RESELLING MEMBER AGREEMENT (Version:2007-01)
This Reselling Member Agreement (the "Agreement") is dated as of _______________ ("Effective Date") by and between CORE Internet Council of Registrars, a not for profit association organized and existing under Articles 69-79 of the Swiss Civil Code, World Trade Center II, 29 route de Pre-Bois, CH-1215 Geneva, Switzerland ("CORE"), and _______________________________, a ___________________________ , with its principal place of business located at ______________________________________________________("Reselling Member"). CORE and Reselling Member may be referred to individually as a "Party" and collectively as the "Parties."
WHEREAS, Reselling Member is a Member of CORE.
WHEREAS, CORE has been granted by the Internet Corporation for Assigned names and Numbers (ICANN) the right to act as an ICANN-accredited registrar and provide Internet domain name registration services for second-level domain names within the generic top-level domains pursuant to a Registrar Accreditation Agreement, dated [ ______________________ ], (the "ICANN Agreement"), and pursuant to a Registry-Registrar Agreement with each of the Registry Operators which operate a generic TLD (the Registry Agreements).
WHEREAS, as a member of CORE, Reselling Member wishes to have access to the CORE SRS (as defined below) that will allow Reselling Member to initiate the registration of TLD names in the registrar systems operated by the different Registry Operators for the generic TLDs established in Exhibit I to this Agreement (the Registry Operators System).
WHEREAS you have read, understood, and have expressed your consent to be bound by all the terms and conditions of this Agreement, any rules or policies of CORE, and / or ICANN that may be established from time to time.
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, CORE and Reselling Member, intending to be legally bound, hereby agree as follows:
Among other 1.1. "Agreement" shall mean this agreement and each and all of its exhibits.
1.2. "CORE SRS" means any of the multiple-registrar shared registration system, developed by CORE, directly or through a third party, for the facilitation of the registration of Internet domain names for the TLDs for which CORE acts as a registrar.
1.3. "DNS" means the Internet domain name system.
1.4. "Registry Operator" means each and all of the entities in charge of the operation of a given generic TLD registry, pursuant to a registry agreement with ICANN
1.5. "SLD" means any second-level domain of the DNS or any other level domain of the DNS different from the top-level domain, which is placed as a registered item into the registry on behalf of a domain-name holder.
1.6. "Selected TLDs" means the TLDs (as defined below) listed in Exhibit I to this Agreement.
1.7. "TLD" means the top-level domain of the DNS.
2. ACCESS AND USE OF THE CORE SRS
2.1. Throughout the term of this Agreement, CORE shall operate the CORE SRS and provide Reselling Member with access to the CORE SRS, enabling Reselling Member to transmit domain name registration information for the Selected TLDs to the CORE SRS, as soon as the Reselling Member implements the measures referred to in article 2.2 below. CORE shall maintain a module within the CORE SRS as an interface with the Registry Operators System pursuant to the terms of the Registry Agreements.
For the purposes of this clause, CORE hereby grants Reselling Member, who accepts, a non-exclusive, non-transferable, right to use, for the term and purposes of this Agreement, the CORE SRS.
2.2. CORE shall provide to Reselling Member a set of the technical specifications listed in Exhibit II of this Agreement (hereinafter the Technical Specifications, called the Payload), which shall permit, upon implementation by Reselling Member, to interface with the CORE SRS for the registration of SLDs in each of the Selected TLDs.
2.3. CORE may from time to time make modifications to the CORE SRS, or the Technical Specifications. CORE will provide Reselling Member with a reasonable notice prior to the implementation of any material changes to the CORE SRS or the Technical Specifications.
2.4. CORE's obligations hereunder are subject to modification at any time as the result of ICANN mandated requirements and consensus policies or as a result of a change in the operational standards, policies, procedures and practices for the Selected TLD registry established from time to time by Registry Operator. Notwithstanding anything in this Agreement to the contrary, Reselling Member shall comply with any such ICANN requirements or Registry Operator requirements in accordance with the timeline defined by either ICANN or the Registry Operator, as the case may be.
