Tentative Agreements among ICANN, the U.S. Department of Commerce, and Network Solutions, Inc.
(Posted September 28, 1999)
[Note: ICANN has posted the following document for public review and comment. To submit comments, click here.]
Amendment 19 to Cooperative Agreement # NCR 92-18742
1) The "Expiration Date" is the date specified in Section I.B.10 below.
2) "Accredited Registrar" means an individual or entity accredited by ICANN, or another entity designated by the Department of Commerce, to provide registrar services in the Registry TLDs.
3) "ICANN" refers to the Internet Corporation for Assigned Names and Numbers, and its successors and assigns.
4) "NSI" refers to Network Solutions, Inc., and its successors and assigns.
5) "Other Services" means all services provided by NSI under this Cooperative Agreement other than Registrar Services or Registry Services, including specific obligations of NSI under Section I below and the provisions in Amendment 11 to this Agreement labeled "Assistance to NewCo," "Root Servers," "Existing NSI Customers," and "New Contracts."
6) "Personal Data" refers to data about any identified or identifiable natural person.
7) "Registrar Accreditation Agreement" means the ICANN-NSI Registrar Accreditation Agreement entered into contemporaneously with this Agreement, as it may be amended from time to time.
8) "Registrar Services" mean services provided under this Cooperative Agreement of the type provided by NSI under the Registrar Accreditation Agreement.
9) "Registry Agreement" means the ICANN-NSI Registry Agreement entered into contemporaneously with this Agreement, as it may be amended from time to time.
10) "Registry Data" means all data maintained in electronic form in the registry database, and shall include Zone File Data, all data submitted by registrars in electronic form, and all other data concerning particular registrations or nameservers maintained in electronic form by the registry.
11) "Registry Services" means all services provided under this Cooperative Agreement of the type provided by NSI under the Registry Agreement.
12) "Registry TLDs" refers to the .com, .net, and .org TLDs.
13) "SLD" refers to a second-level domain in the Registry TLDs.
14) "Term of this Agreement" runs through the earlier of the expiration or termination of this Amendment.
15) "TLD" refers to a top-level domain in the Internet domain name system.
16) "Zone File Data" means all data contained in domain name system zone files for the Registry TLDs as provided to TLD nameservers on the Internet.
The Department of Commerce and NSI agree as follows:
1. ICANN as NewCo
NSI recognizes ICANN as NewCo in accordance with the provisions of Amendment 11. "ICANN" shall replace the term "NewCo" wherever such reference appears in Amendment 11 to the Cooperative Agreement.
2. NSI Relationship with ICANN
4. Other Obligations of the Parties
5. Assignment of Registry Assets
NSI may assign and transfer its registry assets in connection with the sale of its registry business or for any other purpose only with the prior, written approval of the Department of Commerce, said approval not to be unreasonably withheld. Upon the approval of the Department of Commerce, appropriate provisions of the Cooperative Agreement may be assigned provided that the purchaser has agreed in a document of sale for NSIís registry assets to assume NSIís obligations with respect to the provision of Registry Services.
7. Specific Performance
During the Term of this Agreement, the Department of Commerce may seek specific performance of any provision of this Agreement, provided the Department is not in material breach of its obligations hereunder. This provision shall not entitle the Department of Commerce to seek specific performance of the Registry Agreement. This provision shall not entitle the Department of Commerce to seek specific performance of the Registrar Accreditation Agreement unless and until and for so long as such agreement has been assigned to the Department of Commerce by ICANN.
9. Compliance with Section II of this Amendment
While the Registry Agreement remains in effect, NSI shall not be obligated to comply with the provisions of Section II of this Amendment. Upon termination (i) by NSI of the Registry Agreement pursuant to Section 14 of that agreement, (ii) due to the withdrawal of the Departmentís recognition of ICANN as described in Section 24 of that agreement, or (iii) by NSI with the approval of the Department of Commerce under Section 16(c) of that agreement, NSI shall no longer be required to comply with the Registry Agreement and NSIís obligations under Section II of this Amendment shall take immediate effect without further action by the Department of Commerce or NSI.
