Terms of Service Agreement for the Unity Registry
THIS AGREEMENT (the "Agreement"), including its attached appendices,
Unity Registry ("The Partnership"), and
Poptel Limited ("Poptel"), a company registered in England with its registered office at Rutherford House, Manchester Science Park, Manchester M15 6GG, and
AusRegistry Pty. Limited (AusRegistry"), a company registered in Australia with its registered office at Level 6, 10 Queens Rd. Melbourne 3004. Victoria. Australia
Poptel and AusRegistry are collectively referred to herein as, the "Parties".
WHEREAS, the Parties have jointly formed the Partnership for the purpose of securing an agreement with Internet Corporation for Assigned Names and Numbers ("ICANN") for the operation of the .org registry; (the "ICANN Agreement") and
WHEREAS the Parties and Unity Registry have agreed to enter into all agreements necessary to jointly operate the .org registry (the Unity Registry Operation"), this Agreement sets forth the primary terms of the essential agreements necessary to establish the Unity Registry Operation.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, Unity Registry and the Parties agree as follows:
SECTION 1. DEFINITION OF TERMSAll defined terms used herein have the meaning ascribed to them in Article 1 of Attachment 1 hereto.
SECTION 2. OPERATION
The Partnership hereby agrees to appoint the Parties as registry operator to operate the .org registry under the terms of the ICANN Agreement for the purposes of conducting the business of setting-up, managing and complete ongoing operation of the .org registry. The Parties hereby commit to and agree that they will enter into a further operating agreement, the basic form and substance of which is attached as Attachment 1 which sets out the operating commitments and responsibilities of the Parties to assume the operating responsibilities consistent with fulfilling the commitments of running the .org registry as described in the ICANN Agreement. Furthermore, the Parties agree that the ICANN Agreement in its entirety shall be appended to this subsequent agreement and shall form the substance of this commitment.
The Parties confirm that their ability to make the commitments as detailed in this service agreement is based on all the terms within the ICANN Agreement since, as they are also the sole partners in the Partnership, they have had full disclosure of the ICANN Agreement.
The ultimate partners in the Partnership being Poptel Ltd. and AusRegistry Ltd. also hereby agree and commit that they shall jointly and severally support the operation of the Registry as provided for in the ICANN agreement.
SECTION 3. PAYMENTS
The Parties agree that all monies collected from registrars or from any other third person in relation to operating the .org registry will be collected for and on behalf of the Partnership. Furthermore, the Parties agree that they will account for all monies received on a periodic basis to be agreed with the Unity Registry S.A, the (" Management Company"), at such time as directed by the Management Company the Party may apportion part of the revenues collected as payment for services according to the agreed schedule of costs and expenses incurred individually. All remaining monies that have been collected for and on behalf of Unity Registry shall then be forwarded on a timely basis to be defined to the Management Company. The Management Company shall keep accounting records consistent with both local legal requirements and good business practice and additionally shall manage the finances of the Registry consistent with the accounting goals which have been negotiated between the Partnership and ICANN and additionally ensure compliance with objectives for funding of .org community projects.
SECTION 4. OWNERSHIP OF ASSETS
The full Partnership agreement to be entered into more fully describes the financial relationship between the Parties. In particular both Parties shall bear the start-up costs and ongoing operational costs on an equal basis. Any assets that shall be owned or utilized by the Partnership or resulting from the execution of the ICANN Agreement or from the purchase and acquisition of capital equipment or from the deposit of other assets such as software or any other intellectual property, know-how or goodwill within the Partnership then such assets shall become fully available to the Partnership with respect to the operation of the .org Registry. The Partnership shall receive a fully paid up license and the term of such license is to run co-terminus with the license to operate the .org registry. Where either of the Parties declares itself or is made insolvent, appoints a Liquidator or Receiver or shall otherwise cease to trade then the remaining Party shall continue to operate the .org Registry through the Partnership and all of the assets so described shall remain at the disposal of the Partnership for the duration of the license under the ICANN Agreement.
The Parties hereby agree to all of the foregoing sub-section 4.01 above.
SECTION 5. MANAGEMENT OF JOINT OPERATIONS
The Parties agree to appoint a four person executive committee with two members drawn from each party. This executive committee will be responsible for the day to day running of the company in a manner wholly consistent with the terms of the ICANN Agreement.
SECTION 6. FUNDING COMMITMENTS
The Parties mutually commit to directly finance or otherwise arrange the underwriting of the finance necessary to set-up and operate the .org registry by recognized financial institutions in their respective territories. To this end the Parties commit to make available to ICANN or it’s representatives letters of financial comfort to demonstrate that adequate funding has been committed.
SECTION 7. REGISTRY OPERATOR AGREEMENT
The Parties agree to enter into a registry operator agreement substantially in the form attached hereto as Attachment 1.
SECTION 8. COMPLETION OF NECESSARY AGREEMENTS
The Parties agree that they shall each enter into all agreement or agreements necessary to give full force and effect to the terms of this agreement and an agreement with ICANN in a form to be negotiated.
UNITY REGISTRY POPTEL LTD/
AUSREGISTRY PTY. LTD.
THIS AGREEMENT ("Agreement"), including its attached appendices, dated as of ______________ (the "Effective Date") by and between Unity Registry ("The Partnership"), and Poptel Limited ("Poptel") a company registered in England with its registered office at Rutherford House, Manchester Science Park, Manchester M15 6GG and AusRegistry Pty. Limited ("AusRegistry"), a company registered in Australia with its registered office at Level 6, 10 Queens Rd. Melbourne 3004. Victoria. Australia (Poptel the ("Party") and AusRegistry the ("Party") collectively, the ("Parties").
WHEREAS, pursuant to agreements between the Internet Corporation for Assigned Names and Numbers ("ICANN") and Unity Registry dated _____________ (the "ICANN Agreements") which are attached hereto, Unity Registry has been recognized by ICANN as the Nominated Organization for the operation of the .org TLD; and
WHEREAS, in its capacity as Nominated Organization for the .org TLD, Unity Registry will be responsible for creating and administering policies concerning the .org TLD; and
WHEREAS, The Parties wish to provide to Unity Registry and Unity Registry wishes to engage the Parties to provide registry services on behalf of Unity Registry in connection with the .org TLD; and
WHEREAS, the Parties agree that they jointly and severally agree to provide registry services either individually or collectively with sufficient scope and breadth that the resulting operations shall comply with the terms of the ICANN agreement
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, Unity Registry and the Parties agree as follows:
SECTION 1. DEFINITION OF TERMS
[Section subject to revision to comply with specific ICANN Agreement]
"Affiliate" shall mean any entity that controls, is controlled by or is under common control with a party hereto, with control meaning the ownership of more than fifty percent (50%) of the equity or the right to direct the management of such entity.
"Books and Records" shall have the meaning set forth in Section below.
"Confidential Information" shall have the meaning set forth in Section below.
"Consensus Policy" shall mean those specifications or policies adopted based on a consensus among Internet stakeholders represented in the ICANN process, as demonstrated by (1) the adoption of the policy by the ICANN Board of Directors, (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, 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.
"Coordination Committee" shall have the meaning set forth in Section below.