2.5. Reselling Member agrees to comply with all terms and conditions and policies established by CORE from time to time to assure sound operation of the CORE SRS or to facilitate the registration of SLD or related matters, upon CORE's notification to Reselling Member of the establishment of those terms and conditions.
2.6. Reselling Member agrees to comply with all terms or conditions established by the Registry Operator and/or ICANN from time to time. A non-exhaustive list of ICANN policies is available at Exhibit III. Further, Reselling Member agrees to comply with the policies of the Registry Operator that will be applicable to all registrars and that will prohibit the registration of certain domain names in the corresponding Selected TLDs that are not allowed by Registry Operator to be registered in the TLD registry.
2.7. Reselling Member agrees to develop and employ in its domain name registration business all necessary technology and restrictions to ensure that its connection to the CORE SRS, and all transmissions between Reselling Member, SLD holders or prospective customers and the CORE SRS that are initiated for the purpose of creating, deleting or modifying data within the CORE data base or the Registry Operator data base are secure. Each such transmission shall be authenticated and encrypted using such protocol as may be prescribed by CORE. Reselling Member agrees to authenticate every connection with the CORE SRS using its Reselling Member password, which it shall disclose only to its employees with a need to know. Reselling Member agrees to notify CORE as soon as possible if he learns that its Reselling Member key has been compromised in any way.
2.8. Reselling Member shall employ all necessary employees, contractors, or agents with sufficient technical training and experience to respond to and fix all technical problems concerning the use of the CORE SRS or the Technical Specifications in conjunction with Reselling Member's systems. Reselling Member agrees that in the event of significant degradation of the CORE SRS, or at any time deemed necessary by CORE, CORE may, in its sole discretion, temporarily suspend access to the CORE SRS.
2.9. As part of its registration of all SLD registrations in the Selected TLDs during the Term of this Agreement, Reselling Member shall submit all data elements as specified in the interface to the CORE SRS using the appropriate CORE protocols. Reselling Member acknowledges and agrees that Reselling Member shall have no right, title or interest in and 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.
2.10. Reselling Member shall provide (i) support to accept orders for registration, cancellation, deletion or transfer of registered SLDs and (ii) customer service and billing and techical support to customers, sub-resellers below Reselling Member's Account, and customers of such sub-resellers.
2.11. Reselling Member agrees to utilize in its domain name registration business domain name lookup capability as mandated by CORE from time to time to determine if a requested domain name is available or currently unavailable for registration.
2.12. Reselling Member acknowledges that in the event of any dispute concerning the time of the entry of a domain name registration into the corresponding Selected TLD registry database, the time shown in the Selected TLD registry records shall control.
2.13 Reselling Member acknowledges and agrees that CORE does not guarantee that Reselling Member will be able to register or renew a desired domain name, even if CORE's systems indicate that domain name is available, or Reselling Member is able to complete an order with respect to such name. Reselling Member also understands that CORE cannot know with certainty whether or not the domain name which Reselling Member is seeking to register is simultaneously being sought by a third party, or whether there are any inaccuracies or errors in the domain name registration or renewal process or related databases, including the various WHOIS or other registry databases. Reselling Member also acknowledges and agrees that CORE is not responsible for any inaccuracies or errors in the domain name registration or renewal process. Reselling Member is solely responsible for making sure that Reselling Member's registration or renewal has been properly processed. Reselling Member also acknowledges and agrees that CORE is not liable or responsible in any way for any errors, omissions or any other actions by any third party including any registry administrator arising out of or related to Reselling Member's application for and registration of, renewal of, or failure to register or renew a particular domain name.
2.14 Without prejudice to clauses 2.5 and 2.6 Reselling Member agrees not to modify any SLD ownership or DNS before the expiration of the SLD, unless said modification is specifically requested by the SLD registrant.
