This Registry-Registrar Agreement (the "Agreement"), dated as of _______________, _____ , is made and
entered into by and between PUBLIC INTEREST REGISTRY, a Pennsylvania non-profit
corporation with its principal place of business located at 1775 Wiehle Avenue,
Suite 102A, Reston, VA 20190 (PIR), and
________________________________________, a ________________________, with its
principal place of business located at ________________________________
("Registrar"). PIR and Registrar may be referred to individually as
a "Party" and collectively as the "Parties."
WHEREAS, PIR has entered a Registry Agreement with the
Internet Corporation for Assigned Names and Numbers to operate a shared
registration system, TLD nameservers, and other equipment for the .ORG
top-level domain;
WHEREAS, multiple registrars will provide Internet domain
name registration services within the .ORG top-level domain;
WHEREAS, Registrar wishes to act as a registrar for domain
names within the .ORG top-level domain.
NOW, THEREFORE, for and in consideration of the mutual
promises, benefits and covenants contained herein and for other good and
valuable consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged, PIR and Registrar, intending to be legally bound, hereby
agree as follows:
1. DEFINITIONS
1.1. The
"APIs" are the application program interfaces by which Registrar may
interact, through the EPP, with the Registry System.
1.2.
"Confidential Information" means all information and materials,
including, without limitation, computer software, data, information,
intellectual property, databases, protocols, reference implementation and
documentation, financial information, statistics and functional and interface
specifications, provided by the Disclosing Party to the Receiving Party under
this Agreement and marked or otherwise identified as Confidential, provided
that if a communication is oral, the Disclosing Party will notify the Receiving
Party in writing, including by email, within 15 days of the disclosure that it
is confidential.
1.3.
"DNS" means the Internet domain name system.
1.4.
The "Effective Date" shall be the date first set forth above.
1.5.
"EPP" means the Extensible Provisioning Protocol, which is the protocol
used by the Registry System.
1.6."ICANN"
means the Internet Corporation for Assigned Names and Numbers.
1.7.
"Personal Data" refers to data about any identified or identifiable
natural person.
1.8.
"Registered Name" refers to a domain name within the domain of the
Registry TLD, whether consisting of two or more (e.g., john.smith.ORG) levels,
about which PIR or an affiliate engaged in providing Registry Services
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 TLD zone file (e.g., a
registered but inactive name).
1.9.
"Registered Name Holder" means the holder of a Registered Name.
1.10.
The "Registrar Tool Kit" comprises the EPP, APIs and Software.
1.11.
"Registry Agreement" means the Registry Agreement between PIR and
ICANN dated as of 8 December, 2006, for the operation of the Registry TLD, as
amended from time to time.
1.12.
"Registry Database" means a database comprised of data about one or
more DNS domain names within the domain of the Registry 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.
1.13.
"Registry Services" Registry Services are: (a) those services that
are both (i) operations of the registry critical to the following tasks: the
receipt of data from registrars concerning registrations of domain names and
name servers; provision to registrars of status information relating to the
zone servers for the TLD; dissemination of TLD zone files; operation of the
registry zone servers; and dissemination of contact and other information
concerning domain name server registrations in the TLD as required by this
Agreement; and (ii) provided by the Registry Operator for the .org registry as
of the Effective Date; (b) other products or services that the Registry
Operator is required to provide because of the establishment of a Consensus
Policy (as defined in the Registry Agreement); (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.
1.14.
"Registry TLD" means the .ORG TLD.
1.15. The "Registry System" means the system
operated by PIR for Registered Names in the Registry TLD.
1.16.
“Software” means reference client software intended to allow Registrar to
develop its system to register second-level domain names through the Registry
System.
1.17.
"Term" means the term of this Agreement, as set forth in Subsection
9.1.
1.18.
A "TLD" means a top-level domain of the DNS.
Other terms used in this Agreement as defined terms shall
have the meanings ascribed to them in the context in which they are defined.
2. OBLIGATIONS OF PIR
2.1.
Access to Registry System. Throughout the Term of this Agreement, PIR shall
operate the Registry System and provide Registrar with access to the Registry
System to transmit domain name registration information for the Registry TLD to
the Registry System. Nothing in this Agreement entitles Registrar to enforce
any agreement between PIR and ICANN.
2.2.
Maintenance of Registrations Sponsored by Registrar. Subject to the
provisions of this Agreement, ICANN requirements, and PIR requirements
authorized by ICANN, PIR shall maintain the registrations of Registered Names
sponsored by Registrar in the Registry System during the term for which
Registrar has paid the fees required by Subsection 4.1.
2.3.
