Domain Name License Agreement with Option to Purchase
This Domain Name License Agreement with Option to Purchase (“Agreement”), effective as of the time and date You click the box marked “OK,” “Yes,” “I Accept,” or similar language expressing your assent to enter the transaction (“Effective Date”), is by and between NameTrends.com, with an address of 35 Framingham Lane Pittsford, NY 14534, (“Licensor”), and You (“Licensee” or You) (each a “Party” and collectively the “Parties”).
WHEREAS, Licensor is the owner and registrant of record of the Domain Name (as defined below);
WHEREAS, Licensee desires to license the Domain Name from Licensor and to acquire from Licensor an option to purchase the Domain Name in accordance with the terms and conditions of this Agreement; and
WHEREAS, Licensor desires to license the Domain Name to Licensee and to grant to Licensee an option to purchase the Domain Name in accordance with the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the promises and covenants set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the Parties AGREE as follows:
1.1 “Domain Name” means the Internet URL specified at the checkout page and the registration therefor, together with the goodwill symbolized by and associated with the same.
1.2 “Registrar” means the commercial entity that is the exclusive registrar of the Domain Name, and any successor organization or organizations thereof.
2. License of Domain Name.
2.1 Grant of License. Licensor does hereby grant to Licensee an exclusive license to use the Domain Name solely in accordance with the terms and conditions of this Agreement (“License”).
2.2 License Term. This License shall be for a term the length of time specified at the checkout page (“Term”), commencing on the Effective Date and terminating on the date specified at the checkout page (“Expiration Date”) unless sooner terminated pursuant to the terms hereof, in which case the Term shall end on such earlier termination date. No renewals of the Term shall be granted absent further written agreement of the parties, in Licensor’s sole discretion, and upon appropriate payment thereto.
2.3 Payment Options.
2.3.1 License/Lease Option
Licensee shall pay Licensor the amount specified at the checkout page immediately upon the Effective Date for the period commencing on the Effective Date and continuing through and including the day immediately preceding the first period ending on the date specified at the checkout page (the “First Payment Period”). For each successive period thereafter, as specified at the checkout page, Licensee shall pay Licensor the amount specified at the checkout page within ten (10) business days prior the next period specified at the checkout page (each a “Payment Period”).
2.3.2 Instant Purchase Option
Pursuant to Section 3 below, Licensee may elect to purchase the Domain Name by immediately paying the Option Payment in full.
2.3.3 Finance Option
Pursuant to Section 3 below, License may elect to finance the purchase of the Domain Name by making payments towards the Option Payment according to the payment schedule and terms specified at the checkout page.
2.3.4 All payments under this Agreement shall be made by bank wire transfer to the account specified by Licensor, or such other payment method as Licensor may specify in writing.
2.4 Ownership. Unless and until Licensee exercises its option to purchase the Domain Name pursuant to Section 3 of this Agreement, Licensor shall retain ownership of, and all right, title, and interest in and to, the Domain Name, subject to Licensee’s interest as licensee in and to the Domain Name under this License. During the Term of the License, Licensor shall maintain registration of the Domain Name and shall be responsible for all renewal costs associated therewith.
2.5 Licensee’s Use of the Domain Name. During the Term of the License, subject to Licensee’s timely payment of all applicable licensing fees, Licensee shall have full and exclusive rights to use the Domain Name for any lawful purpose. Licensor shall modify the Domain Name Server (DNS) information for the Domain Name as directed by Licensee within three (3) days of the receipt of the First Payment due under this Agreement, and from time to time thereafter as reasonably directed by Licensee during the Term of the License.
2.6 Optional Email Forwarding. For a period time specified at the checkout page and commencing on the Effective Date, Licensee shall cause all email directed to any pre-existing email addresses for the Domain Name to be forwarded to the email address(es) of Licensee’s choosing and shall not otherwise use such email addresses.
2.7.1 Automatic Termination. Should Licensee exercise its option to purchase the Domain Name pursuant to Section 3, this License shall terminate upon the successful completion of the transfer of the Domain Name to Licensee.
2.7.2 Termination by Licensee. Licensee may terminate this License upon written notice, for any reason or for no reason at all, by notifying Licensor of Licensee’s intention to terminate the License no less than 60 days prior to the upcoming anniversary of the Effective Date, and returning control of the Domain Name to Licensee. In the event of such termination without cause, Licensor shall be entitled to retain all license fees paid by Licensee under this Agreement, but shall not be entitled to any additional payments.
