<PAGE> 1
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: November 10, 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
<PAGE> 2
ITEM 5. OTHER EVENTS.
On November 10, 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 ("ICANN") executed a series of
wide-ranging agreements to help 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 DoC and Network
Solutions;
- An amendment to the Memorandum of Understanding between DoC and ICANN; and
- A transition agreement between ICANN and Network Solutions.
(collectively, the "Agreements").
A copy of the Company's press release, dated November 4, 1999, 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.
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
privatization, governance and regulation, 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 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, June 30, and
September 30, 1999.
<PAGE> 3
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
99.1 Text of Press Release dated November 4, 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 DoC and
Network Solutions
99.6 Amendment 1 to the Memorandum of Understanding between DoC and ICANN
99.7 Transition Agreement between ICANN and Network Solutions
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: November 29, 1999 By: /s/ ROBERT J. KORZENIEWSKI
-----------------------------
Robert J. Korzeniewski
Chief Financial Officer
<PAGE> 4
NETWORK SOLUTIONS, INC.
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Description
------- -----------
<S> <C>
99.1 Text of Press Release dated November 4, 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 DoC and
Network Solutions
99.6 Amendment 1 to the Memorandum of Understanding between DoC and ICANN
99.7 Transition Agreement between ICANN and Network Solutions
</TABLE>
<PAGE> 1
NETWORK SOLUTIONS ENDORSES ICANN BOARD VOTE
AGREEMENT AFFIRMS STABLE AND SECURE MANAGEMENT
FOR INTERNET'S KEY INFRASTRUCTURE
LOS ANGELES, NOVEMBER 4, 1999 - Network Solutions, Inc. (NASDAQ: NSOL) today
acknowledged the Internet Corporation for Assigned Names and Numbers (ICANN)
board vote approving and affirming the September 28, 1999 agreements among
Network Solutions (NSI), the U.S. Department of Commerce and ICANN following a
30-day comment period and open public sessions held here.
"We are pleased with the ICANN board vote that we believe is in the best
interests of the Internet community, Network Solutions, the U.S. Government and
ICANN," said Michael A. Daniels, Network Solutions' chairman. "Through
negotiations leading to these agreements we have set the foundation for ICANN as
a standards-setting body that will have a significant role in coordination of
key infrastructure issues and that will ensure the future growth of global
e-commerce. We look forward to working with ICANN and the Internet community as
NSI takes a leadership role in shaping the continued coordination and management
of these key issues."
The agreements were posted for a 30-day public comment period on the ICANN Web
site at http://www.icann.org prior to the ICANN board's final approval today.
"These historic agreements are both a beginning and an end. They bring an end to
the uncertainty that has surrounded the policies of the critical components of
the Net's infrastructure, and they also are the green light for a whole host of
new competitors, services and products in the Internet identity marketplace,"
said Jim Rutt, Network Solutions' CEO. "We are confident that our position will
enable us to grow the company's core business while at the same time to offer an
increasing variety of value-added services through our Registrar and new
services from our Registry business."
The agreements consist of: (1) a Registry Agreement between ICANN and NSI; (2) a
Registrar Accreditation Agreement between ICANN and all registrars in .com,
.net, and .org; (3) a post-testbed Registrar License and Agreement between NSI
as registry and registrar; (4) an amendment to the Cooperative Agreement between
the Department of Commerce and NSI; and (5) an amendment to the Memorandum of
Understanding between the Department of Commerce and ICANN.
Among the key provisions set forth in the agreements are:
- NSI will recognize ICANN and agree to operate the .com, .net and .org
registries in accordance with the Registry Agreement between ICANN and NSI
and future consensus policies adopted by ICANN
- NSI agrees to become an ICANN accredited registrar for the .com, .net and
.org domains. The ICANN accreditation agreement has been revised to include
improvements suggested by registrars during the testbed phase
- NSI has agreed to participate in the funding of ICANN through registry and
registrar fees, provided that they are equitably apportioned
- All accredited registrars (including NSI) will provide continued methods
for public access to "Whois" data
- The InterNIC Web site will be maintained as a public information site with
a directory of links to accredited registrars
<PAGE> 2
ABOUT ICANN
The Internet Corporation for Assigned Names and Numbers (ICANN) is the
non-profit corporation that was formed to assume responsibility for the IP
address space allocation, protocol parameter assignment, and domain name system
management functions now performed under U.S. Government contract by IANA and
other entities.
