|
| |
 |
Tentative Agreements among ICANN, the U.S. Department
of Commerce, and Network Solutions, Inc.
(Posted September 28, 1999)
|
[Note: ICANN has posted the following
document for public review and comment. To submit comments, click
here.]
REGISTRAR ACCREDITATION AGREEMENT
Table of Contents
I. DEFINITIONS
II. TERMS AND CONDITIONS OF AGREEMENT
A. Accreditation.
B. Registrar Use of ICANN Name.
C. General Obligations of ICANN.
D. General Obligations of Registrar.
E. Submission of SLD Holder Data to Registry.
F. Public Access to Data on SLD Registrations.
G. Retention of SLD Holder and Registration Data.
H. Rights in Data.
I. Data Escrow.
J. Business Dealings, Including with SLD Holders.
K. Domain-Name Dispute Resolution.
L. Accreditation Fees.
M. Specific Performance.
N. Termination of Agreement.
O. Term of Agreement; Renewal; Right to Substitute Updated Agreement.
P. Resolution of Disputes Under This Agreement.
Q. Limitations on Monetary Remedies for Violations of this Agreement.
R. Handling by ICANN of Registrar-Supplied Data.
S. Miscellaneous.
This REGISTRAR ACCREDITATION AGREEMENT
("Agreement") is by and between the Internet Corporation
for Assigned Names and Numbers, a not-for-profit corporation,
and ________________________________ ("Registrar"),
a ___________________, and shall be deemed made on __________,
1999, at Los Angeles, California, USA.
I. DEFINITIONS
As used in this Agreement, the following
terms shall have the following meanings:
A. "Accredit" means to identify
and set minimum standards for the performance of registration
functions, to recognize persons or entities meeting those standards,
and to enter into an accreditation agreement that sets forth
the rules and procedures applicable to the provision of registration
services.
B. A "Consensus Policy" is one
adopted by ICANN as follows:
1. "Consensus Policies" are those
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.
2. In the event that Registrar disputes
the presence of such a consensus, it shall seek review of that
issue from an Independent Review Panel established under ICANN's
bylaws. Such review must be sought within fifteen working days
of publication of the Board's action adopting the policy. The
decision of the panel shall be based on the report and supporting
materials required by Section I.B.1 above. In the event that
Registrar seeks review and the Panel sustains the Board's determination
that the policy is based on a consensus among Internet stakeholders
represented in the ICANN process, then Registrar must implement
such policy unless it promptly seeks and obtains a stay or injunctive
relief under Section II.P.
3. In the event, following a decision by
the Independent Review Panel convened under Section I.B.2 above,
that Registrar still disputes the presence of such a consensus,
it may seek further review of that issue within fifteen working
days of publication of the decision in accordance with the dispute-resolution
procedures set forth in Section II.P below; provided, however,
that Registrar must continue to implement the policy unless it
has obtained a stay or injunctive relief under Section II.P
or a final decision is rendered in accordance with the provisions
of Section II.P that relieves Registrar of such obligation.
The decision in any such further review shall be based on the
report and supporting materials required by Section I.B.1 above.
4. A policy adopted by the ICANN Board
of Directors on a temporary basis, without a prior recommendation
by the council of an ICANN Supporting Organization, shall also
be considered to be a Consensus Policy if adopted by the ICANN
Board of Directors by a vote of at least two-thirds of its members,
and if immediate temporary adoption of a policy on the subject
is necessary to maintain the stability of the Internet or the
operation of the domain name system, and if the proposed policy
is as narrowly tailored as feasible to achieve those objectives.
In adopting any policy under this provision, the ICANN Board
of Directors shall state the period of time for which the policy
is temporarily adopted and shall immediately refer the matter
to the appropriate Supporting Organization for its evaluation
and review with a detailed explanation of its reasons for adopting
the temporary policy and why the Board believes the policy should
receive the consensus support of Internet stakeholders. If the
period of time for which the policy is adopted exceeds 45 days,
the Board shall reaffirm its temporary adoption every 45 days
for a total period not to exceed 180 days, in order to maintain
such policy in effect until such time as it meets the standard
set forth in Section I.B.1. If the standard set forth in Section
I.B.1 above is not met within the temporary period set by the
Board, or the council of the Supporting Organization to which
it has been referred votes to reject the temporary policy, it
will no longer be a "Consensus Policy."
5. For all purposes under this Agreement,
the policies specifically identified by ICANN on its website
(www.icann.org) at the date of this Agreement as having been
adopted by the ICANN Board of Directors before the date of this
Agreement shall be treated in the same manner and have the same
effect as "Consensus Policies."
