.ASIA Pioneer Contract Draft Template
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.ASIA Pioneer Contract DRAFT TEMPLATE: (  doc ) |
| Date: |
September 11, 2007 |
| Version: |
1.0 |
This agreement (“Pioneer Contract”) is for the allocation of a Pioneer Domain in accordance with the .ASIA Pioneer Domains Program entered into on:
By and between DotAsia Organisation Limited, (“DotAsia”) a not-for-profit, membership-based organization incorporated in Hong Kong, and:
(“Registrant”) for the following domain name(s):
(“Pioneer Domain”).
WHEREAS DotAsia is the registry for the .ASIA top level domain (the “Registry”); and
WHEREAS DotAsia desires to identify a qualified Registrant with the best potential and capabilities to maximize the development of the Pioneer Domain;
WHEREAS DotAsia launched the Pioneer Recruitment process under the Pioneer Domains Program in order to solicit Proposals for utilizing a .ASIA Domain Name of Choice for the operation of Internet websites and/or internet based services that provide good foundations of active and positive usage of .ASIA domain names that will drive interest and adoption of the .ASIA TLD;
WHEREAS Registrant submitted a Proposal for the allocation of a Pioneer Domain under the:
Pioneer Class and proposed to operate it in accordance with the requirements under the Pioneer Domains Program in general and of that Pioneer Class in particular, both as set out in the .ASIA Pioneer Domains Program Policies and in conformance with the representations made by the Registrant in the Proposal and the Application Form;
WHEREAS DotAsia elected to enter into discussions and negotiation with Registrant regarding its Proposal; and
WHEREAS Registrant desires to register the Pioneer Domain and create, launch, and operate them in accordance with the Proposal and this Pioneer Contract; and
NOW, THEREFORE, in consideration of the mutual covenants contained in this Pioneer Contract, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby enter into the Pioneer Contract to read in its entirety as follows:
DEFINITIONS
In this Pioneer Contract, the following terms have the respective meanings ascribed to them below:
“.ASIA Charter Eligibility Requirement Policy” means the basic requirements to qualify as a domain registrant for the .ASIA Registry. A separate document, Charter Eligibility Requirement Policy provides further details on the subject (http://chartereligibility.policies.registry.asia).
“.ASIA Pioneer Domains Program Policies” means the terms and conditions as set out in the .ASIA Pioneer Domain Program Policies and published by DotAsia on its website (http://pioneer.domains.asia). The Policies shall also include the terms, conditions, representations and explanations set out in the Application Forms for each of the Pioneer Domain Program class, namely Community Pioneers class, Global Brand Pioneers class, Partner Pioneers class, and in the Financial Assistance Program published on the same website.
“.ASIA Registrar / Accredited Registrar” means an ICANN Accredited Registrar that is also accredited for the .ASIA Registry.
“.ASIA Registry” means the TLD Registry Sponsored and operated by DotAsia Organisation Ltd. ("DotAsia"). DotAsia is a not-for-profit, limited-by-guarantee corporation incorporated in Hong Kong.
“.ASIA Reserved Names Policy” is a separate document (and its updates if applicable) published on the DotAsia Websites describing the policies for the compilation of reserved names for the .ASIA Registry.
“.ASIA Sunrise Policies” is a separate document (and its updates if applicable) published on the DotAsia Websites describing the policies for the for the Sunrise launch of the .ASIA Registry.
“.ASIA TLD” means the Top-Level Domain string "ASIA".
“Applicant” is the entity submitting a Proposal for the Program during the Pioneers Recruitment Period.
“Application Form” means the required Program application document for each of the Community Pioneers class, Global Brand Pioneers class, Partner Pioneers class, and Financial Assistance Program published by DotAsia on (http://pioneer.domains.asia) and completed by Applicants in order to be considered under the Program. Information provided by Applicants in the Application Form shall be considered as representations by the Applicants to DotAsia and are deemed incorporated into this Pioneer Contract.
“Authorized Applicant” is a Selected Applicant who has agreed to and signed a Pioneer Contract.
“Challenge Process” means an administrative procedure administered by a Challenge Resolution Provider that will resolve claims by intellectual property rights holders in connection with Proposals for Domain Name(s) of Interest.
“Challenge Resolution Provider” is the third party designated by DotAsia to carry out the Challenge Process for the Program.
“Community Pioneers” means a Registrant whose application to the Program was made under the Community Pioneers Class and has agreed by its submission to the Program to be bound by the general rules as set out in the .ASIA Pioneer Domains Program Policies and those rules specific to that Class.
“Domain Name(s) of Interest / Pioneer Domain” means the text string of the domain name, including or not including the TLD, submitted for in a Proposal.
“DotAsia Community” is defined based on the geographical boundaries described by the ICANN Asia / Australia / Pacific region (http://www.icann.org/montreal/geo-regions-topic.htm).
“DotAsia Websites” mean one or more websites operated by the DotAsia Organisation, including but not limited to special websites created for the Program, the primary website for the organisation (http://www.dotasia.org) or the .ASIA Registry website (http://www.registry.asia).
