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.INFO Registry Agreement
(8 December 2006)
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Registry Agreement
This REGISTRY AGREEMENT (this "Agreement") is entered into
as of 18 December 2006 by and between Internet Corporation for
Assigned Names and Numbers, a California nonprofit public benefit corporation
(“ICANN”), and Afilias Limited an Irish company limited
by shares (“Afilias”).
ARTICLE I INTRODUCTION
Section 1.1 Effective Date. The Effective Date for purposes
of this Agreement shall be 8 December 2006.
Section 1.2 Top-Level Domain. The Top-Level Domain to which
this Agreement applies is .info ("TLD").
Section 1.3 Designation as Registry Operator. Upon the Effective
Date, until the Expiration Date as defined in Section 4.1 hereof, ICANN
shall continue to designate Afilias as the sole registry operator for
the TLD ("Registry Operator").
ARTICLE II REPRESENTATIONS AND WARRANTIES
Section 2.1 Registry Operator's Representations and Warranties.
(a) Organization; Due Authorization
and Execution. Registry
Operator is an Irish company limited by shares, duly organized, validly
existing and in good standing under the laws of Ireland, and Registry
Operator has all requisite power and authority to enter into this
Agreement. All corporate approvals and actions necessary for the
entrance by Registry Operator into this Agreement have been obtained
and this Agreement has been duly and validly executed and delivered
by Registry Operator.
(b) Statements made During Negotiation Process. The
factual statements made in writing by both Parties in negotiating
this Agreement, were true and correct in all material respects at
the time . A violation or breach of this subsection shall not be
a basis for termination, rescission or other equitable relief, and,
instead shall only give rise to a claim for damages.
Section 2.2 ICANN's Representations and Warranties.
(a) Organization; Due Authorization and Execution. ICANN
is a nonprofit public benefit corporation duly organized, validly
existing and in good standing under the laws of California. ICANN
has all requisite corporate power and authority to enter into this
Agreement. All corporate approvals and actions necessary for the entrance
by ICANN into this Agreement have been obtained and this Agreement
has been duly and validly executed and delivered by ICANN.
ARTICLE III COVENANTS
Section 3.1 Covenants of Registry Operator. Registry Operator
covenants and agrees with ICANN as follows:
(a) Preserve Security and Stability.
(i) ICANN Temporary Specifications or Policies. Registry Operator
shall comply with and implement all specifications or policies established
by the ICANN Board of Directors on a temporary basis, if adopted
by the ICANN Board of Directors by a vote of at least two-thirds
of its members, so long as the ICANN Board of Directors reasonably
determines that immediate temporary establishment of a specification
or policy on the subject is necessary to maintain the Stability
or Security (as defined in Section 3.1(d)(iv)(G)) of Registry Services
or the DNS (“Temporary Specification or Policies”).
Such proposed specification or policy shall be as narrowly tailored
as feasible to achieve those objectives. In establishing any specification
or policy under this provision, the ICANN Board of Directors shall
state the period of time for which the specification or policy is
temporarily adopted and shall immediately implement the Consensus
Policy development process set forth in ICANN's Bylaws. ICANN shall
also issue an advisory statement containing a detailed explanation
of its reasons for adopting the temporary specification or policy
and why the Board believes the specification or policy should receive
the consensus support of Internet stakeholders. If the period of
time for which the specification or policy is adopted exceeds 90
days, the ICANN Board shall reaffirm its temporary adoption every
90 days for a total period not to exceed one year, in order to maintain
such policy in effect until such time as it shall become a Consensus
Policy as described in Section 3.1(b) below. If during such one
year period, the temporary policy or specification does not become
a Consensus Policy meeting the standard set forth in Section 3.1(b)
below, Registry Operator shall no longer be required to comply with
or implement such temporary policy or specification.
(b) Consensus Policies.
(i) At all times during the term of this Agreement
and subject to the terms hereof, Registry Operator will fully comply
with and implement all Consensus Policies found at http://www.icann.org/general/consensus-policies.htm,
as of the Effective Date and as may in the future be developed and
adopted in accordance with ICANN’s Bylaws and as set forth
below.
(ii) "Consensus Policies" are those
specifications or policies established (1) pursuant to the procedure
set forth in ICANN's Bylaws and due process, and (2) covering those
topics listed in Section 3.1(b)(iv) below. The Consensus Policy
development process and procedure set forth in ICANN's Bylaws may
be revised from time to time in accordance with ICANN’s Bylaws,
and any Consensus Policy that is adopted through such a revised
process and covering those topics listed in Section 3.1(b)(iv) below
shall be considered a Consensus Policy for purposes of this Agreement.
(iii) For all purposes under this Agreement,
the policies identified at http://www.icann.org/general/consensus-policies.htm
shall be treated in the same manner and have the same effect as
"Consensus Policies."
(iv) Consensus Policies and the procedures by
which they are developed shall be designed to produce, to the extent
possible, a consensus of Internet stakeholders, including the operators
of gTLDs. Consensus Policies shall relate to one or more of the
following: (1) issues for which uniform or coordinated resolution
is reasonably necessary to facilitate interoperability, Security
and/or Stability of the Internet or DNS; (2) functional and performance
specifications for the provision of Registry Services (as defined
in Section 3.1(d)(iii) below); (3) Security and Stability of the
registry database for the TLD; (4) registry policies reasonably
necessary to implement Consensus Policies relating to registry operations
or registrars; or (5) resolution of disputes regarding the registration
of domain names (as opposed to the use of such domain names). Such
categories of issues referred to in the preceding sentence shall
include, without limitation:
(A) principles for allocation of registered names in the
TLD (e.g., first-come, first-served, timely renewal, holding period
after expiration);
(B) prohibitions on warehousing of or speculation in domain
names by registries or registrars;
(C) reservation of registered names in the TLD 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., establishment
of reservations of names from registration);
(D) maintenance of and access to accurate and up-to-date
information concerning domain name registrations;
(E) procedures to avoid disruptions of domain name registration
due to suspension or termination of operations by a registry operator
or a registrar, including procedures for allocation of responsibility
for serving registered domain names in a TLD affected by such
a suspension or termination; and
(F) resolution of disputes regarding whether particular
parties may register or maintain registration of particular domain
names.
