This Registry Services Agreement (the "Agreement") is dated as of June 14, 2002 ("Effective Date") by and between Register.com, Inc., a Delaware corporation, with its principal place of business located at 575 Eighth Avenue, New York, NY 10018 ("Provider"), and Register Organization, Inc., a Delaware corporation, with its principal place of business located at 575 Eighth Avenue, New York, NY 10018 ("Registry"). Provider and Registry may be referred to individually as a "Party" and collectively as the "Parties."
WHEREAS, the Internet Corporation for Assigned Names and Numbers ("ICANN") has granted to Registry the exclusive right to operate and maintain certain TLD servers and zone files for the .org TLD (the "Business");
WHEREAS, Provider wishes to provide Registry with certain technical and support services for the ongoing operation of the Business;
NOW, THEREFORE, for and in consideration of the mutual promises, benefits and covenants contained herein and for other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, Provider and Registry, intending to be legally bound, hereby agree as follows:
1.1. "DNS" refers to the Internet domain name system.
1.2. "End Customers" shall mean any person or entity who has requested the registration or renewal of a domain name in the TLD whether directly or indirectly through a Registrar or any registry.
1.3. "IP" means Internet Protocol.
1.4. "Launch Date" means the date on which the Registry commences registration of domain names in the TLD.
1.5. The "Licensed Product" refers to the RRP, APIs, and the Software, collectively (as each term is defined below), as well as updates and redesigns thereof.
1.6. "Registrar" shall mean any accredited registrar with whom Registry enters into an agreement that contains the terms set forth in Exhibit A and remains in good standing with respect to terms set forth in Exhibit A.
1.7. "Registration" shall mean each one-year domain name registration, renewal or extension registered by Registry through the System.
1.8. "Registry Database" shall mean any information received by Registrars through the RRP.
1.9. The "System" refers to the registration system developed by Provider for registration of domain names in the TLD, as described in the specifications attached as Exhibit B.
1.10. "TLD" shall mean the top-level domain of .org in the DNS or any second-level domain in the top-level domain .org in the DNS.
2. OBLIGATIONS OF THE PARTIES
2.1. System Operation and Access. Throughout the Term of this Agreement, Provider shall operate the System and provide any Registrar with access to the System enabling such Registrar to transmit domain name registration information for the TLD to the System according to a protocol developed by Provider and referred to as the Registry Registrar Protocol ("RRP").
2.2. Delivery of RRP, APIs and Software. Within 60 days after the Effective Date, Provider shall provide to Registry (i) full documentation of the RRP, (ii) application program interfaces ("APIs") to the RRP with documentation as specified by the functional specifications in Exhibit B, and (iii) reference client software ("Software") that will enable Registrars to develop their respective systems to submit registrations of domain names through the System for the TLD.
2.3. Data Submission Requirements. As part of its registration of domain names in the TLD during the Term, Registry shall ensure that all End Customers submit the data elements required by the functional specifications in Exhibit B using the RRP concerning domain name registrations processed through the System ("Data Elements").
2.4. License. Registry grants Provider a non-exclusive license to the Data Elements for:
2.4.1 Propagation of and the provision of authorized access to the TLD zone files;
2.4.2 Propagation of such elements into the DNS;
2.4.3 Display of the WHOIS record for any domain name;
2.4.4 Licensing such data elements to third parties in accordance with any license requirements that may arise form time to time;
2.4.5 Providing the services set forth in this Agreement; and
2.4.6 Providing to third-party service providers of Registry or Provider.
2.5. Registry's Agreement with Registrars. As a condition of Provider providing any Registrar with access to the System, Registry shall require each Registrar with whom it conducts business to agree to the terms set forth in Exhibit A. Registry shall include terms in its Agreement with Registrars that are consistent with Registry's obligations to Provider hereunder. In the event any Registrar violates the terms of Exhibit A or is otherwise compromising the integrity of the System, Provider shall provide notice of the same to Registry and Provider shall have the right to suspend access to the System for such Registrar until such violation is cured.
2.6. Additional Services. Provider shall provide Registry with the services set forth on Exhibit C (the "Additional Services").
2.7. Time. Registry agrees that in the event of any dispute concerning the time of the entry of a domain name registration into the System, the time shown in Provider’s records shall control.
2.8. Compliance with Terms and Conditions. Registry agrees to comply with all other reasonable terms or conditions established by Provider from time to time, in its sole discretion, to assure sound operation of the System.
