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.cat Registry
Agreement
(23 September
2005)
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SPONSORED TLD REGISTRY AGREEMENT
This SPONSORED TLD REGISTRY AGREEMENT (this "Agreement") is
entered into as of October 1, 2005 by and between Internet Corporation for
Assigned Names and Numbers, a California nonprofit public benefit
corporation, and Fundació puntCAT, Fundació Privada, a
Catalonia private foundation.
ARTICLE I Introduction
Section I.1Effective Date. The Effective Date for purposes of
this Agreement shall be the date on which the TLD (as defined below) is
delegated within the authoritative root-server system to nameservers
designated by Registry.
Section I.2 Top-Level Domain. The Top-Level Domain to which this
Agreement applies is .CAT ("TLD").
Section I.3Designation
as Registry. Upon the Effective Date, until the Expiration Date
as defined in Section 4.1 hereof, ICANN hereby designates Fundació
puntCAT as the sponsoring organization, and sole registry for the
sponsored TLD ("Registry "). ICANN hereby delegates to
Registry the authority to develop policies for the sponsored TLD
consistent with the requirements of Section 3.1(g) of this Agreement
ARTICLE II Representations and Warranties
Section II.1Registry's Representations and Warranties.
(a)Organization; Due Authorization and Execution. Registry is a
Private Foundation, duly organized, validly existing and in good standing
under the laws of the Autonomous Community of Catalonia; the Kingdom of Spain
and the European Union, in their respective areas of competence, and Registry
has all requisite power and authority to enter into this Agreement. All
corporate approvals and actions necessary for the entrance by Registry into
this Agreement have been obtained and this Agreement has been duly and
validly executed and delivered by Registry.
(b)Statements made During Application Process. The factual
statements contained in Registry's application for the TLD, or made by
Registry Operator in negotiating this Agreement, were true and correct in all
material respects at the time the application was submitted to ICANN and are
true and correct in all material respects as of the date this Agreement is
entered into set forth above.
Section II.2ICANN's Representations and Warranties.
(a)Organization; Due Authorization and Execution. ICANN is a
nonprofit public benefit corporation duly organized, validly existing and in
good standing under the laws of California. ICANN has all requisite
corporate power and authority to enter into this Agreement. All corporate
approvals and actions necessary for the entrance by ICANN into this Agreement
have been obtained and this Agreement has been duly and validly executed and
delivered by ICANN.
ARTICLE III Covenants
Section III.1Covenants of Registry. Registry covenants and agrees
with ICANN as follows:
(a)Preserve Security and Stability.
(i)ICANN
Temporary Specifications or Policies. Registry shall comply with and
implement all specifications or policies established by the ICANN
Board of Directors on a temporary basis, if adopted by the ICANN
Board of Directors by a vote of at least two-thirds of its members,
so long as the ICANN Board of Directors reasonably determines that
immediate temporary establishment of a specification or policy on the
subject is necessary to maintain the Stability or Security (as
defined in Section 3.1(d)(iv)(G)) of Registry Services or the DNS
("Temporary Specification or Policies"). Such proposed
specification or policy shall be as narrowly tailored as feasible to
achieve those objectives. In establishing any specification or policy
under this provision, the ICANN Board of Directors shall state the
period of time for which the specification or policy is temporarily
adopted and shall immediately implement the Consensus Policy
development process set forth in ICANN's Bylaws. ICANN shall also
issue an advisory statement containing a detailed explanation of its
reasons for adopting the temporary specification or policy and why
the Board believes the specification or policy should receive the
consensus support of Internet stakeholders. If the period of time for
which the specification or policy is adopted exceeds 90 days, the
ICANN Board shall reaffirm its temporary adoption every 90 days for a
total period not to exceed one year, in order to maintain such policy
in effect until such time as it shall become a Consensus Policy as
described in Section 3.1(b) below. If during such one year period,
the temporary policy or specification does not become a Consensus
Policy meeting the standard set forth in Section 3.1(b) below,
Registry shall no longer be required to comply with or implement such
temporary policy or specification.
(b)Consensus Policies.
(i)At all times during the term of
this Agreement and subject to the terms hereof, Registry will fully
comply with and implement all Consensus Policies, as the same may be
applicable to Sponsored TLDs, found at
http://www.icann.org/general/consensus-policies.htm, as of the
Effective Date and as may in the future be developed and adopted in
accordance with ICANN's Bylaws and as set forth below.
(ii)"Consensus
Policies" are those specifications or policies established (1)
pursuant to the procedure set forth in ICANN's Bylaws and due
process, and (2) covering those topics listed in Section 3.1(b)(iv)
below. The Consensus Policy development process and procedure set
forth in ICANN's Bylaws may be revised from time to time in
accordance with ICANN's Bylaws, and any Consensus Policy that is
adopted through such a revised process and covering those topics
listed in Section 3.1(b)(iv) below shall be considered a Consensus
Policy for purposes of this Agreement.
(iii)For
all purposes under this Agreement, the policies identified at
http://www.icann.org/general/consensus-policies.htm shall be treated
in the same manner and have the same effect as "Consensus
Policies."
