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.tel Registry
Agreement
(30 May 2006)
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SPONSORED TLD REGISTRY OPERATOR AGREEMENT
This SPONSORED TLD REGISTRY AGREEMENT (the "Sponsored TLD Registry Agreement"
or the "Agreement") is entered into as of May 25,
2006 by and between Internet Corporation for Assigned Names and
Numbers ("ICANN"), a California nonprofit public benefit
corporation, and Telnic Limited ("Telnic" or "Registry
Operator"), a private limited company incorporated in the United
Kingdom.
ARTICLE I INTRODUCTION
Section I.1 Effective Date. The Effective Date for purposes of this Agreement shall be
the date on which the TLD (as defined below) is delegated within the
authoritative root-server system to nameservers designated by
Registry Operator. ICANN and Registry Operator shall mutually agree
on the date on which the TLD is so delegated, and ICANN shall
promptly notify Registry Operator of the effectiveness of such
delegation.
Section I.2 Top-Level
Domain. The Top-Level Domain to which this Agreement applies is
.TEL (the "TLD").
Section I.3 Designation
as Registry Operator. Upon the Effective Date, until the
Expiration Date as defined in Section 4.1 hereof, ICANN hereby
designates Telnic as the sponsoring organization and sole operator of
the registry for the TLD. ICANN hereby delegates to Registry
Operator the authority to develop policies for the TLD consistent
with the requirements of Section 3.1(g) of this Agreement and the
provisions set forth in Appendix S of this Agreement.
ARTICLE II REPRESENTATIONS AND
WARRANTIES
Section II.1 Registry
Operator's Representations and Warranties.
(a)Organization;
Due Authorization and Execution. Registry Operator is a private
limited company, duly organized, validly existing and in good
standing under the laws of the United Kingdom, and Registry Operator
has all requisite power and authority to enter into this Agreement.
All corporate approvals and actions necessary for the entrance by
Registry Operator into this Agreement have been obtained and this
Agreement has been duly and validly executed and delivered by
Registry Operator.
(b)Statements Made During
Application Process. The factual statements contained in Registry
Operator's application for the TLD were true and correct in all
material respects at the time the application was submitted to ICANN
and are true and correct in all material
respects as of the date this Agreement is entered into as set forth
above.
Section II.2 ICANN's
Representations and Warranties.
(a) Organization;
Due Authorization and Execution. ICANN is a nonprofit public
benefit corporation duly organized, validly existing and in good
standing under the laws of California. ICANN has all requisite
corporate power and authority to enter into this Agreement. All
corporate approvals and actions necessary for the entrance by ICANN
into this Agreement have been obtained and this Agreement has been
duly and validly executed and delivered by ICANN.
ARTICLE III COVENANTS
Section III.1Covenants
of Registry Operator. Registry Operator covenants and agrees with
ICANN as follows:
(a) Preserve
Security and Stability.
(i)ICANN
Temporary Specifications or Policies. Registry Operator shall comply with and implement all specifications
or policies established by the ICANN Board of Directors on a
temporary basis, if adopted by the ICANN Board of Directors by a vote
of at least two-thirds of its members, so long as the ICANN Board of
Directors reasonably determines that immediate temporary
establishment of a specification or policy on the subject is
necessary to maintain the Stability or Security (as defined in
Section 3.1(d)(iv)(G)) of Registry Services or the DNS ("Temporary
Specification or Policies"). Any proposed Temporary Specification
or Policy shall be as narrowly tailored as feasible to achieve those
objectives. In establishing any Temporary Specification or Policy
under this provision, the ICANN Board of Directors shall state the
period of time for which the Temporary Specification or Policy is
adopted and shall immediately implement the Consensus Policy
development process set forth in ICANN's Bylaws. ICANN shall also
issue an advisory statement containing a detailed explanation of its
reasons for adopting the Temporary Specification or Policy and why
the Board believes the Temporary Specification or Policy should
receive the consensus support of Internet stakeholders. If the period
of time for which the Temporary Specification or Policy is adopted
exceeds 90 days, the ICANN Board shall reaffirm its temporary
adoption every 90 days for a total period not to exceed one year, in
order to maintain such policy in effect until such time as it shall
become a Consensus Policy as described in Section 3.1(b) below. If
during such one year period, the Temporary Specification or Policy
does not become a Consensus Policy meeting the standard set forth in
Section 3.1(b) below, Registry Operator shall no longer be required
to comply with or implement such Temporary Specification or Policy.
(b) Consensus Policies.
(i)At all times during the term of
this Agreement and subject to the terms hereof, Registry Operator
will fully comply with and implement all Consensus Policies, as the
same may be applicable to Sponsored TLDs, found at
http://www.icann.org/general/consensus-policies.htm, as of the
Effective Date and as may in the future be developed and adopted in
accordance with ICANN's Bylaws and as set forth below.
(ii)"Consensus
Policies" are those specifications or policies established (1)
pursuant to the procedure set forth in ICANN's Bylaws and due
process, and (2) covering those topics listed in Section 3.1(b)(iv)
below. The Consensus Policy development process and procedure set
forth in ICANN's Bylaws may be revised from time to time in
accordance with ICANN's Bylaws, and any Consensus Policy that is
adopted through such a revised process and covering those topics
listed in Section 3.1(b)(iv) below shall be considered a Consensus
Policy for purposes of this Agreement.
(iii)For
all purposes under this Agreement, the policies identified at
http://www.icann.org/general/consensus-policies.htm as of the
Effective Date shall be treated in the same manner and have the same
effect as "Consensus Policies."
