Domain Parking Agreement
|
These terms and conditions (this "Agreement") are by and between NameMedia, Inc. d/b/a GoldKey ("GoldKey") a Delaware corporation, and you, your heirs, agents, successors and assigns ("You" and "Your(s)"), each side a "Party" and together, "the Parties," and are made effective as of the date of execution (the "Effective Date"). This Agreement sets forth the terms and conditions of Your parking of one or more domain names with GoldKey ("Parked Domain(s)") and explains GoldKey's obligations to You and Your obligations to GoldKey concerning the Parked Domains. BY PARKING DOMAIN NAMES WITH GoldKey, SUBMITTING REGISTRATION INFORMATION, CHECKING THE "I AGREE" CHECKBOX AT THE TIME OF REGISTRATION AND/OR EXECUTING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT (AS AMENDED FROM TIME TO TIME BY GoldKey IN THEIR SOLE AND ABSOLUTE DISCRETION). IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, DO NOT INDICATE YOUR ACCEPTANCE AND DO NOT USE THE GoldKey SERVICES. BY CONTINUING TO PARK DOMAIN NAMES WITH GoldKey FOLLOWING A CHANGE TO THIS AGREEMENT, YOU ARE ACCEPTING AND AGREEING TO THE CHANGE. WHEREAS, GoldKey provides a service through the website www.goldkey.com that displays a web page that GoldKey owns or controls to users who visit a Parked Domain; and WHEREAS, You have domain names that You want to park with GoldKey that do not infringe in any way upon the copyright, trademark or other intellectual property rights of any third party individual or entity; NOW, THEREFORE, in consideration of the mutual promises, benefits and covenants contained herein and for other good and valuable consideration herewith, the receipt, adequacy and sufficiency of which are hereby acknowledged, GoldKey and You, intending to be legally bound, hereby agree as follows: 1. Prohibited Domain Names. You will not enroll a domain name under this Agreement if You do not have the right to do so or if such enrollment would violate any laws or intellectual property rights of another, including without limitation trademark or service mark rights. GoldKey retains the right to unilaterally and without notice cancel the enrollment of any such domain name and, in GoldKey's sole discretion, seek legal recourse against You and any other parties for such enrollment. You will indemnify GoldKey against any claims or suits arising from a breach of this section. Examples of domain names that may prompt GoldKey to cancel enrollment include: (a) trademarks, company names, and names of specific natural persons (including misspellings), such as McDonalds.com, macdnalds.com, xcerox.com, micaljordan.com; (b) words which would evoke a question of legality, such as automatic weapons or military-style assault weapons, cracked or pirated software (especially words like appz, warez, cracks, crackz, hacks, hackz), falsely obtained passwords (especially words like passwordz), prostitution services and questionable substances or words alluding to ingestion of questionable substances; (c) defamatory, libelous or threatening language, such as racial or religious epithets or language related to doing physical harm to people or their property; (d) vulgar or obscene language, such as f-ckyu.com; (e) any language that might advocate or glorify torture, rape or any other illegal or harmful act; and (f) any language that is sexually explicit, including but not limited to language related to prostitution, child pornography, underage sex, bestiality, necrophilia, incest or pedophilia. 2. License. Under this Agreement, You hereby grant GoldKey a revocable license to display, at GoldKey's option, content on Your Parked Domains for the duration of this Agreement. Under this license, GoldKey may, in its sole discretion for any reason or for no reason at all, temporarily or permanently stop or modify the content displayed on any Parked Domain, and You agree that GoldKey and its directors, officers, employees, contractors, representatives, agents and affiliates are not liable for loss or damages resulting from such stoppage or modification. 3. Enrollment. Upon your consent to this Agreement, You agree to change the domain name servers for each of Your Parked Domain to the domain name servers and IP addresses specified by GoldKey and/or redirect each Parked Domain to the Internet URL specified by GoldKey. 4. Administrative Services. GoldKey will provide You with access to a web-based interface that You may use to manage Your Parked Domains, view reports of traffic to Your Parked Domains, view reports of Your payments from GoldKey, and create additional Parked Domains. 5. Payments. You will be paid monthly your percentage of GoldKey's recognized and received gross revenue generated from Your Parked Domains minus any expenses from Your Parked Domains fifteen (15) days after GoldKey has received payment from its advertisers for the preceding month. GoldKey typically allows its advertisers thirty (30) calendar days to pay an invoice, and in some cases advertisers may take more time to pay moneys due to GoldKey. If the amount due to You under this Agreement is less than one hundred United States dollars (US$100), GoldKey will defer payment to You either until this Agreement is terminated or until the amount due to You under this Agreement is at least US$100. It is Your sole responsibility to withhold any and all local, state, federal, and foreign taxes on payments that You receive pursuant to this Agreement, and You agree to indemnify GoldKey and any third-party beneficiary to this Agreement for any claim or assessment of taxes and any costs or damages relating thereto. GoldKey is entitled to offset any refunds You are obligated to provide under this Agreement against any payments that would otherwise be due to You. Fraudulent, questionable, or low-quality traffic will not be counted when determining Your payments due under this Agreement. This determination is and will be made by GoldKey in its sole discretion. 