6. In the event that, at the time the ICANN
Board adopts a policy under Section I.B.1 during the term of
this Agreement, ICANN does not have in place an Independent Review
Panel established under ICANN’s bylaws, the fifteen-working-day
period allowed under Section I.B.2 to seek review shall be extended
until fifteen working days after ICANN does have such an Independent
Review Panel in place and Registrar shall not be obligated to
comply with the policy in the interim.
C. "DNS" refers to the Internet
domain-name system.
D. "ICANN" refers to the Internet
Corporation for Assigned Names and Numbers, a party to this Agreement.
E. An "ICANN-adopted policy"
(and references to ICANN "adopt[ing]" a policy or policies)
refers to a Consensus Policy adopted by ICANN (i) in conformity
with applicable provisions of its articles of incorporation and
bylaws and Section II.C of this Agreement and (ii) of which Registrar
has been given notice and a reasonable period in which to comply.
F. "IP" means Internet Protocol.
G. "Personal Data" refers to
data about any identified or identifiable natural person.
H. The word "Registrar," when
appearing with an initial capital letter, refers to ________________________________,
a party to this Agreement.
I. The word "registrar," when
appearing without an initial capital letter, refers to a person
or entity that contracts with SLD holders and a registry, collecting
registration data about the SLD holders and submitting zone file
information for entry in the registry database.
J. A "Registry" is the person(s)
or entity(ies) then responsible, in accordance with an agreement
between ICANN and that person or entity (those persons or entities)
or, if that agreement is terminated or expires, in accordance
with an agreement between the US Government and that person or
entity (those persons or entities), for providing registry services.
K. An "SLD" is a second-level
domain of the DNS.
L. An SLD registration is "sponsored"
by the registrar that placed the record associated with that
registration into the registry. Sponsorship of a registration
may be changed at the express direction of the SLD holder or,
in the event a registrar loses accreditation, in accordance with
then-current ICANN-adopted policies.
M. A "TLD" is a top-level domain
of the DNS.
II. TERMS AND CONDITIONS OF AGREEMENT
The parties agree as follows:
A. Accreditation. During the term
of this Agreement, Registrar is hereby accredited by ICANN to
act as a registrar (including to insert and renew registration
of SLDs in the registry database) for the .com, .net, and .org
TLDs.
B. Registrar Use of ICANN Name.
Registrar is hereby granted a non-exclusive worldwide license
to state during the term of this Agreement that it is accredited
by ICANN as a registrar in the .com, .net, and .org TLDs. No
other use of ICANN’s name is licensed hereby. This license
may not be assigned or sublicensed by Registrar.
C. General Obligations of ICANN.
With respect to all matters that impact the rights, obligations,
or role of Registrar, ICANN shall during the Term of this Agreement:
1. exercise its responsibilities in an
open and transparent manner;
2. not unreasonably restrain competition
and, to the extent feasible, promote and encourage robust competition;
3. not apply standards, policies, procedures
or practices arbitrarily, unjustifiably, or inequitably and not
single out Registrar for disparate treatment unless justified
by substantial and reasonable cause; and
4. ensure, through its reconsideration
and independent review policies, adequate appeal procedures for
Registrar, to the extent it is adversely affected by ICANN standards,
policies, procedures or practices.
D. General Obligations of Registrar.
1. During the Term of this Agreement:
a. Registrar agrees that it will operate
as a registrar for TLDs for which it is accredited by ICANN in
accordance with this Agreement;
b. Registrar shall comply, in such operations,
with all ICANN-adopted Policies insofar as they:
i. relate to one or more of the following:
(A) issues for which uniform or coordinated resolution is
reasonably necessary to facilitate interoperability, technical
reliability and/or stable operation of the Internet or domain-name
system, (B) registrar policies reasonably necessary to implement
Consensus Policies relating to the Registry, or (C) resolution
of disputes regarding the registration of domain names (as opposed
to the use of such domain names), and
ii. do not unreasonably restrain competition.
2. To the extent that Consensus Policies
are adopted in conformance with Section II.C of this Agreement,
the measures permissible under Section II.D.1.b.i shall
include, without limitation:
i. principles for allocation of SLD names
(e.g., first-come/first-served, timely renewal, holding period
after expiration);
ii. prohibitions on warehousing of
or speculation in domain names by registrars;
iii. reservation of SLD names that
may not be registered initially or that may not be renewed due
to reasons reasonably related to (a) avoidance of confusion
among or misleading of users, (b) intellectual property, or (c)
the technical management of the DNS or the Internet (e.g., "example.com"
and single-letter/digit names);
iv. the allocation among continuing registrars
of the SLD names sponsored in the registry by a registrar losing
accreditation; and
v. the transfer of registration data upon
a change in registrar sponsoring the registration.
Nothing in this Section II.D shall limit
or otherwise affect Registrar's obligations as set forth elsewhere
in this Agreement.
