Proposed TLD Sponsorship Agreement
Posted: 20 August 2001
TLD Sponsorship Agreement
This TLD SPONSORSHIP AGREEMENT ("Agreement") is by and between the Internet Corporation for Assigned Names and Numbers, a not-for-profit corporation, and [insert Sponsor's name], a [insert jurisdiction and type of organization].
1. DEFINITIONS. For purposes of this Agreement, the following definitions shall apply:
1.1. The "Authoritative Root-Server System" means the constellation of DNS root-nameservers specified, from time to time, in the file <ftp://rs.internic.net/domain/named.root>.
1.2. The "Charter" refers to Attachment 1.
1.3. The "DNS" refers to the Internet domain-name system.
1.4. The "Effective Date" is the date on which this Agreement is first signed on behalf of both parties.
1.5. "Eligibility and Name-Selection Services" or "ENS Services" refer to (a) application of policies concerning eligibility of persons or entities to receive new or renewal registrations of Registered Names and (b) application of policies concerning selection of Registered Names to be registered to particular persons or entities.
1.6. The "Expiration Date" is the date specified in Subsection 5.1.1.
1.7. "ICANN" refers to the Internet Corporation for Assigned Names and Numbers, which is a party to this Agreement, or any assignee of it under Subsection 5.11.
1.8. An "ICANN-Accredited Registrar" is an entity or person accredited by ICANN to act as a registrar for domain names within the domain of the Sponsored TLD.
1.9. The "Naming Convention Development and Demonstration Period" is the period, if any, defined by the start-up plan described in Attachment 8. The Naming Convention Development and Demonstration Period is intended to allow the Sponsor, working with the participation of the Sponsored TLD Community, to develop and demonstrate the initial naming conventions for the Sponsored TLD.
1.10. "Personal Data" refers to data about any identified or identifiable natural person.
1.11. "Registered Name" refers to a domain name within the domain of the Sponsored TLD, whether at the second or a lower level, about which Registry Operator or an affiliate maintains data in a Registry Database, arranges for such maintenance, or derives revenue from such maintenance. A name in a Registry Database may be a Registered Name even though it does not appear in a zone file.
1.12. "Registered Name Holder" means the holder of a Registered Name.
1.13. "Registry Data" means all Registry Database data maintained in electronic form, and shall include Zone-File Data, all data used to provide Registry Services submitted by registrars in electronic form, and all other data used to provide Registry Services concerning particular domain name registrations or nameservers maintained in electronic form in the Registry Database.
1.14. "Registry Database" means a database comprised of data about one or more DNS domain names within the domain of the Sponsored TLD that is used to generate either DNS resource records that are published authoritatively or responses to domain-name availability lookup requests or Whois queries, for some or all of those names.
1.15. "Registry Operator" refers to the entity or entities under contractual obligation with Sponsor from time to time to provide Registry Services for the Sponsored TLD, as described in Subsection 3.2.
1.16. "Registry Services" means services provided as an integral part of the operation of the Sponsored TLD, including all subdomains in which Registered Names are registered. In determining whether a service is integral to the operation of the Sponsored TLD, consideration will be given to the extent to which the Sponsored TLD's Registry Operator has been materially advantaged in providing the service by its designation by the Sponsor. The development of technology, expertise, systems, efficient operations, reputation (including identification as Registry Operator), financial strength, or relationships with registrars and third parties shall not be deemed an advantage arising from the designation. Registry Services include: receipt of data concerning registration of domain names and nameservers from registrars, provision to registrars of status information relating to the Sponsored TLD, dissemination of TLD zone files, operation of the Sponsored TLD zone servers, dissemination of contact and other information concerning domain-name and nameserver registrations in the Sponsored TLD, ENS Services, and such other services required by ICANN in the manner provided in Subsections 4.3 through 4.6. Registry Services shall not include the provision of nameservice for a domain used by a single entity under a Registered Name registered through an ICANN-Accredited Registrar.
1.17. "Sponsor" refers to [insert Sponsor's name] the Sponsoring Organization for the Sponsored TLD, which is a party to this Agreement, or any assignee of it under Subsection 5.11.
1.18. "Sponsored TLD" refers to the [insert TLD label] TLD.
1.19. "Sponsored TLD Community" means the community defined in Subsection 3.1.
1.20. "Term of this Agreement" begins on the Effective Date and continues until the earlier of (a) the Expiration Date, or (b) termination of this Agreement. This Agreement may be renewed according to the provisions of Subsection 5.2.
1.21. "TLD" refers to a top-level domain in the DNS.
1.22. "Zone-File Data" means all data contained in a DNS zone file for the Registry TLD as provided to nameservers on the Internet.
2. ICANN OBLIGATIONS.
2.1. Creation of Sponsored TLD. ICANN hereby agrees to establish (to the extent it has the authority) and otherwise to use commercially reasonable efforts to establish, in the Authoritative Root-Server System, the Sponsored TLD for the purposes outlined in the Charter attached as Attachment 1.
2.2. Designation of Sponsor; Delegation of Policy-Development Responsibility. ICANN hereby designates Sponsor as the sponsoring organization for the Sponsored TLD during the Term of this Agreement. ICANN hereby delegates to the Sponsor the authority to develop policies for the Sponsored TLD consistent with the requirements of Section 4 and the provisions of Attachment 2 of this Agreement.
2.3. Recognition in Authoritative Root-Server System. During the Term of this Agreement, Sponsor may, by notifying ICANN, request (a) delegation of the Sponsored TLD to specified DNS nameservers and (b) changes in that delegation. Any such request must be made by Sponsor, or its authorized representative (which may be the Registry Operator) designated in a written notice to ICANN, in a format, and otherwise meet technical requirements, specified from time to time by ICANN. The initial format and technical requirements are set forth in Attachment 3. Changes to the format and technical requirements may be made only with the written consent of Sponsor (which shall not be unreasonably withheld) or in the manner provided in Subsections 4.3 through 4.6. ICANN will use commercially reasonable efforts to have such requests implemented in the Authoritative Root-Server System within five business days of the submission.