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 6.5 million
net registrations. Network Solutions registers the majority of Web addresses
worldwide through various channels including nearly 220 companies in over 30
countries 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
like Yahoo! Inc. (NASDAQ: YHOO).
For Network Solutions, Media: Brian O'Shaughnessy, [email protected], (703)
326-6076; Investor Relations: Sean McClorey, [email protected], (703)
326-6090.
For IBM Global Services Media: Rusty Carpenter [email protected] , (813)
293-2554.
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.
<PAGE> 1
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 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.
ICANN/Network Solutions, Inc.
Registry Agreement--
Appendix 1 to Amendment 19 to
NSI/USG Cooperative Agreement
-15-
<PAGE> 2
(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.
ICANN/Network Solutions, Inc.
Registry Agreement--
Appendix 1 to Amendment 19 to
NSI/USG Cooperative Agreement
-16-
<PAGE> 3
6. "NSI" refers to Network Solutions, Inc., in its capacity as a
domain name registry for the Registry TLDs, a 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(B), 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
ICANN/Network Solutions, Inc.
Registry Agreement--
Appendix 1 to Amendment 19 to
NSI/USG Cooperative Agreement
-17-
<PAGE> 4
terminated (A) under Section 14 or 16(B) 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;
(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
ICANN/Network Solutions, Inc.
Registry Agreement--
Appendix 1 to Amendment 19 to
NSI/USG Cooperative Agreement
-18-
<PAGE> 5
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);
(iv) the allocation among continuing registrars of
the SLD names sponsored in the registry by a registrar losing
accreditation; and
(v) dispute resolution policies that take into
account the use of a domain name.
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
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.
ICANN/Network Solutions, Inc.
Registry Agreement--
Appendix 1 to Amendment 19 to
NSI/USG Cooperative Agreement
-19-
<PAGE> 6
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 web page and a port 43
Whois service providing free public query-based access to up-to-date
(i.e. updated at least daily) registry database data which, in response
to input of an SLD name, shall report at
ICANN/Network Solutions, Inc.
Registry Agreement--
Appendix 1 to Amendment 19 to
NSI/USG Cooperative Agreement
-20-
<PAGE> 7
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), 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. Such temporary limitations shall be applied in a
nonarbitrary manner and shall apply fairly to any registrar similarly
situated, including NSI.
(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.
ICANN/Network Solutions, Inc.
Registry Agreement--
Appendix 1 to Amendment 19 to
NSI/USG Cooperative Agreement
-21-
<PAGE> 8
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 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 Amendment 19 to 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.
ICANN/Network Solutions, Inc.
Registry Agreement--
Appendix 1 to Amendment 19 to
NSI/USG Cooperative Agreement
-22-
<PAGE> 9
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 be approved in advance by ICANN. Such agreement shall also be
revised to incorporate any Registry Service Level Agreement implemented under
Section 18.
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 and any Registry Service Level Agreement established according to
this Section 18. 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
ICANN/Network Solutions, Inc.
Registry Agreement--
Appendix 1 to Amendment 19 to
NSI/USG Cooperative Agreement
-23-
<PAGE> 10
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
different functional standards before 3 years from the Effective Date of this
Agreement.
Within 45 days after the Effective Date, (i) representatives
designated by ICANN of registrars accredited by ICANN for the Registry TLDs and
(ii) NSI will establish a Registry Service Level Agreement for the registry
system that shall include, at least:
(A) identified service level parameters and measurements
regarding performance of the registry system, including, for example,
system availability;
(B) responsibilities of registrars using the registry system
and NSI (e.g., the obligation of the registrars to notify NSI of any
experienced registry system outages and the obligation of NSI to
respond in a timely manner to registry system outages);
(C) an appropriate service-level dispute-resolution process;
and
(D) remedies for failure to comply with the Registry Service
Level Agreement.
Unless the Registry Service Level Agreement requires fundamental
architecture changes to the registry system or extraordinary increases in costs
to NSI beyond what is generally required to implement a service level agreement
(which is not the intent of the parties) the creation and implementation of the
Registry Service Level Agreement shall not result in a price increase under
Section 20.
