AGREEMENT AND RELEASE
This Agreement and Release (the “Agreement“) is entered into as of October ___, 2001 by and between CSX Corporation (“CSX“) and Xxxx Xxxxx, alias AGRL/Atom Smasher (“Smasher“).
WHEREAS, Smasher has a website located at CSX-Diversity.com, the present content of which is annexed hereto as Exhibit A [1-12] (the “Smasher Web Site Content“);
WHEREAS, Smasher has agreed to move the contents of his website, subject to the terms hereof, from CSX-Diversity.com to CSX-Sucks.com and transfer the CSX-Diversity.com domain name to CSX;
WHEREAS, CSX has agreed to release Smasher from its potential claims with regard to the use of the domain name CSX-Diversity.com and the Smasher Web Site Content;
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 it is the sole owner of the domain name CSX-Diversity.com (the “CSX-Diversity Domain Name“), and that it has not conveyed any security interest in, or otherwise encumbered, the CSX-Diversity domain name. Smasher further represents and warrants to CSX, that: (i) it has the authority to transfer the CSX-Diversity Domain Name and perform its obligations related to such transfer; (ii) the transfer of the CSX-Diversity Domain Name to CSX constitutes a valid, binding and enforceable obligation of Smasher; (iii) Smasher is under no disability, restriction or prohibition affecting its ability to transfer the CSX-Diversity Domain Name to CSX and to perform its 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 Domain Name; and (v) Smasher has not granted any license to or authorized any third party to use either the CSX-Diversity Domain Name or a confusingly similar domain name, trademark, service mark, or trade name for any goods or services.
- As of the date of this Agreement (the “Effective Date“), Smasher irrevocably assigns and transfers to CSX, all of its rights, title and interest in the CSX-Diversity Domain Name.
- Smasher does not hereby reserve any rights to use the CSX-Diversity Domain Name for any purpose whatsoever.
- At the time of the execution of this Agreement, the parties will also execute any other documentation necessary for the transfer, and recordation, of the CSX-Diversity Domain Name including, but not limited to, a Registrant Name Change Agreement for the CSX-Diversity Domain Name annexed hereto as Exhibit B. “Delivery“ means the transmittal of written documentation issued by Network Solutions, Inc. of the transfer, and recordation, of the CSX-Diversity Domain Name to, and in the name of, CSX. CSX shall take all steps necessary to transfer, record with Network Solutions, Inc., and complete Delivery of, the CSX-Diversity Domain Name. Smasher and CSX agree to execute at any time any documents reasonably required to transfer and to record the CSX-Diversity Domain Name.
- CSX will not submit the Registrant Name Change Agreement for the Domain Name to Network Solutions, Inc. until January 15, 2002 in order to give Smasher time to notify his customers of the new location of the web site at the domain name CSX-Sucks.com. Smasher agrees to maintain the registration of the CSX-Diversity Domain Name and pay any fees associated with such registration until the CSX-Diversity Domain Name has been transferred to CSX. In no event shall Smasher allow the CSX-Diversity Domain Name to lapse for any reason whatsoever prior to January 15, 2002. Smasher also agrees to provide CSX with copies of any and all correspondence received from Network Solutions, Inc. with respect to the CSX-Diversity Domain Name as soon as reasonably possible after Smasher's receipt thereof.
- As of the Effective 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 directly or indirectly use or register any domain name consisting of or including CSX, or any domain name confusingly similar to CSX, except CSX-Sucks.com. Smasher shall not seek or obtain trademark registration or protection of any kind worldwide for any tradename or mark consisting of or including CSX, or any trade name or mark confusingly similar to CSX. As of the Effective Date, Smasher shall discontinue his use of the phrase CSX-Diversity to describe or identify the Smasher Web Site Content.
- As of the Effective Date, the Smasher Web Site Content located at CSX-Diversity.com will be replaced with a disclaimer substantially in the form of Exhibit C annexed hereto.
- No Other Domain Names. Except for the CSX-Diversity 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, has not applied for any other domain name containing CSX.
- 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.
- The CSX Logo. The CSX Sucks logo in the Smasher Web Site Content shall be altered in design and appearance to be substantially similar to the logo annexed hereto as Exhibit D.
- Photograghs. The photographs of the “chain gang“ (Exhibit A:) and the “Klu Klux Klan“ (Exhibit A: (the “Photographs“) shall be eliminated from the Smasher Web Site Content as of the Effective Date. Smasher shall not use such photographs or similar images on the csx-sucks.com website, nor in any other way with direct or indirect reference to CSX.
- Content Transfer. As of the Effective Date, the Smasher Web Site Content will be removed from CSX-Diversity.com and, except for the Photographs, will be transferred to CSX-Sucks.com.
- E-Mail Account. As of the Effective 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 Domain Name and Smasher Web Site Content. Within ten days of the Effective Date, CSX shall send a letter to these companies and individuals substantially in the form of Exhibit E.
- Payment of Fees. CSX will pay to Smasher $[ ], the costs associated with the acquisition and transfer of the CSX-Diversity Domain Name, upon Delivery of the CSX-Diversity Domain to CSX. If Smasher, in any way, breaches any provision of this Agreement, payment shall be withheld until such breach has been remedied. Do we want to do this?
- CSX releases and discharges Smasher 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 Smasher's use of the domain name CSX-Diversity.com and the present contents of the Smasher Web Site as identified in Exhibit A: 1-12.
- Smasher releases and discharges CSX 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 the content of this Agreement and any predecessor actions CSX undertook regarding the CSX-Diversity 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.
- 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, Southern District of New York, 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 in all respects be interpreted, enforced, and governed under the laws of the State of New York. 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, Southern District of New York.
- 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:
Fax: [ ]
with a copy to:
Xxxxxxx X. Xxxxxxxxxxxx
Xxxxxxxxx Xxxxxxxx LLP
50 Xxxxxxx Street
San Francisco, CA 94XXX
to Smasher at:
Fax: [ ]
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.
Xxxx Xxxxx, alias AGRL/ATOM SMASHER