1.A "Consensus
Policy" is one adopted by ICANN as follows: (a) "Consensus Policies" are those adoptedspecifications or policies established based on a consensus among Internet stakeholders
represented in the ICANN process, as demonstrated by (1) the
adoption of the policy byaction of the ICANN
Board of Directors
establishing the specification or policy,
(2) a recommendation
that the policy should be adopted
by at least a two-thirds vote of the council of the ICANN Supporting
Organization to which the matter is delegated, 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.
(b)A.
In the event that NSIRegistry 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
subsection (a)Definition
1 above. In the event that NSIRegistry 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 NSIRegistry Operator must implement such policy unless it promptly
seeks and obtains injunctive relief under Section 1315
below.
(c)B.
If, following a decision by the Independent Review Panel convened
under sSubsection
(b)(A)
above, NSIRegistry 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 1315
below; provided, however, that NSIRegistry Operator must continue to implement the policy unless it
has obtained injunctive relief under Section 1315
below or a final decision is rendered in accordance with the
provisions of Section 1315
that relieves NSIRegistry Operator of such obligation. The decision in any such further
review shall be based on the report and supporting materials
required by subsection
(a)Definition
1 above.
(d) C. A specification
or policy adoptedestablished
by the ICANN Board of Directors on a temporary basis, without
a prior recommendation by the council of an ICANN Supporting
Organization, shall also be considered to be a Consensus Policy
if adopted by the ICANN Board of Directors by a vote of at least
two-thirds of its members, and
ifso long
as the Board reasonably determines that
immediate temporary adoption
of aestablishment
of a specification or policy on
the subject is necessary to maintain the operational stability
of the
Internet or the operation of the domain name system, and ifRegistry Services, the DNS or the
Internet, and that the proposed
policy is as narrowly tailored as feasible to achieve those objectives.
In adopting
anyestablishing
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 4590
days, the Board shall reaffirm its temporary adoption every 4590
days for a total period not to exceed 180
days,one
year, in order to maintain such
policy in effect until such time as it meets the standard set
forth in subsection
(a)Definition
1 above. If the standard set forth
in subsection
(a)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."
(e)D.
For all purposes under this Agreement, the policies identified
in Appendix A adopted
by the ICANN Board of Directors before the effective date of
this Agreement 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)F.
In the event that, at the time the ICANN Board adopts
aestablishes
a specification or policy under
subsection
(a)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)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 NSIRegistry Operator shall not be obligated to comply with the specifications or policy in the interim.
2.
"DNS" refers to the Internet domain name system.
2.
3.
The "Effective Date"
is the date on which the Agreement is signed by ICANN and NSI.Registry Operator.
3. 4.
The "Expiration Date"
isthe
date specified in Section 23 below. November 10, 2007, unless further extended pursuant to
this Agreement.
4.
"gTLDs" means the .com, .net, and .org TLDs, and any
new gTLDs established by ICANN.
5.
"ICANN" refers to the Internet Corporation for Assigned
Names and Numbers, a party to this Agreement.
6.
"NSI" refers to Network Solutions, Inc., in its capacity
as a domain name registry for the Registry TLDs, a party to this
Agreement.
7.5.
"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).
8.
7. "Registry Data" means all Registry Database data maintained in electronic form in the rRegistry
dDatabase,
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 rRegistry
dDatabase.
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 operation
of the registry forservices
provided as an integral part of
the Registry TLDs,
and
shall includeincluding
all subdomains. These services include:
receipt of data concerning registrations of domain names and
nameservers from registrars,registrars;
provision to registrars
of status information relating to the to
registrars, operation of the registryRegistry TLD zone
servers,and 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 TLDs" refers to the .com, .net,
and .org TLDs.
11.
"SLD" refers to a second-level domain in the Internet
domain name system.
12.11.
"Term of this Agreement" begins on the Effective Date
and runs through the earliestearlier
of (a) the Expiration Date, or
(b) termination of this Agreement
under Section 14 or Section 16(B), or (c) termination of this
Agreement pursuant to withdrawal of the Department of Commerce's
recognition of ICANN under Section 24.
