.CO Founders Program Terms and Conditions

.CO Internet S.A.S. (“.CO Internet”) is the administrator for the .CO top level domain (“Administrator”).  The .CO Founders Program is an initiative designed to engage early adopters, also known as “.CO Founders,” to proactively develop and maintain domains with the .CO extension prior to the public launch in July 2010 (the “Program”). All aspects of the Program are governed by the Terms and Conditions (as defined below).

1. DEFINITIONS

1.1  “.CO Domain” means a domain name in the .CO top level domain.

 1.2  “.CO Founder” means an Applicant whose Application has been approved by Administrator for the Program, who has executed the Program Agreement, and who is in good standing under the Program.

 1.3  “.CO Founder Website” means a website developed by or on behalf of a .CO Founder using the Approved Domain that was the subject of such .Co Founder’s Application.

 1.4  “Applicant” means any party, whether an individual or business entity, that submits an Application under the Program.

 1.5  “Application” means the information, answers and proposals contained in the completed Application Form submitted to Administrator, as well as any subsequent information, correspondence or supplemental materials submitted to Administrator in connection therewith for the purpose of being approved by Administrator for participation in the Program.

 1.6  “Application Form” means the .CO Founder Application Form located at the following URL: www.COinternet.co/COFounders

 1.7  “Application Process” means the entire application and approval process for domain names under the Program, including, without limitation, the drafting and submission of Applications by Applicants (including any supplemental materials that may be requested by Administrator), any communication between an Applicant and Administrator relating to the Program, Administrator’s review, consideration, approval and rejection of Applications, and the execution of the Program Agreement.

 1.8  “Approved Domain” means a .CO Domain that is the subject of an Application which has been approved by Administrator for participation in the Program.

 1.9  “Program Agreement” means the contract provided by Administrator to approved Applicants governing their use of an Approved Domain.

 1.10  “License Term” means the period of time (typically at least 2 years) during which a .CO Founder is permitted by Administrator to use an Approved Domain under the Program, as determined by Administrator on a case by case basis.

 1.11  “Proposed Plan” means an Applicant’s proposed development, usage and marketing plan for a .CO Domain as described in their Application and in any subsequent materials and correspondence provided to Administrator in connection therewith.

 1.12  “Registrant” means a .CO Founder who has successfully registered an Approved Domain with a Registrar.

 1.13  “Registrar” means any entity accredited by Administrator as a registrar for .CO Domains.

 1.14  “Registration” means the registration of an Approved Domain by a .CO Founder through a Registrar.

 1.15  “Terms and Conditions” means the complete terms and conditions applicable to the Program, including those set forth in these .CO Founders Program Terms and Conditions, in the Program Agreement, and in the Application Form, all of which may be modified by Administrator from time to time in its sole discretion.

2. PROGRAM OVERVIEW

The following is a brief summary of the various steps in the Program ultimately leading to Registration of an Approved Domain:

 (a)  Application Submission: Applicants submit completed Applications in accordance with the Terms and Conditions by June 15, 2010.  By submitting an Application, Applicants agree to comply with and be bound by the Terms and Conditions.

 (b)  Application Review: Administrator reviews Applications for compliance with Program criteria and assesses the extent to which the Proposed Plan would contribute to the .CO community in a meaningful way.

 (c)  Approval: Administrator approves those Applications it determines are best suited for the Program.

 (d)  Program Agreement Execution: Approved Applicants execute the Program Agreement and become .CO Founders, which entitles them to license their Approved Domains from Administrator for the relevant License Term.

 (e)  Site Development, Launch and Operation: .CO Founders develop, launch and operate their .CO Founder Websites in accordance with the Terms and Conditions.

 (f)  Registration: .CO Founders that have completed the Program in good standing are given the opportunity to register their Approved Domains through a Registrar of their choice (standard registration fees apply), thereby becoming the official Registrant of the relevant .CO Domain.

3. APPLICANT AND .CO FOUNDER OBLIGATIONS

 3.1  All costs and expenses incurred by an Applicant in connection with the Application Process and/or participation in the Program as a .CO Founder shall be borne exclusively by the Applicant/.CO Founder.  Administrator shall have no liability for any such costs or expenses or be obligated to reimburse Applicant/.CO Founder for the same.  .CO Founders are responsible for ensuring they meet any and all applicable requirements for Registration of a .CO Domain.