3. LIMITATIONS ON USE OF THE CORE SRS
3.1 Notwithstanding any other provisions in this Agreement, except with the written consent of CORE, Reselling Member shall not:
(i) sublicense the CORE SRS or otherwise permit any use of the CORE SRS by or for the benefit of any party other than Reselling Member,
(ii) publish, distribute or permit disclosure of the CORE SRS other than to employees, contractors, and agents of Reselling Member for use in Reselling Member's domain name registration business,
(iii) decompile, reverse engineer, copy or re-engineer the CORE SRS for any unauthorized purpose, or
(iv) use or permit use of the CORE SRS in violation of any applicable regulation or law, or for any unlawful purpose.
Reselling Member agrees to employ the necessary measures to prevent the CORE SRS from being used for
(i) the transmission of unsolicited, commercial e-mail (spam) to entities other than Reselling Member's customers;
(ii) high volume, automated, electronic processes that apply to CORE for large numbers of domain names;
(iii) high volume, automated, electronic, repetitive queries for the purpose of extracting data to be used for Reselling Member's purposes; or
(iv) the use of said data to compile or infer customer identity or other demographic or firmographic information.
3.2 Should CORE provide the Reselling Member with any software different from the CORE SRS for the purposes of this Agreement, the provisions set in clause above, shall apply to said software, unless otherwise agreed in writing by the parties.
4. SUPPORT SERVICES
4.1 During the Term of this Agreement, CORE shall (i) maintain a web site containing technical information related to the CORE SRS and (ii) maintain and make postings to an SRS technical e-mail list. Such web site and e-mail list shall be accessible only to licensed CORE members.
4.2 As indicated in 2.10, Reselling Member is responsible for providing customer service, billing, and technical support to customers, sub-resellers below Reselling Member's Account, and customers of such sub-resellers. CORE shall provide telephone and email support to Reselling Member during business hours, which are customarily from 9 AM to 6 PM, European time, with some exceptions for major holidays. If CORE secretariat receives communications from registrants or from third-parties regarding a service provided in Reselling Member's account or an account below Reselling Member's account, CORE will, were appropriate, forward such communications to the Reselling Member; however, CORE reserves the right to respond to such communications directly. If CORE determines that Reselling Member is providing inadequate support to its customers (resulting in, for example, an excessive number of support calls directly from Reselling Member's customers), then CORE may consider this to be a breach of this RMA by Reselling Member and may terminate this RMA.
5.1 During the Initial Term of this Agreement, Reselling Member agrees to pay to CORE the non-refundable amounts set forth on Exhibit IV hereto with respect to each domain name registration or re-registration (collectively, the "Registration Fees") registered by Reselling Member, through the CORE SRS. CORE reserves the right to adjust the Registration Fees upon notice to Reselling Member.
5.2 Prior to registering any domain names through the CORE SRS, Reselling Member shall purchase from CORE Reselling Member Credit Units ("RCUs"). Each RCU shall be purchased at a price equal to [one United States dollar]. As domain names are registered by Reselling Member through the CORE SRS, Reselling Member's RCU account balance shall be reduced pursuant to the Registration Fee schedule set forth above. CORE shall maintain a record of Reselling Members RCU account balance, which shall be accessible by Reselling Member. If Reselling Member's RCU account balance is fully depleted at any time, Reselling Member shall not be permitted to register any further domain names through the CORE SRS until such time as Reselling Member's RCU account balance is restored.
5.3 If a SLD Holder transfers its domain name registration to the Reselling Member's account from a non-CORE registrar's account, Reselling Member agrees to pay CORE the applicable registration Fee as set forth above.
5.4 The Reselling Member is solely responsible for collecting all amounts payable from the registrants related to the Registration Fees.
5.5 CORE will provide on a monthly basis, an invoice and a statement of Reselling Member's previous month billable operations. These documents would be posted on the Members Website.
6. REGISTRATION AGREEMENT
6.1. Reselling Member acknowledges and agrees that each SLD holder must agree to be bound by the terms and conditions of the CORE registration agreement in the form attached hereto as Exhibit V or such other registration agreement as CORE shall post on its web site from time to time. Reselling Member may require registrants using its services to agree to additional terms and conditions, provided such terms and conditions do not conflict in any manner with the provisions of the then current CORE registration agreement.
