Domain Parking and Ad Serving Agreement

This Agreement shall come into effect on the Effective Date. The Agreement shall remain in force and effect for twelve (12) months and shall thereafter be automatically be renewed for additional twelve-month terms until either Party terminates this Agreement as set forth below. Company may suspend or terminate your access to the Platform or Content (a) for any reason upon providing you with one (1) business day prior notice or (b) immediately in the event Company believes that you are in breach of this Agreement or of any applicable law or regulation.  You may terminate this Agreement at any time by providing Company with five (5) days’ prior written notice of intent to terminate.  Immediately upon termination of this Agreement, all of your rights granted under this Agreement will cease to exist, and You shall cease all use of or display of the Content and Documentation, and all access to the Platform. In the event that the you hold physical copies of the Code, Content, or Documentation, you shall return to Company or, at Company’s sole discretion, destroy  all copies thereof and certify in writing your compliance with this Section within seven (7) days of the termination.

YOU ARE SOLELY RESPONSIBLE FOR THE ADVERTISING METHODS YOU CHOOSE IN ORDER TO DRIVE CONSUMERS TO YOUR PARKED DOMAINS.  You agree that you will strictly comply with all applicable laws and regulations in your advertising of your Parked Domains and the terms of any third-party platforms utilized in advertising your Parked Domains.  You acknowledge and agree that you will not advertise your Parked Domains via any form of telemarketing, SMS or email marketing, as Company strictly prohibits the use of SMS, telemarketing, and email to advertise or link to the Parked Domains. Company may terminate your access to the Platform and Content at any time if it reasonably believes you are violating any applicable laws or regulations. Although Company may make Materials available to you for use in advertising your Parked Domains, the Materials are provided “As Is” and the Company makes no guarantees, representations or warranties regarding the Materials and expressly disclaims any representations or warranties regarding the Materials’ compliance with any applicable laws or regulations or fitness for your use. You are solely liable to ensure that the Materials and their use by you fulfills any legal requirements.

Company may assist you with acquiring domains for your portfolio and for use as Parked Domains under this Agreement.  Company services may include, but are not limited to, negotiating discounted rates for domain acquisition at various domain registrars and registration of domains on your behalf. The quantity of domains, domain acquisition cost and other pertinent terms may be detailed on a separate Order Form.  In the event Company registers or acquires domains on your behalf, you authorize Company to provide your name, address and other necessary information to the domain provider or registrar and to perform all necessary acts on your behalf, and in your name, in order to effectuate the registration of such domains on your behalf.  You understand and agree that you are solely responsible for the registration and maintenance costs and any legal liability arising out of any domains which Company registers for you, or otherwise assists you in acquiring, and it is your sole responsibility to ensure that the registration of the domains and your use of the domains does not violate any applicable law, regulation or right of a third-party.

Subject to the terms and conditions of this Agreement, Company grants you a limited, worldwide, revocable, non-exclusive, non-transferable license (without the right to grant sublicenses, unless approved by the Company in writing) during the term of this Agreement to: a) install and run the Code on your Parked Domains (Company may assist with the installation); b) use, reproduce, and display the Materials in order to advertise your Parked Domains; and c) access the Platform, as long as this Agreement is in effect. You acknowledge and agrees that Company owns all right, title and interest in and to the Platform and Content, including, without limitation, all Intellectual Property Rights relating thereto. Except as expressly permitted herein, you acknowledge and agree that you shall acquire no ownership or other rights to the Platform or Content as a result of the limited license to use the Platform or Content granted in this Agreement. You acknowledge that Company shall have all right, title and interest in and to any improvements or enhancements to the Platform or Content which Company develops, in whole or in part, as a result of your ideas, suggestions, feedback, comments or reports. You may copy, use and display the Materials only as set forth herein. Company reserves all rights not expressly granted to you in this Agreement. You warrant that it will take no action to limit or interfere in any way with Company’s ownership of or rights with respect to the Platform or Content. Company grants no rights or licenses to you, by implication, estoppel, or other than the limited license granted herein.