E. Submission of SLD Holder Data to
Registry. During the term of this Agreement:
1. As part of its registration of SLDs
in the .com, .net, and .org TLDs, Registrar shall submit to,
or shall place in the registry database operated by Registry
the following data elements concerning SLD registrations that
Registrar processes:
a. The name of the SLD being registered;
b. The IP addresses of the primary nameserver
and secondary nameserver(s) for the SLD;
c. The corresponding names of those nameservers;
d. Unless automatically generated by the
registry system, the identity of the registrar;
e. Unless automatically generated by the
registry system, the expiration date of the registration; and
f. Other data required as a result of further
development of the registry system by the Registry.
2. Within five (5) business days after
receiving any updates from the SLD holder to the data elements
listed in Sections II.E.1.b and c for any SLD registration
Registrar sponsors, Registrar shall submit the updated data elements
to, or shall place those elements in the registry database operated
by Registry.
3. In order to allow reconstitution of
the registry database in the event of an otherwise unrecoverable
technical failure or a change in the designated Registry permitted
by the contract Registry has with ICANN and/or the United States
Department of Commerce, within ten days of any such request by
ICANN Registrar shall submit an electronic database containing
the data elements listed in Sections II.F.1.a through d
for all active records in the registry sponsored by Registrar,
in a format specified by ICANN, to the Registry for the appropriate
TLD.
F. Public Access to Data on SLD Registrations.
During the term of this Agreement:
1. At its expense, Registrar shall provide
interactive public access on a current basis (such as through
a Whois service) to data concerning all active SLD registrations
sponsored by Registrar in the registry for the .com, .net, and
.org TLDs. The data accessible shall consist of elements that
are designated from time to time according to an ICANN-adopted
policy. Until ICANN otherwise specifies by means of an ICANN-adopted
policy, this data shall consist of the following elements as
contained in Registrar’s database:
a. The name of the SLD being registered
and the TLD for which registration is being requested;
b. The IP addresses of the primary nameserver
and secondary nameserver(s) for the SLD;
c. The corresponding names of those nameservers;
d. The identity of Registrar (which may
be provided through Registrar's website);
e. The original creation date of the registration;
f. The expiration date of the registration;
g. The name and postal address of the SLD
holder;
h. The name, postal address, e-mail address,
voice telephone number, and (where available) fax number of the
technical contact for the SLD; and
i. The name, postal address, e-mail address,
voice telephone number, and (where available) fax number of the
administrative contact for the SLD.
2. Upon receiving any updates to the data
elements listed in Sections II.F.1.b through d and f through
i from the SLD holder, Registrar shall promptly update its database
used to provide the public access described in Section II.F.1.
3. Registrar may subcontract its obligation
to provide the public access described in Section II.F.1 and
the updating described in Section II.F.2, provided that Registrar
shall remain fully responsible for the proper provision of the
access and updating.
4. Registrar shall abide by any ICANN-adopted
Policy that requires registrars to cooperatively implement a
distributed capability that provides query-based Whois search
functionality across all registrars. If the Whois service implemented
by registrars does not in a reasonable time provide reasonably
robust, reliable, and convenient access to accurate and up-to-date
data, the Registrar shall abide by any ICANN-adopted Policy requiring
Registrar, if reasonably determined by ICANN to be necessary
(considering such possibilities as remedial action by specific
registrars), to supply data from Registrar’s database to
facilitate the development of a centralized Whois database for
the purpose of providing comprehensive Registrar Whois search
capability.
5. In providing query-based public access
to registration data as required by Sections II.F.1 and II.F.4,
Registrar shall not impose terms and conditions on use of the
data provided except as permitted by an ICANN-adopted policy.
Unless and until ICANN adopts a different policy, Registrar shall
permit use of data it provides in response to queries for any
lawful purposes except to: (a) allow, enable, or otherwise support
the transmission of mass unsolicited, commercial advertising
or solicitations via e-mail (spam); or (b) enable high volume,
automated, electronic processes that apply to Registrar (or its
systems).
6. In addition, Registrar shall provide
third-party bulk access to the data subject to public access
under Section II.F.1 under the following terms and conditions:
a. Registrar shall make a complete electronic
copy of the data available at least one time per week for download
by third parties who have entered into a bulk access agreement
with Registrar.
b. Registrar may charge an annual fee,
not to exceed US$10,000, for such bulk access to the data.
c. Registrar’s access agreement shall
require the third party to agree not to use the data to allow,
enable, or otherwise support the transmission of mass unsolicited,
commercial advertising or solicitations via e-mail (spam).
d. Registrar’s access agreement may
require the third party to agree not to use the data to enable
high-volume, automated, electronic processes that apply to Registrar
(or its systems).
e. Registrar’s access agreement may
require the third party to agree not to sell or redistribute
the data except insofar as it has been incorporated by the third
party into a value-added product or service that does not permit
the extraction of a substantial portion of the bulk data from
the value-added product or service for use by other parties.
f. Registrar may enable SLD holders to
elect not to have data concerning their registrations available
for bulk access based on Registrar’s "Opt-Out"
policy, and Registrar may require the third party to abide by
the terms of that Opt-Out policy; provided, however, that Registrar
may not use such data subject to opt-out in its own value-added
product or service.
