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REGISTRAR ACCREDITATION AGREEMENT
TABLE OF CONTENTS
I. DEFINITIONS
II. TERMS AND CONDITIONS OF AGREEMENT
A. Accreditation.
B. Registrar Use of ICANN Name.
C. General Obligations of ICANN.
D. General Obligations of Registrar.
E. Submission of SLD Holder Data to Registry.
F. Public Access to Data on SLD Registrations.
G. Retention of SLD Holder and Registration Data.
H. Rights in Data.
I. Data Escrow.
J. Business Dealings, Including with SLD Holders.
K. Domain-Name Dispute Resolution.
L. Accreditation Fees.
M. Specific Performance.
N. Termination of Agreement.
O. Term of Agreement; Renewal; Right to Substitute Updated Agreement.
P. Resolution of Disputes Under This Agreement.
Q. Limitations on Monetary Remedies for Violations of this Agreement.
R. Handling by ICANN of Registrar-Supplied Data.
S. Miscellaneous.
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This REGISTRAR ACCREDITATION AGREEMENT ("Agreement") is by and between the
Internet Corporation for Assigned Names and Numbers, a not-for-profit
corporation, and Network Solutions, Inc. ("Registrar"), a Delaware corporation,
and shall be deemed made on November 10, 1999, at Los Angeles, California, USA.
I. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
A. "Accredit" means to identify and set minimum standards for the performance
of registration functions, to recognize persons or entities meeting those
standards, and to enter into an accreditation agreement that sets forth the
rules and procedures applicable to the provision of registration services.
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B. A "Consensus Policy" is one adopted by ICANN as follows:
1. "Consensus Policies" are those adopted based on a consensus among
Internet stakeholders represented in the ICANN process, as
demonstrated by (1) the adoption of the policy by the ICANN Board of
Directors, (2) a recommendation that the policy should be adopted, by
at least a two-thirds vote of the council of the ICANN Supporting
Organization to which the matter is delegated, and (3) a written
report and supporting materials (which must include all substantive
submissions to the Supporting Organization relating to the proposal)
that (i) documents the extent of agreement and disagreement among
impacted groups, (ii) documents the outreach process used to seek to
achieve adequate representation of the views of groups that are likely
to be impacted, and (iii) documents the nature and intensity of
reasoned support and opposition to the proposed policy.
2. In the event that Registrar disputes the presence of such a
consensus, it shall seek review of that issue from an Independent
Review Panel established under ICANN's bylaws. Such review must be
sought within fifteen working days of publication of the Board's
action adopting the policy. The decision of the panel shall be based
on the report and supporting materials required by Section I.B.1
above. In the event that Registrar seeks review and the Panel sustains
the Board's determination that the policy is based on a consensus
among Internet stakeholders represented in the ICANN process, then
Registrar must implement such policy unless it promptly seeks and
obtains a stay or injunctive relief under Section II.P.
3. In the event, following a decision by the Independent Review Panel
convened under Section I.B.2 above, that Registrar still disputes the
presence of such a consensus, it may seek further review of that issue
within fifteen working days of publication of the decision in
accordance with the dispute-resolution procedures set forth in Section
II.P below; provided, however, that Registrar must continue to
implement the policy unless it has obtained a stay or injunctive
relief under Section II.P or a final decision is rendered in
accordance with the provisions of Section II.P that relieves Registrar
of such obligation. The decision in any such further review shall be
based on the report and supporting materials required by Section I.B.1
above.
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4. A policy adopted by the ICANN Board of Directors on a temporary
basis, without a prior recommendation by the council of an ICANN
Supporting Organization, shall also be considered to be a Consensus
Policy if adopted by the ICANN Board of Directors by a vote of at
least two-thirds of its members, and if immediate temporary adoption
of a policy on the subject is necessary to maintain the stability of
the Internet or the operation of the domain name system, and if the
proposed policy is as narrowly tailored as feasible to achieve those
objectives. In adopting any policy under this provision, the ICANN
Board of Directors shall state the period of time for which the policy
is temporarily adopted and shall immediately refer the matter to the
appropriate Supporting Organization for its evaluation and review with
a detailed explanation of its reasons for adopting the temporary
policy and why the Board believes the policy should receive the
consensus support of Internet stakeholders. If the period of time for
which the policy is adopted exceeds 45 days, the Board shall reaffirm
its temporary adoption every 45 days for a total period not to exceed
180 days, in order to maintain such policy in effect until such time
as it meets the standard set forth in Section I.B.1. If the standard
set forth in Section I.B.1 above is not met within the temporary
period set by the Board, or the council of the Supporting Organization
to which it has been referred votes to reject the temporary policy, it
will no longer be a "Consensus Policy."
