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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.
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This REGISTRAR ACCREDITATION AGREEMENT ("Agreement") is by and between the
Internet Corporation for Assigned Names and Numbers, a not-for-profit
corporation, and Register.com, Inc. ("Registrar"), a Delaware corporation, and
shall be deemed to have been effective as of April 27, 2000, at Los Angeles,
California, USA.
I. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
A. "Accredit" means to identify and set minimum standards for the performance of
registration functions, to recognize persons or entities meeting those
standards, and to enter into an accreditation agreement that sets forth the
rules and procedures applicable to the provision of registration services.
B. A "Consensus Policy" is one adopted by ICANN as follows:
1. "Consensus Policies" are those adopted based on a consensus among
Internet stakeholders represented in the ICANN process, as demonstrated by (1)
the adoption of the policy by the ICANN Board of Directors, (2) a recommendation
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that the policy should be adopted, by at least a two-thirds vote of the council
of the ICANN Supporting Organization to which the matter is delegated, and (3) a
written report and supporting materials (which must include all substantive
submissions to the Supporting Organization relating to the proposal) that (i)
documents the extent of agreement and disagreement among impacted groups, (ii)
documents the outreach process used to seek to achieve adequate representation
of the views of groups that are likely to be impacted, and (iii) documents the
nature and intensity of reasoned support and opposition to the proposed policy.
2. In the event that Registrar disputes the presence of such a
consensus, it shall seek review of that issue from an Independent Review Panel
established under ICANN's bylaws. Such review must be sought within fifteen
working days of publication of the Board's action adopting the policy. The
decision of the panel shall be based on the report and supporting materials
required by Section I.B. 1 above. In the event that Registrar seeks review and
the Panel sustains the Board's determination that the policy is based on a
consensus among Internet stakeholders represented in the ICANN process, then
Registrar must implement such policy unless it promptly seeks and obtains a stay
or injunctive relief under Section II.P.
3. In the event, following a decision by the Independent Review Panel
convened under Section I.B.2 above, that Registrar still disputes the presence
of such a consensus, it may seek further review of that issue within fifteen
working days of publication of the decision in accordance with the
dispute-resolution procedures set forth in Section II.P below, provided,
however, that Registrar must continue to implement the policy unless it has
obtained a stay or injunctive relief under Section II.P or a final decision is
rendered in accordance with the provisions of Section II.P that relieves
Registrar of such obligation. The decision in any such further review shall be
based on the report and supporting materials required by Section I.B.1 above.
4. A policy adopted by the ICANN Board of Directors on a temporary
basis, without a prior recommendation by the council of an ICANN Supporting
Organization, shall also be considered to be a Consensus Policy if adopted by
the ICANN Board of Directors by a vote of at least two-thirds of its members,
and if immediate temporary adoption of a policy on the subject is necessary to
maintain the stability of the Internet or the operation of the domain name
system, and if the proposed policy is as narrowly tailored as feasible to
achieve those objectives. In adopting any policy under this provision, the ICANN
Board of Directors shall state the period of time for 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
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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.
H. The word "Registrar," when appearing with an initial capital letter, refers
to Register.com, 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.
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II. TERMS AND CONDITIONS OF AGREEMENT
The parties agree as follows:
A. Accreditation. During the term of this Agreement, Registrar is hereby
accredited by ICANN to act as a registrar (including to insert and renew
registration of SLDs in the registry database) for the .com, .net, and
.org TLDs.
B. Registrar Use of ICANN Name. Registrar is hereby granted a non-exclusive
worldwide license to state during the term of this Agreement that it is
accredited by ICANN as a registrar in the .com, .net, and .org TLDs. No other
use of ICANN's name is licensed hereby. This license may not be assigned or
sublicensed by Registrar.