(iv)Consensus
Policies and the procedures by which they are developed shall be
designed to produce, to the extent possible, a consensus of Internet
stakeholders. Consensus Policies shall relate to one or more of the
following: (1) issues for which uniform or coordinated resolution is
reasonably necessary to facilitate interoperability, Security and/or
Stability of the Internet or DNS; (2) functional and performance
specifications for the provision of Registry Services (as defined in
Section 3.1(d)(iii) below); (3) Security and Stability of the
registry database for the TLD; (4) registry policies reasonably
necessary to implement Consensus Policies relating to registry
operations or registrars; or (5) resolution of disputes regarding the
registration of domain names (as opposed to the use of such domain
names). Such categories of issues referred to in the preceding
sentence shall include, without limitation:
(A)principles
for allocation of registered names in the TLD (e.g., first-come,
first-served, timely renewal, holding period after expiration);
(B)prohibitions
on warehousing of or speculation in domain names by registries or
registrars;
(C)reservation
of registered names in the TLD 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., establishment of reservations of names from registration);
(D)maintenance
of and access to accurate and up-to-date information concerning
domain name registrations;
(E)procedures
to avoid disruptions of domain name registration due to suspension or
termination of operations by a registry operator or a registrar,
including procedures for allocation of responsibility for serving
registered domain names in a TLD affected by such a suspension or
termination; and
(F)resolution
of disputes regarding whether particular parties may register or
maintain registration of particular domain names.
(v)Registry
shall be afforded a reasonable period of time following notice of the
establishment of a Consensus Policy or Temporary Specifications or
Policies in which to comply with such policy or specification, taking
into account any urgency involved.
In
the event of a conflict between Registry Services (as defined in
Section 3.1(d)(iii) below), on the one hand, and Consensus Policies
developed in accordance with this Section 3.1(b) or any Temporary
Specifications or Policies established pursuant to Section 3.1(a)(i)
above, on the other hand, the Consensus Polices or Temporary
Specifications or Policies shall control, notwithstanding any other
provisions contained within this Agreement.
(c)Handling
of Registry Data.
(i)Data
Escrow. Registry shall establish at its expense a data escrow or
mirror site policy for the Registry Data compiled by Registry
Operator. Registry Data, as used in this Agreement, shall mean the
following: (1) data for domains sponsored by all registrars,
consisting of domain name, server name for each nameserver, registrar
id, updated date, creation date, expiration date, status information,
and DNSSEC-related key material; (2) data for nameservers sponsored
by all registrars consisting of server name, each IP address,
registrar id, updated date, creation date, expiration date, and
status information; (3) data for registrars sponsoring registered
domains and nameservers, consisting of registrar id, registrar
address, registrar telephone number, registrar e-mail address, whois
server, referral URL, updated date and the name, telephone number,
and e-mail address of all the registrar's administrative, billing,
and technical contacts; (4) domain name registrant data collected by
the Registry from registrars as part of or following registration of
a domain name; and (5) the DNSSEC-related material necessary to sign
the TLD zone (e.g., public and private portions of TLD zone
key-signing keys and zone-signing keys). The escrow agent or
mirror-site manager, and the obligations thereof, shall be mutually
agreed upon by ICANN and Registry on commercially reasonable
standards that are technically and practically sufficient to allow a
successor registry operator to assume management of the TLD. To this
end, Registry shall periodically deposit into escrow all Registry
Data on a schedule (not more frequently than weekly for a complete
set of Registry Data, and daily for incremental updates) and in an
electronic format mutually approved from time to time by Registry and
ICANN, such approval not to be unreasonably withheld by either party.
In addition, Registry will deposit into escrow that data collected
from registrars as part of offering Registry Services introduced
after the Effective Date of this Agreement. The escrow shall be
maintained, at Registry's expense, by a reputable escrow agent
mutually approved by Registry and ICANN, such approval also not to be
unreasonably withheld by either party. The schedule, content, format,
and procedure for escrow deposits shall be as reasonably established
by ICANN from time to time, and as set forth in Appendix 1 hereto.
Changes to the schedule, content, format, and procedure may be made
only with the mutual written consent of ICANN and Registry (which
neither party shall unreasonably withhold) or through the
establishment of a Consensus Policy as outlined in Section 3.1(b)
above. The escrow shall be held under an agreement, substantially in
the form of Appendix 2, as the same may be revised from time to time,
among ICANN, Registry, and the escrow agent. The escrow will contain
DNSSEC-related material only after Registry implements it in the
future.
(ii)Personal
Data. Registry shall notify registrars sponsoring registrations in
the registry for the TLD of the purposes for which Personal Data (as
defined below) submitted to Registry by registrars, if any, is
collected, the intended recipients (or categories of recipients) of
such Personal Data, and the mechanism for access to and correction of
such Personal Data. Registry shall take reasonable steps to protect
Personal Data from loss, misuse, unauthorized disclosure, alteration
or destruction. Registry shall not use or authorize the use of
Personal Data in a way that is incompatible with the notice provided
to registrars. "Personal Data" shall refer to all data
about any identified or identifiable natural person.
(iii)Bulk
Zone File Access. Registry shall provide bulk access to the zone
files for the registry for the TLD to ICANN on a reasonable basis in
the manner ICANN may specify from time to time. Bulk access to the
zone files shall be provided to third parties on the terms set forth
in the TLD zone file access agreement reasonably established by
ICANN, which initially shall be in the form attached as Appendix 3
hereto. Changes to the zone file access agreement may be made upon
the mutual written consent of ICANN and Registry (which consent
neither party shall unreasonably withhold).
