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Redline of Existing NSI Registry Agreement to Proposed VeriSign .com Registry Agreement

Posted: 25 March 2001


The following document compares the 10 November 1999 NSI-ICANN Registry Agreement with the revised VeriSign-ICANN .com Registry Agreement posted on 1 March 2001.

Text additions: Text added to the 1999 registry agreement is shown underlined and in blue.

Text deletions: Text deleted from the 1999 registry agreement is striken out and in red.


.COM REGISTRY AGREEMENT

This REGISTRY AGREEMENT ("Agreement") is by and between the Internet Corporation for Assigned Names and Numbers ("ICANN"), a not-for-profit corporation, and Network Solutions, Inc., a Delaware corporation.VeriSign, Inc. ("Registry Operator").

I. Definitions

For purposes of this Agreement, the following definitions shall apply:

1.A "Consensus Policy" is one adopted by ICANN as follows: (a) "Consensus Policies" are those adoptedspecifications or policies established based on a consensus among Internet stakeholders represented in the ICANN process, as demonstrated by (1) the adoption of the policy byaction of the ICANN Board of Directors establishing the specification or policy, (2) a recommendation that the policy should be adopted by at least a two-thirds vote of the council of the ICANN Supporting Organization to which the matter is delegated, that the specification or policy should be established, and (3) a written report and supporting materials (which must include all substantive submissions to the Supporting Organization relating to the proposal) that (i) documents the extent of agreement and disagreement among impacted groups, (ii) documents the outreach process used to seek to achieve adequate representation of the views of groups that are likely to be impacted, and (iii) documents the nature and intensity of reasoned support and opposition to the proposed policy.

(b)A. In the event that NSIRegistry Operator disputes the presence of such a consensus, it shall seek review of that issue from an Independent Review Panel established under ICANN's bylaws. Such review must be sought within fifteen working days of the publication of the Board's action adopting the policy. The decision of the panel shall be based on the report and supporting materials required by subsection (a)Definition 1 above. In the event that NSIRegistry Operator seeks review and the Independent Review Panel sustains the Board's determination that the policy is based on a consensus among Internet stakeholders represented in the ICANN process, then NSIRegistry Operator must implement such policy unless it promptly seeks and obtains injunctive relief under Section 1315 below.

(c)B. If, following a decision by the Independent Review Panel convened under sSubsection (b)(A) above, NSIRegistry Operator still disputes the presence of such a consensus, it may seek further review of that issue within fifteen working days of publication of the decision in accordance with the dispute resolution procedures set forth in Section 1315 below; provided, however, that NSIRegistry Operator must continue to implement the policy unless it has obtained injunctive relief under Section 1315 below or a final decision is rendered in accordance with the provisions of Section 1315 that relieves NSIRegistry Operator of such obligation. The decision in any such further review shall be based on the report and supporting materials required by subsection (a)Definition 1 above.

(d) C. A specification or policy adoptedestablished by the ICANN Board of Directors on a temporary basis, without a prior recommendation by the council of an ICANN Supporting Organization, shall also be considered to be a Consensus Policy if adopted by the ICANN Board of Directors by a vote of at least two-thirds of its members, and ifso long as the Board reasonably determines that immediate temporary adoption of aestablishment of a specification or policy on the subject is necessary to maintain the operational stability of the Internet or the operation of the domain name system, and ifRegistry Services, the DNS or the Internet, and that the proposed policy is as narrowly tailored as feasible to achieve those objectives. In adopting anyestablishing any specification or policy under this provision, the ICANN Board of Directors shall state the period of time for which the specification or policy is temporarily adopted and shall immediately refer the matter to the appropriate Supporting Organization for its evaluation and review with a detailed explanation of its reasons for adopting the temporary policy and why the Board believes the policy should receive the consensus support of Internet stakeholders. If the period of time for which the policy is adopted exceeds 4590 days, the Board shall reaffirm its temporary adoption every 4590 days for a total period not to exceed 180 days,one year, in order to maintain such policy in effect until such time as it meets the standard set forth in subsection (a)Definition 1 above. If the standard set forth in subsection (a)Definition 1 above is not met within the temporary period set by the Board, or the council of the Supporting Organization to which it has been referred votes to reject the temporary policy, it will no longer be a "Consensus Policy."

(e)D. For all purposes under this Agreement, the policies identified in Appendix A adopted by the ICANN Board of Directors before the effective date of this Agreement shall be treated in the same manner and have the same effect as "Consensus Policies."

E. Registry Operator shall be afforded a reasonable period of time, not to exceed four months (unless the nature of the specification or policy established under Definition 1 above reasonably requires, as agreed to by ICANN and Registry Operator, a longer period) after receiving notice of the establishment of a specification or policy under Definition 1 above in which to comply with that specification or policy, taking into account any urgency involved.

(f)F. In the event that, at the time the ICANN Board adopts aestablishes a specification or policy under subsection (a)Definition 1 above during the term of this Agreement, ICANN does not have in place an Independent Review Panel established under ICANN's bylaws, the fifteen working day period allowed under subsection (b)subsection (B) above to seek review shall be extended until fifteen working days after ICANN does have such an Independent Review Panel in place and NSIRegistry Operator shall not be obligated to comply with the specifications or policy in the interim.

2. "DNS" refers to the Internet domain name system.

2. 3. The "Effective Date" is the date on which the Agreement is signed by ICANN and NSI.Registry Operator.

3. 4. The "Expiration Date" isthe date specified in Section 23 below. November 10, 2007, unless further extended pursuant to this Agreement.

4. "gTLDs" means the .com, .net, and .org TLDs, and any new gTLDs established by ICANN.

5. "ICANN" refers to the Internet Corporation for Assigned Names and Numbers, a party to this Agreement.

6. "NSI" refers to Network Solutions, Inc., in its capacity as a domain name registry for the Registry TLDs, a party to this Agreement.

7.5. "Personal Data" refers to data about any identified or identifiable natural person.