7. Registrar’s obligations under Section
II.F.6 shall remain in effect until the earlier of (a) replacement
of this policy with a different ICANN-adopted policy governing
bulk access to the data subject to public access under Section
II.F.1, or (b) demonstration, to the satisfaction of the United
States Department of Commerce, that no individual or entity is
able to exercise market power with respect to registrations or
with respect to registration data used for development of value-added
products and services by third parties.
8. To comply with applicable statutes and
regulations and for other reasons, ICANN may from time to time
adopt policies establishing limits on the Personal Data concerning
SLD registrations that Registrar may make available to the public
through a public-access service described in this Section II.F
and on the manner in which Registrar may make them available.
In the event ICANN adopts any such policy, Registrar shall abide
by it.
G. Retention of SLD Holder and Registration
Data.
1. During the term of this Agreement, Registrar
shall maintain its own electronic database, as updated from time
to time, containing data for each active SLD registration sponsored
by it in the registry for the .com, .net, and .org TLDs. The
data for each such registration shall include the elements listed
in Sections II.F.1.a through i, as well as the name and
(where available) postal address, e-mail address, voice telephone
number, and fax number of the billing contact.
2. During the term of this Agreement and
for three years thereafter, Registrar (itself or by its agent)
shall maintain the following records relating to its dealings
with the Registry and SLD holders:
a. In electronic form, the submission date
and time, and the content, of all registration data (including
updates) submitted in electronic form to the Registry;
b. In electronic, paper, or microfilm form,
all written communications constituting registration applications,
confirmations, modifications, or terminations and related correspondence
with actual SLD holders, including registration contracts; and
c. In electronic form, records of the accounts
of all SLD holders with Registrar, including dates and amounts
of all payments and refunds.
Registrar shall make these records available
for inspection by ICANN upon reasonable notice. ICANN shall not
disclose such records except as expressly permitted by an ICANN-adopted
policy.
H. Rights in Data. Registrar disclaims
all rights to exclusive ownership or use of the data elements
listed in Sections II.E.1.a. through c. for all SLD registrations
submitted by Registrar to, or sponsored by Registrar in, the
registry database for the .com, .net, and .org TLDs. Registrar
does not disclaim rights in the data elements listed in Sections II.E.1.d
through f and II.F.1.d through i concerning active SLD registrations
sponsored by it in the registry for the .com, .net, and .org
TLDs, and agrees to grant non-exclusive, irrevocable, royalty-free
licenses to make use of and disclose the data elements listed
in Sections II.F.1.d through i for the purpose of providing
a service (such as a Whois service under II.F.4) providing interactive,
query-based public access. Upon a change in sponsorship from
Registrar of any SLD registration in the registry for the .com,
.net, and .org TLDs, Registrar acknowledges that the registrar
gaining sponsorship shall have the rights of an owner to the
data elements listed in Sections II.E.1.d and e and II.F.1.d through
i concerning that registration, with Registrar also retaining
the rights of an owner in that data. Nothing in this Section II.H
prohibits Registrar from (1) restricting bulk public access
to data elements in a manner consistent with any ICANN-adopted
policies or (2) transferring rights it claims in data elements
subject to the provisions of this Section II.H.
I. Data Escrow. During the term
of this Agreement, on a schedule, under the terms, and in the
format specified in the then-current ICANN-adopted policy on
registrar escrow requirements, Registrar shall submit an electronic
copy of the database described in Section II.G.1 to ICANN or,
at Registrar’s election and at its expense, to a reputable
escrow agent mutually approved by Registrar and ICANN, such approval
also not to be unreasonably withheld by either party. The data
shall be held under an agreement among Registrar, ICANN, and
the escrow agent (if any) providing that (1) the data shall
be received and held in escrow, with no use other than verification
that the deposited data is complete and in proper format, until
released to ICANN; (2) the data shall be released from escrow
upon expiration without renewal or termination of this Agreement;
and (3) ICANN’s rights under the escrow agreement shall
be assigned with any assignment of this Agreement. The escrow
shall provide that in the event the escrow is released under
this Section II.I, ICANN (or its assignee) shall have a non-exclusive,
irrevocable, royalty-free license to exercise (only for transitional
purposes) or have exercised all rights necessary to provide registrar
services.
