Terms and conditions Trademark Clearinghouse Terms of Service Agreement for Registries and Registrars These Trademark Clearinghouse Terms of Service Agreement for Registries and Registrars (this "Agreement") is entered into by and between the Internet Corporation for Assigned Names and Numbers, a California public- benefit non-profit corporation ("ICANN"), and you. This Agreement sets forth the general terms and conditions of your use of the "Trademark Clearinghouse" and the services accessed through the Trademark Clearinghouse (individually and collectively, the "Services"). Your electronic acceptance of this Agreement signifies that you have read, understand, acknowledge and agree to be bound by this Agreement, and acknowledge that ICANN has selected International Business Machines of Belgium BVBA, a company under laws of Belgium ("IBM"), as its subcontractor to provide the Services to Registries and Registrars. The terms "we", "us" or "our" shall refer to ICANN. The terms "you", "your", or "User" shall refer to any individual or entity who accepts this Agreement, has access to your account or uses your Account (as defined below). If you are entering into this Agreement on behalf of a corporate entity, you represent and warrant that you have the legal authority to bind such corporate entity to the terms and conditions contained in this Agreement, in which case the terms "you", "your", or "User" shall refer to such corporate entity. 1 - 2 - 3 - 4 - 5 Services. 5.1 Related Documents. 5.1.1 As a User, you must comply with all requirements attributable to you as either a registry or registrar in the Trademark Clearinghouse's functional specification, a copy of which is available at https://tools.ietf.org/html/draft-lozano-tmch-func-spec (the "Functional Specifications"). Until the Functional Specifications become a Request for Comment ("RFC"), Registry Operator must implement the most recent draft version of the Functional Specifications available at the time of signing this Agreement, the most recent version of which is available at https://tools.ietf.org/html/draft-lozano-tmch-func-spec. After the date the Functional Specifications become a RFC: (i) If you have not already signed this Agreement, you will comply with the RFC version of the Functional Specifications; or (ii) If you have already signed this Agreement, you will have one hundred eighty (180) calendar days from the date you are notified by ICANN of the RFC to comply with the RFC version of the Functional Specifications. 5.1.2 If you are a registry, you must comply with the Trademark Clearinghouse Rights Protection Mechanism Requirements, a copy of which is available at http://newgtlds.icann.org/en/about/trademark-clearinghouse/rpm-requirements (the "TMCH Requirements"). 5.2 Access. 5.2.1 Subject to the terms of this Agreement, we will provide you access to and use of the Trademark Clearinghouse and the Services. 5.2.2 You will receive your login credentials for the Trademark Clearinghouse upon your acceptance of this Agreement. 5.3 Application Programming Interface. An application programming interface ("API") may be available to you to access and use the Services. We may change or delete the API at any time. You understand that once an API is changed or deleted it will no longer work as previously operated and you are responsible for updating your use of the API. 5.4 Content. The Trademark Clearinghouse contains content regarding domain name registrations provided by registries and registrars in accordance with the Functional Specification and the TMCH Requirements ("Registration Content"). The Trademark Clearinghouse also contains content regarding trademarks submitted by trademark holders and their agents for the purpose of receiving the benefits of Sunrise Periods and Claims Periods (as such terms are defined in the TMCH Requirements) (such content, the "Trademark Content", and collectively with the Registration Content as well as your and other user's account information, the "Clearinghouse Content"). 5.5 License to the Registration Content. By submitting Registration Content, you grant us and our subcontractors a fully paid, nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable license and approval to host, cache, copy, and display Registration Content for the purpose of and in conjunction with effectuating the purposes of the Trademark Clearinghouse. By submitting Registration Content, you also represent and warrant that: (i) the Registration Content is accurate; (ii) you own or have permission to use and submit the information or content that you submit; and (iii) to your knowledge, the use of the Registration Content will not violate the rights of any third party. You represent that you have and will keep in effect during your use of the Services, all licenses and approvals necessary to grant us and our subcontractors these rights and that they will be provided at no charge to us upon request. You represent that by adding, creating, installing, uploading, or transferring Registration Content for use in conjunction with the Services, you are not violating any applicable license agreements or applicable laws. You understand and agree that we may retain (but not distribute, display, or perform) server copies of your Registration Content. 