EXHIBIT 10.11
AGREEMENT WITH XXXXXXXX.XXX
Name of Customer
Co-Branded Services Agreement xxxxxxxx.xxx, inc.
Date
2
Customer Initials _________
xxxxxxxx.xxx Initials _________
Name of Customer Co-Branded Services Agreement xxxxxxxx.xxx, inc.
Date
Customer Initials __________
xxxxxxxx.xxx Initials __________
CO-BRANDED SITE SERVICES AGREEMENT
This Co-Branded Site Services Agreement ("Agreement"), dated as of
October 20, 1999, is made and entered into by and between xxxxxxxx.xxx, inc., a
Delaware corporation ("Xxxxxxxx.xxx" or "xxxxxxxx.xxx") with its office AT 000
0XX XXXXXX, 00XX Xxxxx, Xxx Xxxx, XX 00000 and Cathay Online, Inc. with its
principal offices located at
______________________________________________________
_____________________________("Customer").
WHEREAS, xxxxxxxx.xxx is a registrar of generic Top-level Domain Names,("gTLDs)
.com, .net and .org. Xxxxxxxx.xxx also registers various country code Top Level
Domains ("ccTLDs");
WHEREAS, xxxxxxxx.xxx engages in the business of domain name registration and
registrar services and certain other Internet and non-Internet services;
WHEREAS, Customer seeks to enhance its service offerings with the capacity to
provide its end users ("Customer End Users") with Top-level Domain Name
registration and other xxxxxxxx.xxx services (the "Services");
WHEREAS, xxxxxxxx.xxx and Customer wish to make the Services available on a
co-branded Web site (the "Co-Branded Site");
WHEREAS, Customer wishes to place text link(s), button(s), and banner(s)
("Service Access Options") on Customer's web site to direct Customer End Users
to the Co-Branded Site where they can use the Services;
NOW THEREFORE, Xxxxxxxx.xxx and Customer, in consideration of certain agreements
hereinafter set forth, mutually agree as follows:
1. DEFINITIONS
1.1 "Home Page" shall mean the primary home web page located at
http://______________ and/or domain name registration pages.
1.2 "HotLink" shall mean text or graphics on a web page that when clicked
automatically call up another web page.
1.3 "Launch Date" shall mean the date the Co-Branded Site is publicly
accessible via the Internet.
1.4 "Referred User" shall mean a Customer End User who uses the Services.
1.5 "Gross Fee" shall mean the price paid by the Referred User for the
Services, which prices shall be set at the sole discretion of
xxxxxxxx.xxx.
1.6 "Net Fee" shall mean the Gross Fee, less any registry fees or fees paid
to regulatory agencies, including but not limited to the Internet
Corporation for Assigned Names and Numbers ("ICANN"), value added
taxation authorities and any other taxes, credit card processing fees
or additional fees, and a bad debt allowance of 5%.
2. SCOPE OF SERVICES
2.1. CREATION AND MAINTENANCE OF THE CO-BRANDED SITE. Xxxxxxxx.xxx shall
create, host and maintain the Co-Branded Site. The Services shall be
made available on the Co-Branded Site. The use and placement of the
Customer's Marks (as hereinafter defined) on the Co-Branded Site shall
be subject to Customer's prior approval.
2.2. SERVICES PROVIDED BY XXXXXXXX.XXX. The Services to be provided by
xxxxxxxx.xxx under this Agreement, and xxxxxxxx.xxx's specific
obligations relating thereto, are set forth in Schedule 1. Customer
further acknowledges that certain Services provided by xxxxxxxx.xxx are
regulated by third parties, including without limitation ICANN and the
U.S. Department of Commerce. Xxxxxxxx.xxx reserves the right to modify
the Services provided hereunder in order to comply with the third party
obligations to which it is bound. All Services provided by xxxxxxxx.xxx
to Referred Users shall be subject to xxxxxxxx.xxx's standard terms and
conditions. In the event that Customer undertakes the registration of
any of Customer End Users' domain names using the Services, Customer
agrees that it shall use its best efforts to ensure that all such
Customer End Users are bound by xxxxxxxx.xxx's standard terms and
conditions.
