This Registry Data Escrow Agreement (“Agreement”) is made as of this May 27, 2009 (the "Effective Date"), by and between VeriSign Information Services, Inc. (“Registry Operator”), Iron Mountain Intellectual Property Management, Inc. a Delaware corporation ("Escrow Agent"), and Internet Corporation for Assigned Names and Numbers ("ICANN"). All capitalized terms not defined herein shall have the meaning set forth in the Registry Agreement (as defined below).
A. Registry Operator, pursuant to an Assignment and Assumption Agreement dated 28 February 2009, has assumed the obligations of Global Name Registry (“GNR”) under the Registry Agreement dated 15 August 2007 originally entered into by and between GNR and ICANN (the “Registry Agreement”) for the operation of the .name top-level domain (the “TLD”). The Registry Agreement requires the Registry Operator, during the term of the Registry Agreement, to submit certain domain name registration data to a reputable escrow agent to be held in escrow.
B. Pursuant to the Registry Agreement, Registry Operator shall deliver periodically to Escrow Agent an electronic copy of the Registry database, as detailed in Appendix 1 (each such delivery referred to as a "Deposit").
C. Registry Operator desires Escrow Agent to hold each Deposit, and, upon certain events, release any retained Deposits (or a copy of the Deposits) to ICANN, in accordance with the terms of this Agreement or as ordered by a court of competent jurisdiction.
D. Escrow Agent certifies that it is allowed to receive the Deposit under the UK Data Protection Act as a registered data controller and/or is certified under the European Union Safe Harbour Act.
Now, therefore, in consideration of the premises and mutual obligations contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Content of Deposits. Deposits shall be of two kinds: Full Deposits and Incremental Deposits. Each Full Deposit shall consist of Registry Data that reflects the current and complete Registry database as of the time of the Deposit. Incremental Deposits shall consist of data that reflects all transactions involving the database that are not reflected in the last previous Full Deposit or Incremental Deposit, as the case may be.
2. Schedule for Deposits. Registry Operator shall create and deliver to Escrow Agent a Full Deposit once each week, according to the schedule specified in Exhibit A. Registry Operator shall create and deliver to Escrow Agent an Incremental (or Full) Deposit once each day during which a Full Deposit is not made, according to the schedule specified in Exhibit A.
3. Format of Deposits. The data in each Full Deposit and in each Incremental Deposit shall follow the data format specified in Exhibit B.
4. Procedure for Deposits. Each properly formatted Full Deposit and Incremental Deposit shall be processed and electronically delivered in encrypted form to Escrow Agent according to the transfer process described in Exhibit C.
5. Notification of Deposits. Simultaneous with the delivery to Escrow Agent of any Full or Incremental Deposit, Registry Operator shall deliver to Escrow Agent and to ICANN a written statement (which may be by authenticated e-mail) that includes a copy of the report generated upon creation of the Full or Incremental Deposit by the program ICANN may provide at its discretion (as described in Exhibit C) and states that the Full or Incremental Deposit (as the case may be) has been inspected by Registry Operator and is complete and accurate. Escrow Agent shall notify ICANN of all Deposits received, within two business days of receipt.
6. Verification. Within two business days after receiving each Full or Incremental Deposit, Escrow Agent shall verify the format and completeness of each Deposit by performing the verification procedures specified in Exhibit D and shall deliver to ICANN a copy of the verification report generated for each Deposit (which may be by authenticated e-mail). If Escrow Agent discovers that any Deposit fails the verification procedures, Escrow Agent shall notify (permissible means include, but are not limited to email, fax or phone) Registry Operator and ICANN of such nonconformity within forty-eight hours of discovery. Upon notification of such verification failure, Registry Operator shall begin developing modifications, updates, corrections, and other fixes of the Full or Incremental Deposit necessary for the Deposit to pass the verification procedures and shall deliver such fixes to Escrow Agent as promptly as possible. Escrow Agent shall verify the accuracy or completeness of any such corrected Deposit pursuant to the procedures in this Section 6 and shall give ICANN notice of successful verification within forty-eight hours. The failure of any Full or Incremental Deposit to meet verification procedures and any efforts by Registry Operator to remedy such failure shall not delay the delivery of any subsequent scheduled Full or Incremental Deposits pursuant to the schedule in Exhibit A.
