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Tentative Agreements among ICANN, the U.S. Department
of Commerce, and Network Solutions, Inc.
(Posted September 28, 1999)
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[Note: ICANN has posted the following
document for public review and comment. To submit comments, click
here.]
REGISTRAR LICENSE AND AGREEMENT
This Registrar License and Agreement (the
"Agreement") is dated as of __________, 1999 ("Effective
Date") by and between Network Solutions, Inc., a Delaware
corporation, with its principal place of business located at
505 Huntmar Park Drive, Herndon, Virginia 20170 ("NSI"or
the "Registry"), and _________________, a _____________________
corporation, with its principal place of business located at
_____________________________________ ("Registrar").
NSI and Registrar may be referred to individually as a "Party"
and collectively as the "Parties."
WHEREAS,
multiple registrars will provide Internet domain name registration
services within the .com, .org and .net top-level domains wherein
NSI operates and maintains certain TLD servers and zone files
("Registry");
WHEREAS,
Registrar wishes to register second-level domain names in the
multiple registrar system for the .com, .org and .net TLDs.
NOW, THEREFORE,
for and in consideration of the mutual promises, benefits and
covenants contained herein and for other good and valuable consideration,
the receipt, adequacy and sufficiency of which are hereby acknowledged,
NSI and Registrar, intending to be legally bound, hereby agree
as follows:
1. DEFINITIONS
1.1 "DNS"
refers to the Internet domain name system.
1.2 "IP"
means Internet Protocol.
1.3 An
"SLD" is a second-level domain of the DNS.
1.4 The
"System" refers to the multiple registrar system developed
by NSI for registration of second-level domain names in the .com,
.org and .net TLDs.
1.5 A
"TLD" is a top-level domain of the DNS.
1.6 The
"Licensed Product" refers to the RRP, APIs, and software,
collectively.
2. OBLIGATIONS OF THE PARTIES
2.1 System Operation and Access. Throughout the Term of this Agreement, NSI shall
operate the System and provide Registrar with access to the System
enabling Registrar to transmit domain name registration information
for the .com, .org and .net TLDs to the System according to a
protocol developed by NSI and known as the Registry Registrar
Protocol ("RRP").
2.2 Distribution of RRP, APIs and Software. No later than three business days after the Effective
Date of this Agreement, NSI shall provide to Registrar (i) full
documentation of the RRP, (ii) "C" and "Java"
application program interfaces ("APIs") to the RRP
with documentation, and (iii) reference client software ("Software")
that will enable Registrar to develop its system to register
second-level domain names through the System for the .com, .org
and .net TLDs. If NSI elects to modify or upgrade the APIs and/or
RRP, NSI shall provide updated APIs to the RRP with documentation
and updated Software to Registrar promptly as such updates become
available.
2.3 New Architectural Features. NSI will use its best commercial efforts to develop
and implement two additional modifications to the Licensed Product
by January 15, 2000 as follows:
2.3.1 NSI will issue an upgrade to the
Licensed Product that will enable a Registrar to accept initial
domain name registrations or renewals of a minimum of one year
in length, or in multiples of one year increments, up to a maximum
of ten (10) years.
2.3.2 NSI will issue an upgrade to the
Licensed Product that will enable registrars to accept the addition
of one additional year to a registrant’s "current"
registration period when a registrant changes from one registrar
to another.
Registrars will be able to offer these
new features only for new registrations or renewals occurring
after the Upgrade is deployed. Both Upgrades will be introduced
into the Operational Test and Evaluation environment for testing
prior to deployment.
2.4 Registrar Responsibility for Customer
Support. Registrar shall be responsible
for providing customer service (including domain name record
support), billing and technical support, and customer interface
to accept customer (the "SLD holder") orders.
2.5 Data Submission Requirements. As part of its registration of all SLD registrations
in the .com, .net, and .org TLDs during the Term of this Agreement,
Registrar shall submit the following data elements using the
RRP concerning SLD registrations it processes:
2.5.1 The name of the SLD being registered;
2.5.2 The IP addresses of the primary nameserver
and any secondary nameservers for the SLD; and
2.5.3 The corresponding host names of those
nameservers.
2.6 License.
Registrar grants NSI as Registry a non-exclusive non-transferable
limited license to the data elements consisting of the SLD name
registered, the IP addresses of nameservers, and the identity
of the registering registrar for propagation of and the provision
of authorized access to the TLD zone files.
2.7 Registrar’s Registration Agreement
and Domain Name Dispute Policy.
Registrar shall have developed and employ in its domain name
registration business an electronic or paper registration agreement,
including a domain name dispute policy, a copy of which is attached
to this Agreement as Exhibit A (which may be amended from time
to time by Registrar, provided a copy is furnished to the Registry
three (3) business days in advance of any such amendment), to
be entered into by Registrar with each SLD holder as a condition
of registration. Registrar shall include terms in its agreement
with each SLD holder that are consistent with Registrar’s
duties to NSI hereunder.
