Smasher is used in this text as a substitute for references to the party of Atom Smasher.
AGREEMENT AND RELEASE
This Agreement and Release (the “Agreement“) is entered into as of March __, 2002 by and between CSX Corporation (“CSX“) and Xxxx Xxxx, aka Atom Smasher and Xxxx Xxxxx (“Smasher“).
WHEREAS, CSX Corporation has sued Smasher in an action entitled CSX Corporation v. Xxxx Xxxxx, a.k.a. Atom Smasher, a.k.a. Xxxx Xxxx, Civil Action No. 01-CV-5206 (WGB) in the United States District Court for the District of New Jersey (the “Action“);
WHEREAS, Smasher had a Web site located at CSX-Diversity.com which he has transferred to CSX-Sucks.com, the present content of which is annexed hereto as Exhibit A [1-30] (the “Smasher Web Site Content“);
WHEREAS, Smasher has agreed to keep the contents of his Web site, subject to the terms hereof, on CSX-Sucks.com and transfer CSX-Diversity.com (the “CSX-Diversity.com domain name“) and CSX-hates-jews.com (the “CSX-hates-jews.com domain name“) to CSX;
WHEREAS, CSX has agreed to release Smasher from its potential claims with regard to the use of the CSX-Diversity.com domain name, the CSX-hates-jews.com domain name, the CSX-Sucks.com domain name and the Smasher Web Site Content and subject to the conditions herein dismiss the Action;
NOW, THEREFORE, in consideration of the mutual promises and other good and valuable consideration:
- Execution. The parties shall each fully execute and exchange duplicate copies of the Agreement promptly after reaching accord on its terms.
- Domain Name Transfer.
- Smasher represents and warrants that he is the sole owner of the domain names CSX-Diversity.com domain name and CSX-hates-jews.com domain name, and that he has not conveyed any security interest in, or otherwise encumbered, these domain names. Smasher further represents and warrants to CSX, that: (i) he has the authority to transfer the CSX-Diversity.com domain name and the CSX-hates-jews.com domain name and perform his obligations related to such transfer; (ii) the transfer of the CSX-Diversity.com domain name and the CSX-hates-jews.com domain name to CSX constitutes a valid, binding and enforceable obligation of Smasher; (iii) Smasher is under no disability, restriction or prohibition affecting his ability to transfer the CSX-Diversity.com domain name and the CSX-hates-jews.com domain name to CSX and to perform his obligations related to such transfer; (iv) there are no existing or threatened claims or proceedings by any third party relating to Smasher's use, registration, or ownership of the CSX-Diversity.com domain name or the CSX-hates-jews.com domain name; and (v) Smasher has not granted any license to or authorized any third party to use either the CSX-Diversity.com domain name, the CSX-hates-jews.com domain name or a confusingly similar domain name, trademark, service mark, or trade name for any goods or services.
- As of the date of the execution of this Agreement (the “Effective Date“), Smasher will irrevocably assign and transfer to CSX, all of his rights, title and interest in the CSX-Diversity.com domain name and the CSX-hates-jews.com domain name.
- As of March __, 2002 (the “Transfer Date“) Smasher agrees not to use the CSX-Diversity.com domain name or the CSX-hates-jews.com domain name for any purpose whatsoever, except that these domain names may be used by Smasher next to the hit counter on the CSX-Sucks.com Web site, to state: “This includes hits to this site's previous location, www.CSX-Diversity.com.“
- On or before the Transfer Date, the parties also will execute any other documentation necessary for the transfer and recordation of the CSX-Diversity.com domain name and the CSX-hates-jews.com domain name, including, but not limited to, an online Domain Registrant Transfer form (located on the <www.Dotster.com> Web site) for the CSX-Diversity.com domain name and the CSX-hates-jews.com domain name. Annexed hereto as Exhibit B is a screen shot of the online Domain Transfer form required by the registrar Dotster.com, and located at: <www.Dotster.com/transfer/step_01/default.asp?>. Smasher and CSX agree to execute this form and any other documents reasonably required to transfer and to record the CSX-Diversity.com domain name and the CSX-hates-jews.com domain name.
- Smasher agrees to maintain the registration of the CSX-Diversity.com domain name and the CSX-hates-jews.com domain name and advance any fees associated with such registration until the Transfer Date. In no event shall Smasher unreasonably allow the CSX-Diversity.com domain name, the CSX-hates-Jews.com domain name or any other CSX-related domain name to lapse prior to the Transfer Date.
