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.jobs Registry
Agreement
(5 May 2005)
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SPONSORED TLD REGISTRY AGREEMENT
This SPONSORED TLD REGISTRY AGREEMENT (this "Agreement") is
entered into as of 5 May 2005 by and between Internet Corporation for
Assigned Names and Numbers, a California nonprofit public benefit
corporation, and Employ Media, a Delaware limited liability company.
ARTICLE I Introduction
Section 1.1 Effective
Date. The Effective Date for purposes of this Agreement shall be
the date on which the TLD (as defined below) is delegated within the
authoritative root-server system to nameservers designated by
Registry Operator.
Section 1.2 Top-Level
Domain. The Top-Level Domain to which this Agreement applies is
.jobs ("TLD").
Section 1.3 Designation
as Registry Operator. Upon the Effective Date, until the
Expiration Date as defined in Section 4.1 hereof, ICANN hereby
designates Employ Media LLC as the sole registry operator for the
sponsored TLD ("Registry Operator"). ICANN hereby
delegates to Registry Operator the authority to develop policies for
the sponsored TLD consistent with the requirements of Section 3.1(g)
of this Agreement and Appendix S.
ARTICLE II Representations and Warranties
Section 2.1 Registry Operator's Representations and Warranties.
(a) Organization; Due Authorization and Execution. Registry
Operator is a limited liability company, duly organized, validly existing and
in good standing under the laws of Delaware, 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 Application Process. The factual
statements contained in Registry Operator's application for the TLD, or made
by Registry Operator in negotiating this Agreement, were true and correct in
all material respects at the time the application was submitted to ICANN and
are true and correct in all material respects as of the date this Agreement
is entered into set forth above.
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. 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) 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; (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 TLD zone (e.g., public and
private portions of TLD zone key-signing keys and zone-signing keys). 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 escrow shall be maintained, at Registry Operator's expense,
by a reputable escrow agent mutually approved by Registry Operator and ICANN,
such approval also not to be unreasonably withheld by either party. 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 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.
(A) Registry Operator shall establish policies, in conformity with the
charter, for the naming conventions within the sponsored TLD and for
requirements of registration, consistent with Section
3.1(g).
(B) Registry Operator shall be responsible for establishing procedures
for the enforcement of applicable charter restrictions on registration within
the TLD, as described in more detail in the sponsored TLD charter included in
Appendix S, which Appendix shall also
include the description of the sponsored community and the delegated
authority with respect thereto.
(C) 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 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; (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) Cooperation.
Registry Operator shall cooperate with ICANN in efforts to promote
and facilitate the security and stability of the Internet and
maintain a reliable and stable DNS. To this end, Registry Operator
shall provide such data and assistance to ICANN as it may reasonably
request from time to time.
(g) General
Obligations of Registry Operator to Sponsored Community. During
the Term of this Agreement, Registry Operator shall, in developing or
enforcing standards, policies, procedures, or practices with respect
to the TLD, as to which obligations ICANN acknowledges Registry
Operator has engaged The Society for Human Resource Management as the
sponsoring organization for the TLD, as set forth in
Appendix S:
(i) publish
such standards, policies, procedures, and practices so they are
available to members of the sponsored TLD community;
(ii) conduct
its policy-development activities in a manner that reasonably
provides opportunities for members of the sponsored TLD community to
discuss and participate in the development of such standards,
policies, procedures, or practices;
(iii) maintain
the representativeness of its policy-development and implementation
process by establishing procedures that facilitate participation by a
broad cross-section of the sponsored TLD community; and
(iv) ensure,
through published procedures, adequate opportunities for members of
the sponsored TLD community to submit their views on and objections
to the establishment or revision of standards, policies, procedures,
and practices or the manner in which standards, policies, procedures,
and practices are enforced.
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 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 be ten years from the
Effective Date (the "Expiration Date"). Registry Operator agrees
that upon the earlier of (i) termination of this Agreement by ICANN
in accordance with
Article VI below or (ii) the Expiration Date, it
will cease to be the Registry Operator for the TLD, unless, with
respect to termination under the foregoing clause (ii), Registry
Operator and ICANN agree on terms for renewal of the Agreement as set
forth in
Section 4.2 below prior to the Expiration Date.
Section 4.2 Renewal.
This Agreement shall be renewed upon the expiration of the initial
term set forth in
Section 4.1 above, and following any renewal term,
unless: (i) 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 or
Section 7.3
despite notice and an opportunity to
cure in accordance with
Article VI hereof and (ii) following the
decision of such arbitrator or court, Registry Operator has failed to
correct the conduct found to constitute such breach. Provided,
however, that Registry Operator agrees that any renewal of this
Agreement is conditioned on its negotiation of renewal terms
reasonably acceptable to ICANN, including, but not limited to,
provisions relating to registry-level fees.
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.
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 or
Section 7.3, 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 an 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
Section 7.2 of this Agreement. Registry Operator's
aggregate monetary liability to ICANN for violations of this
Agreement shall be limited to fees and monetary sanctions due and
owing to ICANN under this Agreement. In no event shall either party
be liable for special, indirect, incidental, punitive, exemplary, or
consequential damages arising out of or in connection with this
Agreement or the performance or nonperformance of obligations
undertaken in this Agreement, except as 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 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);
Section 5.2 or
Section 7.3
despite notice and an opportunity to cure in
accordance with
Section 6.3
within thirty calendar days after ICANN
gives Registry Operator written notice of the breach, which notice
shall include with specificity the details of the alleged breach.