2.8 Secure Connection. Registrar agrees to develop and employ in its
domain name registration business all necessary technology and
restrictions to ensure that its connection to the System is secure.
All data exchanged between Registrar’s system and the System
shall be protected to avoid unintended disclosure of information.
Each RRP session shall be authenticated and encrypted using two-way
secure socket layer ("SSL") protocol. Registrar agrees
to authenticate every RRP client connection with the System using
both an X.509 server certificate issued by a commercial Certification
Authority identified by the Registry and its Registrar password,
which it shall disclose only to its employees with a need to
know. Registrar agrees to notify Registry within four hours of
learning that its Registrar password has been compromised in
any way or if its server certificate has been revoked by the
issuing Certification Authority or compromised in any way.
2.9 Domain Name Lookup Capability. Registrar agrees to employ in its domain name
registration business NSI’s Registry domain name lookup
capability to determine if a requested domain name is available
or currently unavailable for registration.
2.10 Transfer of Sponsorship of Registrations. Registrar agrees to implement transfers of SLD
registrations from another registrar to Registrar and vice versa
pursuant to the Policy on Transfer of Sponsorship of Registrations
Between Registrars appended hereto as Exhibit B.
2.11 Time.
Registrar agrees that in the event of any dispute concerning
the time of the entry of a domain name registration into the
Registry database, the time shown in the NSI Registry records
shall control.
2.12 Compliance with Terms and Conditions. Registrar agrees to comply with all other reasonable
terms or conditions established from time to time, to assure
sound operation of the System, by NSI as Registry in a non-arbitrary
manner and applicable to all registrars, including NSI, and consistent
with NSI’s Cooperative Agreement with the United States
Government or NSI’s Registry Agreement with the Internet
Corporation for Assigned Names and Numbers ("ICANN"),
as applicable, upon NSI's notification to Registrar of the establishment
of those terms and conditions.
2.13 Resolution of Technical Problems. Registrar agrees to employ necessary employees,
contractors, or agents with sufficient technical training and
experience to respond to and fix all technical problems concerning
the use of the RRP and the APIs in conjunction with Registrar's
systems. Registrar agrees that in the event of significant degradation
of the System or other emergency, Network Solutions, as Registry,
may, in its sole discretion, temporarily suspend access to the
System. Such temporary suspensions shall be applied in a nonarbitrary
manner and shall apply fairly to any registrar similarly situated,
including NSI.
2.14 Surety Instrument. During the Initial Term and any Renewal Terms,
Registrar shall have in place a performance bond, letter of credit
or equivalent instrument (the "Surety Instrument")
from a surety acceptable to NSI, in the amount of $100,000 U.S.
dollars. The terms of the Surety Instrument shall indemnify and
hold harmless NSI and its employees, directors, officers, representatives,
agents and affiliates from all costs and damages (including reasonable
attorneys’ fees) which it may suffer by reason of Registrar’s
failure to indemnify NSI as provided in Section 6.16 by making
payment(s) up to the full amount of the bond within ten (10)
days of NSI’s having notified the surety of its claim(s)
of damages, having identified the basis for any such claim. NSI
shall not be entitled to payment under the Surety Instrument
until such time as it has certified that it has incurred expenses
for which it is entitled to reimbursement in accordance with
the provisions of Section 6.16 of this Agreement.
2.15 Prohibited Domain Name Registrations. Registrar agrees to comply with the policies
of NSI as Registry that will be applicable to all registrars
and that will prohibit the registration of certain domain names
in the .com, .org and .net TLDs which are not allowed to be registered
by statute or regulation.
2.16 Indemnification Required of SLD
Holders. Registrar shall require
each SLD holder to indemnify, defend and hold harmless NSI, and
its directors, officers, employees and agents from and against
any and all claims, damages, liabilities, costs and expenses,
including reasonable legal fees and expenses arising out of or
relating to the SLD holder's domain name registration.
3. LICENSE
3.1 License Grant.
Subject to the terms and conditions of this Agreement, NSI hereby
grants Registrar and Registrar accepts a non-exclusive, non-transferable,
worldwide limited license to use for the Term and purposes of
this Agreement the RRP, APIs and Software, as well as updates
and redesigns thereof, to provide domain name registration services
in the .com, .org and .net TLDs only and for no other purpose.
The RRP, APIs and Software, as well as updates and redesigns
thereof, will enable Registrar to register domain names with
the Registry on behalf of its SLD holders. Registrar, using the
RRP, APIs and Software, as well as updates and redesigns thereof,
will be able to invoke the following operations on the System:
(i) check the availability of a domain name, (ii) register a
domain name, (iii) re-register a domain name, (iv) cancel the
registration of a domain name it has registered, (v) update the
nameservers of a domain name, (vi) transfer a domain name from
another registrar to itself with proper authorization, (vii)
query a domain name registration record, (viii) register a nameserver,
(ix) update the IP addresses of a nameserver, (x) delete a nameserver,
(xi) query a nameserver, and (xii) establish and end an authenticated
session.