“Global Brand Pioneers” means a Registrant whose application to the Program was made under the Global Brand Pioneers Class and has agreed by its submission to the Program to be bound by the general rules as set out in the .ASIA Pioneer Domains Program Policies and those rules specific to that Class.
“ICANN” is the Internet Corporation for Assigned Names and Numbers.
“IDN” means Internationalized Domain Names, specifically domain names that contain characters beyond the LDH (Letter-Digit-Hyphen) repertoire.
“Initial Registration Period” means the first five-year registration period commencing with Registrant’s Registration of the Pioneer Domain with a .ASIA Registrar.
“Marketing Commitment Deposit” means the deposit of US$10,000 paid by the Registrant to DotAsia (unless this payment has been waived or otherwise confirmed by DotAsia in writing to have been procured alternatively) as part of the Registrant’s application for each of the Pioneer Domains under the Program.
“Offered Domain” is a domain name offered by DotAsia to a Selected Applicant.
“Partner Pioneers” means a Registrant whose application to the Program was made under the Partner Pioneers Class and has agreed by its submission to the Program to be bound by the general rules as set out in the .ASIA Pioneer Domains Program Policies and those rules specific to that Class.
“Pioneer Class/Class” means any one or more of the Community Pioneer Class, Global Brand Pioneer Class and/or Partner Pioneer Class.
“Pioneer Contract” means this Pioneer Contract for Award of the Pioneer Domain Name, including all appendices, attachments, schedules, and exhibits hereto.
“Program” means the Pioneer Domains Program.
“Proposal” means the proposal and Application Form submitted by Applicant in the Application Form to apply for the allocation of the Pioneer Domain and offer to create, launch, and operate the Website at the proposed domains.
“Registrant” is the entity submitted an application to DotAsia under the Program and whose application has been approved by DotAsia. The Registrant shall be the party who executes this Pioneer Contract and in whose name the Pioneer Domain shall be registered with an Accredited Registrar.
“Registration Code” means the unique code issued by DotAsia evidencing Company’s authorization to register the Pioneer Name.
“Pioneer Recruitment” means the open invitation for proposals and recruitment of pioneers issued by DotAsia under the Program inviting interested parties to apply for the use of Pioneer Names and create, launch, and operate the Website.
“Selected Applicant” means an applicant that DotAsia has chosen to enter into contractual negotiations for the purpose of allowing the Selected Applicant to register and operate an Internet Website with the Pioneer Domain as its internet website domain address.
“Sponsoring Registrar” is the Accredited Registrar for which a domain name is registered with.
“TLD” means Top Level Domain.
“UDRP” stands Uniform Dispute Resolution Policy means the ICANN UDRP as described in (http://www.icann.org/dndr/udrp/policy.htm)
“Website” means conventional Internet websites which have publicly accessible interfaces containing contents published for use and/or perusal by the public. It shall also include Internet-based services provided to the public. For illustration purposes, an Internet-based service may include the operation of email service or databank service hosted by servers with a .ASIA domain location but may be without a correspondence internet-webpage for public use or perusal.
1. Effective Date and Term
1.1 This Pioneer Contract shall be deemed effective upon signing by both parties.
1.2 Subject to the terms and conditions set forth in this Pioneer Contract, DotAsia grants Registrant the right to register the Pioneer Name for a registration period of five (5) years (the “Initial Registration Period”), for the purpose of operating the Website and in accordance with the specifications set forth in Schedule A.
1.3 Subject to Registrant’s fulfilment of its obligations during the Initial Registration Period, Registrant shall have the right (but not the obligation) to renew its Registration of the Pioneer Domain for successive periods of time determined by Registrant in its discretion, subject to any time limitations imposed by the applicable Registrar (“Automatic Renewal Right”).
1.4 Upon the termination of this Pioneer Contract prior to expiration of the Initial Registration Period, except if such termination is upon the mutual agreement that all conditions and commitments by the Registrant laid out in this Pioneer Contract have been fulfilled:
Any and all rights of Registrant to the Registration of the Pioneer Domain and/or to the Registration Code shall be terminated, and all rights to the Registration of the Pioneer Domain and/or to the Registration Code shall revert to DotAsia;
DotAsia may grant Registration rights to the Pioneer Name and/or rights to the Registration Code to any entity or person in its sole discretion, and Registrant shall have no rights or recourse against DotAsia relating to the promotion or use of the Pioneer Domain and/or Registration Code by any other such entity or person; and
The Registrant acknowledges that any remedies available as a result of this section shall be limited to those remedies, if applicable and available, against the subsequent registrant as provided by the UDRP.
1.5 Registrant shall be prohibited from transferring the Pioneer Domain to any third party without the express written approval of DotAsia, unless DotAsia has by written notice informed the Registrant that this Pioneer Contract is terminated upon mutual agreement that all conditions and commitments by the Registrant laid out in this Pioneer Contract have been fulfilled.
