XDI.ORG Global Service Provider Agreement
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1. Parties and Effective Date.
THIS GLOBAL SERVICE PROVIDER AGREEMENT (“Agreement”) dated June 8, 2004 (“Effective Date”) is between XDI.ORG, a nonprofit corporation (“XDI.ORG”), and OneName Corporation, a Washington corporation dba Cordance (“CORDANCE” or “Service Provider”). XDI.ORG and CORDANCE shall be collectively known as the Parties.
2. Background and Purpose.
2.1.XDI.ORG is a nonprofit public trust organization established to govern XDI infrastructure on behalf of the users and providers of such infrastructure (the “XDI Community”).
2.2.To accomplish this purpose, XDI.ORG has obtained licenses to use certain technology covered by the Patent Rights, as well as related technology, technical specifications, documentation, and marks covered by patent, copyright, trademark, or other forms of intellectual property protection (collectively, the “XDI Technology”), and to sublicense others to do so.
2.3.XDI.ORG’s principal license is conditioned on its performance by XDI.ORG or its delegates of certain public trust obligations for the XDI Community. These include establishing and maintaining the Technical Specifications that govern technical interoperability of XDI implementations and establishing and maintaining certain Global Services that facilitate interoperability of XDI among all members of the XDI Community. To perform this function, XDI.ORG is authorized to contract with third-party Global Service Providers (“GSPs”) including Primary Global Service Providers (“Primary GSPs”) and Secondary Global Service Providers (“Secondary GSPs”), to provide such services, to monitor conformance with the relevant specifications, and to otherwise manage such XDI Community activities as facilitate and maintain an open, interoperable XDI Community.
2.4.CORDANCE’s background and expertise in XDI technology, including development of the initial Technical Specifications, uniquely qualify CORDANCE to assist XDI.ORG in the specification, development, implementation, and provisioning of the Global Services specified herein.
2.5.CORDANCE is willing and able to serve as a GSP for the initial Global Services as further described herein.
NOW THEREFORE, in consideration of the premises, mutual covenants and agreements set forth herein, CORDANCE and XDI.ORG also AGREE AS FOLLOWS:
3. Definitions.
All terms presented that are capitalized in this Agreement and not otherwise defined are defined in Exhibit A attached hereto and incorporated herein.
4. CORDANCE’s Rights and Obligations.
The following are material obligations and rights of CORDANCE:
4.1. Initial Specifications.
CORDANCE shall develop and contribute the initial Global Services Specifications, pursuant to the Technical Specifications, for each of the Global Services subject to this Agreement for which CORDANCE elects to become the Primary GSP. For each such service, CORDANCE shall notify XDI.ORG in writing of its intent to develop and contribute said specification and shall then submit said specification within 90 days thereof. XDI.ORG shall use reasonable diligence to conduct public review, amend if necessary, and publish such initial specification in a timely manner from receipt of CORDANCE, which in no event shall exceed 60 days from the date received until published. Once said initial specification is published by XDI.ORG, CORDANCE shall have a commercially reasonable period of time to implement such published specification and commence to offer said service pursuant to the terms of this Agreement.
4.2. Primary Global Service Provider.
For each Global Service for which CORDANCE has elected to become the Primary GSP, CORDANCE shall establish, maintain, and offer such service to the public as prescribed in the pertinent Global Services Specifications adopted and published by XDI.ORG. Where CORDANCE acts as Primary GSP for a Global Service, it shall maintain the master Registry for that service and make it available to each Secondary GSP to mirror the necessary data from the master Registry as prescribed in the pertinent Global Services Specifications.
4.3. Secondary Global Service Provider.
For the term of this Agreement, CORDANCE may elect to serve as a Secondary GSP for any of the Global Services for which CORDANCE has elected not to serve as the initial Primary GSP, for which CORDANCE has elected not to renew its term as the Primary GSP, or upon the natural termination of CORDANCE as a Primary GSP.
4.4. Additional Global Services.
As long as CORDANCE is acting or retains the right to act as a GSP (either Primary or Secondary) in respect of any of the Designated Global Services, in the event XDI.ORG authorizes additional Global Services not specified in this agreement, CORDANCE shall have the right to act as a GSP for such services upon terms to be mutually agreed. In the event that XDI.ORG agrees to a fee structure with a GSP in respect of any such additional Global Service that is more favorable to any GSP than that agreed upon with CORDANCE, then XDI.ORG shall provide written notice thereof to CORDANCE specifying, in detail, such pricing provisions, and CORDANCE shall have the right to adopt such pricing provisions effective upon the date such pricing was first offered to such GSP.