5. For all purposes under this Agreement, the policies specifically
identified by ICANN on its website
(www.icann.org/general/consensus-policies.htm) at the date of this
Agreement as having been adopted by the ICANN Board of Directors
before the date of this Agreement shall be treated in the same manner
and have the same effect as "Consensus Policies" and accordingly shall
not be subject to review under Section I.B.2.
6. In the event that, at the time the ICANN Board adopts a policy
under Section I.B.1 during the term of this Agreement, ICANN does not
have in place an Independent Review Panel established under ICANN's
bylaws, the fifteen-working-day period allowed under Section I.B.2 to
seek review shall be extended until fifteen working days after ICANN
does have such an Independent Review Panel in place and Registrar
shall not be obligated to comply with the policy in the interim.
C. "DNS" refers to the Internet domain-name system.
D. "ICANN" refers to the Internet Corporation for Assigned Names and Numbers, a
party to this Agreement.
E. An "ICANN-adopted policy" (and references to ICANN "adopt[ing]" a policy or
policies) refers to a Consensus Policy adopted by ICANN (i) in conformity with
applicable provisions of its articles of incorporation and bylaws and Section
II.C of this Agreement and (ii) of which Registrar has been given notice and a
reasonable period in which to comply.
F. "IP" means Internet Protocol.
G. "Personal Data" refers to data about any identified or identifiable natural
person.
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H. The word "Registrar," when appearing with an initial capital letter, refers
to Network Solutions, Inc., a party to this Agreement.
I. The word "registrar," when appearing without an initial capital letter,
refers to a person or entity that contracts with SLD holders and a registry,
collecting registration data about the SLD holders and submitting zone file
information for entry in the registry database.
J. A "Registry" is the person(s) or entity(ies) then responsible, in accordance
with an agreement between ICANN and that person or entity (those persons or
entities) or, if that agreement is terminated or expires, in accordance with an
agreement between the US Government and that person or entity (those persons or
entities), for providing registry services.
K. An "SLD" is a second-level domain of the DNS.
L. An SLD registration is "sponsored" by the registrar that placed the record
associated with that registration into the registry. Sponsorship of a
registration may be changed at the express direction of the SLD holder or, in
the event a registrar loses accreditation, in accordance with then-current
ICANN-adopted policies.
M. A "TLD" is a top-level domain of the DNS.
II. TERMS AND CONDITIONS OF AGREEMENT
The parties agree as follows:
A. Accreditation. During the term of this Agreement, Registrar is hereby
accredited by ICANN to act as a registrar (including to insert and renew
registration of SLDs in the registry database) for the .com, .net, and .org
TLDs.
B. Registrar Use of ICANN Name. Registrar is hereby granted a non-exclusive
worldwide license to state during the term of this Agreement that it is
accredited by ICANN as a registrar in the .com, .net, and .org TLDs. No other
use of ICANN's name is licensed hereby. This license may not be assigned or
sublicensed by Registrar.
C. General Obligations of ICANN. With respect to all matters that impact the
rights, obligations, or role of Registrar, ICANN shall during the Term of this
Agreement:
1. exercise its responsibilities in an open and transparent manner;
2. not unreasonably restrain competition and, to the extent feasible,
promote and encourage robust competition;
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3. not apply standards, policies, procedures or practices arbitrarily,
unjustifiably, or inequitably and not single out Registrar for
disparate treatment unless justified by substantial and reasonable
cause; and
4. ensure, through its reconsideration and independent review
policies, adequate appeal procedures for Registrar, to the extent it
is adversely affected by ICANN standards, policies, procedures or
practices.
D. General Obligations of Registrar.
1. During the Term of this Agreement:
a. Registrar agrees that it will operate as a registrar for
TLDs for which it is accredited by ICANN in accordance with
this Agreement;
b. Registrar shall comply, in such operations, with all
ICANN-adopted Policies insofar as they:
i. relate to one or more of the following: (A)
issues for which uniform or coordinated resolution
is reasonably necessary to facilitate
interoperability, technical reliability and/or
stable operation of the Internet or domain-name
system, (B) registrar policies reasonably necessary
to implement Consensus Policies relating to the
Registry, or (C) resolution of disputes regarding
the registration of domain names (as opposed to the
use of such domain names), and
ii. do not unreasonably restrain competition.
2. To the extent that Consensus Policies are adopted in conformance
with Section II.C of this Agreement, the measures permissible under
Section II.D.1.b.i shall include, without limitation:
i. principles for allocation of SLD names (e.g.,
first-come/first-served, timely renewal, holding period after
expiration);
ii. prohibitions on warehousing of or speculation in domain
names by registrars;
iii. reservation of SLD names that may not be registered
initially or that may not be renewed due to reasons
reasonably related to (a) avoidance of confusion among or
misleading of users, (b) intellectual property, or (c) the
technical management of the DNS or the Internet (e.g.,
"example.com" and single-letter/digit names);
iv. the allocation among continuing registrars of the SLD
names sponsored in the registry by a registrar losing
accreditation;
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v. the transfer of registration data upon a change in
registrar sponsoring the registration; and
vi. dispute resolution policies that take into account the
use of a domain name.