5.6 License for the Services. We grant you a limited, personal, non-commercial, non-exclusive, non- sublicensable, non-assignable license to access and use the Services. You will not access or use the Services or Clearinghouse Content for purposes other than those stated in this Agreement, the Functional Specifications or the TMCH Requirements. 5.7 No Other Licenses. Each party grants only the licenses and rights specified in this Agreement. No other licenses or rights (including intellectual property licenses or rights) are granted either directly, by implication, by estoppel or otherwise. 6 Access to the Trademark Clearinghouse. 6.1 Account. In order to access the Trademark Clearinghouse or use the Services, you must create an account (your "Account"). You represent and warrant to us that all information you submit when you create your Account is accurate, current and complete, and that you will keep your Account information accurate, current and complete. If we have reason to believe that your Account information is untrue, inaccurate, out-of-date or incomplete, we reserve the right, in our sole discretion, to suspend or terminate your Account. You are solely responsible for the activity that occurs on your Account, whether authorized by you or not, and you must keep your Account information secure. You must notify us immediately of any breach of security or unauthorized use of your Account. We will not be liable for any loss you incur due to any unauthorized use of your Account. 6.2 International Transfers. If you are visiting the Trademark Clearinghouse from a country other than the country in which our servers are located, your communications with us may result in the transfer of information (including your Account information) across international boundaries. By visiting the Trademark Clearinghouse and communicating electronically with us, you consent to such transfers. 6.3 Availability and Outages. Subject to the terms and conditions of this Agreement and our other policies and procedures, we shall use commercially reasonable efforts to attempt to provide the Trademark Clearinghouse and the Services on a twenty-four (24) hours a day, seven (7) days a week basis throughout the term of this Agreement. You acknowledge and agree that from time to time the Trademark Clearinghouse may be inaccessible or inoperable for any reason including, but not limited to,: (i) equipment malfunctions; (ii) periodic maintenance, repairs or replacements that we undertake from time to time; or (iii) causes beyond our reasonable control or that are not reasonably foreseeable including, but not limited to interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You acknowledge and agree that we have no control over the availability of the Trademark Clearinghouse or the Service on a continuous or uninterrupted basis, and that we or our subcontractors, including IBM, assume no liability to you or any other party with regard thereto. 7 Covenants of User. 7.1 Prohibited Uses. You agree that you will not use the Trademark Clearinghouse or the Services in a manner (as determined by us in our sole discretion) that: 7.1.1 Is illegal, or promotes or encourages illegal activity; 7.1.2 Infringes on the intellectual property rights of any other person or entity; 7.1.3 Interferes with the operation of the Trademark Clearinghouse or the Services; 7.1.4 Modifies or alters any part of the Clearinghouse Content or the Services; 7.1.5 Results in the distribution of Clearinghouse Content in a manner not authorized or contemplated by the Functional Specifications or TMCH Requirements; or 7.1.6 Contains or installs any viruses, worms, bugs, Trojan horses or other code, files or programs designed to, or capable of, disrupting, damaging or limiting the functionality of the Trademark Clearinghouse, the Clearinghouse Content or the Services or affecting any other person or entity. 7.2 No Collecting or Harvesting. You agree that you will not collect or harvest (or permit anyone else to collect or harvest) any Clearinghouse Content or any non-public or personally identifiable information contained in the Trademark Clearinghouse about another any other person or entity, except to the extent required to perform your obligations under the Functional Specifications and TMCH Requirements. 