4.5. Amended Specifications.
CORDANCE shall conform to the pertinent Global Services Specifications as they may be adopted or amended from time to time during the term of this Agreement according to the then-current procedures established by XDI.ORG. CORDANCE may at any time propose amendments according to such procedures. Said specifications and procedures and the timelines for implementing changes shall be commercially reasonable for GSPs (including CORDANCE) and must be reasonably shown by XDI.ORG to be in the best interest of the XDI Community.
4.6. Registrar.
CORDANCE shall have the right, but not the obligation, to serve, or subcontract the right to serve, as a Registrar in respect of any Global Services.
4.7. Subcontracting.
CORDANCE shall have the right to subcontract any and all services CORDANCE is obligated to provide under this Agreement.
4.8. GSP Working Group Chair.
CORDANCE shall serve as the initial chair of the GSP Working Group as further provided in 5.10 below.
4.9. Previous Registrations.
On or before commencement of Personal i-name Service or Organization i-name Service, CORDANCE shall use its best efforts to honor all pre-existing XNS Personal Name and XNS Business Name registrant commitments
5. XDI.ORG’s Rights and Obligations.
The following are material rights and obligations of XDI.ORG:
5.1. Publish & Maintain Specifications.
XDI.ORG shall publish and maintain the Global Services Specifications in accordance with its governance authority.
5.2. Top Level Authority.
XDI.ORG shall be the sole top-level authority for all Global Services, and subject to the conditions contained herein, shall have the right to contract with as many GSPs as XDI.ORG deems necessary to best provide Global Services to the XDI Community.
5.3. Equal Opportunity and Adoption Incentives.
The Parties seek to promote the widespread adoption of open, interoperable XDI infrastructure. To achieve this goal, the Parties agree that CORDANCE and each Primary GSP shall have authority to negotiate directly with Registrants for their respective service, to create incentives for adopting Global Services and also to determine the conditions under which Registrants that offer their own products or services based on XDI technology shall also make available to the users of these services the range of Global Services currently offered to the XDI Community.
5.4. CORDANCE’s Primary GSP Option Limited.
XDI.ORG shall offer to CORDANCE the right, but not the obligation to become the Primary GSP for each of the Specified Global Services for a period of three (3) years following the commencement of said service; provided, however, that if CORDANCE fails to reasonably deliver to XDI.ORG the Global Service Specifications in respect of any such Designated Global Service within ninety (90) days after the date on which either CORDANCE or XDI.ORG first provides notice to the other that it desires to commence such Designated Global Service, XDI.ORG shall have the right to (a) accept from a third party such Global Service Specifications in respect of such service and to appoint such third party as the Primary GSP in respect of such service, and (b) in such case, CORDANCE shall have the right, but not the obligation, to serve as a Secondary GSP in respect of such service for a period of fifteen (15) years after the commencement of such service. In no event shall XDI.ORG have the right to request specifications from CORDANCE to trigger the commencement of an additional Global Service within ninety (90) days of XDI.ORG’s most recent previous request for specifications from CORDANCE for another Global Service.
5.5. Secondary GSP Appointments.
XDI.ORG shall have the right to appoint additional Secondary GSPs in respect of all Global Services for which there is a Primary GSP. XDI.ORG shall require said Secondary GSP to replicate such service data contained in the master Registry maintained by the Primary GSP as is necessary to provide the service in accordance with the pertinent Global Service Specifications.
5.6. GSP Certification and Decertification.
XDI.ORG shall require that all GSPs make a Conformance Attestation regarding their conformance with the Global Service Specifications. Said specifications shall be commercially reasonable for all GSPs to implement; must provide commercially reasonable time for GSPs to implement and conform to new or amended Global Services Specifications; must take into account in establishing fair and appropriate timing and procedures for decertification, the contribution, additional effort and investment provided by the specific Primary GSP of a Global Service to specify, implement, provision, and test said service; and must be reasonably shown by XDI.ORG to be in the best interest of the XDI community. XDI.ORG shall require the same level of standards and performance of all GSPs.
5.7. Transition of Current Registrations.
XDI.ORG shall ensure that Registrants of XNS names under XNS Personal Name Service and XNS Organizational Name Service operated by CORDANCE prior to the execution of this agreement shall have the right to have their registration carried over, at no additional cost to the registrant, to the Primary GSP for Personal i-name Service and Organizational i-name Service, respectively, when commenced under the governance of XDI.ORG and/or any subsequent licensee/assignees of XDI.ORG. Registrants shall have said right for a period of no less than 90 days following the date of commencement of the applicable service.
5.8. Wholesale Registration Fees.
XDI.ORG shall establish the price to be charged by the Primary GSP to all Registrars for each Global Service (“Wholesale Registration Fee”) which shall be the sum of: (a) the aggregate service fees charged by the Primary GSP and any additional Secondary GSPs in respect of such Service (as provided herein, and as determined by written agreement between XDI.ORG and any other applicable GSPs, if any) (each a “Service Fee”); and (b) that fee charged by XDI.ORG in respect of such Global Service to cover XDI.ORG’s reasonable operating expenses (the “Overhead Fee”).