6.2. Reselling Member shall in good faith ensure that the CORE registration agreement is properly read and accepted by the registrants in compliance with the applicable law.
7. CONFIDENTIAL INFORMATION
7.1. Each party shall treat as strictly confidential all information received or obtained as a result of entering into or performing this agreement which relates to: (a) the provisions of this agreement; (b) the negotiations relating to this agreement; (c) the subject matter of this agreement; or (d) the other party.
7.2. Either party may disclose information which would otherwise be confidential if and to the extent: (a) required by the law of any relevant jurisdiction; (b) such disclosure is agreed by the other party. 7.3. In the event of any termination of this Agreement, all Confidential Information in Reselling Member's possession shall be immediately returned to CORE; Reselling Member shall provide full voluntary disclosure to CORE of any and all unauthorized disclosures and/or unauthorized uses of any Confidential Information; and the obligations of this Section 7.3 shall survive such termination and remain in full force and effect.
8. LIMITATION OF LIABILITY
8.1. In no event will CORE be liable to Reselling Member 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 CORE has been advised of the possibility of such damages.
8.2. CORE provides Reselling Member with access to the CORE SRS "as-is". CORE does not warrant that the functions of the CORE SRS will meet Reselling Member's requirements or that the operation of the CORE SRS will be uninterrupted or error-free, or that defects in the CORE SRS will be corrected.
9. TERM AND TERMINATION
The duties and obligations of the Parties under this Agreement shall apply from the Effective Date through to the termination of the Registry Agreements, whichever may be applicable in accordance with the specifications of this Agreement (the "Term"). If any of the Registry Agreements is modified or amended in any manner, this Agreement will be modified or amended accordingly, and Reselling Member shall execute an amendment to or revision of this Agreement consistent with such amendments or revisions to the Registry Agreements. Further, the Parties hereto acknowledge and agree that no modification or amendment to any Reselling Member Agreement between CORE and any of its members shall be made unless such modification or amendment is applicable to all members of CORE that are parties to Reselling Member Agreements.
Causes of Termination.
In the event that either Party (or, in the case of Reselling Member, an agent of Reselling Member) materially breaches any term of this Agreement, including any of its representations, warranties, covenants and agreements hereunder, and such breach is not 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. Further, in addition to the foregoing rights of termination, in the event that CORE, in its reasonable discretion, determines that Reselling Member has materially breached any provision of this Agreement, CORE shall have the right to suspend Reselling Member's access to the CORE SRS pending the cure of such breach to the reasonable satisfaction of CORE.
9.3 Reselling Member may terminate this Agreement at any time by giving CORE thirty (30) days notice of termination.
9.4 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.
Effect of Termination
9.5 Immediately upon any termination of this Agreement, Reselling Member shall (i) obtain the consent from its SLD Holders for the transfer of their accounts to another Reselling Member or to CORE direct, a service offered by CORE to handle domains registrations, until the renewal of the SLD and according to the transfer policies of CORE (ii) either return to CORE or certify to CORE the destruction of all data, software and documentation it has received under this Agreement.
Registrations Following Termination.
Upon expiration or termination of this Agreement, CORE will complete the registration of all domain names processed by Reselling Member prior to the date of such expiration or termination, provided that Reselling Member's RCU account balance is sufficient to pay the Registration Fees associated with such registrations.
9.7 Reselling Member agrees that if dissolution or winding up of its's business takes place, CORE is entitled to take over the management of the SLDs registered under this Agreement (the CORE SLDs).
9.8 CORE will handle all remaining CORE SLDs with CORE Direct Tool under CORE terms and policies.
10.1. Reselling Member, at its own expense, will indemnify, defend and hold harmless CORE and its employees, directors, officers, representatives, agents and affiliates, against any claim, suit, action, or other proceeding brought against CORE based on or arising from any claim or alleged claim (i) relating to any product or service of Reselling Member; (ii) relating to any agreement, including CORE's dispute policy, with any SLD Holder of Reselling Member; or (iii) relating to Reselling Member's domain name registration business, including, but not limited to, Reselling Member'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) CORE provides Reselling Member with prompt notice of any such claim, and (b) upon Reselling Member's written request, CORE will provide to Reselling Member all available information and assistance reasonably necessary for Reselling Member to defend such claim, provided that Reselling Member reimburses CORE for its actual and reasonable costs. Reselling Member will not enter into any settlement or compromise of any such indemnifiable claim without CORE's prior written consent, which consent shall not be unreasonably withheld. Reselling Member 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 CORE in connection with or arising from any such indemnifiable claim, suit, action or proceeding.
