[wg-a] Registrars' DRP: one reaction

[Amadeu Abril i Abril <Amadeu@nominalia.com>]

Hi all,

PSA one of the first reactions to the proposed AOL/register.com DRP. For your
info, Jason Hendeles is ·the money behind AlterNIC". Mikki barry is a member
of DNRC and ORSC.

But waht it shows, besides the concrete DRP, which says little, is that the
likelihood to have a uniform registrar-based DRP is not high. "Most"
registrars might be reasonable organisations understianding why it is needed,
but unless we go the "registry-based" approach we will always face a certain
degree of lonely players. Ie, a fair degree of forum shopping, and all related niceties.

Best regards,

Amadeu

********

*****

Jason Hendeles wrote:

To All Registrars:

Please find enclosed a draft Domain Name Dispute Policy that was prepared by
A Technology Company, Inc. and Mikki Barry. While, we appreciate the efforts
of AOL and Register, we have already put considerable effort into developing
our own agreement. We we be pleased to accept any comments or suggestions.
Alternatively, we will begin to review the Skadden draft.

NOTE:  I do not feel that our agreement (the combine registrar
document)should in any way assume any form of direct responsibility.  We
should be deferring all legal precedent and resolution process to WIPO and
the appropriate National and International judicial systems entirely.

Sincerely,





Jason Hendeles
A Technology Company, Inc.


DOMAIN NAME REGISTRATION AGREEMENT

INDEX

A.      INTRODUCTION
B.      FEES & PAYMENTS
C.      DISPUTE POLICY
D.      DISPUTE POLICY CHANGES OR MODIFICATIONS
E.      DISPUTES
F.      AGENTS
G.      LIMITATION OF LIABILITY
H.      INDEMNITY
I.      BREACH
J.      NO GUARANTEE
K.      RIGHT OF REFUSAL
L.      SEVERABILITY
M.      ENTIRETY
N.      GOVERNING LAW
O.      ACCEPTANCE OF THE AGREEMENT



A.      INTRODUCTION



                This domain name registration agreement ("Registration
Agreement") is
submitted to A TECHNOLOGY COMPANY, INC. ("ATC") for the
purpose of applying
for and registering a domain name on the Internet. If this
Registration
Agreement is accepted by ATC, and a domain name is
registered in ATC's
domain name database and assigned to the Registrant ("You"),
You agree to be bound by the terms of this Registration
Agreement and the
terms of ATC's Domain Name Dispute Policy ("Dispute Policy")
which is a part
of this Registration Agreement. You must agree to both the
Domain Name
Dispute Policy and the Registration Agreement. If Your
Domain Name
registration is accepted by ATC, the legal place for the
formation of our
contractual relationship will be the offices of ATC.

B.      FEES & PAYMENTS

You must have paid our fees and agreed to the Registration
Agreement and
Dispute Policy before ATC will register Your Domain Name.
Once ATC registers
the Domain Name, it will be resolved in the ATC Root Tables.
You agree to
pay a registration fee of Seventy Five US Dollars (US$75) as
consideration
for the registration of each new domain name for the first
two (2) years, or
Thirty Five US Dollars (US$35) to renew an existing
registration for a
covering period of one (1) year. The payment may be made
payable either
directly to "A TECHNOLOGY COMPANY, INC.", or indirectly to
ATC through Your
Internet Service Provider ("ISP") if Your ISP has entered
into an agreement
with ATC to do so.

After the first thirty days, the Domain Name registration
fees are
non-refundable. The fees include any permitted modifications
to the Domain
Name record during the covered period.

If the Registrant decides to cancel the Domain Name within
thirty (30) days
after the Domain Name is resolved by the ATC Root Tables,
All fees will be
refunded, and the Domain Name registration will be cancelled.

C.      DISPUTE POLICY

You specifically agree as a condition to submitting this
Registration
Agreement, that You will be bound by both the Registration
Agreement, and
ATC's current Dispute Policy. The Dispute Policy can be found at:
***confidential

D.      DISPUTE POLICY CHANGES OR MODIFICATIONS

You agree that ATC can modify this Dispute (which is a part
of this
Registration Agreement and is specifically agreed to as a
condition of
registration of a Domain Name) from time to time. If You
choose to continue
Your Domain Name registration after any modification of the
policies, You
automatically accept these modifications. If You disagree,
or find the
modifications unacceptable, You can request that the Domain
Name
registration be cancelled. Cancellation will delete the
domain name from
ATC's database.