5.9. Retail Registration Fees.
Each Registrar shall have the right to set the Retail Registration Fee which it will offer to Registrants (“Retail Registration Fees”). No Registrar is prohibited from offering a “Retail Registration Fee” below the “Wholesale Registration Fee,” provided however that said Registrar must remit the full amount of the Wholesale Registration Fee for each Registration in a timely manner as will be specified in the Registrar agreement. For purposes of clarification, there will be no specified uniform Retail Registration Fee. Different Registrars are permitted and encouraged to offer different Retail Registration Fees to Registrants and compete in the marketplace.
5.10. GSP Working Group.
XDI.ORG shall form a working group comprised of all GSPs with which XDI.ORG has contracted to perform Global Services (the “Working Group”). CORDANCE shall be the initial chair of the Working Group. Such Working Group shall have sole responsibility for establishing and maintaining such portions of the Global Service Specifications that affect only GSPs (as differentiated from Registrars and Registrants). Governance procedures for the Working Group shall be further defined by XDI.ORG according to its governance requirements.
5.11. XDI.ORG Membership.
If XDI.ORG, or any of its permitted successors and/or assigns, implements a membership structure or sponsorship program at any point during the term of the license, XDI.ORG agrees to grant to CORDANCE a fifteen (15) year no-fee membership and/or sponsorship at the highest category of membership or sponsorship, as the case may be, established by XDI.ORG.
6. Service Types.
6.1. Classifications.
For purposes of pricing within this agreement, Global Services shall be classified as either “Cost-Based Services” or “Fee-Based Services.”
6.2. Cost-Based Services.
The following Designated Global Services shall be classified as Cost-Based: Standard Public Resolver, Trusted Public Resolver, Personal i-number, Organizational i-number, General i-number, General i-name, General Directory, and General Reputation.
6.3. Fee-Based Services.
The following Designated Global Services shall be classified as Fee-Based: Personal i-name, Organizational i-name, Personal Directory, Organizational Directory, Personal Reputation, and Organizational Reputation.
7. Cost-Based Services.
7.1. Primary GCSP Term Limitations and Right of First Refusal.
In respect of each Specified Global Service which is classified as a Cost-Based Service, it is hereby agreed that on or after the date thirty-six (36) months after the commencement of such service, XDI.ORG shall have the right, upon ninety (90) days written notice to CORDANCE, to appoint a new third party to serve as Primary GSP ("New Primary"). Such notice shall contain a detailed explanation of the terms and conditions under which the New Primary shall operate. Upon receipt of such notice, unless the selection of a New Primary is the result of a material breach by CORDANCE of this Agreement, CORDANCE shall have the option of notifying XDI.ORG, within thirty (30) days, of CORDANCE's intent to match the terms and conditions offered by the New Primary ("Right of First Refusal"). Upon receipt of such notice by XDI.ORG, it shall appoint CORDANCE as Primary GSP under the terms and condition offered to the New Primary. In the event that CORDANCE does not exercise its Right of First Refusal and XDI.ORG appoints a New Primary GSP, XDI.ORG shall pay to CORDANCE, within thirty (30) days of the date on which XDI.ORG so notifies CORDANCE of such appointment, an amount equal to CORDANCE's aggregate direct costs incurred in connection with the establishment and maintenance of such Specified Global Service. Such aggregate direct costs shall be calculated by CORDANCE, and to the extent they include capital equipment costs, shall be reduced, pro-rata, based upon a five (5) year straight-line depreciation schedule, commencing on the date such direct capital equipment costs were incurred by CORDANCE. The calculation of all such direct costs shall be supported by commercially reasonable documentation evidencing such costs.
7.2. Charges for Cost-Based Services.
For all Cost-Based Services in respect of which CORDANCE serves as a GSP, CORDANCE shall charge a Service Fee equal to CORDANCE’s cost of providing such services plus ten percent (10%), which costs shall be supported by commercially reasonable documentation and methodology.
7.3. Records Retention.
CORDANCE shall retain records related to its determination of such costs for a commercially reasonable period of time, and shall provide to XDI.ORG commercially reasonable audit rights.
