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EXHIBIT 99.4
[NETWORK SOLUTIONS LOGO]
TENTATIVE AGREEMENTS AMONG ICANN, THE U.S.
DEPARTMENT OF COMMERCE, AND NETWORK SOLUTIONS, INC.
(Posted September 28, 1999)
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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 000
Xxxxxxx Xxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 ("NSI"or the "Registry"), and
_________________, a _____________________ corporation, with its principal place
of business located at _____________________________________ ("Registrar"). NSI
and Registrar may be referred to individually as a "Party" and collectively as
the "Parties."
WHEREAS, multiple registrars will provide Internet domain name registration
services within the .com, .org and .net top-level domains wherein NSI operates
and maintains certain TLD servers and zone files ("Registry");
WHEREAS, Registrar wishes to register second-level domain names in the multiple
registrar system for the .com, .org and .net TLDs.
NOW, THEREFORE, for and in consideration of the mutual promises, benefits and
covenants contained herein and for other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged, NSI and
Registrar, intending to be legally bound, hereby agree as follows:
1. DEFINITIONS
1.1 "DNS" refers to the Internet domain name system.
1.2 "IP" means Internet Protocol.
1.3 An "SLD" is a second-level domain of the DNS.
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1.4 The "System" refers to the multiple registrar system developed by
NSI for registration of second-level domain names in the .com, .org
and .net TLDs.
1.5 A "TLD" is a top-level domain of the DNS.
1.6 The "Licensed Product" refers to the RRP, APIs, and software,
collectively.
2. OBLIGATIONS OF THE PARTIES
2.1 SYSTEM OPERATION AND ACCESS. Throughout the Term of this
Agreement, NSI shall operate the System and provide Registrar with
access to the System enabling Registrar to transmit domain name
registration information for the .com, .org and .net TLDs to the
System according to a protocol developed by NSI and known as the
Registry Registrar Protocol ("RRP").
2.2 DISTRIBUTION OF RRP, APIs AND SOFTWARE. No later than three
business days after the Effective Date of this Agreement, NSI shall
provide to Registrar (i) full documentation of the RRP, (ii) "C" and
"Java" application program interfaces ("APIs") to the RRP with
documentation, and (iii) reference client software ("Software") that
will enable Registrar to develop its system to register second-level
domain names through the System for the .com, .org and .net TLDs. If
NSI elects to modify or upgrade the APIs and/or RRP, NSI shall provide
updated APIs to the RRP with documentation and updated Software to
Registrar promptly as such updates become available.
2.3 NEW ARCHITECTURAL FEATURES. NSI will use its best commercial
efforts to develop and implement two additional modifications to the
Licensed Product by January 15, 2000 as follows:
2.3.1 NSI will issue an upgrade to the Licensed Product that will
enable a Registrar to accept initial domain name registrations or
renewals of a minimum of one year in length, or in multiples of
one year increments, up to a maximum of ten (10) years.
2.3.2 NSI will issue an upgrade to the Licensed Product that will
enable registrars to accept the addition of one additional year
to a registrant's "current" registration period when a registrant
changes from one registrar to another.
Registrars will be able to offer these new features only for new
registrations or renewals occurring after the Upgrade is deployed.
Both Upgrades will be introduced into the Operational Test and
Evaluation environment for testing prior to deployment.
2.4 REGISTRAR RESPONSIBILITY FOR CUSTOMER SUPPORT. Registrar shall be
responsible for providing customer service (including domain name
record support), billing and technical support, and customer interface
to accept customer (the "SLD holder") orders.
2.5 DATA SUBMISSION REQUIREMENTS. As part of its registration of all
SLD registrations in the .com, .net, and .org TLDs during the Term of
this Agreement, Registrar shall submit
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the following data elements using the RRP concerning SLD registrations
it processes:
2.5.1 The name of the SLD being registered;
2.5.2 The IP addresses of the primary nameserver and any
secondary nameservers for the SLD; and
2.5.3 The corresponding host names of those nameservers.
2.6 LICENSE. Registrar grants NSI as Registry a non-exclusive
non-transferable limited license to the data elements consisting of
the SLD name registered, the IP addresses of nameservers, and the
identity of the registering registrar for propagation of and the
provision of authorized access to the TLD zone files.
2.7 REGISTRAR'S REGISTRATION AGREEMENT AND DOMAIN NAME DISPUTE POLICY.
Registrar shall have developed and employ in its domain name
registration business an electronic or paper registration agreement,
including a domain name dispute policy, a copy of which is attached to
this Agreement as Exhibit A (which may be amended from time to time by
Registrar, provided a copy is furnished to the Registry three (3)
business days in advance of any such amendment), to be entered into by
Registrar with each SLD holder as a condition of registration.
Registrar shall include terms in its agreement with each SLD holder
that are consistent with Registrar's duties to NSI hereunder.
2.8 SECURE CONNECTION. Registrar agrees to develop and employ in its
domain name registration business all necessary technology and
restrictions to ensure that its connection to the System is secure.
