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Appendix 2 to Sponsored TLD Registry Agreement
Form of Escrow Agreement
This Registry Data Escrow Agreement ("Agreement") is made as of this _____________, 2005 (the "Beginning Date"), by and among Tralliance Corporation, a New York corporation ("Registry"), NeuLevel, Inc. ("Registry Operator"), Iron Mountain Intellectual Property Management, Inc. ("Escrow Agent"), and the Internet Corporation for Assigned Names and Numbers ("ICANN"). All capitalized terms not defined herein shall have the meaning set forth in the Sponsored TLD Registry Agreement dated _____________, 2005 by and between Registry and ICANN ("TLD Registry Agreement").
A. Registry and ICANN have entered into the TLD Registry Agreement, which requires Registry, during the term of the TLD Registry Agreement, to ensure Registry Operator submits certain domain name registration data to a reputable escrow agent to be held in escrow.
B. Registry and Registry Operator will enter into a Registry Operator Agreement ("Registry Operator Agreement"), which requires Registry Operator, during the term of the Registry Operator Agreement, to submit certain domain name registration data to a reputable escrow agent to be held in escrow.
C. Pursuant to the Registry Operator Agreement and the TLD Registry Agreement, Registry Operator shall, and Registry shall ensure that Registry Operator shall, periodically deliver to Escrow Agent an electronic copy of all Registry Data, as detailed in Subsection 3.1(c) of the TLD Registry Agreement (each such delivery referred to as a "Deposit").
D. Registry Operator, Registry and ICANN each desire Escrow Agent to hold each Deposit, and, upon certain events, release any retained Deposits (or a copy of the Deposits) to Registry and/or ICANN, in accordance with the terms of this Agreement or as ordered by a court of competent jurisdiction.
Now, therefore, in consideration of the premises and mutual obligations contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Content of Deposits. Deposits will be of two kinds: Full Deposits and Incremental Deposits. Each Full Deposit will consist of Registry Data that reflects the current and complete Registry Database. Incremental Deposits will consist of data that reflects all transactions involving the database that are not reflected in the last previous Full Deposit or Incremental Deposit, as the case may be.
2. Schedule for Deposits. Registry, through the Registry Operator, must create and deliver to Escrow Agent a Full Deposit once each week, according to the schedule specified in Exhibit A of Appendix 1 to the TLD Registry Agreement. Registry, through the Registry Operator, must create and deliver to Escrow Agent an Incremental Deposit once each day during which a Full Deposit is not made, according to the schedule specified in Exhibit A of Appendix 1.
3. Format of Deposits. The data in each Full Deposit and in each Incremental Deposit shall follow the data format specified in the Escrow Deposit Format Specification (the "Format Specification"), attached as Exhibit B of Appendix 1.
4. Procedure for Deposits. Each properly formatted Full Deposit and Incremental Deposit shall be processed and electronically delivered in encrypted form to Escrow Agent according to the transfer process described in Exhibit C of Appendix 1.
5. Notification of Deposits. Simultaneous with the delivery to Escrow Agent of any Full or Incremental Deposit, Registry Operator shall deliver to Escrow Agent and Registry a written statement (which may be by authenticated e-mail) that includes a copy of the report generated upon creation of the Full or Incremental Deposit by the ICANN-provided software (as described in Exhibit C of Appendix 1) and states that the Full or Incremental Deposit (as the case may be) has been inspected by Registry Operator according to the procedures described in Exhibit C of Appendix 1 and is complete and accurate. Escrow Agent shall notify Registry of all Deposits received, within two business days of receipt.
6. Verification. Within two business days after receiving each Full or Incremental Deposit, Escrow Agent shall verify the format and completeness of each Deposit by performing the verification procedures specified in Exhibit D of Appendix 1 and shall deliver to Registry and ICANN a copy of the verification report generated for each Deposit (which may be by authenticated e-mail). If Escrow Agent discovers that any Deposit fails the verification procedures, Escrow Agent shall notify, including by email and fax, Registry Operator, Registry, and ICANN of such nonconformity within forty-eight hours of discovery. Upon notification of such verification failure, Registry, through the Registry Operator, shall begin developing modifications, updates, corrections, and other fixes of the Full or Incremental Deposit necessary for the Deposit to pass the verification procedures and shall deliver such fixes to Escrow Agent as promptly as possible. Escrow Agent shall verify the accuracy or completeness of any such corrected Deposit pursuant to the procedures in this Section 6 and shall send Registry, Registry Operator and ICANN a copy of the successful report within twenty-four hours. The failure of any Full or Incremental Deposit to meet verification procedures and any efforts by Registry Operator to remedy such failure shall not delay the delivery of any subsequent scheduled Full or Incremental Deposits pursuant to the schedule in Exhibit A of Appendix 1. Escrow Agent shall deliver, on the first business day of each month, (i) a written certification to Registry and ICANN that Escrow Agent has performed such verification procedures on each Deposit received during the last month, and (ii) copies of the verification reports generated for each Deposit received during the last month.