8. Fee-Based Services.
8.1. Charges for Fee-Based Services.
For each Fee-Based Service in respect of which CORDANCE serves as a Primary GSP or Secondary GSP, CORDANCE shall charge a Service Fee per Registration, determined by CORDANCE in its sole discretion, provided that the maximum Service Fee of each such annual Registration shall not exceed the amounts set forth in Exhibit B annexed hereto. The pricing thresholds set forth on Exhibit B are based upon the total cumulative Registrations (as calculated in the next sentence) existing on January 1 of each year following the commencement date of such service. Total cumulative Registrations shall be calculated in accordance with the following formula: total Registrations issued less the aggregate of: (a) all deregistrations effected during such period and (b) any Registrations for which fees payable are more than thirty (30) days in arrears. If at any time CORDANCE elects, in its sole discretion, to charge XDI.ORG Service Fees in respect of a Fee-Based Service that are less than the maximum amounts permitted on Exhibit D, then XDI.ORG shall reduce the fees payable by Registrars, as applicable, by the same proportion as the reduction to such charge made by CORDANCE relative to such maximum amounts. The parties may, by mutual written agreement, amend said fee schedule. Nothing herein shall be interpreted as limiting the right of CORDANCE to offer registrations for service terms of more or less than one year and to establish alternative pricing schedules for such service terms, so long as CORDANCE continues to offer registrations for a standard annual service term at pricing as specified in this section and Exhibit B.
8.2. Fee Parity.
Notwithstanding the pricing provisions set forth above, if at any time while CORDANCE is serving as a GSP in respect of any Fee-Based Service, XDI.ORG agrees to a Service Fee structure with a GSP in respect of such service that is more favorable to any GSP than that set forth herein, then XDI.ORG shall provide written notice thereof to CORDANCE specifying, in detail, such pricing provisions, and CORDANCE shall have the right to elect to adopt such Service Fee provisions effective upon the date such Service Fee provisions were first offered to such GSP.
8.3. Modification to Fees by CORDANCE.
If changes to the Technical Specifications or Global Services Specifications in respect of any Global Service classified as a Fee-Based Service can be reasonably demonstrated by CORDANCE to increase CORDANCE’s costs in providing such service, CORDANCE shall have the right to increase the maximum permitted fee chargeable, (as set forth on Exhibit B attached hereto and incorporated herein) by an amount sufficient to offset such increased costs.
8.4. Initial Registration Rights.
In respect of each Global Service which is classified as a Fee-Based Service, CORDANCE shall have the right to act, or sub-contract the right to act, as the sole and exclusive Registrar of such service during an initial registration period of six (6) months commencing upon the date on which each such Fee-Based Service is first offered.
8.5. Wait List Service.
For any Fee-Based Service that involves registration of an i-name, CORDANCE or the Primary GSP for said service may offer a wait list service that enables potential Registrants to reserve the opportunity on a first-come, first-served basis to register a currently-registered i-name if and when the current Registration expires or becomes no longer in force. If such wait list service is offered, the specifications for such service must be included in the Global Services Specifications, and the fees for such a wait list service shall not exceed the equivalent fees for registration of said i-name for an equivalent period.
9. Payment Process and Agreement Review.
9.1. Registration Fee Distribution.
The Registration Fee charged in respect of each Global Service shall be paid by Registrars to the Primary GSP for such service. Such Primary GSP shall, in turn, (a) pay to XDI.ORG the applicable Overhead Fee; and (b) pay to each additional GSP (if such exists), such Secondary GSPs applicable Service Fee.
9.2. Quarterly Payments.
All amounts due and payable in this Agreement shall be due and paid quarterly, in arrears, and supported by quarterly statements of account specifying, in reasonable detail, the total number of Registrations effected in respect of each applicable Global Service during each such quarterly period, the total amount of related Registration Fees received during such period, and the total amounts due to each party entitled to receive any portion of such received Registration Fees, which such statements and related payment shall be issued and made, respectively, within thirty (30) days after the end of each such quarterly period, based on amounts actually received as Registration Fees during that month.
9.3. Approval of Downstream Agreements.
For each service for which CORDANCE serves as the first Primary GSP, CORDANCE shall have the right to review and approve the initial form of the Secondary GSP Agreement, the Registrar Agreement and the Registration Agreement (said approval not to be unreasonably withheld). Said agreements shall contain commercially reasonable terms for payment of fees as well as customary audit rights and recordkeeping requirements.
10. Term and Termination.
10.1. Agreement Term.
This Agreement shall commence on June 8, 2004 and shall end on the later of: a) July 9, 2017 , or b) the fifteen year anniversary date of the commencement of the last Designated Global Service.
10.2. Primary GSP Term.
CORDANCE may elect to serve as the Primary GSP for each of the Global Services subject to this Agreement for a period of three (3) years from the date said service is first offered to the public. CORDANCE shall have the option to serve as the Primary GSP for four (4) further three (3) year terms unless otherwise agreed herein.
10.3. Termination.
10.3.1.
Either Party may terminate this Agreement (1) if the other Party is in breach or default of any of the material terms and conditions of this Agreement (except as otherwise provided herein), provided that the Party in breach shall not have cured (if capable of being cured) such breach or default within thirty (30) cumulative days after receipt of written notice; or (2) as otherwise expressly set forth in this Agreement. In the event of a material breach or default by CORDANCE that affects some but not all of the Global Services provided hereunder, the Agreement may be terminated only with respect to the affected service(s).
