Exhibit 10.3
DOMAIN NAME
LICENSE AGREEMENT
between
xxxxxxxXX.xxx, Inc.
and
Xxxxxxxx Xxxxx
1
TABLE OF CONTENTS
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1. DEFINITIONS........................................................ 1
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2. LICENSE GRANT...................................................... 3
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3. TERM OF THE LICENSE, RENEWAL....................................... 4
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4. LICENSEE'S EFFORTS................................................. 5
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5. LICENSE FEE........................................................ 6
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6. OWNERSHIP AND PROTECTION OF THE DOMAIN NAMES....................... 6
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7. OWNERSHIP AND PROTECTION OF LICENSEE'S TRADEMARKS.................. 6
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8. REPRESENTATIONS AND WARRANTIES..................................... 7
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9. TERMINATION........................................................ 8
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10. INDEMNIFICATIONS................................................... 10
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11. NON-COMPETITION.................................................. 11
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12. MISCELLANEOUS.................................................... 12
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LICENSE AGREEMENT
LICENSE AGREEMENT, dated as of January 1, 1999 by and between Xxxxxxxx
Xxxxx, of 00 Xxxxxxxxx Xxxx, Xxxxxx, X.X. 00000 (the: "Owner"), and
xxxxxxxXX.xxx, Inc., a Delaware Corporation having an office and place of
business at 000 Xxxxx Xxxxxx, Xxxxx 0000X, Xxx Xxxx, Xxx Xxxx 00000 (the:
"Licensee").
WHEREAS, Licensee desires to obtain an exclusive right to use the Domain
Names (as defined hereinbelow) in connection with its Internet Business, and
Owner is willing to grant to Licensee such License under the terms and
conditions hereinafter specifically set forth; and
NOW, THEREFORE, in consideration of the mutual covenants, undertakings, and
promises contained herein, and other good and valuable consideration, the
receipt and sufficiency of which the parties hereby acknowledge and confirm, and
intending to be legally bound, the parties agree as follows:
1. DEFINITIONS.
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Throughout this Agreement the following terms shall have the meanings set
forth below:
(a) "Additional Name" means any additional domain name or URL owned by the
Owner that is not included on Schedule "A", that does not compete with the
business of the Licensee, does not contain the letters "TV" or any of the words
"channel" "station" "network" or "streaming" and is otherwise permitted
hereunder.
(b) "Affiliate" means, as to any Person or entity, any other person or
entity which directly or indirectly controls, is controlled by or is under
common control with such person or entity. Control shall mean the right to
control, or actual control of, direction of management of such other entity,
whether by ownership of voting securities, by agreement, or otherwise.
(c) "Agreement" means this License Agreement, as amended, modified or
supplemented from time to time, as the context requires.
(d) "Content" means text, graphics, photographs, video, audio and/or other
data or information, including, without limitation, Television Content, relating
to any subject.
(e) "CPI" means the U.S. Consumer Price Index for all urban consumers for
the national average.
(f) "Domain Names" means the domain names and URLs, and any successors
thereto, currently set forth in Schedule "A" hereto.
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(g) "Domain Name Registration Agreement" means, collectively, those certain
Domain Name Registration Agreements, a sample of which is set forth on Schedule
"B", that have been entered into between the Owner and NSI, relating to each of
the Domain Names, including its Domain Name Dispute Policy, and any amendment,
substitution, or modification thereof, and including any other agreements,
rules, regulations, policies, that govern or control with respect thereto.
(h) "Intellectual Property" means all inventions, discoveries, trademarks,
patents, trade names, copyrights, moral rights, jingles, know-how, intellectual
property, software, shop rights, licenses, developments, research data, designs,
technology, trade secrets, test procedures, processes, route lists, computer
programs, computer discs, computer tapes, literature, reports and other
confidential information, intellectual and similar intangible property rights,
whether or not patentable or copyrightable (or otherwise subject to legally
enforceable restrictions or protections against unauthorized third party usage),
and any and all applications for, registrations of and extensions, divisions,
renewals and reissuance of, any of the foregoing, and rights therein, including
without limitation (a) rights under any royalty or licensing agreements, and (b)
programming and programming rights, whether on film, tape or any other medium.
(i) "Internet" means global network of interconnected computer
networks, each using the Transmission Control Protocol/Internet Protocol and/or
such other standard network interconnection protocols as may be adopted from
time to time, which is used to transmit Content that is directly or indirectly
delivered to a computer or other digital electronic device for display to an
end-user, whether such Content is delivered through on-line browsers, off-line
browsers, or through "push" technology, electronic mail, broadband distribution,
satellite, wireless or otherwise, and any subset of such global network, such as
"intranets."
(j) "Internet Business" means an Internet service or Web site that (i)
provides information or news services, including without limitation the delivery
of Content to consumers, or (ii) uses the Domain Names or any other Intellectual
Property associated therewith or relating thereto.
(k) "Internet Site" means any site or service delivering Content on or
through the Internet, including, without limitation, any on-line service such as
America Online, Compuserve, Prodigy and the Microsoft Network.
(l) "InterNic" or "NSI" means Network Solutions, Inc., or any successor,
assignee, or replacement thereof, that maintains and handles the registration of
domain names and URLs.
(m) "License Fee" means the license fee which the Licensee is obligated to
pay the Owner hereunder pursuant to Section 5.
