For purposes of this Agreement, the following
definitions shall apply:
1. "Consensus Policies"
are those specifications or policies established based on a consensus
among Internet stakeholders represented in the ICANN process,
as demonstrated by (1) action of the ICANN Board of Directors
establishing the specification or policy, (2) a recommendation,
adopted by at least a two-thirds vote of the council of the ICANN
Supporting Organization to which the matter is delegated, that
the specification or policy should be established, 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.
A. In the event that
Registry Operator 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 the 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 Definition
1 above. In the event that Registry Operator seeks review and
the Independent Review Panel sustains the Board's determination
that the policy is based on a consensus among Internet stakeholders
represented in the ICANN process, then Registry Operator must
implement such policy unless it promptly seeks and obtains injunctive
relief under Section 15 below.
B. If, following a
decision by the Independent Review Panel convened under Subsection
(A) above, Registry Operator 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 15
below; provided, however, that Registry Operator must continue
to implement the policy unless it has obtained injunctive relief
under Section 15 below or a final decision is rendered in accordance
with the provisions of Section 15 that relieves Registry Operator
of such obligation. The decision in any such further review shall
be based on the report and supporting materials required by Definition
1 above.
C. A specification
or policy established 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, so long as the Board reasonably
determines that immediate temporary establishment of a specification
or policy on the subject is necessary to maintain the operational
stability of Registry Services, the DNS or the Internet, and
that the proposed policy is as narrowly tailored as feasible
to achieve those objectives. In establishing any specification
or policy under this provision, the ICANN Board of Directors
shall state the period of time for which the specification or
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 90 days,
the Board shall reaffirm its temporary adoption every 90 days
for a total period not to exceed one year, in order to maintain
such policy in effect until such time as it meets the standard
set forth in Definition 1 above. If the standard set forth in
Definition 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."
D. For all purposes
under this Agreement, the policies identified in Appendix A shall
be treated in the same manner and have the same effect as "Consensus
Policies."
E. Registry Operator
shall be afforded a reasonable period of time, not to exceed
four months (unless the nature of the specification or policy
established under Definition 1 above reasonably requires, as
agreed to by ICANN and Registry Operator, a longer period) after
receiving notice of the establishment of a specification or policy
under Definition 1 above in which to comply with that specification
or policy, taking into account any urgency involved.
F. In the event that,
at the time the ICANN Board establishes a specification or policy
under Definition 1 above 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 subsection (B) above to seek review shall be extended until
fifteen working days after ICANN does have such an Independent
Review Panel in place and Registry Operator shall not be obligated
to comply with the specifications or policy in the interim.
2. "DNS" refers
to the Internet domain name system.
3. "Effective Date"
is the date on which the Agreement is signed by ICANN and Registry
Operator.
4. "Expiration Date"
is November 10, 2007, unless further extended pursuant to this
Agreement.
5. "Personal Data"
refers to data about any identified or identifiable natural person.
6. "Registered Name"
refers to a domain name within the domain of the Registry TLD,
whether at the second or a lower level (e.g., john.smith.name),
about which Registry Operator or an affiliate engaged in providing
Registry Services maintains data in a Registry Database, arranges
for such maintenance, or derives revenue from such maintenance.
A name in a Registry Database may be a Registered Name even though
it does not appear in a TLD zone file (e.g., a registered
but inactive name).
7. "Registry Data"
means all Registry Database data maintained in electronic form
in the Registry Database, and shall include Zone File Data, all
data used to provide Registry Services submitted by registrars
in electronic form, and all other data used to provide Registry
Services concerning particular domain name registrations or nameservers
maintained in electronic form in the Registry Database.
8. "Registry Database"
means a database comprised of data about one or more DNS domain
names within the domain of the Registry TLD that is used to generate
either DNS resource records that are published authoritatively
or responses to domain name availability lookup requests or Whois
queries, for some or all of those names.
9. "Registry Services"
means services provided as an integral part of the Registry TLD,
including all subdomains. These services include: receipt of
data concerning registrations of domain names and nameservers
from registrars; provision to registrars of status information
relating to the Registry TLD zone servers, dissemination of TLD
zone files, operation of the Registry zone servers, dissemination
of contact and other information concerning domain name and nameserver
registrations in the Registry TLD, and such other services required
by ICANN through the establishment of Consensus Policies as set
forth in Definition 1 of this Agreement. Registry Services shall
not include the provision of name service for a domain used by
a single entity under a Registered Name registered through an
ICANN-accredited registrar.
