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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report: September 28, 1999
NETWORK SOLUTIONS, INC.
(Exact name of registrant as specified in its charter)
Delaware 0-22967 52-1146119
(State or other jurisdiction (Commission File (I.R.S. Employer
of incorporation) Number) Identification Number)
505 Huntmar Park Drive, Herndon, Virginia 20170
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (703) 742-0400
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ITEM 5. OTHER EVENTS.
On September 28, 1999, the U.S. Department of Commerce (DoC), Network
Solutions, Inc. ("Network Solutions" or the "Company") and the Internet
Corporation for Assigned Names and Numbers (the "ICANN") announced a series of
wide-ranging agreements to shape the future of the Internet's domain name
system. The agreements include:
- - A registry agreement between Network Solutions and ICANN outlining the
provisions and policies for operation of the Network Solutions Registry;
- - A revised registrar accreditation agreement between ICANN and all
registrars, including Network Solutions, registering names in the .com,
.net and .org domains;
- - A revised post-testbed registrar license and agreement between Network
Solutions' Registry and all registrars registering names in the .com,
.net and .org domains;
- - An amendment to the Cooperative Agreement between the DoC and Network
Solutions; and
- - An amendment to the Memorandum of Understanding between DoC and ICANN.
DoC and Network Solutions have endorsed such agreements (collectively, the
"Agreements") and ICANN's endorsement is subject to consideration of public
comments. The Agreements will be posted on ICANN's web site and ICANN will
receive comments for 30 days. The ICANN board expects to make a final
determination regarding this matter at its meeting on November 4, 1999.
A copy of the Company's press release, dated September 28, 1999, a fact
sheet summarizing the key issues addressed in the Agreements and the Agreements
are attached hereto as Exhibits 99.1, 99.2, 99.3, 99.4, 99.5, 99.6 and 99.7,
respectively, and are incorporated by reference herein. The press release and
the fact sheet contain descriptions of some of the provisions of the Agreements,
but the exact provisions are contained in the Agreements themselves.
Statements in this report and the Company's press release attached hereto
other than historical data and information constitute forward-looking statements
that involve risks and uncertainties that could cause actual results to differ
materially from those stated or implied by such forward-looking statements. The
potential risks and uncertainties include, among others, uncertainty of Internet
governance and regulation, including the possibility that the Agreements will
not be approved by the ICANN board, increased competition in the domain name
registration and directory services businesses, customer acceptance of new
products and services offered by the Company in addition to or as enhancements
of its registration services, risks associated with the Company's international
business, uncertainty of future revenue and profitability and fluctations in its
quarterly operating results. More information about potential factors that could
affect the Company's business and financial results is included in the Company's
filings with the Securities and Exchange Commission, especially in the Company's
Registration Statement on Form S-3 filed on January 4, 1999, as amended, Annual
Report on Form 10-K for the year ended December 31, 1998 and Quarterly Reports
on Form 10-Q for the periods ended March 31 and June 30, 1999.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
99.1 Text of Press Release dated September 28, 1999
99.2 Registry agreement between Network Solutions and ICANN outlining the
provisions and policies for operation of the Network Solutions Registry
99.3 Revised registrar accreditation agreement between ICANN and all
registrars, including Network Solutions, registering names in the .com,
.net and .org domains
99.4 Revised post-testbed registrar license and agreement between Network
Solutions' Registry and all registrars registering names in the .com,
.net and .org domains
99.5 Amendment No. 19 to Cooperative Agreement #NCR 92-18742 between the DoC
and Network Solutions
99.6 Amendment 1 to the Memorandum of Understanding between DoC and ICANN
99.7 Fact Sheet
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
NETWORK SOLUTIONS, INC.
Date: October 6, 1999 By: /s/ ROBERT J. KORZENIEWSKI
----------------------
Robert J. Korzeniewski
Chief Financial Officer
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EXHIBIT 99.1
[NETWORK SOLUTIONS LOGO]
NETWORK SOLUTIONS, DEPARTMENT OF COMMERCE AND ICANN REACH
LONG-TERM AGREEMENTS FOR INTERNET'S DOMAIN NAME SYSTEM
Next Step in Evolution of Internet's Key Infrastructure
HERNDON, VA., SEPTEMBER 28, 1999 - Reaching an important milestone
in the development of the Internet, Network Solutions, Inc. (NASDAQ:
NSOL), the U.S. Department of Commerce (DoC) and the Internet
Corporation for Assigned Names and Numbers (ICANN) today announced a
series of wide-ranging agreements to shape the future of the
Internet's domain name system. Under the terms of the agreements,
Network Solutions will be an accredited registrar through November
2004 with a right to renew indefinitely, and will also operate the
registry for .com, .net and .org for at least four years. In the
event Network Solutions separates the ownership of its registrar and
registry assets, the term of the registry agreement will extend an
additional four years.
Also as part of today's agreements, Network Solutions formally
recognized ICANN and agreed to operate the Network Solutions
Registry in accordance with provisions of the registry agreement
between ICANN and Network Solutions. The agreements establish
important limits on ICANN's procedures and the subjects on which it
can establish policies.
Today's agreements address a wide array of issues that have been
subject to negotiations during the past several months. The
agreements include:
- A registry agreement between Network Solutions and ICANN
outlining the provisions and policies for operation of
the Network Solutions Registry
- A revised registrar accreditation agreement between ICANN
and all registrars, including Network Solutions,
registering names in the .com, .net and .org domains
- A revised, post-testbed registrar license and agreement
between Network Solutions' Registry and all registrars
registering names in the .com, .net and .org domains
- An amendment to the Cooperative Agreement between the DoC and
Network Solutions
- An amendment to the Memorandum of Understanding between DoC
and ICANN
DoC and Network Solutions have endorsed the agreements announced
today and ICANN's endorsement is subject to consideration of public
comments. The agreements will be posted on ICANN's Web site
http://www.icann.org/agreements.htm and ICANN will receive comments
for the next 30 days. The ICANN board expects to make a final
determination regarding this matter at its meeting on November 4,
1999. The agreements will also be posted on the DoC's Web site
http://www.ntia.doc.gov and on Network Solutions' Web site at
http://www.networksolutions.com.
"This agreement ensures the Internet's progress, helps support the
security and stability of the Internet, and strengthens the
Internet's foundation for continued growth of global e-commerce,"
said Michael A. Daniels, Chairman, Network Solutions. "By supporting
these agreements, NSI is affirming its leadership role in the
Internet and its commitment to work for positive and constructive
changes as the e-commerce revolution shapes the next millennium."
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"We will continue to work with the Internet community to ensure the
appropriate transition to true self governance of the domain name
system," said Jim Rutt, CEO, Network Solutions. "We are very
confident about our agreements and will work closely with DoC and
ICANN to move the process forward and address future issues in a
manner that represent the consensus of the Internet community."
Today's announcement also includes the extension of the testbed
phase of Network Solutions' Shared Registration System for ICANN
accredited registrars through November 5 to allow a period of public
comment on the agreements announced today. Twelve companies,
including Network Solutions, are registrars accessing the Shared
Registration System to offer competitive .com, .net and .org
registration services to end-users.
About Network Solutions
Founded in 1979, Network Solutions, Inc. (NASDAQ: NSOL) pioneered
the development of registering Web addresses ending in .com, .net,
.org and .edu. Network Solutions also provides Internet Technology
Services that assist large commercial organizations in the evolution
and management of their Internet technologies. For more information,
see the www.networksolutions.com Web site.
Network Solutions is the world's leading registrar, with more than 5
million net registrations. Network Solutions registers the majority
of Web addresses worldwide through various channels including nearly
200 companies in its Premier program. Network Solutions has created
value-added small business solutions through agreements with leading
companies such as American Express (NYSE: AXP) and Microsoft
(NASDAQ: MSFT). Through its Alliance Program, Network Solutions
works closely with EarthLink (NASDAQ: ELNK), MindSpring Enterprises,
Inc. (NASDAQ: MSPG), Interliant, Inc.(formerly Sage Networks, Inc.)
(NASDAQ: INIT), ValueWeb (NASDAQ: ESPI) and Interland, Inc. Network
Solutions also has entered into marketing agreements with companies
including Yahoo! Inc. (NASDAQ: YHOO) and Netscape Communications
Corporation.
For Network Solutions, Media: Christopher Clough, [email protected]
(703) 742-4706, or Brian O'Shaughnessy, [email protected] (703)
326-6076. Investor Relations: Sean McClorey, [email protected],
(703) 326-6090.
Statements in this announcement other than historical data and
information constitute forward-looking statements that involve risks
and uncertainties that could cause actual results to differ
materially from those stated or implied by such forward-looking
statements. The potential risks and uncertainties include, among
others, uncertainty of Internet governance and regulation, increased
competition in the domain name registration business, customer
acceptance of new products and services offered by the company in
addition to or as enhancements of its registration services, risks
associated with the company's international business, uncertainty of
future revenue and profitability and fluctuations in its quarterly
operating results. More information about potential factors that
could affect the company's business and financial results is
included in the company's filings with the Securities and Exchange
Commission, especially in the company's Registration Statement on
Form S-3 filed on January 4, 1999, as amended, Annual Report on Form
10-K for the year ended December 31, 1998 and Quarterly Reports on
Form 10-Q for the periods ended March 31 and June 30, 1999.
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EXHIBIT 99.2
[NETWORK SOLUTIONS LOGO]
TENTATIVE AGREEMENTS AMONG ICANN, THE U.S.
DEPARTMENT OF COMMERCE, AND NETWORK SOLUTIONS, INC.
(Posted September 28, 1999)
- -------------------------------------------------------------------------------
[NOTE: ICANN HAS POSTED THE FOLLOWING DOCUMENT FOR PUBLIC REVIEW AND COMMENT. TO
SUBMIT COMMENTS, CLICK HERE.]
- -------------------------------------------------------------------------------
REGISTRY AGREEMENT
This REGISTRY AGREEMENT ("Agreement") is by and between the Internet Corporation
for Assigned Names and Numbers, a not-for-profit corporation, and Network
Solutions, Inc., a Delaware corporation.
DEFINITIONS
For purposes of this Agreement, the following definitions shall apply:
1. A "Consensus Policy" is one adopted by ICANN as follows:
(a) "Consensus Policies" are those adopted based on a consensus among
Internet stakeholders represented in the ICANN process, as
demonstrated by (1) the adoption of the policy by the ICANN Board of
Directors, (2) a recommendation that the policy should be adopted by
at least a two-thirds vote of the council of the ICANN Supporting
Organization to which the matter is delegated, and (3) a written
report and supporting materials (which must include all substantive
submissions to the Supporting Organization relating to the proposal)
that (i) documents the extent of agreement and disagreement among
impacted groups, (ii) documents the outreach process used to seek to
achieve adequate representation of the views of groups that are likely
to be impacted, and (iii) documents the nature and intensity of
reasoned support and opposition to the proposed policy.
(b) In the event that NSI disputes the presence of such a consensus,
it shall seek review of that issue from an Independent Review Panel
established under ICANN's bylaws. Such review must be sought within
fifteen working days of the publication of the Board's action adopting
the policy. The decision of the panel shall be based on the report and
supporting materials required by subsection (a) above. In the event
that NSI seeks review and the Panel sustains the Board's
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determination that the policy is based on a consensus among Internet
stakeholders represented in the ICANN process, then NSI must implement
such policy unless it promptly seeks and obtains injunctive relief
under Section 13 below.
(c) If, following a decision by the Independent Review Panel convened
under subsection (b) above, NSI still disputes the presence of such a
consensus, it may seek further review of that issue within fifteen
working days of publication of the decision in accordance with the
dispute resolution procedures set forth in Section 13 below; provided,
however, that NSI must continue to implement the policy unless it has
obtained injunctive relief under Section 13 below or a final decision
is rendered in accordance with the provisions of Section 13 that
relieves NSI of such obligation. The decision in any such further
review shall be based on the report and supporting materials required
by subsection (a) above.
(d) A policy adopted by the ICANN Board of Directors on a temporary
basis, without a prior recommendation by the council of an ICANN
Supporting Organization, shall also be considered to be a Consensus
Policy if adopted by the ICANN Board of Directors by a vote of at
least two-thirds of its members, and if immediate temporary adoption
of a policy on the subject is necessary to maintain the stability of
the Internet or the operation of the domain name system, and if the
proposed policy is as narrowly tailored as feasible to achieve those
objectives. In adopting any policy under this provision, the ICANN
Board of Directors shall state the period of time for which the policy
is temporarily adopted and shall immediately refer the matter to the
appropriate Supporting Organization for its evaluation and review with
a detailed explanation of its reasons for adopting the temporary
policy and why the Board believes the policy should receive the
consensus support of Internet stakeholders. If the period of time for
which the policy is adopted exceeds 45 days, the Board shall reaffirm
its temporary adoption every 45 days for a total period not to exceed
180 days, in order to maintain such policy in effect until such time
as it meets the standard set forth in subsection (a) above. If the
standard set forth in subsection (a) above is not met within the
temporary period set by the Board, or the council of the Supporting
Organization to which it has been referred votes to reject the
temporary policy, it will no longer be a "Consensus Policy."
(e) For all purposes under this Agreement, the policies identified in
Appendix A adopted by the ICANN Board of Directors before the
effective date of this Agreement shall be treated in the same manner
and have the same effect as "Consensus Policies."
(f) In the event that, at the time the ICANN Board adopts a policy
under subsection (a) above during the term of this Agreement, ICANN
does not have in place an Independent Review Panel established under
ICANN's bylaws, the fifteen working day period allowed under
subsection (b) above to seek review shall be extended until fifteen
working days after ICANN does have such an Independent Review Panel in
place and NSI shall not be obligated to comply with the policy in the
interim.
2. The "Effective Date" is the date on which the Agreement is signed by ICANN
and NSI.
3. The "Expiration Date" is the date specified in Section 23 below.
4. "gTLDs" means the .com, .net, and .org TLDs, and any new gTLDs established by
ICANN.
5. "ICANN" refers to the Internet Corporation for Assigned Names and Numbers, a
party to this Agreement.
6. "NSI" refers to Network Solutions, Inc., in its capacity as a domain name
registry for the Registry TLDs, a
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party to this Agreement.
7. "Personal Data" refers to data about any identified or identifiable natural
person.
8. "Registry Data" means all data maintained in electronic form in the registry
database, and shall include Zone File Data, all data submitted by registrars in
electronic form, and all other data concerning particular registrations or
nameservers maintained in electronic form in the registry database.
9. "Registry Services" means operation of the registry for the Registry TLDs and
shall include receipt of data concerning registrations and nameservers from
registrars, provision of status information to registrars, operation of the
registry TLD zone servers, and dissemination of TLD zone files.
10. "Registry TLDs" refers to the .com, .net, and .org TLDs.
11. "SLD" refers to a second-level domain in the Internet domain name system.
12. "Term of this Agreement" begins on the Effective Date and runs through the
earliest of (a) the Expiration Date, (b) termination of this Agreement under
Section 14 or Section 16(c), or (c) termination of this Agreement pursuant to
withdrawal of the Department of Commerce's recognition of ICANN under Section
24.
13. "TLD" refers to a top-level domain in the Internet domain name system.
14. "Zone File Data" means all data contained in domain name system zone files
for the Registry TLDs as provided to TLD nameservers on the Internet.
AGREEMENTS
NSI and ICANN agree as follows:
1. Designation of Registry. ICANN acknowledges and agrees that NSI is and will
remain the registry for the Registry TLD(s) throughout the Term of this
Agreement.
2. Recognition in Authoritative Root Server System. 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 (A) the authoritative root will point to
the TLD zone servers designated by NSI for the Registry TLDs throughout the Term
of this Agreement and (B) any changes to TLD zone server designation submitted
to ICANN by NSI will be implemented by ICANN within five business days of
submission. In the event that this Agreement is terminated (A) under Section 14
or 16(C) by NSI or (B) under Section 24 due to the withdrawal of recognition of
ICANN by the United States Department of Commerce, ICANN's obligations
concerning TLD zone server designations for the .com, .net, and .org TLDs in the
authoritative root server system shall be as stated in a separate agreement
between ICANN and the Department of Commerce.
3. General Obligations of NSI.
(A) During the Term of this Agreement:
(i) NSI agrees that it will operate the registry for the
Registry TLDs in accordance with this Agreement;
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(ii) NSI shall comply, in its operation of the registry,
with all Consensus Policies insofar as they:
(a) are adopted by ICANN in compliance with
Section 4 below,
(b) relate to one or more of the following: (1)
issues for which uniform or coordinated resolution
is reasonably necessary to facilitate
interoperability, technical reliability and/or
stable operation of the Internet or domain-name
system, (2) registry policies reasonably necessary
to implement Consensus Policies relating to
registrars, or (3) resolution of disputes
regarding the registration of domain names (as
opposed to the use of such domain names), and
(c) do not unreasonably restrain competition.
(B) NSI acknowledges and agrees that upon the earlier of (i) the
Expiration Date or (ii) termination of this Agreement by ICANN
pursuant to Section 14, it will cease to be the registry for the
Registry TLDs, unless prior to the end of the term of this Agreement
NSI is chosen as the Successor Registry in accordance with the
provisions of this Agreement.
(C) To the extent that Consensus Policies are adopted in conformance
with Section 4 of this Agreement, the measures permissible under
Section 3(A)(ii)(b) shall include, without limitation:
(i) principles for allocation of SLD names (e.g.,
first-come/first-served, timely renewal, holding period
after expiration);
(ii) prohibitions on warehousing of or speculation in domain
names by registries or registrars;
(iii) reservation of SLD names that may not be registered
initially or that may not be renewed due to reasons
reasonably related to (a) avoidance of confusion among or
misleading of users, (b) intellectual property, or (c) the
technical management of the DNS or the Internet (e.g.,
"example.com" and single-letter/digit names); and
(iv) the allocation among continuing registrars of the SLD
names sponsored in the registry by a registrar losing
accreditation.
Nothing in this Section 3 shall limit or otherwise affect NSI's obligations as
set forth elsewhere in this Agreement.
4. General Obligations of ICANN. With respect to all matters that impact the
rights, obligations, or role of NSI, ICANN shall during the Term of this
Agreement:
(A) exercise its responsibilities in an open and transparent manner;
(B) not unreasonably restrain competition and, to the extent feasible,
promote and encourage robust competition;
(C) not apply standards, policies, procedures or practices
arbitrarily, unjustifiably, or inequitably and not single out NSI for
disparate treatment unless justified by substantial and reasonable
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cause; and
(D) ensure, through its reconsideration and independent review
policies, adequate appeal procedures for NSI, to the extent it is
adversely affected by ICANN standards, policies, procedures or
practices.
5. Protection from Burdens of Compliance With ICANN Policies. ICANN hereby
agrees to indemnify and hold harmless NSI, and its directors, officers,
employees and agents from and against any and all claims, damages or liabilities
arising solely from NSI's compliance as required by this Agreement with an ICANN
policy adopted after both parties have entered into this Agreement, except that
NSI shall not be indemnified or held harmless hereunder to the extent that the
claims, damages or liabilities arise from the particular manner in which NSI has
chosen to comply with the policy. In addition, NSI shall be given a reasonable
period after receiving notice of adoption of an ICANN Consensus Policy in which
to comply with that policy.
6. NSI Registry-Level Financial Support of ICANN. NSI, in its role as operator
of the registry for the Registry TLDs, shall pay the gTLD registry-level fees
adopted by ICANN in conformance with Section 4 of this Agreement, provided such
fees are reasonably allocated among all gTLD registries that contract with ICANN
and provided further that, if NSI's share of the total gTLD registry-level fees
are or are budgeted to be in excess of $250,000 in any given year, any such
excess must be expressly approved by gTLD registries accounting, in aggregate,
for payment of two-thirds of all gTLD registry-level fees. NSI shall pay such
fees in a timely manner throughout the Term of this Agreement, and
notwithstanding the pendency of any dispute between NSI and ICANN. NSI agrees to
prepay $250,000 toward its share of gTLD registry-level fees at the time of
signing of this Agreement.
7. Data Escrow. NSI shall deposit into escrow all Registry Data on a schedule
(not more frequently than weekly for a complete set of Registry Data, and daily
for incremental updates) and in an electronic format mutually approved from time
to time by NSI and ICANN, such approval not to be unreasonably withheld by
either party. The escrow shall be maintained, at NSI's expense, by a reputable
escrow agent mutually approved by NSI and ICANN, such approval also not to be
unreasonably withheld by either party. The escrow shall be held under an
agreement among ICANN, NSI, the United States Department of Commerce, and the
escrow agent providing that (A) the data shall be received and held in escrow,
with no use other than verification that the deposited data is complete and in
proper format, until released to ICANN or to the United States Department of
Commerce; (B) the data shall be released to ICANN upon termination of this
Agreement by ICANN under Section 14 or upon the Expiration Date if (1) this
Agreement has not sooner been terminated and (2) it has been finally determined
by the ICANN Board (and no injunction obtained pursuant to Section 13 has been
obtained) that NSI will not be designated as the successor registry under
Section 22 of this Agreement; and (C), in the alternative, the data shall be
released to the United States Department of Commerce according to the terms of
the cooperative agreement between NSI and the United States Government.
8. NSI Handling of Personal Data. NSI agrees to notify registrars sponsoring
registrations in the registry of the purposes for which Personal Data submitted
to the registry by registrars is collected, the recipients (or categories of
recipients) of such Personal Data, and the mechanism for access to and
correction of such Personal Data. NSI shall take reasonable steps to protect
Personal Data from loss, misuse, unauthorized disclosure, alteration or
destruction. NSI shall not use or authorize the use of Personal Data in a way
that is incompatible with the notice provided to registrars.
9. Publication by NSI of Registry Data.
(A) NSI shall provide an interactive service (such as a WHOIS service)
providing free public query-based (web and, after January 15, 2000,
command-line) access to current registry
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database data which, in response to input of an SLD name, shall report
at least the following data elements in response to queries: (a) the
SLD name registered, (b) the TLD in which the SLD is registered; (c)
the IP addresses and corresponding names of the primary nameserver and
secondary nameserver(s) for such SLD, (d) the identity of the
sponsoring Registrar, and (e) the date of the most recent modification
to the domain name record in the registry database; provided, however,
that if ICANN adopts a Consensus Policy that adds to or subtracts from
these elements, NSI will implement that policy.
(B) To ensure operational stability of the registry, NSI may
temporarily limit access under subsection (A) on an equitable basis,
in which case NSI shall immediately notify ICANN of the nature of and
reason for the limitation. NSI shall not continue the limitation
longer than three business days if ICANN objects in writing, which
objection shall not be unreasonably made.
(C) NSI as registry shall comply with Consensus Policies providing for
development and operation of a capability that provides distributed
free public query-based (web and command-line) access to current
registration data implemented by registrars providing for capabilities
comparable to WHOIS, including (if called for by the Consensus Policy)
registry database lookup capabilities according to a specified format.
If such a service implemented by registrars on a distributed basis
does not within a reasonable time provide reasonably robust, reliable
and convenient access to accurate and up-to-date registration data,
NSI as registry shall cooperate and, if reasonably determined to be
necessary by ICANN (considering such possibilities as remedial action
by specific registrars), provide data from the registry database to
facilitate the development of a centralized service providing
equivalent functionality in a manner established by a Consensus
Policy.
10. Rights in Data. Except as permitted by the Registrar License and Agreement,
NSI shall not be entitled to claim any intellectual property rights in data in
the registry supplied by or through registrars other than NSI. In the event that
Registry Data is released from escrow under Section 7 or transferred to a
Successor Registry under Section 22(D), any rights held by NSI as registry in
the data shall automatically be licensed on a non-exclusive, irrevocable,
royalty-free, paid-up basis to the recipient of the data.
11. Limitation of Liability. Neither party shall be liable to the other under
this Agreement for any special, indirect, incidental, punitive, exemplary or
consequential damages.
12. Specific Performance. During the Term of this Agreement, either party may
seek specific performance of any provision of this Agreement as provided by
Section 13, provided the party seeking such performance is not in material
breach of its obligations.
13. Resolution of Disputes Under This Agreement. Disputes arising under or in
connection with this Agreement, including requests for specific performance,
shall be resolved in a court of competent jurisdiction or, at the election of
both parties (except for any dispute over whether a policy adopted by the Board
is a Consensus Policy, in which case at the election of either party), by an
arbitration conducted as provided in this Section pursuant to the International
Arbitration Rules of the American Arbitration Association ("AAA"). The
arbitration shall be conducted in English and shall occur in Los Angeles County,
California, USA. There shall be three arbitrators: each party shall choose one
arbitrator and, if the two arbitrators are not able to agree on a third
arbitrator, the third shall be chosen by the AAA. 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 AAA rules.
The parties shall bear their own attorneys' fees in connection with the
arbitration, and the arbitrators may not reallocate the attorneys' fees in
conjunction with their award. The arbitrators shall render their decision within
ninety days of the initiation of arbitration. In all litigation involving ICANN
concerning this Agreement (whether in a case where arbitration has not been
elected or to
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enforce an arbitration award), jurisdiction and exclusive venue for such
litigation shall be in a court located in Los Angeles, California, USA; however,
the parties shall also have the right to enforce a judgment of such a court in
any court of competent jurisdiction. For the purpose of aiding the arbitration
and/or preserving the rights of the parties during the pendency of an
arbitration, the parties shall have the right to seek temporary or preliminary
injunctive relief from the arbitration panel or a court located in Los Angeles,
California, USA, which shall not be a waiver of this arbitration agreement.
14. Termination.
(A) In the event an arbitration award or court judgment is rendered
specifically enforcing any provision of this Agreement or declaring a
party's rights or obligations under this Agreement, either party may,
by giving written notice, demand that the other party comply with the
award or judgment. In the event that the other party fails to comply
with the order or judgment within ninety days after the giving of
notice (unless relieved of the obligation to comply by a court or
arbitration order before the end of that ninety-day period), the first
party may terminate this Agreement immediately by giving the other
party written notice of termination.
(B) In the event of termination by DOC of its Cooperative Agreement
with NSI pursuant to Section I.B.8 of that Agreement, ICANN shall,
after receiving express notification of that fact from DOC and a
request from DOC to terminate NSI as the operator of the registry
database for the Registry TLDs, terminate NSI's rights under this
Agreement, and shall cooperate with DOC to facilitate the transfer of
the operation of the registry database to a successor registry.
15. Assignment. Neither party may assign this Agreement without the prior
written approval of the other party, such approval not to be unreasonably
withheld. Notwithstanding the foregoing sentence, a party may assign this
Agreement by giving written notice to the other party in the following
circumstances, provided the assignee agrees in writing with the other party to
assume the assigning party's obligations under this Agreement: (a) NSI may
assign this Agreement as part of the transfer of its registry business approved
under Section 25 and (b) ICANN may, in conjunction with a reorganization or
reincorporation of ICANN and with the written approval of the Department of
Commerce, assign this Agreement to another non-profit corporation organized for
the same or substantially the same purposes as ICANN.