J. Business Dealings, Including with
SLD Holders.
1. In the event ICANN adopts a policy supported
by a consensus of ICANN-accredited registrars establishing or
approving a Code of Conduct for such registrars, Registrar shall
abide by that Code.
2. Registrar shall abide by applicable
laws and governmental regulations.
3. Registrar shall not represent to any
actual or potential SLD holder that Registrar enjoys access to
a registry for which Registrar is accredited that is superior
to that of any other registrar accredited for that registry.
4. Registrar shall not activate any SLD
registration unless and until it is satisfied that it has received
a reasonable assurance of payment of its registration fee. For
this purpose, a charge to a credit card, general commercial terms
extended to creditworthy customers, or other mechanism providing
a similar level of assurance of payment shall be sufficient,
provided that the obligation to pay becomes final and non-revocable
by the SLD holder upon activation of the registration.
5. Registrar shall register SLDs to SLD
holders only for fixed periods. At the conclusion of the registration
period, failure by or on behalf of the SLD holder to pay a renewal
fee within the time specified in a second notice or reminder
shall, in the absence of extenuating circumstances, result in
cancellation of the registration. In the event that ICANN adopts
a policy concerning procedures for handling expiration of registrations,
Registrar shall abide by that policy.
6. Registrar shall not insert or renew
any SLD name in any registry for which Registrar is accredited
by ICANN in a manner contrary to an ICANN-adopted policy stating
a list or specification of excluded SLD names that is in effect
at the time of insertion or renewal.
7. Registrar shall require all SLD holders
to enter into an electronic or paper registration agreement with
Registrar including at least the following provisions:
a. The SLD holder shall provide to Registrar
accurate and reliable contact details and promptly correct and
update them during the term of the SLD registration, including:
the full name, postal address, e-mail address, voice telephone
number, and fax number if available of the SLD holder; name of
authorized person for contact purposes in the case of an SLD
holder that is an organization, association, or corporation;
and the data elements listed in Section II.F.1.b, c, and h through
i above.
An SLD holder’s willful provision
of inaccurate or unreliable information, its willful failure
promptly to update information provided to Registrar, or its
failure to respond for over fifteen calendar days to inquiries
by Registrar concerning the accuracy of contact details associated
with the SLD holder’s registration shall constitute a material
breach of the SLD holder-registrar contract and be a basis for
cancellation of the SLD registration.
Any SLD holder that intends to license
use of a domain name to a third party is nonetheless the SLD
holder of record and is responsible for providing its own full
contact information and for providing and updating accurate technical
and administrative contact information adequate to facilitate
timely resolution of any problems that arise in connection with
the SLD.
b. Registrar shall provide notice to each
new or renewed SLD holder stating:
i. The purposes for which any Personal
Data collected from the applicant are intended;
ii. The intended recipients or categories
of recipients of the data (including the Registry and others
who will receive the data from Registry);
iii. Which data are obligatory and which
data, if any, are voluntary; and
iv. How the SLD holder or data subject
can access and, if necessary, rectify the data held about them.
c. The SLD holder shall consent to the
data processing referred to in Section II.J.7.b.
d. The SLD holder shall represent that
notice has been provided equivalent to that described in Section
II.J.7.b. above to any third-party individuals whose Personal
Data are supplied to Registrar by the SLD holder, and that the
SLD holder has obtained consent equivalent to that referred to
in Section II.J.7.c of any such third-party individuals.
e. Registrar shall agree that it will not
process the Personal Data collected from the SLD holder in a
way incompatible with the purposes and other limitations about
which it has provided notice to the SLD holder in accordance
with Section II.J.7.b, above.
f. Registrar shall agree that it will take
reasonable precautions to protect Personal Data from loss, misuse,
unauthorized access or disclosure, alteration, or destruction.
g. The SLD holder shall represent that,
to the best of the SLD holder’s knowledge and belief, neither
the registration of the SLD name nor the manner in which it is
directly or indirectly used infringes the legal rights of a third
party.
h. For the adjudication of disputes concerning
or arising from use of the SLD name, the SLD holder shall submit,
without prejudice to other potentially applicable jurisdictions,
to the jurisdiction of the courts (1) of the SLD holder’s
domicile and (2) where Registrar is located.
i. The SLD holder shall agree that its
registration of the SLD name shall be subject to suspension,
cancellation, or transfer pursuant to any ICANN-adopted policy,
or pursuant to any registrar or registry procedure not inconsistent
with an ICANN-adopted policy, (1) to correct mistakes by Registrar
or the Registry in registering the name or (2)
for the resolution of disputes concerning the SLD name.
j. The SLD holder shall indemnify and hold
harmless the Registry 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 related to the SLD holder’s domain name
registration.