7.3 No Copying or Distributing. You agree that you (i) will not copy or distribute in any medium any part of the Clearinghouse Content or the Services and (ii) agree to not use, copy, modify, make derivative works based upon, link to, or distribute any portion of the Clearinghouse Content or the Services, except to the extent required to perform your obligations under the Functional Specifications and TMCH Requirements. Further, you will not reverse assemble, reverse compile, or otherwise translate any portion of the Clearinghouse Content or the Services except as specifically permitted by law without the possibility of contractual waiver. 7.4 No Reproducing. You agree that you will not reproduce, republish, or publically display, perform or distribute, or otherwise use the Clearinghouse Content for any purpose, except to the extent required to perform your obligations under the Functional Specifications and TMCH Requirements, or prepare any modification or prepare derivative works based on the contents of the Clearinghouse Content or the Services. 7.5 No Misrepresentation. You agree that you will not misrepresent the source of any Registration Content. You will not use a false email address, impersonate any person or entity, or otherwise mislead us as to the origin of any information provided by you to us. 7.6 Security Compliance. You agree that you will not circumvent, disable or otherwise interfere with the security-related features of the Trademark Clearinghouse or the Services (including, without limitation, those features that prevent or restrict use or copying of any Clearinghouse Content) or circumvent limitations on the use of the Trademark Clearinghouse, Clearinghouse Content or the Services. 8 Term and Termination. 8.1 Term. The term of this Agreement is effective upon the date of your electronic acceptance and continues until terminated. 8.2 Termination. 8.2.1 If you are a registry, you may terminate this Agreement at any time upon seven (7) calendar days' notice to ICANN; provided, however, you may not terminate this Agreement prior to the conclusion of your Claims Period, as required by the TMCH Requirements. 8.2.2 If you are a registrar, you may terminate this Agreement at any time upon seven (7) calendar days' notice to ICANN. 8.3 Suspension. We expressly reserve the right to deny, cancel, terminate, suspend, lock, or modify access to (or control of) any Account or Services for any reason (as determined by us in our sole discretion), including but not limited to the following: (i) to correct mistakes made by us in offering or delivering any Services; (ii) to protect the integrity and stability of the Trademark Clearinghouse; (iii) to assist with our fraud and abuse detection and prevention efforts; (iv) to comply with court orders against you or applicable local, state, national and international laws, rules and regulations; (v) to comply with requests of law enforcement, including subpoena requests; (vi) to comply with any dispute resolution process; (vii) to defend any legal action or threatened legal action without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit; or (viii) to avoid any civil or criminal liability on the part of ICANN, our respective officers, directors, employees and agents, as well as our respective affiliates and subcontractors. 9 Disclaimer. 9.1 WE WARRANT THAT WE WILL PROVIDE THE TRADEMARK CLEARINGHOUSE AND THE SERVICES WITH REASONABLE CARE AND SKILL. 9.2 WE DO NOT WARRANT UNINTERRUPTED, SECURE OR ERROR-FREE OPERATION OF THE TRADEMARK CLEARINGHOUSE OR THE SERVICES, OR THAT WE WILL BE ABLE TO PREVENT THIRD PARTY DISRUPTIONS OF THE SERVICES OR THAT WE WILL CORRECT ALL DEFECTS. SUBJECT TO ANY STATUTORY WARRANTIES THAT CANNOT BE EXCLUDED, WE MAKE NO WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, REGARDING THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY OF NON-INFRINGEMENT. 9.3 YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY US, OUR OFFICERS, DIRECTORS, EMPLOYEES, SUBCONTRACTORS OR AGENTS (INCLUDING OUR CUSTOMER SUPPORT REPRESENTATIVES) WILL CREATE A WARRANTY OF ANY KIND WITH RESPECT TO THE TRADEMARK CLEARINGHOUSE OR THE SERVICES, AND YOU SHOULD NOT RELY ON ANY SUCH INFORMATION OR ADVICE. 9.4 THE FOREGOING DISCLAIMERS CONTAINED IN THIS SECTION 5 SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT. 10 Limitation of Liability. 