2.4. Recognition in the Root-Zone Contact Database. To the extent ICANN publishes contact data regarding TLDs, during the Term of this Agreement it will show the Sponsored TLD's sponsor as Sponsor and the Sponsored TLD's registry operator, administrative contact, and technical contact as requested from time to time by Sponsor. Any such request must be made by Sponsor, or its authorized representative (which may be the Registry Operator) designated in a written notice to ICANN, in a format, include the elements of contact data, and otherwise meet technical requirements, specified from time to time by ICANN. The initial requirements for these requests are set forth in Attachment 4. Changes to the requirements for requests may be made only with the written consent of Sponsor (which shall not be unreasonably withheld) or in the manner provided in Subsections 4.3 through 4.6.
2.5. Other Obligations of ICANN. During the Term of this Agreement, ICANN shall use commercially reasonable efforts to:
2.5.1. maintain, or cause to be maintained, a stable, secure, authoritative, and publicly available database of relevant information regarding the delegation of the Sponsored TLD;
2.5.2. generate, or cause to be generated, authoritative and accurate root zone information from such database and operate, or cause to be operated, the Authoritative Root Server System in a stable and secure manner;
2.5.3. maintain, or cause to be maintained, authoritative records and an audit trail regarding delegations of the Sponsored TLD and records related to these delegations; and
2.5.4. inform Sponsor in a timely manner of any changes to ICANN's contact information.
2.6. Use of ICANN Name. ICANN hereby grants to Sponsor a non-exclusive, worldwide, royalty-free license during the Term of this Agreement (a) to state that it is designated by ICANN as the sponsor for the Sponsored TLD, (b) to use a logo specified by ICANN to signify that Sponsor is an ICANN-designated sponsor, and (c) to link to pages and documents within the ICANN web site. No other use of ICANN's name or logo is licensed hereby. This license may not be assigned or sublicensed by Sponsor.
3. SPONSOR'S OBLIGATIONS.
3.1. Obligation to Maintain Representative Characteristics Justifying Original Selection of Sponsor. During the Term of this Agreement, Sponsor (a) agrees to ensure it remains at least as representative of the Sponsored TLD Community as it was at the time of its selection, and (b) shall be responsible for developing policies for, and providing for the operation of, the Sponsored TLD in the interest of the Sponsored TLD Community in accordance with Subsections 3.2 through 3.16 and 4.2. The "Sponsored TLD Community" means actual registrants of names within the Sponsored TLD, individuals or entities qualifying for registration under the policies applicable to the Sponsored TLD, and any other affected parties included in the community description contained in Attachment 5 to this Agreement.
3.2. Obligation to Arrange for the Provision of Registry Services. Sponsor shall, by contract with a third-party Registry Operator, provide for the provision of Registry Services meeting the minimum functional specifications described by Subsection 3.3 and the minimum performance specifications described by Subsection 3.4. The obligations of this Subsection 3.2 will commence on the schedule specified by the start-up plan in Attachment 8.
3.3. Minimum Functional Specifications for Registry Services. Registry Services provided in the Sponsored TLD shall meet functional specifications prescribed by Sponsor, which shall meet at least the minimum requirements established from time to time by ICANN. The minimum functional specifications initially required by ICANN are set forth in Attachment 6. Changes to the minimum required functional specifications may be made only in the manner provided in Subsections 4.3 through 4.6.
3.4. Minimum Performance Specifications for Registry Services. Registry Services provided in the Sponsored TLD shall meet performance specifications prescribed by Sponsor, which shall meet at least the minimum requirements established from time to time by ICANN. The minimum performance specifications initially required by ICANN are set forth in Attachment 7. Changes to the minimum required performance specifications may be made only in the manner provided in Subsections 4.3 through 4.6.
3.5. Start-Up Plan. Sponsor shall commence the offering of Registry Services for the Sponsored TLD, including the provision of nameservice for the Sponsored TLD, according to the schedule and procedures set forth in the start-up plan in Attachment 8.
3.6. Use of ICANN-Accredited Registrars. The Sponsor shall ensure that all Registry Services are provided through one or more ICANN-Accredited Registrars, except to the extent that (a) Attachment 2 delegates to Sponsor the authority to provide or to arrange for the provision of ENS Services by means other than ICANN-Accredited Registrars or (b) the start-up plan in Attachment 8 provides for a different means of providing Registry Services during the Naming Convention Development and Demonstration Period. Sponsor may select the ICANN-Accredited Registrars eligible to obtain Registry Services according to the provisions of Attachment 9. Sponsor shall enter its standard written agreement authorizing the provision of Registry Services (its "Authorizing Agreement") with any ICANN-Accredited Registrar so selected that wishes to enter an Authorizing Agreement and is able to comply with its terms. Sponsor shall require Registry Operator to provide equivalent treatment with respect to Registry Services to all ICANN-Accredited Registrars that are in compliance with a currently effective Authorizing Agreement. All Registry Services shall be provided through ICANN-Accredited Registrars strictly in accordance with the terms of their Authorizing Agreements. The terms of the Authorizing Agreement shall be consistent with the provisions of this Agreement, including specifications and policies established according to Subsections 4.3 through 4.6.
3.7. Registration Requirements. Sponsor shall ensure that all registrants in the Sponsored TLD have entered into contractual commitments, directly enforceable by Sponsor, containing at least the provisions set forth in Attachment 10. The commitments may be set forth either in a registration agreement between the registrant and an authorized ICANN-Accredited Registrar or in an agreement directly between the registrant and Sponsor. Sponsor may require (in a manner consistent with Subsection 4.2) that registrants make additional commitments as a condition of registration in the Sponsored TLD, provided that those commitments are otherwise consistent with this Agreement (including Section 4).
3.8. Registration Restrictions Within Sponsored TLD.
3.8.1. Except to the extent that ICANN otherwise expressly authorizes in writing, Sponsor shall reserve from registration the domain names specified by a schedule established by ICANN. The initial schedule is attached as Attachment 11. Changes to the schedule may be made only in the manner provided in Subsections 4.3 through 4.6.