The 45-day drafting process for the Registry Service Level Agreement
shall be structured as follows: (E) the designated representatives and NSI (the
"SLA Working Group") shall promptly meet and shall within 20 days after the
Effective Date complete a draft of the Registry Service Level Agreement; (F)
all registrars accredited by ICANN for the Registry TLDs shall have 10 days
after distribution of that draft to submit comments to the SLA Working Group;
and (G) the SLA Working Group shall meet again to finalize the Registry Service
Level Agreement, taking into account the comments of the registrars. The 45-day
period shall be subject to extension by mutual agreement of the members of the
SLA Working Group. The SLA shall be implemented as soon as reasonably feasible
after its completion and approval by ICANN, including by implementation in
stages if appropriate.
After it is approved by the SLA Working Group and ICANN, the Registry
Service Level Agreement shall be incorporated in the NSI/Registrar License and
Agreement referred to in Section 17.
ICANN/Network Solutions, Inc.
Registry Agreement--
Appendix 1 to Amendment 19 to
NSI/USG Cooperative Agreement
-24-
<PAGE> 11
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 the Registrar License and
Agreement (attached as Appendix B). 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 cooperate with ICANN and with the
Successor Registry in
ICANN/Network Solutions, Inc.
Registry Agreement--
Appendix 1 to Amendment 19 to
NSI/USG Cooperative Agreement
-25-
<PAGE> 12
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.
ICANN/Network Solutions, Inc.
Registry Agreement--
Appendix 1 to Amendment 19 to
NSI/USG Cooperative Agreement
-26-
<PAGE> 13
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(B), 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 10, 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 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
ICANN/Network Solutions, Inc.
Registry Agreement--
Appendix 1 to Amendment 19 to
NSI/USG Cooperative Agreement
-27-
<PAGE> 14
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.
ICANN/Network Solutions, Inc.
Registry Agreement--
Appendix 1 to Amendment 19 to
NSI/USG Cooperative Agreement
-28-
<PAGE> 15
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.
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: /s/ MICHAEL M. ROBERTS
--------------------------------
Michael M. Roberts
President and CEO
Date: November 10, 1999
NETWORK SOLUTIONS, INC.
By: /s/ JONATHAN W. EMERY
--------------------------------
Jonathan W. Emery
Senior Vice President, General
Counsel & Secretary
Date: November 10, 1999
ICANN/Network Solutions, Inc.
Registry Agreement--
Appendix 1 to Amendment 19 to
NSI/USG Cooperative Agreement
-29-
<PAGE> 1
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 Corporation for Assigned Names and Numbers, a not-for-profit
corporation, and Network Solutions, Inc. ("Registrar"), a Delaware corporation,
and shall be deemed made on November 10, 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.
ICANN/Network Solutions, Inc.
Registrar Accreditation Agreement--
Appendix 2 to Amendment 19 to
NSI/USG Cooperative Agreement
-29-
<PAGE> 2
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.
ICANN/Network Solutions, Inc.
Registrar Accreditation Agreement--
Appendix 2 to Amendment 19 to
NSI/USG Cooperative Agreement
-30-
<PAGE> 3
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 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 Section I.B.1. If the standard
set forth in Section I.B.1 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."
5. For all purposes under this Agreement, the policies specifically
identified by ICANN on its website
(www.icann.org/general/consensus-policies.htm) 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" and accordingly shall
not be subject to review under Section I.B.2.
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.
ICANN/Network Solutions, Inc.
Registrar Accreditation Agreement--
Appendix 2 to Amendment 19 to
NSI/USG Cooperative Agreement
-31-
<PAGE> 4
H. The word "Registrar," when appearing with an initial capital letter, refers
to Network Solutions, Inc., 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 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;
ICANN/Network Solutions, Inc.
Registrar Accreditation Agreement--
Appendix 2 to Amendment 19 to
NSI/USG Cooperative Agreement
-32-
<PAGE> 5
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 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;
ICANN/Network Solutions, Inc.
Registrar Accreditation Agreement--
Appendix 2 to Amendment 19 to
NSI/USG Cooperative Agreement
-33-
<PAGE> 6
v. the transfer of registration data upon a change in
registrar sponsoring the registration; and
vi. dispute resolution policies that take into account the
use of a domain name.
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 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
ICANN/Network Solutions, Inc.
Registrar Accreditation Agreement--
Appendix 2 to Amendment 19 to
NSI/USG Cooperative Agreement
-34-
<PAGE> 7
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 an interactive web page and
a port 43 Whois service providing free public query-based access to
up-to-date (i.e. updated at least daily) 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.
ICANN/Network Solutions, Inc.
Registrar Accreditation Agreement--
Appendix 2 to Amendment 19 to
NSI/USG Cooperative Agreement
-35-
<PAGE> 8
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 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.