6. "Registered Name" refers to a domain name within the domain of the Registry TLD, whether at the second or a lower level (e.g., john.smith.name), about which Registry Operator or an affiliate engaged in providing Registry Services maintains data in a Registry Database, arranges for such maintenance, or derives revenue from such maintenance. A name in a Registry Database may be a Registered Name even though it does not appear in a TLD zone file (e.g., a registered but inactive name).

8. 7. "Registry Data" means all Registry Database data maintained in electronic form in the rRegistry dDatabase, and shall include Zone File Data, all data used to provide Registry Services submitted by registrars in electronic form, and all other data used to provide Registry Services concerning particular domain name registrations or nameservers maintained in electronic form in the rRegistry dDatabase.

8. "Registry Database" means a database comprised of data about one or more DNS domain names within the domain of the Registry TLD that is used to generate either DNS resource records that are published authoritatively or responses to domain name availability lookup requests or Whois queries, for some or all of those names.

9. "Registry Services" means operation of the registry forservices provided as an integral part of the Registry TLDs, and shall includeincluding all subdomains. These services include: receipt of data concerning registrations of domain names and nameservers from registrars,registrars; provision to registrars of status information relating to the to registrars, operation of the registryRegistry TLD zone servers,and dissemination of TLD zone files, operation of the Registry zone servers, dissemination of contact and other information concerning domain name and nameserver registrations in the Registry TLD, and such other services required by ICANN through the establishment of Consensus Policies as set forth in Definition 1 of this Agreement. Registry Services shall not include the provision of name service for a domain used by a single entity under a Registered Name registered through an ICANN-accredited registrar.

10. "Registry TLDs" refers to the .com, .net, and .org TLDs.

11. "SLD" refers to a second-level domain in the Internet domain name system.

12.11. "Term of this Agreement" begins on the Effective Date and runs through the earliestearlier of (a) the Expiration Date, or (b) termination of this Agreement under Section 14 or Section 16(B), or (c) termination of this Agreement pursuant to withdrawal of the Department of Commerce's recognition of ICANN under Section 24.

13.12. "TLD" refers to a top-level domain in the Internet domain name system.

14.13. "Zone File Data" means all data contained in domain name system zone files for the Registry TLD s, or for any subdomain for which Registry Services are provided and that contains Registered Names, as provided to TLD nameservers on the Internet.

II. Agreements

NSIRegistry Operator and ICANN agree as follows:

1. Designation of Registry Operator. ICANN acknowledges and agrees that NSI is and will remain the registry. hereby continues to recognize Registry Operator as the sole operator for the Registry TLD(s) throughoutduring the Term of this Agreement.

2. Recognition in Authoritative Root Server System. In the event and to the extent that ICANN is authorized to set policy with regard to an authoritative root server system, it will ensure that (A)(a) the authoritative root will point to the TLD zone servers designated by NSIRegistry Operator for the Registry TLDs throughout the Term of this Agreement and (B)(b) any changes to TLD zone server designation submitted to ICANN by NSIRegistry Operator will be implemented by ICANN within five business days of submission. In the event that this Agreement is terminated (A)(a) under Section 1416 or 16(B)Section 18(B) of this Agreement by NSIRegistry Operator or (B)(b) under Section 2425 of this Agreement due to the withdrawal of recognition of ICANN by the United StatesUS Department of Commerce ("DOC"), ICANN's obligations concerning TLD zone server designations for the .com, .net, and .orgRegistry TLDs in the authoritative root server system shall be as stated in a separate agreement between ICANN and the Department of Commerce.DOC.

3. General Obligations of NSIRegistry Operator.

(A). During the Term of this Agreement:

(i) NSIRegistry Operator agrees that it will operate the registry for the Registry TLDs in accordance with this Agreement;

(ii) NSIRegistry Operator shall comply, in its operation of the registry, with all Consensus Policies insofar as they:

(a) are adopted by ICANN in compliance with Section 4 below,

(b) relate to one or more of the following: (1) issues for which uniform or coordinated resolution is reasonably necessary to facilitate interoperability, technical reliability and/or stable operation of the Internet or domain- name system, (2) registry policies reasonably necessary to implement Consensus Policies relating to registrars, or (3) resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names), and

(c) do not unreasonably restrain competition.

(B). NSIRegistry Operator acknowledges and agrees that upon the earlier of (i) the Expiration Date or (ii) termination of this Agreement by ICANN pursuant to Section 1416 below, it will cease to be the rRegistry Operator for the Registry TLDs, unless prior to the end of the tTerm of this Agreement NSI Registry Operator is chosen as the Ssuccessor Rregistry in accordance with the provisions of this Agreement.

(C). To the extent that Consensus Policies are adopted in conformance with Section 4 of this Agreement, the measures permissible under Section 3(A)(ii)(b) above shall include, without limitation:

(i) principles for allocation of SLD namesRegistered Names (e.g., first-come/, first-served, timely renewal, holding period after expiration);

(ii) prohibitions on warehousing of or speculation in domain names by registries or registrars;

(iii) reservation of SLD namesRegistered Names that may not be registered initially or that may not be renewed due to reasons reasonably related to (a) avoidance of confusion among or misleading of users, (b) intellectual property, or (c) the technical management of the DNS or the Internet (e.g., "example.com" and single-letter/digit names);

(iv) the allocation among continuing registrars of the SLD namesRegistered Names sponsored in the registry by a registrar losing accreditation; and

(v) dispute resolution policies that take into account the use of a domain name.

Nothing in this Section 3 shall limit or otherwise affect NSI'sRegistry Operator's obligations as set forth elsewhere in this Agreement.

4. General Obligations of ICANN. With respect to all matters that impact the rights, obligations, or role of NSI,Registry Operator, ICANN shall during the Term of this Agreement:

(A). exercise its responsibilities in an open and transparent manner;

(B). not unreasonably restrain competition and, to the extent feasible, promote and encourage robust competition;

(C). not apply standards, policies, procedures or practices arbitrarily, unjustifiably, or inequitably and not single out NSIRegistry Operator for disparate treatment unless justified by substantial and reasonable cause; and

(D)D. ensure, through its reconsideration and independent review policies, adequate appeal procedures for NSI,Registry Operator , to the extent it is adversely affected by ICANN standards, policies, procedures or practices.