2 Covenants
2.1 Registrant covenants and agrees with DotAsia as follows:
2.1.1 Registrant agrees to be bound by the policies, terms, and conditions set forth in the .ASIA Pioneer Domains Program Policies and Application Form, all representations, commitments made by Registrant with respect to its creation, launch, and operation of the Website, the Proposal, and any supplemental written material submitted by Registrant in connection with the application and expressly agreed to by DotAsia, including, but not limited to any business terms specified in the Proposal and any technical or substantive terms regarding the creation and/or operation of a .ASIA website specified in the Proposal (collectively, the “Supplemental Materials”). The Supplemental Materials are hereby expressly incorporated as part of this Pioneer Contract. For the avoidance of doubt, no information provided to the Registrant by DotAsia by way of oral or written correspondence, except those set out in the .ASIA Pioneer Domains Program Policies and Application Form shall be considered as representations or warranties by DotAsia to the Applicant.
2.1.2 Registrant shall use its best efforts to develop, setup, maintain, provide, market and promote the Pioneer Domain, services, content, and/or products represented and proposed by the Registrant in its Proposal and Supplemental Materials for use with the Pioneer Domain allocated to the Registrant and as set out in Schedule A. Registrant acknowledges that any failure by the Registrant to adhere to this section, unless otherwise with the expressed written consent by DotAsia, shall be a fundamental breach of this Pioneer Contract and DotAsia shall be entitled to rescind this Pioneer Contract and repossess the Pioneer Domain forthwith and without any liability to the Registrant.
2.1.3 Registrant shall comply with all applicable laws, statutes, ordinances, and regulations relating to its Registration of the Pioneer Domain and its creation, launch, and operation of the Website.
2.1.4 Registrant shall comply with applicable ICANN requirements, standards, policies, procedures, and practices relating to its Registration of the Pioneer Domain and its creation, launch, and operation of the Website.
2.1.5 Registrant shall comply with all standards, policies, procedures and practices specified by DotAsia relating to domain names within the .ASIA TLD including but not limited to the .ASIA Charter Eligibility Requirement Policy.
2.1.6 Registrant agrees to be bound by the terms of the registration agreement of the Accredited Registrar with whom the Registrant shall be registering the Pioneer Domain. In the case where through events described by the registration agreement leading to an Accredited Registrar gaining possession or operating rights of the Pioneer Domain, this Pioneer Contract shall be terminated PRIOR to such gaining of rights, and, any and all rights of Registrant to the Registration of the Pioneer Domain and/or to the Registration Code shall be terminated, and all rights to the Registration of the Pioneer Domain and/or to the Registration Code shall revert to DotAsia.
2.1.7 Registrant consents to the monitoring of the use of the Pioneer Domain by DotAsia to ensure compliance with this Pioneer Contract. Additionally, Registrant will not unreasonably interfere with DotAsia’s monitoring of Registrant’s use of the Pioneer Domain. Registrant acknowledges that delay or failure by DotAsia to identify or take action upon the identification of such breaches shall not be construed as consent by DotAsia for such non-compliance, nor shall such delay or failure be deemed as a waiver of DotAsia to exercise any power under this Pioneer Contract or any policies published by DotAsia.
2.2 DotAsia covenants and agrees with Registrant that DotAsia will comply with all applicable laws, statutes, ordinances and regulations, and with all applicable ICANN requirements, standards, policies, procedures and practices, relating to the performance of DotAsia’s obligations under this Pioneer Contract.
3 Registration, Development and Promotion of Pioneer Domain
3.1 Registration of Pioneer Domain Name:
3.1.1 Subject to Schedule A and B contained herein, DotAsia will transfer the Registration Code for the Pioneer Domain to Registrant on the Effective Date of this Pioneer Contract. Without limiting the foregoing,
DotAsia represents and warrants that it has not transferred, and shall not transfer during the term of this Pioneer Contract, the Registration Code for the Pioneer Domain to any person or entity other than Registrant, and;
DotAsia covenants and agrees that if at any time during the term of this Pioneer Contract DotAsia transfers the Registration Code and/or the Registration for the Pioneer Domain to any person or entity other than Registrant, or change the Registration Code, in either case other than in compliance with a court order or decision of an ICANN-recognized dispute resolution process, DotAsia shall promptly and at its sole expense use best efforts to reclaim the Registration Code and/or the Registration for the Pioneer Domain for Registrant’s continued use hereunder.
DotAsia’s liability under this Section 3.1.1 shall be limited to the Registration Fee, if any, paid by the Registrant (through an Accredited Registrar) to DotAsia in connection with the Pioneer Domain. For the avoidance of doubt, the Marketing Commitment Deposit paid by the Registrant shall be returned only in accordance with Section 3.3.4 below.
3.1.2 Registrant may choose any .ASIA Registrar for registration of the Pioneer Domain. Registrant shall promptly register the Pioneer Domain by presenting the Registration Code to the .ASIA Registrar of its choosing and following the Registrar’s registration process. Registrant is solely responsible for registering the Pioneer Domain.
3.1.3 Registrant will provide current, accurate and complete information in connection with its Registration of the Pioneer Domain and its creation, launch, and operation of the Website, including but not limited to information required for the purposes of the WHOIS records.