C. General Obligations of ICANN. With respect to all matters that impact the
rights, obligations, or role of Registrar, ICANN shall during the Term of this
Agreement:
1. exercise its responsibilities in an open and transparent manner;
2. not unreasonably restrain competition and, to the extent feasible,
promote and encourage robust competition;
3. not apply standards, policies, procedures or practices arbitrarily,
unjustifiably, or inequitably and not single out Registrar for disparate
treatment unless justified by substantial and reasonable cause; and
4. ensure, through its reconsideration and independent review policies,
adequate appeal procedures for Registrar, to the extent it is adversely affected
by ICANN standards, policies, procedures or practices.
D. General Obligations of Registrar.
1. During the Term of this Agreement:
a. Registrar agrees that it will operate as a registrar for TLDs for
which it is accredited by ICANN in accordance with this Agreement;
b. Registrar shall comply, in such operations, with all ICANN-adopted
Policies insofar as they:
i. relate to one or more of the following: (A) issues for which
uniform or coordinated resolution is reasonably necessary to
facilitate interoperability, technical reliability and/or
stable operation of the Internet or domain-name system, (B)
registrar policies reasonably necessary to 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)7 and
ii. do not unreasonably restrain competition.
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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. l.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;
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
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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 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 Who is 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 IF 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.
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2. Upon receiving any updates to the data elements listed in Sections
II.F. 1 .b through d and f through i from the SLD holder, Registrar shall
promptly update its database used to provide the public access described in
Section II.F. 1.
3. Registrar may subcontract its obligation to provide the public
access described in Section II.F. 1 and the updating described in Section
II.F.2, provided that Registrar shall remain fully responsible for the proper
provision of the access and updating.
4. Registrar shall abide by any ICANN-adopted Policy that requires
registrars to cooperatively implement a distributed capability that provides
query-based Who is search functionality across all registrars. If the Who is
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 Who is
database for the purpose of providing comprehensive Registrar Who is 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 onetime 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.
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e. 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.
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.
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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 Who is 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.
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
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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
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;
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ii. The intended recipients or categories of recipients of the data
(including the Registry and others who will receive the data
from Registry);
iii. Which data are obligatory and which data, if any, are voluntary;
and
iv. How the SLD holder or data subject can access and, if necessary,
rectify the data held about them.
c. The SLD holder shall consent to the data processing referred to in
Section II.J.7.b.
d. The SLD holder shall represent that notice has been provided
equivalent to that described in Section II.J.7.b. above to any
third-party individuals whose Personal Data are supplied to
Registrar by the SLD holder, and that the SLD holder has obtained
consent equivalent to that referred to in Section II.J.7.c of any
such third-party individuals.
e. Registrar shall agree that it will not process the Personal Data
collected from the SLD holder in a way incompatible with the
purposes and other limitations about which it has provided notice
to the SLD holder in accordance with Section II.J.7.b, above.
f. Registrar shall agree that it will take reasonable precautions to
protect Personal Data from loss, misuse, unauthorized access or
disclosure, alteration, or destruction.
g. The SLD holder shall represent that, to the best of the SLD
holder's knowledge and belief, neither the registration of the SLD
name nor the manner in which it is directly or indirectly used
infringes the legal rights of a third party.
h. For the adjudication of disputes concerning or arising from use of
the SLD name, the SLD holder shall submit, without prejudice to
other potentially applicable jurisdictions, to the jurisdiction of
the courts (1 ) of the SLD holder's domicile and (2) where
Registrar is located.
i. The SLD holder shall agree that its registration of the SLD name
shall be subject to 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 m 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.
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8. Registrar shall abide by any ICANN-adopted policies requiring
reasonable and commercially practicable (a) verification, at the time of
registration, of contact information associated with an SLD registration
sponsored by Registrar or (b) periodic re-verification of such information,
Registrar shall, upon notification by any person of an inaccuracy in the contact
information associated with an SLD registration sponsored by Registrar, take
reasonable steps to investigate that claimed inaccuracy. In the event Registrar
learns of inaccurate contact information associated with an SLD registration it
sponsors, it shall take reasonable steps to correct that inaccuracy.