16. Relationship to Cooperative Agreement Between NSI and U.S. Government.
(A) NSI's obligations under this Agreement are conditioned on the
agreement by NSI and the Department of Commerce to Amendment 19 to the
Cooperative Agreement in the form attached to this Agreement as
Appendix C.
(B) If within a reasonable period of time ICANN has not made
substantial progress towards having entered into agreements with
competing registries and NSI is adversely affected from a competitive
perspective, NSI may terminate this Agreement with the approval of the
U.S. Department of Commerce. In such event, as provided in Section
16(A) above, the Cooperative Agreement shall replace this Agreement.
(C) In the case of conflict while they are both in effect, and to the
extent that they address the same subject in an inconsistent manner,
the term(s) of the Cooperative Agreement shall take precedence over
this Agreement.
17. NSI Agreements with Registrars. NSI shall make access to the Shared
Registration System available to all ICANN-accredited registrars subject to the
terms of the NSI/Registrar License and Agreement (attached as Appendix B). Such
agreement may be revised by NSI, provided however, that any such changes must
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be approved in advance by ICANN.
18. Performance and Functional Specifications for Registry Services. Unless and
until ICANN adopts different standards as a Consensus Policy pursuant to Section
4, NSI shall provide registry services to ICANN-accredited registrars meeting
the performance and functional specifications set forth in SRS specification
version 1.0.6 dated September 10, 1999, as supplemented by Appendix E. In the
event ICANN adopts different performance and functional standards for the
registry as a Consensus Policy in compliance with Section 4, NSI shall comply
with those standards to the extent practicable, provided that compensation
pursuant to the provisions of Section 20 has been resolved prior to
implementation and provided further that NSI is given a reasonable time for
implementation. In no event shall NSI be required to implement any such
different standards before 3 years from the Effective Date of this Agreement.
19. Bulk Access to Zone Files. NSI shall provide third parties bulk access to
the zone files for .com, .net, and .org TLDs on the terms set forth in the zone
file access agreement (attached as Appendix D). Such agreement may be revised by
NSI, provided however, that any such changes must be approved in advance by
ICANN.
20. Price for Registry Services. The price(s) to accredited registrars for
entering initial and renewal SLD registrations into the registry database and
for transferring a SLD registration from one accredited registrar to another
will be as set forth in Section 5 of Appendix B, Registrar License and
Agreement. These prices shall be increased through an amendment to this
Agreement as approved by ICANN and NSI, such approval not to be unreasonably
withheld, to reflect demonstrated increases in the net costs of operating the
registry arising from (1) ICANN policies adopted after the date of this
Agreement, or (2) legislation specifically applicable to the provision of
Registry Services adopted after the date of this Agreement, to ensure that NSI
recovers such costs and a reasonable profit thereon; provided that such
increases exceed any reductions in costs arising from (1) or (2) above.
21. Additional NSI Obligations.
(A) NSI shall provide all licensed Accredited Registrars (including
NSI acting as registrar) with equivalent access to the Shared
Registration System. NSI further agrees that it will make a
certification to ICANN every six months, using the objective criteria
set forth in Appendix F that NSI is providing all licensed Accredited
Registrars with equivalent access to its registry services.
(B) NSI will ensure, in a form and through ways described in Appendix
F that the revenues and assets of the registry are not utilized to
advantage NSI's registrar activities to the detriment of other
registrars.
22. Designation of Successor Registry.
(A) Not later than one year prior to the end of the term of this
Agreement, ICANN shall, in accordance with Section 4, adopt an open,
transparent procedure for designating a Successor Registry. The
requirement that this procedure be opened one year prior to the end of
the Agreement shall be waived in the event that the Agreement is
terminated prior to its expiration.
(B) NSI or its assignee shall be eligible to serve as the Successor
Registry and neither the procedure established in accordance with
subsection (A) nor the fact that NSI is the incumbent shall
disadvantage NSI in comparison to other entities seeking to serve as
the Successor Registry.
(C) If NSI or its assignee is not designated as the Successor
Registry, NSI or its assignee shall
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cooperate with ICANN and with the Successor Registry in order to
facilitate the smooth transition of operation of the registry to
Successor Registry. Such cooperation shall include the timely transfer
to the Successor Registry of an electronic copy of the registry
database and of a full specification of the format of the data.
(D) ICANN shall select as the Successor Registry the eligible party
that it reasonably determines is best qualified to perform the
registry function under terms and conditions developed as a Consensus
Policy, taking into account all factors relevant to the stability of
the Internet, promotion of competition, and maximization of consumer
choice, including without limitation: functional capabilities and
performance specifications proposed by the eligible party for its
operation of the registry, the price at which registry services are
proposed to be provided by the party, relevant experience of the
party, and demonstrated ability of the party to handle operations at
the required scale. ICANN shall not charge any additional fee to the
Successor Registry.
(E) In the event that a party other than NSI or its assignee is
designated as the Successor Registry, NSI shall have the right to
challenge the reasonableness of ICANN's failure to designate NSI or
its assignee as the Successor Registry under the provisions of Section
13 of this Agreement.
23. Expiration of this Agreement. The Expiration Date shall be four years after
the Effective Date, unless extended as provided below. In the event that NSI
completes the legal separation of ownership of its Registry Services business
from its registrar business by divesting all the assets and operations of one of
those businesses within 18 months after Effective Date to an unaffiliated third
party that enters an agreement enforceable by ICANN and the Department of
Commerce (i) not to be both a registry and a registrar in the Registry TLDs, and
(ii) not to control, own or have as an affiliate any individual(s) or
entity(ies) that, collectively, act as both a registry and a registrar in the
Registry TLDs, the Expiration Date shall be extended for an additional four
years, resulting in a total term of eight years. For the purposes of this
Section, "unaffiliated third party" means any entity in which NSI (including its
successors and assigns, subsidiaries and divisions, and their respective
directors, officers, employees, agents and representatives) does not have
majority equity ownership or the ability to exercise managerial or operational
control, either directly or indirectly through one or more intermediaries.
"Control," as used in this Section 23, means any of the following: (1)
ownership, directly or indirectly, or other interest entitling NSI to exercise
in the aggregate 25% or more of the voting power of an entity; (2) the power,
directly or indirectly, to elect 25% or more of the board of directors (or
equivalent governing body) of an entity; or (3) the ability, directly or
indirectly, to direct or cause the direction of the management, operations, or
policies of an entity.
24. Withdrawal of Recognition of ICANN by the Department of Commerce. In the
event that, prior to the expiration or termination of this Agreement under
Section 14 or 16(C), the United States Department of Commerce withdraws its
recognition of ICANN as NewCo under the Statement of Policy pursuant to the
procedures set forth in Section 5 of Amendment 1 (dated November __, 1999) to
the Memorandum of Understanding between ICANN and the Department of Commerce,
this Agreement shall terminate.
25. Assignment of Registry Assets. NSI may assign and transfer its registry
assets in connection with the sale of its registry business only with the
approval of the Department of Commerce.
26. Option to Substitute Generic Agreement. At NSI's option, it may substitute
any generic ICANN/Registry agreement that may be adopted by ICANN for this
Agreement; provided, however, that Sections 16, 19, 20, 21, 23, 24, and 25 of
this Agreement will remain in effect following any such election by NSI.
27. Notices, Designations, and Specifications. All notices to be given under
this Agreement shall be given in
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writing at the address of the appropriate party as set forth below, unless that
party has given a notice of change of address in writing. Any notice required by
this Agreement shall be deemed to have been properly given when delivered in
person, when sent by electronic facsimile, or when scheduled for delivery by
internationally recognized courier service. Designations and specifications by
ICANN under this Agreement shall be effective when written notice of them is
deemed given to Registry.
If to ICANN, addressed to:
Internet Corporation for Assigned Names and Numbers
4676 Admiralty Way, Suite 330
Marina Del Rey, California 90292
Telephone: 1/310/823-9358
Facsimile: 1/310/823-8649
Attention: Chief Executive Officer
If to Registry, addressed to:
1. Network Solutions, Inc.
505 Huntmar Park Drive
Herndon, VA 20170
Telephone: 1/703/742-0400
Facsimile: 1/703/742-3386
Attention: General Counsel
2. Network Solutions, Inc.
505 Huntmar Park Drive
Herndon, VA 20170
Telephone: 1/703/742-0400
Facsimile: 1/703/742-3386
Attention: Registry General Manager
28. Dates and Times. All dates and times relevant to this Agreement or its
performance shall be computed based on the date and time observed in Los
Angeles, California, USA.
29. Language. All notices, designations, and specifications made under this
Agreement shall be in the English language.
30. Entire Agreement. This Agreement constitutes the entire agreement of the
parties hereto pertaining to the registry for the Registry TLDs and supersedes
all prior agreements, understandings, negotiations and discussions, whether oral
or written, between the parties on that subject. This Agreement is intended to
coexist with any Registrar Accreditation Agreement between the parties.
31. Amendments and Waivers. No amendment, supplement, or modification of this
Agreement or any provision hereof shall be binding unless executed in writing by
both parties. No waiver of any provision of this Agreement shall be binding
unless evidenced by a writing signed by the party waiving compliance with such
provision. No waiver of any of the provisions of this Agreement shall be deemed
or shall constitute a waiver of any other provision hereof, nor shall any such
waiver constitute a continuing waiver unless otherwise expressly provided.
32. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in duplicate by their duly authorized representatives.
INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS
By:__________________________
Michael M. Roberts
Interim President and CEO
Date: _______________________
NETWORK SOLUTIONS, INC.
By:__________________________
Date: ________________________
- --------------------------------------------------------------------------------
PAGE UPDATED 28-SEPTEMBER-1999
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[NETWORK SOLUTIONS LOGO]
TENTATIVE AGREEMENTS AMONG ICANN, THE U.S.
DEPARTMENT OF COMMERCE, AND NETWORK SOLUTIONS, INC.
(Posted September 28, 1999)
- --------------------------------------------------------------------------------
[NOTE: ICANN HAS POSTED THE FOLLOWING DOCUMENT FOR PUBLIC REVIEW AND COMMENT.
TO SUBMIT COMMENTS, CLICK HERE.]
- --------------------------------------------------------------------------------
APPENDIX D
ZONE FILE ACCESS AGREEMENT
505 Huntmar Park Drive - Herndon, Virginia, USA 20170
Telephone +1-703-326-2600 - Fax +1-703-834-2652
AGREEMENT
1. PARTIES
The User named in this Agreement hereby contracts with Network Solutions, Inc.
("Network Solutions") for a non-exclusive, non-transferable, limited right to
access Internet host rz.internic.net, or other servers designated by Network
Solutions from time to time, and to transfer a copy of the described Data to the
User's Internet Host machine specified below, under the terms of this Agreement.
Upon execution of this Agreement by Network Solutions, Network Solutions will
return a copy of this Agreement to you for your records with your UserID and
Password entered in the spaces set forth below.
2. USER INFORMATION
(a) User:
-----------------------------------------------------------------
(b) Contact Person:
-------------------------------------------------------
(c) Street Address:
-------------------------------------------------------
(d) City, State or Province:
----------------------------------------------
(e) Country and Postal Code:
----------------------------------------------
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(f) Telephone Number:
-----------------------------------------------------
(including area/country code)
(g) Fax Number:
-----------------------------------------------------
(including area/country code)
(h) E-Mail Address:
-----------------------------------------------------
(i) Specific Internet host machine which will be used to access Network
Solutions' server to transfer copies of the Data:
Name:
-----------------------------------------------------------------
IP Address:
------------------------------------------------------------
(j) Purpose(s) for which the Data will be used: During the term of this
Agreement, you may use the data for any legal purpose, not prohibited under
Section 4 below. You may incorporate some or all of the Data in your own
products or services, and distribute those products or services for a
purpose not prohibited under Section 4 below.
3. TERM
This Agreement is effective for a period of three (3) months from the date
of execution by Network Solutions (the "Initial Term"). Upon conclusion of
the Initial Term this Agreement will automatically renew for successive
three month renewal terms (each a "Renewal Term") until terminated by
either party as set forth in Section 12 of this Agreement or one party
provides the other party with a written notice of termination at least
seven (7) days prior to the end of the Initial Term or the then current
Renewal Term.
NOTICE TO USER: CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS. YOU MAY
USE THE USER ID AND ASSOCIATED PASSWORD PROVIDED IN CONJUNCTION WITH THIS
AGREEMENT ONLY TO OBTAIN A COPY OF NETWORK SOLUTIONS' AGGREGATED .COM,
.ORG, AND .NET TOP LEVEL DOMAIN ("TLD") ZONE FILES, AND ANY ASSOCIATED
ENCRYPTED CHECKSUM FILES (COLLECTIVELY THE "DATA"), VIA THE FILE TRANSFER
PROTOCOL ("FTP") PURSUANT TO THESE TERMS.
4. GRANT OF ACCESS
Network Solutions grants to you a non-exclusive, non-transferable, limited
right to access Internet host rz.internic.net, or such other servers
designated by Network Solutions from time to time, and to transfer a copy
of the Data to the Internet host machine identified in Section 2 of this
Agreement no more than once per 24 hour period using FTP for the purposes
described in the next following sentence. You agree that you will use this
Data only for lawful purposes but that, under no circumstances will you use
this Data to: (1) allow, enable, or otherwise support the transmission of
unsolicited, commercial e-mail (spam) to entities other than your own
existing customers; (2) enable high volume, automated, electronic processes
that apply to Network Solutions (or its systems) for large numbers of
domain names; or (3) enable high volume, automated, electronic, repetitive
queries against Network Solutions' Whois database or Whois databases of
third parties. Network Solutions reserves the right, with the approval of
the U.S. Department of Commerce, which shall not unreasonably be
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withheld, to specify additional specific categories of prohibited uses by
giving you reasonable written notice at any time and upon receiving such
notice you shall not make such prohibited use of the Data you obtain under
this Agreement. You agree that you will only copy the Data you obtain under
this Agreement into a machine-readable or printed form as necessary to use
it in accordance with this Agreement in support of your use of the Data.
You agree that you will comply with all applicable laws and regulations
governing the use of the Data. You agree to take all reasonable steps to
protect against unauthorized access to, use and disclosure of the Data you
obtain under this Agreement. Except as provided in Section 2(j) above, you
agree not to distribute the Data you obtained under this Agreement or any
copy thereof to any other party without the express prior written consent
of Network Solutions.
5. FEE
You agree to remit in advance to Network Solutions a quarterly fee of $0
(USD) for the right to access the files during either the Initial Term or
Renewal Term of this Agreement. Network Solutions reserves the right to
adjust this fee on thirty days' prior notice to reflect a change in the
cost of providing access to the files.
6. PROPRIETARY RIGHTS
You agree that no ownership rights in the Data are transferred to you under
this Agreement. You agree that any copies of the Data that you make will
contain the same notice that appears on and in the Data obtained under this
Agreement.
7. METHOD OF ACCESS
Network Solutions reserves the right, with the approval of the U.S.
Department of Commerce, which shall not unreasonably be withheld, to change
the method of access to the Data at any time. You also agree that, in the
event of significant degradation of system processing or other emergency,
Network Solutions may, in its sole discretion, temporarily suspend access
under this Agreement in order to minimize threats to the operational
stability and security of the Internet and the NSI system.
8. NO WARRANTIES
The Data is being provided "as-is." Network Solutions disclaims all
warranties with respect to the Data, either expressed or implied, including
but not limited to the implied warranties of merchantability, fitness for a
particular purpose and non-infringement of third party rights. Some
jurisdictions do no allow the exclusion of implied warranties or the
exclusion or limitation of incidental or consequential damages, so the
above limitations or exclusions may not apply to you.
9. SEVERABILITY
In the event of invalidity of any provision of this Agreement, the parties
agree that such invalidity shall not affect the validity of the remaining
provisions of this Agreement.
10. NO CONSEQUENTIAL DAMAGES
In no event shall Network Solutions be liable to you for any consequential,
special, incidental or indirect damages of any kind arising out of the use
of the Data or the termination of this Agreement, even if Network Solutions
has been advised of the possibility of such damages.
11. GOVERNING LAW
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This Agreement shall be governed and construed in accordance with the laws
of the Commonwealth of Virginia. You agree that any legal action or other
legal proceeding relating to this Agreement or the enforcement of any
provision of this Agreement shall be brought or otherwise commenced in the
state or federal courts located in the eastern district of the Commonwealth
of Virginia. You expressly and irrevocably agree and consent to the
personal jurisdiction and venue of the federal and states courts located in
the eastern district of the Commonwealth of Virginia (and each appellate
court located therein). The United Nations Convention on Contracts for the
International Sale of Goods is specifically disclaimed.
12. TERMINATION
You may terminate this Agreement at any time by erasing the Data you
obtained under this Agreement from your Internet host machine together with
all copies of the Data and providing written notice of your termination to
Network Solutions, Attention: Registry, Customer Affairs, 505 Huntmar Park
Drive, Herndon, Virginia 20170. Network Solutions has the right to
terminate this Agreement immediately if you fail to comply with any term or
condition of this Agreement. You agree upon receiving notice of such
termination of this Agreement by Network Solutions or expiration of this
Agreement to erase the Data you obtained under this Agreement together with
all copies of the Data.
13. ENTIRE AGREEMENT
This is the entire agreement between you and Network Solutions concerning
access and use of the Data, and it supersedes any prior agreements or
understandings, whether written or oral, relating to access and use of the
Data.
<TABLE>
<S> <C>
Network Solutions, Inc. User
-------------------------------
By: By:
---------------------------------- -------------------------------
(sign) (sign)
Name: Name:
--------------------------------- -------------------------------
(print) (print)
Title: Title:
------------------------------- ------------------------------
Date: Date:
--------------------------------- ------------------------------
</TABLE>
ASSIGNED USERID AND PASSWORD
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<PAGE> 16
(TO BE ASSIGNED BY NETWORK SOLUTIONS UPON EXECUTION OF THIS AGREEMENT):
USERID: PASSWORD:
------------------------------ --------------------------
- --------------------------------------------------------------------------------
PAGE MODIFIED 28-SEPTEMBER-1999
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<PAGE> 17
APPENDIX E
1. Changes to the Shared Registration System beyond RRP Version 1.06, dated
September 10, 1999.
Network Solutions, Inc. ("Network Solutions") may issue periodic patches,
updates or upgrades to the Software, RRP or APIs ("Licensed Product")
licensed under the Registrar License and Agreement (the "Agreement") that
will enhance functionality or otherwise improve the Shared Registration
System under the Agreement. For the purposes of this Exhibit E, the
following terms have the associated meanings set forth herein. (1) A
"Patch" means minor modifications to the Licensed Product made by Network
Solutions during the performance of error correction services. A Patch does
not constitute a Version. (2) An "Update" means a new release of the
Licensed Product which may contain error corrections, minor enhancements,
and, in certain circumstances, major enhancements, and which is indicated
by a change in the digit to right of the decimal point in the version
number of the Licensed Product. (3) An "Upgrade" means a new release of the
Licensed Product which involves the addition of substantial or
substantially enhanced functionality and which is indicated by a change in
the digit to the left of the decimal point in the version of the Licensed
Product. (4) A "Version" means the Licensed Product identified by any
single version number. Each Update and Upgrade causes a change in Version.
Patches do not require corresponding changes to client applications
developed, implemented, and maintained by each Registrar. Updates may
require changes to client applications by each Registrar in order to take
advantage of the new features and/or capabilities and continue to have
access to the Shared Registration System. Upgrades require changes to
client applications by each Registrar in order to take advantage of the new
features and/or capabilities and continue to have access to the Shared
Registration System.
Network Solutions, in its sole discretion, will deploy Patches during
scheduled and announced Shared Registration System maintenance periods. For
Updates and Upgrades, Network Solutions will give each Registrar at least
sixty (60) days' notice prior to deploying the Updates and Upgrades into
the production environment. Such notice will include an initial thirty (30)
days' notice before deploying the Update that requires changes to client
applications or the Upgrade into the Operational Test and Evaluation
("OT&E") environment to which all Registrars have access. Network Solutions
will maintain the Update or Upgrade in the OT&E environment for at least
thirty (30) days, to allow each Registrar the opportunity to modify its
client applications and complete testing, before implementing the new code
in the production environment.
2.Planned Software Releases.
Network Solutions will make the following changes to the Licensed Product
by the following dates:
September 30, 1999: Deployment of a Patch that permits Registrars
to access reporting data and a support utility. The September 30,
1999 Patch will not require modifications to the client
applications developed by the Registrars; hence, there will not
be a 30-day OT&E period.
November 20, 1999: Deployment of an Update that is a change to
the RRP. The November 20, 1999 Update is planned to be introduced
into the OT&E environment not later than October 20, 1999.
3.New Architectural Features.
Network Solutions will use its best commercial efforts to develop and
implement two additional modifications to the Licensed Product by January
15, 2000 as follows:
(1) Network Solutions will issue an Upgrade to the Licensed Product
that will enable a
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<PAGE> 18
Registrar to accept initial domain name registrations or renewals
of a minimum of one year in length, or in multiples of one year
increments, up to a maximum of ten (10) years.
(2) Network Solutions will issue an Upgrade to the Licensed Product
that will enable Registrars to accept the addition of one additional
year to a registrant's "current" registration period when a registrant
changes from one Registrar to another.
Registrars will be able to offer these new features only for new
registrations or renewals occurring after the Upgrade is deployed. Both
Upgrades will be introduced into the OT&E environment for testing prior to
deployment.
- --------------------------------------------------------------------------------
PAGE UPDATED 28-SEPTEMBER-1999
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<PAGE> 19
APPENDIX F
EQUIVALENT ACCESS CERTIFICATION
Network Solutions, acting in its capacity as the "Registry" makes the following
certification:
1. All Registrars (including Network Solutions as a Registrar) connect to
the Shared Registration System Gateway via the Internet by utilizing
the same maximum number of IP addresses and SSL certificate
authentication.
2. The Registry 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.
3. All Registrars have the same level of access to Registry customer
support personnel via telephone, e-mail and the Registry website.
4. All Registrars have the same level of access to the Network Solutions
Registry resources to resolve Registry/Registrar or
Registrar/Registrar disputes and technical and/or administrative
customer service issues.
5. All Registrars have the same level of access to Registry-generated
data to reconcile their registration activities from Registry Web and
ftp servers.
6. All Registrars may perform basic automated registrar account
management functions using the same Registrar tool made available to
all Registrars by the Registry.
7. The Shared Registration System does not include any algorithms or
protocols that differentiate among Registrars with respect to
functionality, including database access, system priorities and
overall performance.
8. All Registry-assigned personnel have been directed not to give
preferential treatment to any particular Registrar.
9. I have taken reasonable steps to verify that the foregoing
representations are being complied with.
This Certification is dated this the day of , .
---- ------- -----
Network Solutions, Inc.
By:
---------------------
Name: Bruce Chovnick
Title: General Manager, Network Solutions Registry
- --------------------------------------------------------------------------------
APPENDIX F
NETWORK SOLUTIONS REGISTRY
ORGANIZATIONAL CONFLICT OF INTEREST COMPLIANCE PLAN
Network Solutions has implemented the following organizational, physical and
procedural safeguards to ensure that revenues and assets of the Network
Solutions Registry business are not utilized to advantage the Network Solutions
Registrar business to the detriment of other competing registrars. Network
Solutions recognizes the potential for organizational conflicts of interest
("OCI") between the Registry and Registrar businesses and has placed these
generally accepted, US Government recognized safeguards in place to avoid
operational issues.
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I. NSI ORGANIZATIONAL STRUCTURE
In recognition of potential OCI, Network Solutions established organization
barriers by separating Network Solutions' Registry, Registrar and Information
Technology Services businesses into separate profit and loss ("P&L") centers,
each with its own General Manager. Each General Manager reports directly to the
Chief Executive Officer of Network Solutions and has dedicated direct reporting
employees in the finance, marketing, engineering, customer affairs and customer
service functions, as appropriate. Each P&L employee is dedicated to the line of
business for which he/she directly works.
The corporate administrative support functions under the Chief Financial
Officer, Chief Information Officer, Chief Technology Officer, and General
Counsel provide support to each line of business on a cost allocated basis or a
dedicated project accounting basis. These officers and the Chief Executive
Officer will be compensated based on consolidated financial results, versus
Registrar or Registry results.
The Registry General Manager has authority over all operational decisions and is
the business owner of this compliance plan. The Registry employs a Compliance
Officer to administer day-to-day oversight and administration of this plan.
The Network Solutions General Counsel's office employs an overall OCI compliance
function to oversee corporate adherence to the Plan and to resolve potential
conflicts or actual conflicts among Network Solutions functions.
II. FINANCIAL SEPARATION
The Registry business accounts for its own costs, revenues, cash flow, etc. as a
separate P&L center, using separate and distinct systems and accounting
functions. Reasonable and independently auditable internal accounting controls
are in place to ensure the adequacy of these systems and functions. The
individual financial statements of each P&L center are then consolidated at the
corporate level for tax and SEC reporting.
III. LOCATION CHANGE
To further separate businesses and, among other things, ensure that the risk of
inadvertent disclosure of sensitive information is effectively mitigated,
Network Solutions has relocated the Registry and Registrar businesses to
separate facilities.
IV. PHYSICAL BARRIERS
Each NSI business unit employee has a security badge that will provide him/her
access only to the facility he/she works in and the Network Solutions
headquarters facility. At the Registry facility, only Registry-assigned
personnel ("Registry Personnel") will have regular badge access to the premises
and any other person will be treated as a visitor to the facility and will gain
access only through established visitor
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sign-in and identification badge procedures.
V. ACCESS TO THE REGISTRY
The Registry business provides access to all Registry customers through the
following mechanisms and separates Registry Systems and information from NSI
Registrar Systems and information through these processes:
1. All Registrars (including Network Solutions as a Registrar) connect to
the Shared Registration System Gateway via the Internet by utilizing
the same maximum number of IP addresses and SSL certificate
authentication.
2. All Registrars have access to Registry-generated data to reconcile
their registration activities from Registry Web and ftp servers. All
Registrars may perform basic automated registrar account management
functions using the same Registrar tool made available to all
Registrars by the Registry.
3. The Shared Registration System does not include any algorithms that
differentiate among Registrars with respect to functionality,
including database access, system priorities and overall performance.
4. Network Solutions as Registrar will not be given any access to the
Registry not available to any other Registrar.
5. Any information regarding the technical interface of
Registry/Registrar operations will be made equally available to all
Registrars.
VI. INFORMATION CONTROL
The Registry has in place various procedural safeguards to ensure that data and
information of the Registry business are not utilized to advantage the Network
Solutions Registrar business. Network Solutions has adopted a policy regarding
the marking, access and dissemination of business sensitive information (Exhibit
A). This policy requires employees to mark all sensitive information as
"Registry Sensitive Information." Furthermore, the policy requires that all
sensitive information be limited in access and disseminated only to those
Registry Personnel and other personnel who are identified to have a legitimate
"need to know," which shall not include Registrar-assigned personnel. The
Registry General Manager maintains a matrix that dictates who can access
particular categories of Registry Sensitive information. All sensitive
information is secured in an appropriate manner to ensure confidentiality and
security. Consent of the Registry General Manager is required prior to release
of financial or statistical information relating to the Registry business.