5. Use of ICANN Name. ICANN hereby grants to Registry Operator a non-exclusive, worldwide, royalty-free license during the Term of this Agreement (a) to state that it is recognized by ICANN as the Registry Operator for the Registry TLD, (b) to use a logo specified by ICANN to signify that Registry Operator is an ICANN-designated registry, and (c) to link to pages and documents within the ICANN web site. No other use of ICANN's name is licensed hereby. This license may not be assigned or sublicensed by Registry Operator.

5. 6. Protection from Burdens of Compliance With ICANN Policies. ICANN hereby agrees to shall indemnify, defend, and hold harmless NSIRegistry Operator, and (including its directors, officers, employees, and agents) from and against any and all claims, damages, or liabilities, costs, and expenses, including reasonable legal fees and expenses arising solely from NSI'sRegistry Operator's compliance as required by this Agreement with an ICANN specification or policy (including a Consensus Policy) adopted established after both parties have entered into this Agreement,November 10, 1999; except that NSIRegistry Operator shall not be indemnified or held harmless hereunder to the extent that the claims, damages or liabilities arise from the particular manner in which NSIRegistry Operator has chosen to comply with the specification or policy, where it was possible for Registry Operator to comply in a manner by which the claims, damages, or liabilities would not arise. In addition, NSI shall be given a reasonable period after receiving notice of adoption of an ICANN Consensus Policy in which to comply with that policy. [See Definition 1(E) above.] As an alternative to providing the indemnity stated in this Section 6, ICANN may, at the time it establishes a specification or policy after the Effective Date giving rise to an indemnity obligation under this Section 6, state ICANN's election that the Registry Operator shall bear the cost of insuring the claims, damages, liabilities, costs, and expenses that would otherwise be indemnified by ICANN under this Section 6, in which case the reasonable cost to Registry Operator of such insurance shall be treated under Subsection 22(A) as a cost of providing Registry Services arising from the newly established ICANN specification or policy.

6.7. NSI Registry-Level Financial Support of ICANN. NSI, in its role as operator of the registry for the Registry TLDs, shall pay the gTLD registry-level fees adopted by ICANN in conformance with Section 4 of this Agreement, provided such fees are reasonably allocated among all gTLD registries that contract with ICANN and provided further that, if NSI's share of the total gTLD registry-level fees are or are budgeted to be in excess of $250,000 in any given year, any such excess must be expressly approved by gTLD registries accounting, in aggregate, for payment of two-thirds of all gTLD registry-level fees. During the Term of this Agreement, Registry Operator shall pay to ICANN the following fees:

A. Fixed Registry-Level Fee. Registry Operator shall pay ICANN a quarterly Fixed Registry-Level Fee in an amount established by the ICANN Board of Directors, in conformity with the ICANN bylaws and articles of incorporation, not to exceed the Fixed Registry-Level Fee Cap described by the following sentence. The Fixed Registry-Level Fee Cap shall be US$25,000 per quarter until and including June 30, 2002; shall automatically increase by 15% on July 1 of each year beginning in 2002; and may be increased by a greater amount through the establishment of Consensus Policies as set forth in Definition 1 of this Agreement. Registry Operator shall pay the quarterly Fixed Registry-Level Fee no later than the last day of each March, June, September, and December during the Term of this Agreement.

B. Variable Registry-Level Fee. Registry Operator shall pay ICANN a quarterly Variable Registry-Level Fee. The total Variable Registry-Level Fee due to ICANN from all TLDs sponsored or operated under a registry agreement with ICANN shall be established from time to time by the ICANN Board of Directors in conformity with the ICANN bylaws and articles of incorporation and shall not exceed the Total Variable Registry-Level Fee Cap described by the following sentence. The Total Variable Registry-Level Fee Cap shall be US$0 for the fiscal year ending June 30, 2001; shall be US$3,500,000 for the fiscal year ending June 30, 2002; shall increase by 15% each fiscal year thereafter; and may be increased by a greater amount through the establishment of Consensus Policies as set forth in Definition 1 of this Agreement. The total Variable Registry-Level Fee shall be calculated according to a formula and method established from time to time by the ICANN Board of Directors, in conformity with the ICANN bylaws and articles of incorporation, that reasonably allocates the total variable fee among all TLDs sponsored or operated under a registry agreement with ICANN (whether the fee is collected at the registry or registrar level) based on the relative number of domain names under administration by the operators of the registries for those TLDs. For purposes of determining the number of domain names under administration for various TLDs in making this allocation, it shall be deemed reasonable to assume that the number of domain names under administration in the Registry TLD is the number of Registered Names within those TLDs. Registry Operator shall pay the quarterly Variable Registry-Level Fee within thirty days after the date of ICANN's invoice for that fee.

C. NSI Payments Must Be Timely. Registry Operator shall pay such feesthe Fixed Registry-Level Fee and Variable Registry-Level Fee in a timely manner throughout the Term of this Agreement, and notwithstanding the pendency of any dispute between NSI and ICANN. Registry Operator and ICANN. NSI agrees to prepay $250,000 toward its share of gTLD registry-level fees at the time of signing of this Agreement. Registry Operator shall pay interest on payments not timely made at the rate of 1% per month or, if less, the maximum rate permitted by California law.

8. Reports Provided to ICANN. Within twenty days after the end of each month during the Term of this Agreement, Registry Operator shall provide ICANN a written report, giving information specified by ICANN, on operation of the registry during the month. The initial specification of information is set forth in Appendix T. Changes to that specification may be made only with the mutual written consent of ICANN and Registry Operator (which neither party shall unreasonably withhold) or through the establishment of Consensus Policies as set forth in Definition 1 of this Agreement.