3.1.4 This Pioneer Contract and Registrant’s rights hereunder shall terminate automatically if Registrant fails to register the Pioneer Domain within thirty (30) days of the Effective Date of this Pioneer Contract, provided that DotAsia:
In its sole discretion, may waive such automatic termination for any reason; and
Shall waive such automatic termination in the event Registrant’s failure to register the Pioneer Domain within such period is caused by DotAsia, delay on the part of the Registrar or any other factors beyond Registrant’s control, provided that if Registrant fails for any reason, other than for the reasons set forth in 3.1.4(ii), to register the Pioneer Name within 90 days of the Effective Date of this Pioneer Contract, DotAsia, in its sole discretion, may terminate this Pioneer Contract.
3.1.5 Registration of the Pioneer Domain by Registrant, and Registrant’s creation, launch, and operation of the Website is the result of, and is subject to, all of the conditions, limitations, and restrictions contained in this Pioneer Contract and all applicable policies promulgated by ICANN now or in the future.
3.1.6 Nothing in this Pioneer Contract shall be construed to imply that Registrant possesses any rights to the Pioneer Domain beyond those specified in this Pioneer Contract, and all applicable ICANN policies. Registrant must also enter into domain name registrant agreement with a .ASIA Registrar to register the Pioneer Domain. By registering the Pioneer Name, Registrant agrees and acknowledges that DotAsia is an intended third party beneficiary of the domain name registrant agreement between Registrant and the Registrar. In the event of a conflict between this Pioneer Contract and the registrar’s domain name registrant agreement, this Pioneer Contract controls the rights and obligations of the parties hereto.
3.1.7 Registrant is solely responsible for exercising its Automatic Renewal Right to renew its Registration of the Pioneer Domain with a Registrar prior to the expiration date listed in DotAsia’s WHOIS database or in the registrar’s domain name registrant agreement, as applicable.
3.1.8 Registrant agrees that in the event of any act or omission by the Registrant that may give rise to the sponsoring .ASIA Registrar a right to terminate the registration agreement between them, this Pioneer Contract shall be deemed terminated immediately prior to the termination of the registration agreement between the Registrant and the Registrar.
3.2 Registrant’s Development of Service in Connection with Pioneer Domain:
3.2.1 It is intended that Registrant should have a website for the Pioneer Domain setup and viewable publicly by Internet users within the time period set out in Schedule B. The website and services must remain intact, live, updated, and maintained for the duration of the Pioneer Contract in line with the representations set forth in the Registrant’s Proposal.
3.2.2 Registrant’s creation, launch, and operation of services in connection with the Pioneer Domain will comply in all material respects with this Pioneer Contract, the .ASIA Pioneer Domains Program Policies, the Proposal, and the Supplemental Materials.
3.2.3 During the term of this Pioneer Contract, Registrant will make commercially reasonable efforts to operate the services in connection with the Pioneer Domain in accordance with this Pioneer Contract, the .ASIA Pioneer Domains Program Policies, the Proposal, and the Supplemental Materials.
3.2.4 Registrant will use commercially reasonable efforts to create, launch, and operate the Pioneer Domain so as to achieve DotAsia’s stated goals of: the long-term development of the .ASIA TLD; encourage active and positive usage of .ASIA TLD, as well as the development of relevant and robust content for .ASIA domain names; and maximize the development of Pioneer Domain by those Applicants representing themselves as having the best potential and capabilities to achieve these aims.
3.2.5 Registrant’s failure to create, launch, or operate the Pioneer Domain in accordance with material terms of this Pioneer Contract, including without limitation, Schedules A to C, shall constitute a material breach of its obligations hereunder.
3.3 Promotion of Pioneer Domain:
3.3.1 Registrant agrees to use commercially reasonable efforts to promote the Pioneer Domain in accordance with Schedule C contained herein and with the Registrant’s representations and percentages contained in the Proposal and Supplemental Materials.
3.3.2 A Registrant belonging to the Partner Pioneers Class (as defined in the .ASIA Pioneer Domains Program Policies) shall use commercially reasonable efforts to promote the Pioneer Domain and in any event shall, at the minimum comply with the requirements set out in the .ASIA Pioneer Domains Program Policies
(http://pioneer.domains.asia/policies.html#3):
3.3.3 Registrant and DotAsia shall cooperate in good faith and on reasonable commercial terms to design and implement joint marketing initiatives to promote the Pioneer Domain and the .ASIA TLD.
3.3.4 Registrant hereby acknowledges and agrees that any entitlement to the return of the Marketing Commitment Deposit shall arise if and only if the Registrant has performed and proven to DotAsia’s satisfaction of Registrant’s fulfilment of its promotion commitments as set out in this Pioneer Contract, in the Registrant’s Proposal, .ASIA Pioneer Domains Program Policies, and in all of the Supplemental Materials (as defined in section 2.1.1 above).
4 Representations and Disclaimer of Warranties
4.1 DotAsia and Registrant both represent to the other that it has full authority to enter into this Pioneer Contract and perform its terms.