3.8.2. Sponsor shall also establish policies, in conformity with the Charter, for the naming conventions within the Sponsored TLD and for requirements of registration. Sponsor shall ensure the application and enforcement of those policies in a manner consistent with Subsection 4.2.
3.8.3. Sponsor shall establish procedures for enforcement of registration requirements, and for challenges to particular registrations. Procedures for challenges to names registered contrary to the requirements of the Charter shall conform with the requirements set forth in Attachment 12. Changes to those procedures may be made only with the mutual written consent of ICANN and Sponsor (which neither party shall withhold without reason) or in the manner provided in Subsections 4.3 through 4.6.
3.9. Registrations Not Sponsored by Registrars. Sponsor may register directly with the Registry Operator the domain names listed on Attachment 13 for its own use in sponsoring the Sponsored TLD. The total number of domain names listed on Attachment 13 at any time shall not exceed 500. At the conclusion of its designation by ICANN as the sponsor for the Sponsored TLD, Sponsor shall transfer all such domain-name registrations to the entity or person specified by ICANN. As instructed from time to time by ICANN, Sponsor shall ensure Registry Operator maintains the registration of up to 500 domain names within the Sponsored TLD for use by ICANN and other organizations responsible for coordination of the Internet's infrastructure.
3.10. Bulk Access to Zone Files. Sponsor shall ensure Registry Operator provides bulk access to the zone files for the Sponsored TLD as follows:
3.10.1. to third parties – on the terms set forth in the TLD zone file access agreement established by ICANN. The initial terms of the agreement are set forth as Attachment 14 to this Agreement. Changes to the terms of the TLD zone file access agreement may be made only with the mutual written consent of ICANN and Sponsor or in the manner provided in Subsections 4.3 through 4.6.
3.10.2. to ICANN – on a continuous basis in the manner that ICANN may from time to time specify.
3.11. Publication of Registry Data.
3.11.1. At its expense, Sponsor shall ensure Registry Operator provides free public query-based access to up-to-date data concerning domain-name and nameserver registrations maintained by Registry Operator in connection with the Sponsored TLD. The data elements reported, format of responses to queries, data update frequency, query types supported, and protocols through which access is provided shall be as established by ICANN. The initial specification of the data elements reported, format of responses to queries, minimum data update frequency, query types supported, and protocols through which access is provided are set forth in Attachment 15. Sponsor may request supplementation of the specification to include additional data elements reported or query types supported, in which event ICANN shall act to supplement the specification in a reasonable manner within a reasonable time. Other changes to the specification may be made only with the mutual written consent of ICANN and Sponsor (which neither party shall withhold without reason) or in the manner provided in Subsections 4.3 through 4.6.
3.11.2. To ensure operational stability of the registry, Sponsor may allow Registry Operator to temporarily limit access under Subsection 3.11.1 in which case Sponsor shall immediately notify ICANN of the nature of and reason for the limitation. Sponsor shall not continue the limitation longer than a period established by ICANN if ICANN objects in writing, which objection shall not be unreasonably made. The period shall initially be five business days; changes to that period may be made only with the mutual written consent of ICANN and Sponsor (which neither party shall withhold without reason) or in the manner provided in Subsections 4.3 through 4.6. Such temporary limitations shall be applied in a non-arbitrary manner and shall apply fairly to all ICANN-Accredited Registrars authorized to register names in the Sponsored TLD.
3.11.3. In providing query-based public access to registration data as required by this Subsection 3.11, Sponsor shall ensure Registry Operator does not impose terms and conditions on use of the data provided except as permitted by policy established by ICANN. Unless and until ICANN establishes a different policy, Sponsor shall permit use of data it provides in response to queries for any lawful purposes except to: (a) allow, enable, or otherwise support the transmission by e-mail, telephone, or facsimile of mass unsolicited, commercial advertising or solicitations to entities other than the data recipient's own existing customers; or (b) enable high volume, automated, electronic processes that send queries or data to the systems of Registry Operator or any ICANN-Accredited Registrar authorized to register names in the Sponsored TLD, except as reasonably necessary to register domain names or modify existing registrations. Changes to that policy may be made only in the manner provided in Subsections 4.3 through 4.6.
3.11.4. To comply with applicable statutes and regulations and for other reasons, ICANN may from time to time establish policies in the manner described by Subsections 4.3 through 4.6 establishing limits on the data concerning registrations that Sponsor, through Registry Operator, may make available to the public through a public-access service described in this Subsection 3.11 and on the manner in which Sponsor may make them available. In the event ICANN establishes any such policy, Sponsor shall abide by it within the time allowed by Subsection 4.6.
3.11.5. At its expense, Sponsor shall ensure Registry Operator provides bulk access to up-to-date data concerning domain-name and nameserver registrations maintained by Registry Operator in connection with the Sponsored TLD in the following two ways:
188.8.131.52 on a daily schedule, only for purposes of providing free public query-based access to up-to-date data concerning domain-name and nameserver registrations in multiple TLDs, to a party designated from time to time in writing by ICANN. The content and format of this data, and the procedures for providing access, shall be as established by ICANN. The initial content, format, and procedures are set forth in Attachment 16. Changes to that content and format and those procedures may be made only with the mutual written consent of ICANN and Sponsor (which neither party shall withhold without reason) or in the manner provided in Subsections 4.3 through 4.6.
184.108.40.206 on a continuous basis, to ICANN in the manner which ICANN may from time to time reasonably specify, only for purposes of verifying and ensuring the operational stability of the Sponsored TLD, the DNS, and the Internet The content and format of this data, and the procedures for providing access, shall be as established by ICANN. The initial content, format, and procedures are set forth in Attachment 17. Changes to that content and format and those procedures may be made only with the mutual written consent of ICANN and Sponsor (which neither party shall withhold without reason) or in the manner provided in Subsections 4.3 through 4.6.