2.7.3 Suspension by Licensor. Licensor may suspend this License by disabling the DNS for the Domain Name if Licensee fails to remit a payment to Licensor in accordance with Section 2.3, or breaches its representations and warranties under Section 4.3, provided that Licensor notifies Licensee of Licensor’s intention to suspend the License, and Licensee fails to cure within a period of five (5) days of Licensee’s receipt of such notice. Licensor will restore the DNS upon cure, subject to Section 2.7.4, below.
2.7.4 Termination by Licensor. Licensor may terminate this Agreement if Licensee fails to remit payment to Licensor in accordance with Section 2.3, provided that Licensor notifies Licensee of Licensor’s intention to terminate the License for non-payment, and Licensee fails to remit such payment to Licensor within a period of fourteen (14) days of Licensee’s receipt of such notice. Upon such termination, all rights in and to the Domain Name will revert to Licensor. Licensor’s termination and seizure of the Domain Name is in no way intended to be Licensor’s sole or exclusive remedy for breach of a payment obligation. In the event of Termination for non-payment, Licensor shall have the right to bring an action for damages against Licensee.
3. Licensee’s Option to Purchase Domain Name.
3.1 Grant of Option. Licensor does hereby grant to Licensee an option to purchase the Domain Name in accordance with the terms and conditions of this Agreement. Such option to purchase the Domain Name shall be at Licensee’s sole discretion.
3.2 Exercise of Option. Licensee may exercise its option to purchase the Domain Name prior to the termination of the Agreement at the times specified in Section 3.3 below, which option may be exercised by notifying Licensor that it is exercising such option by clicking the box marked “I Accept” on your requisite account page, and making the payment required in accordance with Section 3.3, below.
3.3 Transfer; Payment; Further Assurances. Should Licensee exercise its option to purchase the Domain Name, Licensor hereby agrees that it shall, upon such exercise, assign, sell, and transfer to Licensee all of Licensor’s right, title, and interest, throughout the world, in and to the Domain Name, and Licensee agrees to pay Licensor the amount specified at the checkout page (the “Option Payment”) in consideration of the transfer of: (i) the Domain Name and; (ii) the covenants from Licensor identified herein. If the Licensee does not elect to pay the Option Payment immediately upon assenting to this Agreement, it may not exercise its option until after the First Payment Period, and in any event, at no time prior to 18 months after the Effective Date. The purchase option is not complete until the Licensee pays the Option Payment in full. If the Licensee elects to finance the purchase of the Domain Name, it may continue to license the Domain Name pursuant to this Agreement at the amounts specified at the checkout page, but all right and title in and to the Domain Name shall remain with Licensor until the Option Payment is paid. The Option Payment shall be in addition to any license payments made prior to the exercise of the Option. In the event that Licensee exercises the Option and makes the Option Payment prior to expiration of the First Payment Period, no further license payments shall be due. In the event that Licensee exercises the Option and makes the Option Payment prior to a successive Payment Period, the following Payment Period shall not be due. If Licensee fails to make the Option Payment prior to the applicable date, Licensee shall be liable for making the corresponding license payment(s) with the specified Payment Period.
3.4 The Parties shall use the escrow service provided by Escrow.com, Inc. (<escrow.com>), or an alternative escrow service designated by Licensor (“Escrow Service”), to facilitate payment and transfer of the Domain Name, with escrow costs to be paid fully by Licensee. Licensee shall initiate the transfer by submitting payment to the Escrow Service within ten (10) business days of Licensee’s notification of its intention to exercise its option to purchase the Domain Name, after which Licensor shall perform all such acts as are required to authorize and effectuate the transfer of ownership and control of the Domain Name to Licensee, including but not limited to timely providing Licensee with the appropriate transfer authorization code(s), executing and delivering any forms, documents, or authorizations, electronic or otherwise, required by Registrar and/or the Escrow Service and otherwise cooperating with Licensee to fully and completely effectuate the transfer of the Domain Name to Licensee. The Option must be exercised, and the Option Payment must be received by the Escrow Service, prior to the termination of this Agreement. If the option is not exercised, and the Option Payment is not received prior to the termination of this Agreement, the Option shall automatically terminate.
4. Representations & Warranties.
4.1 Warranty of Title. Licensor represents, warrants, and covenants that: (i) Licensor is the sole owner of the Domain Name; (ii) no third party has any claim to, rights or interest in, or control over the Domain Name; and (iii) there is no threatened or pending litigation regarding the Domain Name.
