer Date, including without limitation any subsequent registration charges. Xxxxx.xxx shall
retain and shall be responsible for paying, performing and discharging when due, and SuperMedia
shall not assume or have any responsibility for any liabilities associated with the Domains or
Websites prior to the Transfer Date. Notwithstanding the foregoing, Xxxxx.xxx shall be responsible
and liable for any and all liabilities or damages due to infringement of intellectual property
rights of third parties existing on or prior to the Effective Date by the Domains, unless caused by
the actions of SuperMedia.
2. Ongoing Services
2.1 Launch Date. As soon as possible after the Effective Date, but no later than ***,
Xxxxx.xxx will *** transfer the Domains to SuperMedia as provided in subsection1.1, create the
Articles (as hereinafter defined) and launch the Websites (the “Launch Date”).
2.2 Hosting. Beginning on the Effective Date, Xxxxx.xxx shall provide hosting services for
each of the Domains using the Octane360 Platform (the “Platform”). The hosting will be provided
consistent with industry standards.
2.3 Content Development. Xxxxx.xxx shall develop *** articles for each Website (a total of
*** articles, *** (collectively, the “Articles”). The Articles will be developed prior to the
Launch Date. The Articles will be created using the Octane360 Content Marketplace, available
through the Platform, and checked for plagiarism using automated means available through the
Platform.
2.4 Platform Usage. For so long as a Domain is hosted by Xxxxx.xxx, SuperMedia may use the
Platform to manage the Websites. Xxxxx.xxx will provide up to three SuperMedia representatives
with access to the Platform’s administrative console (the “Console”), through which SuperMedia can,
among other things, (i) add new content and/or advertising to the Websites, and (ii) access
reporting with respect to the Domains. Any SuperMedia representatives who are not employees of
SuperMedia will require the prior written approval of Xxxxx.xxx and must enter into an agreement
with SuperMedia on terms that offer similar protections to Xxxxx.xxx as those set forth in this
Agreement with respect to confidentiality and non-disclosure.
3. Purchase Price, Development Fees and Ongoing Fees
3.1 Domains Purchase Price. As consideration for the sale and transfer of the Domains
pursuant to Section 1 hereof, within thirty (30) days of the Effective Date, Xxxxx.xxx will invoice
SuperMedia *** for each Domain and Website purchased pursuant to this Agreement, for total
consideration of *** (the “Purchase Price”). SuperMedia will pay Xxxxx.xxx the Purchase Price
within thirty (30) days of receipt of the invoice.
3.2 Website Development Fee. As consideration for the development of the Websites pursuant
to Section 1 hereof, within thirty (30) days of the Effective Date, Xxxxx.xxx will invoice
SuperMedia for a total of *** (the “Development Fee”). SuperMedia will pay Xxxxx.xxx the
Development Fee within thirty (30) days of receipt of the invoice.
3.3 Fees. As consideration for the services to be provided by Xxxxx.xxx to SuperMedia,
SuperMedia will pay Xxxxx.xxx:
(i) A one time fee of *** per Domain for the Articles developed for each such Domain pursuant
to Section 2.3 hereof, provided that thereafter SuperMedia may utilize the Octane360 Content
Marketplace to purchase additional articles and content for the Websites at a purchase price equal
to Xxxxx.xxx’s cost for procuring such content;
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(ii) After the Effective Date, a fee of *** per Domain per month for hosting pursuant to
Section 2.1 hereof through December 31, 2010, and thereafter *** per Domain per month.
***
4. Intellectual Property
4.1 Ownership. Except as otherwise set forth below, as between SuperMedia and Xxxxx.xxx,
(a) SuperMedia owns and retains all right, title and interest (including, without limitation,
intellectual property rights) in and to (i) any SuperMedia advertising, and from and after the
Effective Date, and (ii) the Domains, Websites, and Articles; and from and after the Transfer Date
(b) Xxxxx.xxx owns and retains all right, title and interest (including, without limitation,
intellectual property rights) in and to the Platform and the Console and any of the services
provided through the foregoing (the “Services”), as well as any advertising feeds provided by
Xxxxx.xxx to any of the Domains. All rights not expressly granted in this Agreement are reserved.