7.1 Retention. Escrow Agent shall hold and maintain the Deposits in a secure, locked, and environmentally safe facility that is accessible only to authorized representatives of Escrow Agent. Escrow Agent shall use commercially reasonable efforts to protect the integrity of the Deposits. Each of ICANN and Registry Operator shall have the right to inspect Escrow Agent's written records with respect to this Agreement upon reasonable prior notice and during normal business hours.
7.2 Destruction of Deposits. At all times, Escrow Agent shall retain the four most recent Full Deposits and all Incremental Deposits after the earliest of those four Full Deposits, all of which must have passed the verification procedures specified in Exhibit D. Escrow Agent may destroy any Deposits prior to these four most recent Full Deposits.
7.3 Confidentiality. Escrow Agent shall use commercially reasonable efforts to protect the confidentiality of the Deposits. Except as provided in this Agreement, Escrow Agent shall not disclose, transfer, make available, or use any Deposit (or any copies of any Deposit). Should Escrow Agent be put on notice that it is required to disclose any Deposits by statute, rule, regulation, order, or other requirement of a governmental agency, legislative body, court of competent jurisdiction, or binding arbitral body (other than any requirement pursuant to Sections 9.1.6, 11 or 13 of this Agreement), Escrow Agent shall notify Registry Operator and ICANN within seven days or as soon as practicable and reasonably cooperate with Registry Operator and/or ICANN in any contest of the disclosure. Should any contest prove unsuccessful, Escrow Agent shall not be held liable for any disclosure pursuant to such governmental, legislative, judicial, or arbitral order, statute, rule, regulation, or other requirement.
8. Duplication. Escrow Agent may duplicate any Deposit by any commercially reasonable means in order to comply with the terms and provisions of this Agreement, provided that Registry Operator shall bear the expense of such duplication. Alternatively, Escrow Agent, by notice to Registry Operator, may reasonably require Registry Operator to promptly oversee the duplication of any Deposit.
9. Release of Deposits. Within five business days after Escrow Agent’s receipt of the required documents and/or notices specified in this Section 9, Escrow Agent shall deliver all Deposits, or a copy of all Deposits, in Escrow Agent's possession:
9.1.2 A written notice by ICANN that the Registry Agreement has: (i) expired without renewal, pursuant to Subsection 4.2 of the Registry Agreement, or (ii) been terminated, pursuant to Subsection 6.1 of the Registry Agreement; or
18.104.22.168 ICANN failed, with respect to (a) any Full Deposit or (b) five Incremental Deposits within any calendar month, to receive, within five calendar days after the Deposit's scheduled delivery date, notification of receipt from Escrow Agent; and
9.1.6 A written notice by ICANN that a court, arbitral, legislative, or government agency that ICANN finds to be of competent jurisdiction has issued an order, rule, statute, regulation, or other requirement (a copy of which ICANN has provided to Registry Operator) that mandates the release of the Deposits to ICANN;
9.2 A written statement from ICANN or Registry Operator (whichever gave the notice under Section 9.1) to Escrow Agent that ICANN or Registry Operator (whichever gave the notice under Section 9.1) has previously notified the other party in writing; and
9.3 Written instructions from ICANN or Registry Operator (whichever gave the notice under Section 9.1) to Escrow Agent that the Deposits are to be released and delivered to ICANN or Registry Operator; and
9.4 A written undertaking by ICANN to Escrow Agent that the Deposits will be used only as permitted under the terms of the Registry Agreement and the UK Data Protection Act. Upon release of any Deposits to ICANN, Escrow Agent shall at the same time deliver to Registry Operator a photostatic copy of the notice(s) it received from ICANN under Sections 9.1.2 to 9.1.6, as applicable.