10. "Registry TLD"
refers to the .com TLD.
11. "Term of this
Agreement" begins on the Effective Date and runs through
the earlier of (a) the Expiration Date, or (b) termination of
this Agreement.
12. "TLD"
refers to a top-level domain in the Internet domain name system.
13. "Zone File
Data" means all data contained in domain name system zone
files for the Registry TLD, or for any subdomain for which Registry
Services are provided and that contains Registered Names, as
provided to TLD nameservers on the Internet.
Registry Operator and ICANN agree as follows:
1. Designation of
Registry Operator. ICANN
hereby continues to recognize Registry Operator as the sole operator
for the Registry TLD during the Term of this Agreement.
2. Recognition in
Authoritative Root Server System. In the event and to the
extent that ICANN is authorized to set policy with regard to
an authoritative root server system, it will ensure that (a)
the authoritative root will point to the TLD zone servers designated
by Registry Operator for the Registry TLD throughout the Term
of this Agreement and (b) any changes to TLD zone server designation
submitted to ICANN by Registry Operator will be implemented by
ICANN within five business days of submission. In the event that
this Agreement is terminated (a) under Section 16 or Section
18(B) of this Agreement by Registry Operator or (b) under Section
25 of this Agreement due to the withdrawal of recognition of
ICANN by the US Department of Commerce("DOC"), ICANN's
obligations concerning TLD zone server designations for the Registry
TLD in the authoritative root server system shall be as stated
in a separate agreement between ICANN and DOC.
3. General Obligations
of Registry Operator.
A. During the Term
of this Agreement:
(i) Registry Operator
agrees that it will operate the registry for the Registry TLDs
in accordance with this Agreement;
(ii) Registry Operator
shall comply, in its operation of the registry, with all Consensus
Policies insofar as they:
(a) are adopted
by ICANN in compliance with Section 4 below,
(b) relate to
one or more of the following: (1) 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, (2) registry policies
reasonably necessary to implement Consensus Policies relating
to registrars, or (3) resolution of disputes regarding the registration
of domain names (as opposed to the use of such domain names),
and
(c) do not unreasonably
restrain competition.
B. Registry Operator
agrees that upon the earlier of (i) the Expiration Date or (ii)
termination of this Agreement by ICANN pursuant to Section 16
below, it will cease to be the Registry Operator for the Registry
TLD, unless prior to the end of the Term of this Agreement Registry
Operator is chosen as the successor registry in accordance with
the provisions of this Agreement.
C. To the extent that
Consensus Policies are adopted in conformance with Section 4
of this Agreement, the measures permissible under Section 3(A)(ii)(b)
above shall include, without limitation:
(i) principles for
allocation of Registered Names (e.g., first-come, first-served,
timely renewal, holding period after expiration);
(ii) prohibitions
on warehousing of or speculation in domain names by registries
or registrars;
(iii) reservation
of Registered 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 Registered Names sponsored
in the registry by a registrar losing accreditation; and
(v) dispute resolution
policies that take into account the use of a domain name.
Nothing in this Section 3 shall limit or otherwise affect Registry
Operator's obligations as set forth elsewhere in this Agreement.
4. General Obligations
of ICANN. With respect to all matters that impact the rights,
obligations, or role of Registry Operator, ICANN shall during
the Term of this Agreement:
A. exercise its responsibilities
in an open and transparent manner;
B. not unreasonably
restrain competition and, to the extent feasible, promote and
encourage robust competition;
C. not apply standards,
policies, procedures or practices arbitrarily, unjustifiably,
or inequitably and not single out Registry Operator for disparate
treatment unless justified by substantial and reasonable cause;
and
D. ensure, through
its reconsideration and independent review policies, adequate
appeal procedures for Registry Operator , to the extent it is
adversely affected by ICANN standards, policies, procedures or
practices.
5. Use of ICANN Name.
ICANN hereby grants to Registry Operator a non-exclusive, worldwide,
royalty-free license during the Term of this Agreement (a) to
state that it is recognized by ICANN as the Registry Operator
for the Registry TLD, (b) to use a logo specified by ICANN to
signify that Registry Operator is an ICANN-designated registry,
and (c) to link to pages and documents within the ICANN web site.