10.3.2.
CORDANCE may terminate this Agreement, effective thirty (30) days after written notice or as mutually agreed to effect a better transition, in the event that (1) XDI.ORG becomes insolvent, is generally not paying its debts as such debts become due, makes an assignment for the benefit of creditors, is the subject of any voluntary or involuntary case commenced under the federal bankruptcy laws or of any other proceeding under other applicable laws of any jurisdiction regarding bankruptcy, reorganization, adjustment of debt or other forms of relief for debtors, has a receiver, trustee, liquidator, assignee, custodian or similar official appointed for it or for any substantial part of its property, or is the subject of any dissolution or liquidation proceeding, or (2) XDI.ORG ceases to conduct business as a going concern.
10.3.3.
With respect to any Global Service for which CORDANCE is the Primary GSP, in the event that XDI.ORG adopts amendments to pertinent Global Services Specifications that differ materially from those proposed or accepted by CORDANCE, CORDANCE may terminate said Service ninety (90) days after providing written notice of termination. In the event of a termination under this provision, CORDANCE shall have the option to provide such Global Service as a Secondary GSP.
10.3.4.
CORDANCE shall have the right, upon one-hundred-eighty (180) days written notice to XDI.ORG, to discontinue serving as a GSP for any Designated Global Service.
10.3.5.
XDI.ORG shall have the right to decertify any GSP in accordance with the commercially reasonable decertification procedures as further defined in the relevant Global Service Specification for said service and further restricted herein.
10.4. Transition.
On the expiration or termination of this Agreement (in whole or in relevant part), and on the termination of CORDANCE’s role as a Primary or Secondary GSP with respect to any particular service, the Parties shall cooperate in good faith to effect a transition to another GSP, if any, in such a manner as to minimize costs and disruptions to the members of the XDI Community.
11. General Terms and Conditions.
11.1. Warranties.
Each Party warrants to the other that:
11.1.1.
It has the right and authority to enter into this Agreement and grant the rights conveyed hereunder and that doing so does not conflict with any obligation it has or shall undertake; and
11.1.2.
Its performance under this Agreement does not violate any applicable law or regulation.
11.2. No Product Warranty.
The Parties acknowledge that all deliverables provided by CORDANCE as part of this Agreement including any Exhibit agreements, are provided “AS IS” WITH NO WARRANTIES WHATSOEVER, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND THE PARTIES EXPRESSLY DISCLAIM ANY WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY WARRANTY OTHERWISE ARISING OUT OF ANY PROPOSAL, SPECIFICATION, OR SAMPLE.
11.3. Limitation on Liability.
IN NO EVENT WILL ANY PARTY HERETO BE LIABLE TO ANY OTHER PARTY FOR THE COST OF PROCURING SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, LOSS OF USE, LOSS OF DATA OR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES OF ANY PARTY INCLUDING THIRD PARTIES, WHETHER UNDER CONTRACT, TORT, WARRANTY OR OTHERWISE, ARISING IN ANY WAY OUT OF THIS AGREEMENT INCLUDING ANY EXHIBIT AGREEMENT ATTACHED HERETO, WHETHER OR NOT SUCH PARTY HAD ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
11.4.Indemnification.
11.4.1.
Each party shall defend, indemnify and hold harmless the other party, its officers, directors, shareholders, employees and agents from and against any and all actions, suits or proceedings (“Claims”), resulting in any losses, damages, judgments, awards, settlements, or expenses (including reasonable attorney’s fees) (collectively, “Liabilities”) arising from any breach of an obligation under this Agreement, or any claim, which if true, would constitute a breach of such warranty this Agreement or the warranties made herein.
11.4.2.
XDI.ORG further agrees to indemnify and hold harmless CORDANCE from all Claims by third parties arising from asserted actions or omissions by XDI.ORG and resulting in Liabilities to CORDANCE.
11.4.3.
CORDANCE further agrees to indemnify and hold harmless XDI.ORG from all Claims by third parties arising from asserted actions or omissions by CORDANCE and resulting in Liabilities to XDI.ORG.
11.4.4.
The Party seeking indemnification under any clause of this Section 10.4 shall provide the other: (1) reasonably prompt written notice of the existence of such Claim; (2) sole control over the defense or settlement of such Claim; and (3) assistance at the other party’s request and expense to the extent reasonably necessary for the defense of such Claim. The Party seeking indemnification shall have the right to employ separate counsel and participate in the defense of any claim or action, at the other Party’s expense. The indemnifying Party shall reimburse the Party seeking indemnification upon demand for any payments made or loss suffered by it at any time after the date hereof, based upon the judgment of any court of competent jurisdiction or pursuant to a bona fide compromise or settlement of claims, demands, or actions, in respect to any damages related to any said Claims.
