legal help on domain lease

[gemsergio]

I am currently leasing a d omain name lets say something like 4rent.com the situation is that I am redirecting the traffic through an affilliate link to lets say rent.com now the owner of the site says that I am in breach of contract this is what he wrote me:
Something is not right here. I typed www.________.com into my browser, and I see that you have re-directed the domain name to www.________.com. This is in direct breach of the lease agreement we signed. You have no right to reassign this domain name to them. Do you work for ___________.com and never told me this was the intended use? You need to cease the re-direct of this domain name immediately. I will be contemplating my action based on this breach in the next 24-48 hrs.


And this is the lease agreement:

THIS DOMAIN NAME LEASE AGREEMENT (“Agreement”) is made effective as of (“Effective Date”), by and between(“Owner”) (“Lessee”).

1. DOMAIN NAME LEASE
1. Grant of Lease. Subject to compliance with, and in consideration of, the terms and conditions of this Agreement, Owner hereby leases the domain name (the “Domain Name”) to Lessee, and the Lessee hereby leases the Domain Name from Owner. Each party hereto agrees to execute, acknowledge and deliver such further instruments, and to do all such other acts as may be necessary or appropriate in order to carry out the purposes and intent of this Agreement.
2. Registration, Maintenance and Other Services. Owner shall be solely responsible for all ongoing costs of registration and maintenance of the Domain Name with the registrar. Lessee shall be solely responsible for obtaining and maintaining all products and services used by Lessee in its use of the Domain Name, including without limitation, hosting services, content creation, design, and technical services. Any DNS, Domain Name forwarding, or email forwarding changes requested by Lessee will be made by Owner within three (3) business days of receipt of request from Lessee.
3. Unacceptable Use. Any and all use of the Domain Name must comply with all applicable state, federal, and international laws and regulations. Lessee will not use the Domain Name to facilitate, point to or display any of the following:
1. content of a pornographic, sexually explicit, or adult nature;
2. content or activities of an illegal nature (including without limitation unauthorized display, distribution or copying of copyrighted material);
3. racist, sexist or hate sites or content that could be reasonably considered as slanderous or libelous; or
4. bulk unsolicited email (spam).
2. PAYMENT TERMS.
1. Rent. Lessee shall pay to Owner rent for use of the Domain Name (“Rent”). Rent during the first year of the Term shall be per month. During the remaining years of the Term, monthly Rent shall increase by each year (e.g., in the second year of the term, Rent shall be $ per month, in the third year, $, etc.).
2. Payment. Rent shall be paid in six month increments, in advance, with the first six-month amount of $ being due and payable upon execution of this Agreement. All amounts paid hereunder shall be in US dollars, shall be paid in accordance with Owner’s reasonable instructions, and all Rent paid is non-refundable, regardless of whether or not this Agreement is terminated for any reason or for no reason.
3. Taxes. Lessee will be responsible for, and will promptly pay, all taxes of any kind (including but not limited to sales and use taxes) associated with this Agreement, except for taxes based on Owner's net income.
3. INTELLECTUAL PROPERTY
1. Grant of License. Owner hereby grants Lessees an exclusive (even as to Owner), non-transferable, limited, temporary license to use the Domain Name during the Term of this Agreement. Owner owns the Domain Name and the license granted hereunder is only a license to use the Domain Name in accordance with the terms contained herein.
2. No Grant of Rights. Copyright, trademark and other intellectual property laws protect the Domain Name and any unauthorized use of the Domain Name may violate such laws. Except as expressly provided herein, Owner does not grant any express or implied right to Lessee under any patents, copyright, trademarks, or trade secrets with respect to the Domain Name.
3. Title. All right, title and interest of every kind and nature, whether now known or unknown in and to the Domain Name and to the copyrights, patents, trademarks, service marks, ideas, creations and all intellectual property associated with the Domain Name shall be the exclusive property of Owner.
4. Option to Purchase. Lessee shall have the option to purchase the Domain Name at the end of the Term of this Agreement for a lump sum of $. Written notice of Lessee’s desire to exercise such option must be provided to Owner no later than sixty (60) days prior to the expiration or termination of the Term of this Agreement, otherwise the option shall lapse and Lessee shall have no such option to purchase. In the event of the exercise of such option, the parties shall execute a mutually agreed upon Domain Name Purchase Agreement to accomplish Lessee’s purchase of the Domain Name.
4. CONFIDENTIALITY. Lessee and Owner each acknowledge and agree that through the performance of this Agreement, each party may learn or obtain Confidential Information of the other party. Except as expressly allowed herein, each party will hold in confidence and not use or disclose any Confidential Information of the other party and shall similarly bind its employees in writing. Each party acknowledges and agrees that due to the unique nature of the Confidential Information of the other party, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow the receiving party or third parties to unfairly compete with the delivering party resulting in irreparable harm to the delivering party, and therefore, that upon any such breach or any threat thereof, the delivering party shall be entitled to appropriate equitable relief (without the posting of any bond) in addition to whatever remedies it might have at law. "Confidential Information" means any information, technical data, or know-how relating to a party’s business, research, products, software, services, development, inventions, processes, engineering, marketing, techniques, pricing, internal procedures, business, and marketing plans and business opportunities that is either (a) marked “confidential,” “proprietary,” or with a similar legend, or (b) if disclosed orally, is declared confidential in a written summary provided to the other party no later than thirty (30) days following the date such oral disclosure was made (provided, that if at the time of the oral disclosure, the other party was not notified of the confidential nature of the information disclosed, then the receiving party shall have no liability for any disclosure prior to receipt of the required summary). Notwithstanding the foregoing, Confidential Information does not include information, technical data or know-how that: (i) the receiving party can prove through written documentation was in its possession at the time of disclosure; (ii) becomes part of the public knowledge not as a result of any action or inaction of the receiving party; (iii) is disclosed to the receiving party by a third party not in violation of any obligation of confidentiality; or (iv) is independently developed by the receiving party without reference to any Confidential Information, which can be proven through written documentation.
