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1.
In
connection with the operation of the registry for the TLD, Registry Operator
will not, and will not allow any parent, subsidiary, Affiliate, subcontractor
or other related entity, to the extent such party is engaged in the provision
of Registry Services with respect to the TLD (each, a “Registry Related
Party”), to:
a.
directly
or indirectly show any preference or provide any special consideration to any
registrar with respect to operational access to registry systems and related
registry services, unless comparable opportunities to qualify for such
preferences or considerations are made available to all registrars on
substantially similar terms and subject to substantially similar conditions;
b.
other
than as permitted in this Agreement, register domain names in its own right,
except for names registered through an ICANN accredited registrar;
c.
register
names in the TLD or sub-domains of the TLD based upon proprietary access to
information about searches or resolution requests by consumers for domain names
not yet registered (commonly known as, “front-running”); or
d.
allow any Affiliated registrar to disclose
Personal Data about registrants to Registry Operator or any Registry Related
Party, except as reasonably necessary for the management and operations of the
TLD, unless all unrelated third parties (including other registry operators)
are given equivalent access to such user data on substantially similar terms
and subject to substantially similar conditions.
2.
If
Registry Operator or a Registry Related Party also operates as a provider of
registrar or registrar-reseller services, Registry Operator will, or will cause
such Registry Related Party to, ensure that such services are offered through a
legal entity separate from Registry Operator, and maintain separate books of
accounts with respect to its registrar or registrar-reseller operations.
3.
If Registry
Operator or a Registry Related Party also operates as a provider of registrar
or registrar-reseller services, Registry Operator will conduct internal reviews
at least once per calendar year to ensure compliance with this Code of Conduct.
Within twenty (20) calendar days following the end of each calendar year,
Registry Operator will provide the results of the internal review, along with a
certification executed by an executive officer of Registry Operator certifying
as to Registry Operator’s compliance with this Code of Conduct, via email to an
address to be provided by ICANN. (ICANN may specify in the future the form and
contents of such reports or that the reports be delivered by other reasonable
means.) Registry Operator agrees that ICANN may publicly post such results and
certification; provided, however, ICANN (the “receiving party”) shall not
disclose any information that is, and the Registry Operator (the “disclosing
party”) has marked as, or has otherwise designated in writing to the receiving
party as, “confidential trade secret,” “confidential commercial information” or
“confidential financial information” (collectively, “Confidential Information”)
contained in such results except in accordance with the following:
a.
The
confidentiality obligations under this paragraph 3 shall not apply to any
Confidential Information that (i) is or hereafter becomes part of the public
domain by public use, publication, general knowledge or the like through no
fault of the receiving party in breach of this Agreement, (ii) can be
demonstrated by documentation or other competent proof to have been in the
receiving party’s possession prior to disclosure by the disclosing party
without any obligation of confidentiality with respect to such information,
(iii) is subsequently received by the receiving party from a third party who is
not bound by any obligation of confidentiality with respect to such
information, (iv) has been published by a third party or otherwise enters the
public domain through no fault of the receiving party, or (v) can be
demonstrated by documentation or other competent evidence to have been
independently developed by or for the receiving party without reference to the
disclosing party’s Confidential Information.
b.
The
receiving party shall have the right to disclose Confidential Information to
the extent that such disclosure is (i) made in response to a valid order of a
court of competent jurisdiction or, if in the reasonable opinion of the
receiving party’s legal counsel, such disclosure is otherwise required by
applicable law; provided, however, that the receiving party shall first have
given notice to the disclosing party and given the disclosing party a
reasonable opportunity to quash such order or to obtain a protective order or
confidential treatment order requiring that the Confidential Information that
is the subject of such order or other applicable law be held in confidence by
such court or other third party recipient, unless the receiving party is not
permitted to provide such notice under such order or applicable law, or (ii)
made by the receiving party or any of its Affiliates to its or their attorneys,
auditors, advisors, consultants, contractors or other third parties for use by
such person or entity as may be necessary or useful in connection with the
performance of the activities under this Agreement, provided that such third
party is bound by confidentiality obligations at least as stringent as those
set forth herein, either by written agreement or through professional
responsibility standards.
4.
Nothing
set forth herein shall: (i) limit ICANN from conducting investigations of
claims of Registry Operator’s non-compliance with this Code of Conduct; or (ii)
provide grounds for Registry Operator to refuse to cooperate with ICANN
investigations of claims of Registry Operator’s non-compliance with this Code
of Conduct.
5.
Nothing
set forth herein shall limit the ability of Registry Operator or any Registry
Related Party, to enter into arms-length transactions in the ordinary course of
business with a registrar or reseller with respect to products and services
unrelated in all respects to the TLD.
6.
Registry
Operator may request an exemption to this Code of Conduct, and such exemption
may be granted by ICANN in ICANN’s reasonable discretion, if Registry Operator
demonstrates to ICANN’s reasonable satisfaction that (i) all domain name
registrations in the TLD are registered to, and maintained by, Registry
Operator for the exclusive use of Registry Operator or its Affiliates, (ii)
Registry Operator does not sell, distribute or transfer control or use of any
registrations in the TLD to any third party that is not an Affiliate of
Registry Operator, and (iii) application of this Code of Conduct to the TLD is
not necessary to protect the public interest.