(iv)Monthly
Reporting. Within 20 days following the end of each calendar month,
Registry shall prepare and deliver to ICANN a report providing such
data and in the format specified in Appendix 4. ICANN may audit
Registry's books and records relating to data contained in monthly
reports from time to time upon reasonable advance written notice,
provided that such audits shall not exceed one per quarter. Any such
audit shall be at ICANN's cost, unless such audit shall reflect a
material discrepancy or discrepancies in the data provided by
Registry. In the latter event, Registry shall reimburse ICANN for all
costs and expenses associated with such audit, which reimbursement
shall be paid together with the next Registry-Level Fee payment due
following the date of transmittal of the cost statement for such
audit. For purposes of this section, a "material discrepancy or
discrepancies" shall be a discrepancy or discrepancies that, in
the singular for the aggregate, result in an understatement in excess
of 5% of the fees owed to ICANN by Registry under section 7.2.
(v)Whois
Service. Registry shall provide such whois data as set forth in
Appendix 5 and Part VI of Appendix S.
(d)Registry
Operations.
(i)Registration
Restrictions.
(A)Registry
shall be responsible for establishing policies, in conformity with
the charter, for the naming conventions within the sponsored TLD and
for requirements of registration, consistent with Section 3.1(g).
(B)Registry
shall be responsible for establishing procedures for the enforcement
of applicable Charter restrictions on registration within the TLD, as
described in more detail in the sponsored TLD charter attached as
Part I to Appendix S.
(C)Registry
shall reserve, and not register any TLD strings (i) appearing on the
list of reserved TLD strings attached as Appendix 6 hereto or (ii)
located at http://data.iana.org/TLD/tlds-alpha-by-domain.txt for
initial (i.e., other than renewal) registration at the second level
within the TLD.
(ii)Functional
and Performance Specifications. Functional and Performance
Specifications for operation of the TLD shall be as set forth in
Appendix 7 hereto, and shall address without limitation minimum
requirements for DNS services; operation of the shared registration
system; and nameserver operations. Registry shall keep technical and
operational records sufficient to evidence compliance with such
specifications for at least one year, which records ICANN may audit
from time to time upon reasonable advance written notice, provided
that such audits shall not exceed one per quarter. Any such audit
shall be at ICANN's cost.
(iii)Registry
Services. Registry Services are, for purposes of this Agreement,
defined as the following: (a) those services that are operations of
the registry critical to the following tasks: the receipt of data
from registrars concerning registrations of domain names and name
servers; provision to registrars of status information relating to
the zone servers for the TLD; dissemination of TLD zone files;
operation of the registry zone servers; and dissemination of contact
and other information concerning domain name server registrations in
the TLD as required by this Agreement; (b) other products or services
that the Registry is required to provide because of the establishment
of a Consensus Policy (as defined in Section 3.1(b) above); (c) any
other products or services that only a Registry operator is capable
of providing, by reason of its designation as the registry operator;
and (d) material changes to any Registry Service within the scope of
(a), (b) or (c) above.
(iv)Process
for Consideration of Proposed Registry Services. Following written
notification by Registry to ICANN that Registry may make a change in
a Registry Service within the scope of the preceding paragraph:
(A)ICANN
shall have 15 calendar days to make a "preliminary determination"
whether a Registry Service requires further consideration by ICANN
because it reasonably determines such Registry Service: (i) could
raise significant Security or Stability issues or (ii) could raise
significant competition issues.
(B)Registry
must provide sufficient information at the time of notification to
ICANN that it may implement such a proposed Registry Service to
enable ICANN to make an informed "preliminary determination."
Information provided by Registry and marked "CONFIDENTIAL" shall
be treated as confidential by ICANN. Registry will not designate
"CONFIDENTIAL" information necessary to describe the purpose of
the proposed Registry Service and the effect on users of the DNS.
(C)ICANN
may seek expert advice during the preliminary determination period
(from entities or persons subject to confidentiality agreements) on
the competition, Security or Stability implications of the Registry
Service in order to make its "preliminary determination." To the
extent ICANN determines to disclose confidential information to any
such experts, it will provide notice to Registry of the identity of
the expert(s) and the information it intends to convey.
(D)If
ICANN determines during the 15 calendar day "preliminary
determination" period that the proposed Registry Service, does not
raise significant Security or Stability (as defined below), or
competition issues, Registry shall be free to deploy it upon such a
determination.
(E)In
the event ICANN reasonably determines during the 15 calendar day
"preliminary determination" period that the Registry Service
might raise significant competition issues, ICANN shall refer the
issue to the appropriate governmental competition authority or
authorities with jurisdiction over the matter within five business
days of making its determination, or two business days following the
expiration of such 15 day period, whichever is earlier, with notice
to Registry. Any such referral communication shall be posted on
ICANN's website on the date of transmittal. Following such referral,
ICANN shall have no further responsibility, and Registry shall have
no further obligation to ICANN, with respect to any competition
issues relating to the Registry Service. If such a referral occurs,
the Registry will not deploy the Registry Service until 45 calendar
days following the referral, unless earlier cleared by the referred
governmental competition authority.
