Supplementary Agreement for DPML Block Services for Donuts TLDs

Supplementary Agreement for DPML Block Services for Donuts TLDs
Version Date: August 24, 2015

1. Donuts DPML Blocks: This Supplementary Agreement for DPML Block Services for Donuts TLDs applies to the DPML Block Service (defined below) provided by Donuts Inc. and its affiliates (collectively “Donuts”) for certain generic top level domains owned or operated by Donuts Inc. or its affiliates (each a “Donuts TLD”).

2. Interpretation: For all Services provided by Webnames.ca relating to the DPML Block Service, the Webnames.ca Terms of Use and Services Agreement (available by clicking here) and this Supplementary Agreement for DPML Block Services for Donuts TLDs (this “Supplementary Agreement”) together constitute and are referred to as “ this Agreement”. If there is a conflict between this Supplementary Agreement and the Webnames.ca Terms of Use and Services Agreement, then this Supplementary Agreement will take priority and govern.

3. Definitions: In this Supplementary Agreement:

(a) “Application Content” means the information and other content included in Your DPML Block Application, which may include the name of the DPML Block holder, the SLD request to be put under DPML Block, the corresponding SMD File, the name and contact details of the DPML Block holder’s representative submitting the DPML Block Application (including administrative and technical contact, street address, country and postal code, email address, telephone number and fax number), the requested DPML Block period or requested renewal period, and the fee paid for the DPML Block.

(b) “Donuts Policies” means the rules, protocols, policies and procedures (including the DPML Terms and Conditions and theAcceptable Use and Anti-Abuse Policy, WHOIS Policy, Privacy Policy, Pricing Policy and DPML Technical Specifications) established and amended from time to time by Donuts.

(c) “DPML Block” means a block, administered under Donuts Policies, intended to prevent the registration of a specified SLD across all then-current Donuts TLDs.

(d) “DPML Block Application” means an application for a DPML Block.

(e) “DPML Block Service” means the service of administering DPML Blocks.

(f) “DPML Terms and Conditions” means the Donuts DPML Terms and Conditions document, including annexes and all interpretive guidelines published by Donuts, as established and amended from time to time by Donuts.

(g) “Donuts Website” means www.donuts.co or any other URL directed from such website.

(h) “ICANN” means the Internet Corporation for Assigned Names and Numbers.

(i) “ICANN Requirements” means all applicable ICANN policies and the Registry Agreement between ICANN and Donuts Inc. or its affiliate responsible for operating the relevant Donuts TLD, each as amended from time to time and posted on the ICANN website.

(j) “SLD” means a second-level domain.

(k) “SMD File” means the file issued by the TMCH regarding the entry of an eligible term – typically a trademark – into the TMCH database.

(l) “Trademark Clearinghouse” or “TMCH” means the mechanism made available for the validation and database management or rights protected terms, typically trademarks.

(m) “Registry Operator” means the Donuts Inc. affiliate responsible for the operation of the registry for a Donuts TLD.

(n) All other capitalized terms are defined elsewhere in this Supplementary Agreement, in the Webnames.ca Terms of Use and Services Agreement (available by clicking here) or in Donuts Policies.

4. Extended Definitions: In this Agreement, “Domain Name Registry Authorities” include Donuts and each Registry Operator and their respective successors and assigns.

5. Acceptance of the Agreement: By submitting a DPML Block Application, You unconditionally accept and agree to this Agreement (which is comprised of the Webnames.ca Terms of Use and Services Agreement and this Supplementary Agreement) and all other policies and terms and conditions incorporated in this Agreement by reference.

6. DPML Terms and Conditions: Donuts may in its discretion amend Donuts Policies (including the DPML Terms and Conditions) from time to time, and an amendment will be effective at the time it is published on the Donuts Website without any notice to You.

7. Restrictions/Requirements:

(a) Eligibility: You will not submit a DPML Block Application unless You are eligible to do so in accordance with Donuts Policies (including the DPML Terms and Conditions) and the requirements specified by ICANN.

(b) Applications: You will include with Your DPML Block Application all information required by Donuts Policies (including the DPML Terms and Conditions) and the requirements specified by ICANN, including the TMCH Guidelines established and amended from time to time by ICANN.

(c) Availability: You acknowledge that not all SLDs will be available for DPML Block, and that certain SLDs may be reserved from DPML Block by Donuts at any time and from time to time.

(d) DPML Block Behaviour: You acknowledge and agree that each of Your DPML Blocks: (i) will be published to publicly available WHOIS databases and will provide information for the DPML Block holder of any SLDs under DPML Block; (ii) will not result in a domain name registration; (iii) is subject to periodic review by Donuts to verify compliance with applicable requirements (including a valid supporting TMCH entry), and may be revoked, in whole or in part, by Donuts if the supporting TMCH entry is no longer valid; (iv) may, at Donuts’ option, be extended to additional SLDs and domain names in accordance with Donuts Policies; (v) may, at Donuts’ option, cease to be applied to top level domains that are no longer owned and operated by Donuts; and (vi) is subject to override by a domain name registration (by You or by another person) that exactly matches the SLD under DPML Block in accordance with Donuts Policies.