13.12.
"TLD" refers to a top-level domain in the Internet
domain name system.
14.13.
"Zone File Data" means all data contained in domain
name system zone files for the Registry TLD s, or for any subdomain for which
Registry Services are provided and that contains Registered Names, as provided to TLD nameservers on the Internet.
1. Designation of
Registry
Operator.
ICANN acknowledges
and agrees that NSI is and will remain the registry. hereby continues to recognize
Registry Operator as the sole operator
for the Registry TLD(s)
throughoutduring 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)(a)
the authoritative root will point to the TLD zone servers designated
by NSIRegistry Operator for the Registry TLDs throughout the Term of this Agreement and (B)(b)
any changes to TLD zone server designation submitted to ICANN
by NSIRegistry Operator will be implemented by ICANN within five business
days of submission. In the event that this Agreement is terminated
(A)(a)
under Section 1416
or 16(B)Section 18(B) of this Agreement by NSIRegistry Operator or (B)(b)
under Section 2425 of this Agreement due to the withdrawal of recognition of ICANN
by the United
StatesUS Department of Commerce ("DOC"),
ICANN's obligations concerning TLD zone server designations for
the .com,
.net, and .orgRegistry TLDs in the authoritative root server system shall
be as stated in a separate agreement between ICANN and the
Department of Commerce.DOC.
3. General Obligations
of NSIRegistry Operator.
(A).
During the Term of this Agreement:
(i) NSIRegistry Operator agrees that it will operate the registry for the
Registry TLDs in accordance with this Agreement;
(ii) NSIRegistry 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).
NSIRegistry Operator
acknowledges and agrees that
upon the earlier of (i) the Expiration Date or (ii) termination
of this Agreement by ICANN pursuant to Section 1416 below,
it will cease to be the rRegistry Operator
for the Registry TLDs, unless prior to the end of the tTerm
of this Agreement NSI Registry
Operator is chosen as the Ssuccessor
Rregistry
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 SLD
namesRegistered
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 SLD
namesRegistered
Names that may not be registered
initially or that may not be renewed due to reasons reasonably
related to (a) avoidance of confusion among or misleading of
users, (b) intellectual property, or (c) the technical management
of the DNS or the Internet (e.g., "example.com" and
single-letter/digit names);
(iv) the allocation among continuing registrars
of the SLD
namesRegistered
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 NSI'sRegistry 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 NSI,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 NSIRegistry Operator for disparate treatment unless justified by substantial
and reasonable cause; and
(D)D. ensure, through its reconsideration and independent
review policies, adequate appeal procedures for NSI,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.
5.
6. Protection from Burdens of Compliance With ICANN
Policies. ICANN hereby
agrees to shall
indemnify, defend, and hold
harmless NSIRegistry Operator,
and (including its directors, officers, employees, and agents) from and against any and all claims, damages,
or
liabilities, costs, and expenses, including reasonable legal fees
and expenses arising solely from
NSI'sRegistry Operator's compliance as required by this Agreement with
an ICANN specification
or policy (including a Consensus Policy) adopted established after both
parties have entered into this Agreement,November 10, 1999; except that NSIRegistry 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 NSIRegistry 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. In
addition, NSI shall be given a
reasonable
period after receiving notice of adoption of an ICANN Consensus
Policy in which to comply with that policy. [See
Definition 1(E) above.]
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.
6.7. NSI Registry-Level
Financial Support of ICANN. NSI,
in its role as operator of the registry for the Registry TLDs,
shall pay the gTLD registry-level fees adopted by ICANN in conformance
with Section 4 of this Agreement, provided such fees are reasonably
allocated among all gTLD registries that contract with ICANN
and provided further that, if NSI's share of the total gTLD registry-level
fees are or are budgeted to be in excess of $250,000 in any given
year, any such excess must be expressly approved by gTLD registries
accounting, in aggregate, for payment of two-thirds of all gTLD
registry-level fees. 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.
NSI Payments Must Be Timely.