(iv)Consensus
Policies and the procedures by which they are developed shall be
designed to produce, to the extent possible, a consensus of Internet
stakeholders. Consensus Policies shall relate to one or more of the
following: (1) issues for which uniform or coordinated resolution is
reasonably necessary to facilitate interoperability, Security and/or
Stability of the Internet or DNS; (2) functional and performance
specifications for the provision of Registry Services (as defined in
Section 3.1(d)(iii) below); (3) Security and Stability of the
registry database for the TLD; (4) registry operator policies
reasonably necessary to implement Consensus Policies relating to
registry operations or registrars; or (5) resolution of disputes
regarding the registration of domain names (as opposed to the use of
such domain names). Such categories of issues referred to in the
preceding sentence shall include, without limitation:
(A)principles
for allocation of registered names in the TLD (e.g., first-come,
first-served, timely renewal, holding period after expiration);
(B)prohibitions
on warehousing of or speculation in domain names by registries or
registrars;
(C)reservation
of registered names in the TLD that may not be registered initially
or that may not be renewed due to reasons reasonably related to (a)
avoidance of confusion among or misleading of users, (b) intellectual
property, or (c) the technical management of the DNS or the Internet
(e.g., establishment of reservations of names from registration);
(D)maintenance
of and access to accurate and up-to-date information concerning
domain name registrations;
(E)procedures
to avoid disruptions of domain name registration due to suspension or
termination of operations by a registry operator or a registrar,
including procedures for allocation of responsibility for serving
registered domain names in a TLD affected by such a suspension or
termination; and
(F)resolution
of disputes regarding whether particular parties may register or
maintain registration of particular domain names.
(v)Registry
Operator shall be afforded a reasonable period of time following
notice of the establishment of a Consensus Policy or Temporary
Specifications or Policy in which to comply with such policy or
specification, taking into account any urgency involved.
(vi)In
the event of a conflict between Registry Services (as defined in
Section 3.1(d)(iii) below), on the one hand, and Consensus Policies
developed in accordance with this Section 3.1(b) or any Temporary
Specifications or Policies established pursuant to Section 3.1(a)(i)
above, on the other hand, the Consensus Polices or Temporary
Specifications or Policies shall control, notwithstanding any other
provisions contained within this Agreement.
(c) Handling
of Registry Operator Data.
(i)Data
Escrow. Registry Operator shall establish at its expense a data
escrow or mirror site policy for the Registry Operator Data compiled
by Registry Operator. "Registry Operator Data," as used in this
Agreement, shall mean the following: (1) data for domains sponsored
by all registrars, consisting of domain name, server name for each
nameserver, registrar id, updated date, creation date, expiration
date, status information, and, after and to the extent DNSSEC is
implemented by Registry Operator, DNSSEC-related key material; (2)
data for nameservers sponsored by all registrars consisting of server
name, each IP address, registrar id, updated date, creation date,
expiration date, and status information; (3) data for registrars
sponsoring registered domains and nameservers, consisting of
registrar id, registrar address, registrar telephone number,
registrar e-mail address, WHOIS server, referral URL, updated date
and the name, telephone number, and e-mail address of all the
registrars' administrative, billing, and technical contacts; (4)
domain name registrant data collected by the Registry Operator from
registrars as part of or following registration of a domain name; and
(5) after and to the extent DNSSEC is implemented by Registry
Operator, the DNSSEC-related material necessary to sign the TLD zone
(e.g., public and private portions of TLD zone key-signing keys and
zone-signing keys). The escrow agent or mirror-site manager, and the
obligations thereof, shall be mutually agreed upon by ICANN and
Registry Operator on commercially reasonable standards that are
technically and practically sufficient to allow a successor registry
operator to assume management of the TLD. To this end, Registry
Operator shall periodically deposit into escrow all Registry Operator
Data on a schedule (not more frequently than weekly for a complete
set of Registry Operator Data, and daily for incremental updates) and
in an electronic format mutually approved from time to time by
Registry Operator and ICANN, such approval not to be unreasonably
withheld by either party. In addition, Registry Operator will deposit
into escrow that data collected from registrars as part of offering
Registry Services introduced after the Effective Date of this
Agreement. The escrow shall be maintained, at Registry Operator's
expense, by a reputable escrow agent mutually approved by Registry
Operator and ICANN, such approval also not to be unreasonably
withheld by either party. The schedule, content, format, and
procedure for escrow deposits shall be as reasonably established by
ICANN from time to time, and as set forth in Appendix 1 hereto.
Changes to the schedule, content, format, and procedure may be made
only with the mutual written consent of ICANN and Registry Operator
(which neither party shall unreasonably withhold) or through the
establishment of a Consensus Policy as outlined in Section 3.1(b)
above. The escrow shall be held under an agreement, substantially in
the form of Appendix 2, as the same may be revised from time to time,
among ICANN, Registry Operator, and the escrow agent. The escrow
will contain DNSSEC-related material only after Registry Operator
implements it in the future.
(ii)Personal
Data.
Registry Operator shall notify registrars sponsoring registrations in
the registry for the TLD of the purposes for which Personal Data (as
defined below) submitted to Registry Operator by registrars, if any,
is collected, the intended recipients (or categories of recipients)
of such Personal Data, and the mechanism for access to and correction
of such Personal Data. Registry Operator shall take commercially
reasonable steps to protect Personal Data from loss, misuse,
unauthorized disclosure, alteration or destruction. Registry Operator
shall not use or authorize the use of Personal Data in a way that is
incompatible with the notice provided to registrars. "Personal
Data" shall refer to all data about any identified or
identifiable natural person submitted to Registry Operator by
registrars.
(iii)Bulk
Zone File Access.
Registry Operator shall provide bulk access to the zone files for the
registry for the TLD to ICANN on a commercially reasonable basis in
the manner ICANN may specify from time to time. Bulk access to the
zone files shall be provided to third parties on the terms set forth
in the TLD zone file access agreement reasonably established by
ICANN, which initially shall be in the form attached as Appendix 3
hereto. Changes to the zone file access agreement may be made upon
the mutual written consent of ICANN and Registry Operator (which
consent neither party shall unreasonably withhold).
(iv)Monthly
Reporting.
