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your domain name. You should be aware that
there is the possibility we might be ordered by a
court to cancel, modify, or transfer your domain name. You should be
aware that if we are sued or threatened with lawsuit in connection with
your domain name, we may turn to you to hold us harmless and indemnify
us.
3. Fees, Payment and Term. As consideration for the services
you have selected, you agree to pay Acacia Media the applicable service(s)
fees. Registration will not be processed until payment for services
is verified or received. All fees payable for domain name thereunder
are nonrefundable unless we provide otherwise. This section does not
apply to fees payable for Acacia Media's Web Hosting services. Payment
policy for Web Hosting can be found at: http://www.AldenHosting.com/billingpolicy.shtml.
As further consideration for the domain name service(s), you agree to:
(1) provide certain current, complete and accurate information about
you as required by the registration process and (2) maintain and update
this information as needed to keep it current, complete and accurate.
All such information shall be referred to as account information ("Account
Information"). You hereby grant Acacia Media the right to disclose to
third parties such Account Information. The Registrant, by completing
and submitting the Domain Name Registration Agreement ("Registration
Agreement"), represents that the statements in its application are true
and that the registration of the selected Domain Name, so far as the
Registrant is aware, does not interfere with or infringe upon the rights
of any third party. The Registrant also represents that the Domain Name
is not being registered for any unlawful purpose.
4. Modifications to Agreement. You agree, during the
period of this Agreement, that we may: (1) revise the terms and conditions
of this Agreement; and (2) change the services provided under this Agreement.
Any such revision or change will be binding and effective immediately
on posting of the revised Agreement or change to the service(s) on Acacia
Media's web site, or on notification to you by e-mail or by telephone
or by mail. You agree to review Acacia Media's web site, including the
Agreement, periodically to be aware of any such revisions. If you do
not agree with any revision to the Agreement, you may terminate this
Agreement at any time by providing us with notice by e-mail or by fax.
Notice of your termination will be effective on receipt and processing
by us. You agree that, by continuing to use the Acacia Media services
following notice of any revision to this Agreement or change in service(s),
you abide by any such revisions or changes. You further agree that we,
in our sole discretion, may modify our Dispute Policy at any time. You
agree that, by maintaining the reservation or registration of your domain
name after modifications to the Dispute Policy become effective, you
have agreed to these modifications. You acknowledge that if you do not
agree to any such modifications, you may request that your domain name
be deleted from the domain name database.
5. Modifications to your Account. In order to change
any of your account information with us, you must use your Account Identifier
and Password that you selected when you opened your account with us.
Please safeguard your Account Identifier and Password from any unauthorized
use. In no event will we be liable for the unauthorized use or misuse
of your Account Identifier or Password.
6. Domain Name Dispute Policy. If you reserved or registered
a domain name through us, or transferred a domain name to us from another
registrar, you agree to be bound by our current Domain Name Dispute
Policy ("Dispute Policy") which is incorporated herein and made a part
of this Agreement by reference. The current version of the Dispute Policy
may be found at our web site: http://www.AldenHosting.com/domainnameregterms.shtml#Dispute.
Please take the time to familiarize yourself with such policy.
7. Domain Name Disputes. You agree that, if the registration
or reservation of your domain name is challenged by a third party, you
will be subject to the provisions specified in the Dispute Policy in
effect at the time of the dispute. You agree that in the event a domain
name dispute arises with any third party, you will indemnify and hold
us harmless pursuant to the terms and conditions contained in the Dispute
Policy. For any dispute, you agree to submit to the jurisdiction of
the courts of your domicile, the courts of the geographic location indicated
by your WHOIS information for your domain name, and the courts of Bergen
County, New Jersey.
8. Agents. You agree that, if an agent for you (i.e.,
an Internet Service Provider, employee, etc.) purchased Acacia Media
service(s) on your behalf, you are nonetheless bound as a principal
by all terms and conditions herein, including the Dispute Policy.
9. Announcements. We reserve the right to distribute
information to you that is pertinent to the quality or operation of
our services and those of our service partners. These announcements
will be predominately informative in nature and may include notices
describing changes, upgrades, new products or other information to add
security or to enhance your identity on the Internet.
10. Limitation of Liability. You agree that our entire
liability, and your exclusive remedy, with respect to any Acacia Media
services(s) provided under this Agreement and any breach of this Agreement
is solely limited to the amount you paid for such service(s). Acacia
Media and its contractors shall not be liable for any direct, indirect,
incidental, special or consequential damages resulting from the use
or inability to use any of the Acacia Media services or for the cost
of procurement of substitute services. Because some states do not allow
the exclusion or limitation of liability for consequential or incidental
damages, in such states, our liability is limited to the extent permitted
by law. We disclaim any and all loss or liability resulting from, but
not limited to: (1) loss or liability resulting from access delays or
access interruptions; (2) loss or liability resulting from data non-delivery
or data mis-delivery; (3) loss or liability resulting from acts of God;
(4) loss or liability resulting from the unauthorized use or misuse
of your Account Identifier or Password; (5) loss or liability resulting
from errors, omissions, or misstatements in any and all information
or services(s) provided under this Agreement; (6) loss or liability
resulting from the development or interruption of your Web site or e-mail
service. The registrant agrees that Acacia Media will not be liable
for any loss of registration and use of registrant's 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 Acacia Media has been advised of the possibility
of such damages. In no event shall Acacia Media's maximum liability
exceed five hundred ($500.00) dollars.