All data exchanged between Registrar's system and the System shall be
protected to avoid unintended disclosure of information. Each RRP
session shall be authenticated and encrypted using two-way secure
socket layer ("SSL") protocol. Registrar agrees to authenticate every
RRP client connection with the System using both an X.509 server
certificate issued by a commercial Certification Authority identified
by the Registry and its Registrar password, which it shall disclose
only to its employees with a need to know. Registrar agrees to notify
Registry within four hours of learning that its Registrar password has
been compromised in any way or if its server certificate has been
revoked by the issuing Certification Authority or compromised in any
way.
2.9 DOMAIN NAME LOOKUP CAPABILITY. Registrar agrees to employ in its
domain name registration business NSI's Registry domain name lookup
capability to determine if a requested domain name is available or
currently unavailable for registration.
2.10 TRANSFER OF SPONSORSHIP OF REGISTRATIONS. Registrar agrees to
implement transfers of SLD registrations from another registrar to
Registrar and vice versa pursuant to the Policy on Transfer of
Sponsorship of Registrations Between Registrars appended hereto as
Exhibit B.
2.11 TIME. Registrar agrees that in the event of any dispute
concerning the time of the entry of a domain name registration into
the Registry database, the time shown in the NSI Registry records
shall control.
2.12 COMPLIANCE WITH TERMS AND CONDITIONS. Registrar agrees to comply
with all other reasonable terms or conditions established from time to
time, to assure sound operation of
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the System, by NSI as Registry in a non-arbitrary manner and
applicable to all registrars, including NSI, and consistent with NSI's
Cooperative Agreement with the United States Government or NSI's
Registry Agreement with the Internet Corporation for Assigned Names
and Numbers ("ICANN"), as applicable, upon NSI's notification to
Registrar of the establishment of those terms and conditions.
2.13 RESOLUTION OF TECHNICAL PROBLEMS. Registrar agrees to employ
necessary employees, contractors, or agents with sufficient technical
training and experience to respond to and fix all technical problems
concerning the use of the RRP and the APIs in conjunction with
Registrar's systems. Registrar agrees that in the event of significant
degradation of the System or other emergency, Network Solutions, as
Registry, may, in its sole discretion, temporarily suspend access to
the System. Such temporary suspensions shall be applied in a
nonarbitrary manner and shall apply fairly to any registrar similarly
situated, including NSI.
2.14 SURETY INSTRUMENT. During the Initial Term and any Renewal Terms,
Registrar shall have in place a performance bond, letter of credit or
equivalent instrument (the "Surety Instrument") from a surety
acceptable to NSI, in the amount of $100,000 U.S. dollars. The terms
of the Surety Instrument shall indemnify and hold harmless NSI and its
employees, directors, officers, representatives, agents and affiliates
from all costs and damages (including reasonable attorneys' fees)
which it may suffer by reason of Registrar's failure to indemnify NSI
as provided in Section 6.16 by making payment(s) up to the full amount
of the bond within ten (10) days of NSI's having notified the surety
of its claim(s) of damages, having identified the basis for any such
claim. NSI shall not be entitled to payment under the Surety
Instrument until such time as it has certified that it has incurred
expenses for which it is entitled to reimbursement in accordance with
the provisions of Section 6.16 of this Agreement.
2.15 PROHIBITED DOMAIN NAME REGISTRATIONS. Registrar agrees to comply
with the policies of NSI as Registry that will be applicable to all
registrars and that will prohibit the registration of certain domain
names in the .com, .org and .net TLDs which are not allowed to be
registered by statute or regulation.
2.16 INDEMNIFICATION REQUIRED OF SLD HOLDERS. Registrar shall require
each SLD holder to indemnify, defend and hold harmless NSI, and its
directors, officers, employees and agents from and against any and all
claims, damages, liabilities, costs and expenses, including reasonable
legal fees and expenses arising out of or relating to the SLD holder's
domain name registration.
3. LICENSE
3.1 LICENSE GRANT. Subject to the terms and conditions of this Agreement,
NSI hereby grants Registrar and Registrar accepts a non-exclusive,
non-transferable, worldwide limited license to use for the Term and
purposes of this Agreement the RRP, APIs and Software, as well as updates
and redesigns thereof, to provide domain name registration services in the
.com, .org and .net TLDs only and for no other purpose. The RRP, APIs and
Software, as well as updates and redesigns thereof, will enable Registrar
to register domain names with the Registry on behalf of its SLD holders.
Registrar, using the RRP, APIs and Software, as well as updates and
redesigns thereof, will be able to invoke the following operations on the
System: (i) check the availability of a domain name, (ii) register a domain
name, (iii) re-register a domain name, (iv)
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cancel the registration of a domain name it has registered, (v) update the
nameservers of a domain name, (vi) transfer a domain name from another
registrar to itself with proper authorization, (vii) query a domain name
registration record, (viii) register a nameserver, (ix) update the IP
addresses of a nameserver, (x) delete a nameserver, (xi) query a
nameserver, and (xii) establish and end an authenticated session.