Within 20 days following the end of each calendar month, Registry
Operator shall prepare and deliver to ICANN a report providing such
data and in the format specified in Appendix 4. ICANN may audit
Registry Operator's books and records for the preceding twelve (12)
months relating to data contained in monthly reports from time to
time upon no less than 10 days advance written notice, provided that
such audits shall not exceed one per quarter. Any such audit shall be
at ICANN's cost, unless the results of such audit shall demonstrate a
material discrepancy or discrepancies in the data provided by
Registry Operator. In the latter event, Registry Operator shall
reimburse ICANN for all reasonable costs and expenses associated with
such audit, which reimbursement shall be paid together with the next
Registry Level Fee payment due following the date of transmittal of
the cost statement for such audit. For purposes of this section, a "material discrepancy or discrepancies" shall be a
discrepancy or discrepancies that, in the singular or the aggregate,
result in an understatement in excess of 5% of the fees owed to ICANN
by Registry Operator under Section 7.2.
(v)WHOIS
Service.
Registry Operator shall provide such WHOIS data as set forth in
Appendix 5 and Part VI of Appendix S.
(d) Registry
Operator Operations.
(i)Registration
Restrictions
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Registry Operator shall be
responsible for establishing policies, in conformity with the
sponsored TLD charter attached as Part I to Appendix S (the
"Charter"), for the naming conventions within the
sponsored TLD and for requirements of registration, consistent
with Section 3.1(g).
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Registry Operator shall be
responsible for establishing procedures for the enforcement of
applicable Charter restrictions on registration within the TLD,
as described in more detail in the Charter.
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Registry Operator shall reserve,
and not register any TLD strings (i) appearing on the list of
reserved TLD strings attached as Appendix 6 hereto or (ii)
located at http://www.iana.org/gtld/gtld.htm
and http://www.iana.org/cctld/cctld-whois.htm
for initial (i.e., other than renewal) registration at the
second level within the TLD.
(ii)Functional
and Performance Specifications.
Functional and performance specifications for operation of the TLD
shall be as set forth in Appendix 7 hereto, and shall address without
limitation minimum requirements for DNS services; operation of the
shared registration system; and nameserver operations. Registry
Operator shall keep technical and operational records sufficient to
evidence compliance with such specifications for at least one year.
ICANN may audit such records for the preceding twelve (12) months
from time to time upon no less than 10 days advance written notice,
provided that such audits shall not exceed one per quarter. Any such
audit shall be at ICANN's cost.
(iii)Registry
Services.
Registry Services are, for purposes of this Agreement, defined as the
following: (a) those services that are operations of the Registry
Operator critical to the following tasks: the receipt of data from
registrars concerning registrations of domain names and name servers;
provision to registrars of status information relating to the zone
servers for the TLD; dissemination of TLD zone files; operation of
the registry zone servers; and dissemination of contact and other
information concerning domain name server registrations in the TLD as
required by this Agreement; (b) other products or services that the
Registry Operator is required to provide because of the establishment
of a Consensus Policy (as defined in Section 3.1(b) above); (c) any
other products or services that only a registry operator is capable
of providing, by reason of its designation as the registry operator;
(d) all products and services set forth in Part IV of Appendix S
hereto and (e) material changes to any Registry Service within the
scope of (a), (b), (c) or (d) above.
(iv)Process
for Consideration of Proposed Registry Services.
Following written notification by Registry Operator to ICANN that
Registry Operator may make a change in a Registry Service within the
scope of the preceding paragraph:
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ICANN shall have 15 calendar days
to make a "preliminary determination" whether a Registry
Service requires further consideration by ICANN because it
reasonably determines such Registry Service: (i) could raise
significant Security or Stability issues (as such terms are
defined below) or (ii) could raise significant competition
issues.
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Registry Operator must provide
sufficient information at the time of notification to ICANN that
it may implement such a proposed Registry Service to enable
ICANN to make an informed "preliminary determination."
Information provided by Registry Operator and marked
"CONFIDENTIAL" shall be treated as confidential by ICANN.
Registry Operator will not designate "CONFIDENTIAL"
information necessary to describe the purpose of the proposed
Registry Service and the effect on users of the DNS.
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ICANN may seek expert advice
during the preliminary determination period (from entities or
persons subject to confidentiality agreements) on the
competition, Security or Stability implications of the Registry
Service in order to make its "preliminary determination." To
the extent ICANN determines to disclose confidential information
to any such experts, it will provide notice to Registry Operator
of the identity of the expert(s) and the information it intends
to convey. ICANN shall respect Registry Operator's reasonable
objection to the proposed disclosure of such information to a
particular expert based on equitable or competitive concerns.
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If ICANN determines during the 15
calendar day "preliminary determination" period that the
proposed Registry Service, does not raise significant Security
or Stability (as defined below), or competition issues, Registry
Operator shall be free to deploy it upon such a determination.
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In the event ICANN reasonably
determines during the 15 calendar day "preliminary
determination" period that the Registry Service might raise
significant competition issues, ICANN shall refer the issue to
the appropriate governmental competition authority or
authorities with jurisdiction over the matter within five
business days of making its determination, or two business days
following the expiration of such 15 day period, whichever is
earlier, with notice to Registry Operator. Any such referral
communication shall be posted on ICANN's website on the date of
transmittal. Following such referral, ICANN shall have no
further responsibility, and Registry Operator shall have no
further obligation to ICANN, with respect to any competition
issues relating to the Registry Service. If such a referral
occurs, the Registry Operator will not deploy the Registry
Service until 45 calendar days following the referral, unless
earlier cleared by the referred governmental competition
authority.
(A) In
the event that ICANN reasonably determines during the 15 calendar day "preliminary determination" period that the proposed Registry
Service might raise significant Stability or Security issues (as
defined below), ICANN will refer the proposal to a Standing Panel of
experts (as defined below) within five business days of making its
determination, or two business days following the expiration of such
15 day period, whichever is earlier, and simultaneously invite public
comment on the proposal. The Standing Panel shall have 45 calendar
days from the referral to prepare a written report regarding the
proposed Registry Service's effect on Security or Stability (as
defined below), which report (along with a summary of any public
comments) shall be forwarded to the ICANN Board. The report shall set
forward the opinions of the Standing Panel, including, but not
limited to, a detailed statement of the analysis, reasons, and
information upon which the panel has relied in reaching their
conclusions, along with the response to any specific questions that
were included in the referral from ICANN staff. Upon ICANN's
referral to the Standing Panel, Registry Operator may submit
additional information or analyses regarding the likely effect on
Security or Stability of the Registry Service.
