Brandings Purchase Agreement

This Brandings Purchase Agreement document contains two separate Agreements. The terms and conditions for purchase of pre-developed names are articulated in Agreement One: Pre-Developed Name Purchase Agreement. The terms and conditions for the purchase of custom-developed company naming services are articulated in Agreement Two: Custom Naming Service Agreement. Agreement One shall be valid and binding for the purchase of pre-developed names. Agreement Two shall be valid and binding for the purchase of custom naming services.

Agreement One: Pre-Developed Name Purchase Agreement

This Purchase Agreement, hereinafter referred to as Agreement, shall be by and between Brandings (a wholly owned subsidiary of the Educational Assistance Council, Inc.) hereinafter referred to as Seller and the entity whose name appears on the Order Confirmation, hereinafter referred to as Buyer. The term “pre-developed” shall hereinafter refer to the name inventory cataloged on Brandings internet website www.brandings.com. The term “domain name,” “domain names,” “name,” or “names” shall hereinafter be referred to as Domain Name.

This Agreement shall be valid and binding for the purchase of pre-developed names.

By clicking the “Confirm Order” button below, and acknowledging the receipt and agreement to said terms and conditions, Buyer is entering into a valid and binding contract which grants certain rights and makes commitments to certain obligations.

Buyer and Seller represent and warrant they are duly authorized to execute and enter into this Agreement. Both Buyer and Seller agree not to make any fraudulent or false statements or misrepresentations regarding this Agreement.

Both parties agree that this Agreement will become effective upon the Buyer clicking the “Confirm Order” button showing acceptance of this Agreement and the terms herein.

Seller agrees to sell to Buyer, and Buyer agrees to purchase all rights, title and interest that Seller possesses for the Domain Name.

Seller represents and warrants that it is the current registrant or agent of this Domain Name through ICANN (The Internet Corporation for Assigned Name & Numbers).

Seller represents and warrants that title to the Domain Name is free and clear of any and all liens and encumbrances, and that Seller has full legal right, power and authority to sell, assign and transfer Domain Name.

Seller has not granted any third party a right or option to use or buy this Domain Name. Seller further represents and warrants that it does not possess a registered trademark for this Domain Name and has not applied for, nor has filed a trademark registration application (domestic or foreign) for the Domain Name.

As consideration, Buyer will pay Seller the sum that appears on the Order Confirmation, as the total purchase price for the Domain Name.

Buyer represents and warrants that (i) any credit information supplied is true and complete, (ii) charges incurred by Buyer will be honored by Buyer’s credit card company, and (iii) Buyer will pay the charges incurred at the posted prices.

All payments shall be made in US dollars. Foreign currency conversions on the Brandings.com website are presented for illustration purposes only. Payments are due immediately and all sales are final. There are no refunds or returns.

The only asset transferred in this Agreement is the Seller’s entire right, title, and interest in the Domain Name including any trademark rights and internet traffic. Seller agrees to initiate, and Buyer agrees to accept, transfer of the Domain Name. Buyer is to choose a registrar, and notify Seller within 30 (thirty) days of the execution of this Agreement. Buyer is responsible for registration fees, renewal fees and other expenses in connection with the transfer of this Domain Name.

Buyer understands that all names registered through an ICANN (The Internet Corporation for Assigned Name & Numbers) registrar are subject to the UDRP (Uniform Dispute Resolution Policy) and the Buyer is familiar with this and has read, understands and agrees to abide with this policy.

Upon request by Buyer, Seller will transfer a Design Concept to Buyer. Buyer shall request transfer of Design Concept within 30 (thirty) days of the execution of this Agreement. The Design Concept is an optional element of this Agreement. A preliminary initial Design Concept for the Domain Name is displayed in the Seller’s on-line catalog and is presented for illustration purposes only. Modification will be made to the initial Design Concept by Seller at Seller’s sole discretion prior to transfer to Buyer. Seller shall not provide a discount or allowance to Buyer should Buyer elect not to request the Design Concept.