(v) In addition to the other limitations on Consensus Policies,
they shall not:
(A) prescribe or limit the price of Registry Services;
(B) modify the standards for the consideration of proposed
Registry Services, including the definitions of Security and Stability
(set forth below) and the standards applied by ICANN;
(C) for two years following the Effective
Date, modify the procedure for the consideration of proposed Registry
Services;
(D) modify the terms or conditions for the renewal or termination
of this Agreement;
(E) modify ICANN’s obligations to Registry Operator
under Section 3.2 (a), (b), and (c);
(F) modify the limitations on Temporary Specifications
or Consensus Policies;
(G) modify the definition of Registry Services;
(H) modify the terms of Sections 7.2 below; or
(I) alter services that have been implemented
pursuant to Section 3.1(d) of this Agreement (unless justified
by compelling and just cause based on Security and Stability.
(vi) Registry Operator shall be afforded a reasonable period
of time following notice of the establishment of a Consensus Policy
or Temporary Specifications or Policies in which to comply with
such policy or specification, taking into account any urgency involved.
In the event of a conflict between Registry Services (as defined
in Section 3.1(d)(iii) below), on the one hand, and Consensus Policies
developed in accordance with this Section 3.1(b) or any Temporary
Specifications or Policies established pursuant to Section 3.1(a)(i)
above, on the other hand, the Consensus Polices or Temporary Specifications
or Policies shall control, notwithstanding any other provisions
contained within this Agreement.
(c) Handling of Registry Data.
(i) Data Escrow. Registry Operator shall establish
at its expense a data escrow or mirror site policy for the Registry
Data compiled by Registry Operator. Registry Data, as used in this
Agreement, shall mean the following: (1) data for domains sponsored
by all registrars, consisting of domain name, server name for each
nameserver, registrar id, updated date, creation date, expiration
date, status information, and DNSSEC related key material (if Registry
Operator implements DNSSEC); (2) data for nameservers sponsored
by all registrars consisting of server name, each IP address, registrar
id, updated date, creation date, expiration date, and status information;
(3) data for registrars sponsoring registered domains and nameservers,
consisting of registrar id, registrar address, registrar telephone
number, registrar e-mail address, whois server, referral URL, updated
date and the name, telephone number, and e-mail address of all the
registrar's administrative, billing, and technical contacts; (4)
domain name registrant data collected by the Registry Operator from
registrars as part of or following registration of a domain name;
and (5) the DNSSEC-related material necessary to sign the .info
zone (e.g., public and private portions of .info zone key-signing
keys and zone-signing keys)(if Registry Operator implements DNSSEC).
The escrow agent or mirror-site manager, and the obligations thereof,
shall be mutually agreed upon by ICANN and Registry Operator on
commercially reasonable standards that are technically and practically
sufficient to allow a successor registry operator to assume management
of the TLD. To this end, Registry Operator shall periodically deposit
into escrow all Registry Data on a schedule (not more frequently
than weekly for a complete set of Registry Data, and daily for incremental
updates) and in an electronic format mutually approved from time
to time by Registry Operator and ICANN, such approval not to be
unreasonably withheld by either party. In addition, Registry Operator
will deposit into escrow that data collected from registrars as
part of offering Registry Services introduced after the Effective
Date of this Agreement. The schedule, content, format, and procedure
for escrow deposits shall be as reasonably established by ICANN
from time to time, and as set forth in Appendix 1 hereto. Changes
to the schedule, content, format, and procedure 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 a Consensus Policy as outlined in Section 3.1(b) above. The escrow
shall be held under an agreement, substantially in the form of Appendix
2, as the same may be revised from time to time, among ICANN, Registry
Operator, and the escrow agent.
(ii) Personal Data. Registry Operator shall
notify registrars sponsoring registrations in the registry for the
TLD of the purposes for which Personal Data (as defined below) submitted
to Registry Operator by registrars, if any, is collected, the intended
recipients (or categories of recipients) of such Personal Data,
and the mechanism for access to and correction of such Personal
Data. Registry Operator shall take reasonable steps to protect Personal
Data from loss, misuse, unauthorized disclosure, alteration or destruction.
Registry Operator shall not use or authorize the use of Personal
Data in a way that is incompatible with the notice provided to registrars.
"Personal Data" shall refer to all data about any identified
or identifiable natural person.
(iii) Bulk Zone File Access. Registry Operator
shall provide bulk access to the zone files for the registry for
the TLD to ICANN on a continuous basis in the manner ICANN may reasonably
specify from time to time. Bulk access to the zone files shall be
provided to third parties on the terms set forth in the TLD zone
file access agreement reasonably established by ICANN, which initially
shall be in the form attached as Appendix 3 hereto. Changes to the
zone file access agreement may be made upon the mutual written consent
of ICANN and Registry Operator (which consent neither party shall
unreasonably withhold).
(iv) Monthly Reporting. Within 20 days following
the end of each calendar month, Registry Operator shall prepare
and deliver to ICANN a report providing such data and in the format
specified in Appendix 4. ICANN may audit Registry Operator's books
and records relating to data contained in monthly reports from time
to time upon reasonable advance written notice, provided that such
audits shall not exceed one per quarter. Any such audit shall be
at ICANN's cost, unless such audit shall reflect a material discrepancy
or discrepancies in the data provided by Registry Operator. In the
latter event, Registry Operator shall reimburse ICANN for all reasonable
costs and expenses associated with such audit, which reimbursement
shall be paid together with the next Registry-Level Fee payment
due following the date of transmittal of the cost statement for
such audit.
(v) Whois Service. Registry Operator shall provide
such whois data as set forth in Appendix 5.
(d) Registry Operations.