11. Indemnity. You agree to release, indemnify, and hold
Acacia Media, its contractors, agents, employees, officers, directors
and affiliates harmless from all liabilities, claims and expenses, including
attorney's fees, of third parties relating to or arising under this
Agreement, the Acacia Media services provided thereunder or your use
of the Acacia Media services, including without limitation infringement
by you, or someone else using the Acacia Media E-mail Service with your
computer, of any intellectual property or other proprietary right of
any person or entity, or from the violation of any Acacia Media operating
rule or policy relating to the service(s) provided. You also agree to
release, indemnify and hold us harmless pursuant to the terms and conditions
contained in the Dispute Policy. When Acacia Media is threatened with
suit by a third party, Acacia Media may seek written assurances from
you concerning your promise to indemnify Acacia Media; your failure
to provide those assurances may be considered by Acacia Media to be
a breach of your Agreement and may result in deactivation of your domain
name.
12. Breach. You agree that failure to abide by any provision
of this Agreement, any Acacia Media operating rule or policy or the
Dispute Policy, may be considered by us to be a material breach and
that we may provide a written notice, describing the breach, to you.
If within thirty (30) calendar days of the date of such notice, you
fail to provide evidence, which is reasonably satisfactory to us, that
you have not breached your obligations under the Agreement, then we
may delete the registration or reservation of your domain name or terminate
your account without further notice. Any such breach by you shall not
be deemed to be excused simply because we did not act earlier in response
to that, or any other breach by you.
13. No Guarantee. You agree that, by registration or
reservation of your chosen domain name, such registration or reservation
does not confer immunity from objection to either the registration,
reservation, or use of the domain name.
14. Disclaimer of Warranties. You agree and warrant that
the information that you provide to us to register or reserve your domain
name or register for other Acacia Media service(s) is, to the best of
your knowledge and belief, accurate and complete, and that any future
changes to this information will be provided to us in a timely manner
according to the modification procedures in place at that time. You
agree that your use of our Acacia Media service(s) is solely at your
own risk. You agree that such service(s) is provided on an "as is," "as
available" basis. Acacia Media expressly disclaims all warranties of
any kind, whether expressed or implied, including but not limited to
the implied warranties of merchantability, fitness for a particular
purpose and non-infringement. Acacia Media makes no warranty that the
Acacia Media service(s) will meet your requirements, or that the service(s)
will be uninterrupted, timely, secure, or error free; nor does Acacia
Media make any warranty as to the results that may be obtained from
the use of the service(s) or as to the accuracy or reliability of any
information obtained through the Acacia Media e-mail service or that
defects in the Acacia Media service(s) software will be corrected. You
understand and agree that any material and/or data downloaded or otherwise
obtained through the use of the Acacia Media service is done at your
own discretion and risk and that you will be solely responsible for
any damage to your computer system or loss of data that results from
the download of such material and/or data. Acacia Media makes no warranty
regarding any goods or services purchased or obtained through the service
or any transactions entered into through service. No advice or information,
whether oral or written, obtained by you from Acacia Media or through
the service shall create any warranty not expressly made herein. Some
jurisdictions do not allow the exclusion of certain warranties, so some
of the above exclusions may not apply to you.
15. Revocation. You agree that we may delete your domain
name or terminate your right to use other Acacia Media service(s) if
the information that you provided to register or reserve your domain
name or register for other Acacia Media service(s), or subsequently
to modify it, contains false or misleading information, or conceals
or omits any information we would likely consider material to our decision
to register or reserve your domain name. You agree that we may, in our
sole discretion, delete or transfer your domain name at any time.
16. Right of Refusal. We, in our sole discretion, reserve
the right to refuse to register or reserve your chosen domain name or
register you for other Acacia Media service(s), or to delete your domain
name within thirty (30) calendar days from receipt of your payment for
such services. In the event we do not register or reserve your domain
name or register you for other Acacia Media service(s), or we delete
your domain name or other Acacia Media service(s) within such thirty
(30) calendar day period, we agree to refund your applicable fee(s).
You agree that we shall not be liable to you for loss or damages that
may result from our refusal to register or reserve, or delete your domain
name or register you for other Acacia Media service(s).
17. Severability. You agree that the terms of this Agreement
are severable. If any term or provision is declared invalid or unenforceable,
that term or provision will be construed consistent with applicable
law as nearly as possible to reflect the original intentions of the
parties, and the remaining terms and provisions will remain in full
force and effect.
18. Non-Agency. Nothing contained in this Agreement or
the Dispute Policy shall be construed as creating any agency, partnership,
or other form of joint enterprise between the parties.
19. Non-Waiver. The failure of Acacia Media to require
performance by the Registrant of any provision hereof shall not affect
the full right to require such performance at any time thereafter; nor
shall the waiver by Acacia Media of a breach of any provision hereof
be taken or held to be a waiver of the provision itself.
20. Notices. Any notice, direction or other communication
given under this Agreement shall be in writing and given by sending
it via e-mail or via regular mail. In the case of e-mail, valid notice
shall only have been deemed to have been given when an electronic confirmation
of delivery has been obtained by the sender, in the case of notice to
us to nic@AldenHosting.com. Mail shall be sent to: Acacia Media LLC,
37 Cottage Lane, Upper Saddle River, NJ 07458, and to you at the mailing
address provided in your application or as updated from time to time.
Any e-mail communication shall be deemed to have validly and effectively
given on the date of such communication, if such date is a business
day and such delivery was made prior to 4:00 p.m. EST and otherwise
on the next business day. Any communication sent via regular mail shall
be deemed to have been validly and effectively given 5 business days
after the date of mailing.
21. Entirety. You agree that this Agreement, the rules
and policies published by Acacia Media and the Dispute Policy are the
complete and exclusive agreement between you and us regarding our Acacia
Media services. This Agreement and the Dispute Policy supersede all
prior agreements and understandings, whether established by custom,
practice, policy or precedent.
22. Governing Law. You agree that this Agreement shall
be governed in all respects by and interpreted in accordance with the
laws of the State of New Jersey and the federal laws of the Unites States
of America applicable therein without reference to rules governing choice
of laws. Any action relating to this agreement must be brought in the
County of Bergen courts located in Bergen County, New Jersey and you
irrevocably consent to the jurisdiction of such courts.