4.2 Warranty of Non-Interference. Licensor represents, warrants, and covenants that, during the Term of the Agreement and, if Licensee exercises its option to purchase the Domain Name, subsequent to the transfer of the Domain Name to Licensee, Licensor shall not: (i) assign, sell, transfer, or convey, or purport to assign, sell, transfer, or convey, the Domain Name to any third party, interfere with Licensee’s use or ownership of the Domain Name, or otherwise make use of the Domain Name for any purpose, except as is expressly permitted under this Agreement; (ii) provided Licensee is not in breach of a payment obligation hereunder, dispute Licensee’s interest in and to the Domain Name; (iii) register, attempt to register, or use, whether as a domain name, trademark, certification mark, or service mark, any term that is confusingly similar to the Domain Name; (iv) post any content on any website that in any way places Licensee or Licensee’s business activities in a false light, dilutes Licensee’s goodwill whether by tarnishment, blurring, or otherwise, intrudes on Licensee’s affairs, appropriates Licensee’s name or likeness, or discloses private facts about Licensee, or otherwise defames, disparages, or slanders Licensee or Licensee’s business activities; (v) use any email address that includes the character string identical to the Domain Name specified at the checkout page or any other character string confusingly similar to the Domain Name for any purpose, including but not limited to use in advertising and promotional materials, except as otherwise provided herein; or (vi) provided Licensee is not in breach of a payment obligation hereunder, take any other action that is adverse to Licensee, including but not limited to Licensee’s interest in the Domain Name.
4.3 Licensee’s Warranties: Licensee represents, warrants, and covenants that, during the Term of the License, Licensee shall not use the Domain Name: (i) in violation of any third parties’ trademark, copyright, or other rights; (ii) to send bulk unsolicited commercial email or spam; (iii) in connection with viruses, worms, Trojan horses, or any other kind of malware; (iv) in connection with adult content; (v) to harass, defame, disparage a third party; (vi) Licensee shall not trademark the Domain Name, i.e. the Internet URL specified at the checkout page, unless or until Licensee exercises the Option; or (vii) in any other way that may cause harm to Licensor or the Domain Name, including, without limitation, its rank or standing with search engines.
5.1 Licensor. Licensor shall defend, indemnify, and hold Licensee harmless for any claims or disputes filed or threatened by third parties with respect to any breach of Licensor’s obligations under this Agreement, or any rights in or to, or control of, the Domain Name, including but not limited to domain name disputes, cybersquatting disputes, trademark disputes, certification mark disputes, service mark disputes, and trade name ownership disputes (excluding disputes brought by third parties over Licensee’s use of the Domain Name).
5.2 Indemnity by Licensee. Licensee shall defend, indemnify, and hold Licensor harmless for any claims or disputes filed or threatened by third parties with respect to any breach of Licensee’s obligations under this Agreement, or over any use of the Domain Name by Licensee, including but not limited to domain name disputes, cybersquatting disputes, trademark disputes, certification mark disputes, service mark disputes, and trade name ownership disputes (excluding disputes brought by third parties over Licensor’s registration and use of the Domain Name). In the event that Licensor loses the Domain Name in an action or other dispute proceeding as a result of Licensee’s breach of its representations and warranties, Licensee shall indemnify Licensor for the full value of the Domain Name (which is the amount specified at the checkout page).
6. No Assumption of Licensor Debts or Liabilities. Licensee does not, through its license or acquisition of the Domain Name from Licensor, assume any debts or liabilities held or incurred by Licensor or Licensor’s business at any time before or after the Effective Date, and nothing in this Agreement, whether express or implied, shall be construed to transfer any such debts or liabilities to Licensee.
7. Miscellaneous Provisions.
7.1 Notices. Any notice, request, delivery, approval, or consent required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been sufficiently given if delivered in person, by certified mail (or its equivalent), or by recognized overnight courier service (receipt required), or transmitted by facsimile or email with contemporaneous confirmation by mail, to the Party to which it is directed at its address shown below or to such other address as such Party shall have last given notice to the other Party under this Section 7.2.
|If to NameTrends.com:||If to Licensee:|
35 Framingham Lane
Pittsford, NY 14534
The name, address and email specified by You at the checkout page.
7.2 Assignment. Licensor may assign any or all of its rights or obligations under this Agreement, in whole or in part. This Agreement may not be assigned by Licensee without the prior written consent of Licensor, which consent may be withheld for any reason. Any attempted assignment in violation of this Section 7.2 shall be void.
