INDUSTRY DOMAINS REGISTRATION AGREEMENT
Exhibit
10.46
THIS
AGREEMENT (the “Agreement”), made effective this 16th day of
September, 2009 (“Effective Date”) by and between KEY-SYSTEMS, GMBH, a limited
liability company duly organized under the laws of the Country of Germany,
(hereinafter “KEY-SYSTEMS”), 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, DOT VN provides registration
of certain Vietnamese sub-domains (referred to herein as “Industry
Domains”);
WHEREAS, KEY-SYSTEMS provides a
registrar software and technical services worldwide;
WHEREAS,
DOT VN desires to provide its services through KEY-SYSTEMS; and
WHEREAS, KEY-SYSTEMS and DOT VN are
both willing to work jointly to provide such services;
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:
ARTICLE
I
INDUSTRY DOMAIN
PROGRAM
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A.
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Structure of Industry
Domain Program
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1. The Parties will implement and provide registration for
a new class of Vietnamese ccTLD sub-domains, which shall comprise the
twenty-four (24) second level extensions listed in Exhibit A (the “Industry Domain Program”).
2. KEY-SYSTEMS
shall provide technical services, including but not limited to hardware and
software, and business development support in the creation and commercialization
of the Industry Domain Program, hosting of the registration platform, backup of
all data and applications as well as such other support as may be required for
the project from time to time.
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i)
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In
connection with KEY-SYSTEMS’ technical services, KEY-SYSTEMS shall take
all reasonable steps to ensure that data is properly stored and backed up
such that an operational uptime of 99.8% is
guaranteed.
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ii)
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KEY-SYSTEMS
may also be required at the request of DOT VN to provide backup copies of
all records and databases related to the operation of the Industry Domain
Program on an as requested basis.
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3. KEY-SYSTEMS
shall also offer the Industry Domains through its retail registration portal,
xxx.xxxxxxxxxxxxxx00.xxx, as well as through its reseller network subject to the
following terms:
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i)
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KEY-SYSTEMS
shall be entitled to purchase for resale Industry Domains at the Master
Reseller Rate as set forth in Exhibit
B;
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ii)
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KEY-SYSTEMS
shall be entitled to offer the Industry Domains to its reseller network at
such rate as they deem appropriate;
and
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iii)
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KEY-SYSTEMS
may offer the Industry Domains on its retail registration portal,
xxx.xxxxxxxxxxxxxx00.xxx, at a price equal to one hundred and ten percent
(110%) of the retail price as set forth in Exhibit B or
such other price as may be agreed to by the Parties from time to
time.
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4. DOT
VN shall provide governmental policy support, infrastructure and technological
access in furtherance of the creation and commercialization of Industry Domain
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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Payment
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1. In
consideration for their respective investment in the development of a Industry
Domain Program, KEY-SYSTEMS shall be entitled to fifteen percent (15%) of the
gross master reseller rate of the Industry Domains in accordance with the
schedule set forth in Exhibit
B
2. DOT
VN shall be responsible for the receipt, accounting and distribution of all
monies received in connection with the Industry Domain Program and shall provide
a payment gateway to effect such transactions.
3. Distributions
of all revenue, in accordance with Article I(B)(1), shall be made on a monthly
net 15 basis to KEY-SYSTEMS via wire transfer to KEY-SYSTEMS’
account. KEY-SYSTEMS shall provide all wire information in writing
within ten (10) business days of the signing of this agreement.
ARTICLE
II
REPRESENTATIONS AND
WARRANTIES
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A.
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Representations and
Warranties by KEY-SYSTEMS.
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1. Organization. KEY-SYSTEMS
is a limited liability company duly organized, validly existing and in good
standing under the laws of the country of Germany.
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2. Authority; Consents and
Approvals; No Violations. KEY-SYSTEMS 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 KEY-SYSTEMS and will constitute a valid
and binding obligation of KEY-SYSTEMS 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 KEY-SYSTEMS' formational and
organizational documents 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 KEY-SYSTEMS is a party, or by which it or any of its assets
are bound.