7. Retention and Confidentiality.
7.1 Retention. Escrow Agent shall hold and maintain the Deposits in a secure, locked, and environmentally safe facility which is accessible only to authorized representatives of Escrow Agent. Escrow Agent shall use commercially reasonable efforts to protect the integrity of the Deposits. Each of Registry, ICANN, and Registry Operator shall have the right to inspect Escrow Agent's written records with respect to this Agreement upon reasonable prior notice and during normal business hours.
7.2 Destruction of Deposits. At all times, Escrow Agent shall retain the four most recent Full Deposits and all Incremental Deposits after the earliest of those four Full Deposits, all of which must have passed the verification procedures specified in Exhibit D of Appendix 1. Escrow Agent may destroy any Deposits reflecting the Registry Database prior to these four most recent Full Deposits.
7.3 Confidentiality. Escrow Agent shall use commercially reasonable efforts to protect the confidentiality of the Deposits. Except as provided in this Agreement, Escrow Agent shall not disclose, transfer, make available, or use any Deposit (or any copies of any Deposit). Should Escrow Agent be put on notice that it is required to disclose any Deposits by statute, rule, regulation, order, or other requirement of a governmental agency, legislative body, court of competent jurisdiction, or binding arbitral body (other than any requirement pursuant to Sections 9.1.6, 11.2, and 13 of this Agreement), Escrow Agent shall notify Registry Operator, Registry, and ICANN within seven days or as soon as practicable and reasonably cooperate with Registry Operator, Registry, and/or ICANN in any contest of the disclosure. Should any contest prove unsuccessful, Escrow Agent shall not be held liable for any disclosure pursuant to such governmental, legislative, judicial, or arbitral order, statute, rule, regulation, or other requirement.
8. Duplication. Escrow Agent may duplicate any Deposit by any commercially reasonable means in order to comply with the terms and provisions of this Agreement, provided that Registry shall bear the expense of such duplication. Alternatively, Escrow Agent, by notice to Registry, may reasonably require Registry to promptly duplicate any Deposit.
9. Release of Deposits. Within five business days after receipt of any required documents and/or notices specified in this Section 9, Escrow Agent shall deliver all Deposits in Escrow Agent's possession (i) to Registry in the event of a release pursuant to any of Sections 9.1.2, or 9.1.5, 9.1.6, 9.1.7 and 9.1.8 or (ii) to ICANN in the event of a release pursuant to Sections 9.1.1, 9.1.4, 9.1.7, or 9.1.8, or (iii) the party designated in the event of a release pursuant to Section 9.1.3, in the event that the Escrow Agent receives all of the items required by Sections 9.1, 9.2, 9.3, and 9.4 below:
9.1 One of the following notices:
9.1.1 A written notice by ICANN that the TLD Registry Agreement has: (i) expired without renewal, pursuant to the TLD Registry Agreement, or (ii) been terminated, pursuant to Section 6.1 of the TLD Registry Agreement; or
9.1.2 A written notice by Registry, pursuant to the terms of the Registry Operator Agreement, including any applicable dispute resolution mechanisms contained therein, that the Registry Operator Agreement has expired without renewal or been terminated; or
9.1.3 A written notice by Registry Operator, Registry, and ICANN requesting Escrow Agent to effect such delivery to Registry, ICANN, or replacement escrow agent; or
9.1.4 A written notice by ICANN that it has received no successful verification report from Escrow Agent relating to a Full Deposit reflecting the Registry Database as of any date within the past month; or
9.1.5 A written notice by Registry that all of the following have occurred:
9.1.5.1 Registry failed, with respect to (a) any Full Deposit or (b) five Incremental Deposits within any calendar month, to receive, within five calendar days after the Deposit's scheduled delivery date, notification of receipt from Escrow Agent; and
9.1.5.2 Registry gave notice to Escrow Agent and Registry Operator of that failure; and
9.1.5.3 Registry has not, within seven calendar days after the notice under Section 9.1.5.2, received notice from Escrow Agent that the Deposit has or the Deposits have been received; or
9.1.6 A written notice by Registry that all of the following have occurred:
9.1.6.1 Registry has received notification from Escrow Agent of failed verification of a Full Deposit or of failed verification of five Incremental Deposits within any calendar month; and
9.1.6.2 Registry gave notice to Registry Operator of that receipt; and
9.1.6.3 Registry has not, within seven calendar days after the notice under Section 9.1.6.2, received notice from Escrow Agent of verification of a remediated version of the Deposit; or