Section 6.2 Bankruptcy.
This Agreement shall automatically terminate in the event Registry
Operator shall voluntarily or involuntarily be subject to bankruptcy
proceedings.
Section 6.3 Notice;
Opportunity to Cure. This Agreement may be terminated in the
circumstances described in
Section 6.1 above only following written
notice to Registry Operator and Registry Operator's failure to cure
in the prescribed time period, with Registry Operator being given an
opportunity during that time to initiate arbitration under
Section 5.1(b)
to determine the appropriateness of termination under this
Agreement. In the event Registry Operator initiates arbitration
concerning the appropriateness of termination by ICANN, Registry
Operator 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
decision or until the arbitration panel has granted an ICANN request
for lifting of the stay.
Section 6.4 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 6.4. 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 6.5 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 6.6 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. 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. The criteria for the selection of
registrars shall be as set forth in
Appendix S. Such nondiscriminatory
access shall include without limitation the following:
(i) All
registrars (including any registrar affiliated with Registry
Operator) 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 the same level of access to customer support
personnel via telephone, e-mail and Registry Operator's website;
(iv) All
registrars have the same level of access to registry resources to
resolve registry/registrar or registrar/registrar disputes and
technical and/or administrative customer service issues;
(v) All
registrars have the same level of 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 through a request made to an ICANN-accredited
registrar.
(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) Payment
Schedule. Registry Operator shall pay the Registry-Level Fees
specified in Sections 7.2(b) and (c) below, and Section 7.2(d), 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. The
first quarterly payment of the Fixed Registry-Level Fee shall be
pro-rated from the Effective Date until the end of the calendar
quarter in which the Effective Date falls.
(b) Fixed
Registry-Level Fee. Commencing on the Effective Date, Registry
Operator shall pay ICANN a quarterly Fixed Registry-Level Fee in an
amount equal to US$2,500 for each quarter during the twelve-month
period ending June 30, 2006. Such fee is subject to increase on July
1 of each year thereafter in an amount established by ICANN's Board
of Directors, but not to exceed a sum equal to 115% of the prior
year's fee. One dollar (USD) of the Fixed Registry-Level Fee shall
be waived for each dollar that the Registry-Level Transaction Fee
exceeds US$2,000,000 per annum.
(c) Registry-Level
Transaction Fee. Commencing as of the Effective Date, Registry
Operator shall pay ICANN a Registry-Level Transaction Fee in an
amount equal to US$2.00 for each annual increment of an initial or
renewal domain name registration or for transferring a domain name
registration from one ICANN-accredited registrar to another during
the calendar quarter to which the Registry-Level Transaction Fee
pertains. For purposes of this Section 7.2(c), a "domain name
registration" shall include a domain name within the registry for
the TLD, whether consisting of two or more (e.g., john.smith.name)
levels, about which Registry Operator or an affiliate thereof
maintains Registry Data.
(d) Variable
Registry-Level Fee. For fiscal quarters in which ICANN does not
collect a variable accreditation fee from all registrars, upon
receipt of reasonable notice in writing from ICANN of not less than
45 days, 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(a),
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 eighty
percent (80%) of the registrar level transaction fee as established
pursuant to the approved 2004-2005 ICANN Budget.
(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.
(e) Interest
on Late Payments. For any payments ten days or more overdue,
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.
ARTICLE VIII Miscellaneous
Section 8.1 Indemnification
of ICANN. Registry Operator shall indemnify, defend, and hold
harmless ICANN (including its directors, officers, employees, and
agents) from and against any and all claims, damages, liabilities,
costs, and expenses, including reasonable legal fees and expenses,
arising out of or relating to: (a) the selection of Registry Operator
to operate the registry for the TLD; (b) the entry of this Agreement;
(c) establishment or operation of the registry for the TLD; (d)
Registry Services; (e) collection or handling of Personal Data by
Registry Operator; (f) any dispute concerning registration of a
domain name within the domain of the TLD for the registry; and (g)
duties and obligations of Registry Operator in operating the registry
for the TLD; provided that, with respect to item (g) only, 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.
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 therefrom; 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 therefrom. 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, such approval not to
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 must
provide notice to ICANN of any subcontracting arrangements, and any
agreement to subcontract portions of the operations of the TLD must
mandate compliance with all covenants, obligations and agreements by
Registry Operator hereunder. Any subcontracting of technical
operations shall provide that the subcontracted entity become party
to the data escrow agreement mandated by
Section 3.1(c)(i) hereof.
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, provided that such notice via facsimile or electronic mail
shall be followed by a copy sent by regular postal mail service
within two (2) business days. 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 identified from time to time
If to Registry Operator, addressed to:
Employ Media LLC
Second Generation Place
3029 Prospect Road
Cleveland, OH 44115
Phone: 216-361-1000
Attention: Thomas J. Embrescia, Chairman
With a Required Copy to: Brian Johnson, General Counsel
Email: as identified 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.
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
CEO and President
Date: 5 May 2005
EMPLOY MEDIA LLC
By:_____________________________
Thomas J. Embrescia
Chairman
Date: 5 May 2005
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