2.9. Communication with IANA. In the event Provider elects to eliminate, replace or add nameservers to the System, Registry shall submit such request to IANA within 24 hours of receipt from Provider. Provider shall not be liable for any damages in the event Registry fails to deliver such request in a timely basis or if IANA fails to comply with such request.
2.10. Exclusive Provider. Provider shall be the exclusive provider of registry services to Registry. Nothing contained herein shall prevent Provider from offering similar services to any other third party.
3.1. License Grant. Subject to the terms and conditions of this Agreement, Provider hereby grants Registry a non-exclusive, non-transferable, worldwide limited license to use for the Term and purposes of this Agreement the Licensed Product to provide domain name registration services in the TLD only and for no other purpose. Registry shall have the right to sub license the Licensed Product to any Registrar who has agreed to the terms set forth on Exhibit A, solely as required to submit registration requests. The Licensed Product will enable Registry and Registrars to submit registration requests through the System. Registry and Registrars, using the Licensed Product, will be able to invoke the operations on the System as set forth in Exhibit B hereto.
3.2. Limitations on Use. Notwithstanding any other provisions in this Agreement, except with the written consent of Provider, Registry shall not: (i) except as set forth in Section 3.1, sublicense the Licensed Product or otherwise permit any use of the Licensed Product by or for the benefit of any party other than Registry, (ii) publish, distribute or permit disclosure of the Licensed Product other than to employees, contractors, and agents of Registry for use in Registry's domain name registry business, or (iii) decompile, reverse engineer, copy or re-engineer the Licensed Product. In no event shall Registry use or permit use of the Licensed Product in violation of (a) Registry's agreement with ICANN with respect to the operation and maintenance of the TLD, or (b) any federal, state or local rule, regulation or law, or for any unlawful purpose.
3.3. Changes to Licensed Materials. Provider may from time to time make modifications to the Licensed Product licensed hereunder. Provider will, to the extent reasonably possible, provide Registry with at least thirty (30) days notice prior to the implementation of any material changes to the Licensed Product.
4. SUPPORT AND TECHNICAL SERVICES
4.1. Technical Support. During the Term of this Agreement, Provider agrees to provide Registry with reasonable technical telephone and e-mail support 24 hours per day, seven (7) days per week to address engineering issues arising in connection with the System.
4.2. Customer Service Support. During the Term of this Agreement, Provider agrees to provide Registry with reasonable telephone and e-mail customer service support (Monday through Friday between the hours of 9 a.m. and 5 p.m. local New York time, excluding holidays), to address non-technical issues relating to the System and its operation.
4.3. No Support for End Customers. In no event shall Provider provide support for End Customers.
4.4. Service Level Agreement. Provider shall comply with the service levels set forth in Exhibit D hereto. . In the event the SLA requirements set forth in the ICANN Agreement are inconsistent with the service levels set forth in Exhibit C, Provider shall agree to all terms necessary to make such terms consistent with the ICANN Agreement subject to any additional terms requested by Provider and as agreed upon by the Parties.
5.1. Registration Fees.
During the Term, Registry agrees to pay Provider a price which is currently estimated not to exceed $3.00 for every Registration (the “Registration Fee”).
Provider will invoice Registry monthly in arrears for each month's Fees (as defined below). All Registration Fees are due immediately upon receipt of Provider's invoice pursuant to a letter of credit, deposit account, or other acceptable credit terms agreed by the Parties.
The Parties agree that for multi-year Registrations, Provider shall invoice Registry up front for all Registration years upon initial registration of a domain name.
5.2. Non-Payment of Registration Fees or Other Fees. Timely payment of Registration Fees or any other fees owed to Provider in accordance with Exhibit C (collectively, “Fees”), is a material condition of performance under this Agreement. In the event that Registry fails to pay its Fees, within five (5) days of the date when due, Provider may stop accepting new registrations and/or delete the domain names associated with invoices not paid in full from the System database and give written notice of termination of this Agreement pursuant to Section 6.2 below.
6. Term of Agreement and Termination.
6.1. Term of the Agreement. The duties and obligations of the Parties under this Agreement shall apply for a period of six (6) years from the Launch Date (the "Initial Term"). Upon conclusion of the Initial Term, all provisions of this Agreement will automatically renew for successive one (1) year renewal periods until the Agreement has been terminated as provided herein (the Initial Term together with any renewal periods shall be referred to as the “Term”), or unless either party provides notice of non-renewal 180 days before the end of the initial term or any renewal term.
