|- Application for the .org Top-Level Domain -
The .ORG Foundation
|- APPENDIX C - The .Org Foundation, Inc. -
.Org Facilities and Services Contract
This definitive agreement ("Agreement"), effective as of June 15, 2002, is between The .Org Foundation with its principal place of business at 411 - 108th Avenue NE Suite 720 Bellevue WA 98004 (referred to as "Foundation"), and eNom, Inc., ("eNom") a Washington corporation, with a place of business at 16771 NE 80th Street, Suite 100, Redmond, Washington, 98052.
Foundation is submitting a bid (the "Bid") to ICANN on June 18, 2002 to act as a registry operator for the .org TLD (the "awarded TLD"). In the event that Foundation is awarded the right to operate the registry, eNom will provide Foundation with certain registry functions ("the Contract Functions") as the Registry Service Provider as set forth in Appendix A to this Agreement.
2. Definitive Contract
Once effective, the Agreement and all Appendices hereto shall represent the binding agreement of the parties. The term of this Agreement shall be three years from the date that the Contract Functions are first made available to registrars for domain name registration and to the public for resolution and whois services (the "Term").
Except with respect to non-disclosure, non-compete, and cooperative development obligations, all as more fully set forth herein, which shall become effective upon execution of this Agreement, the remainder of the obligations of the parties hereto shall not commence until a contract is executed between ICANN and Foundation authorizing Foundation to operate a registry for the awarded .org TLD ("ICANN Contract").
4. Non-Disclosure and Confidentiality
Foundation and ENom have entered into a nondisclosure agreement ("NDA"), which is incorporated herein by reference, in connection with the negotiation and execution of this Agreement. The terms of such NDA shall be extended during the Term and shall be incorporated herein by reference.
5. The Bid Process
5.1 Foundation shall prepare and submit the Bid to ICANN.
5.2 eNom and Foundation shall jointly prepare information for inclusion in the Bid application to meet the requirements for providing technical information to ICANN. ENom shall also provide Foundation with financial, technical and management resource information for inclusion in the Bid.
6. Registry Service Offering
6.1 ENom will perform the Contract Functions commensurate with industry standards and summarized in the following table
and as agreed to in the Registry Performance Specifications of the Foundation's Registry Agreement with ICANN. ENom agrees to provide additional functional areas of the registry such as Whois, and Bulk Access to WHOIS and real-time DNS Zone updates.
6.2 eNom will make the RRP Contract Functions available in accordance with their specifications within five months after execution of the ICANN Contract, or before the previous registry operator's contract ends, whichever is first. In the event that eNom fails to make the Contract Functions available on this date, then on such date, this Agreement shall terminate. Conversion to EPP will not be required before the previous registry operator's contract ends.
6.3 Foundation will purchase (estimated at $1 million), and therefore, own, all the hardware (Hardware) necessary to carry out Registry Functions, and pay for its installation and setup. The hardware will reside where eNom designates.
7. Price; Payment Mechanism
During the Term, Foundation shall pay eNom fees for domain names under management within the registry for the awarded TLD at a maximum rate of $3.33 USD per domain name per year. Any fees payable to ICANN shall be borne exclusively by Foundation. Multiple-year registrations shall be paid for on an annual basis. Foundation shall pay eNom in a pre-paid minimum advance (which will be $3.33 times the projected monthly average number of name-years) netted monthly against the previous month.
8. Privacy, Information Segregation and Neutrality
8.1 eNom shall maintain all data received in connection with the provision of the Contract Functions in accordance with the (i) Contract Functions requirements; (ii) applicable laws; and (iii) other restrictions or requirements imposed on Foundation by ICANN, registrars or other third parties and provided by Foundation to eNom in writing.
8.2 ENom will establish and adhere to neutrality policies to insure separation of eNom registrar functions and Foundation registry functions. Upon awarding of the TLD by ICANN, to help ensure fair access and to remove a potential conflict of interest, eNom will immediately refrain from making further registrations as a registrar of record in the .org registry. It will maintain existing .org names it sponsors until they can be transferred to another ICANN accredited registrar. After this transition is completed, eNom, Inc. will become de-accredited as a .org registrar. In addition, eNom is prohibited from providing any registry services to the Foundation other than those listed in this agreement, unless it has written permission from Foundation to do so. eNom is not prohibited from providing registry services for other TLD or SLD registries or other registry operators.