VII. TRAINING
All Registry Personnel and other employees who have a need to know Registry
business undergo a formal OCI Training Program, developed by the Registry
Compliance Officer, providing the staff members with a clear understanding of
this Plan and the staff members' responsibility under the plan. OCI training is
required before any potential staff member is given an assignment or access to
Registry material. OCI refresher training is given on an annual basis.
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VIII. NON-DISCLOSURE AGREEMENTS/OCI AVOIDANCE CERTIFICATIONS
Upon completion of the training program, all Registry Personnel and other
employees who have a need to know Registry business, are required to sign a
non-disclosure agreement (Exhibit B) and a Registry Business OCI Avoidance
Certification (Exhibit C) acknowledging his/her understanding of the OCI
requirements, and certifying that he/she will strictly comply with the
provisions of the OCI Plan. The signed agreements are maintained in the program
files and the individual's personnel file. Each staff member acknowledges
verification of the annual refresher training required by this Plan.
- --------------------------------------------------------------------------------
Exhibit A
[NETWORK SOLUTIONS LOGO]
POLICY/PROCEDURE NO. A-1
PAGE 1 OF 3
- --------------------------------------------------------------------------------
TITLE: Access and Dissemination of Proprietary Information DATE:
September 24, 1999
- --------------------------------------------------------------------------------
APPROVED: Jim Rutt, Chief Executive Officer
- --------------------------------------------------------------------------------
1. PURPOSE: To establish policies (i) for the protection of Proprietary
Information developed by and/or in the possession of Network Solutions, Inc.
("Network Solutions"), and (ii) for the protection of Sensitive Information of
the Registry Business to ensure that the revenue and assets of the Registry
Business are not utilized to advantage the Registrar Business to the detriment
of other competing registrars.
2. SCOPE: This policy is applicable to all employees of Network Solutions.
3. DEFINITIONS:
3.1 Proprietary Information. Financial, personnel, technical, or business
information owned or possessed by Network Solutions which has not been
authorized for public release. Such information is frequently referred
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<PAGE> 23
to as "Proprietary Information," "Confidential Information" or "Privileged
Information."
3.2 Registry Sensitive Information. Proprietary Information or other financial,
personnel, technical, or business information owned or possessed by Network
Solutions relating to its Registry business which could be utilized to advantage
the Network Solutions Registrar business to the detriment of other competing
registrars. Examples are found in Attachment 1.
3.3 Registrar Sensitive Information. Proprietary Information or other financial,
personnel, technical, or business information owned or possessed by Network
Solutions relating to its Registrar business.
3.4 Computer Software. Computer programs and computer databases.
3.5 Computer Software Documentation. Technical data, including computer listing
and printouts, in human-readable form which (i) document the design or details
of computer software, (ii) explain the capabilities of the software, or (iii)
provide instructions for using the software to obtain desired results from a
computer.
4. PROCEDURES FOR PROTECTION OF PROPRIETARY INFORMATION:
4.1 Responsibility. Managers are responsible for identifying Proprietary
Information, Registry Sensitive Information and Registrar Sensitive Information
developed, produced or possessed by their business unit and for instructing
employees reporting to them regarding the proper handling and safeguarding of
such information. Each Network Solutions employee should exercise reasonable
care to protect Proprietary Information, Registry Sensitive Information and
Registrar Sensitive Information from unauthorized or inadvertent disclosure.
4.2 Disclosure. It is recognized that there are occasions to disclose
Proprietary Information to outsiders. Such disclosure should not be made without
the prior written approval of an authorized Corporate officer of Network
Solutions. Advice from Corporate counsel should be obtained on all questions
relating to the identification or releasing of Proprietary Information, Registry
Sensitive Information or Registrar Sensitive Information.
4.3 Marking of Documents. Employees should, as a matter of routine, mark each
document containing Proprietary Information, Registry Sensitive Information or
Registrar Sensitive Information with one of the markings described below at the
time the document is produced. Computer tapes and other recorded material should
be identified by proper labeling which is visible to the ordinary person while
the material is being stored. In addition, all such material should have a
warning notice at the beginning of the material to ensure the user is forewarned
about the proprietary or sensitive nature of its contents (as soon as access is
afforded to a computer tape or at the beginning of a sound recording, etc.).
4.3.1 Internal Documents
On internal documents (reports, memoranda, drawings, etc.) the applicable
following legend shall be put at the top or bottom of the first page or, in
the case of drawings, in the space provided for such legends. The "need to
know" principle shall be the guideline when divulging Proprietary
Information or Sensitive Information internally.
NETWORK SOLUTIONS PROPRIETARY INFORMATION
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<PAGE> 24
THE INFORMATION ON THIS DOCUMENT IS PROPRIETARY TO NETWORK SOLUTIONS. IT
MAY NOT BE USED, REPRODUCED OR DISCLOSED WITHOUT THE WRITTEN APPROVAL OF
NETWORK SOLUTIONS.
NETWORK SOLUTIONS REGISTRY SENSITIVE INFORMATION
THE INFORMATION ON THIS DOCUMENT IS PROPRIETARY TO NETWORK SOLUTIONS AND
NETWORK SOLUTIONS' REGISTRY BUSINESS. IT MAY NOT BE USED, REPRODUCED OR
DISCLOSED WITHOUT THE WRITTEN APPROVAL OF THE GENERAL MANAGER OF THE
NETWORK SOLUTIONS REGISTRY BUSINESS.
NETWORK SOLUTIONS REGISTRAR SENSITIVE INFORMATION
THE INFORMATION ON THIS DOCUMENT IS PROPRIETARY TO NETWORK SOLUTIONS AND
NETWORK SOLUTIONS' REGISTRAR BUSINESS. IT MAY NOT BE USED, REPRODUCED OR
DISCLOSED WITHOUT THE WRITTEN APPROVAL OF THE GENERAL MANAGER OF THE
NETWORK SOLUTIONS REGISTRAR BUSINESS.
4.3.2 Documents for External Distribution
A. Reports and Similar Documents
The following legend shall be typed or stamped on the cover and/or
title page of reports or on the face of other documentation provided
to others:
NETWORK SOLUTIONS PROPRIETARY INFORMATION
THIS DOCUMENT IS THE PROPERTY OF NETWORK SOLUTIONS, INC. IT MAY BE
USED BY RECIPIENT ONLY FOR THE PURPOSE FOR WHICH IT WAS TRANSMITTED
AND SHALL BE RETURNED UPON REQUEST OR WHEN NO LONGER NEEDED BY
RECIPIENT. IT MAY NOT BE COPIED OR COMMUNICATED WITHOUT THE PRIOR
WRITTEN CONSENT OF NETWORK SOLUTIONS.
B. Letters
On letters to outsiders which contain Proprietary Information, the
following statement or equivalent shall appear in the text:
INFORMATION CONTAINED HEREIN IS NETWORK SOLUTIONS PROPRIETARY
INFORMATION AND IS MADE AVAILABLE TO YOU BECAUSE OF YOUR INTEREST IN
OUR COMPANY (OR PROGRAM, ETC.). THIS INFORMATION IS SUBMITTED IN
CONFIDENCE AND ITS DISCLOSURE TO YOU IS NOT INTENDED TO CONSTITUTE
PUBLIC DISCLOSURE OR AUTHORIZATION FOR DISCLOSURE TO OTHER PARTIES.
C. Proposals to Commercial Companies
1.A restrictive legend such as the following shall be placed on
the title page of each volume of the proposal:
NETWORK SOLUTIONS, INC.'S (NSI'S) PROPOSAL, WHICH FOLLOWS,
CONTAINS INFORMATION AND DATA THAT ARE PRIVILEGED AND/OR
CONFIDENTIAL TO NSI. THIS INFORMATION AND DATA ARE NOT MADE
AVAILABLE FOR PUBLIC REVIEW
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AND ARE SUBMITTED VOLUNTARILY TO XYZ COMPANY NAME ONLY FOR
PURPOSES OF REVIEW AND EVALUATION IN CONNECTION WITH THIS
PROPOSAL. NO OTHER USE OF THE INFORMATION AND DATA CONTAINED
HEREIN IS PERMITTED WITHOUT THE EXPRESS WRITTEN PERMISSION OF
NSI. INFORMATION AND DATA CONTAINED HEREIN IS PROTECTED BY THE
VIRGINIA TRADE SECRETS ACT, AS CODIFIED, AND ANY IMPROPER USE,
DISTRIBUTION, OR REPRODUCTION IS SPECIFICALLY PROHIBITED. NO
LICENSE OF ANY KIND WHATSOEVER IS GRANTED TO ANY THIRD PARTY TO
USE THE INFORMATION AND DATA CONTAINED HEREIN UNLESS A WRITTEN
AGREEMENT EXISTS BETWEEN NSI AND THE THIRD PARTY WHICH DESIRES
ACCESS TO THE INFORMATION AND DATA. UNDER NO CONDITION SHOULD THE
INFORMATION AND DATA CONTAINED HEREIN BE PROVIDED IN ANY MANNER
WHATSOEVER TO ANY THIRD PARTY WITHOUT THE PRIOR WRITTEN
PERMISSION OF NSI. THE DATA SUBJECT TO THIS RESTRICTION IS
CONTAINED IN PAGES ________.
2.Each page of the proposal which contains Proprietary
Information shall be marked as follows:
Use or disclosure of proposal information is subject to the
restriction on the title page of this proposal.
D. Proprietary Information Released Pursuant to Contract
When Proprietary Information is exchanged between Network Solutions
and another company, a Confidentiality Agreement or Non-Disclosure
Agreement shall be executed by the parties concerned.
1.The parties will designate in writing one or more individuals
within their own organization as the only person(s) authorized to
receive Proprietary Information exchanged between the parties
pursuant to this Agreement (see Attachment 2 for a sample
agreement).
2.All information which the disclosing party claims as
proprietary shall be received in writing, clearly identified as
proprietary, and delivered personally or by mail addressed to
individuals designated above to receive the Proprietary
Information.
5. SAFEKEEPING
When not in use, Proprietary Information, Registry Sensitive Information or
Registrar Sensitive Information should be stored in a locked desk, cabinet or
file. Such material should not be left unattended during the workday and should
be turned face down in the presence of visitors or employees who have no need to
know.
6. DESTRUCTION
Burning, shredding or comparable methods should be used for the destruction of
Proprietary Information, Registry Sensitive Information or Registrar Sensitive
Information.
7. TERMINATING EMPLOYEES
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Terminating employees should be reminded of their responsibilities and
obligations in protecting Proprietary Information as outlined in Administrative
Policy A-3, "Standards of Business Ethics and Conduct." Permission to retain
such information after termination must be in writing and approved by the
Network Solutions General Counsel prior to removal.
8. THIRD-PARTY PROPRIETARY INFORMATION
Proprietary Information received from other companies through contractual or
pre-contractual relationships will be afforded the same level of protection
given to Network Solutions' Proprietary Information.
9. QUESTIONS
Questions concerning implementation or interpretation of this policy should be
referred to the appropriate General Manager or the General Counsel.
- --------------------------------------------------------------------------------
ATTACHMENT 1
EXAMPLES OF REGISTRY SENSITIVE INFORMATION
A. ENGINEERING INFORMATION
Engineering information, including schematics, code, and engineering notes
should be considered Registry Sensitive Information.
B. STATISTICAL INFORMATION
Some statistical information will be available for public consumption. Such
information does not require any special treatment, so long as neither the
Network Solutions Registrar nor Registry does not receive any preferential
treatment (e.g., early access to such information). Other statistics, such as
numbers of registrations, transfers, etc., performed by each registrar, as well
as processing times, numbers of failures or any information that is trending
negative or contains negative performance factors not generally available to the
public should be considered either Registry Sensitive Information or Registrar
Sensitive Information, as applicable.
One area of statistical data that is deserving of special attention is Registry
information pertaining to the numbers of registrations, transfers, etc.,
performed by each registrar. All such information is Registry Sensitive
Information and will be treated accordingly. Unless otherwise approved,
registration activity information must be protected from disclosure to any
registrar other than the registrar to which the information refers. Such
protection extends to precluding Network Solutions' Board of Directors, Chief
Executive Officer, Chief Financial Officer, and the General Manager of the
Registrar business from access to Registry Sensitive Information pertaining to
any registrar other than Network Solutions.
C. FINANCIAL INFORMATION
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Financial data related to either the NSI Registry or Registrar is Sensitive
Information and will not be released without the express consent of the
applicable General Manager, Chief Executive Officer or Chief Financial Officer
of Network Solutions. Monthly expenses and income shall be kept sensitive and
restricted from disclosure to any party other than the appropriate Registry or
Registrar staff and select members of Network Solutions' senior staff.
- --------------------------------------------------------------------------------
ATTACHMENT 2
NON-DISCLOSURE AGREEMENT
PROPRIETARY INFORMATION
This is an Agreement, effective____________________, 199___ between Network
Solutions, Inc. (hereinafter referred to as "NSI") and____________________
(hereinafter referred to as "___________________"). It is recognized that it may
be necessary or desirable to exchange information between NSI and______________
___________________for the purpose of_______________________________
_____________________________________. With respect to the information exchanged
between the parties subsequent to this date, the parties agree as follows:
(1) "Proprietary Information" shall include, but not be limited to, performance,
sales, financial, contractual and special marketing information, ideas,
technical data and concepts originated by the disclosing party, not previously
published or otherwise disclosed to the general public, not previously available
without restriction to the receiving party or others, nor normally furnished to
others without compensation, and which the disclosing party desires to protect
against unrestricted disclosure or competitive use, and which is furnished
pursuant to this Agreement and appropriately identified as being proprietary
when furnished.
(2) In order for proprietary information disclosed by one party to the other to
be protected in accordance with this Agreement, it must be: (a) in writing or in
electronic form; (b) clearly identified as proprietary information at the time
of its disclosure by each page thereof being marked with an appropriate legend
indicating that the information is deemed proprietary by the disclosing party;
and (c) delivered by letter of transmittal, hand delivery, or electronically
transmitted to the individual designated in Paragraph 3 below, or his designee.
Where the proprietary information has not been or cannot be reduced to written
or electronic form at the time of disclosure and such disclosure is made orally
and with prior assertion of proprietary rights therein, such orally disclosed
proprietary information shall only be protected in accordance with this
Non-Disclosure Agreement provided that complete written summaries of all
proprietary aspects of any such oral disclosures shall have been delivered to
the individual identified in Paragraph 3 below, within 20 calendar days of said
oral disclosures. Neither party shall identify information as proprietary which
is not in good faith believed to be confidential, privileged, a trade secret, or
otherwise entitled to such markings or proprietary claims.
(3) In order for either party's proprietary information to be protected as
described herein, it must be submitted in written or electronic form as
discussed in Paragraph 2 above to:
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<PAGE> 28
NSI
-------------------------
Name: James M. Ulam, Esq.
Title: Asst. General Counsel Name:
-------------------------
Address: 505 Huntmar Park Drive Title:
-------------------------
Herndon, VA 20170 Address:
----------------------
Telephone No: (703)742-4737 Telephone No:
-----------------
FAX No: (703)742-0065 FAX No:
------------------------
(4) Each party covenants and agrees that it will keep in confidence, and prevent
the disclosure to any person or persons outside its organization or to any
unauthorized person or persons, any and all information which is received from
the other under this Non-Disclosure Agreement and has been protected in
accordance with paragraphs 2 and 3 hereof; provided however, that a receiving
party shall not be liable for disclosure of any such information if the same:
A. Was in the public domain at the time it was disclosed,
B. Becomes part of the public domain without breach of this Agreement,
C. Is disclosed with the written approval of the other party,
D. Is disclosed after three years from receipt of the information,
E. Was independently developed by the receiving party,
F. Is or was disclosed by the disclosing party to a third party without
restriction, or
G. Is disclosed pursuant to the provisions of a court order.
As between the parties hereto, the provisions of this Paragraph 4 shall
supersede the provisions of any inconsistent legend that may be affixed to said
data by the disclosing party, and the inconsistent provisions of any such legend
shall be without any force or effect.
Any protected information provided by one party to the other shall be used only
in furtherance of the purposes described in this Agreement, and shall be, upon
request at any time, returned to the disclosing party. If either party loses or
makes unauthorized disclosure of the other party's protected information, it
shall notify such other party immediately and take all steps reasonable and
necessary to retrieve the lost or improperly disclosed information.
(5) The standard of care for protecting Proprietary Information imposed on the
party receiving such information, will be that degree of care the receiving
party uses to prevent disclosure, publication or dissemination of its own
proprietary information, but in no event less than reasonable care.
(6) Neither party shall be liable for the inadvertent or accidental disclosure
of Proprietary Information if such disclosure occurs despite the exercise of the
same degree of care as such party normally takes to preserve
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<PAGE> 29
its own such data or information.
(7) In providing any information hereunder, each disclosing party makes no
representations, either express or implied, as to the information's adequacy,
sufficiency, or freedom from defect of any kind, including freedom from any
patent infringement that may result from the use of such information, nor shall
either party incur any liability or obligation whatsoever by reason of such
information, except as provided under Paragraph 4, hereof.
(8) This Non-Disclosure Agreement contains the entire agreement relative to the
protection of information to be exchanged hereunder, and supersedes all prior or
contemporaneous oral or written understandings or agreements regarding this
issue. This Non-Disclosure Agreement shall not be modified or amended, except in
a written instrument executed by the parties.
(9) Nothing contained in this Non-Disclosure Agreement shall, by express grant,
implication, estoppel or otherwise, create in either party any right, title,
interest, or license in or to the inventions, patents, technical data, computer
software, or software documentation of the other party.
(10) Nothing contained in this Non-Disclosure Agreement shall grant to either
party the right to make commitments of any kind for or on behalf of any other
party without the prior written consent of that other party.
(11) The effective date of this Non-Disclosure Agreement shall be the date upon
which the last signatory below executes this Agreement.
(12) This Non-Disclosure Agreement shall be governed and construed in accordance
with the laws of the Commonwealth of Virginia.
(13) This Non-Disclosure Agreement may not be assigned or otherwise transferred
by either party in whole or in part without the express prior written consent of
the other party, which consent shall not unreasonably be withheld. This consent
requirement shall not apply in the event either party shall change its corporate
name or merge with another corporation. This Non-Disclosure Agreement shall
benefit and be binding upon the successors and assigns of the parties hereto.
(14) Both parties agree to take all reasonable precautions to prevent any
trading in Company securities by their respective officers, directors, employees
and agents having knowledge of the proposed transaction between the parties
until the proposed transaction has been sufficiently publicly disclosed. The
parties understand and agree that until a press release is issued regarding a
proposed transaction between the parties, neither party will disclose the fact
that negotiations are taking place, except to professional advisors and to
employees of the parties on a need-to-know basis.
(15) It is further understood and agreed that money damages would not be a
sufficient remedy for any breach of this agreement by either party or any of its
representatives and that the non-breaching party shall be entitled to equitable
relief, including injunction and specific performance, as a remedy for any such
breach. Such remedies shall not be deemed to be the exclusive remedies for a
breach of this agreement but shall be in addition to all other remedies
available at law or equity. In the event of litigation relating to this
agreement, if a court of competent jurisdiction determines that either party or
any of its representatives have breached this agreement, then the breaching
party shall be liable and pay to the non-breaching party the reasonable legal
fees incurred in connection with such litigation, including an appeal therefrom.
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<TABLE>
<S> <C>
Network Solutions, Inc. ------------------------
By: By:
-------------------------- ------------------------------
Name: Name:
----------------------- ----------------------------
Title: Title:
---------------------- --------------------------
Date: Date:
------------------------ ----------------------------
</TABLE>
- --------------------------------------------------------------------------------
EXHIBIT B
NON-DISCLOSURE AGREEMENT
I understand I am an employee assigned to the Registry business of Network
Solutions, Inc. ("Network Solutions") or another employee who has a need to know
information related to the Registry Business of Network Solutions which is
proprietary, confidential or business sensitive, belonging to the Registry
Business of Network Solutions, other companies or customers of the Registry
Business ("Need to Know Employee"). I agree not to disclose or otherwise
disseminate such information to anyone other than Need to Know Employees, except
as directed, in writing, by the General Manager of the Registry Business or
his/her designee. This prohibition is specifically intended to prevent the
disclosure of any such information to Network Solutions' Registrar-assigned
personnel. I UNDERSTAND THAT DISCLOSURE OF SUCH INFORMATION TO ANYONE OTHER THAN
A NEED TO KNOW EMPLOYEE OR USE OF SUCH INFORMATION COULD RESULT IN PERSONAL
LIABILITY FOR SUCH UNAUTHORIZED USE OR DISCLOSURE.
I agree to use such proprietary, confidential and/or business sensitive
information only in the performance of requirements necessary to carry out my
duties as a Need to Know Employee , and I agree to take suitable precautions to
prevent the use or disclosure of such information to any party, other than Need
to Know Employees. I will report to the General Manager of the Registry Business
or his/her designee any potential violation of this agreement. I further agree
to surrender any and all data and information, of any type whatsoever, to the
General Manager of the Network Solutions Registry Business or his/her designee
upon the termination of my employment as an employee of Network Solutions, or my
assignment with the Network Solutions Registry Business.
I certify that I have read and fully understand this Non-Disclosure Agreement
and agree to abide by all requirements contained herein. I understand that my
strict compliance is essential to Network Solutions Registry Business, and any
violation of these requirements may result in termination of my employment.
<TABLE>
<S> <C>
Agreed to: Verified:
-------------------------- ---------------------------------
Employee General Manager, Registry
Date Date
</TABLE>
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<PAGE> 31
- --------------------------------------------------------------------------------
EXHIBIT C
REGISTRY BUSINESS ORGANIZATIONAL
CONFLICT OF INTEREST AVOIDANCE CERTIFICATION
I hereby certify that I have received training in and understand the
requirements of conflict of interest issues and the requirements of the
Organizational Conflict of Interest Compliance Plan of the Registry Business of
Network Solutions, Inc. I certify that I will strictly comply with the
provisions of this Plan. I understand my obligation to (i) refrain from any
activities which could pose a personal conflict of interest and (ii) report to
the General Manager of the Registry Business, any conflict, whether personal or
organizational, which is perceived or identified during the course of my
employment with the Registry Business.
CERTIFIED
-------------------------------
signature date
--------------------------------
name
- --------------------------------------------------------------------------------
PAGE MODIFIED 28-SEPTEMBER-1999
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<PAGE> 1
EXHIBIT 99.3
[NETWORK SOLUTIONS LOGO]
TENTATIVE AGREEMENTS AMONG ICANN, THE U.S.
DEPARTMENT OF COMMERCE, AND NETWORK SOLUTIONS, INC.
(Posted September 28, 1999)
- --------------------------------------------------------------------------------
[NOTE: ICANN HAS POSTED THE FOLLOWING DOCUMENT FOR PUBLIC REVIEW AND COMMENT.
TO SUBMIT COMMENTS, CLICK HERE.]
- --------------------------------------------------------------------------------
REGISTRAR ACCREDITATION AGREEMENT
TABLE OF CONTENTS
I. DEFINITIONS
II. TERMS AND CONDITIONS OF AGREEMENT
A. Accreditation.
B. Registrar Use of ICANN Name.
C. General Obligations of ICANN.
D. General Obligations of Registrar.
E. Submission of SLD Holder Data to Registry.
F. Public Access to Data on SLD Registrations.
G. Retention of SLD Holder and Registration Data.
H. Rights in Data.
I. Data Escrow.
J. Business Dealings, Including with SLD Holders.
K. Domain-Name Dispute Resolution.
L. Accreditation Fees.
M. Specific Performance.
N. Termination of Agreement.
O. Term of Agreement; Renewal; Right to Substitute Updated Agreement.
P. Resolution of Disputes Under This Agreement.
Q. Limitations on Monetary Remedies for Violations of this Agreement.
R. Handling by ICANN of Registrar-Supplied Data.
S. Miscellaneous.
- --------------------------------------------------------------------------------
This REGISTRAR ACCREDITATION AGREEMENT ("Agreement") is by and between the
Internet
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<PAGE> 2
Corporation for Assigned Names and Numbers, a not-for-profit
corporation, and ________________________________ ("Registrar"), a
___________________, and shall be deemed made on __________, 1999, at Los
Angeles, California, USA.
I. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
A. "Accredit" means to identify and set minimum standards for the performance of
registration functions, to recognize persons or entities meeting those
standards, and to enter into an accreditation agreement that sets forth the
rules and procedures applicable to the provision of registration services.
B. A "Consensus Policy" is one adopted by ICANN as follows:
1. "Consensus Policies" are those adopted based on a consensus among
Internet stakeholders represented in the ICANN process, as
demonstrated by (1) the adoption of the policy by the ICANN Board of
Directors, (2) a recommendation that the policy should be adopted, by
at least a two-thirds vote of the council of the ICANN Supporting
Organization to which the matter is delegated, and (3) a written
report and supporting materials (which must include all substantive
submissions to the Supporting Organization relating to the proposal)
that (i) documents the extent of agreement and disagreement among
impacted groups, (ii) documents the outreach process used to seek to
achieve adequate representation of the views of groups that are likely
to be impacted, and (iii) documents the nature and intensity of
reasoned support and opposition to the proposed policy.
2. In the event that Registrar disputes the presence of such a
consensus, it shall seek review of that issue from an Independent
Review Panel established under ICANN's bylaws. Such review must be
sought within fifteen working days of publication of the Board's
action adopting the policy. The decision of the panel shall be based
on the report and supporting materials required by Section I.B.1
above. In the event that Registrar seeks review and the Panel sustains
the Board's determination that the policy is based on a consensus
among Internet stakeholders represented in the ICANN process, then
Registrar must implement such policy unless it promptly seeks and
obtains a stay or injunctive relief under Section II.P.
3. In the event, following a decision by the Independent Review Panel
convened under Section I.B.2 above, that Registrar still disputes the
presence of such a consensus, it may seek further review of that issue
within fifteen working days of publication of the decision in
accordance with the dispute-resolution procedures set forth in Section
II.P below; provided, however, that Registrar must continue to
implement the policy unless it has obtained a stay or injunctive
relief under Section II.P or a final decision is rendered in
accordance with the provisions of Section II.P that relieves Registrar
of such obligation. The decision in any such further review shall be
based on the report and supporting materials required by Section I.B.1
above.