7.9. Data Escrow. NSIRegistry Operator shall periodically 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 NSIRegistry Operator and ICANN, such approval not to be unreasonably withheld by either party. The escrow shall be maintained, at NSI'sRegistry Operator's expense, by a reputable escrow agent mutually approved by NSIRegistry Operator and ICANN, such approval also not to be unreasonably withheld by either party. The escrow shall be held under an agreement among ICANN, NSI, the United States 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 ICANN or to the United States Department of Commerce; (B) the data shall be released to ICANN upon termination of this Agreement by ICANN under Section 14 or upon the Expiration Date if (1) this Agreement has not sooner been terminated and (2) it has been finally determined by the ICANN Board (and no injunction obtained pursuant to Section 13 has been obtained) that NSI will not be designated as the successor registry under Section 22 of this Agreement; and (C), in the alternative, the data shall be released to the United States Department of Commerce according to the terms of the cooperative agreement between NSI and the United States Government.

8. 10. NSI Registry Operator's Handling of Personal Data. NSI agrees toRegistry Operator shall notify registrars sponsoring registrations in the registry for the Registry TLD of the purposes for which Personal Data submitted to the rRegistry Operator 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. NSIRegistry Operator shall take reasonable steps to protect Personal Data from loss, misuse, unauthorized disclosure, alteration or destruction. NSIRegistry Operator shall not use or authorize the use of Personal Data in a way that is incompatible with the notice provided to registrars.

9.11. Publication by NSIRegistry Operator of Registry Data.

(A) NSIA. At its expense, Registry Operator shall provide an interactive web page and a port 43 Whois service providing free public query-based access to up-to-date (i.e. updated at least daily) registry database data concerning domain name and nameserver registrations maintained by Registry Operator in connection with the Registry TLDwhich, in response to input of an SLD name, shall report at least the following data elements in response to queries: (a) the SLD name registered, (b) the TLD in which the SLD is registered; (c) the IP addresses and corresponding names of the primary nameserver and secondary nameserver(s) for such SLD, (d) the identity of the sponsoring Registrar, and (e) the date of the most recent modification to the domain name record in the registry database; provided, however, that if ICANN adopts a Consensus Policy that adds to or subtracts from these elements, NSI will implement that policy. The data elements reported, format of responses to queries, data update frequency, query types supported, and protocols through which access is provided shall be as established by ICANN. The initial specification of the data elements reported, format of responses to queries, minimum data update frequency, query types supported, and protocols through which access is provided are set forth in Appendix O. Registry Operator may request supplementation of the specification to include additional data elements reported or query types supported, in which event ICANN shall act to supplement the specification in a reasonable manner within a reasonable time. Other changes to the specification may be made only with the mutual written consent of ICANN and Registry Operator (which neither party shall unreasonably withhold) or through the establishment of Consensus Policies as set forth in Definition 1 of this Agreement.

(B)B. To ensure operational stability of the registry, NSIRegistry Operator may temporarily limit access under sSubsection 11(A), in which case NSIRegistry Operator shall immediately notify ICANN of the nature of and reason for the limitation. NSIRegistry Operator shall not continue the limitation longer than three business days a period established by ICANN if ICANN objects in writing, which objection shall not be unreasonably made. The period shall initially be five business days; changes to that period may be made only with the mutual written consent of ICANN and Registry Operator (which neither party shall unreasonably withhold) or through the establishment of Consensus Policies as set forth in Definition 1 of this Agreement. Such temporary limitations shall be applied in a non-arbitrary manner and shall apply fairly to any registrar similarly situated, including NSI.all ICANN-accredited registrars.

(C) NSI as registry shall comply with Consensus Policies providing for development and operation of a capability that provides distributed free public query-based (web and command-line) access to current registration data implemented by registrars providing for capabilities comparable to WHOIS, including (if called for by the Consensus Policy) registry database lookup capabilities according to a specified format. If such a service implemented by registrars on a distributed basis does not within a reasonable time provide reasonably robust, reliable and convenient access to accurate and up-to-date registration data, NSI as registry shall cooperate and, if reasonably determined to be necessary by ICANN (considering such possibilities as remedial action by specific registrars), provide data from the registry database to facilitate the development of a centralized service providing equivalent functionality in a manner established by a Consensus Policy.

C. In providing query-based public access to registration data as required by this Subsection 11(A), Registry Operator shall not impose terms and conditions on use of the data provided except as permitted by policy established by ICANN. Unless and until ICANN establishes a different policy, Registry Operator shall permit use of data it provides in response to queries for any lawful purposes except to: (a) allow, enable, or otherwise support the transmission by e-mail, telephone, or facsimile of mass unsolicited, commercial advertising or solicitations to entities other than the data recipient's own existing customers; or (b) enable high volume, automated, electronic processes that send queries or data to the systems of Registry Operator or any ICANN-accredited registrar, except as reasonably necessary to register domain names or modify existing registrations. Changes to that policy may be made only with the mutual written consent of ICANN and Registry Operator (which neither party shall unreasonably withhold) or through the establishment of Consensus Policies as set forth in Definition 1 of this Agreement.

D. To comply with applicable statutes and regulations and for other reasons, ICANN may from time to time establish Consensus Policies as set forth in Definition 1 of this Agreement establishing limits on the data concerning registrations that Registry Operator may make available to the public through a public-access service described in this Subsection 11(A) and on the manner in which Registry Operator may make them available.

E. At its expense, Registry Operator shall provide bulk access to up-to-date data concerning domain name and nameserver registrations maintained by Registry Operator in connection with the Registry TLD in the following two ways:

(i) on a daily schedule, only for purposes of providing free public query-based access to up-to-date data concerning domain name and nameserver registrations in multiple TLDs, to a party designated from time to time in writing by ICANN. The content and format of this data, and the procedures for providing access, shall be as established by ICANN. The initial content, format, and procedures are set forth in Appendix P. Changes to that content and format and those procedures may be made only with the mutual written consent of ICANN and Registry Operator (which neither party shall unreasonably withhold) or through the establishment of Consensus Policies as set forth in Definition 1 of this Agreement.