The Code and its structure, organization and source code constitute valuable trade secrets of Company. Accordingly, except as expressly provided herein, you shall not and shall not permit or assist any third party to: (a) copy, modify, adapt, alter, translate, port or create derivative works of or from the Code; (b) merge the Code with other content; (c) sublicense, distribute, sell, lease, rent, loan, or otherwise transfer the Code; (d) disclose to any third party any proprietary information or trade secrets relating to the Code; (e) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for or any other proprietary information or trade secrets from the Code; (f) remove, alter, or obscure any proprietary notices (including, without limitation, any copyright or trademark notices) from the Code or from the content which is displayed by the Code; (g) use the Code to develop or enhance any website that will display advertisements for any company that competes with Company or its Upstream Ad Providers; (h) use the Code on any website other than the Parked Domains; or (i) otherwise utilize the Content in any manner, except as expressly permitted hereunder.

The Materials constitute valuable trade secrets of Company. Accordingly, except as expressly provided herein, you shall not and shall not permit or assist any third party to: (a) sell, lease, rent, loan, or otherwise transfer the Materials; (b) adapt, alter, translate, or create derivative works from the Materials; (c) disclose to any third party any proprietary information or trade secrets relating to the Materials; (d) use the Materials to develop or enhance any product, service or website that competes with Company; (e) use the Materials to advertise for or attract visitors to any website other than the Parked Domains; (f) utilize the Materials in violation of any applicable law or regulation; or (g) otherwise utilize the Materials in any manner, except as expressly permitted hereunder.  You will utilize reasonable security measures to protect the Materials, will as soon as reasonably possible report to Company any unauthorized use of the Materials, and will take reasonable efforts to stop any unauthorized use of the Materials.

Company will use commercially reasonable efforts to remedy any failure of the Code, which causes the Code to be inoperable or to materially fail to perform as intended. Company will not be responsible for any corrective efforts in relation to any error resulting from your negligence or use of the Code not in accordance with the related Documentation, breach by you of this Agreement, modifications or damages to the Code by you or viruses affecting your webservers. Company may from time to time make available certain releases of the Code, including, for example, bug fixes, error corrections and Enhancements of and to the Code (collectively, “Code Updates”). You must implement such Code Updates on all of your Parked Domains within one (1) business day of release by Company or allow Company to implement such Code Updates. Unless agreed to the contrary by the Parties in writing, you shall solely be responsible for obtaining any hardware or software necessary for proper functioning of the Code on the Parked Domains, as well as any training, installation or integration necessary for the use of the Code. You will provide Company’s personnel with access to the webserver(s) of the Parked Domains to enable Company to assist in the installation of and monitoring the proper functioning of the Code on the Parked Domains.

Confidentiality. “Confidential Information” means any information disclosed by a Party to the other Party, directly or indirectly, which, (a) if in written, graphic, machine-readable or other tangible form, is marked as “confidential” or “proprietary”; (b) if disclosed orally or by demonstration, is identified at the time of initial disclosure as confidential and is confirmed in writing to the receiving Party to be “confidential” or “proprietary” within 30 days of such disclosure; or (c) reasonably appears to be confidential or proprietary because of the circumstances of disclosure and the nature of the information itself. The Content, Documentation and terms and existence of this Agreement are deemed to be Confidential Information of Company. During the term of this Agreement and for five (5) years thereafter, each Party shall treat as confidential all Confidential Information of the other Party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement, and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, each Party shall use at least the same degree of care, but not less than a reasonable degree of care, it uses to prevent the disclosure of its own confidential information to prevent the disclosure of Confidential Information of the other Party. Each Party shall promptly notify the other of any actual or suspected misuse or unauthorized disclosure of the other Party’s Confidential Information. Neither Party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other Party’s Confidential Information and which are provided to the Party hereunder. Regardless of anything to the contrary herein, each Party may disclose Confidential Information of the other Party on a need-to-know basis to its attorneys and accountants who are subject to confidentiality agreements requiring them to maintain such information in confidence and use it only to facilitate the performance of their services on behalf of the receiving Party. Confidential Information excludes information that: (a) is known publicly at the time of the disclosure or becomes known publicly after disclosure through no fault of the receiving Party; (b) is known to the receiving Party, without restriction, at the time of disclosure or becomes known to the receiving Party, without restriction, from a source other than the disclosing Party not bound by confidentiality obligations to the disclosing Party; or (c) is independently developed by the receiving Party without use of the Confidential Information as demonstrated by the written records of the receiving Party. The receiving Party may disclose Confidential Information of the other Party to the extent such disclosure is required by law or order of a court or other governmental authority, provided that the receiving Party shall use reasonable efforts to promptly notify the other Party prior to such disclosure to enable the disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure, and Company may disclose your Confidential Information in the event it receives a demand, complaint or inquiry regarding the Parked Domains or the use of the Materials by you. Company may disclose your Confidential Information to its Upstream Ad Providers and you expressly agrees to such disclosure.