E.      AGENTS



You agree that even if You registered a Domain Name through
an Agent, You
will still be bound by the Dispute Policy and Registration
Agreement, as if
You had registered the Domain Name directly through ATC.  An
Agent is an
individual, corporation or organisation who registers a
domain name on
behalf of a third party.  The Agent of a domain name hold's
no rights over a
domain name holder and must hold ATC harmless for any actions it may take.

F.      LIMITATION OF LIABILITY

You agree that ATC will not be liable to You for any loss
You may suffer in
connection with ATC's processing of this Registration
Agreement, or any
authorised modifications to Your Domain Name record during
the covered
period. You also agree that if You incur a loss as a result
of Your ISP or
agent's failure to pay the registration or renewal fees, or
if You incur a
loss because of the Dispute Policy, ATC will not be liable
for those losses,
or for any consequential or special damages, even if You
inform us of the
possibility of damages before hand. You agree that in no
event will ATC's
maximum liability for any matter under this Agreement of the
Dispute policy
exceed two hundred ninety nine and 00/100 U.S. dollars (US$299.00).



G.      INDEMNITY

You agree that if ATC accepts Your Registration Agreement
and any dispute
arises with anyone else regarding Your registration or use
of a Domain Name
whether due to Your World Wide Web content, defamatory
electronic mail,
unlawful file transfers, or for any other reason, You agree
to indemnify and
hold ATC harmless for any damages awarded, for our legal
fees, or any other
costs ATC incurs defending itself, pursuant to the terms and
conditions
contained in both this Registration Agreement, and the Dispute Policy.

H.      BREACH

You agree that Your failure to abide by any provision of
this Registration
Agreement or the Dispute policy will be a material breach,
and ATC may
provide You with a written notice describing the breach. If
within thirty
(30) days of mailing this notice to You, if You fail to
provide evidence
which is reasonably satisfactory to ATC that You have not
breached Your
obligations, we may delete Your Domain Name registration
without further
notice. Any such breach will not be deemed to be excused
even if ATC does
not act earlier in response to that or any other breach by You.

I.      WARRANTY

You warrant, by submitting this Registration Agreement, that
to the best of
Your knowledge and belief, the information contained in Your
registration is
true and correct, and that if this information changes in
the future, You
will provide the new information to ATC in a timely manner
according to the
Domain Name modification procedures in place at that time.
Breach of this
warranty will constitute a material breach of this
Registration Agreement,
and ATC can delete Your Domain Name registration. If ATC
finds out that You
have provided misleading information or if You conceal or
omit any
information ATC would likely consider material to its
decision to approve
this Registration Agreement either during initial
registration, or
subsequent modification(s), ATC may delete Your Domain Name.

J.      RIGHT OF REFUSAL

ATC, in its sole discretion, may refuse Your registration
for a Domain Name
if it believes that this registration may damage ATC. You
agree that by
merely submitting a Registration Agreement, ATC is not
obliged to accept it
and register You a Domain Name. You also agree that if ATC
chooses not to
register the Domain Name, ATC will not be liable for loss or
damages that
may result. If ATC rejects Your Registration Agreement, You
will be notified
of the reasons for the rejection, and You may ask ATC for reconsideration.

K.      SEVERABILITY

You agree that the terms of this Registration Agreement and
the attached
Domain Name Dispute Policy are severable. If any term or
provision is
declared invalid by a court of competent jurisdiction, it
will not affect
the remaining terms or provisions, which shall continue to
be binding on
You.

L.      ENTIRETY

You agree that this Registration Agreement and the Dispute
Policy constitute
the complete and exclusive agreement between You and ATC
regarding the
registration of Your Domain Name. This Registration
Agreement and the
Dispute Policy supersede all prior agreements and
understandings, whether
established by custom, practice, policy, or precedent.

M.      GOVERNING LAW

You agree that this Registration Agreement shall be governed
in all respects
by and construed in accordance with the laws of the Province
of Ontario,
Canada. By submitting this Registration Agreement, You agree
to the
exclusive jurisdiction and venue residing in the Toronto
District Court for
the Province of Ontario, Canada. If subject matter
jurisdiction is improper
in the
Toronto District Court, You agree that venue and
jurisdiction shall be in
the Federal Court of Ontario, Ottawa, Canada.

N.      ACCEPTANCE OF THE AGREEMENT

This is Domain Name Registration Agreement Version Number 1.
This
Registration Agreement is for registrations under the
generic top-level
domains: "COM", "ORG", "NET", and "EDU". By completing and
submitting this
Registration Agreement for consideration and acceptance by
ATC, the
Registrant agrees that
he/she has read and agrees to be bound by both this
Agreement in its
entirety, and the attached Domain Name Dispute Policy.
Electronic acceptance
of this agreement is legally binding upon receiving and
activation of the
second-level domain name.