10.2. Reselling Member, at its own expense, will indemnify, defend and hold harmless the Registry Operators and its employees, directors, officers, representatives, agents and affiliates, against any claim, suit, action, or other proceeding brought against any of the Registry Operators or any affiliate based on or arising from any claim or alleged claim (i) relating to any product or service of Reselling Member; (ii) relating to any agreement, including CORE's dispute policy, with any SLD holder of Reselling Member; or (iii) relating to Reselling Member's domain name registration business, including, but not limited to, Reselling Member'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) the relevant Registry Operator provides Reselling Member with prompt notice of any such claim, and (b) upon Reselling Member's written request, the Registry Operator will provide to Reselling Member all available information and assistance reasonably necessary for Reselling Member to defend such claim, provided that Reselling Member reimburses the Registry Operator for its actual and reasonable costs. Reselling Member will not enter into any settlement or compromise of any such indemnifiable claim without the Registry Operator's prior written consent, which consent shall not be unreasonably withheld. Reselling Member 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 the Registry Operator in connection with or arising from any such indemnifiable claim, suit, action or proceeding.
10.3. In the event Reselling Member breaches any of its representations, warranties, covenants or agreements set forth in this Agreement, in addition to any and all other remedies that may be available to CORE, CORE shall have the right to apply and set off the balance of Reselling Member's RCU account against any and all damages claimed by CORE on account of such breach. Such right of set off shall not limit CORE's right to seek any other remedies, legal or equitable, on account of such breach.
11.1. Survival. In the event of termination of this Agreement for any reason, Sections 2.5, 2.6, 5.1, 6, 7, 8, 10, 11.1, 11.6, 11.9 12 shall survive. 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.
11.2. 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.
11.3. 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.
11.4. 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.
11.5. Amendment in Writing. Any amendment or supplement to this Agreement shall be in writing and duly executed by the other Parties.
11.6. 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 any 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).
11.7. 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 the name of such Party below:
If to Reselling Member:[ ______________________ ]
If to CORE:
World Trade Center II,
29 route de Pre-Bois
Attention: Secretariat Fax: + 41-22-929 5745
11.8. 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 assigns of the Parties; provided, however, that any such successor or assign be permitted pursuant to the Articles, Bylaws or policies of CORE. Reselling Member shall not assign, sublicense or transfer its rights or obligations under this Agreement to any third person without the prior written consent of CORE.
11.9. Delays or Omissions; Waivers. No failure on the part of any Party to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any 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.
11.10. 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.
11.11. Entire agreement; Severability. This Agreement sets forth the terms and conditions agreed to between the Reselling Member, and CORE. This agreement as well as any additional rules and policies which may be added, constitute the complete and exclusive agreement between you and CORE concerning your use of the CORE's services, and supersedes all prior proposals, agreements, or other communications.
If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited. 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.
12. DISPUTE RESOLUTION; CHOICE OF LAW; VENUE
12.1. 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 laws of Switzerland 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 Switzerland 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 settled by arbitration in accordance with the UNCITRAL Arbitration Rules as at present in force. The appointing authority shall be the Secretary General of the Permanent Court of Arbitration. There shall be a sole arbitrator. The place of arbitration shall be Geneva, Switzerland. The language to be used in the arbitral procedure shall be English. The dispute, controversy or claim shall be decided in accordance with Swiss law.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date set forth in the first paragraph hereof.
CORE [RESELLING MEMBER] CORE Association
By: [ ______________________ ] By: [ ______________________ ]
Name: [ ______________________ ] Name:[ ______________________ ]
Title:[ ______________________ ] Title:[ ______________________ ]