ICANN/Network Solutions, Inc.
Registrar Accreditation Agreement--
Appendix 2 to Amendment 19 to
NSI/USG Cooperative Agreement
-36-
<PAGE> 9
f. Registrar may enable SLD holders who are individuals to
elect not to have Personal Data concerning their
registrations available for bulk access for marketing
purposes based on Registrar's "Opt-Out" policy, and if
Registrar has such a policy Registrar shall 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 for marketing purposes 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 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.
ICANN/Network Solutions, Inc.
Registrar Accreditation Agreement--
Appendix 2 to Amendment 19 to
NSI/USG Cooperative Agreement
-37-
<PAGE> 10
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 Section 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 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.
ICANN/Network Solutions, Inc.
Registrar Accreditation Agreement--
Appendix 2 to Amendment 19 to
NSI/USG Cooperative Agreement
-38-
<PAGE> 11
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 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
ICANN/Network Solutions, Inc.
Registrar Accreditation Agreement--
Appendix 2 to Amendment 19 to
NSI/USG Cooperative Agreement
-39-
<PAGE> 12
problems that arise in connection with the SLD. An SLD holder
licensing use of an SLD according to this provision shall
accept liability for harm caused by wrongful use of the SLD,
unless it promptly discloses the identity of the licensee to
a party providing the SLD holder reasonable evidence of
actionable harm.
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.
ICANN/Network Solutions, Inc.
Registrar Accreditation Agreement--
Appendix 2 to Amendment 19 to
NSI/USG Cooperative Agreement
-40-
<PAGE> 13
i. The SLD holder shall agree that its registration of the
SLD name shall be subject to 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).
ICANN/Network Solutions, Inc.
Registrar Accreditation Agreement--
Appendix 2 to Amendment 19 to
NSI/USG Cooperative Agreement
-41-
<PAGE> 14
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 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.
ICANN/Network Solutions, Inc.
Registrar Accreditation Agreement--
Appendix 2 to Amendment 19 to
NSI/USG Cooperative Agreement
-42-
<PAGE> 15
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 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.
ICANN/Network Solutions, Inc.
Registrar Accreditation Agreement--
Appendix 2 to Amendment 19 to
NSI/USG Cooperative Agreement
-43-
<PAGE> 16
O. Term of Agreement; Renewal; Right to Substitute Updated Agreement. This
Agreement shall have an initial term until November 9, 2004, 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
Sections 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
ICANN/Network Solutions, Inc.
Registrar Accreditation Agreement--
Appendix 2 to Amendment 19 to
NSI/USG Cooperative Agreement
-44-
<PAGE> 17
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.
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
ICANN/Network Solutions, Inc.
Registrar Accreditation Agreement--
Appendix 2 to Amendment 19 to
NSI/USG Cooperative Agreement
-45-
<PAGE> 18
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:
Network Solutions, Inc.
505 Huntmar Park Drive
Herndon, Virginia 20170
Telephone: 1/703/742-4889
Facsimile: 1/703/742-8706
Attn: David Graves, Director, Business Affairs (acting)
With a copy to:
Network Solutions, Inc.
505 Huntmar Park Drive
Herndon, Virginia 20170
Telephone: 1/703/742-0400
Facsimile: 1/703/742-3386
Attn: General Counsel
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.
ICANN/Network Solutions, Inc.
Registrar Accreditation Agreement--
Appendix 2 to Amendment 19 to
NSI/USG Cooperative Agreement
-46-
<PAGE> 19
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: /s/ MICHAEL M. ROBERTS
--------------------------------
Michael M. Roberts
President and CEO
NETWORK SOLUTIONS, INC.
By: /s/ JONATHAN W. EMERY
--------------------------------
Jonathan W. Emery
Senior Vice President, General
Counsel & Secretary
ICANN/Network Solutions, Inc.
Registrar Accreditation Agreement--
Appendix 2 to Amendment 19 to
NSI/USG Cooperative Agreement
-47-
<PAGE> 1
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.
1.4. The "System" refers to the multiple registrar system developed by
NSI for registration of second-leveldomain 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
-64-
Registrar License and Agreement--
Appendix 5 to Amendment 19 to
NSI/USG Cooperative Agreement
<PAGE> 2
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.
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.
In no event shall the total unexpired term of a registration exceed ten (10)
years.