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(n) "Licensee's Trademarks" Trademarks and other Intellectual Property used
by Licensee in its Internet Business, other than the Domain Names, including
trademarks that are based on or incorporate all or any of the Domain Names.
(o) "Mirror Site" means an Internet Site which contains the exact form and
content as any of the Licensee's Internet Sites which (a) is located at a
geographic location distinct from the Licensee's Internet Sites and (b) is
created for the purpose of improving the performance of and accessibility to the
Licensee's Sites.
(p) "Person" means any natural person, legal entity, or other organized
group of persons or entities. (All pronouns whether personal or impersonal,
which refer to Person include natural persons and other Persons.)
(q) "Quarter" means successive three month periods commencing January 1,
1999.
(r) "Television Content" consists of Content broadcast on television, cable
or satellite.
(s) "Term" means the Term of this license as defined in Section 3 hereof,
including any renewals or extensions thereof.
(t) "Year" means each calendar year during Term of this Agreement.
2. LICENSE GRANT.
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2.1. Grant. Subject to the terms and conditions set forth herein, Owner
hereby grants to Licensee throughout the Licensed Term, the exclusive right and
license as follows:
(a) to use copy, publicly display, edit, revise, perform, distribute
or otherwise make available on or through Internet Sites and/or Mirror
Sites the Domain Names in connection with the Licensee's Internet Business
and all other business connected or associated therewith, including but not
limited to any advertising, merchandising of products, use in print,
broadcasting in any other medium, including television, radio, satellite,
cable, videocassette or otherwise; and
(b) to own, register in its own name and for its own account, use,
exploit, sell and license any Trademarks, Tradenames, Service Marks,
Service Names, Copyrights, and any other Intellectual Property, and the
goodwill associated therewith, relating to or utilizing the Domain Names or
any part thereof in any form, language, style or manner, in the Licensee's
own name and on its own account.
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2.2. Additional Names. If the Owner shall in the future offer to
license any Additional Name to the Licensee, the license thereof shall be for
the Term and under the terms and conditions of this Agreement, provided however,
that the applicable License Fee for such domain name shall be the InterNic
registration fee, payable once, without any further consideration by the
Licensee. Anything to the contrary notwithstanding, any Additional Name not
licensed by the Licensee, may be used, sold, hypothecated, licensed or otherwise
disposed of by the Owner in any way or form, as determined in its sole and
absolute discretion, provided that such use does not violate the non-competition
provisions hereof.
2.3. Exclusivity. Throughout the Licensed Term Licensee's rights shall be
exclusive and Owner shall not use the Domain Names in any way, manner or form,
nor shall Owner grant or undertake to grant a license to another person or
entity, or make or undertake to make any sale, hypothecation or other alienation
or disposition of the Domain Names effective during the Licensed Term of this
license. Without derogating from the generality of the previous sentence, the
Owner shall not register in its own name or account or on behalf of or to the
account of any other Person, any name using the letters "TV" or the words
"channel" "station" "network" or "streaming" alone or in combination with any
other letters or words, as a top-level or secondary-level domain name or in any
other form that designates or connotes an Internet Site. If the Owner fails to
comply with this Section, the Licensee shall be entitled to require the Owner to
assign all title to, rights in and benefit from such domain name to the Licensee
free of charge, without prejudice to any other remedy to which the Licensee
shall be entitled under law or this Agreement.
2.4. Licensee's Right to Sublicense. Licensee may enter into sublicenses
with sub-licensees with respect to all or any of the Domain Names for any
purpose whatsoever, within the scope of the License herein without requiring any
approval of the Owner.
2.5. Compliance with Domain Name Registration Agreement. Licensee hereby
agrees to comply with and adhere to, on its own behalf and on behalf of Owner,
the provisions of the Domain Name Registration Agreement and timely pay, all
amounts due thereunder for renewals, or otherwise, to maintain the registration
and validity of all of the Domain Names.
3. TERM OF THE LICENSE, RENEWAL.
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3.1. Term. The License under this Agreement shall remain in effect for a
period of Twenty Five (25) Years, ending December 31, 2023, unless terminated in
accordance with the terms hereof or otherwise by law (the "Term").
3.2. Renewal of Term. The Term of the license shall automatically be
renewed for an additional period of Twenty Five (25) years
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commencing January 1, 2024, unless agreed otherwise by the parties, provided
that Licensee is not in default of any provision of this Agreement at the end of
the Term.
4. LICENSEE'S EFFORTS.
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4.1. Licensee's Discretion. Licensee shall have sole, absolute and
unfettered discretion to exploit the Domain Names and use them in its Internet
Business as it sees fit. Licensee agrees and understands that it shall bear all
its own costs associated with its Internet Business.
4.2. No Partnership or Agency. Owner and Licensee are independent
contractors, and neither party shall be, nor represent itself to be, the joint
venturer, franchiser, franchisee, partner, broker, employee, servant, agent or
representative of the other party for any purpose. Neither party shall have the
authority to make any representations or incur any obligations on behalf of the
other party and neither party shall be responsible for the acts or omissions of
the party, subject to Section 4.3.
4.3. Licensee's Assistance. Licensee shall from time to time act as the
liaison and/or coordinator for Owner in connection with Owner's dealings with
InterNic and for that purpose that the Licensee shall be deemed to represent and
be the agent of Owner before InterNic, for the sole purpose of complying with
the Domain Name Registration Agreement and maintaining the validity and
registration of the Domain Names.