(ii) on a continuous basis, to ICANN in the manner which ICANN may from time to time reasonably specify, only for purposes of verifying and ensuring the operational stability of Registry Services, the DNS, and the Internet The content and format of this data, and the procedures for providing access, shall be as established by ICANN. The initial content, format, and procedures are set forth in Appendix Q. Changes to that content and format and those procedures may be made only with the mutual written consent of ICANN and Registry Operator (which neither party shall unreasonably withhold) or through the establishment of Consensus Policies as set forth in Definition 1 of this Agreement.

10.12. Rights in Data. Except as permitted by the Registrar License and Agreement, NSIRegistry Operator shall not be entitled to claim any intellectual property rights in data in the registry supplied by or through registrars other than NSI. In the event that Registry Data is released from escrow under Section 79 or transferred to a Successor Registry under Section 22(D), any rights held by NSI as registryRegistry Operator in the data shall automatically be licensed on a non-exclusive, irrevocable, royalty-free, paid-up basis to the recipient of the data.ICANN or to a party designated in writing by ICANN.

11.13. Limitation of Liability. Neither party shall be liable to the other underICANN's aggregate monetary liability for violations of this Agreement shall not exceed the amount of Fixed or Variable Registry-Level Fees paid by Registry Operator to ICANN within the preceding twelve-month period under Section 7 of this Agreement. Registry Operator's aggregate monetary liability to ICANN for anyviolations of this Agreement shall be limited to fees due and owing to ICANN under this Agreement. In no event shall either party be liable for special, indirect, incidental, punitive, exemplary, or consequential damages arising out of or in connection with this Agreement or the performance or nonperformance of obligations undertaken in this Agreement. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, REGISTRY OPERATOR DOES NOT MAKE ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES RENDERED BY ITSELF, ITS SERVANTS, OR ITS AGENTS OR THE RESULTS OBTAINED FROM THEIR WORK, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.

12.14. Specific Performance. During the Term of this Agreement, either party may seek specific performance of any provision of this Agreement as provided by Section 1315, provided the party seeking such performance is not in material breach of its obligations.

13.15. Resolution of Disputes Under This Agreement. Disputes arising under or in connection with this Agreement, including requests for specific performance, shall be resolved in a court of competent jurisdiction or, at the election of both parties (except for any dispute over whether a policy adopted by the Board is a Consensus Policy, in which case at the election of either party), by an arbitration conducted as provided in this Section pursuant to the International Arbitration Rules of the American Arbitration Association ("AAA"). The arbitration shall be conducted in English and shall occur in Los Angeles County, California, USA. There shall be three arbitrators: each party shall choose one arbitrator and, if the two arbitrators are not able to agree on a third arbitrator, the third shall be chosen by the AAA. The parties shall bear the costs of the arbitration in equal shares, subject to the right of the arbitrators to reallocate the costs in their award as provided in the AAA rules. The parties shall bear their own attorneys' fees in connection with the arbitration, and the arbitrators may not reallocate the attorneys' fees in conjunction with their award. The arbitrators shall render their decision within ninety days of the initiation of arbitration. In all litigation involving ICANN concerning this Agreement (whether in a case where arbitration has not been elected or to enforce an arbitration award), jurisdiction and exclusive venue for such litigation shall be in a court located in Los Angeles, California, USA; however, the parties shall also have the right to enforce a judgment of such a court in any court of competent jurisdiction. For the purpose of aiding the arbitration and/or preserving the rights of the parties during the pendency of an arbitration, the parties shall have the right to seek temporary or preliminary injunctive relief from the arbitration panel or a court located in Los Angeles, California, USA, which shall not be a waiver of this arbitration agreement.

14.16. Termination.

(A). In the event an arbitration award or court judgment is rendered specifically enforcing any provision of this Agreement or declaring a party's rights or obligations under this Agreement, either party may, by giving written notice, demand that the other party comply with the award or judgment. In the event that the other party fails to comply with the order or judgment within ninety days after the giving of notice (unless relieved of the obligation to comply by a court or arbitration order before the end of that ninety-day period), the first party may terminate this Agreement immediately by giving the other party written notice of termination.

(B). In the event of termination by DOC of its Cooperative Agreement with NSIRegistry Operator pursuant to Section I.B.81.b.8 of Amendment 19 to that Agreement, ICANN shall, after receiving express notification of that fact from DOC and a request from DOC to terminate NSIRegistry Operator as the operator of the registry database for the Registry TLDs, terminate NSI'sRegistry Operator's rights under this Agreement, and shall cooperate with DOC to facilitate the transfer of the operation of the rRegistry dDatabase to a successor registry.

C. Registry Operator:

(i) is convicted by a court of competent jurisdiction of a felony or other serious offense related to financial activities, or is the subject of a determination by a court of competent jurisdiction that ICANN reasonably deems as the substantive equivalent of those offenses ; or

(ii) is disciplined by the government of its domicile for conduct involving dishonesty or misuse of funds of others.

D. Any officer or director of Registry Operator is convicted of a felony or of a misdemeanor related to financial activities, or is judged by a court to have committed fraud or breach of fiduciary duty, or is the subject of a judicial determination that ICANN deems as the substantive equivalent of any of these, and such officer or director is not immediately removed in such circumstances.

E. If Registry Operator becomes bankrupt or insolvent, ICANN may immediately terminate this Agreement upon notice to Registry Operator.

15.17. Assignment. Neither party may assign this Agreement without the prior written approval of the other party, such approval not to be unreasonably withheld. Notwithstanding the foregoing sentence, a party may assign this Agreement by giving written notice to the other party in the following circumstances, provided the assignee agrees in writing with the other party to assume the assigning party's obligations under this Agreement: (a) NSIRegistry Operator may assign this Agreement as part of the transfer of its registry businessapproved under Section 25 and (b) ICANN may, in conjunction with a reorganization or re-incorporation of ICANN and with the written approval of the Department of Commerce,DOC, assign this Agreement to another non-profit corporation organized for the same or substantially the same purposes as ICANN.