"Disclosees" shall have the meaning set forth in Section below.
"Disclosing Party" shall have the meaning set forth in Section below.
"Dispute" shall have the meaning set forth in Section below.
"DNS" shall mean the Internet domain-name system.
"Effective Date" shall have the meaning set forth in the Preamble.
"Expiration Date" shall have the meaning set forth in Section below.
"Fee Audit" shall have the meaning set forth in Section below.
"Fee Auditor" shall have the meaning set forth in Section below.
"Fee Audit Report" shall have the meaning set forth in Section below.
"Force Majeure Event" shall have the meaning set forth in Section below.
"ICANN Agreements" shall have the meaning set forth in the Preamble.
"Live Date" shall have the meaning set forth in Section below.
"The Parties Manager" shall have the meaning set forth in Section below.
"The Parties Materials" shall have the meaning set forth in Section below.
"Payment Date" shall have the meaning set forth in Section below.
"Prime Rate" shall have the meaning set forth in Section below.
"Receiving Party" shall have the meaning set forth in Section below.
"Registered Name" shall mean a domain name within the domain of the .org TLD, whether at the second or a lower level, about which The Parties 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 zone file (e.g., a registered but inactive name).
"Registration Services" shall mean operational registration services provided on behalf of Unity Registry as an integral part of the registration of a domain name within the .org TLD, including its subdomains. These services include: domain registrations, transfers, renewals, and cancellations; billing and collection services; help desk and other customer support; collecting and maintaining data with respect to domain name registrations; and such other related services as may be required under this Agreement as it may be amended.
"Registry Database" shall mean a database comprised of data about one or more domain names within the domain of the .org 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.
"Registry Services" shall mean services provided as an integral part of the operation of the registry for the .org TLD, including its subdomains. These services include: receipt of data concerning registration of domain names and nameservers from registrars; provision of a searchable database containing details of domain name registrations; provision of status information relating to the .org TLD to registrars; dissemination of .org TLD zone files; operation of the .org TLD zone servers; dissemination of contact and other information concerning domain-name and nameserver registrations in the .org TLD; and such other related registry services as may be required under this Agreement as it may be amended.
"Response" shall have the meaning set forth in Section below.
"Service Level Audit" shall have the meaning set forth in Section below.
"Service Level Auditor" shall have the meaning set forth in Section below.
"Service Level Audit Report" shall have the meaning set forth in Section below.
"Services" means Registry and Registration Services performed hereunder by The Parties.
" Unity Registry Contact" shall have the meaning set forth in Section below.
"Unity Registry Data" shall have the meaning set forth in Section below.
"Taxes" shall have the meaning set forth in Section below .
"Term of this Agreement" shall have the meaning set forth in Section below.
"TLD" refers to a top-level domain in the DNS.
"TLD Zone-File Data" means all data contained in a DNS zone file for the .org TLD, or for any subdomain for which Registry Services are provided and that contains Registered Names, as provided to nameservers on the Internet.
SECTION 2. THE PARTIES OBLIGATIONS
Section 2.01 Designation.
Unity Registry hereby designates the Parties as the registry operator with the right to provide Registry Services for the .org TLD during the Term of this Agreement. During the Term of this Agreement, the Parties shall provide Registry Services in a manner that meets the functional specifications described in the ICANN agreement in all material respects and the performance specifications described in the ICANN agreement in all material respects and otherwise complies in all material respects with this Agreement. The Parties’ provision of Services shall comply in all material respects with modifications required by Unity Registry to the Functional and Performance Specifications (in order for Unity Registry to comply with its contract with ICANN or otherwise assure that ICANN and Unity Registry policies are appropriately implemented) of which Unity Registry gives the Parties written notice. The Parties may modify the Functional and Performance Specifications with Unity Registry's written approval, which shall not be unreasonably withheld.
Section 2.02 Policies.
(a) The Parties acknowledge that the .org TLD is intended to be an ICANN Registered TLD subject to the policy control of Unity Registry and for which Unity Registry will have the absolute right to set registration fees. The Parties will follow all policies and procedures for the management of the .org TLD established by Unity Registry and any modifications thereof. These policies and procedures include, but are not limited to:
The Parties are expected and encouraged to contribute suggestions relating to such policies and procedures, or any other matter relating to its stake in the enterprise, at any time, and Unity Registry will carefully consider such suggestions.
Section 2.03 Time Allowed for Compliance.
The Parties shall be afforded a reasonable period of time after receiving notice of the establishment by Unity Registry of a specification or policy under this Agreement in which to comply with that specification or policy, taking into account any urgency involved. Additionally, and without limitation, the Parties shall comply immediately with any temporary or emergency policies required of Unity Registry by ICANN or that are reasonably determined by Unity Registry to be necessary to implement its policies with respect to the .org TLD.
Section 2.04 Modifications.
Within ten (10) business days of receiving notice from Unity Registry of a modification to the Services that in The Parties’ reasonable judgment would cause the Parties to incur substantially increased operational costs or would otherwise have a substantial negative impact on the stability or viability of the Registry or Registration Services, the Parties shall submit a written response (the "Response") to Unity Registry. The Response shall include an itemized statement of any additional costs (or estimates of additional costs, if actual figures are unavailable) to be incurred by The Parties as a result of the proposed modification and a detailed description of the impact the Parties expects such modification will have on the operation of the Registry or Registration Services. Pending resolution the Parties shall implement Unity Registry modifications as required in Sections 2.02 and 2.03, if Unity Registry determines such implementation is necessary to protect its policy regime or to comply with Unity Registry's contractual obligations to ICANN.
Section 2.05 Transition Plan.
The Parties shall commence provision of Services for the .org TLD according to the schedule and procedures for pre-launch and commencement of registration set forth in the Attachment to this Agreement.
Section 2.06 Publication by The Parties of Registry and Registration Data.
The Parties shall provide free public query-based access to up-to-date data concerning domain-name and nameserver registrations maintained by the Parties in connection with the .org TLD. The data elements reported, format of responses to queries, data update frequency, query types supported, and protocols through which access is provided are set forth in the Attachments The Parties shall also provide data to ICANN and any third party designated by ICANN in accordance with the requirements set forth in the Attachments. Changes to these specifications shall be made if necessary to comply with ICANN or, subject to Section 2.04, reasonable Unity Registry policies.
Section 2.07 Access by The Parties to Registry and Registration Data.
Except as otherwise agreed in a writing signed by both the Parties and Unity Registry, The Parties may access and use Registry and Registration Data only as necessary to fulfill its obligations under this Agreement, and for no other purpose.
Section 2.08 Registrations by The Parties.
Subject to eligibility requirements established by UnityRegistry, The Parties may register the names listed in Attachment 13 for its own use in connection with operation of the .org registry. The Parties’ registration of other names for its own use will be subject to Unity Registry eligibility requirements, registration procedures, and payment of required fees. The Parties may retain registration of the names set forth in Attachment 13 at the conclusion of its designation by Unity Registry as the the Parties for Services under this Agreement, provided registration fees are paid and all other policies for the .org TLD are met. Attachment 13 may be revised only with the written approval of UnityRegistry. The Parties shall maintain the registration of the domain names set forth in Attachment 13 for use by Unity Registry in its capacity as Nominated Organization for the .org TLD, as modified from time to time in Unity Registry's sole discretion, acting in compliance with Article IV hereof. The Parties shall reserve from registration the domain names set forth in Attachment 11, as modified from time to time in Unity Registry's sole discretion, acting in compliance with Article IV hereof.