(i) Registration Restrictions. Registry Operator
shall reserve, and not register any TLD strings (i) appearing on
the list of reserved TLD strings attached as Appendix 6 hereto or
(ii) located at http://data.iana.org/TLD/tlds-alpha-by-domain.txt
for initial (i.e., other than renewal) registration at the second
level within the TLD.
(ii) Functional and Performance Specifications.
Functional and Performance Specifications for operation of the TLD
shall be as set forth in Appendix 7 hereto, and shall address without
limitation DNS services; operation of the shared registration system;
and nameserver operations. Registry Operator shall keep technical
and operational records sufficient to evidence compliance with such
specifications for at least one year, which records ICANN may audit
from time to time upon reasonable advance written notice, provided
that such audits shall not exceed one per quarter. Any such audit
shall be at ICANN's cost.
(iii) Registry Services. Registry Services are,
for purposes of this Agreement, defined as the following: (a) those
services that are both (i) operations of the registry critical to
the following tasks: the receipt of data from registrars concerning
registrations of domain names and name servers; provision to registrars
of status information relating to the zone servers for the TLD;
dissemination of TLD zone files; operation of the registry zone
servers; and dissemination of contact and other information concerning
domain name server registrations in the TLD as required by this
Agreement; and (ii) provided by the Registry Operator for the .info
registry as of the Effective Date as set forth on Appendix 9; (b)
other products or services that the Registry Operator is required
to provide because of the establishment of a Consensus Policy (as
defined in Section 3.1(b) above); (c) any other products or services
that only a registry operator is capable of providing, by reason
of its designation as the registry operator; and (d) material changes
to any Registry Service within the scope of (a), (b) or (c) above.
(iv) Process for Consideration of Proposed Registry
Services. Following written notification by Registry Operator to
ICANN that Registry Operator may make a change in a Registry Service
within the scope of the preceding paragraph:
(A) ICANN shall have 15 calendar days to make a “preliminary
determination” whether a Registry Service requires further
consideration by ICANN because it reasonably determines such Registry
Service: (i) could raise significant Security or Stability issues
or (ii) could raise significant competition issues.
(B) Registry Operator must provide sufficient information
at the time of notification to ICANN that it may implement such
a proposed Registry Service to enable ICANN to make an informed
“preliminary determination.” Information provided
by Registry Operator and marked “CONFIDENTIAL” shall
be treated as confidential by ICANN. Registry Operator will not
designate “CONFIDENTIAL” information necessary to
describe the purpose of the proposed Registry Service and the
effect on users of the DNS.
(C) ICANN may seek expert advice during the preliminary
determination period (from entities or persons subject to confidentiality
agreements) on the competition, Security or Stability implications
of the Registry Service in order to make its “preliminary
determination.” To the extent ICANN determines to disclose
confidential information to any such experts, it will provide
notice to Registry Operator of the identity of the expert(s) and
the information it intends to convey.
(D) If ICANN determines during the 15 calendar day “preliminary
determination” period that the proposed Registry Service,
does not raise significant Security or Stability (as defined below),
or competition issues, Registry Operator shall be free to deploy
it upon such a determination.
(E) In the event ICANN reasonably determines during the
15 calendar day “preliminary determination” period
that the Registry Service might raise significant competition
issues, ICANN shall refer the issue to the appropriate governmental
competition authority or authorities with jurisdiction over the
matter within five business days of making its determination,
or two business days following the expiration of such 15 day period,
whichever is earlier, with notice to Registry Operator. Any such
referral communication shall be posted on ICANN's website on the
date of transmittal. Following such referral, ICANN shall have
no further responsibility, and Registry Operator shall have no
further obligation to ICANN, with respect to any competition issues
relating to the Registry Service. If such a referral occurs, the
Registry Operator will not deploy the Registry Service until 45
calendar days following the referral, unless earlier cleared by
the referred governmental competition authority.
(F) In the event that ICANN reasonably determines during
the 15 calendar day “preliminary determination” period
that the proposed Registry Service might raise significant Stability
or Security issues (as defined below), ICANN will refer the proposal
to a Standing Panel of experts (as defined below) within five
business days of making its determination, or two business days
following the expiration of such 15 day period, whichever is earlier,
and simultaneously invite public comment on the proposal. The
Standing Panel shall have 45 calendar days from the referral to
prepare a written report regarding the proposed Registry Service’s
effect on Security or Stability (as defined below), which report
(along with a summary of any public comments) shall be forwarded
to the ICANN Board. The report shall set forward the opinions
of the Standing Panel, including, but not limited to, a detailed
statement of the analysis, reasons, and information upon which
the panel has relied in reaching their conclusions, along with
the response to any specific questions that were included in the
referral from ICANN staff. Upon ICANN’s referral to the
Standing Panel, Registry Operator may submit additional information
or analyses regarding the likely effect on Security or Stability
of the Registry Service.
(G) Upon its evaluation of the proposed Registry Service,
the Standing Panel will report on the likelihood and materiality
of the proposed Registry Service’s effects on Security or
Stability, including whether the proposed Registry Service creates
a reasonable risk of a meaningful adverse effect on Security or
Stability as defined below:
Security: For purposes of this Agreement, an effect on security
by the proposed Registry Service shall mean (1) the unauthorized
disclosure, alteration, insertion or destruction of Registry Data,
or (2) the unauthorized access to or disclosure of information
or resources on the Internet by systems operating in accordance
with all applicable standards.
Stability: For purposes of this Agreement, an effect on stability
shall mean that the proposed Registry Service (1) is not compliant
with applicable relevant standards that are authoritative and
published by a well-established, recognized and authoritative
standards body, such as relevant Standards-Track or Best Current
Practice RFCs sponsored by the IETF or (2) creates a condition
that adversely affects the throughput, response time, consistency
or coherence of responses to Internet servers or end systems,
operating in accordance with applicable relevant standards that
are authoritative and published by a well-established, recognized
and authoritative standards body, such as relevant Standards-Track
or Best Current Practice RFCs and relying on Registry Operator's
delegation information or provisioning services.