16.18. Relationship to Cooperative Agreement Between NSI and U.S. Government.

(A). NSI'sRegistry Operator's obligations under this Agreement are conditioned on the agreement by NSI and the Department of Commerce to Amendment 19 to theconcurrence by DOC through an amendment to Cooperative Agreement in the form attached to this Agreement as Appendix C.NCR-9218742.

(B). If within a reasonable period of time ICANN has not made substantial progress towards having entered into agreements with competing registries and NSIRegistry Operator is adversely affected from a competitive perspective, NSIRegistry Operator may terminate this Agreement with the approval of the U.S. Department of Commerce. DOC. In such event, as provided in Section 16(A) above, the Cooperative Agreement shall replace this Agreement.

(C). In the case of conflict while they are both in effect, and to the extent that they address the same subject in an inconsistent manner, the term(s) ofthe Cooperative Agreement NCR-9218742 shall take precedence over this Agreement.

17.19. NSIRegistry Operator Agreements with Registrars. NSIRegistry Operator shall make access to the Shared Registration System available to all ICANN-accredited registrars subject to the terms of the NSI/Registrar License and Agreement (attached as Appendix B). Such agreement may be revised by NSIRegistry Operator, provided however, that any such changesrevisions must be approved in advance by ICANN. Such agreement shall also be revised to incorporate any Registry Service Level Agreement implemented under Section 18.

18.20. Performance and Functional Specifications for Registry Services. Unless and until ICANN adopts different standards as a Consensus Policy pursuant to Section 4, , NSIRegistry Operator shall provide rRegistry sServices to ICANN-accredited registrars meetingin a manner that meets the performance and functional specifications set forth in SRS specification version 1.0.61.1.0, dated September 10, 1999May 2000, attached as Appendix __, as supplemented by Appendix E and anythe Registry Service Level Agreement established according to this Section 18. In the event ICANN adopts different performance and functional standards for the registry as a Consensus Policy in compliance with Section 4, NSIRegistry Operator shall comply with those standards to the extent practicable, provided that compensation pursuant to the provisions of Section 2022 below has been resolved prior to implementation and provided further that NSIRegistry Operator is given a reasonable time for implementation. In no event shall NSIRegistry Operator be required to implement any different functional standards before 3 years from the Effective Date of this Agreement.November 10, 2002.

Within 45 days after the Effective Date, (i) representatives designated by ICANN of registrars accredited by ICANN for the Registry TLDs and (ii) NSI will establish a Registry Service Level Agreement for the registry system that shall include, at least:

(A) identified service level parameters and measurements regarding performance of the registry system, including, for example, system availability;

(B) responsibilities of registrars using the registry system and NSI (e.g., the obligation of the registrars to notify NSI of any experienced registry system outages and the obligation of NSI to respond in a timely manner to registry system outages);

(C) an appropriate service-level dispute-resolution process; and

(D) remedies for failure to comply with the Registry Service Level Agreement.

Unless the Registry Service Level Agreement requires fundamental architecture changes to the registry system or extraordinary increases in costs to NSI beyond what is generally required to implement a service level agreement (which is not the intent of the parties) the creation and implementation of the Registry Service Level Agreement shall not result in a price increase under Section 20.

The 45-day drafting process for the Registry Service Level Agreement shall be structured as follows: (E) the designated representatives and NSI (the "SLA Working Group") shall promptly meet and shall within 20 days after the Effective Date complete a draft of the Registry Service Level Agreement; (F) all registrars accredited by ICANN for the Registry TLDs shall have 10 days after distribution of that draft to submit comments to the SLA Working Group; and (G) the SLA Working Group shall meet again to finalize the Registry Service Level Agreement, taking into account the comments of the registrars. The 45-day period shall be subject to extension by mutual agreement of the members of the SLA Working Group. The SLA shall be implemented as soon as reasonably feasible after its completion and approval by ICANN, including by implementation in stages if appropriate.

After it is approved by the SLA Working Group and ICANN, the Registry Service Level Agreement shall be incorporated in the NSI/Registrar License and Agreement referred to in Section 17.

19.21. Bulk Access to Zone Files. NSIRegistry Operator shall providethird parties bulk access to the zone files for the .com, .net, and .orgRegistry TLDs as follows:

A. to third parties on the terms set forth in the TLD zone file access agreement (attached as Appendix D) established by ICANN. Such agreement may be revised by NSI, provided however, that any such changes must be approved in advance by ICANN.The terms of the agreement are set forth as Appendix N to this Agreement. Changes to the terms of the TLD zone file access agreement may be made only with the mutual written consent of ICANN and Registry Operator (which neither party shall unreasonably withhold) or through the establishment of Consensus Policies as set forth in Definition 1 of this Agreement.

B. to ICANN on a continuous basis in the manner which ICANN may from time to time specify.

20. 22. Price for Registry Services.

A. The price(s) to ICANN-accredited registrars for entering initial and renewal SLDdomain name registrations into the rRegistry dDatabase and for transferring a SLDdomain name registration from one ICANN-accredited registrar to another will be as set forth in Section 5 of the Registrar License and Agreement (attached as Appendix B). These prices shall be increased through an amendment to this Agreement as approved by ICANN and NSIRegistry Operator, such approval not to be unreasonably withheld, to reflect reasonably demonstrated increases in the net costs of providing operating the registryRegistry Services arising from (1)(i) new or revised ICANN specifications or policies adopted afterthe date of this Agreement, or (2)November 10, 1999, or (ii) legislation specifically applicable to the provision of Registry Services adopted after the date of this Agreement,November 10, 1999, to ensure that NSIRegistry Operator recovers such costs and a reasonable profit thereon; provided that such increases exceed any reductions in costs arising from (1) or (2)(i) or (ii) above.

B. Registry Operator may, at its option and with thirty days written notice to ICANN and to all ICANN-accredited registrars, revise the prices charged to registrars under the Registrar License and Agreement, provided that (i) the same price shall be charged for services charged to all ICANN-Accredited Registrars (provided that volume adjustments may be made if the same opportunities to qualify for those adjustments is available to all ICANN-Accredited Registrars) and (ii) the prices shall not exceed those set forth in Appendix G.