Upon request by Buyer, Seller will transfer the rights and benefits of an Initial Website hosted by SmartName, or similar outsource website provider. Buyer shall request information and transfer data for the Initial Website within 30 (thirty) days of the execution of this Agreement. The Initial Website is an optional element of this Agreement. Seller at Seller’s sole discretion may provide Buyer additional website information including webpage designs, page layouts, website graphics, website databases, online forms, search engine optimization actions, and banner advertisements. Seller shall not provide a discount or allowance to Buyer should Buyer elect not to request the Initial Website.

Seller assumes no liability or risk of loss with the Domain Name. Buyer acknowledges buying the Domain Name “as-is” and Buyer assumes the entire burden of due diligence. Buyer agrees to hold Seller harmless and assumes all risks and liability as a result of any claims of infringement, third party claim to said Domain Name or any other claims associated with the transfer and ownership of the Domain Name.

Buyer expressly agrees that it is purchasing the Domain Name at its sole risk. Seller expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to, any implied warranty of merchantability, or fitness for any particular purpose. Seller does not make any warranty that the Domain Name will meet Buyer’s requirements, or that Buyer will be able to attain any specific results or value associated with the Domain Name or use thereof. Seller makes no representation as to the suitability of a name with application in a particular industry or market or for use in a category of good or service articulated in the International Classification of Goods & Services. Buyer is strongly encouraged to seek counsel to determine suitability and all use and trademark matters.

This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns.

This Agreement constitutes the sole and entire Agreement of the parties with respect to the matters contained herein, and any representation, inducement, promise, or Agreement, whether oral or written, which pertains to such matters and is not embodied herein, shall be of no force or effect. This Agreement may be amended only by writing signed by the parties hereto and may not be assigned by any party without the express written consent of the other parties hereto. If a provision in this Agreement, in full or in part, should be found to be invalid or rendered invalid by a court of jurisdiction, the validity of the rest of this contract will not be affected. The ineffective provision shall be replaced by a valid one that closely approaches the ineffective provision.

Buyer agrees to indemnify and hold Seller, and its partners, agents, officers, directors, employees, subcontractors, successors, assigns, third party suppliers of information and documents, attorneys, advertisers, product and service providers, and affiliates harmless from any liability, loss, claim and expense, including reasonable attorney fees, related to violation of this Agreement.

Seller shall be excused from the performance of its obligation under this Agreement in the event such performance is prevented by causes beyond its control, including without limitation, unforeseen circumstances causing the disruption of services provided through Seller functional activities; disruption of services provided via the Internet; disruption of access to Seller’s website; acts of God; acts, regulations or laws of any government; war; civil commotion; destruction of service facilities or materials by fire, earthquake or storm; epidemics; labor strikes; and failure of common carriers, and such performance shall be excused.

This Agreement shall be treated as though it were executed and performed in Palm Springs, California, and shall be governed by and construed in accordance with the laws of the State of California (without regard to conflict of law principles). The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against any party. Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. To the extent that anything in is in conflict or inconsistent with this Agreement, this Agreement shall take precedence. Seller’s failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. Seller’s rights under this Agreement shall survive any termination of this Agreement.

Any legal controversy or legal claim arising out of or relating to this Agreement or Seller’s services, excluding legal action taken by us to collect or recover damages for, or obtain any injunction relating to intellectual property and services, shall be settled solely by binding arbitration in accordance with the commercial arbitration rules of JAMS Mediators and Arbitrators. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in the Southwest Region, Los Angeles, California, office and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Each party shall bear one-half of the arbitration fees and costs incurred through JAMS. This Agreement may be amended electronically or in writing when accepted by both parties.

Agreement Two: Custom Naming Service Agreement

This Agreement sets forth the terms and conditions of Seller’s Custom Developed Naming Services (hereinafter referred to as “Custom Naming Services”) and explains Seller’s obligations to Buyer and Buyer’s obligations to Seller in relation to the Custom Naming Services to be provided. The term “domain name,” “domain names,” “name,” or “names” shall hereinafter be referred to as Name.