23. Infancy. You attest that you are of legal age to
enter into this Agreement.
24. Acceptance of agreement. You acknowledge that you
have read this agreement and agree to all its terms and conditions.
You have independently evaluated the desirability of participating in
the affiliate network and are not relying on any representation, guarantee
or statement other than as set forth in this agreement.
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Uniform Domain Name
Dispute Resolution Policy
Policy Adopted: August 26, 1999
Implementation Documents Approved: October 24, 1999
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Uniform Domain Name Dispute
Resolution Policy
(As Approved by ICANN on
October 24, 1999)
1. Purpose. This
Uniform Domain Name Dispute Resolution Policy (the "Policy")
has been adopted by the Internet Corporation for Assigned
Names and Numbers ("ICANN"), is incorporated by reference
into your Registration Agreement, and sets forth the terms
and conditions in connection with a dispute between you
and any party other than us (the registrar) over the registration
and use of an Internet domain name registered by you. Proceedings
under Paragraph
4 of this Policy will be conducted according to the
Rules for Uniform Domain Name Dispute Resolution Policy
(the "Rules of Procedure"),
and the selected administrative-dispute-resolution service
provider's supplemental rules.
2. Your
Representations. By
applying to register a domain name, or by asking us
to maintain or renew a domain name registration, you
hereby represent and warrant to us that (a) the statements
that you made in your Registration Agreement are complete
and accurate; (b) to your knowledge, the registration
of the domain name will not infringe upon or otherwise
violate the rights of any third party; (c) you are not
registering the domain name for an unlawful purpose;
and (d) you will not knowingly use the domain name in
violation of any applicable laws or regulations. It
is your responsibility to determine whether your domain
name registration infringes or violates someone else's
rights.
3. Cancellations,
Transfers, and Changes. We
will cancel, transfer or otherwise make changes to domain
name registrations under the following circumstances:
a. subject
to the provisions of Paragraph
8, our receipt of written or appropriate electronic
instructions from you or your authorized agent to take
such action;
b. our receipt
of an order from a court or arbitral tribunal, in each
case of competent jurisdiction, requiring such action;
and/or
c. our receipt
of a decision of an Administrative Panel requiring such
action in any administrative proceeding to which you were
a party and which was conducted under this Policy or a
later version of this Policy adopted by ICANN. (See Paragraph
4(i) and (k) below.)
We may also
cancel, transfer or otherwise make changes to a domain name
registration in accordance with the terms of your Registration
Agreement or other legal requirements.
4. Mandatory
Administrative Proceeding.
This Paragraph sets forth the type
of disputes for which you are required to submit to a mandatory
administrative proceeding. These proceedings will be conducted
before one of the administrative-dispute-resolution service
providers listed.
a. Applicable
Disputes. You are required
to submit to a mandatory administrative proceeding in
the event that a third party (a "complainant") asserts
to the applicable Provider, in compliance with the Rules
of Procedure, that
(i) your
domain name is identical or confusingly similar to a
trademark or service mark in which the complainant has
rights; and
(ii)
you have no rights or legitimate interests in respect
of the domain name; and
(iii)
your domain name has been registered and is being used
in bad faith.
In the
administrative proceeding, the complainant must prove
that each of these three elements are present.
b. Evidence
of Registration and Use in Bad Faith. For
the purposes of Paragraph
4(a)(iii), the following circumstances, in particular
but without limitation, if found by the Panel to be
present, shall be evidence of the registration and use
of a domain name in bad faith:
(i) circumstances
indicating that you have registered or you have acquired
the domain name primarily for the purpose of selling,
renting, or otherwise transferring the domain name registration
to the complainant who is the owner of the trademark
or service mark or to a competitor of that complainant,
for valuable consideration in excess of your documented
out-of-pocket costs directly related to the domain name;
or
(ii)
you have registered the domain name in order to prevent
the owner of the trademark or service mark from reflecting
the mark in a corresponding domain name, provided that
you have engaged in a pattern of such conduct; or
(iii)
you have registered the domain name primarily for the
purpose of disrupting the business of a competitor;
or
(iv)
by using the domain name, you have intentionally attempted
to attract, for commercial gain, Internet users to your
web site or other on-line location, by creating a likelihood
of confusion with the complainant's mark as to the source,
sponsorship, affiliation, or endorsement of your web
site or location or of a product or service on your
web site or location.
c. How
to Demonstrate Your Rights to and Legitimate Interests
in the Domain Name in Responding to a Complaint. When
you receive a complaint, you should refer to Paragraph
5 of the Rules of Procedure in determining how your
response should be prepared. Any of the following circumstances,
in particular but without limitation, if found by the
Panel to be proved based on its evaluation of all evidence
presented, shall demonstrate your rights or legitimate
interests to the domain name for purposes of Paragraph
4(a)(ii):
(i) before
any notice to you of the dispute, your use of, or demonstrable
preparations to use, the domain name or a name corresponding
to the domain name in connection with a bona fide offering
of goods or services; or
(ii)
you (as an individual, business, or other organization)
have been commonly known by the domain name, even if
you have acquired no trademark or service mark rights;
or
(iii)
you are making a legitimate noncommercial or fair use
of the domain name, without intent for commercial gain
to misleadingly divert consumers or to tarnish the trademark
or service mark at issue.
d. Selection
of Provider. The complainant
shall select the Provider from among those approved
by ICANN by submitting the complaint to that Provider.
The selected Provider will administer the proceeding,
except in cases of consolidation as described in Paragraph
4(f).
e. Initiation
of Proceeding and Process and Appointment of Administrative
Panel. The Rules of Procedure
state the process for initiating and conducting a proceeding
and for appointing the panel that will decide the dispute
(the "Administrative Panel").
f. Consolidation. In
the event of multiple disputes between you and a complainant,
either you or the complainant may petition to consolidate
the disputes before a single Administrative Panel. This
petition shall be made to the first Administrative Panel
appointed to hear a pending dispute between the parties.