3.2 LIMITATIONS ON USE. Notwithstanding any other provisions in this
Agreement, except with the written consent of NSI, Registrar shall not: (i)
sublicense the RRP, APIs or Software or otherwise permit any use of the
RRP, APIs or Software by or for the benefit of any party other than
Registrar, (ii) publish, distribute or permit disclosure of the RRP, APIs
or Software other than to employees, contractors, and agents of Registrar
for use in Registrar's domain name registration business, (iii) decompile,
reverse engineer, copy or re-engineer the RRP, APIs or Software for any
unauthorized purpose, or (iv) use or permit use of the RRP, APIs or
Software in violation of any federal, state or local rule, regulation or
law, or for any unlawful purpose.
Registrar agrees to employ the necessary measures to prevent its access to
the System granted hereunder from being used for (i) the transmission of
unsolicited, commercial e-mail (spam) to entities other than Registrar's
customers; (ii) high volume, automated, electronic processes that apply to
NSI for large numbers of domain names, except as reasonably necessary to
register domain names or modify existing registrations; or (iii) high
volume, automated, electronic, repetitive queries for the purpose of
extracting data to be used for Registrar's purposes, except as reasonably
necessary to register domain names or modify existing registrations.
3.3 CHANGES TO LICENSED MATERIALS. NSI may from time to time make
modifications to the RRP, APIs or Software licensed hereunder that will
enhance functionality or otherwise improve the System. NSI will provide
Registrar with at least sixty (60) days notice prior to the implementation
of any material changes to the RRP, APIs or software licensed hereunder.
4. SUPPORT SERVICES
4.1 ENGINEERING SUPPORT. NSI agrees to provide Registrar with reasonable
engineering telephone support (between the hours of 9 a.m. to 5 p.m. local
Herndon, Virginia time or at such other times as may be mutually agreed
upon) to address engineering issues arising in connection with Registrar's
use of the System.
4.2 CUSTOMER SERVICE SUPPORT. During the Term of this Agreement, NSI will
provide reasonable telephone and e-mail customer service support to
Registrar, not SLD holders or prospective customers of Registrar, for
non-technical issues solely relating to the System and its operation. NSI
will provide Registrar with a telephone number and e-mail address for such
support during implementation of the RRP, APIs and Software. First-level
telephone support will be available on a 7-day/24-hour basis. NSI will
provide a web-based customer service capability in the future and such
web-based support will become the primary method of customer service
support to Registrar at such time.
5. FEES
5.1 LICENSE FEE. As consideration for the license of the RRP, APIs and
Software, Registrar agrees to pay NSI on the Effective Date a
non-refundable one-time fee in the amount of $ 10,000 payable in United
States dollars (the "License Fee") and payable by check to Network
Solutions, Inc., Attention: Registry Accounts Receivable, 000 Xxxxxxx Xxxx
Xxxxx, Xxxxxxx,
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Virginia 20170 or by wire transfer to NationsBank, for the credit of
Network Solutions, Inc., Account #004112889843, ABA # 00000000, Swift,
NABKUS3ARIC. No later than three (3) business days after either the receipt
(and final settlement if payment by check) of such License Fee, or the
Effective Date of this Agreement, whichever is later, NSI will provide the
RRP, APIs and Software to Registrar.
5.2 REGISTRATION FEES.
(a) From the Effective Date of this Agreement through January 15,
2000, Registrar agrees to pay NSI the non-refundable amounts of
$18 United States dollars for each initial two-year domain name
registration and $9 United States dollars for each one-year
domain name re-registration (collectively, the "Registration
Fees") registered by Registrar through the System.
(b) Thereafter, and for the balance of the term of this
Agreement, Registrar agrees to pay NSI the non-refundable amounts
of $6 United States dollars for each annual increment of an
initial domain name registration and $6 United States dollars for
each annual increment of a domain name re-registration
(collectively, the "Registration Fees") registered by Registrar
through the System.
(c) NSI reserves the right to adjust the Registration Fees
prospectively upon thirty (30) days prior notice to Registrar,
provided that such adjustments are consistent with NSI's
Cooperative Agreement with the United States Government or its
Registry Agreement with ICANN, as applicable, and are applicable
to all registrars in the .com, .org and .net TLDs. NSI will
invoice Registrar monthly in arrears for each month's
Registration Fees. All Registration Fees are due immediately upon
receipt of NSI's invoice pursuant to a letter of credit, deposit
account, or other acceptable credit terms agreed by the Parties.
5.3 CHANGE IN REGISTRAR SPONSORING DOMAIN NAME. Registrar may assume
sponsorship of a SLD holder's existing domain name registration from
another registrar by following the policy set forth in Exhibit B to this
Agreement. Registrar agrees to pay NSI the applicable Registration Fee as
set forth above. For transfers taking place after January 15, 2000, this
shall result in a corresponding extension of the existing registration. The
losing registrar's Registration Fees will not be refunded as a result of
any such transfer.