No other use of ICANN's name is licensed hereby. This license
may not be assigned or sublicensed by Registry Operator.
6. Protection from
Burdens of Compliance With ICANN Policies. ICANN shall indemnify,
defend, and hold harmless Registry Operator (including its directors,
officers employees, and agents) from and against any and all
claims, damages, liabilities, costs, and expenses, including
reasonable legal fees and expenses, arising solely from Registry
Operator's compliance as required by this Agreement with an ICANN
specification or policy (including a Consensus Policy) established
after November 10, 1999; except that Registry Operator shall
not be indemnified or held harmless hereunder to the extent that
the claims, damages or liabilities arise from the particular
manner in which Registry Operator has chosen to comply with the
specification or policy, where it was possible for Registry Operator
to comply in a manner by which the claims, damages, or liabilities
would not arise. As an alternative to providing the indemnity
stated in this Section 6, ICANN may, at the time it establishes
a specification or policy after the Effective Date giving rise
to an indemnity obligation under this Section 6, state ICANN's
election that the Registry Operator shall bear the cost of insuring
the claims, damages, liabilities, costs, and expenses that would
otherwise be indemnified by ICANN under this Section 6, in which
case the reasonable cost to Registry Operator of such insurance
shall be treated under Subsection 22(A) as a cost of providing
Registry Services arising from the newly established ICANN specification
or policy.
7. Registry-Level
Financial Support of ICANN. During the Term of this Agreement,
Registry Operator shall pay to ICANN the following fees:
A. Fixed Registry-Level
Fee. Registry Operator shall pay ICANN a quarterly Fixed
Registry-Level Fee in an amount established by the ICANN Board
of Directors, in conformity with the ICANN bylaws and articles
of incorporation, not to exceed the Fixed Registry-Level Fee
Cap described by the following sentence. The Fixed Registry-Level
Fee Cap shall be US$25,000 per quarter until and including June
30, 2002; shall automatically increase by 15% on July 1 of each
year beginning in 2002; and may be increased by a greater amount
through the establishment of Consensus Policies as set forth
in Definition 1 of this Agreement. Registry Operator shall pay
the quarterly Fixed Registry-Level Fee no later than the last
day of each March, June, September, and December during the Term
of this Agreement.
B. Variable Registry-Level
Fee. Registry Operator shall pay ICANN a quarterly Variable
Registry-Level Fee. The total Variable Registry-Level Fee due
to ICANN from all TLDs sponsored or operated under a registry
agreement with ICANN shall be established from time to time by
the ICANN Board of Directors in conformity with the ICANN bylaws
and articles of incorporation and shall not exceed the Total
Variable Registry-Level Fee Cap described by the following sentence.
The Total Variable Registry-Level Fee Cap shall be US$0 for the
fiscal year ending June 30, 2001; shall be US$3,500,000 for the
fiscal year ending June 30, 2002; shall increase by 15% each
fiscal year thereafter; and may be increased by a greater amount
through the establishment of Consensus Policies as set forth
in Definition 1 of this Agreement. The total Variable Registry-Level
Fee shall be calculated according to a formula and method established
from time to time by the ICANN Board of Directors, in conformity
with the ICANN bylaws and articles of incorporation, that reasonably
allocates the total variable fee among all TLDs sponsored or
operated under a registry agreement with ICANN (whether the fee
is collected at the registry or registrar level) based on the
relative number of domain names under administration by the operators
of the registries for those TLDs. For purposes of determining
the number of domain names under administration for various TLDs
in making this allocation, it shall be deemed reasonable to assume
that the number of domain names under administration in the Registry
TLD is the number of Registered Names within those TLDs. Registry
Operator shall pay the quarterly Variable Registry-Level Fee
within thirty days after the date of ICANN's invoice for that
fee.
C. Payments Must
Be Timely. Registry Operator shall pay the Fixed Registry-Level
Fee and Variable Registry-Level Fee in a timely manner throughout
the Term of this Agreement and notwithstanding the pendency of
any dispute between Registry Operator and ICANN. Registry Operator
shall pay interest on payments not timely made at the rate of
1% per month or, if less, the maximum rate permitted by California
law.