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Upon its evaluation of the
proposed Registry Service, the Standing Panel will report on the
likelihood and materiality of the proposed Registry Service's
effects on Security or Stability, including whether the proposed
Registry Service creates a reasonable risk of a meaningful
adverse effect on Security or Stability as defined below:
Security:
For purposes of this Agreement, an effect on security by the proposed
Registry Service shall mean (1) the unauthorized disclosure,
alteration, insertion or destruction of Registry Operator Data, or
(2) the unauthorized access to or disclosure of information or
resources on the Internet by systems operating in accordance with all
applicable standards.
Stability:
For purposes of this Agreement, an effect on stability shall mean
that the proposed Registry Service (1) is not compliant with
applicable relevant standards that are authoritative and published by
a well-established, recognized and authoritative standards body, such
as relevant Standards-Track or Best Current Practice RFCs sponsored
by the IETF or (2) creates a condition that adversely affects the
throughput, response time, consistency or coherence of responses to
Internet servers or end systems, operating in accordance with
applicable relevant standards that are authoritative and published by
a well-established, recognized and authoritative standards body, such
as relevant Standards-Track or Best Current Practice RFCs and relying
on Registry Operator 's delegation information or provisioning
services.
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Following receipt of the Standing
Panel's report, which will be posted (with appropriate
confidentiality redactions made after consultation with Registry
Operator) and available for public comment, the ICANN Board will
have 30 calendar days to reach a decision. In the event the
ICANN Board reasonably determines that the proposed Registry
Service creates a reasonable risk of a meaningful adverse effect
on Stability or Security, Registry Operator will not offer the
proposed Registry Service. An unredacted version of the Standing
Panel's report shall be provided to Registry Operator upon the
posting of the report. The Registry Operator may respond to the
report of the Standing Panel or otherwise submit to the ICANN
Board additional information or analyses regarding the likely
effect on Security or Stability of the Registry Service.
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The Standing Panel shall consist
of a total of 20 persons expert in the design, management and
implementation of the complex systems and standards-protocols
utilized in the Internet infrastructure and DNS (the "Standing
Panel"). The members of the Standing Panel will be selected by
its Chair. The Chair of the Standing Panel will be a person who
is agreeable to both ICANN and the registry constituency of the
supporting organization then responsible for generic top level
domain registry policies. All members of the Standing Panel and
the Chair shall execute an agreement requiring that they shall
consider the issues before the panel neutrally and according to
the definitions of Security and Stability. For each matter
referred to the Standing Panel, the Chair shall select no more
than five members from the Standing Panel to evaluate the
referred matter, none of which shall have an existing
competitive, financial, or legal conflict of interest, and with
due regard to the particular technical issues raised by the
referral.
(e) Fees
and Payments. Registry Operator shall pay the Registry
Operator-Level Fees to ICANN on a quarterly basis in accordance with
Section 7.2 hereof.
(f) Cooperation.
Registry Operator shall cooperate with ICANN in efforts to promote
and facilitate the Security and Stability of the Internet and the
DNS. To this end, Registry Operator shall provide such data and
assistance related to these issues to ICANN as it may reasonably
request from time to time.
(g) General
Obligations of Registry Operator to Sponsored Community. During
the Term of this Agreement, Registry Operator shall, in developing or
enforcing standards, policies, procedures, or practices with respect
to the TLD:
(i)publish
such standards, policies, procedures, and practices so they are
available to members of the sponsored TLD community;
(ii)conduct
its policy-development activities in a manner that reasonably
provides opportunities for members of the sponsored TLD community to
discuss and participate in the development of such standards,
policies, procedures, or practices;
(iii)maintain
the representativeness of its policy-development and implementation
process by establishing procedures that facilitate participation by a
broad cross-section of the sponsored TLD community; and
(iv)ensure,
through published procedures, adequate opportunities for members of
the sponsored TLD community to submit their views on and objections
to the establishment or revision of standards, policies, procedures,
and practices or the manner in which standards, policies, procedures,
and practices are enforced.
Section III.2 Covenants
of ICANN. ICANN covenants and agrees with Registry Operator as
follows:
(a)Open
and Transparent. Consistent with ICANN's expressed mission and
core values, ICANN shall operate in an open and transparent manner.
(b)Equitable
Treatment. ICANN shall not apply standards, policies, procedures
or practices arbitrarily, unjustifiably, or inequitably and shall not
single out Registry Operator for disparate treatment unless justified
by substantial and reasonable cause.
(c)TLD
Zone Servers. In the event and to the extent that ICANN is
authorized to set policy with regard to an authoritative root server
system, it will ensure that (i) the authoritative root will point
to the TLD zone servers designated by Registry Operator for the TLD
throughout the Term of this Agreement; and (ii) any changes to the
TLD zone server designation submitted to ICANN by Registry Operator
will be implemented by ICANN within seven days of submission.
(d)Nameserver
Changes. Registry Operator may request changes in the nameserver
delegation for the TLD. Any such request must be made in a format,
and otherwise meet technical requirements, specified from time to
time by ICANN. ICANN will use commercially reasonable efforts to have
such requests implemented in the authoritative root-server system
within seven calendar days of the submission.
(e)Root-zone
Information Publication. ICANN's publication of root-zone contact
information for the TLD will include Registry Operator and its
administrative and technical contacts. Any request to modify the
contact information for the Registry Operator must be made in the
format specified from time to time by ICANN.
ARTICLE IV Term of Agreement
Section IV.1 Term.
The initial term of this Agreement shall be ten (10) years from the
Effective Date (the "Expiration Date"). Registry Operator agrees
that upon the earlier of (i) termination of this Agreement by ICANN
in accordance with Article VI below or (ii) the Expiration Date, it
will cease to be the registry operator for the TLD, unless, with
respect to termination under the foregoing clause (ii), Registry
Operator and ICANN agree on terms for renewal of the Agreement as set
forth in Section 4.2 below prior to the Expiration Date.
Section IV.2 Renewal.