3.2  Each .CO Founder: (a) must use his/her/its best efforts to launch a .CO Founder Website within 30 days of signing the Program Agreement, and in any event, must launch the site before July 20, 2010 (b) must issue a press release announcing the launch of the .CO Founder Website, concurrent with the launch of the .CO Founder Website, which press release must be approved by the Administrator, and which approval shall not be unreasonably withheld, conditioned or delayed, (c) maintain the .CO Founder Website in good working order, with unique, meaningful content, user-friendly interfaces, and broad user appeal, for the duration of the License Term, (d) proactively market and promote the .CO Founder Website and the Approved Domain in a manner that is likely to produce widespread awareness of the same based on industry best practices, (e) submit reports to Administrator regarding progress and compliance with the Terms and Conditions on a quarterly basis throughout the License Term (and at such other times as Administrator may reasonably request) in a format designated or approved in writing by Administrator, (f) participate in reasonable joint marketing initiatives with Administrator, to be discussed and mutually agreed upon, given the unique circumstances of each Applicant, and (g) give Administrator the right to link to the .CO Founder Website and to use in good faith .CO Founder’s name, likeness, trademarks, logos, and Application contents (other than Confidential Information, as defined below), as well as other .CO Founder information and content as may be mutually agreed, in Administrator’s marketing, promotional and communications materials. An actual marketing spend of at least US$15,000 per year, while not mandatory, will be deemed to satisfy the requirement set forth in clause (d) above. 

 4. RESERVATION OF RIGHTS

Administrator is not obligated to approve any Applications or enter into Program Agreements with any Applicants. In addition, without limitation, Administrator reserves the right in its sole discretion, but is not obligated, to: (a) request additional information or clarification regarding any Application, (b) rescind the approval of an Application for any reason prior to the full execution of a Program Agreement by Administrator and Applicant, (c) remedy technical errors in this Application or in the Application Process, (d) negotiate, modify and/or waive any aspect(s) of the Program for any, all or none of the Applicants, including, without limitation, the Application Process, Program Agreement, the Terms and Conditions and/or Administrator’s rights under the Program, (e) replace an approved Applicant with another Applicant if the originally approved Applicant fails to execute a Program Agreement or if such Applicant’s participation in the Program is otherwise terminated (whether before or after becoming a .CO Founder), and (f) decline any or all Applications for any or no reason and to license, sell, transfer, register or otherwise convey rights in any .CO Domain to any person or entity outside of the Program.

5. DISCLAIMER REGARDING POTENTIAL DISPUTES

 5.1  All Applicants acknowledge and agree that Administrator makes no representations or warranties of any kind (express or implied) regarding the Application Process, any .CO Domain or otherwise in connection with this Program, including, without limitation, the implied warranties of merchantability and fitness for a particular purpose.  Without limiting the generality of the foregoing, Administrator specifically makes no representations, warranties or guaranties to the Applicant with respect to the possibility or likelihood of any of the following occurring or not occurring: (a) an objection or challenge to the Applicant’s right to license, use and/or Register any .CO Domain (on the basis of intellectual property rights or otherwise), and/or (b) Administrator’s direct or indirect facilitation or permission (either pursuant to the Program or otherwise) of any person’s use and/or Registration of a domain name similar to an Approved Domain or of any domain name for a purpose similar to, that competes with or that might cause confusion with the proposed or actual use of an Approved Domain.

5.2  Administrator has no obligation to make any determination as to whether (i) an Approved Domain (or any use thereof) infringes the legal rights of any person, or (ii) any other domain name (or the use thereof by any person, including another Applicant) may infringe the legal rights of any Applicant. It is each Applicant’s sole responsibility to investigate its legal rights and the legal rights of others with respect to any Approved Domain. All Applicants acknowledge and agree that they are exclusively liable for any infringement or other liability arising out of their license, use and/or Registration of any domain name. Notwithstanding the foregoing, Administrator reserves the right to terminate any Program Agreement and the license granted thereunder if Administrator does determine that the same (and/or the usage of the relevant .CO Domain) infringes the intellectual property or other rights of any person.  By submitting an Application, each Applicant expressly acknowledges that participation in the Application Process and in this Program does not vest in them any rights of priority or otherwise with respect to any .CO Domains, irrespective of any intellectual property or other legal rights such Applicant may have.

