[.KZ] Dispute Resolution Policy

1. KazNIC Organization ("KazNIC") is responsible for the registration

of second-level Internet domain names in the top level KZ domain.

KazNIC registers these second-level domain names on a "first come,

first served" basis. By registering a domain name, KazNIC does not

determine the legality of the domain name registration, or otherwise

evaluate whether that registration or use may infringe upon the rights

of a third party.

 

2. The entity applying for a domain name ("registrant") is solely

responsible for selecting its own domain name ("domain name") and

maintaining for the continued accuracy of the registration record. The

registrant, by completing and submitting the Domain Name Registration

Agreement ("Registration Agreement"), represents that the statements in

its application are true and that the registration of the selected

domain name, to the best of the registrant's knowledge, does not

interfere with or infringe upon the rights of any third party. The

registrant also represents that the domain name is not being registered

for any unlawful purpose.

 

3. KazNIC neither acts as arbiter nor provides resolution of disputes

between registrants and third party complainants arising out of the

registration or use of a domain name. This Domain Name Dispute Policy

("Policy") does not confer any rights, procedural or substantive, upon

third party complainants. Likewise, complainants are not obligated to

use this Policy.

 

4. This Policy does not limit the administrative or legal procedures

KazNIC may use when third party conflicts arise, or when KazNIC is

presented with information that a domain name violates the legal rights

of a third party, including, but not limited to, information that the

display or use of the domain name is expressly prohibited by a

Kazakstani legislation or International regulations.

 

5. Modifications. The registrant acknowledges and agrees that KazNIC

may modify or amend this Policy from time to time, and that such

changes are binding upon the registrant. KazNIC will post the revised

Policy at http://www.nic.kz/rules/policy.jsp at least thirty (30) calendar

days before it becomes effective.

 

6. Indemnity. The registrant hereby agrees to defend, indemnify and

hold harmless (i) KazNIC, its officers, directors, employees and

agents, and (ii) the Ministry of Transport and Communications ("MTC"),

its officers, directors, and employees (collectively, the "Indemnified

Parties"), for any loss or damages awarded by a court of competent

jurisdiction resulting from any claim, action, or demand arising out of

or related to the registration or use of the domain name. Such claims

shall include, without limitation, those based upon trademark or

service mark infringement, tradename infringement, dilution, tortious

interference with contract or prospective business advantage, unfair

competition, defamation or injury to business reputation. Each

Indemnified Party shall send written notice to the registrant of any

such claim, action, or demand against that party within a reasonable

time. The failure of any Indemnified Party to give the appropriate

notice shall not affect the rights of the other Indemnified Party.

KazNIC recognizes that certain educational and governmental entities

may not be able to provide complete indemnification. If the registrant

is (i) a governmental or non-profit educational entity, and (ii) not

permitted by law or under its organizational documents to provide

indemnification, the registrant must notify KazNIC in writing and, upon

receiving appropriate proof of such restriction, KazNIC may provide an

alternative provision for such a registrant.

 

7. Revocation. The registrant agrees that KazNIC shall have the right

in its sole discretion to revoke, suspend, transfer or otherwise modify

a domain name registration upon thirty (30) calendar days prior written

notice, or at such time as KazNIC receives a properly authenticated

order from a court of competent jurisdiction, or arbitration award,

requiring the revocation, suspension, transfer or modification of the

domain name registration.

 

8. Dispute Initiation. Registrant agrees that while KazNIC can neither

act as an arbiter nor provide resolution of disputes arising out of the

registration and use of a domain name, KazNIC may be presented with

information that a domain name possibly violates the trademark rights

of a trademark owner. KazNIC may apply the procedures described in

Section 9 when a third party complainant ("complainant") presents

KazNIC with satisfactory evidence of both trademark ownership and

written notice to the domain name registrant describing the legal harm

the trademark owner is incurring. The documents required in support of

a complainant's written request that KazNIC invoke Section 9, Dispute

Procedures, must include:

 

(a) An original, certified copy, not more than six (6) months old, of

a trademark registration ("certified registration"), which is in

full force and effect and is identical to a second-level domain

name (i.e., not including KZ) on the principal or equivalent

registry of any country (copies certified in accordance with

37 CFR 2.33(a)(1)(viii) or its successor will meet this standard

for registrations in jurisdictions other than the United States).