10. Release of Deposit to Registry Operator. Escrow Agent shall deliver all Deposits to Registry Operator upon termination of this Agreement in accordance with Sections 14.1 and 14.2.1 of this Agreement.
11.1 Right to Use Deposits. Upon release of any Deposits to ICANN or Registry Operator pursuant to Section 9, ICANN or Registry Operator shall immediately have the right to exercise or have exercised all rights in the Deposits necessary to provide registry services for the TLD. Upon release of any Deposits to ICANN pursuant to Section 9, ICANN (or its assignee in accordance with the Registry Agreement) shall immediately have the right, subject to Section 9.4 above, to exercise or have exercised all rights in the Deposits pursuant to the Registry Agreement, including as necessary to provide registry services.
11.2 Objection Notices. Upon release of any Deposits to ICANN pursuant to Section 9, Registry Operator shall have thirty calendar days to notify Escrow Agent and ICANN in writing (the "Objection Notice") of its objection to the release of the Deposits to ICANN and request that the issue of entitlement to the Deposits be resolved pursuant to the dispute resolution procedures in subsection 5.1 of the Registry Agreement (the “Dispute Resolution Procedures”). Registry Operator and ICANN agree to resolve any disputes they may have as between or among themselves under this Agreement according to the Dispute Resolution Procedures. The parties agree that (i) Registry Operator shall have no rights (other than pursuant to this Section 11.2) to object to any release of the Deposits, and (ii) the delivery of an Objection Notice and the commencement of Dispute Resolution Procedures shall not delay release of any Deposits to ICANN pursuant to Section 9.
11.3 Dispute-Resolution Procedures. Registry Operator and ICANN each agrees that it may not challenge, in proceedings for the resolution of disputes between or among those parties under this Agreement, the resolution of any issues, claims, or defenses that were decided, or which it had a reasonable opportunity and motive to raise, in proceedings to which it was a party under the Registry Agreement. For avoidance of doubt, Escrow Agent is not a party to the Registry Agreement and so is not bound by its terms, but Escrow Agent agrees to work in good faith with ICANN and Registry Operator to facilitate the resolution of any proceedings relating to this Agreement brought pursuant to the Dispute Resolution Procedures.
11.4 Withdrawal of Objection Notice. A party providing an Objection Notice may, at any time, notify the other parties that it wishes to withdraw its Objection Notice. Upon receipt of notice of such withdrawal, Escrow Agent shall promptly deliver to Registry Operator and/or ICANN any Deposits that have not previously been delivered.
11.5.1 If the release of Deposits under Section 9 is determined in Dispute-Resolution Procedures to have been proper, Escrow Agent shall promptly deliver, in accordance with the instructions specified in Section 9.3, any Deposits that have not previously been delivered.
11.5.2 If the release of Deposits under Section 9 is determined in dispute-resolution procedures to have been improper, the party(ies) receiving the Deposits shall promptly return or destroy, at Registry Operator's discretion, the Deposits received under Section 9.
12. Indemnity. Subject to the limitations imposed under Sections 17.3 and 17.4, Registry Operator and ICANN shall, jointly and severally, indemnify and hold harmless Escrow Agent and each of its directors, officers, agents, and employees ("Escrow Agent Indemnitees") absolutely and forever, from and against any and all claims, actions, damages, suits, liabilities, obligations, costs, fees, charges, and any other expenses whatsoever, including reasonable attorneys' fees and costs, that may be asserted by a third party against any Escrow Agent Indemnitees in connection with this Agreement or the performance of Escrow Agent or any Escrow Agent Indemnitees hereunder (with the exception of any claims based on the misrepresentation, negligence, or misconduct of Escrow Agent, its directors, officers, agents, employees and contractors). Subject to the limitations imposed under Sections 17.3 and 17.4, Escrow Agent shall likewise indemnify and hold harmless Registry Operator and ICANN, and each of their respective directors, officers, agents, and employees ("Indemnitees") absolutely and forever, from and against any and all claims, actions, damages, suits, liabilities, obligations, costs, fees, charges, and any other expenses whatsoever, including reasonable attorneys' fees and costs, that may be asserted by a third party against any Indemnitee in connection with the misrepresentation, negligence, or misconduct of Escrow Agent, its directors, officers, agents, employees and contractors.