8. Registrar shall abide by any ICANN-adopted
policies requiring reasonable and commercially practicable (a) verification,
at the time of registration, of contact information associated
with an SLD registration sponsored by Registrar or (b) periodic
re-verification of such information. Registrar shall, upon notification
by any person of an inaccuracy in the contact information associated
with an SLD registration sponsored by Registrar, take reasonable
steps to investigate that claimed inaccuracy. In the event Registrar
learns of inaccurate contact information associated with an SLD
registration it sponsors, it shall take reasonable steps to correct
that inaccuracy.
9. Registrar shall abide by any ICANN-adopted
policy prohibiting or restricting warehousing of or speculation
in domain names by registrars.
10. Registrar shall maintain in force commercial
general liability insurance with policy limits of at least US$500,000
covering liabilities arising from Registrar’s registrar
business during the term of this Agreement.
11. Nothing in this Agreement prescribes
or limits the amount Registrar may charge SLD holders for registration
of SLD names.
K. Domain-Name Dispute Resolution.
During the term of this Agreement, Registrar shall have in place
a policy and procedure for resolution of disputes concerning
SLD names. In the event that ICANN adopts a policy or procedure
for resolution of disputes concerning SLD names that by its terms
applies to Registrar, Registrar shall adhere to the policy or
procedure.
L. Accreditation Fees. As a condition
of accreditation, Registrar shall pay accreditation fees to ICANN.
These fees consist of yearly and on-going components.
1. The yearly component for the term of
this Agreement shall be US $5,000. Payment of the yearly component
shall be due upon execution by Registrar of this Agreement and
upon each anniversary date after such execution during the term
of this Agreement (other than the expiration date).
2. Registrar shall pay the on-going component
of Registrar accreditation fees adopted by ICANN in accordance
with the provisions of Section II.C above, provided such fees
are reasonably allocated among all registrars that contract with
ICANN and that any such fees must be expressly approved by registrars
accounting, in aggregate, for payment of two-thirds of all registrar-level
fees. Registrar shall pay such fees in a timely manner for so
long as all material terms of this Agreement remain in full force
and effect, and notwithstanding the pendency of any dispute between
Registrar and ICANN.
3. On reasonable notice given by ICANN
to Registrar, accountings submitted by Registrar shall be subject
to verification by an audit of Registrar’s books and records
by an independent third-party that shall preserve the confidentiality
of such books and records (other than its findings as to the
accuracy of, and any necessary corrections to, the accountings).
M. Specific Performance. While this
Agreement is in effect, either party may seek specific performance
of any provision of this Agreement in the manner provided in
Section II.P below, provided the party seeking such performance
is not in material breach of its obligations.
N. Termination of Agreement. This
Agreement may be terminated before its expiration by Registrar
by giving ICANN thirty days written notice. It may be terminated
before its expiration by ICANN in any of the following circumstances:
1. There was a material misrepresentation,
material inaccuracy, or materially misleading statement in Registrar’s
application for accreditation or any material accompanying the
application.
2. Registrar:
a. is convicted of a felony or other
serious offense 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 ICANN reasonably
deems as the substantive equivalent of any of these; or
b. is disciplined by the government of
its domicile for conduct involving dishonesty or misuse of funds
of others.
3. Any officer or director of Registrar
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 ICANN deems as the substantive equivalent of any of these;
provided, such officer or director is not removed in such circumstances.
4. Registrar fails to cure any breach of
this Agreement (other than a failure to comply with a policy
adopted by ICANN during the term of this Agreement as to which
Registrar is seeking, or still has time to seek, review under
Section I.B.2 of whether a consensus is present) within fifteen
working days after ICANN gives Registrar notice of the breach.
5. Registrar fails to comply with a ruling
granting specific performance under Sections II.M and II.P.
6. Registrar continues acting in a manner
that ICANN has reasonably determined endangers the stability
or operational integrity of the Internet after receiving three
days notice of that determination.
7. Registrar becomes bankrupt or insolvent.
This Agreement may be terminated in circumstances
1 through 6 above only upon fifteen days written notice to Registrar
(in the case of circumstance 4 occurring after Registrar’s
failure to cure), with Registrar being given an opportunity during
that time to initiate arbitration under Section II.P to determine
the appropriateness of termination under this Agreement. In the
event Registrar initiates litigation or arbitration concerning
the appropriateness of termination by ICANN, the termination
shall be stayed an additional thirty days to allow Registrar
to obtain a stay of termination under Section II.P below. If
Registrar acts in a manner that ICANN reasonably determines endangers
the stability or operational integrity of the Internet and upon
notice does not immediately cure, ICANN may suspend this Agreement
for five working days pending ICANN's application for more extended
specific performance or injunctive relief under Section II.P.