9. Intellectual Property
9.1 eNom shall own the software source code used to provide the Contract Functions (the "Software").
9.2 Nothing contained herein shall prevent Foundation from building a system to enable it to provide the Contract Functions or similar services after the Termination of this Agreement. All intellectual property contained in such system shall be owned by Foundation.
9.3 To the extent that Foundation requests eNom to develop any enhancements to, or derivative works of the Software to comply with ICANN policy, or IETF BCPs and RFCs, eNom shall provide those enhancements or derivative works at no charge. Enhancements outside that scope will be subject to payment terms to be negotiated hereafter. eNom shall own intellectual property rights in any such enhancements without a duty of accounting.
10.1 Foundation shall have a right to terminate this Agreement immediately upon written notice if a Default (as hereinafter defined) by eNom has occurred and is continuing under this Agreement.
10.2 eNom shall have a right to terminate this Agreement immediately upon written notice if a Default (as hereinafter defined) by Foundation has occurred and is continuing under this Agreement.
10.3 Upon any termination or expiration of this Agreement, eNom shall assist Foundation for up to twelve (12) months, or such other period as the parties may mutually agree upon, in the orderly transition of provision of the Contract Functions from eNom to any successor provider of the Contract Functions. eNom shall provide continued Contract Functions upon the price and payment terms provided in this Agreement.
10.4 Upon any termination or expiration of this Agreement, eNom shall have the right to purchase any or all the Hardware (from section 6.3 of this agreement) for the fully depreciated cost, and additionally, at any time before termination or expiration of this Agreement, eNom shall have the right to purchase from Foundation any or all the Hardware for what it cost the Foundation.
10.5 In the event that Foundation desires to extend the contract for additional two-year terms, eNom shall agree to such extension on the price and other terms and conditions to be mutually agreed between the parties.
10.6 In the event that the Foundation is not the successor .org registry after the Foundation's initial or subsequent term expires, eNom, if eNom has not been terminated as the Registry Service Provider prior to that time, shall be entitled to any registry operator transfer fee (per Section 5.2.3 of the Registry Agreement) paid to Foundation on a pro rata basis, defined as the ratio of the fee paid to eNom by the Foundation (currently set by this Agreement at $3.33) and the fee charged to registrars by the Foundation at the time of initial or subsequent term expiration.
The parties shall each bear their respective costs and expenses including, without limitation, expenses of all attorneys, accountants, advisors and brokers retained by or representing them in connection with the transactions contemplated by this Agreement ("the Proposed Transaction").
A "Default" shall be deemed to have occurred in the event that (a) a party fails to perform any of its material obligations and such failure continues for a period of sixty (60) days following receipt of written notice of such failure from the other; or (b) a party becomes bankrupt. A party shall be deemed to be bankrupt if (i) a receiver, trustee, administrator, or administrative receiver is appointed for that party or its property, (ii) if the party makes an assignment for the benefit of creditors, (iii) any proceedings are commenced against that party under any bankruptcy, insolvency or debtor's relief law and such proceedings are not vacated or set aside within one hundred and twenty (120) days from the date of commencement thereof, or (iv) the party is liquidated or dissolved.
ENom will cooperate with Foundation in negotiations with ICANN as reasonably requested by Foundation. In the course of negotiations with ICANN, in the event that ENom does not agree to, or cannot meet, changes or requirements requested by ICANN, then Foundation shall be free to negotiate and contract with other technology providers to provide the same or similar services as the Contract Functions.
14. Prior Arrangements
This Agreement replaces all prior contracts, understandings and arrangements among Foundation and ENom with regard to the subject matter of this Agreement.
