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Username: Jim Fleming
Date/Time: Sun, November 4, 2001 at 4:36 PM GMT
Browser: Microsoft Internet Explorer V5.5 using Windows 98
Subject: Sanctions Program

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      http://www.icann.org/tlds/agreements/unsponsored/registry-agmt-appy-26apr01.htm

Sanctions Program

This document describes a program (the "Sanctions Program") under which violations of Subsections 3.5.1 through 3.5.5 and Appendix H (certification and separation requirements) and Appendix I (Registry Operator's Code of Conduct) of the Registry Agreement may be addressed, at ICANN's option, by a separate and additional set of specific monetary sanctions. The Sanctions Program is intended to allow ICANN flexibility to address violations of those Subsections and Appendices by means less extreme than proceedings to terminate the Registry Agreement. Registry Operator agrees that the Sanctions Program is a non-exclusive and additional option for promoting compliance with Appendices H and I, and does not (except as stated below) limit or affect in any way ICANN's ability to employ any other compliance measures or remedies available under the Registry Agreement.

Registry Operator agrees to participate in and comply with the Sanctions Program described in this document, provided that all other registry operators having registry agreements with ICANN for the operation of unsponsored top-level domains (i.e., top-level domains, other than country-code and infrastructure domains, not having a sponsoring organization) are obligated to participate in and comply with a sanctions program with substantially the same provisions. Failure by Registry Operator to participate in and comply with this sanctions program according to the terms of this document constitutes a ground for ICANN to terminate the Registry Agreement.

ICANN and Registry Operator agree that, should the gTLD Constituency of the Domain Name Supporting Organization propose a substitute Appendix Y at any time prior to 1 May 2002, and ICANN determines (following an appropriate process of public notice and comment) that substitution by that Appendix Y would serve the interests of the Internet community, the substitution will be made.

Investigation:

ICANN may elect to employ the Sanctions Program by sending Registry Operator a Confidential Notice of Investigation. Should ICANN choose to initiate an investigation with regard to any particular activity or conduct, it must do so (a) within 90 days of the time that such activity or conduct is brought to the attention of the appropriate ICANN employee, and (b) in any event no later than one year after the episode in question. The Confidential Notice of Investigation must be given in the manner described by the Registry Agreement, but shall not be publicly disclosed or commented upon by ICANN unless Registry Operator has previously disclosed or confirmed its existence. The Confidential Notice of Investigation must include all of the following:

1. A statement that an investigation under the Sanctions Program is being initiated;

2. A statement of the possible violation of Subsections 3.5.1 through 3.5.5 and Appendices H and I being investigated and the reasons for believing such violation may have occurred;

3. A request to Registry Operator to provide to ICANN the information, including copies of any documentation, that ICANN believes is necessary for it to conduct the investigation, which information must be reasonably related to the alleged violation; and

4. A specification of the ICANN investigator to whom a response should be made and the form in which the response should be transmitted.

Registry Operator shall have thirty days (or such larger period as ICANN may allow) after the date of the Confidential Notice of Investigation to send a response to the specified ICANN investigator. The response, which shall be transmitted to the ICANN investigator in the manner stated in the Confidential Notice of Investigation, shall include:

1. An acknowledgement that an investigation has been initiated;

2. Any of the information requested in the Confidential Notice of Investigation that Registry Operator chooses to provide in accordance with clause 3 above;

3. If Registry Operator does not provide any or all of the information sought by the Confidential Notice of Investigation, the Registry Operator may state its reason(s) for not providing the information, and ICANN is free to draw any reasonable inferences from the failure to provide such information;

4. Any request by the Registry Operator for confidential treatment of any of the information supplied, and the reason for such confidential treatment; and

5. A specification of the name and address of the person appointed by the Registry Operator to receive communications concerning the investigation ("Authorized Representative").

Any such response shall be treated as confidential by ICANN unless disclosed or confirmed by Registry Operator. Within thirty days after transmission of the Registry Operator's response to the Notice of Investigation, ICANN shall do one of the following:

1. If ICANN chooses to commence a sanctions proceeding based on the information it has received from the Registry Operator and otherwise, send the Authorized Representative a Statement of Evidence of Violation meeting the requirements stated below;

2. If ICANN chooses not to proceed with the sanctions proceeding or a renewed investigation, send the Authorized Representative a notice that the Investigation is closed without further action; or

3. If ICANN chooses to seek additional information, send an additional Confidential Notice of Investigation to the Registry Operator meeting the requirements stated above.

Statement of Evidence of Violation

If ICANN has reason to believe that a violation has occurred, it shall send the Authorized Representative a Statement of Evidence of Violation. The Statement of Evidence of Violation shall not be publicly disclosed or commented on by ICANN unless Registry Operator has previously disclosed or confirmed its existence. The Statement of Evidence of Violation shall:

1. Specify the provision(s) of Subsections 3.5.1 through 3.5.5 and Appendices H and I of the Registry Agreement that ICANN has reason to believe Registry Operator has violated;

2. Provide a reasonably specific statement of the factual basis of the apparent violation;

3. Include all evidence on which ICANN has relied in concluding it has reason to believe that a violation has occurred;

4. Give the legal and factual basis for ICANN's conclusion that it has reason to believe that a violation has occurred, based on a discussion of the provisions of the Registry Agreement, the included evidence, and any reasonable inferences drawn therefrom; and

5. State whether the alleged violation would, if established, be a major violation or a minor violation (see below) and why.