(H) Following receipt of the Standing Panel’s report,
which will be posted (with appropriate confidentiality redactions
made after consultation with Registry Operator) and available
for public comment, the ICANN Board will have 30 calendar days
to reach a decision. In the event the ICANN Board reasonably determines
that the proposed Registry Service creates a reasonable risk of
a meaningful adverse effect on Stability or Security, Registry
Operator will not offer the proposed Registry Service. An unredacted
version of the Standing Panel’s report shall be provided
to Registry Operator upon the posting of the report. The Registry
Operator may respond to the report of the Standing Panel or otherwise
submit to the ICANN Board additional information or analyses regarding
the likely effect on Security or Stability of the Registry Service.
(I) The Standing Panel shall consist of a total of 20
persons expert in the design, management and implementation of
the complex systems and standards-protocols utilized in the Internet
infrastructure and DNS (the “Standing Panel”). The
members of the Standing Panel will be selected by its Chair. The
Chair of the Standing Panel will be a person who is agreeable
to both ICANN and the registry constituency of the supporting
organization then responsible for generic top level domain registry
policies. All members of the Standing Panel and the Chair shall
execute an agreement requiring that they shall consider the issues
before the panel neutrally and according to the definitions of
Security and Stability. For each matter referred to the Standing
Panel, the Chair shall select no more than five members from the
Standing Panel to evaluate the referred matter, none of which
shall have an existing competitive, financial, or legal conflict
of interest, and with due regard to the particular technical issues
raised by the referral.
(e) Fees and Payments. Registry Operator shall pay the
Registry-Level Fees to ICANN on a quarterly basis in accordance with
Section 7.2 hereof.
(f) Traffic Data. Nothing in this Agreement shall
preclude Registry Operator from making commercial use of, or collecting,
traffic data regarding domain names or non-existent domain names for
purposes such as, without limitation, the determination of the availability
and health of the Internet, pinpointing specific points of failure,
characterizing attacks and misconfigurations, identifying compromised
networks and hosts and promoting the sale of domain names, provided
however, that such use does not permit Registry Operator to disclose
domain name registrant or end-user information or other Personal Data
as defined in Section 3.1(c)(ii) that it collects through providing
domain name registration services for any purpose not otherwise authorized
by this agreement. In this regard, in the event the TLD registry
is a “thick” registry model, the traffic data that may
be accessible to and used by Registry Operator shall be limited to
the data that would be accessible to a registry operated under a “thin”
registry model. The process for the introduction of new Registry
Services shall not apply to such traffic data. Nothing contained
in this section 3.1(f) shall be deemed to constitute consent or acquiescence
by ICANN to an introduction by Registry Operator of a service employing
a universal wildcard function. To the extent that traffic data subject
to this provision is made available, access shall be on terms that
are nondiscriminatory.
(g) Cooperation. The parties agree to cooperate with
each other and share data as necessary to accomplish the terms of
this Agreement.
(h) Affiliate Relationships. During the Term of this
Agreement, no ICANN-accredited registrar, registry operator designated
by ICANN (other than Afilias) or any affiliate of either of them shall
have in excess of 11.2% voting control over Registry Operator; provided,
however, that the restrictions imposed by this paragraph shall be
of no further force or effect upon the occurrence of either of the
following events: (i) Registry Operator consummates an initial
public offering of equity securities in the United States or any other
jurisdiction, or (ii) substantially all of the assets or outstanding
equity capital of Registry Operator are acquired by a third party.
For purposes of this section, the term “affiliate” shall
mean an entity that, by means of equity ownership or any voting agreement
or contractual relationship, controls, is controlled by, or is under
common control with, another entity.
Section 3.2 Covenants of ICANN. ICANN covenants and agrees with
Registry Operator as follows:
(a) Open and Transparent. Consistent with ICANN’s
expressed mission and core values, ICANN shall operate in an open
and transparent manner.
(b) Equitable Treatment. ICANN shall not apply standards,
policies, procedures or practices arbitrarily, unjustifiably, or inequitably
and shall not single out Registry Operator for disparate treatment
unless justified by substantial and reasonable cause.
(c) TLD Zone Servers. In the event and to the extent
that ICANN is authorized to set policy with regard to an authoritative
root server system, it will use best efforts to ensure that (i) the
authoritative root will point to the TLD zone servers designated by
Registry Operator for the Registry TLD throughout the Term of this
Agreement; and (ii) any changes to the TLD zone server designation
submitted to ICANN by Registry Operator will be implemented by ICANN
within seven days of submission.
(d) Nameserver Changes. Registry Operator may request
changes in the nameserver delegation for the Registry TLD. Any such
request must be made in a format, and otherwise meet technical requirements,
specified from time to time by ICANN. ICANN will use commercially
reasonable efforts to have such requests implemented in the Authoritative
Root-Server System within seven calendar days of the submission.
(e) Root-zone Information Publication. ICANN's publication
of root-zone contact information for the Registry TLD will include
Registry Operator and its administrative and technical contacts. Any
request to modify the contact information for the Registry Operator
must be made in the format specified from time to time by ICANN.
ARTICLE IV TERM OF AGREEMENT
Section 4.1 Term. The initial term of this Agreement shall expire
on December 31, 2012, the “Expiration Date,” as extended
by any renewal terms.