4. A policy adopted by the ICANN Board of Directors on a temporary
basis, without a prior recommendation by the council of an ICANN
Supporting Organization, shall also be considered to be a Consensus
Policy if adopted by the ICANN Board of Directors by a vote of at
least two-thirds of its members, and if immediate temporary adoption
of a policy on the subject is necessary to maintain the stability of
the Internet or the operation of the domain name system, and if the
proposed policy is as narrowly tailored as feasible to achieve those
objectives. In adopting any policy under this provision, the ICANN
Board of Directors shall state the period of time for whichthe policy
is temporarily adopted and shall immediately refer the matter to the
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<PAGE> 3
appropriate Supporting Organization for its evaluation and review with
a detailed explanation of its reasons for adopting the temporary
policy and why the Board believes the policy should receive the
consensus support of Internet stakeholders. If the period of time for
which the policy is adopted exceeds 45 days, the Board shall reaffirm
its temporary adoption every 45 days for a total period not to exceed
180 days, in order to maintain such policy in effect until such time
as it meets the standard set forth in Section I.B.1. If the standard
set forth in Section I.B.1 above is not met within the temporary
period set bythe Board, or the council of the Supporting Organization
to which it has been referred votes to reject the temporary policy, it
will no longer be a "Consensus Policy."
5. For all purposes under this Agreement, the policies specifically
identified by ICANN on its website (www.icann.org) at the date of this
Agreement as having been adopted by the ICANN Board of Directors
before the date of this Agreement shall be treated in the same manner
and have the same effect as "Consensus Policies."
6. In the event that, at the time the ICANN Board adopts a policy
under Section I.B.1 during the term of this Agreement, ICANN does not
have in place an Independent Review Panel established under ICANN's
bylaws, the fifteen-working-day period allowed under Section I.B.2 to
seek review shall be extended until fifteen working days after ICANN
does have such an Independent Review Panel in place and Registrar
shall not be obligated to comply with the policy in the interim.
C. "DNS" refers to the Internet domain-name system.
D. "ICANN" refers to the Internet Corporation for Assigned Names and Numbers, a
party to this Agreement.
E. An "ICANN-adopted policy" (and references to ICANN "adopt[ing]" a policy or
policies) refers to a Consensus Policy adopted by ICANN (i) in conformity with
applicable provisions of its articles of incorporation and bylaws and Section
II.C of this Agreement and (ii) of which Registrar has been given notice and a
reasonable period in which to comply.
F. "IP" means Internet Protocol.
G. "Personal Data" refers to data about any identified or identifiable natural
person.
H. The word "Registrar," when appearing with an initial capital letter, refers
to ________________________________, a party to this Agreement.
I. The word "registrar," when appearing without an initial capital letter,
refers to a person or entity that contracts with SLD holders and a registry,
collecting registration data about the SLD holders and submitting zone file
information for entry in the registry database.
J. A "Registry" is the person(s) or entity(ies) then responsible, in accordance
with an agreement between ICANN and that person or entity (those persons or
entities) or, if that agreement is terminated or expires, in accordance with an
agreement between the US Government and that person or entity (those persons or
entities), for providing registry services.
K. An "SLD" is a second-level domain of the DNS.
L. An SLD registration is "sponsored" by the registrar that placed the record
associated with that registration into the registry. Sponsorship of a
registration may be changed at the express direction of the SLD holder
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<PAGE> 4
or, in the event a registrar loses accreditation, in accordance with
then-current ICANN-adopted policies.
M. A "TLD" is a top-level domain of the DNS.
II. TERMS AND CONDITIONS OF AGREEMENT
The parties agree as follows:
A. Accreditation. During the term of this Agreement, Registrar is hereby
accredited by ICANN to act as a registrar (including to insert and renew
registration of SLDs in the registry database) for the .com, .net, and .org
TLDs.
B. Registrar Use of ICANN Name. Registrar is hereby granted a non-exclusive
worldwide license to state during the term of this Agreement that it is
accredited by ICANN as a registrar in the .com, .net, and .org TLDs. No other
use of ICANN's name is licensed hereby. This license may not be assigned or
sublicensed by Registrar.
C. General Obligations of ICANN. With respect to all matters that impact the
rights, obligations, or role of Registrar, ICANN shall during the Term of this
Agreement:
1. exercise its responsibilities in an open and transparent manner;
2. not unreasonably restrain competition and, to the extent feasible,
promote and encourage robust competition;
3. not apply standards, policies, procedures or practices arbitrarily,
unjustifiably, or inequitably and not single out Registrar for
disparate treatment unless justified by substantial and reasonable
cause; and
4. ensure, through its reconsideration and independent review
policies, adequate appeal procedures for Registrar, to the extent it
is adversely affected by ICANN standards, policies, procedures or
practices.
D. General Obligations of Registrar.
1. During the Term of this Agreement:
a. Registrar agrees that it will operate as a registrar for
TLDs for which it is accredited by ICANN in accordance with
this Agreement;
b. Registrar shall comply, in such operations, with all
ICANN-adopted Policies insofar as they:
i. relate to one or more of the following: (A)
issues for which uniform or coordinated resolution
is reasonably necessary to facilitate
interoperability, technical reliability and/or
stable operation of the Internet or domain-name
system, (B) registrar policies reasonably
necessary to
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implement Consensus Policies relating
to the Registry, or (C) resolution of disputes
regarding the registration of domain names (as
opposed to the use of such domain names), and
ii. do not unreasonably restrain competition.
2. To the extent that Consensus Policies are adopted in conformance
with Section II.C of this Agreement, the measures permissible under
Section II.D.1.b.i shall include, without limitation:
i. principles for allocation of SLD names (e.g., first-come
/first-served, timely renewal, holding period after
expiration);
ii. prohibitions on warehousing of or speculation in domain
names by registrars;
iii. reservation of SLD names that may not be registered
initially or that may not be renewed due to reasons
reasonably related to (a) avoidance of confusion among or
misleading of users, (b) intellectual property, or (c) the
technical management of the DNS or the Internet (e.g.,
"example.com" and single-letter/digit names);
iv. the allocation among continuing registrars of the SLD
names sponsored in the registry by a registrar losing
accreditation; and
v. the transfer of registration data upon a change in
registrar sponsoring the registration.
Nothing in this Section II.D shall limit or otherwise affect Registrar's
obligations as set forth elsewhere in this Agreement.
E. Submission of SLD Holder Data to Registry. During the term of this Agreement:
1. As part of its registration of SLDs in the .com, .net, and .org
TLDs, Registrar shall submit to, or shall place in the registry
database operated by Registry the following data elements concerning
SLD registrations that Registrar processes:
a. The name of the SLD being registered;
b. The IP addresses of the primary nameserver and secondary
nameserver(s) for the SLD;
c. The corresponding names of those nameservers;
d. Unless automatically generated by the registry system,
the identity of the registrar;
e. Unless automatically generated by the registry system,
the expiration date of the registration; and
f. Other data required as a result of further development of
the registry system by the Registry.
2. Within five (5) business days after receiving any updates from the
SLD holder to the data elements listed in Sections II.E.1.b and c for
any SLD registration Registrar sponsors, Registrar
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shall submit the updated data elements to, or shall place those
elements in the registry database operated by Registry.
3. In order to allow reconstitution of the registry database in the
event of an otherwise unrecoverable technical failure or a change in
the designated Registry permitted by the contract Registry has with
ICANN and/or the United States Department of Commerce, within ten days
of any such request by ICANN Registrar shall submit an electronic
database containing the data elements listed in Sections II.F.1.a
through d for all active records in the registry sponsored by
Registrar, in a format specified by ICANN, to the Registry for the
appropriate TLD.
F. Public Access to Data on SLD Registrations. During the term of this
Agreement:
1. At its expense, Registrar shall provide interactive public access
on a current basis (such as through a Whois service) to data
concerning all active SLD registrations sponsored by Registrar in the
registry for the .com, .net, and .org TLDs. The data accessible shall
consist of elements that are designated from time to time according to
an ICANN-adopted policy. Until ICANN otherwise specifies by means of
an ICANN-adopted policy, this data shall consist of the following
elements as contained in Registrar's database:
a. The name of the SLD being registered and the TLD for
which registration is being requested;
b. The IP addresses of the primary nameserver and secondary
nameserver(s) for the SLD;
c. The corresponding names of those nameservers;
d. The identity of Registrar (which may be provided through
Registrar's website);
e. The original creation date of the registration;
f. The expiration date of the registration;
g. The name and postal address of the SLD holder;
h. The name, postal address, e-mail address, voice telephone
number, and (where available) fax number of the technical
contact for the SLD; and
i. The name, postal address, e-mail address, voice telephone
number, and (where available) fax number of the
administrative contact for the SLD.
2. Upon receiving any updates to the data elements listed in Sections
II.F.1.b through d and f through i from the SLD holder, Registrar
shall promptly update its database used to provide the public access
described in Section II.F.1.
3. Registrar may subcontract its obligation to provide the public
access described in Section II.F.1 and the updating described in
Section II.F.2, provided that Registrar shall remain fully responsible
for the proper provision of the access and updating.
4. Registrar shall abide by any ICANN-adopted Policy that requires
registrars to cooperatively implement a distributed capability that
provides query-based Whois search functionality across
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all registrars. If the Whois service implemented by registrars does
not in a reasonable time provide reasonably robust, reliable, and
convenient access to accurate and up-to-date data, the Registrar shall
abide by any ICANN-adopted Policy requiring Registrar, if reasonably
determined by ICANN to be necessary (considering such possibilities as
remedial action by specific registrars), to supply data from
Registrar's database to facilitate the development of a centralized
Whois database for the purpose of providing comprehensive Registrar
Whois search capability.
5. In providing query-based public access to registration data as
required by Sections II.F.1 and II.F.4, Registrar shall not impose
terms and conditions on use of the data provided except as permitted
by an ICANN-adopted policy. Unless and until ICANN adopts a different
policy, Registrar shall permit use of data it provides in response to
queries for any lawful purposes except to: (a) allow, enable, or
otherwise support the transmission of mass unsolicited, commercial
advertising or solicitations via e-mail (spam); or (b) enable high
volume, automated, electronic processes that apply to Registrar (or
its systems).
6. In addition, Registrar shall provide third-party bulk access to the
data subject to public access under Section II.F.1 under the following
terms and conditions:
a. Registrar shall make a complete electronic copy of the
data available at least one time per week for download by
third parties who have entered into a bulk access agreement
with Registrar.
b. Registrar may charge an annual fee, not to exceed
US$10,000, for such bulk access to the data.
c. Registrar's access agreement shall require the third
party to agree not to use the data to allow, enable, or
otherwise support the transmission of mass unsolicited,
commercial advertising or solicitations via e-mail (spam).
d. Registrar's access agreement may require the third party
to agree not to use the data to enable high-volume,
automated, electronic processes that apply to Registrar (or
its systems).
e. Registrar's access agreement may require the third party
to agree not to sell or redistribute the data except insofar
as it has been incorporated by the third party into a
value-added product or service that does not permit the
extraction of a substantial portion of the bulk data from
the value-added product or service for use by other parties.
f. Registrar may enable SLD holders to elect not to have
data concerning their registrations available for bulk
access based on Registrar's "Opt-Out" policy, and Registrar
may require the third party to abide by the terms of that
Opt-Out policy; provided, however, that Registrar may not
use such data subject to opt-out in its own value-added
product or service.
7. Registrar's obligations under Section II.F.6 shall remain in effect
until the earlier of (a) replacement of this policy with a different
ICANN-adopted policy governing bulk access to the data subject to
public access under Section II.F.1, or (b) demonstration, to the
satisfaction of the United States Department of Commerce, that no
individual or entity is able to exercise market power with respect to
registrations or with respect to registration data used for
development of
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value-added products and services by third parties.
8. To comply with applicable statutes and regulations and for other
reasons, ICANN may from time to time adopt policies establishing
limits on the Personal Data concerning SLD registrations that
Registrar may make available to the public through a public-access
service described in this Section II.F and on the manner in which
Registrar may make them available. In the event ICANN adopts any such
policy, Registrar shall abide by it.
G. Retention of SLD Holder and Registration Data.
1. During the term of this Agreement, Registrar shall maintain its own
electronic database, as updated from time to time, containing data for
each active SLD registration sponsored by it in the registry for the
.com, .net, and .org TLDs. The data for each such registration shall
include the elements listed in Sections II.F.1.a through i, as well as
the name and (where available) postal address, e-mail address, voice
telephone number, and fax number of the billing contact.
2. During the term of this Agreement and for three years thereafter,
Registrar (itself or by its agent) shall maintain the following
records relating to its dealings with the Registry and SLD holders:
a. In electronic form, the submission date and time, and the
content, of all registration data (including updates)
submitted in electronic form to the Registry;
b. In electronic, paper, or microfilm form, all written
communications constituting registration applications,
confirmations, modifications, or terminations and related
correspondence with actual SLD holders, including
registration contracts; and
c. In electronic form, records of the accounts of all SLD
holders with Registrar, including dates and amounts of all
payments and refunds.
Registrar shall make these records available for inspection by ICANN
upon reasonable notice. ICANN shall not disclose such records except
as expressly permitted by an ICANN-adopted policy.
H. Rights in Data. Registrar disclaims all rights to exclusive ownership or use
of the data elements listed in Sections II.E.1.a. through c. for all SLD
registrations submitted by Registrar to, or sponsored by Registrar in, the
registry database for the .com, .net, and .org TLDs. Registrar does not disclaim
rights in the data elements listed in Sections II.E.1.d through f and II.F.1.d
through i concerning active SLD registrations sponsored by it in the registry
for the .com, .net, and .org TLDs, and agrees to grant non-exclusive,
irrevocable, royalty-free licenses to make use of and disclose the data elements
listed in Sections II.F.1.d through i for the purpose of providing a service
(such as a Whois service under II.F.4) providing interactive, query-based public
access. Upon a change in sponsorship from Registrar of any SLD registration in
the registry for the .com, .net, and .org TLDs, Registrar acknowledges that the
registrar gaining sponsorship shall have the rights of an owner to the data
elements listed in Sections II.E.1.d and e and II.F.1.d through i concerning
that registration, with Registrar also retaining the rights of an owner in that
data. Nothing in this Section II.H prohibits Registrar from (1) restricting bulk
public access to data elements in a manner consistent with any ICANN-adopted
policies or (2) transferring rights it claims in data elements subject to the
provisions of this Section II.H.
I. Data Escrow. During the term of this Agreement, on a schedule, under the
terms, and in the format specified in the then-current ICANN-adopted policy on
registrar escrow requirements, Registrar shall submit
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an electronic copy of the database described in Section II.G.1 to ICANN or, at
Registrar's election and at its expense, to a reputable escrow agent mutually
approved by Registrar and ICANN, such approval also not to be unreasonably
withheld by either party. The data shall be held under an agreement among
Registrar, ICANN, and the escrow agent (if any) providing that (1) the data
shall be received and held in escrow, with no use other than verification that
the deposited data is complete and in proper format, until released to ICANN;
(2) the data shall be released from escrow upon expiration without renewal or
termination of this Agreement; and (3) ICANN's rights under the escrow agreement
shall be assigned with any assignment of this Agreement. The escrow shall
provide that in the event the escrow is released under this Section II.I, ICANN
(or its assignee) shall have a non-exclusive, irrevocable, royalty-free license
to exercise (only for transitional purposes) or have exercised all rights
necessary to provide registrar services.
J. Business Dealings, Including with SLD Holders.
1. In the event ICANN adopts a policy supported by a consensus of
ICANN-accredited registrars establishing or approving a Code of
Conduct for such registrars, Registrar shall abide by that Code.
2. Registrar shall abide by applicable laws and governmental
regulations.
3. Registrar shall not represent to any actual or potential SLD holder
that Registrar enjoys access to a registry for which Registrar is
accredited that is superior to that of any other registrar accredited
for that registry.
4. Registrar shall not activate any SLD registration unless and until
it is satisfied that it has received a reasonable assurance of payment
of its registration fee. For this purpose, a charge to a credit card,
general commercial terms extended to creditworthy customers, or other
mechanism providing a similar level of assurance of payment shall be
sufficient, provided that the obligation to pay becomes final and
non-revocable by the SLD holder upon activation of the registration.
5. Registrar shall register SLDs to SLD holders only for fixed
periods. At the conclusion of the registration period, failure by or
on behalf of the SLD holder to pay a renewal fee within the time
specified in a second notice or reminder shall, in the absence of
extenuating circumstances, result in cancellation of the registration.
In the event that ICANN adopts a policy concerning procedures for
handling expiration of registrations, Registrar shall abide by that
policy.
6. Registrar shall not insert or renew any SLD name in any registry
for which Registrar is accredited by ICANN in a manner contrary to an
ICANN-adopted policy stating a list or specification of excluded SLD
names that is in effect at the time of insertion or renewal.
7. Registrar shall require all SLD holders to enter into an electronic
or paper registration agreement with Registrar including at least the
following provisions:
a. The SLD holder shall provide to Registrar accurate and
reliable contact details and promptly correct and update
them during the term of the SLD registration, including: the
full name, postal address, e-mail address, voice telephone
number, and fax number if available of the SLD holder; name
of authorized person for contact purposes in the case of an
SLD holder that is an organization, association, or
corporation; and the data elements listed in Section
II.F.1.b, c, and h through i above.
An SLD holder's willful provision of inaccurate or
unreliable information, its willful
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failure promptly to update information provided to
Registrar, or its failure to respond for over fifteen
calendar days to inquiries by Registrar concerning the
accuracy of contact details associated with the SLD holder's
registration shall constitute a material breach of the SLD
holder-registrar contract and be a basis for cancellation of
the SLD registration.
Any SLD holder that intends to license use of a domain name
to a third party is nonetheless the SLD holder of record and
is responsible for providing its own full contact
information and for providing and updating accurate
technical and administrative contact information adequate to
facilitate timely resolution of any problems that arise in
connection with the SLD.
b. Registrar shall provide notice to each new or renewed SLD
holder stating:
i. The purposes for which any Personal Data
collected from the applicant are intended;
ii. The intended recipients or categories of
recipients of the data (including the Registry and
others who will receive the data from Registry);
iii. Which data are obligatory and which data, if
any, are voluntary; and
iv. How the SLD holder or data subject can access
and, if necessary, rectify the data held about
them.
c. The SLD holder shall consent to the data processing
referred to in Section II.J.7.b.
d. The SLD holder shall represent that notice has been
provided equivalent to that described in Section II.J.7.b.
above to any third-party individuals whose Personal Data are
supplied to Registrar by the SLD holder, and that the SLD
holder has obtained consent equivalent to that referred to
in Section II.J.7.c of any such third-party individuals.
e. Registrar shall agree that it will not process the
Personal Data collected from the SLD holder in a way
incompatible with the purposes and other limitations about
which it has provided notice to the SLD holder in accordance
with Section II.J.7.b, above.
f. Registrar shall agree that it will take reasonable
precautions to protect Personal Data from loss, misuse,
unauthorized access or disclosure, alteration, or
destruction.
g. The SLD holder shall represent that, to the best of the
SLD holder's knowledge and belief, neither the registration
of the SLD name nor the manner in which it is directly or
indirectly used infringes the legal rights of a third party.
h. For the adjudication of disputes concerning or arising
from use of the SLD name, the SLD holder shall submit,
without prejudice to other potentially applicable
jurisdictions, to the jurisdiction of the courts (1) of the
SLD holder's domicile and (2) where Registrar is located.
i. The SLD holder shall agree that its registration of the
SLD name shall be subject to
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suspension, cancellation, or transfer pursuant to any
ICANN-adopted policy, or pursuant to any registrar or
registry procedure not inconsistent with an ICANN-adopted
policy, (1) to correct mistakes by Registrar or the Registry
in registering the name or (2) for the resolution of
disputes concerning the SLD name.
j. The SLD holder shall indemnify and hold harmless the
Registry and its directors, officers, employees, and agents
from and against any and all claims, damages, liabilities,
costs, and expenses (including reasonable legal fees and
expenses) arising out of or related to the SLD holder's
domain name registration.
8. Registrar shall abide by any ICANN-adopted policies requiring
reasonable and commercially practicable (a) verification, at the time
of registration, of contact information associated with an SLD
registration sponsored by Registrar or (b) periodic re-verification of
such information. Registrar shall, upon notification by any person of
an inaccuracy in the contact information associated with an SLD
registration sponsored by Registrar, take reasonable steps to
investigate that claimed inaccuracy. In the event Registrar learns of
inaccurate contact information associated with an SLD registration it
sponsors, it shall take reasonable steps to correct that inaccuracy.
9. Registrar shall abide by any ICANN-adopted policy prohibiting or
restricting warehousing of or speculation in domain names by
registrars.
10. Registrar shall maintain in force commercial general liability
insurance with policy limits of at least US$500,000 covering
liabilities arising from Registrar's registrar business during the
term of this Agreement.
11. Nothing in this Agreement prescribes or limits the amount
Registrar may charge SLD holders for registration of SLD names.
K. Domain-Name Dispute Resolution. During the term of this Agreement, Registrar
shall have in place a policy and procedure for resolution of disputes concerning
SLD names. In the event that ICANN adopts a policy or procedure for resolution
of disputes concerning SLD names that by its terms applies to Registrar,
Registrar shall adhere to the policy or procedure.
L. Accreditation Fees. As a condition of accreditation, Registrar shall pay
accreditation fees to ICANN. These fees consist of yearly and on-going
components.
1. The yearly component for the term of this Agreement shall be US
$5,000. Payment of the yearly component shall be due upon execution by
Registrar of this Agreement and upon each anniversary date after such
execution during the term of this Agreement (other than the expiration
date).
2. Registrar shall pay the on-going component of Registrar
accreditation fees adopted by ICANN in accordance with the provisions
of Section II.C above, provided such fees are reasonably allocated
among all registrars that contract with ICANN and that any such fees
must be expressly approved by registrars accounting, in aggregate, for
payment of two-thirds of all registrar-level fees. Registrar shall pay
such fees in a timely manner for so long as all material terms of this
Agreement remain in full force and effect, and notwithstanding the
pendency of any dispute between Registrar and ICANN.
3. On reasonable notice given by ICANN to Registrar, accountings
submitted by Registrar shall
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be subject to verification by an audit of Registrar's books and
records by an independent third-party that shall preserve the
confidentiality of such books and records (other than its findings as
to the accuracy of, and any necessary corrections to, the
accountings).
M. Specific Performance. While this Agreement is in effect, either party may
seek specific performance of any provision of this Agreement in the manner
provided in Section II.P below, provided the party seeking such performance is
not in material breach of its obligations.
N. Termination of Agreement. This Agreement may be terminated before its
expiration by Registrar by giving ICANN thirty days written notice. It may be
terminated before its expiration by ICANN in any of the following circumstances:
1. There was a material misrepresentation, material inaccuracy, or
materially misleading statement in Registrar's application for
accreditation or any material accompanying the application.
2. Registrar:
a. is convicted of a felony or other serious offense related
to financial activities, or is judged by a court to have
committed fraud or breach of fiduciary duty, or is the
subject of a judicial determination that ICANN reasonably
deems as the substantive equivalent of any of these; or
b. is disciplined by the government of its domicile for
conduct involving dishonesty or misuse of funds of others.
3. Any officer or director of Registrar is convicted of a felony or of
a misdemeanor related to financial activities, or is judged by a court
to have committed fraud or breach of fiduciary duty, or is the subject
of a judicial determination that ICANN deems as the substantive
equivalent of any of these; provided, such officer or director is not
removed in such circumstances.
4. Registrar fails to cure any breach of this Agreement (other than a
failure to comply with a policy adopted by ICANN during the term of
this Agreement as to which Registrar is seeking, or still has time to
seek, review under Section I.B.2 of whether a consensus is present)
within fifteen working days after ICANN gives Registrar notice of the
breach.
5. Registrar fails to comply with a ruling granting specific
performance under Sections II.M and II.P.
6. Registrar continues acting in a manner that ICANN has reasonably
determined endangers the stability or operational integrity of the
Internet after receiving three days notice of that determination.
7. Registrar becomes bankrupt or insolvent.
This Agreement may be terminated in circumstances 1 through 6 above only upon
fifteen days written notice to Registrar (in the case of circumstance 4
occurring after Registrar's failure to cure), with Registrar being given an
opportunity during that time to initiate arbitration under Section II.P to
determine the appropriateness of termination under this Agreement. In the event
Registrar initiates litigation or arbitration concerning the appropriateness of
termination by ICANN, the termination shall be stayed an additional thirty days
to allow Registrar to obtain a stay of termination under Section II.P below. If
Registrar acts in a
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manner that ICANN reasonably determines endangers the stability or operational
integrity of the Internet and upon notice does not immediately cure, ICANN may
suspend this Agreement for five working days pending ICANN's application for
more extended specific performance or injunctive relief under Section II.P. This
Agreement may be terminated immediately upon notice to Registrar in circumstance
7 above.
O. Term of Agreement; Renewal; Right to Substitute Updated Agreement. This
Agreement shall have an initial term of five years, unless sooner terminated.
Thereafter, if Registrar seeks to continue its accreditation, it may apply for
renewed accreditation, and shall be entitled to renewal provided it meets the
ICANN-adopted policy on accreditation criteria then in effect, is in compliance
with its obligations under this Agreement, as amended, and agrees to be bound by
the then-current Registrar accreditation agreement (which may differ from those
of this Agreement) that ICANN adopts in accordance with Section II.C. and II.D
(as Section II.D may have been amended by an ICANN-adopted policy). In
connection with renewed accreditation, Registrar shall confirm its assent to the
terms and conditions of the such then-current Registrar accreditation agreement
by signing that accreditation agreement. In the event that, during the term of
this Agreement, ICANN posts on its web site an updated form of registrar
accreditation agreement applicable to accredited registrars in the .com, .net,
or .org TLDs, Registrar (provided it has not received (1) a notice of breach
that it has not cured or (2) a notice of termination of this Agreement under
Section II.N above) may elect, by giving ICANN written notice, to enter an
agreement in the updated form in place of this Agreement. In the event of such
election, Registrar and ICANN shall promptly sign a new accreditation agreement
that contains the provisions of the updated form posted on the web site, with
the length of the term of the substituted agreement as stated in the updated
form posted on the web site, calculated as if it commenced on the date this
Agreement was made, and this Agreement will be deemed terminated.
P. Resolution of Disputes Under this Agreement. Disputes arising under or in
connection with this Agreement, including (1) disputes arising from ICANN's
failure to renew Registrar's accreditation and (2) requests for specific
performance, shall be resolved in a court of competent jurisdiction or, at the
election of either party, by an arbitration conducted as provided in this
Section II.P pursuant to the International Arbitration Rules of the American
Arbitration Association ("AAA"). The arbitration shall be conducted in English
and shall occur in Los Angeles County, California, USA. There shall be three
arbitrators: each party shall choose one arbitrator and, if those two
arbitrators do not agree on a third arbitrator, the third shall be chosen by the
AAA. 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 AAA 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 conclusion of the arbitration hearing.
