Customer Domain License Agreement
READ CAREFULLY THE TERMS AND CONDITIONS OF THIS DOMAIN LICENSE AGREEMENT (THIS “AGREEMENT”). THIS AGREEMENT IS ENTERED INTO AND EFFECTIVE AS OF THE CONTRACT START DATE (THE “EFFECTIVE DATE”) ABOVE AND IS BETWEEN YOU AND THE COMPANY OR ENTITY YOU REPRESENT (“LICENSEE”) AND ROOT ORANGE, LLC, A DELAWARE LIMITED LIABILITY COMPANY WITH ITS PRINCIPAL PLACE OF BUSINESS LOCATED AT 8070 GEORGIA AVENUE, SUITE 207; SILVER SPRING, MD 20910 (“ROOT ORANGE”) AND CONTAINS THE TERMS PURSUANT TO WHICH ROOT ORANGE AGREES TO LICENSE TO YOU CERTAIN GENERIC DOMAIN NAMES AS SPECIFIED BELOW. BY CHECKING THE BOX ADJACENT TO THE STATEMENT “I HAVE READ, UNDERSTAND, AND AGREE TO THE LICENSE AGREEMENT” ON THE BILLING PAGE, YOU (I) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT, (II) ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, AND (III) IF ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH COMPANY OR OTHER ENTITY. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT CHECK THE BOX SIGNIFYING YOUR ACCEPTANCE OF THE AGREEMENT. IF YOU LICENSE THE DOMAIN(S) AND ENTER INTO THIS AGREEMENT BY PHONE, YOU (I) ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND (II) IF ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH COMPANY OR OTHER ENTITY. IF YOU ENTER INTO THIS AGREEMENT BY PHONE AND DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY REQUEST CANCELLATION OF THE LICENSE(S) WITHIN TEN (10) DAYS OF THE EFFECTIVE DATE AND ARE ENTITLED TO A REFUND OF ALL FEES.
RECITALS
WHEREAS, Root Orange owns proprietary technology that makes it possible for multiple businesses (“Customers”) in different geographic areas to simultaneously use the same generic domain name (the “Technology”) and owns or has rights to certain generic domain names set forth under Domain Name(s) (the “Domains”) above; and
WHEREAS, Licensee desires to license the rights to Domains for use in the geographic locations set forth under Reserved Location(s) (the “Territory”) under the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the mutual covenants, representations, and agreements herein contained, and intending to be legally bound, the parties agree as follows:
AGREEMENT
1. License. Subject to all the terms and conditions of this Agreement, Root Orange hereby grants to Licensee an exclusive (in the Territory), non-transferable, right and license (without the right to sublicense) to use the Domains (including any goodwill in connection therewith) for the purpose of directing Internet traffic originating from users in the Territory to Licensee’s website. Root Orange will use the Technology to direct Internet traffic to Licensee’s website for purposes of Licensee’s use of the Domains in connection with the foregoing license. Except for the limited rights and licenses granted hereunder, no other license is granted, no other use is permitted, and Root Orange and its licensors shall own all rights, title and interests in and to the Domains. Any goodwill generated from use of the Domains by Licensee shall inure to the benefit of Root Orange and/or its licensors.
2. License Fee. In consideration for the license granted in Section 1, Licensee shall pay Root Orange the Payment(s) specified above for use of the Domains (the “License Fee”). The License Fee shall be determined each month as the lower value of (a) the Cost-Per-Unique (“Cost-Per-Unique”) specified above multiplied by the number of unique Internet users that visit Licensee’s website through the Domains or (b) the Monthly Cap (“Monthly Cap”) specified above. The License Fee shall be non-refundable, and payments shall be due within fifteen (15) days of the end of each monthly period, with the first monthly period ending exactly one month after the Effective Date. Amounts not paid when due shall bear interest until paid at the rate of one and one half percent (1.5%) per month or the maximum amount permitted by law, whichever is less. Failure of Licensee to make any payment when due shall constitute a material breach of this Agreement.
3. Appropriate use of the Domains. Licensee shall (a) comply with all applicable laws with respect to its use of the Domains; (b) use commercially reasonable efforts to protect the reputation of the Domains and shall not use the Domains in such a way as to tarnish the reputation of the Domains, Root Orange or its licensors; (c) assume all responsibilities and liabilities arising out of its use of the Domains; and (d) not challenge Root Orange or its licensors’ rights in or to the Domains.
4. UDRP Proceedings.
4.1 Each party agrees to provide written notice to the other party promptly after becoming aware of any dispute relating to any use of the Domains.