4.2 Limitations. SuperMedia will not, and will not permit any third party, to (a)
sell, resell, rent, license, sublicense, transfer, assign or redistribute in any way all or any
portion of the Services, the Platform, the Console or the Xxxxx.xxx Marks; (b) attempt to reverse
engineer, decompile, disassemble or otherwise attempt to derive any of Xxxxx.xxx’s algorithms,
databases, computer programs, ontology, directory structure, software, or patents, copyrights, or
other proprietary rights or Xxxxx.xxx’s methodology related in any way to the Services, the
Platform or the Console; (c) crawl, index, store or cache any of the Services or any component
thereof.
4.3 License.
(i) Xxxxx.xxx hereby grants to SuperMedia a non-transferable, non-exclusive,
non-sublicensable, royalty-free, right and license to use the Platform, the Console, and the
Services as necessary to operate the Domains and Websites as contemplated by this Agreement,
subject to the limitations set forth in Section 4.2 hereof.
(ii) From and after the Effective Date, SuperMedia hereby grants to Xxxxx.xxx a
non-transferrable, non-sublicensable, revocable, royalty-free, right and license to use the
Domains, Articles, and the Websites as necessary for Xxxxx.xxx to perform its obligations under
this Agreement, provided that if SuperMedia revokes any rights necessary for it to perform its
obligations under this Agreement, Xxxxx.xxx will no longer be required to perform such obligations.
5. Representations and Warranties.
As a material inducement to enter into the Agreement, each Party represents and warrants to the
other Party as follows:
5.1 Authorization, Etc. It has full power, authority and legal capacity to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate the transactions
contemplated hereby. It has duly executed and delivered this Agreement. This Agreement constitutes
its legal, valid and binding obligation enforceable against it in accordance with its terms.
5.2 No Conflict; Approvals. The execution, delivery and performance of this Agreement by it
does not and will not (a) violate, conflict with or result in the breach of any provision of its
charter, bylaws, operating agreement, or other constituent documents (if applicable), (b) conflict
with or violate any law or order applicable to it or any of its assets, properties or businesses,
(c) require any consent, approval or authorization of any third party, or (d) conflict with,
require any consent
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under any note, bond, mortgage, indenture, contract, agreement, lease,
sublease, license, permit, franchise or other instrument or arrangement to which it is a party.
5.3 Compliance with Laws. Each party shall comply with all applicable federal, state,
county and local statutes, laws, ordinances, regulations and codes (“Laws”) in performing under
this Agreement. Xxxxx.xxx’s obligation to comply with all Laws includes, but is not limited to,
the procurement of permits, certificates, approvals, inspections and licenses, when needed, in the
performance of the Services under this Agreement.
Xxxxx.xxx further represents and warrants to SuperMedia as follow:
5.4 Registered Owner. Xxxxx.xxx has good, valid, marketable and transferable title and
registrations to the Domains, in each case free and clear of any lien or other encumbrance (other
than as set forth in the registration agreement(s) applying thereto). Each registration agreement
related to such Domains is in full force and effect and all registration fees associated therewith
have been duly paid and there are currently no amounts due to the registrar of such Domains in
connection therewith.
5.5 Litigation. To the best of Xxxxx.xxx’s knowledge there are no claims, or threatened
claims, that any of the Domains violate the trademark rights of any other person or entity, or
otherwise violates any law.