5.4 NON-PAYMENT OF REGISTRATION FEES. Timely payment of Registration Fees
is a material condition of performance under this Agreement. In the event
that Registrar fails to pay its Registration Fees, either initial or
re-registration fees, within three (3) days of the date when due, NSI may
stop accepting new registrations and/or delete the domain names associated
with invoices not paid in full from the Registry database and give written
notice of termination of this Agreement pursuant to Section 6.1(b) below.
6. MISCELLANEOUS
6.1 TERM OF AGREEMENT AND TERMINATION.
(a) TERM OF THE AGREEMENT. The duties and obligations of the Parties
under this Agreement shall apply from the Effective Date through and
including the last day of the calendar month sixty (60) months from
the Effective Date (the "Initial Term"). Upon conclusion of the
Initial Term, all provisions of this Agreement will automatically
renew for
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successive five (5) year renewal periods until the Agreement
has been terminated as provided herein, Registrar elects not to renew,
or NSI ceases to operate as the registry for the .com, .org and .net
TLDs. In the event that revisions to NSI's Registrar License and
Agreement are approved or adopted by the U.S. Department of Commerce,
or ICANN, as appropriate, Registrar will execute an amendment
substituting the revised agreement in place of this Agreement, or, at
Registrar's option, exercised within fifteen (15) days, may terminate
this Agreement immediately by giving written notice to NSI.
(b) TERMINATION FOR CAUSE. In the event that either Party materially
breaches any term of this Agreement including any of its
representations and warranties hereunder and such breach is not
substantially cured within thirty (30) calendar days after written
notice thereof is given by the other Party, then the non-breaching
Party may, by giving written notice thereof to the other Party,
terminate this Agreement as of the date specified in such notice of
termination.
(c) TERMINATION AT OPTION OF REGISTRAR. Registrar may terminate this
Agreement at any time by giving NSI thirty (30) days notice of
termination.
(d) TERMINATION UPON LOSS OF REGISTRAR'S ACCREDITATION. This Agreement
shall terminate in the event Registrar's accreditation by ICANN, or
its successor, is terminated or expires without renewal.
(e) TERMINATION IN THE EVENT THAT SUCCESSOR REGISTRY IS NAMED. This
Agreement shall terminate in the event that the U.S. Department of
Commerce or ICANN, as appropriate, designates another entity to serve
as the registry for the .com, .net. and .org TLDs (the "Successor
Registry").
(f) TERMINATION IN THE EVENT OF BANKRUPTCY. Either Party may terminate
this Agreement if the other Party is adjudged insolvent or bankrupt,
or if proceedings are instituted by or against a Party seeking relief,
reorganization or arrangement under any laws relating to insolvency,
or seeking any assignment for the benefit of creditors, or seeking the
appointment of a receiver, liquidator or trustee of a Party's property
or assets or the liquidation, dissolution or winding up of a Party's
business.
(g) EFFECT OF TERMINATION. Upon expiration or termination of this
Agreement, NSI will complete the registration of all domain names
processed by Registrar prior to the date of such expiration or
termination, provided that Registrar's payments to NSI for
Registration Fees are current and timely. Immediately upon any
expiration or termination of this Agreement, Registrar shall (i)
transfer its sponsorship of SLD name registrations to another licensed
registrar(s) of the Registry, in compliance with any procedures
established or approved by the U.S. Department of Commerce or ICANN,
as appropriate, and (ii) either return to NSI or certify to NSI the
destruction of all data, software and documentation it has received
under this Agreement.
(h) SURVIVAL. In the event of termination of this Agreement, the
following shall survive: (i) Sections 2.6, 2.7, 2.14, 6.1(g), 6.6,
6.7, 6.10, 6.12, 6.13, 6.14 and 6.16; (ii) the SLD holder's
obligations to indemnify, defend, and hold harmless NSI, as stated in
Section 2.16; (iii) the surety's obligations under the Surety
Instrument described in Section 2.13
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with respect to matters arising during the term of this Agreement; and
(iv) Registrar's payment obligations as set forth in Section 5.2 with
respect to initial registrations or re-registrations during the term
of this Agreement. Neither Party shall be liable to the other for
damages of any sort resulting solely from terminating this Agreement
in accordance with its terms but each Party shall be liable for any
damage arising from any breach by it of this Agreement.
6.2. NO THIRD PARTY BENEFICIARIES; RELATIONSHIP OF THE PARTIES. This
Agreement does not provide and shall not be construed to provide third
parties (i.e., non-parties to this Agreement), including any SLD holder,
with any remedy, claim, cause of action or privilege. Nothing in this
Agreement shall be construed as creating an employer-employee or agency
relationship, a partnership or a joint venture between the Parties.