13.1 Escrow Agent may submit any dispute under this Agreement to any court of competent jurisdiction in an interpleader or similar action. Any and all costs incurred by Escrow Agent in connection therewith, including reasonable attorneys' fees and costs, shall be borne equally by each of Registry Operator and ICANN that are parties to such interpleader or similar action.
14.1 Term. The initial term of this Agreement shall be one year, commencing on the Effective Date (the "Initial Term"). This Agreement shall be automatically renewed for an additional term of one year ("Additional Term") at the end of the Initial Term and each Additional Term hereunder unless, on or before ninety days prior to the end of the Initial Term or an Additional Term, a party notifies the other parties that it wishes to terminate this Agreement at the end of such term. In the event a party gives the other parties such notice of termination, and Registry Operator and ICANN cannot agree to resolve, by the end of the then-current term, any disputes regarding the renewal of this Agreement or the establishment of a replacement escrow agent: (i) Registry Operator and ICANN shall resolve any such disputes through the Dispute Resolution Procedures; (ii) this Agreement shall continue to remain in effect during the resolution of any such disputes; and (iii) Escrow Agent shall have the right to invoice either Registry Operator or ICANN for the data escrow services provided during this dispute resolution period at the rates listed in Exhibit E to Appendix 1. This paragraph in no way limits Registry Operator's right under Subsection 3.1.c.i of the Registry Agreement to change to a different Escrow Agent mutually approved by Registry Operator and ICANN, such approval not to be unreasonably withheld by either of them, provided that such Escrow Agent will agree to substantially similar terms as in the present document, or such other terms as Registry Operator and ICANN may reasonably agree, and there is no significant interruption of Deposits.
14.2.1 Termination of this Agreement by Registry Operator and ICANN, upon having delivered to Escrow Agent a written notice signed by each of Registry Operator and ICANN stating their mutual intent to terminate this Agreement upon ninety days' notice;
14.2.4 Termination of this Agreement by Escrow Agent with 180 days prior written notice to both ICANN and Registry Operator. If Escrow Agent so terminates it will provide reasonable assistance to ICANN and Registry Operator who shall negotiate in good faith to identify a successor escrow agent and enter into a successor escrow agreement on terms substantially similar to the terms of this Agreement, or such other terms as Registry Operator and ICANN may reasonably agree, provided, however, that Escrow Agent shall be obligated to store Deposits maintained pursuant to this Agreement for up to an additional ninety (90) days following the date of termination of this Agreement in order to allow Registry Operator and/or ICANN to effect an orderly transfer of such Deposits to a successor escrow agent .
15. Fees and Payments. Registry Operator shall pay to Escrow Agent the applicable fees and charges listed in Exhibit E as compensation for Escrow Agent's services under this Agreement. Registry Operator shall also pay applicable sales or service taxes for which Registry Operator is responsible. In the event Escrow Agent is required to perform any additional or extraordinary services as a result of being an escrow agent including intervention in any litigation or proceeding, Escrow Agent shall submit a quote of the fees for such services to the requesting party prior to the delivery of any such services. Escrow Agent shall be entitled to review and vary its standard fees and charges for its services under this Agreement from time to time but no more than once a year and at a rate of no more than five percent (5%) and only upon 45 days prior written notice to the parties. If Registry Operator fails to pay any established fees or charges invoiced by Escrow Agent by the due date(s), Escrow Agent shall give written notice to Registry Operator of non-payment of any such past-due fees hereunder and, in that event, the Registry Operator shall pay the past-due fee(s) within ten business days after receipt of the notice from Escrow Agent. In the event ICANN shall pay such past-due fees hereunder, ICANN may pursue a claim of recoupment of such fees from Registry Operator pursuant to the Dispute Resolution Procedures. If Registry Operator fails to pay in full all such past-due fees during the ten day period, Escrow Agent shall give notice of non-payment of any past-due fees to ICANN and, in that event, ICANN shall have the option of paying the past-due fee within ten business days of receipt of such notice from Escrow Agent. Upon payment of the past-due fee by either Registry Operator or ICANN, this Agreement shall continue in full force and effect. If both Registry Operator and ICANN fail to pay the past-due fee(s) within the applicable periods under this Section 15, Escrow Agent shall have the right to terminate this Agreement immediately by sending notice of termination to all other parties, and, upon termination, Escrow Agent shall, at ICANN’s election, either destroy all Deposits held by Escrow Agent or transmit the Deposits to ICANN in accordance with Section 9.