This Agreement shall be renewed upon the expiration of the initial
term set forth in Section 4.1 above, and following any renewal term,
unless: (i) an arbitrator or court has determined that Registry
Operator has been in fundamental and material breach of Registry
Operator's obligations set forth in Sections 3.1(a), (b), (d) or
(e); Section 5.2 or Section 7.2 despite notice and an opportunity to
cure in accordance with Article VI hereof and (ii)
following the final decision of such arbitrator or court, Registry
Operator has failed to correct the conduct found to constitute such
breach within ten (10) days of such decision, or such other time
frame designated by the arbitrator or court. Upon renewal, in the
event that the terms of this Agreement are not similar to the terms
generally in effect in the registry agreements of the five top level
domains most reasonably comparable to the TLD (provided however that
if less than five TLDs are reasonably comparable, then comparison
shall be made with such lesser number), renewal shall be upon terms
reasonably necessary to render the terms of this Agreement similar to
such terms in the registry agreements for those other top level
domains. Upon renewal, registry fees payable to ICANN may be
reasonably modified so long as any increase in such fees shall not
exceed the average of the percentage increase in registry fees for
the five most reasonably comparable TLDs (or such lesser number as
provided above) during the prior three year period.
Section IV.3 Changes.
While this Agreement is in effect, the parties agree to engage in
good faith negotiations at regular intervals (at least once every
three calendar years following the Effective Date) regarding possible
changes to the terms of the Agreement, including to Section 7.2
regarding fees and payments to ICANN.
Section IV.4 Failure
to Perform in Good Faith. In the event Registry Operator shall
have been repeatedly and willfully in fundamental and material breach
of Registry Operator's obligations set forth in Sections 3.1(a),
(b), (d) or (e); Section 5.2 or Section 7.2, and arbitrators in
accordance with Section 5.1(b) of this Agreement repeatedly have
found Registry Operator to have been in fundamental and material
breach of this Agreement, including in at least three separate
awards, then ICANN may:
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Request the arbitrators award such
exemplary or other damages as they may believe appropriate under
the circumstances, which monetary damages shall not, however,
commencing with the first full calendar year following the
Effective Date exceed (a) US$2,000,000 during the first calendar
year, (b) US$5,000,000 during the second through sixth calendar
years, and (c) US$10,000,000 during the seventh through tenth
calendar years, and any renewal terms of this Agreement; or
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Terminate
this Agreement in writing effective fourteen (14) days from the
date of such notice, subject to Registry Operator's right under
Section 5.1(b) to seek a temporary stay or injunctive relief from
the arbitration panel or a court.
ARTICLE V Dispute Resolution
Section V.1Resolution of Disputes.
(a)Cooperative
Engagement. In the event of a disagreement between Registry
Operator and ICANN arising under or out of this Agreement, either
party may by notice to the other invoke the dispute resolution
provisions of this Article V. Provided, however, that before either
party may initiate arbitration as provided in Section 5.1(b) below,
ICANN and Registry Operator must attempt to resolve the dispute by
cooperative engagement as set forth in this Section 5.1(a). If either
party provides written notice to the other demanding cooperative
engagement as set forth in this Section 5.1(a), then each party will,
within seven calendar days after such written notice is deemed
received in accordance with Section 8.6 hereof, designate a single
executive officer as its representative under this Section 5.1(a)
with full authority to act on such party's behalf to resolve the
dispute. The designated representatives shall, within 2 business days
after being designated, confer by telephone or in person to attempt
to resolve the dispute. If they are not able to resolve the dispute
during such telephone conference or meeting, they shall further meet
in person at a location reasonably designated by ICANN within 7
calendar days after such initial telephone conference or meeting, at
which meeting the parties shall attempt to reach a definitive
resolution. The time schedule and process set forth in this Section
5.1(a) may be modified with respect to any dispute, but only if both
parties agree to a revised time schedule or process in writing in
advance. Settlement communications within the scope of this paragraph
shall be inadmissible in any arbitration or litigation between the
parties.
(b)Arbitration.
Disputes arising under or in connection with this Agreement,
including requests for specific performance, shall be resolved
through binding arbitration conducted as provided in this Section
5.1(b) pursuant to the rules of the International Court of
Arbitration of the International Chamber of Commerce ("ICC").
The arbitration shall be conducted in the English language and shall
occur in Los Angeles County, California, USA only following the
failure to resolve the dispute pursuant to cooperative engagement
discussions as set forth in Section 5.1(a) above. There shall be
three arbitrators: each party shall choose one arbitrator and, if the
two arbitrators are not able to agree on a third arbitrator, the
third shall be chosen by the ICC. The prevailing party in the
arbitration shall have the right to recover its costs and reasonable
attorneys' fees, which the arbitrators shall include in their awards.
Any party that seeks to confirm or vacate an
arbitration award issued under this Section 5.1(b) may do so only
pursuant to the applicable arbitration statutes. In any
litigation involving ICANN concerning this Agreement, jurisdiction
and exclusive venue for such litigation shall be in a court located
in Los Angeles County, California, USA; however, the parties shall
also have the right to enforce a judgment of such a court in any
court of competent jurisdiction. For the purpose of aiding the
arbitration and/or preserving the rights of the parties during the
pendency of an arbitration, the parties shall have the right to seek
a temporary stay or injunctive relief from the arbitration panel or a
court, which shall not be a waiver of this agreement to arbitrate.
Section V.2 Specific
Performance. Registry Operator and ICANN agree that irreparable
damage could occur if any of the provisions of this Agreement was not
performed in accordance with its specific terms. Accordingly, the
parties agree that they each shall be entitled to seek from the
arbitrators specific performance of the terms of this Agreement (in
addition to any other remedy to which each party is entitled).