6.3 FORCE MAJEURE. Neither Party shall be responsible for any failure to
perform any obligation or provide service hereunder because of any Act of
God, strike, work stoppage, governmental acts or directives, war, riot or
civil commotion, equipment or facilities shortages which are being
experienced by providers of telecommunications services generally, or other
similar force beyond such Party's reasonable control.
6.4 FURTHER ASSURANCES. Each Party hereto shall execute and/or cause to be
delivered to each other Party hereto such instruments and other documents,
and shall take such other actions, as such other Party may reasonably
request for the purpose of carrying out or evidencing any of the
transactions contemplated by this Agreement.
6.5 AMENDMENT IN WRITING. Any amendment or supplement to this Agreement
shall be in writing and duly executed by both Parties.
6.6 ATTORNEYS' FEES. If any legal action or other legal proceeding
(including arbitration) relating to the performance under this Agreement or
the enforcement of any provision of this Agreement is brought against
either Party hereto, the prevailing Party shall be entitled to recover
reasonable attorneys' fees, costs and disbursements (in addition to any
other relief to which the prevailing Party may be entitled).
6.7 DISPUTE RESOLUTION; CHOICE OF LAW; VENUE. The Parties shall attempt to
resolve any disputes between them prior to resorting to litigation. This
Agreement is to be construed in accordance with and governed by the
internal laws of the Commonwealth of Virginia, United States of America
without giving effect to any choice of law rule that would cause the
application of the laws of any jurisdiction other than the internal laws of
the Commonwealth of Virginia to the rights and duties of the Parties. Any
legal action or other legal proceeding relating to this Agreement or the
enforcement of any provision of this Agreement shall be brought or
otherwise commenced in any state or federal court located in the eastern
district of the Commonwealth of Virginia. Each Party to this Agreement
expressly and irrevocably consents and submits to the jurisdiction and
venue of each state and federal court located in the eastern district of
the Commonwealth of Virginia (and each appellate court located in the
Commonwealth of Virginia) in connection with any such legal proceeding.
6.8 NOTICES. Any notice or other communication required or permitted to be
delivered to any Party under this Agreement shall be in writing and shall
be deemed properly delivered, given and received when delivered (by hand,
by registered mail, by courier or express delivery service or by telecopier
during business hours) to the address or telecopier number set forth
beneath
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the name of such Party below, unless party has given a notice of a change
of address in writing:
if to Registrar:
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with a copy to:
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if to NSI:
Network Solutions, Inc.
000 Xxxxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Director, Customer Affairs
Telecopier: + 0 (000) 000-0000
with a copy to:
General Counsel
000 Xxxxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopier: + 0 (000) 000-0000
6.9 ASSIGNMENT/SUBLICENSE. Except as otherwise expressly provided herein,
the provisions of this Agreement shall inure to the benefit of and be
binding upon, the successors and permitted assigns of the Parties hereto.
Registrar shall not assign, sublicense or transfer its rights or
obligations under this Agreement to any third person without the prior
written consent of NSI.
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6.10 USE OF CONFIDENTIAL INFORMATION. The Parties' use and disclosure of
Confidential Information disclosed hereunder are subject to the terms and
conditions of the Parties' Confidentiality Agreement (Exhibit C) that will
be executed contemporaneously with this Agreement. Registrar agrees that
the RRP, APIs and Software are the Confidential Information of NSI.
6.11 DELAYS OR OMISSIONS; WAIVERS. No failure on the part of either Party
to exercise any power, right, privilege or remedy under this Agreement, and
no delay on the part of either Party in exercising any power, right,
privilege or remedy under this Agreement, shall operate as a waiver of such
power, right, privilege or remedy; and no single or partial exercise or
waiver of any such power, right, privilege or remedy shall preclude any
other or further exercise thereof or of any other power, right, privilege
or remedy. No Party shall be deemed to have waived any claim arising out of
this Agreement, or any power, right, privilege or remedy under this
Agreement, unless the waiver of such claim, power, right, privilege or
remedy is expressly set forth in a written instrument duly executed and
delivered on behalf of such Party; and any such waiver shall not be
applicable or have any effect except in the specific instance in which it
is given.
6.12 LIMITATION OF LIABILITY. IN NO EVENT WILL NSI BE LIABLE TO REGISTRAR
FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL
DAMAGES, OR ANY DAMAGES RESULTING FROM LOSS OF PROFITS, ARISING OUT OF OR
IN CONNECTION WITH THIS AGREEMENT, EVEN IF NSI HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
6.13 CONSTRUCTION. The Parties agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting Party shall
not be applied in the construction or interpretation of this Agreement.
6.14 INTELLECTUAL PROPERTY. Subject to Section 2.6 above, each Party will
continue to independently own its intellectual property, including all
patents, trademarks, trade names, service marks, copyrights, trade secrets,
proprietary processes and all other forms of intellectual property.
