Form 1023 (Appendix 19)
This Loanout Agreement (this "Agreement")
is made and entered into as of this 1st day of January, 1999,
by and between the UNIVERSITY OF SOUTHERN CALIFORNIA, a California
nonprofit public benefit corporation ("USC"), and the
INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS, a California
nonprofit public benefit corporation ("ICANN").
ICANN hereby engages USC to furnish, and USC hereby agrees to
furnish to ICANN, the services of those two employees listed
on Schedule A on a full-time basis ("Full-time Employees")
and those two employees listed on Schedule B on a part-time basis
("Part-time Employees") (collectively, the "Employees")
to carry out the function of ICANN, on the basis of the terms
and conditions set forth in this Agreement, provided,
however, that termination of any Employee's employment
with USC for any reason shall terminate USC's obligation to furnish
such Employee's services to ICANN under this Agreement.
1.1 Part-time Employees. USC will
furnish the Part-time Employees to ICANN for such periods of
time as are reasonably necessary from time to time to assist
in carrying out the function of ICANN, as mutually agreed from
time to time between the parties.
1.2 Conflict of Interest. The Employees
will be required to abide by USC's conflict of interest policies
in the identification and management of actual and potential
conflicts in the relationship between USC and ICANN.
1.3 Additional Personnel. USC will
not provide ICANN with any additional personnel under this Agreement.
All new personnel required by ICANN after the date of this Agreement
will be employed as ICANN employees from the outset.
1.4 Transition to ICANN Employment.
USC and ICANN will encourage the Full-Time Employees to transfer
their respective employment relationships from USC to ICANN.
1.5 Supervision and Direction. ICANN
will be responsible for all discretionary decision-making and
all technical oversight and supervision of the Employees. USC
will have no right or responsibility to direct or supervise the
As full and complete compensation for the services rendered by
the Employees, ICANN agrees to pay USC all fully loaded costs
for the Employees, including all salaries and benefits; provided
that such costs for the Part-Time Employees shall be prorated
between USC and ICANN on the basis of the respective percentages
of full-time employment devoted to each respective entity. ICANN
shall pay USC for such costs no later than thirty (30) days following
ICANN's receipt of USC's invoice therefor. All payments made
under this Section 2 shall be paid in US dollars by check drawn
on a US bank, and checks shall be made payable to the "University
of Southern California."
3. RELEASES AND INDEMNIFICATION
3.1 Indemnification by ICANN. ICANN
shall indemnify and hold USC harmless from and against any and
all loss, damage, deficiency, cost, expense, liability or judgment
incurred or suffered by USC, including without limitation interest,
penalties and reasonable attorneys' fees; from or arising out
of the actions of the Employees while under the supervision and
direction of ICANN.
3.2 Procedure. USC shall give prompt
written notice to ICANN in the event it obtains knowledge of
any claim or event which could give rise to a claim by USC against
ICANN pursuant to such indemnity, stating the nature and basis
of such claim or event and the amount thereof, and ICANN shall
have the obligation to defend against each such claim, , provided,
however, that the failure to so notify shall not relieve ICANN
of its responsibilities hereunder except to the extent ICANN
has been prejudiced in a material respect. During the course
of any third-party claim or proceeding defended against by ICANN,
ICANN shall keep USC fully informed with regard to such claim
or proceeding, use all reasonable efforts to defend such claim
or proceeding and present any reasonable defense and employ any
reasonable tactic suggested by USC, its counsel or its accountants.
USC shall have the right to be represented at any such claim
or proceeding by legal counsel and accountants of its choosing.
ICANN shall have the right at any time, without the consent of
USC, to settle or compromise any claim or proceeding by any third
party, provided, however, that no settlement or compromise which
would have any effect upon the assets, operations, reputation
or goodwill of USC shall be made without the prior written consent
of USC. ICANN and USC agree to use their respective best efforts
to cooperate with each other in connection with the defense of
any claim or proceeding contemplated by this Section.
3.3 Insurance. ICANN shall, throughout
the term of this Agreement, obtain and maintain at its own cost
and expense from a Best's rated A, class 10 or better insurance
company and which is licensed to do business in the state of
California, liability insurance, including general comprehensive
liability, property, professional liability and directors and
officers liability in amounts satisfactory to USC. ICANN shall
name USC as an additional insured under its policies of general
and professional liability insurance for so long as this Agreement
continues and such policies shall preclude termination of coverage
without thirty (30) days' prior written notice to USC. ICANN
shall from time to time upon request by USC furnish USC with
certificates of insurance evidencing such insurance.
4. TERM AND TERMINATION
4.1 Term. The term of this Agreement
shall commence as of execution and shall continue for a period
of one year after execution. Thereafter, the term of this Agreement
shall extend automatically for successive renewal periods of
one year unless either party delivers written notice to the other
party at least ninety (90) days prior to the last day of the
current renewal period.
4.2 Termination. This Agreement
may be terminated at any time as follows:
(a) By mutual agreement in writing of the
(b) By USC, if ICANN shall fail, neglect
or refuse to fulfill its obligations under Section 2 hereof for
a period of ten (10) or more days after receipt of notice thereof;
(c) By USC, if ICANN shall fail, neglect
or refuse to fulfill any of its obligations other than under
Section 2 hereof for a period of thirty (30) or more days after
receipt of notice thereof.