2.3. REFERRED USER SUPPORT. Xxxxxxxx.xxx will provide customer support for
Referred Users. Customer shall be responsible for user support for any
other service offered by Customer, and shall also be responsible for
user support in connection with accessing the Co-Branded Site (e.g.,
working links, transmission). Customer shall not make any
representations regarding the support to be provided by xxxxxxxx.xxx
without xxxxxxxx.xxx's prior written consent.
2.4. INTEGRATION AND CUSTOMER SUPPORT. The Co-Branded Site will be linked to
Customer's web site through the Service Access Options. The parties
shall cooperate, each at its own expense, in selecting the appropriate
Service Access Options for Customer's web site, and the placement
thereof, to enable Customer to make the Co-Branded Site and the
Services available to the Customer End Users. The Service Access
Options shall be available on Customer's web site within thirty days
after execution of this Agreement. Xxxxxxxx.xxx shall provide
reasonable support during the Term during normal business hours (9am to
8pm EST) to Customer to handle inquiries from Customer regarding the
Co-Branded Site and the Services.
2.5. COSTS. Xxxxxxxx.xxx shall provide the Services, including hardware,
software and network requirements, at its own expense, except for the
fees and service costs charged to Customer hereunder, as set forth in
Schedule 2. Customer shall implement the Service Access Options,
including hardware, software and network requirements, and coding of
links and buttons, at its own expense.
2.6. DNS SERVERS. The Customer shall have the option, but will in no way be
obligated, to use xxxxxxxx.xxx DNS servers for registrations made on
the co-branded website.
2.7. TECHNICAL CONTACT: The customer shall also have the option of being
listed as the technical contact for registrations made from the
co-branded webpage
2.8. PROMOTION. The parties shall agree to a joint marketing campaign to
promote the Services and the Service Access Options. Customer agrees to
display the Xxxxxxxx.xxx Marks on the Home Page (or other page, as
mutually agreed by the parties) of Customer's Web site above the fold,
which will be a HotLink or a direct link to the Co-Branded Site.
2.9. TRANSFER. Customer shall use best efforts to recommend to the Customer
End Users to transfer their domain names to xxxxxxxx.xxx as the primary
and preferred registrar. Transfer of domain name procedures shall be
available from the Co-Branded Site. Each domain name transferred to
xxxxxxxx.xxx shall be subject to the same Commission payment to
Customer as names originally registered by xxxxxxxx.xxx on the
Co-Branded Site.
3. FEES AND PAYMENTS
3.1 FEES TO CUSTOMER. Xxxxxxxx.xxx shall pay Customer the Commission as set
forth in Schedule 2 of this Agreement. Commission payments to Customer
shall be made on a quarterly basis, in U.S. dollars, based on the prior
quarter's actual revenue received by xxxxxxxx.xxx from Referred Users
within forty-five (45) of the end of the applicable quarter.
3.2 FEE TO XXXXXXXX.XXX. Customer shall pay xxxxxxxx.xxx the fee set forth
in Schedule 2 of this Agreement.
4. EXCLUSIVITY
4.1 EXCLUSIVITY. During the Term and for a ninety (90) day period
thereafter, Customer shall not (a) use, offer, promote, develop, design
or market any service competitive with the Services, or (b) display any
other advertisements for or linked to domain name registration services
on Customer's web site(s). Customer agrees to notify xxxxxxxx.xxx
within seven (7) days of applying to become an ICANN-accredited
registrar. Xxxxxxxx.xxx reserves the right to terminate this agreement
in such event.
5 USE OF MARKS AND OWNERSHIP
5.1 USE OF XXXXXXXX.XXX LOGO. Xxxxxxxx.xxx hereby grants to Customer and
Customer accepts a limited, non-exclusive, non-transferable right
during the Term to use, display, transmit, distribute and reproduce the
xxxxxxxx.xxx graphical logo and trademark(s) (collectively, the
"Xxxxxxxx.xxx Marks"), and content provided by xxxxxxxx.xxx about the
Services, on Customer's Web site solely for the purpose of providing
access to, and information about, the Co-Branded Site and the Services.