9.1.7 A written notice by Registry or ICANN that release of the Deposits is mandated by non-payment of any fees due to Escrow Agent, pursuant to Section 15 of this Agreement; or
9.1.8 A written notice by ICANN or Registry that a court, arbitral, legislative, or government agency of competent jurisdiction has issued an order, rule, statute, regulation, or other requirement (a copy of which ICANN or Registry has provided to Registry Operator) that mandates the release of the Deposits to ICANN and/or Registry; and
9.2 Evidence satisfactory to Escrow Agent that ICANN, Registry Operator, or Registry (whichever gave the notice under Section 9.1) has previously notified the other party(ies) in writing; and
9.3 Written instructions from ICANN, Registry, or a replacement escrow agent (see Section 9.1.3) that the Deposits be released and delivered to whichever of them provided such written instructions; and
9.4 A written undertaking by the party(ies) receiving the Deposits (ICANN, Registry, or a replacement escrow agent) that the Deposits will be used only as permitted under the terms of the Registry Operator Agreement or the TLD Registry Agreement, as applicable. Upon release of any Deposits to ICANN, Registry, or a replacement escrow agent, Escrow Agent shall at the same time deliver to Registry Operator a photostatic copy of the notice it received from Registry and/or ICANN under Sections 9.1.1 to 9.1.8, as applicable.
10. Release of Deposit to Registry Operator. Escrow Agent shall deliver all Deposits to Registry Operator upon termination of this Agreement in accordance with Sections 14.1 and 14.2.1 of this Agreement.
11.1 Right to Use Deposits. Upon release of any Deposits to Registry pursuant to Section 9, Registry (or its assignee in accordance with the TLD Registry Agreement) shall immediately have the right to exercise or have exercised all rights in the Deposits necessary to provide Registry Services, as that term is defined and detailed in the TLD Registry Agreement. Upon release of any Deposits to ICANN pursuant to Section 9, ICANN (or its assignee in accordance with the TLD Registry Agreement) shall immediately have the right to exercise or have exercised all rights in the Deposits pursuant to the TLD Registry Agreement.
11.2 Objection Notices. Upon release of any Deposits to Registry pursuant to Sections 9.1.2 or 9.1.5 through 9.1.8, Registry Operator shall have thirty calendar days to notify Escrow Agent and Registry in writing (the "Objection Notice") of its objection to the release of the Deposits to Registry and request that the issue of entitlement to the Deposits be resolved pursuant to the dispute resolution procedures in the Registry Operator Agreement. Upon release of any Deposits to ICANN pursuant to Sections 9.1.1, 9.1.4, 9.1.7, or 9.1.8, Registry Operator or Registry shall have thirty calendar days to notify Escrow Agent and ICANN in writing (the "Objection Notice") of its objection to the release of the Deposits to ICANN and request that the issue of entitlement to the Deposits be resolved pursuant to the dispute resolution procedures in the TLD Registry Agreement. Registry Operator, Registry, and ICANN agree to resolve any disputes they may have as between or among themselves under this Agreement according to Section 17.2. The parties agree that (i) Registry Operator and Registry shall have no rights (other than pursuant to this Section 11.2) to object to any release of the Deposits, and (ii) the delivery of an Objection Notice and the commencement of Dispute Resolution Procedures shall not delay release of any Deposits to Registry and/or ICANN pursuant to Section 9.
11.3 Dispute-Resolution Procedures. Registry Operator, Registry, and ICANN each agrees that it may not challenge, in proceedings for the resolution of disputes between or among those parties under this Agreement, the resolution of any issues, claims, or defenses that were decided, or which it had a reasonable opportunity and motive to raise, in proceedings to which it was a party under the Registry Operator Agreement or TLD Registry Agreement.
11.4 Withdrawal of Objection Notice. A party providing an Objection Notice may, at any time, notify the other parties that it wishes to withdraw its Objection Notice. Upon receipt of notice of such withdrawal, Escrow Agent shall promptly deliver to Registry and/or ICANN (as the case may be) any Deposits that have not previously been delivered.
11.5 Dispute Resolution Decisions.
11.5.1 If the release of Deposits under Section 9 is determined in dispute-resolution procedures to have been proper, Escrow Agent shall promptly deliver, in accordance with the instructions specified in Section 9.3, any Deposits that have not previously been delivered.
