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5A.11 Settlement Agreement Providing for Transfer of Domain NameThis Settlement Agreement ("Agreement") is made the _____ day of ________________, __02 ("Effective Date") by and between, on the one hand, XYZ, having a place of business at _________________________, __________________________, _____________________________________, and, on the other hand, Registrant, residing at ___________________ (collectively, the "Parties"). R E C I T A L S WHEREAS, ZYZ is the owner of the famous trademark MARK, which is the subject of numerous United States and foreign trademark registrations; WHEREAS, on or about _______________, Registrant acquired ownership of the domain name THISMARK.COM; WHEREAS, XYZ asserts that Registrant's registration and use of the Domain Name infringes upon XYZ's rights in its MARK trademark and trade name, and constitutes, inter alia, cybersquatting in violation of the Anticybersquatting Consumer Protection Act, Section 43(d) of the Lanham Act (15 U.S.C. ¤1125(d)); dilution in violation of Section 43(c) of the Lanham Act (15 U.S.C. ¤1125(c)); false designation of origin in violation of Section 43(a) of the Lanham Act (15 U.S.C. ¤1125(a)); trademark infringement in violation of Section 32 of the Lanham Act (15 U.S.C. ¤1114); and violates the Uniform Domain Name Dispute Resolution Policy ("UDRP") promulgated by the Internet Corporation for Assigned Names and Numbers ("ICANN"); WHEREAS, Registrant denies any and all wrongdoing arising from the acts complained of; WHEREAS, the Parties to this Agreement wish to resolve and settle amicably any and all issues between them concerning the Domain Name; and WHEREAS, XYZ wishes to obtain a transfer from Registrant of the Domain Name, and Registrant wishes to make such a transfer upon the terms contained herein. NOW THEREFORE, the Parties, in consideration of the mutual covenants and agreements to be performed as hereinafter set forth, the receipt and sufficiency of which consideration are hereby acknowledged, hereby agree as follows: Assignment of Domain Name. Registrant hereby irrevocably transfers, conveys and assigns to XYZ the domain name THISMARK.COM, all of his right, title and interest therein, and all goodwill associated therewith. Execution. Registrant shall execute this Agreement and all exhibits hereto and cause them to be delivered by commercial overnight delivery service to _______________________ ("_______") within five days following execution. Transfer. Registration shall sign and date in front of a notary public the Letter of Authorization and Transfer of Registrant Agreement contained in the Transfer Forms attached hereto as Exhibit A;Registrant irrevocably consents and authorizes XYZ to submit to the Registrar the completed Transfer of Registrant Form for THISMARK.COM attached hereto as Exhibit A; Registrant shall take all steps necessary to effectuate the transfer and promptly comply with all transfer requirements of the Registrar; Registrant hereby irrevocably consents and authorizes the current registrar of the Domain Name, , and any other registrar with which the Domain Name is now or in the future may be registered (collectively, the "Registrar"), to transfer the Domain Name to XYZ. Further Assurances. Registrant shall execute any and all additional instruments, writings and other documents and take any additional steps as may be necessary or proper in order to effect the transfer of the Domain Name, and otherwise cooperate with XYZ, the Registrar, and/or the respective Registries and Registrars to cause the transfer of the Domain Names to XYZ. Acknowledgments. Registrant acknowledges that MARK is a valid trademark owned by XYZ. No Further Use of Domain Names or XYZ's Trademarks. As of the Effective Date, XYZ shall, as the sole owner of the Domain Name, have the exclusive right to use or otherwise transfer the Domain Name, and Registrant shall immediately cease using the Domain Name for any purpose. Registrant agrees that he, and any entities he controls or is associated with, shall not in the future register, use, apply to register or assist any third party to register, use or apply to register a domain name, trademark or designation that comprises or includes, whether alone or in combination with each other or with other words, the following, or any variation thereof: (a) the Domain Name; (b) the term MARK; and/or (c) any other trademarks owned by XYZ. No Transfer of Change of Registrar. Unless expressly requested in writing by XYZ, Registrant shall not (i) transfer the Domain Name to any party other than XYZ; or (2) change the registrar of the Domain Name from the current registrar to any other registrar. Payment. XYZ shall pay Registrant the sum of ( ) after the "WHOIS" database maintained by