Section V.3 Limitation
of Liability. ICANN's aggregate monetary liability for violations
of this Agreement shall not exceed the amount of Registry
Operator-Level Fees paid by Registry Operator to ICANN within the
preceding twelve-month period pursuant to Section 7.2 of this
Agreement. Registry Operator 's aggregate monetary liability to ICANN
for violations of this Agreement shall be limited to fees and
monetary sanctions due and owing to ICANN under this Agreement. In no
event shall either party be liable for special, indirect, incidental,
punitive, exemplary, or consequential damages arising out of or in
connection with this Agreement or the performance or nonperformance
of obligations undertaken in this Agreement, except as provided
pursuant to Section 4.4 of this Agreement. EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED IN THIS AGREEMENT, REGISTRY OPERATOR DOES NOT MAKE
ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES
RENDERED BY ITSELF, ITS SERVANTS, OR ITS AGENTS OR THE RESULTS
OBTAINED FROM THEIR WORK, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A
PARTICULAR PURPOSE.
ARTICLE VI Termination Provisions
Section VI.1 Termination by ICANN.
ICANN may terminate this Agreement if Registry Operator fails to cure
any fundamental and material breach of Registry Operator's
obligations set forth in Sections 3.1(a), (b), (d) or (e); Section
5.2 or Section 7.2 despite notice and an opportunity to cure in
accordance with Section 6.4.
Section VI.2 Termination
by Registry Operator. Registry Operator may terminate this
agreement and its designation as Registry Operator for the TLD
pursuant to 120 days prior notice in writing to ICANN, and subject to
compliance with section 6.5 hereof.
Section VI.3 Bankruptcy.
This Agreement shall automatically terminate in the event Registry
Operator shall voluntarily or involuntarily be subject to bankruptcy
proceedings and such proceeding is not dismissed
within sixty (60) days. For the
avoidance of doubt, the termination provisions of this Section 6.3
shall not apply in the event of any reconstruction, reorganization
(or similar business recombination) of Registry Operator or the
activities described in Section 8.5 not arising out of insolvency.
Section VI.4 Notice;
Opportunity to Cure. This Agreement may be terminated in the
circumstances described in Section 6.1 above only following written
notice of the breach from ICANN to Registry Operator (which notice
shall include with specificity the details of the alleged breach) and
Registry Operator's failure to cure within 30 days or such other
longer time period as Registry Operator may reasonably request, with
Registry Operator being given a reasonable opportunity during that
time to initiate arbitration under Section 5.1(b) to determine the
appropriateness of termination under this Agreement. In the event
Registry Operator initiates arbitration concerning the
appropriateness of termination by ICANN, Registry Operator may at the
same time request that the arbitration panel stay the termination
until the arbitration decision is rendered, and that request shall
have the effect of staying the termination until the decision or
until the arbitration panel has granted an ICANN request for lifting
of the stay.
Section VI.5 Transition
of Registry Operator upon Termination of Agreement. Upon any
termination of this Agreement as provided in Sections 6.1 and 6.2,
the parties agree to work cooperatively to facilitate and implement
the transition of the registry for the TLD in accordance with this
Section 6.4. Registry Operator shall agree to provide ICANN or any
successor registry operator authority that may be designated for the
TLD with any data regarding operations of the registry operator for
the TLD necessary to maintain operations that may be reasonably
requested in addition to that data escrowed in accordance with
Section 3.1(c)(i) hereof.
Section VI.6 Rights
in Data. Registry Operator shall not be entitled to claim any
intellectual property rights in Registry Operator Data. In the event
that Registry Operator Data is released from escrow as set forth in
Section 3.1(c)(i), rights, if any, held by Registry Operator in the
data shall automatically be licensed on a non-exclusive, irrevocable,
royalty-free, paid-up basis to ICANN or to a party designated in
writing by ICANN, provided, however that such release shall not
effect a transfer of any intellectual property rights of Registry
Operator other than Registry Operator Data.
Section VI.7 No
Reimbursement. Any and all expenditures, capital investments or
other investments made by Registry Operator in connection with this
Agreement shall be at Registry Operator's own risk and ICANN shall
have no obligation to reimburse Registry Operator for any such
expense, capital expenditure or investment. Registry Operator shall
not be required to make any payments to a successor registry operator
by reason of Registry Operator fees paid to Registry Operator prior
to the effective date of (i) any termination or expiration of this
Agreement or (ii) transition of the Registry Operator, unless any
delay in transition of the registry to a successor operator shall be
due to the actions of Registry Operator. Registry Operator may, in
any agreement voluntarily negotiated with a successor registry
operator and subject to the requirement of the consent by ICANN
(which consent shall not be unreasonably withheld) to any assignment
of this Agreement, negotiate a fee for a transfer of the Registry
Operator Data, including, without limitation, pursuant to Section 6.5
hereof.
ARTICLE VII Special Provisions
Section VII.1Registry
Operator-Registrar Agreement.
(a)Access to Registry Services.
Registry Operator shall make access to Registry Services, including
the shared registration system, available to ICANN-accredited
registrars. The criteria for the selection of Registrars shall be set
forth in Appendix S, part V. Following execution of the
Registry-Registrar Agreement, provided such registrars are in
compliance with such agreement, Registry Operator shall provide
ICANN-accredited registrars with operational access to Registry
Services, including the shared registration system for the TLD. Such
nondiscriminatory access shall include without limitation the
following:
(i)All
registrars (including any registrar affiliated with Registry
Operator) can connect to the shared registration system gateway for
the TLD via the Internet by utilizing the same maximum number of IP
addresses and SSL certificate authentication;
(ii)Registry
Operator has made the current version of the registrar toolkit
software accessible to all registrars and has made any updates
available to all registrars on the same schedule;
(iii)All
registrars have the same level of access to customer support
personnel via telephone, e-mail and Registry Operator 's website;
(iv)All
registrars have the same level of access to registry resources to
resolve registry/registrar or registrar/registrar disputes and
technical and/or administrative customer service issues;
(v)All
registrars have the same level of access to data generated by
Registry Operator to reconcile their registration activities from
Registry Operator's Web and ftp servers;
(vi)All
registrars may perform basic automated registrar account management
functions using the same registrar tool made available to all
registrars by Registry Operator; and
(vii)The
shared registration system does not include, for purposes of
providing discriminatory access, any algorithms or protocols that
differentiate among registrars with respect to functionality,
including database access, system priorities and overall performance.