Section 2.09 Registration and License Agreements.
Acting on behalf of UnityRegistry, The Parties shall make available to the public (by posting on its web site) and provide applicants during the registration process on a .org website with an electronic version of the Registration Agreement set forth in Attachment 10, as modified by Unity Registry, acting in compliance with Article IV hereof, from time to time in its sole discretion.
Section 2.11 Data Escrow.
The Parties shall periodically deposit into escrow all Registry Data in an electronic format. The escrow shall be maintained, at the Parties expense, by a mutually-agreed-to reputable escrow agent. The schedule, content, format, and procedure for escrow deposits shall be as established by Unity Registry policy, subject to Section 2.04 above, and ICANN policy from time to time. The initial schedule, content, format, and procedure shall be as set forth in the Attachments. The escrow shall be held under an agreement substantially in the form attached as in the Attachments, among Unity Registry, The Parties, and the escrow agent.
Section 2.12 Temporary Limit of Access.
To ensure operational stability of the registry, The Parties may temporarily limit access to the registry, in which case the Parties shall immediately notify Unity Registry of the nature of and reason for the limitation. The Parties shall not continue the limitation longer than a period established by ICANN or Unity Registry if ICANN or Unity Registry objects in writing, which objection shall not be unreasonably made. The period shall initially be XX hours; changes to that period may be made only with the mutual written consent of Unity Registry and The Parties (which neither party shall withhold without reason). Such temporary limitations shall be applied in a non-arbitrary manner.
SECTION 3. COMPENSATION
Section 3.01 Registration and Renewal Fees.
As Unity Registry’s agent, the Parties will collect a registry fee (or renewal fee, as applicable) plus any Taxes required to be collected in connection with each transaction for which The Parties is permitted to collect a fee pursuant to the Attachments. Of this fee, The Parties may retain the fixed amount that is set forth in Attachment 2, expressed as an amount not including any amounts required to be retained by The Parties in order to remit Taxes due with respect to the transaction. The remaining amount set forth in Attachment 2 shall be remitted in a lump sum by The Parties to Unity Registry using the procedures set forth in Section 3.03 below. In the event there is a material change in the volume of registrations that materially alters the operating costs of either Unity Registry or the Parties, either Unity Registry or The Parties may request that the Executive Committee confer with respect to recommending adjustments to the fee set forth in Attachment 2.
Section 3.02 Statements.
The Parties shall submit statements to Unity Registry monthly by the tenth (10th) day following the end of any calendar month in which registration and renewal fees were received by the Parties from registrants.
The Parties shall make all lump sum payments to Unity Registry pursuant to Section 3.01 above in United States Dollars, by wire transfer of funds to an account designated by Unity Registry, within ten (10) days from The Parties’ submission of statements pursuant to Section 3.02.
Section 3.03 Taxes.
Except as otherwise provided in this Section 3.04, the Parties shall pay all taxes, including, without limitation, any charges, fees, duties, levies, imposts, rates or other assessments imposed by any taxing authority, including, but not limited to, income, profits, value added, gross receipts, excise, property, license, capital stock, franchise, transfer, payroll, withholding, social security, other employment tax or other taxes, and any interest, penalties or additions attributable thereto assessed or levied against the Parties in respect of the Services performed under this Agreement ("Taxes"). The Parties shall hold Unity Registry, its officers, directors, employees and agents harmless from any non-payment or underpayment of such Taxes.
Section 3.04 Late Payment Interest.
The Parties shall pay Unity Registry in a timely manner throughout the Term of this Agreement and notwithstanding the pendency of any dispute between The Parties and UnityRegistry. The Parties shall pay interest on payments not timely made at the rate of 1% per month, unless such obligation is waived by Unity Registry.
SECTION 4. UNITY REGISTRY OBLIGATIONS
Section 4.01 General Obligations of Unity Registry.
With respect to all matters that affect the rights, obligations, or role of The Parties, Unity Registry shall during the Term of this Agreement:
(a) exercise its responsibilities in an open and transparent manner;
(b) not apply its policies arbitrarily, unjustifiably, or inequitably;
(c) when developing its policies, consult with The Parties, taking account of The Parties's reasonably-held views and business interests; and
(d) taking into account any urgency involved, consult with The Parties prior to making decisions regarding material operational changes to the Services.
Section 4.02 Specific Obligations of Unity Registry.
Unity Registry undertakes to:
(a) adhere to its contract with ICANN;
(b) set policy for the .org TLD, with the advice of an internationally-representative advisory body as needed,
(c) work with the Parties to enhance the Parties's role in the international community;
(d) with respect to policies that affect the operation of the Services, consult with the Parties and carefully consider The Parties' advice;
(e) establish the price for registrations within the .org TLD, ensuring that the fees charged to registrants exceed amounts to be retained by the Parties pursuant to Attachment 2;
(f) provide or arrange for the provision of dispute resolution services in accordance with Attachment 12, as it may be amended to implement Unity Registry or ICANN policy;
(g) keep the Parties informed of ICANN standards, policies, procedures, and practices, to the extent Unity Registry reasonably understands that these standards, policies, procedures, or practices will affect the Parties' business; and
(h) participate on behalf of the .org TLD in any relevant ICANN constituency. Unity Registry will consult with The Parties and carefully consider the Parties' advice with respect to ICANN matters.
Section 4.03 License.
Unity Registry hereby grants to The Parties an exclusive, worldwide, royalty-free license during the term of this Agreement (i) to state that it is designated by ICANN as the Registry The Parties for the .org TLD, and (ii) to use a logo specified by Unity Registry and/or ICANN to signify that The Parties is the Registry The Parties for the .org TLD. This license may be sublicensed by the Parties only for use in connection with the provision of Registry Services with respect to the .org TLD.
SECTION 5. MANAGEMENT AND STAFFING
Section 5.01 The Parties Manager.
The Parties shall appoint and notify Unity Registry of the individuals who shall be the primary points of contact for the Parties under this Agreement (the "The Parties Manager"). Unity Registry shall direct all communications or notices to The Parties to the attention of the the Parties Manager, and the the Parties Manager shall have authority to make binding commitments for the Parties, subject to the Parties’ normal management practices.
Section 5.02 Unity Registry Contact.
Unity Registry shall appoint and notify the Parties of the individual who shall be the primary point of contact for Unity Registry under this Agreement (the "Unity Registry Contact"). The Parties shall direct all communications or notices to Unity Registry to the attention of the Unity Registry Contact, and the Unity Registry Contract shall have authority to make binding commitments for UnityRegistry, subject to Unity Registry’s normal management practices.
Section 5.03 Coordination Committee.