15.1 Invoice Submission Address. During the term of this Agreement, Escrow Agent agrees to submit detailed and timely invoices, not more frequently than once a month, and not later than ninety (90) days after the work performed under such invoice has been completed, to Registry Operator at the address set forth below as described herein. All invoices issued hereunder shall reference the Purchase Order number assigned to the work performed under this Agreement and the Exhibits hereto. Escrow Agent shall not submit any invoices to Registry Operator that do not reference the applicable Purchase Order number provided that Registry Operator shall be responsible for timely providing Escrow Agent such applicable Purchase Order number. Escrow Agent shall submit original invoices solely to Registry Operator’s Accounts Payable department at the mailing or electronic mailing address as set forth below:
Invoice Submission Address :
487 E. Middlefield Road
Mountain View, CA 94043
Attn: Accounts Payable
Or Invoices may be submitted electronically to :
15.2 Invoice Payment. After acceptance, Registry Operator shall pay valid and properly submitted invoices within thirty (30) days of the date of such invoice; provided, however, that Registry Operator shall not be obligated to pay any amounts disputed in good faith. Registry Operator shall notify Escrow Agent in writing in the event Registry Operator in good faith disputes the invoice or any portion thereof setting forth the reasons of such dispute, and the parties agree to negotiate in good faith a resolution to such disputed invoice; provided, however, that if the parties cannot reasonably agree on the disputed charges of such dispute, the parties shall escalate such dispute to the appropriate director/vice president level to resolve such dispute. Payments to Escrow Agent shall be sent to the remittance address set forth on Escrow Agent’s invoice.
16. Ownership of Deposit Materials. Subject to the provisions of the Registry Agreement (including Subsection 6.5), the parties recognize and acknowledge that ownership of the Deposit materials during the effective term of this Agreement shall remain with the Registry Operator at all times.
17.1 Remedies. For the purposes of fulfilling its obligations under this Agreement, Escrow Agent may act in good faith reliance on, and shall not be held liable for, any written notice, instruction, instrument, or other writing signed or presented by a person with apparent authority to act on behalf of Registry Operator or ICANN.
17.3 Limitation of Liability. As between Registry Operator and ICANN the liability limitations of subsection 5.3 of the Registry Agreement apply with respect to any disputes under this Agreement. Notwithstanding anything else in this Agreement, all liability, if any, whether arising in contract, tort (including negligence) or otherwise of Escrow Agent, on the one hand, and ICANN and/or Registry Operator on the other hand, shall be limited to the amount equal to one (1) year of fees paid or owed to Escrow Agent under this Agreement. This limit shall not apply to any party for: (i) any claims of infringement of any patent, copyright, or trademark; (ii) liability for death or bodily injury; or (iii) proven gross negligence or willful misconduct.
17.4 Consequential Damages Waiver. In no event shall any party to this Agreement be liable to another party for any incidental, special, punitive or consequential damages, lost profits, any costs or expenses for the procurement of substitute services, or any other indirect damages, whether arising in contract, tort (including negligence) or otherwise even if the possibility thereof may be known in advance to one or more parties.
17.6 No Third-Party Beneficiaries. This Agreement shall not be construed to create any obligation by Registry Operator, ICANN, or Escrow Agent to any non-party to this Agreement, including but not limited to any domain-name holder or registrar.