Trademark or service mark registrations from the supplemental or

equivalent registry of any country, or from individual states or

provinces of a nation, will not be accepted. Trademarks

incorporating a design will not be accepted; and

(b) A copy of the written prior notice sent to the domain name

registrant by the complainant, and a representation by the

complainant indicating the mode of delivery of the notice (e.g.,

first class mail, overnight delivery) and the factual basis for

believing that the domain name registrant received the notice.

Notices must be sent to the mailing address of the domain name

registrant as provided in KazNIC' WHOIS database. The notice to the

domain name registrant must clearly state that the complainant

believes the registration and use of the disputed domain name

violates the trademark rights of the complainant; the notice must

also clearly allege the factual and legal bases for the belief.

KazNIC will not undertake any separate investigation of the

statements in such notice.

 

9. Dispute Procedures. In those instances where a third party claim is

based upon and complies with Section 8(a and b), KazNIC may apply the

following procedures, which recognize that trademark ownership does not

automatically extend to the right to register a domain name and which

reflect no opinion on the part of KazNIC concerning the ultimate

determination of the claim:

 

(a) KazNIC shall determine the creation date of the registrant's domain

name registration ("domain name creation date").

(b) If the registrant's domain name creation date precedes the

effective date of the valid and subsisting certified registration

owned by the complainant, KazNIC will take no action on the

complainant's request.

(c) If the domain name creation date is after the effective date of the

valid and subsisting certified registration owned by the

complainant, then KazNIC shall request from the registrant proof of

ownership of registrant's own registered trademark or service mark

by submission of a certified registration, of the type and nature

specified in Section 8(a) above. The certified registration must be

owned by the registrant and the effective date must be prior to the

date of any third party's notice of a dispute to the registrant. If

the registrant satisfies the requirements of this Section 9(c),

KazNIC will take no further action on the complainant's request.

(d) If the domain name creation date is after the effective date of the

valid and subsisting certified registration owned by the

complainant, and the registrant fails to provide a certified

registration as specified in Section 8(a) to KazNIC within thirty

(30) calendar days of receipt of KazNIC' dispute notification

letter, KazNIC will assist the registrant with registration of a

new domain name, and will allow the registrant to maintain both

names simultaneously for up to ninety (90) calendar days to allow

an orderly transition to the new domain name. KazNIC will provide

such assistance to a registrant if and only if, within thirty (30)

calendar days of receipt of KazNIC dispute notification letter, the

registrant (1) submits a Registration Agreement requesting the

registration of a new domain name; and (2) submits an explicit

written request to KazNIC' Office, including an identification of

the registrant's desired new domain name and the NIC tracking

number (for example, KZ-981125.1234) assigned by KazNIC in response

to the new Registration Agreement. At the end of the ninety (90)

calendar day period of simultaneous use, KazNIC will place the

disputed domain name on "Hold" status, pending resolution of the

dispute. As long as a domain name is on "Hold" status, that domain

name registered to the registrant shall not be available for use by

any party.

(e) In the event the registrant fails to select one of the following

options by a written response, received by KazNIC within thirty

(30) calendar days of receipt of KazNIC' dispute notification

letter, KazNIC will place the domain name on "Hold" (wherein the

domain name will not be available for use by any party) pending

resolution of the dispute:

(1) Provide the documentation required by Section 9(c) of this

Policy,

(2) Relinquish the domain name and transfer it to the complainant,

(3) Register a new and different domain name pursuant to Section

9(d) of this Policy,

or

(4) File a civil action and provide a copy of a file-stamped

complaint pursuant to Section 10 of this Policy.

(f) KazNIC will reinstate the domain name placed in "Hold" status, or

will not place it in "Hold" status, (i) upon receiving a properly

authenticated temporary or final order by a court of competent

jurisdiction, or arbitration award, stating which party to the

dispute is entitled to the domain name, (ii) if KazNIC receives

other satisfactory evidence from the parties of the resolution of

the dispute, or (iii) the complainant requests that the domain name

not be placed on "Hold".

(g) A domain name registrant involved in Dispute Procedures remains

subject to the terms and conditions of the Registration Agreement,

including fees.