A Coordination Committee shall be established consisting of the The Parties Manager, the Unity Registry Contact, and advisory members from each party as appropriate. The responsibilities of the Coordination Committee include the following: (a) ensure sufficient and continued communications between Unity Registry and the Parties; (b) attempt to resolve disputes by mutual agreement; (c) review the Parties responsibilities; (d) review Unity Registry responsibilities; (e) review the Parties performance reports, including service level reports; (f) review Unity Registry performance reports concerning its verification and dispute resolution obligations; and (g) undertake such other responsibilities as Unity Registry and the Parties may agree from time to time, including dispute resolution responsibilities pursuant to Section 12.02 hereof. The Coordination Committee shall meet monthly within fifteen (15) days following the close of the prior month, unless Unity Registry and the Parties agree to a different schedule. It is expected that face-to-face meetings of the Coordination Committee shall take place on The Parties’ premises.
Section 5.04 Executive Committee.
An Executive Committee shall be established consisting of the the Parties Managers, the Unity Registry Contact, and advisory members from each party as appropriate. The initial members of the Executive Committee shall be 4. Additionally, the Parties shall nominate an independent chair of the Executive Committee who can resolve deadlocks. To the extent that any issue relating to budgets, expenses, application of funds, wholesale price, division of revenues between Unity Registry and the Parties, appropriate staffing, operating strategy, or legal and contractual matters is not resolved by this Agreement, those issues must be resolved on a mutually agreeable basis and the mechanism for reaching that agreement will be the Executive Committee. The Executive Committee shall meet monthly within fifteen (15) days following the close of the prior month, unless Unity Registry and the Parties agree to a different schedule. A quorum of two members, one from each party hereto, shall be required for any meeting of the Executive Committee to be convened. For the avoidance of doubt, the role of the Executive Committee is business planning and strategy in connection with the areas set forth in this Section, not dispute resolution.
Section 5.05 Reporting.
Within twenty days after the end of each calendar month during the Term of this Agreement, the Parties shall provide Unity Registry with written reports, giving information as specified in Attachments 20 and 21, as applicable to the Parties' operations. Changes to those specifications shall be made as required by ICANN or as reasonably required by Unity Registry policy.
Section 5.06 Nonsolicitation.
During the Term of this Agreement and for a period of six (6) months thereafter, neither party shall, either directly or indirectly, solicit for employment by itself any employee of the other party who, at the time of the solicitation is an employee of such party, and has been involved in the performance of the party’s obligations under this Agreement, unless the hiring party obtains the written consent of the other party. For the purposes of this Section 5.06, a notice of a job listing or opening, advertisement or similar general publication of a job search or availability shall not be construed as a solicitation, and the hiring of any such employee who responds thereto shall not be a breach of this Section 5.06.
Section 5.07 Subcontractors.
The Parties’ use of a subcontractor shall not relieve the Parties of its obligations under this Agreement, and The Parties shall remain responsible for the performance of each such subcontractor and its employees and for their compliance with any applicable portions of this Agreement. The Parties shall specifically require each subcontractor performing Services who has access to Unity Registry’s Confidential Information in the course of performing such Services to be bound by the confidentiality and intellectual property assignment and/or license provisions of this Agreement, and, at Unity Registry’s direction, to execute a non-disclosure agreement in the form attached as Attachment 23 and an intellectual property assignment and/or license agreement that is reasonably satisfactory to UnityRegistry. Unity Registry may request that a particular subcontractor be replaced if the Services being provided by such subcontractor fail to comply with agreed-to specifications or policies, and The Parties shall do so in a timely and commercially reasonable manner. Nothing contained in this Agreement shall create any contractual relationship between Unity Registry and any the Parties subcontractor or supplier. The Parties shall bind each of its subcontractors and suppliers by the terms and conditions of this Agreement, as far as appropriate and applicable to the work to be performed by the subcontractor or supplier. The Parties shall be fully responsible to Unity Registry for the acts and omissions of any the Parties subcontractors and suppliers and of persons directly or indirectly employed or contracted by any of them.
SECTION 6. AUDITS
Section 6.01 Service Level Audit.
At any time during the Term and at its own expense, Unity Registry may engage its staff or a third party (a "Service Level Auditor") to perform a review and audit of The Parties’ performance of the Services in relation to required functional specifications, performance specifications, and service levels in applicable Appendices (a "Service Level Audit"). The Service Level Auditor shall prepare and submit to Unity Registry a written report of the results of the Service Level Audit (a "Service Level Audit Report"). Unity Registry shall deliver to the Parties a copy of the Service Level Audit Report within ten (10) days of Unity Registry’s receipt thereof. Any dispute or issue related to a Service Level Audit shall be resolved in accordance with the procedures set forth in Article XII. Unity Registry will require the Service Level Auditor to comply with the confidentiality, non-solicitation and security requirements set forth in this Agreement. Such auditor may request, copy and examine any books or records which Unity Registry itself could request, copy and examine under this Agreement.
Section 6.02 Fee Audit.
At any time during the Term, Unity Registry may at Unity Registry's expense engage an independent third party (a "Fee Auditor") to perform a review and audit of all records and reports, including but not limited to all records relating to bank accounts used by The Parties in connection with the receipt or distribution of registrant payments under this Agreement, relating to any of the fees retained by The Parties pursuant to this Agreement (a "Fee Audit") covering the then-current or the previous calendar year. The Fee Auditor shall prepare and submit to Unity Registry a written report of the results of the Fee Audit (a "Fee Audit Report"). Unity Registry shall provide the Parties with a copy of the Fee Audit Report within ten (10) business days of UnityRegistry’s receipt thereof. In the event that the Fee Audit Report reveals that any fees have been improperly retained by the Parties, The Parties shall (a) reimburse Unity Registry such sum with interest from the date upon which such sum was first due to Unity Registry pursuant to Section 3.03 above (the "Payment Date") until the date on which the Parties makes such payment, at the "prime rate" as published in The Wall Street Journal (currently defined as the base rate on corporate loans posted by at least 75% of the United States's 30 largest banks, but however the same may be from time to time defined; the "Prime Rate")plus one percent (1%) on the Payment Date (or the next prior date on which the Wall Street Journal was published if not published on the Payment Date), and (b) if the over-retained fees exceed by more than five percent (5%) the amount which the Fee Auditor determines to have been proper, pay the reasonable fees, costs and expenses incurred by Unity Registry in connection with the Fee Audit. Any dispute or issue related to a Fee Audit shall be resolved in accordance with the procedures set forth in Article XII. The Fee Auditor shall comply with the confidentiality, non-solicitation and security requirements set forth in this Agreement. Such auditor may request, copy and examine any books or records which Unity Registry itself could request, copy and examine under this Agreement.
Section 6.03 Cooperation with Audits; Follow-Up.
Subject to the provisions of Section 2.04 that require agreement to any actions imposing substantial costs on The Parties, and excluding the costs of the Fee Auditor, the Parties shall provide reasonable cooperation with any audit conducted by Unity Registry pursuant to this Article 6 without cost to UnityRegistry. If any audit report indicates that the Parties’s performance of the Services is not in breach of this Agreement but could nonetheless be improved in specific ways, The Parties shall implement any reasonable recommendations made by Unity Registry as soon as commercially feasible, subject to Section 2.04 above.
Section 6.04 Books and Records.