ENom shall deposit all information in the registry database (the Registry Data) and related documentation into an escrow account pursuant to an escrow agreement to be entered into among Foundation, eNom, and an escrow agent. If eNom or the Foundation terminates this Agreement for a Default, other than pursuant to section 6.2 hereof, the escrow agreement shall authorize release of the Registry Data to Foundation to use as if it were the owner thereof.
16. Liability Limitation
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA OR PUNITIVE OR EXEMPLARY, OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING RESTITUTION OR NEGLIGENCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OTHER THAN IN CONNECTION WITH ENOM'S OBLIGATIONS TO INDEMNIFY SET FORTH SECTION HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT IN AN AMOUNT IN EXCESS OF FEES PAID BY FOUNDATION TO ENOM FOR THE PRIOR THREE MONTH PERIOD PROVIDED THAT THIS LIMITATION SHALL NOT APPLY TO FOUNDATION'S PAYMENT OBLIGATIONS HEREUNDER.
eNom shall defend or, at its option, settle, any claim or proceeding brought against Foundation, and its agents, officers and employees, either in their individual capacities or by reason of their relationship to Foundation, and its successors, to the extent that such claim or proceeding is based on an assertion that the Contract Functions infringes any existing (i) patent, (ii) copyright, (iii) trademark, or (iv) trade secret, and shall indemnify Foundation against all costs, damages or expenses (including without limitation, reasonable attorney's fees), which result from any such claim or proceeding. Foundation shall promptly notify eNom in writing of any such claim or proceeding and ENom shall have sole control of any defense, compromise or settlement of such claim. Foundation shall reasonably assist eNom, at eNom's sole cost and expense, in connection with any such claim.
18. Governing Law
This Agreement and the Contract will be governed and construed under the laws of the state of Washington without regard to conflicts of laws principles. This Agreement may only be amended or otherwise modified in a writing signed by the parties.
19.1 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which shall together constitute one and the same instrument. This Agreement shall become binding when one or more counterparts hereof, individually, or taken together, shall bear the signatures of all of the parties reflected hereon as the signatories. Execution may be effected by delivery of facsimiles of signature pages (and the parties shall follow such delivery by prompt delivery of originals of such pages).
19.2 Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be (a) delivered in person; (b) sent by first class registered U.S. mail, or air mail, as appropriate; or (c) sent by overnight courier, in each case properly posted to the appropriate address set forth herein. Any party may change its address for notice by notice to the other parties given in accordance with this. 19.3 Notices will be considered to have been given at the time of actual delivery in person, three (3) business days after deposit in the U.S. mail as set forth above, or one (1) day after delivery to an overnight courier service, except for a notice changing a party's address which shall be deemed given at the time of receipt thereof.
(a) In the case of notice to Foundation, notice shall be addressed:
Attention: The .org Foundation 411 108th Ave NE Suite 720 Bellevue 98004
(b) In the case of notice to ENom, notice shall be addressed:
Attention: Compliance eNom, Inc. 16771 NE 80th Street Redmond WA 98052
19.5 Separability. In the event any provision hereof, or the application thereof in any circumstances, is held to be invalid, illegal or unenforceable by a final or unappealable order, decree or judgment of any court, the provision in question shall be deemed replaced with a valid and enforceable provision most closely reflecting the intent and purpose of the original provision within the jurisdiction of such court and the Agreement shall otherwise remain in full force and effect in such jurisdiction and in its entirety in other jurisdictions.
19.6 Force Majeure. Neither party shall be responsible for any failure to perform any obligation or provide service hereunder because of any act of God, strike, work stoppage, service outage, governmental acts or directives, war, terrorism, riot or civil commotion, or other similar forces beyond such party's reasonable control.
The .Org Foundation, Inc.:
Name: Terry Drayton
Title: On behalf of The .ORG Foundation
Name: Paul Stahura
.Org Facilities and Services
Renewals (extending registrations)
Orderly re-registration of deleted names
Including zone updates
Compliance with all registry related IETF BCPs and RFC and ICANN policy
RRP to EPP transition
Extending the EPP to perform self-identification and polling mechanisms described in the .org proposal
Registrar technical support 24x7
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