6. EVALUATION PROCESS

Administrator will review all Applications for compliance with the Terms and Conditions and will assess the extent to which Administrator believes the Proposed Plan is likely to contribute to the .CO community in a meaningful way (particularly as compared with competing Applications for the same .CO Domain), as well as the likelihood of the Applicant being able to execute the Proposed Plan successfully.  In reviewing Applications, Administrator may consider all relevant factors, including, without limitation: (a) the Applicant’s experience, including past evidence of successful development and deployment of websites and/or online businesses, (b) the Proposed Plan,  (c) the Applicant’s technical and operational capability; and (d) the Applicant’s financial condition. All decisions regarding the Program will be in Administrator’s sole and absolute discretion.  Once an Application is approved, the Applicant will be required to execute the Program Agreement. Upon full execution of the Program Agreement by Applicant and Administrator, the Applicant will be considered a .CO Founder.  Administrator shall not be obligated to provide a response or notice of rejection to Applicants whose Applications were not approved.  

7. CONFIDENTIALITY OF APPLICATION INFORMATION

Any information in the Application that Applicant reasonably considers in good faith to be confidential should be specifically and clearly marked and identified as such (“Confidential Information”). Unless appropriately marked and identified otherwise, Administrator will assume that all Applications and information contained therein are not confidential.  A single designation that all information in an Application is considered confidential will not suffice and will not be construed by Administrator to give rise to any obligation of confidentiality.  No Application may contain any information considered to be trade secrets.  Except as required by applicable law, Administrator will not make publicly available or disclose to any third parties (including other Applicants, but excluding any Representatives of Administrator and its affiliates that have a “need to know” for purposes of administering the Program or for purposes of providing business, financial and/or legal advice to Administrator), the Confidential Information contained in an Application.  Notwithstanding the foregoing, however, under no circumstances shall any publicly available information, the identity of the Applicant, the requested .CO Domain(s), or   a summary description of the Proposed Plan be considered Confidential Information.  In the event Administrator receives multiple Applications containing similar Proposed Plans, Administrator shall have no obligation to inform any Applicant regarding any such similarities, take any other action regarding the same or ascribe any particular meaning to the existence thereof.

8. RESTRICTIONS

.CO Domains for which a third level equivalent was registered on or before July 30, 2008, (e.g. xyz.com.co) and which were active as of March 1, 2010, will not be eligible for the Program.  The license granted to .CO Founders for use of Approved Domains may not be assigned, transferred, sold, or conveyed to any third party except in connection with a sale of all or substantially all of the equity or assets of the .CO Founder and then only if the successor confirms in writing its agreement to be bound by all of the Terms and Conditions and the Program Agreement.  Approved Domains may not be used for any of the following purposes: (a) typosquatting or other deceptive or manipulative purposes intended to benefit from misdirected or unintended Internet traffic or otherwise infringe the rights of others, (b) pornography, (c) gambling, (d) disparaging the .CO top level domain, the Government of Colombia (including any agency thereof), Administrator, its affiliates, or their respective owners, officers, directors, members, managers, employees, agents, service providers and representatives, and/or (e) the promotion of violence, intolerance (regarding race, creed, religion, sexual preference, gender or political affiliation), and/or illegal activity of any kind.

9. AGREEMENT TO TERMS AND CONDITIONS

By submitting an Application, the relevant Applicant agrees to be bound by the Terms and Conditions and represents and warrants that he, she or it has read and understands the Terms and Conditions.

10. DISCLAIMER OF WARRANTIES

ADMINISTRATOR EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, (B) ANY WARRANTY THAT ANY .CO DOMAIN OR ANY ASPECT OF THE PROGRAM (INCLUDING, WITHOUT LIMITATION, THE APPLICATION AND THE APPLICATION PROCESS) WILL MEET APPLICANT’S REQUIREMENTS, OR THAT ANY ELEMENT OF THE APPLICATION PROCESS AND/OR ACCESS TO AND USE OF ANY .CO DOMAIN WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, (C) ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM PARTICIPATING IN ANY PART OF THE PROGRAM, AND (D)  ANY WARRANTY AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH ANY ADMINISTRATOR WEBSITE. NO ADVICE OR INFORMATION, WHETHER ORAL, WRITTEN OR ELECTRONIC, OBTAINED BY AN APPLICANT FROM ADMINISTRATOR OR THROUGH ANY ADMINISTRATOR WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