11.5. Construction.
Unless specifically noted to the contrary, references herein to Article, Section, and Exhibit shall be to the applicable Article or Section of this Agreement or Exhibit, respectively, and not to any other document. Descriptive headings appearing in this Agreement are inserted for convenience only, and shall not be utilized in interpreting this Agreement.
11.6. Interpretation.
This Agreement has been drafted and negotiated by the parties (and their counsel) and shall be fairly interpreted in accordance with its terms without any presumption or strict construction in favor of or against either party arising from the identity of the draftsperson. In the event of a conflict between the terms and conditions of this Agreement and any Exhibit agreement, the terms of this Agreement will prevail unless the Exhibit agreement explicitly states that the conflicting term of the Exhibit agreement will supersede this Agreement.
11.7. Severability.
It is expressly understood and agreed that each provision of this Agreement providing for a limitation of liability disclaimer or limitation of warranties or exclusion of damages is intended by the parties to be severable and independent of any other provisions and to be enforced as such.
11.8. Waiver.
The failure of either party at any time to require performance by the other party of any provision hereof shall not affect in any way the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
11.9. Definitive Agreements.
This Agreement, and the XDI.ORG Intellectual Property Rights Agreement of the same date together supersedes all previous Agreements between the parties. This Agreement does not extinguish CORDANCE’s obligation to pay to XDI.ORG any amounts due and unpaid as of the Effective Date of this Agreement.
11.10. Assignment.
This Agreement shall be binding on the parties and on their successors and assigns. CORDANCE may assign this Agreement, in whole or part, provided said assignee assumes all of the obligations related to the subject matter assigned. Except as expressly provided herein, neither party shall transfer, assign or subcontract any right or obligation hereunder without the prior written consent of the other party, such consent not to be unreasonably withheld, except that no approval will be required for a sale of all or substantially all of the stock or assets of CORDANCE.
11.11. Force Majeure.
Neither party shall be liable for any delay or failure to meet its obligations pursuant to this Agreement due to natural circumstances beyond its reasonable control, including, but not limited to war, riots, insurrection, civil commotion, fire, flood, storm or inability to obtain necessary labor, materials or manufacturing facilities as a direct result of such disasters.
11.12. Notices.
All notices and other communications required hereunder shall be in writing and shall be sent by personal delivery, telecopy, registered or certified mail (postage prepaid and return receipt requested) or by reputable overnight courier to the party’s principal address, or such other mailing address as either of the parties shall subsequently provide the other in writing.
11.13. No Partnership.
This Agreement does not create or constitute a partnership, joint venture or other entity for tax or other purposes. All decisions regarding effectuation of this Agreement and any action to be taken hereunder shall be solely at the discretion of the party making such decision. Neither party shall hold itself out as an agent of the other. Neither party shall have any authority to bind or obligate the other in any manner.
11.14. Breach.
If either party fails to perform under this Agreement or shall cause the other party to become liable or damaged under the terms of this Agreement, or shall do any act, which may be reasonably construed as a breach, any such action shall be construed as a breach of this Agreement. Any breach under this Agreement shall allow the non-breaching party to pursue all available remedies against the breaching party.
11.15. Survival.
Notwithstanding termination of any Exhibit agreement, those rights and obligations under this Agreement, which by their nature should survive (e.g., warranty and indemnification), will remain in effect after termination or expiration hereof.
11.16.Governing Law.
This Agreement shall for all purposes be governed by and interpreted in accordance with the laws of the State of Virginia , USA , excluding Virginia law based on the Uniform Computer Information Transactions Act. Each party irrevocably consents to jurisdiction and venue in the federal court sitting in King County , Washington , and waives any defense of forum non conveniens. In the interest of assuring federal jurisdiction, XDI.ORG will exercise its best efforts to assign its rights and obligations under this Agreement to a corporate body established under the laws of a jurisdiction other than Washington within 90 days after the Effective Date of this Agreement.
11.17. Counterparts & Facsimile.
This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute one and the same instrument. Each party shall receive a duplicate original of the counterpart copy or copies executed by it. A facsimile copy of this Agreement, including the signature pages hereto, shall be deemed to be an original.
11.18. Amendments.
This Agreement may only be amended by mutual written agreement between the Parties. Any terms not specified herein or in the XDI Intellectual Property Rights Agreement executed as partial consideration herewith, shall be resolved between the parties as the need arises.
11.19.Exhibits.
The following Exhibits are attached hereto and incorporated by reference: Exhibit A – Definitions, Exhibit B – Maximum Service Fees for Fee-based Services.
MUTUAL CONSENT: WE THE UNDERSIGNED AS PARTIES TO THIS AGREEMENT AGREE TO THE TERMS AS SET FORTH ABOVE AND INTEND TO BE LEGALLY BOUND BY THESE TERMS, AS OF THE DATE FIRST WRITTEN ABOVE.