5. LIMITATION OF LIABILITY; INDEMNITY. LESSEE UNDERSTANDS AND AGREES THAT OWNER SHALL NOT BE LIABLE TO LESSEE OR ANY OTHER PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES WHATSOEVER RELATING TO THE USE, OR THE INABILITY TO USE, THE DOMAIN NAME. LESSEE FURTHER AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS OWNER FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, LIABILITIES, COSTS AND EXPENSES THREATENED AGAINST OR INCURRED BY OWNER, AND ITS ASSIGNEES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUCCESSORS, HEIRS AND AGENTS FROM ANY AND ALL ACTIONS, LIABILITIES, DAMAGES, CLAIMS, SUITS, AND DEMANDS OF EVERY KIND, NATURE AND DESCRIPTION THAT MAY BE MADE BY LESSEE OR ANY THIRD PARTY AGAINST OWNER ARISING OUT OF THIS AGREEMENT AND/OR ANY OMISSIONS, ACTS OR ALLEGED ACTS OF LESSEE WHILE LEASING THE DOMAIN NAME, INCLUDING WITHOUT LIMITATION (I) USE OF THE DOMAIN NAME ITSELF, (II) THE SERVICES OF ANY DOMAIN NAME FORWARDING AND/OR EMAIL FORWARDING PROVIDERS, (III) ANY WEB SITE UTILIZING THE DOMAIN NAME, (IV) ANY CONTENT, MATERIAL, CLAIM, REPRESENTATION, LINK, WEBSITE, ADVERTISEMENT OR PRODUCT ASSOCIATED WITH LESSEE’S USE OF THE DOMAIN NAME, OR (V) ANY CLAIM THAT LESSEE’S USE OF THE DOMAIN NAME INFRINGES UPON ANY INTELLECTUAL PROPERTY OR OTHER RIGHTS OF ANOTHER, OR VIOLATES ANY APPLICABLE LAW OR REGULATION.
6. WARRANTY. Owner warrants that it has the right to lease to Lessee the Domain Name as set forth in this Agreement. EXCEPT FOR THE FOREGOING WARRANTY, THE DOMAIN NAME IS LEASED AND LICENSED HEREUNDER “AS IS” AND OWNER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. TERM AND TERMINATION
1. Term. The Term of this Agreement shall commence on the date hereof and, unless earlier terminated in accordance with this Section 7, shall continue for a period of fourteen () years (“Term”).
2. Termination. This Agreement may be terminated prior to expiration of the Term upon the occurrence of any of the following:
1. By mutual written agreement of both parties.
2. Immediately by Owner, if Lessee breaches any term of the lease, including, but not limited to the obligation to make timely Rent payments in accordance with Section 2, and such breach is not cured within fourteen (14) days of Owner’s notice to Lessee of the existence of such breach.
3. By Lessee upon thirty (30) days written notice to the other party.
3. Exclusive Remedy. Termination of this Agreement by either party shall be the exclusive remedy for breach of this Agreement by the other party.
4. Effect of Termination. Upon termination of this Agreement either by expiration of the Term or termination in accordance with Section 7.2, (i) no refund of any Rent paid shall be owed to Lessee for any reason, (ii) Lessee shall immediately relinquish any and all rights to the Domain Name and cease all use thereof, (iii) all Confidential Information of a party in the possession of the other party shall be promptly returned or destroyed, and (iv) Owner shall have the right to disable or otherwise prevent Licensee’s use of the Domain Name using electronic or other means. All provisions which by their nature or their terms should survive termination or expiration of this Agreement shall so survive.
5. No Liability for Termination. Owner shall bear no responsibility for, and shall not be liable to Lessee as a result of, termination or expiration of this Agreement and any claims, losses, damages or other liabilities incurred by Lessee as a result of any such termination or expiration and/or for Owner’s exercise of its self-help remedies as described in Section 7.4(iv).
8. GENERAL
1. Assignment. Lessee will have no right to assign this Agreement, in whole or in part, by merger, acquisition, operation of law or otherwise, without Owner's prior written consent. Any attempt to assign this Agreement, without such consent, will be null and void. Change of control of Lessee shall be deemed an assignment For purposes of the preceding sentence, "control" means having the ability to elect a majority of the board of directors or a similar governing body or, if Lessee has no board of directors, to direct the day-to-day operations of Licensee. Subject to the foregoing, this Agreement is binding upon, and shall inure to the benefit of, each party’s heirs, successors and assigns.
2. Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of California applicable to agreements entered into, and to be performed entirely, within California between California residents. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts of the Northern District of California and the parties hereby consent to the personal jurisdiction and venue therein.
3. Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
4. Waiver. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
5. Notices. All notices required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by courier or overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth above or to such other address as may be specified by either party to the other in accordance with this Section. Either party may change its address for notices under this Agreement by giving written notice to the other party by the means specified in this Section.
6. Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, riot, act of God or governmental action.
7. Relationship of Parties. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent.
8. Entire Agreement. This Agreement, including all schedules attached hereto, contains the complete understanding and agreement of the parties and supersedes all prior or contemporaneous agreements or understandings, oral or written, relating to the subject matter herein. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of the parties.