- As of the Transfer Date, Smasher agrees not to take or cause any action that would impair or interfere with CSX's ownership, registration or maintenance of the CSX-Diversity.com Domain Name. Smasher shall not seek or obtain trademark registration or protection of any kind worldwide for any tradename, mark consisting of or including CSX or any trade name or mark confusingly similar to CSX. As of the Transfer Date, Smasher shall discontinue his use of the phrase CSX-Diversity to describe or identify the Smasher Web Site Content, except as described in ¶2(c) (hit counter). As of the Effective Date, CSX agrees not to take or cause any action that would impair or interfere with Smasher's ownership, registration or maintenance of the CSX-Sucks.com or the publication of the Smasher Web Site Content on CSX-Sucks.com.
- As of the Effective Date, the current disclaimer located at CSX-Diversity.com will be replaced with a disclaimer in the form of Exhibit C, annexed hereto
- No Other Domain Names. Except for the CSX-Diversity.com domain name, the CSX-hates-jews.com domain name and the CSX-Sucks.com domain name, Smasher represents and warrants that he, or any person affiliated with him or acting on his behalf, does not own, and has not and will not apply for any other domain name referring to CSX Corporation or CSX provided, however, that Smasher may use a domain name that incorporates the letters C, S and X, so long as the letters are not intended and do not refer in any way to CSX Corporation or its affiliates.
- Meta-tags. Smasher shall not use any of CSX's trade marks, trade names and services marks as meta-tags to identify the CSX-Sucks.com Web site except the following CSX trademarks, which may be used to index content on the CSX-Sucks.com site: csx, csxt, CSX Technology, CSX Transportation, CSX Corporation.
- The CSX Logo. Smasher will display a “CSX Sucks“ logo on the CSX-sucks.com Web site that does not infringe on CSX's trademark, such as a logo annexed hereto in Exhibit D.
- Content Transfer. The parties acknowledge that Web Site Content previously on CSX-Diversity.com has been transferred to CSX-Sucks.com.
- E-Mail Account. As of the Transfer Date, Smasher shall terminate all use of any e-mail account located at firstname.lastname@example.org.
- CSX Letter. As of the Effective Date, CSX shall give Smasher a list of the companies and individuals that received letters regarding the CSX-Diversity.com domain name and Smasher Web Site Content. Within ten days of the Transfer Date, CSX shall send a letter to these companies and individuals substantially in the form of Exhibit E.
- Payment of Fees. As of the Transfer Date, CSX will pay to Smasher $200.00, the costs reasonably associated with the acquisition and transfer of the CSX-Diversity.com domain name and the CSX-hates-jews.com domain name, on or before the Transfer Date. If Smasher, in any way, breaches any provision of this Agreement, payment shall be withheld until such breach has been remedied. In the event that CSX fails to pay any fees owed to Smasher under this paragraph within 30 days of the Transfer Date, Paragraph 13 of this Agreement will be void.
- CSX, on behalf of itself and its predecessors, successors, assigns, agents, subsidiaries, affiliated companies, stockholders, officers, employees, directors and representatives, releases and discharges Smasher and his predecessors, successors, assigns, agents, affiliates and representatives from all actions, causes of action, suits, debts, claims, costs (including, but not limited to, attorneys' fees) and demands whatsoever, which CSX ever had, now has or hereafter can, shall or may, have, for, upon, or by reason or any matter, cause or thing whatsoever relating to CSX Corporation v. Xxxx Xxxxx, a.k.a. Atom Smasher, a.k.a. Xxxx Xxxx, Civil Action No. 01-CV-5206 (WGB), and Smasher's use of the domain name CSX-Diversity.com, CSX-sucks.com, CSX-hates-jews.comand the present contents of the Smasher Web Site as identified in Exhibit A: 1-30.