All uses of the Xxxxxxxx.xxx Marks require the prior approval of
xxxxxxxx.xxx. Xxxxxxxx.xxx will provide Customer with electronic
versions of the Xxxxxxxx.xxx Marks for Customer's use in implementing
the Service Access Options and other promotional and informational
materials about the Services. All uses of the Xxxxxxxx.xxx Marks by
Customer will inure to the benefit of xxxxxxxx.xxx
5.2 TRANSLATION. Xxxxxxxx.xxx will allow the Customer to translate the
co-branded website into French and shall facilitate these efforts by
providing the Customer with the necessary, base html templates.
5.3 USE OF CUSTOMER LOGO. Customer hereby grants to xxxxxxxx.xxx and
xxxxxxxx.xxx accepts a limited, non-exclusive, non-transferable right
during the Term to use, display, transmit, distribute and reproduce the
Customer graphical logo and trademark(s) (collectively, the "Customer
Marks") on the Co-Branded Site and on xxxxxxxx.xxx's Web site for the
purpose of promoting the Co-Branded Site. All uses of the Customer
Marks require the prior approval of Customer. Customer will provide
xxxxxxxx.xxx with electronic versions of the Customer Marks for
xxxxxxxx.xxx's use. All uses of the Customer Marks by xxxxxxxx.xxx will
inure to the benefit of Customer.
5.4 OWNERSHIP. Customer acknowledges that, as between xxxxxxxx.xxx and
Customer, xxxxxxxx.xxx owns all right, title and interest in the
Xxxxxxxx.xxx Marks, in all components of the xxxxxxxx.xxx Web site(s)
and in all components of the Co-Branded Site, other than content
provided by Customer and the Customer Marks. Xxxxxxxx.xxx acknowledges
that, as between Customer and xxxxxxxx.xxx, Customer owns all right,
title and interest in the Customer Marks, and in all components of
Customer's own Web site(s), other than links or branding provided by
xxxxxxxx.xxx, including content provided by xxxxxxxx.xxx and the
Xxxxxxxx.xxx Trademarks.
6. CONFIDENTIALITY
6.1 NON-DISCLOSURE. The parties agree and acknowledge that, as a result of
negotiating, entering into and performing this Agreement, each party
has and will have access to certain of the other party's Confidential
Information (as defined below). Each party also understands and agrees
that misuse and/or disclosure of that information could adversely
affect the other party's business. Accordingly, the parties agree that,
during the Term of this Agreement and for a period of five (5) years
thereafter, each party shall (a) use and reproduce the other party's
Confidential Information only for the purposes of this Agreement and
only to the extent necessary for such purpose; (b) restrict disclosure
of the other party's Confidential Information to its employees,
consultants or independent contractors with a need to know and (c) not
disclose the other party's Confidential Information to any third party
without prior written approval of the other party. Notwithstanding the
foregoing, it shall not be a breach of this Agreement for either party
to disclose Confidential Information of the third party if required to
do so under law or in a judicial or other governmental investigation or
proceeding, provided the other party has been given prior notice and
the disclosing party has sought all available safeguards against
widespread dissemination prior to such disclosure.
6.2 CONFIDENTIAL INFORMATION DEFINED. As used in this Agreement, the term
"Confidential Information" refers to: (i) the terms and conditions of
this Agreement; (ii) each party's trade secrets, current or future
business plans, strategies, opportunities, methods and/or practices;
and (iii) other information relating to either party that is not
generally known to the public, including information about either
party's personnel, customers, designs, protocols, know-how, processes,
costs, prices, finances and research and development. Customer agrees
the customer data and Referred User data collected and aggregated by
xxxxxxxx.xxx through the domain name registration process, and all
xxxxxxxx.xxx processes and protocols provided by xxxxxxxx.xxx under
this Agreement are Confidential Information of xxxxxxxx.xxx.