8. Fees: The fees payable for DPML Block Services, including fees for DPML Block Applications and fees for DPML Block overrides, are as set forth on Webnames.ca’s Websites and are subject to change by Webnames.ca from time to time. Fees are not refundable under any circumstances, unless this Agreement or Webnames.ca’s Websites expressly state otherwise.

9. Your Representations and Warranties: Without limiting the generality of any other provision of this Agreement, by submitting a DPML Block Application or when modifying a DPML Block, You represent, warrant and acknowledge that: (a) the DPML Block Application or DPML Block contains true, accurate and up-to-date information, and is made in good faith, for a lawful purpose and does not infringe the rights of any third party; (b) You will participate in good faith in any proceedings as described in the DPML Terms and Conditions commenced by or against You or a DPML Block holder; and (c) You accept and will abide by Donuts Policies.

10. Reservation: Without limiting the generality of any other provision of this Agreement, You acknowledge and accept that each of Webnames.ca and Donuts are entitled but not obliged to reject a DPML Block, or to delete, revoke, cancel or transfer a DPML Block, for any reason, including the following: (a) to enforce Donuts Policies and ICANN Requirements; (b) if the DPML Block is not accompanied by complete and accurate information as required by ICANN Requirements or Donuts Policies or where required information is not updated or corrected as required by ICANN requirements or Donuts Policies; (c) to protect the integrity and stability of the technology infrastructure (including shared registry system) used to provide the DPML Block Service or the operation or management of a Donuts TLD; (d) to comply with applicable laws, regulations, policies or any holding, order or decision by a competent court or administrative authority or any dispute resolution service provider Donuts may retain to oversee the arbitration and mediation of disputes; (e) to establish, assert, or defend the legal rights of Donuts or a third party, or to avoid any actual or potential civil or criminal liability on the part of or damage to Donuts or its subsidiaries, contracted parties, officers, directors, representatives, employees, contractors, and stockholders; (f) to correct mistakes made by Donuts or any DPML registrar or domain name registrar in connection with a DPML Block or in connection with offering or delivering the DPML Block Service or by Webnames.ca in offering or delivering any related Service; (g) if Donuts receives notice that the SMD File for a DPML Block is under dispute; (h) to assist with fraud and abuse detection and prevention efforts; (i) to comply with court orders or applicable local, state, national and international laws, rules and regulations; (j) to comply with requests of law enforcement, including subpoena requests; (k) to comply with any dispute resolution process; (l) to defend any legal action or threatened legal action without consideration for whether the legal action or threatened legal action is eventually determined to be with or without merit; (m) to avoid any damage, or civil or criminal liability, to Webnames.ca or Donuts or their respective officers, affiliates, directors, contracted parties, employees and agents; or (n) as otherwise provided in the DPML Terms and Conditions or an agreement between Donuts and a domain name registrar.

11. Preventing Abuse: Without limiting the generality of any other provision of this Agreement, Donuts and Webnames.ca each reserve the right to review WHOIS records to verify contact information of DPML Block holders. If You or Your agents or representatives repeatedly engage in abusive registrations or practices, then Donuts or Webnames.ca may in their sole discretion disqualify You and Your agents and representatives from maintaining any current or future domain name registrations or DPML Blocks in any Donuts TLD.

12. Dispute Resolution: Without limiting the generality of any other provision of this Agreement: (a) You will submit to a binding arbitration for disputes arising from the DPML Terms and Conditions and related to the application of DPML Blocks; and (b) You will participate in and abide by any determinations made as part of the dispute resolution procedures of any relevant Donuts TLD, including any applicable Domain Name Application Appeals Process (AAP), ICANN’s Uniform Rapid Suspension System (URS) [currently accessible at http://newgtlds.icann.org/en/applicants/urs], ICANN’s Uniform Domain Name Dispute Resolution Policy (UDRP) [currently accessible at http://www.icann.org/en/help/dndr/udrp/policy], and ICANN’s Post-Delegation Dispute Resolution Procedures (PDDRP) [currently accessible at http://newgtlds.icann.org/en/program-status/pddrp], each as applied and amended from time to time.

13. Notification: Without limiting the generality of any other provision of this Agreement, You acknowledge and agree as follows: (a) Donuts and its agents are authorized by You to share information relating to You and each of Your DPML Block Applications; (b) by submitting a DPML Block Application, You are deemed to be on notice of the intellectual property rights of other persons and entities in the TMCH; (c) it is not the obligation of Donuts or Webnames.ca to notify You in advance of the termination or expiration (for any reason) of a DPML Block; and (d) Donuts is entitled, but not obligated, to immediately suspend or cancel a DPML Block that is in breach of any of the DPML Terms and Conditions, Donuts Policies or any other applicable law or regulation.

14. Your Obligations: Without limiting the generality of any other provision of this Agreement:

(a) You grant, and agree to grant, to Donuts and its contracted parties a fully paid, nonexclusive, royalty-free, perpetual, irrevocable, and fully sub-licensable license and approval to host, cache, copy, display Your Application Content to WHOIS or report publicly, in whatever method or format Donuts chooses, for the purpose of, and in conjunction with, effectuating the DPML Service.

