9.1 Independent Contractors. The legal relationship between CIRA
and the Registrant and CIRA and each Registrant's Registrar is that of
independent contractors. Under no circumstances shall this Agreement be
construed to create a partnership, agency or joint venture between CIRA and
the Registrant or CIRA and any of the Registrant's Registrar(s). 9.2 No
Agency. Except as provided in Section 9.3, neither party shall have any right,
power or authority to act on behalf of the other party and neither party
shall create any express or implied obligations or financial commitments on
behalf of the other party. 9.3 Appointment of CIRA as Attorney-in-Fact.
The Registrant constitutes and appoints CIRA and any officer or agent of
CIRA, with full power of substitution, as the Registrant's true and lawful
attorney-in-fact with full power and authority in the place of the Registrant
and in the name of the Registrant or in its own name, from time to time in
CIRA's discretion after the occurrence of any event listed in Sections 6.1,
6.2, 6.3, 6.4, 6.5, 6.6, 6.7, 6.8, 6.9, 6.13, 6.14 and 6.15 to take any and
all appropriate action and to execute any and all documents and instruments
as, in the opinion of such attorney acting reasonably, may be necessary or
desirable to accomplish the purposes of this Agreement including, without
limitation, to preserve the rights of other registrants of the Registry and
the integrity of the Registry. These powers are coupled with an interest and
are irrevocable until this Agreement is terminated. 9.4 Registrant as
Member of CIRA. The Registrant acknowledges that the Registrant will become a
member of CIRA in accordance with CIRA's by-laws unless the Registrant gives
notice to CIRA in accordance with the by-laws that it does not wish to be a
member of CIRA. Copies of CIRA's articles of incorporation and by-laws are
set out on CIRA's website (currently at http://www.cira.ca).
ARTICLE 10
AMENDMENT OF AGREEMENT
10.1 Amendment by
CIRA. (1) CIRA shall have the right, at any time and from time to time,
acting reasonably, to amend the terms and conditions of this Agreement,
including without limitation, the Registration Rules and the other Rules and
Procedures and to adopt new Rules and Procedures not yet in effect; provided
that any such amendment to this Agreement (including the Rules and Procedures
and any new Rules and Procedures) shall be applicable to all Persons seeking
the registration of a Domain Name or who maintain a Domain Name Registration.
Any such amendment to this Agreement (including the Rules and Procedures and
any new Rules and Procedures) will be binding and effective upon the later of
30 days after the posting of such amendment on CIRA's website (currently at
http://www.cira.ca) or 30 days after CIRA gives notice of such amendment to
the Registrant and the Registrant's Registrar(s). (2) Notwithstanding
Section 10.1(1), if CIRA adopts any new Rules or Procedures or amends any
existing Rules and Procedures on or prior to the Operational Transfer Date,
then such Rules and Procedures, as adopted or as amended, shall be binding
and effective on the Registrant upon the later of seven (7) days after the
posting of such new or amended Rules and Procedures on CIRA's website or
seven (7) days after CIRA gives notice of such new or amended Rules and
Procedures by email to the Registrant and the Registrant's Registrar;
provided that such new or amended Rules and Procedures shall be applicable to
all Persons seeking the registration of a Domain Name or who maintain a Domain
Name Registration. (3) The Registrant agrees to periodically review
CIRA's website, including the current version of this Agreement and the Rules
and Procedures available on CIRA's website, to be aware of any amendments to
this Agreement and the Rules and Procedures and any new Rules and Procedures.
(4) If the Registrant does not agree with any such amendment, then the
Registrant may terminate this Agreement in accordance with Section 6.15. By
continuing to maintain Domain Name Registrations in the Registry in
accordance with this Agreement, the Registrant agrees to be bound by such
amendments and Rules and Procedures after they become binding and effective.
CIRA shall give notice to the Registrant and the Registrant's Registrar of
any such amendments and Rules and Procedures by email. The Registrant agrees
to periodically review CIRA's website, including the current version of this
Agreement available on CIRA's website, to be aware of any such amendments.
ARTICLE 11
GENERAL TERMS
11.1 Registrant
Bound as a Principal. The Registrant agrees that the Registrant is bound as a
principal by all of the terms and conditions of this Agreement, including the
Rules and Procedures, notwithstanding that the Registrant's Registrar and/or
an agent of the Registrant applied for the registration of the Registrant's
selected Domain Name(s) on behalf of the Registrant. The continued
registration of the Registrant's Domain Name Registrations shall ratify any
unauthorized actions of the Registrant's Registrar and any such agent. In
addition, the Registrant is responsible for any errors made by the
Registrant's Registrar or any such agent. 11.2 Heading and Table of
Contents. The division of this Agreement into Articles and Sections and the
insertion of headings are for convenience of reference only and will not
affect the construction or interpretation of this Agreement. 11.3 Number
and Gender. Unless the context requires otherwise, words importing the
singular include the plural and vice versa and words importing gender include
all genders. 11.4 Statute References. Any reference in this Agreement to
any statute or any section thereof will, unless otherwise expressly stated,
be deemed to be a reference to such statute or section as re-enacted from
time to time. 11.5 Notices. Any notice, certificate, consent,
determination or other communication required or permitted to be given or
made under this Agreement will be in writing and will be effectively given
and made if sent by email to the email address of the Registrant and, if
applicable, the Registrant's Registrar, registered in the Registry, in the
case of a communication to the Registrant or the Registrant's Registrar, or
to registrant-notices@cira.ca, in the case of a communication to CIRA. Any
such communication so given or made will be deemed to have been given or made
and to have been received on the day of sending. 11.6 Time of Essence.