Nothing in this Section II.D shall limit or otherwise affect Registrar's
obligations as set forth elsewhere in this Agreement.
E. Submission of SLD Holder Data to Registry. During the term of this
Agreement:
1. As part of its registration of SLDs in the .com, .net, and .org
TLDs, Registrar shall submit to, or shall place in the registry
database operated by Registry the following data elements concerning
SLD registrations that Registrar processes:
a. The name of the SLD being registered;
b. The IP addresses of the primary nameserver and secondary
nameserver(s) for the SLD;
c. The corresponding names of those nameservers;
d. Unless automatically generated by the registry system, the
identity of the registrar;
e. Unless automatically generated by the registry system, the
expiration date of the registration; and
f. Other data required as a result of further development of
the registry system by the Registry.
2. Within five (5) business days after receiving any updates from the
SLD holder to the data elements listed in Sections II.E.1.b and c for
any SLD registration Registrar sponsors, Registrar shall submit the
updated data elements to, or shall place those elements in the
registry database operated by Registry.
3. In order to allow reconstitution of the registry database in the
event of an otherwise unrecoverable technical failure or a change in
the designated Registry permitted by the contract Registry has with
ICANN and/or the United States Department of Commerce, within ten days
of any such request by ICANN Registrar shall submit an electronic
database containing the data elements listed in Sections II.F.1.a
through d for all active records in the
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registry sponsored by Registrar, in a format specified by ICANN, to the
Registry for the appropriate TLD.
F. Public Access to Data on SLD Registrations. During the term of this
Agreement:
1. At its expense, Registrar shall provide 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) data concerning all active
SLD registrations sponsored by Registrar in the registry for the .com,
.net, and .org TLDs. The data accessible shall consist of elements
that are designated from time to time according to an ICANN-adopted
policy. Until ICANN otherwise specifies by means of an ICANN-adopted
policy, this data shall consist of the following elements as contained
in Registrar's database:
a. The name of the SLD being registered and the TLD for
which registration is being requested;
b. The IP addresses of the primary nameserver and secondary
nameserver(s) for the SLD;
c. The corresponding names of those nameservers;
d. The identity of Registrar (which may be provided through
Registrar's website);
e. The original creation date of the registration;
f. The expiration date of the registration;
g. The name and postal address of the SLD holder;
h. The name, postal address, e-mail address, voice telephone
number, and (where available) fax number of the technical
contact for the SLD; and
i. The name, postal address, e-mail address, voice telephone
number, and (where available) fax number of the
administrative contact for the SLD.
2. Upon receiving any updates to the data elements listed in Sections
II.F.1.b through d and f through i from the SLD holder, Registrar
shall promptly update its database used to provide the public access
described in Section II.F.1.
3. Registrar may subcontract its obligation to provide the public
access described in Section II.F.1 and the updating described in
Section II.F.2, provided that Registrar shall remain fully responsible
for the proper provision of the access and updating.
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4. Registrar shall abide by any ICANN-adopted Policy that requires
registrars to cooperatively implement a distributed capability that
provides query-based Whois search functionality across all registrars.
If the Whois service implemented by registrars does not in a
reasonable time provide reasonably robust, reliable, and convenient
access to accurate and up-to-date data, the Registrar shall abide by
any ICANN-adopted Policy requiring Registrar, if reasonably determined
by ICANN to be necessary (considering such possibilities as remedial
action by specific registrars), to supply data from Registrar's
database to facilitate the development of a centralized Whois database
for the purpose of providing comprehensive Registrar Whois search
capability.
5. In providing query-based public access to registration data as
required by Sections II.F.1 and II.F.4, Registrar shall not impose
terms and conditions on use of the data provided except as permitted
by an ICANN-adopted policy. Unless and until ICANN adopts a different
policy, Registrar shall permit use of data it provides in response to
queries for any lawful purposes except to: (a) allow, enable, or
otherwise support the transmission of mass unsolicited, commercial
advertising or solicitations via e-mail (spam); or (b) enable high
volume, automated, electronic processes that apply to Registrar (or
its systems).