3.12. Data Escrow. Sponsor shall ensure Registry Operator periodically deposits into escrow all Registry Data in an electronic format. The escrow shall be maintained, at Sponsor's or Registry Operator's expense, by a reputable escrow agent mutually approved by Sponsor 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 established by ICANN from time to time. The initial schedule, content, format, and procedure shall be as set forth in Attachment 18. Changes to the schedule, content, format, and procedure may be made only with the mutual written consent of ICANN and Sponsor (which neither party shall withhold without reason) or in the manner provided in Subsections 4.3 through 4.6. The escrow shall be held under an agreement, substantially in the form of Attachment 19, among ICANN, Sponsor, Registry Operator and the escrow agent. In the event that, after a good-faith search by ICANN and Registry Operator, no mutually approved escrow agent agrees to the terms of Attachment 19, ICANN and Sponsor shall, in conjunction with a mutually approved escrow agent, negotiate in good faith for a substitute escrow agreement.
3.13. Handling of Personal Data. Sponsor shall ensure that Registered Name Holders are notified of the purposes for which Personal Data submitted by Registered Name Holders is collected, the intended uses and categories of recipients of such Personal Data, and the mechanism for access to and correction of such Personal Data. Sponsor shall take and shall ensure Registry Operator takes reasonable steps to protect Personal Data from loss, misuse, unauthorized disclosure, alteration or destruction. Sponsor shall not and shall ensure Registry Operator does not use or authorize the use of Personal Data in a way that is incompatible with the notice provided to Registered Name Holders.
3.14. Rights in Data. Neither Sponsor nor Registry Operator shall be entitled to claim any exclusive rights in data supplied to Sponsor or Registry Operator by or through any ICANN-Accredited Registrars authorized to register names in the Sponsored TLD, provided that Sponsor may claim the right to use such data for its purposes. In the event that Registry Data is released from escrow under Subsection 3.12, the released data shall automatically be transferred pursuant to an irrevocable, non-exclusive, world-wide, royalty-free, paid-up license from Sponsor and Registry Operator to ICANN or to a party designated in writing by ICANN.
3.15. Registry-Level Financial Support of ICANN. During the Term of this Agreement, Sponsor shall pay to ICANN the following fees:
3.15.1. Fixed Registry-Level Fee. Sponsor shall pay ICANN the quarterly Fixed Registry-Level Fee for the Sponsored TLD in an amount established by the ICANN Board of Directors, in conformity with the ICANN bylaws and articles of incorporation, not to exceed the Fixed Registry-Level Fee Cap described in Subsection 3.15.4.
3.15.2. Variable Registry-Level Fee. Sponsor shall pay ICANN a quarterly Variable Registry-Level Fee in an amount calculated according to a formula and method established from time to time by the ICANN Board of Directors, in conformity with the ICANN bylaws and articles of incorporation. The formula and method shall allocate the total variable fee among all TLDs sponsored or operated under a sponsorship or registry agreement with ICANN (whether the fee is collected at the registry or registrar level) based on the relative size of the registries for those TLDs. It shall be permissible for the formula and method so established to do any of the following: (a) to measure the size of a TLD's registry, at least once per year where feasible, by the number of names under administration within the TLD by the registry's operator, (b) to deem the number of domain names under administration within the Sponsored TLD to be the number of Registered Names, and (c) to provide for a deduction in computing a sponsor's or operator's Variable Registry-Level Fee of some or all of that sponsor's or registry operator's Fixed Registry-Level Fee. It shall also be permissible for the formula and method to consider accreditation fees collected from registrars as a credit applied to the Variable Registry-Level Fee for the TLD to which the fees pertain. Groups of registries for two or more TLDs may, with the agreement of their sponsors or operators and ICANN, agree to allocate the variable fee collected from them in a manner not based on the relative size of the registries within the group, provided that the combined variable fees collected for all the TLDs within the group is based on the combined size of the registries in the group.
3.15.3. Payments Must be Timely. Sponsor shall pay the quarterly Fixed and Variable Registry-Level Fees within thirty days after the date of ICANN's invoice for those fees. These payments shall be made in a timely manner throughout the Term of this Agreement and notwithstanding the pendency of any dispute between Sponsor and ICANN. Sponsor shall pay interest on payments not timely made at the rate of 1% per month or, if less, the maximum rate permitted by California law.
3.15.4. Fee Caps. The Fixed Registry-Level Fee Cap shall be US $50,000 per year until and including 30 June 2002; shall automatically increase by 15% on July 1 of each year beginning in 2002; and may be increased by a greater amount in the manner provided by Subsection 4.3. The sum of the Fixed Registry-Level Fees and the Variable Registry-Level Fees due to be paid in any year ending on any 30 June during or within one year after the Term of this Agreement by all TLD sponsors and registry operators having sponsorship or registry agreements with ICANN shall not exceed the Total Registry-Level Fee Cap described in the following sentence. The Total Registry-Level Fee Cap shall be US $5,500,000 for the fiscal year ending 30 June 2002; shall increase by 15% each fiscal year thereafter; and may be increased by a greater amount in the manner provided by Subsection 4.4.
3.16. Sponsor's Ongoing Obligation to Comply With New or Revised ICANN Specifications and Policies. In addition to its other obligations under this Agreement, Sponsor shall comply and shall cause Registry Operator to comply, on a schedule consistent with Subsection 4.5, with new or revised specifications and policies established by ICANN on the topics described in Subsection 4.3, provided those specifications and policies are established in the manner described in Subsection 4.4.
3.17. Reports Provided to ICANN. Sponsor shall provide the following periodic written reports to ICANN regarding the following:
3.17.1 Monthly Reports on Registry Operations. For each month during the Term of this Agreement, Sponsor shall provide ICANN a written report, giving information specified by ICANN, on operation of the registry during the month. For months ending with fewer than 100,000 Registered Names, the report shall be provided to ICANN no later than twenty days after the end of the calendar quarter. For months ending with 100,000 Registered Names or more, the report shall be provided to ICANN no later than twenty days after the end of the month. The initial specification of information in the reports is set forth in Attachment 20. Changes to that specification may be made only with the mutual written consent of ICANN and Sponsor (which neither party shall withhold without reason) or in the manner provided in Subsections 4.3 through 4.6.