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 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
secondary nameserver(s) for the SLD;
-65-
Registrar License and Agreement--
Appendix 5 to Amendment 19 to
NSI/USG Cooperative Agreement
<PAGE> 3
2.5.3. The corresponding host names of those
nameservers;
2.5.4. Unless automatically generated by the
registry system, the identity of the registrar;
2.5.5. Unless automatically generated by the
registry system, the expiration date of the registration; and
2.5.6. Other data required as a result of further
development of the registry system by the Registry.
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
-66-
Registrar License and Agreement--
Appendix 5 to Amendment 19 to
NSI/USG Cooperative Agreement
<PAGE> 4
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 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
-67-
Registrar License and Agreement--
Appendix 5 to Amendment 19 to
NSI/USG Cooperative Agreement
<PAGE> 5
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) 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.
-68-
Registrar License and Agreement--
Appendix 5 to Amendment 19 to
NSI/USG Cooperative Agreement
<PAGE> 6
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,
Virginia 20170 or by wire transfer to Bank of America, for the credit of
Network Solutions, Inc., Account #004112889843, ABA # 051000017, 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.
-69-
Registrar License and Agreement--
Appendix 5 to Amendment 19 to
NSI/USG Cooperative Agreement
<PAGE> 7
(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 an 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, provided that
in no event shall the total unexpired term of a registration exceed ten (10)
years. 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 five (5) 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 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 Registrar
may, at its option exercised within fifteen (15) days, 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
-70-
Registrar License and Agreement--
Appendix 5 to Amendment 19 to
NSI/USG Cooperative Agreement
<PAGE> 8
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, 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 2.14 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.
-71-
Registrar License and Agreement--
Appendix 5 to Amendment 19 to
NSI/USG Cooperative Agreement
<PAGE> 9
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, by e-mail or
by telecopier during business hours) to
-72-
Registrar License and Agreement--
Appendix 5 to Amendment 19 to
NSI/USG Cooperative Agreement
<PAGE> 10
the address or telecopier number set forth beneath 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
E-mail: [email protected]
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
-73-
Registrar License and Agreement--
Appendix 5 to Amendment 19 to
NSI/USG Cooperative Agreement
<PAGE> 11
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.
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
-74-
Registrar License and Agreement--
Appendix 5 to Amendment 19 to
NSI/USG Cooperative Agreement
<PAGE> 12
Agreement will continue to be, accredited by ICANN or its successor, pursuant
to an accreditation agreement dated after November 4, 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, 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
-75-
Registrar License and Agreement--
Appendix 5 to Amendment 19 to
NSI/USG Cooperative Agreement
<PAGE> 13
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
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. [Registrar]
By:________________________________ By:________________________________
Name:______________________________ Name:______________________________
Title:_____________________________ Title:_____________________________
-76-
Registrar License and Agreement--
Appendix 5 to Amendment 19 to
NSI/USG Cooperative Agreement
<PAGE> 14
EXHIBIT A
REGISTRAR'S DISPUTE POLICY
[TO BE SUPPLIED FROM TIME TO TIME BY REGISTRAR]
-77-
Registrar License and Agreement--
Appendix 5 to Amendment 19 to
NSI/USG Cooperative Agreement
<PAGE> 15
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 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:
-78-
Registrar License and Agreement--
Appendix 5 to Amendment 19 to
NSI/USG Cooperative Agreement
<PAGE> 16
(1) has been obtained from the SLD holder listed in
the database of the losing the requisite
authorization 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
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 e-mail 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 e-mail 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.
-79-
Registrar License and Agreement--
Appendix 5 to Amendment 19 to
NSI/USG Cooperative Agreement
<PAGE> 17
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.
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,
-80-
Registrar License and Agreement--
Appendix 5 to Amendment 19 to
NSI/USG Cooperative Agreement
<PAGE> 18
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 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.
-81-
Registrar License and Agreement--
Appendix 5 to Amendment 19 to
NSI/USG Cooperative Agreement
<PAGE> 19
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.
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.