3. Intellectual
Property. KEY-SYSTEMS warrants and represents 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 KEY-SYSTEMS uses and provides to DOT VN does not
infringe any patent, trademark, trade name, copyright or title.
ii) KEY-SYSTEMS
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 Industry Domain and Domain
Parking Programs.
iii) KEY-SYSTEMS
shall grant and assign to DOT VN the benefit of all warranties and
representations made for KEY-SYSTEMS’ 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 Industry Domain and Domain Parking Programs is
based or any of the intellectual property of KEY-SYSTEMS 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. KEY-SYSTEMS shall, in connection with the Industry Domain
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 KEY-SYSTEMS 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 Key-Systems is not familiar with Vietnam law and that DOT VN
is responsible for informing KEY-SYSTEMS of any content restrictions pertaining
to Vietnam Law prior to there being any problems and as such DOT VN agrees to
indemnify KEY-SYSTEMS for any such problems or issues regarding content which it
fails to provide written notification to KEY-SYSTEMS in accordance with Article
II A(4) above.
4. DOT
VN does hereby agree that this Agreement shall not grant DOT VN any title of
ownership to the registrar software provided by KEY-SYSTEMS, nor shall it grant
DOT VN any title of license to use, sell or otherwise make available the
registrar software beyond the scope and duration of this agreement. DOT VN
further agrees not to reverse engineer the registrar software or develop similar
registrar software based on the registrar software provided by KEY-SYSTEMS. This
paragraph shall survive the termination of the Agreement.
ARTICLE
III
CONFIDENTIALITY
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A.
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Acknowledgment. Both
Parties acknowledge and agree that both the DOT VN Information and the
KEY-SYSTEMS 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.
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ARTICLE
IV
INDEMNIFICATION
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A.
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KEY-SYSTEMS’s
Obligations. The KEY-SYSTEMS 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 KEY-SYSTEMS, 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 KEY-SYSTEMS's representations, warranties,
or agreements hereunder, (iii) arises out of the negligence or willful
misconduct of KEY-SYSTEMS, or (iv) arises out of the breach of any
agreement between KEY-SYSTEMS and any third
party.
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B.
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DOT VN’s
Obligations. DOT VN agrees to indemnify, defend, and
shall hold harmless KEY-SYSTEMS, 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.
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C.
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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.
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ARTICLE
V
TERM AND
TERMINATION
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A.
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Term. This
Agreement shall take effect as of the Effective Date and shall continue
for a period of five (5) years. Thereafter, this Agreement
shall be renewed for additional periods of one (1) year each, if each of
the parties shall give the other notice of its renewal of this Agreement
no later than one hundred twenty (120) days prior to the end of the term
of this Agreement.
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B.
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Termination. Notwithstanding
the provisions of Article VI(A) above, this Agreement may be terminated in
accordance with the following
provisions:
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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.
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 VI(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 six (6) months 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.
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C.
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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:
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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 II B.4, III and IV 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 payments outstanding shall be paid
in accordance with the terms of this agreement until all obligations are
satisfied.
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ARTICLE
VI
FORCE
MAJEURE
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A.
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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.
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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 III, IV and V(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.
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C.
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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.
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D.
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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.
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ARTICLE
VIII
MISCELLANEOUS
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A.
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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.
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B.
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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.
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C.
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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 attorney’s 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.
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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.
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E.
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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.
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F.
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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.
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G.
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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.
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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.
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I.
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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:
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If to DOT VN:
Attn:
Legal Department
0000
Xxxxxx Xxx., Xxxxx 000
Xxx
Xxxxx, Xxxxxxxxxx 00000
If to KEY-SYSTEMS:
KEY-SYSTEMS,
GMBH
Attn:
Xxxxxxxxx Xxxxxxx
Xxxxxx
Xxxx 0-00
Xxxxxxxx
0
00000
Xxxxxxxxxxx
Germany
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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.
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J.
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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.
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IN WITNESS WHEREOF, the
parties hereto have signed this Agreement, thereunto duly authorized on the day
and year above written.
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KEY-SYSTEMS,
GMBH
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/s/ Xxxxxx Xxxxxxx
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/s/ Xxxxxxxxx Xxxxxxx
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By:
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Xxxxxx
Xxxxxxx
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By:
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Xxxxxxxxx
Xxxxxxx
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Its:
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Chief
Executive Officer
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Its:
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Chief
Executive
Officer
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