3.17.2 Data Related to Proof of Concept. Sponsor shall, for the purpose of providing data concerning concepts to be proven by establishment of the Sponsored TLD, provide reports concerning the Sponsored TLD's operation on a schedule and with content specified in Attachment 21.
4. PROCEDURES FOR ESTABLISHMENT OR REVISION OF SPECIFICATIONS AND POLICIES.
4.1. General Obligations of ICANN. With respect to all matters that affect the rights, obligations, or role of Sponsor, ICANN shall:
4.1.1. exercise its responsibilities in an open and transparent manner;
4.1.2. not unreasonably restrain competition and, to the extent feasible, promote and encourage robust competition;
4.1.3. not apply standards, policies, procedures or practices arbitrarily, unjustifiably, or inequitably and not single out Sponsor for disparate treatment unless justified by substantial and reasonable cause; and
4.1.4. ensure, through its reconsideration and independent review policies, adequate appeal procedures for Sponsor, to the extent it is adversely affected by ICANN standards, policies, procedures or practices.
4.2. General Obligations of Sponsor. During the Term of this Agreement, Sponsor shall, in developing or enforcing standards, policies, procedures, or practices within the scope of its delegated authority with respect to the Sponsored TLD:
4.2.1. publish such standards, policies, procedures, and practices so they are available to members of the Sponsored TLD Community;
4.2.2. conduct its policy-development activities in 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;
4.2.3. 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;
4.2.4. 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;
4.2.5. ensure that any revenues received by Sponsor or any affiliated entity directly or indirectly from the provision of Registry Services are used solely for the benefit of the Sponsored TLD Community; and
4.2.6. ensure that any contract with a Registry Operator precludes any control by that Registry Operator over the policy-development process of the Sponsored TLD.
4.3. Topics for New and Revised ICANN Specifications and Policies. ICANN may establish new and revised specifications and policies applicable to the Sponsored TLD, according to the procedure stated in Subsection 4.4, on the following topics:
4.3.1. issues for which uniform or coordinated resolution is reasonably necessary to facilitate interoperability, technical reliability, and/or operational stability of Registry Services, the DNS, or the Internet;
4.3.2. safety and integrity of the Registry Database;
4.3.3. procedures to avoid disruptions of registration due to suspension or termination of operations by a sponsor, registry operator, or a registrar, including procedures for allocation of responsibility for serving Registered Names affected by such a suspension or termination;
4.3.4. maintenance of and access to accurate and up-to-date contact information for registrants and Registered Names;
4.3.5. registry policies reasonably necessary to implement Consensus Policies relating to registrars;
4.3.6. except to the extent policy-development responsibility is delegated to Sponsor by Attachment 2, the following topics:
220.127.116.11 resolution of disputes regarding whether the particular parties may register or maintain registration of particular domain names;
18.104.22.168 principles for allocation of Registered Names (e.g., landrush procedures, timely renewal requirements, holding period after expiration);
22.214.171.124 prohibitions on warehousing of or speculation in domain names by registries or registrars; and
126.96.36.199 functional and performance specifications for the provision of Registry Services;
4.3.7. reservation of Registered Names that may not be registered initially or that may not be renewed due to reasons reasonably related to (a) avoidance of confusion among or misleading of users, (b) intellectual property, or (c) the technical management of the DNS or the Internet (e.g., establishment of reservations of names from registration); and
4.3.8. other matters as to which ICANN is authorized to develop new or revised specifications or policies by other provisions of this Agreement.
4.4. Manner of ICANN's Establishment of New and Revised Specifications and Policies.
4.4.1. "Consensus Policies" are those specifications or policies established based on a consensus among Internet stakeholders represented in the ICANN process, as demonstrated by (a) action of the ICANN Board of Directors establishing the specification or policy, (b) a recommendation, adopted by at least a two-thirds vote of the council of the ICANN Supporting Organization to which the matter is delegated, that the specification or policy should be established, and (c) a written report and supporting materials (which must include all substantive submissions to the Supporting Organization relating to the proposal) that (i) documents the extent of agreement and disagreement among impacted groups, (ii) documents the outreach process used to seek to achieve adequate representation of the views of groups that are likely to be impacted, and (iii) documents the nature and intensity of reasoned support and opposition to the proposed policy.
4.4.2. In the event that Sponsor disputes the presence of such a consensus, it shall seek review of that issue from an Independent Review Panel established under ICANN's bylaws. Such review must be sought within fifteen working days of the publication of the Board's action establishing the policy. The decision of the panel shall be based on the report and supporting materials required by Subsection 4.4.1. In the event that Sponsor seeks review and the Independent Review Panel sustains the Board's determination that the policy is based on a consensus among Internet stakeholders represented in the ICANN process, then Sponsor must implement such policy unless it promptly seeks and obtains a stay or injunctive relief under Subsection 5.9.
4.4.3. If, following a decision by the Independent Review Panel convened under Subsection 4.4.2, Sponsor still disputes the presence of such a consensus, it may seek further review of that issue within fifteen working days of publication of the decision in accordance with the dispute resolution procedures set forth in Subsection 5.9; provided, however, that Sponsor must continue to implement the policy unless it has obtained a stay or injunctive relief under Subsection 5.9 or a final decision is rendered in accordance with the provisions of Subsection 5.9 that relieves Sponsor of such obligation. The decision in any such further review shall be based on the report and supporting materials required by Subsection 4.4.1.