4.2 In the event that any dispute relating to the Domains or any similar domain is brought against Root Orange or Licensee pursuant to the Uniform Domain Name Dispute Resolution Policy (each, a “UDRP Proceeding”), Root Orange shall have sole control over such proceeding at its own expense. Licensee agrees to fully cooperate with Root Orange in connection with any such UDRP Proceedings.
5. Term and Termination.
5.1 This Agreement shall commence as of the Effective Date and shall continue for the maximum number of months specified for any Domain under Contract Length (the “Term”) above. Thereafter, this agreement shall automatically renew for successive periods equal to that of the original Term unless either party provides notice of non-renewal within thirty (30) days prior to the end of the then current term; provided, however, that Root Orange reserves the right to increase the License Fee with at least sixty (60) days notice prior to the beginning of any renewal term.
5.2 Either party may terminate this Agreement at any time without cause and at their discretion, and in such instance, Root Orange will receive payment at a prorated amount for any period for which services were rendered but payment had not yet been rendered at the time of the termination of this Agreement. Any notice of termination will only be valid if delivered per Section 9.3.
5.3 Upon any expiration or termination of this Agreement, all rights, licenses and obligations of the parties hereunder shall cease, except that (a) all obligations that accrued prior to the effective date of termination and remedies for breach of this Agreement shall survive, and (b) Sections 6 through 9 (inclusive), this Section 5.3 and any accrued rights to payment shall survive termination or expiration of this Agreement.
6. Indemnification. Licensee shall indemnify, defend and hold harmless Root Orange from and against any liabilities, obligations, losses, claims, damages, expenses (including attorney fees), and amounts finally awarded in a settlement or by a court, incurred by Root Orange resulting from (a) any breach by Licensee of Section 3, and (b) cybersquatting claims made against Root Orange related to Licensee’s use of the Domains.
7. No Warranties. THE DOMAIN NAMES ARE LICENSED “AS IS” WITHOUT WARRANTY OF ANY KIND. EXCEPT AS EXPRESSLY PROVIDED HEREIN, EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, QUIET ENJOYMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, ROOT ORANGE DOES NOT GUARANTEE THE DOMAINS OR LICENSEE’S USE OF THE TECHNOLOGY WILL MEET LICENSEE’S REQUIREMENTS, BE UNINTERRUPTED OR ERROR-FREE, NOR DOES ROOT ORANGE GUARANTEE ANY RESULTS FROM LICENSEE’S USE OF THE DOMAINS, INCLUDING WITHOUT LIMITATION, ANY GUARANTY THAT LICENSEE’S USE OF THE DOMAINS WILL GENERATE ANY VOLUME OF TRAFFIC TO LICENSEE’S WEBSITE.
8. Limitation of Liability. EXCEPT FOR LICENSEE’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY (WHETHER IN AN ACTION IN NEGLIGENCE, CONTRACT OR TORT OR BASED ON A WARRANTY OR ANY OTHER THEORY OF LIABILITY) (A) FOR ANY DAMAGES FOR LOSS OF USE, LOST PROFITS, BUSINESS LOSS OR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) FOR ANY AMOUNT IN EXCESS OF THE AMOUNTS PAYABLE BY LICENSEE TO ROOT ORANGE PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE APPLICABLE CLAIM OR ACTION.
9. General.
9.1 This Agreement constitutes the entire agreement between the parties with regard to, and supersedes all prior negotiations, understandings or agreements (oral or written) between the parties relating to, the subject matter of this Agreement (and all past dealing or industry custom). This Agreement may be executed in one or more counterparts, each of which is an original, but together constituting one and the same instrument. Execution of a facsimile copy shall have the same force and effect as execution of an original, and a facsimile or electronic signature shall be deemed an original and valid signature. The headings contained herein are for ease of reference only and shall be given no effect in interpretation of this Agreement. No changes, modifications or waivers may be made to this Agreement unless in writing and signed by both parties. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. Except as specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
9.2 This Agreement shall be governed by and construed in accordance with the laws of the State of Maryland, without regard to its conflicts of law provisions. The sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in Maryland having jurisdiction over Root Orange’s principal offices, and both parties consent to the jurisdiction of such courts with respect to any such action. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover the costs and expenses (including reasonable attorneys’ fees) that it incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
9.3 All notices under this Agreement will be in writing, in English, delivered to the address specified above, and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the business day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.
9.4 This Agreement and the rights and obligations hereunder may not be assigned or otherwise transferred by Licensee without Root Orange’s prior written consent. Any attempted transfer in violation hereof will be void and of no effect. Root Orange may assign this Agreement, or any of its rights and obligations hereunder without Licensee’s consent. This Agreement will be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the parties.
9.5 The parties shall be independent contractors in their performance under this Agreement, and nothing contained herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
9.6 EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.