8. Reports Provided
to ICANN. Within twenty days after the end of each month
during the Term of this Agreement, Registry Operator shall provide
ICANN a written report, giving information specified by ICANN,
on operation of the registry during the month. The initial specification
of information is set forth in Appendix T. Changes to that specification
may be made only with the mutual written consent of ICANN and
Registry Operator (which neither party shall unreasonably withhold)
or through the establishment of Consensus Policies as set forth
in Definition 1 of this Agreement.
9. Data Escrow.
Registry Operator shall periodically deposit into escrow all
Registry Data on a schedule (not more frequently than weekly
for a complete set of Registry Data, and daily for incremental
updates) and in an electronic format mutually approved from time
to time by Registry Operator and ICANN, such approval not to
be unreasonably withheld by either party. The escrow shall be
maintained, at Registry Operator's expense, by a reputable escrow
agent mutually approved by Registry Operator and ICANN, such
approval also not to be unreasonably withheld by either party.
10. Registry Operator's
Handling of Personal Data. Registry Operator shall notify
registrars sponsoring registrations in the registry for the Registry
TLD of the purposes for which Personal Data submitted to Registry
Operator by registrars is collected, the recipients (or categories
of recipients) of such Personal Data, and the mechanism for access
to and correction of such Personal Data. Registry Operator shall
take reasonable steps to protect Personal Data from loss, misuse,
unauthorized disclosure, alteration or destruction. Registry
Operator shall not use or authorize the use of Personal Data
in a way that is incompatible with the notice provided to registrars.
11. Publication by
Registry Operator of Registry Data.
A. At its expense,
Registry Operator shall provide free public query-based access
to up-to-date data concerning domain name and nameserver registrations
maintained by Registry Operator in connection with the Registry
TLD. The data elements reported, format of responses to queries,
data update frequency, query types supported, and protocols through
which access is provided shall be as established by ICANN. The
initial specification of the data elements reported, format of
responses to queries, minimum data update frequency, query types
supported, and protocols through which access is provided are
set forth in Appendix O. Registry Operator may request supplementation
of the specification to include additional data elements reported
or query types supported, in which event ICANN shall act to supplement
the specification in a reasonable manner within a reasonable
time. Other changes to the specification may be made only with
the mutual written consent of ICANN and Registry Operator (which
neither party shall unreasonably withhold) or through the establishment
of Consensus Policies as set forth in Definition 1 of this Agreement.
B. To ensure operational
stability of the registry, Registry Operator may temporarily
limit access under Subsection 11(A) in which case Registry Operator
shall immediately notify ICANN of the nature of and reason for
the limitation. Registry Operator shall not continue the limitation
longer than a period established by ICANN if ICANN objects in
writing, which objection shall not be unreasonably made. The
period shall initially be five business days; changes to that
period may be made only with the mutual written consent of ICANN
and Registry Operator (which neither party shall unreasonably
withhold) or through the establishment of Consensus Policies
as set forth in Definition 1 of this Agreement. Such temporary
limitations shall be applied in a non-arbitrary manner and shall
apply fairly to all ICANN-accredited registrars.
C. In providing query-based
public access to registration data as required by this Subsection
11(A), Registry Operator shall not impose terms and conditions
on use of the data provided except as permitted by policy established
by ICANN. Unless and until ICANN establishes a different policy,
Registry Operator 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 by e-mail, telephone, or
facsimile of mass unsolicited, commercial advertising or solicitations
to entities other than the data recipient's own existing customers;
or (b) enable high volume, automated, electronic processes that
send queries or data to the systems of Registry Operator or any
ICANN-accredited registrar, except as reasonably necessary to
register domain names or modify existing registrations. Changes
to that policy may be made only with the mutual written consent
of ICANN and Registry Operator (which neither party shall unreasonably
withhold) or through the establishment of Consensus Policies
as set forth in Definition 1 of this Agreement.
D. To comply with
applicable statutes and regulations and for other reasons, ICANN
may from time to time establish Consensus Policies as set forth
in Definition 1 of this Agreement establishing limits on the
data concerning registrations that Registry Operator may make
available to the public through a public-access service described
in this Subsection 11(A) and on the manner in which Registry
Operator may make them available.