3.2 Limitations
on Use. Notwithstanding any other provisions in this Agreement,
except with the written consent of NSI, Registrar shall not:
(i) sublicense the RRP, APIs or Software or otherwise permit
any use of the RRP, APIs or Software by or for the benefit of
any party other than Registrar, (ii) publish, distribute or permit
disclosure of the RRP, APIs or Software other than to employees,
contractors, and agents of Registrar for use in Registrar's domain
name registration business, (iii) decompile, reverse engineer,
copy or re-engineer the RRP, APIs or Software for any unauthorized
purpose, or (iv) use or permit use of the RRP, APIs or Software
in violation of any federal, state or local rule, regulation
or law, or for any unlawful purpose.
Registrar agrees to employ the necessary
measures to prevent its access to the System granted hereunder
from being used for (i) the transmission of unsolicited, commercial
e-mail (spam) to entities other than Registrar’s customers;
(ii) high volume, automated, electronic processes that apply
to NSI for large numbers of domain names, except as reasonably
necessary to register domain names or modify existing registrations;
or (iii) high volume, automated, electronic, repetitive queries
for the purpose of extracting data to be used for Registrar’s
purposes, except as reasonably necessary to register domain names
or modify existing registrations.
3.3 Changes
to Licensed Materials. NSI may from time to time make modifications
to the RRP, APIs or Software licensed hereunder that will enhance
functionality or otherwise improve the System. NSI will provide
Registrar with at least sixty (60) days notice prior to the implementation
of any material changes to the RRP, APIs or software licensed
hereunder.
4. SUPPORT SERVICES
4.1 Engineering Support. NSI agrees to provide Registrar with reasonable
engineering telephone support (between the hours of 9 a.m. to
5 p.m. local Herndon, Virginia time or at such other times as
may be mutually agreed upon) to address engineering issues arising
in connection with Registrar's use of the System.
4.2 Customer
Service Support. During the Term of this Agreement, NSI will
provide reasonable telephone and e-mail customer service support
to Registrar, not SLD holders or prospective customers of Registrar,
for non-technical issues solely relating to the System and its
operation. NSI will provide Registrar with a telephone number
and e-mail address for such support during implementation of
the RRP, APIs and Software. First-level telephone support will
be available on a 7-day/24-hour basis. NSI will provide a web-based
customer service capability in the future and such web-based
support will become the primary method of customer service support
to Registrar at such time.
5. FEES
5.1 License
Fee. As consideration for the license of the RRP, APIs and
Software, Registrar agrees to pay NSI on the Effective Date a
non-refundable one-time fee in the amount of $ 10,000 payable
in United States dollars (the "License Fee") and payable
by check to Network Solutions, Inc., Attention: Registry Accounts
Receivable, 505 Huntmar Park Drive, Herndon, Virginia 20170 or
by wire transfer to NationsBank, for the credit of Network Solutions,
Inc., Account #004112889843, ABA # 05000017, Swift, NABKUS3ARIC.
No later than three (3) business days after either the receipt
(and final settlement if payment by check) of such License Fee,
or the Effective Date of this Agreement, whichever is later,
NSI will provide the RRP, APIs and Software to Registrar.
5.2 Registration Fees.
(a) From the Effective Date of this Agreement
through January 15, 2000, Registrar agrees to pay NSI the non-refundable
amounts of $18 United States dollars for each initial two-year
domain name registration and $9 United States dollars for each
one-year domain name re-registration (collectively, the "Registration
Fees") registered by Registrar through the System.
(b) Thereafter, and for the balance of
the term of this Agreement, Registrar agrees to pay NSI the non-refundable
amounts of $6 United States dollars for each annual increment
of an initial domain name registration and $6 United States dollars
for each annual increment of a domain name re-registration (collectively,
the "Registration Fees") registered by Registrar through
the System.
(c) NSI reserves the right to adjust the
Registration Fees prospectively upon thirty (30) days prior notice
to Registrar, provided that such adjustments are consistent with
NSI's Cooperative Agreement with the United States Government
or its Registry Agreement with ICANN, as applicable, and are
applicable to all registrars in the .com, .org and .net TLDs.
NSI will invoice Registrar monthly in arrears for each month's
Registration Fees. All Registration Fees are due immediately
upon receipt of NSI's invoice pursuant to a letter of credit,
deposit account, or other acceptable credit terms agreed by the
Parties.