Notwithstanding the foregoing, the term "Confidential Information"
specifically excludes (a) information that is now in the public domain
or subsequently enters the public domain by publication or otherwise
through no action or fault of the other party; (b) information that is
known to either party without restriction, prior to receipt from the
other party under this Agreement, from its own independent sources as
evidenced by such party's written records, and which was not acquired,
directly or indirectly, from the other party; (c) information that
either party receives from any third party reasonably known by such
receiving party to have a legal right to transmit such information, and
not under any obligation to keep such information confidential; and (d)
information independently developed by either party's employees or
agents provided that either party can show that those same employees or
agents had no access to the Confidential Information received
hereunder.
7. TERM AND TERMINATION
7.1 TERM. The term of this Agreement shall commence as of the Launch Date
and shall continue for a period as set forth in Schedule 2.
7.2 TERMINATION. Either party may terminate this Agreement if the other
party materially breaches its obligations hereunder and such breach
remains uncured for thirty (30) days following written notice of the
breach given to the breaching party.
7.3 PERFORMANCE. Xxxxxxxx.xxx reserves the right to terminate this
Agreement at any time in the event that, in xxxxxxxx.xxx's reasonable
judgment, Customer does not adequately support the Customer End Users
or if the Referred Users submit domain name registrations that are
fraudulent or result in an excessively high non-payment rate.
7.4 EFFECT OF TERMINATION. In the event of termination of this Agreement
for any reason, all terms of this Agreement which by their nature
extend beyond its termination such as, but not limited to, section 4.1,
remain in effect until fulfilled, and apply to respective successors
and assigns. Neither party shall be liable to the other for damages of
any sort resulting solely from terminating this Agreement in accordance
with its terms.
8. FORCE MAJEURE
In the event that either party is prevented from performing, or is
unable to perform, any of its obligations under this Agreement due to
any cause beyond the reasonable control of the party invoking the
provision, the affected party's performance shall be excused and the
time for performance shall be extended for the period of delay or
inability to perform due to such occurrence.
9. REPRESENTATION AND WARRANTIES
Each party represents that it has the right to enter into this
Agreement and that its entry into this Agreement will not violate its
obligations to any third party.
10. LIMITATION OF LIABILITY
10.1 XXXXXXXX.XXX SHALL NOT BE LIABLE FOR ANY TRANSMISSION OR OTHER ERRORS
BEYOND ITS CONTROL THAT PREVENT IT FROM PROVIDING THE SERVICES.
10.2 EXCEPT AS EXPRESSLY WARRANTED HEREIN, NEITHER PARTY MAKES ANY
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ITS WEB SITE(S), THE
CONTINUATION OR SUCCESS THEREOF, THE MATERIALS CONTAINED THEREIN, THE
SERVERS USED OR THE GOODS OR SERVICES OFFERED BY EITHER PARTY AND EACH
PARTY EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESS, IMPLIED, OR
STATUTORY, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10.3 UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY
FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES
(EVEN IF SUCH DAMAGES ARE FORESEEABLE OR THAT 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 SITE
(INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, BUT NOT
LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. IN
NO EVENT SHALL EITHER PARTY BE LIABLE FOR DAMAGES IN EXCESS OF THE
AMOUNT RECEIVED BY SUCH PARTY UNDER THIS AGREEMENT. NOTWITHSTANDING
ANYTHING HEREIN TO THE CONTRARY, HOWEVER, THIS SECTION SHALL NOT LIMIT
EITHER PARTY'S LIABILITY TO THE OTHER FOR (A) WILLFUL AND MALICIOUS
MISCONDUCT; (B) DIRECT DAMAGES TO REAL OR TANGIBLE PERSONAL PROPERTY;
(C) BODILY INJURY OR DEATH CAUSED BY NEGLIGENCE OR (D) INDEMNIFICATION
OR CONFIDENTIALITY OBLIGATIONS HEREUNDER.