Provision of Tool Kit; License. No later than three business days after the
Effective Date, PIR shall provide to Registrar a copy of the Registrar Tool
Kit, which shall provide sufficient technical specifications to permit registrar
interface with the Registry System and employ its features that are available
to Registrars. Subject to the terms and conditions of this Agreement, PIR
hereby grants Registrar and Registrar accepts a non-exclusive,
non-transferable, worldwide limited license to use for the Term and purposes of
this Agreement, all components owned by or licensed to PIR in and to the EPP,
APIs, any reference client software and any other intellectual property
included in the Registrar Tool Kit, as well as updates and redesigns thereof,
to provide domain name registration services in the Registry TLD only and for
no other purpose.
2.4.
Changes to System. PIR may from time to time replace or make modifications
to the EPP, APIs, or Software or other materials licensed hereunder that will
modify, revise or augment the features of the Registry System. PIR will provide
Registrar with at least ninety days notice prior to the implementation of any
material changes to the EPP, APIs, Software or other materials licensed
hereunder.
2.5. Engineering
and Customer Service Support.
2.5.1.
Engineering Support. PIR agrees to provide Registrar with reasonable
engineering telephone support (24 hour/7 day) to address engineering issues
arising in connection with Registrar's use of the Registry System.
2.5.2.
Customer Service Support. During the Term of this Agreement, PIR will
provide reasonable telephone and e-mail customer service support to Registrar
(but not to Registered Name Holders or prospective customers of Registrar), for
non-technical issues solely relating to the Registry System and its operation.
PIR will provide Registrar with a telephone number and e-mail address for such
support during implementation of the Protocol, APIs and Software. First-level
telephone support will be available on business days between the hours of 9
a.m. and 5 p.m. Eastern US time.
2.6.
Handling of Personal Data. PIR shall notify Registrar of the purposes for
which Personal Data submitted to PIR by Registrar 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. PIR shall take
reasonable steps to protect Personal Data from loss, misuse, unauthorized
disclosure, alteration or destruction. PIR shall not use or authorize the use
of Personal Data in a way that is incompatible with the notice provided to
registrars. PIR may from time to time use the demographic data collected for
statistical analysis, provided that this analysis will not disclose individual
Personal Data and provided that such use is compatible with the notice provided
to registrars regarding the purpose and procedures for such use.
2.7.
Service Level Agreement. PIR shall issue credits to Registrar as described
in Appendix 10 to the Registry Agreement, which appendix is hereby incorporated
by reference, as amended from time to time.
2.8. ICANN
Requirements. PIR’S obligations hereunder are subject to modification at
any time as the result of ICANN-mandated requirements and consensus policies.
Notwithstanding anything in this Agreement to the contrary, Registrar shall
comply with any such ICANN requirements in accordance with the timeline defined
by ICANN.
3. OBLIGATIONS OF REGISTRAR
3.1.
Accredited Registrar. During the Term of this Agreement, Registrar shall
maintain in full force and effect its accreditation by ICANN as a registrar for
the Registry TLD.
3.2.
Registrar Responsibility for Customer Support. Registrar shall provide (i)
support to accept orders for registration, cancellation, modification, renewal,
deletion or transfer of Registered Names and (ii) customer service (including
domain name record support) and billing and technical support to Registered
Name Holders. Registrar shall publish to Registered Name Holders emergency
contact information for critical situations such as domain name hijacking.
3.3.
Registrar's Registration Agreement. At all times while it is sponsoring the
registration of any Registered Name within the Registry System, Registrar shall
have in effect an electronic or paper registration agreement with the
Registered Name Holder. Registrar shall include in its registration agreement
those terms required by this Agreement and other terms that are consistent with
Registrar's obligations to PIR under this Agreement.
3.4.
Indemnification Required of Registered Name Holders. In its registration
agreement with each Registered Name Holder, Registrar shall require such
Registered Name Holder to indemnify, defend and hold harmless PIR and its
subcontractors, and the directors, officers, employees, affiliates and agents
of each of them, from and against any and all claims, damages, liabilities,
costs and expenses, including reasonable legal fees and expenses, arising out
of or relating to the Registered Name Holder's domain name registration. The
registration agreement shall further require that this indemnification
obligation survive the termination or expiration of the registration agreement.
3.5.
Compliance with Terms and Conditions. Registrar shall comply with each of
the following requirements, and further shall include in its registration
agreement with each Registered Name Holder, as applicable, an obligation for
such Registered Name Holder to comply with each of the following requirements:
3.5.1.
ICANN standards, policies, procedures, and practices for which PIR has
monitoring responsibility in accordance with the Registry Agreement or other
arrangement with ICANN; and
3.5.2.
operational standards, policies, procedures, and practices for the Registry TLD
established from time to time by PIR in a non-arbitrary manner and applicable
to all registrars, including affiliates of PIR, and consistent with ICANN's
standards, policies, procedures, and practices and PIR’S Registry Agreement
with ICANN. Additional or revised PIR operational standards, policies,
procedures, and practices for the Registry TLD shall be effective upon thirty
days notice by PIR to Registrar. If there is a discrepancy between the terms
required by this Agreement and the terms of the Registrar’s registration
agreement, the terms of this Agreement shall supersede those of the Registrar’s
registration agreement.