10. Expiration Date
The Expiration Date of this Agreement shall be four years after the date this Amendment is signed, unless extended as provided below. In the event that NSI completes the legal separation of the ownership of its Registry Services business from its registrar business by divesting all the assets and operations of one of those businesses, within 18 months after the date of this Amendment to an unaffiliated third party that enters an agreement enforceable by the Department of Commerce (i) not to be both a registry and a registrar in the Registry TLDs, and (ii) not to control, own or have as an affiliate any individual(s) or entity(ies) that, collectively, act as both a registry and a registrar in the Registry TLDs, the Expiration Date shall be extended for an additional four years, resulting in a total term of eight years. For the purposes of this Section, "unaffiliated third party" means an entity in which NSI (including its assigns, subdivisions, and divisions, and their respective directors, officers, employees, agents and representatives), does not have majority equity ownership or the ability to exercise managerial or operational control, either directly or indirectly through one or more intermediaries. "Control," as used in this Section I.B.10, means any of the following: (1) ownership, directly or indirectly, or other interest entitling NSI to exercise in the aggregate 25% or more of the voting power of an entity; (2) the power, directly or indirectly, to elect 25% or more of the board of directors (or equivalent governing body) of an entity; or (3) the ability, directly or indirectly, to direct or cause the direction of the management, operations, or policies of an entity.
11. Other Top Level Domains
Until such time as the Department of Commerce designates successor registries for the .edu and .us top level domains, NSI shall continue to provide Registry and, as appropriate, Registrar Services for such domains at no cost to the U.S. Government in the manner and at the funding level that these services are now provided. Upon the designation by the Department of Commerce of successor registries, which shall take place within 12 months of the date of this agreement, NSI shall cooperate with the Department of Commerce and the successor registries to facilitate the smooth transition of operation of these top level domains. With respect to the transfer of .edu, such cooperation shall include timely transfer to the successor registry of an electronic copy of the top level domain database and a full specification of the format of the data. After such transfers, NSI shall be relieved of further obligations for these domains under this Agreement, and NSI shall no longer be the registry for these domains.
The Department of Commerce and NSI agree as follows:
1. NSI Obligations
During the Term of this Agreement:
2. Data Escrow
NSI shall deposit into escrow all Registry Data on a schedule (not more frequently than weekly for a complete set of Registry Data, and daily for incremental updates) and in an electronic format mutually approved from time to time by NSI and the Department of Commerce, such approval not to be unreasonably withheld by either party. The escrow shall be maintained, at NSIís expense, by a reputable escrow agent mutually approved by NSI and the Department of Commerce, such approval also not to be unreasonably withheld by either party. The escrow shall be held under an agreement among NSI, the Department of Commerce, and the escrow agent providing that (A) the data shall be received and held in escrow, with no use other than verification that the deposited data is complete and in proper format, until released to the Department of Commerce; (B) the data shall be released to the Department of Commerce upon termination by the Department of Commerce of this Agreement or upon its expiration if (1) this Agreement has not sooner been terminated and (2) NSI has not been designated as the successor registry as the result of a competitive action or other transaction in accordance with applicable federal law and regulations.
3. NSI Handling of Personal Data
NSI agrees to notify registrars sponsoring registrations in the registry of the purposes for which Personal Data submitted to the registry by registrars is collected, the recipients (or categories of recipients) of such Personal Data, and the mechanism for access to and correction of such Personal Data. NSI shall take reasonable steps to protect Personal Data from loss, misuse, unauthorized disclosure, alteration or destruction. NSI shall not use or authorize the use of Personal Data in a way that is incompatible with the notice provided to registrars.
4. Publication by NSI of Registry Data
5. Performance and Functional Specifications for Registry Services
Unless and until otherwise directed by the Department of Commerce, NSI shall provide registry services to Accredited Registrars meeting the performance and functional specifications set forth in the SRS specification then in place under the Registry Agreement. In the event the Department directs different performance and functional standards for the registry, NSI shall comply with those standards to the extent practicable, provided that compensation pursuant to the provisions of II.7 of this Agreement has been resolved prior to implementation and provided further that NSI is given a reasonable time for implementation.
NSI shall take all reasonable steps to ensure the continued operation, functionality, and accessibility of the Shared Registration System. In the event of operational instability or for the purpose of system maintenance, NSI may temporarily limit Accredited Registrarís access to the Shared Registration System on an equitable basis, in which case NSI shall immediately notify the Department of Commerce and all affected Accredited Registrars in writing or electronically of the nature of and reason for the limitation and the expected date and time of service restoration. NSI shall take all reasonable steps to notify all Accredited Registrars at least 24 hours in advance of any anticipated (non emergency) Shared Registration System service interruption, the reason for the service interruption, and the expected date and time of service restoration.