Registry Operator shall pay such
feesthe 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 NSI
and ICANN. Registry
Operator and ICANN. NSI
agrees to prepay $250,000 toward its share of gTLD registry-level
fees at the time of signing of this Agreement. 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.
7.9.
Data Escrow. NSIRegistry 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
NSIRegistry Operator and ICANN, such approval not to be unreasonably
withheld by either party. The escrow shall be maintained, at
NSI'sRegistry Operator's expense, by a reputable escrow agent mutually
approved by NSIRegistry Operator and ICANN, such approval also not to be unreasonably
withheld by either party.
The escrow shall be held under an agreement among ICANN, NSI,
the United States Department of Commerce, and the escrow agent
providing that (A) the data shall be received and held in escrow,
with no use other than verification that the deposited data is
complete and in proper format, until released to ICANN or to
the United States Department of Commerce; (B) the data shall
be released to ICANN upon termination of this Agreement by ICANN
under Section 14 or upon the Expiration Date if (1) this Agreement
has not sooner been terminated and (2) it has been finally determined
by the ICANN Board (and no injunction obtained pursuant to Section
13 has been obtained) that NSI will not be designated as the
successor registry under Section 22 of this Agreement; and (C),
in the alternative, the data shall be released to the United
States Department of Commerce according to the terms of the cooperative
agreement between NSI and the United States Government.
8.
10. NSI Registry
Operator's Handling of Personal
Data. NSI
agrees toRegistry
Operator shall notify registrars
sponsoring registrations in the registry for the Registry TLD of
the purposes for which Personal Data submitted to the
rRegistry
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. NSIRegistry Operator shall take reasonable steps to protect Personal
Data from loss, misuse, unauthorized disclosure, alteration or
destruction. NSIRegistry Operator shall not use or authorize the use of Personal
Data in a way that is incompatible with the notice provided to
registrars.
9.11.
Publication by NSIRegistry Operator of Registry Data.
(A)
NSIA. At
its expense, Registry Operator
shall provide an
interactive web page and a port 43 Whois service providing free public query-based access to up-to-date (i.e.
updated at least daily) registry database data concerning
domain name and nameserver registrations maintained by Registry
Operator in connection with the Registry TLDwhich,
in response to input of an SLD name, shall report at least the
following data elements in response to queries: (a) the SLD name
registered, (b) the TLD in which the SLD is registered; (c) the
IP addresses and corresponding names of the primary nameserver
and secondary nameserver(s) for such SLD, (d) the identity of
the sponsoring Registrar, and (e) the date of the most recent
modification to the domain name record in the registry database;
provided, however, that if ICANN adopts a Consensus Policy that
adds to or subtracts from these elements, NSI will implement
that policy. 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)B.
To ensure operational stability of the registry, NSIRegistry Operator may temporarily limit access under sSubsection
11(A), in which case NSIRegistry Operator shall immediately notify ICANN of the nature of
and reason for the limitation. NSIRegistry Operator shall not continue the limitation longer than
three
business days 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 any
registrar similarly situated, including NSI.all ICANN-accredited registrars.
(C)
NSI as registry shall comply with Consensus Policies providing
for development and operation of a capability that provides distributed
free public query-based (web and command-line) access to current
registration data implemented by registrars providing for capabilities
comparable to WHOIS, including (if called for by the Consensus
Policy) registry database lookup capabilities according to a
specified format. If such a service implemented by registrars
on a distributed basis does not within a reasonable time provide
reasonably robust, reliable and convenient access to accurate
and up-to-date registration data, NSI as registry shall cooperate
and, if reasonably determined to be necessary by ICANN (considering
such possibilities as remedial action by specific registrars),
provide data from the registry database to facilitate the development
of a centralized service providing equivalent functionality in
a manner established by a Consensus Policy.
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.
10.12.