3.6.
Additional Requirements for Registration Agreement. In addition to the
provisions of Subsection 3.5, in its registration agreement with each
Registered Name Holder, Registrar shall require such Registered Name Holder to:
3.6.1.
consent to the use, copying, distribution, publication, modification and other
processing of Registered Name Holder's Personal Data by PIR and its designees
and agents in a manner consistent with the purposes specified pursuant to Subsection
2.6;
3.6.2. submit
to proceedings commenced under ICANN's Uniform Domain Name Dispute Resolution
Policy ("UDRP"); and
3.6.3.
immediately correct and update the registration information for the Registered
Name during the registration term for the Registered Name;
3.6.4. agree
to be bound by the terms and conditions of the initial launch of the Registry
TLD, including without limitation the sunrise period and the land rush period,
and the Sunrise Dispute Resolution Policy, and further to acknowledge that PIR
has no liability of any kind for any loss or liability resulting from the
proceedings and processes relating to the sunrise period or the land rush
period, including, without limitation: (a) the ability or inability of a
registrant to obtain a Registered Name during these periods, and (b) the
results of any dispute over a sunrise registration; and
3.6.5.
acknowledge and agree that PIR reserves the right to deny, cancel or transfer
any registration or transaction, or place any domain name(s) on registry lock,
hold or similar status, that it deems necessary, in its discretion; (1) to
protect the integrity and stability of the registry; (2) to comply with any
applicable laws, government rules or requirements, requests of law enforcement,
or any dispute resolution process; (3) to avoid any liability, civil or
criminal, on the part of PIR, as well as its affiliates, subsidiaries,
officers, directors, and employees; (4) per the terms of the registration
agreement or (5) to correct mistakes made by PIR or any Registrar in connection
with a domain name registration. PIR also reserves the right to place upon
registry lock, hold or similar status a domain name during resolution of a
dispute.
3.7. Data
Submission Requirements.
3.7.1. As
part of its registration and sponsorship of Registered Names in the Registry
TLD, Registrar shall submit complete data as required by technical
specifications of the Registry System that are made available to Registrar from
time to time. Registrar hereby grants PIR a non-exclusive, non-transferable,
limited license to such data for propagation of and the provision of authorized
access to the TLD zone files and as otherwise required in PIR’S operation of
the Registry TLD.
3.7.2.
Registrar shall submit any corrections or updates from a Registered Name Holder
relating to the registration information for a Registered Name to PIR in a
timely manner.
3.8. Security.
3.8.1.
Registrar shall develop and employ in its domain name registration business all
necessary technology and restrictions to ensure that its connection to the Registry
System is secure and that all data exchanged between Registrar's system and the
Registry System shall be protected to avoid unintended disclosure of
information. Registrar shall employ the necessary measures to prevent its
access to the Registry System granted hereunder from being used to (i) allow,
enable, or otherwise support the transmission by e-mail, telephone, or
facsimile of mass unsolicited, commercial advertising or solicitations to
entities other than its own existing customers; or (ii) enable high volume,
automated, electronic processes that send queries or data to the systems of
PIR, any other registry operated under an agreement with ICANN, or any
ICANN-accredited registrar, except as reasonably necessary to register domain
names or modify existing registrations. In addition, PIR may require other
reasonable security provisions to ensure that the Registry System is secure and
stable.
3.8.2. Each
session wherein Registrar accesses the Registry System shall be authenticated
and encrypted using two-way secure socket layer ("SSL") protocol. At
a minimum, Registrar shall authenticate every client connection with the
Registry System using both an X.509 server certificate issued by a commercial
certification authority identified by the PIR and its Registrar password.
Registrar shall disclose only its Registrar password to its employees with a
need to know. Registrar agrees to notify PIR within four hours of learning that
its Registrar password has been compromised in any way or if its server certificate
has been revoked by the issuing certification authority or compromised in any
way.
3.8.3.
Registrar shall not provide identical Registrar-generated authorization
<authinfo> codes for domain names registered by different registrants
with the same Registrar. PIR in its sole discretion may choose to modify
<authinfo> codes for a given domain and shall notify the sponsoring
registrar of such modifications via EPP compliant mechanisms (i.e.
EPP<poll> or EPP<domain:Info>). Documentation of these mechanisms
shall be made available to Registrar by PIR. The Registrar shall provide the
Registered Name Holder with timely access to the authorization code along with
the ability to modify the authorization code. Registrar shall respond to any
inquiry by a Registered Name Holder regarding access to and/or modification of
an authorization code within five (5) calendar days.