4.4.4. A specification or policy established by the ICANN Board of Directors on a temporary basis, without a prior recommendation by the council of an ICANN Supporting Organization, shall also be considered to be a Consensus Policy if adopted by the ICANN Board of Directors by a vote of at least two-thirds of its members, so long as the Board reasonably determines that immediate temporary establishment of a specification or policy on the subject is necessary to maintain the operational stability of Registry Services, the DNS, or the Internet, and that the proposed specification or policy is as narrowly tailored as feasible to achieve those objectives. In establishing any specification or policy under this provision, the ICANN Board of Directors shall state the period of time for which the specification or policy is temporarily adopted and shall immediately refer the matter to the appropriate Supporting Organization for its evaluation and review with a detailed explanation of its reasons for establishing the temporary specification or policy and why the Board believes the policy should receive the consensus support of Internet stakeholders. If the period of time for which the specification or policy is adopted exceeds ninety days, the Board shall reaffirm its temporary establishment every ninety days for a total period not to exceed one year, in order to maintain such specification or policy in effect until such time as it meets the standard set forth in Subsection 4.4.1. If the standard set forth in Subsection 4.4.1 is not met within the temporary period set by the Board, or the council of the Supporting Organization to which it has been referred votes to reject the temporary specification or policy, it will no longer be a "Consensus Policy."
4.4.5. For all purposes under this Agreement, the policies identified in Attachment 22 shall be treated in the same manner and have the same effect as "Consensus Policies."
4.4.6. In the event that, at the time the ICANN Board adopts a specification or policy under Subsection 4.4.1 during the Term of this Agreement, ICANN does not have in place an Independent Review Panel established under ICANN's bylaws, the fifteen-working-day period allowed under Subsection 4.4.2 to seek review shall be extended until fifteen working days after ICANN does have such an Independent Review Panel in place and Sponsor shall not be obligated to comply ICANN with the specification or policy in the interim.
4.5 Time Allowed for Compliance with Newly Established ICANN Specifications and Policies. Sponsor shall be afforded a reasonable period of time, (not to exceed four months unless the nature of the specification or policy established under Subsections 4.3 and 4.4 reasonably requires, as agreed to by ICANN and Sponsor, a longer period), after receiving notice of the establishment of a specification or policy under Subsections 4.3 and 4.4 in which to comply with that specification or policy, taking into account any urgency involved
4.6 Indemnification of Sponsor. ICANN shall indemnify, defend, and hold harmless Sponsor (including its directors, officers, employees, and agents) from and against any and all claims, damages, liabilities, costs, and expenses, including reasonable legal fees and expenses, arising solely from Sponsor's compliance as required by this Agreement with an ICANN specification or policy (including, without limitation, a Consensus Policy) established after the Effective Date; except that Sponsor shall not be indemnified or held harmless hereunder to the extent that the claims, damages or liabilities arise from the particular manner in which Sponsor has chosen to comply with the specification or policy, where it was possible for Sponsor to comply in a manner by which the claims, damages, or liabilities would not arise.
5. MISCELLANEOUS PROVISIONS.
5.1. Expiration of this Agreement.
5.1.1. The Expiration Date shall be five years after the Effective Date.
5.1.2. Sponsor acknowledges and agrees that, unless ICANN and Sponsor enter a new agreement continuing Sponsor's status as Sponsor of the Registry TLD, Sponsor will cease to be the Sponsor for the Sponsored TLD upon the earlier of (a) the Expiration Date or (b) termination of this Agreement by ICANN pursuant to Subsection 5.4.
5.1.3. Upon conclusion of its status as Sponsor for the Sponsored TLD, Sponsor shall make (and shall require Registry Operator to make) all commercially reasonable efforts to cooperate with ICANN, and with any party designated by ICANN to succeed Sponsor, to facilitate prompt and smooth transition of the sponsorship and operation of the Sponsored TLD.
5.1.4. Sponsor acknowledges and agrees that, except as expressly provided by this Agreement, it shall not acquire any right in the Sponsored TLD by virtue of its Sponsorship of the Sponsored TLD or the provision of Registry Services in the Sponsored TLD.
5.2. Procedure for Subsequent Agreement.
5.2.1. Sponsor may, no earlier than eighteen and no later than twelve months prior to the Expiration Date, submit a written proposal to ICANN for the continuation of its sponsorship of the Sponsored TLD for an additional term of five years (the "Renewal Proposal"). The Renewal Proposal shall contain a report of the Sponsor's sponsorship of the Sponsored TLD and include a description of its effectiveness in meeting the needs of the Sponsored TLD Community, proposed additions to or deletions from (a) the Charter and (b) the delegation of policy-development responsibility from ICANN to sponsor, and a certification that the Sponsor has complied with all material terms of this Agreement or, where that is not the case, a description of any failure to comply. During a period of at least thirty days after receiving the Renewal Proposal, ICANN shall post the Renewal Proposal for public comment.
5.2.2. If no objection(s) to renewal deemed by ICANN to be substantial are received by ICANN within forty-five days after the Renewal Proposal is posted under Subsection 5.2.1, ICANN shall offer to enter into a new TLD Sponsorship Agreement with Sponsor on the terms described by Subsection 5.2.5.
5.2.3. If ICANN receives one or more objection(s) to renewal deemed by ICANN to be substantial within the forty-five day period described in Subsection 5.2.2, ICANN shall commence a staff evaluation of whether (and, if so, on what terms) a continuation of Sponsor's sponsorship of the Sponsored TLD is in the best interest of the Sponsored TLD Community and the global Internet community. The evaluation shall include consideration of whether the Sponsor continues to be representative of the Sponsored TLD Community, whether a different Sponsor would be more representative, the presence or absence of material breaches of this Agreement by Sponsor, and other information that is relevant to the determination of whether the Sponsor's continued sponsorship would be in the best interest of the Sponsored TLD Community and the global Internet community.
5.2.4. A report of the staff evaluation shall be posted and the public and the Sponsor shall be afforded at lease thirty days to comment. After the completion of that comment period, the ICANN Board shall evaluate Sponsor's sponsorship of the Sponsored TLD. The ICANN Board shall consider, among other things, the Renewal Proposal, the staff evaluation, and public comments. ICANN shall offer to enter into a new TLD Sponsorship Agreement with Sponsor on the terms described by Subsection 5.2.5 unless the ICANN Board determines, by a two-thirds vote of those voting, that continuation of Sponsor's sponsorship of the Sponsored TLD is not in the interest of the the Sponsored TLD Community and the global Internet community.