9. Registrar shall abide by any ICANN-adopted policy prohibiting or
restricting warehousing of or speculation in domain names by registrars.
10. Registrar shall maintain in force commercial general liability
insurance with policy limits of at least US$500,000 covering liabilities arising
from Registrar's registrar business during the term of this Agreement.
11. Nothing in this Agreement prescribes or limits the amount Registrar
may charge SLD holders for registration of SLD names.
K. Domain-Name Dispute Resolution. During the term of this Agreement, Registrar
shall have in place a policy and procedure for resolution of disputes concerning
SLD names. In the event that ICANN adopts a policy or procedure for resolution
of disputes concerning SLD names that by its terms applies to Registrar,
Registrar shall adhere to the policy or procedure.
L. Accreditation Fees. As a condition of accreditation, Registrar shall pay
accreditation fees to ICANN. These fees consist of yearly and on-going
components.
1. The yearly component for the term of this Agreement shall be US
$5,000. Payment of the yearly component shall be due upon execution by Registrar
of this Agreement and upon each anniversary date after such execution during the
term of this Agreement (other than the expiration date).
2. Registrar shall pay the on-going component of Registrar
accreditation fees adopted by ICANN in accordance with the provisions of Section
II.C above, provided such fees are reasonably allocated among all registrars
that contract with ICANN and that any such fees must be expressly approved by
registrars accounting, in aggregate, for payment of two-thirds of all
registrar-level fees. Registrar shall pay such fees in a timely manner for so
long as all material terms of this Agreement remain in full force and effect,
and notwithstanding the pendency of any dispute between Registrar and ICANN.
3. On reasonable notice given by ICANN to Registrar, accountings
submitted by Registrar shall 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.
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N. Termination of Agreement. This Agreement may be terminated before its
expiration by Registrar by giving ICANN thirty days written notice. It may be
terminated before its expiration by ICANN in any of the following circumstances:
1. There was a material misrepresentation, material inaccuracy, or
materially misleading statement in Registrar's application for accreditation or
any material accompanying the application.
2. Registrar:
a. is convicted of a felony or other serious offense related to
financial activities, or is judged by a court to have committed
fraud or breach of fiduciary duty, or is the subject of a judicial
determination that ICANN reasonably deems as the substantive
equivalent of any of these; or
b. is disciplined by the government of its domicile for conduct
involving dishonesty or misuse of funds of others.
3. Any officer or director of Registrar is convicted of a felony or of
a misdemeanor related to financial activities, or is judged by a court to have
committed fraud or breach of fiduciary duty, or is the subject of a judicial
determination that ICANN deems as the substantive equivalent of any of these;
provided, such officer or director is not removed in such circumstances.
4. Registrar fails to cure any breach of this Agreement (other than a
failure to comply with a policy adopted by ICANN during the term of this
Agreement as to which Registrar is seeking, or still has time to seek, review
under Section I.B.2 of whether a consensus is present) within fifteen working
days after ICANN gives Registrar notice of the breach.
5. Registrar fails to comply with a ruling granting specific
performance under Sections II.M and II.P.
6. Registrar continues acting in a manner that ICANN has reasonably
determined endangers the stability or operational integrity of the Internet
after receiving three days notice of that determination.
7. Registrar becomes bankrupt or insolvent.
This Agreement may be terminated in circumstances l 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
deter/nine-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.
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O. Term of Agreement: Renewal: Right to Substitute Updated Agreement. This
Agreement shall have a term of five years, from April 27, 2000 to April 26,
2005, unless terminated sooner. 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
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granted an ICANN request for lifting of the stay. In all litigation involving
ICANN concerning this Agreement (whether in a case where arbitration has not
been elected or to enforce an arbitration award), jurisdiction and exclusive
venue for such litigation shall be in a court located in Los Angeles,
California, USA; however, the parties shall also have the right to enforce a
judgment of such a court in any court of competent jurisdiction. For the purpose
of aiding the arbitration and/or preserving the rights of the parties during the
pendency of an arbitration, the parties shall have the right to seek temporary
or preliminary injunctive relief from the arbitration panel or in a court
located in Los Angeles, California, USA, which shall not be a waiver of this
arbitration agreement.