E. At its expense,
Registry Operator shall provide bulk access to up-to-date data
concerning domain name and nameserver registrations maintained
by Registry Operator in connection with the Registry TLD in the
following two ways:
(i) on a daily schedule,
only for purposes of providing free public query-based access
to up-to-date data concerning domain name and nameserver registrations
in multiple TLDs, to a party designated from time to time in
writing by ICANN. The content and format of this data, and the
procedures for providing access, shall be as established by ICANN.
The initial content, format, and procedures are set forth in
Appendix P. Changes to that content and format and those procedures
may be made only with the mutual written consent of ICANN and
Registry Operator (which neither party shall unreasonably withhold)
or through the establishment of Consensus Policies as set forth
in Definition 1 of this Agreement.
(ii) on a continuous
basis, to ICANN in the manner which ICANN may from time to time
reasonably specify, only for purposes of verifying and ensuring
the operational stability of Registry Services, the DNS, and
the Internet The content and format of this data, and the procedures
for providing access, shall be as established by ICANN. The initial
content, format, and procedures are set forth in Appendix Q.
Changes to that content and format and those procedures may be
made only with the mutual written consent of ICANN and Registry
Operator (which neither party shall unreasonably withhold) or
through the establishment of Consensus Policies as set forth
in Definition 1 of this Agreement.
12. Rights in Data.
Except as permitted by the Registrar License and Agreement, Registry
Operator shall not be entitled to claim any intellectual property
rights in data in the registry supplied by or through registrars.
In the event that Registry Data is released from escrow under
Section 9, any rights held by Registry Operator in the data shall
automatically be licensed on a non-exclusive, irrevocable, royalty-free,
paid-up basis to ICANN or to a party designated in writing by
ICANN.
13. Limitation of
Liability. ICANN's aggregate monetary liability for violations
of this Agreement shall not exceed the amount of Fixed or Variable
Registry-Level Fees paid by Registry Operator to ICANN within
the preceding twelve-month period under Section 7 of this Agreement.
Registry Operator's aggregate monetary liability to ICANN for
violations of this Agreement shall be limited to fees due and
owing to ICANN under this Agreement. In no event shall either
party be liable for special, indirect, incidental, punitive,
exemplary, or consequential damages arising out of or in connection
with this Agreement or the performance or nonperformance of obligations
undertaken in this Agreement. EXCEPT AS OTHERWISE PROVIDED IN
THIS AGREEMENT, REGISTRY OPERATOR DOES NOT MAKE ANY WARRANTY,
EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES RENDERED BY
ITSELF, ITS SERVANTS, OR ITS AGENTS OR THE RESULTS OBTAINED FROM
THEIR WORK, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY
OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR
PURPOSE.
14. Specific Performance.
During the Term of this Agreement, either party may seek specific
performance of any provision of this Agreement as provided by
Section 15, provided the party seeking such performance is not
in material breach of its obligations.
15. Resolution of
Disputes Under This Agreement. Disputes arising under or
in connection with this Agreement, including requests for specific
performance, shall be resolved in a court of competent jurisdiction
or, at the election of both parties (except for any dispute over
whether a policy adopted by the Board is a Consensus Policy,
in which case at the election of either party), by an arbitration
conducted as provided in this Section 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 the
two arbitrators are not able to 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 initiation of arbitration. 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
a court located in Los Angeles, California, USA, which shall
not be a waiver of this arbitration agreement.
16. Termination.
A. In the event an
arbitration award or court judgment is rendered specifically
enforcing any provision of this Agreement or declaring a party's
rights or obligations under this Agreement, either party may,
by giving written notice, demand that the other party comply
with the award or judgment. In the event that the other party
fails to comply with the order or judgment within ninety days
after the giving of notice (unless relieved of the obligation
to comply by a court or arbitration order before the end of that
ninety-day period), the first party may terminate this Agreement
immediately by giving the other party written notice of termination.
B. In the event of
termination by DOC of its Cooperative Agreement with Registry
Operator pursuant to Section 1.b.8 of Amendment 19 to that Agreement,
ICANN shall, after receiving express notification of that fact
from DOC and a request from DOC to terminate Registry Operator
as the operator of the Registry TLD, terminate Registry Operator's
rights under this Agreement, and shall cooperate with DOC to
facilitate the transfer of the operation of the Registry Database
to a successor registry.