3.9.
Resolution of Technical Problems. Registrar shall employ necessary
employees, contractors, or agents with sufficient technical training and
experience to respond to and fix all technical problems concerning the use of
the EPP, the APIs and the systems of PIR in conjunction with Registrar's
systems. In the event of significant degradation of the Registry System or
other emergency, PIR may, in its sole discretion, temporarily suspend or
restrict Registrar's access to the Registry System. Such temporary suspensions
shall be applied in a non-arbitrary manner and shall apply fairly to any
registrar similarly situated, including affiliates of PIR.
3.10.
Time. In the event of any dispute concerning the time of the entry of a
domain name registration into the Registry Database, the time shown in the
Registry records shall control.
3.11.
Transfer of Registration Sponsorship. Registrar agrees to implement
transfers of Registered Name registrations from another registrar to Registrar
and vice versa pursuant to the Policy on Transfer of Registrations Between
Registrars as may be amended from time to time by ICANN (the “Transfer
Policy”).
3.12. Restrictions
on Registered Names. In addition to complying with ICANN standards,
policies, procedures, and practices limiting domain names that may be
registered, Registrar agrees to comply with applicable statutes and regulations
limiting the domain names that may be registered.
4. FEES
4.1. Amount
of PIR Fees. Registrar agrees to pay PIR the fees set forth in Exhibit A
for services provided by PIR to Registrar (collectively, "Fees"). PIR
reserves the right to revise the Fees from time to time, provided that PIR
shall provide at least six (6) months notice to Registrar prior to any
increases in fees for initial registrations, renewal registrations or fees for
registrations associated with transfers of sponsorship. In addition, Registrar
agrees to pay PIR the applicable variable fees assessed to Registry Operator by
ICANN, as permitted by Subsection 7.2(b) of the Registry Agreement by no later
ten (10) days after the date of an invoice from Registry Operator for such
fees.
4.2.
Payment of PIR Fees. In advance of incurring Fees, Registrar shall
establish a letter of credit, deposit account, or other credit facility
accepted by PIR (“Payment Security”), which acceptance will not be unreasonably
withheld so long as payment is assured. All Fees are due immediately upon
receipt of applications for initial and renewal registrations, registrations
associated with transfers of sponsorship, or upon provision of other services
provided by PIR to Registrar. Payment shall be made via debit or draw down of
the deposit account, letter of credit or other credit facility. PIR shall
provide monthly invoice statements to the Registrar. The Registrar must pay
this invoice upon receipt in order to ensure timely processing of future domain
name registrations.
4.3.
Non-Payment of Fees. In the event Registrar has insufficient funds
deposited or available through the letter of credit or credit facility with
PIR, PIR may do any or all of the following: (a) stop accepting new initial or
renewal registrations, or registrations associated with transfers of
sponsorship, from Registrar; (b) delete the domain names associated with any
negative balance incurred or invoice not paid in full from the Registry
database (c) give written notice of termination of this Agreement pursuant to
Subsection 9.2.1; and (d) pursue any other remedy under this Agreement.
5. CONFIDENTIALITY AND INTELLECTUAL
PROPERTY
5.1. Use
of Confidential Information. During the Term of this Agreement, each party
(the "Disclosing Party") may disclose its Confidential Information to
the other party (the "Receiving Party"). Each party's use and
disclosure of the Confidential Information of the other party shall be subject
to the following terms and conditions:
5.1.1.
The Receiving Party shall treat as strictly confidential, and use all
reasonable efforts to preserve the secrecy and confidentiality of, all
Confidential Information of the Disclosing Party, including implementing
reasonable physical security measures and operating procedures.
5.1.2.
The Receiving Party agrees that it will use any Confidential Information of the
Disclosing Party solely for the purpose of exercising its right or performing
its obligations under this Agreement and for no other purposes whatsoever.
5.1.3.
The Receiving Party shall make no disclosures whatsoever of any Confidential
Information of the Disclosing Party to others; provided, however, that if the
Receiving Party is a corporation, partnership, or similar entity, disclosure is
permitted to the Receiving Party's officers, employees, contractors and agents
who have a demonstrable need to know such Confidential Information, provided
the Receiving Party shall advise such personnel of the confidential nature of
the Confidential Information and of the procedures required to maintain the
confidentiality thereof, and shall require them to acknowledge in writing that
they have read, understand, and agree to be individually bound by the
confidentiality terms of this Agreement.
5.1.4.
The Receiving Party shall not modify or remove any confidentiality legends
and/or copyright notices appearing on any Confidential Information of the Disclosing
Party.
5.1.5.
The Receiving Party agrees not to prepare any derivative works based on the
Confidential Information.
5.1.6.