4.4. Ownership of Licensee's Content. All Content which Licensee intends
to display, exhibit, broadcast, show, make available or otherwise use, on or in
connection with any of its Internet Sites and/or Mirror Sites shall be the
property of Licensee (or of any Person from whom Licensee may have licensed it),
and, anything to the contrary notwithstanding, the Owner shall have no title,
right, or any Intellectual Property rights relating thereto.
4.5. Liability for Licensee's Content. The Licensee shall be solely
responsible for the engineering, production, maintenance and monitoring of all
Content which is made available on its Internet Sites or Mirror Sites, and any
errors, omissions and/or inaccuracies in the transmission or transcription of
the Content, and obtaining license for the use of any material, including
applicable music rights, copyrights or any other Intellectual Property and, (ii)
secure, at its sole cost and expense, and pay for all performing, duplication
and/or recording rights licenses, if any, necessary for the use of such Content
on the Internet. Licensee shall not establish any links from the Domain Names or
conduct cross promotions with any Internet Site which uses or exhibits any
gambling, pornographic or obscenity Content.
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5. LICENSE FEE.
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5.1. License Fee. Licensee shall pay Owner an annual Fee, each Year, in
the amount per Domain Name as set forth on Schedule C. (the "License Fee"). The
License Fee shall be the sole consideration payable by Licensee without any
obligation to pay royalties or any other amounts. The initial amount of the
License Fee shall be $600 per Year and increase each Year in accordance with
Schedule C. In the twenty-fifth Year of the Term, and throughout the entire
period of the renewal of the Term, the License Fee shall be $2,500, provided,
however, that such amount shall be increased in each succeeding year by the rate
by which the CPI has changed, using January 1 of each year as the base CPI.
5.2. Payments. All payments of License Fees due under this Agreement,
including, shall be paid by Licensee in freely remittable and transferable U.S.
Dollars, to Owner at the location designated by Owner, and shall be due and
payable in Quarterly installments, each equal to one fourth of the total License
Fees for that Year, within the last day of each Quarter, unless agreed otherwise
by the Parties.
6. OWNERSHIP AND PROTECTION OF THE DOMAIN NAMES.
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6.1. No Contest. Licensee shall not contest or dispute that Owner is the
rightful owner of the Domain Names and Licensee shall not claim any title to or
right to use the Domain Name or any variation thereof, other than the right to
use the under this License Agreement.
6.2. Property of Owner. The Domain Names shall remain the property of
Owner and Licensee shall have no rights therein and shall take no action
inconsistent with Owner's ownership or challenge the validity thereof.
6.3. Domain Name Enforcement. In the event that Licensee learns of any
infringement or imitation of any Domain Name or of any use by any unauthorized
person, Licensee shall promptly notify Owner. Owner thereupon shall take such
action, or no action, as it, in its sole discretion, deems advisable for the
protection of the Domain Name. Licensee shall cooperate with Owner in all
respects, including, without limitation, by being a plaintiff or co-plaintiff
and by causing its officers to execute pleadings and other necessary documents.
In no event, shall Owner be required to take any action if it is deemed
inadvisable to do so. If Owner deems it inadvisable to take any such action,
Licensee may then take such action at its own expense. In such event Owner
shall, at Licensee's expense, render all reasonable assistance to Licensee in
connection therewith.
7. OWNERSHIP AND PROTECTION OF LICENSEE'S TRADEMARKS.
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7.1. No Contest. Owner shall not contest or dispute that Licensee is the
rightful owner of Licensee's Trademarks and the goodwill associated therewith,
and the Owner shall not claim any title to or right to use the Licensee's
Trademarks or any variation thereof.
7.2. Property of Licensee. All Licensee's Trademarks, used by Licensee
shall remain the property of Licensee and Owner shall have no rights therein and
shall take no action inconsistent with Licensee's ownership or challenge the
validity thereof. The Owner recognizes the great value of the goodwill
associated with the Licensee's Trademarks and the identification of the Content
and other products with the Licensee's Trademarks and acknowledges that the
Licensee's Trademarks and all rights therein and goodwill pertaining thereto
belong to Licensee. Owner shall not at any time use, promote, advertise,
display or otherwise commercialize the Licensee's Trademarks or any material
utilizing or reproducing the Licensee's Trademarks in a manner that will
adversely affect any rights, ownership or otherwise of Licensee or in a manner
that would derogate or detract from the repute of Licensee, or the Licensee's
Trademarks.
8. REPRESENTATIONS AND WARRANTIES.
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8.1. Representations and Warranties of Owner. The Owner represents and
warrants to Licensee the following:
(a) This Agreement has been duly executed and delivered by Owner and
is a valid and binding agreement of Owner. The execution and delivery of
this Agreement by Owner does not, and the consummation by Owner of the
transactions contemplated hereby will not, violate or result with the
giving of notice or the lapse of time or both, in a violation of any
provisions of, or result in the acceleration of or entitle any party to
accelerate (whether after the giving of notice, or lapse of time or both)
any obligation under any mortgage, lien, lease, agreement, license,
instrument, law, ordinance, regulation, order, arbitration award, judgment
or decree to which Owner is a party or by which Owner is bound.
(b) Owner is the registered owner of the entire right, title and
interest in the Domain Names listed in Schedule A; and he is not aware of
any undisclosed material facts indicating that the use, of the Domains
might infringe upon any the Intellectual Property or other rights vested in
a third party.