Section 4.2 Renewal. This Agreement shall be renewed upon the
expiration of the term set forth in Section 4.1 above and each later
term, unless the following has occurred: (i) following notice of breach
to Registry Operator in accordance with Section 6.1 and failure to cure
such breach within the time period prescribed in Section 6.1, an arbitrator
or court has determined that Registry Operator has been in fundamental
and material breach of Registry Operator’s obligations set forth
in Sections 3.1(a), (b), (d) or (e); Section 5.2 and (ii) following
the final decision of such arbitrator or court, Registry Operator has
failed to comply within ten days with the decision of the arbitrator
or court, or within such other time period as may be prescribed by the
arbitrator or court. Upon renewal, in the event that the terms of this
Agreement are not similar to the terms generally in effect in the Registry
Agreements of the 5 most reasonably comparable gTLDs (provided however
that if less than five gTLDs are reasonably comparable, then comparison
shall be made with such lesser number, and .biz, .com, .net and .org
are hereby deemed comparable), renewal shall be upon terms reasonably
necessary to render the terms of this Agreement similar to such terms
in the Registry Agreements for those other gTLDs. The preceding sentence,
however, shall not apply to the terms of this Agreement regarding the
standards for the consideration of proposed Registry Services, including
the definitions of Security and Stability and the standards applied
by ICANN in the consideration process; the terms or conditions for the
renewal or termination of this Agreement; ICANN’s obligation to
Registry Operator under Section 3.2(a), (b) and (c); the limitations
on Consensus Policies or Temporary Specifications or Policies; or the
definition of Registry Services. In addition, upon renewal, registry
fees payable to ICANN may be reasonably modified so long as any increase
in such fees shall not exceed the average of the percentage increase
in registry fees for the five most reasonably comparable TLDs (or such
lesser number as provided above) during the prior three year period.
Section 4.3 Changes. While this Agreement is in effect, the
parties agree to engage in good faith negotiations at regular intervals
(at least once every three calendar years following the Effective Date)
regarding possible changes to the terms of the Agreement, including
to Section 7.2 regarding fees and payments to ICANN. In addition, ICANN
shall consider and discuss with Registry Operator other appropriate
changes to pricing and related terms under the Agreement in the event
ICANN shall obtain further independent data from professional experts
providing analysis of the pricing of domain name registrations and competitive
market considerations. The failure by Registry Operator to agree to
an increase in registry fees or other terms shall not constitute a violation
of this provision.
Section 4.4 Failure to Perform in Good Faith. In the event Registry
Operator shall have been repeatedly and willfully in fundamental and
material breach of Registry Operator’s obligations set forth in
Sections 3.1(a), (b), (d) or (e); Section 5.2, and arbitrators in accordance
with Section 5.1(b) of this Agreement repeatedly have found Registry
Operator to have been in fundamental and material breach of this Agreement,
including in at least three separate awards, then the arbitrators shall
award such punitive, exemplary or other damages as they may believe
appropriate under the circumstances.
ARTICLE V DISPUTE RESOLUTION
Section 5.1 Resolution of Disputes.
(a) Cooperative Engagement. In the event of a disagreement
between Registry Operator and ICANN arising under or out of this Agreement,
either party may by notice to the other invoke the dispute resolution
provisions of this Article V. Provided, however, that before either
party may initiate arbitration as provided in Section 5.1(b) below,
ICANN and Registry Operator must attempt to resolve the dispute by
cooperative engagement as set forth in this Section 5.1(a). If either
party provides written notice to the other demanding cooperative engagement
as set forth in this Section 5.1(a), then each party will, within
seven calendar days after such written notice is deemed received in
accordance with Section 8.6 hereof, designate a single executive officer
as its representative under this Section 5.1(a) with full authority
to act on such party's behalf to resolve the dispute. The designated
representatives shall, within 2 business days after being designated,
confer by telephone or in person to attempt to resolve the dispute.
If they are not able to resolve the dispute during such telephone
conference or meeting, they shall further meet in person at a location
reasonably designated by ICANN within 7 calendar days after such initial
telephone conference or meeting, at which meeting the parties shall
attempt to reach a definitive resolution. The time schedule and process
set forth in this Section 5.1(a) may be modified with respect to any
dispute, but only if both parties agree to a revised time schedule
or process in writing in advance. Settlement communications within
the scope of this paragraph shall be inadmissible in any arbitration
or litigation between the parties.
(b) Arbitration. Disputes arising under or in connection
with this Agreement, including requests for specific performance,
shall be resolved through binding arbitration conducted as provided
in this Section 5.1(b) pursuant to the rules of the International
Court of Arbitration of the International Chamber of Commerce ("ICC").
The arbitration shall be conducted in the English language and shall
occur in Los Angeles County, California, USA only following the failure
to resolve the dispute pursuant to cooperative engagement discussions
as set forth in Section 5.1(a) above. 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 ICC. The prevailing party in the arbitration shall have the
right to recover its costs and reasonable attorneys' fees, which the
arbitrators shall include in their awards. Any party that seeks to
confirm or vacate an arbitration award issued under this Section 5.1(b)
may do so only pursuant to the applicable arbitration statutes. In
any litigation involving ICANN concerning this Agreement, jurisdiction
and exclusive venue for such litigation shall be in a court located
in Los Angeles County, 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
arbitration, the parties shall have the right to seek a temporary
stay or injunctive relief from the arbitration panel or a court, which
shall not be a waiver of this agreement to arbitrate.
Section 5.2 Specific Performance. Registry Operator and ICANN
agree that irreparable damage could occur if any of the provisions of
this Agreement was not performed in accordance with its specific terms.
Accordingly, the parties agree that they each shall be entitled to seek
from the arbitrators specific performance of the terms of this Agreement
(in addition to any other remedy to which each party is entitled).
Section 5.3 Limitation of Liability. ICANN's aggregate monetary
liability for violations of this Agreement shall not exceed the amount
of Registry-Level Fees paid by Registry Operator to ICANN within the
preceding twelve-month period pursuant to this Agreement. Registry Operator's
aggregate monetary liability to ICANN for violations of this Agreement
shall be limited to fees, and monetary penalties, if any, due and owing
to ICANN under this Agreement within the preceding twelve-month period.
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 provided pursuant to Section
4.4 of this Agreement. EXCEPT AS OTHERWISE EXPRESSLY 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.
ARTICLE VI TERMINATION PROVISIONS
Section 6.1 Termination by ICANN. ICANN may terminate this Agreement
if and only if: (i) Registry Operator fails to cure any fundamental
and material breach of Registry Operator’s obligations set forth
in Sections 3.1(a), (b), (d) or (e); or Section 5.2 within thirty (30)
calendar days after ICANN gives Registry Operator written notice of
the breach, which notice shall include with specificity the details
of the alleged breach; and (ii) (a) an arbitrator or court has finally
determined that Registry Operator is, or was, in fundamental and material
breach and failed to cure such breach within the prescribed time period
and (b) following the decision of such arbitrator or court, Registry
Operator has failed to comply with the decision of the arbitrator or
court.