10.1 In no event shall we, our officers, directors, employees, subcontractors or agents be liable to you or any other person or entity for any indirect, incidental, special, punitive or consequential damages, including but not limited to loss of business opportunity, business interruption, loss of profits or costs of procurement of substitute goods or services, including any damages that may result from (i) the accuracy, completeness or content of the Trademark Clearinghouse; (ii) the Services; (iii) third-party conduct of any nature whatsoever; (iv) any unauthorized access to or use of the Trademark Clearinghouse or the Clearinghouse Content; (v) any interruption or cessation of services to or from the Trademark Clearinghouse; (vi) any viruses, worms, bugs, Trojan horses or similar code, files or programs which may be transmitted to or from the Trademark Clearinghouse; or (vii) any loss or damage of any kind incurred as a result of your use of the Trademark Clearinghouse or the Services, whether based on warranty, contract, tort or any other legal or equitable theory, and whether or not we are advised of the possibility of such damages. In no event shall you, your officers, directors, employees or agents be liable to us or any other person or entity for any indirect, incidental, special, punitive or consequential damages. 10.2 You specifically acknowledge and agree that any cause of action arising out of or related to the Trademark Clearinghouse or the Services must be commenced within one (1) year after the cause of action accrues, otherwise such cause of action shall be permanently barred. 10.3 You specifically acknowledge and agree that in no event shall our total aggregate liability to you exceed the total amount paid by you for access to the Trademark Clearinghouse and for the Services. 10.4 The foregoing limitation of liability contained in this Section 6 shall apply to the fullest extent permitted by law, and shall survive any termination or expiration of this Agreement. 11 Indemnification. You agree to protect, defend, indemnify and hold harmless ICANN and our respective officers, directors, employees, subcontractors and agents, from and against any and all claims, demands, costs, expenses, losses, liabilities and damages of every kind and nature (including, without limitation, reasonable attorneys' fees) imposed upon or incurred by ICANN or our subcontractors, directly or indirectly, arising from (i) your use of and access to the Trademark Clearinghouse or the Services; (ii) your violation of any provision of this Agreement or the policies or agreements which are incorporated herein; and/or (iii) your violation of any third-party right, including without limitation any intellectual property or other proprietary right. The indemnification obligations under this section shall survive any termination or expiration of this Agreement or your use of the Trademark Clearinghouse or the Services. 12 General 12.1 Assignment. You may not assign this Agreement, in whole or in part, without the prior written consent of ICANN. Any attempt to assign without such consent is void. We may assign ou respective rights without obtaining your consent. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns. 12.2 No Third Party Beneficiaries. Except as expressly set forth in this Agreement, nothing in this Agreement shall be deemed to confer any third-party rights or benefits. 12.3 Compliance with Applicable Law. We will comply with laws applicable to us generally with respect to the Trademark Clearinghouse and the Services. Your use of the Trademark Clearinghouse and the Services, including any Registration Content you submit, will comply with this Agreement and all applicable local, state, national and international laws, rules and regulations. Each party will comply with applicable export and import laws and regulations. 12.4 Interpretation. The titles and headings of this Agreement are for convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein. Each covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law. 12.5 Electronic Notice. To the extent permissible under applicable law, the parties consent to the use of electronic means to send and receive communications in connection with this Agreement, and such communications are acceptable as a signed writing. 12.6 Changes. This Agreement may be revised to reflect material changes following a thirty (30) calendar day public comment period. This Agreement may be revised to reflect administrative changes by ICANN without stakeholder discussion or Board resolution. Your use of the Trademark Clearinghouse or the Services after such changes or modifications have been made shall constitute your acceptance of this Agreement as last revised. If you do not agree to be bound by this Agreement as last revised, do not use (or continue to use) the Trademark Clearinghouse or the Services. 12.7 Survival. Any terms of this Agreement that by their nature extend beyond the termination of Services remain in effect until fulfilled, and apply to both parties' respective successors and assignees.