6.15 REPRESENTATIONS AND WARRANTIES
(A) REGISTRAR. Registrar represents and warrants that: (1) it is a
corporation duly incorporated, validly existing and in good standing
under the law of the ______________, (2) it has all requisite
corporate power and authority to execute, deliver and perform its
obligations under this Agreement, (3) it is, and during the Term of
this Agreement will continue to be, accredited by ICANN or its
successor, pursuant to an accreditation agreement dated after November
___, 1999, (4) the execution, performance and delivery of this
Agreement has been duly authorized by Registrar, (5) no further
approval, authorization or consent of any governmental or regulatory
authority is required to be obtained or made by Registrar in order for
it to enter into and perform its obligations under this Agreement, and
(6) Registrar's Surety Instrument provided hereunder is a valid and
enforceable obligation of the surety named on such Surety Instrument.
(b) NSI. NSI represents and warrants that: (1) it is a corporation
duly incorporated,
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validly existing and in good standing under the laws of the State of
Delaware, (2) it has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement, (3)
the execution, performance and delivery of this Agreement has been
duly authorized by NSI, and (4) no further approval, authorization or
consent of any governmental or regulatory authority is required to be
obtained or made by NSI in order for it to enter into and perform its
obligations under this Agreement.
(c) DISCLAIMER OF WARRANTIES. The RRP, APIs and Software are provided
"as-is" and without any warranty of any kind. NSI EXPRESSLY DISCLAIMS
ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT
NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF
MERCHANTABILITY OR SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR
PURPOSE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. NSI DOES NOT
WARRANT THAT THE FUNCTIONS CONTAINED IN THE RRP, APIs OR SOFTWARE WILL
MEET REGISTRAR'S REQUIREMENTS, OR THAT THE OPERATION OF THE RRP, APIs
OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN
THE RRP, APIs OR SOFTWARE WILL BE CORRECTED. FURTHERMORE, NSI DOES NOT
WARRANT NOR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS
OF THE RRP, APIs, SOFTWARE OR RELATED DOCUMENTATION IN TERMS OF THEIR
CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. SHOULD THE RRP, APIs
OR SOFTWARE PROVE DEFECTIVE, REGISTRAR ASSUMES THE ENTIRE COST OF ALL
NECESSARY SERVICING, REPAIR OR CORRECTION OF REGISTRAR'S OWN SYSTEMS
AND SOFTWARE.
6.16. INDEMNIFICATION. Registrar, at its own expense and within thirty (30)
days of presentation of a demand by NSI under this paragraph, will
indemnify, defend and hold harmless NSI and its employees, directors,
officers, representatives, agents and affiliates, against any claim, suit,
action, or other proceeding brought against NSI or any affiliate of NSI
based on or arising from any claim or alleged claim (i) relating to any
product or service of Registrar; (ii) relating to any agreement, including
Registrar's dispute policy, with any SLD holder of Registrar; or (iii)
relating to Registrar's domain name registration business, including, but
not limited to, Registrar's advertising, domain name application process,
systems and other processes, fees charged, billing practices and customer
service; provided, however, that in any such case: (a) NSI provides
Registrar with prompt notice of any such claim, and (b) upon Registrar's
written request, NSI will provide to Registrar all available information
and assistance reasonably necessary for Registrar to defend such claim,
provided that Registrar reimburses NSI for its actual and reasonable costs.
Registrar will not enter into any settlement or compromise of any such
indemnifiable claim without NSI's prior written consent, which consent
shall not be unreasonably withheld. Registrar will pay any and all costs,
damages, and expenses, including, but not limited to, reasonable attorneys'
fees and costs awarded against or otherwise incurred by NSI in connection
with or arising from any such indemnifiable claim, suit, action or
proceeding.
6.17 ENTIRE AGREEMENT; SEVERABILITY. This Agreement, which includes
Exhibits A, B and C, constitutes the entire agreement between the Parties
concerning the subject matter hereof and supersedes any prior agreements,
representations, statements, negotiations, understandings, proposals or
undertakings, oral or written, with respect to the subject matter expressly
set forth herein. If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable, each Party agrees that such provision
shall be enforced to the maximum extent permissible so as to effect the
intent of the Parties, and the validity, legality and enforceability of the
remaining
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provisions of this Agreement shall not in any way be affected or
impaired thereby. If necessary to effect the intent of the Parties, the
Parties shall negotiate in good faith to amend this Agreement to replace
the unenforceable language with enforceable language that reflects such
intent as closely as possible.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date set forth in the first paragraph hereof.
Network Solutions, Inc.
By: By:
Name: Name:
Title: Title:
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EXHIBIT A
REGISTRAR'S DISPUTE POLICY
[TO BE SUPPLIED FROM TIME TO TIME BY REGISTRAR]
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EXHIBIT B
POLICY ON TRANSFER OF SPONSORSHIP OF REGISTRATIONS BETWEEN REGISTRARS
REGISTRAR REQUIREMENTS
The registration agreement between each Registrar and its SLD holder
shall include a provision explaining that an SLD holder will be
prohibited from changing its Registrar during the first 60 days after
initial registration of the domain name with the Registrar. Beginning
on the 61st day
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after the initial registration with the Registrar, the procedures for
change in sponsoring registrar set forth in this policy shall apply.