(b) You acknowledge and agree that You own or have permission to use and submit Your Application Content, and that to Your knowledge such usage and submission does not violate applicable license agreements, laws, regulations, or rights of any third party.

(c) You will provide truthful and complete credentials to Webnames.ca and Donuts regarding Your DPML Block Application and any resulting DPML Block.

(d) You acknowledge and agree that Your Application Content is and will remain truthful, accurate, current and complete throughout the applicable DPML Block period, and that if Donuts has reason to believe that Your Application Content is untrue, inaccurate, out-of-date or incomplete, after providing Webnames.ca with five (5) days’ notice to correct such information or give reasonable assurance to Donuts of such information’s accuracy, Donuts reserves the right in its sole discretion to deny or cancel the underlying DPML Block.

(e) You acknowledge and agree that You have, and will keep in effect during the use of the DPML Block Service, all licenses and approvals necessary to grant Donuts and its subcontractors the rights granted under this Supplementary Agreement and that they will be provided at no charge to Donuts upon request.

(f) You acknowledge and agree that Donuts, in its sole discretion, may temporarily suspend the DPML Block Service to minimize threats to the operational stability and security of the DPML Block databases and the registries owned and operated by Donuts; provided, however, that a suspension of the DPML Block Service will not allow registrations to occur for SLDs under DPML Block that would not otherwise be permitted by Donuts Policies when the DPML Block Service is fully operational.

(g) You acknowledge and agree that the modification or cancellation of any DPML Block in accordance with Donuts Policies will not result in any refund of any fees paid for the DPML Block or any related Services under this Agreement.

15. Disclaimers: Donuts does not warrant uninterrupted, secure or error-free operation of the DPML Block Service, or that Donuts will be able to prevent third party disruptions of the DPML Block Service or related services or that Donuts will correct all defects. Subject to any statutory warranties that cannot be excluded, Donuts makes no warranties or conditions, express or implied, regarding the DPML Block Service, 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. You acknowledge and agree that no oral or written information or advice provided by Webnames.ca or Donuts or any of their respective officers, directors, employees, subcontractors or agents will create a warranty of any kind with respect to the DPML Block Service and You will not rely on any such information or advice. The foregoing disclaimers in this section 15 supplement and are in addition to all other disclaimers in this Agreement, will apply to the fullest extent permitted by law, and will survive any termination or expiration of this Agreement.

16. Liability Limitation: Without limiting the generality of any other provision of this Agreement, You acknowledge and agree as follows: (a) to the extent permitted under governing law, Donuts will only be liable in cases of proven willful misconduct or gross negligence; (b) in no event will Donuts be held liable for any indirect, consequential or incidental damages or loss of profits, whether contractual, based on tort (including negligence) or otherwise arising, resulting from or related to DPML Blocks, or use of the Shared Registry System or Donuts Website, even if Donuts has been advised of the possibility of such loss or damages, including but not limited to decisions taken by Donuts to apply a DPML Block or not on the basis of information from the TMCH; (c) to the extent allowed under applicable law, Donuts’ total aggregate liability for damages will in any case be limited to the amounts paid to Donuts in relation to the DPML Block Application concerned, and no greater or other damages (such as any fees payable or paid by You in the context of any proceedings initiated against a decision by Donuts to apply a DPML Block or not) may be claimed by You from Donuts. For the purposes of this section 16, the term “Donuts” includes Donuts Inc. and each of its affiliates (including Registry Operators) and each of their respective stockholders, directors, employees, members, subcontractors, the TMCH and each of their respective directors, agents and employees.

17. Indemnity by You: Without limiting the generality of any other provision of this Agreement, You will hold Donuts harmless from any and all claims filed or disputes initiated by third parties, and You will compensate Donuts for any and all costs or expenses incurred or damages for which Donuts may be held liable as a result of third parties taking action against Donuts on the grounds that Your DPML Block Application infringes the rights of a third party. For the purposes of this section 17, the term “Donuts” includes Donuts Inc. and each of its affiliates (including Registry Operators) and each of their respective stockholders, directors, employees, members, subcontractors, the TMCH and each of their respective directors, agents and employees. This section 17 will survive the expiration or termination of this Agreement for any reason.

18. Third Party Beneficiaries: Notwithstanding anything in this Agreement to the contrary:

(a) Donuts and each of its affiliates (including Registry Operators) are and will remain intended third party beneficiaries of this Agreement. You acknowledge that Donuts and each of its affiliates (including Registry Operators) will rely on their third party beneficiary rights under this Agreement in agreeing to Webnames.ca being a registrar for DPML Blocks and in providing services to You or for Your benefit. For greater certainty, You acknowledge and agree that this Agreement is for the benefit of Donuts and each of its affiliates (including Registry Operators) but does not give rise to any obligations on the part of Donuts or any of its affiliates (including Registry Operators).

(b) Donuts and its affiliates (including Registry Operators) are not parties to this Agreement.

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