Rights in Data. Except as permitted by the Registrar License
and Agreement, NSIRegistry Operator shall not be entitled to claim any intellectual
property rights in data in the registry supplied by or through
registrars
other than NSI. In the event
that Registry Data is released from escrow under Section 79 or
transferred to a Successor
Registry under Section 22(D),
any rights held by NSI
as registryRegistry
Operator in the data shall automatically
be licensed on a non-exclusive, irrevocable, royalty-free, paid-up
basis to the
recipient of the data.ICANN or to a party designated in writing by ICANN.
11.13.
Limitation of Liability. Neither
party shall be liable to the other underICANN'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 anyviolations 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.
12.14.
Specific Performance. During the Term of this Agreement,
either party may seek specific performance of any provision of
this Agreement as provided by Section 1315,
provided the party seeking such performance is not in material
breach of its obligations.
13.15.
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.
14.16.
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 NSIRegistry Operator pursuant to Section I.B.81.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 NSIRegistry Operator as the operator of the registry
database for the Registry TLDs, terminate NSI'sRegistry Operator's rights under this Agreement, and shall cooperate
with DOC to facilitate the transfer of the operation of the rRegistry
dDatabase
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.
15.17.
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) NSIRegistry Operator may assign this Agreement as part of the transfer
of its registry businessapproved
under Section 25 and (b) ICANN
may, in conjunction with a reorganization or re-incorporation
of ICANN and with the written approval of the Department
of Commerce,DOC, assign this Agreement to another non-profit corporation
organized for the same or substantially the same purposes as
ICANN.
16.18.
Relationship to Cooperative Agreement Between NSI and U.S.
Government.
(A).
NSI'sRegistry Operator's obligations under this Agreement are conditioned
on the agreement
by NSI and the Department of Commerce to Amendment 19 to theconcurrence by DOC through an amendment
to Cooperative Agreement in
the form attached to this Agreement as Appendix C.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 NSIRegistry Operator is adversely affected from a competitive perspective,
NSIRegistry Operator may terminate this Agreement with the approval
of the U.S.
Department of Commerce. DOC. In
such event, as provided in Section 16(A) above, the Cooperative
Agreement shall replace this Agreement.
(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) ofthe Cooperative Agreement NCR-9218742 shall
take precedence over this Agreement.
17.19.
NSIRegistry Operator Agreements with Registrars.
NSIRegistry Operator shall make access to the Shared Registration System
available to all ICANN-accredited registrars subject to the terms
of the NSI/Registrar License and Agreement (attached as Appendix
B). Such agreement may be revised by NSIRegistry Operator, provided however, that any such changesrevisions
must be approved in advance by ICANN. Such
agreement shall also be revised to incorporate any Registry Service
Level Agreement implemented under Section 18.
18.20.
Performance and Functional Specifications for Registry Services.
Unless and until ICANN adopts different standards as a Consensus
Policy pursuant to Section 4, ,
NSIRegistry
Operator shall provide rRegistry
sServices
to ICANN-accredited registrars meetingin a manner that meets the performance and functional specifications
set forth in SRS specification version
1.0.61.1.0, dated September
10, 1999May
2000, attached as Appendix __, as
supplemented by Appendix E and anythe
Registry Service Level Agreement established
according to this Section 18.
In the event ICANN adopts different performance and functional
standards for the registry as a Consensus Policy in compliance
with Section 4, NSIRegistry Operator shall comply with those standards to the extent
practicable, provided that compensation pursuant to the provisions
of Section 2022 below
has been resolved prior to implementation and provided further
that NSIRegistry Operator is given a reasonable time for implementation.
In no event shall NSIRegistry Operator be required to implement any different functional
standards before 3
years from the Effective Date of this Agreement.November 10, 2002.
Within
45 days after the Effective Date, (i) representatives designated
by ICANN of registrars accredited by ICANN for the Registry TLDs
and (ii) NSI will establish a Registry Service Level Agreement
for the registry system that shall include, at least:
(A)
identified service level parameters and measurements regarding
performance of the registry system, including, for example, system
availability;
(B)
responsibilities of registrars using the registry system and
NSI (e.g., the obligation of the registrars to notify NSI of
any experienced registry system outages and the obligation of
NSI to respond in a timely manner to registry system outages);
(C)
an appropriate service-level dispute-resolution process; and
(D)
remedies for failure to comply with the Registry Service Level
Agreement.
