Legalese

[Kent Crispin <kent@songbird.com>]

On Wed, Jul 16, 1997 at 12:29:57PM -0400, Vince Wolodkin wrote:
> Kent Crispin wrote:
[...]
> > Vince, I am not a lawyer, and perhaps I am missing something, but that
> > language seems fairly straightforward to me, even for legalese.  Yes,
> > if you want to be a registrar you need to put up a substantial
> > application fee, and that fee is non-refundable if your application
> > is accepted.  Do you see something more there?
> 
> >From the application form:
> 
>                             TERMS & CONDITIONS
> 
> TC.4  Applicant acknowledges that applicant is in no way guaranteed to
> be approved as a gTLD registrar, nor is it guaranteed that modifications
> will or will not be made to the Internet.
> 
> TC.9  Applicant agrees to defend, indemnify, save and hold harmless each
> of the administrative Parties, from and against any and all claims,
> demands, liabilities, costs and/or expenses (including, without
> limitation, attorneys' fees) brought against, paid or incurred by each
> of the Administrative Parties, at any time and in any way resulting
> from, arising out of, or otherwise relating to applicant's application
> to become a gTLD Registrar, including any alleged or actual gross
> negligence or knowing and willful misconduct by the Administrative
> Parties. In no event shall any of the Administrative Parties be liable
> to applicant for indirect, incidental, consequential, special or
> exemplary damage or expense, including without limitation, lost profits
> or opportunity costs, even if the Administrative Parties has been
> advised of the possibility of such damage or expense.
> 
> 
> Read TC4 as --> we cannot guarantee that we will be able to enter any of
> these new gTLDs into the Internet roots.

Of course.  You are required to evaluate those probabilities yourself.

> Read TC9 as --> if we cannot enter the gTLDs into the root, you cannot
> sue us.

Yes.  So you are required to evaluate the risk, and make your choices
accordingly.  This is completely reasonable.  [Standard rant about
Americans who want a risk-free life deleted -- you know the tune :-)]

> In fact you MUST defend us even if we already know that we
> cannot get the gTLDs into the Internet roots.

The word "defend" does appear, as does the word "save".  I'm not sure
of the technical legal meaning of each of these terms in context --
perhaps one of the lawyers reading these lists could comment -- but I
am certain that this is completely standard legal phraseology, and
that it most certainly does not mean, for example, that you have to 
dump your life savings into legal fees defending CORE from lawsuits.

> Oh, and BTW, as per the
> previous application language, we get to keep your $10,000.

Yes.  People harp on this a lot -- not so much because of the 
non-refundable character, but because of the amount, I believe -- if 
it was a non-refundable fee of $100 nobody would say a word.  Another 
area where sticker shock sets in is the $300000 requirement of liquid 
working capital.  Personally, I would like it to be a lot less, as 
well.  

However, you must remember that the infrastructure must be capable of
taking over NSI's current load, and that is something that I (for
example), with my little network of linux machines, simply cannot do. 
[Of course, what happens with NSI is problematic.  But the CORE
registries must be capable of handling the load, if it is given to
them.] Like it or not, there is significant infrastructure involved,
and it costs money. 

The CORE registrars are taking a business risk; it is a completely
legitimate risk; they hope to make money from their investment; the
amount of money required to bring off the whole thing is substantial;
you need reasonable legal protections for all parties when entering a
business venture like this; the actual legal terms and conditions 
seem both reasonable and, for this kind of venture, standard vanilla 
flavor.

If it weren't for the near-term potential load from .com and so on,
much less money would be required, a more leisurely pace could be
adopted, and very small businesses like mine could be players.  But 
this is the real world, Vince.

There are all kinds of imperfections in the proposals -- perfection
takes a long time.  But *fortunately*, the system allows for
self-modification, and large amounts of input from a variety of
sources. 

The MoU isn't an end, it is a beginning.  Things will change.

-- 
Kent Crispin				"No reason to get excited",
kent@songbird.com			the thief he kindly spoke...
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