11. LIMITATION OF LIABILITY

IN NO EVENT SHALL ADMINISTRATOR, ITS AFFILIATES OR THEIR RESPECTIVE OWNERS, OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS, SERVICE PROVIDERS OR REPRESENTATIVES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, FOR ANY LOSS OF PROFITS, USE, DATA, OR OTHER INTANGIBLES, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN CONNECTION WITH OR ARISING OUT OF ANY ASPECT OF THIS PROGRAM, EVEN IF ADMINISTRATOR HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ADMINISTRATOR EXPRESSLY DISCLAIMS ANY LIABILITY RESULTING FROM: (A) THE CONDUCT OF OR APPLICANT’S PARTICIPATION IN THE APPLICATION PROCESS; (B) DATA NON-DELIVERY OR MISDELIVERY BETWEEN THE APPLICANT AND ADMINISTRATOR; (C) ADMINISTRATOR’S PROCESSING, REVIEW, CONSIDERATION, APPROVAL AND/OR REJECTION OF APPLICANT’S APPLICATION; (D) THE PROCESSING, REGISTRATION, AND/OR LOSS OF REGISTRATION OF ANY .CO DOMAIN; (E) USE OF ANY .CO DOMAIN; (F) DISPUTES OVER DOMAIN NAME REGISTRATIONS, INCLUDING THE DECISION OF ANY DISPUTE RESOLUTION PROCEEDING; (G) ERRORS, OMISSIONS OR MISSTATEMENTS; AND/OR (H) EVENTS BEYOND ADMINISTRATOR’S CONTROL, INCLUDING, BUT NOT LIMITED TO, ACTS OF GOD, FIRE, SHORTAGE OF LABOR OR MATERIALS, INCLEMENT WEATHER, INSURRECTION, TERRORISM, AND ACTS OF GOVERNMENT.  NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL ADMINISTRATOR’S MAXIMUM LIABILITY TO ANY APPLICANT OR .CO FOUNDER IN CONNECTION WITH OR ARISING OUT OF THE PROGRAM EXCEED THE SUM OF FIFTY UNITED STATES DOLLARS.

12. GOVERNING LAW; ARBITRATION.

The Terms and Conditions shall be governed by and construed in accordance with the laws of the State of New York, USA, without regard to any of such jurisdiction’s laws or rules regarding conflict of laws that might look to any other jurisdiction outside of New York.  Disputes arising under or in connection with the Program, including requests for specific performance, shall be resolved through binding arbitration conducted as provided in this Section pursuant to the rules of the International Court of Arbitration of the International Chamber of Commerce (“ICC”). The arbitration shall be conducted in the English language and shall occur in Bogotá, Colombia. There shall be three arbitrators: each party shall choose one arbitrator and, if the two arbitrators are not able to agree on a third arbitrator, the third shall be chosen by the ICC. The parties shall bear the costs of the arbitration in equal shares and shall bear their own attorneys’ fees in connection with the arbitration, subject to the right of the arbitrators to reallocate any or all of such costs in their award as provided in the ICC rules. The arbitrators shall render their decision within ninety (90) days of the initiation of arbitration. The parties shall have the right to enforce the decision of the arbitrators in any court of competent jurisdiction. 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 Bogotá, Colombia, which shall not be a waiver of this arbitration agreement.

13. WAIVERS.

No failure or delay on the part of Administrator to exercise any power, right, privilege or remedy under this Program, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise or waiver of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. Administrator shall not be deemed to have waived any claim relating to or arising out of the Program, or any power, right, privilege or remedy under the Terms and Conditions, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of Administrator; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.

14. INTEGRATION.

The Terms and Conditions constitute the entire agreement between Administrator and all Applicants and .CO Founders concerning the Program and supersede any prior agreements, representations, statements, negotiations, understandings, proposals or undertakings, oral or written, with respect to the Program.

15. MODIFICATIONS; GUIDELINES; ENFORCEABILITY.

Administrator may, but is not obligated to, issue interpretive guidelines on its website or to prospective or actual Applicants regarding the Program and the Terms and Conditions.  Administrator may modify any aspect of the Program, including the Terms and Conditions, from time to time, which modifications will take effect at the time they are published on Administrator’s website.  If any part of the Terms and Conditions is declared invalid or unenforceable for any reason, the remainder of the Terms and Conditions will be valid and enforceable as if the invalid or unenforceable part were not included therein. In addition, there shall be substituted for any invalid or unenforceable provision a suitable provision that as closely as possible approximates Administrator’s original intent.