A TECHNOLOGY COMPANY
DOMAIN NAME DISPUTE POLICY

1.      Introduction



A Technology Company. ("ATC") is responsible for the registration of
second-level Internet domain names in the generic top level domains
".COM,"
".ORG," ".NET" and ".EDU."  ATC registers these second-level domain
names
within on a "first come, first served" basis. By registering a
domain name
directly or through the appropriate country code registrar. ATC does
not
assume responsibility for determining the legality of domain name
registrations, or otherwise evaluate whether that registration or
use may
infringe upon the rights of a third party.

2.      Registrant's warranties

The entity applying for a domain name ("You") are solely responsible
for
selecting Your own domain name and ensuring the continued accuracy
of the
registration record. By completing and submitting the Domain Name
Registration Agreement ("Registration Agreement"), You represent
that the
statements in its application are truthful, and You agree to keep
this
information updated.

3.      Neutrality of ATC

ATC neither acts as arbiter nor provides resolution of disputes
between
registrants and third party complainants arising out of the
registration or
use of a domain name. This Domain Name Dispute Policy ("Policy")
does not
confer any rights, procedural or substantive, upon third party complainants.
Likewise, complainants are not obligated to use this Policy.

4.      No Limitation on ATC's Procedures

This Policy does not limit the administrative or legal procedures
ATC may
use when third party conflicts arise that directly involve ATC, or
when ATC
is presented with information that a domain name violates the legal
rights
of a third party, including, but not limited to, information that
the
display or use of the domain name is expressly prohibited by a
Canadian
federal statute or regulation.

5.      Modifications

You acknowledges and agrees that ATC may modify or amend this Policy
from
time to time, and that such changes are binding upon the registrant.
ATC
will post the revised Policy at [*fill in here*] at least fifteen (15)
calendar days before it becomes effective.

6.      Indemnity

You agrees to defend, indemnify and hold harmless ATC, its officers,
directors, employees and agents for any loss or damages awarded by a
court
of competent jurisdiction resulting from any claim, action, or
demand
arising out of or related to the registration or use of the domain name.
Such claims shall include, without limitation, those based upon
trademark or
service mark infringement, tradename infringement, dilution,
tortious
interference with contract or prospective business
advantage, unfair competition, defamation or injury to business
reputation.
ATC shall send written notice to the You of any such claim, action,
or
demand against that party within a reasonable time. You also agree
to send
written notice to ATC of any such claim, action, or demand within a
reasonable time. Your failure to notify ATC, however, does not
absolve You
of Your obligations under this Dispute Policy, or under the
Registration
Agreement. ATC recognises that certain educational and governmental
entities
may not be able to provide complete indemnification. If You are (I)
a
governmental or non-profit educational entity, and (ii) not
permitted by law
or under Your organisational documents to provide indemnification,
You must
notify ATC in writing and, upon receiving appropriate proof of such
restriction, ATC may provide an alternative provision for such a registrant.

7.      Revocation

You agree that ATC shall have the right in its sole discretion to
revoke,
suspend, transfer or otherwise modify a domain name registration
upon ten
(10) calendar days prior written notice, or immediately and without
notice
if ATC receives a properly authenticated order from a court of
competent
jurisdiction, or arbitration award, requiring the revocation,
suspension,
transfer or modification of the domain name registration.

8.      Disclaimer

You agree that ATC will not be liable for any loss of registration
and use
of Your domain name, or for interruption of business, or any
indirect,
special, incidental, or consequential damages of any kind (including
lost
profits) regardless of the form of action whether in contract, tort
(including negligence), or otherwise, even if ATC has been advised
of the
possibility of such damages. In no event shall ATC' maximum
liability exceed
two hundred ninety nine and 00/100 U.S. dollars (US$299.00).

9.      Notices

All notices between You and ATC permitted or required under this
Policy
shall be in writing and shall be delivered by personal delivery,
courier
delivery, facsimile transmission, e-mail delivery and/or by first
class
mail, and shall be deemed served upon delivery, transmission, or seven (7)
calendar days after deposit, whichever occurs first. Initial notices
shall
be sent to the domain name registrant at the address of the domain
name
registrant listed in ATC's WHOIS database.

10.     Non-Agency

Nothing contained in this Policy shall be construed as creating any
agency,
partnership, or other form of joint enterprise between the parties.

11.     Non-Waiver

The failure of ATC to require Your performance of any provision of
either
the Dispute Policy or the Registration Agreement, shall not affect
the full
right to require performance at any time thereafter; nor shall the
waiver by
ATC of a breach of any provision be taken or held to be a waiver of
the
provision itself.