6. Bulk Access to Zone Files
NSI shall provide third parties bulk access to the zone files for the Registry TLDs on the terms set forth in the zone file access agreement then in effect under the Registry Agreement. NSI may not change the access agreement without the prior written approval of the Department of Commerce.
7. Price for Registry Services
The price to licensed registrars for entering initial and renewal SLD registrations into the registry and for transferring a SLD registration from one accredited registrar to another will be as set forth in the Registry Agreement at the time of its expiration or termination. These prices shall be increased to reflect demonstrated increases in costs of operating the registry arising from (1) changes or additions to the work provided under this Agreement directed by the Department of Commerce or (2) legislation specifically applicable to the Registry Services business of Registry adopted after the date of this Amendment to ensure that NSI recovers such increased costs and a reasonable profit thereon.
8. NSI Agreements with Registrars
NSI shall make access to the Shared Registration System available only to Accredited Registrars and subject to the terms of the NSI/Registrar License and Agreement then in effect. NSI shall not change the provisions of the NSI/Registrar License and Agreement without the prior written approval of the Department of Commerce.
9. Designation of Successor Registry
NSI agrees that upon (a) one year prior to the expiration or (b) NSIís receipt of notice of termination pursuant to Section I.B.8 of this Agreement, the Department of Commerce may initiate a competitive action or other transaction in accordance with applicable federal law and regulations to designate a successor registry.
Not later than 30 days after NSIís receipt of a notice of termination, NSI shall submit to the Department of Commerce, for the Departmentís immediate use in designating the Successor Registry, an electronic copy of all software (excluding the SRS software) and data related to its provision of Registry Services generated under the Cooperative Agreement through the date of the notice of termination. Not later than 60 days after NSIís receipt of a notice of termination, NSI shall submit to the Department of Commerce, for its immediate use in designating a Successor Registry, all existing documentation for such software (excluding the SRS software) and data related to NSIís provision of Registry Services generated under the Cooperative Agreement through the date of the notice of termination.
If, after the expiration or termination pursuant to Section I.B.8 of this Agreement, NSI or its assignee is not designated as the successor registry pursuant to the competitive action or transaction, NSI shall cooperate with the Department of Commerce and with the successor registry in order to facilitate the smooth transition of operation of the registry to the successor registry. Such cooperation shall include timely transfer to the successor registry of an electronic copy of the registry database and of a full specification of the format of the data. Thereafter NSI shall be relieved of further obligations under this Agreement.
10. Rights in Data
Except as permitted by the Registrar License and Agreement, NSI shall not be entitled to claim any intellectual property rights in data or any database or portion thereof in the registry supplied by or through registrars other than NSI. In the event that Registry Data is released from escrow under Section II.2 or transferred to a successor registry under Sections I. B.8 or II.A.10 , any rights held by NSI as registry in said Registry Data shall automatically be licensed on a non-exclusive, transferable, irrevocable, royalty-free, paid-up basis to the recipient of the data.
1. As of the date of this Agreement NSI shall have no further obligations under Articles 2, 4, and 11 of the Cooperative Agreement Special Conditions.
2. Articles 9, 10 and 14 of the Cooperative Agreement Special Conditions, as amended, are hereby suspended as of the date of this Agreement and NSI shall have no obligations under such provisions for so long as the Registry Agreement remains in effect. Upon termination of the Registry Agreement pursuant to (i) Section 14 of that agreement, (ii) the withdrawal of the Departmentís recognition of ICANN under Section 24 of that agreement, or (iii) with the approval of the Department of Commerce under Section 16c of that agreement, such provisions shall return to effect immediately without further action by the Department of Commerce or NSI.
3. Article 6 Section a of the Cooperative Agreement Special Conditions, as amended, is hereby amended to add the following new language:
4. Article 8, Section G of the Cooperative Agreement Special Conditions, as amended, is hereby amended to read:
and by adding a new Section G.4 as follows:
5. Article 12 of the Cooperative Agreement Special Conditions, as amended, is hereby amended to read:
6. Article 15 of the Cooperative Agreement Special Conditions, as amended, is hereby amended to read:
7. Except as specifically modified by this amendment, all other terms and conditions of the Cooperative Agreement remain unchanged. The provisions of this Amendment shall take precedence over any conflicting provision contained in any other portion of this Cooperative Agreement as amended.
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