In the event Registrar initiates arbitration to contest the appropriateness of
termination of this Agreement by ICANN, Registar 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 arbitration panel has granted an ICANN request for specific
performance and Registrar has failed to comply with such ruling. In the event
Registrar initiates arbitration to contest an Independent Review Panel's
decision under Section I.B.2 sustaining the Board's determination that a policy
is supported by consensus, Registar may at the same time request that the
arbitration panel stay the requirement that it comply with the policy until the
arbitration decision is rendered, and that request shall have the effect of
staying the requirement until the decision or until the arbitration panel has
granted an ICANN request for lifting of the stay. In all litigation involving
ICANN concerning this Agreement (whether in a case where arbitration has not
been elected or to enforce an arbitration award), jurisdiction and exclusive
venue for such litigation shall be in a court located in Los Angeles,
California, USA; however, the parties shall also have the right to enforce a
judgment of such a court in any court of competent jurisdiction. For the purpose
of aiding the arbitration and/or preserving the rights of the parties during the
pendency of an arbitration, the parties shall have the right to seek temporary
or preliminary injunctive relief from the arbitration panel or in a court
located in Los Angeles, California, USA, which shall not be a waiver of this
arbitration agreement.
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Q. Limitations on Monetary Remedies for Violations of this Agreement. ICANN's
aggregate monetary liability for violations of this Agreement shall not exceed
the amount of accreditation fees paid by Registrar to ICANN under Section II.L
of this Agreement. Registrar's monetary liability to ICANN for violations of
this Agreement shall be limited to accreditation fees owing to ICANN under this
Agreement. In no event shall either party be liable for special, indirect,
incidental, punitive, exemplary, or consequential damages for any violation of
this Agreement.
R. Handling by ICANN of Registrar-Supplied Data. Before receiving any Personal
Data from Registrar, ICANN shall specify to Registrar in writing the purposes
for and conditions under which ICANN intends to use the Personal Data. ICANN may
from time to time provide Registrar with a revised specification of such
purposes and conditions, which specification shall become effective no fewer
than thirty days after it is provided to Registrar. ICANN shall not use Personal
Data provided by Registrar for a purpose or under conditions inconsistent with
the specification in effect when the Personal Data were provided. ICANN shall
take reasonable steps to avoid uses of the Personal Data by third parties
inconsistent with the specification.
S. Miscellaneous.
1. Assignment. Either party may assign or transfer this Agreement only
with the prior written consent of the other party, which shall not be
unreasonably withheld, except that ICANN may, with the written
approval of the United States Department of Commerce, assign this
agreement by giving Registrar written notice of the assignment. In the
event of assignment by ICANN, the assignee may, with the approval of
the United States Department of Commerce, revise the definition of
"Consensus Policy" to the extent necessary to meet the organizational
circumstances of the assignee, provided the revised definition
requires that Consensus Policies be based on a demonstrated consensus
of Internet stakeholders.
2. No Third-Party Beneficiaries. This Agreement shall not be construed
to create any obligation by either ICANN or Registrar to any non-party
to this Agreement, including any SLD holder.
3. Notices, Designations, and Specifications. All notices to be given
under this Agreement shall be given in writing at the address of the
appropriate party as set forth below, unless that party has given a
notice of change of address in writing. Any notice required by this
Agreement shall be deemed to have been properly given when delivered
in person, when sent by electronic facsimile, or when scheduled for
delivery by internationally recognized courier service. Designations
and specifications by ICANN under this Agreement shall be effective
when written notice of them is deemed given to Registrar.
If to ICANN, addressed to:
Internet Corporation for Assigned Names and Numbers
Registrar Accreditation
4676 Admiralty Way, Suite 330
Marina Del Rey, California 90292
Telephone: 1/310/823-9358
Facsimile: 1/310/823-8649
If to Registrar, addressed to:
With a copy to:
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<PAGE> 15
4. Dates and Times. All dates and times relevant to this Agreement or
its performance shall be computed based on the date and time observed
in Los Angeles, California, USA.
5. Language. All notices, designations, and specifications made under
this Agreement shall be in the English language.
6. Entire Agreement. Except for any written transition agreement that
may be executed concurrently herewith by both parties, this Agreement
constitutes the entire agreement of the parties hereto pertaining to
the subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions, whether oral or written,
of the parties.
7. Amendments and Waivers. No amendment, supplement, or modification
of this Agreement or any provision hereof shall be binding unless
executed in writing by both parties. No waiver of any provision of
this Agreement shall be binding unless evidenced by a writing signed
by the party waiving compliance with such provision. No waiver of any
of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision hereof, nor shall any such
waiver constitute a continuing waiver unless otherwise expressly
provided.
8. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in duplicate by their duly authorized representatives.
INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS
By:
-------------------------
Michael M. Roberts
Interim President and CEO
[REGISTRAR]
By:
---------------------------
- --------------------------------------------------------------------------------
TRANSITION AGREEMENT
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In connection and simultaneously with entry into a Registrar Accreditation
Agreement ("Accreditation Agreement"), and as a condition of the effectiveness
thereof, ICANN and NSI hereby agree as follows:
1. ICANN accepts NSI's application for accreditation, finds the
application fully satisfactory, and agrees that it shall not at any
time assert, for purposes of the Accreditation Agreement, that there
was any material misrepresentation, material inaccuracy, or materially
misleading statement in NSI's application for accreditation or any
material accompanying the application.
2. It is recognized that the Whois lookup capability is currently
generated by NSI from static database files and lags the Registry
database in timeliness. NSI will complete the development of an
interactive Whois capability providing near real-time-access (referred
to as a "current basis" in Section II.F.1 of the Accreditation
Agreement) to the database within six months after the date of the
Accreditation Agreement.
3. NSI's obligation under II.J.4. shall not become effective until
four months after the date of the Accreditation Agreement.
4. NSI will approve the on-going component of Registrar accreditation
fees, as provided in Section II.L.2 of the Accreditation Agreement, if
its portion thereof does not exceed $2,000,000 annually. NSI agrees to
prepay $1,000,000 toward its share of the on-going component of its
Registrar accreditation fees at the time of signing of the
Accreditation Agreement.
5. In the case of actual conflict while they are both in effect, the
term(s) of the Cooperative Agreement shall take precedence over this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in duplicate by their duly authorized representatives.
INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS
By:
--------------------------
Michael M. Roberts
Interim President and CEO
NETWORK SOLUTIONS, INC.
By:
--------------------------
- --------------------------------------------------------------------------------
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PAGE MODIFIED 28-SEPTEMBER-1999
17 of 17
<PAGE> 1
EXHIBIT 99.4
[NETWORK SOLUTIONS LOGO]
TENTATIVE AGREEMENTS AMONG ICANN, THE U.S.
DEPARTMENT OF COMMERCE, AND NETWORK SOLUTIONS, INC.
(Posted September 28, 1999)
- --------------------------------------------------------------------------------
[NOTE: ICANN HAS POSTED THE FOLLOWING DOCUMENT FOR PUBLIC REVIEW AND COMMENT.
TO SUBMIT COMMENTS, CLICK HERE.]
- --------------------------------------------------------------------------------
REGISTRAR LICENSE AND AGREEMENT
This Registrar License and Agreement (the "Agreement") is dated as of
__________, 1999 ("Effective Date") by and between Network Solutions, Inc., a
Delaware corporation, with its principal place of business located at 505
Huntmar Park Drive, Herndon, Virginia 20170 ("NSI"or the "Registry"), and
_________________, a _____________________ corporation, with its principal place
of business located at _____________________________________ ("Registrar"). NSI
and Registrar may be referred to individually as a "Party" and collectively as
the "Parties."
WHEREAS, multiple registrars will provide Internet domain name registration
services within the .com, .org and .net top-level domains wherein NSI operates
and maintains certain TLD servers and zone files ("Registry");
WHEREAS, Registrar wishes to register second-level domain names in the multiple
registrar system for the .com, .org and .net TLDs.
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, NSI and
Registrar, intending to be legally bound, hereby agree as follows:
1. DEFINITIONS
1.1 "DNS" refers to the Internet domain name system.
1.2 "IP" means Internet Protocol.
1.3 An "SLD" is a second-level domain of the DNS.
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1.4 The "System" refers to the multiple registrar system developed by
NSI for registration of second-level domain names in the .com, .org
and .net TLDs.
1.5 A "TLD" is a top-level domain of the DNS.
1.6 The "Licensed Product" refers to the RRP, APIs, and software,
collectively.
2. OBLIGATIONS OF THE PARTIES
2.1 SYSTEM OPERATION AND ACCESS. Throughout the Term of this
Agreement, NSI shall operate the System and provide Registrar with
access to the System enabling Registrar to transmit domain name
registration information for the .com, .org and .net TLDs to the
System according to a protocol developed by NSI and known as the
Registry Registrar Protocol ("RRP").
2.2 DISTRIBUTION OF RRP, APIs AND SOFTWARE. No later than three
business days after the Effective Date of this Agreement, NSI shall
provide to Registrar (i) full documentation of the RRP, (ii) "C" and
"Java" application program interfaces ("APIs") to the RRP with
documentation, and (iii) reference client software ("Software") that
will enable Registrar to develop its system to register second-level
domain names through the System for the .com, .org and .net TLDs. If
NSI elects to modify or upgrade the APIs and/or RRP, NSI shall provide
updated APIs to the RRP with documentation and updated Software to
Registrar promptly as such updates become available.
2.3 NEW ARCHITECTURAL FEATURES. NSI will use its best commercial
efforts to develop and implement two additional modifications to the
Licensed Product by January 15, 2000 as follows:
2.3.1 NSI will issue an upgrade to the Licensed Product that will
enable a Registrar to accept initial domain name registrations or
renewals of a minimum of one year in length, or in multiples of
one year increments, up to a maximum of ten (10) years.
2.3.2 NSI will issue an upgrade to the Licensed Product that will
enable registrars to accept the addition of one additional year
to a registrant's "current" registration period when a registrant
changes from one registrar to another.
Registrars will be able to offer these new features only for new
registrations or renewals occurring after the Upgrade is deployed.
Both Upgrades will be introduced into the Operational Test and
Evaluation environment for testing prior to deployment.
2.4 REGISTRAR RESPONSIBILITY FOR CUSTOMER SUPPORT. Registrar shall be
responsible for providing customer service (including domain name
record support), billing and technical support, and customer interface
to accept customer (the "SLD holder") orders.
2.5 DATA SUBMISSION REQUIREMENTS. As part of its registration of all
SLD registrations in the .com, .net, and .org TLDs during the Term of
this Agreement, Registrar shall submit
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the following data elements using the RRP concerning SLD registrations
it processes:
2.5.1 The name of the SLD being registered;
2.5.2 The IP addresses of the primary nameserver and any
secondary nameservers for the SLD; and
2.5.3 The corresponding host names of those nameservers.
2.6 LICENSE. Registrar grants NSI as Registry a non-exclusive
non-transferable limited license to the data elements consisting of
the SLD name registered, the IP addresses of nameservers, and the
identity of the registering registrar for propagation of and the
provision of authorized access to the TLD zone files.
2.7 REGISTRAR'S REGISTRATION AGREEMENT AND DOMAIN NAME DISPUTE POLICY.
Registrar shall have developed and employ in its domain name
registration business an electronic or paper registration agreement,
including a domain name dispute policy, a copy of which is attached to
this Agreement as Exhibit A (which may be amended from time to time by
Registrar, provided a copy is furnished to the Registry three (3)
business days in advance of any such amendment), to be entered into by
Registrar with each SLD holder as a condition of registration.
Registrar shall include terms in its agreement with each SLD holder
that are consistent with Registrar's duties to NSI hereunder.
2.8 SECURE CONNECTION. Registrar agrees to develop and employ in its
domain name registration business all necessary technology and
restrictions to ensure that its connection to the System is secure.
All data exchanged between Registrar's system and the System shall be
protected to avoid unintended disclosure of information. Each RRP
session shall be authenticated and encrypted using two-way secure
socket layer ("SSL") protocol. Registrar agrees to authenticate every
RRP client connection with the System using both an X.509 server
certificate issued by a commercial Certification Authority identified
by the Registry and its Registrar password, which it shall disclose
only to its employees with a need to know. Registrar agrees to notify
Registry 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.
2.9 DOMAIN NAME LOOKUP CAPABILITY. Registrar agrees to employ in its
domain name registration business NSI's Registry domain name lookup
capability to determine if a requested domain name is available or
currently unavailable for registration.
2.10 TRANSFER OF SPONSORSHIP OF REGISTRATIONS. Registrar agrees to
implement transfers of SLD registrations from another registrar to
Registrar and vice versa pursuant to the Policy on Transfer of
Sponsorship of Registrations Between Registrars appended hereto as
Exhibit B.
2.11 TIME. Registrar agrees that 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 NSI Registry records
shall control.
2.12 COMPLIANCE WITH TERMS AND CONDITIONS. Registrar agrees to comply
with all other reasonable terms or conditions established from time to
time, to assure sound operation of
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the System, by NSI as Registry in a non-arbitrary manner and
applicable to all registrars, including NSI, and consistent with NSI's
Cooperative Agreement with the United States Government or NSI's
Registry Agreement with the Internet Corporation for Assigned Names
and Numbers ("ICANN"), as applicable, upon NSI's notification to
Registrar of the establishment of those terms and conditions.
2.13 RESOLUTION OF TECHNICAL PROBLEMS. Registrar agrees to 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 RRP and the APIs in conjunction with
Registrar's systems. Registrar agrees that in the event of significant
degradation of the System or other emergency, Network Solutions, as
Registry, may, in its sole discretion, temporarily suspend access to
the System. Such temporary suspensions shall be applied in a
nonarbitrary manner and shall apply fairly to any registrar similarly
situated, including NSI.
2.14 SURETY INSTRUMENT. During the Initial Term and any Renewal Terms,
Registrar shall have in place a performance bond, letter of credit or
equivalent instrument (the "Surety Instrument") from a surety
acceptable to NSI, in the amount of $100,000 U.S. dollars. The terms
of the Surety Instrument shall indemnify and hold harmless NSI and its
employees, directors, officers, representatives, agents and affiliates
from all costs and damages (including reasonable attorneys' fees)
which it may suffer by reason of Registrar's failure to indemnify NSI
as provided in Section 6.16 by making payment(s) up to the full amount
of the bond within ten (10) days of NSI's having notified the surety
of its claim(s) of damages, having identified the basis for any such
claim. NSI shall not be entitled to payment under the Surety
Instrument until such time as it has certified that it has incurred
expenses for which it is entitled to reimbursement in accordance with
the provisions of Section 6.16 of this Agreement.
2.15 PROHIBITED DOMAIN NAME REGISTRATIONS. Registrar agrees to comply
with the policies of NSI as Registry that will be applicable to all
registrars and that will prohibit the registration of certain domain
names in the .com, .org and .net TLDs which are not allowed to be
registered by statute or regulation.
2.16 INDEMNIFICATION REQUIRED OF SLD HOLDERS. Registrar shall require
each SLD holder to indemnify, defend and hold harmless NSI, and its
directors, officers, employees and agents from and against any and all
claims, damages, liabilities, costs and expenses, including reasonable
legal fees and expenses arising out of or relating to the SLD holder's
domain name registration.
3. LICENSE
3.1 LICENSE GRANT. Subject to the terms and conditions of this Agreement,
NSI hereby grants Registrar and Registrar accepts a non-exclusive,
non-transferable, worldwide limited license to use for the Term and
purposes of this Agreement the RRP, APIs and Software, as well as updates
and redesigns thereof, to provide domain name registration services in the
.com, .org and .net TLDs only and for no other purpose. The RRP, APIs and
Software, as well as updates and redesigns thereof, will enable Registrar
to register domain names with the Registry on behalf of its SLD holders.
Registrar, using the RRP, APIs and Software, as well as updates and
redesigns thereof, will be able to invoke the following operations on the
System: (i) check the availability of a domain name, (ii) register a domain
name, (iii) re-register a domain name, (iv)
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cancel the registration of a domain name it has registered, (v) update the
nameservers of a domain name, (vi) transfer a domain name from another
registrar to itself with proper authorization, (vii) query a domain name
registration record, (viii) register a nameserver, (ix) update the IP
addresses of a nameserver, (x) delete a nameserver, (xi) query a
nameserver, and (xii) establish and end an authenticated session.
3.2 LIMITATIONS ON USE. Notwithstanding any other provisions in this
Agreement, except with the written consent of NSI, Registrar shall not: (i)
sublicense the RRP, APIs or Software or otherwise permit any use of the
RRP, APIs or Software by or for the benefit of any party other than
Registrar, (ii) publish, distribute or permit disclosure of the RRP, APIs
or Software other than to employees, contractors, and agents of Registrar
for use in Registrar's domain name registration business, (iii) decompile,
reverse engineer, copy or re-engineer the RRP, APIs or Software for any
unauthorized purpose, or (iv) use or permit use of the RRP, APIs or
Software in violation of any federal, state or local rule, regulation or
law, or for any unlawful purpose.
Registrar agrees to employ the necessary measures to prevent its access to
the System granted hereunder from being used for (i) the transmission of
unsolicited, commercial e-mail (spam) to entities other than Registrar's
customers; (ii) high volume, automated, electronic processes that apply to
NSI for large numbers of domain names, except as reasonably necessary to
register domain names or modify existing registrations; or (iii) high
volume, automated, electronic, repetitive queries for the purpose of
extracting data to be used for Registrar's purposes, except as reasonably
necessary to register domain names or modify existing registrations.
3.3 CHANGES TO LICENSED MATERIALS. NSI may from time to time make
modifications to the RRP, APIs or Software licensed hereunder that will
enhance functionality or otherwise improve the System. NSI will provide
Registrar with at least sixty (60) days notice prior to the implementation
of any material changes to the RRP, APIs or software licensed hereunder.
4. SUPPORT SERVICES
4.1 ENGINEERING SUPPORT. NSI agrees to provide Registrar with reasonable
engineering telephone support (between the hours of 9 a.m. to 5 p.m. local
Herndon, Virginia time or at such other times as may be mutually agreed
upon) to address engineering issues arising in connection with Registrar's
use of the System.
4.2 CUSTOMER SERVICE SUPPORT. During the Term of this Agreement, NSI will
provide reasonable telephone and e-mail customer service support to
Registrar, not SLD holders or prospective customers of Registrar, for
non-technical issues solely relating to the System and its operation. NSI
will provide Registrar with a telephone number and e-mail address for such
support during implementation of the RRP, APIs and Software. First-level
telephone support will be available on a 7-day/24-hour basis. NSI will
provide a web-based customer service capability in the future and such
web-based support will become the primary method of customer service
support to Registrar at such time.
5. FEES
5.1 LICENSE FEE. As consideration for the license of the RRP, APIs and
Software, Registrar agrees to pay NSI on the Effective Date a
non-refundable one-time fee in the amount of $ 10,000 payable in United
States dollars (the "License Fee") and payable by check to Network
Solutions, Inc., Attention: Registry Accounts Receivable, 505 Huntmar Park
Drive, Herndon,
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Virginia 20170 or by wire transfer to NationsBank, for the credit of
Network Solutions, Inc., Account #004112889843, ABA # 05000017, Swift,
NABKUS3ARIC. No later than three (3) business days after either the receipt
(and final settlement if payment by check) of such License Fee, or the
Effective Date of this Agreement, whichever is later, NSI will provide the
RRP, APIs and Software to Registrar.
5.2 REGISTRATION FEES.
(a) From the Effective Date of this Agreement through January 15,
2000, Registrar agrees to pay NSI the non-refundable amounts of
$18 United States dollars for each initial two-year domain name
registration and $9 United States dollars for each one-year
domain name re-registration (collectively, the "Registration
Fees") registered by Registrar through the System.
(b) Thereafter, and for the balance of the term of this
Agreement, Registrar agrees to pay NSI the non-refundable amounts
of $6 United States dollars for each annual increment of an
initial domain name registration and $6 United States dollars for
each annual increment of a domain name re-registration
(collectively, the "Registration Fees") registered by Registrar
through the System.
(c) NSI reserves the right to adjust the Registration Fees
prospectively upon thirty (30) days prior notice to Registrar,
provided that such adjustments are consistent with NSI's
Cooperative Agreement with the United States Government or its
Registry Agreement with ICANN, as applicable, and are applicable
to all registrars in the .com, .org and .net TLDs. NSI will
invoice Registrar monthly in arrears for each month's
Registration Fees. All Registration Fees are due immediately upon
receipt of NSI's invoice pursuant to a letter of credit, deposit
account, or other acceptable credit terms agreed by the Parties.
5.3 CHANGE IN REGISTRAR SPONSORING DOMAIN NAME. Registrar may assume
sponsorship of a SLD holder's existing domain name registration from
another registrar by following the policy set forth in Exhibit B to this
Agreement. Registrar agrees to pay NSI the applicable Registration Fee as
set forth above. For transfers taking place after January 15, 2000, this
shall result in a corresponding extension of the existing registration. The
losing registrar's Registration Fees will not be refunded as a result of
any such transfer.
5.4 NON-PAYMENT OF REGISTRATION FEES. Timely payment of Registration Fees
is a material condition of performance under this Agreement. In the event
that Registrar fails to pay its Registration Fees, either initial or
re-registration fees, within three (3) days of the date when due, NSI may
stop accepting new registrations and/or delete the domain names associated
with invoices not paid in full from the Registry database and give written
notice of termination of this Agreement pursuant to Section 6.1(b) below.
6. MISCELLANEOUS
6.1 TERM OF AGREEMENT AND TERMINATION.
(a) TERM OF THE AGREEMENT. The duties and obligations of the Parties
under this Agreement shall apply from the Effective Date through and
including the last day of the calendar month sixty (60) months from
the Effective Date (the "Initial Term"). Upon conclusion of the
Initial Term, all provisions of this Agreement will automatically
renew for
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successive five (5) year renewal periods until the Agreement
has been terminated as provided herein, Registrar elects not to renew,
or NSI ceases to operate as the registry for the .com, .org and .net
TLDs. In the event that revisions to NSI's Registrar License and
Agreement are approved or adopted by the U.S. Department of Commerce,
or ICANN, as appropriate, Registrar will execute an amendment
substituting the revised agreement in place of this Agreement, or, at
Registrar's option, exercised within fifteen (15) days, may terminate
this Agreement immediately by giving written notice to NSI.
(b) TERMINATION FOR CAUSE. In the event that either Party materially
breaches any term of this Agreement including any of its
representations and warranties hereunder and such breach is not
substantially cured within thirty (30) 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.
(c) TERMINATION AT OPTION OF REGISTRAR. Registrar may terminate this
Agreement at any time by giving NSI thirty (30) days notice of
termination.
(d) TERMINATION UPON LOSS OF REGISTRAR'S ACCREDITATION. This Agreement
shall terminate in the event Registrar's accreditation by ICANN, or
its successor, is terminated or expires without renewal.
(e) TERMINATION IN THE EVENT THAT SUCCESSOR REGISTRY IS NAMED. This
Agreement shall terminate in the event that the U.S. Department of
Commerce or ICANN, as appropriate, designates another entity to serve
as the registry for the .com, .net. and .org TLDs (the "Successor
Registry").
(f) TERMINATION IN THE EVENT OF 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.
(g) EFFECT OF TERMINATION. Upon expiration or termination of this
Agreement, NSI will complete the registration of all domain names
processed by Registrar prior to the date of such expiration or
termination, provided that Registrar's payments to NSI for
Registration Fees are current and timely. Immediately upon any
expiration or termination of this Agreement, Registrar shall (i)
transfer its sponsorship of SLD name registrations to another licensed
registrar(s) of the Registry, in compliance with any procedures
established or approved by the U.S. Department of Commerce or ICANN,
as appropriate, and (ii) either return to NSI or certify to NSI the
destruction of all data, software and documentation it has received
under this Agreement.
(h) SURVIVAL. In the event of termination of this Agreement, the
following shall survive: (i) Sections 2.6, 2.7, 2.14, 6.1(g), 6.6,
6.7, 6.10, 6.12, 6.13, 6.14 and 6.16; (ii) the SLD holder's
obligations to indemnify, defend, and hold harmless NSI, as stated in
Section 2.16; (iii) the surety's obligations under the Surety
Instrument described in Section 2.13
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with respect to matters arising during the term of this Agreement; and
(iv) Registrar's payment obligations as set forth in Section 5.2 with
respect to initial registrations or re-registrations during the term
of this Agreement. Neither Party shall be liable to the other for
damages of any sort resulting solely from terminating this Agreement
in accordance with its terms but each Party shall be liable for any
damage arising from any breach by it of this Agreement.
6.2. NO THIRD PARTY BENEFICIARIES; RELATIONSHIP OF THE PARTIES. This
Agreement does not provide and shall not be construed to provide third
parties (i.e., non-parties to this Agreement), including any SLD holder,
with any remedy, claim, cause of action or privilege. Nothing in this
Agreement shall be construed as creating an employer-employee or agency
relationship, a partnership or a joint venture between the Parties.
6.3 FORCE MAJEURE. Neither Party shall be responsible for any failure to
perform any obligation or provide service hereunder because of any Act of
God, strike, work stoppage, governmental acts or directives, war, riot or
civil commotion, equipment or facilities shortages which are being
experienced by providers of telecommunications services generally, or other
similar force beyond such Party's reasonable control.
6.4 FURTHER ASSURANCES. Each Party hereto shall execute and/or cause to be
delivered to each other Party hereto such instruments and other documents,
and shall take such other actions, as such other Party may reasonably
request for the purpose of carrying out or evidencing any of the
transactions contemplated by this Agreement.
6.5 AMENDMENT IN WRITING. Any amendment or supplement to this Agreement
shall be in writing and duly executed by both Parties.
6.6 ATTORNEYS' FEES. If any legal action or other legal proceeding
(including arbitration) relating to the performance under this Agreement or
the enforcement of any provision of this Agreement is brought against
either Party hereto, the prevailing Party shall be entitled to recover
reasonable attorneys' fees, costs and disbursements (in addition to any
other relief to which the prevailing Party may be entitled).
6.7 DISPUTE RESOLUTION; CHOICE OF LAW; VENUE. The Parties shall attempt to
resolve any disputes between them prior to resorting to litigation. This
Agreement is to be construed in accordance with and governed by the
internal laws of the Commonwealth of Virginia, United States of America
without giving effect to any choice of law rule that would cause the
application of the laws of any jurisdiction other than the internal laws of
the Commonwealth of Virginia to the rights and duties of the Parties. Any
legal action or other legal proceeding relating to this Agreement or the
enforcement of any provision of this Agreement shall be brought or
otherwise commenced in any state or federal court located in the eastern
district of the Commonwealth of Virginia. Each Party to this Agreement
expressly and irrevocably consents and submits to the jurisdiction and
venue of each state and federal court located in the eastern district of
the Commonwealth of Virginia (and each appellate court located in the
Commonwealth of Virginia) in connection with any such legal proceeding.
6.8 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 or by telecopier
during business hours) to the address or telecopier number set forth
beneath
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the name of such Party below, unless party has given a notice of a change
of address in writing:
if to Registrar:
------------------------------------------
------------------------------------------
------------------------------------------
------------------------------------------
------------------------------------------
------------------------------------------
with a copy to:
------------------------------------------
------------------------------------------
------------------------------------------
------------------------------------------
------------------------------------------
------------------------------------------
if to NSI:
Network Solutions, Inc.