EXHIBIT A - DEFINITIONS
1. Conformance Attestation
A collection of assertions in machine-readable XDI format (and including or linked to an equivalent human-readable format) by a licensee of conformance to the Technical Specifications, including identification of the version(s) of the Technical Specifications implemented, the features implemented, the interoperability testing performed, or other such assertions as may be determined from time to time by XDI.ORG to be in the best interests of the XDI Community to ensure the interoperability and integrity of XDI infrastructure.
2. Designated Global Services
i-name Services, i-number Services, Directory Services, Reputation Services, and Public Resolver Services as defined herein.
3.Directory Services
The Global Service of cross-referencing XRIs and XDI Resources in order to facilitate discovery, identification, and location of an XDI Resource by its associated XDI Resources. There are three Global Directory Services: Personal Directory Service, Organizational Directory Service, and General Directory Service.
4. i-name Services
The Global Service of registering, reserving, reassigning, and resolving reassignable XRIs via Registries represented by the Global Context Symbols as defined by the XRI specifications. There are three Global i-name Services: Personal i-name Service, Organizational i-name Service, and General i-name Service.
5. i-number Services
The Global Service of registering, resolving, and retiring persistent XRIs via Registries represented by the Global Context Symbols ersistent idenimbol "d asible, publication?and n him today to lock in a rate (a key unemployment report comes out tomorrow thatas defined by the XRI specifications. There are three Global i-number Services: Personal i-number Service, Organizational i-number Service, and General i-number Service.
6. Field of Use
The development and exploitation of computer programs to the extent that they conform to the Technical Specifications as first delivered and/or subsequently modified.
7. General Dictionary
The collection of XDI Resources representing General Resources and their definitions and relationships in taxonomies and ontologies as established and maintained by XDI.ORG to facilitate global data sharing by all members of the XDI Community.
8.General Resource
An XDI Resource that is not a Personal Resource or Organizational Resource, i.e., any generic concept, subject, or topic whose identity is defined by linguistic, cultural, or scientific convention.
9. General Service
A Global Service for General Resources identified using the Global Context Symbol “+”.
10.Global Context Symbols (GCS)
As defined in the XRI Specifications, the XRI syntax characters specified to represent abstract global authority types, specifically “=” for personal authorities, “@” for organizational authorities, “+” for general authorities, and “$” for specification authorities.
11. Global Service Provider (GSP)
A licensed subcontractor of XDI.ORG that provides Global Services.
12.Global Service Specifications
The specifications published by XDI.ORG governing the operation of each Global Service, including the specifications for Conformance Attestations and other mechanisms for ensuring interoperability, to be initially provided to XDI.ORG, in each case, by the primary GSP for the applicable Global Service prior to the commencement of such Global Service.
13.Global Services
The set of XDI interactions that shall be offered by XDI.ORG to all members of the XDI Community to facilitate interoperability of XDI infrastructure, including but not limited to the Designated Global Services.
14. Intellectual Property Rights
All rights in patent, trademark, copyright, trade secret and know-how.
15. OASIS
The Organization for the Advancement of Structured Information Standards, a non-profit standards body for XML e-business standards. See http://www.oasis-open.org.
16. Open Source License
A license certified by the Open Source Initiative or any equivalent license that does not restrict the open public review, modification, and evolution of the source code of a product or service.
17. Open Standard
As defined on June 8, 2004 at http://www.perens.com/OpenStandards/Definition.html, a specification whose licensing ensures that it is publicly available to implement, that it maximizes end-user choice of vendors and implementations, that it does not require a royalty or fee to implement with the potential exception of compliance certification, that it does not discriminate against vendors or implementations, and that it permits extensions or subsets that are consistent with the standard yet may preclude predatory "embrace and enhance" practices.
18. Organizational Resource
An XDI Resource representing any legal entity that is not a Personal Resource.
19. Organizational Service
A Global Service for Organizational Resources identified using the Global Context Symbol “@”.
20. Patent Rights
(1) United States letter of patent issued under numbers 5,862,325; 6,044,205; 6,088,717 and 6,345,288 (2) any and all United States or foreign letter of patent, utility models and/or application therefore, claiming priority, in whole or in part, from any of the letters of patent identified herein in (1) of this definition; (3) any and all divisionals, continuations, continuations in part, continued prosecution applications, reexamination, reissues, additional or extension of any of the letters of patent or utility models identified herein in (1) and (2) of this definition.
21. Personal Resource
An XDI Resource representing a natural-born person.
22. Personal Service
A Global Service for Personal Resources identified using the Global Context Symbol “=”.