11. INDEMNITY
11.1 INDEMNIFICATION BY XXXXXXXX.XXX. Xxxxxxxx.xxx will, at its own expense,
indemnify, defend and hold harmless Customer, and its employees,
representatives and affiliates, against any third party claim, suit,
action or other proceeding brought against Customer based on or arising
from a claim that any xxxxxxxx.xxx intellectual property infringes in
any manner upon any intellectual property right of any third party or
has otherwise resulted in any tort, injury, damage or harm to any
person or entity. Xxxxxxxx.xxx will pay any and all costs, damages and
expenses, including, but not limited to, reasonable attorneys' fees and
costs awarded against or otherwise incurred by Customer in connection
with or arising from any such claim, suit, action or proceeding. The
foregoing indemnity is conditioned upon prompt written notice by
Customer to xxxxxxxx.xxx of any claim, action or demand for which
indemnity is claimed; complete control of the defense and settlement
thereof by xxxxxxxx.xxx; and such reasonable cooperation by Customer in
the defense as xxxxxxxx.xxx may request.
11.2 INDEMNIFICATION BY CUSTOMER. Customer, at its own expense, will
indemnify, defend and hold harmless xxxxxxxx.xxx, and its employees,
representatives and affiliates, against any third party claim, suit,
action or other proceeding brought against xxxxxxxx.xxx based on or
arising from a claim that services provided by Customer, or that any
content or software produced or provided by Customer, or any content
presented on any Internet site produced, maintained or published by
Customer, infringes in any manner on any intellectual property right of
any third party or has otherwise resulted in any tort, injury, damage
or harm to any person or entity. Customer, at its own expense, will
also indemnify, defend and hold harmless xxxxxxxx.xxx, and its
employees, representatives and affiliates, against any disputes,
complaints, acts, errors or omissions caused by or as a result of any
action of Customer End Users. Customer will pay any and all costs,
damages and expenses, including, but not limited to, reasonable
attorneys' fees and costs awarded against or otherwise incurred by
xxxxxxxx.xxx in connection with or arising from any claim, suit, action
or proceeding. The foregoing indemnity is conditioned upon: prompt
written notice by xxxxxxxx.xxx to Customer of any claim, action or
demand for which indemnity is claimed; complete control of the defense
and settlement thereof by Customer; and such reasonable cooperation by
xxxxxxxx.xxx in the defense as Customer may request.
11.3 SETTLEMENT. Neither party shall, without prior written consent of the
other party, settle, compromise or consent to the entry of any judgment
with respect to any pending or threatened claim unless the settlement,
compromise or consent provides for and includes an express,
unconditional release of all claims, damages, liabilities, costs and
expenses, including reasonable legal fees and expenses, against the
indemnified party.
12. NOTIFICATION
12.1 Any notice required to be given hereunder shall be given in writing and
delivered personally, sent by certified mail, return receipt requested,
or by Federal express or other recognized overnight delivery service to
each of the parties at their respective addresses herein above set
forth or at such other addresses as any party may hereafter notify the
other of in such manner. Any notices sent by certified mail shall be
deemed given on the day such notice is received.
To xxxxxxxx.xxx:
Xxxxxxxx.xxx
000 0XX XXXXXX, 00XX Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxx, CEO
With a copy to: Xxxxx Xxxxxxxx, Esq., Loeb & Loeb LLP
000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000
To Customer:
===================
-------------------
Attn: _______________
12.2 PRESS RELEASES. Customer and xxxxxxxx.xxx may jointly prepare press
release(s) concerning the existence of this Agreement and the terms
hereof. Otherwise, no public statements concerning the existence of
terms of this Agreement shall be made or released to any medium except
with prior approval of Customer and xxxxxxxx.xxx or as required by law.
Both parties will agree upon the content, timing and necessity of all
such press releases.