4.2 Disclaimer of Warranties by DotAsia:
4.2.1 With respect to the subject matter hereof, DotAsia expressly disclaims all warranties of any kind, whether express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement. DotAsia makes no warranty that the Pioneer Domain and service(s) referenced herein (including, without limitation, the Pioneer Domains Program and the related process) will meet the Registrant’s requirements, or that any element of the Pioneer Domains Program and/or access to and use of the Pioneer Domain will be uninterrupted, timely, secure, or error free; nor does DotAsia make any warranty as to the results that may be obtained from participating in any part of the Pioneer Domains Program and/or from a Pioneer Domain or as to the accuracy or reliability of any information obtained through the DotAsia Websites. Registrant understands and agrees that any material and/or data obtained through the use of the DotAsia Websites is done at Registrant’s sole discretion and risk and that Registrant will be solely responsible for any damage to Registrant’s computer system or loss of data that results from the download of such material and/or data.
4.2.2 No advice or information, whether oral or written, obtained by Registrant from DotAsia, its staff, members, directors, consultants or representatives; or, through the DotAsia Websites shall create any warranty, expressed or implied.
4.2.3 No advice or information, whether oral or written, obtained by an Applicant from DotAsia, its staff, members, directors, consultants or representatives; or, through the DotAsia Websites shall create any warranty, expressed or implied.
4.3 Notice of Potential Violation of Third Party Rights:
4.3.1 Registrant acknowledges and agrees that DotAsia makes no representations or warranties of any kind in connection with the .ASIA Pioneer Domains Program Policies, this Pioneer Contract, the Supplemental Materials, the Pioneer Domain, and/or the Website and specifically makes no guarantee to Registrant against the possibility of:
Objection to, or challenge of, the Registration or use of the Pioneer Domain or operation of the Website by third parties;
Selection and/or Registration of a similar domain name by another applicant in the Pioneer Recruitment process or a third party in any other context; and/or
Registration and/or use of a similar domain name by another applicant through the Program or a third party in any other context in a manner that might compete with or cause confusion with respect to Registrant’s Registration and/or use of the Pioneer Domain, or its creation, launch, or operation of the Website.
4.3.2 DotAsia cannot and does not check to see whether the Pioneer Domain (or any use Registrant may make of the Pioneer Domain) infringes the legal rights of others nor can it or does it check to see whether another domain name (or the use of another domain name by another applicant or a third party in any context) infringes the legal rights of Registrant.
4.3.3 Registrant acknowledges that it is Registrant’s responsibility to investigate its legal rights and the legal rights of others with respect to the Pioneer Domain and the Website. Registrant acknowledges and agrees that it is exclusively liable for any infringement resulting from its Registration or use of the Pioneer Domain and/or relating to the Pioneer Domain, the Website, and any content on the Pioneer Domain.
4.3.4 Registrant acknowledges and agrees that it is exclusively liable for any claims of infringement arising out of or relating to the Registration or use of the Pioneer Domain and/or the creation, launch or operation of the Website.
4.4 The Registrant further represents and warrants to DotAsia that:
Throughout the Term of the registration of the Pioneer Domain, the Registrant shall at all times fulfil DotAsia’s Charter Eligibility Requirement which is fully set out in DotAsia’s .ASIA Charter Eligibility Requirement Policies and is hereby incorporated into this Pioneer Contract;
Where applicable, the Registrant is the rightful owner of the trademark associated with the Offered Domain, or has been duly authorised by the rightful owner of such trademark to apply for, register, and operate the Pioneer Domain under the Program;
The Registrant’s application does not infringe upon any third party rights including, but not limited to, intellectual property rights;
The Registrant shall continue, during the term of this Pioneer Contract, to employ its best efforts to market and promote the Website; and
The Registrant has the necessary rights for the contents delivered through the Website and shall not infringe upon the rights of others.
5 Liability Disclaimer
5.1 In no event shall DotAsia be liable for any direct, indirect, incidental, special, consequential, or exemplary damages resulting from or relating to the Pioneer Domains Program or the related process or resulting from any data, information, or services obtained or transactions entered into through or arising from or in connection with the Pioneer Domains Program, including, but not limited to, damages for loss of profits, use, data, or other intangibles, even if DotAsia has been advised of the possibility of such damages. Nor shall DotAsia be liable for the cost of procurement of substitute services.
5.2 Without limiting the foregoing, DotAsia expressly disclaims any liability resulting from: the conduct of or Applicant’s participation in the Pioneer Domains Program; data non-delivery or mis-delivery between the Applicant and DotAsia; processing and/or consideration of Applicant’s Proposal; processing, registration, and/or loss of registration of a Pioneer Domain; use of a Pioneer Domain; disputes over domain name registrations, including the decision of any dispute resolution proceeding or challenge process; ruling of a court or tribunal from competent jurisdictions; errors, omissions or misstatements; and/or natural or unnatural events beyond DotAsia’s control.