(F)In the event that ICANN
reasonably determines during the 15 calendar day "preliminary
determination" period that the proposed Registry Service might
raise significant Stability or Security issues (as defined below),
ICANN will refer the proposal to a Standing Panel of experts (as
defined below) within five business days of making its determination,
or two business days following the expiration of such 15 day period,
whichever is earlier, and simultaneously invite public comment on the
proposal. The Standing Panel shall have 45 calendar days from the
referral to prepare a written report regarding the proposed Registry
Service's effect on Security or Stability (as defined below), which
report (along with a summary of any public comments) shall be
forwarded to the ICANN Board. The report shall set forward the
opinions of the Standing Panel, including, but not limited to, a
detailed statement of the analysis, reasons, and information upon
which the panel has relied in reaching their conclusions, along with
the response to any specific questions that were included in the
referral from ICANN staff. Upon ICANN's referral to the Standing
Panel, Registry may submit additional information or analyses
regarding the likely effect on Security or Stability of the Registry
Service.
(G)Upon
its evaluation of the proposed Registry Service, the Standing Panel
will report on the likelihood and materiality of the proposed
Registry Service's effects on Security or Stability, including
whether the proposed Registry Service creates a reasonable risk of a
meaningful adverse effect on Security or Stability as defined below:
Security:
For purposes of this Agreement, an effect on security by the proposed
Registry Service shall mean (1) the unauthorized disclosure,
alteration, insertion or destruction of Registry Data, or (2) the
unauthorized access to or disclosure of information or resources on
the Internet by systems operating in accordance with all applicable
standards.
Stability:
For purposes of this Agreement, an effect on stability shall mean
that the proposed Registry Service (1) is not compliant with
applicable relevant standards that are authoritative and published by
a well-established, recognized and authoritative standards body, such
as relevant Standards-Track or Best Current Practice RFCs sponsored
by the IETF or (2) creates a condition that adversely affects the
throughput, response time, consistency or coherence of responses to
Internet servers or end systems, operating in accordance with
applicable relevant standards that are authoritative and published by
a well-established, recognized and authoritative standards body, such
as relevant Standards-Track or Best Current Practice RFCs and relying
on Registry 's delegation information or provisioning services.
(H)Following
receipt of the Standing Panel's report, which will be posted (with
appropriate confidentiality redactions made after consultation with
Registry) and available for public comment, the ICANN Board will have
30 calendar days to reach a decision. In the event the ICANN Board
reasonably determines that the proposed Registry Service creates a
reasonable risk of a meaningful adverse effect on Stability or
Security, Registry will not offer the proposed Registry Service. An
unredacted version of the Standing Panel's report shall be provided
to Registry upon the posting of the report. The Registry may respond
to the report of the Standing Panel or otherwise submit to the ICANN
Board additional information or analyses regarding the likely effect
on Security or Stability of the Registry Service.
(I)The
Standing Panel shall consist of a total of 20 persons expert in the
design, management and implementation of the complex systems and
standards-protocols utilized in the Internet infrastructure and DNS
(the "Standing Panel"). The members of the Standing Panel will be
selected by its Chair. The Chair of the Standing Panel will be a
person who is agreeable to both ICANN and the registry constituency
of the supporting organization then responsible for generic top level
domain registry policies. All members of the Standing Panel and the
Chair shall execute an agreement requiring that they shall consider
the issues before the panel neutrally and according to the
definitions of Security and Stability. For each matter referred to
the Standing Panel, the Chair shall select no more than five members
from the Standing Panel to evaluate the referred matter, none of
which shall have an existing competitive, financial, or legal
conflict of interest, and with due regard to the particular technical
issues raised by the referral.
(e)Fees
and Payments. Registry shall pay the Registry-Level Fees to ICANN
on a quarterly basis in accordance with Section 7.2 hereof.
(f)Cooperation.
Registry shall cooperate with ICANN in efforts to promote and
facilitate the security and stability of the Internet and maintain a
reliable and stable DNS. To this end, Registry shall provide such
data and assistance to ICANN as it may reasonably request from time
to time.
(g)General
Obligations of Registry to Sponsored Community. During the Term
of this Agreement, Registry shall, in developing or enforcing
standards, policies, procedures, or practices with respect to the
TLD:
(i)publish
such standards, policies, procedures, and practices so they are
available to members of the sponsored TLD community;
(ii)conduct
its policy-development activities in a manner that reasonably
provides opportunities for members of the sponsored TLD community to
discuss and participate in the development of such standards,
policies, procedures, or practices;
(iii)maintain
the representativeness of its policy-development and implementation
process by establishing procedures that facilitate participation by a
broad cross-section of the sponsored TLD community; and
(iv)ensure,
through published procedures, adequate opportunities for members of
the sponsored TLD community to submit their views on and objections
to the establishment or revision of standards, policies, procedures,
and practices or the manner in which standards, policies, procedures,
and practices are enforced.
Section III.2Covenants
of ICANN. ICANN covenants and agrees with Registry as follows:
(a)Open
and Transparent. Consistent with ICANN's expressed mission and
core values, ICANN shall operate in an open and transparent manner.
(b)Equitable
Treatment. ICANN shall not apply standards, policies, procedures
or practices arbitrarily, unjustifiably, or inequitably and shall not
single out Registry for disparate treatment unless justified by
substantial and reasonable cause.
(c)TLD
Zone Servers. In the event and to the extent that ICANN is
authorized to set policy with regard to an authoritative root server
system, it will ensure that (i) the authoritative root will point
to the TLD zone servers designated by Registry for the Registry TLD
throughout the Term of this Agreement; and (ii) any changes to the
TLD zone server designation submitted to ICANN by Registry will be
implemented by ICANN within seven days of submission.