Section 6.2 Bankruptcy. This Agreement shall automatically terminate
in the event Registry Operator shall voluntarily or involuntarily be
subject to bankruptcy proceedings, which proceedings are not dismissed
within 60 days.
Section 6.3 Transition of Registry upon Termination of Agreement.
Upon any termination of this Agreement as provided in Sections 6.1 and
6.2, the parties agree to work cooperatively to facilitate and implement
the transition of the registry for the TLD in accordance with this Section
6.3. Registry Operator shall agree to provide ICANN or any successor
registry authority that may be designated for the TLD with any data
regarding operations of the registry for the TLD necessary to maintain
operations that may be reasonably requested in addition to that data
escrowed in accordance with Section 3.1(c)(i) hereof.
Section 6.4 Rights in Data. Registry Operator shall not be entitled
to claim any intellectual property rights in Registry Data. In the event
that Registry Data is released from escrow as set forth in Section 3.1(c)(i),
rights, if any, held by Registry Operator in the data shall automatically
be licensed on a non-exclusive, irrevocable, royalty-free, paid-up basis
to ICANN or to a party designated in writing by ICANN.
Section 6.5 No Reimbursement. Any and all expenditures, capital
investments or other investments made by Registry Operator in connection
with this Agreement shall be at Registry Operator’s own risk and
ICANN shall have no obligation to reimburse Registry Operator for any
such expense, capital expenditure or investment. Registry Operator shall
not be required to make any payments to a successor registry operator
by reason of registry fees paid to Registry Operator prior to the effective
date of (i) any termination or expiration of this Agreement or (ii)
transition of the registry, unless any delay in transition of the registry
to a successor operator shall be due to the actions of Registry Operator.
ARTICLE VII SPECIAL PROVISIONS
Section 7.1 Registry-Registrar Agreement.
(a) Access to Registry Services. Registry Operator shall
make access to Registry Services, including the shared registration
system, available to all ICANN-accredited registrars, subject to the
terms of the Registry-Registrar Agreement attached as Appendix 8 hereto.
Registry Operator shall provide all ICANN-accredited registrars following
execution of the Registry-Registrar Agreement, provided registrars
are in compliance with such agreement, operational access to Registry
Services, including the shared registration system for the TLD. Such
nondiscriminatory access shall include without limitation the following:
(i) All registrars (including any registrar
affiliated with Registry Operator, if any) can connect to the shared
registration system gateway for the TLD via the Internet by utilizing
the same maximum number of IP addresses and SSL certificate authentication;
(ii) Registry Operator has made the current
version of the registrar toolkit software accessible to all registrars
and has made any updates available to all registrars on the same
schedule;
(iii) All registrars have equivalent access
to customer support personnel via telephone, e-mail and Registry
Operator's website;
(iv) All registrars have equivalent access to
registry resources to resolve registry/registrar or registrar/registrar
disputes and technical and/or administrative customer service issues;
(v) All registrars have equivalent access to
data generated by Registry Operator to reconcile their registration
activities from Registry Operator's Web and ftp servers;
(vi) All registrars may perform basic automated
registrar account management functions using the same registrar
tool made available to all registrars by Registry Operator; and
(vii) The shared registration system does not
include, for purposes of providing discriminatory access, any algorithms
or protocols that differentiate among registrars with respect to
functionality, including database access, system priorities and
overall performance.
Such Registry-Registrar Agreement may be revised by Registry Operator
from time to time, provided however, that any such revisions must
be approved in advance by ICANN.
(b) Registry Operator Shall Not Act as Own Registrar.
Registry Operator shall not act as a registrar with respect to the
TLD. This shall not preclude Registry Operator from registering names
within the TLD to itself (i) through a request made to an ICANN-accredited
registrar, or (ii) as otherwise permitted by ICANN. Without limiting
the generality of the foregoing, the parties agree that:
(i) Registry Operator may register the domain names listed on
Appendix 6 (Part E.A.) for its own use in operating the registry
and providing Registry Services under this Agreement, provided the
total number of domain names listed on Appendix 6.E. 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. Appendix 6 (Part E.A.) may be revised upon the written
notice by Registry Operator to ICANN and written consent by ICANN,
which shall not be unreasonably withheld;
(ii) Registry Operator may register the domain names listed on
Appendix 6 (Part E.B.) for its own use, provided that the total
number of domain names listed on Appendix 6.E. at any time does
not exceed 5,000. 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
6 (Part E.B) may be revised upon written notice by Registry Operator
to ICANN and written consent by ICANN, which shall not be unreasonably
withheld; and
(iii) 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.
(c) Restrictions on Acquisition of Ownership or Controlling
Interest in Registrar. Registry Operator shall not acquire, directly
or indirectly, control of, or a greater than fifteen percent ownership
interest in, any ICANN-accredited registrar.
Section 7.2 Fees to be Paid to ICANN.
(a) Registry-Level Transaction Fee.
(i) Commencing on January 1, 2007, Registry Operator shall
pay ICANN a Registry-Level Fee. Subject to Sections 7.2(a)(ii)
and (iii) below, such fee shall equal the Transaction Fee set forth
in the table below multiplied by the number of annual increments
of an initial or renewal domain name registration (including renewals
associated with transfers from one ICANN-accredited registrar to
another) during the applicable calendar quarter:
YEAR TRANSACTION
FEE
2007 US$0.15
2008 US$0.15
2009 US$0.20
2010 US$0.20
2011 US$0.25
2012 US$0.25
(ii) Commencing in 2009, for calendar quarters during the Term
for which the average annual price of registrations during the quarter
is between US$3.01 and US$4.99, the Registry-Level Fee shall be
the lesser of (a) the transaction fee provided in 7.2.a.1 or (b)
US$0.15 plus US $0.01 for each increase by US$0.20 above $3.01 in
the average price of domain name registrations, multiplied by the
number of annual increments of an initial or renewal domain name
registration during such quarter (including renewals associated
with transfers from one ICANN-accredited registrar to another),
(iii) Following two consecutive calendar quarters during which
the average annual price of registrations during the quarter is
US$3.00 or less (disregarding for these purposes any registry-offered
discounts or marketing incentives having the short term effect of
lowering the average annual price of domain name registrations),
Registry Operator may request the parties enter good-faith negotiations
to review and renegotiate the fee obligation considering all relevant
factors including but not limited to Registry Operator’s business
needs as well as ICANN’s financial requirements.