5.3 Change
in Registrar Sponsoring Domain Name. Registrar may assume
sponsorship of a SLD holder’s existing domain name registration
from another registrar by following the policy set forth in Exhibit
B to this Agreement. Registrar agrees to pay NSI the applicable
Registration Fee as set forth above. For transfers taking place
after January 15, 2000, this shall result in a corresponding
extension of the existing registration. The losing registrar’s
Registration Fees will not be refunded as a result of any such
transfer.
5.4 Non-Payment
of Registration Fees. Timely payment of Registration Fees
is a material condition of performance under this Agreement.
In the event that Registrar fails to pay its Registration Fees,
either initial or re-registration fees, within three (3) days
of the date when due, NSI may stop accepting new registrations
and/or delete the domain names associated with invoices not paid
in full from the Registry database and give written notice of
termination of this Agreement pursuant to Section 6.1(b) below.
6. MISCELLANEOUS
6.1 Term of Agreement and Termination.
(a) Term of the Agreement. The duties
and obligations of the Parties under this Agreement shall apply
from the Effective Date through and including the last day of
the calendar month sixty (60) months from the Effective Date
(the "Initial Term"). Upon conclusion of the Initial
Term, all provisions of this Agreement will automatically renew
for successive five (5) year renewal periods until the Agreement
has been terminated as provided herein, Registrar elects not
to renew, or NSI ceases to operate as the registry for the .com,
.org and .net TLDs. In the event that revisions to NSI’s
Registrar License and Agreement are approved or adopted by the
U.S. Department of Commerce, or ICANN, as appropriate, Registrar
will execute an amendment substituting the revised agreement
in place of this Agreement, or, at Registrar’s option, exercised
within fifteen (15) days, may terminate this Agreement immediately
by giving written notice to NSI.
(b) Termination For Cause. In the
event that either Party materially breaches any term of this
Agreement including any of its representations and warranties
hereunder and such breach is not substantially cured within thirty
(30) calendar days after written notice thereof is given by the
other Party, then the non-breaching Party may, by giving written
notice thereof to the other Party, terminate this Agreement as
of the date specified in such notice of termination.
(c) Termination at Option of Registrar.
Registrar may terminate this Agreement at any time by giving
NSI thirty (30) days notice of termination.
(d) Termination Upon Loss of Registrar’s
Accreditation. This Agreement shall terminate in the event
Registrar’s accreditation by ICANN, or its successor, is
terminated or expires without renewal.
(e) Termination in the Event that Successor
Registry is Named. This Agreement shall terminate in the
event that the U.S. Department of Commerce or ICANN, as appropriate,
designates another entity to serve as the registry for the .com,
.net. and .org TLDs (the "Successor Registry").
(f) Termination in the Event of Bankruptcy.
Either Party may terminate this Agreement if the other Party
is adjudged insolvent or bankrupt, or if proceedings are instituted
by or against a Party seeking relief, reorganization or arrangement
under any laws relating to insolvency, or seeking any assignment
for the benefit of creditors, or seeking the appointment of a
receiver, liquidator or trustee of a Party's property or assets
or the liquidation, dissolution or winding up of a Party's business.
(g) Effect of Termination. Upon
expiration or termination of this Agreement, NSI will complete
the registration of all domain names processed by Registrar prior
to the date of such expiration or termination, provided that
Registrar’s payments to NSI for Registration Fees are current
and timely. Immediately upon any expiration or termination of
this Agreement, Registrar shall (i) transfer its sponsorship
of SLD name registrations to another licensed registrar(s) of
the Registry, in compliance with any procedures established or
approved by the U.S. Department of Commerce or ICANN, as appropriate,
and (ii) either return to NSI or certify to NSI the destruction
of all data, software and documentation it has received under
this Agreement.
(h) Survival. In the event of termination
of this Agreement, the following shall survive: (i) Sections
2.6, 2.7, 2.14, 6.1(g), 6.6, 6.7, 6.10, 6.12, 6.13, 6.14 and
6.16; (ii) the SLD holder’s obligations to indemnify, defend,
and hold harmless NSI, as stated in Section 2.16; (iii) the surety’s
obligations under the Surety Instrument described in Section
2.13 with respect to matters arising during the term of this
Agreement; and (iv) Registrar’s payment obligations as set
forth in Section 5.2 with respect to initial registrations or
re-registrations during the term of this Agreement. Neither Party
shall be liable to the other for damages of any sort resulting
solely from terminating this Agreement in accordance with its
terms but each Party shall be liable for any damage arising from
any breach by it of this Agreement.
6.2. No Third Party Beneficiaries; Relationship
of The Parties. This Agreement does not provide and shall
not be construed to provide third parties (i.e., non-parties
to this Agreement), including any SLD holder, with any remedy,
claim, cause of action or privilege. Nothing in this Agreement
shall be construed as creating an employer-employee or agency
relationship, a partnership or a joint venture between the Parties.