6. Prohibited Acts. You will not authorize or engage in, or engage or enable a third party, on Your behalf, to do any of the following: (1) queries or clicks on results generated by misleading or incentivized means, including: queries or clicks required in order to obtain some benefit or to perform another function, such as leaving a webpage or closing a window; (2) You, Your employees, contractors or agents clicking on results except in the course of normal individual use; (3) offering a user any pecuniary or other in kind inducement to search or click on results; (4) use of any Parked Domain for the delivery of unsolicited commercial e-mail messages or any other illegal or dubious purpose or activity; or (5) any kind of traffic manipulation, including but not limited to inflation, deflation, or other adjustment of the traffic or bidded clicks received by any of Your Parked Domains. Any search, impression, click or conversion generated in violation of this section shall not be counted for purposes of calculating any compensation owed to You, and may result in the termination of this Agreement, the forfeiture of payments due to You, or the cancellation of the enrollment of particular Parked Domains. 7. Sublicensing and Assignment. You have no right to transfer, sell, lease, syndicate, sublicense or assign of any of Your rights under this Agreement, including Your right to use the links or results provided by GoldKey on the Parked Domains and any attempt to do so shall be null and void. Except as otherwise expressly provided herein, the provisions of this Agreement shall inure to the benefit of and be binding upon, the successors and assigns of the Parties. GoldKey may assign its rights and duties under this Agreement to any party at any time without notice to You. You may not assign Your rights and duties under this Agreement to any party at any time without GoldKey's written prior consent. 8. Implementation. You agree that the appearance of links and results provided under this Agreement will be decided by GoldKey in its sole discretion, which shall be subject to change and modification by GoldKey at any time. 9. Audit Rights. You acknowledge that GoldKey and its advertisers may employ various measures, including technological measures, on a random, scheduled, or continuous basis to identify fraudulent traffic and verify any and all traffic and bidded click figures for Parked Domains, and that GoldKey and its advertisers will in their sole discretion determine what portion of Your traffic is genuine and utilize this determination to compute Your payments due under this Agreement. 10. Term. This Agreement will become effective upon Your acceptance of the terms and conditions set forth herein, as acknowledged by Your: (i) submission of registration information; and/or (ii) Your submission of Parked Domains to GoldKey. The Agreement shall continue in effect until otherwise terminated pursuant to the terms hereof (the "Term"). Notwithstanding the foregoing, You acknowledge that GoldKey may change the source of content displayed on Your Parked Domains at any time. 11. Termination. Either Party may terminate this Agreement at any time for any reason, effective immediately upon notice of such intent to terminate given by the terminating Party. 12. Settlement of Accounts. Upon expiration or termination of this Agreement, GoldKey will pay You the balance due to You as of the date of expiration or termination within thirty (30) days of expiration or termination. 13. Representations and Warranties. Each Party represents and warrants that: (1) they each have all requisite power and authority to legally execute, deliver and perform their obligations under this Agreement, including ownership and/or control of the Parked Domains referenced herein; (2) this Agreement has been duly and validly executed and delivered and constitutes a legal, valid and binding obligation, enforceable against each Party by the other Party in accordance with its terms; and (3) the execution, delivery, and performance of this Agreement by You and the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate any provision of law, rule, or regulation; any order, judgment, or decree; any provision of corporate by-laws or other documents; or any agreement or other instrument. You represent and warrant that each Parked Domain is duly registered; and either that You are the exclusive and official registrant for each Parked Domain or that You are expressly and exclusively authorized by the official registrant of each Parked Domain through a valid and enforceable written agreement to authorize GoldKey to provide the services contemplated under this Agreement as of the date and during the term such domain name remains a Parked Domain. You further represent and warrant that You will use the information and services provided by GoldKey in a manner that complies with any and all applicable laws. 14. Third Party Beneficiary. You acknowledge that GoldKey's advertisers and publishing affiliates, including Overture Services, Inc. are third party beneficiaries of this Agreement, and are entitled to enforce any or all of its provisions against You for any reason or no reason at all with or without notice, including terminating the display of links and results on any or all of Your Parked Domains. In that event, GoldKey may attempt to provide You with comparable services, but GoldKey reserves the right to terminate this Agreement with You without penalty to GoldKey. This Agreement does not provide and shall not be construed to provide third parties (i.e. non-parties to this Agreement) with any remedy, claim, or cause of action or privilege against GoldKey. 