This Administrative Panel may consolidate before it any
or all such disputes in its sole discretion, provided
that the disputes being consolidated are governed by this
Policy or a later version of this Policy adopted by ICANN.
g. Fees. All fees charged
by a Provider in connection with any dispute before an Administrative
Panel pursuant to this
Policy shall be paid by the complainant, except in cases
where you elect to expand the Administrative Panel from
one to three panelists as provided in Paragraph
5(b)(iv) of the Rules of Procedure, in which case
all fees will be split evenly by you and the complainant.
h. Our
Involvement in Administrative Proceedings. We
do not, and will not, participate in the administration
or conduct of any proceeding before an Administrative
Panel. In addition, we will not be liable as a result
of any decisions rendered by the Administrative Panel.
i. Remedies. The remedies available to a complainant pursuant to
any proceeding before an Administrative Panel shall be
limited to requiring the cancellation of your domain name
or the transfer of your domain name registration to the
complainant.
j. Notification
and Publication. The Provider
shall notify us of any decision made by an Administrative
Panel with respect to a domain name you have registered
with us. All decisions under this Policy will be published
in full over the Internet, except when an Administrative
Panel determines in an exceptional case to redact portions
of its decision.
k. Availability
of Court Proceedings. The
mandatory administrative proceeding requirements set
forth in Paragraph
4 shall not prevent either you or the complainant
from submitting the dispute to a court of competent
jurisdiction for independent resolution before such
mandatory administrative proceeding is commenced or
after such proceeding is concluded. If an Administrative
Panel decides that your domain name registration should
be canceled or transferred, we will wait ten (10) business
days (as observed in the location of our principal office)
after we are informed by the applicable Provider of
the Administrative Panel's decision before implementing
that decision. We will then implement the decision unless
we have received from you during that ten (10) business
day period official documentation (such as a copy of
a complaint, file-stamped by the clerk of the court)
that you have commenced a lawsuit against the complainant
in a jurisdiction to which the complainant has submitted
under Paragraph
3(b)(xiii) of the Rules of Procedure. (In general,
that jurisdiction is either the location of our principal
office or of your address as shown in our Whois database.
See Paragraphs
1 and 3(b)(xiii) of
the Rules of Procedure for details.) If we receive such
documentation within the ten (10) business day period,
we will not implement the Administrative Panel's decision,
and we will take no further action, until we receive
(i) evidence satisfactory to us of a resolution between
the parties; (ii) evidence satisfactory to us that your
lawsuit has been dismissed or withdrawn; or (iii) a
copy of an order from such court dismissing your lawsuit
or ordering that you do not have the right to continue
to use your domain name.
5. All
Other Disputes and Litigation. All
other disputes between you and any party other than
us regarding your domain name registration that are
not brought pursuant to the mandatory administrative
proceeding provisions of Paragraph
4 shall be resolved between you and such other party
through any court, arbitration or other proceeding that
may be available.
6. Our
Involvement in Disputes. We
will not participate in any way in any dispute between
you and any party other than us regarding the registration
and use of your domain name. You shall not name us as
a party or otherwise include us in any such proceeding.
In the event that we are named as a party in any such
proceeding, we reserve the right to raise any and all
defenses deemed appropriate, and to take any other action
necessary to defend ourselves.
7. Maintaining
the Status Quo. We will
not cancel, transfer, activate, deactivate, or otherwise
change the status of any domain name registration under
this Policy except as provided in Paragraph
3 above.
8. Transfers
During a Dispute.
a. Transfers
of a Domain Name to a New Holder. You
may not transfer your domain name registration to another
holder (i) during a pending administrative proceeding
brought pursuant to Paragraph
4 or for a period of fifteen (15) business days
(as observed in the location of our principal place
of business) after such proceeding is concluded; or
(ii) during a pending court proceeding or arbitration
commenced regarding your domain name unless the party
to whom the domain name registration is being transferred
agrees, in writing, to be bound by the decision of the
court or arbitrator. We reserve the right to cancel
any transfer of a domain name registration to another
holder that is made in violation of this subparagraph.
b. Changing
Registrars. You may not
transfer your domain name registration to another registrar
during a pending administrative proceeding brought pursuant
to Paragraph
4 or for a period of fifteen (15) business days
(as observed in the location of our principal place
of business) after such proceeding is concluded. You
may transfer administration of your domain name registration
to another registrar during a pending court action or
arbitration, provided that the domain name you have
registered with us shall continue to be subject to the
proceedings commenced against you in accordance with
the terms of this Policy. In the event that you transfer
a domain name registration to us during the pendency
of a court action or arbitration, such dispute shall
remain subject to the domain name dispute policy of
the registrar from which the domain name registration
was transferred.
9. Policy
Modifications. We reserve
the right to modify this Policy at any time with the
permission of ICANN. We will post our revised Policy
at <URL> at least thirty (30) calendar days before
it becomes effective. Unless this Policy has already
been invoked by the submission of a complaint to a Provider,
in which event the version of the Policy in effect at
the time it was invoked will apply to you until the
dispute is over, all such changes will be binding upon
you with respect to any domain name registration dispute,
whether the dispute arose before, on or after the effective
date of our change. In the event that you object to
a change in this Policy, your sole remedy is to cancel
your domain name registration with us, provided that
you will not be entitled to a refund of any fees you
paid to us. The revised Policy will apply to you until
you cancel your domain name registration.
Page Updated
20-May-2004
©2000, 2002 The Internet Corporation for Assigned Names and Numbers. All
rights reserved.