6.3 Force Majeure. Neither Party
shall be responsible for any failure to perform any obligation
or provide service hereunder because of any Act of God, strike,
work stoppage, governmental acts or directives, war, riot or
civil commotion, equipment or facilities shortages which are
being experienced by providers of telecommunications services
generally, or other similar force beyond such Party's reasonable
control.
6.4 Further Assurances. Each Party
hereto shall execute and/or cause to be delivered to each other
Party hereto such instruments and other documents, and shall
take such other actions, as such other Party may reasonably request
for the purpose of carrying out or evidencing any of the transactions
contemplated by this Agreement.
6.5 Amendment in Writing. Any amendment
or supplement to this Agreement shall be in writing and duly
executed by both Parties.
6.6 Attorneys’ Fees. If any
legal action or other legal proceeding (including arbitration)
relating to the performance under this Agreement or the enforcement
of any provision of this Agreement is brought against either
Party hereto, the prevailing Party shall be entitled to recover
reasonable attorneys' fees, costs and disbursements (in addition
to any other relief to which the prevailing Party may be entitled).
6.7 Dispute Resolution; Choice of Law;
Venue. The Parties shall attempt to resolve any disputes
between them prior to resorting to litigation. This Agreement
is to be construed in accordance with and governed by the internal
laws of the Commonwealth of Virginia, United States of America
without giving effect to any choice of law rule that would cause
the application of the laws of any jurisdiction other than the
internal laws of the Commonwealth of Virginia to the rights and
duties of the Parties. Any legal action or other legal proceeding
relating to this Agreement or the enforcement of any provision
of this Agreement shall be brought or otherwise commenced in
any state or federal court located in the eastern district of
the Commonwealth of Virginia. Each Party to this Agreement expressly
and irrevocably consents and submits to the jurisdiction and
venue of each state and federal court located in the eastern
district of the Commonwealth of Virginia (and each appellate
court located in the Commonwealth of Virginia) in connection
with any such legal proceeding.
6.8 Notices. Any notice or other
communication required or permitted to be delivered to any Party
under this Agreement shall be in writing and shall be deemed
properly delivered, given and received when delivered (by hand,
by registered mail, by courier or express delivery service or
by telecopier during business hours) to the address or telecopier
number set forth beneath the name of such Party below, unless
party has given a notice of a change of address in writing:
if to Registrar:
__________________________________________
__________________________________________
__________________________________________
__________________________________________
__________________________________________
__________________________________________
with a copy to:
__________________________________________
__________________________________________
__________________________________________
__________________________________________
__________________________________________
__________________________________________
Network Solutions, Inc.
505 Huntmar Park Drive
Herndon, Virginia 20170
Attention: Director, Customer Affairs
Telecopier: + 1 (703) 742-8706
with a copy to:
General Counsel
505 Huntmar Park Drive
Herndon, Virginia 20170
Telecopier: + 1 (703) 742-0065
6.9 Assignment/Sublicense. Except
as otherwise expressly provided herein, the provisions of this
Agreement shall inure to the benefit of and be binding upon,
the successors and permitted assigns of the Parties hereto. Registrar
shall not assign, sublicense or transfer its rights or obligations
under this Agreement to any third person without the prior written
consent of NSI.
6.10 Use of Confidential Information.
The Parties’ use and disclosure of Confidential Information
disclosed hereunder are subject to the terms and conditions of
the Parties' Confidentiality Agreement (Exhibit C) that will
be executed contemporaneously with this Agreement. Registrar
agrees that the RRP, APIs and Software are the Confidential Information
of NSI.
6.11 Delays or Omissions; Waivers.
No failure on the part of either Party to exercise any power,
right, privilege or remedy under this Agreement, and no delay
on the part of either Party in exercising any power, right, privilege
or remedy under this Agreement, shall operate as a waiver of
such power, right, privilege or remedy; and no single or partial
exercise or waiver of any such power, right, privilege or remedy
shall preclude any other or further exercise thereof or of any
other power, right, privilege or remedy. No Party shall be deemed
to have waived any claim arising out of this Agreement, or any
power, right, privilege or remedy under this Agreement, unless
the waiver of such claim, power, right, privilege or remedy is
expressly set forth in a written instrument duly executed and
delivered on behalf of such Party; and any such waiver shall
not be applicable or have any effect except in the specific instance
in which it is given.
6.12 Limitation of Liability. IN
NO EVENT WILL NSI BE LIABLE TO REGISTRAR FOR ANY SPECIAL, INDIRECT,
INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR
ANY DAMAGES RESULTING FROM LOSS OF PROFITS, ARISING OUT OF OR
IN CONNECTION WITH THIS AGREEMENT, EVEN IF NSI HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
6.13 Construction. The Parties agree
that any rule of construction to the effect that ambiguities
are to be resolved against the drafting Party shall not be applied
in the construction or interpretation of this Agreement.