7.3 Successors in Interest and Assigns; No Third Party Beneficiaries. This Agreement shall be binding upon and inure solely to the benefit of the Parties hereto and their permitted successors in interest and assigns, subject to the provisions of Section 7.2 of this Agreement. Nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
7.4 Cumulative Remedies. All remedies available to either Party for breach of this Agreement are cumulative and may be exercised concurrently or separately. The exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies.
7.5 No Waiver. The waiver or failure of either Party to exercise in any respect any right provided hereunder shall not be deemed a waiver of such right in the future or a waiver of any other rights established under this Agreement, nor under statute nor common law.
7.6 Severability. Should any term or provision of this Agreement be deemed by a court of competent jurisdiction or quasi-judicial authority to be unenforceable, invalid, or prohibited under law, then such provision shall be deemed restated to reflect the original intention of the Parties as nearly as possible in accordance with applicable law and the remainder of this Agreement. The application of such term or provision to persons, property, or circumstances other than those as to which it is unenforceable, invalid, or prohibited under law shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. All other terms and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party.
7.7 Construction; Headings. This Agreement and the language hereof shall be construed as a whole and in accordance with its fair meaning without regard to any presumption or other rule requiring construction against the Party causing this Agreement to be drafted. The section headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
7.8 Disputes; Applicable Law; Venue. This Agreement shall be governed in all respects by the laws of the State of New York without giving effect to its rules relating to conflict of laws. Any action or proceeding seeking legal or equitable relief arising out of or relating to this Agreement shall be brought only in the federal or state courts of the State of New York, located in Monroe County. The Parties irrevocably consent to the jurisdiction of each such court in any such action or proceeding. Personal jurisdiction over the Parties may be obtained by the mailing (postage prepaid) of a summons or similar legal document to the Party’s address for notices under this Agreement. In the event of breach of this Agreement by Licensee, Licensee shall pay all Licensor’s costs and damages in connection with the action (including but not limited to attorneys’ fees). Notwithstanding the foregoing, prior to instituting any such action or proceeding, the Parties agree first to confer in good faith to resolve any conflicts which may arise.
7.9 Confidentiality. Neither Party shall disclose this Agreement or any of the terms hereof to any third party except as otherwise permitted by this Agreement or as mutually agreed in writing by the Parties. Notwithstanding the foregoing, the Parties shall be permitted to disclose such confidential information: (i) to their accountants, legal, financial, and other advisors, directors, officers, and employees as necessary for the performance of their respective duties, provided that said persons agree to treat the information as confidential in the above-described manner; (ii) as required by law, government regulation, or any government authority; (iii) if disclosure is necessary to the enforcement of the provisions in the Agreement; and (iv) as is necessary for Licensor to effectuate the transfer of the Domain Name pursuant to this Agreement.
7.10 Recitals. The recitals are true and correct and are hereby incorporated into this Agreement and constitute a part of this Agreement as if fully and completely set forth in their entireties.
7.11 Entire Agreement; Amendment. This Agreement constitutes the complete and exclusive statement of the agreement between the Parties with respect to the subject matter of this Agreement and supersedes any and all prior oral or written communications, proposals, representations, promises, statements, and agreements not wholly consistent herewith. This Agreement may be amended or modified only by mutual agreement expressed in writing and signed by or on behalf of both Licensor and Licensee.
7.12 Survival. The terms and conditions of Sections 4, 5, 6, and 7 of this Agreement shall survive the termination of this Agreement.
7.13 Advice of Counsel. Each Party represents that it has read and fully understands the contents of this Agreement and has had the advice of independent counsel or the right and opportunity to seek the advice of independent counsel with respect to this Agreement.
7.14 Mutual Warranties. Each Party hereby represents, warrants, and covenants that: (i) it has the legal right and authority to enter into and perform the obligations set forth in this Agreement and to authorize its assenter hereto to execute this Agreement and bind such Party; (ii) the assenting, execution and performance of this Agreement will not violate any valid court order or applicable law or legal provision or constitute a breach of any contract or other obligation of such Party; (iii) there is no other reason, currently existing or anticipated, that would render it unable to fully perform its obligations hereunder; and (iv) this Agreement, upon assent, execution and delivery, shall constitute a valid and binding obligation of each Party and will be enforceable against such Party pursuant to its terms. Each Party hereto represents, warrants, and covenants that he or she has been duly authorized and has full authority to execute this Agreement on behalf of the Party for which his or her assent is indicated by clicking the box marked “OK,” “Yes,” “I Accept,” or similar language expressing your assent to enter the transaction.