17.8 Assignment. Neither Registry Operator nor ICANN may assign or transfer this Agreement (by merger, sale of assets, operation of law, or otherwise), except that the rights and obligations of Registry Operator or ICANN automatically shall be transferred to the assignee of one of those parties' rights and obligations under the Registry Agreement. However, Escrow Agent shall have no obligation in performing this Agreement to recognize any successor or assign of ICANN or Registry Operator unless Escrow Agent receives clear, authoritative and conclusive written evidence of the change of parties. Escrow Agent may not assign or transfer this Agreement without the prior written consent of Registry Operator and ICANN, provided such consent will not be unreasonably withheld or delayed.
17.9 Entire Agreement. This Agreement, including all exhibits referenced herein, supersedes all prior discussions, understandings, and agreements between Escrow Agent and the other parties with respect to the data escrow services. Registry Operator and ICANN acknowledge and agree that, as between themselves, the Registry Agreement (including all its appendices) is intended to co-exist with this Agreement; this Agreement is supplementary to the Registry Agreement; and the Registry Agreement shall control in the event of any conflict between this Agreement and the Registry Agreement.
17.10 Counterparts. This Agreement may be executed in counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same Agreement.
17.11 Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California, USA without regard to its conflicts-of-laws principles. The parties consent and agree that jurisdiction and venue for any legal proceedings relating to this Agreement shall lie with the state and federal courts of Los Angeles County in the State of California.
17.12 Notices. All notices, requests, demands or other communications required or permitted to be given or made under this Agreement, unless expressly otherwise provided for, shall be in writing and shall be delivered by hand, by commercial overnight delivery service which provides for evidence of receipt, by certified mail, return receipt requested, postage prepaid, by facsimile, or by e-mail (e-mail to be followed promptly at receiver's request by a copy delivered by one of the other means of delivery) to the corresponding addresses listed on the signature page of this Agreement. If delivered personally, by commercial overnight delivery service, by facsimile, or by e-mail, the date on which the notice, request, instruction, or document is delivered shall be the date on which delivery is deemed to be made, and if delivered by mail, the date on which such notice, request, instruction, or document is received shall be the date on which delivery is deemed to be made. Any correctly addressed notice to last known address of the other parties that is relied on herein and that is refused, unclaimed, or undeliverable because of an act or omission of the party to be notified as provided herein shall be deemed effective as of the first date that said notice was refused, unclaimed, or deemed undeliverable by electronic mail, the postal authorities by mail, through messenger or commercial express delivery services, unless such party attempting to deliver such notice actually knew that such last known address provided in accordance with this Agreement was incorrect, and had reason to know the current and correct address of such party . Any party may change its address for the purpose of this Agreement by notice in writing to the other parties as provided herein.
17.14 No Waiver. No failure on the part of any party hereto to exercise, and no delay in exercising any right, power, or single or partial exercise of any right, power, or remedy by any party will preclude any other or further exercise of that or any other right, power, or remedy. No express waiver or assent by any party to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition.
17.15 Separation of Conflicting Businesses. Escrow Agent shall adhere to strict separation of business practices with respect to its registrar/registry data escrow and domain name businesses. Escrow Agent shall ensure that all personnel with access to Deposits in an unencrypted form, if applicable, are provided with strict guidance on conflict of interest avoidance with respect to Escrow Agent’s domain name businesses and the confidentiality obligations set forth in this Agreement. Escrow Agent shall ensure that no employees providing services to customers in its domain name businesses have access to Deposits (encrypted or unencrypted). In addition, the service delivery teams for Escrow Agent’s registrar/registry data escrow business and Escrow Agent’s domain businesses shall not be located in the same facility.
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IN WITNESS WHEREOF each of the parties has caused its duly authorized officer to execute this Agreement as of the Effective Date above written.
Iron Mountain Intellectual Property Management, Inc.
VeriSign Information Services, Inc.
Internet Corporation for Assigned Names and Numbers
See Appendix 1 to the Registry Agreement for Exhibits A through D to this Agreement.