6. In addition, Registrar shall provide third-party bulk access to the
data subject to public access under Section II.F.1 under the following
terms and conditions:
a. Registrar shall make a complete electronic copy of the
data available at least one time per week for download by
third parties who have entered into a bulk access agreement
with Registrar.
b. Registrar may charge an annual fee, not to exceed
US$10,000, for such bulk access to the data.
c. Registrar's access agreement shall require the third party
to agree not to use the data to allow, enable, or otherwise
support the transmission of mass unsolicited, commercial
advertising or solicitations via e-mail (spam).
d. Registrar's access agreement may require the third party
to agree not to use the data to enable high-volume,
automated, electronic processes that apply to Registrar (or
its systems).
e. Registrar's access agreement may require the third party
to agree not to sell or redistribute the data except insofar
as it has been incorporated by the third party into a
value-added product or service that does not permit the
extraction of a substantial portion of the bulk data from the
value-added product or service for use by other parties.
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f. Registrar may enable SLD holders who are individuals to
elect not to have Personal Data concerning their
registrations available for bulk access for marketing
purposes based on Registrar's "Opt-Out" policy, and if
Registrar has such a policy Registrar shall require the third
party to abide by the terms of that Opt-Out policy; provided,
however, that Registrar may not use such data subject to
opt-out for marketing purposes in its own value-added product
or service.
7. Registrar's obligations under Section II.F.6 shall remain in effect
until the earlier of (a) replacement of this policy with a different
ICANN-adopted policy governing bulk access to the data subject to
public access under Section II.F.1, or (b) demonstration, to the
satisfaction of the United States Department of Commerce, that no
individual or entity is able to exercise market power with respect to
registrations or with respect to registration data used for
development of value-added products and services by third parties.
8. To comply with applicable statutes and regulations and for other
reasons, ICANN may from time to time adopt policies establishing
limits on the Personal Data concerning SLD registrations that
Registrar may make available to the public through a public-access
service described in this Section II.F and on the manner in which
Registrar may make them available. In the event ICANN adopts any such
policy, Registrar shall abide by it.
G. Retention of SLD Holder and Registration Data.
1. During the term of this Agreement, Registrar shall maintain its own
electronic database, as updated from time to time, containing data for
each active SLD registration sponsored by it in the registry for the
.com, .net, and .org TLDs. The data for each such registration shall
include the elements listed in Sections II.F.1.a through i, as well as
the name and (where available) postal address, e-mail address, voice
telephone number, and fax number of the billing contact.
2. During the term of this Agreement and for three years thereafter,
Registrar (itself or by its agent) shall maintain the following
records relating to its dealings with the Registry and SLD holders:
a. In electronic form, the submission date and time, and the
content, of all registration data (including updates)
submitted in electronic form to the Registry;
b. In electronic, paper, or microfilm form, all written
communications constituting registration applications,
confirmations, modifications, or terminations and related
correspondence with actual SLD holders, including
registration contracts; and
c. In electronic form, records of the accounts of all SLD
holders with Registrar, including dates and amounts of all
payments and refunds.
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Registrar shall make these records available for inspection by ICANN
upon reasonable notice. ICANN shall not disclose such records except
as expressly permitted by an ICANN-adopted policy.
H. Rights in Data. Registrar disclaims all rights to exclusive ownership or use
of the data elements listed in Sections II.E.1.a through c for all SLD
registrations submitted by Registrar to, or sponsored by Registrar in, the
registry database for the .com, .net, and .org TLDs. Registrar does not
disclaim rights in the data elements listed in Sections II.E.1.d through f and
II.F.1.d through i concerning active SLD registrations sponsored by it in the
registry for the .com, .net, and .org TLDs, and agrees to grant non-exclusive,
irrevocable, royalty-free licenses to make use of and disclose the data
elements listed in Sections II.F.1.d through i for the purpose of providing a
service (such as a Whois service under Section II.F.4) providing interactive,
query-based public access. Upon a change in sponsorship from Registrar of any
SLD registration in the registry for the .com, .net, and .org TLDs, Registrar
acknowledges that the registrar gaining sponsorship shall have the rights of an
owner to the data elements listed in Sections II.E.1.d and e and II.F.1.d
through i concerning that registration, with Registrar also retaining the
rights of an owner in that data. Nothing in this Section II.H prohibits
Registrar from (1) restricting bulk public access to data elements in a manner
consistent with any ICANN-adopted policies or (2) transferring rights it claims
in data elements subject to the provisions of this Section II.H.