6.2. Termination For Cause. In the event that either Party materially breaches any term of this
Agreement including any of its representations and warranties hereunder and
such breach is not cured within thirty (30) calendar days after written notice
thereof is given by the other Party, then the non-breaching Party may, by
giving written notice thereof to the other Party, terminate this Agreement as
of the date specified in such notice of termination. Such termination must occur within ninety (90) days of the
6.3. Termination Upon Loss of Registry's Authority. This Agreement shall terminate in the event Registry's right to operate the TLD is terminated or significantly diminished by ICANN, or its successor, expires without renewal or is otherwise terminated.
6.4. Termination in the Event of Bankruptcy. Either Party may terminate this Agreement if the other Party is adjudged insolvent or bankrupt, or if proceedings are instituted by or against a Party seeking relief, reorganization or arrangement under any laws relating to insolvency, or seeking any assignment for the benefit of creditors, or seeking the appointment of a receiver, liquidator or trustee of a Party's property or assets or the liquidation, dissolution or winding up of a Party's business.
6.5. Termination for Registry or Registrar Conduct. Provider may terminate this Agreement if any act or omission of Registry or any Registrar, disrupts, diminishes or is otherwise detrimental to the System and is not cured within twenty-four (24) hours of notice of the same to Registry.
6.6. Registrar's Breach of Terms. Provider may terminate this Agreement if any Registrar violates the terms set forth in Exhibit A and such violation is not cured within seven (7) days of notice to Registry of such violation. Notwithstanding the foregoing, Provider reserves the right to discontinue such Registrar's access to the System and the Licensed Product.
6.7. Effect of Termination. Immediately upon any expiration or termination of this Agreement, Registry shall either return to Provider or certify to Provider the destruction of all Licensed Products, data, software and documentation it and any Registrar has received under this Agreement.
6.8. Survival. In the event of termination of this Agreement, the following Sections shall survive: 2.4, 2.5, 2.8, 5, 6, 7, 8, 9, 10, 11 and Exhibit C. Neither Party shall be liable to the other for damages of any sort resulting solely from terminating this Agreement in accordance with its terms but each Party shall be liable for any damage arising from any breach by it (and in the case of Registry, by any Registrar) of this Agreement.
7. Registry Database.
Registry shall have exclusive rights in the Registry Database, provided, however, that Provider shall be entitled to use the Registry Database and the information contained therein to provide the services hereunder.
8. LIMITATION OF LIABILITY.
EXCEPT AS SET FORTH IN THIS AGREEMENT, REGISTRY AGREES THAT PROVIDER WILL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY (a) SUSPENSION, LOSS, OR MODIFICATION OF ANY DOMAIN NAMES IN THE TLD, (b) INTERRUPTION OF BUSINESS, (c) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE SYSTEM, (d) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION, (e) EVENTS BEYOND PROVIDER'S REASONABLE CONTROL. IN NO EVENT WILL PROVIDER BE LIABLE TO REGISTRY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES RESULTING FROM LOSS OF PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL PROVIDER'S MAXIMUM AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY REGISTRY HEREUNDER DURING THE SIXTY (60) DAY PERIOD THAT IMMEDIATELY PRECEDES THE ACT THAT GAVE RISE TO SUCH LIABILITY. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, PROVIDER'S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
9. REPRESENTATIONS AND WARRANTIES
9.1 Registry. Registry represents and warrants that: (1) it is a corporation duly incorporated, validly existing and in good standing under the law of the Delaware, (2) it has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement, (3) it is, and during the Term of this Agreement will continue to be, authorized by ICANN or its successor, pursuant to a registry agreement to exclusively operate and maintain the TLD, (4) it has, and during the Term of the Agreement will continue to have, all rights necessary to subcontract the Services to Provider hereunder, (5) the execution, performance and delivery of this Agreement has been duly authorized by Registry, and (6) no further approval, authorization or consent of any governmental or regulatory authority is required to be obtained or made by Registry in order for it to enter into and perform its obligations under this Agreement.
9.2 Provider. Provider represents and warrants that: (1) it is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware, (2) it has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement, (3) the execution, performance and delivery of this Agreement has been duly authorized by Provider, and (4) no further approval, authorization or consent of any governmental or regulatory authority is required to be obtained or made by Provider in order for it to enter into and perform its obligations under this Agreement.