Enforcement shall be the responsibility of the Registrar sponsoring
the domain name registration.
For each instance where an SLD holder wants to change its Registrar
for an existing domain name (i.e., a domain name that appears in a
particular top-level domain zone file), the gaining Registrar shall:
1) Obtain express authorization from an individual who has
the apparent authority to legally bind the SLD holder (as
reflected in the database of the losing Registrar).
a) The form of the authorization is at the
discretion of each gaining Registrar.
b) The gaining Registrar shall retain a record of
reliable evidence of the authorization.
2) In those instances when the Registrar of record is being
changed simultaneously with a transfer of a domain name from
one party to another, the gaining Registrar shall also
obtain appropriate authorization for the transfer. Such
authorization shall include, but not be limited to, one of
the following:
a) A bilateral agreement between the
parties.
b) The final determination of a binding dispute
resolution body.
c) A court order.
3) Request, by the transmission of a "transfer" command as
specified in the Registry Registrar Protocol, that the
Registry database be changed to reflect the new Registrar.
a) Transmission of a "transfer" command constitutes a
representation on the part of the gaining Registrar
that:
(1) the requisite authorization has been obtained
from the SLD holder listed in the database of the
losing Registrar, and
(2) the losing Registrar will be provided with a
copy of the authorization if and when requested.
In those instances when the Registrar of record denies the
requested change of Registrar, the Registrar of record shall
notify the prospective gaining Registrar that the request
was denied and the reason for the denial.
Instances when the requested change of sponsoring Registrar
may be denied include, but are not limited to:
1) Situations described in the Domain Name Dispute
Resolution
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Policy
2) A pending bankruptcy of the SLD Holder
3) Dispute over the identity of the SLD Holder
4) Request to transfer sponsorship occurs within the
first 60 days after the initial registration with the
Registrar
In all cases, the losing Registrar shall respond to the
email notice regarding the "transfer" request within five
(5) days. Failure to respond will result in a default
"approval" of the "transfer."
REGISTRY REQUIREMENTS.
Upon receipt of the "transfer" command from the gaining Registrar, the
Registry will transmit an email notification to both Registrars.
The Registry shall complete the "transfer" if either:
1) the losing Registrar expressly "approves" the request, or
2) the Registry does not receive a response from the losing
Registrar within five (5) days.
When the Registry's database has been updated to reflect the change to
the gaining Registrar, the Registry will transmit an email
notification to both Registrars.
RECORDS OF REGISTRATION.
Each SLD holder shall maintain its own records appropriate to document and
prove the initial domain name registration date, regardless of the number
of Registrars with which the SLD holder enters into a contract for
registration services.
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EXHIBIT C
CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT is entered into by and between Network Solutions,
Inc. ("NSI"), a Delaware corporation having its principal place of business in
Herndon, VA, and , a _________ corporation having its principal place of
business in ___________________ ("Registrar"), through their authorized
representatives, and takes effect on the date executed by the final party (the
"Effective Date").
Under this Confidentiality Agreement ("Confidentiality Agreement"), the Parties
intend to disclose to one another information which they consider to be
valuable, proprietary, and confidential.
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NOW, THEREFORE, the parties agree as follows:
1. CONFIDENTIAL INFORMATION
1.1 "Confidential Information", as used in this Confidentiality Agreement, shall
mean all information and materials including, without limitation, computer
software, data, information, databases, protocols, reference implementation and
documentation, and functional and interface specifications, provided by the
disclosing party to the receiving party under this Confidentiality Agreement and
marked or otherwise identified as Confidential, provided that if a communication
is oral, the disclosing party will notify the receiving party in writing within
15 days of the disclosure.
2. CONFIDENTIALITY OBLIGATIONS
2.1 In consideration of the disclosure of Confidential Information, the Parties
agree that:
(a) The receiving party shall treat as strictly confidential, and use
all reasonable efforts to preserve the secrecy and confidentiality of,
all Confidential Information received from the disclosing party,
including implementing reasonable physical security measures and
operating procedures.
(b) The receiving party shall make no disclosures whatsoever of any
Confidential Information to others, provided however, that if the
receiving party is a corporation, partnership, or similar entity,
disclosure is permitted to the receiving party's officers, employees,
contractors and agents who have a demonstrable need to know such
Confidential Information, provided the receiving party shall advise
such personnel of the confidential nature of the Confidential
Information and of the procedures required to maintain the
confidentiality thereof, and shall require them to acknowledge in
writing that they have read, understand, and agree to be individually
bound by the terms of this Confidentiality Agreement.
(c) The receiving party shall not modify or remove any Confidential
legends and/or copyright notices appearing on any Confidential
Information.