Notwithstanding the foregoing, this Subsection 5.1 imposes no obligation upon
the parties with respect to information that (i) is disclosed in the absence of
a confidentiality agreement and such disclosure was agreed to by the Disclosing
Party in writing prior to such disclosure; or (ii) is or has entered the public
domain through no fault of the Receiving Party; or (iii) is known by the
Receiving Party prior to the time of disclosure; or (iv) is independently
developed by the Receiving Party without use of the Confidential Information;
or (v) is made generally available by the Disclosing Party without restriction
on disclosure; or (vi) is required to be disclosed by law, regulation or court
order; provided, that in the event the Receiving Party is required by law,
regulation or court order to disclose any of Disclosing Party's Confidential
Information, Receiving Party will promptly notify Disclosing Party in writing
prior to making any such disclosure in order to facilitate Disclosing Party
seeking a protective order or other appropriate remedy from the proper
authority, at the Disclosing Party's expense. Receiving Party agrees to cooperate
with Disclosing Party in seeking such order or other remedy. Receiving Party
further agrees that if Disclosing Party is not successful in precluding the
requesting legal body from requiring the disclosure of the Confidential
Information, it will furnish only that portion of the Confidential Information
which is legally required.
5.1.7.
The Receiving Party's duties under this Subsection 5.1 shall expire two (2)
years after the expiration or termination of this Agreement or earlier, upon
written agreement of the parties.
5.2.
Intellectual Property.
5.2.1.
Subject to the licenses granted hereunder, each party will continue to
independently own its intellectual property, including all patents, trademarks,
trade names, service marks, copyrights, trade secrets, proprietary processes
and all other forms of intellectual property.
5.2.2.
Without limiting the generality of the foregoing, no commercial use rights or
any licenses under any patent, patent application, copyright, trademark,
know-how, trade secret, or any other intellectual proprietary rights are
granted by the Disclosing Party to the Receiving Party by this Agreement, or by
any disclosure of any Confidential Information to the Receiving Party under
this Agreement.
6. INDEMNITIES AND LIMITATION OF LIABILITY
6.1.
Indemnification. Registrar, at its own expense and within thirty days after
presentation of a demand by PIR under this Section, will indemnify, defend and
hold harmless PIR and its subcontractors, and the directors, officers,
employees, representatives, agents and affiliates of each of them, against any
claim, suit, action, or other proceeding brought against any such party(ies)
based on or arising from any claim or alleged claim: (i) relating to any
product or service of Registrar; (ii) relating to any agreement, including
Registrar's dispute policy, with any Registered Name Holder or Registrar; or
(iii) relating to Registrar's domain name registration business, including, but
not limited to, Registrar's advertising, domain name application process,
systems and other processes, fees charged, billing practices and customer
service. PIR shall provide Registrar with prompt notice of any such claim, and
upon Registrar's written request, PIR will provide to Registrar all available
information and assistance reasonably necessary for Registrar to defend such
claim, provided that Registrar reimburses PIR for PIR’S actual and reasonable
costs incurred in connection with providing such information and assistance.
Registrar will not enter into any settlement or compromise of any such
indemnifiable claim without PIR’S prior written consent, which consent shall
not be unreasonably withheld. Registrar will pay any and all costs, damages,
and expenses, including, but not limited to, reasonable attorneys' fees and
costs awarded against or otherwise incurred by PIR in connection with or
arising from any such indemnifiable claim, suit, action or proceeding.
6.2.
Representation and Warranty. Registrar represents and warrants that: (i) it
is a corporation duly incorporated, validly existing and in good standing under
the law of the jurisdiction of its formation (ii) it has all requisite
corporate power and authority to execute, deliver and perform its obligations
under this Agreement, (iii) the execution, performance and delivery of this
Agreement has been duly authorized by Registrar, (iv) it is, and will continue
to be, accredited by ICANN or its successor and (v) no further approval,
authorization or consent of any governmental or regulatory authority is
required to be obtained or made by Registrar in order for it to enter into and
perform its obligations under this Agreement.
6.3.
Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY
SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR
ANY DAMAGES RESULTING FROM LOSS OF PROFITS OR BUSINESS INTERRUPTION, ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE MAXIMUM
AGGREGATE LIABILITY OF PIR AND ITS SUBCONTRACTORS EXCEED THE LESSER OF (i) THE
TOTAL AMOUNT PAID TO PIR UNDER THE TERMS OF THIS AGREEMENT FOR THE IMMEDIATELY
PRECEEDING 12 MONTH PERIOD, OR (ii) $100,000 USD.
6.4.