Buyer is entering into a valid and binding contract which grants certain rights and makes commitments to certain obligations.

Both parties agree that this Agreement will become effective upon the Buyer clicking the “Confirm Order” button showing acceptance of this Agreement and the terms herein.

Seller provides three Custom Naming Services: Start-Up 20, Start-Up 50, Corporate Custom Naming. Package components are subject to change with notice. Upon receipt of payment, Seller will provide Buyer with a Naming Questionnaire to be completed by Buyer. It is the responsibility of Buyer to complete and return the Naming Questionnaire. Package components are enumerated as follows:

A. Start-Up 20 Custom Naming Service: Buyer will receive a Naming Recommendation Report containing a minimum of 20 (twenty) business names with matching dot-com domain names. Upon receipt of payment, Seller will provide Buyer with a Naming Questionnaire that is to be completed and returned to Seller. Seller shall assemble a project naming team to facilitate the fulfillment of Custom Naming Services. Seller shall provide Buyer with Naming Recommendation Report within 3 (three) business days commencing the day following receipt of Naming Questionnaire by Seller.

B. Start-Up 50 Custom Naming Service: Buyer will receive a Naming Recommendation Report containing a minimum of 50 (fifty) business names with matching dot-com domain names. Upon receipt of payment, Seller will provide Buyer with a Naming Questionnaire that is to be completed and returned to Seller. Seller shall assemble an project naming team to facilitate the fulfillment of Custom Naming Services. Seller shall provide Buyer with Naming Recommendation Report within 3 (three) business days commencing the day following receipt of Naming Questionnaire by Seller.

C. Corporate Custom Naming Service: Seller will conduct an initial consultation to gain an understanding of the Buyer’s current business, current business strategy, vision of the future, business proposition, the benefits the firm provides, and the key elements of the company’s competitive advantage. Seller will develop a minimum of 100 (one hundred) names and shall present Buyer with a Naming Recommendation Report containing an initial list of 20 (twenty) naming recommendations. The initial set of naming recommendations shall be provided within 5 (five) business days upon receipt of Naming Questionnaire by Seller. At Buyer’s request, Seller will provide additional lists of naming recommendations. Seller will conduct a search with the U.S. Patent and Trademark Office to determine if there is an “exact match” with the final name recommendation.

As consideration for the Intellectual Property and/or Services purchased by Buyer and provided to Buyer by Seller, Buyer agrees to pay Seller prior to commencement of service. All fees are due immediately and are non-refundable unless otherwise expressly noted.

If for any reason Seller is unable to charge Buyer’s Payment Method for the full amount owed Seller for the Services provided, or if Seller is charged a penalty for any fee it previously charged to Buyer’s Payment Method, Buyer agree that Seller may pursue all available remedies in order to obtain payment. If Buyer pays by credit card and if for any reason Seller is unable to charge Buyer’s credit card with the full amount of the Services provided, or if Seller is charged back for any fee it previously charged to the credit card Buyer provided, Buyer agree that Seller may pursue all available remedies in order to obtain payment. Buyer agrees that among the remedies Seller may pursue in order to effect payment, shall include but will not be limited to, immediate cancellation without notice to Buyer of any Intellectual Property or Services registered or renewed on Buyer’s behalf. Seller reserves the right to charge a reasonable administrative fee for administrative tasks outside the scope of its regular Services, including additional costs that it may incur in providing the Services and pass along to Buyer. These include, but are not limited to, customer service issues that cannot be handled over email but require personal service, fees incurred by third parties Buyer have elected to use as payment methods and disputes that require legal services. These charges will be billed to the Payment Method on file for Buyer. By using Seller’ pay by check option (“Pay By Check”), Buyer can purchase Intellectual Property and/or and Services using a business or personal check. Check may not be for less than the full amount required at that time. All personal checks may be delayed up to fourteen (14) days until the money is credited, which may delay Buyer’s usage of the Intellectual Property and/or Services. The checking account must be at a financial institution in the United States, and the check must be payable in U.S. dollars. Buyer agrees that if the EFT or bank draft is returned unpaid, Buyer will pay a service charge of $25.00 or the maximum amount allowed by law, which may be debited from Buyer’s account using an EFT or bank draft.