6. Confidentiality
Each Party will hold all Confidential Information (as defined below) of the other Party in strict
confidence and will not disclose any Confidential Information to any third party. The Parties will
disclose the Confidential Information of the other Party only to its respective employees,
contractors, and agents who need to know such information for the purposes of performing their
respective obligations under this Agreement and who are bound in writing by restrictions regarding
disclosure and use of such information comparable to and no less restrictive than those set forth
herein. Neither Party will use any Confidential Information of the other Party for the benefit of
itself or any third party or for any purpose other than performing its obligations under this
Agreement. Each Party will use the same degree of care that it uses to protect its own
confidential and proprietary information of similar nature and importance (but in no event less
than reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure,
publication or dissemination of the Confidential Information of the other party. “Confidential
Information” means any and all information disclosed by one Party to the other Party, directly or
indirectly, in writing, orally, electronically, or in any other form, that is designated, at or
before the time of disclosure, as confidential or proprietary, or that is provided under
circumstances reasonably indicating that the information is confidential or proprietary, including,
without limitation, trade secrets, lists, business plans, technical data, product ideas, personnel,
contract and financial information, and the terms of this Agreement. Notwithstanding the
foregoing, Confidential Information does not include information that: (a) is or becomes generally
available to the public through no breach of this Agreement or any other agreement by the recipient
of the information; (b) is or was known by the recipient of the information at or before the time
such information was received from the discloser, as evidenced by the recipient’s tangible
(including written or electronic) records; (c) is received from a third-party that is not under an
obligation of confidentiality to the knowledge of the disclosing Party with respect to such
information; (d) is independently developed by the recipient of the information without any breach
of this Agreement, as evidenced by the recipient’s contemporaneous tangible (including written or
electronic) records; or (e) is approved for release in advance in writing by the disclosing Party,
as applicable. If the disclosure of Confidential Information of a Party is required by law, such
Party shall promptly notify the disclosing Party in advance of such required disclosure and use its
best efforts to minimize the scope of such disclosure.
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7. Disclaimer; Limitation of Liability
EXCEPT AS EXPRESSLY PROVIDED HEREIN, SUPERMEDIA HEREBY ACKNOWLEDGES AND AGREES THAT THE GOODS AND
SERVICES PROVIDED BY XXXXX.XXX PURSUANT TO THIS AGREEMENT ARE BEING PROVIDED TO SUPERMEDIA “AS IS,
WITH ALL FAULTS.” EXCEPT AS EXPRESSLY PROVIDED HEREIN, ALL WARRANTIES OF ANY KIND, EXPRESS,
IMPLIED OR STATUTORY, ARE HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. XXXXX.XXX DOES NOT GUARANTEE THAT THE SERVICES WILL OPERATE CONTINUOUSLY OR
UNINTERRUPTED. IF AN INTERRUPTION IN THE SERVICES OCCURS, XXXXX.XXX’S SOLE OBLIGATION SHALL BE TO
RESTORE THE SERVICES AS SOON AS IS REASONABLY POSSIBLE.
EXCEPT WITH RESPECT TO (A) A BREACH OF SECTION 6, (B) THE INDEMNIFICATION OBLIGATIONS UNDER SECTION
8, OR (C) EITHER PARTY’S BAD FAITH, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (X) UNDER NO
CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, PUNITIVE,
CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH DAMAGES ARE FORESEEABLE OR THE PARTY HAS
BEEN ADVISED OR HAS CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM SUCH
PARTY’S PERFORMANCE OR NON-PERFORMANCE PURSUANT TO ANY PROVISION OF THIS AGREEMENT OR THE OPERATION
OF SUCH PARTY’S BUSINESS, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR
LOST BUSINESS; AND (Y) EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY ARISING FROM OR RELATING
TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, UNDER ANY LEGAL THEORY (WHETHER IN CONTRACT, TORT,
INDEMNITY OR OTHERWISE), WILL BE LIMITED AN AMOUNT EQUAL TO ***.