Company represents and warrants that (a) the Code substantially conforms to the functional specification represented in the Documentation; (b) it has ownership of the Content and that the use of the Content by you in accordance with this Agreement shall not infringe upon the intangible property or other intellectual property rights of any third party; (c) the Content contains no viruses, malevolent code, or disabling code as delivered to you; and (d) all services performed under this Agreement shall be performed in a reasonable and workmanlike manner. This warranty shall expire at the end of one year from the execution of this Agreement.

EXCEPT AS SET FORTH ABOVE, THE CODE, CONTENT AND TEMPLATE POLICIES ARE PROVIDED TO YOU ON AN “AS IS” BASIS, AND COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE CODE, CONTENT, TEMPLATE POLICIES OR ANY OTHER SERVICES PROVIDED BY COMPANY HEREUNDER, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING THE CODE, CONTENT, AND TEMPLATE POLICIES. YOU ACKNOWLEDGE AND AGREE THAT THE ADS DISPLAYED ON THE PARKED DOMAINS ARE GENERATED AUTOMATICALLY AND COMPANY HAS NO RESPONSIBILITY FOR THE ADS.  COMPANIES MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE ADS OR THE ADS’ COMPLIANCE WITH ANY APPLICABLE LAW OR REGULATION. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING IF THE USE OF OR DISTRIBUTION OF THE CONTENT AND ADS BY YOU COMPLIES WITH APPLICABLE LAW AND REGULATIONS.  YOU ARE SOLELY RESPONSIBLE FOR THE OPERATION AND MAINTENANCE OF YOUR PARKED DOMAINS.  In particular, Company shall not be responsible for (i) any loss that may arise out of your use, display, failure to use, or misuse of the Content; (ii) any claim due to any action or inaction of the you; or (iii) any claim arising from or related to your Parked Domains or the Ads.

You represent and warrant that your use of the Platform, your use and display of the Code, your use, display or transmission of Materials, and all of your advertising activities conducted in conjunction with the Parked Domains will not violate any applicable law, regulation or right of a third party.  You further represents and warrants that you will not (i) demonstrate, transfer, assign, license or sell the Content to any third party (unless approved by the Company in writing); (ii) duplicate, translate, disassemble, decompile, reverse engineer, disassemble, or modify the Code or the Platform or create any derivative works, improvements or enhancements to the Content or the Platform; (iii) interfere with or disrupt the integrity or performance of the Platform; (iv) attempt to gain unauthorized access to the Code or the Platform or Company’s related systems or networks; (v) transmit, promote, store or use on Parked Domains any infringing, abusive, obscene, vulgar, threatening, harassing, defamatory, libelous, harmful, or otherwise unlawful or tortious material, including, without limitation, material that is harmful to children, violates third party privacy rights, or is racially, ethnically or politically objectionable; (vi) transmit, promote, store or use on the Parked Domains any software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (vii) use the Parked Domains to promote pornography, adult products, adult services, gambling or other objectionable content; (viii) promote the Parked Domains via SMS or any form of telemarketing; or (ix) use the Content in a manner that violates the terms of service or other rules of any website, Internet service provider, network or other entity or any applicable law or regulation.

The parties agree that neither party shall be liable for (a) any indirect, incidental, exemplary, special, consequential, or punitive damages; (b) loss or corruption of data; (c) loss of revenues, profits, goodwill or anticipated sales or savings; (d) procurement of substitute goods and/or services; or (e) interruption to business or wasted administrative time. These exclusions apply regardless of the theory of liability, or whether related to your use or inability to use the Content or Platform, or otherwise. These exclusions apply even if you have been advised of the possibility of such damages.