C. Registry Operator:
(i) is convicted
by a court of competent jurisdiction of a felony or other serious
offense related to financial activities, or is the subject of
a determination by a court of competent jurisdiction that ICANN
reasonably deems as the substantive equivalent of those offenses
; or
(ii) is disciplined
by the government of its domicile for conduct involving dishonesty
or misuse of funds of others.
D. Any officer or
director of Registry Operator 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, and such officer
or director is not immediately removed in such circumstances.
E. If Registry Operator
becomes bankrupt or insolvent, ICANN may immediately terminate
this Agreement upon notice to Registry Operator.
17. Assignment.
Neither party may assign this Agreement without the prior written
approval of the other party, such approval not to be unreasonably
withheld. Notwithstanding the foregoing sentence, a party may
assign this Agreement by giving written notice to the other party
in the following circumstances, provided the assignee agrees
in writing with the other party to assume the assigning party's
obligations under this Agreement: (a) Registry Operator may assign
this Agreement as part of the transfer of its registry business
and (b) ICANN may, in conjunction with a reorganization or re-incorporation
of ICANN and with the written approval of the DOC, assign this
Agreement to another non-profit corporation organized for the
same or substantially the same purposes as ICANN.
18. Relationship
to Cooperative Agreement Between NSI and U.S. Government.
A. Registry Operator's
obligations under this Agreement are conditioned on the concurrence
by DOC through an amendment to Cooperative Agreement NCR-9218742.
B. If within a reasonable
period of time ICANN has not made substantial progress towards
having entered into agreements with competing registries and
Registry Operator is adversely affected from a competitive perspective,
Registry Operator may terminate this Agreement with the approval
of the DOC.
C. In the case of
conflict while they are both in effect, and to the extent that
they address the same subject in an inconsistent manner, the
term(s) of Cooperative Agreement NCR-9218742 shall take precedence
over this Agreement.
19. Registry Operator
Agreements with Registrars. Registry Operator shall make
access to the Shared Registration System available to all ICANN-accredited
registrars subject to the terms of the Registrar License and
Agreement (attached as Appendix B). Such agreement may be revised
by Registry Operator, provided however, that any such revisions
must be approved in advance by ICANN.
20. Performance and
Functional Specifications for Registry Services. Unless and
until ICANN adopts different standards as a Consensus Policy
pursuant to Section 4, Registry Operator shall provide Registry
Services to ICANN-accredited registrars in a manner that meets
the performance and functional specifications set forth in SRS
specification 1.1.0, dated May 2000, attached as Appendix __,
as supplemented by Appendix E and the Registry Service Level
Agreement. In the event ICANN adopts different performance and
functional standards for the registry as a Consensus Policy in
compliance with Section 4, Registry Operator shall comply with
those standards to the extent practicable, provided that compensation
pursuant to the provisions of Section 22 below has been resolved
prior to implementation and provided further that Registry Operator
is given a reasonable time for implementation. In no event shall
Registry Operator be required to implement any different functional
standards before November 10, 2002.
21. Bulk Access to
Zone Files. Registry Operator shall provide bulk access to
the zone files for the Registry TLD as follows:
A. to third parties
on the terms set forth in the TLD zone file access agreement
established by ICANN. The terms of the agreement are set forth
as Appendix N to this Agreement. Changes to the terms of the
TLD zone file access agreement may be made only with the mutual
written consent of ICANN and Registry Operator (which neither
party shall unreasonably withhold) or through the establishment
of Consensus Policies as set forth in Definition 1 of this Agreement.
B. to ICANN on a continuous
basis in the manner which ICANN may from time to time specify.
22. Price for Registry
Services.
A. The price(s) to
ICANN-accredited registrars for entering initial and renewal
domain name registrations into the Registry Database and for
transferring a domain name registration from one ICANN-accredited
registrar to another will be as set forth in Section 5 of the
Registrar License and Agreement (attached as Appendix B). These
prices shall be increased through an amendment to this Agreement
as approved by ICANN and Registry Operator, such approval not
to be unreasonably withheld, to reflect reasonably demonstrated
increases in the net costs of providing Registry Services arising
from (i) new or revised ICANN specifications or policies adopted
after November 10, 1999, or (ii) legislation specifically applicable
to the provision of Registry Services adopted after November
10, 1999, to ensure that Registry Operator recovers such costs
and a reasonable profit thereon; provided that such increases
exceed any reductions in costs arising from (i) or (ii) above.