8. Indemnification
8.1 Xxxxx.xxx Indemnity. Xxxxx.xxx agrees to indemnify, defend and hold harmless
SuperMedia, its officers, directors, employees, affiliates, subsidiaries, agents, successors and
assigns from and against any third-party claims, suits, proceedings, demands or actions and any
damages, losses, costs, expenses or settlement fees incurred in connection therewith (including
reasonable attorneys fees and costs) (collectively, “Losses”) arising out of or relating to (a) any
breach or alleged breach by Xxxxx.xxx of its representations, warranties, or covenants provided in
this Agreement; (b) any use of the Domains or Websites, except as contemplated by this Agreement;
(c) Xxxxx.xxx’s bad faith, negligence or willful misconduct, or (d) any infringement upon any third
party’s intellectual property rights (including without limitation, any third party trademark,
trade secret, copyright, patent rights, rights of attribution and other statutory and privacy
rights or other rights of any third party, by the Domains and the Websites where such third party
rights existed or are claimed by such third party to have existed on or before the Effective Date,
and the Articles where such third party rights existed or are claimed by such third party to have
existed on or before the Launch Date. With respect to any indemnity claims pursuant to subsection
(d) hereof, SuperMedia agrees to take such actions as are reasonably necessary to mitigate the
damages that may be suffered by Xxxxx.xxx, including without limitation removing any Article that
becomes the subject of a third party claim from the Website, taking down a Website that becomes the
subject of a third party claim, or, where circumstances require, transferring any Domains to a
third party that has asserted a reasonable claim to such Domain, provided that Xxxxx.xxx will, in
addition to its indemnification obligations above, provide
SuperMedia with reasonable replacements to any such removed Articles or transferred Domains.
8.2 SuperMedia Indemnity. SuperMedia agrees to indemnify, defend and hold harmless
Xxxxx.xxx, its officers, directors, employees, affiliates, subsidiaries, agents, successors and
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assigns from and against any third-party claims, suits, proceedings, demands or actions and any
Losses incurred in connection therewith arising out of or relating to (a) any breach or alleged
breach by SuperMedia of its representations, warranties, or covenants provided in this Agreement;
(b) any aspect of the Domains arising from and after the Effective Date, except for issues giving
rise to Xxxxx.xxx’s indemnification obligations pursuant to Section 8.1(b) and (d); (c)
SuperMedia’s modification or use of any portion of the Services, except as provided herein; or (d)
SuperMedia’s bad faith, negligence or willful misconduct.
8.3 Procedure. An indemnitee under this Section 8 (an “Indemnitee”) must (x) promptly
notify the indemnitor (an “Indemnitor”) in writing regarding any facts that may give rise to a
claim for indemnification under this Agreement (provided that any delay in notification will not
relieve the Indemnitor of its obligations hereunder except to the extent that the delay impairs its
ability to defend); (y) provide Indemnitor with reasonable information, assistance and cooperation
in defending the lawsuit or proceeding (at Indemnitor’s expense, to the extent of any out-of-pocket
expenses); and (c) give the Indemnitor full control and sole authority over the defense and
settlement of such claim, subject to Indemnitee’s approval of any such settlement, which approval
will not be unreasonably withheld or delayed.
9. Term and Termination.
This Agreement shall commence on the Effective Date and shall continue in full force and effect for
a period of one (1) year and thereafter automatically renew for successive one (1) year periods,
unless either party notifies the other party in writing of its intent not to renew at least thirty
(30) days prior to the end of the then-current term (collectively, the “Term”). ***
10. Miscellaneous.
10.1 Independent Contractors. The relationship of Xxxxx.xxx and SuperMedia established by
this Agreement is that of independent contractors, and nothing contained in this Agreement will
create or be construed to create any partnership, joint venture, agency, franchise, sales
representative, employment or fiduciary relationship between the parties.
10.2 Governing Law. This Agreement will be governed, construed, and controlled by the laws
of the State of Texas, notwithstanding any conflict of law provisions. Each party waives all
defenses of lack of personal jurisdiction and forum non conveniens.
10.3 Assignment. This Agreement may not be assigned, in whole or in part, by either Party
hereto without the prior written consent of the other Party hereto, not to be unreasonably
withheld. Any purported assignment, sale, transfer, delegation or other disposition by a Party
hereto, except as permitted herein, shall be null and void. This Agreement shall be binding upon
and shall inure to the benefit of the Parties and their respective successors and permitted
assigns.