You hereby agree to indemnify, defend and hold harmless the Company Parties and their officers, directors, employees, agents, and representatives, from and against any loss, liability, damage or expense (including reasonable attorneys’ fees) arising out of or relating to (i) your Parked Domains; (ii) your use, distribution or misuse of the Content; (iii) your use of the Platform; (iv) your violation of any applicable law or regulation or right of a third party; and (v) any breach of this Agreement by you.

18.1.        Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without regard to choice of laws.

18.2.        ARBITRATION. WHETHER TO AGREE TO ARBITRATION IS AN IMPORTANT BUSINESS DECISION. YOU SHOULD NOT RELY SOLELY UPON THE INFORMATION PROVIDED IN THIS AGREEMENT AS IT IS NOT INTENDED TO CONTAIN A COMPLETE EXPLANATION OF THE CONSEQUENCES OF ARBITRATION. YOU SHOULD TAKE REASONABLE STEPS TO CONDUCT FURTHER RESEARCH AND TO CONSULT WITH OTHERS—INCLUDING BUT NOT LIMITED TO AN ATTORNEY—REGARDING THE CONSEQUENCES OF AGREEING TO ARBITRATE CLAIMS. This arbitration provision (“Arbitration Provision”) will require you to resolve any claim that you may have against Company on an individual basis pursuant to the terms of the Agreement. This provision will preclude you from bringing any class, collective, or representative action against the Company. It also precludes you from participating in or recovering relief under any current or future class, collective, or representative action brought against Company by someone else. Except as it otherwise provides, this Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. Such disputes include without limitation disputes arising out of or relating to interpretation or application of this Arbitration Provision, including the enforceability, revocability or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an Arbitrator and not by a court or judge.  Except as it otherwise provides, this Arbitration Provision also applies, without limitation, to disputes arising out of or related to this Agreement and disputes arising out of or related to your relationship with Company. This Arbitration Provision requires all such disputes to be resolved only by an arbitrator through final and binding arbitration on an individual basis only and not by way of court or jury trial, or by way of class, collective, or representative action.  As such, each Party hereby agrees that any dispute, other than related to infringement of Company’s intellectual property rights or breach of the obligation to maintain confidentiality, between the Parties arising out of this Agreement or in any manner relating to the provision or use of the Content or Platform must be submitted by the Parties to arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, before a single arbitrator, appointed in accordance with such rules. Costs of arbitration services shall be shared equally between the Parties however the arbitrator may award costs and fees to the prevailing Party. Judgment upon the award may be entered in any court having jurisdiction thereof. Any such arbitration will be held in Houston, Texas and in no other jurisdiction. Any action filed by either Party in any court in violation of this Section should be dismissed pursuant to this Section.

18.3.        Entire Agreement and Amendments. This Agreement and the attached Acceptable Use Policy constitute the entire agreement between Company and you. This Agreement supersedes any and all previous representations, understandings, or agreements between the parties as to the subject matter hereof. Company may amend this Agreement and the Acceptable Use Policy at any time and such amended agreement will be posted on the Platform for your review.

18.4.        Force Majeure. Neither Party shall be liable for delays or any failure to perform under this Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, explosion, pandemic, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed Party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed Party.

18.5.        Relationship of the Parties. The Parties are independent contractors and nothing in this Agreement constitutes a partnership, joint venture, employment or agency between you and Company. Neither Party shall be entitled to contract on behalf of the other or bind the other Party in any way.

18.6.         No Waiver. The failure of either Party at any time to require performance by the other Party of any provision of this Agreement shall in no way affect that Party’s right to enforce such provisions, nor shall the waiver by either Party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision.

18.7.        Severability. If any particular term of this Agreement is not enforceable, this shall not affect any other terms.

18.8.        Notices. Any notice given pursuant to this Agreement shall be in writing and shall be given by personal service or by United States certified mail, return receipt requested, postage prepaid to the addresses of the Parties provided in writing or given by email to the email address provided by you in the Platform. Notice given by personal service shall be deemed effective on the date it is delivered to the addressee, and notice mailed shall be deemed effective on the third day following its placement in the mail addressed to the addressee.

18.9.        Assignment. Neither Party shall assign its rights or obligations under this Agreement without prior written approval of the other Party. Company reserves the right to use third party services or sub-contract its undertakings in the provision of the services.

18.10.        Signature. This Agreement may be signed in counterparts, each of which together will be deemed the whole, and this Agreement may be signed electronically through Echosign, Docusign or similar program.