4.3 Effect of Termination. If this
Agreement is terminated for any reason under Section 4.2, the
parties shall have no further obligations hereunder after the
effective date of termination, other than under Sections 3.1
and 3.2 hereof, which shall fully survive termination for any
reason; provided that such termination shall have no effect
upon the obligations of either party accrued as of the effective
date of termination.
4.4 Termination of Employee's Services
by ICANN. ICANN may terminate USC's obligation to furnish
the services of any Employee hereunder upon thirty (30) days'
prior written notice to USC. After the date of such termination,
the person terminated under this Section 4.4 shall no longer
be deemed an Employee for purposes of this Agreement.
5.1 Severability. If any term or
provision of this Agreement is for any reason held to be invalid,
such invalidity shall not affect any other term or provision,
and this Agreement shall be interpreted as if such term or provision
had never been contained in this Agreement.
5.2 Waiver. No waiver of any of
the terms of this Agreement shall be valid unless in writing
and signed by both parties. Failure by either party to enforce
any rights under this Agreement shall not be construed as a waiver
of such rights, and a waiver by either party of a default in
one or more instances shall not be construed as a continuing
waiver or as a waiver in other instances.
5.3 Assignment. Without the prior
written consent of USC, ICANN shall not directly or indirectly
assign, transfer, convey or encumber any of its rights under
this Agreement. Subject to the foregoing, this Agreement shall
be binding upon and inure to the benefit of the respective successors
and assigns of USC and ICANN. USC shall have the absolute, unfettered
right to transfer this Agreement and its rights and obligations
hereunder to any third party upon notice to ICANN.
5.4 Governing Law. This Agreement
shall be construed in accordance with and all disputes hereunder
shall be governed by the laws of the State of California.
5.5 Controversy. All controversies,
claims, and disputes arising in connection with this Agreement
shall be settled by mutual consultation between the parties in
good faith as promptly as possible, but failing an amicable settlement
shall be settled finally by arbitration in accordance with the
provisions of this Section 5.5. Such arbitration shall be conducted
in Los Angeles, California, in accordance with the Commercial
Arbitration Rules of the American Arbitration Association ("AAA").
(a) Exclusivity. The parties hereto
hereby agree that the arbitration procedure provided for herein
shall be the sole and exclusive method of resolving any and all
of the aforesaid controversies, claims, or disputes.
(b) Decision by Arbitrator. The
parties shall each submit a list of ten (10) proposed arbitrators
to the other party hereto within thirty (30) days after receipt
of notice of arbitration of any dispute hereunder. Thereafter
the parties shall have an additional thirty (30) days in which
to agree upon a single arbitrator to conduct the arbitration,
taken from the lists so submitted. If the selected arbitrator
is otherwise unavailable or if the parties cannot agree upon
an arbitrator, one will be selected by the AAA. The arbitrator
so selected shall make a final decision and award according to
the terms and provisions of this Agreement and applicable law.
Said decision shall set forth findings of fact and conclusions
of law upon which the award is based. The arbitrator may select
counsel to provide advice in preparation of such findings and
conclusions, and on any point of law arising in the course of
arbitration. Judgment upon the award may be entered in any court
which has the jurisdiction over such matter in accordance with
the provisions of Section 5.5(d) hereof.
(c) Costs and Expenses. The costs
and expenses of the arbitration, including without limitation
attorneys' fees, shall be borne by the parties in the manner
determined by the arbitrator.
(d) Judicial Action. Legal action
for (i) entry of judgment upon any arbitration award or (ii)
adjudication of any controversy, claim or dispute arising from
a breach or alleged breach of Section 5.5(a), (b) or (c) hereof
may be heard or tried only in courts of the State of California
for the County of Los Angeles or the Federal District Court for
the Central District of California. Each of the parties hereto
hereby waives any defense of lack of in personam jurisdiction
of said courts and agrees that service of process in such action
may be made upon each of them by mailing it certified or registered
mail to the party being served at the address provided for in
Secion 5.7 hereof. Both parties hereby submit to the jurisdiction
of the court so designated, to the exclusion of any other courts
which might have had jurisdiction apart form this Section 5.5,
and agree that the prevailing party shall be entitled to recover
from the non-prevailing party reasonable expenses, including
without limitation attorney's fees.
5.6 Headings. The headings herein
are for reference purposes only and shall not constitute a part
hereof or be deemed to limit or expand the scope of any provision
of this Agreement.
5.7 Notice. All notices to be given
under this Agreement (which shall be in writing) shall be given
at the respective addresses of the parties as set fourth above
their respective signatures to this Agreement, unless notification
of a change of address is given in writing. Any notice required
by this Agreement shall be deemed to have been properly reveived
when delivered in person or when mailed by registered or certified
first class mail, return receipt requested, or by Federal Express
to the address as given herein, or such addresses as may be designated
from time to time during this term of this Agreement.
5.8 Counterparts. This Agreement
may be executed in one or more counterparts, each of which shall
be deemed an original; but all of which together shall constitute
one and the same instrument.
5.9 Entire Agreement. This Agreement
fully supersedes any and all prior agreements or understandings
between the parties hereto or any of their respective affiliates
with respect to the subject matter hereof, and no change in,
modification of or addition, amendment or supplement to this
Agreement shall be valid unless set forth in writing and signed
and dated by both parties hereto subsequent to the execution
of this Agreement.
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be executed in duplicate by their
duly authorized representatives and to become effective as of
the day and year first above written.
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