5.2.5. The terms of any extension of this Agreement shall be substantially consistent with the terms of agreements between ICANN and sponsors of other Sponsored TLDs then in effect.
5.2.6. In the event that a person or entity other than the Sponsor is selected as the successor sponsor for the Sponsored TLD upon the expiration of this Agreement, ICANN shall require the successor sponsor to pay to Sponsor within sixty (60) days after the Expiration Date the amount of US $200,000. This liquidated amount reflects the parties' best estimate of the cost to Sponsor of adjusting to the change of sponsorship, such as payment of early termination fees for any contracts, leases, loans, or other obligations and severance pay for employees, which would likely be difficult to assess definitively at the time of change in sponsorship.
5.3. Condition to Performance. In the event that ICANN is unable, through use of commercially reasonable efforts, to have the Sponsored TLD delegated within the Authoritative Root-Server System to nameservers designated by Sponsor within six months after the Effective Date, then this Agreement shall be automatically terminated without liability of either party to the other party and neither party shall have any further obligation hereunder. Thirty days in advance of such an automatic termination, either party may propose an extension of the time in which delegation must occur, and in that event the other party shall consult in good faith (but without obligation to agree) concerning the proposal. No extension of the time in which delegation must occur shall be effective unless embodied in a written amendment signed by authorized agents of both parties to this Agreement.
5.4. Termination by ICANN. This Agreement may be terminated before its expiration by ICANN in any of the following circumstances:
5.4.1. There was a material misrepresentation, material inaccuracy, or materially misleading statement, made with knowledge of its falsity, inaccuracy, or misleading nature or without reasonable cause to believe it was true, accurate, and not misleading, of then existing fact or of Sponsor's then-existing intention in its application for the Sponsored TLD or any written material provided to or disclosed to ICANN by the Sponsor in connection with the application. The foregoing shall not apply to projections or forward-looking statements (other than statements, not made in good faith, about Sponsor's then-existing intentions) in the application or materials.
188.8.131.52 is convicted by a court of competent jurisdiction of a felony or other serious offense related to financial activities, or is the subject of a determination by a court of competent jurisdiction that ICANN reasonably deems as the substantive equivalent of any of those offenses; or
184.108.40.206 is disciplined by the government of its domicile for conduct involving dishonesty or misuse of funds of others.
5.4.3. Any officer or director of Sponsor is convicted of a felony or of a misdemeanor related to financial activities, or is judged by a court to have committed fraud or breach of fiduciary duty, or is the subject of a judicial determination that ICANN deems as the substantive equivalent of any of these, and such officer or director is not immediately removed in such circumstances.
5.4.4. Sponsor fails to cure any material breach of this Agreement (other than a failure to comply with a Consensus Policy adopted by ICANN during the Term of this Agreement as to which Sponsor has obtained a stay under Subsection 5.9) within fifteen business days (or such longer reasonable period as may be necessary using best efforts to cure such breach) after ICANN gives Sponsor written notice of the breach.
5.4.5. Sponsor's action or failure to act has been determined by arbitration under Subsection 5.9 to be in material violation of this Agreement and Sponsor continues to act or fails to act in the manner that was determined to materially violate this Agreement for a period stated in the arbitration decision, or if no period is stated, fifteen business days.
5.4.6. Sponsor acts or continues acting in a manner that ICANN has reasonably determined endangers the stability or operational integrity of Registry Services, the DNS, or the Internet after receiving three days notice of that determination.
5.4.7. Sponsor becomes bankrupt or insolvent.
This Agreement may be terminated in the circumstances described in Subsections 5.4.1 through 5.4.6 above only upon thirty calendar days written notice to Sponsor (in the case of the circumstances described in Subsections 5.4.4, 5.4.5, and 5.4.6 occurring after Sponsor's failure to cure), with Sponsor being given an opportunity during that time to initiate arbitration under Subsection 5.9 to determine the appropriateness of termination under this Agreement. In the event Sponsor initiates arbitration concerning the appropriateness of termination by ICANN, Sponsor 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 requirement until the decision or until the arbitration panel has granted an ICANN request for lifting the stay. In the circumstances described in Subsection 5.4.6, ICANN may suspend this Agreement for five calendar days pending ICANN's application for a more extended stay or injunctive relief under Subsection 5.9 and may terminate this Agreement immediately in the event Sponsor fails to comply with any resulting injunction order. This Agreement may be terminated immediately upon notice to Sponsor in the circumstance described in Subsection 5.4.7.
5.5. Representations and Warranties of Sponsor. Sponsor represents and warrants to ICANN that:
5.5.1. it is a [insert Sponsor's type of organization] duly organized, validly existing, and in good standing under the laws of [insert jurisdiction];
5.5.2. it has all requisite organizational power and authority to execute, deliver and perform its obligations under this Agreement;
5.5.3. the execution, performance and delivery of this Agreement has been duly authorized by Sponsor; and
5.5.4. subject to Subsection 5.3, no further approval, authorization or consent of any governmental or regulatory authority is required to be obtained or made by Sponsor in order for it to enter into and perform its obligations under this Agreement.
5.6. Additional Covenants of Sponsor. Throughout the Term of the Agreement, Sponsor shall comply, in all material respects, with the covenants contained in Attachment 23.
5.7. Indemnification of ICANN. Sponsor 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 Sponsor to sponsor the Registry TLD; (b) Sponsor's selection of Registry Operator; (c) the entry of this Agreement; (d) establishment, operation, or sponsorship of the Sponsored TLD; (e) Registry Services; (f) collection or handling of Personal Data by Sponsor or Registry Operator; (g) any dispute concerning registration of a domain name within the domain of the Sponsored TLD; and (h) duties and obligations of Sponsor in operating the Sponsored TLD; provided that, with respect to items (b) through (h) only, Sponsor shall not be obligated to indemnify, defend, or hold harmless ICANN to the extent of ICANN's indemnification of Sponsor under Subsection 4.6 and provided further that, with respect to item (h) only, Sponsor 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 the avoidance of doubt, nothing in this Subsection 5.7 shall be deemed to require Sponsor 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.