(b) Payment Schedule. Registry Operator shall pay the
Registry-Level Fees specified in Section 7.2(a) and Section 7.2(c),
if applicable, by the 20th day following the end of each calendar
quarter (i.e., on April 20, July 20, October 20 and January 20 for
the calendar quarters ending March 31, June 30, September 30 and December
31) of the year to an account designated by ICANN.
(c) Variable Registry-Level Fee. For fiscal quarters
in which ICANN does not collect a variable accreditation fee from
all registrars, upon receipt of written notice from ICANN, Registry
Operator shall pay ICANN a Variable Registry-Level Fee. The fee will
be calculated by ICANN, paid to ICANN by the Registry Operator in
accordance with the Payment Schedule in Section 7.2(b), and the Registry
Operator will invoice and collect the fees from the registrars who
are party to a Registry-Registrar Agreement with Registry Operator.
The fee will consist of two components; each component will be calculated
by ICANN for each registrar:
(i) The transactional component of the Variable Registry-Level
Fee shall be specified by ICANN in accordance with the budget adopted
by the ICANN Board of Directors for each fiscal year but shall not
exceed US$0.25.
(ii) The per-registrar component of the Variable Registry-Level
Fee shall be specified by ICANN in accordance with the budget adopted
by the ICANN Board of Directors for each fiscal year, but the sum
of the per-registrar fees calculated for all registrars shall not
exceed the total Per- Registrar Variable funding established pursuant
to the approved 2004- 2005 ICANN Budget.
Provided, however, that Registry Operator shall only
be required to pay the fees set forth in paragraph (c) above, in the
event that ICANN elects to collect the Variable Registry-Level Fee
from all ICANN-Accredited Registrars. For the avoidance of doubt,
Registry Operator shall not be required to collect the per-registrar
component of the Variable Registry-Level Fee from any registrar unless
it is required to do so for all registrars.
(d) Interest on Late Payments. For any payments thirty
days or more overdue pursuant to Section 7.2(a), Registry Operator
shall pay interest on late payments at the rate of 1.5% per month
or, if less, the maximum rate permitted by applicable law.
Section 7.3. Pricing for Domain Name Registrations and Registry
Services.
(a) Pricing. From the Effective Date through six (6)
months following the Effective Date, the price to ICANN-accredited
registrars for new and renewal domain name registrations and for transferring
a domain name registration from one ICANN-accredited registrar to
another, shall not exceed a total fee of US$6.00 (the “Maximum
Service Fee”). Commencing on 1 January 2007, the Maximum Service
Fee charged during a calendar year for each annual increment of a
new and renewal domain name registration and for transferring a domain
name registration from one ICANN-accredited registrar to another,
may not exceed the Maximum Service Fee during the preceding calendar
year multiplied by 1.10. The same Service Fee shall be charged to
all ICANN-accredited registrars for new and renewal domain name registrations.
Volume discounts and marketing support and incentive programs may
be made if the same opportunities to qualify for those discounts and
marketing support and incentive programs is available to all ICANN-accredited
registrars.
(b) Adjustments to Pricing for Domain Name Registrations.
Registry Operator shall provide no less than six months prior notice
in advance of any price increase for domain name registrations and
shall continue to offer domain name registrations for periods of up
to ten years. Registry Operator is not required to give notice of
the imposition of the Variable Registry-Level Fee set forth in Section
7.2(c).
ARTICLE VIII MISCELLANEOUS
Section 8.1 Indemnification of ICANN.
a) Registry Operator shall indemnify, defend,
and hold harmless ICANN (including its directors, officers, employees,
and agents) from and against any and all third-party claims, damages,
liabilities, costs, and expenses, including reasonable legal fees
and expenses, arising out of or relating to: (a) ICANN's reliance,
in connection with its decision to delegate the TLD to Registry Operator
or to enter into this Agreement, on information provided by Registry
Operator in its application for the TLD; (b) Registry Operator’s
establishment or operation of the registry for the TLD; (c) Registry
Operator’s provision of Registry Services; (d) collection or
handling of Personal Data by Registry Operator; (e) any dispute concerning
registration of a domain name within the domain of the TLD for the
registry; and (f) duties and obligations of Registry Operator in operating
the registry for the TLD; provided that Registry Operator shall not
be obligated to indemnify, defend, or hold harmless ICANN to the extent
the claim, damage, liability, cost, or expense arose due to a breach
by ICANN of any obligation contained in this Agreement. For avoidance
of doubt, nothing in this Section 8.1 shall be deemed to require Registry
Operator to reimburse or otherwise indemnify ICANN for the costs associated
with the negotiation or execution of this Agreement, or with the monitoring
or management of the parties' respective obligations under this Agreement.
Further, this section shall not apply to any request for attorney's
fees in connection with any litigation or arbitration between or among
the parties.
b) For any claims by ICANN for indemnification
whereby multiple registry operators (including Registry Operator)
have engaged in the actions or omissions that gave rise to the claim,
Registry Operator’s aggregate liability to indemnify ICANN with
respect to such claim shall be limited to a percentage of ICANN’s
total claim, calculated by dividing the number of total domain names
under registration with Registry Operator within the TLD (which names
under registration shall be calculated consistently with Section 7.2
hereof for any applicable quarter) by the total number of domain names
under registration within all TLDs for which the registry operators
thereof that are engaging in the same acts or omissions giving rise
to such claim. For the avoidance of doubt, in the event that a registry
operator is engaged in the same acts or omissions giving rise to the
claims above, but such registry operator(s) do not have the same or
similar indemnification obligations to ICANN at set forth in 8.1(a)
above, the number of domains under management by such registry operator(s)
shall nonetheless be included in the calculation in the preceding
sentence.