21. 23. Additional NSI Obligations. Fair Treatment of ICANN-Accredited Registrars.

(A) NSI. Registry Operator shall provide all licensed Accredited Registrars (including NSI acting as registrar) withICANN-accredited registrars that are signatories to the Registrar License and Agreement, and that are in compliance with the terms of such agreements, equivalent access to Registry Operator's Registry Services, including to its the Sshared rRegistration sSystem.

B. NSI further agrees that it will make a certificationRegistry Operator shall certify to ICANN every six months, using the objective criteria set forth in Appendix FH, that NSIRegistry Operator is providing all licensed Accredited Registrarssuch ICANN-accredited registrars with equivalent access to its rRegistry sServices, including to its shared registration system.

C. Registry Operator shall not act as a registrar with respect to the Registry TLD. This shall not preclude Registry Operator from registering names within the domain of the Registry TLD in compliance with Section 24. This also shall not preclude an affiliate (including wholly-owned subsidiaries) of Registry Operator from acting as a registrar with respect to the Registry TLD, provided that Registry Operator complies with the provisions of Subsection 23(D).

(B) NSI. Registry Operator will ensure, in a form and through ways described in Appendix FH, that the revenues and assets of the rRegistry Operator are not utilized to advantage NSI's registrar activitiesregistrars that are affiliated with Registry Operator to the detriment of other registrars.ICANN-accredited registrars. For purposes of this Subsection 23(D), funds distributed to debt or equity participants in Registry Operator shall no longer be deemed revenues and assets of Registry Operator once they are distributed.

24. Registrations Not Sponsored by Registrars Under Registry-Registrar Agreements. Registry Operator shall register domain names within the domain of the Registry TLD, other than on a request submitted by a registrar pursuant to that registrar's Registry-Registrar Agreement, only as follows:

A. Registry Operator may register available domain names within the domain of the Registry TLD for its own use in operating the registry and providing Registry Services under this Agreement, provided the number of such domain names under registration at any time does not exceed 5000. At the conclusion of its designation by ICANN as the operator for the Registry TLD, Registry Operator shall transfer all such domain name registrations to the entity or person specified by ICANN.

B. Registry Operator may register the names listed on Appendix X for its own use. Registry Operator may retain registration of those names at the conclusion of its designation by ICANN as the operator for the Registry TLD, provided registration fees are paid and all other requirements for registration by third parties are met. Appendix X may be revised upon written notice by Registry Operator to ICANN and written consent by ICANN, which shall not be unreasonably withheld.

C. As instructed from time to time by ICANN, Registry Operator shall maintain the registration of up to 5000 domain names within the domain of the Registry TLD for use by ICANN and other organizations responsible for coordination of the Internet's infrastructure.

D. This Section 24 shall not preclude Registry Operator from registering domain names within the domain of the Registry TLD through an ICANN-Accredited Registrar.

22. Designation of Successor Registry.

(A) Not later than one year prior to the end of the term of this Agreement, ICANN shall, in accordance with Section 4, adopt an open, transparent procedure for designating a Successor Registry. The requirement that this procedure be opened one year prior to the end of the Agreement shall be waived in the event that the Agreement is terminated prior to its expiration.

(B) NSI or its assignee shall be eligible to serve as the Successor Registry and neither the procedure established in accordance with subsection (A) nor the fact that NSI is the incumbent shall disadvantage NSI in comparison to other entities seeking to serve as the Successor Registry.

(C) If NSI or its assignee is not designated as the Successor Registry, NSI or its assignee shall cooperate with ICANN and with the Successor Registry in order to facilitate the smooth transition of operation of the registry to Successor Registry. Such cooperation shall include the 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.

(D) ICANN shall select as the Successor Registry the eligible party that it reasonably determines is best qualified to perform the registry function under terms and conditions developed as a Consensus Policy, taking into account all factors relevant to the stability of the Internet, promotion of competition, and maximization of consumer choice, including without limitation: functional capabilities and performance specifications proposed by the eligible party for its operation of the registry, the price at which registry services are proposed to be provided by the party, relevant experience of the party, and demonstrated ability of the party to handle operations at the required scale. ICANN shall not charge any additional fee to the Successor Registry.

(E) In the event that a party other than NSI or its assignee is designated as the Successor Registry, NSI shall have the right to challenge the reasonableness of ICANN's failure to designate NSI or its assignee as the Successor Registry under the provisions of Section 13 of this Agreement.

25. Procedure for Subsequent Agreement.

A. Registry Operator may, no later than eighteen months prior to the Expiration Date, submit a written proposal to ICANN for the extension of this Agreement for an additional term of four years (the "Renewal Proposal"). The Renewal Proposal shall contain a detailed report of the Registry Operator's operation of the Registry TLD and include a description of any additional Registry Services, proposed improvements to Registry Services, or changes in price or other terms of service.

B. ICANN shall consider the Renewal Proposal for a period of no more than six months before deciding whether to call for competing proposals from potential successor registry operators for the Registry TLD. During this six month period, ICANN may request Registry Operator to provide, and Registry Operator shall provide, additional information concerning the Renewal Proposal that ICANN determines to be reasonably necessary to make its decision. Following consideration of the Renewal Proposal, Registry Operator shall be awarded a four-year renewal term unless ICANN demonstrates that: (a) Registry Operator is in material breach of this Registry Agreement, (b) Registry Operator has not provided and will not provide a substantial service to the Internet community in its performance under this Registry Agreement, (c) Registry Operator is not qualified to operate the Registry TLD during the renewal term, or (d) the maximum price for initial and renewal registrations proposed in the Renewal Proposal exceeds the price permitted under Section 22 of this Registry Agreement. The terms of the registry agreement for the renewal term shall be in substantial conformity with the terms of registry agreements between ICANN and operators of other open TLDs then in effect, provided that this Section 25 shall be included in any renewed Registry Agreement unless Registry Operator and ICANN mutually agree to alternative language.