-82-
Registrar License and Agreement--
Appendix 5 to Amendment 19 to
NSI/USG Cooperative Agreement
<PAGE> 20
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:_________________________
-83-
Registrar License and Agreement--
Appendix 5 to Amendment 19 to
NSI/USG Cooperative Agreement
<PAGE> 1
<TABLE>
<S> <C>
-------------------------------------------------------------------------------------------------------------------------------
FORM CD-451 U.S. DEPARTMENT OF COMMERCE [ ] GRANT X COOPERATIVE AGREEMENT
(REV 10/98
---------------------------------------------
ACCOUNTING CODE
AMENDMENT TO
FINANCIAL ASSISTANCE AWARD N/A
---------------------------------------------
AWARD NUMBER
NCR 92-18742
-------------------------------------------------------------------------------------------------------------------------------
RECIPIENT NAME AMENDMENT NUMBER
Network Solutions, Incorporated Nineteen (19)
-------------------------------------------------------------------------------------------------------------------------------
STREET ADDRESS EFFECTIVE DATE
505 Huntmar Park Drive November 10, 1999
-------------------------------------------------------------------------------------------------------------------------------
CITY, STATE, ZIP CODE EXTEND WORK COMPLETION TO
Herndon, Virginia 22070 November 10, 2003
-------------------------------------------------------------------------------------------------------------------------------
CFDA NO. AND PROJECT TITLE
11. - National Telecommunications and Information Administration
-------------------------------------------------------------------------------------------------------------------------------
COSTS ARE REVISED PREVIOUS ADD DEDUCT TOTAL
AS FOLLOWS: N/A ESTIMATED COST ESTIMATED COST
-------------------------------------------------------------------------------------------------------------------------------
FEDERAL SHARE OF COST
$ $ $ $
-------------------------------------------------------------------------------------------------------------------------------
RECIPIENT SHARE OF COST
$ $ $ $
-------------------------------------------------------------------------------------------------------------------------------
TOTAL ESTIMATED COST
$ $ $ $
-------------------------------------------------------------------------------------------------------------------------------
REASON(S) FOR AMENDMENT
1. To extend the award period at no additional cost to the government.
2. To incorporate additional Special Award Conditions.
-------------------------------------------------------------------------------------------------------------------------------
This amendment approved by the Grants Officer is issued in triplicate and constitutes an obligation of Federal funding.
By signing the three documents, the Recipient agrees to comply with the Amendment provisions checked below and
attached, as well as previous provisions incorporated into the Award. Upon acceptance by the Recipient, two signed
Amendment documents shall be returned to the Grants Officer and the third document shall be retained by the
Recipient. If not signed and returned without modification by the Recipient within 30 days of receipt, the Grants Officer
may unilaterally terminate this Amendment.
X Special Award Conditions
[ ] Line Item Budget
[ ] Other(s)
-----------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
SIGNATURE OF DEPARTMENT OF COMMERCE GRANTS OFFICER DATE
Betty L. Cassidy /s/ BETTY L. CASSIDY 11/10/99
Grants Officer, Office of Executive Assistance Management
-------------------------------------------------------------------------------------------------------------------------------
TYPED NAME, TYPED TITLE, AND SIGNATURE OF AUTHORIZED RECIPIENT OFFICIAL DATE
Jonathan W. Emery /s/ JONATHAN W. EMERY 11/10/99
Senior Vice President - General Counsel & Secretary
-------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 2
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.B below and the provisions in
Amendment 11 to this Cooperative 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 amendment, 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.
9) "Registry Agreement" means the ICANN-NSI Registry Agreement entered into
contemporaneously with this amendment, 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.
Amendment 19 to Cooperative Agreement
between U.S. Government and
Network Solutions, Inc.
-1-
<PAGE> 3
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 the Cooperative Agreement" runs through the earlier of the
expiration or termination of this Cooperative Agreement.
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. The term "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 the Cooperative 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.
Amendment 19 to Cooperative Agreement
between U.S. Government and
Network Solutions, Inc.
-2-
<PAGE> 4
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
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.
Beginning within twenty-one days of this amendment and until NSI has
completed such transfer, NSI shall provide port 43 Whois access to
registry data through rs.internic.net. Such Whois service shall
return, in addition to the requested registry data, a message stating:
"Domain names in the .com, .net, and .org domains can now be
registered with many different competing registrars. Go to
http://www.internic.net for detailed information."
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.
Amendment 19 to Cooperative Agreement
between U.S. Government and
Network Solutions, Inc.
-3-
<PAGE> 5
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 Cooperative 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 Cooperative Agreement by the Department of
Commerce or termination for cause of the Registry Agreement by ICANN
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 public access 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.
Amendment 19 to Cooperative Agreement
between U.S. Government and
Network Solutions, Inc.
-4-
<PAGE> 6
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.