I. Data Escrow. During the term of this Agreement, on a schedule, under the
terms, and in the format specified in the then-current ICANN-adopted policy on
registrar escrow requirements, Registrar shall submit an electronic copy of the
database described in Section II.G.1 to ICANN or, at Registrar's election and
at its expense, to a reputable escrow agent mutually approved by Registrar and
ICANN, such approval also not to be unreasonably withheld by either party. The
data shall be held under an agreement among Registrar, ICANN, and the escrow
agent (if any) providing that (1) the data shall be received and held in
escrow, with no use other than verification that the deposited data is complete
and in proper format, until released to ICANN; (2) the data shall be released
from escrow upon expiration without renewal or termination of this Agreement;
and (3) ICANN's rights under the escrow agreement shall be assigned with any
assignment of this Agreement. The escrow shall provide that in the event the
escrow is released under this Section II.I, ICANN (or its assignee) shall have
a non-exclusive, irrevocable, royalty-free license to exercise (only for
transitional purposes) or have exercised all rights necessary to provide
registrar services.
J. Business Dealings, Including with SLD Holders.
1. In the event ICANN adopts a policy supported by a consensus of
ICANN-accredited registrars establishing or approving a Code of
Conduct for such registrars, Registrar shall abide by that Code.
2. Registrar shall abide by applicable laws and governmental
regulations.
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3. Registrar shall not represent to any actual or potential SLD holder
that Registrar enjoys access to a registry for which Registrar is
accredited that is superior to that of any other registrar accredited
for that registry.
4. Registrar shall not activate any SLD registration unless and until
it is satisfied that it has received a reasonable assurance of payment
of its registration fee. For this purpose, a charge to a credit card,
general commercial terms extended to creditworthy customers, or other
mechanism providing a similar level of assurance of payment shall be
sufficient, provided that the obligation to pay becomes final and
non-revocable by the SLD holder upon activation of the registration.
5. Registrar shall register SLDs to SLD holders only for fixed
periods. At the conclusion of the registration period, failure by or
on behalf of the SLD holder to pay a renewal fee within the time
specified in a second notice or reminder shall, in the absence of
extenuating circumstances, result in cancellation of the registration.
In the event that ICANN adopts a policy concerning procedures for
handling expiration of registrations, Registrar shall abide by that
policy.
6. Registrar shall not insert or renew any SLD name in any registry
for which Registrar is accredited by ICANN in a manner contrary to an
ICANN-adopted policy stating a list or specification of excluded SLD
names that is in effect at the time of insertion or renewal.
7. Registrar shall require all SLD holders to enter into an electronic
or paper registration agreement with Registrar including at least the
following provisions:
a. The SLD holder shall provide to Registrar accurate and
reliable contact details and promptly correct and update them
during the term of the SLD registration, including: the full
name, postal address, e-mail address, voice telephone number,
and fax number if available of the SLD holder; name of
authorized person for contact purposes in the case of an SLD
holder that is an organization, association, or corporation;
and the data elements listed in Section II.F.1.b, c, and h
through i above.
An SLD holder's willful provision of inaccurate or unreliable
information, its willful failure promptly to update
information provided to Registrar, or its failure to respond
for over fifteen calendar days to inquiries by Registrar
concerning the accuracy of contact details associated with
the SLD holder's registration shall constitute a material
breach of the SLD holder-registrar contract and be a basis
for cancellation of the SLD registration.
Any SLD holder that intends to license use of a domain name
to a third party is nonetheless the SLD holder of record and
is responsible for providing its own full contact information
and for providing and updating accurate technical and
administrative contact information adequate to facilitate
timely resolution of any
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problems that arise in connection with the SLD. An SLD holder
licensing use of an SLD according to this provision shall
accept liability for harm caused by wrongful use of the SLD,
unless it promptly discloses the identity of the licensee to
a party providing the SLD holder reasonable evidence of
actionable harm.
b. Registrar shall provide notice to each new or renewed SLD
holder stating:
i. The purposes for which any Personal Data
collected from the applicant are intended;
ii. The intended recipients or categories of
recipients of the data (including the Registry and
others who will receive the data from Registry);
iii. Which data are obligatory and which data, if
any, are voluntary; and
iv. How the SLD holder or data subject can access
and, if necessary, rectify the data held about them.
c. The SLD holder shall consent to the data processing
referred to in Section II.J.7.b.
d. The SLD holder shall represent that notice has been
provided equivalent to that described in Section II.J.7.b.
above to any third-party individuals whose Personal Data are
supplied to Registrar by the SLD holder, and that the SLD
holder has obtained consent equivalent to that referred to in
Section II.J.7.c of any such third-party individuals.
e. Registrar shall agree that it will not process the
Personal Data collected from the SLD holder in a way
incompatible with the purposes and other limitations about
which it has provided notice to the SLD holder in accordance
with Section II.J.7.b, above.
f. Registrar shall agree that it will take reasonable
precautions to protect Personal Data from loss, misuse,
unauthorized access or disclosure, alteration, or
destruction.
g. The SLD holder shall represent that, to the best of the
SLD holder's knowledge and belief, neither the registration
of the SLD name nor the manner in which it is directly or
indirectly used infringes the legal rights of a third party.
h. For the adjudication of disputes concerning or arising
from use of the SLD name, the SLD holder shall submit,
without prejudice to other potentially applicable
jurisdictions, to the jurisdiction of the courts (1) of the
SLD holder's domicile and (2) where Registrar is located.