23. Public Resolver Services
The Global Service of providing XRI resolution of globally-registered XRIs via one or more publicly available network endpoints. There are two Global Public Resolver Services: Standard Public Resolver Service, which provides resolution service conformant to the XRI Generic Syntax and Resolution Specification, and Trusted Public Resolver Service, which provides resolution service conformant to the XRI Trusted Resolution Specification.
24. Registrant
A member (individual or organization) of the XDI Community that enrolls with a Registrar to obtain Global Services.
25. Registrar
An XDI service provider registered with a Global Service Provider to provide the service of enrolling Registrants to obtain Global Services for which registration is required.
26. Registry
The XDI Resource maintained by a Global Service Provider to provide Global Services requiring registration and resolution of XRIs.
27. Reputation Services
The Global Service of aggregating feedback on XDI Resources by other XDI Resources to enable discovery, identification, location, and evaluation of a Resource by its reputation. There are three Global Reputation Services: Personal Reputation Service, Organizational Reputation Service, and General Reputation Service.
28. Resource
As defined in the OASIS XRI Generic Syntax and Resolution Specification 1.0, “anything that can be named or described.”
29. Technical Specifications
The technical specifications defining and governing the interoperability of XDI infrastructure, including the specifications for Conformance Attestations and any other mechanisms for ensuring interoperability and integrity, as originally submitted by CORDANCE to XDI.ORG and subsequently modified, amended, revised or enhanced in accordance with the terms set forth in this Agreement.
30. XDI
XRI Data Interchange as defined by the XDI Specifications.
31. XDI Resource
A Resource identified with at least one XRI that supports interactions via XDI.
32. XDI Specifications
The Open Standard specifications for a generalized, extensible service for sharing, linking, and synchronizing XDI Resources as designated from time to time by XDI.ORG; currently the specifications published by the OASIS XDI Technical Committee.
33. XNS
Extensible Name Service, the name used for the first set of Technical Specifications submitted by OneName (predecessor to CORDANCE) to XNSORG (predecessor to XDI.ORG).
34. XNS Public Trust Organization (XNSORG)
The original legal name for XDI.ORG and its successors in interest.
35. XRI
An Extensible Resource Identifier as defined by the XRI Specifications.
36. XRI Specifications
The Open Standard specifications for abstract identifiers used by XDI technology as designated from time to time by XDI.ORG; currently the specifications published by the OASIS XRI Technical Committee.
Exhibit B: Maximum Service Fees for Fee-based Services
Personal I-Name Service
| Total Cumulative Registrations | Annual Maximum Service Fee (USD) per Registration |
| Less than 5 Million $ | 5.40 each per year |
| 5-Less than 10 Million $ | 4.60 each per year |
| 10-Less than 15 Million $ | 4.20 each per year |
| 15-20 Million $ | 3.80 each per year |
| Over 20 Million $ | 3.40 each per year |
Organizational I-Name Service
| Total Cumulative Registrations | Annual Maximum Service Fee (USD) per Registration |
| Less than 1 Million | $ 22.00 each per year |
| 1-Less than 3 Million | $ 19.50 each per year |
| 3-Less than 5 Million | $ 17.50 each per year |
| 5-10 Million | $ 15.50 each per year |
| Over 10 million | $ 13.50 each per year |
Personal Directory Service
| Total Cumulative Registrations | Annual Maximum Service Fee (USD) per Registration |
| Less than 5 Million | $ 2.60 each per year |
| 5-Less than 10 Million | $ 2.30 each per year |
| 10-Less than 15 Million | $ 2.10 each per year |
| 15-20 Million | $ 1.90 each per year |
| Over 20 Million | $ 1.70 each per year |
Organizational Directory Service
| Total Cumulative Registrations | Annual Maximum Service Fee (USD) per Registration |
| Less than 1 Million | $ 22.00 each per year |
| 1-Less than 3 Million | $ 19.50 each per year |
| 3-Less than 5 Million | $ 17.50 each per year |
| 5-10 Million | $ 15.50 each per year |
| Over 10 million | $ 13.50 each per year |
Personal Reputation Service
| Total Cumulative Registrations | Annual Maximum Service Fee (USD) per Registration |
| Less then 5 Million | $ 5.40 each per year |
| 5-Less than 10 Million | $ 4.60 each per year |
| 10-Less than 15 Million | $ 4.20 each per year |
| 15-20 Million | $ 3.80 each per year |
| Over 20 Million | $ 3.40 each per year |
Organizational Reputation Service
| Total Cumulative Registrations | Annual Maximum Service Fee (USD) per Registration |
| Less than 1 Million | $ 44.00 each per year |
| 1-Less than 3 Million | $ 38.50 each per year |
| 3-Less than 5 Million | $ 35.00 each per year |
| 5-10 Million | $ 31.00 each per year |
| Over 10 million | $ 27.50 each per year |
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