Section 8.2 Indemnification Procedures. If any third-party
claim is commenced that is indemnified under Section 8.1 above, notice
thereof shall be given to ICANN as promptly as practicable. Registry
Operator shall be entitled, if it so elects, in a notice promptly delivered
to ICANN, to immediately take control of the defense and investigation
of such claim and to employ and engage attorneys reasonably acceptable
to the indemnified party to handle and defend the same, at the indemnifying
party's sole cost and expense, provided that in all events ICANN shall
be entitled to control at its sole cost and expense the litigation of
issues concerning the validity or interpretation of ICANN policies or
conduct. ICANN shall cooperate, at its own cost, in all reasonable respects
with Registry Operator and its attorneys in the investigation, trial,
and defense of such claim and any appeal arising there from; provided,
however, that the indemnified party may, at its own cost and expense,
participate, through its attorneys or otherwise, in such investigation,
trial and defense of such claim and any appeal arising there from. No
settlement of a claim that involves a remedy affecting ICANN other than
the payment of money in an amount that is indemnified shall be entered
into without the consent of ICANN. If Registry Operator does not assume
full control over the defense of a claim subject to such defense in
accordance with this Section, Registry Operator may participate in such
defense, at its sole cost and expense, and ICANN shall have the right
to defend the claim in such manner as it may deem appropriate, at the
cost and expense of Registry Operator.
Section 8.3 No Offset. All payments due under this Agreement
shall be made in a timely manner throughout the term of this Agreement
and notwithstanding the pendency of any dispute (monetary or otherwise)
between Registry Operator and ICANN.
Section 8.4 Use of ICANN Name and Logo. ICANN grants to Registry
Operator a non-exclusive royalty-free license to state that it is designated
by ICANN as the Registry Operator for the Registry TLD and to use a
logo specified by ICANN to signify that Registry Operator is an ICANN-designated
registry authority. This license may not be assigned or sublicensed
by Registry Operator.
Section 8.5 Assignment and Subcontracting. Any assignment of
this Agreement shall be effective only upon written agreement by the
assignee with the other party to assume the assigning party's obligations
under this Agreement. Moreover, neither party may assign this Agreement
without the prior written approval of the other party, which approval
shall not be unreasonably withheld. Notwithstanding the foregoing, ICANN
may assign this Agreement (i) in conjunction with a reorganization or
re-incorporation of ICANN, to another nonprofit corporation organized
for the same or substantially the same purposes, or (ii) as may be required
pursuant to the terms of that certain Memorandum of Understanding between
ICANN and the U.S. Department of Commerce, as the same may be amended
from time to time. Registry Operator shall not subcontract portions
of the technical operations of the Registry TLD accounting for more
than 80% of the aggregate of all Registry TLD operations without ICANN's
prior consent in writing. Any such party to whom technical operations
may be subcontracted shall comply with Registry Operator’s data
escrow obligations under Appendix 2. When ICANN's consent to any subcontracting
of technical operations under this Section 8.5 is requested, ICANN shall
use commercially reasonable best efforts to respond within fifteen business
days of the receipt of the request from Registry Operator, accompanied
by all supporting information and documentation necessary for ICANN
to evaluate the request. Such consent by ICANN shall not be unreasonably
withheld.
Section 8.6 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 or failure to enforce any of the
provisions hereof 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.
Section 8.7 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 registered name holder.
Section 8.8 Notices, Designations, and Specifications. All notices
to be given under or in relation to this Agreement shall be given either
(i) in writing at the address of the appropriate party as set forth
below or (ii) via facsimile or electronic mail as provided below, unless
that party has given a notice of change of postal or email address,
or facsimile number, as provided in this agreement. Any change in the
contact information for notice below shall be given by the party within
30 days of such change. Any notice required by this Agreement shall
be deemed to have been properly given (i) if in paper form, when delivered
in person or via courier service with confirmation of receipt or (ii)
if via facsimile or by electronic mail, upon confirmation of receipt
by the recipient's facsimile machine or email server. Whenever this
Agreement shall specify a URL address for certain information, Registry
Operator shall be deemed to have been given notice of any such information
when electronically posted at the designated URL. In the event other
means of notice shall become practically achievable, such as notice
via a secure website, the parties shall work together to implement such
notice means under this Agreement.
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: President and CEO
With a Required Copy to: General Counsel
Email: (As specified from time to time.)
If to Registry Operator, addressed to:
Afilias Limited
Office 110, 52 Broomhill Road
Tallaght
Dublin24, Ireland
Attn: CEO
With a Required Copy to: General Counsel
Telephone: +353.1.431.0511
Facsimile: +353.1.431.0557
Email: (As specified from time to time.)
Section 8.9 Language. Notices, designations, determinations,
and specifications made under this Agreement shall be in the English
language.
Section 8.10 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.
Section 8.11 Entire Agreement. This Agreement (including its
Appendices, which form a part of it) constitutes the entire agreement
of the parties hereto pertaining to the operation of the TLD and supersedes
all prior agreements, understandings, negotiations and discussions,
whether oral or written, between the parties on that subject. In the
event of a conflict between the provisions in the body of this Agreement
and any provision in its Appendices, the provisions in the body of the
Agreement shall control.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives.
INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS
By: _____________________________
Dr. Paul Twomey
President and CEO
Date:
AFILIAS LIMITED
By: _____________________________
M. Scott Hemphill
Vice President & General Counsel
Date:
Comments concerning the layout, construction and functionality
of this site
should be sent to webmaster@icann.org.
Page Updated 29-Dec-2006
(c) 2001, 2006 The Internet
Corporation for Assigned Names and Numbers.
All rights reserved.
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