(c) Owner makes no representations or warranties of any kind, express
or implied with respect to the Domain Names and the performance, quality,
feasibility, efficacy or any other aspect of any of the Domain Names or the
Internet Business that will be conducted therewith.
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8.2. Representations and Warranties of Licensee. The Licensee represents
and warrants to Owner the following:
(a) Licensee is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
(b) Licensee has all necessary corporate power and authority to make,
execute, deliver and consummate this Agreement, and has taken all necessary
action required to be taken to authorize Licensee to execute and deliver
this Agreement and to perform all of its obligations, undertaking and
agreements to be observed and performed under this Agreement. This
Agreement has been duly executed and delivered by Licensee and is a valid
and binding agreement of Licensee. The execution and delivery of this
Agreement by Licensee does not, and the consummation by Licensee of the
transactions contemplated hereby will not, violate any provision of
Licensee's Articles of Incorporation or By-Laws or violate or result with
the giving of notice or the lapse of time or both, in a violation of any
provisions of, or result in the acceleration of or entitle any party
accelerate (whether after the giving of notice, or lapse of time or both)
any obligation under any mortgage, lien, lease, agreement, license,
instrument, law, ordinance, regulation, order, arbitration award, judgment
or decree to which Licensee is a party or by which Licensee is bound.
9. TERMINATION.
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9.1. Expiration/Termination. In the event of expiration or termination of
this Agreement, any rights to the Domain Name Owner may have granted to Licensee
under this Agreement shall immediately revert to Owner, provided however, that
any other Intellectual Property owned by Licensee hereunder shall remain the
property of the Licensee. Upon expiration or termination of this Agreement, the
Licensee shall cease all use of the Domain Names on the Internet, without
prejudice to any Trademarks or other Intellectual Property used by the Licensee.
9.2. Grounds for Termination.
(a) Termination for Breach. Owner may terminate this Agreement
immediately, without liability to Licensee, by sending written notice to
Licensee if (a) Licensee breaches any provision or fails to perform any of
its obligations under this Agreement and does not remedy such failure
within thirty (30) days after written notice thereof. If Licensee receives
two (2) notices of default concerning payments and/or submission of reports
within any twelve (12) month period and this Agreement is not terminated,
then any future default may, at the sole option and in the sole discretion
of Owner be deemed incurable and the termination of
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the License shall be effective immediately upon the giving of notice.
(b) Termination for Other Grounds. This Agreement shall terminate
automatically upon the occurrence of any of the following events: (a)
Licensee shall become insolvent or generally fail to pay, or admit in
writing its inability to pay, debts as they become due; or (b) Licensee
shall apply for, or consent to, or acquiesce in, the appointment of a
trustee, receiver, sequestrator, or other custodian for, any of its assets,
or make a general assignment for the benefit of creditors; or (c) in the
absence of such application, consent or acquiescence, a trustee, receiver,
sequestrator or other custodian shall be appointed for Licensee for a
substantial part of its assets, and not discharged within 30 days; or (d)
any bankruptcy reorganization, debt arrangement, or other case or
proceeding under any bankruptcy or insolvency law shall be commenced in
respect of Licensee, and, if not commenced by Licensee, shall be consented
to or acquiesced in by Licensee, or shall result in the entry of an order
for relief (or its substantial equivalent) or shall remain for 30 days
undismissed; or (e) the filing of a petition by or against Licensee under
the United States Bankruptcy Code, as amended, or under the insolvency laws
of any state, or Licensee or a third party commences a proceeding or files
a petition of similar import under another applicable bankruptcy or
insolvency law in which Licensee is the subject of such action; or (f)
Licensee defaults on a common law or statutory lien.
(1) Notwithstanding the foregoing, in the event that pursuant to
the U.S. Bankruptcy Code or any amendment or successor thereto (the
"Code") a trustee in bankruptcy of Licensee or an Affiliate, as
debtor, is permitted to assign this Agreement to a third party, which
assignment satisfies the requirements of the Code, the trustee or
Licensee or such Affiliate, as the case may be, shall notify Owner of
same in writing. Said notice shall set forth the name and address of
the proposed assignee, the proposed consideration for the assignment
and all other relevant details thereof. The giving of such notice
shall be deemed to constitute an offer to Owner to have this Agreement
assigned to it or to this designee for such consideration, or its
equivalent in money, and upon such terms as are specified in the
notice. The aforesaid offer may be accepted only by written notice
given to the trustee or Licensee or such Affiliate, as the case may
be, by Owner within thirty (30) days after Owner's receipt of the
notice from such party. If Owner fails to give its notice to such
party within said thirty (30) days, such party may complete the
assignment referred to in its notice, but only if such assignment is
to the entity named in said notice and for the consideration and upon
the terms specified therein. Nothing contained
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herein shall be deemed to preclude or impair any rights which Owner
may have as a creditor in any bankruptcy proceeding.
(c) Termination by Notice of Licensee. This Agreement may be
terminated by Licensee at any time by written notice given by Licensee to
the Owner no less than sixty (60) days prior to the effective date of such
termination as specified in the notice, provided, however, that such notice
is accompanied by payment of (i) the remainder of any outstanding payments
due on account of License Fees for the Year in which the notice is given
and any outstanding amounts due for previous Years; and (ii) payment of the
License Fee for the immediately subsequent Year; and (iii) payment of all
amounts due, through that Year, under the Domain Name Registration
Agreement.