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the Effective Date by their duly authorized representatives.

 

[SIdomains]

I'm not a lawyer, and you should seek legal counsel.

But, IMHO, your use of the domain does not violate any of the "unnacteptable use" clauses in the lease.

Most likely the owner is angry at himself that you are not doing any work and he wants to redirect it himself.

 

[gemsergio]

thanx I appreciate from my understanding as well this is the cased since I am not assigning any domain to them.
Any lawyers in the house? (I might need to hire a specialist later on)

 

[tm3500]

No lawyer here, but with "You have no right to reassign this domain name to them." the owner appears to be referring to this clause:

1. Assignment. Lessee will have no right to assign this Agreement, in whole or in part, by merger, acquisition, operation of law or otherwise, without Owner's prior written consent. Any attempt to assign this Agreement, without such consent, will be null and void.

He seems to believe that you sold/reassigned the agreement to "rent.com" (the owner of the destination domain) and that they are now using the domain. Did you ask him if that is what he meant with his statement?

He doesn't sound like an Internet expert so it's probably a misunderstanding that you can clear up by giving him an introduction on affiliate programs, and by explaining that you did not in any way reassign the contract and that the domain's integrity and ownership remain intact (show him PING / whois / DNS info).

Good luck!

 

[ParkQuick.com]

My reaction was exactly the same as tm3500's. Convince the owner that it is still an independent domain - that you are just using the other site's affiliate program.

 

[Andrew Shaw]

agreed

 

[aldwin]

that's the best course of action.