11.5.2 If the release of Deposits under Section 9 is determined in dispute-resolution procedures to have been improper, the party(ies) receiving the Deposits shall promptly return or destroy, at Registry Operator's discretion, the Deposits received under Section 9.
12. Indemnity. Registry Operator, Registry, and ICANN shall, jointly and severally, indemnify and hold harmless Escrow Agent and each of its directors, officers, agents, employees, members, and stockholders ("Escrow Agent Indemnitees") absolutely and forever, from and against any and all claims, actions, damages, suits, liabilities, obligations, costs, fees, charges, and any other expenses whatsoever, including reasonable attorneys' fees and costs, that may be asserted by a third party against any Escrow Agent Indemnitees in connection with this Agreement or the performance of Escrow Agent or any Escrow Agent Indemnitees hereunder (with the exception of any claims based on the misrepresentation, negligence, or misconduct of Escrow Agent, its directors, officers, agents, employees, contractors, members, and stockholders). Escrow Agent shall likewise indemnify and hold harmless Registry Operator, Registry, and ICANN, and each of their respective directors, officers, agents, employees, members, and stockholders ("Indemnitees") absolutely and forever, from and against any and all claims, actions, damages, suits, liabilities, obligations, costs, fees, charges, and any other expenses whatsoever, including reasonable attorneys' fees and costs, that may be asserted by a third party against any Indemnitee in connection with the misrepresentation, negligence, or misconduct of Escrow Agent, its directors, officers, agents, employees, contractors, members, and stockholders.
13.1 Escrow Agent may submit any dispute under this Agreement to any court of competent jurisdiction in an interpleader or similar action. Any and all costs incurred by Escrow Agent in connection therewith, including reasonable attorneys' fees and costs, shall be borne equally by each of Registry Operator, Registry, and ICANN that are parties to such interpleader or similar action.
13.2 Escrow Agent shall perform any acts ordered by any court of competent jurisdiction, without any liability or obligation to any party hereunder by reason of such act.
14.1 Term. The initial term of this Agreement shall be ______________ [insert period of at least one year], commencing on the Beginning Date (the "Initial Term"). This Agreement shall be automatically renewed for an additional term of one year ("Additional Term") at the end of the Initial Term and each Additional Term hereunder unless, on or before ninety days prior to the end of the Initial Term or an Additional Term, a party notifies the other parties that it wishes to terminate this Agreement at the end of such term. In the event a party gives the other parties such notice of termination, and Registry Operator, Registry, and ICANN cannot agree to resolve, by the end of the then-current term, any disputes regarding the renewal of this Agreement or the establishment of a replacement escrow agent: (i) Registry (on behalf of itself and the Registry Operator) and ICANN shall resolve any such disputes through Subsection 5.9 of the TLD Registry Agreement; (ii) this Agreement shall continue to remain in effect during the resolution of any such disputes; and (iii) Escrow Agent shall have the right to invoice either Registry or ICANN for the data escrow services provided during this dispute resolution period at the rates listed in Exhibit E to this Agreement.
14.2 Termination. This Agreement shall terminate upon the occurrence of any of the following:
14.2.1 Termination of this Agreement by Registry and ICANN, upon having delivered to Escrow Agent a written notice signed by Registry and ICANN stating their common intent to terminate this Agreement upon ninety days' notice;
14.2.2 Termination of this Agreement by Escrow Agent pursuant to Section 15; or
14.2.3 As provided in Section 14.1.
15. Fees and Payments. Registry shall pay to Escrow Agent the applicable fees and charges listed in Exhibit E as compensation for Escrow Agent's services under this Agreement. If Registry fails to pay any fees or charges invoiced by Escrow Agent by the due date(s), Escrow Agent shall give written notice to Registry of non-payment of any such past-due fees hereunder and, in that event, the Registry shall have the right to pay the past-due fee(s) within ten business days after receipt of the notice from Escrow Agent. If Registry fails to pay in full all such past-due fees during the ten-day period, Escrow Agent shall give notice of non-payment of any past-due fees to ICANN and, in that event, ICANN shall have the option of paying the past-due fee within ten business days of receipt of such notice from Escrow Agent. Upon payment of the past-due fee by either Registry or ICANN, this Agreement shall continue in full force and effect. If both Registry and ICANN fail to pay the past-due fee(s) within the applicable periods under this Section 15, Escrow Agent shall have the right to terminate this Agreement immediately by sending notice of termination to all other parties, and, upon termination, Escrow Agent shall deliver to Registry and ICANN all Deposits held by Escrow Agent.