5.8. Indemnification Procedures. If any third-party claim is commenced that is indemnified under Subsections 4.6 or 5.7, notice thereof shall be given to the indemnifying party as promptly as practicable. If, after such notice, the indemnifying party acknowledges its obligation to indemnify with respect to such claim, then the indemnifying party shall be entitled, if it so elects, in a notice promptly delivered to the indemnified party, 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. The indemnified party shall cooperate, at the cost of the indemnifying party, in all reasonable respects with the indemnifying party 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 the indemnifying party other than the payment of money in an amount that is indemnified shall be entered into without the consent of the indemnified party. If the indemnifying party does not assume full control over the defense of a claim subject to such defense in accordance with this Subsection, the indemnifying party may participate in such defense, at its sole cost and expense, and the indemnified party shall have the right to defend the claim in such manner as it may deem appropriate, at the cost and expense of the indemnifying party.
5.9. Resolution of Disputes Under This Agreement. 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 Subsection 5.9 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. 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 parties shall bear the costs of the arbitration in equal shares, subject to the right of the arbitrators to reallocate the costs in their award as provided in the ICC rules. The parties shall bear their own attorneys' fees in connection with the arbitration, and the arbitrators may not reallocate the attorneys' fees in conjunction with their award. The arbitrators shall render their decision within ninety days of the initiation of arbitration. In all litigation involving ICANN concerning this Agreement (as provided in the remainder of this Subsection), jurisdiction and exclusive venue for such litigation shall be in a court located in Los Angeles, California, USA; however, the parties shall also have the right to enforce a judgment of such a court in any court of competent jurisdiction. For the purpose of aiding the arbitration and/or preserving the rights of the parties during the pendency of an arbitration, the parties shall have the right to seek a temporary stay or injunctive relief from the arbitration panel or a court located in Los Angeles, California, USA, which shall not be a waiver of this arbitration agreement.
5.10. Limitation of Liability. ICANN's aggregate monetary liability for violations of this Agreement shall not exceed the amount of Fixed Sponsor-Level Fees or Variable Registry-Level Fees paid by Sponsor to ICANN within the preceding twelve-month period under Subsection 3.15. Sponsor's aggregate monetary liability for violations of this Agreement shall be limited to fees due 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.
5.11. Assignment. 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. Notwithstanding the foregoing, a party may assign this Agreement by giving written notice to the other party in the following circumstances: (a) Sponsor may assign this Agreement if such assignment is approved in advance by ICANN pursuant to its procedures, and (b) ICANN may assign this Agreement (i) in conjunction with a reorganization or reincorporation of ICANN, to another non-profit corporation organized for the same or substantially the same purposes as ICANN, or (ii) as required by Section 5 of Amendment 1 (dated 10 November 1999) to the 25 November 1998 Memorandum of Understanding between ICANN and the United States Department of Commerce.
5.12. Force Majeure. Neither party shall be liable to the other for any loss or damage resulting from any cause beyond its reasonable control (a "Force Majeure Event") including, but not limited to, insurrection or civil disorder, war or military operations, national or local emergency, acts or omissions of government or other competent authority, compliance with any statutory obligation or executive order, industrial disputes of any kind (whether or not involving either party's employees), fire, lightning, explosion, flood subsidence, weather of exceptional severity, and acts or omissions of persons for whom neither party is responsible. Upon occurrence of a Force Majeure Event and to the extent such occurrence interferes with either party's performance of this Agreement, such party shall be excused from performance of its obligations (other than payment obligations) during the first six months of such interference, provided that such party uses its best efforts to avoid or remove such causes of nonperformance as soon as possible.
5.13. No Third-Party Beneficiaries. This Agreement shall not be construed to create any obligation by either ICANN or Sponsor to any non-party to this Agreement, including any registry operator, registrar or Registered Name Holder.
5.14. Notices, Designations, and Specifications. All notices (including determinations, designations, and specifications) to be given under this Agreement shall be given in writing at the address of the appropriate party as set forth below, unless that party has given a notice of change of address in writing. Any notice required by this Agreement shall be deemed to have been properly given when delivered in person, when sent by electronic facsimile, or when scheduled for delivery by an internationally recognized courier service. Designations and specifications by ICANN under this Agreement shall be effective when written notice of them is deemed given to Sponsor.
If to ICANN, addressed to:
Internet Corporation for Assigned Names and Numbers
4676 Admiralty Way, Suite 330
Marina Del Rey, California 90292
Telephone: +1 310 823-9358
Facsimile: +1 310 823-8649
Attention: Chief Executive Officer
If to Sponsor, addressed to:
5.15. Dates and Times. All dates and times relevant to this Agreement or its performance shall be computed based on the date and time observed in Los Angeles, California, USA.
5.16. Language. All notices, designations, determinations, and specifications made under this Agreement shall be in the English language.
5.17. Amendments and Waivers. No amendment, supplement, or modification of this Agreement or any provision hereof shall be binding unless executed in writing by both parties. No waiver of any provision of this Agreement shall be binding unless evidenced by a writing signed by the party waiving compliance with such provision. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof, nor shall any such waiver constitute a continuing waiver unless otherwise expressly provided.
5.18. 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.
5.19. Entire Agreement. This Agreement (including its Attachments, which form a part of it) constitutes the entire agreement of the parties hereto pertaining to the operation of the Sponsored 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 (Section 1 to Subsection 5.19) and any provision in its Attachments, the provisions in the body of the Agreement shall control.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in duplicate by their duly authorized representatives.
INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS
M. Stuart Lynn
President and CEO
Comments concerning the layout, construction and functionality of this site
should be sent to email@example.com.
Page Updated 20-Aug-2001
(c) 2001 The Internet Corporation for Assigned Names and Numbers. All rights reserved.