9.3. Survival. Sections 6 and 7 hereof shall survive termination of this
Agreement.
10. INDEMNIFICATIONS.
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10.1. Owner's Indemnity. Owner warrants that it has the right to grant
the license contained in this Agreement. Subject to the limitations set forth in
this Subsection, Owner agrees to indemnify and hold Licensee harmless from any
claim, suit, loss and damage made or sustained by Licensee by reason of a breach
of this warranty, provided that Licensee gives Owner prompt written notice of
any such claim. It is expressly understood and agreed that the foregoing
warranty and indemnity shall be Licensee's sole remedy in respect of any claim
loss, damage, or expense sustained or made by Licensee in respect of any failure
or alleged failure on the part of Owner to perform its obligations under this
License Agreement and that Owner's indemnification obligations are limited to
the amount of Royalties paid to Owner hereunder. Owner makes no
representations, warranties or guarantees, express or implied, other than those
expressly set forth in this SubSection. Notwithstanding anything in this
Agreement to the contrary, Owner shall not be liable to Licensee for special or
consequential damages claimed or suffered by Licensee whether arising out of a
breach of its obligations under this Agreement, or otherwise. Owner shall have
the right to defend (and control the defense) or settle (in its sole discretion)
any litigation for which indemnity is sought hereunder and Licensee shall
cooperate in the defense and/or settlement of the same. If a final injunction is
obtained in such action against Licensee's use of any Domain Name or if in
Owner's opinion any Domain Name is likely to become the subject of a claim of
infringement, Owner will at its option and expense either: (i) procure for
Licensee the right to continue to use the Domain Names; or (ii) modify the
Domain Name so that it becomes non-infringing; or (iii) may terminate this
Agreement.
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10.2. Licensee's Indemnity. Licensee shall indemnify and defend and
hold Owner harmless from and against any and all liabilities, claims, expenses,
suits, damages, judgments and losses, including attorneys fees, for which Owner
may become liable or may incur or pay, in or as a result of, or by reason of any
acts or omissions that may be committed or suffered by Licensee or any of its
servants agents or employees, in connection with Licensee's performance under
this agreement, including but not limited to (i) claims based on the Licensee's
Content or Television Content; (ii) claims for alleged infringement of any
Intellectual Property or other right that result from Licensee's own Internet
Business or other activities ; or (iii) Licensee's unauthorized use of and
Domain Names.
10.3. Insurance. To the extent that Licensee shall, in its sole
discretion, procure and maintain insurance coverage during the Term of this
Agreement, said insurance shall name Owner as an additional insured; provided,
however, that nothing in this Section shall be construed as imposing an
obligation on Licensee to procure or maintain insurance coverage.
11. NON-COMPETITION.
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11.1. The Owner shall not register any further domain names containing
the letters "TV" or which states or implies streaming or any other similar
aspect of the Licensee's Internet Business, and (ii) shall not own any interest
in, provide any financing for, or perform any service for, any business
organization which engages in competition with the Licensee or, as a sole
proprietor, director, officer, shareholder, employee, manager, consultant,
independent contractor, advisor or otherwise, engage in competition with, any
business conducted by the Licensee or by its subsidiaries or any business which
the Licensee or any of its subsidiaries had developed substantial plans to enter
into during the Term of this Agreement; provided, however, that the ownership of
a passive investment constituting equity of under Five (5%) in a publicly traded
corporation, will not, in and of itself, be deemed competition hereunder.
11.2. It is understood and acknowledged that unauthorized competition
in violation of this Agreement may cause irreparable harm, the amount of which
say be difficult to ascertain; it is therefore agreed that the Licensee shall
have the right to apply to a court of competent jurisdiction for an order
restraining any such further disclosure, unauthorized use or misappropriation
and for such other relief as deemed appropriate.
11.3. If any provision of this Section is determined to be invalid,
void unenforceable, it shall be deemed severable from the remainder of the
Agreement and shall in no way invalidate any other provision. If any provision
is determined to be invalid, void or unenforceable due to its scope or breadth,
that provision shall be deemed valid to the extent of the scope or breadth
permitted by law and shall be deemed to have been re-written accordingly.
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12. MISCELLANEOUS.
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12.1. Governing Law/Jurisdiction. This Agreement, all Exhibits and
amendments hereto, shall be governed in all respects under the internal laws of
the State of New York applicable to agreements made and to be performed wholly
in the State of New York (excluding any such law which may direct the
application of the laws of any other jurisdiction), except that any questions
governed by the trademark statutes of the United States of America shall be
governed by and determined under such statutes. The parties hereby submit to
the jurisdiction of the state and federal courts of the State of New York and
with venue in New York County for emergency and other relief in connection with
arbitration conducted hereunder and preventing material and irreparable harm to
the Domain Names or the Licensee's Trademarks, and agree that they will not
resort to the courts or other governmental agencies of any other jurisdiction
for the resolution of any such dispute or controversy and agree to service by
mail and waives any requirements of personal service.
12.2. Specific Enforcement. Parties acknowledge that any actions in
breach or violation of the provisions of this Agreement could materially and
irreparably harm the Domain Names or the Licensee's Trademarks and an injured
party could not be adequately compensated by monetary damages. In the event of
a breach or reasonably likely breach of this Agreement, by reason of the
inadequacy of monetary damages as a remedy to such breach, the injured party
shall have the right to obtain temporary or permanent injunctive or mandatory
relief in a court of competent jurisdiction, it being the intention of the
parties that this Agreement be specifically enforced to the maximum extent
permitted by law.