For convenience, services may be priced in foreign currency, however all transactions are made in US dollars, Seller may provide an estimated conversion price to currencies other than US dollars. Buyer acknowledges and agrees that the pricing displayed during the checkout process is an estimate. Due to potential slight time delays between actual purchase and the payment settlement, the actual price charged may fluctuate. Accordingly, Seller makes no representations or warranties that the actual price will be the same or substantially similar to the actual price Buyer will pay and Buyer waive any and all claims based upon any discrepancy between the estimate and the actual price. In addition, Buyer may be charged VAT, based on the country indicated in Buyer’s billing address section. Any amounts to be charged will appear during the checkout process.

Seller hereby represents and warrants to Buyer that it has full corporate power and authority to enter into this Agreement to which it is or will be a party, to perform its obligations hereunder and to carry out the transactions contemplated hereby and thereby. No further representations or warranties are made or expressed. All Intellectual Property and Services are sold “As Is.” Seller expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non-infringement. Seller makes no warranty that its service(s) will meet Buyer’s requirements, or that the service(s) will be uninterrupted, timely, secure, or error free, or that defects will be corrected. Seller does not warrant, nor make any representations regarding the use, or results of, any of the services it provides, in terms of their correctness, accuracy, reliability, or otherwise.

Seller makes no representation as to the suitability of a brand name with application in a particular industry or market or for use in a category of good or service as articulated in the International Classification of Goods & Services. Seller strongly encourages Buyer to seek counsel to determine mark suitability and other trademark matters.

Seller makes no representation as to the full right of use of patents, trademarks, service marks, trade names, and copyrights used in the business of Seller as currently conducted. No claims have been asserted by any person to the use of any such patents, trademarks, service marks, trade names, copyrights, technology, know-how, recipes, or processes, or challenging or questioning the validity or effectiveness of any such license or agreement, and Seller knows of no valid basis for any such claims. Seller has not received any notice or is aware of any facts or alleged facts indicating that the use of such patents, trademarks, service marks, trade names, copyrights, technology, know-how, recipes, or processes by Seller infringes on the rights of any other person.

Seller is not in violation of, has not been charged with any violation of, or, to the best of its knowledge, is not under any investigation with respect to any charge concerning any violation of any Requirements of Law, in which such violation either singly or in the aggregate with other violations would have a material adverse effect upon the operations, assets, business or financial condition of Seller. Seller is not in default with respect to any order, writ, injunction, or decree of any court, agency, or instrumentality.

The confidential information to be disclosed to Seller by Buyer includes technical and business information relating to Buyer’s proprietary ideas, patentable ideas copyrights and/or trade secrets, existing and/or contemplated products and services, software, schematics, research and development, production, costs, profit and margin information, finances and financial projections, customers, buyers, marketing, and current or future business plans and models, regardless of whether such information is designated as “Confidential Information” at the time of its disclosure. Seller shall use the Confidential Information only for the purpose of performing Services for Buyer. Seller shall limit disclosure of Confidential Information within its own organization to its directors, officers, partners, members and/or employees having a need to know and shall not disclose Confidential Information to any third party (whether an individual, corporation, or other entity) without the prior written consent of Buyer. Seller shall have satisfied its obligations under this paragraph if it takes affirmative measures to ensure compliance with these confidentiality obligations by its employees, agents, consultants and others who are permitted access to or use of the Confidential Information. This Agreement imposes no obligation upon Seller with respect to any Confidential Information (a) that was in Seller’ possession before receipt from Buyer; (b) is or becomes a matter of public knowledge through no fault of Seller; (c) is rightfully received by Seller from a third party not owing a duty of confidentiality to the Buyer; (d) is disclosed without a duty of confidentiality to a third party by, or with the authorization of, Buyer; or (e) is independently developed by Seller.

