Exhibit 10.1
DOMAIN NAME AND TRADEMARK PURCHASE AGREEMENT
This Domain Name and Trademark
Purchase Agreement (“Agreement”) is made effective as
November 7, 2007 (“Effective Date”) by and between
Innuity, Inc., a Utah Corporation, located at 8644 154 th Avenue NE,
Redmond, Washington 98052 (“Innuity”), its subsidiary
Vista.com, Inc., a Washington corporation, located at 8644 154
th
Avenue NE, Redmond, Washington 98052 (“Subsidiary”) and
VistaPrint Technologies Limited, a Bermuda company located at
Canon’s Court, 22 Victoria Street, Hamilton HM12 Bermuda
(“VistaPrint”).
RECITALS
WHEREAS, Innuity is the legal owner
of the World Wide Web domain name “vista.com” (the
“Domain Name”) and Subsidiary is the legal owner of
trademark rights in the trademark “VISTA” (the
“Trademark”), including U.S. Trademark registration
No. 2,459,636 (the “Registration”);and
WHEREAS, Innuity and Subsidiary
desire to sell the Domain Name and all rights worldwide in and to
the Trademark including, but not limited to, the Registration, to
VistaPrint and VistaPrint desires to purchase the Domain Name, the
Registration, and all other rights of Innuity and Subsidiary
worldwide in and to the Trademark, all upon the terms and
conditions in this Agreement.
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
AGREEMENT
SECTION ONE – SALE OF DOMAIN NAME AND TRADEMARK
1.01a. Purchase and Sale of Domain
Name . Innuity hereby agrees to sell, convey, transfer and
assign to VistaPrint and VistaPrint hereby agrees to purchase from
Innuity, upon the terms and conditions of this Agreement, and
effective as of the Effective Date, all of Innuity’s right,
title and interest in the Domain Name and all other rights or
claims of every type and nature and wherever situated, real,
personal, tangible, intangible or contingent.
1.01b. Purchase and Sale of
Trademark . Subsidiary hereby agrees to sell, convey, transfer
and assign to VistaPrint and VistaPrint hereby agrees to purchase
from Subsidiary, upon the terms and conditions of this Agreement,
and effective as of the Effective Date, all of Subsidiary’s
right, title and interest in the Trademark, including, but not
limited to, all goodwill associated therewith, the Registration and
all other rights or claims of every type and nature and wherever
situated, real, personal, tangible, intangible or contingent.
1.02. Purchase Price . As
consideration for the sale herein, VistaPrint shall pay to Innuity
the amount of One Million Two Hundred Fifty Thousand dollars and no
cents ($1,250,000.00) The consideration shall be paid by wire
transfer to the account of Innuity upon the completion of the
transfer of ownership of the domain name to VistaPrint and the
receipt by VistaPrint of the attached Assignment of Trademark
executed by Subsidiary and notarized.
1.03. Cooperation . Innuity
and VistaPrint agree to cooperate as set forth in Schedule A in
order to allow for a transition in the use of the Domain
Name.
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1.04 Surviving Affiliate Agreement.
At the close of business on the Effective Date, Innuity will cease
using the current affiliate link and modify its systems such that
the Domain Name redirects to the URL that VistaPrint will specify
to Innuity. Other affiliate marketing activities by Innuity may
continue to be used to drive qualified traffic to other affiliate
links previously provided by VistaPrint to Innuity.
1.05 Temporary License of Domain Name
to Innuity. The parties agree that VistaPrint will grant to Innuity
a license to continue to use the Domain Name for a period of time
after the Effective Date of this Agreement solely for the limited
transitional purposes set forth in Schedule A. The parties agree
that VistaPrint can, in its sole discretion and prior to the
expiration of the transition period, request Innuity in writing to
continue to host web sites using the Domain Name for a further
period of time as shall be mutually agreed between the parties. If
VistaPrint has not requested Innuity to continue to host web sites
during the transition period, the parties agree that Innuity shall
have no further obligation or authority to host web sites using the
Domain Name and VistaPrint shall have no further obligation to
allow Innuity or its customers to make any further use of the
Domain Name or any sub-domains and Innuity will cease using or
supporting the Domain Name and all sub-domain URLs.
SECTION TWO — OBLIGATIONS.
2.01. Confidential Information
. The parties acknowledge that in their performance of their duties
hereunder either party may communicate to the other (or its
designees) certain confidential and proprietary information,
including without limitation the know-how, technology, techniques,
or business or marketing plans related thereto (collectively, the
“Confidential Information”) all of which are
confidential and proprietary to, and trade secrets of, the
disclosing party. Confidential Information does not include
information that: (i) is public knowledge at the time of
disclosure by the disclosing party; (ii) becomes public
knowledge or known to the receiving party after disclosure by the
disclosing party other than by breach of the receiving
party’s obligations under this section or by breach of a
third party’s confidentiality obligations; (iii) was
known by the receiving party prior to disclosure by the disclosing
party other than by breach of a third party’s confidentiality
obligations; or (iv) is independently developed by the
receiving party. As a condition to the receipt of the Confidential
Information from the disclosing party, the receiving party shall:
(i) not disclose in any manner, directly or indirectly, to any
third party any portion of the disclosing party’s
Confidential Information; (ii) not use the disclosing party’s
Confidential Information in any fashion except to perform its
duties hereunder or with the disclosing party’s express prior
written consent; (iii) disclose the disclosing party’s
Confidential Information, in whole or in part, only to employees
and agents who need to have access thereto for the receiving
party’s internal business purposes; (iv) take all
necessary steps to ensure that its employees and agents are
informed of and comply with the confidentiality restrictions
contained in this Agreement; and (v) take all necessary
precautions to protect the confidentiality of the Confidential
Information received hereunder and exercise at least the same
degree of care in safeguarding the Confidential Information as it
would with its own confidential information, and in no event shall
apply less than a reasonable standard of care to prevent
disclosure. The receiving party shall promptly notify the
disclosing party of any unauthorized disclosure or use of the
Confidential Information. The receiving party shall cooperate and
assist the disclosing party in preventing or remedying any such
unauthorized use or disclosure.
2.02 Domain Name Warranties .
Innuity and Subsidiary, as applicable, represent and warrant that
(a) it is the legal owner of the Domain Name, (b) it
possesses the legal right and authority to enter into this
Agreement and to transfer the ownership and control of the Domain
Name to VistaPrint, (c) it has not been threatened with, and
is not currently a party to, any legal or administrative action
challenging Innuity’s ownership or control over the Domain
Name, (d) the Domain Name is not the subject of a domain name
dispute proceeding under the ICANN Uniform Domain Name Dispute
Resolution Policy or
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