Disclaimer of Warranties. THE REGISTRAR TOOL KIT AND ALL OTHER ITEMS
PROVIDED BY PIR HEREUNDER ARE PROVIDED "AS-IS" AND WITHOUT ANY
WARRANTY OF ANY KIND. PIR EXPRESSLY DISCLAIMS ALL WARRANTIES AND/OR CONDITIONS,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND
CONDITIONS OF MERCHANTABILITY OR SATISFACTORY QUALITY AND FITNESS FOR A
PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. PIR DOES NOT
WARRANT THAT THE FUNCTIONS CONTAINED IN THE REGISTRAR TOOL KIT WILL MEET
REGISTRAR'S REQUIREMENTS, OR THAT THE OPERATION OF THE REGISTRAR TOOL KIT WILL
BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE REGISTRAR TOOL KIT WILL
BE CORRECTED. FURTHERMORE, PIR DOES NOT WARRANT NOR MAKE ANY REPRESENTATIONS
REGARDING THE USE OR THE RESULTS OF THE REGISTRAR TOOL KIT OR RELATED
DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR
OTHERWISE. SHOULD THE REGISTRAR TOOL KIT PROVE DEFECTIVE, REGISTRAR ASSUMES THE
ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION OF REGISTRAR'S OWN
SYSTEMS AND SOFTWARE.
6.5.
Reservation of Rights. PIR reserves the right to deny, cancel or transfer
any registration or transaction, or place any domain name(s) on registry lock,
hold or similar status, that it deems necessary, in its discretion; (1) to
protect the integrity and stability of the registry; (2) to comply with any
applicable laws, government rules or requirements, requests of law enforcement,
or any dispute resolution process; (3) to avoid any liability, civil or
criminal, on the part of PIR, as well as its affiliates, subsidiaries,
officers, directors, and employees; (4) for violations of this Agreement,
including, without limitation, the exhibits hereto; or (5) to correct mistakes
made by PIR or any Registrar in connection with a domain name registration. PIR
also reserves the right to place a domain name on registry hold, registry lock,
or similar status during resolution of a dispute.
7. INSURANCE
7.1.
Insurance Requirements. Registrar shall acquire, on or before the Effective
Date, at least US $1,000,000 in comprehensive general liability insurance from
a reputable insurance provider with a rating equivalent to an A.M. Best rating
of “A” or better and shall maintain insurance meeting these requirements
throughout the Term of this Agreement. Registrar shall provide a copy of the
insurance policy to Registry Operator, current as of the Effective Date, upon
execution of this Agreement, and from time to time thereafter upon Registry
Operator’s reasonable request. Such insurance shall entitle PIR to seek
compensation under such policy on behalf of PIR and its subcontractors, and the
directors, officers, employees, representatives, agents, and affiliates of each
of them, in respect of all costs and damages (including reasonable attorney
fees) which any of them may suffer by reason of Registrar’s failure to meet its
indemnification obligations under this Agreement.
8. DISPUTE RESOLUTION
8.1.
Dispute Resolution. 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 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 the state of Virginia, U.S.A. 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. Any litigation brought to enforce an arbitration award shall be
brought in the state or federal courts of the state of Virginia, U.S.A.; 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 a party during the pendency of an arbitration,
each party shall have the right to seek temporary or preliminary injunctive
relief from the arbitration panel or a court located in the state or federal
courts in the state of Virginia, U.S.A., which shall not be a waiver of this
arbitration agreement.
9. TERM AND TERMINATION
9.1. Term
of the Agreement; Revisions. The Term of this Agreement shall commence on
the Effective Date and, unless earlier terminated in accordance with the
provisions of this Agreement, shall expire on the last day of the calendar
month which is two (2) years following the Effective Date. This Agreement
shall automatically renew for additional successive two (2) year terms unless
Registrar provides notice of termination to Registry Operator at least thirty
(30) days prior to the end of the initial or any renewal term. In the event
that revisions to PIR’S approved form of Registry-Registrar Agreement are
approved or adopted by ICANN, Registrar will either execute an amendment
substituting the revised agreement in place of this Agreement or, at its option
exercised within fifteen (15) days after receiving notice of such amendment,
terminate this Agreement immediately by giving written notice to PIR. In the
event that PIR does not receive such executed amendment or notice of
termination from Registrar within such fifteen day period, Registrar shall be
deemed to have terminated this Agreement effective immediately.
9.2.
Termination. This Agreement may be terminated as follows:
9.2.1.
Termination For Cause. In the event that either party materially breaches any
of its obligations under this Agreement and such breach is not substantially
cured within thirty calendar days after written notice thereof is given by the
other party, then the non-breaching party may, by giving written notice thereof
to the other party, terminate this Agreement as of the date specified in such
notice of termination.
9.2.2.
Termination at Option of Registrar. Registrar may terminate this Agreement at
any time by giving PIR thirty days notice of termination.
9.2.3.
Termination Upon Loss of Registrar's Accreditation. This Agreement shall
terminate in the event Registrar's accreditation by ICANN is terminated or
expires without renewal.