Within thirty days (or such longer period as ICANN may allow) after the Statement of Evidence of Violation is sent, the Registry Operator shall send a response to the ICANN investigator.

Finding of Violation

At least thirty days after the Statement of Evidence of Violation is sent, and after considering any Registry Operator's response to the Statement of Evidence of Violation, ICANN may issue a Finding of Violation. A Finding of Violation must be sent to the person appointed by the Registry Operator to receive communications concerning the investigation, and shall be posted on ICANN's website, with appropriate redactions for material that ICANN and Registry Operator agree is confidential. If no Finding of Violation is sent within ninety days after the Registry Operator's response to the Statement of Evidence of Violation, the sanctions proceeding shall be deemed closed without action.

Any Finding of Violation must:

1. Specify the provision(s) of Subsections 3.5.1 through 3.5.5 and Appendices H and I of the Registry Agreement that ICANN finds Registry Operator has violated;

2. Provide a specific detailed description of the evidence upon which ICANN relies in making the finding;

3. Specifically state any inferences that ICANN draws based on the evidence, upon Registry Operator's failure to provide information requested in the investigation, or otherwise;

4. Provide a specific detailed description of the nature of the violation found, and state whether the violation is found to be major or minor and why; and

5. State the amount of monetary sanctions assessed for each distinct violation found and reasons why the amount is deemed reasonable.

In finding a violation, ICANN may rely on information provided in response to a Confidential Notice of Investigation, on any evidence included in the Statement of Evidence of Violation, and on any information provided in response to the Statement of Evidence. ICANN may draw inferences from any failure by the Registry Operator to provide information requested in the investigation, provided those inferences are reasonable in the circumstances. Only one Finding of Violation may be issued with respect to any particular episode of activity or conduct.

A violation shall be classified as major or minor based on (a) the effects of the violation on competition and competitors, (b) the extent to which the violation appears to be intentional by Registry Operator, considering the level of the employees or agents involved, prior notice to the Registry Operator of the circumstances, and other relevant factors, (c) the extent to which the Registry Operator has established and effectively enforces policies that prohibit such violations (where the violation involves actions by employees or agents of Registry Operator that have not been approved by senior management that has authority to change such policies), (d) prior findings of violations by the Registry Operator, and (e) any other relevant circumstances.

Sanctions of up to US$10,000 for each violation may be assessed for each minor violation found and sanctions of up to US$100,000 for each violation may be assessed for each major violation found. The amount of the financial sanction shall be proportionate to the violation and other relevant facts.

In the event ICANN makes a Finding of Violation and seeks to impose a monetary sanction, it may not thereafter issue a cure notice or seek any other remedy on the basis of the assertion that the same specific episode on which the Finding of Violation is based constitutes a breach of this Agreement, but it may take into account the fact of the Finding and sanction in determining that another violation should be dealt with in a particular way, including by deeming it a material breach of this Agreement.

Review of Finding of Violation

Findings of Violation may be reviewed only by ICANN's Reconsideration Policy or by arbitration under Subsection 5.9 of the Registry Agreement.

Registry Operator may seek review of any aspect of any Finding of Violation by a request for reconsideration under ICANN's Reconsideration Policy (as it may be amended from time to time), provided that the request is submitted within the time allowed by the policy after the sending of the Finding of Violation. The submission of a request for reconsideration shall not be a prerequisite for seeking review of the Finding of Violation by arbitration.

Registry Operator may also appeal the assessment of sanctions in the Finding of Violation by giving ICANN written notice of its intention to arbitrate (the "Arbitration Notice") under Subsection 5.9 of the Registry Agreement. Registry Operator shall deliver the Arbitration Notice no later than fifteen days after the Finding of Violation is sent, except that if a timely request for reconsideration is submitted under ICANN's Reconsideration Policy (as it may be amended from time to time) the deadline shall be fifteen calendar days after ICANN has provided contractual notice that the ICANN Board has voted to act or not to act on the request. If Registry Operator does not deliver an Arbitration Notice within the time described above, or the Registry Operator causes the arbitration to be discontinued before decision, the amount of the sanctions assessed in the Finding of Violation shall be deemed final.

If a timely Arbitration Notice is delivered, the arbitration shall determine, based on the record, whether the Finding of Violation is warranted and the amount of sanctions is reasonable. The amount of sanctions as determined appropriate according to the arbitration decision shall be deemed final.

Payment of Sanctions

Registry Operator shall pay to ICANN the final amount of sanctions within thirty days after the amount of sanctions is deemed final. Failure to do so shall be a ground for termination under Subsection 5.4.7 of the Registry Agreement.



 

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