Such
Registry-Registrar Agreement may be revised by Registry Operator from
time to time, provided however, that any such revisions must be
approved in advance by ICANN.
(b)
Registry Operator Shall Not Act as Own Registrar. Registry
Operator shall not act as a registrar with respect to the TLD. This
shall not preclude Registry Operator from registering names within
the TLD to itself through a request made to an ICANN-accredited
registrar.
(c)Restrictions
on Acquisition of Ownership or Controlling Interest in Registrar.
Registry Operator shall not acquire, directly or indirectly, control
of, or a greater than fifteen percent ownership interest in, any
ICANN-accredited registrar without ICANN's prior written approval,
which approval shall not be unreasonably withheld.
Section VII.2 Fees to be Paid to
ICANN.
(a)Payment Schedule. Registry
Operator shall pay the Registry-Level Fees specified in Section
7.2(b) below, and Section 7.2(c), if applicable, by the 20th day
following the end of each calendar quarter (i.e., on April 20, July
20, October 20 and January 20 for the calendar quarters ending March
31, June 30, September 30 and December 31) of the year to an account
designated by ICANN. The first quarterly payment of the
Registry-Level Fee set forth in Section 7.2(b) shall be pro-rated
from the Effective Date until the end of the calendar quarter in
which the Effective Date falls.
(b)Registry-Level Fee.
(i) For
purposes of this Section 7.2(b), a "domain name registration" shall include a domain name within the registry for the TLD, whether
consisting of two or more (e.g., john.smith.tel) levels, about which
Registry Operator or an affiliate thereof maintains Registry Operator
Data on behalf of Registry Operator. Commencing as of the Effective
Date, Registry Operator shall pay ICANN a Registry-Level Fee each
quarter in accordance with the payment schedule provided in Section
7.2(a) above equal to the greater of:
(i)
US$12,500, or
(ii)
payment calculated under clause (A) or (B) below as applicable:
(A)
for quarters during which the average price of registrations during
the quarter is US$3.00 or less, the Registry-Level Fee shall be
US$0.15 multiplied by the number of annual increments of an
initial or renewal domain name registration during such quarter
(including renewals associated with transfers from one
ICANN-accredited registrar to another), or
(B)
for quarters during which the average price of
registrations during the quarter is more than US$3.00, the
Registry-Level fee shall be US$0.15 plus US$0.01 for each increase by
US$0.20 in the average price of domain name registrations, multiplied
by the number of annual increments of an initial or renewal
domain name registration during such quarter (including renewals
associated with transfers from one ICANN-accredited registrar to
another).
(c)Variable Registry-Level Fee.
For fiscal quarters in which ICANN does not collect a variable
accreditation fee from all registrars, upon receipt of reasonable
notice in writing from ICANN of not less than 45 days, Registry
Operator shall pay ICANN a Variable Registry-Level Fee. The fee will
be calculated by ICANN, paid to ICANN by the Registry Operator in
accordance with the Payment Schedule in Section 7.2(a), and the
Registry Operator will invoice and collect the fees from the
registrars who are party to a Registry-Registrar Agreement with
Registry Operator. The fee will consist of two components; each
component will be calculated by ICANN for each registrar:
(i)The transactional component of the
Variable Registry-Level Fee shall be specified by ICANN in accordance
with the budget adopted by the ICANN Board of Directors for each
fiscal year but shall not exceed US$0.25, provided, however, that
Registry Operator shall not be required to collect a transactional
component of the fee specified in this Section 7.2(c) that is greater
than the corresponding transactional component required to be
collected by each other sponsored top-level domain registry.
(ii)The per-registrar component of the
Variable Registry-Level Fee shall be specified by ICANN in accordance
with the budget adopted by the ICANN Board of Directors for each
fiscal year, but the sum of the per-registrar fees calculated for all
registrars shall not exceed the total Per-Registrar Variable funding
established pursuant to the approved 2004-2005 ICANN Budget.
(c) Interest on Late Payments.
For any payments ten days or more overdue, Registry Operator shall
pay interest on late payments at the rate of 1.5% per month or, if
less, the maximum rate permitted by applicable law.
ARTICLE VIII Miscellaneous
Section VIII.1 Indemnification
of ICANN. Registry Operator shall indemnify, defend, and hold
harmless ICANN (including its directors, officers, employees, and
agents) from and against any and all third-party claims, damages,
liabilities, costs, and expenses, including reasonable legal fees and
expenses, arising out of or relating to: (a)
ICANN's reliance, in connection with its decision to delegate the TLD
to Registry Operator or to enter into this Agreement, on information
provided by Registry Operator in its application for the TLD;
(b) Registry Operator's establishment or operation of the registry
for the TLD; (c) Registry Operator's provision of Registry
Services; (d) collection or handling of Personal Data by Registry
Operator; (e) any dispute concerning registration of a domain name
within the domain of the TLD for the registry; and (f) duties and
obligations of Registry Operator in operating the registry for the
TLD; provided that Registry Operator shall not be obligated to
indemnify, defend, or hold harmless ICANN to the extent the claim,
damage, liability, cost, or expense arose due to a breach by ICANN of
any obligation contained in this Agreement. For avoidance of doubt,
nothing in this Section 8.1 shall be deemed to require Registry
Operator to reimburse or otherwise indemnify ICANN for the costs
associated with the negotiation or execution of this Agreement, or
with the monitoring or management of the parties' respective
obligations under this Agreement. Further, this section shall not
apply to any request for attorney's fees in connection with any
litigation or arbitration between or among the parties.