5.3 To the extent allowed under the law, DotAsia shall only be liable where the DotAsia’s wilful misconduct is proven. In no event shall DotAsia’s liability to applicant or any third party in connection with or arising from the Pioneer Domains Program or the related process exceed the amount of the Registration Fee the Applicant has paid to DotAsia (through its sponsoring Registrar) pursuant to the selection of the Proposal. For the avoidance of doubt, such fees do not include the Marketing Commitment Deposit, Dispute Deposit or any other fees paid by the Registrant to the .ASIA Registrar or other third parties.
5.4 If any state or jurisdiction does not permit the limitation or limitation of certain types of liability, DotAsia’s liability shall be limited to the smallest amount permitted by law.
5.5 If any part of these Terms and Conditions is declared invalid or unenforceable for any reason, the remainder will be valid and enforceable as if the invalid or unenforceable part were not included herein. There shall be substituted for any invalid or unenforceable provision a suitable provision that, as far as is legally possible, comes nearest to the sense and purpose of these Terms and Condition, taking into account all other applicable rules and policies.
6 Indemnification
6.1 Registrant shall release, defend, indemnify, and hold harmless to the maximum extent permitted by law DotAsia, and its directors, officers, employees, affiliates, contractors, and agents from and against any and all third party claims, and all damages, liabilities, costs and expenses, including reasonable legal fees and expenses, incurred in connection with such third party claims, arising out of or relating to:
Registrant’s breach of this Pioneer Contract, and/or Registrant’s Registration and/or use of the Pioneer Domain and/or the Website, other than disputes arising from the Program (except to the extent such disputes arise in connection with claims regarding Registrant’s rights in the Pioneer Domain and/or the Website), and
Any dispute concerning Registrant’s rights in and/or use of the Pioneer Domain and/or the Website, other than disputes arising from the Program (except to the extent such disputes arise in connection with claims regarding Registrant’s rights in the Pioneer Domain and/or the Website).
This indemnification obligation shall survive the termination or expiration of this Pioneer Contract and the registration agreement between Registrant and a .ASIA Registrar for the Pioneer Domain. This indemnification is in addition to any indemnification required under the UDRP or CEDRP.
6.2 Registrant agrees that if DotAsia is notified that a complaint has been filed with a governmental, administrative, or judicial body regarding the Pioneer Domain, DotAsia, in its sole discretion, may take whatever action it deems necessary regarding further modification, assignment of and/or control of the Pioneer Domain deemed necessary to comply with the actions or requirements of the governmental, administrative, or judicial body until such time as the dispute is settled. In this event, Registrant agrees to hold DotAsia harmless for any action taken by DotAsia.
7 Termination and Modification
7.1 Pioneer Domain Registration:
7.1.1 To the extent that it deems necessary, in its reasonable discretion, DotAsia immediately upon written notice to Registrant may suspend Registrant’s Registration of the Pioneer Domain:
To protect the integrity and stability of the Registry, the domain name system, and/or the Internet, such as in the case where the failure to suspend Registrant’s Registration of the Pioneer Name is reasonably likely to cause the malfunction of, or other material adverse effect with respect to, the Registry, the domain name system and/or the Internet;
To comply with all applicable laws, regulations, government rules or requirements, any requests of law enforcement, and/or to take any actions in compliance with any dispute resolution process;
To avoid any liability, civil or criminal, on the part of the Registry as well as its affiliates, subsidiaries, officers, directors, representatives, employees, and stakeholders;
To comply with the terms of its contract with ICANN, any ICANN policy or procedure, or any Registrar or registry procedure not inconsistent with an ICANN-adopted policy; or
Subject to the limitations in Section 3.1 above, to correct mistakes made by the Registry or any Registrar in connection with a Pioneer Domain Registration such as registration of the incorrect domain name.
In the event DotAsia suspends Registrant’s Registration of the Pioneer Domain pursuant to this Section 7.1.1, DotAsia shall thereafter negotiate in good faith with Registrant to modify this Pioneer Contract to resolve the issues giving rise to the suspension. If the Parties are unable to negotiate within ninety (90) days a modification that resolves these issues in a manner that is reasonably acceptable to DotAsia, DotAsia may cancel, transfer, or modify Registrant’s Registration of the Pioneer Domain immediately upon written notice to Registrant. In the event DotAsia suspends, cancels, transfers, or modifies Registrant’s Registration of the Pioneer Domain pursuant to this section, Registrant agrees that, unless expressly stated otherwise herein, DotAsia is not obligated to refund any fees previously paid by Registrant.
7.1.2 DotAsia may suspend, cancel, transfer, or modify Registrant’s Registration of the Pioneer Domain in the event this Pioneer Contract is suspended or terminated pursuant to Section 7.2 below. In the event DotAsia suspends, cancels, transfers, or modifies Registrant’s Registration of the Pioneer Domain pursuant to this section, Registrant agrees that, unless expressly stated otherwise herein, DotAsia is not obligated to refund any fees previously paid by Registrant.
7.1.3 DotAsia reserves the right to suspend the Registration of a Pioneer Domain and/or operation of the Website pending the resolution of any dispute between Registrant and a third party regarding the Pioneer Domain or the Website, provided that such right shall not be exercised in an arbitrary or capricious manner and shall be exercised only in connection with a third party’s claim with respect to the Pioneer Domain.