(d)Nameserver
Changes. Registry may request changes in the nameserver
delegation for the Registry TLD. Any such request must be made in a
format, and otherwise meet technical requirements, specified from
time to time by ICANN. ICANN will use commercially reasonable efforts
to have such requests implemented in the Authoritative Root-Server
System within seven calendar days of the submission.
(e)Root-zone
Information Publication. ICANN's publication of root-zone contact
information for the Registry TLD will include Registry and its
administrative and technical contacts. Any request to modify the
contact information for the Registry must be made in the format
specified from time to time by ICANN.
ARTICLE IV
Term of Agreement
Section IV.1Term.
The initial term of this Agreement shall be ten (10) years from the
Effective Date (the "Expiration Date"). Registry agrees that upon
the earlier of (i) termination of this Agreement by ICANN in
accordance with Article VI below or (ii) the Expiration Date, it will
cease to be the Registry for the TLD, unless, with respect to
termination under the foregoing clause (ii), Registry and ICANN agree
on terms for renewal of the Agreement as set forth in Section 4.2
below prior to the Expiration Date.
Section IV.2Renewal.
This Agreement shall be renewed upon the expiration of the initial
term set forth in Section 4.1 above, and following any renewal term,
unless: (i) an arbitrator or court has determined that Registry has
been in fundamental and material breach of Registry's obligations
set forth in Sections 3.1(a), (b), (d) or (e); Section 5.2 or Section
7.3 despite notice and an opportunity to cure in accordance with
Article VI hereof and (ii) following the final decision of such
arbitrator or court, Registry has failed to correct the conduct found
to constitute such breach. Provided, however, that Registry agrees
that any renewal of this Agreement is conditioned on its negotiation
of renewal terms acceptable to ICANN, including, but not limited to,
provisions relating to registry-level fees.
Section IV.3Changes.
While this Agreement is in effect, the parties agree to engage in
good faith negotiations at regular intervals (at least once every
three calendar years following the Effective Date) regarding possible
changes to the terms of the Agreement, including to Section 7.2
regarding fees and payments to ICANN.
Section IV.4Failure
to Perform in Good Faith. In the event Registry shall have been
repeatedly and willfully in fundamental and material breach of
Registry Operator's obligations set forth in Sections 3.1(a), (b),
(d) or (e); Section 5.2 or Section 7.3, and arbitrators in accordance
with Section 5.1(b) of this Agreement repeatedly have found Registry
to have been in fundamental and material breach of this Agreement,
including in at least three separate awards, then ICANN may request
the arbitrators award such punitive, exemplary or other damages as
they may believe appropriate under the circumstances.
ARTICLE V Dispute Resolution
Section V.1Resolution of Disputes.
(a)Cooperative
Engagement. In the event of a disagreement between Registry and
ICANN arising under or out of this Agreement, either party may by
notice to the other invoke the dispute resolution provisions of this
Article V. Provided, however, that before either party may initiate
arbitration as provided in Section 5.1(b) below, ICANN and Registry
must attempt to resolve the dispute by cooperative engagement as set
forth in this Section 5.1(a). If either party provides written notice
to the other demanding cooperative engagement as set forth in this
Section 5.1(a), then each party will, within seven calendar days
after such written notice is deemed received in accordance with
Section 8.6 hereof, designate a single executive officer as its
representative under this Section 5.1(a) with full authority to act
on such party's behalf to resolve the dispute. The designated
representatives shall, within 2 business days after being designated,
confer by telephone or in person to attempt to resolve the dispute.
If they are not able to resolve the dispute during such telephone
conference or meeting, they shall further meet in person at a
location reasonably designated by ICANN within 7 calendar days after
such initial telephone conference or meeting, at which meeting the
parties shall attempt to reach a definitive resolution. The time
schedule and process set forth in this Section 5.1(a) may be modified
with respect to any dispute, but only if both parties agree to a
revised time schedule or process in writing in advance. Settlement
communications within the scope of this paragraph shall be
inadmissible in any arbitration or litigation between the parties.
(b)Arbitration.
Disputes arising under or in connection with this Agreement,
including requests for specific performance, shall be resolved
through binding arbitration conducted as provided in this Section
5.1(b) pursuant to the rules of the International Court of
Arbitration of the International Chamber of Commerce ("ICC").
The arbitration shall be conducted in the English language and shall
occur in Los Angeles County, California, USA only following the
failure to resolve the dispute pursuant to cooperative engagement
discussions as set forth in Section 5.1(a) above. There shall be
three arbitrators: each party shall choose one arbitrator and, if the
two arbitrators are not able to agree on a third arbitrator, the
third shall be chosen by the ICC. The prevailing party in the
arbitration shall have the right to recover its costs and reasonable
attorneys' fees, which the arbitrators shall include in their awards.
Any party that seeks to confirm or vacate an
arbitration award issued under this Section 5.1(b) may do so only
pursuant to the applicable arbitration statutes. In any
litigation involving ICANN concerning this Agreement, jurisdiction
and exclusive venue for such litigation shall be in a court located
in Los Angeles County, 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
a temporary stay or injunctive relief from the arbitration panel or a
court, which shall not be a waiver of this agreement to arbitrate.
Section V.2Specific
Performance. Registry and ICANN agree that irreparable damage
could occur if any of the provisions of this Agreement was not
performed in accordance with its specific terms. Accordingly, the
parties agree that they each shall be entitled to seek from the
arbitrators specific performance of the terms of this Agreement (in
addition to any other remedy to which each party is entitled).
