This Memorandum of Understanding (MOU) is made and entered into as of this 29th day of September, 2000, by and between

 

 

The Universal Postal Union (UPU), a specialized agency of the United Nations, represented by its International Bureau having its headquarters in Berne , Switzerland.

 

And

 

The Council of Internet Registrars (“CORE”) a non-profit association organized under the laws of Switzerland with its principal place of business in Geneva, Switzerland

 

1.                  WHEREAS, UPU intends to file on October 2, 2000 a proposal with the Internet Corporation for Assigned names and Numbers ("ICANN") in order to obtain the delegation of the operation and management of the generic top level domain  ("TLD") to be known as  ".post".

 

2.                  WHEREAS, CORE is a leading association of registrars that has developed the technology necessary to provide, among other, registry services for the management of TLDs.

 

3.                  WHEREAS, UPU wishes to use CORE as its registry operator to be the provider of registry services in connection with the operation and management of the " .post" TLD delegated to UPU, and CORE wishes to be so retained;

 

NOW THEREFORE, in consideration of the benefits arising from the submission of UPU's application to operate and manage the " .post" TLD, and of the potential benefits to CORE and UPU, should ICANN approve and accept such application and complete an appropriate agreement with UPU, the parties hereby agree to enter into this MOU in accordance with the following  terms:

 

 

1.       Purpose of this MOU

 

1.1   The MOU describes the proposed terms that will govern the collaboration between UPU and CORE for the operation and management of the " .post" TLD, should ICANN approve and accept UPU's proposal on the " .post" TLD.  Upon approval and acceptance of the above mentioned proposal by ICANN, UPU and CORE will negotiate in good faith a binding definitive agreement (the "Definitive Agreement") to be concluded within ninety (90) days from said approval or within such other time as the parties may subsequently agree in writing. Except for clauses 3, 4 and 5, this MOU does not create a binding agreement between the parties.

 

2.       Principal Terms of the Definitive Agreement

 

2.1   Relationship of the Parties and object of the Definitive Agreement.

 

2.1.1          UPU will be the operator and manager of the ".post" TLD. CORE will be the registry operator and will provide the registry services described in Annex 1 attached to this MOU (the Registry Services). In providing the Registry Services, CORE will meet fair and adequate minimum service levels which will be agreed upon by the parties in the Definitive Agreement.

 

2.1.2          CORE will maintain and process information and data arising from and relating to the Registry Services performed under the Definitive Agreement. CORE acknowledges that all data and information arising from or relating to the ".post" TLD will be owned by UPU (UPU Data), and will be provided to UPU upon request in a commercially standard data format. CORE will use UPU Data  in a manner that is consistent with the privacy of registrants in the ".post" TLD, the policies and procedures established by UPU and ICANN policies and principles.

 

2.1.3          CORE will provide reports to UPU in a form and on a schedule to be agreed upon by UPU and CORE that will allow UPU to properly operate the ".post" TLD. UPU will be able to inspect and audit the books and records of CORE relating to or arising from the ".post" TLD or CORE's performance of services for UPU, subject to reasonable notice, time and place restrictions.

 

2.1.4          UPU and CORE will enter into a Data escrow agreement, pursuant to which CORE will deposit with a reputable escrow agent mutually appointed by the parties all UPU Data, in a form and on a schedule to be agreed upon by UPU and CORE. The UPU Data will be transferred to UPU and/or ICANN upon expiration or termination of the Definitive Agreement, and upon such other events as the parties may agree or ICANN may require to ensure the reliable and continuous operation of the ".post" TLD.

 

2.1.5          CORE acknowledges that the ".post" TLD is intended to be a restricted TLD subject to the policies and procedures established by UPU. CORE will follow all policies and procedures for the management of the ".post" TLD established by UPU initially and any modifications thereof. In this respect, UPU and CORE will meet when needed to discuss the technical implications of the policies proposed by UPU. 

 

2.1.6          UPU and CORE acknowledge that the ".post" TLD will be operated subject to the governance of ICANN and both UPU and CORE will follow all policies and procedures established by ICANN that are applicable to the ".post" TLD.

 

2.2   Remuneration for the Registry Services.

 

2.2.1          For the rendering of the Registry Services, UPU will pay to CORE a cost recovery fee for each registration with the ".post" TLD (the "Registry Fee"), that will be agreed upon by the parties in the Definitive Agreement. As well, UPU will pay to CORE for certain non-recurring expenses ("NREs") arising from the initial start-up of the ".post" TLD, of a nature and in an amount to be agreed upon by the parties. 

 

2.3   Term and Termination

 

2.3.1          The initial term of the Definitive Agreement will be the minimum term required by ICANN or any other term as the parties may agree upon. Upon expiration of the initial term, the Definitive Agreement will automatically renew for successive periods for a specified time unless either party notifies to the other its intention to terminate the Definitive Agreement by giving to the other notice within a specified time prior to the end of the initial or the successive terms of the Definitive Agreement.

 

2.3.2          The Definitive Agreement will also establish the causes of early termination, including, without limitation, a material breach of any of the obligations set forth in the Definitive Agreement by the party and that party's failure to cure such breach within a specified time of the receipt of the written notice sent by the non breaching party.

 

2.3.3           In the event of expiration or termination of the Definitive Agreement by any reason, the parties will cooperate to ensure the continued operation of the ".post" TLD until the registry operation is transferred to a successor registry.