2.2 The receiving party's duties under this section (2) shall expire five (5)
years after the information is received or earlier, upon written agreement of
the Parties.
3. RESTRICTIONS ON USE
3.1 The receiving party agrees that it will use any Confidential Information
received under this Confidentiality Agreement solely for the purpose of
providing domain name registration services as a registrar and for no other
purposes whatsoever.
3.2 No commercial use rights or any licenses under any patent, patent
application, copyright, trademark, know-how, trade secret, or any other NSI
proprietary rights are granted by the disclosing party to the receiving party by
this Confidentiality Agreement, or by any disclosure of any Confidential
Information to the receiving party under this Confidentiality Agreement.
3.3 The receiving party agrees not to prepare any derivative works based on the
Confidential Information.
3.4 The receiving party agrees that any Confidential Information which is in the
form of computer software, data and/or databases shall be used on a computer
system(s) that is owned or controlled by the receiving
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party.
4. MISCELLANEOUS
4.1 This Confidentiality Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Virginia and all applicable
federal laws. The Parties agree that, if a suit to enforce this Confidentiality
Agreement is brought in the U.S. Federal District Court for the Eastern District
of Virginia, they will be bound by any decision of the Court.
4.2 The obligations set forth in this Confidentiality Agreement shall be
continuing, provided, however, that this Confidentiality Agreement imposes no
obligation upon the Parties with respect to information that (a) is disclosed
with the disclosing party's prior written approval; or (b) is or has entered the
public domain through no fault of the receiving party; or (c) is known by the
receiving party prior to the time of disclosure; or (d) is independently
developed by the receiving party without use of the Confidential Information; or
(e) is made generally available by the disclosing party without restriction on
disclosure.
4.3 This Confidentiality Agreement may be terminated by either party upon breach
by the other party of any its obligations hereunder and such breach is not cured
within three (3) calendar days after the allegedly breaching party is notified
by the disclosing party of the breach. In the event of any such termination for
breach, all Confidential Information in the possession of the Parties shall be
immediately returned to the disclosing party; the receiving party shall provide
full voluntary disclosure to the disclosing party of any and all unauthorized
disclosures and/or unauthorized uses of any Confidential Information; and the
obligations of Sections 2 and 3 hereof shall survive such termination and remain
in full force and effect. In the event that the Registrar License and Agreement
between the Parties is terminated, the Parties shall immediately return all
Confidential Information to the disclosing party and the receiving party shall
remain subject to the obligations of Sections 2 and 3.
4.4 The terms and conditions of this Confidentiality Agreement shall inure to
the benefit of the Parties and their successors and assigns. The Parties'
obligations under this Confidentiality Agreement may not be assigned or
delegated.
4.5 The Parties agree that they shall be entitled to seek all available legal
and equitable remedies for the breach of this Confidentiality Agreement.
4.6 The terms and conditions of this Confidentiality Agreement may be modified
only in a writing signed by NSI and Registrar.
4.7 EXCEPT AS MAY OTHERWISE BE SET FORTH IN A SIGNED, WRITTEN AGREEMENT BETWEEN
THE PARTIES, THE PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESSED OR
IMPLIED, AS TO THE ACCURACY, COMPLETENESS, CONDITION, SUITABILITY, PERFORMANCE,
FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY OF ANY CONFIDENTIAL
INFORMATION, AND THE PARTIES SHALL HAVE NO LIABILITY WHATSOEVER TO ONE ANOTHER
RESULTING FROM RECEIPT OR USE OF THE CONFIDENTIAL INFORMATION.
4.8 If any part of this Confidentiality Agreement is found invalid or
unenforceable, such part shall be deemed stricken herefrom and the Parties
agree: (a) to negotiate in good faith to amend this Confidentiality Agreement to
achieve as nearly as legally possible the purpose or effect as the stricken
part, and (b) that the remainder of this Confidentiality Agreement shall at all
times remain in full force and effect.
4.9 This Confidentiality Agreement contains the entire understanding and
agreement of the Parties relating to the subject matter hereof.
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4.10 Any obligation imposed by this Confidentiality Agreement may be waived in
writing by the disclosing party. Any such waiver shall have a one-time effect
and shall not apply to any subsequent situation regardless of its similarity.
4.11 Neither Party has an obligation under this Confidentiality Agreement to
purchase, sell, or license any service or item from the other Party.
4.12 The Parties do not intend that any agency or partnership relationship be
created between them by this Confidentiality Agreement.
IN WITNESS WHEREOF, and intending to be legally bound, duly authorized
representatives of NSI and Registrar have executed this Confidentiality
Agreement in Virginia on the dates indicated below.
("Registrar") Network Solutions, Inc. ("NSI")
By: By:
-------------------------------- -------------------------------
Title: Title:
------------------------------ ---------------------------
Date: Date:
------------------------------ ----------------------------
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PAGE MODIFIED 28-SEPTEMBER-1999
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