505 Huntmar Park Drive
Herndon, Virginia 20170
Attention: Director, Customer Affairs
Telecopier: + 1 (703) 742-8706
with a copy to:
General Counsel
505 Huntmar Park Drive
Herndon, Virginia 20170
Telecopier: + 1 (703) 742-0065
6.9 ASSIGNMENT/SUBLICENSE. Except as otherwise expressly provided herein,
the provisions of this Agreement shall inure to the benefit of and be
binding upon, the successors and permitted assigns of the Parties hereto.
Registrar shall not assign, sublicense or transfer its rights or
obligations under this Agreement to any third person without the prior
written consent of NSI.
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<PAGE> 10
6.10 USE OF CONFIDENTIAL INFORMATION. The Parties' use and disclosure of
Confidential Information disclosed hereunder are subject to the terms and
conditions of the Parties' Confidentiality Agreement (Exhibit C) that will
be executed contemporaneously with this Agreement. Registrar agrees that
the RRP, APIs and Software are the Confidential Information of NSI.
6.11 DELAYS OR OMISSIONS; 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. No 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.
6.12 LIMITATION OF LIABILITY. IN NO EVENT WILL NSI BE LIABLE TO REGISTRAR
FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL
DAMAGES, OR ANY DAMAGES RESULTING FROM LOSS OF PROFITS, ARISING OUT OF OR
IN CONNECTION WITH THIS AGREEMENT, EVEN IF NSI HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
6.13 CONSTRUCTION. The Parties agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting Party shall
not be applied in the construction or interpretation of this Agreement.
6.14 INTELLECTUAL PROPERTY. Subject to Section 2.6 above, 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.
6.15 REPRESENTATIONS AND WARRANTIES
(A) REGISTRAR. Registrar represents and warrants that: (1) it is a
corporation duly incorporated, validly existing and in good standing
under the law of the ______________, (2) it has all requisite
corporate power and authority to execute, deliver and perform its
obligations under this Agreement, (3) it is, and during the Term of
this Agreement will continue to be, accredited by ICANN or its
successor, pursuant to an accreditation agreement dated after November
___, 1999, (4) the execution, performance and delivery of this
Agreement has been duly authorized by Registrar, (5) 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, and
(6) Registrar's Surety Instrument provided hereunder is a valid and
enforceable obligation of the surety named on such Surety Instrument.
(b) NSI. NSI represents and warrants that: (1) it is a corporation
duly incorporated,
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validly existing and in good standing under the laws of the State of
Delaware, (2) it has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement, (3)
the execution, performance and delivery of this Agreement has been
duly authorized by NSI, and (4) no further approval, authorization or
consent of any governmental or regulatory authority is required to be
obtained or made by NSI in order for it to enter into and perform its
obligations under this Agreement.
(c) DISCLAIMER OF WARRANTIES. The RRP, APIs and Software are provided
"as-is" and without any warranty of any kind. NSI 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. NSI DOES NOT
WARRANT THAT THE FUNCTIONS CONTAINED IN THE RRP, APIs OR SOFTWARE WILL
MEET REGISTRAR'S REQUIREMENTS, OR THAT THE OPERATION OF THE RRP, APIs
OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN
THE RRP, APIs OR SOFTWARE WILL BE CORRECTED. FURTHERMORE, NSI DOES NOT
WARRANT NOR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS
OF THE RRP, APIs, SOFTWARE OR RELATED DOCUMENTATION IN TERMS OF THEIR
CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. SHOULD THE RRP, APIs
OR SOFTWARE PROVE DEFECTIVE, REGISTRAR ASSUMES THE ENTIRE COST OF ALL
NECESSARY SERVICING, REPAIR OR CORRECTION OF REGISTRAR'S OWN SYSTEMS
AND SOFTWARE.
6.16. INDEMNIFICATION. Registrar, at its own expense and within thirty (30)
days of presentation of a demand by NSI under this paragraph, will
indemnify, defend and hold harmless NSI and its employees, directors,
officers, representatives, agents and affiliates, against any claim, suit,
action, or other proceeding brought against NSI or any affiliate of NSI
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 SLD holder of 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; provided, however, that in any such case: (a) NSI provides
Registrar with prompt notice of any such claim, and (b) upon Registrar's
written request, NSI will provide to Registrar all available information
and assistance reasonably necessary for Registrar to defend such claim,
provided that Registrar reimburses NSI for its actual and reasonable costs.
Registrar will not enter into any settlement or compromise of any such
indemnifiable claim without NSI'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 NSI in connection
with or arising from any such indemnifiable claim, suit, action or
proceeding.
6.17 ENTIRE AGREEMENT; SEVERABILITY. This Agreement, which includes
Exhibits A, B and C, constitutes the entire agreement between the Parties
concerning the subject matter hereof 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. If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable, each Party agrees that such provision
shall be enforced to the maximum extent permissible so as to effect the
intent of the Parties, and the validity, legality and enforceability of the
remaining
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provisions of this Agreement shall not in any way be affected or
impaired thereby. If necessary to effect the intent of the Parties, the
Parties shall negotiate in good faith to amend this Agreement to replace
the unenforceable language with enforceable language that reflects such
intent as closely as possible.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date set forth in the first paragraph hereof.
Network Solutions, Inc.
<TABLE>
<S> <C>
By: By:
Name: Name:
Title: Title:
</TABLE>
- --------------------------------------------------------------------------------
EXHIBIT A
REGISTRAR'S DISPUTE POLICY
[TO BE SUPPLIED FROM TIME TO TIME BY REGISTRAR]
- --------------------------------------------------------------------------------
EXHIBIT B
POLICY ON TRANSFER OF SPONSORSHIP OF REGISTRATIONS BETWEEN REGISTRARS
REGISTRAR REQUIREMENTS
The registration agreement between each Registrar and its SLD holder
shall include a provision explaining that an SLD holder will be
prohibited from changing its Registrar during the first 60 days after
initial registration of the domain name with the Registrar. Beginning
on the 61st day
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after the initial registration with the Registrar, the procedures for
change in sponsoring registrar set forth in this policy shall apply.
Enforcement shall be the responsibility of the Registrar sponsoring
the domain name registration.
For each instance where an SLD holder wants to change its Registrar
for an existing domain name (i.e., a domain name that appears in a
particular top-level domain zone file), the gaining Registrar shall:
1) Obtain express authorization from an individual who has
the apparent authority to legally bind the SLD holder (as
reflected in the database of the losing Registrar).
a) The form of the authorization is at the
discretion of each gaining Registrar.
b) The gaining Registrar shall retain a record of
reliable evidence of the authorization.
2) In those instances when the Registrar of record is being
changed simultaneously with a transfer of a domain name from
one party to another, the gaining Registrar shall also
obtain appropriate authorization for the transfer. Such
authorization shall include, but not be limited to, one of
the following:
a) A bilateral agreement between the
parties.
b) The final determination of a binding dispute
resolution body.
c) A court order.
3) Request, by the transmission of a "transfer" command as
specified in the Registry Registrar Protocol, that the
Registry database be changed to reflect the new Registrar.
a) Transmission of a "transfer" command constitutes a
representation on the part of the gaining Registrar
that:
(1) the requisite authorization has been obtained
from the SLD holder listed in the database of the
losing Registrar, and
(2) the losing Registrar will be provided with a
copy of the authorization if and when requested.
In those instances when the Registrar of record denies the
requested change of Registrar, the Registrar of record shall
notify the prospective gaining Registrar that the request
was denied and the reason for the denial.
Instances when the requested change of sponsoring Registrar
may be denied include, but are not limited to:
1) Situations described in the Domain Name Dispute
Resolution
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Policy
2) A pending bankruptcy of the SLD Holder
3) Dispute over the identity of the SLD Holder
4) Request to transfer sponsorship occurs within the
first 60 days after the initial registration with the
Registrar
In all cases, the losing Registrar shall respond to the
email notice regarding the "transfer" request within five
(5) days. Failure to respond will result in a default
"approval" of the "transfer."
REGISTRY REQUIREMENTS.
Upon receipt of the "transfer" command from the gaining Registrar, the
Registry will transmit an email notification to both Registrars.
The Registry shall complete the "transfer" if either:
1) the losing Registrar expressly "approves" the request, or
2) the Registry does not receive a response from the losing
Registrar within five (5) days.
When the Registry's database has been updated to reflect the change to
the gaining Registrar, the Registry will transmit an email
notification to both Registrars.
RECORDS OF REGISTRATION.
Each SLD holder shall maintain its own records appropriate to document and
prove the initial domain name registration date, regardless of the number
of Registrars with which the SLD holder enters into a contract for
registration services.
- --------------------------------------------------------------------------------
EXHIBIT C
CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT is entered into by and between Network Solutions,
Inc. ("NSI"), a Delaware corporation having its principal place of business in
Herndon, VA, and , a _________ corporation having its principal place of
business in ___________________ ("Registrar"), through their authorized
representatives, and takes effect on the date executed by the final party (the
"Effective Date").
Under this Confidentiality Agreement ("Confidentiality Agreement"), the Parties
intend to disclose to one another information which they consider to be
valuable, proprietary, and confidential.
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<PAGE> 15
NOW, THEREFORE, the parties agree as follows:
1. CONFIDENTIAL INFORMATION
1.1 "Confidential Information", as used in this Confidentiality Agreement, shall
mean all information and materials including, without limitation, computer
software, data, information, databases, protocols, reference implementation and
documentation, and functional and interface specifications, provided by the
disclosing party to the receiving party under this Confidentiality 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 within
15 days of the disclosure.
2. CONFIDENTIALITY OBLIGATIONS
2.1 In consideration of the disclosure of Confidential Information, the Parties
agree that:
(a) The receiving party shall treat as strictly confidential, and use
all reasonable efforts to preserve the secrecy and confidentiality of,
all Confidential Information received from the disclosing party,
including implementing reasonable physical security measures and
operating procedures.
(b) The receiving party shall make no disclosures whatsoever of any
Confidential Information 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 terms of this Confidentiality Agreement.
(c) The receiving party shall not modify or remove any Confidential
legends and/or copyright notices appearing on any Confidential
Information.
2.2 The receiving party's duties under this section (2) shall expire five (5)
years after the information is received or earlier, upon written agreement of
the Parties.
3. RESTRICTIONS ON USE
3.1 The receiving party agrees that it will use any Confidential Information
received under this Confidentiality Agreement solely for the purpose of
providing domain name registration services as a registrar and for no other
purposes whatsoever.
3.2 No commercial use rights or any licenses under any patent, patent
application, copyright, trademark, know-how, trade secret, or any other NSI
proprietary rights are granted by the disclosing party to the receiving party by
this Confidentiality Agreement, or by any disclosure of any Confidential
Information to the receiving party under this Confidentiality Agreement.
3.3 The receiving party agrees not to prepare any derivative works based on the
Confidential Information.
3.4 The receiving party agrees that any Confidential Information which is in the
form of computer software, data and/or databases shall be used on a computer
system(s) that is owned or controlled by the receiving
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party.
4. MISCELLANEOUS
4.1 This Confidentiality Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Virginia and all applicable
federal laws. The Parties agree that, if a suit to enforce this Confidentiality
Agreement is brought in the U.S. Federal District Court for the Eastern District
of Virginia, they will be bound by any decision of the Court.
4.2 The obligations set forth in this Confidentiality Agreement shall be
continuing, provided, however, that this Confidentiality Agreement imposes no
obligation upon the Parties with respect to information that (a) is disclosed
with the disclosing party's prior written approval; or (b) is or has entered the
public domain through no fault of the receiving party; or (c) is known by the
receiving party prior to the time of disclosure; or (d) is independently
developed by the receiving party without use of the Confidential Information; or
(e) is made generally available by the disclosing party without restriction on
disclosure.
4.3 This Confidentiality Agreement may be terminated by either party upon breach
by the other party of any its obligations hereunder and such breach is not cured
within three (3) calendar days after the allegedly breaching party is notified
by the disclosing party of the breach. In the event of any such termination for
breach, all Confidential Information in the possession of the Parties shall be
immediately returned to the disclosing party; the receiving party shall provide
full voluntary disclosure to the disclosing party of any and all unauthorized
disclosures and/or unauthorized uses of any Confidential Information; and the
obligations of Sections 2 and 3 hereof shall survive such termination and remain
in full force and effect. In the event that the Registrar License and Agreement
between the Parties is terminated, the Parties shall immediately return all
Confidential Information to the disclosing party and the receiving party shall
remain subject to the obligations of Sections 2 and 3.
4.4 The terms and conditions of this Confidentiality Agreement shall inure to
the benefit of the Parties and their successors and assigns. The Parties'
obligations under this Confidentiality Agreement may not be assigned or
delegated.
4.5 The Parties agree that they shall be entitled to seek all available legal
and equitable remedies for the breach of this Confidentiality Agreement.
4.6 The terms and conditions of this Confidentiality Agreement may be modified
only in a writing signed by NSI and Registrar.
4.7 EXCEPT AS MAY OTHERWISE BE SET FORTH IN A SIGNED, WRITTEN AGREEMENT BETWEEN
THE PARTIES, THE PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESSED OR
IMPLIED, AS TO THE ACCURACY, COMPLETENESS, CONDITION, SUITABILITY, PERFORMANCE,
FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY OF ANY CONFIDENTIAL
INFORMATION, AND THE PARTIES SHALL HAVE NO LIABILITY WHATSOEVER TO ONE ANOTHER
RESULTING FROM RECEIPT OR USE OF THE CONFIDENTIAL INFORMATION.
4.8 If any part of this Confidentiality Agreement is found invalid or
unenforceable, such part shall be deemed stricken herefrom and the Parties
agree: (a) to negotiate in good faith to amend this Confidentiality Agreement to
achieve as nearly as legally possible the purpose or effect as the stricken
part, and (b) that the remainder of this Confidentiality Agreement shall at all
times remain in full force and effect.
4.9 This Confidentiality Agreement contains the entire understanding and
agreement of the Parties relating to the subject matter hereof.
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4.10 Any obligation imposed by this Confidentiality Agreement may be waived in
writing by the disclosing party. Any such waiver shall have a one-time effect
and shall not apply to any subsequent situation regardless of its similarity.
4.11 Neither Party has an obligation under this Confidentiality Agreement to
purchase, sell, or license any service or item from the other Party.
4.12 The Parties do not intend that any agency or partnership relationship be
created between them by this Confidentiality Agreement.
IN WITNESS WHEREOF, and intending to be legally bound, duly authorized
representatives of NSI and Registrar have executed this Confidentiality
Agreement in Virginia on the dates indicated below.
("Registrar") Network Solutions, Inc. ("NSI")
By: By:
-------------------------------- -------------------------------
Title: Title:
------------------------------ ---------------------------
Date: Date:
------------------------------ ----------------------------
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PAGE MODIFIED 28-SEPTEMBER-1999
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<PAGE> 1
EXHIBIT 99.5
[NETWORK SOLUTIONS LOGO]
TENTATIVE AGREEMENTS AMONG ICANN, THE U.S. DEPARTMENT OF COMMERCE, AND NETWORK
SOLUTIONS, INC.
(Posted September 28, 1999)
- --------------------------------------------------------------------------------
[NOTE: ICANN HAS POSTED THE FOLLOWING DOCUMENT FOR PUBLIC REVIEW AND COMMENT.
TO SUBMIT COMMENTS, CLICK HERE.]
- --------------------------------------------------------------------------------
AMENDMENT 19 TO COOPERATIVE AGREEMENT # NCR 92-18742
I. GENERAL
A. DEFINITIONS
1) The "Expiration Date" is the date specified in Section I.B.10 below.
2) "Accredited Registrar" means an individual or entity accredited by ICANN, or
another entity designated by the Department of Commerce, to provide registrar
services in the Registry TLDs.
3) "ICANN" refers to the Internet Corporation for Assigned Names and Numbers,
and its successors and assigns.
4) "NSI" refers to Network Solutions, Inc., and its successors and assigns.
5) "Other Services" means all services provided by NSI under this Cooperative
Agreement other than Registrar Services or Registry Services, including specific
obligations of NSI under Section I below and the provisions in Amendment 11 to
this Agreement labeled "Assistance to NewCo," "Root Servers," "Existing NSI
Customers," and "New Contracts."
6) "Personal Data" refers to data about any identified or identifiable natural
person.
7) "Registrar Accreditation Agreement" means the ICANN-NSI Registrar
Accreditation Agreement entered into contemporaneously with this Agreement, as
it may be amended from time to time.
8) "Registrar Services" mean services provided under this Cooperative Agreement
of the type provided by NSI under the Registrar Accreditation Agreement.
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9) "Registry Agreement" means the ICANN-NSI Registry Agreement entered into
contemporaneously with this Agreement, as
it may be amended from time to time.
10) "Registry Data" means all data maintained in electronic form in the registry
database, and shall include Zone File Data, all data submitted by registrars in
electronic form, and all other data concerning particular registrations or
nameservers maintained in electronic form by the registry.
11) "Registry Services" means all services provided under this Cooperative
Agreement of the type provided by NSI under the Registry Agreement.
12) "Registry TLDs" refers to the .com, .net, and .org TLDs.
13) "SLD" refers to a second-level domain in the Registry TLDs.
14) "Term of this Agreement" runs through the earlier of the expiration or
termination of this Amendment.
15) "TLD" refers to a top-level domain in the Internet domain name system.
16) "Zone File Data" means all data contained in domain name system zone files
for the Registry TLDs as provided to TLD nameservers on the Internet.
B. AGREEMENTS
The Department of Commerce and NSI agree as follows:
1. ICANN as NEWCO
NSI recognizes ICANN as NewCo in accordance with the provisions of Amendment 11.
"ICANN" shall replace the term "NewCo" wherever such reference appears in
Amendment 11 to the Cooperative Agreement.
2. NSI RELATIONSHIP WITH ICANN
A. NSI shall enter into the Registry Agreement (Appendix 1) and the
Registrar Accreditation Agreement (Appendix 2). NSI's obligations
under the Cooperative Agreement with respect to Registry Services and
Registrar Services shall be satisfied by compliance with the Registry
Agreement and the Registrar Accreditation Agreement, respectively, for
so long as those Agreements (including any renewals of those
agreements) are in effect (as determined by the dispute resolution
procedures and termination provisions of those Agreements). NSI's
obligations under the Cooperative Agreement with respect to Other
Services (and Registry Services following the expiration or
termination by NSI pursuant to Section 14 of the Registry Agreement )
shall be satisfied by compliance with this Agreement as amended.
B. If the Registry Agreement is terminated by ICANN for cause pursuant
to Section 14 of that agreement, the Department of Commerce shall be
entitled under Section I.B.8 below to terminate NSI's obligation to
provide Registry Services under the Cooperative Agreement.
C. If the Registrar Accreditation Agreement is terminated by ICANN for
cause pursuant to Section II.N of that agreement, the Department of
Commerce shall be entitled under Section I.B.8 below to terminate
NSI's obligation to provide Registrar Services under the Cooperative
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Agreement.
D. If the Registry Agreement and the Registrar Accreditation Agreement
are both terminated by ICANN for cause pursuant to Section 14 and
Section II.N of those agreements respectively, NSI's obligations to
provide Registry Services, Registrar Services, and Other Services
under the Cooperative Agreement shall terminate upon 90 days notice by
either party of its intention to terminate such services.
E. NSI shall only accept registrations in the Registry TLDs from
Accredited Registrars.
3. INTERNIC
A. Within six months from the effective date of this Amendment (the
"Transition Period"), NSI shall transfer the internic.com,
internic.org and internic.net SLD names to the Department of Commerce.
B. Until such time as NSI has completed such transfer, NSI in its
capacity as registry shall maintain and operate the InterNIC website
on behalf of the Department of Commerce, with content approved by the
Department of Commerce, as a neutral stand alone web page that shall
provide a public directory of all accredited registrars and associated
contact information (including hotlinks) and other information
regarding domain name registration services as directed by the
Department of Commerce. NSI shall activate any substitute web pages
supplied in HTML format by the Department of Commerce, during this
period, within three business days of its receipt of the substitute
web pages.
C. During the period lasting until nine months after the date of this
Amendment, the Department of Commerce will cooperate with NSI to
assure the continued availability of the internic.net SLD name for
purposes of email transmissions from registration templates to NSI.
Prior to the end of such nine month period, NSI shall modify all of
its registration templates and otherwise migrate from the use of the
term "InterNIC," or Internet addresses that reflect the term
"InterNIC," in connection with its provision of any product or
service. Thereafter, the internic.net SLD name shall not be used for
the provision of Registrar Services.
D. The Department of Commerce shall not transfer or grant a license
for the internic.com, internic.org or internic.net SLD names, or the
InterNIC mark, to any other registry or registrar for the purpose of
competing with NSI.
E. During the Transition Period, NSI will cooperate with the
Department of Commerce, or its designee, to ensure a seamless
transition and continuous operation of the InterNIC websites.
4. OTHER OBLIGATIONS OF THE PARTIES
A. The Department of Commerce will ensure that the authoritative root
will point to the TLD zone servers designated by NSI for the Registry
TLDs (Registry TLD zone server) until the earlier of the termination
of this Agreement by the Department of Commerce or termination for
cause of the Registry Agreement by ICANN pursuant to Section 14 of
that agreement.
B. The Department of Commerce acknowledges and agrees that NSI is and
will remain the registry for the Registry TLD(s) until the earlier of
the termination of this Agreement by the Department of Commerce or
termination for cause of the Registry Agreement by ICANN
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pursuant to Section 14 of that agreement.
C. Notwithstanding any changes NSI may make in the manner in which it
propagates Registry TLD Zone File Data to the Registry TLD zone
servers NSI shall continue to provide a complete zone file for
downloading at least once per day. If, in order to fulfill its
obligation to provide bulk publicaccess to zone file data, NSI is
required to incur significant additional costs to distribute complete
copies of the zone files to multiple third parties, NSI shall be
entitled to charge a reasonable cost-based fee provided such fee has
been approved in advance by the Department of Commerce, said approval
not to be unreasonably withheld.
D. NSI agrees to provide to the Department of Commerce, on a
continuing basis, and at no cost to the Department of Commerce, the
ability to access the current Registry TLD zone files.
E. In the interest of the smooth, reliable and consistent functioning
of the Internet, for so long as the Cooperative Agreement is in
effect, NSI agrees not to deploy alternative DNS root server systems.
5. ASSIGNMENT OF REGISTRY ASSETS
NSI may assign and transfer its registry assets in connection with the sale of
its registry business or for any other purpose only with the prior, written
approval of the Department of Commerce, said approval not to be unreasonably
withheld. Upon the approval of the Department of Commerce, appropriate
provisions of the Cooperative Agreement may be assigned provided that the
purchaser has agreed in a document of sale for NSI's registry assets to assume
NSI's obligations with respect to the provision of Registry Services.
6. APPROVALS
A. The Department of Commerce hereby approves the form of
certification (Appendix 3) to be submitted every six months in
fulfillment of NSI's obligations under Amendment 11 regarding NSI's
provision to all licensed Accredited Registrars of equivalent access
to its registry.
B. The Department of Commerce hereby approves the separation of NSI's
registry and registrar assets, as described in Appendix 4, in
fulfillment of NSI's obligations under Amendment 11 to ensure that the
revenues and assets of the registry are not used to financially
advantage NSI's registrar activities to the detriment of other
registrars.
C. The Department of Commerce hereby approves the Registrar License
and Agreement attached hereto as Appendix 5.
7. SPECIFIC PERFORMANCE
During the Term of this Agreement, the Department of Commerce may seek specific
performance of any provision of this Agreement, provided the Department is not
in material breach of its obligations hereunder. This provision shall not
entitle the Department of Commerce to seek specific performance of the Registry
Agreement. This provision shall not entitle the Department of Commerce to seek
specific performance of the Registrar Accreditation Agreement unless and until
and for so long as such agreement has been assigned to the Department of
Commerce by ICANN.
8. TERMINATION
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<PAGE> 5
A. In the event ICANN designates a Successor Registry pursuant to
Section 22 of the Registry Agreement or terminates the Registry
Agreement pursuant to Section 14 of that agreement, the Department
agrees that upon the conclusion of the transfer when the Successor
Registry is established and operational and NSI notifies the
Department of the completion of the transfer, the Department will
relieve, release and discharge NSI from any responsibility for
Registry Services currently performed under the Cooperative Agreement
that have been transferred to the Successor Registry.
The final release will be effected by NSI sending a letter to the
Department stating that:
Awardee, Network Solutions, Inc. hereby represents and
certifies to the Department of Commerce, that in accordance
with the requirements contained in Amendment 19 to the
Cooperative Agreement NCR-9218742, all requirements relating
to its performance as the Registry have been completed.
We therefore request that, as provided by Amendment No. 19
to the Cooperative Agreement NCR-9218742, the Department of
Commerce sign and return a copy of this letter and, in the
block indicated below, acknowledge that we have completed
the agreed upon items and are fully and finally relieved,
released, and discharged from any responsibility for the
Registry for com, net, and org TLDs previously performed by
Awardee under Cooperative Agreement NCR-9218742 which are
now the subject of a contract between ICANN and [the
successor Registry]. (attachment).
B. In the event ICANN terminates the Registrar Accreditation Agreement
for cause pursuant to Section II.N of that agreement, the Department
will relieve, release and discharge NSI from any responsibility for
Registrar Services currently performed under the Cooperative
Agreement.
The final release will be effected by NSI sending a letter to the
Department stating that:
Awardee, Network Solutions, Inc. hereby represents and
certifies to the Department of Commerce, that in accordance
with the requirements contained in Amendment 19 to the
Cooperative Agreement NCR-9218742, all requirements relating
to its performance of Registrar Services have been
completed.
We therefore request that, as provided by Amendment No. 19
to the Cooperative Agreement NCR-9218742, the Department of
Commerce sign and return a copy of this letter and, in the
block indicated below, acknowledge that we have completed
the agreed upon items and are fully and finally relieved,
released, and discharged from any responsibility for the
provision of Registrar Services for com, net, and org TLDs
previously performed by Awardee under Cooperative Agreement
NCR-9218742.
C. If the both the Registrar Accreditation Agreement and the Registry
Agreement are terminated by ICANN for cause, the Department will
relieve, release and discharge NSI from any responsibility for
continuing to provide Other Services that are required under the
Cooperative Agreement.
The final release will be effected by NSI sending a letter to the
Department stating that:
Awardee, Network Solutions, Inc. hereby represents and
certifies to the Department of Commerce, that in accordance
with the requirements contained in Amendment 19 to the
Cooperative Agreement NCR-9218742, all requirements relating
to its
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performance of Other Services have been completed.
We therefore request that, as provided by Amendment No. 19
to the Cooperative Agreement NCR-9218742, the Department of
Commerce sign and return a copy of this letter and, in the
block indicated below, acknowledge that we have completed
the agreed upon items and are fully and finally relieved,
released, and discharged from any responsibility for the
provision of Other Services previously performed by Awardee
under Cooperative Agreement NCR-9218742.