7.2 Termination of the Pioneer Contract:
7.2.1 Each Party shall have the right to terminate this Pioneer Contract upon written notice to the other Party in the event the other Party materially breaches this Pioneer Contract and does not cure such breach within thirty (30) days of written notice by the non-breaching Party.
7.2.2 In the event Registrant terminates the Pioneer Contract pursuant to this Section 7.2.1 there shall be no refund due to Registrant. Registrant agrees that the Pioneer Domain shall revert to DotAsia or any third party nominated by DotAsia absolutely, automatically, and immediately.
7.2.3 DotAsia shall have the right to terminate this Pioneer Contract if Registrant materially breaches this Pioneer Contract three (3) or more separate times (irrespective of whether such material breaches were cured) evidenced by written notices sent by DotAsia to the Registrant. Material breaches by Registrant shall include, but not be limited to, the failure of Registrant to develop and maintain the Website in all material respects in accordance with this Pioneer Contract, .ASIA Pioneer Domains Policies, the Proposals and the Supplemental Materials.
7.2.4 In the event DotAsia terminates this Pioneer Contract pursuant to this section 7.2.3, Registrant agrees that the Pioneer Domain shall revert to DotAsia or any third party nominated by DotAsia absolutely, automatically, and immediately. DotAsia is not obligated to refund any fees previously paid by Registrant.
7.2.5 In the event of this Pioneer Contract being terminated pursuant to sections 3.1.4 or 3.1.8 above, the Pioneer Domain shall absolutely, automatically and immediately revert to the Registry and the Registry is free to assign or allocate the Pioneer Domain to any third party and there shall be no refund due to the Registrant.
7.2.6 This Pioneer Contract shall terminate immediately upon the permanent cancellation or expiration of Registrant’s Registration of the Pioneer Domain. Notwithstanding the foregoing this Pioneer Contract shall not terminate if:
The Parties agree otherwise in writing;
Registrant’s Registration is temporarily suspended in accordance with the provisions of this Pioneer Contract;
or
DotAsia transfers the Registration Code and/or the Registration for the Pioneer Domain to any person or entity other than Registrant, or changes the Registration Code, in either case other than in compliance with a court order or decision of an ICANN-recognized dispute resolution process. In the event this Pioneer Contract terminates pursuant to this section, Registrant agrees that DotAsia is not obligated to refund any fees previously paid by Registrant.
7.2.7 In the event DotAsia terminates this Pioneer Contract pursuant to this section 7.2.6, Registrant agrees that the Pioneer Domain shall revert to DotAsia or any third party nominated by DotAsia absolutely, automatically, and immediately. DotAsia is not obligated to refund any fees previously paid by Registrant unless the Registrant has performed and proven to DotAsia’s satisfaction of Registrant’s fulfilment of the its commitments as set out in this Pioneer Contract, in the Registrant’s Proposal, .ASIA Pioneer Domains Program Policies, and in all of the Supplemental Materials and DotAsia has terminated this Pioneer Contract as per section 7.2.6 below.
7.2.8 DotAsia may terminate this Pioneer Contract upon mutual agreement with Registrant that all conditions and commitments by the Registrant laid out in this Pioneer Contract have been fulfilled. Under such termination, the Pioneer Domain shall not revert to DotAsia.
7.2.9 Notwithstanding the foregoing, each Party is not precluded from seeking any other remedy available to it under this Pioneer Contract or applicable law including seeking any available remedy from an arbitrator pursuant to Section 8.1 below.
7.3 Modification of the Pioneer Contract:
7.3.1 Modification by DotAsia.
7.3.1.1 Registrant acknowledges that the domain name system and the practice of registering and administering domain names are evolving, and therefore, Registrant agrees that DotAsia shall have the right, in its reasonable discretion, to modify or amend the terms and conditions of this Pioneer Contract, including any incorporated documents or DotAsia policies, from time to time, provided that:
Such modifications and amendments are required by ICANN; or
Such modification and amendments are reasonably appropriate in connection with changes in the domain name system and/or the registration and administration of domain names; or
Such right is exercised by DotAsia in good faith.
Registrant agrees that any modification or amendment to this Pioneer Contract by DotAsia shall not require Registrant’s or DotAsia’s signature or inclusion of a signature page to be deemed effective. Any modification or amendment shall be binding and effective immediately upon Registrant’s receipt of written notification in accordance with the terms hereof that contains the entire text of such modification and amendment.
7.3.1.2 If Registrant does not agree to be bound by any such modification or amendment, Registrant’s sole remedy is to terminate this Pioneer Contract and cancel Registrant’s Registration of the Pioneer Domain. If Registrant chooses to elect this remedy, it must provide DotAsia with notice of Registrant’s intention to terminate this Pioneer Contract within sixty (60) days after Registrant’s receipt of written notice of such modification or amendment, and Registrant’s termination shall be effective upon DotAsia’s receipt of such notice. Registrant hereby acknowledges and agrees that DotAsia is not obligated to refund any fees paid by Registrant in the event Registrant terminates pursuant to this Section 7.3.1.2.