6.14 Intellectual Property. Subject
to Section 2.6 above, each Party will continue to independently
own its intellectual property, including all patents, trademarks,
trade names, service marks, copyrights, trade secrets, proprietary
processes and all other forms of intellectual property.
6.15 Representations and Warranties
(a) Registrar. Registrar represents
and warrants that: (1) it is a corporation duly incorporated,
validly existing and in good standing under the law of the ______________,
(2) it has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement, (3)
it is, and during the Term of this Agreement will continue to
be, accredited by ICANN or its successor, pursuant to an accreditation
agreement dated after November ___, 1999, (4) the execution,
performance and delivery of this Agreement has been duly authorized
by Registrar, (5) no further approval, authorization or consent
of any governmental or regulatory authority is required to be
obtained or made by Registrar in order for it to enter into and
perform its obligations under this Agreement, and (6) Registrar’s
Surety Instrument provided hereunder is a valid and enforceable
obligation of the surety named on such Surety Instrument.
(b) NSI. NSI represents and warrants
that: (1) it is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware,
(2) it has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement, (3)
the execution, performance and delivery of this Agreement has
been duly authorized by NSI, and (4) no further approval, authorization
or consent of any governmental or regulatory authority is required
to be obtained or made by NSI in order for it to enter into and
perform its obligations under this Agreement.
(c) Disclaimer of Warranties. The
RRP, APIs and Software are provided "as-is" and without
any warranty of any kind. NSI EXPRESSLY DISCLAIMS ALL WARRANTIES
AND/OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY
OR SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE
AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. NSI DOES NOT WARRANT
THAT THE FUNCTIONS CONTAINED IN THE RRP, APIs OR SOFTWARE WILL
MEET REGISTRAR’S REQUIREMENTS, OR THAT THE OPERATION OF
THE RRP, APIs OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE,
OR THAT DEFECTS IN THE RRP, APIs OR SOFTWARE WILL BE CORRECTED.
FURTHERMORE, NSI DOES NOT WARRANT NOR MAKE ANY REPRESENTATIONS
REGARDING THE USE OR THE RESULTS OF THE RRP, APIs, SOFTWARE OR
RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY,
RELIABILITY, OR OTHERWISE. SHOULD THE RRP, APIs OR SOFTWARE PROVE
DEFECTIVE, REGISTRAR ASSUMES THE ENTIRE COST OF ALL NECESSARY
SERVICING, REPAIR OR CORRECTION OF REGISTRAR’S OWN SYSTEMS
AND SOFTWARE.
6.16. Indemnification. Registrar,
at its own expense and within thirty (30) days of presentation
of a demand by NSI under this paragraph, will indemnify, defend
and hold harmless NSI and its employees, directors, officers,
representatives, agents and affiliates, against any claim, suit,
action, or other proceeding brought against NSI or any affiliate
of NSI based on or arising from any claim or alleged claim (i)
relating to any product or service of Registrar; (ii) relating
to any agreement, including Registrar's dispute policy, with
any SLD holder of Registrar; or (iii) relating to Registrar's
domain name registration business, including, but not limited
to, Registrar's advertising, domain name application process,
systems and other processes, fees charged, billing practices
and customer service; provided, however, that in any such case:
(a) NSI provides Registrar with prompt notice of any such claim,
and (b) upon Registrar's written request, NSI will provide to
Registrar all available information and assistance reasonably
necessary for Registrar to defend such claim, provided that Registrar
reimburses NSI for its actual and reasonable costs. Registrar
will not enter into any settlement or compromise of any such
indemnifiable claim without NSI's prior written consent, which
consent shall not be unreasonably withheld. Registrar will pay
any and all costs, damages, and expenses, including, but not
limited to, reasonable attorneys' fees and costs awarded against
or otherwise incurred by NSI in connection with or arising from
any such indemnifiable claim, suit, action or proceeding.
6.17 Entire Agreement; Severability.
This Agreement, which includes Exhibits A, B and C, constitutes
the entire agreement between the Parties concerning the subject
matter hereof and supersedes any prior agreements, representations,
statements, negotiations, understandings, proposals or undertakings,
oral or written, with respect to the subject matter expressly
set forth herein. If any provision of this Agreement shall be
held to be illegal, invalid or unenforceable, each Party agrees
that such provision shall be enforced to the maximum extent permissible
so as to effect the intent of the Parties, and the validity,
legality and enforceability of the remaining provisions of this
Agreement shall not in any way be affected or impaired thereby.
If necessary to effect the intent of the Parties, the Parties
shall negotiate in good faith to amend this Agreement to replace
the unenforceable language with enforceable language that reflects
such intent as closely as possible.
IN WITNESS WHEREOF, the Parties hereto
have executed this Agreement as of the date set forth in the
first paragraph hereof.
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Network Solutions, Inc.