Section V.3Limitation
of Liability. ICANN's aggregate monetary liability for violations
of this Agreement shall not exceed the amount of Registry-Level Fees
paid by Registry to ICANN within the preceding twelve-month period
pursuant to Section 7.2 of this Agreement. Registry's aggregate
monetary liability to ICANN for violations of this Agreement shall be
limited to fees and monetary sanctions due and owing to ICANN under
this Agreement. In no event shall either party be liable for special,
indirect, incidental, punitive, exemplary, or consequential damages
arising out of or in connection with this Agreement or the
performance or nonperformance of obligations undertaken in this
Agreement, except as provided pursuant to Section 4.4 of this
Agreement. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT,
REGISTRY DOES NOT MAKE ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT
TO THE SERVICES RENDERED BY ITSELF, ITS SERVANTS, OR ITS AGENTS OR
THE RESULTS OBTAINED FROM THEIR WORK, INCLUDING, WITHOUT LIMITATION,
ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS
FOR A PARTICULAR PURPOSE.
ARTICLE VI Termination Provisions
Section VI.1Termination by ICANN.
ICANN may terminate this Agreement if Registry fails to cure any
fundamental and material breach of Registry's obligations set forth
in Sections 3.1(a), (b), (d) or (e); Section 5.2 or Section 7.3
despite notice and an opportunity to cure in accordance with Section
6.3 within thirty calendar days after ICANN gives Registry written
notice of the breach, which notice shall include with specificity the
details of the alleged breach.
Section VI.2Termination
by Registry. Registry may terminate this agreement and its
designation as Registry for the .cat TLD pursuant to 120 days prior
notice in writing to ICANN, and subject to compliance with section
6.4 hereof.
Section VI.3Bankruptcy.
This Agreement shall automatically terminate in the event Registry
shall voluntarily or involuntarily be subject to bankruptcy
proceedings and such proceeding is not dismissed
within sixty (60) days.
Section VI.4Notice;
Opportunity to Cure. This Agreement may be terminated in the
circumstances described in Section 6.1 above only following written
notice to Registry and Registry's failure to cure within 30 days or
such other reasonable prescribed time period, with Registry being
given a reasonable opportunity during that time to initiate
arbitration under Section 5.1(b) to determine the appropriateness of
termination under this Agreement. In the event Registry initiates
arbitration concerning the appropriateness of termination by ICANN,
Registry 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
decision or until the arbitration panel has granted an ICANN request
for lifting of the stay.
Section VI.5Transition
of Registry upon Termination of Agreement. Upon any termination
of this Agreement as provided in Sections 6.1 and 6.2, the parties
agree to work cooperatively to facilitate and implement the
transition of the registry for the TLD in accordance with this
Section 6.4. Registry shall agree to provide ICANN or any successor
registry authority that may be designated for the TLD with any data
regarding operations of the Registry for the TLD necessary to
maintain operations that may be reasonably requested in addition to
that data escrowed in accordance with Section 3.1(c)(i) hereof.
Section VI.6Rights
in Data. Registry shall not be entitled to claim any intellectual
property rights in Registry Data. In the event that Registry Data is
released from escrow as set forth in Section 3.1(c)(i), rights, if
any, held by Registry in the data shall automatically be licensed on
a non-exclusive, irrevocable, royalty-free, paid-up basis to ICANN or
to a party designated in writing by ICANN.
Section VI.7No
Reimbursement. Any and all expenditures, capital investments or
other investments made by Registry in connection with this Agreement
shall be at Registry's own risk and ICANN shall have no obligation
to reimburse Registry for any such expense, capital expenditure or
investment. Registry shall not be required to make any payments to a
successor registry operator by reason of registry fees paid to
Registry prior to the effective date of (i) any termination or
expiration of this Agreement or (ii) transition of the registry,
unless any delay in transition of the registry to a successor
operator shall be due to the actions of Registry.
ARTICLE VII
Special Provisions
Section VII.1Registry-Registrar
Agreement.
(a)Access to Registry Services.
Registry shall make access to Registry Services, including the shared
registration system, available to ICANN-accredited registrars. The
criteria for the selection of Registrars shall be set forth in
Appendix S, part V. Following execution of the Registry-Registrar
Agreement, provided registrars are in compliance with such agreement,
operational access to Registry Services, including the shared
registration system for the TLD. Such nondiscriminatory access shall
include without limitation the following:
(i)All
registrars (including any registrar affiliated with Registry) can
connect to the shared registration system gateway for the TLD via the
Internet by utilizing the same maximum number of IP addresses and SSL
certificate authentication;
(ii)Registry
has made the current version of the registrar toolkit software
accessible to all registrars and has made any updates available to
all registrars on the same schedule;
(iii)All
registrars have the same level of access to customer support
personnel via telephone, e-mail and Registry 's website;
(iv)All
registrars have the same level of access to registry resources to
resolve registry/registrar or registrar/registrar disputes and
technical and/or administrative customer service issues;
(v)All
registrars have the same level of access to data generated by
Registry to reconcile their registration activities from Registry's
Web and ftp servers;
(vi)All
registrars may perform basic automated registrar account management
functions using the same registrar tool made available to all
registrars by Registry; and
(vii)The
shared registration system does not include, for purposes of
providing discriminatory access, any algorithms or protocols that
differentiate among registrars with respect to functionality,
including database access, system priorities and overall performance.