9.3. Disclaimer of Warranties. The Licensed Product is provided "as-is" and without any warranty of any kind. PROVIDER EXPRESSLY DISCLAIMS ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY OR SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. PROVIDER DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE RRP, APIs OR SOFTWARE WILL MEET REGISTRY'S REQUIREMENTS, OR THAT THE OPERATION OF THE RRP, APIs OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE RRP, APIs OR SOFTWARE WILL BE CORRECTED. FURTHERMORE, PROVIDER DOES NOT WARRANT NOR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE RRP, APIs, SOFTWARE OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. SHOULD THE RRP, APIs OR SOFTWARE PROVE DEFECTIVE, REGISTRY ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION OF REGISTRY'S OWN SYSTEMS AND SOFTWARE.
Registry, at its own expense will indemnify, defend and hold harmless Provider and its employees, directors, officers, representatives, agents and affiliates, against any claim, suit, action, or other proceeding brought against Provider or any affiliate of Provider based on or arising from any claim or alleged claim (i) relating to any product or service of Registry; (ii) relating to any agreement with a Registrar or End Customer; or (iii) relating to Registry's domain name registry business, including, but not limited to, Registry's advertising, domain name application process, verification of domain name restrictions process, systems and other processes, fees charged, billing practices and customer service; provided, however, that in any such case: (a) Provider provides Registry with prompt notice of any such claim, and (b) upon Registry's written request, Provider will provide to Registry all available information and assistance reasonably necessary for Registry to defend such claim, provided that Registry reimburses Provider for its actual and reasonable costs. Registry will not enter into any settlement or compromise of any such indemnifiable claim without Provider's prior written consent, which consent shall not be unreasonably withheld. Registry will pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys' fees and costs awarded against or otherwise incurred by Provider in connection with or arising from any such indemnifiable claim, suit, action or proceeding.
11.1. No Third Party Beneficiaries; Relationship of The Parties. This Agreement does not provide and shall not be construed to provide third parties (i.e., non-parties to this Agreement), including any Registrar or End Customer, with any remedy, claim, cause of action or privilege. Nothing in this Agreement shall be construed as creating an employer-employee or agency relationship, a partnership or a joint venture between the Parties.
11.2. Force Majeure. Neither Party shall be responsible for any failure to perform any obligation or provide service hereunder (except for any payment obligations) because of any Act of God, strike, work stoppage, governmental acts or directives, war, riot or civil commotion.
11.3. Further Assurances. Each Party hereto shall execute and/or cause to be delivered to each other Party hereto such instruments and other documents, and shall take such other actions, as such other Party may reasonably request for the purpose of carrying out or evidencing any of the transactions contemplated by this Agreement.
11.4. Amendment in Writing. Any amendment or supplement to this Agreement shall be in writing and duly executed by both Parties.
11.5. Dispute Resolution; Choice of Law; Venue. This Agreement is to be construed in accordance with and governed by the internal laws of the State of New York, United States of America without giving effect to any choice of law rules. Any legal action or other legal proceeding relating to this Agreement or the enforcement of any provision of this Agreement shall be brought or otherwise commenced in any state or federal court located in the New York County, New York. Each Party to this Agreement expressly and irrevocably consents and submits to the jurisdiction and venue of each state and federal court located in New York County, New York in connection with any such legal proceeding.
11.6. Notices. Any notice or other communication required or permitted to be delivered to any Party under this Agreement shall be in writing and shall be deemed properly delivered, given and received when delivered (by hand, by registered mail, by courier or express delivery service, by e-mail or by telecopier during business hours) to the address or telecopier number set forth beneath the name of such Party below, unless party has given a notice of a change of address in writing:
if to Registry:
Register ORGanization, Inc.
575 Eighth Avenue
New York, NY 10018
if to Provider:
New York, NY 10018
11.7. Assignment/Sublicense. Except as otherwise expressly provided herein, the provisions of this Agreement shall inure to the benefit of and be binding upon, the successors and permitted assigns of the Parties hereto. Registry shall not assign, sublicense or transfer its rights or obligations under this Agreement to any third person without the prior written consent of Provider.
11.8. Use of Confidential Information. The Parties' use and disclosure of Confidential Information disclosed hereunder are subject to the terms and conditions of the Parties' Confidentiality Agreement, entered into as of June 15, 2002. Registry agrees that the Licensed Product is the Confidential Information of Provider.