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i. The SLD holder shall agree that its registration of the
SLD name shall be subject to suspension, cancellation, or
transfer pursuant to any ICANN-adopted policy, or pursuant to
any registrar or registry procedure not inconsistent with an
ICANN-adopted policy, (1) to correct mistakes by Registrar or
the Registry in registering the name or (2) for the
resolution of disputes concerning the SLD name.
j. The SLD holder shall indemnify and hold harmless the
Registry and its directors, officers, employees, and agents
from and against any and all claims, damages, liabilities,
costs, and expenses (including reasonable legal fees and
expenses) arising out of or related to the SLD holder's
domain name registration.
8. Registrar shall abide by any ICANN-adopted policies requiring
reasonable and commercially practicable (a) verification, at the time
of registration, of contact information associated with an SLD
registration sponsored by Registrar or (b) periodic re-verification of
such information. Registrar shall, upon notification by any person of
an inaccuracy in the contact information associated with an SLD
registration sponsored by Registrar, take reasonable steps to
investigate that claimed inaccuracy. In the event Registrar learns of
inaccurate contact information associated with an SLD registration it
sponsors, it shall take reasonable steps to correct that inaccuracy.
9. Registrar shall abide by any ICANN-adopted policy prohibiting or
restricting warehousing of or speculation in domain names by
registrars.
10. Registrar shall maintain in force commercial general liability
insurance with policy limits of at least US$500,000 covering
liabilities arising from Registrar's registrar business during the
term of this Agreement.
11. Nothing in this Agreement prescribes or limits the amount
Registrar may charge SLD holders for registration of SLD names.
K. Domain-Name Dispute Resolution. During the term of this Agreement, Registrar
shall have in place a policy and procedure for resolution of disputes
concerning SLD names. In the event that ICANN adopts a policy or procedure for
resolution of disputes concerning SLD names that by its terms applies to
Registrar, Registrar shall adhere to the policy or procedure.
L. Accreditation Fees. As a condition of accreditation, Registrar shall pay
accreditation fees to ICANN. These fees consist of yearly and on-going
components.
1. The yearly component for the term of this Agreement shall be US
$5,000. Payment of the yearly component shall be due upon execution by
Registrar of this Agreement and upon each anniversary date after such
execution during the term of this Agreement (other than the expiration
date).
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2. Registrar shall pay the on-going component of Registrar
accreditation fees adopted by ICANN in accordance with the provisions
of Section II.C above, provided such fees are reasonably allocated
among all registrars that contract with ICANN and that any such fees
must be expressly approved by registrars accounting, in aggregate, for
payment of two-thirds of all registrar-level fees. Registrar shall pay
such fees in a timely manner for so long as all material terms of this
Agreement remain in full force and effect, and notwithstanding the
pendency of any dispute between Registrar and ICANN.
3. On reasonable notice given by ICANN to Registrar, accountings
submitted by Registrar shall be subject to verification by an audit of
Registrar's books and records by an independent third-party that shall
preserve the confidentiality of such books and records (other than its
findings as to the accuracy of, and any necessary corrections to, the
accountings).
M. Specific Performance. While this Agreement is in effect, either party may
seek specific performance of any provision of this Agreement in the manner
provided in Section II.P below, provided the party seeking such performance is
not in material breach of its obligations.
N. Termination of Agreement. This Agreement may be terminated before its
expiration by Registrar by giving ICANN thirty days written notice. It may be
terminated before its expiration by ICANN in any of the following
circumstances:
1. There was a material misrepresentation, material inaccuracy, or
materially misleading statement in Registrar's application for
accreditation or any material accompanying the application.
2. Registrar:
a. is convicted of a felony or other serious offense related
to financial activities, or is judged by a court to have
committed fraud or breach of fiduciary duty, or is the
subject of a judicial determination that ICANN reasonably
deems as the substantive equivalent of any of these; or
b. is disciplined by the government of its domicile for
conduct involving dishonesty or misuse of funds of others.
3. Any officer or director of Registrar is convicted of a felony or of
a misdemeanor related to financial activities, or is judged by a court
to have committed fraud or breach of fiduciary duty, or is the subject
of a judicial determination that ICANN deems as the substantive
equivalent of any of these; provided, such officer or director is not
removed in such circumstances.