Seller makes no representation as to the approvals, authorizations, consents, licenses, franchises, orders, and other permits of any governmental or regulatory agency, whether federal, state, local or foreign, and all trade or industry associations, required to carry on its business as presently conducted, all of which are in full force and effect.

No broker or finder has acted directly or indirectly for the Buyer or Seller or any of their Affiliates in connection with this Agreement or the transactions contemplated hereby, and no broker or finder is entitled to any brokerage or finder’s fee or other commission in respect thereof based in any way on the actions or statements of, or agreements, arrangements, or understandings made with the Buyer or Seller or any of its affiliates.

Seller shall have performed and complied in all material respects with all agreements, obligations, and conditions required by this Agreement in a timely manner, in consultation with Buyer. All intellectual property and design elements remain the property of Seller until final design approval of Buyer.

Failure by Buyer or Seller to exercise or enforce any right or provision of this Agreement shall not be deemed to be a waiver of such right or provision and does not affect the right to require any provision to be performed at any time thereafter.

The terms of this Agreement are severable. If any term or provision is declared invalid or unenforceable, it shall be severed from this Agreement and shall not affect the interpretation or operation of the remaining terms or provisions, which shall remain in full force and effect.

Seller will make every effort to keep its web site and other services operational. However, certain technical difficulties and other factors outside of its control may, from time to time, result in temporary service interruptions. Buyer agrees not to hold Seller liable for any of the consequences of such interruptions.

Nothing in this Agreement, express or implied, is intended to confer upon any third party any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

Seller and any affiliated party shall not be liable for any loss, injury, claim, liability, or damage of any kind resulting in any way from (a) any errors in or omissions from the site or any services or products obtainable, (b) the unavailability or interruption of the site or any features thereof, (c) Buyer’s use of the site, (d) the content contained on the site, or (e) any delay or failure in performance beyond the control of a covered party. The aggregate liability of Seller and the affiliated parties in connection with any claim arising out of or relating to the site and/or the services, products, information or documents provided herein or hereby shall not exceed $1.00 and that amount shall be in lieu of all other remedies which Buyer may have against Seller and/or any affiliated party.

This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, but neither this Agreement nor any of the rights, interest, or obligations hereunder shall be assigned by any of the parties hereto without the prior written consent of all the other parties.

This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement shall be treated as though it were executed and performed in Palm Springs, California, and shall be governed by and construed in accordance with the laws of the State of California (without regard to conflict of law principles). Any cause of action by Buyer with respect to the this Agreement (and/or any information, Documents, products or services related thereto) must be instituted within one (1) year after the cause of action arose or be forever waived and barred.

The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against any party. This Agreement and all incorporated agreements and Buyer’s information may be automatically assigned by us in our sole discretion to a third party in the event of an acquisition, sale or merger. Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. To the extent that anything in or associated with the purchase is in conflict or inconsistent with this Agreement, this Agreement shall take precedence. Seller’ failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. Seller’ rights under this Agreement shall survive any termination of this Agreement.

Any legal controversy or legal claim arising out of or relating to this Agreement or our services, excluding legal action taken by us to collect or recover damages for, or obtain any injunction relating to, site operations, intellectual property, and our services, shall be settled solely by binding arbitration in accordance with the commercial arbitration rules of JAMS Mediators and Arbitrators. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in the Southwest Region, Los Angeles, California, office and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Each party shall bear one-half of the arbitration fees and costs incurred through JAMS. This Agreement and the legal relations between the parties hereto shall be governed by, and construed in accordance with, the laws of the State of California without reference to the conflict of laws principles thereof.

This Agreement constitutes the entire agreement between the Buyer and Seller regarding the provision of the Intellectual Property and/or Services and supersedes all prior agreements and understandings, whether established by custom, practice, policy, or precedent. This Agreement may be amended electronically or in writing when accepted by both parties.

If you have any questions concerning these agreements, call or e-mail our Brandings Client Services Staff today. Call 1-800-852-8900 or Contact Brandings