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Rules for Uniform Domain
Name Dispute Resolution Policy
Policy Adopted: August 26,
1999
Implementation Documents Approved: October 24, 1999
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Rules for Uniform
Domain Name Dispute Resolution Policy
(the "Rules")
(As Approved by
ICANN on October 24, 1999)
Administrative proceedings
for the resolution of disputes under the Uniform Dispute
Resolution Policy adopted by ICANN shall be governed by
these Rules and also the Supplemental Rules of the Provider
administering the proceedings, as posted on its web site.
1. Definitions
In these Rules:
Complainant means
the party initiating a complaint concerning a domain-name
registration.
ICANN refers
to the Internet Corporation for Assigned Names and Numbers.
Mutual
Jurisdiction means a court jurisdiction at the
location of either (a) the principal office of the
Registrar (provided the domain-name holder has submitted
in its Registration Agreement to that jurisdiction
for court adjudication of disputes concerning or arising
from the use of the domain name) or (b) the domain-name
holder's address as shown for the registration of
the domain name in Registrar's Whois database at the
time the complaint is submitted to the Provider.
Panel means
an administrative panel appointed by a Provider to decide
a complaint concerning a domain-name registration.
Panelist means
an individual appointed by a Provider to be a member
of a Panel.
Party means
a Complainant or a Respondent.
Policy means
the Uniform Domain Name Dispute Resolution Policy that
is incorporated by reference and made a part of the
Registration Agreement.
Provider means
a dispute-resolution service provider approved by ICANN.
A list of such Providers appears at http://www.aldenhosting.com/dndr/udrp/approved-providers.htm.
Registrar means
the entity with which the Respondent has registered
a domain name that is the subject of a complaint.
Registration
Agreement means the agreement between a Registrar
and a domain-name holder.
Respondent means
the holder of a domain-name registration against which
a complaint is initiated.
Reverse
Domain Name Hijacking means using the Policy in
bad faith to attempt to deprive a registered domain-name
holder of a domain name.
Supplemental
Rules means the rules adopted by the Provider
administering a proceeding to supplement these Rules.
Supplemental Rules shall not be inconsistent with
the Policy or these Rules and shall cover such topics
as fees, word and page limits and guidelines, the
means for communicating with the Provider and the
Panel, and the form of cover sheets.
2. Communications
(a) When
forwarding a complaint to the Respondent, it shall be
the Provider's responsibility to employ reasonably available
means calculated to achieve actual notice to Respondent.
Achieving actual notice, or employing the following
measures to do so, shall discharge this responsibility:
(i)
sending the complaint to all postal-mail and facsimile
addresses (A) shown in the domain name's registration
data in Registrar's Whois database for the registered
domain-name holder, the technical contact, and the
administrative contact and (B) supplied by Registrar
to the Provider for the registration's billing contact;
and
(ii)
sending the complaint in electronic form (including
annexes to the extent available in that form) by
e-mail to:
(A)
the e-mail addresses for those technical, administrative,
and billing contacts;
(B)
postmaster@<the contested domain name>;
and
(C)
if the domain name (or "www." followed by the
domain name) resolves to an active web page
(other than a generic page the Provider concludes
is maintained by a registrar or ISP for parking
domain-names registered by multiple domain-name
holders), any e-mail address shown or e-mail
links on that web page; and
(iii)
sending the complaint to any address the Respondent
has notified the Provider it prefers and, to the
extent practicable, to all other addresses provided
to the Provider by Complainant under Paragraph 3(b)(v).
(b) Except
as provided in Paragraph 2(a), any written communication
to Complainant or Respondent provided for under these
Rules shall be made by the preferred means stated by
the Complainant or Respondent, respectively (see Paragraphs
3(b)(iii) and 5(b)(iii)), or in the absence of such
specification
(i)
by telecopy or facsimile transmission, with a confirmation
of transmission; or
(ii)
by postal or courier service, postage pre-paid and
return receipt requested; or
(iii)
electronically via the Internet, provided a record
of its transmission is available.
(c) Any
communication to the Provider or the Panel shall be
made by the means and in the manner (including number
of copies) stated in the Provider's Supplemental Rules.
(d) Communications
shall be made in the language prescribed in Paragraph
11. E-mail communications should, if practicable, be
sent in plaintext.
(e) Either
Party may update its contact details by notifying the
Provider and the Registrar.
(f) Except
as otherwise provided in these Rules, or decided by
a Panel, all communications provided for under these
Rules shall be deemed to have been made:
(i)
if delivered by telecopy or facsimile transmission,
on the date shown on the confirmation of transmission;
or
(ii)
if by postal or courier service, on the date marked
on the receipt; or
(iii)
if via the Internet, on the date that the communication
was transmitted, provided that the date of transmission
is verifiable.
(g) Except
as otherwise provided in these Rules, all time periods
calculated under these Rules to begin when a communication
is made shall begin to run on the earliest date that
the communication is deemed to have been made in accordance
with Paragraph 2(f).
(h) Any
communication by
(i)
a Panel to any Party shall be copied to the Provider
and to the other Party;
(ii)
the Provider to any Party shall be copied to the
other Party; and
(iii)
a Party shall be copied to the other Party, the
Panel and the Provider, as the case may be.
(i) It shall
be the responsibility of the sender to retain records
of the fact and circumstances of sending, which shall
be available for inspection by affected parties and
for reporting purposes.
(j) In the
event a Party sending a communication receives notification
of non-delivery of the communication, the Party shall
promptly notify the Panel (or, if no Panel is yet appointed,
the Provider) of the circumstances of the notification.
Further proceedings concerning the communication and
any response shall be as directed by the Panel (or the
Provider).
3. The
Complaint
(a) Any
person or entity may initiate an administrative proceeding
by submitting a complaint in accordance with the Policy
and these Rules to any Provider approved by ICANN. (Due
to capacity constraints or for other reasons, a Provider's
ability to accept complaints may be suspended at times.
In that event, the Provider shall refuse the submission.
The person or entity may submit the complaint to another
Provider.)