13. RELATIONSHIP OF THE PARTIES
Except as a party may be specifically authorized in writing by the
other, nothing herein contained shall be construed as authorizing a
party to bind the other in any way nor as constituting a party an agent
or representative of the other.
14. TAXES
Each party shall be responsible for and pay its own sales taxes , use
taxes and any other taxes imposed by any jurisdiction as a result of
(a) entry into this Agreement (b) the performance of any of the
provisions of this Agreement or (c) the transfer of any property,
rights or any other grant hereunder.
15. GOVERNING LAW
This Agreement shall be governed by the laws of the State of New York,
USA, and both Customer and xxxxxxxx.xxx consent to jurisdiction and
venue in any and all disputes hereunder in the state or federal courts
of the City of New York.
16. ASSIGNMENT
Neither party may assign this Agreement, or any of its rights,
interests or obligations without the prior written approval of the
other party, which approval shall not be unreasonable withheld,
provided however that either party shall have the right to assign its
rights and obligations hereunder without consent of the other party to
a party which acquires the assignor by merger or sale, or which
acquires all or substantially of the assignor's stock or assets or
which controls, is controlled by, or is under the common control with
the assignor. All of the terms of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors and assigns.
17. ENTIRETY
This Agreement shall not be effective until signed by both parties.
This Agreement constitutes the entire agreement between the parties
with respect to the Services and all other subject matter hereof and
supercedes all prior communications. This Agreement shall not be
modified except by written agreement dated subsequent to the date of
this agreement and signed on behalf of xxxxxxxx.xxx and Customer by
their respective duly authorized representatives.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
xxxxxxxx.xxx, inc. ____________________
By (Signature) By (Signature)
Name (Print) Name (Print)
Title Title
Date Date
SCHEDULE 1 (THE SERVICES)
Complete domain name registration Services include but are not limited to:
a) Checking for domain name availability
b) Confirming Referred User intention to register
c) Requiring Referred User to login to create or re-use domain registration
profile d) Billing of Referred User via credit card e) Entering Referred User
domain name into appropriate registrar database
SCHEDULE 2 (TERM, FEES AND PERFORMANCE REQUIREMENTS)
TERM
The term of this Agreement shall commence as of the Launch Date and shall
continue for a period of three (3) years (the "Term") or until terminated as
provided in Section 7. The Term shall be extended for additional, consecutive
one (1) year periods, unless either party gives the other written notice of
termination at least ninety (90) days prior to the expiration of the then
current term. Before entering into an agreement with any other person or entity
with respect to the services offered by xxxxxxxx.xxx, Customer shall permit
xxxxxxxx.xxx to present a competitive offer.
FEES AND COMMISSION
COMMISSION PAYABLE TO CUSTOMER:
Xxxxxxxx.xxx will pay Customer a commission based upon a percentage of
xxxxxxxx.xxx's Net Fees received from the registration of each domain name
registered through the Co-Branded Site (the "Commission"). The Commission
payable to Customer is on a sliding scale based on monthly volume, as follows:
Generic TLDs (i.e., .com, .net, .org)
Number of Monthly gTLD Commission
registrations Percentage (%)
0 - 500 10 %
501 - 1000 12.5%
1000 - 2500 15%
2500 + 30%
ccTLDs: Country Code Top Level Domains (i.e., .md, .fm, .xx.xx)
Number of Monthly ccTLD Commission
registrations Percentage (%)
Unlimited 10%
By way of illustration, if there are 3000 gTLD registrations and 1000 ccTLD
registrations on the Co-Branded Site in January, 2000, the Commission payable to
Customer for January shall be 20% of the Net Fees received by xxxxxxxx.xxx with
respect to such gTLD registrations, (.com, .net, .org) and 10% of the Net Fees
received by xxxxxxxx.xxx from ccTLD registrations, (.md, .kz, .ac, etc).
FEE PAYABLE TO XXXXXXXX.XXX:
Customer shall pay xxxxxxxx.xxx a one time set up fee of $5,000 for providing
the Co-Branded Site. This fee will be waived if this Agreement is executed
before November 1, 1999