7.3.1.3 In the event notice of termination from Registrant is not received by DotAsia within sixty (60) days of receipt of written notice from DotAsia, Registrant will be deemed to have agreed to the modification or amendment.
7.3.2 Modification by Registrant. Registrant may request reasonable modifications or amendments to this Pioneer Contract, and DotAsia agrees to negotiate in good faith any requested modifications or amendments. Notwithstanding the foregoing, DotAsia is not bound to accept any such proposed modification or amendment.
8 Dispute Resolution
8.1 Arbitration:
8.1.1. Any dispute, controversy or claim arising out of or relating to this Pioneer Contract, or the breach, termination or invalidity thereof, shall be settled by binding arbitration in Hong Kong under the UNCITRAL Arbitration Rules in accordance with the HKIAC Procedures for the Administration of International Arbitration in force at the date of this Pioneer Contract.
8.1.2. The arbitration shall be conducted in the English language by one arbitrator and in Hong Kong.
8.1.3. The parties shall bear the costs of the arbitration in equal shares, subject to the right of the arbitrator to reallocate the costs in their award as provided in the HKIAC rules. The parties shall bear their own attorneys’ fees in connection with the arbitration, and the arbitrators may not reallocate the attorneys’ fees in conjunction with their award.
8.1.4. The arbitrators shall render their decision within ninety (90) days of the initiation of arbitration.
8.1.5. Any litigation brought to enforce an arbitration award shall be brought in the courts in Hong Kong; however, the parties shall also have the right to enforce a judgment of such a court in any court of competent jurisdiction.
8.1.6. For the purpose of aiding the arbitration and/or preserving the rights of a party during the pendency of an arbitration, each party shall have the right to seek temporary or preliminary injunctive relief from the arbitration panel or a court located in Hong Kong, which shall not be a waiver of this arbitration agreement. Notwithstanding this right as set out in this clause, the parties agree that any dispute arising from this agreement shall be resolved first by arbitration. Each party shall have the right to refer any disputes arising from this Pioneer Contract to the exclusive jurisdiction of the Courts of Hong Kong if an only if the parties have exhausted all dispute resolution efforts through arbitration.
8.2 Registrant agrees to be bound by ICANN’s Uniform Domain Dispute Resolution Policy (“UDRP”), as modified or amended from time to time, with respect to its Registration of the Pioneer Name and/or its creation, launch, or operation of the Website. The UDRP sets forth the terms and conditions in connection with a dispute between a domain name registrant and any other party other than the registry operator or registrar over the registration and use of a domain name registered by the registrant. The UDRP is incorporated herein and made part of this Pioneer Contract by reference. The current version of the UDRP may be found at ICANN’s web site: www.ICANN.org.
8.3 Registrant agrees to be bound by ICANN’s Charter Eligibility Dispute Resolution Policy (“CEDRP”), as modified or amended from time to time, with respect to its Registration of the Pioneer Name and/or its creation, launch, or operation of the Website. The CEDRP is incorporated herein and made part of this Pioneer Contract by reference. The current version of the UDRP may be found at ICANN’s web site: www.ICANN.org.
8.4 Registrant agrees to be bound by and submit to proceedings commenced under other dispute policies as set forth by DotAsia from time to time in the Registry Policies, including but not limited to expedited processes for suspension of a domain name by claims sought by intellectual property right holders, Internet engineering and security experts or other competent claimants in the purpose of upholding the stability, security and integrity of the .ASIA Registry.
9 Additional Terms
9.1 Choice of Law and Forum. This Pioneer Contract, its terms and conditions, and the relationship between the Applicant and DotAsia shall be governed by and construed in accordance with the laws of Hong Kong SAR, excluding its conflict of laws rules. Subject to the arbitration proceedings set out in section 8 above, any action arising out of or related to this Pioneer Contract must be filed in the courts of Hong Kong SAR. For any disputes arising under or related to this Pioneer Contract, the parties agree to the exclusive subject matter jurisdiction, personal jurisdiction, and venue of the courts of Hong Kong SAR.
9.2 No Waiver. DotAsia’s failure to exercise or enforce any right or provision of this Pioneer Contract shall not constitute a waiver of such right or provision unless acknowledged and agreed to by DotAsia in writing.
9.3 Severability. The terms of this Pioneer Contract 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.
9.4 Notices. All notices to be given to either party under or in relation to this Pioneer Contract shall be given either (1) in writing at the address set forth below or (2) by facsimile or electronic mail as provided below.
If to Registrant:
with copy to:
If to DotAsia:
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE CAUSED THIS PIONEER CONTRACT TO BE EXECUTED BY THEIR DULY AUTHORIZED REPRESENTATIVES.
Schedules to be attached:
Schedule A: Business terms governing the Website as proposed by the Registrant and included in the Registrant’s Application
Schedule B: Website Development Schedule
Schedule C: Promotion Schedule
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