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4. Registrar fails to cure any breach of this Agreement (other than a
failure to comply with a policy adopted by ICANN during the term of
this Agreement as to which Registrar is seeking, or still has time to
seek, review under Section I.B.2 of whether a consensus is present)
within fifteen working days after ICANN gives Registrar notice of the
breach.
5. Registrar fails to comply with a ruling granting specific
performance under Sections II.M and II.P.
6. Registrar continues acting in a manner that ICANN has reasonably
determined endangers the stability or operational integrity of the
Internet after receiving three days notice of that determination.
7. Registrar becomes bankrupt or insolvent.
This Agreement may be terminated in circumstances 1 through 6 above only upon
fifteen days written notice to Registrar (in the case of circumstance 4
occurring after Registrar's failure to cure), with Registrar being given an
opportunity during that time to initiate arbitration under Section II.P to
determine the appropriateness of termination under this Agreement. In the event
Registrar initiates litigation or arbitration concerning the appropriateness of
termination by ICANN, the termination shall be stayed an additional thirty days
to allow Registrar to obtain a stay of termination under Section II.P below. If
Registrar acts in a manner that ICANN reasonably determines endangers the
stability or operational integrity of the Internet and upon notice does not
immediately cure, ICANN may suspend this Agreement for five working days
pending ICANN's application for more extended specific performance or
injunctive relief under Section II.P. This Agreement may be terminated
immediately upon notice to Registrar in circumstance 7 above.
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O. Term of Agreement; Renewal; Right to Substitute Updated Agreement. This
Agreement shall have an initial term until November 9, 2004, unless sooner
terminated. Thereafter, if Registrar seeks to continue its accreditation, it
may apply for renewed accreditation, and shall be entitled to renewal provided
it meets the ICANN-adopted policy on accreditation criteria then in effect, is
in compliance with its obligations under this Agreement, as amended, and agrees
to be bound by the then-current Registrar accreditation agreement (which may
differ from those of this Agreement) that ICANN adopts in accordance with
Sections II.C and II.D (as Section II.D may have been amended by an
ICANN-adopted policy). In connection with renewed accreditation, Registrar
shall confirm its assent to the terms and conditions of the such then-current
Registrar accreditation agreement by signing that accreditation agreement. In
the event that, during the term of this Agreement, ICANN posts on its web site
an updated form of registrar accreditation agreement applicable to accredited
registrars in the .com, .net, or .org TLDs, Registrar (provided it has not
received (1) a notice of breach that it has not cured or (2) a notice of
termination of this Agreement under Section II.N above) may elect, by giving
ICANN written notice, to enter an agreement in the updated form in place of
this Agreement. In the event of such election, Registrar and ICANN shall
promptly sign a new accreditation agreement that contains the provisions of the
updated form posted on the web site, with the length of the term of the
substituted agreement as stated in the updated form posted on the web site,
calculated as if it commenced on the date this Agreement was made, and this
Agreement will be deemed terminated.
P. Resolution of Disputes Under this Agreement. Disputes arising under or in
connection with this Agreement, including (1) disputes arising from ICANN's
failure to renew Registrar's accreditation and (2) requests for specific
performance, shall be resolved in a court of competent jurisdiction or, at the
election of either party, by an arbitration conducted as provided in this
Section II.P pursuant to the International Arbitration Rules of the American
Arbitration Association ("AAA"). The arbitration shall be conducted in English
and shall occur in Los Angeles County, California, USA. There shall be three
arbitrators: each party shall choose one arbitrator and, if those two
arbitrators do not agree on a third arbitrator, the third shall be chosen by
the AAA. The parties shall bear the costs of the arbitration in equal shares,
subject to the right of the arbitrators to reallocate the costs in their award
as provided in the AAA rules. The parties shall bear their own attorneys' fees
in connection with the arbitration, and the arbitrators may not reallocate the
attorneys' fees in conjunction with their award. The arbitrators shall render
their decision within ninety days of the conclusion of the arbitration hearing.
In the event Registrar initiates arbitration to contest the appropriateness of
termination of this Agreement by ICANN, Registar may at the same time request
that the arbitration panel stay the termination until the arbitration decision
is rendered, and that request shall have the effect of staying the termination
until the arbitration panel has granted an ICANN request for specific
performance and Registrar has failed to comply with such ruling. In the event
Registrar initiates arbitration to contest an Independent Review Panel's
decision under Section I.B.2 sustaining the Board's determination that a policy
is supported by consensus, Registar may at the same time request that the
arbitration panel stay the requirement that it comply with the policy until the
arbitration decision is rendered, and that request shall have the effect of
staying the requirement until the decision or until the arbitration panel has
granted an ICANN request for lifting of the stay. In all litigation involving
ICANN concerning this Agreement (whether in a case where
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arbitration has not been elected or to enforce an arbitration award),
jurisdiction and exclusive venue for such litigation shall be in a court
located in Los Angeles, California, USA; however, the parties shall also have
the right to enforce a judgment of such a court in any court of competent
jurisdiction. For the purpose of aiding the arbitration and/or preserving the
rights of the parties during the pendency of an arbitration, the parties shall
have the right to seek temporary or preliminary injunctive relief from the
arbitration panel or in a court located in Los Angeles, California, USA, which
shall not be a waiver of this arbitration agreement.