Such
Registry-Registrar Agreement may be revised by Registry from time to
time, provided however, that any such revisions must be approved in
advance by ICANN.
(b)
Registry Shall Not Act as Own Registrar. Registry shall not
act as a registrar with respect to the TLD. This shall not preclude
Registry from registering names within the TLD to itself through a
request made to an ICANN-accredited registrar.
(c)Restrictions
on Acquisition of Ownership or Controlling Interest in Registrar.
Registry shall not acquire, directly or indirectly, control of, or a
greater than fifteen percent ownership interest in, any
ICANN-accredited registrar.
Section VII.2Fees to be Paid to ICANN.
(a)Payment
Schedule. Registry shall pay the Registry-Level Fees specified in
Sections 7.2(b) and (c) below, and Section 7.2(d), if applicable, by
the 20th day following the end of each calendar quarter (i.e., on
April 20, July 20, October 20 and January 20 for the calendar
quarters ending March 31, June 30, September 30 and December 31) of
the year to an account designated by ICANN. The first quarterly
payment of the Fixed Registry-Level Fee shall be prorated from the
Effective Date until the end of the calendar quarter in which the
Effective Date falls.
(b)Fixed
Registry-Level Fee. Commencing on the Effective Date, Registry
shall pay ICANN a quarterly Fixed Registry-Level Fee in an amount
equal to US$2,500 for each quarter during the twelve-month period
ending June 30, 2006. Such fee is subject to increase on July 1 of
each year thereafter in an amount established by ICANN's Board of
Directors, but not to exceed a sum equal to 115% of the prior year's
fee. One dollar (USD) of the Fixed Registry-Level Fee shall be waived
for each dollar that the Registry-Level Transaction Fee exceeds
US$2,000,000 per annum.
(c)Registry-Level
Transaction Fee. Commencing as of the Effective Date Registry
shall pay ICANN a Registry-Level Transaction Fee in an amount equal
to US$1.00 for each annual increment of an initial or renewal domain
name registration or for transferring a domain name registration from
one ICANN-accredited registrar to another during the calendar quarter
to which the Registry-Level Transaction Fee pertains. For purposes of
this Section 7.2(c), a "domain name registration" shall include a
domain name within the registry for the TLD, whether consisting of
two or more (e.g., john.smith.name) levels, about which Registry or
an affiliate thereof maintains Registry Data. The Registry-Level
Transaction fee shall not apply to domain names registered according
to those services described in Part VII of Appendix S
(d)Variable
Registry-Level Fee. For fiscal quarters in which ICANN does not
collect a variable accreditation fee from all registrars, upon
receipt of reasonable notice in writing from ICANN of not less than
45 days, Registry shall pay ICANN a Variable Registry-Level Fee. The
fee will be calculated by ICANN, paid to ICANN by the Registry in
accordance with the Payment Schedule in Section 7.2(a), and the
Registry will invoice and collect the fees from the registrars who
are party to a Registry-Registrar Agreement with Registry. The fee
will consist of two components; each component will be calculated by
ICANN for each registrar.
(i)The
transactional component of the Variable Registry-Level Fee shall be
specified by ICANN in accordance with the budget adopted by the ICANN
Board of Directors for each fiscal year but shall not exceed eighty
percent (80%) of the registrar level transaction fee as established
pursuant to the approved 2004-2005 ICANN Budget.
(ii)The
per-registrar component of the Variable Registry-Level Fee shall be
specified by ICANN in accordance with the budget adopted by the ICANN
Board of Directors for each fiscal year, but the sum of the per
registrar fees calculated for all registrars shall not exceed the
total Per-Registrar Variable funding established pursuant to the
approved 2004-2005 ICANN Budget.
(e)Interest
on Late Payments. For any payments ten days or more overdue,
Registry shall pay interest on late payments at the rate of 1.5% per
month or, if less, the maximum rate permitted by applicable law.
ARTICLE VIII
Miscellaneous
Section VIII.1Indemnification
of ICANN. Registry shall indemnify, defend, and hold harmless
ICANN (including 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: (a) the selection of Registry to operate the
registry for the TLD; (b) the entry of this Agreement; (c)
establishment or operation of the registry for the TLD; (d) Registry
Services; (e) collection or handling of Personal Data by Registry;
(f) any dispute concerning registration of a domain name within the
domain of the TLD for the registry; and (g) duties and obligations of
Registry in operating the registry for the TLD; provided that, with
respect to item (g) only, Registry shall not be obligated to
indemnify, defend, or hold harmless ICANN to the extent the claim,
damage, liability, cost, or expense arose due to a breach by ICANN of
any obligation contained in this Agreement. For avoidance of doubt,
nothing in this Section 8.1 shall be deemed to require Registry to
reimburse or otherwise indemnify ICANN for the costs associated with
the negotiation or execution of this Agreement, or with the
monitoring or management of the parties' respective obligations under
this Agreement. Further, this section shall not apply to any request
for attorney's fees in connection with any litigation or arbitration
between or among the parties.