(b) The
complaint shall be submitted in hard copy and (except
to the extent not available for annexes) in electronic
form and shall:
(i)
Request that the complaint be submitted for decision
in accordance with the Policy and these Rules;
(ii)
Provide the name, postal and e-mail addresses, and
the telephone and telefax numbers of the Complainant
and of any representative authorized to act for
the Complainant in the administrative proceeding;
(iii)
Specify a preferred method for communications directed
to the Complainant in the administrative proceeding
(including person to be contacted, medium, and address
information) for each of (A) electronic-only material
and (B) material including hard copy;
(iv)
Designate whether Complainant elects to have the
dispute decided by a single-member or a three-member
Panel and, in the event Complainant elects a three-member
Panel, provide the names and contact details of
three candidates to serve as one of the Panelists
(these candidates may be drawn from any ICANN-approved
Provider's list of panelists);
(v)
Provide the name of the Respondent (domain-name
holder) and all information (including any postal
and e-mail addresses and telephone and telefax numbers)
known to Complainant regarding how to contact Respondent
or any representative of Respondent, including contact
information based on pre-complaint dealings, in
sufficient detail to allow the Provider to send
the complaint as described in Paragraph 2(a);
(vi)
Specify the domain name(s) that is/are the subject
of the complaint;
(vii)
Identify the Registrar(s) with whom the domain name(s)
is/are registered at the time the complaint is filed;
(viii)
Specify the trademark(s) or service mark(s) on which
the complaint is based and, for each mark, describe
the goods or services, if any, with which the mark
is used (Complainant may also separately describe
other goods and services with which it intends,
at the time the complaint is submitted, to use the
mark in the future.);
(ix)
Describe, in accordance with the Policy, the grounds
on which the complaint is made including, in particular,
(1)
the manner in which the domain name(s) is/are
identical or confusingly similar to a trademark
or service mark in which the Complainant has
rights; and
(2)
why the Respondent (domain-name holder) should
be considered as having no rights or legitimate
interests in respect of the domain name(s) that
is/are the subject of the complaint; and
(3)
why the domain name(s) should be considered
as having been registered and being used in
bad faith
(The
description should, for elements (2) and (3), discuss
any aspects of Paragraphs 4(b) and 4(c) of the Policy
that are applicable. The description shall comply
with any word or page limit set forth in the Provider's
Supplemental Rules.);
(x)
Specify, in accordance with the Policy, the remedies
sought;
(xi)
Identify any other legal proceedings that have been
commenced or terminated in connection with or relating
to any of the domain name(s) that are the subject
of the complaint;
(xii)
State that a copy of the complaint, together with
the cover sheet as prescribed by the Provider's
Supplemental Rules, has been sent or transmitted
to the Respondent (domain-name holder), in accordance
with Paragraph 2(b);
(xiii)
State that Complainant will submit, with respect
to any challenges to a decision in the administrative
proceeding canceling or transferring the domain
name, to the jurisdiction of the courts in at least
one specified Mutual Jurisdiction;
(xiv)
Conclude with the following statement followed by
the signature of the Complainant or its authorized
representative:
"Complainant
agrees that its claims and remedies concerning
the registration of the domain name, the dispute,
or the dispute's resolution shall be solely
against the domain-name holder and waives all
such claims and remedies against (a) the dispute-resolution
provider and panelists, except in the case of
deliberate wrongdoing, (b) the registrar, (c)
the registry administrator, and (d) the Internet
Corporation for Assigned Names and Numbers,
as well as their directors, officers, employees,
and agents."
"Complainant
certifies that the information contained in
this Complaint is to the best of Complainant's
knowledge complete and accurate, that this Complaint
is not being presented for any improper purpose,
such as to harass, and that the assertions in
this Complaint are warranted under these Rules
and under applicable law, as it now exists or
as it may be extended by a good-faith and reasonable
argument."; and
(xv)
Annex any documentary or other evidence, including
a copy of the Policy applicable to the domain name(s)
in dispute and any trademark or service mark registration
upon which the complaint relies, together with a
schedule indexing such evidence.
(c) The
complaint may relate to more than one domain name, provided
that the domain names are registered by the same domain-name
holder.
4. Notification
of Complaint
(a) The
Provider shall review the complaint for administrative
compliance with the Policy and these Rules and, if in
compliance, shall forward the complaint (together with
the explanatory cover sheet prescribed by the Provider's
Supplemental Rules) to the Respondent, in the manner
prescribed by Paragraph 2(a), within three (3) calendar
days following receipt of the fees to be paid by the
Complainant in accordance with Paragraph 19.
(b) If the
Provider finds the complaint to be administratively
deficient, it shall promptly notify the Complainant
and the Respondent of the nature of the deficiencies
identified. The Complainant shall have five (5) calendar
days within which to correct any such deficiencies,
after which the administrative proceeding will be deemed
withdrawn without prejudice to submission of a different
complaint by Complainant.
(c) The
date of commencement of the administrative proceeding
shall be the date on which the Provider completes its
responsibilities under Paragraph 2(a) in connection
with forwarding the Complaint to the Respondent.
(d) The
Provider shall immediately notify the Complainant, the
Respondent, the concerned Registrar(s), and ICANN of
the date of commencement of the administrative proceeding.
5. The
Response
(a) Within
twenty (20) days of the date of commencement of the
administrative proceeding the Respondent shall submit
a response to the Provider.