Section VIII.2 Indemnification
Procedures. If any third-party claim is commenced that is
indemnified under Section 8.1 above, notice thereof shall be given to
ICANN as promptly as practicable. Registry Operator shall be
entitled, if it so elects, in a notice promptly delivered to ICANN,
to immediately take control of the defense and investigation of such
claim and to employ and engage attorneys reasonably acceptable to the
indemnified party to handle and defend the same, at the indemnifying
party's sole cost and expense, provided that in all events ICANN
shall be entitled to control at its sole cost and expense the
litigation of issues concerning the validity or interpretation of
ICANN policies or conduct. ICANN shall cooperate, at its own cost, in
all reasonable respects with Registry Operator and its attorneys in
the investigation, trial, and defense of such claim and any appeal
arising therefrom; provided, however, that the indemnified party may,
at its own cost and expense, participate, through its attorneys or
otherwise, in such investigation, trial and defense of such claim and
any appeal arising therefrom. No settlement of a claim that involves
a remedy affecting ICANN other than the payment of money in an amount
that is indemnified shall be entered into without the consent of
ICANN. If Registry Operator does not assume full control over the
defense of a claim subject to such defense in accordance with this
Section, Registry Operator may participate in such defense, at its
sole cost and expense, and ICANN shall have the right to defend the
claim in such manner as it may deem appropriate, at the cost and
expense of Registry Operator.
Section VIII.3 No
Offset. All payments due under this Agreement shall be made in a
timely manner throughout the term of this Agreement and
notwithstanding the pendency of any dispute (monetary or otherwise)
between Registry Operator and ICANN.
Section VIII.4 Use
of ICANN Name and Logo. ICANN grants to Registry Operator a
non-exclusive, worldwide, royalty-free license to state that it is
designated by ICANN as the Registry Operator for the TLD and to use a
logo specified by ICANN to signify that Registry Operator is an
ICANN-designated registry authority. This license may not be assigned
or sublicensed by Registry Operator, other than in connection with a
permitted assignment of this Agreement.
Section VIII.5 Assignment
and Subcontracting. Any assignment of this Agreement shall be
effective only upon written agreement by the assignee with the other
party to assume the assigning party's obligations under this
Agreement. Moreover, neither party may assign this Agreement without
the prior written approval of the other party, which approval shall
not be unreasonably withheld. Notwithstanding the foregoing, (1)
ICANN may assign this Agreement (i) in conjunction with a
reorganization or re-incorporation of ICANN, to another nonprofit
corporation organized for the same or substantially the same
purposes, or (ii) as may be required pursuant to the terms of that
certain Memorandum of Understanding between ICANN and the U.S.
Department of Commerce, as the same may be amended from time to time
and (2) Registry Operator may assign this Agreement to a wholly owned
subsidiary or in conjunction with a reorganization or
re-incorporation into a legal entity organized for the same or
substantially the same purposes and involving the same or
substantially the same shareholders. For the avoidance of doubt, the
restrictions imposed by this paragraph shall not prevent Registry
Operator (or an affiliate thereof) from filing for and consummating
an initial public offering of equity securities in the United States
or any other jurisdiction. Registry Operator must provide notice to
ICANN of any subcontracting arrangements, and any agreement to
subcontract portions of the operations of the TLD must mandate
compliance with all covenants, obligations and agreements by Registry
Operator hereunder. Any subcontracting of technical operations shall
provide that the subcontracted entity become party to the data escrow
agreement mandated by Section 3.1(c)(i) hereof.
Section VIII.6 Amendments
and Waivers. No amendment, supplement, or modification of this
Agreement or any provision hereof shall be binding unless executed in
writing by both parties. No waiver of any provision of this Agreement
shall be binding unless evidenced by a writing signed by the party
waiving compliance with such provision. No waiver of any of the
provisions of this Agreement or failure to enforce any of the
provisions hereof shall be deemed or shall constitute a waiver of any
other provision hereof, nor shall any such waiver constitute a
continuing waiver unless otherwise expressly provided.
Section VIII.7 No
Third-Party Beneficiaries. This Agreement shall not be construed
to create any obligation by either ICANN or Registry Operator to any
non-party to this Agreement, including any registrar or registered
name holder.
Section VIII.8 Notices,
Designations, and Specifications. All notices to be given under
or in relation to this Agreement shall be given either (i) in writing
at the address of the appropriate party as set forth below or (ii)
via facsimile or electronic mail as provided below, unless that party
has given a notice of change of postal or email address, or facsimile
number, as provided in this agreement. Any change in the contact
information for notice below shall be given by the party within 30
days of such change. Any notice required by this Agreement shall be
deemed to have been properly given (i) if in paper form, when
delivered in person or via courier service with confirmation of
receipt or (ii) if via facsimile or by electronic mail, upon
confirmation of receipt by the recipient's facsimile machine or email
server, provided that such notice via facsimile or electronic mail
shall be followed by a copy sent by regular postal mail service
within two (2) business days. Whenever this Agreement shall specify
a URL address for certain information, Registry Operator shall be
deemed to have been given notice of any such information when
electronically posted at the designated URL. In the event other means
of notice shall become practically achievable, such as notice via a
secure website, the parties shall work together to implement such
notice means under this Agreement.
If
to ICANN, addressed to:
Internet
Corporation for Assigned Names and Numbers
4676
Admiralty Way, Suite 330
Marina
Del Rey, California 90292
Telephone:
1/310/823-9358
Facsimile:
1/310/823-8649
Attention:
President and CEO
With
a Required Copy to: General Counsel
Email:
as specified from time to time
If
to Registry Operator, addressed to:
Telnic
Limited
8 Wilfred Street
London SW1E 6PL
United Kingdom
Telephone: +44.207.828.00.00.
Facsimile: +44.207.828.70.07.
Attention: Mr. Alan Price
Email: as specified from time to time
Section VIII.9
Language. Notices, designations, determinations, and
specifications made under this Agreement shall be in the English
language.
Section VIII.10
Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
Section VIII.11 Entire
Agreement. This Agreement (including its Appendices, which form a
part of it) constitutes the entire agreement of the parties hereto
pertaining to the operation of the TLD and supersedes all prior
agreements, understandings, negotiations and discussions, whether
oral or written, between the parties on that subject. In the event of
a conflict between the provisions in the body of this Agreement and
any provision in its Appendices, the provisions in the body of the
Agreement shall control.
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be executed by their duly authorized
representatives.
INTERNET
CORPORATION FOR ASSIGNED NAMES AND NUMBERS
By:_____________________________
Dr. Paul Twomey
President and Chief Executive Office
Date:
Telnic
Limited
By:_____________________________
Mr. Khashayar Mahdavi
Chief Executive Officer
Date:
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