By:
Name:
Title:
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By:
Name:
Title:
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Exhibit A
Registrar’s Dispute Policy
[To be supplied from time to
time by Registrar]
Exhibit B
Policy on Transfer of Sponsorship
of Registrations Between Registrars
Registrar Requirements
The registration agreement between each
Registrar and its SLD holder shall include a provision explaining
that an SLD holder will be prohibited from changing its Registrar
during the first 60 days after initial registration of the domain
name with the Registrar. Beginning on the 61st day
after the initial registration with the Registrar, the procedures
for change in sponsoring registrar set forth in this policy shall
apply. Enforcement shall be the responsibility of the Registrar
sponsoring the domain name registration.
For each instance where an SLD holder wants
to change its Registrar for an existing domain name (i.e., a
domain name that appears in a particular top-level domain zone
file), the gaining Registrar shall:
1) Obtain express authorization from an
individual who has the apparent authority to legally bind the
SLD holder (as reflected in the database of the losing Registrar).
a) The form of the authorization is at
the discretion of each gaining Registrar.
b) The gaining Registrar shall retain a
record of reliable evidence of the authorization.
2) In those instances when the Registrar
of record is being changed simultaneously with a transfer of
a domain name from one party to another, the gaining Registrar
shall also obtain appropriate authorization for the transfer.
Such authorization shall include, but not be limited to, one
of the following:
a) A bilateral agreement between the parties.
c) A court order.
In those instances when the Registrar of
record denies the requested change of Registrar, the Registrar
of record shall notify the prospective gaining Registrar that
the request was denied and the reason for the denial.
Instances when the requested change of
sponsoring Registrar may be denied include, but are not limited
to:
1) Situations described in the Domain Name
Dispute Resolution Policy
2) A pending bankruptcy of the SLD Holder
3) Dispute over the identity of the SLD
Holder
4) Request to transfer sponsorship occurs
within the first 60 days after the initial registration with
the Registrar
In all cases, the losing Registrar shall
respond to the email notice regarding the "transfer"
request within five (5) days. Failure to respond will result
in a default "approval" of the "transfer."
Registry Requirements.
Upon receipt of the "transfer"
command from the gaining Registrar, the Registry will transmit
an email notification to both Registrars.
The Registry shall complete the "transfer"
if either:
1) the losing Registrar expressly "approves"
the request, or
2) the Registry does not receive a response
from the losing Registrar within five (5) days.
When the Registry’s database has been
updated to reflect the change to the gaining Registrar, the Registry
will transmit an email notification to both Registrars.
Records of Registration.
Each SLD holder shall maintain its own
records appropriate to document and prove the initial domain
name registration date, regardless of the number of Registrars
with which the SLD holder enters into a contract for registration
services.
Exhibit C
CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT is entered into by and between Network Solutions,
Inc. ("NSI"), a Delaware corporation having its principal
place of business in Herndon, VA, and , a _________ corporation
having its principal place of business in ___________________
("Registrar"), through their authorized representatives,
and takes effect on the date executed by the final party (the
"Effective Date").
Under this Confidentiality Agreement ("Confidentiality
Agreement"), the Parties intend to disclose to one another
information which they consider to be valuable, proprietary,
and confidential.
NOW, THEREFORE,
the parties agree as follows:
1. Confidential Information
1.1 "Confidential Information",
as used in this Confidentiality Agreement, shall mean all information
and materials including, without limitation, computer software,
data, information, databases, protocols, reference implementation
and documentation, and functional and interface specifications,
provided by the disclosing party to the receiving party under
this Confidentiality Agreement and marked or otherwise identified
as Confidential, provided that if a communication is oral, the
disclosing party will notify the receiving party in writing within
15 days of the disclosure.
2. Confidentiality Obligations
2.1 In consideration of the disclosure
of Confidential Information, the Parties agree that:
(a) The receiving party shall treat as
strictly confidential, and use all reasonable efforts to preserve
the secrecy and confidentiality of, all Confidential Information
received from the disclosing party, including implementing reasonable
physical security measures and operating procedures.
(b) The receiving party shall make no disclosures
whatsoever of any Confidential Information to others, provided
however, that if the receiving party is a corporation, partnership,
or similar entity, disclosure is permitted to the receiving party’s
officers, employees, contractors and agents who have a demonstrable
need to know such Confidential Information, provided the receiving
party shall advise such personnel of the confidential nature
of the Confidential Information and of the procedures required
to maintain the confidentiality thereof, and shall require them
to acknowledge in writing that they have read, understand, and
agree to be individually bound by the terms of this Confidentiality
Agreement.
(c) The receiving party shall not modify
or remove any Confidential legends and/or copyright notices appearing
on any Confidential Information.
2.2 The receiving party’s duties under
this section (2) shall expire five (5) years after the information
is received or earlier, upon written agreement of the Parties.