9.2.4.
Termination in the Event of Termination of Registry Agreement. This Agreement
shall terminate in the event that PIR’S Registry Agreement with ICANN is
terminated or expires without entry of a subsequent Registry Agreement with
ICANN and this Agreement is not assigned under Subsection 10.1.1.
9.2.5.
Termination in the Event of Insolvency or Bankruptcy. Either party may
terminate this Agreement if the other party is adjudged insolvent or bankrupt,
or if proceedings are instituted by or against a party seeking relief,
reorganization or arrangement under any laws relating to insolvency, or seeking
any assignment for the benefit of creditors, or seeking the appointment of a
receiver, liquidator or trustee of a party's property or assets or the
liquidation, dissolution or winding up of a party's business.
9.3.
Effect of Termination. Upon the expiration or termination of this Agreement
for any reason:
9.3.1.
PIR will complete the registration of all domain names processed by Registrar
prior to the effective date of such expiration or termination, provided that
Registrar's payments to PIR for Fees are current and timely.
9.3.2.
Registrar shall immediately transfer its sponsorship of Registered Names to
another ICANN-accredited registrar in compliance with any procedures
established or approved by ICANN.
9.3.3.
All Confidential Information of the Disclosing Party in the possession of the
Receiving Party shall be immediately returned to the Disclosing Party.
9.3.4.
In the event of termination in accordance with the provisions of Subsections
9.1, 9.2.1, 9.2.2, 9.2.3 or 9.2.5, PIR reserves the right to immediately
contact any and all Registered Name Holders to facilitate the orderly and
stable transition of Registered Name Holders to other ICANN-accredited
registrars.
9.3.5. All
fees owing to PIR shall become immediately due and payable.
9.4.
Survival. In the event of termination of this Agreement, the following
shall survive: (i) Subsections 2.6, 3.6, 5.1, 5.2, 6.1, 6.3, 6.4, 8.1, 9.4,
10.2, 10.3, 10.4, 10.6, 10.7 and 10.8 and (ii) the Registered Name Holder's
indemnification obligation under Subsection 3.4. Neither party shall be liable
to the other for damages of any sort resulting solely from terminating this
Agreement in accordance with its terms.
10. MISCELLANEOUS
10.1.
Assignments.
10.1.1.
Assignment to Successor PIR. In the event the PIR’S Registry Agreement is
terminated or expires without entry by PIR and ICANN of a subsequent registry
agreement, PIR’S rights under this Agreement may be assigned to a company with
a subsequent registry agreement covering the Registry TLD upon ICANN's giving
Registrar written notice within sixty days of the termination or expiration,
provided that the subsequent PIR assumes the duties of PIR under this
Agreement.
10.1.2.
Assignment in Connection with Assignment of Agreement with ICANN. In the event
that PIR’S Registry Agreement with ICANN for the Registry TLD is validly
assigned, PIR’S rights under this Agreement shall be automatically assigned to
the assignee of the Registry Agreement, provided that the assignee assumes the
duties of PIR under this Agreement. In the event that Registrar's accreditation
agreement with ICANN for the Registry TLD is validly assigned, Registrar's
rights under this Agreement shall be automatically assigned to the assignee of
the accreditation agreement, provided that the subsequent registrar assumes the
duties of Registrar under this Agreement.
10.1.3.
Other Assignments. Except as otherwise expressly provided in this Agreement,
the provisions of this Agreement shall inure to the benefit of and be binding
upon, the successors and permitted assigns of the parties. Neither party shall
assign or transfer its rights or obligations under this Agreement without the
prior written consent of the other party, which shall not be unreasonably
withheld.
10.2.
Notices. Any notice or other communication required or permitted to be
delivered to any party under this Agreement shall be in writing and shall be
deemed properly delivered, given and received when delivered (by hand, by
registered mail, by courier or express delivery service, by e-mail or by
telecopier during business hours) to the address or telecopier number set forth
beneath the name of such party below, unless such party has given a notice of a
change of address in writing:
If to Registrar:
_____________________________________________
_____________________________________________
_____________________________________________
_____________________________________________
_____________________________________________
with copy to:
_____________________________________________
_____________________________________________
_____________________________________________
_____________________________________________
_____________________________________________
If to PIR:
Public Interest Registry
1775 Wiehle Avenue, Suite 102A
Reston, VA 20190, U.S.A.
Telephone: +1 703-464-7005
Facsimile: +1 703-464-7006
Attention: President and Chief Executive Officer
Email: (As specified from time to time.)
with a copy to:
Public Interest Registry
1775 Wiehle Avenue, Suite 102A
Reston, VA 20190, U.S.A.
Attention: General Counsel
10.3.