- Smasher, on behalf of himself and his predecessors, successors, assigns, agents, affiliates and representatives, releases and discharges CSX, and its predecessors, successors, assigns, agents, subsidiaries, affiliated companies, stockholders, officers, employees, directors and representatives, from all actions, causes of action, suits, debts, claims, costs (including, but not limited to, attorneys' fees) and demands whatsoever, which Smasher ever had, now has or hereafter can, shall or may, have, for, upon, or by reason or any matter, cause or thing whatsoever relating to CSX Corporation v. Xxxx Xxxxx, a.k.a. Atom Smasher, a.k.a. Xxxx Xxxx
, Civil Action No. 01-CV-5206 (WGB), the content of this Agreement and any predecessor actions CSX undertook regarding the CSX-Diversity.com domain name, the CSX-sucks.com domain name, the CSX-hates-jews.com domain name and Smasher Web Site Content.
- These mutual releases shall be of no effect whatsoever in the event that either Smasher or CSX have misrepresented or breach the terms of this Agreement.
- Dismissal of the Action. The parties shall execute a stipulation of dismissal of the Action in the form annexed hereto as Exhibit F. Counsel for CSX shall hold the Stipulation of Dismissal in escrow until the Transfer Date, at which time CSX will have ten (10) days to file the Stipulation of Dismissal in Court.
- Breach. If any term of this Agreement is breached by any of the parties, or any representation made in this Agreement is or is found to be inaccurate, each party expressly acknowledges that such a breach or misrepresentation will cause irreparable harm to the other. As such, each party consents to entry of an injunction by the United States District Court, District of New Jersey, enjoining it from further breach or misrepresentation of this Agreement.
- Press Releases. None of the parties hereto shall directly or indirectly inform, or issue any oral or written statement to the press or on a Web site concerning the conduct of the parties with respect to the matters mentioned in this Agreement, this Agreement or any terms of this Agreement without the prior written approval of all of the parties hereto.
- Successors. This Agreement shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors and assigns of each of the parties.
- Choice of Law, Forum and Venue. This Agreement shall in all respects be interpreted, enforced, and governed under the laws of the State of New Jersey. The language in all parts of this Agreement shall in all circumstances be construed as a whole according to its meaning and not strictly for or against any party. Smasher, an individual currently residing in New Jersey, hereby agrees, solely for the purpose of resolving any action arising out of this Agreement, that he will submit to the personal jurisdiction before the United States District Court, District of New Jersey.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable, all other provisions shall be valid, enforceable and continue in full force and effect.
- Entire Agreement. This Agreement contains the entire agreement between the parties hereto, and completely supersedes any prior written or oral agreements or representations concerning the subject matter hereof. Any oral representation or modification concerning this Agreement shall be of no force or effect. Each party acknowledges and agrees that it has read this entire Agreement, that it sets forth the entire agreement, that this Agreement is the product of negotiation and that neither party is to be considered the draftsman or scrivener of this Agreement.
- Headings. The headings contained here are for purposes of convenience only and shall not be deemed to affect the meaning or interpretation of any of the provisions of this Agreement in any way.
- Counterparts. This Agreement may be executed in several counterparts, all of which taken together shall constitute one instrument enforceable and binding upon the parties.
- Modification; Waiver. This Agreement may be modified only by an instrument in writing signed by the parties to this Agreement. No waiver of the enforcement of any provision of this Agreement shall be deemed a continuing waiver.
- Notice. Any notices or communications made pursuant to or associated with this Agreement shall be sent via facsimile or overnight courier:
to CSX at:
CSX Transportation, Inc.
500 Water Street, X-XXX
Jacksonville, FL 32202
Fax: (XXX) 359-XXXX
with a copy to:
Xxxxxxx X. Xxxxxxxxxxx
Xxxxxxxx Xxxxxxxx LLP
50 Xxxxxxx Street
San Francisco, CA 94XXX
to Smasher at:
with a copy to:
Xxxx X. Xxxxxx
Xxxxxxx Xxxx LLP
180 Xxxxxxxx Street, Xrd Floor
San Francisco, CA 94XXX
IN WITNESS WHEREOF, the parties to this Agreement have caused this Agreement to be duly signed.
Re: Previous Dispute Between CSX Corporation And Xxxx Xxxx Now Amicably Resolved
Dear [Prior Letter Recipient]:
Please be informed that the dispute between CSX and Mr. Xxxx Xxxx (regarding Mr. Xxxx's operation of a Web site at CSX-Diversity.com) has now been amicably resolved. Please disregard our letter of [date of prior letter]. We apologize for any undue concern this may have caused.
[Signatory of Prior Letter]