16. Ownership of Deposit Materials. Subject to the provisions of the TLD Registry Agreement and as will be reflected in the Registry Operator Agreement, the parties recognize and acknowledge that ownership of the Deposit materials during the effective term of this Agreement shall remain with the Registry at all times.
17.1 Remedies. For the purposes of fulfilling its obligations under this Agreement, Escrow Agent may act in good faith reliance on, and shall not be held liable for, any written notice, instruction, instrument, or other writing signed or presented by a person with apparent authority to act on behalf of Registry Operator, Registry, or ICANN.
17.2 Dispute Resolution. Registry Operator, Registry, and ICANN agree to resolve any disputes they may have as between or among themselves under this Agreement, including any objections to release of the Deposits pursuant to Section 9.1, solely pursuant to the dispute-resolution procedures in the TLD Registry Agreement (for disputes involving ICANN) or the dispute resolution procedures in the Registry Operator Agreement (for disputes not involving ICANN).
17.3 Limitation of Liability. The parties shall not be liable to each other for special, indirect, incidental, or consequential damages hereunder. As between Registry and Registry Operator the liability limitations of the Registry Operator Agreement also apply. As between Registry and ICANN the liability limitations of the TLD Registry Agreement also apply. Neither Registry nor ICANN shall be liable to each under for monetary damages under this Agreement.
17.4 Independent Contractor. Escrow Agent is an independent contractor and is not an employee or agent of Registry Operator, Registry, or ICANN.
17.5 No Third-Party Beneficiaries. This Agreement shall not be construed to create any obligation by Registry Operator, Registry, ICANN, or Escrow Agent to any non-party to this Agreement, including but not limited to any domain-name holder or registrar.
17.6 Amendments. This Agreement shall not be modified or amended except in writing executed by each of the parties.
17.7 Assignment. Neither Registry Operator, Registry, nor ICANN may assign or transfer this Agreement (by merger, sale of assets, operation of law, or otherwise), except that the rights and obligations of Registry Operator, Registry, or ICANN automatically shall be transferred to the assignee of one of those parties' rights and obligations under the Registry Operator Agreement or TLD Registry Agreement, as applicable. Escrow Agent may not assign or transfer this Agreement without the prior written consent of Registry Operator, Registry, and ICANN.
17.8 Entire Agreement. This Agreement, including all exhibits referenced herein, supersedes all prior discussions, understandings, and agreements between Escrow Agent and the other parties with respect to the data escrow services for this particular Registry TLD. Registry and Registry Operator acknowledge and agree that, as between themselves, the Registry Operator Agreement (including all its appendices, exhibits, and other attachments) is intended to co-exist with this Agreement; this Agreement is supplementary to the Registry Operator Agreement; and the Registry Operator Agreement shall control in the event of any conflict between this Agreement and the Registry Operator Agreement. Registry and ICANN acknowledge and agree that, as between themselves, the TLD Registry Agreement (including all its attachments and exhibits) is intended to co-exist with this Agreement; this Agreement is supplementary to the TLD Registry Agreement; and the TLD Registry Agreement shall control in the event of any conflict between this Agreement and the TLD Registry Agreement.
17.9 Counterparts. This Agreement may be executed in counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same Agreement.
17.10 Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California, without regard to its conflicts-of-laws principles. The parties consent and agree that jurisdiction and venue for any legal proceedings relating to this Agreement shall lie with the state and federal courts of Los Angeles County in the State of California.
17.11 Notices. All notices, requests, demands or other communications required or permitted to be given or made under this Agreement shall be in writing and shall be delivered by hand, by commercial overnight delivery service which provides for evidence of receipt, by certified mail, return receipt requested, postage prepaid, by facsimile, or by e-mail (e-mail to be followed promptly at receiver's request by a copy delivered by one of the other means of delivery) to the corresponding addresses listed on the signature page of this Agreement. If delivered personally, by commercial overnight delivery service, by facsimile, or by e-mail, the date on which the notice, request, instruction, or document is delivered shall be the date on which delivery is deemed to be made, and if delivered by mail, the date on which such notice, request, instruction, or document is received shall be the date on which delivery is deemed to be made. Any party may change its address for the purpose of this Agreement by notice in writing to the other parties as provided herein.
17.12 Survival. The obligation of confidentiality in Section 7, Sections 9, 10, 11, 12, 13, and this Section 17.12 shall survive any termination of this Agreement.
17.13 No Waiver. No failure on the part of any party hereto to exercise, and no delay in exercising any right, power, or single or partial exercise of any right, power, or remedy by any party will preclude any other or further exercise of that or any other right, power, or remedy. No express waiver or assent by any party to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition.
NYDATA 254955v2