Third-Party Beneficiaries. The parties expressly agree that ICANN is an
intended third-party beneficiary of this Agreement. Otherwise, this Agreement
shall not be construed to create any obligation by either party to any
non-party to this Agreement, including any holder of a Registered Name.
Registrar expressly acknowledges that, notwithstanding anything in this
Agreement to the contrary, it is not an intended third-party beneficiary of the
Registry Agreement.
10.4.
Relationship of the Parties. Nothing in this Agreement shall be construed
as creating an employer-employee or agency relationship, a partnership or a
joint venture between the parties.
10.5.
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 best efforts
to avoid or remove such causes of nonperformance as soon as possible.
10.6.
Amendments. No amendment, supplement, or modification of this Agreement or
any provision hereof shall be binding unless executed in writing by both
parties.
10.7.
Waivers. No failure on the part of either party to exercise any power,
right, privilege or remedy under this Agreement, and no delay on the part of
either party in exercising any power, right, privilege or remedy under this
Agreement, shall operate as a waiver of such power, right, privilege or remedy;
and no single or partial exercise or waiver of any such power, right, privilege
or remedy shall preclude any other or further exercise thereof or of any other
power, right, privilege or remedy. Neither party shall be deemed to have waived
any claim arising out of this Agreement, or any power, right, privilege or
remedy under this Agreement, unless the waiver of such claim, power, right,
privilege or remedy is expressly set forth in a written instrument duly
executed and delivered on behalf of such party; and any such waiver shall not
be applicable or have any effect except in the specific instance in which it is
given.
10.8.
Entire Agreement. This Agreement (including its exhibits, which form a part
of it) constitutes the entire agreement between the parties concerning the
subject matter of this Agreement and supersedes any prior agreements,
representations, statements, negotiations, understandings, proposals or
undertakings, oral or written, with respect to the subject matter expressly set
forth herein.
10.9.
Counterparts. All executed copies of this Agreement are duplicate
originals, equally admissible as evidence. This Agreement may be executed in
counterparts, and such counterparts taken together shall be deemed the
Agreement. A facsimile copy of a signature of a party hereto shall have the
same effect and validity as an original signature.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date set forth in the first paragraph hereof.
PUBLIC INTEREST REGISTRY
By:
_________________________
Name:_______________________
Title: ________________________
|
[Registrar] ___________________
By:
_________________________
Name:_______________________
Title: ________________________
|
Exhibit A
REGISTRATION FEES
1. Domain-Name Initial Registration
Fee
PIR will charge a fee per annual increment of an initial
registration of a Registered Name (the "Initial Registration Fee").
The Initial Registration Fee shall be paid in full by Registrar sponsoring the
domain name at the time of registration. The current Initial Registration Fee
as of the Effective Date is US$6.00.
2. Domain-Name Renewal Fee
PIR will charge a fee per annual increment of a renewal
of a Registered Name (the "Renewal Fee") in the Registry TLD. The
Renewal Fee shall be paid in full by Registrar sponsoring the domain name at
the time of renewal. The current Renewal Fee as of the Effective Date is
US$6.00.
3. Fees for Transfers of Sponsorship
of Domain-Name Registrations
Where the sponsorship of a domain name is transferred
from one ICANN-Accredited Registrar to another ICANN-Accredited Registrar, PIR
will require the registrar receiving the sponsorship to request a renewal of
one year for the name. In connection with that extension, PIR will charge a Renewal
Fee for the requested extension as provided in item 2 above. The transfer shall
result in an extension according to the renewal request, subject to a ten-year
maximum on the future term of any domain-name registration. The Renewal Fee
shall be paid in full at the time of the transfer by the ICANN-Accredited
Registrar receiving sponsorship of the domain name.
4. Bulk Transfers. For a
bulk transfer approved by ICANN under Part B of the Transfer Policy, Registrar
shall pay PIR US $0 (for transfer of 50,000 names or fewer) or US $50,000 (for
transfers of more than 50,000 names).
5. Restore Fee. Registrar
shall pay PIR a fee (the “Restore Fee”) per Registered Name restored during the
Redemption Grace Period; provided that PIR reserves the right, in its sole
discretion, to lower such fee based on extenuating circumstances. The current
Restore Fee as of the Effective Date is US$40 per Registered Name Restored.
6. Excess Deletion Fee. PIR may charge registrars a fee (the "Excess
Deletion Fee") for each Registered Name deleted within the five day
add grace period (as specified in Appendix 7, Section 3.1.1 of the
Registry Agreement, "Grace Period Deletes") in the event Grace Period
Deletes with respect to the relevant time period as determined by PIR
are in excess of ninety percent (90%) of the total number of initial
registrations made by the registrar over that time period. The time period
shall be one calendar month. The Excess Deletion Fee shall be US$.05 (five
cents) per Grace Period Delete.