The Parties shall maintain all normal and customary books and records ("Books and Records") to document its performance of the Services and to justify all fees retained by The Parties. Additionally, The Parties shall retain any Books and Records required to be retained under the ICANN Agreements. At Unity Registry’s request, The Parties shall deliver to Unity Registry or its auditors one copy of such Books and Records in a mutually-agreed electronic format, provided that such electronic copies are reasonably available to the Parties. The Parties shall maintain any such Books and Records not delivered to Unity Registry or demanded by Unity Registry for at least three (3) years after the expiration or termination of this Agreement. The Parties shall provide reasonable assistance to Unity Registry to assist Unity Registry in meeting Unity Registry’s legal obligations with respect to the retention of any Books and Records in the Parties’s possession or control.
SECTION 7. OWNERSHIP AND LICENSES
Section 7.01 Unity Registry Data and Databases.
Unity Registry shall own all right, title and interest in and to all data and information arising from or relating to the .org TLD and Registry and Registration Services performed under this Agreement and Unity Registry’s contract with ICANN (the "Unity Registry Data"); provided, however, that the term Unity Registry Data shall not include data made generally available (without a requirement to enter into a license or similar agreement) in connection with any WHOIS function. The Parties hereby releases, transfers and assigns to Unity Registry all of The Parties’ right, title and interest (including without limitation all present and future copyrights or database rights under the European Copyright Directive or Database Directive or other similar legislation in any other jurisdictions), if any, in and to such Unity Registry Data. Unity Registry hereby grants to the Parties a worldwide, royalty-free, non-exclusive, non-transferable, limited right and license during the Term to use, copy, maintain, modify, enhance, and create derivative works of such Unity Registry Data solely as necessary for the provision of the Services pursuant to this Agreement. Such authorization includes, without limitation, storage, processing and transmission of the Unity Registry Data for Unity Registry; maintenance, development, and modification of derivative works for Unity Registry as authorized by this Agreement; and the duplication of the Unity Registry Data for operational and archival purposes. The foregoing license does not give The Parties the right, and The Parties is not authorized, to sublicense such Unity Registry Data or any derivative works based thereon. At any time during the Term, Unity Registry may receive one or more copies of any or all such Unity Registry Data from The Parties upon Unity Registry’s written request, provided in or on such media and transmitted by such means and in such format as the Parties reasonably agree. Except as otherwise requested or approved by UnityRegistry, or as otherwise permitted by any license agreement between The Parties and a party authorized to provide such license, The Parties shall cease all use of the Unity Registry Data upon expiration or termination of this Agreement, and shall immediately return or destroy the same at Unity Registry’s direction. The Parties will use Unity Registry Data in a manner that adheres to the policies and procedures established by UnityRegistry.
Section 7.02 The Parties Materials.
If and to the extent that Unity Registry reasonably requires access to or use of any preexisting or later developed The Parties data, databases, software, inventions, or the Parties Confidential Information (collectively, "The Parties Materials") to enjoy the benefits of Services of the type provided under this Agreement, and subject to applicable law and any applicable third-party licenses, The Parties hereby grants to Unity Registry a worldwide, royalty-free, non-exclusive, transferable, perpetual license to use, copy, maintain, modify, enhance, and create derivative works of such The Parties Materials solely for such purposes. Such authorization includes, without limitation, use of the the Parties Materials by or for UnityRegistry; maintenance, development, and modification of derivative works solely for the benefit of Unity Registry and its successors and assigns but not for any other parties or otherwise than as authorized by this Agreement; and the duplication of the the Parties Materials for reasonable operational purposes. The foregoing sublicense includes the right, and Unity Registry is hereby authorized, to sublicense such The Parties Materials to any other provider of Services to Unity Registry for a period of at least two years following termination or expiration of this Agreement, solely for the purposes of providing the benefit of Services of the type provided under this Agreement, and provided that any sublicensee is subject to duties of confidentiality no less onerous than contained in Section 8.01 and pays a commercially reasonable fee. Unity Registry and its successors and assigns may continue their use of and access to such The Parties Materials under this Section 7.02 upon expiration or termination of this Agreement, solely for the purposes of providing or receiving the benefit of Services of the type provided under this Agreement. The Parties shall own all right, title and interest in and to all The Parties Materials and any derivative works thereof.
SECTION 8. CONFIDENTIALITY
Section 8.01 Confidential Information
The Parties acknowledge and agree that in order for The Parties to perform the Services effectively, it may be necessary or desirable for a Party (the "Disclosing Party") to disclose Confidential Information (as defined below) to the other Party (the "Receiving Party"). Such confidential information shall include but not be limited to: (a) any information which is identified to the Receiving Party in writing as confidential to the Disclosing Party prior to disclosure or within seven (7) business days thereafter if disclosure was first made in non-written form, and (b) information which the Receiving Party knows, or should reasonably know from the nature of such information, is confidential to the Disclosing Party (hereinafter the "Confidential Information"). Each party may use the Confidential Information of the other party during the Term of this Agreement only as permitted or required for the Receiving Party’s performance hereunder or the enjoyment of Services provided by the Disclosing Party. The Receiving Party shall take reasonable measures (including, without limitation, the use of nondisclosure agreements consistent with and not less restrictive than that attached as Attachment 23 hereto) to prevent any unauthorized disclosure by its employees, agents, contractors or consultants. The foregoing duty shall survive any termination or expiration of this Agreement for a period of ten (10) years from the effective date of such termination or expiration. Notwithstanding the foregoing, with respect to any confidential Unity Registry Data of any kind, the foregoing duty shall be perpetual.
Section 8.02 Exclusions
For purposes of this Article 8, the term "Confidential Information" shall not be deemed to refer to the following information:
(a) Information that has been made available to the public other than through an act or omission of the Receiving Party;
(b) Information received by the Receiving Party without restriction and not in breach of an obligation of confidentiality to the Disclosing Party;
(c) Information that was received by the Receiving Party on a non-confidential basis, prior to receipt from the Disclosing Party, from a Third Party lawfully possessing and lawfully entitled to disclose such information;
(d) Information that is independently developed by the Receiving Party without use of, not on the basis of, or without reference to the Disclosing Party’s Confidential Information; and
(e) Information Unity Registry is required to make public or disclose to other parties as a result of a requirement of the contract between Unity Registry and ICANN.
Section 8.03 Disclosees
(a) The Receiving Party shall disclose Confidential Information only to those individuals (including without limitation the Receiving Party’s employees, representatives and consultants) and entities to whom such disclosure is necessary to perform obligations under this Agreement or receive the benefit of the other party’s performance (the "Disclosees"); provided that the Receiving Party shall have previously indicated to each Disclosee the confidential nature of the Confidential Information and shall previously have required each Disclosee to agree in writing to be bound by the terms and restrictions contained in this Section.
(b) The Receiving Party may disclose Confidential Information pursuant to court order, subpoena, or similar process. The Receiving Party, however, to the extent not prohibited by law, must give written notice of any such order to the Disclosing Party at least fifteen (15) days prior to the date of compliance with it (unless the Receiving Party has less than fifteen (15) days' notice itself, in which case the Receiving Party shall give the Disclosing Party as much notice as is practicable under the circumstances). In all cases, the Receiving Party agrees to take such steps as the Disclosing Party may direct to further protect Confidential Information from disclosure, provided, however, that the Receiving Party shall not be required to incur any additional expense to do so.