 

10. Litigation. Independent of the provisions of Section 9 of the

Policy, in the event that:

(a) The registrant files a civil action related to the registration and

use of the domain name against the complainant in a court of

competent jurisdiction, and provides KazNIC with a copy of the

file-stamped complaint, KazNIC will maintain the status quo ante of

the domain name record pending a temporary or final decision of the

court. For example, if the domain name is not on "Hold," it will

not be placed on "Hold;" if the domain name is already on "Hold",

it will remain on "Hold." In such cases, KazNIC will deposit

control of the domain name into the registry of the court by

supplying the registrant with the registry certificate for deposit.

While the domain name is in the registry of the court, KazNIC will

not make any changes to the domain name record unless ordered by

the court. The registrant also shall promptly provide copies of any

and all pleadings filed in the action to KazNIC upon KazNIC

request.

(b) The complainant files a civil action related to the registration

and use of the domain name against the registrant in a court of

competent jurisdiction, and provides KazNIC with a copy of the

file-stamped complaint, KazNIC will maintain the status quo ante of

the domain name record pending a temporary or final decision of the

court. For example, if the domain name is not on "Hold," it will

not be placed on "Hold;" if the domain name is already on "Hold",

it will remain on "Hold." KazNIC will deposit control of the domain

name into the registry of the court by supplying the complainant

with the registry certificate for deposit. While the domain name is

in the registry of the court, KazNIC will not make any changes to

the domain name record unless ordered by the court.

(c) In both instances, under Section 10(a and b), KazNIC will abide by

those provisions of temporary or final court orders, or arbitration

awards, directing the disposition of the domain name, without being

named as a party to the civil action. The civil action must include

the domain name registrant as a party. If named as a party to a

civil action, KazNIC shall not be limited to the above actions, but

reserves the right to raise any and all defenses deemed

appropriate, and to take any other action necessary to defend

itself.

(d) A domain name registrant involved in Litigation remains subject to

the terms and conditions of the Registration Agreement, including

fees.

 

11. DISCLAIMER. THE REGISTRANT AGREES THAT KAZNIC WILL NOT BE LIABLE

FOR ANY LOSS OF REGISTRATION AND USE OF REGISTRANT'S DOMAIN NAME, OR

FOR INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR

CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS

OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE),

OR OTHERWISE, EVEN IF KAZNIC HAS BEEN ADVISED OF THE POSSIBILITY OF

SUCH DAMAGES. IN NO EVENT SHALL KAZNIC' MAXIMUM LIABILITY EXCEED FIVE

HUNDRED ($500.00) US DOLLARS.

 

12. Notices. All notices between Network Solutions and its registrants

permitted or required under this Policy shall be in writing and shall

be delivered by personal delivery, courier delivery, facsimile

transmission, and/or by first class mail, and shall be deemed given

upon delivery, transmission, or seven (7) calendar days after deposit

in the mail, whichever occurs first. Initial notices shall be sent to

the domain name registrant at the address of the domain name registrant

listed in KazNIC WHOIS database.

 

13. Non-Agency. Nothing contained in this Policy shall be construed as

creating any agency, partnership, or other form of joint enterprise

between the parties.

 

14. Non-Waiver. The failure of KazNIC to require performance by the

registrant of any provision hereof shall not affect the full right to

require such performance at any time thereafter; nor shall the waiver

by KazNIC of a breach of any provision hereof be taken or held to be a

waiver of the provision itself.

 

15. Breach. The registrant's failure to abide by any provision under

this Policy may be considered by KazNIC to be a material breach and

KazNIC may provide a written notice, describing the breach, to the

registrant. If, within thirty (30) calendar days of the date of such

notice, the registrant fails to provide evidence, which is reasonably

satisfactory to KazNIC, that it has not breached its obligations, then

KazNIC may revoke registrant's registration of the domain name. Any

such breach by a registrant shall not be deemed to have been excused

simply because KazNIC did not act earlier in response to that, or any

other, breach by the registrant.

 

16. Invalidity. In the event that any provision of this Policy shall be

unenforceable or invalid under any applicable law or be so held by

applicable court decision, such unenforceability or invalidity shall

not render this Policy unenforceable or invalid as a whole. KazNIC will

amend or replace such provision with one that is valid and enforceable

and which achieves, to the extent possible, the original objectives and

intent of KazNIC as reflected in the original provision.

 

17. Entirety. This Policy, as amended, and the current Registration

Agreement together constitute the complete and exclusive agreement

between KazNIC and the registrant, and supersede and govern all prior

proposals, agreements, or other communications. The registrant agrees

that registration of a domain name constitutes an agreement to be bound

by this Policy, as amended from time to time.

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