(b) The
response shall be submitted in hard copy and (except
to the extent not available for annexes) in electronic
form and shall:
(i)
Respond specifically to the statements and allegations
contained in the complaint and include any and all
bases for the Respondent (domain-name holder) to
retain registration and use of the disputed domain
name (This portion of the response shall comply
with any word or page limit set forth in the Provider's
Supplemental Rules.);
(ii)
Provide the name, postal and e-mail addresses, and
the telephone and telefax numbers of the Respondent
(domain-name holder) and of any representative authorized
to act for the Respondent in the administrative
proceeding;
(iii)
Specify a preferred method for communications directed
to the Respondent in the administrative proceeding
(including person to be contacted, medium, and address
information) for each of (A) electronic-only material
and (B) material including hard copy;
(iv)
If Complainant has elected a single-member panel
in the Complaint (see Paragraph 3(b)(iv)), state
whether Respondent elects instead to have the dispute
decided by a three-member panel;
(v)
If either Complainant or Respondent elects a three-member
Panel, provide the names and contact details of
three candidates to serve as one of the Panelists
(these candidates may be drawn from any ICANN-approved
Provider's list of panelists);
(vi)
Identify any other legal proceedings that have been
commenced or terminated in connection with or relating
to any of the domain name(s) that are the subject
of the complaint;
(vii)
State that a copy of the response has been sent
or transmitted to the Complainant, in accordance
with Paragraph 2(b); and
(viii)
Conclude with the following statement followed by
the signature of the Respondent or its authorized
representative:
"Respondent certifies
that the information contained in this Response
is to the best of Respondent's knowledge complete
and accurate, that this Response is not being
presented for any improper purpose, such as
to harass, and that the assertions in this Response
are warranted under these Rules and under applicable
law, as it now exists or as it may be extended
by a good-faith and reasonable argument."; and
(ix)
Annex any documentary or other evidence upon which
the Respondent relies, together with a schedule
indexing such documents.
(c) If Complainant
has elected to have the dispute decided by a single-member
Panel and Respondent elects a three-member Panel, Respondent
shall be required to pay one-half of the applicable
fee for a three-member Panel as set forth in the Provider's
Supplemental Rules. This payment shall be made together
with the submission of the response to the Provider.
In the event that the required payment is not made,
the dispute shall be decided by a single-member Panel.
(d) At the
request of the Respondent, the Provider may, in exceptional
cases, extend the period of time for the filing of the
response. The period may also be extended by written
stipulation between the Parties, provided the stipulation
is approved by the Provider.
(e) If a
Respondent does not submit a response, in the absence
of exceptional circumstances, the Panel shall decide
the dispute based upon the complaint.
6. Appointment
of the Panel and Timing of Decision
(a) Each
Provider shall maintain and publish a publicly available
list of panelists and their qualifications.
(b) If neither
the Complainant nor the Respondent has elected a three-member
Panel (Paragraphs 3(b)(iv) and 5(b)(iv)), the Provider
shall appoint, within five (5) calendar days following
receipt of the response by the Provider, or the lapse
of the time period for the submission thereof, a single
Panelist from its list of panelists. The fees for a
single-member Panel shall be paid entirely by the Complainant.
(c) If either
the Complainant or the Respondent elects to have the
dispute decided by a three-member Panel, the Provider
shall appoint three Panelists in accordance with the
procedures identified in Paragraph 6(e). The fees for
a three-member Panel shall be paid in their entirety
by the Complainant, except where the election for a
three-member Panel was made by the Respondent, in which
case the applicable fees shall be shared equally between
the Parties.
(d) Unless
it has already elected a three-member Panel, the Complainant
shall submit to the Provider, within five (5) calendar
days of communication of a response in which the Respondent
elects a three-member Panel, the names and contact details
of three candidates to serve as one of the Panelists.
These candidates may be drawn from any ICANN-approved
Provider's list of panelists.
(e) In the
event that either the Complainant or the Respondent
elects a three-member Panel, the Provider shall endeavor
to appoint one Panelist from the list of candidates
provided by each of the Complainant and the Respondent.
In the event the Provider is unable within five (5)
calendar days to secure the appointment of a Panelist
on its customary terms from either Party's list of candidates,
the Provider shall make that appointment from its list
of panelists. The third Panelist shall be appointed
by the Provider from a list of five candidates submitted
by the Provider to the Parties, the Provider's selection
from among the five being made in a manner that reasonably
balances the preferences of both Parties, as they may
specify to the Provider within five (5) calendar days
of the Provider's submission of the five-candidate list
to the Parties.
(f) Once
the entire Panel is appointed, the Provider shall notify
the Parties of the Panelists appointed and the date
by which, absent exceptional circumstances, the Panel
shall forward its decision on the complaint to the Provider.
7. Impartiality
and Independence
A Panelist shall be impartial
and independent and shall have, before accepting appointment,
disclosed to the Provider any circumstances giving rise
to justifiable doubt as to the Panelist's impartiality or
independence. If, at any stage during the administrative
proceeding, new circumstances arise that could give rise
to justifiable doubt as to the impartiality or independence
of the Panelist, that Panelist shall promptly disclose such
circumstances to the Provider. In such event, the Provider
shall have the discretion to appoint a substitute Panelist.
8. Communication
Between Parties and the Panel
No Party or anyone acting on
its behalf may have any unilateral communication with the
Panel. All communications between a Party and the Panel
or the Provider shall be made to a case administrator appointed
by the Provider in the manner prescribed in the Provider's
Supplemental Rules.
9. Transmission
of the File to the Panel
The Provider shall forward
the file to the Panel as soon as the Panelist is appointed
in the case of a Panel consisting of a single member, or
as soon as the last Panelist is appointed in the case of
a three-member Panel.
10. General
Powers of the Panel
(a) The
Panel shall conduct the administrative proceeding in
such manner as it considers appropriate in accordance
with the Policy and these Rules.
(b) In
all cases, the Panel shall ensure that the Parties are
treated with equality and that each Party is given a
fair opportunity to present its case.
(c) The
Panel shall ensure that the administrative proceeding
takes place with due expedition. It may, at the request
of a Party or on its own motion, extend, in exceptional
cases, a period of time fixed by these Rules or by the
Panel.
(d) The
Panel shall determine the admissibility, relevance,
materiality and weight of the evidence.