This Agreement may be terminated immediately upon notice to Registrar
in circumstance 7 above.
O. Term of Agreement; Renewal; Right
to Substitute Updated Agreement. This Agreement shall have
an initial term of five years, unless sooner terminated. Thereafter,
if Registrar seeks to continue its accreditation, it may apply
for renewed accreditation, and shall be entitled to renewal provided
it meets the ICANN-adopted policy on accreditation criteria then
in effect, is in compliance with its obligations under this Agreement,
as amended, and agrees to be bound by the then-current Registrar
accreditation agreement (which may differ from those of this
Agreement) that ICANN adopts in accordance with Section II.C.
and II.D (as Section II.D may have been amended by an ICANN-adopted
policy). In connection with renewed accreditation, Registrar
shall confirm its assent to the terms and conditions of the such
then-current Registrar accreditation agreement by signing that
accreditation agreement. In the event that, during the term of
this Agreement, ICANN posts on its web site an updated form of
registrar accreditation agreement applicable to accredited registrars
in the .com, .net, or .org TLDs, Registrar (provided it has not
received (1) a notice of breach that it has not cured or
(2) a notice of termination of this Agreement under Section
II.N above) may elect, by giving ICANN written notice, to enter
an agreement in the updated form in place of this Agreement.
In the event of such election, Registrar and ICANN shall promptly
sign a new accreditation agreement that contains the provisions
of the updated form posted on the web site, with the length of
the term of the substituted agreement as stated in the updated
form posted on the web site, calculated as if it commenced on
the date this Agreement was made, and this Agreement will be
deemed terminated.
P. Resolution of Disputes Under this
Agreement. Disputes arising under or in connection with this
Agreement, including (1) disputes arising from ICANN’s
failure to renew Registrar’s accreditation and (2) requests
for specific performance, shall be resolved in a court of competent
jurisdiction or, at the election of either party, by an arbitration
conducted as provided in this Section II.P pursuant to the International
Arbitration Rules of the American Arbitration Association ("AAA").
The arbitration shall be conducted in English and shall occur
in Los Angeles County, California, USA. There shall be three
arbitrators: each party shall choose one arbitrator and, if those
two arbitrators do not agree on a third arbitrator, the third
shall be chosen by the AAA. The parties shall bear the costs
of the arbitration in equal shares, subject to the right of the
arbitrators to reallocate the costs in their award as provided
in the AAA rules. The parties shall bear their own attorneys’
fees in connection with the arbitration, and the arbitrators
may not reallocate the attorneys’ fees in conjunction with
their award. The arbitrators shall render their decision within
ninety days of the conclusion of the arbitration hearing. In
the event Registrar initiates arbitration to contest the appropriateness
of termination of this Agreement by ICANN, Registar 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 arbitration
panel has granted an ICANN request for specific performance and
Registrar has failed to comply with such ruling. In the event
Registrar initiates arbitration to contest an Independent Review
Panel’s decision under Section I.B.2 sustaining the Board’s
determination that a policy is supported by consensus, Registar
may at the same time request that the arbitration panel stay
the requirement that it comply with the policy until the arbitration
decision is rendered, and that request shall have the effect
of staying the requirement until the decision or until the arbitration
panel has granted an ICANN request for lifting of the stay. In
all litigation involving ICANN concerning this Agreement (whether
in a case where arbitration has not been elected or to enforce
an arbitration award), jurisdiction and exclusive venue for such
litigation shall be in a court located in Los Angeles, California,
USA; however, the parties shall also have the right to enforce
a judgment of such a court in any court of competent jurisdiction.
For the purpose of aiding the arbitration and/or preserving the
rights of the parties during the pendency of an arbitration,
the parties shall have the right to seek temporary or preliminary
injunctive relief from the arbitration panel or in a court located
in Los Angeles, California, USA, which shall not be a waiver
of this arbitration agreement.
Q. Limitations on Monetary Remedies
for Violations of this Agreement. ICANN’s aggregate
monetary liability for violations of this Agreement shall not
exceed the amount of accreditation fees paid by Registrar to
ICANN under Section II.L of this Agreement. Registrar’s
monetary liability to ICANN for violations of this Agreement
shall be limited to accreditation fees owing to ICANN under this
Agreement. In no event shall either party be liable for special,
indirect, incidental, punitive, exemplary, or consequential damages
for any violation of this Agreement.
R. Handling by ICANN of Registrar-Supplied
Data. Before receiving any Personal Data from Registrar,
ICANN shall specify to Registrar in writing the purposes for
and conditions under which ICANN intends to use the Personal
Data. ICANN may from time to time provide Registrar with a revised
specification of such purposes and conditions, which specification
shall become effective no fewer than thirty days after it is
provided to Registrar. ICANN shall not use Personal Data provided
by Registrar for a purpose or under conditions inconsistent with
the specification in effect when the Personal Data were provided.