B. Registry Operator
may, at its option and with thirty days written notice to ICANN
and to all ICANN-accredited registrars, revise the prices charged
to registrars under the Registrar License and Agreement, provided
that (i) the same price shall be charged for services charged
to all ICANN-Accredited Registrars (provided that volume adjustments
may be made if the same opportunities to qualify for those adjustments
is available to all ICANN-Accredited Registrars) and (ii) the
prices shall not exceed those set forth in Appendix G.
23. Fair Treatment
of ICANN-Accredited Registrars.
A. Registry Operator
shall provide all ICANN-accredited registrars that are signatories
to the Registrar License and Agreement, and that are in compliance
with the terms of such agreements, equivalent access to Registry
Operator's Registry Services, including to its shared registration
system.
B. Registry Operator
shall certify to ICANN every six months, using the objective
criteria set forth in Appendix H, that Registry Operator is providing
all such ICANN-accredited registrars with equivalent access to
its Registry Services, including to its shared registration system.
C. Registry Operator
shall not act as a registrar with respect to the Registry TLD.
This shall not preclude Registry Operator from registering names
within the domain of the Registry TLD in compliance with Section
24. This also shall not preclude an affiliate (including wholly-owned
subsidiaries) of Registry Operator from acting as a registrar
with respect to the Registry TLD, provided that Registry Operator
complies with the provisions of Subsection 23(D).
D. Registry Operator
will ensure, in a form and through ways described in Appendix
H, that the revenues and assets of Registry Operator are not
utilized to advantage registrars that are affiliated with Registry
Operator to the detriment of other ICANN-accredited registrars.
For purposes of this Subsection 23(D), funds distributed to debt
or equity participants in Registry Operator shall no longer be
deemed revenues and assets of Registry Operator once they are
distributed.
24. Registrations
Not Sponsored by Registrars Under Registry-Registrar Agreements.
Registry Operator shall register domain names within the domain
of the Registry TLD, other than on a request submitted by a registrar
pursuant to that registrar's Registry-Registrar Agreement, only
as follows:
A. Registry Operator
may register available domain names within the domain of the
Registry TLD for its own use in operating the registry and providing
Registry Services under this Agreement, provided the number of
such domain names under registration at any time does not exceed
5000. At the conclusion of its designation by ICANN as the operator
for the Registry TLD, Registry Operator shall transfer all such
domain name registrations to the entity or person specified by
ICANN.
B. Registry Operator
may register the names listed on Appendix X for its own use.
Registry Operator may retain registration of those names at the
conclusion of its designation by ICANN as the operator for the
Registry TLD, provided registration fees are paid and all other
requirements for registration by third parties are met. Appendix
X may be revised upon written notice by Registry Operator to
ICANN and written consent by ICANN, which shall not be unreasonably
withheld.
C. As instructed from
time to time by ICANN, Registry Operator shall maintain the registration
of up to 5000 domain names within the domain of the Registry
TLD for use by ICANN and other organizations responsible for
coordination of the Internet's infrastructure.
D. This Section 24
shall not preclude Registry Operator from registering domain
names within the domain of the Registry TLD through an ICANN-Accredited
Registrar.
25. Procedure for
Subsequent Agreement.
A. Registry Operator
may, no later than eighteen months prior to the Expiration Date,
submit a written proposal to ICANN for the extension of this
Agreement for an additional term of four years (the "Renewal
Proposal"). The Renewal Proposal shall contain a detailed
report of the Registry Operator's operation of the Registry TLD
and include a description of any additional Registry Services,
proposed improvements to Registry Services, or changes in price
or other terms of service.
B. ICANN shall consider
the Renewal Proposal for a period of no more than six months
before deciding whether to call for competing proposals from
potential successor registry operators for the Registry TLD.
During this six month period, ICANN may request Registry Operator
to provide, and Registry Operator shall provide, additional information
concerning the Renewal Proposal that ICANN determines to be reasonably
necessary to make its decision. Following consideration of the
Renewal Proposal, Registry Operator shall be awarded a four-year
renewal term unless ICANN demonstrates that: (a) Registry Operator
is in material breach of this Registry Agreement, (b) Registry
Operator has not provided and will not provide a substantial
service to the Internet community in its performance under this
Registry Agreement, (c) Registry Operator is not qualified to
operate the Registry TLD during the renewal term, or (d) the
maximum price for initial and renewal registrations proposed
in the Renewal Proposal exceeds the price permitted under Section
22 of this Registry Agreement. The terms of the registry agreement
for the renewal term shall be in substantial conformity with
the terms of registry agreements between ICANN and operators
of other open TLDs then in effect, provided that this Section
25 shall be included in any renewed Registry Agreement unless
Registry Operator and ICANN mutually agree to alternative language.