3. Restrictions On Use
3.1 The receiving party agrees that it
will use any Confidential Information received under this Confidentiality
Agreement solely for the purpose of providing domain name registration
services as a registrar and for no other purposes whatsoever.
3.2 No commercial use rights or any licenses
under any patent, patent application, copyright, trademark, know-how,
trade secret, or any other NSI proprietary rights are granted
by the disclosing party to the receiving party by this Confidentiality
Agreement, or by any disclosure of any Confidential Information
to the receiving party under this Confidentiality Agreement.
3.3 The receiving party agrees not to prepare
any derivative works based on the Confidential Information.
3.4 The receiving party agrees that any
Confidential Information which is in the form of computer software,
data and/or databases shall be used on a computer system(s) that
is owned or controlled by the receiving party.
4. Miscellaneous
4.1 This Confidentiality Agreement shall
be governed by and construed in accordance with the laws of the
Commonwealth of Virginia and all applicable federal laws. The
Parties agree that, if a suit to enforce this Confidentiality
Agreement is brought in the U.S. Federal District Court for the
Eastern District of Virginia, they will be bound by any decision
of the Court.
4.2 The obligations set forth in this Confidentiality
Agreement shall be continuing, provided, however, that this Confidentiality
Agreement imposes no obligation upon the Parties with respect
to information that (a) is disclosed with the disclosing party’s
prior written approval; or (b) is or has entered the public domain
through no fault of the receiving party; or (c) is known by the
receiving party prior to the time of disclosure; or (d) is independently
developed by the receiving party without use of the Confidential
Information; or (e) is made generally available by the disclosing
party without restriction on disclosure.
4.3 This Confidentiality Agreement may
be terminated by either party upon breach by the other party
of any its obligations hereunder and such breach is not cured
within three (3) calendar days after the allegedly breaching
party is notified by the disclosing party of the breach. In the
event of any such termination for breach, all Confidential Information
in the possession of the Parties shall be immediately returned
to the disclosing party; the receiving party shall provide full
voluntary disclosure to the disclosing party of any and all unauthorized
disclosures and/or unauthorized uses of any Confidential Information;
and the obligations of Sections 2 and 3 hereof shall survive
such termination and remain in full force and effect. In the
event that the Registrar License and Agreement between the Parties
is terminated, the Parties shall immediately return all Confidential
Information to the disclosing party and the receiving party shall
remain subject to the obligations of Sections 2 and 3.
4.4 The terms and conditions of this Confidentiality
Agreement shall inure to the benefit of the Parties and their
successors and assigns. The Parties’ obligations under this
Confidentiality Agreement may not be assigned or delegated.
4.5 The Parties agree that they shall be
entitled to seek all available legal and equitable remedies for
the breach of this Confidentiality Agreement.
4.6 The terms and conditions of this Confidentiality
Agreement may be modified only in a writing signed by NSI and
Registrar.
4.7 EXCEPT AS MAY OTHERWISE BE SET FORTH
IN A SIGNED, WRITTEN AGREEMENT BETWEEN THE PARTIES, THE PARTIES
MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED,
AS TO THE ACCURACY, COMPLETENESS, CONDITION, SUITABILITY, PERFORMANCE,
FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY OF ANY CONFIDENTIAL
INFORMATION, AND THE PARTIES SHALL HAVE NO LIABILITY WHATSOEVER
TO ONE ANOTHER RESULTING FROM RECEIPT OR USE OF THE CONFIDENTIAL
INFORMATION.
4.8 If any part of this Confidentiality
Agreement is found invalid or unenforceable, such part shall
be deemed stricken herefrom and the Parties agree: (a) to negotiate
in good faith to amend this Confidentiality Agreement to achieve
as nearly as legally possible the purpose or effect as the stricken
part, and (b) that the remainder of this Confidentiality Agreement
shall at all times remain in full force and effect.
4.9 This Confidentiality Agreement contains
the entire understanding and agreement of the Parties relating
to the subject matter hereof.
4.10 Any obligation imposed by this Confidentiality
Agreement may be waived in writing by the disclosing party. Any
such waiver shall have a one-time effect and shall not apply
to any subsequent situation regardless of its similarity.
4.11 Neither Party has an obligation under
this Confidentiality Agreement to purchase, sell, or license
any service or item from the other Party.
4.12 The Parties do not intend that any
agency or partnership relationship be created between them by
this Confidentiality Agreement.
IN WITNESS WHEREOF, and intending to be
legally bound, duly authorized representatives of NSI and Registrar
have executed this Confidentiality Agreement in Virginia on the
dates indicated below.
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("Registrar") Network Solutions,
Inc.
By: ____________________________
Title: ___________________________
Date:___________________________
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("NSI")
By: __________________________
Title:_________________________
Date:_________________________
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Page modified 28-September-1999
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