10.4 Recovery of Fees by Prevailing Party. If any legal action, including, without
limitation, an action for arbitration or equitable relief, is brought by one Party against the
other Party relating to this Agreement or the breach or alleged breach hereof, the prevailing Party
in any final judgment or arbitration award, or the non-dismissing Party in the event of a voluntary
dismissal by the Party instituting the action, will be entitled to reimbursement from the other
Party for the full amount of all reasonable expenses, including all court costs, arbitration fees
and reasonable attorneys’ fees paid or incurred in good faith.
10.5 Severability. If the application of any provision of this Agreement to any particular
facts or circumstances will be held to be invalid or unenforceable by an arbitration panel or a
court of competent jurisdiction, then (a) the validity of other provisions of this Agreement will
not in any way be affected thereby, and (b) such provision will be enforced to the maximum extent
possible
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so as to effect the intent of the Parties and reformed without further action by the
Parties to the extent necessary to make such provision valid and enforceable.
10.6 Waiver. A waiver of a Party’s breach of any provision of this Agreement will not
operate as or be deemed to be a waiver of that Party’s prior, concurrent or subsequent breach of
that or any other provision of this Agreement.
10.7 Force Majeure. Neither party will be deemed in default of this Agreement to the
extent that performance of its obligations (other than payment obligations) or attempts to cure any
breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident,
riots, acts of government, acts of war or terrorism, shortage of materials or supplies, failure of
transportation or communications or of suppliers of goods or services, or any other cause beyond
the reasonable control of such Party (“Force Majeure Event”). If a Force Majeure Event occurs, the
party delayed will promptly give notice to the other party. Such other party may elect to: (i)
suspend performance and extend the time for performance for the duration of the Force Majeure
Event, or (ii) cancel all or any part of the unperformed part of this Agreement.
10.8 Notices. Any notice or approval desired or required to be provided to a Party
hereunder will be given to such Party in writing by personal delivery (notice deemed effective upon
receipt), overnight messenger (notice deemed effective the business day after such messenger’s
acceptance (which acceptance must occur before such messenger’s required deadline) for next
business day service), facsimile transmission with follow-up copy by mail (notice deemed effective
upon electronic confirmation of facsimile receipt), or e-mail (noticed deemed effective upon
receipt of a return e-mail, other than an automatically generated return e-mail, indicating that
the e-mail notice has been received), addressed to such Party at the address, facsimile number, or
e-mail address, as applicable, for such party specified in the introductory paragraph of this
Agreement, Attn: General Counsel. A party may designate a substitute address, facsimile number,
or e-mail address by written notice to the other with the effectiveness of such notice governed by
the terms of this Section. If the final day for giving notice is a Saturday, Sunday or nationally
recognized holiday then the time for giving such notice will be extended to the next business day.
10.9 Counterparts. This Agreement may be executed in two or more counterparts, each of
which will be deemed an original and all of which together will constitute one and the same
instrument.
10.10 Entire Agreement. The provisions of this Agreement constitutes the entire agreement
between the Parties with respect to the subject matter hereof and this Agreement supersedes all
prior agreements or representations, oral or written, regarding such subject matter.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the date first
written above.
| Xxxxx.xxx Corporation | SuperMedia LLC | |||||||||||||
By:
|
/s/ Xxxxx Xxxxxx | By: | /s/ Xxxxxx Xxxxxxxx Xxxxxxxxxx | |||||||||||
| Date: 9-30-10 | Date: 9-30-10 | |||||||||||||
| Name: Xxxxx Xxxxxx | Name: Xxxxxx Xxxxxxxx Xxxxxxxxxx | |||||||||||||
| Title: – CEO | Title: Chief Marketing Officer | |||||||||||||
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EXHIBIT A
Acquired Domains
***
Acquired Domains
***
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EXHIBIT B
***
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