 

2.4   Confidential Information and Proprietary Rights

 

2.4.1          The Definitive Agreement will establish the obligation of the parties to keep in confidence the confidential information of the other party, as defined in the Definitive Agreements and in the terms set forth by the parties. The parties will established the measures necessary to avoid the non-authorised disclosure by third parties or by their own personnel.

 

2.4.2          The parties will agree not to infringe the proprietary rights of the other party and to cooperate, to a reasonable extend, with the other party in the defense of the proprietary rights of the other party in connection with infringements arising from or related to the activities governed by the Definitive Agreement.

 

2.5   Representations and Warranties

 

2.5.1          The Definitive Agreement will contain clauses establishing the representations, warranties, indemnities and insurances, as it is common practice in similar service agreements. These clauses will be drafted in a manner such that each party fairly bears the risks arising from its own conduct.

 

2.6     General and Additional Provisions

 

2.6.1          The Definitive Agreement will also contain other additional terms and conditions as the parties may agree upon and which are common practice in similar service agreements (such as, notices, force majeure, etc).

 

3.       Expenses

 

3.1   The parties agree that each party will bear its own costs and expenses (including legal fees) arising from the completion of this MOU and the negotiation and completion of the Definitive Agreement.

 

4.       Disclosures and Publicity

 

4.1   CORE authorises UPU to submit this MOU to ICANN. Each party authorises to the other to fairly and accurately describe the existing and proposed relationship between UPU and CORE in any materials or communications provided to ICANN.

 

4.2    Neither party will issue any press release or make any public announcement  using the names, marks or identifiers of the other party without the other party's prior written permission, which shall not be unreasonably withheld.

 

5.       General Terms

 

5.1   If for any reasons, ICANN does not allow CORE to perform as registry operator for the ".post" TLD, CORE will offer to UPU the possibility to enter into a license agreement pursuant to which CORE will grant to UPU a non-exclusive license for the use of the Shared Registry System (SRS) in connection with the operation of the ".post" TLD. The parties will negotiate in bona fide the other terms and conditions for the granting of such license.

 

5.2   This MOU supersedes any previous understandings, representations or agreements, whether written or oral, that may have been made or entered into by the parties relating to the subject matter hereof.

 

5.3   The parties may not assign their rights and obligations hereunder to any third party without the prior written permission of the party which permission will not be unreasonably withheld, provided however, that either party may freely assign its rights and obligations arising from this MOU to a single third party in connection with the merger, acquisition, or reorganization of its legal structure of such party where such third party accepts in writing the obligation to perform all of the transferred obligations hereunder.

 

5.4   The substantive law subsidiarily applicable to this MOU shall be Swiss law. Any dispute concerning the interpretation or execution of this MOU which cannot be settled amicably between the parties shall be referred, at the request of one of the parties, to an arbitrator designated by mutual agreement between the said parties. If the parties are unable to designate an arbitrator within thirty days of receipt of the notification of a request for arbitration, the arbitrator shall be appointed, at the request of one of the parties, by the President of the International Chamber of Commerce. The place of arbitration shall be Berne and the language of arbitration shall be the one provided for by the International Chamber of Commerce. The arbitrator’s decision shall be final and binding and no appeal to a court or any other jurisdiction shall be allowed.

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this MOU to be executed in two (2) counterpart originals by their authorised representatives as of the day and year first set forth above.

 

 

 

 

Universal Postal Union

 

 

CORE Council of Internet Registrars

 

 

 

 

 

 

Signature

 

Signature

 

 

Samuel M. Jabbour

 

Werner Staub

Name

 

Name

 

 

Head of Postal Technology Centre

 

Head of Secretariat

Title

 

Title

 

 

Annex 1: Registry Services

 

1.                  CORE operates the central database for the TLD. It stores the domains contained in the TLD, the contacts and the name server data.
In addition, CORE operates the name servers, which contain the TLD zone, and the whois server, which gives limited public access to the data stored in the central database. The operation of the name servers and whois server conforms to the Definitive Agreement and to the requirements specified by ICANN.

 

2.                  The underlying data model of the central database is defined by CORE. Although UPU has the ability to define a small set of additional data fields to domain names and contacts in order to associate those objects with an identification system eventually used by UPU, the main objective is to have a similar data model to other TLDs operated by CORE and other registries for the benefit of the registrars and the internet community in general.

 

3.                  CORE accepts domain registrations that conform to the sub-domain model specified by UPU.

 

4.                  UPU has access to the central database in order to create, modify and delete domains and related data.

 

5.                  For accounting and similar purposes, UPU receives a list (as a file) of the domains, their holders and the registration period on a regular basis.

 

6.                  If UPU decides to accredit third parties to operate as registrars (RAs), CORE enables UPU to:

 

I      set up restrictions on the names of the domains which can be registered  by the RAs by specifying rules and/or exclusion lists;

 

II     review creations, modifications and deletions of domains applied by the RAs and either to accept or decline it. The review process is specified by the Definitive Agreement, whereas the objective is to limit the involvement of CORE in it;

 

III   receive RA related information for accounting purposes on a regular basis;

IV   create, modify or delete objects on behalf of a RA in order to correct errors or misconduct of the RAs;

 

7.                  CORE supplies a protocol usable for the remote access to the central database by UPU and RAs. Depending on the Definitive Agreement, CORE may supply corresponding client software and/or a web interface to the central database.