REGISTRY AGREEMENT Appendix C18.2
This REGISTRY AGREEMENT ("Agreement") is by and between FINANCE INTERNET DOMAIN ASSOCIATION (“FIDA”), a not-for-profit corporation organized under the laws of Monaco and Netbay, a corporation organized under the laws of Monaco (“Netbay”).
For purposes of this Agreement, the following definitions shall apply:
1. A "Consensus Policy" is a policy relating to the operation of registries generally that is adopted by ICANN and in force pursuant to the Registry Agreement between ICANN and NSI, signed November 10, 1999, as it may be amended from time to time, or any other policy relating to the operation of registries generally that is adopted by ICANN.
2. The "Effective Date" is the date on which this Agreement is signed.
3. The "Expiration Date" is the date specified in Section 18 below.
4. "gTLDs" means the .com, .net, and .org TLDs, and any new gTLDs established by ICANN.
5. “ICANN” means the Internet Corporation for Assigned Names and Numbers, a California not-for-profit corporation.
6. “NSI” means Network Solutions, Incorporated, a Delaware corporation.
7. "Personal Data" refers to data about any identified or identifiable natural person.
8. "Registry Data" means all data maintained in electronic form in the registry database, and shall include Zone File Data, WHOIS, all data submitted by registrars in electronic form, and all other data concerning particular registrations or nameservers maintained in electronic form in the registry database.
9. "Registry Services" means operation of the registry for the Registry TLD and shall include receipt of data concerning registrations and nameservers from registrars, provision of status information to registrars, operation of the registry TLD zone servers, dissemination of TLD zone files and operation of the WHOIS service.
10. "Registry TLD" refers to the .FIN TLD.
11. "SLD" refers to a second-level domain in the Internet domain name system.
12. "Term of this Agreement" begins on the Effective Date and runs through the earliest of (a) the Expiration Date, (b) termination of this Agreement under Section 11 or Section 18,
13. "TLD" refers to a top-level domain in the Internet domain name system.
14. "Zone File Data" means all data contained in domain name system zone files for the Registry TLD as provided to TLD nameservers on the Internet.
FIDA and Netbay agree as follows:
1. Designation of Registry. FIDA acknowledges and agrees that Netbay is and will remain the registry for the Registry TLD throughout the Term of this Agreement.
2. General Obligations of Netbay.
(A) During the Term of this Agreement:
(i) Netbay agrees that it will operate the registry for the Registry TLD in accordance with this Agreement;
(ii) Netbay shall comply, in its operation of the registry, with all Consensus Policies insofar as they are generally applicable to registries operating under the authority of ICANN, including, without limitation, policies in conformance with:
(a) principles for allocation of SLD names (e.g., first-come/first-served, timely renewal, holding period after expiration);
(b) prohibitions on warehousing of or speculation in domain names by registry or registrars;
(c) reservation of SLD 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., single-letter/digit names);
(d) the allocation among continuing registrars of the SLD names sponsored in the registry by a registrar losing accreditation; and
(e) dispute resolution policies that take into account the use of a domain name.
(B) Netbay acknowledges and agrees that upon the earlier of (i) the Expiration Date or (ii) termination of this Agreement by FIDA pursuant to Section 11, it will cease to be the registry for the Registry TLD, unless prior to the end of the term of this Agreement Netbay is chosen as the Successor Registry in accordance with the provisions of this Agreement.
3. Netbay Registry-Level Financial Support of FIDA. Netbay, in its role as operator of the registry for the Registry TLD, shall pay registry-level fees to FIDA in accordance with the following schedule:
Year Beginning of term x000 Euros
Year1 Q1 250
Year2 Q1 170
Year3 Q1 170
Year4 Q1 170
In addition, Netbay will pay to FIDA a quarterly fee in the amount of Euros 1,000 for each active registrar that registers SLDs in the .FIN TLD to reimburse FIDA for cost of audit of registrars by FIDA appointed auditing firms.
These data can be lowered after year 2 to reflect negative discrepancies between the assumptions of the business plan and reality.
4. Data Escrow. Netbay shall deposit into escrow all Registry Data on a schedule (not more frequently than weekly for a complete set of Registry Data) and in an electronic format mutually approved from time to time by Netbay and FIDA, such approval not to be unreasonably withheld by either party. The escrow shall be maintained, at Netbay's expense, by a reputable escrow agent mutually approved by Netbay and FIDA, such approval also not to be unreasonably withheld by either party. The escrow shall be held under an agreement among FIDA and Netbay 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 FIDA or to another registry designated by FIDA and approved by ICANN; (B) the data shall be released to FIDA upon termination of this Agreement by FIDA under Section 11 or upon the Expiration Date. ).
