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This Memorandum of Understanding ("MOU") sets forth the mutual intention of [ ], an entity seeking to become the operator of the usTLD ("Bidder"), and the Organizing Committee of the usTLD Policy Development Corporation (in formation) ("usPDC"), to negotiate in good faith to enter into a binding agreement, consistent with the terms set forth in this MOU, in the event that Bidder is successful in being awarded the right to manage the usTLD.
On June 12, 2001, the National Institute of Standards and Technology ("NIST") issued a Request for Quotation ("RFQ") seeking "centralized management and coordination of registry, registrar (where specified), database, and information services for the usTLD." The Statement of Work ("SOW") describing the services sought makes it clear that NIST expects that the usTLD will be operated as a viable commercial business, with the goals of stability, efficiency, innovation and promotion of increased use by the US Internet community. It also sets forth various public interest requirements that must be met by any successful Bidder which, taken in the aggregate, require that the usTLD be operated consistent with, and for the benefit of, the interests of the overall Internet community of the United States.
In addition, delegations and redelegations of national domain name registries are subject to the provisions of RFC 1591, which has been recognized as its existing policy by ICANN. That policy states, in part, that the "delegee of a [national TLD] is a trustee for the delegated domain, and has a duty to serve the residents of the relevant country or territory."
As a result of these complementary requirements, any future operator of the usTLD must demonstrate that it has the resources required to accomplish these goals, and that its operation will be supported by, and will adequately serve, the entirety of the United States Internet community. usPDC is a broad coalition of governmental, business, academic and public policy entities that is intended to be generally representative of the United States Internet community. It was established to provide, for any successful Bidder, a mechanism through which that Bidder can assure NIST and ICANN that its operation will in fact not only meet the requirements of the RFQ (with respect to policy development) and ICP-1 (with respect to demonstrated United States Internet community support), but will address the interests of both present and future users of the usTLD in open, representative policy administration.
Bidder hereby agrees that it will include this MOU as an integral part of its response to the RFQ, and will represent to NIST that any award to Bidder or its affiliates from NIST of the right to operate the usTLD should be conditioned on good faith compliance with this MOU.
The Organizing Committee hereby states that it is its current intention to create a non-profit corporation known as the .us Policy Development Corporation, managed by a Board of Directors that is broadly representative of the US Internet community, for the purpose of entering into an agreement with the person or entity awarded the right to operate the usTLD.
A. Bidder and the Organizing Committee agree to use their mutual reasonable efforts to enter into a Binding Agreement ("Agreement") between Bidder and usPDC, subsequent to receipt by Bidder of an award from NIST of the right to operate the usTLD but prior to seeking redelegation from ICANN or beginning actual operations.
B. Such Agreement shall set forth the specific conditions under which Bidder will look to usPDC for guidance and oversight with respect to its operation of the usTLD, consistent with the principles set forth in "A Policy Structure for the United States Top Level Name Registry" ("Policy Structure Document"), attached to this MOU, consistent with the RFQ or Contracting Officer requirements and other relevant legal requirements, and subject to the dispute resolution procedures set forth in D below. These conditions shall include procedures for advance notice to usPDC of proposed actions that have or could have policy implications; reasonable deadlines for usPDC recommendations or objections; the consensus standards under which the usPDC will arrive at positions; and appropriate protections for confidential or proprietary business information of Bidder.
C. Such Agreement shall also commit Bidder to fund the reasonable costs associated with the creation and operation of usPDC, including (1) initial funding not to exceed $450,000 to reimburse certain costs of the organizing committee and to fund the creation of the corporation; (2) annual funding, subject to an agreed maximum annual amount, sufficient to support the office space, staff, technical support and outreach activities necessary to enable the usPDC to carry out its charter of representing the interests of the US Internet community; and (3) a commitment to additional reasonable funding that the usPDC determines to be necessary, subject to agreed upon limits and conditions; provided, however, that the reasonableness of any funding request shall be determined in the light of the commercial success of Bidder in its operation of the usTLD, assuming Bidder operates the usTLD in a commercially reasonable manner. Any disputes over funding issues will be resolved through the dispute resolution procedure described in D below.
D. Such Agreement shall contain a provision for mandatory binding arbitration of any disputes between Bidder and usPDC relating to the application of the Agreement and the principles contained in the Policy Structure Document to the operation of the usTLD. Such arbitration shall be conducted in accordance with procedures of the American Arbitration Association ("AAA") then in effect, provided that (1) the arbitration shall take place in Washington, D.C.; (2) the parties shall agree to the appointment of a single arbitrator by the AAA who agrees to render a final decision no later than 30 days following his or her appointment; (3) the arbitration process shall consist of the provision of a single advocacy document not to exceed 25 pages in length by each party and (if requested by either party) an oral hearing conducted in a manner to be determined by the arbitrator but not to exceed a total of three hours; (4) the arbitrator's authority shall be limited to a determination of which of the positions advanced by the parties is most consistent with the Agreement and the principles set forth in the Policy Structure Document (so-called "baseball arbitration") and not to fashioning a compromise position; and (5) the parties shall agree that the arbitrator's decision shall be final and non-appealable.
Bidder acknowledges and understands that the Organizing Committee may enter into a similar agreement or memorandum of understanding with other persons or entities seeking to become the operator of the usTLD. To that extent that any such agreement or understanding contains more favorable terms for that entity than are contained in this MOU, Bidder shall also get the benefit of such more favorable terms.
This MOU constitutes the entire agreement between Bidder and the Organizing Committee with respect to the subject matter of this MOU. This MOU may not be assigned by either party.
Signatures
[see attached]
Signatures
Organizing Committee
American ISP Association
American Library Association
AT&T
Center for Democracy & Technology
Chamber of Commerce of the United States
Common Cause
Consumer Federation of America
Information Technology Association of America
The George Mason University Instructional Foundation
Media Access Project
National Association of Counties
National Association of Telecommunications Officers and Advisors
National Education Association
National League of Cities
National School Boards Association
Progress and Freedom Foundation
United Church of Christ, Office of Communication
Bidder
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The Center For Democracy & Technology |