Q. Limitations on Monetary Remedies for Violations of this Agreement. ICANN's
aggregate monetary liability for violations of this Agreement shall not exceed
the amount of accreditation fees paid by Registrar to ICANN under Section II.L
of this Agreement. Registrar's monetary liability to ICANN for violations of
this Agreement shall be limited to accreditation fees owing to ICANN under this
Agreement. In no event shall either party be liable for special, indirect,
incidental, punitive, exemplary, or consequential damages for any violation of
this Agreement.
R. Handling by ICANN of Registrar-Supplied Data. Before receiving any Personal
Data from Registrar, ICANN shall specify to Registrar in writing the purposes
for and conditions under which ICANN intends to use the Personal Data. ICANN
may from time to time provide Registrar with a revised specification of such
purposes and conditions, which specification shall become effective no fewer
than thirty days after it is provided to Registrar. ICANN shall not use
Personal Data provided by Registrar for a purpose or under conditions
inconsistent with the specification in effect when the Personal Data were
provided. ICANN shall take reasonable steps to avoid uses of the Personal Data
by third parties inconsistent with the specification.
S. Miscellaneous.
1. Assignment. Either party may assign or transfer this Agreement only
with the prior written consent of the other party, which shall not be
unreasonably withheld, except that ICANN may, with the written
approval of the United States Department of Commerce, assign this
agreement by giving Registrar written notice of the assignment. In the
event of assignment by ICANN, the assignee may, with the approval of
the United States Department of Commerce, revise the definition of
"Consensus Policy" to the extent necessary to meet the organizational
circumstances of the assignee, provided the revised definition
requires that Consensus Policies be based on a demonstrated consensus
of Internet stakeholders.
2. No Third-Party Beneficiaries. This Agreement shall not be construed
to create any obligation by either ICANN or Registrar to any non-party
to this Agreement, including any SLD holder.
3. Notices, Designations, and Specifications. All notices to be given
under this Agreement shall be given in writing at the address of the
appropriate party as set forth below, unless that party has given a
notice of change of address in writing. Any notice required by this
Agreement shall be deemed to have been properly given when delivered
in person, when sent
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by electronic facsimile, or when scheduled for delivery by
internationally recognized courier service. Designations and
specifications by ICANN under this Agreement shall be effective when
written notice of them is deemed given to Registrar.
If to ICANN, addressed to:
Internet Corporation for Assigned Names and Numbers
Registrar Accreditation
4676 Admiralty Way, Suite 330
Marina Del Rey, California 90292
Telephone: 1/310/823-9358
Facsimile: 1/310/823-8649
If to Registrar, addressed to:
Network Solutions, Inc.
505 Huntmar Park Drive
Herndon, Virginia 20170
Telephone: 1/703/742-4889
Facsimile: 1/703/742-8706
Attn: David Graves, Director, Business Affairs (acting)
With a copy to:
Network Solutions, Inc.
505 Huntmar Park Drive
Herndon, Virginia 20170
Telephone: 1/703/742-0400
Facsimile: 1/703/742-3386
Attn: General Counsel
4. Dates and Times. All dates and times relevant to this Agreement or
its performance shall be computed based on the date and time observed
in Los Angeles, California, USA.
5. Language. All notices, designations, and specifications made under
this Agreement shall be in the English language.
6. Entire Agreement. Except for any written transition agreement that
may be executed concurrently herewith by both parties, this Agreement
constitutes the entire agreement of the parties hereto pertaining to
the subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions, whether oral or written,
of the parties.
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7. Amendments and Waivers. No amendment, supplement, or modification
of this Agreement or any provision hereof shall be binding unless
executed in writing by both parties. No waiver of any provision of
this Agreement shall be binding unless evidenced by a writing signed
by the party waiving compliance with such provision. No waiver of any
of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision hereof, nor shall any such
waiver constitute a continuing waiver unless otherwise expressly
provided.
8. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in duplicate by their duly authorized representatives.
INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS
By: /s/ MICHAEL M. ROBERTS
--------------------------------
Michael M. Roberts
President and CEO
NETWORK SOLUTIONS, INC.
By: /s/ JONATHAN W. EMERY
--------------------------------
Jonathan W. Emery
Senior Vice President, General
Counsel & Secretary
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