Section 8.04 Expiration or Termination
Upon expiration or termination of this Agreement, the Receiving Party shall immediately return, and shall cause all Disclosees promptly to return, all Confidential Information of the Disclosing Party that is within the control or possession of the Receiving Party and/or Disclosees; provided, however, that Unity Registry shall have the right to continue to control or possess Confidential Information received from The Parties to the full extent that it is entitled to retain and use The Parties Materials pursuant to Section 7.02.
SECTION 9. WARRANTIES AND COVENANTS
Section 9.01 Unity Registry Warranties to The Parties.
Unity Registry hereby warrants to The Parties that;
(a) the execution and delivery of this Agreement by Unity Registry has been duly authorized and performance by Unity Registry hereunder shall not result in the breach of any material term or provision of any charter, bylaw or agreement to which Unity Registry is a party or by which it is bound;
(b) this Agreement constitutes a valid and binding agreement;
(c) the performance of Unity Registry’s obligations under this Agreement shall not infringe the intellectual property rights (including, without limitation, any patents, copyrights, trademarks or trade secrets) of any third party anywhere in the world; and
(d) Unity Registry owns or otherwise has the right to grant the licenses or sublicenses herein for the Unity Registry Data.
Section 9.02 The Parties Warranties to UnityRegistry.
The Parties hereby warrants to Unity Registry that:
(a) the execution and delivery of this Agreement by The Parties has been duly authorized and performance by The Parties hereunder shall not result in the breach of any material term or provision of any charter, bylaw or agreement to which The Parties is a party or by which it is bound;
(b) this Agreement constitutes a valid and binding agreement;
(c) The Parties owns or otherwise has the right to grant the licenses or sublicenses herein for the The Parties Materials;
(d) all Services rendered hereunder shall be performed in a professional and workmanlike manner (i) in accordance with accepted standard practice by members of the same industry, (ii) by qualified personnel, and (iii) will include reasonable diligent efforts to ensure such Services conform with the specifications set forth in this Agreement in all material respects;
(e) all Services shall be performed in a manner that materially conforms with this Agreement;
(f) the performance of the Services and other items provided as a result of the Services shall not, to the best of The Parties' knowledge, infringe the intellectual property rights (including, without limitation, any patents, copyrights, trademarks or trade secrets) of any third party anywhere in the world; and
(g) as of December 21, 2001, to the best of the Parties' knowledge, no statement by The Parties contained in any financial information provided to Unity Registry contains any untrue statement of a material fact or omits to state any material fact necessary in order to make any statement contained therein not misleading.
(h) THE PARTIES MAKES NO EXPRESS WARRANTIES TO UNITY REGISTRY OTHER THAN THOSE SET FORTH IN THIS SECTION 9.02.
Section 9.03 Limitation of Liability.
Neither party's aggregate monetary liability for breaches of this Agreement shall exceed the amount of fees passed on by the Parties to Unity Registry or payable to Unity Registry and not yet due in accordance with this Agreement within the preceding twelve-month period. 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.
Section 10.01 Indemnity by Unity Registry.
Unity Registry shall indemnify, defend, and hold harmless the Parties (including its directors, officers, employees, and agents) from and against any and all claims, damages, liabilities, costs, and expenses, including reasonable legal fees and expenses, (a) arising out of the Parties' compliance with any Unity Registry specification or policy, (b) arising out of the infringement of any third party copyright or patent registered or issued in XXX as of the date of this Agreement resulting from the provision of website content by Unity Registry to the Parties (but excluding any infringement contributory caused by The Parties, or any infringement that The Parties reasonably could have avoided in its use or modification of the content), or (c) arising out of the Parties' implementation of dispute resolution or verification procedures required by UnityRegistry; except that The Parties shall not be indemnified or held harmless hereunder to the extent that the claims, damages or liabilities arise from the particular manner in which The Parties has knowingly chosen to comply with the specification or policy, where it was possible for The Parties to comply in a manner by which the claims, damages, or liabilities would not arise. For the avoidance of doubt, nothing in this Section 10.01 shall be deemed to require Unity Registry to reimburse or otherwise indemnify the Parties for the costs associated with the negotiation or execution of this Agreement, or with the monitoring or management of the Parties’ respective obligations under this Agreement.
Section 10.02 Indemnity by The Parties.
The Parties shall indemnify, defend, and hold harmless Unity Registry (including 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 The Parties’ provision of the Services; except that Unity Registry shall not be indemnified or held harmless hereunder to the extent that the claims, damages or liabilities arise from the particular manner in which Unity Registry has chosen to carry out its obligations under this Agreement, where it was possible for Unity Registry to carry out such obligations in a manner by which the claims, damages, or liabilities would not arise. For avoidance of doubt, nothing in this Section 10.02 shall be deemed to require the Parties to reimburse or otherwise indemnify Unity Registry for the costs associated with the negotiation or execution of this Agreement, or with the monitoring or management of the Parties’ respective obligations under this Agreement.
Section 10.03 Indemnification Procedures.
If any third-party claim is commenced that is indemnified under Sections 10.01 or 10.02, notice thereof shall be given to the indemnifying party as promptly as practicable. If, after such notice, the indemnifying party acknowledges its obligation to indemnify with respect to such claim, then the indemnifying party shall be entitled, if it so elects, in a notice promptly delivered to the indemnified party, to immediately take control of the defense and investigation of such claim and to employ and engage attorneys reasonably acceptable to the indemnified party to handle and defend the same, at the indemnifying party’s sole cost and expense, provided that in all events Unity Registry shall be entitled to control at its sole cost and expense the litigation of issues concerning the validity or interpretation of Unity Registry policies. The indemnified party shall cooperate, at the cost of the indemnifying party, in all reasonable respects with the indemnifying party and its attorneys in the investigation, trial, and defense of such claim and any appeal arising therefrom; provided, however, that the indemnified party may, at its own cost and expense, participate, through its attorneys or otherwise, in such investigation, trial and defense of such claim and any appeal arising therefrom. No settlement of a claim that involves a remedy affecting the indemnified party other than the payment of money in an amount that is indemnified shall be entered into without the consent of the indemnified party. If the indemnifying party does not assume full control over the defense of a claim subject to such defense in accordance with this Section, the indemnifying party may participate in such defense, at its sole cost and expense, and the indemnified party shall have the right to defend the claim in such manner as it may deem appropriate, at the cost and expense of the indemnifying party.
SECTION 11.TERM AND TERMINATION
Section 11.01 Term of Agreement.
The Term of this Agreement begins on the Effective Date and runs through the earlier of (a) the date specified in Section 11.02, as it may be extended according to Section 11.03, or (b) termination of this Agreement.
Section 11.02 Expiration Date
The initial Expiration Date shall be five years after the Effective Date. The Expiration Date may be extended as provided in Section 11.03.
Section 11.03 Extension of Expiration Date.