Section VIII.2Indemnification
Procedures. If any third-party claim is commenced that is
indemnified under Section 8.1 above, notice thereof shall be given to
ICANN as promptly as practicable. Registry shall be entitled, if it
so elects, in a notice promptly delivered to ICANN, to immediately
take control of the defense and investigation of such claim and to
employ and engage attorneys reasonably acceptable to the indemnified
party to handle and defend the same, at the indemnifying party's sole
cost and expense, provided that in all events ICANN shall be entitled
to control at its sole cost and expense the litigation of issues
concerning the validity or interpretation of ICANN policies or
conduct. ICANN shall cooperate, at its own cost, in all reasonable
respects with Registry and its attorneys in the investigation, trial,
and defense of such claim and any appeal arising therefrom; provided,
however, that the indemnified party may, at its own cost and expense,
participate, through its attorneys or otherwise, in such
investigation, trial and defense of such claim and any appeal arising
therefrom. No settlement of a claim that involves a remedy affecting
ICANN other than the payment of money in an amount that is
indemnified shall be entered into without the consent of ICANN. If
Registry does not assume full control over the defense of a claim
subject to such defense in accordance with this Section, Registry may
participate in such defense, at its sole cost and expense, and ICANN
shall have the right to defend the claim in such manner as it may
deem appropriate, at the cost and expense of Registry.
Section VIII.3No
Offset. All payments due under this Agreement shall be made in a
timely manner throughout the term of this Agreement and
notwithstanding the pendency of any dispute (monetary or otherwise)
between Registry and ICANN.
Section VIII.4Use
of ICANN Name and Logo. ICANN grants to Registry a non-exclusive
royalty-free license to state that it is designated by ICANN as the
Registry for the Registry TLD and to use a logo specified by ICANN to
signify that Registry is an ICANN-designated registry authority. This
license may not be assigned or sublicensed by Registry.
Section VIII.5Assignment
and Subcontracting. Any assignment of this Agreement shall be
effective only upon written agreement by the assignee with the other
party to assume the assigning party's obligations under this
Agreement. Moreover, neither party may assign this Agreement without
the prior written approval of the other party. Notwithstanding the
foregoing, ICANN may assign this Agreement (i) in conjunction with a
reorganization or re-incorporation of ICANN, to another nonprofit
corporation organized for the same or substantially the same
purposes, or (ii) as may be required pursuant to the terms of that
certain Memorandum of Understanding between ICANN and the U.S.
Department of Commerce, as the same may be amended from time to time.
Registry must provide notice to ICANN of any subcontracting
arrangements, and any agreement to subcontract portions of the
operations of the TLD must mandate compliance with all covenants,
obligations and agreements by Registry hereunder. Any subcontracting
of technical operations shall provide that the subcontracted entity
become party to the data escrow agreement mandated by Section
3.1(c)(i) hereof.
Section VIII.6Amendments
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 or failure to enforce any of the
provisions hereof shall be deemed or shall constitute a waiver of any
other provision hereof, nor shall any such waiver constitute a
continuing waiver unless otherwise expressly provided.
Section VIII.7No
Third-Party Beneficiaries. This Agreement shall not be construed
to create any obligation by either ICANN or Registry to any non-party
to this Agreement, including any registrar or registered name holder.
Section VIII.8Notices,
Designations, and Specifications. All notices to be given under
or in relation to this Agreement shall be given either (i) in writing
at the address of the appropriate party as set forth below or (ii)
via facsimile or electronic mail as provided below, unless that party
has given a notice of change of postal or email address, or facsimile
number, as provided in this agreement. Any change in the contact
information for notice below shall be given by the party within 30
days of such change. Any notice required by this Agreement shall be
deemed to have been properly given (i) if in paper form, when
delivered in person or via courier service with confirmation of
receipt or (ii) if via facsimile or by electronic mail, upon
confirmation of receipt by the recipient's facsimile machine or email
server. Whenever this Agreement shall specify a URL address for
certain information, Registry shall be deemed to have been given
notice of any such information when electronically posted at the
designated URL. In the event other means of notice shall become
practically achievable, such as notice via a secure website, the
parties shall work together to implement such notice means under this
Agreement.
If
to ICANN, addressed to:
Internet
Corporation for Assigned Names and Numbers
4676
Admiralty Way, Suite 330
Marina
Del Rey, California 90292
Telephone:
1/310/823-9358
Facsimile:
1/310/823-8649
Attention:
President and CEO
With
a Required Copy to: General Counsel
E-mail:
as specified from time to time
If
to Registry, addressed to:
Fundació
puntCAT
Carrer
del Carme, 47
E-08001
Barcelona
Telephone:
+34 935 110 757
Facsimile:
+34 932 701 180
Attention:
Director General
E-mail:
as specified from time to time
Section VIII.9
Language. Notices, designations, determinations, and
specifications made under this Agreement shall be in the English
language.
Section VIII.10
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.
Section VIII.11Entire
Agreement. This Agreement (including its Appendices, which form a
part of it) constitutes the entire agreement of the parties hereto
pertaining to the operation of the TLD and supersedes all prior
agreements, understandings, negotiations and discussions, whether
oral or written, between the parties on that subject. In the event of
a conflict between the provisions in the body of this Agreement and
any provision in its Appendices, the provisions in the body of the
Agreement shall control.
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be executed by their duly authorized
representatives.
INTERNET
CORPORATION FOR ASSIGNED NAMES AND NUMBERS
By:_____________________________
Dr.
Paul Twomey
President
and CEO
Date:____________________
Fundació
puntCAT
By:_____________________________
Jordi
Alvinyà i Rovira
Member
of the Board of Trustees
and
Secretary
Date:____________________
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