D. In the event that a final judgment is rendered
specifically enforcing any provision of this Agreement, the
Department of Commerce may, by giving written notice, demand
that NSI comply with such judgment. In the event that NSI
fails to comply with such judgment within ninety days after
the giving of notice, the Department of Commerce may
terminate this Agreement immediately by giving NSI written
notice of termination and the Department of Commerce may
initiate either a competitive action or other transaction
pursuant to Section II.9 below or request ICANN to initiate
procedures for designating a successor registry in
compliance with the provisions of the Registry Agreement.
E. NSI shall cooperate in a transfer of responsibility for
the provision of Registry Services, Registrar Services or
Other Services that are required under the Cooperative
Agreement.
F. This Section I.B.8 shall be read in accordance with the
order of precedence provisions contained in Article 13 of
the Cooperative Agreement Special Conditions. While this
Amendment is in effect, Section I.B.8 shall supercede
Section 37 ("Suspension or Termination for Convenience") of
the Cooperative Agreement General Conditions and Article 25
("Suspension or Termination") of the Grant General
Conditions.
9. COMPLIANCE WITH SECTION II OF THIS AMENDMENT
While the Registry Agreement remains in effect, NSI shall not be obligated to
comply with the provisions of Section II of this Amendment. Upon termination (i)
by NSI of the Registry Agreement pursuant to Section 14 of that agreement, (ii)
due to the withdrawal of the Department's recognition of ICANN as described in
Section 24 of that agreement, or (iii) by NSI with the approval of the
Department of Commerce under Section 16(c) of that agreement, NSI shall no
longer be required to comply with the Registry Agreement and NSI's obligations
under Section II of this Amendment shall take immediate effect without further
action by the Department of Commerce or NSI.
10. EXPIRATION DATE
The Expiration Date of this Agreement shall be four years after the date this
Amendment is signed, unless extended as provided below. In the event that NSI
completes the legal separation of the ownership of its Registry Services
business from its registrar business by divesting all the assets and operations
of one of those businesses, within 18 months after the date of this Amendment to
an unaffiliated third party that enters an agreement enforceable by the
Department of Commerce (i) not to be both a registry and a registrar in the
Registry TLDs, and (ii) not to control, own or have as an affiliate any
individual(s) or entity(ies) that, collectively, act as both a registry and a
registrar in the Registry TLDs, the Expiration Date shall be extended for an
additional four years, resulting in a total term of eight years. For the
purposes of this Section, "unaffiliated third party" means an entity in which
NSI (including its assigns, subdivisions, and divisions, and their respective
directors, officers, employees, agents and representatives), does not have
majority equity ownership or the ability to exercise managerial or operational
control, either directly or indirectly through one or more intermediaries.
"Control," as used in this Section I.B.10, means any of the
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following: (1) ownership, directly or indirectly, or other interest entitling
NSI to exercise in the aggregate 25% or more of the voting power of an entity;
(2) the power, directly or indirectly, to elect 25% or more of the board of
directors (or equivalent governing body) of an entity; or (3) the ability,
directly or indirectly, to direct or cause the direction of the management,
operations, or policies of an entity.
11. OTHER TOP LEVEL DOMAINS
Until such time as the Department of Commerce designates successor registries
for the .edu and .us top level domains, NSI shall continue to provide Registry
and, as appropriate, Registrar Services for such domains at no cost to the U.S.
Government in the manner and at the funding level that these services are now
provided. Upon the designation by the Department of Commerce of successor
registries, which shall take place within 12 months of the date of this
agreement, NSI shall cooperate with the Department of Commerce and the successor
registries to facilitate the smooth transition of operation of these top level
domains. With respect to the transfer of .edu, such cooperation shall include
timely transfer to the successor registry of an electronic copy of the top level
domain database and a full specification of the format of the data. After such
transfers, NSI shall be relieved of further obligations for these domains under
this Agreement, and NSI shall no longer be the registry for these domains.
II. ADDITIONAL OBLIGATIONS
The Department of Commerce and NSI agree as follows:
1. NSI OBLIGATIONS
During the Term of this Agreement:
A. NSI agrees that it will operate the registry for the Registry TLDs
in accordance with this Agreement;
B. NSI agrees to comply with Department of Commerce policies and
directives regarding material aspects of NSI's provision of Registry
Services as distinct from the detailed or day to day administration of
the Registry.
C. NSI acknowledges and agrees that upon the earlier of the expiration
or termination pursuant to Section I.B.8 of this Agreement, it will
cease to be the registry for the Registry TLDs, unless prior to the
end of the term of this Agreement NSI is chosen as the Successor
Registry in accordance with the provisions of this Agreement. NSI
shall cooperate in the transfer of responsibility for operation of the
registry to the successor registry. Such cooperation shall include the
timely transfer to the successor registry of an electronic copy of the
registry database and of a full specification of the format of the
data.
2. DATA ESCROW
NSI shall deposit into escrow all Registry Data on a schedule (not more
frequently than weekly for a complete set of Registry Data, and daily for
incremental updates) and in an electronic format mutually approved from time to
time by NSI and the Department of Commerce, such approval not to be unreasonably
withheld by either party. The escrow shall be maintained, at NSI's expense, by a
reputable escrow agent mutually approved by NSI and the Department of Commerce,
such approval also not to be
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unreasonably withheld by either party. The escrow shall be held under an
agreement among NSI, the Department of Commerce, and the escrow agent providing
that (A) the data shall be received and held in escrow, with no use other than
verification that the deposited data is complete and in proper format, until
released to the Department of Commerce; (B) the data shall be released to the
Department of Commerce upon termination by the Department of Commerce of this
Agreement or upon its expiration if (1) this Agreement has not sooner been
terminated and (2) NSI has not been designated as the successor registry as the
result of a competitive action or other transaction in accordance with
applicable federal law and regulations.
3. NSI HANDLING OF PERSONAL DATA
NSI agrees to notify registrars sponsoring registrations in the registry of the
purposes for which Personal Data submitted to the registry by registrars is
collected, the recipients (or categories of recipients) of such Personal Data,
and the mechanism for access to and correction of such Personal Data. NSI shall
take reasonable steps to protect Personal Data from loss, misuse, unauthorized
disclosure, alteration or destruction. NSI shall not use or authorize the use of
Personal Data in a way that is incompatible with the notice provided to
registrars.
4. PUBLICATION BY NSI OF REGISTRY DATA
A. NSI shall provide an interactive Registry WHOIS service providing
free public query-based (web and, after January 15, 2000,
command-line) access to up-to-date registry database data which, in
response to input of an SLD name, shall report at least the following
data elements in response to queries: (a) the SLD name registered, (b)
the TLD in which the SLD is registered; (c) the IP addresses and
corresponding names of the primary nameserver and secondary
nameserver(s) for such SLD, (d) the identity of the sponsoring
Registrar, and (e) the date of the most recent modification to the
domain name record in the registry database; provided, however, that
if the Department of Commerce adds to or subtracts from these
elements, NSI will implement that policy.
B. To ensure operational stability of the registry, NSI may
temporarily limit access under subsection (A) on an equitable basis,
in which case NSI shall immediately notify the Department of Commerce
in writing or electronically of the nature of and reason for the
limitation. NSI shall not continue the limitation longer than three
business days if the Department of Commerce objects in writing or
electronically, which objection shall not be unreasonably made.
C. NSI as registry shall comply with Departmental direction providing
for development and operation of a capability that provides
distributed free public query-based (web and command-line) access to
current registration data implemented by Accredited Registrars
providing for capabilities comparable to WHOIS, including (if called
for by Departmental direction) registry database lookup capabilities
according to a specified format. If such a service implemented by
Accredited Registrars on a distributed basis does not within a
reasonable time provide reasonably robust, reliable and convenient
access to accurate and up-to-date registration data, NSI as registry
shall cooperate and, if reasonably determined to be necessary by the
Department of Commerce (considering such possibilities as remedial
actions by specific registrars), provide data from the registry
database to facilitate the development of a centralized service
providing equivalent functionality in a manner established by
Departmental direction.
5. PERFORMANCE AND FUNCTIONAL SPECIFICATIONS FOR REGISTRY SERVICES
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Unless and until otherwise directed by the Department of Commerce, NSI shall
provide registry services to Accredited Registrars meeting the performance and
functional specifications set forth in the SRS specification then in place under
the Registry Agreement. In the event the Department directs different
performance and functional standards for the registry, NSI shall comply with
those standards to the extent practicable, provided that compensation pursuant
to the provisions of II.7 of this Agreement has been resolved prior to
implementation and provided further that NSI is given a reasonable time for
implementation.
NSI shall take all reasonable steps to ensure the continued operation,
functionality, and accessibility of the Shared Registration System. In the event
of operational instability or for the purpose of system maintenance, NSI may
temporarily limit Accredited Registrar's access to the Shared Registration
System on an equitable basis, in which case NSI shall immediately notify the
Department of Commerce and all affected Accredited Registrars in writing or
electronically of the nature of and reason for the limitation and the expected
date and time of service restoration. NSI shall take all reasonable steps to
notify all Accredited Registrars at least 24 hours in advance of any anticipated
(non emergency) Shared Registration System service interruption, the reason for
the service interruption, and the expected date and time of service restoration.
6. BULK ACCESS TO ZONE FILES
NSI shall provide third parties bulk access to the zone files for the Registry
TLDs on the terms set forth in the zone file access agreement then in effect
under the Registry Agreement. NSI may not change the access agreement without
the prior written approval of the Department of Commerce.
7. PRICE FOR REGISTRY SERVICES
The price to licensed registrars for entering initial and renewal SLD
registrations into the registry and for transferring a SLD registration from one
accredited registrar to another will be as set forth in the Registry Agreement
at the time of its expiration or termination. These prices shall be increased to
reflect demonstrated increases in costs of operating the registry arising from
(1) changes or additions to the work provided under this Agreement directed by
the Department of Commerce or (2) legislation specifically applicable to the
Registry Services business of Registry adopted after the date of this Amendment
to ensure that NSI recovers such increased costs and a reasonable profit
thereon.
8. NSI AGREEMENTS WITH REGISTRARS
NSI shall make access to the Shared Registration System available only to
Accredited Registrars and subject to the terms of the NSI/Registrar License and
Agreement then in effect. NSI shall not change the provisions of the
NSI/Registrar License and Agreement without the prior written approval of the
Department of Commerce.
9. DESIGNATION OF SUCCESSOR REGISTRY
NSI agrees that upon (a) one year prior to the expiration or (b) NSI's receipt
of notice of termination pursuant to Section I.B.8 of this Agreement, the
Department of Commerce may initiate a competitive action or other transaction in
accordance with applicable federal law and regulations to designate a successor
registry.
Not later than 30 days after NSI's receipt of a notice of termination, NSI shall
submit to the Department of Commerce, for the Department's immediate use in
designating the Successor Registry, an electronic copy
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of all software (excluding the SRS software) and data related to its provision
of Registry Services generated under the Cooperative Agreement through the date
of the notice of termination. Not later than 60 days after NSI's receipt of a
notice of termination, NSI shall submit to the Department of Commerce, for its
immediate use in designating a Successor Registry, all existing documentation
for such software (excluding the SRS software) and data related to NSI's
provision of Registry Services generated under the Cooperative Agreement through
the date of the notice of termination.
If, after the expiration or termination pursuant to Section I.B.8 of this
Agreement, NSI or its assignee is not designated as the successor registry
pursuant to the competitive action or transaction, NSI shall cooperate with the
Department of Commerce and with the successor registry in order to facilitate
the smooth transition of operation of the registry to the successor registry.
Such cooperation shall include timely transfer to the successor registry of an
electronic copy of the registry database and of a full specification of the
format of the data. Thereafter NSI shall be relieved of further obligations
under this Agreement.
10. RIGHTS IN DATA
Except as permitted by the Registrar License and Agreement, NSI shall not be
entitled to claim any intellectual property rights in data or any database or
portion thereof in the registry supplied by or through registrars other than
NSI. In the event that Registry Data is released from escrow under Section II.2
or transferred to a successor registry under Sections I.B.8 or II.A.10 , any
rights held by NSI as registry in said Registry Data shall automatically be
licensed on a non-exclusive, transferable, irrevocable, royalty-free, paid-up
basis to the recipient of the data.
III. OTHER PROVISIONS
1. As of the date of this Agreement NSI shall have no further obligations under
Articles 2, 4, and 11 of the Cooperative Agreement Special Conditions.
2. Articles 9, 10 and 14 of the Cooperative Agreement Special Conditions, as
amended, are hereby suspended as of the date of this Agreement and NSI shall
have no obligations under such provisions for so long as the Registry Agreement
remains in effect. Upon termination of the Registry Agreement pursuant to (i)
Section 14 of that agreement, (ii) the withdrawal of the Department's
recognition of ICANN under Section 24 of that agreement, or (iii) with the
approval of the Department of Commerce under Section 16c of that agreement, such
provisions shall return to effect immediately without further action by the
Department of Commerce or NSI.
3. Article 6 Section a of the Cooperative Agreement Special Conditions, as
amended, is hereby amended to add the following new language:
NSI agrees to comply with Department of Commerce policies and
directives regarding material aspects of NSI's provision of Other
Services, as distinct from the detailed or day to day administration
of the Registry in accordance with Cooperative Agreement Special
Conditions Article 5.
4. Article 8, Section G of the Cooperative Agreement Special Conditions, as
amended, is hereby amended to read:
3. The compensation provisions in Amendment 9 shall apply for the
period April 1, 1999 through
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the effective date of this Amendment
and by adding a new Section G.4 as follows:
G.4.a. From the effective date of this Amendment, NSI, in its capacity
as a registrar for the Registry TLDs, may establish the charge to SLD
holders for registration of SLD names or for any other service
provided by NSI as registrar at its own discretion.
G.4.b. All income generated by user fees charged for Registry or
Registrar Services shall be considered Program Income under the terms
of this Agreement and will be available to NSI as consideration for
the services provided and may be used for any purpose in NSI's sole
discretion.
5. Article 12 of the Cooperative Agreement Special Conditions, as amended, is
hereby amended to read:
The following individuals shall serve as points of contact at NSI:
Jonathan Emery
David Graves
6. Article 15 of the Cooperative Agreement Special Conditions, as amended, is
hereby amended to read:
All income generated by user fees charged for Registry or Registrar
Services shall be considered Program Income under the terms of this
Agreement and will be available to NSI as consideration for the
services provided and may be used for any purpose in NSI's sole
discretion.
7. Except as specifically modified by this amendment, all other terms and
conditions of the Cooperative Agreement remain unchanged. The provisions of
this Amendment shall take precedence over any conflicting provision contained
in any other portion of this Cooperative Agreement as amended.
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POSTED 28-SEPTEMBER-1999
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APPENDIX 3
EQUIVALENT ACCESS CERTIFICATION
Network Solutions, acting in its capacity as the "Registry" makes the following
certification:
1. All Registrars (including Network Solutions as a Registrar)
connect to the Shared Registration System Gateway via the Internet
by utilizing the same maximum number of IP addresses and SSL
certificate authentication.
2. The Registry 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.
3. All Registrars have the same level of access to Registry customer
support personnel via telephone, e-mail and the Registry website.
4. All Registrars have the same level of access to the Network
Solutions Registry resources to resolve Registry/Registrar or
Registrar/Registrar disputes and technical and/or administrative
customer service issues.
5. All Registrars have the same level of access to Registry-generated
data to reconcile their registration activities from Registry Web
and ftp servers.
6. All Registrars may perform basic automated registrar account
management functions using the same Registrar tool made available
to all Registrars by the Registry.
7. The Shared Registration System does not include any algorithms or
protocols that differentiate among Registrars with respect to
functionality, including database access, system priorities and
overall performance.
8. All Registry-assigned personnel have been directed not to give
preferential treatment to any particular Registrar.
9. I have taken reasonable steps to verify that the foregoing
representations are being complied with.
This Certification is dated this the __ day of __________, _____.
Network Solutions, Inc.
By:
---------------------
Name: Bruce Chovnick
Title: General Manager, Network Solutions Registry
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PAGE UPDATED 28-SEPTEMBER-1999
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APPENDIX 4
NETWORK SOLUTIONS REGISTRY
ORGANIZATIONAL CONFLICT OF INTEREST COMPLIANCE PLAN
Network Solutions has implemented the following organizational, physical and
procedural safeguards to ensure that revenues and assets of the Network
Solutions Registry business are not utilized to advantage the Network Solutions
Registrar business to the detriment of other competing registrars. Network
Solutions recognizes the potential for organizational conflicts of interest
("OCI") between the Registry and Registrar businesses and has placed these
generally accepted, US Government recognized safeguards in place to avoid
operational issues.
I. NSI ORGANIZATIONAL STRUCTURE
In recognition of potential OCI, Network Solutions established organization
barriers by separating Network Solutions' Registry, Registrar and Information
Technology Services businesses into separate profit and loss ("P&L") centers,
each with its own General Manager. Each General Manager reports directly to the
Chief Executive Officer of Network Solutions and has dedicated direct reporting
employees in the finance, marketing, engineering, customer affairs and customer
service functions, as appropriate. Each P&L employee is dedicated to the line of
business for which he/she directly works.
The corporate administrative support functions under the Chief Financial
Officer, Chief Information Officer, Chief Technology Officer, and General
Counsel provide support to each line of business on a cost allocated basis or a
dedicated project accounting basis. These officers and the Chief Executive
Officer will be compensated based on consolidated financial results, versus
Registrar or Registry results.
The Registry General Manager has authority over all operational decisions and is
the business owner of this compliance plan. The Registry employs a Compliance
Officer to administer day-to-day oversight and administration of this plan.
The Network Solutions General Counsel's office employs an overall OCI compliance
function to oversee corporate adherence to the Plan and to resolve potential
conflicts or actual conflicts among Network Solutions functions.
II. FINANCIAL SEPARATION
The Registry business accounts for its own costs, revenues, cash flow, etc. as a
separate P&L center, using separate and distinct systems and accounting
functions. Reasonable and independently auditable internal accounting controls
are in place to ensure the adequacy of these systems and functions. The
individual financial statements of each P&L center are then consolidated at the
corporate level for tax and SEC reporting.
III. LOCATION CHANGE
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To further separate businesses and, among other things, ensure that the risk of
inadvertent disclosure of sensitive information is effectively mitigated,
Network Solutions has relocated the Registry and Registrar businesses to
separate facilities.
IV. PHYSICAL BARRIERS
Each NSI business unit employee has a security badge that will provide him/her
access only to the facility he/she works in and the Network Solutions
headquarters facility. At the Registry facility, only Registry-assigned
personnel ("Registry Personnel") will have regular badge access to the premises
and any other person will be treated as a visitor to the facility and will gain
access only through established visitor sign-in and identification badge
procedures.
V. ACCESS TO THE REGISTRY
The Registry business provides access to all Registry customers through the
following mechanisms and separates Registry Systems and information from NSI
Registrar Systems and information through these processes:
1. All Registrars (including Network Solutions as a Registrar)
connect to the Shared Registration System Gateway via the Internet
by utilizing the same maximum number of IP addresses and SSL
certificate authentication.
2. All Registrars have access to Registry-generated data to reconcile
their registration activities from Registry Web and ftp servers.
All Registrars may perform basic automated registrar account
management functions using the same Registrar tool made available
to all Registrars by the Registry.
3. The Shared Registration System does not include any algorithms
that differentiate among Registrars with respect to functionality,
including database access, system priorities and overall
performance.
4. Network Solutions as Registrar will not be given any access to the
Registry not available to any other Registrar.
5. Any information regarding the technical interface of
Registry/Registrar operations will be made equally available to
all Registrars.
VI. INFORMATION CONTROL
The Registry has in place various procedural safeguards to ensure that data and
information of the Registry business are not utilized to advantage the Network
Solutions Registrar business. Network Solutions has adopted a policy regarding
the marking, access and dissemination of business sensitive information (Exhibit
A). This policy requires employees to mark all sensitive information as
"Registry Sensitive Information." Furthermore, the policy requires that all
sensitive information be limited in access and disseminated only to those
Registry Personnel and other personnel who are identified to have a legitimate
"need to know," which shall not include Registrar-assigned personnel. The
Registry General Manager maintains a matrix that dictates who can access
particular categories of Registry Sensitive information. All sensitive
information is
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secured in an appropriate manner to ensure confidentiality and security. Consent
of the Registry General Manager is required prior to release of financial or
statistical information relating to the Registry business.
VII. TRAINING
All Registry Personnel and other employees who have a need to know Registry
business undergo a formal OCI Training Program, developed by the Registry
Compliance Officer, providing the staff members with a clear understanding of
this Plan and the staff members' responsibility under the plan. OCI training is
required before any potential staff member is given an assignment or access to
Registry material. OCI refresher training is given on an annual basis.
VIII. NON-DISCLOSURE AGREEMENTS/OCI AVOIDANCE CERTIFICATIONS
Upon completion of the training program, all Registry Personnel and other
employees who have a need to know Registry business, are required to sign a
non-disclosure agreement (Exhibit B) and a Registry Business OCI Avoidance
Certification (Exhibit C) acknowledging his/her understanding of the OCI
requirements, and certifying that he/she will strictly comply with the
provisions of the OCI Plan. The signed agreements are maintained in the program
files and the individual's personnel file. Each staff member acknowledges
verification of the annual refresher training required by this Plan.
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EXHIBIT A
[NETWORK SOLUTIONS LOGO]
POLICY/PROCEDURE NO. A-1
PAGE 1 OF 3
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TITLE: Access and Dissemination of Proprietary Information DATE: September 24,
1999
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APPROVED: Jim Rutt, Chief Executive Officer
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PURPOSE: To establish policies (i) for the protection of Proprietary Information
developed by and/or in the possession of Network Solutions, Inc. ("Network
Solutions"), and (ii) for the protection of Sensitive Information of the
Registry Business to ensure that the revenue and assets of the Registry Business
are not utilized to advantage the Registrar Business to the detriment of other
competing registrars.
SCOPE: This policy is applicable to all employees of Network Solutions.
DEFINITIONS:
3.1 Proprietary Information. Financial, personnel, technical, or business
information owned or possessed by Network Solutions which has not been
authorized for public release. Such information is frequently referred to as
"Proprietary Information," "Confidential Information" or "Privileged
Information."
3.2 Registry Sensitive Information. Proprietary Information or other financial,
personnel, technical, or business information owned or possessed by Network
Solutions relating to its Registry business which could be utilized to advantage
the Network Solutions Registrar business to the detriment of other competing
registrars. Examples are found in Attachment 1.
3.3 Registrar Sensitive Information. Proprietary Information or other financial,
personnel, technical, or business information owned or possessed by Network
Solutions relating to its Registrar business.
3.4 Computer Software. Computer programs and computer databases.
3.5 Computer Software Documentation. Technical data, including computer listing
and printouts, in human-readable form which (i) document the design or details
of computer software, (ii) explain the capabilities of the software, or (iii)
provide instructions for using the software to obtain desired results from a
computer.
PROCEDURES FOR PROTECTION OF PROPRIETARY INFORMATION:
4.1 Responsibility. Managers are responsible for identifying Proprietary
Information, Registry Sensitive Information and Registrar Sensitive Information
developed, produced or possessed by their business unit and for instructing
employees reporting to them regarding the proper handling and safeguarding of
such information. Each Network Solutions employee should exercise reasonable
care to protect Proprietary Information, Registry Sensitive Information and
Registrar Sensitive Information from unauthorized or inadvertent disclosure.
4.2 Disclosure. It is recognized that there are occasions to disclose
Proprietary Information to outsiders. Such disclosure should not be made without
the prior written approval of an authorized Corporate officer of Network
Solutions. Advice from Corporate counsel should be obtained on all questions
relating to the identification or releasing of Proprietary Information, Registry
Sensitive Information or Registrar Sensitive Information.
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4.3 Marking of Documents. Employees should, as a matter of routine, mark each
document containing Proprietary Information, Registry Sensitive Information or
Registrar Sensitive Information with one of the markings described below at the
time the document is produced. Computer tapes and other recorded material should
be identified by proper labeling which is visible to the ordinary person while
the material is being stored. In addition, all such material should have a
warning notice at the beginning of the material to ensure the user is forewarned
about the proprietary or sensitive nature of its contents (as soon as access is
afforded to a computer tape or at the beginning of a sound recording, etc.).
4.3.1 Internal Documents
On internal documents (reports, memoranda, drawings, etc.) the applicable
following legend shall be put at the top or bottom of the first page or,
in the case of drawings, in the space provided for such legends. The "need
to know" principle shall be the guideline when divulging Proprietary
Information or Sensitive Information internally.
NETWORK SOLUTIONS PROPRIETARY INFORMATION
THE INFORMATION ON THIS DOCUMENT IS PROPRIETARY TO NETWORK SOLUTIONS. IT
MAY NOT BE USED, REPRODUCED OR DISCLOSED WITHOUT THE WRITTEN APPROVAL OF
NETWORK SOLUTIONS.
NETWORK SOLUTIONS REGISTRY SENSITIVE INFORMATION
THE INFORMATION ON THIS DOCUMENT IS PROPRIETARY TO NETWORK SOLUTIONS AND
NETWORK SOLUTIONS' REGISTRY BUSINESS. IT MAY NOT BE USED, REPRODUCED OR
DISCLOSED WITHOUT THE WRITTEN APPROVAL OF THE GENERAL MANAGER OF THE
NETWORK SOLUTIONS REGISTRY BUSINESS.
NETWORK SOLUTIONS REGISTRAR SENSITIVE INFORMATION
THE INFORMATION ON THIS DOCUMENT IS PROPRIETARY TO NETWORK SOLUTIONS AND
NETWORK SOLUTIONS' REGISTRAR BUSINESS. IT MAY NOT BE USED, REPRODUCED OR
DISCLOSED WITHOUT THE WRITTEN APPROVAL OF THE GENERAL MANAGER OF THE
NETWORK SOLUTIONS REGISTRAR BUSINESS.
4.3.2 Documents for External Distribution
A. Reports and Similar Documents
The following legend shall be typed or stamped on the cover and/or
title page of reports or on the face of other documentation provided
to others:
NETWORK SOLUTIONS PROPRIETARY INFORMATION
THIS DOCUMENT IS THE PROPERTY OF NETWORK SOLUTIONS, INC. IT MAY BE
USED BY RECIPIENT ONLY FOR THE PURPOSE FOR WHICH IT WAS TRANSMITTED
AND SHALL BE RETURNED UPON REQUEST OR WHEN NO LONGER NEEDED BY
RECIPIENT. IT MAY NOT BE COPIED OR COMMUNICATED WITHOUT THE PRIOR
WRITTEN CONSENT OF NETWORK SOLUTIONS.