The initial Expiration Date shall be extended for additional five-year terms in the event that, on the date at least one year before the Expiration Date, The Parties or Unity Registry has indicated its intention to renew and the party requesting renewal is not in material breach of this Agreement.
Section 11.04 Termination of Agreement by UnityRegistry.
This Agreement may be terminated before its expiration by Unity Registry in any of the following circumstances:
(a) The Parties:
(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 Unity Registry or 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.
(b) Any officer or director of The Parties 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 Unity Registry or ICANN deems as the substantive equivalent of any of these, and such officer or director is not immediately removed in such circumstances.
(c) The Parties fails to cure any material breach of this Agreement within fifteen business days (or such longer reasonable period as may be necessary using commercially reasonable efforts to cure such breach) after Unity Registry gives the Parties written notice of the breach.
(d) The Parties’s action or failure to act has been determined by arbitration under Article XII to be in violation of this Agreement and The Parties continue to act or fail to act in the manner that was determined to violate this Agreement for a period stated in the arbitration decision, or if no period is stated, fifteen business days.
(e) Following notice by Unity Registry to the Parties of a determination by ICANN that the Parties are acting in a manner that ICANN has determined endangers the operational stability of the Services, the DNS, or the Internet, and after a period of time determined by ICANN within which ICANN has requested that The Parties cure its actions, The Parties acts or continues acting in the same manner.
(f) Following notice by Unity Registry to the Parties of a determination by Unity Registry that the Parties are acting in a manner that Unity Registry reasonably believes endangers the operational stability of the Services within the meaning of and in order to fulfill Unity Registry's obligations pursuant to the ICANN Agreements, and after a reasonable period of time within which Unity Registry has requested that The Parties cure its actions, the Parties act or continue acting in the same manner.
(g) The Parties acts or continue acting in a manner that Unity Registry has reasonably determined endangers the maintenance of its policy regime with respect to the .org TLD as defined in UnityRegistry's charter attached as Attachment 1 hereto after receiving fifteen days' notice of that determination.
(h) Control of the Parties is to be acquired, directly or indirectly, in a single transaction or series of related transactions, or all or substantially all of the assets or business of the Parties are to be acquired, by any organization that is not an Affiliate of The Parties, and Unity Registry has reasonably determined within sixty (60) days of notice by the Parties thereof (such notice to be provided by The Parties to Unity Registry within five (5) days of The Parties’s execution of any letter of intent, memorandum of understanding or similar document or, in the absence of same, upon The Parties’s execution of a definitive transaction agreement), that continuation of this Agreement (i) would not be in the best interest of the stable operation of Registry or Registration Services for the .org TLD, or (ii) would not be in the best interest of the international cooperative community.
(i) The Parties becomes bankrupt or insolvent.
(j) One or more of the ICANN Agreements is terminated or expires.
(k) This Agreement may be terminated in the circumstances described in Sections (a) through (d) above only upon thirty calendar days' written notice to The Parties (in the case of the circumstances described in Sections (c) and (d) occurring after the Parties’ failure to cure), with The Parties being given an opportunity during that time to initiate arbitration under Article XII to determine whether Unity Registry has the right to terminate this Agreement. This Agreement may be terminated in the circumstances described in Section (f) above only on ten calendar days' written notice to The Parties, with The Parties being given an opportunity during that time to initiate arbitration under Article XII to determine whether Unity Registry has the right to terminate this Agreement; provided, however, that any such challenge shall be decided on a schedule that will produce a final decision no later than 30 days following the filing of any such arbitration. This Agreement may be terminated in the circumstances described in Sections (g) and (h) above only on ten calendar days' written notice to The Parties, with The Parties being given an opportunity during that time to initiate arbitration under Article XII to determine whether Unity Registry has the right to terminate this Agreement; provided, however, that any such challenge shall be decided on a schedule that will produce a final decision no later than 60 days following the filing of any such arbitration.
(l) In the event The Parties initiates arbitration concerning Unity Registry’s right to terminate this Agreement, The Parties may at the same time request that the arbitration panel stay the termination until the arbitration decision is rendered, and that request shall have the effect of staying the termination until the decision or until the arbitration panel has granted a Unity Registry request for lifting of the stay.
(m) This Agreement may be terminated immediately upon notice to The Parties in the circumstances described in Sections (e), (i), and (j).
Section 11.05 Termination of Agreement by The Parties.
This Agreement may be terminated before its expiration by The Parties in any of the following circumstances:
(a) Unity Registry’s action or failure to act has been determined by arbitration under Article XII to be in violation of Unity Registry's obligations under Section 4.02 of this Agreement and Unity Registry continues to act or fail to act in the manner that was determined to violate Section 4.02 of this Agreement for a period stated in the arbitration decision, or if no period is stated, fifteen business days;
(b) Unity Registry becomes bankrupt or insolvent; or
(c) Both ICANN Agreements are terminated for cause by ICANN, and Unity Registry does not continue to serve as the Nominated Organization for the .org TLD in the absence of such agreements.
(d) Termination under the circumstances described in (a)-(c) above may occur only upon thirty calendar days written notice to Unity Registry after Unity Registry's failure to cure, with Unity Registry being given an opportunity during that time to initiate arbitration under Article XII to determine whether The Parties has the right to terminate this Agreement. In the event Unity Registry initiates arbitration concerning The Parties’ right to terminate this Agreement, Unity Registry may at the same time request that the arbitration panel stay the termination until the arbitration decision is rendered, and that request shall have the effect of staying the termination until the decision or until the arbitration panel has granted any The Parties request for lifting of the stay.
Section 11.06 Termination Assistance.
If this Agreement expires or is terminated in accordance with this Article 11 (other than by The Parties pursuant to Section 13.03), the Parties shall do the following for the resulting transition of the Services:
(a) The Parties shall continue to perform the Services then being performed by The Parties, for commercially reasonable fees, until the earlier of (i) the date one year following expiration or termination of this Agreement or (ii) the date on which The Parties receives a written request from Unity Registry to cease providing Services;
(b) The Parties shall develop, for a commercially reasonable fee, with the assistance of Unity Registry or its designee, a plan for the transition of the Services from The Parties to Unity Registry or its designee;
(c) The Parties shall provide (for a commercially reasonable fee) training for personnel of Unity Registry or its designee in the performance of the Services then being transitioned to Unity Registry or its designee;
(d) if Unity Registry has terminated the Parties for cause, the Parties shall waive the provisions of Section 5.05 above;
(e) The Parties shall use reasonable commercial efforts to grant, subject to reasonable terms and conditions, or to assist Unity Registry or its designee to obtain, a sublicense or other right to use any software, invention, or other material licensed by the Parties that is primarily then used by The Parties to perform the Services;
(f) The Parties shall make available to Unity Registry or its designee, pursuant to reasonable terms and conditions of purchase or lease, any hardware owned or leased by the Parties that is dedicated to the performance of the Services, and shall for a period not to exceed one year provide access on commercially reasonable terms to portions of hardware that is partially dedicated to the performance of the Services;
(g) The Parties shall use reasonable commercial efforts to assist Unity Registry or its designee to obtain (on a non-exclusive basis) the continuation of any third party services then being used by The Parties in the performance of the Services that Unity Registry desires to continue;
(h) To the extent any part of Unity Registry’s data or communications network services are being provided by The Parties using a proprietary network, The Parties shall, at Unity Registry’s request, continue to provide such network services to UnityRegistry, subject to commercially reasonable terms and conditions, for a period not to exceed one (1) year following the effective date of expiration or termination. If prior to termination, the Parties has prepaid charges for a license to use any licensed program, to the extent that Unity Registry has the benefit of such license and prepayment following termination, Unity Registry shall reimburse the Parties an appropriate portion of the prepaid charges. The Parties shall provide the above-described termination assistance for the Services for up to one year after the effective date of expiration or termination; and
(i) The Parties shall cooperate with Unity Registry to ensure a smooth transition of the Services to a successor to the Parties.