Unless
the Registry Service Level Agreement requires fundamental architecture
changes to the registry system or extraordinary increases in
costs to NSI beyond what is generally required to implement a
service level agreement (which is not the intent of the parties)
the creation and implementation of the Registry Service Level
Agreement shall not result in a price increase under Section
20.
The
45-day drafting process for the Registry Service Level Agreement
shall be structured as follows: (E) the designated representatives
and NSI (the "SLA Working Group") shall promptly meet
and shall within 20 days after the Effective Date complete a
draft of the Registry Service Level Agreement; (F) all registrars
accredited by ICANN for the Registry TLDs shall have 10 days
after distribution of that draft to submit comments to the SLA
Working Group; and (G) the SLA Working Group shall meet again
to finalize the Registry Service Level Agreement, taking into
account the comments of the registrars. The 45-day period shall
be subject to extension by mutual agreement of the members of
the SLA Working Group. The SLA shall be implemented as soon as
reasonably feasible after its completion and approval by ICANN,
including by implementation in stages if appropriate.
After
it is approved by the SLA Working Group and ICANN, the Registry
Service Level Agreement shall be incorporated in the NSI/Registrar
License and Agreement referred to in Section 17.
19.21.
Bulk Access to Zone Files. NSIRegistry Operator shall providethird
parties bulk access to the zone
files for the .com,
.net, and .orgRegistry TLDs as follows:
A.
to third parties on the terms set
forth in the TLD
zone file access agreement (attached
as Appendix D)
established by ICANN. Such
agreement may be revised by NSI, provided however, that any such
changes must be approved in
advance
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.
20.
22. Price for
Registry Services.
A.
The price(s) to ICANN-accredited
registrars for entering initial and renewal SLDdomain name
registrations into the rRegistry
dDatabase
and for transferring a SLDdomain 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 NSIRegistry Operator, such approval not to be unreasonably withheld,
to reflect reasonably
demonstrated increases in the net
costs of providing
operating
the registryRegistry
Services arising from (1)(i) new or revised ICANN specifications
or policies adopted afterthe
date of this Agreement,
or (2)November
10, 1999, or (ii) legislation specifically
applicable to the provision of Registry Services adopted after
the
date of this Agreement,November 10, 1999,
to ensure that NSIRegistry Operator recovers such costs and a reasonable profit thereon;
provided that such increases exceed any reductions in costs arising
from (1)
or (2)(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.
21.
23. Additional
NSI Obligations.
Fair Treatment of ICANN-Accredited Registrars.
(A)
NSI. Registry
Operator shall provide all licensed
Accredited Registrars (including NSI acting as registrar) withICANN-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 the
Sshared rRegistration sSystem.
B.
NSI
further agrees that it will make a certificationRegistry Operator shall certify to ICANN every six months, using the objective
criteria set forth in Appendix FH,
that NSIRegistry Operator is providing all licensed
Accredited Registrarssuch
ICANN-accredited registrars with
equivalent access to its rRegistry
sServices, 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).
(B)
NSI. Registry
Operator will ensure, in a form
and through ways described in Appendix FH,
that the revenues and assets of the
rRegistry
Operator are not utilized to advantage
NSI's
registrar activitiesregistrars
that are affiliated with Registry Operator
to the detriment of other registrars.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.
22.
Designation of Successor Registry.
(A)
Not later than one year prior to the end of the term of this
Agreement, ICANN shall, in accordance with Section 4, adopt an
open, transparent procedure for designating a Successor Registry.
The requirement that this procedure be opened one year prior
to the end of the Agreement shall be waived in the event that
the Agreement is terminated prior to its expiration.
(B)
NSI or its assignee shall be eligible to serve as the Successor
Registry and neither the procedure established in accordance
with subsection (A) nor the fact that NSI is the incumbent shall
disadvantage NSI in comparison to other entities seeking to serve
as the Successor Registry.