D. Phase 1 of the development of the Shared Registration System, as
described in the Shared Registry Section of Amendment 11, is extended
until November 30, 1999. From the date of this amendment until
November 30, 1999, NSI may employ either the Registrar License and
Agreement approved in Amendment 13 or the Registrar License and
Agreement approved in Section I.B.6.C above.
7. SPECIFIC PERFORMANCE
During the Term of the Cooperative Agreement, the Department of Commerce may
seek specific performance of any provision of the Cooperative 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.
Amendment 19 to Cooperative Agreement
between U.S. Government and
Network Solutions, Inc.
-5-
<PAGE> 7
8. TERMINATION
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 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 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
Amendment 19 to Cooperative Agreement
between U.S. Government and
Network Solutions, Inc.
-6-
<PAGE> 8
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 performance of Other Services have been completed.
We therefore request that, as provided by Amendment 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 the Cooperative 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 the Cooperative 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. After the date of this amendment and for
the Term of the Cooperative Agreement,
Amendment 19 to Cooperative Agreement
between U.S. Government and
Network Solutions, Inc.
-7-
<PAGE> 9
Section I.B.8 shall supersede 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(B) 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 the Cooperative 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 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
Amendment 19 to Cooperative Agreement
between U.S. Government and
Network Solutions, Inc.
-8-
<PAGE> 10
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 amendment, 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 the Cooperative
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 the Cooperative Agreement:
A. NSI agrees that it will operate the registry for the Registry TLDs
in accordance with the Cooperative 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 of the Cooperative Agreement, pursuant to Section I.B.8
of this amendment, it will cease to be the registry for the Registry
TLDs, unless prior to the end of the Term of the Cooperative Agreement
NSI is chosen as the Successor Registry in accordance with the
provisions of the Cooperative 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.
Amendment 19 to Cooperative Agreement
between U.S. Government and
Network Solutions, Inc.
-9-
<PAGE> 11
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 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 the Cooperative
Agreement or upon its expiration if (1) the Cooperative 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 web page and a port 43 Whois
service providing free public query-based access to up-to-date (i.e.
updated at least daily) 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), 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
Amendment 19 to Cooperative Agreement
between U.S. Government and
Network Solutions, Inc.
-10-
<PAGE> 12
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. Such temporary limitations
shall be applied in a nonarbitrary manner and shall apply fairly to
any registrar similarly situated, including NSI.
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
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 amendment 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.
Amendment 19 to Cooperative Agreement
between U.S. Government and
Network Solutions, Inc.
-11-
<PAGE> 13
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 the
Cooperative 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 of the Cooperative Agreement, pursuant to Section
I.B.8 of this amendment, 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 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.
Amendment 19 to Cooperative Agreement
between U.S. Government and
Network Solutions, Inc.
-12-
<PAGE> 14
If, after the expiration or termination pursuant to Section I.B.8 of this
amendment, 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 the Cooperative 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.9, 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 amendment 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 amendment 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 16(B) 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.
Amendment 19 to Cooperative Agreement
between U.S. Government and
Network Solutions, Inc.
-13-
<PAGE> 15
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, 1998 through 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 (i) for registration of SLD names with respect to
registrations for which NSI complies with the requirements of Section
II.J.4. of NSI's Registrar Accreditation Agreement with ICANN or (ii)
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 the Cooperative 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, subject to its compliance with Section
I.B.6.B of Amendment 19.
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 the
Cooperative 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, subject to its compliance with Section I.B.6.B of
Amendment 19.
Amendment 19 to Cooperative Agreement
between U.S. Government and
Network Solutions, Inc.
-14-
<PAGE> 16
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.
Amendment 19 to Cooperative Agreement
between U.S. Government and
Network Solutions, Inc.
-15-
<PAGE> 17
[NETWORK SOLUTIONS LOGO]
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 an Internet host server or 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: _____________________________________
(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.
-49-
<PAGE> 18
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 an Internet host server or 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; or (2) enable high volume, automated,
electronic processes that apply to any .com, .net, or .org registrar (or their
systems) for large numbers of domain names, except as reasonably necessary to
register domain names or modify existing registrations. Network Solutions
reserves the right, with the approval of the U.S. Department of Commerce, which
shall not unreasonably be 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.
-50-
<PAGE> 19
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
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.
-51-
<PAGE> 20
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.