Section 11.07 Survival.
Articles III (Compensation), VII (Ownership and Licenses), VIII (Confidentiality), IX (Warranties and Covenants), X (Indemnities), XI (Term and Termination), XII (Law and Disputes), and XIII (General) shall survive any termination or expiration of this Agreement.
SECTION 12.LAW AND DISPUTES
Section 12.01 Dispute Handling.
The Parties and Unity Registry shall attempt in good faith to resolve all disputes, claims or controversies arising out of, relating to, or in connection with this Agreement, including any question regarding its existence, validity, interpretation, breach, or termination (a "Dispute").
Section 12.02 Problem Escalation Procedures.
Disputes will be referred to the Coordination Committee. The Coordination Committee shall then meet as soon as reasonable in light of the nature and impact of the issue under consideration. If a dispute cannot be resolved by the Coordination Committee within a time period that is satisfactory to the party raising the issue under consideration and, in any event, within thirty (30) days after the initial referral, the party raising the issue under consideration may give formal written notice to the other party that a Dispute has arisen. If the Parties are unable to resolve such Dispute within a period of sixty (60) days from the service of such notice, then the matter shall be referred to the Managing Directors, Chief Executive Officers, Chairs, or Presidents of the respective Parties. No recourse to conciliation or arbitration shall take place unless and until such procedure has been followed.
Section 12.03 Referral to Arbitration.
Except for Disputes relating to issues of (i) proprietary rights, including but not limited to intellectual property and Confidential Information; and (ii) payment of fees under this Agreement, any Dispute not resolved by amicable resolution as set forth in Section 12.02 shall be governed exclusively and finally by arbitration. If the representatives of the respective Parties are unable to resolve the Dispute within a period of thirty (30) days following its reference to them, the Dispute shall be referred to arbitration pursuant to the Rules of Conciliation and Arbitration of the International Chamber of Commerce. The number of arbitrators shall be three. The language of the arbitration shall be English. The Parties shall agree in writing that at least one of the three arbitrators has the technical competence to arbitrate the Dispute. The seat of the arbitration shall be Geneva, Switzerland. The prevailing party shall be entitled to recover its reasonable costs, including administrative fees, arbitrators’ fees and expenses, and fees and expenses of legal representation, incurred in the arbitration proceedings. The arbitral tribunal shall have the authority, inter alia, to order interim measures of protection, to award monetary compensation, to order specific performance of this Agreement, and to issue declaratory relief. The arbitration award shall be final and binding. No appeal shall be allowed to English (or other) courts from any point of law arising in the arbitration or in connection with any award or decision made by the arbitrators, except as may be necessary to recognize or enforce such award. Judgment may be entered on any award in any court of competent jurisdiction. Any proceeding in a court in the United States related to the arbitration or a Dispute shall be governed exclusively by the Federal Arbitration Act, 9 U.S.C. Sections 1 to 307, as amended from time to time, and not by the law specified in Section 12.04 or any other state or local statute or ordinance. The Parties shall keep any arbitration confidential and shall not disclose to any person, other than those necessary to the proceedings, the existence of the arbitration, any information submitted during the arbitration, any document submitted in connection with it, any oral submissions or testimony, transcripts or any award unless disclosure is required by law. In the event that any Party has recourse to any national court for any purpose whatsoever connected with this Agreement, the Parties shall do everything in their lawful power to maintain the confidentiality of any such proceedings.
Section 12.04 Governing Law.
All disputes shall be governed by the laws of Switzerland.
Section 12.05 Continued Performance.
Unless and until a termination occurs, each party shall continue performing its respective obligations under this Agreement, to the extent any of the same have not been terminated and are in force, in good faith while any dispute submitted to arbitration under this Article 11 is being resolved and until such obligations are terminated by a final and binding arbitral award to the contrary under this Article 12.
Section 12.06 Limitation of Actions.
No proceeding, regardless of form, arising out of or related to this Agreement may be brought by either party more than one (1) year after the accrual of the cause of action, except that (a) proceedings related to violation of a party’s proprietary rights or any duty to protect Confidential Information may be brought at any time within the applicable statute of limitations, and (b) proceedings for non-payment may be brought up to two (2) years after the date the last such payment was due.
Section 13.01 Notices.
All notices (including determinations and specifications) 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 confirmed by a transmission report, or when confirmed delivered by an internationally recognized courier service.
Section 13.02 Assignment.
Any assignment of this Agreement shall be effective only upon written agreement by the assignee with the other party to assume the assigning party’s obligations under this Agreement. Moreover, neither party may assign this Agreement without the prior written approval of the other party. Notwithstanding the foregoing, Unity Registry may, by giving written notice to The Parties, in conjunction with a reorganization of Unity Registry, or a transfer of substantially all of its assets or functions, assign this Agreement to another entity organized for the same or substantially the same purposes as Unity Registry.
Section 13.03 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 or binding ICANN Consensus Policy, ICANN emergency policy, industrial disputes of any kind (whether or not involving either party’s employees), fire, lightning, 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 commercially reasonable efforts to avoid or remove such causes of nonperformance as soon as possible. If a Force Majeure Event delays or interrupts the Services, Unity Registry may, at its option and upon written notice thereof to The Parties, (i) procure such Services from an alternate source until The Parties is again able to provide such Services, or (ii), if the delay or interruption exceeds one hundred eighty (180) days, terminate this Agreement. If Unity Registry elects option (ii), Unity Registry may make such termination upon ten (10) days prior written notice, effective as of a date specified therein, and The Parties shall retain all fees due and payable through the termination date. If a Force Majeure Event delays or interrupts the Services, The Parties may, if the delay or interruption exceeds one hundred eighty (180) days, terminate this Agreement.
Section 13.04 No Third-Party Beneficiaries.
This Agreement shall not be construed to create any obligation by either Unity Registry or the Parties to any non-party to this Agreement, including ICANN and any registrant or sublicensee in the .org TLD.
Section 13.05 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.
Section 13.06 Entire Agreement.
This Agreement constitutes the entire agreement between the Parties, and supersedes all other prior or contemporaneous communications between the Parties (whether written or oral) relating to the subject matter of this Agreement. This Agreement may be modified or amended solely in a writing signed by both parties executed by an authorized officer thereof.
WHEREFORE, each party has caused its authorized representative to execute this Agreement as of the Effective Date.
UNITY REGISTRY POPTEL LTD/AUSREGISTRY PTY. LTD.
LIST OF ATTACHMENTS