C. In the event that
ICANN fails to award a renewal registry agreement to Registry
Operator within the six month period described above, Registry
Operator shall have the right to challenge the reasonableness
of that failure under the provisions of Section 15.
D. In the event ICANN
does not award Registry Operator a renewal registry agreement
according to Subsection 25(B), ICANN shall call for competitive
proposals and Registry Operator shall be eligible, to the same
extent as similarly situated entities, to submit a proposal in
response to such a call and to be considered for such award.
26. Withdrawal of
Recognition of ICANN by the Department of Commerce. In the
event that, prior to the expiration or termination of this Agreement
under Section 16 or 18(B), the DOC withdraws its recognition
of ICANN as NewCo under the Statement of Policy pursuant to the
procedures set forth in Section 5 of Amendment 1 (dated November
10, 1999) to the Memorandum of Understanding between ICANN and
the DOC, this Agreement shall terminate.
27. Option to Substitute
Generic Agreement. At Registry Operator's option, it may
substitute in its entirety any generic ICANN-Registry Operator
Agreement that may be adopted by ICANN for this Agreement.
28. 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 Registry Operator.
If to ICANN, addressed to:
Internet Corporation for Assigned Names
and Numbers
4676 Admiralty Way, Suite 330
Marina Del Rey, California 90292
Telephone: 1/310/823-9358
Facsimile: 1/310/823-8649
Attention: Chief Executive Officer
If to Registry Operator, addressed to:
General Counsel
VeriSign, Inc.
1350 Charleston Road
Mountain View, California 94043
Telephone: 1/650/961/7500
Facsimile: 1/650/961/8853; and
General Manager
VeriSign Registry
21345 Ridgetop Circle
Dulles, Virginia 20166
Telephone: 1/703/948/3200
Facsimile: 1/703/421/2129; and
Deputy General Counsel
VeriSign, Inc.
505 Huntmar Park Drive
Herndon, Virginia 20170
Telephone: 1/703/742/0400
Facsimile: 1/703/742-7916
29. Subcontracting.
Registry Operator shall not subcontract portions of the technical
operations of the Registry TLD accounting for more than 80% of
the value of all Registry TLD operations without ICANN's written
consent. When ICANN's consent to subcontracting is requested,
ICANN shall respond within fifteen business days, and the consent
shall not be unreasonably withheld. In any subcontracting of
the technical operations of the Registry TLD, the subcontract
shall state that the subcontractor shall not acquire any right
in the Registry TLD by virtue of its performance under the subcontract.
30. Force Majeure.
Neither party shall be liable to the other for any loss or damage
resulting from any cause beyond its reasonable control (a "Force
Majeure Event") including, but not limited to, insurrection
or civil disorder, war or military operations, national or local
emergency, acts or omissions of government or other competent
authority, compliance with any statutory obligation or executive
order, industrial disputes of any kind (whether or not involving
either party's employees), fire, lightening, explosion, flood
subsidence, weather of exceptional severity, and acts or omissions
of persons for whom neither party is responsible. Upon occurrence
of a Force Majeure Event and to the extent such occurrence interferes
with either party's performance of this Agreement, such party
shall be excused from performance of its obligations (other than
payment obligations) during the first six months of such interference,
provided that such party uses best efforts to avoid or remove
such causes of nonperformance as soon as possible.
31. No Third-Party
Beneficiaries. This Agreement shall not be construed to create
any obligation by either ICANN or Registry Operator to any non-party
to this Agreement, including any registrar or SLD holder.
32. 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.
33. Language.
All notices, designations, and specifications made under this
Agreement shall be in the English language.
34. Entire Agreement.
This Agreement constitutes the entire agreement of the parties
hereto pertaining to the Registry TLD and supersedes all prior
agreements, understandings, negotiations and discussions, whether
oral or written, between the parties on that subject.
35. 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.
36. 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.