B. Letters
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On letters to outsiders which contain Proprietary Information, the
following statement or equivalent shall appear in the text:
INFORMATION CONTAINED HEREIN IS NETWORK SOLUTIONS PROPRIETARY
INFORMATION AND IS MADE AVAILABLE TO YOU BECAUSE OF YOUR INTEREST IN
OUR COMPANY (OR PROGRAM, ETC.). THIS INFORMATION IS SUBMITTED IN
CONFIDENCE AND ITS DISCLOSURE TO YOU IS NOT INTENDED TO CONSTITUTE
PUBLIC DISCLOSURE OR AUTHORIZATION FOR DISCLOSURE TO OTHER PARTIES.
C. Proposals to Commercial Companies
1.A restrictive legend such as the following shall be placed on
the title page of each volume of the proposal:
NETWORK SOLUTIONS, INC.'S (NSI'S) PROPOSAL, WHICH FOLLOWS,
CONTAINS INFORMATION AND DATA THAT ARE PRIVILEGED AND/OR
CONFIDENTIAL TO NSI. THIS INFORMATION AND DATA ARE NOT MADE
AVAILABLE FOR PUBLIC REVIEW AND ARE SUBMITTED VOLUNTARILY TO XYZ
COMPANY NAME ONLY FOR PURPOSES OF REVIEW AND EVALUATION IN
CONNECTION WITH THIS PROPOSAL. NO OTHER USE OF THE INFORMATION
AND DATA CONTAINED HEREIN IS PERMITTED WITHOUT THE EXPRESS
WRITTEN PERMISSION OF NSI. INFORMATION AND DATA CONTAINED HEREIN
IS PROTECTED BY THE VIRGINIA TRADE SECRETS ACT, AS CODIFIED, AND
ANY IMPROPER USE, DISTRIBUTION, OR REPRODUCTION IS SPECIFICALLY
PROHIBITED. NO LICENSE OF ANY KIND WHATSOEVER IS GRANTED TO ANY
THIRD PARTY TO USE THE INFORMATION AND DATA CONTAINED HEREIN
UNLESS A WRITTEN AGREEMENT EXISTS BETWEEN NSI AND THE THIRD PARTY
WHICH DESIRES ACCESS TO THE INFORMATION AND DATA. UNDER NO
CONDITION SHOULD THE INFORMATION AND DATA CONTAINED HEREIN BE
PROVIDED IN ANY MANNER WHATSOEVER TO ANY THIRD PARTY WITHOUT THE
PRIOR WRITTEN PERMISSION OF NSI. THE DATA SUBJECT TO THIS
RESTRICTION IS CONTAINED IN PAGES ________.
2.Each page of the proposal which contains Proprietary
Information shall be marked as follows:
USE OR DISCLOSURE OF PROPOSAL INFORMATION IS SUBJECT TO THE
RESTRICTION ON THE TITLE PAGE OF THIS PROPOSAL.
D. Proprietary Information Released Pursuant to Contract
When Proprietary Information is exchanged between Network Solutions
and another company, a Confidentiality Agreement or Non-Disclosure
Agreement shall be executed by the parties concerned.
1.The parties will designate in writing one or more individuals
within their own organization as the only person(s) authorized to
receive Proprietary Information exchanged between the parties
pursuant to this Agreement (see Attachment 2 for a sample
agreement).
2.All information which the disclosing party claims as
proprietary shall be
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received in writing, clearly identified as proprietary, and
delivered personally or by mail addressed to individuals
designated above to receive the Proprietary Information.
5. SAFEKEEPING
When not in use, Proprietary Information, Registry Sensitive Information or
Registrar Sensitive Information should be stored in a locked desk, cabinet or
file. Such material should not be left unattended during the workday and should
be turned face down in the presence of visitors or employees who have no need to
know.
6. DESTRUCTION
Burning, shredding or comparable methods should be used for the destruction of
Proprietary Information, Registry Sensitive Information or Registrar Sensitive
Information.
7. TERMINATING EMPLOYEES
Terminating employees should be reminded of their responsibilities and
obligations in protecting Proprietary Information as outlined in Administrative
Policy A-3, "Standards of Business Ethics and Conduct." Permission to retain
such information after termination must be in writing and approved by the
Network Solutions General Counsel prior to removal.
8. THIRD-PARTY PROPRIETARY INFORMATION
Proprietary Information received from other companies through contractual or
pre-contractual relationships will be afforded the same level of protection
given to Network Solutions' Proprietary Information.
9. QUESTIONS
Questions concerning implementation or interpretation of this policy should be
referred to the appropriate General Manager or the General Counsel.
- --------------------------------------------------------------------------------
ATTACHMENT 1
EXAMPLES OF REGISTRY SENSITIVE INFORMATION
A. ENGINEERING INFORMATION
Engineering information, including schematics, code, and engineering notes
should be considered Registry Sensitive Information.
B. STATISTICAL INFORMATION
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Some statistical information will be available for public consumption. Such
information does not require any special treatment, so long as neither the
Network Solutions Registrar nor Registry does not receive any preferential
treatment (e.g., early access to such information). Other statistics, such as
numbers of registrations, transfers, etc., performed by each registrar, as well
as processing times, numbers of failures or any information that is trending
negative or contains negative performance factors not generally available to the
public should be considered either Registry Sensitive Information or Registrar
Sensitive Information, as applicable.
One area of statistical data that is deserving of special attention is Registry
information pertaining to the numbers of registrations, transfers, etc.,
performed by each registrar. All such information is Registry Sensitive
Information and will be treated accordingly. Unless otherwise approved,
registration activity information must be protected from disclosure to any
registrar other than the registrar to which the information refers. Such
protection extends to precluding Network Solutions' Board of Directors, Chief
Executive Officer, Chief Financial Officer, and the General Manager of the
Registrar business from access to Registry Sensitive Information pertaining to
any registrar other than Network Solutions.
C. FINANCIAL INFORMATION
Financial data related to either the NSI Registry or Registrar is Sensitive
Information and will not be released without the express consent of the
applicable General Manager, Chief Executive Officer or Chief Financial Officer
of Network Solutions. Monthly expenses and income shall be kept sensitive and
restricted from disclosure to any party other than the appropriate Registry or
Registrar staff and select members of Network Solutions' senior staff.
- --------------------------------------------------------------------------------
ATTACHMENT 2
NON-DISCLOSURE AGREEMENT
PROPRIETARY INFORMATION
This is an Agreement, effective _______________ __, 199_ between Network
Solutions, Inc. (hereinafter referred to as "NSI") and _________________________
(hereinafter referred to as "_________________"). It is recognized that it may
be necessary or desirable to exchange information between NSI and
_________________ for the purpose of ____________________________
_____________________________________________. With respect to the information
exchanged between the parties subsequent to this date, the parties agree as
follows:
(1) "Proprietary Information" shall include, but not be limited to, performance,
sales, financial, contractual and special marketing information, ideas,
technical data and concepts originated by the disclosing party, not previously
published or otherwise disclosed to the general public, not previously available
without restriction to the receiving party or others, nor normally furnished to
others without compensation, and which the disclosing party desires to protect
against unrestricted disclosure or competitive use, and which is furnished
pursuant to this Agreement and appropriately identified as being proprietary
when furnished.
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(2) In order for proprietary information disclosed by one party to the other to
be protected in accordance with this Agreement, it must be: (a) in writing or in
electronic form; (b) clearly identified as proprietary information at the time
of its disclosure by each page thereof being marked with an appropriate legend
indicating that the information is deemed proprietary by the disclosing party;
and (c) delivered by letter of transmittal, hand delivery, or electronically
transmitted to the individual designated in Paragraph 3 below, or his designee.
Where the proprietary information has not been or cannot be reduced to written
or electronic form at the time of disclosure and such disclosure is made orally
and with prior assertion of proprietary rights therein, such orally disclosed
proprietary information shall only be protected in accordance with this
Non-Disclosure Agreement provided that complete written summaries of all
proprietary aspects of any such oral disclosures shall have been delivered to
the individual identified in Paragraph 3 below, within 20 calendar days of said
oral disclosures. Neither party shall identify information as proprietary which
is not in good faith believed to be confidential, privileged, a trade secret, or
otherwise entitled to such markings or proprietary claims.
(3) In order for either party's proprietary information to be protected as
described herein, it must be submitted in written or electronic form as
discussed in Paragraph 2 above to:
NSI ---------------------------------
Name: James M. Ulam, Esq.
Title: Asst. General Counsel Name:
-------------------------------
Address: 505 Huntmar Park Drive Title:
------------------------------
Herndon, VA 20170 Address:
-----------------------------
Telephone No: (703)742-4737 Telephone No:
-----------------------
FAX No: (703)742-0065 FAX No:
-----------------------------
(4) Each party covenants and agrees that it will keep in confidence, and prevent
the disclosure to any person or persons outside its organization or to any
unauthorized person or persons, any and all information which is received from
the other under this Non-Disclosure Agreement and has been protected in
accordance with paragraphs 2 and 3 hereof; provided however, that a receiving
party shall not be liable for disclosure of any such information if the same:
A. Was in the public domain at the time it was disclosed,
B. Becomes part of the public domain without breach of this Agreement,
C. Is disclosed with the written approval of the other party,
D. Is disclosed after three years from receipt of the information,
E. Was independently developed by the receiving party,
F. Is or was disclosed by the disclosing party to a third party without
restriction, or
G. Is disclosed pursuant to the provisions of a court order.
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As between the parties hereto, the provisions of this Paragraph 4 shall
supersede the provisions of any inconsistent legend that may be affixed to said
data by the disclosing party, and the inconsistent provisions of any such legend
shall be without any force or effect.
Any protected information provided by one party to the other shall be used only
in furtherance of the purposes described in this Agreement, and shall be, upon
request at any time, returned to the disclosing party. If either party loses or
makes unauthorized disclosure of the other party's protected information, it
shall notify such other party immediately and take all steps reasonable and
necessary to retrieve the lost or improperly disclosed information.
(5) The standard of care for protecting Proprietary Information imposed on the
party receiving such information, will be that degree of care the receiving
party uses to prevent disclosure, publication or dissemination of its own
proprietary information, but in no event less than reasonable care.
(6) Neither party shall be liable for the inadvertent or accidental disclosure
of Proprietary Information if such disclosure occurs despite the exercise of the
same degree of care as such party normally takes to preserve its own such data
or information.
(7) In providing any information hereunder, each disclosing party makes no
representations, either express or implied, as to the information's adequacy,
sufficiency, or freedom from defect of any kind, including freedom from any
patent infringement that may result from the use of such information, nor shall
either party incur any liability or obligation whatsoever by reason of such
information, except as provided under Paragraph 4, hereof.
(8) This Non-Disclosure Agreement contains the entire agreement relative to the
protection of information to be exchanged hereunder, and supersedes all prior or
contemporaneous oral or written understandings or agreements regarding this
issue. This Non-Disclosure Agreement shall not be modified or amended, except in
a written instrument executed by the parties.
(9) Nothing contained in this Non-Disclosure Agreement shall, by express grant,
implication, estoppel or otherwise, create in either party any right, title,
interest, or license in or to the inventions, patents, technical data, computer
software, or software documentation of the other party.
(10) Nothing contained in this Non-Disclosure Agreement shall grant to either
party the right to make commitments of any kind for or on behalf of any other
party without the prior written consent of that other party.
(11) The effective date of this Non-Disclosure Agreement shall be the date upon
which the last signatory below executes this Agreement.
(12) This Non-Disclosure Agreement shall be governed and construed in accordance
with the laws of the Commonwealth of Virginia.
(13) This Non-Disclosure Agreement may not be assigned or otherwise transferred
by either party in whole or in part without the express prior written consent of
the other party, which consent shall not unreasonably be withheld. This consent
requirement shall not apply in the event either party shall change its corporate
name or merge with another corporation. This Non-Disclosure Agreement shall
benefit and be binding upon the successors and assigns of the parties hereto.
(14) Both parties agree to take all reasonable precautions to prevent any
trading in Company securities by
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their respective officers, directors, employees and agents having knowledge of
the proposed transaction between the parties until the proposed transaction has
been sufficiently publicly disclosed. The parties understand and agree that
until a press release is issued regarding a proposed transaction between the
parties, neither party will disclose the fact that negotiations are taking
place, except to professional advisors and to employees of the parties on a
need-to-know basis.
(15) It is further understood and agreed that money damages would not be a
sufficient remedy for any breach of this agreement by either party or any of its
representatives and that the non-breaching party shall be entitled to equitable
relief, including injunction and specific performance, as a remedy for any such
breach. Such remedies shall not be deemed to be the exclusive remedies for a
breach of this agreement but shall be in addition to all other remedies
available at law or equity. In the event of litigation relating to this
agreement, if a court of competent jurisdiction determines that either party or
any of its representatives have breached this agreement, then the breaching
party shall be liable and pay to the non-breaching party the reasonable legal
fees incurred in connection with such litigation, including an appeal therefrom.
Network Solutions, Inc.
By: By:
-------------------------- ------------------------------
Name: Name:
-------------------------- -----------------------------
Title: Title:
------------------------- ----------------------------
Date: Date:
-------------------------- ----------------------------
- --------------------------------------------------------------------------------
EXHIBIT B
NON-DISCLOSURE AGREEMENT
I understand I am an employee assigned to the Registry business of Network
Solutions, Inc. ("Network Solutions") or another employee who has a need to know
information related to the Registry Business of Network Solutions which is
proprietary, confidential or business sensitive, belonging to the Registry
Business of Network Solutions, other companies or customers of the Registry
Business ("Need to Know Employee"). I agree not to disclose or otherwise
disseminate such information to anyone other than Need to Know Employees, except
as directed, in writing, by the General Manager of the Registry Business or
his/her designee. This prohibition is specifically intended to prevent the
disclosure of any such information to Network Solutions' Registrar-assigned
personnel. I UNDERSTAND THAT DISCLOSURE OF SUCH INFORMATION TO ANYONE OTHER THAN
A NEED TO KNOW EMPLOYEE OR USE OF SUCH INFORMATION COULD RESULT IN PERSONAL
LIABILITY FOR SUCH UNAUTHORIZED USE OR DISCLOSURE.
I agree to use such proprietary, confidential and/or business sensitive
information only in the performance of requirements necessary to carry out my
duties as a Need to Know Employee , and I agree to take suitable precautions to
prevent the use or disclosure of such information to any party, other than Need
to Know Employees. I will report to the General Manager of the Registry Business
or his/her designee any
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potential violation of this agreement. I further agree to surrender any and all
data and information, of any type whatsoever, to the General Manager of the
Network Solutions Registry Business or his/her designee upon the termination of
my employment as an employee of Network Solutions, or my assignment with the
Network Solutions Registry Business.
I certify that I have read and fully understand this Non-Disclosure Agreement
and agree to abide by all requirements contained herein. I understand that my
strict compliance is essential to Network Solutions Registry Business, and any
violation of these requirements may result in termination of my employment.
Agreed to: Verified:
------------------------ --------------------------
Employee General Manager, Registry
Date Date
- --------------------------------------------------------------------------------
EXHIBIT C
REGISTRY BUSINESS ORGANIZATIONAL
CONFLICT OF INTEREST AVOIDANCE CERTIFICATION
I hereby certify that I have received training in and understand the
requirements of conflict of interest issues and the requirements of the
Organizational Conflict of Interest Compliance Plan of the Registry Business of
Network Solutions, Inc. I certify that I will strictly comply with the
provisions of this Plan. I understand my obligation to (i) refrain from any
activities which could pose a personal conflict of interest and (ii) report to
the General Manager of the Registry Business, any conflict, whether personal or
organizational, which is perceived or identified during the course of my
employment with the Registry Business.
CERTIFIED
---------------------------------
signature date
---------------------------------
name
- --------------------------------------------------------------------------------
PAGE MODIFIED 28-SEPTEMBER-1999
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EXHIBIT 99.6
[NETWORK SOLUTIONS LOGO]
TENTATIVE AGREEMENTS AMONG ICANN, THE U.S.
DEPARTMENT OF COMMERCE, AND NETWORK SOLUTIONS, INC.
(Posted September 28, 1999)
- --------------------------------------------------------------------------------
[NOTE: ICANN HAS POSTED THE FOLLOWING DOCUMENT FOR PUBLIC REVIEW AND COMMENT. TO
SUBMIT COMMENTS, CLICK HERE.]
- --------------------------------------------------------------------------------
MEMORANDUM OF UNDERSTANDING (MOU) BETWEEN THE DEPARTMENT OF COMMERCE (DOC) AND
THE INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS (ICANN)
AMENDMENT 1
Pursuant to the Memorandum of Understanding (MOU) between the Department of
Commerce (DOC) and the Internet Corporation for Assigned Names and Numbers
(ICANN), dated November 25, 1998, the Parties hereby agree to adopt the
following terms as contemplated in Section V of the MOU:
1. The Agreement entitled "Registry Agreement" between ICANN and Network
Solutions, Inc. (NSI) dated ________ and relating to the provision of registry
services for the .com, .net and .org TLDs is hereby approved by the DOC. ICANN
will not enter into any amendment of, or substitute for, said agreement, nor
will said agreement be assigned by ICANN, without the prior approval of DOC.
2. ICANN shall not enter into any agreement with any successor registry to NSI
for the .com, .net. and .org TLDs without the prior approval by DOC of the
successor registry and the provisions of the agreement between the registry and
ICANN.
3. ICANN agrees that, in the event of the termination by DOC of the Cooperative
Agreement pursuant to Section 1.B.8 of their agreement, ICANN shall (1) exercise
its rights under its Registry Agreement with NSI to terminate NSI as the
operator of the registry database for .com, .net and .org and (2) cooperate with
the Department to facilitate the transfer of those registry operations to a
successor registry.
4. In the event that the DOC, pursuant to the terms of the Registry Agreement
between ICANN and NSI, approves the assignment of that agreement by ICANN to
another non-profit entity, that new entity shall also be required to agree to be
bound by this Agreement, and that entity shall succeed to the duties,
obligations and benefits of this Agreement, and shall be recognized by DOC as
the "NewCo" identified in Amendment 11 to the Cooperative Agreement and Section
I.B.1 of Amendment 19 of the Cooperative Agreement.
5. If DOC withdraws its recognition of ICANN or any successor entity by
terminating this Agreement, ICANN agrees that it will assign to DOC any rights
that ICANN has in all existing contracts with registries and
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registrars.
---------------------------- ------------------------------
Michael R. Roberts J. Beckwith Burr
Interim President and CEO Assistant Administrator
Internet Corporation for Assigned National Telecommunications and
Names and Numbers Information Administration
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PAGE MODIFIED 28-SEPTEMBER-1999
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EXHIBIT 99.7
FACT SHEET
The resolution of issues among the Department of Commerce, the Internet
Corporation for Assigned Names and Numbers (ICANN), and Network Solutions, Inc.
(NSI) is embodied in five agreements (and the appendices to those agreements):
- Registry Agreement between ICANN and NSI
- revised Registrar Accreditation Agreement between ICANN and all
registrars registering names in the .com, .net., and .org domains
- revised, post-testbed Registrar License and Agreement between NSI and
all registrars registering names in the .com, .net., and .org domains
(the license for the Shared Registration System and related purposes)
- an amendment to the Cooperative Agreement between the Department of
Commerce and NSI
- an amendment to the Memorandum of Understanding between the Department
of Commerce and ICANN
The Department of Commerce and NSI have endorsed the package of agreements.
ICANN's endorsement is subject to consideration of public comments. The
agreements will be posted on ICANN's website today
(www.icann.org/agreements.htm), and ICANN will receive comments for the next
thirty days. The ICANN Board expects to make a final determination regarding
this matter at its meeting on November 4, 1999. The agreements will also be
posted on the NTIA website at www.ntia.doc.gov and on NSI's website at
www.networksolutions.com. Because the agreements are interrelated and together
resolve the broad array of outstanding issues, the package of agreements will
not be entered into until after the ICANN Board's final decision. The Department
of Commerce and NSI have agreed to extend the testbed period until November 5,
1999, to allow for ICANN's public comment process.
Following is a summary of the key issues addressed in these agreements:
OPERATION OF REGISTRY FOR .COM, .NET, AND .ORG DOMAINS
- NSI will recognize ICANN and agree to operate the registry in accordance
with provisions of the Registry Agreement between ICANN and NSI and the
policies established by ICANN in accordance with the terms of that
agreement.
- Beginning January 15, 2000, NSI as registry will charge registrars $6
per registration-year for the remainder of the term of the Registry
Agreement. (The fee will remain at $9 until January 15, 2000.) The fee
may be increased to cover increases in the registry's net costs
resulting from ICANN policies or from legislation specifically
applicable to the provision of registry services.
- NSI will agree to use its best commercial efforts to implement by
January 15, 2000 modifications to the Shared Registration System that
will (a) enable a registrar to accept registrations and renewals in
one-year increments; and (b) enable a registrar to add one year to a
registrant's registration period upon transfer of a registration from
one registrar to another.
- NSI will be contractually obligated to provide equivalent access to the
Shared Registration System to all registrars accredited by ICANN
(including NSI acting as a registrar) and to ensure that the revenues
and assets of the registry are not utilized to advantage NSI's registrar
activities to the detriment of other registrars.
- The term of the Registry Agreement is four years from its signing. If
ownership of NSI's registry and registrar operations is fully separated
within 18 months, and the registry functions are performed by an entity
that is not affiliated with a registrar and promises never to affiliate
with a registrar, the term would be extended for four additional years.
Department of Commerce approval is required for the transfer of NSI's
registry operations and for the designation of a successor registry by
ICANN.
- Upon the expiration of the agreement, ICANN will conduct a process for
selecting a successor registry, in which NSI may
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compete on an equal basis. If, during the term of the registry agreement, NSI
fails to remedy its breach of the registry agreement it may be terminated as the
registry for .com, .net, and .org.
- NSI will continue to provide third parties bulk access to TLD zone
files.
- The Registrar License and Agreement has been modified to reflect various
suggestions made by registrars during the testbed phase.
- NSI will be entitled to establish its own prices for registrar services
(the Cooperative Agreement currently requires NSI to charge $35 per year
for those services).
EXERCISE OF ICANN'S AUTHORITY
- ICANN will be contractually obligated, to the registry and to all
accredited registrars, to comply with specified procedural requirements
governing the exercise of its authority. These include (a) definition of
the consensus required for action by ICANN and specification of the
procedure for reviewing ICANN's determination that a consensus exists;
(b) a commitment to open, transparent, and pro-competitive processes;
and (c) a prohibition against arbitrary, unjustifiable, or inequitable
actions.
- The agreements explicitly define the subjects within the scope of
ICANN's authority with respect to both the registry and registrars.
- ICANN's authority to set policy for the registry may be terminated if
(a) ICANN breaches the Registry Agreement and fails to remedy that
breach; (b) the Department of Commerce withdraws its recognition of
ICANN; or (c) the Department of Commerce concludes that ICANN has not
made sufficient progress towards entering into agreements with other
registries and NSI is competitively disadvantaged. In the event ICANN's
authority is terminated, the Department of Commerce will assume the
policy-setting function for registry services for the .com, .net and
.org top level domains. The same provisions regarding the term of the
Registry Agreement will apply under Department of Commerce supervision.
ICANN FUNDING
- Registrar fees must be equitably apportioned and approved by registrars
that account for payment of two-thirds of registrar fees. NSI has agreed
that it will approve an ICANN registrar fee policy so long as its share
of the registrar fees does not exceed $2 million.
- gTLD registry fees must be equitably apportioned among gTLD registries.
NSI has agreed to pay up to $250,000 in gTLD registry fees. Any gTLD fee
structure that requires a higher payment by NSI must be approved by
registries accounting for two-thirds of the gTLD registry fees.
- Upon signing of the agreements, NSI would prepay $1.25 million towards
its share of ICANN fees.
WHOIS DATA
- All accredited registrars would be obligated to provide query-based
access to registration data and would be barred from placing conditions
upon any legal use of that data, except to prohibit use of the data to
enable the transmission of mass unsolicited commercial solicitations via
e-mail (spam) and to enable high-speed processes for applying for
registrations.
- All accredited registrars also would be required to provide third-party
bulk access to registration data (subject to the restrictions discussed
above) for an annual fee that may not exceed $10,000. This obligation
would remain in effect until it is replaced by a different policy
adopted by ICANN or a finding by the Department of Commerce that no
individual or entity is able to exercise market power with respect to
data used for development of third-party value added products and
services.
INTERNIC
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- Within six months, the InterNIC website (as well as the internic.com,
internic.org, and internic.net domain names) will be transferred to the
Department of Commerce.
- Until the transfer is completed, NSI will maintain the internic.net
website as a public information site with a directory of accredited
registrars for .com, .net, and .org, with hotlinks to those registrars.
- Within nine months, NSI will modify all of its registration templates
and otherwise migrate from the use of the term "InterNIC," or Internet
addresses that reflect the term "InterNIC."
MANAGEMENT OF THE AUTHORITATIVE ROOT SERVER
Nothing in these agreements affects the current arrangements regarding
management of the authoritative root server. NSI will continue to manage
the authoritative root server in accordance with the direction of the
Department of Commerce. The Department of Commerce expects to receive a
technical proposal from ICANN for management of the authoritative root and
this management responsibility may be transferred to ICANN at some point in
the future. The Department of Commerce has no plans to transfer to any
entity its policy authority to direct the authoritative root server.
* * * * *
BACKGROUND
On July 1, 1997, President Clinton issued A Framework for Global Electronic
Commerce and directed the Secretary of Commerce to privatize the management of
the domain name system ("DNS") in a manner that increases competition and
facilitates international participation in its management. Following an
extensive public consultation process, the Department of Commerce on June 8,
1998, issued a Statement of Policy entitled Management of Internet Names and
Addresses (the "White Paper"). The White Paper called upon the private sector to
create a new, not-for-profit corporation to assume responsibility, over time,
for the management of certain aspects of the domain name system. The White Paper
also articulated the fundamental policies that would guide United States
participation in the transfer of DNS management responsibility to the private
sector: stability; competition; private, bottom-up coordination; and
representation.
In October 1998, the Department of Commerce and NSI amended the Cooperative
Agreement to facilitate the stable evolution of the domain name system in
accordance with the White Paper and to introduce competition into the provision
of registrar services in the .com, .net and .org domains. In November 1998, the
Department of Commerce entered into a Memorandum of Understanding with ICANN for
collaborative development and testing of the mechanisms, methods, and procedures
necessary to transition management responsibility for specific DNS functions to
the private sector.
Pursuant to the provisions of the amended Cooperative Agreement, NSI developed
the Shared Registration System, which allows multiple registrars to submit
domain name registrations to the registry for the .com, .net, and .org domains.
On April 21, 1999, ICANN selected five Accredited Registrars to participate in
Phase I testing of the SRS. The test period has been extended several times and
has been opened to all registrars accredited by ICANN. Currently, there are 76
registrars accredited by ICANN. Of these, 29 have obtained the SRS software from
NSI; 13 have been certified to begin operations; and 11 are actively registering
domain names.
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