(C)
If NSI or its assignee is not designated as the Successor Registry,
NSI or its assignee shall cooperate with ICANN and with the Successor
Registry in order to facilitate the smooth transition of operation
of the registry to Successor Registry. Such cooperation shall
include the timely transfer to the Successor Registry of an electronic
copy of the registry database and of a full specification of
the format of the data.
(D)
ICANN shall select as the Successor Registry the eligible party
that it reasonably determines is best qualified to perform the
registry function under terms and conditions developed as a Consensus
Policy, taking into account all factors relevant to the stability
of the Internet, promotion of competition, and maximization of
consumer choice, including without limitation: functional capabilities
and performance specifications proposed by the eligible party
for its operation of the registry, the price at which registry
services are proposed to be provided by the party, relevant experience
of the party, and demonstrated ability of the party to handle
operations at the required scale. ICANN shall not charge any
additional fee to the Successor Registry.
(E)
In the event that a party other than NSI or its assignee is designated
as the Successor Registry, NSI shall have the right to challenge
the reasonableness of ICANN's failure to designate NSI or its
assignee as the Successor Registry under the provisions of Section
13 of this Agreement.
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.
23.
Expiration of this Agreement. The Expiration Date shall
be four years after the Effective Date, unless extended as provided
below. In the event that NSI completes the legal separation of
ownership of its Registry Services business from its registrar
business by divesting all the assets and operations of one of
those businesses within 18 months after Effective Date to an
unaffiliated third party that enters an agreement enforceable
by ICANN and the Department of Commerce (i) not to be both a
registry and a registrar in the Registry TLDs, and (ii) not to
control, own or have as an affiliate any individual(s) or entity(ies)
that, collectively, act as both a registry and a registrar in
the Registry TLDs, the Expiration Date shall be extended for
an additional four years, resulting in a total term of eight
years. For the purposes of this Section, "unaffiliated third
party" means any entity in which NSI (including its successors
and assigns, subsidiaries and divisions, and their respective
directors, officers, employees, agents and representatives) does
not have majority equity ownership or the ability to exercise
managerial or operational control, either directly or indirectly
through one or more intermediaries. "Control," as used
in this Section 23, means any of the following: (1) ownership,
directly or indirectly, or other interest entitling NSI to exercise
in the aggregate 25% or more of the voting power of an entity;
(2) the power, directly or indirectly, to elect 25% or more of
the board of directors (or equivalent governing body) of an entity;
or (3) the ability, directly or indirectly, to direct or cause
the direction of the management, operations, or policies of an
entity.
24.26.
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 14
or 16(B)16
or 18(B), the United
States Department of CommerceDOC 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 Department
of Commerce,DOC, this Agreement shall terminate.
25.
Assignment of Registry Assets. NSI may assign and transfer its
registry assets in connection with the sale of its registry business
only with the approval of the Department of Commerce.
26.27.
Option to Substitute Generic Agreement. At NSI'sRegistry Operator's option, it may substitute in its entirety any
generic ICANN/-Registry
Operator aAgreement
that may be adopted by ICANN for this Agreement; provided,
however, that Sections 16, 19, 20, 21, 23, 24, and 25 of this
Agreement will remain in effect following any such election by
NSI.
27.28.
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
1.
Network Solutions,VeriSign, Inc.
505 Huntmar Park Drive
Herndon, VA
20170
Telephone: 1/703/742-0400
Facsimile: 1/703/742-3386
Attention: General Counsel
2.Network
Solutions, Inc.
505 Huntmar Park Drive
Herndon, VA 20170
Telephone: 1/703/742-0400
Facsimile: 1/703/742-3386
Attention: Registry General ManagerVirginia 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.
28.32.
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.
29.33.
Language. All notices, designations, and specifications
made under this Agreement shall be in the English language.
30.34.
Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto pertaining to theregistry
for the Registry TLDs and supersedes all prior agreements, understandings,
negotiations and discussions, whether oral or written, between
the parties on that subject.
This Agreement is intended to coexist with any Registrar Accreditation
Agreement between the parties.
31.35.
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.
32.36.
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.