12.3. Arbitration. The parties agree that any dispute, controversy or
claim between the parties under this Agreement, if not resolved by amicable
negotiations, shall be submitted to the New York Region office of the American
Arbitration ("AAA") for binding arbitration hereunder.
(a) Any arbitration proceeding under this provision shall be conducted
in accordance with the Commercial Rules of the AAA that are in effect at
the time the demand for arbitration is made.
(b) The arbitration shall be conducted before one (1) arbitrator
pursuant to the Commercial Rules. Discovery shall be permitted to the
fullest extent permitted by such rules, as shall be ordered by the
Arbitrator.
(c) The arbitrator may order specific performance or an injunction and
shall be granted all powers to the maximum extent possible and practical to
protect the respective rights of the parties herein and enforce the
provisions of this Agreement. The arbitrator may make any order concerning
severance of issues and/or claims to be presented at the arbitration, as
long as they deal directly with the contents of this Agreement.
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(d) Any order, decision, determination or award made by the arbitrator
shall be conclusive, final and binding upon all of the parties, and their
respective heirs, executors, administrators, successors and assigns.
Judgment upon any such order, decision, determination or award may be
confirmed, entered and enforced in any court of competent jurisdiction;
(e) The prevailing party shall be entitled to recover reasonable out-
of-pocket attorneys' fees, costs and expenses directly related to the
arbitration from the non-prevailing party.
12.4. Entire Agreement/Amendment/Waiver. This Agreement is the
complete agreement between the parties and supersedes all prior oral and written
communications and negotiations. This Agreement may be modified, changed or
amended only in a writing signed by both parties. The delay or failure of
either party to exercise any right provided herein shall in no way affect its
rights at a later time to enforce that right or any other rights under this
Agreement. No waiver shall be effective unless in writing signed by the waiving
party.
12.5. Headings/Severability. The headings and titles used in this
Agreement are for convenience only and shall not limit, expand or otherwise
affect any of its terms. If any provisions of this Agreement is declared
invalid, it shall be deemed adjusted to conform to the legal requirements, or if
no adjustment can be made, the provision shall be deleted, unless such
adjustment or deletion materially frustrates the purpose of the parties in
entering this Agreement.
12.6. Notices. All notices, approvals, consents, statements and
other communications hereunder shall be in writing and shall be deemed given (a)
when delivered personally or delivered by telecopy (accompanied by a
contemporaneous telecopier confirmation) with subsequent mailing (on the same
day), to the parties on a business day during normal business hours at the
addresses or telecopies numbers set in Schedule "D" (or at such other address or
telecopier number for such person as shall be specified by like notice) or (b) 5
days after being mailed by registered or certified mail (return receipt
requested) to the parties at the addresses (or at such other address for the
party as shall be specified by like notice) set forth.
13
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed as of the day and year first written above.
Owner,
Xxxxxxxx Xxxxx
__________________________
Xxxxxxxx Xxxxx
Licensee,
xxxxxxxXX.xxx, Inc.
By:___________________________
Name:
Title:
14
SCHEDULE A
----------
Domain Names
------------
xxxxxxxxxxXX.xxx xxxxxxxxxxxxXX.xxx xxxxxXX.xxx
xxxxxXX.xxx xxxxxxxxx-XX.xxx xxxxxxx-XX.xxx
xxxxxxxxxxxxXX.xxx xxxxxxxxxxXX.xxx xxxxxxxXX.xxx
xxxxxxxXX.xxx xxxxxXX.xxx xxxxxxxXX.xxx
xxxxxXX.xxx xxxxxxxXX.xxx xxxxxxxxxxXX.xxx
californiastreamin x.xxx xxxxxxxxxxXX.xxx
xxxxxxxxxxxXX.xxx xxxxxXX.xxx
xxxxxxxxxXX.xxx xxxxxxxXX.xxx
xxxxxxxxXX.xxx xxxxxxxxxxxxxXX.xxx
xxxxxxxxxxxXX.xxx xxxxxxxxxXX.xxx
xxxxxXX.xxx southbeachTVchanne x.xxx
xxxxxxxxxXX.xxx xxxxxxxxxxxx.xxx
xxxxxxxxxxxXX.xxx xxxxxxxxxxx.xxx
xxxxXX.xxx xxxxxxxxXX.xxx
xxxxxx0.xxx xxxxXX.xxx
xxxxxx0XX.xxx
15
SCHEDULE B
----------
NETWORK SOLUTIONS, INC.
DOMAIN NAME REGISTRATION AGREEMENT
A. Introduction. This domain name registration agreement ("Registration
Agreement") is submitted to NETWORK SOLUTIONS, INC. ("NSI") for the purpose of
applying for and registering a domain name on the Internet. If this Registration
Agreement is accepted by NSI, and a domain name is registered in NSI's domain
name database and assigned to the Registrant, Registrant ("Registrant") agrees
to be bound by the terms of this Registration Agreement and the terms of NSI's
Domain Name Dispute Policy ("Dispute Policy") which is incorporated herein by
reference and made a part of this Registration Agreement. This Registration
Agreement shall be accepted at the offices of NSI.
B. Fees and Payments.
1) Registration or renewal (re-registration) date through March 31, 1998:
Registrant agrees to pay a registration fee of One Hundred United States Dollars
(US$100) as consideration for the registration of each new domain name or Fifty
United States Dollars (US$50) to renew (re-register) an existing registration.