Network Solutions, Inc. User: ________________________
By: _________________________________ By: _________________________________
(sign) (sign)
Name: _______________________________ Name: _______________________________
(print) (print)
Title: ______________________________ Title: ______________________________
Date: _______________________________ Date: _______________________________
ASSIGNED USERID AND PASSWORD
(TO BE ASSIGNED BY NETWORK SOLUTIONS UPON EXECUTION OF THIS AGREEMENT):
USERID: ______________________________ PASSWORD: ______________________________
-52-
<PAGE> 21
SUPPLEMENTAL FUNCTIONAL SPECIFICATION
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
-53-
<PAGE> 22
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 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.
-54-
<PAGE> 23
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
-55-
<PAGE> 24
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.
-56-
<PAGE> 25
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 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.
-57-
<PAGE> 26
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.
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 (which shall not include
-58-
<PAGE> 27
Registrar-assigned personnel), 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.
-59-
<PAGE> 28
[NETWORK SOLUTIONS LOGO] POLICY/PROCEDURE NO. A-1
PAGE 1 OF 3
--------------------------------------------------------------------------------
<TABLE>
<S> <C>
TITLE: Access and Dissemination of Proprietary Information DATE: September 24, 1999
</TABLE>
--------------------------------------------------------------------------------
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 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.
-60-
<PAGE> 29
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
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.
-61-
<PAGE> 30
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:
-62-
<PAGE> 31
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 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
-63-
<PAGE> 32
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.
-64-
<PAGE> 33
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
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.
-65-
<PAGE> 34
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:
NSI _______________________________
Name: James M. Ulam, Esq. Name: _______________________________
Title: Asst. General Counsel Title: ______________________________
Address: 505 Huntmar Park Drive Address: ____________________________
-66-
<PAGE> 35
Herndon, VA 20170
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 its
own such data or information.
-67-
<PAGE> 36
(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
-68-
<PAGE> 37
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: _________________________
-69-
<PAGE> 38
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 (but not a
Registrar-assigned employee) 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.
Agreed to: Verified:
-------------------------------- -------------------------------------
Employee Date General Manager, Registry Date
-70-
<PAGE> 39
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
-71-
<PAGE> 1
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) with Effective Date November 10, 1999, and relating to
the provision of registry services for the .com, .net and .org TLDs is hereby
approved by 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 Cooperative
Agreement # NCR 92-18742 pursuant to Section I.B.8 of Amendment 19 to that
Cooperative 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 DOC to facilitate the transfer
of those registry operations to a successor registry.
4. In the event that 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 MOU, 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 MOU, ICANN agrees that it will assign to DOC any rights that
ICANN has in all existing contracts with registries and registrars.
<TABLE>
<S> <C>
/s/ MICHAEL M. ROBERTS /s/ KENNETH A. SCHAGRIN
Michael M. Roberts Kenneth Schagrin
President and CEO Deputy Director of International Affairs
Internet Corporation for Assigned National Telecommunications and
Names and Numbers Information Administration
</TABLE>
-page solo-
<PAGE> 1
TRANSITION AGREEMENT
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 to the database within six months after the date of the
Accreditation Agreement.
3. NSI's obligation under Section II.J.4 of the Accreditation Agreement shall
not become effective until four months after the date of the Accreditation
Agreement, provided that Section II.J.4 shall immediately apply to any
registration made at a price different from that prescribed by Cooperative
Agreement #NCR 92-18742 as in effect immediately prior to Amendment 19 to that
Cooperative Agreement. Within seven days after the date of the Accreditation
Agreement, NSI shall: (a) issue a press release stating that it will be in full
compliance with the obligations under Section II.J.4 no later than four months
after the date of the Accreditation Agreement and (b) individually notify its
channel partners to the same effect.
4. For so long as it is an ICANN-accredited registrar in the .com, .net, and
.org TLDs, 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. For the ICANN fiscal year beginning July 1, 1999, NSI hereby approves the
on-going component of Registrar accreditation fees as provided in the "Report
and Recommendations on ICANN Permanent Funding Arrangements" of the President's
Task Force on Funding and adopted by the ICANN Board on November 4, 1999.
//
//
//
//
ICANN/Network Solutions, Inc.
Registrar Transition Agreement
-1-
<PAGE> 2
//
//
6. 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: /s/ MICHAEL M. ROBERTS
--------------------------------
Michael M. Roberts
President and CEO
NETWORK SOLUTIONS, INC.
By: /s/ JONATHAN W. EMERY
--------------------------------
Jonathan W. Emery
Senior Vice President, General
Counsel & Secretary
ICANN/Network Solutions, Inc.
Registar Transition Agreement
-2-