11.9. Press Releases; Public Statements; Disclosure of Terms. Except for such disclosures as are required by law, no public announcements or other public statements (including in any press conference, trade publication, marketing materials or otherwise), and no disclosure to any third party with respect to the existence, subject matter and/or terms of this Agreement shall be made by Registry without the prior written approval of Provider.
11.10. Delays or Omissions; Waivers. No failure on the part of either Party to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of either Party in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise or waiver of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. No Party shall be deemed to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such Party; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.
11.11. Construction. The Parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not be applied in the construction or interpretation of this Agreement.
11.12. Intellectual Property; Use of Logos.
11.12.1. Each Party will continue to independently own its intellectual property, including all patents, trademarks, trade names, service marks, copyrights, trade secrets, proprietary processes and all other forms of intellectual property. Registry specifically acknowledges that Provider owns all right, title and interest in the Licensed Products.
11.12.2. Registry shall not use Provider's name and/or logo in any manner whatsoever, including in advertising and promotional materials or in any communications with third parties, without Provider's prior written permission.
11.13. Entire Agreement; Severability. This Agreement, including all exhibits, constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes any prior agreements, representations, statements, negotiations, understandings, proposals or undertakings, oral or written, with respect to the subject matter expressly set forth herein. If any provision of this Agreement shall be held to be illegal, invalid or unenforceable, each Party agrees that such provision shall be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. If necessary to effect the intent of the Parties, the Parties shall negotiate in good faith to amend this Agreement to replace the unenforceable language with enforceable language that reflects such intent as closely as possible.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date set forth in the first paragraph hereof.
Registrar Required Terms
1.1. Secure Connection. Registrar agrees to develop and employ in its domain name registration business all necessary technology and restrictions to ensure that its connection to the System is secure. All data exchanged between Registrar's system and the System shall be protected to avoid unintended disclosure of information. Each RRP session shall be authenticated and encrypted as specified by the functional specifications in Exhibit B. Registrar agrees that it shall disclose any password provided by Provider only to its employees with a need to know. Registrar agrees to notify Provider within four hours of learning that any such password has been compromised in any way or if the digital certificate or encryption key used for secure communication with Provider has been revoked by the issuing Certification Authority or compromised in any way.
1.2. Domain Name Lookup Capability. Registrar agrees to employ in its domain name registration business Provider's domain name lookup capability to determine if a requested domain name is available or currently unavailable for registration.
1.3. Time. Registrar agrees that in the event of any dispute concerning the time of the entry of a domain name registration into the System, the time shown in Provider's records shall control.
1.4. Compliance with Terms and Conditions. Registrar agrees to comply with all other reasonable terms or conditions established by Provider from time to time, to assure sound operation of the System, by Provider, upon Provider's notification to Registry of the establishment of those terms and conditions.
1.5. Resolution of Technical Problems. Registrar agrees to employ necessary employees, contractors, or agents with sufficient technical training and experience to respond to and fix all technical problems concerning the use of the RRP and the APIs in conjunction with Registrar's systems. Registrar agrees that in the event of significant degradation of the System or other emergency, Provider may, in its sole discretion, temporarily suspend access to the System.
1.6. Indemnification Required of End Customers. Registrar shall require each End Customer of a domain name in the TLD to indemnify, defend and hold harmless Provider, and its directors, officers, employees and agents from and against any and all claims, damages, liabilities, costs and expenses, including reasonable legal fees and expenses arising out of or relating to such End Customer's domain name registration and use thereof.
1.7. Indemnification by Registrar. Registrar shall indemnify, defend and hold harmless Provider, and its directors, officers, employees and agents from and against any and all claims, damages, liabilities, costs and expenses, including reasonable legal fees and expenses arising out of or relating to such Registrar's access or use of the System, including, without limitation, registration of any domain name in the TLD.
1.8. Prohibited Conduct. Registrar agrees to employ the necessary measures to prevent its access to the System granted hereunder from being used for (i) the transmission of unsolicited e-mail to entities other than Registrar's End Customers; (ii) high volume, automated, electronic processes that apply to Provider for large numbers of domain names; or (iii) high volume, automated, electronic, repetitive queries for the purpose of extracting data.
1.9. Suspension. Registrar acknowledges that if it violates any of the foregoing terms, or otherwise comprises the integrity of the System, Provider shall have the right to suspend access to the System for Registrar until such violation is cured.