15. Intellectual Property. Subject to the terms of this Agreement, each Party continues to own its respective items of intellectual property, including its patents, trademarks, trade names, domain names, service marks, copyrights, trade secrets, proprietary processes and all other forms of intellectual property. Without limiting the generality of the foregoing, no commercial use rights or any licenses under any patent, patent application, copyright, trademark, know-how, trade secret, or any other intellectual proprietary rights are granted by GoldKey to You, or by any disclosure of any confidential information to You under this Agreement. You agree that You will not create or attempt to create a copy, derivative work, substitute service or substitute product using the services provided under this Agreement or any information related thereto. 16. Prohibition of Reverse Engineering. You shall not and shall not allow any third party to modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code in any way related to the services provided under this Agreement or any other technology, content, data, routines, algorithms, methods, ideas design, user interface techniques, software, materials, and documentation of GoldKey and its advertisers. 17. Confidentiality. You shall keep confidential all data, information and materials including, without limitation, computer software, data, information, databases, protocols, reference implementations, documentation, functional and interface specifications, customer information, pricing information, marketing information and other information related to the subject matter of this Agreement, whether written, transmitted, or oral, including but not limited to URLs, parameters, data reported, gross revenue figures, net revenue figures, amounts paid to You by GoldKey, the terms of this Agreement, and the look, feel and functionality of the service. You may not make any statements in any medium concerning the content displayed on Your Parked Domains, including statements concerning its source or origin. 18. Publicity. You shall not create, publish, distribute, or permit any communication that makes reference to GoldKey or any third-party beneficiary to this Agreement in connection with this Agreement, or uses any of GoldKey's trademarks or service marks without receiving prior written consent from a duly-authorized representative of GoldKey. You give GoldKey the right to disclose Your identity in GoldKey's marketing and promotion materials, both electronic and printed. 19. Limitation of Liability. IN NO EVENT WILL GoldKey OR ANY THIRD PARTY BENEFICIARY TO THIS AGREEMENT BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, ANCILLARY, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES RESULTING FROM LOSS OF PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF GoldKey OR SAID THIRD PARTY BENEFICIARIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. GoldKey FURTHER DISCLAIMS ANY AND ALL LOSS OR LIABILITY RESULTING FROM, BUT NOT LIMITED TO LOSS OR LIABILITY RESULTING FROM THE UNAUTHORIZED USE OR MISUSE OF AUTHENTICATION INFORMATION; FORCE MAJEURE; SERVICE DELAYS OR INTERRUPTIONS; NON-DELIVERY OR MISDELIVERY OF DATA; ERRORS, OMISSIONS, OR MISSTATEMENTS IN ANY AND ALL INFORMATION PROVIDED UNDER THIS AGREEMENT; AND INFRINGEMENT. ANY LIABILITY OF GoldKey TO YOU RELATING TO THE PERFORMANCE OR ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT IS LIMITED TO THE GROSS REVENUE RECEIVED AND RECOGNIZED BY GoldKey WITH RESPECT TO YOUR PARKED DOMAIN(S) IN THE ONE (1) MONTH PRECEDING YOUR CLAIM AGAINST GoldKey. YOU AGREE THAT YOU AND GoldKey HAVE RELIED ON THIS PROVISION IN ALLOCATING RISK AND THAT, IN ITS ABSENCE, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. THIS SECTION IS SEVERABLE AND SURVIVES ANY TERMINATION OR EXPIRATION OF THE AGREEMENT. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR DAMAGES OF ANY SORT RESULTING FROM TERMINATING THIS AGREEMENT IN ACCORDANCE WITH ITS PROVISIONS, UNLESS SPECIFIED OTHERWISE. 20. Disclaimer of Warranties. ALL PRODUCTS, SERVICES, INFORMATION, AND DATA PROVIDED TO YOU UNDER THIS AGREEMENT ARE PROVIDED "AS IS" AND "WHERE IS" AND WITHOUT ANY WARRANTY OF ANY KIND. GoldKey EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND THE QUALITY AND AVAILABILITY OF TECHNICAL SUPPORT. GoldKey ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY AFFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY IN CONNECTION WITH ACCESS TO OR USE OF SERVICES UNDER THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, GoldKey DOES NOT REPRESENT, WARRANT OR GUARANTEE THAT ANY INFORMATION OR DATA AVAILABLE ON OR THROUGH THE PARKED DOMAIN(S) WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR SIMILAR SOFTWARE; THAT ANY INFORMATION OR DATA AVAILABLE ON OR THROUGH THE PARKED DOMAINS WILL BE FREE OF ADULT-ORIENTED MATERIAL OR MATERIAL WHICH SOME INDIVIDUALS MAY DEEM OBJECTIONABLE; THAT THE FUNCTIONS OR SERVICES PROVIDED BY GoldKey WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DEFECTS THEREWITH WILL BE CORRECTED; THAT THE SERVICES PROVIDED BY GoldKey WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; THAT THE SERVICES PROVIDED BY GoldKey UNDER THIS AGREEMENT WILL OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA; OR THAT YOU WILL RECEIVE NOTIFICATIONS, REMINDERS OR ALERTS FOR ANY EVENTS FROM GoldKey. YOU ACKNOWLEDGE THAT GoldKey CANNOT AND DOES NOT CHECK TO SEE WHETHER ANY SERVICES OR YOUR USE OF THE SERVICES UNDER THIS AGREEMENT INFRINGES THE LEGAL RIGHTS OF OTHERS. 