2) Registration or renewal date on and after April 1, 1998: Registrant agrees
to pay a registration fee of Seventy United States Dollars (US$70) as
consideration for the registration of each new domain name or the applicable
renewal (re-registration) fee (currently Thirty-Five United States Dollars
(US$35)) at the time of renewal (re-registration).
3) Period of Service: The non-refundable fee covers a period of two (2) years
for each new registration, and one (1) year for each renewal, and includes any
permitted modification(s) to the domain name record during the covered period.
4) Payment: Payment is due to Network Solutions within thirty (30) days from
the date of the invoice.
C. Dispute Policy. Registrant agrees, as a condition to submitting this
Registration Agreement, and if the Registration Agreement is accepted by NSI,
that the Registrant shall be bound by NSI's current Dispute Policy. The current
version of the Dispute Policy may be found at the InterNIC Registration Services
web site: "xxxx://xxx.xxxxxx.xxx/xx/xxxxxxx-xxxxxx.xxxx".
D. Dispute Policy Changes or Modifications. Registrant agrees that NSI, in its
sole discretion, may change or modify the Dispute Policy, incorporated by
reference herein, at any time. Registrant agrees that Registrant's maintaining
the registration of a domain name after changes or modifications to the Dispute
Policy become effective constitutes Registrant's continued acceptance of these
changes or
16
modifications. Registrant agrees that if Registrant considers any such changes
or modifications to be unacceptable, Registrant may request that the domain name
be deleted from the domain name database.
E. Disputes. Registrant agrees that, if the registration of its domain name is
challenged by any third party, the Registrant will be subject to the provisions
specified in the Dispute Policy.
F. Agents. Registrant agrees that if this Registration Agreement is completed
by an agent for the Registrant, such as an ISP or Administrative Contact/Agent,
the Registrant is nonetheless bound as a principal by all terms and conditions
herein, including the Dispute Policy.
G. Limitation of Liability. Registrant agrees that NSI shall have no liability
to the Registrant for any loss Registrant may incur in connection with NSI's
processing of this Registration Agreement, in connection with NSI's processing
of any authorized modification to the domain name's record during the covered
period, as a result of the Registrant's ISP's failure to pay either the initial
registration fee or renewal fee, or as a result of the application of the
provisions of the Dispute Policy. Registrant agrees that in no event shall the
maximum liability of NSI under this Agreement for any matter exceed Five Hundred
United States Dollars (US$500).
H. Indemnity. Registrant agrees, in the event the Registration Agreement is
accepted by NSI and a subsequent dispute arises with any third party, to
indemnify and hold NSI harmless pursuant to the terms and conditions contained
in the Dispute Policy.
I. Breach. Registrant agrees that failure to abide by any provision of this
Registration Agreement or the Dispute Policy may be considered by NSI to be a
material breach and that NSI may provide a written notice, describing the
breach, to the Registrant. If, within thirty (30) days of the date of mailing
such notice, the Registrant fails to provide evidence, which is reasonably
satisfactory to NSI, that it has not breached its obligations, then NSI may
delete Registrant's registration of the domain name. Any such breach by a
Registrant shall not be deemed to be excused simply because NSI did not act
earlier in response to that, or any other, breach by the Registrant.
J. No Guaranty. Registrant agrees that, by registration of a domain name, such
registration does not confer immunity from objection to either the registration
or use of the domain name.
K. Warranty. Registrant warrants by submitting this Registration Agreement
that, to the best of Registrant's knowledge and belief, the information
submitted herein is true and correct, and that any future changes to this
information will be provided to NSI in a timely manner according to the domain
name modification procedures in place at that time. Breach of this warranty will
constitute a material breach.
17
L. Revocation. Registrant agrees that NSI may delete a Registrant's domain
name if this Registration Agreement, or subsequent modification(s) thereto,
contains false or misleading information, or conceals or omits any information
NSI would likely consider material to its decision to approve this Registration
Agreement.
M. Right of Refusal. NSI, in its sole discretion, reserves the right to refuse
to approve the Registration Agreement for any Registrant. Registrant agrees that
the submission of this Registration Agreement does not obligate NSI to accept
this Registration Agreement. Registrant agrees that NSI shall not be liable for
loss or damages that may result from NSI's refusal to accept this Registration
Agreement.
N. Severability. Registrant agrees that the terms of this Registration
Agreement are severable. If any term or provision is declared invalid, it shall
not affect the remaining terms or provisions which shall continue to be binding.
O. Entirety. Registrant agrees that this Registration Agreement and the
Dispute Policy is the complete and exclusive agreement between Registrant and
NSI regarding the registration of Registrant's domain name. This Registration
Agreement and the Dispute Policy supersede all prior agreements and
understandings, whether established by custom, practice, policy, or precedent.
P. Governing Law. Registrant agrees that this Registration Agreement shall be
governed in all respects by and construed in accordance with the laws of the
Commonwealth of Virginia, United States of America. By submitting this
Registration Agreement, Registrant consents to the exclusive jurisdiction and
venue of the United States District Court for the Eastern District of Virginia,
Alexandria Division. If there is no jurisdiction in the United States District
Court for the Eastern District of Virginia, Alexandria Division, then
jurisdiction shall be in the Circuit Court of Fairfax County, Fairfax, Virginia.