5. Netbay Handling of Personal Data. Netbay agrees to notify registrars sponsoring registrations in the registry operated by Netbay 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. Netbay shall take reasonable steps to protect Personal Data from loss, misuse, unauthorized disclosure, alteration or destruction. Netbay shall not use or authorize the use of Personal Data in a way that is incompatible with the notice provided to registrars.
6. Publication by Netbay of Registry Data.
(A) Netbay 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 which, 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, Netbay will implement that policy.
(B) To ensure operational stability of the registry, Netbay may temporarily limit access under subsection A, in which case Netbay shall immediately notify FIDA of the nature of and reason for the limitation. Netbay shall not continue the limitation longer than three business days if FIDA objects in writing, which objection shall not be unreasonably made. Such temporary limitations shall be applied in a nonarbitrary manner and shall apply fairly to any registrar similarly situated, including Netbay.
(C) Netbay 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.
7. Rights in Data. Except as permitted by the Registrar License and Agreement, Netbay shall not be entitled to claim any intellectual property rights in data in the registry supplied by or through registrars. In the event that Registry Data is released from escrow under Section 5 or transferred to a Successor Registry under Section 17, any rights held by Netbay as registry in the data shall automatically be licensed on a non-exclusive, irrevocable, royalty-free, paid-up basis to the recipient of the data.
8. Limitation of Liability. Neither party shall be liable to the other under this Agreement for any special, indirect, incidental, punitive, exemplary or consequential damages.
9. Specific Performance. During the Term of this Agreement, either party may seek specific performance of any provision of this Agreement as provided by Section 10, provided the party seeking such performance is not in material breach of its obligations.
10. 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, by an arbitration conducted as provided in this Section pursuant UNCITRAL
11. Termination. 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.
12. 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) Netbay may assign this Agreement as part of the transfer of its registry business, and (b) FIDA may, in conjunction with a reorganization or reincorporation of FIDA, assign this Agreement to another non-profit corporation organized for the same or substantially the same purposes as FIDA.
13. Netbay Agreements with Registrars. Netbay shall make access to the Shared Registration System available to all ICANN-accredited registrars.
14. Bulk Access to Zone Files. Netbay shall provide third parties bulk access to the zone files for the .FIN TLD in accordance with the Consensus Policies.
15. Price for Registry Services. The price(s) to accredited registrars for entering initial and renewal SLD registrations into the registry database and for transferring a SLD registration from one accredited registrar to another will be as set forth in Appendix to this Agreement. These prices may, from time to time, be increased through an amendment to this Agreement as approved by FIDA and Netbay, such approval not to be unreasonably withheld, to reflect demonstrated increases in the net costs of operating the registry arising from (1) ICANN policies adopted after the date of this Agreement, or (2) legislation specifically applicable to the provision of Registry Services adopted after the date of this Agreement, to ensure that Netbay recovers such costs and a reasonable profit thereon; provided that such increases exceed any reductions in costs arising from (1) or (2) above.
16. Additional Netbay Obligations. Netbay shall provide all licensed Accredited Registrars with equivalent access to the Shared Registration System.
17. Designation of Successor Registry.
(A) Not later than one year prior to the end of the term of this Agreement, FIDA shall commence negotiations with Netbay for an extension of the term or 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) Netbay 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 Netbay is the incumbent shall disadvantage Netbay in comparison to other entities seeking to serve as the Successor Registry.
(C) If Netbay or its assignee is not designated as the Successor Registry, Netbay or its assignee shall cooperate with FIDA 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) FIDA 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. FIDA shall not charge any additional fee to the Successor Registry.
(E) In the event that a party other than Netbay or its assignee is designated as the Successor Registry, Netbay shall have the right to challenge the reasonableness of FIDA's failure to designate Netbay or its assignee as the Successor Registry under the provisions of Section 10.
18. Expiration of this Agreement. The Expiration Date shall be four years after the Effective Date.
19. 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 FIDA under this Agreement shall be effective when written notice of them is deemed given to Registry.
If to FIDA, addressed to:
If to Registry, addressed to:
20. 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 Monaco.
21. Language. All notices, designations, and specifications made under this Agreement shall be in the English language.
22. Entire Agreement. This Agreement constitutes the entire agreement of the parties hereto pertaining to the registry for the Registry TLD 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.
23. 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.
24. 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.