C. In the event that ICANN fails to award a renewal registry agreement to Registry Operator within the six month period described above, Registry Operator shall have the right to challenge the reasonableness of that failure under the provisions of Section 15.

D. In the event ICANN does not award Registry Operator a renewal registry agreement according to Subsection 25(B), ICANN shall call for competitive proposals and Registry Operator shall be eligible, to the same extent as similarly situated entities, to submit a proposal in response to such a call and to be considered for such award.

23. Expiration of this Agreement. The Expiration Date shall be four years after the Effective Date, unless extended as provided below. In the event that NSI completes the legal separation of 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 Effective Date to an unaffiliated third party that enters an agreement enforceable by ICANN and 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 any entity in which NSI (including its successors and assigns, subsidiaries 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 23, 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.

24.26. Withdrawal of Recognition of ICANN by the Department of Commerce. In the event that, prior to the expiration or termination of this Agreement under Section 14 or 16(B)16 or 18(B), the United States Department of CommerceDOC withdraws its recognition of ICANN as NewCo under the Statement of Policy pursuant to the procedures set forth in Section 5 of Amendment 1 (dated November 10, 1999) to the Memorandum of Understanding between ICANN and the Department of Commerce,DOC, this Agreement shall terminate.

25. Assignment of Registry Assets. NSI may assign and transfer its registry assets in connection with the sale of its registry business only with the approval of the Department of Commerce.

26.27. Option to Substitute Generic Agreement. At NSI'sRegistry Operator's option, it may substitute in its entirety any generic ICANN/-Registry Operator aAgreement that may be adopted by ICANN for this Agreement; provided, however, that Sections 16, 19, 20, 21, 23, 24, and 25 of this Agreement will remain in effect following any such election by NSI.

27.28. Notices, Designations, and Specifications. All notices to be given under this Agreement shall be given in writing at the address of the appropriate party as set forth below, unless that party has given a notice of change of address in writing. Any notice required by this Agreement shall be deemed to have been properly given when delivered in person, when sent by electronic facsimile, or when scheduled for delivery by internationally recognized courier service. Designations and specifications by ICANN under this Agreement shall be effective when written notice of them is deemed given to Registry Operator.

If to ICANN, addressed to:

Internet Corporation for Assigned Names and Numbers
4676 Admiralty Way, Suite 330
Marina Del Rey, California 90292
Telephone: 1/310/823-9358
Facsimile: 1/310/823-8649
Attention: Chief Executive Officer

If to Registry Operator, addressed to:

General Counsel
VeriSign, Inc.
1350 Charleston Road
Mountain View, California 94043
Telephone: 1/650/961/7500
Facsimile: 1/650/961/8853; and

General Manager
VeriSign Registry
21345 Ridgetop Circle
Dulles, Virginia 20166
Telephone: 1/703/948/3200
Facsimile: 1/703/421/2129; and

Deputy General Counsel
1. Network Solutions,VeriSign, Inc.
505 Huntmar Park Drive
Herndon,
VA 20170
Telephone: 1/703/742-0400
Facsimile: 1/703/742-3386
Attention: General Counsel

2.Network Solutions, Inc.
505 Huntmar Park Drive
Herndon, VA 20170
Telephone: 1/703/742-0400
Facsimile: 1/703/742-3386
Attention: Registry General Manager
Virginia 20170
Telephone: 1/703/742/0400
Facsimile: 1/703/742-7916

29. Subcontracting. Registry Operator shall not subcontract portions of the technical operations of the Registry TLD accounting for more than 80% of the value of all Registry TLD operations without ICANN's written consent. When ICANN's consent to subcontracting is requested, ICANN shall respond within fifteen business days, and the consent shall not be unreasonably withheld. In any subcontracting of the technical operations of the Registry TLD, the subcontract shall state that the subcontractor shall not acquire any right in the Registry TLD by virtue of its performance under the subcontract.

30. Force Majeure. Neither party shall be liable to the other for any loss or damage resulting from any cause beyond its reasonable control (a "Force Majeure Event") including, but not limited to, insurrection or civil disorder, war or military operations, national or local emergency, acts or omissions of government or other competent authority, compliance with any statutory obligation or executive order, industrial disputes of any kind (whether or not involving either party's employees), fire, lightening, explosion, flood subsidence, weather of exceptional severity, and acts or omissions of persons for whom neither party is responsible. Upon occurrence of a Force Majeure Event and to the extent such occurrence interferes with either party's performance of this Agreement, such party shall be excused from performance of its obligations (other than payment obligations) during the first six months of such interference, provided that such party uses best efforts to avoid or remove such causes of nonperformance as soon as possible.

31. No Third-Party Beneficiaries. This Agreement shall not be construed to create any obligation by either ICANN or Registry Operator to any non-party to this Agreement, including any registrar or SLD holder.

28.32. Dates and Times. All dates and times relevant to this Agreement or its performance shall be computed based on the date and time observed in Los Angeles, California, USA.

29.33. Language. All notices, designations, and specifications made under this Agreement shall be in the English language.

30.34. Entire Agreement. This Agreement constitutes the entire agreement of the parties hereto pertaining to theregistry for the Registry TLDs and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, between the parties on that subject. This Agreement is intended to coexist with any Registrar Accreditation Agreement between the parties.

31.35. Amendments and Waivers. No amendment, supplement, or modification of this Agreement or any provision hereof shall be binding unless executed in writing by both parties. No waiver of any provision of this Agreement shall be binding unless evidenced by a writing signed by the party waiving compliance with such provision. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof, nor shall any such waiver constitute a continuing waiver unless otherwise expressly provided.

32.36. 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.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in duplicate by their duly authorized representatives.

INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS

 

By:__________________________
Michael M. Roberts
President and CEO
Date: November 10, 1999
M. Stuart Lynn
President and CEO
Date:

NETWORK SOLUTIONS, INC.

 

By:__________________________
Jonathan W. Emery
Senior Vice President, General
Counsel & Secretary
Date: November 10, 1999

VERISIGN, INC.

 

By:_____________________________
Stratton Sclavos
President and CEO
Date:


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