Network Solutions, Inc. and the "WHOIS" database maintained by the Registrar, and, where applicable, the account records of the Registrar, reflect XYZ's respective ownership of the Domain Name. Confidentiality. Registrant shall not disclose this Agreement, the existence of this Agreement, or the terms of this Agreement without the express written consent of XYZ. Representations and Warranties. Registrant and XYZ specifically represent and warrant that:¥ No statements or representations made by or on behalf of any of the parties to this Agreement, except as specifically recited in this Agreement, have influenced, induced or caused the parties to make this settlement and to execute this Agreement; ¥ Each party hereto has read this Agreement in its entirety and understands its terms and consequences, as well as the releases it contains; ¥ Each of the undersigned has the authority to enter into this Agreement and bind the party on whose behalf he or she has signed this Agreement. Registrant represents and warrants that:¥ Registrant owns the Domain Name; ¥ Domain Name is the subject of domain name registrations that are currently in force, valid and transferable; ¥ Domain Name is registered with the current registrar; ¥ Registrant has the right to transfer the Domain Names, free and clear of any liens, security interests, or other encumbrances; ¥ Registrant has not transferred any rights to the Domain Names to any party other than XYZ; ¥ Registrant has not changed the registrar of the Domain Names from the current registrar to another registrar; ¥ Registrant's account with the Registrar is up to date and paid in full; and ¥ Registrant had a full and fair opportunity to be represented by and consult with counsel of his own choosing in connection with the negotiation, drafting, and execution of this Agreement, and that Registrant nevertheless has elected not to be represented by counsel in connection herewith. Indemnification. Registrant shall indemnify and hold harmless XYZ, its officers, directors, employees, agents, affiliates, successors and assigns for any and all costs, expenses or liabilities, including reasonable attorney's fees, arising out of Registrant's acts or omissions in performing or failing to perform his obligation under this Agreement, including breach of any provision, representation or warranty set forth in this Agreement. Breach of Covenants. In the event suit is instituted to enforce any provision of this Agreement, the prevailing party shall be entitled to costs thereof including court costs and reasonable attorneys' fees. The foregoing shall not limit any other remedies available under this Agreement or at law or equity. Entire Agreement. This Agreement contains the entire agreement between the Parties with respect to the subject matter hereof; there do not exist any other written or oral terms or agreements except for those contained in this Agreement; only representations contained in this Agreement and no others shall be admissible to establish the execution or inducement of this Agreement. Interpretation of Provisions. No provision of this Agreement shall be interpreted against any of the Parties because that party or its attorney drafted the provision; and Headings. Headings herein are for reference purposes only and do not form a part hereof. Severability. In case any one or more of the provisions contained in this Agreement are held to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability will not affect any other provision(s) of this Agreement. Successors. This Agreement shall inure to the benefit of and bind (i) any and all heirs, successors in interest, assigns, officers, directors and employees of the Parties, and (ii) any persons or entities that acquire all or substantially all of the assets or a portion of the assets of XYZ. Good Faith. The Parties agree to work to effectuate all the terms of this Agreement in good faith. Choice of Law. This Agreement shall be governed by, construed, and entered in accordance with the laws of the State of New York applicable to contracts deemed to be made within such state, without regard to choice of law or conflict of law provisions thereof. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered to the other party shall be deemed an original. The executed page(s) from each original may be joined together and attached to one such original and shall thereupon constitute one and the same instrument. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date. REGISTRANT By: ____________________________________ Date: __________________________________ XYZ By: ____________________________________ Name: __________________________________ Title: _________________________________ Date: __________________________________ EXHIBIT A [Insert Transfer Form For MARK.COM]