Q. Limitations on Monetary Remedies for Violations of this Agreement. ICANN's
aggregate monetary liability for violations of this Agreement shall not exceed
the amount of accreditation fees paid by Registrar to ICANN under Section II.L
of this Agreement. Registrar's monetary liability to ICANN for violations of
this Agreement shall be limited to accreditation fees owing to ICANN under this
Agreement. In no event shall either party be liable for special, indirect,
incidental, punitive, exemplary, or consequential damages for any violation of
this Agreement.
R. Handling by ICANN of Registrar-Supplied Data. Before receiving any Personal
Data from Registrar, ICANN shall specify to Registrar in writing the purposes
for and conditions under which ICANN intends to use the Personal Data. ICANN may
from time to time provide Registrar with a revised specification of such
purposes and conditions, which specification shall become effective no fewer
than thirty days after it is provided to Registrar. ICANN shall not use Personal
Data provided by Registrar for a purpose or under conditions inconsistent with
the specification in effect when the Personal Data were provided. ICANN shall
take reasonable steps to avoid uses of the Personal Data by third parties
inconsistent with the specification.
S. Miscellaneous.
1. Assignment. Either party may assign or transfer this Agreement only'
with the prior written consent of the other party, which shall not be
unreasonably withheld, except that ICANN may, with the written approval of the
United States Department of Commerce, assign this agreement by giving Registrar
written notice of the assignment. In the event of assignment by ICANN, the
assignee may, with the approval of the United States Department of Commerce,
revise the definition of "Consensus Policy" to the extent necessary to meet the
organizational circumstances of the assignee, provided the revised definition
requires that Consensus Policies be based on a demonstrated consensus of
Internet stakeholders.
2. No Third-Party Beneficiaries. This Agreement shall not be construed to
create any obligation by either ICANN or Registrar to any non-party to this
Agreement, including any SLD holder.
3. Notices. Designations and Specifications. All notices to be given under
this Agreement shall be given in writing at the address of the appropriate party
as set forth below, unless that party has given a notice of change of address in
writing. Any notice required by this Agreement shall be deemed to have been
properly given when delivered in person, when sent by electronic facsimile, or
when scheduled for delivery by internationally recognized courier service.
Designations and specifications by ICANN under this Agreement shall be effective
when written notice of them is deemed given to Registrar.
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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:
Register.com, Inc.
575 8th Avenue
11th Floor
New York, NY 10018
Attention: Lauren Gaviser
Telephone Number: +1/212/798-9155
Facsimile Number: +1/212/594-9448
E-mail Address: [email protected]
With a copy to:
Stuart Levi, Esq.
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue, 30th Floor
New York, New York 10022
Telephone: +1/212/735-2750
Facsimile: +1/212/735-3694
E-mail Address: [email protected]
4. Dates and Times. All dates and times relevant to this Agreement or
its performance shall be computed based on the date and time observed in Los
Angeles, California, USA.
5. Language. All notices, designations, and specifications made under
this Agreement shall be in the English language.
6. Entire Agreement. Except for any written transition agreement that
may be executed concurrently herewith by both parties, this Agreement
constitutes the entire agreement of the parties hereto pertaining to the subject
matter hereof and supersedes all prior agreements, understandings, negotiations
and discussions, whether oral or written, of the parties.
7. Amendments and Waivers. No amendment, supplement, or modification of
this Agreement or any provision hereof shall be binding unless executed in
writing by both parties. No waiver of any provision of this Agreement shall be
binding unless evidenced by a writing signed by the party waiving compliance
with such provision. No waiver of any of the provisions of this Agreement shall
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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
REGISTER.COM, INC.
By: /s/ Richard D. Forman
------------------------------------
Richard D. Forman
President