21. Indemnification. You at Your own expense will indemnify, defend and hold harmless GoldKey and any third-party beneficiaries to this Agreement and their employees, directors, officers, representatives, agents and affiliates against any claim, suit, action, or other proceeding brought against GoldKey or any third-party beneficiary to this Agreement by You or another based on or arising from any claim or alleged claim arising out of the operation of the Parked Domains; any claim or alleged claim arising from this Agreement; a third party claim that Your Parked Domain(s) infringe any copyright, trade secret or trademark of a third party; or Your use of the services provided under this Agreement in any manner inconsistent with or in breach of this Agreement. You will not enter into a settlement or compromise of any such claim without GoldKey's prior written consent, which shall not be unreasonably withheld. Your obligation under this section extends to any and all costs, damages, and expenses, including, but not limited to, actual attorneys' fees and costs awarded against or otherwise incurred by GoldKey in connection with or arising from any claim, suit, action or proceeding. 22. Waiver. No Party shall be deemed to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement through failure to act, delay in action, or otherwise, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such Party; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given. No waiver of any provision of this Agreement shall be deemed to constitute a waiver of any other provision (whether or not similar), nor shall such waiver constitute a waiver or continuing waiver unless otherwise expressly provided in writing duly executed and delivered. 23. Choice of Law; Forum. This Agreement shall be interpreted and enforced in accordance with the laws of the Commonwealth of Massachusetts, without regard to Massachusetts' laws on the choice of law. The Parties agree that any action relating to this Agreement is subject to the exclusive jurisdiction of the federal and state courts of the Commonwealth of Massachusetts, and further agree to proper venue in those courts. The prevailing Party in any such action shall be entitled to recover its reasonable attorneys' fees, costs and disbursements incurred in connection therewith. 24. Notice. Any notice or other communication required or permitted to be delivered to GoldKey under this Agreement shall be in writing and deemed properly delivered by certified mail, return receipt requested, to NameMedia, Inc., 230 Third Avenue, Waltham, Massachusetts 02451, attn: GoldKey. Any notice or other communication required or permitted to be delivered to You by GoldKey under this Agreement shall be deemed properly delivered by e-mail to the contact address that You have provided to GoldKey. 25. Entire Agreement; Merger; Severability. This Agreement, incorporating any other applicable GoldKey policies and any modifications that may be made hereto, constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes any prior agreements, representations, statements, negotiations, understandings, proposals or undertakings, oral or written, with respect to the subject matter expressly set forth herein. There are no representations, warranties, conditions or other agreements, express or implied, statutory or otherwise, between the Parties in connection with the subject matter of this Agreement, except as specifically set forth herein. If any provision of this Agreement shall be held to be illegal, invalid or unenforceable, each Party agrees that such provision shall be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. 26. Amendments. The Parties agree that, during the term of this Agreement, GoldKey may revise the terms and conditions of this Agreement, including but not limited to the services provided under this Agreement. If You disagree with any proposed revision to this Agreement, You may terminate this Agreement by providing GoldKey with written notice of Your intent to terminate within thirty (30) days of the date of notice of the revision. You agree that Your continued enrollment of the Parked Domain under this Agreement following any revision constitutes Your acceptance of the revision. 27. Arbitration. The Parties shall attempt to resolve any disputes concerning this Agreement through the services of a mutually-acceptable arbitrator prior to filing suit. Notwithstanding the foregoing, GoldKey retains its right to seek injunctive relief for breaches that would irreparably injure GoldKey. 28. Survival. The following provisions shall survive the termination of this Agreement or the cancelled enrollment of a Parked Domain hereunder: Sections 14-16, 18-27, 29, 30, and 32. 29. Breach. In addition to any other remedy at law or equity for a breach of any provision of this Agreement, GoldKey retains the right to terminate this Agreement with You in response to any breach without prior notification or warning, along with forfeiture of any moneys due You. 30. No Agency Created. You and GoldKey are independent contractors, and nothing in this Agreement creates or will create any partnership, joint venture, agency, franchise, and sales representative or employment relationship between the Parties. You have no authority to make or accept any offers or representations on behalf of GoldKey. |
GoldKey Domain Parking Features
|