ICANN shall take reasonable steps to avoid uses of the Personal
Data by third parties inconsistent with the specification.
S. Miscellaneous.
1. Assignment. Either party may
assign or transfer this Agreement only with the prior written
consent of the other party, which shall not be unreasonably withheld,
except that ICANN may, with the written approval of the United
States Department of Commerce, assign this agreement by giving
Registrar written notice of the assignment. In the event of assignment
by ICANN, the assignee may, with the approval of the United States
Department of Commerce, revise the definition of "Consensus
Policy" to the extent necessary to meet the organizational
circumstances of the assignee, provided the revised definition
requires that Consensus Policies be based on a demonstrated consensus
of Internet stakeholders.
2. No Third-Party Beneficiaries.
This Agreement shall not be construed to create any obligation
by either ICANN or Registrar to any non-party to this Agreement,
including any SLD holder.
3. Notices, Designations, and Specifications.
All notices to be given under this Agreement shall be given in
writing at the address of the appropriate party as set forth
below, unless that party has given a notice of change of address
in writing. Any notice required by this Agreement shall be deemed
to have been properly given when delivered in person, when sent
by electronic facsimile, or when scheduled for delivery by internationally
recognized courier service. Designations and specifications by
ICANN under this Agreement shall be effective when written notice
of them is deemed given to Registrar.
If to ICANN, addressed to:
Internet Corporation for Assigned Names
and Numbers
Registrar Accreditation
4676 Admiralty Way, Suite 330
Marina Del Rey, California 90292
Telephone: 1/310/823-9358
Facsimile: 1/310/823-8649
If to Registrar, addressed to:
With a copy to:
4. Dates and Times. All dates and
times relevant to this Agreement or its performance shall be
computed based on the date and time observed in Los Angeles,
California, USA.
5. Language. All notices, designations,
and specifications made under this Agreement shall be in the
English language.
6. Entire Agreement. Except for
any written transition agreement that may be executed concurrently
herewith by both parties, this Agreement constitutes the entire
agreement of the parties hereto pertaining to the subject matter
hereof and supersedes all prior agreements, understandings, negotiations
and discussions, whether oral or written, of the parties.
7. Amendments and Waivers. No amendment,
supplement, or modification of this Agreement or any provision
hereof shall be binding unless executed in writing by both parties.
No waiver of any provision of this Agreement shall be binding
unless evidenced by a writing signed by the party waiving compliance
with such provision. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any
other provision hereof, nor shall any such waiver constitute
a continuing waiver unless otherwise expressly provided.
8. Counterparts. This Agreement
may be executed in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be executed in duplicate by their
duly authorized representatives.
INTERNET CORPORATION FOR ASSIGNED NAMES
AND NUMBERS
By:__________________________
Michael M. Roberts
Interim President and CEO
[REGISTRAR]
By:__________________________
Transition Agreement
In connection and simultaneously with entry
into a Registrar Accreditation Agreement ("Accreditation
Agreement"), and as a condition of the effectiveness thereof,
ICANN and NSI hereby agree as follows:
1. ICANN accepts NSI’s application
for accreditation, finds the application fully satisfactory,
and agrees that it shall not at any time assert, for purposes
of the Accreditation Agreement, that there was any material misrepresentation,
material inaccuracy, or materially misleading statement in NSI’s
application for accreditation or any material accompanying the
application.
2. It is recognized that the Whois lookup
capability is currently generated by NSI from static database
files and lags the Registry database in timeliness. NSI will
complete the development of an interactive Whois capability providing
near real-time-access (referred to as a "current basis"
in Section II.F.1 of the Accreditation Agreement) to the database
within six months after the date of the Accreditation Agreement.
3. NSI’s obligation under II.J.4.
shall not become effective until four months after the date of
the Accreditation Agreement.
4. NSI will approve the on-going component
of Registrar accreditation fees, as provided in Section II.L.2
of the Accreditation Agreement, if its portion thereof does not
exceed $2,000,000 annually. NSI agrees to prepay $1,000,000 toward
its share of the on-going component of its Registrar accreditation
fees at the time of signing of the Accreditation Agreement.
5. In the case of actual conflict while
they are both in effect, the term(s) of the Cooperative Agreement
shall take precedence over this Agreement.
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be executed in duplicate by their
duly authorized representatives.
INTERNET CORPORATION FOR ASSIGNED NAMES
AND NUMBERS
By:__________________________
Michael M. Roberts
Interim President and CEO
NETWORK SOLUTIONS, INC.
By:__________________________
Page modified 28-September-1999
|