Q. This is Domain Name Registration Agreement Version Number 4.0. This
Registration Agreement is only for registrations under top-level domains: COM,
ORG, NET, and EDU. By completing and submitting this Registration Agreement for
consideration and acceptance by NSI, the Registrant agrees that he/she has read
and agrees to be bound by A through P above.
Authorization
0a. (N)ew (M)odify (D)elete....:
0b. Auth Scheme................:
0c. Auth Info..................:
1. Comments...................:
2. Complete Domain Name.......:
18
Organization Using Domain Name 5d. Organization Name..........:
5e. Street Address.............:
3a. Organization Name..........: 5f. City.......................:
3b. Street Address.............: 5g. State......................:
3c. City.......................: 5h. Postal Code................:
3d. State......................: 5i. Country....................:
3e. Postal Code................: 5j. Phone Number...............:
3f. Country....................: 5k. Fax Number.................:
5l. E-Mailbox..................:
Administrative Contact
4a. NIC Handle (if known)......: Billing Contact
4b. (I)ndividual (R)ole........: 6a. NIC Handle (if known)......:
4c. Name (Last, First).........: 6b. (I)ndividual (R)ole........:
4d. Organization Name..........: 6c. Name (Last, First).........:
4e. Street Address.............: 6d. Organization Name..........:
4f. City.......................: 6e. Street Address.............:
4g. State......................: 6f. City.......................:
4h. Postal Code................: 6g. State......................:
4i. Country....................: 6h. Postal Code................:
4j. Phone Number...............: 6i. Country....................:
4k. Fax Number.................: 6j. Phone Number...............:
4l. E-Mailbox..................: 6k. Fax Number.................:
6l. E-Mailbox..................:
Technical Contact
5a. NIC Handle (if known)......: Prime Name Server
5b. (I)ndividual (R)ole........: 7a. Primary Server Hostname....:
5c. Name (Last, First).........: 7b. Primary Server Netaddress..:
Secondary Name Server(s)
8a. Secondary Server Hostname..:
8b. Secondary Server Netaddress:
END OF AGREEMENT
For instructions, please refer to:
"xxxx://xx.xxxxxxxx.xxx/xxxx/xxxxxxxxxxxx.xxx"
[ URL xxx://xx.xxxxxxxx.xxx/xxxxxxxxx/xxxxxx-xxxxxxxx.xxx ] [ 03/98]
Domain Version Number: 4.0
19
SCHEDULE C
----------
LICENSE FEE PAYMENT SCHEDULE
----------------------------
================================================================================
LICENSE FEE SCHEDULE (Based on 36 names)
--------------------------------------------------------------------------------
Year License Fee per Name Total
--------------------------------------------------------------------------------
1. $ 600.00 $ 21,600.00
--------------------------------------------------------------------------------
2. $ 600.00 $ 21,600.00
--------------------------------------------------------------------------------
3. $ 600.00 $ 21,600.00
--------------------------------------------------------------------------------
4. $ 600.00 $ 21,600.00
--------------------------------------------------------------------------------
5. $ 600.00 $ 21,600.00
--------------------------------------------------------------------------------
6. (5%) $ 630.00 $ 22,680.00
--------------------------------------------------------------------------------
7. $ 661.50 $ 23,814.00
--------------------------------------------------------------------------------
8. $ 694.58 $ 25,004.88
--------------------------------------------------------------------------------
9. $ 729.31 $ 26,255.16
--------------------------------------------------------------------------------
10. $ 765.78 $ 27,568.08
--------------------------------------------------------------------------------
11. $ 804.07 $ 28,946.52
--------------------------------------------------------------------------------
12. $ 844.27 $ 30,393.72
--------------------------------------------------------------------------------
13. (7%) $ 903.37 $ 32,521.32
--------------------------------------------------------------------------------
14. $ 966.61 $ 34,797.96
--------------------------------------------------------------------------------
15. $1,034.27 $ 37,233.72
--------------------------------------------------------------------------------
16. $1,106.67 $ 39,840.12
--------------------------------------------------------------------------------
17. $1,184.14 $ 42,629.04
--------------------------------------------------------------------------------
18. $1,267.03 $ 45,613.08
--------------------------------------------------------------------------------
19. $1,355.72 $ 48,805.92
--------------------------------------------------------------------------------
20. $1,450.62 $ 52,222.32
--------------------------------------------------------------------------------
21. (10%) $1,595.68 $ 57,444.48
--------------------------------------------------------------------------------
22. $1,755.25 $ 63,189.00
--------------------------------------------------------------------------------
23. $1,930.78 $ 69,508.08
--------------------------------------------------------------------------------
24. $2,123.86 $ 76,458.96
--------------------------------------------------------------------------------
25. ($2,500) $2,500.00 $ 90,000.00
--------------------------------------------------------------------------------
26-50 $2,500.00 $ 90,000.00
To be increased in each
succeeding year by the
rate by which the CPI has
changed, using January 1
of each year as the base
CPI.
--------------------------------------------------------------------------------
TOTAL: $982,926.36
================================================================================
20
SCHEDULE D
----------
ADDRESSES FOR NOTICES
---------------------
Owner: Xxxxxxxx Xxxxx
00 Xxxxxxxxx Xxxx
Xxxxxx, X.X. 00000
Telephone: 000 000 0000
facimile: 000 000 0000
Licensee: xxxxxxxXX.xxx, Inc.
000 Xxxxx Xxxxxx
Xxxxx 0000X
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
21