(e) A Panel
shall decide a request by a Party to consolidate multiple
domain name disputes in accordance with the Policy and
these Rules.
11. Language
of Proceedings
(a) Unless
otherwise agreed by the Parties, or specified otherwise
in the Registration Agreement, the language of the administrative
proceeding shall be the language of the Registration
Agreement, subject to the authority of the Panel to
determine otherwise, having regard to the circumstances
of the administrative proceeding.
(b) The
Panel may order that any documents submitted in languages
other than the language of the administrative proceeding
be accompanied by a translation in whole or in part
into the language of the administrative proceeding.
12. Further
Statements
In addition to the complaint
and the response, the Panel may request, in its sole discretion,
further statements or documents from either of the Parties.
13. In-Person
Hearings
There shall be no in-person
hearings (including hearings by teleconference, videoconference,
and web conference), unless the Panel determines, in its
sole discretion and as an exceptional matter, that such
a hearing is necessary for deciding the complaint.
14. Default
(a) In
the event that a Party, in the absence of exceptional
circumstances, does not comply with any of the time
periods established by these Rules or the Panel, the
Panel shall proceed to a decision on the complaint.
(b) If
a Party, in the absence of exceptional circumstances,
does not comply with any provision of, or requirement
under, these Rules or any request from the Panel, the
Panel shall draw such inferences therefrom as it considers
appropriate.
15. Panel
Decisions
(a) A Panel
shall decide a complaint on the basis of the statements
and documents submitted and in accordance with the Policy,
these Rules and any rules and principles of law that
it deems applicable.
(b) In
the absence of exceptional circumstances, the Panel
shall forward its decision on the complaint to the Provider
within fourteen (14) days of its appointment pursuant
to Paragraph 6.
(c) In
the case of a three-member Panel, the Panel's decision
shall be made by a majority.
(d) The
Panel's decision shall be in writing, provide the reasons
on which it is based, indicate the date on which it
was rendered and identify the name(s) of the Panelist(s).
(e) Panel
decisions and dissenting opinions shall normally comply
with the guidelines as to length set forth in the Provider's
Supplemental Rules. Any dissenting opinion shall accompany
the majority decision. If the Panel concludes that the
dispute is not within the scope of Paragraph 4(a) of
the Policy, it shall so state. If after considering
the submissions the Panel finds that the complaint was
brought in bad faith, for example in an attempt at Reverse
Domain Name Hijacking or was brought primarily to harass
the domain-name holder, the Panel shall declare in its
decision that the complaint was brought in bad faith
and constitutes an abuse of the administrative proceeding.
16. Communication
of Decision to Parties
(a) Within
three (3) calendar days after receiving the decision
from the Panel, the Provider shall communicate the full
text of the decision to each Party, the concerned Registrar(s),
and ICANN. The concerned Registrar(s) shall immediately
communicate to each Party, the Provider, and ICANN the
date for the implementation of the decision in accordance
with the Policy.
(b) Except
if the Panel determines otherwise (see Paragraph 4(j)
of the Policy), the Provider shall publish the full
decision and the date of its implementation on a publicly
accessible web site. In any event, the portion of any
decision determining a complaint to have been brought
in bad faith (see Paragraph 15(e) of these Rules) shall
be published.
17. Settlement
or Other Grounds for Termination
(a) If,
before the Panel's decision, the Parties agree on a
settlement, the Panel shall terminate the administrative
proceeding.
(b) If,
before the Panel's decision is made, it becomes unnecessary
or impossible to continue the administrative proceeding
for any reason, the Panel shall terminate the administrative
proceeding, unless a Party raises justifiable grounds
for objection within a period of time to be determined
by the Panel.
18. Effect
of Court Proceedings
(a) In
the event of any legal proceedings initiated prior to
or during an administrative proceeding in respect of
a domain-name dispute that is the subject of the complaint,
the Panel shall have the discretion to decide whether
to suspend or terminate the administrative proceeding,
or to proceed to a decision.
(b) In
the event that a Party initiates any legal proceedings
during the pendency of an administrative proceeding
in respect of a domain-name dispute that is the subject
of the complaint, it shall promptly notify the Panel
and the Provider. See Paragraph 8 above.
19. Fees
(a) The
Complainant shall pay to the Provider an initial fixed
fee, in accordance with the Provider's Supplemental
Rules, within the time and in the amount required. A
Respondent electing under Paragraph 5(b)(iv) to have
the dispute decided by a three-member Panel, rather
than the single-member Panel elected by the Complainant,
shall pay the Provider one-half the fixed fee for a
three-member Panel. See Paragraph 5(c). In all other
cases, the Complainant shall bear all of the Provider's
fees, except as prescribed under Paragraph 19(d). Upon
appointment of the Panel, the Provider shall refund
the appropriate portion, if any, of the initial fee
to the Complainant, as specified in the Provider's Supplemental
Rules.
(b) No
action shall be taken by the Provider on a complaint
until it has received from Complainant the initial fee
in accordance with Paragraph 19(a).
(c) If
the Provider has not received the fee within ten (10)
calendar days of receiving the complaint, the complaint
shall be deemed withdrawn and the administrative proceeding
terminated.
(d) In
exceptional circumstances, for example in the event
an in-person hearing is held, the Provider shall request
the Parties for the payment of additional fees, which
shall be established in agreement with the Parties and
the Panel.
20. Exclusion
of Liability
Except in the case of deliberate
wrongdoing, neither the Provider nor a Panelist shall be
liable to a Party for any act or omission in connection
with any administrative proceeding under these Rules.
21. Amendments
The version of these Rules
in effect at the time of the submission of the complaint
to the Provider shall apply to the administrative proceeding
commenced thereby. These Rules may not be amended without
the express written approval of ICANN.
.
Page Updated
20-May-2004
©2000, 2002 The Internet Corporation for Assigned Names and Numbers. All
rights reserved.
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