Time will be of the essence of this Agreement in all respects. 11.7
Further Assurances. Each party will promptly do, execute, deliver or cause to
be done, executed and delivered all further acts, documents and things in
connection with this Agreement that the other party may reasonably require,
for the purposes of giving effect to this Agreement. Without limiting the
generality of the foregoing, the Registrant agrees from time to time at CIRA's
request: (i) to execute and deliver to CIRA a paper version of the then
current version of this Agreement; and (ii) to confirm the Registrant's
agreement and acceptance of the then current version of this Agreement
(including the Rules and Procedures) in accordance with the Registration
Rules. 11.8 Successors and Assigns. This Agreement will enure to the
benefit of, and be binding on, the parties and their respective
administrators, executors or other legal representatives, successors and
permitted and qualified assigns. CIRA may assign or transfer all or any part
of its rights and obligations under this Agreement to any Person. CIRA shall
provide the Registrant and the Registrant's Registrars with 30 days prior
notice of any such assignment or transfer. The Registrant shall not assign or
transfer, whether absolutely, by way of security or otherwise, all or any
part of its rights or obligations under this Agreement without the prior
written consent of CIRA, which consent may be arbitrarily and unreasonably
withheld and any such purported assignment or transfer, or attempt to so
assign and transfer without CIRA's prior written consent, shall be of no
force and effect. In no event shall the Registrant or the Registrant's
administrators, executors or legal representatives be permitted to assign or
transfer the rights or obligations of the Registrant under this Agreement to
any Person who does not meet the Canadian Presence Requirements for
Registrants. 11.9 Entire Agreement. This Agreement (including the Rules
and Procedures) constitutes the entire agreement between the parties
pertaining to the subject matter of this Agreement and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or
written. There are no conditions, warranties, representations or other
agreements between the parties in connection with the subject matter of this
Agreement (whether oral or written, express or implied, statutory or
otherwise) except as specifically set out in this Agreement. 11.10
Waiver. A waiver of any default, breach or non-compliance under this Agreement
is not effective unless in writing and signed by the party to be bound by the
waiver. No waiver will be inferred from or implied by any failure to act or
delay in acting by a party in respect of any default, breach or non-
observance or by anything done or omitted to be done by the other party. The
waiver by a party of any default, breach or non-compliance under this
Agreement will not operate as a waiver of that party's rights under this
Agreement in respect of any continuing or subsequent default, breach or
non-observance (whether of the same or any other nature). 11.11
Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction will, as to that jurisdiction, be
ineffective to the extent of such prohibition or unenforceability and will be
severed from the balance of this Agreement, all without affecting the
remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction. 11.12
Governing Law. This Agreement will be governed by and construed in accordance
with the laws of the Province of Ontario and the laws of Canada applicable in
that Province and will be treated, in all respects, as an Ontario contract.
However, should the Consumer Protection Act (Quebec), R.S.Q., c. P-40.1 (the
"Act") apply to this Agreement, where the Registrant is a consumer pursuant to
the Act and is domiciled in the Province of Quebec at the time he/she enters
into this Agreement, this Agreement will, in such circumstances only, be
governed by and construed in accordance with the laws of the Province of
Quebec and the laws of Canada applicable in that Province. 11.13
Attornment. The Registrant agrees that: (a) any action or proceeding
instituted by the Registrant relating to this Agreement or its dealings with
CIRA shall be brought in a court of competent jurisdiction in the City of
Ottawa in the Province of Ontario and, for that purpose, the Registrant now
irrevocably and unconditionally attorns and submits to the jurisdiction of
such Ontario court; (b) the Registrant will not oppose the enforcement
against it in any other jurisdiction of any judgment or order duly obtained
from an Ontario court as contemplated by this Section 11.13. The Registrant
agrees that CIRA may, in CIRA's sole discretion, bring any action or
proceeding relating to this Agreement in a court of competent jurisdiction in
any jurisdiction in which the Registrant is incorporated, registered or
resident or in which the Registrant has a place of business or in a court of
competent jurisdiction in the City of Ottawa in the Province of Ontario. In
any such event, the Registrant agrees that (i) it irrevocably waives any
right to, and will not, oppose any such action or proceeding on any
jurisdictional basis, including forum non conveniens; and (ii) it will not
oppose the enforcement against it of any judgment or order duly obtained from
any such court as contemplated by this Section 11.13. 11.14 Force
Majeure. (1) If, as a result (in whole or in part) of Force Majeure (as
defined below), either party fails to perform or comply with any of its
obligations under this Agreement, such failure will not constitute a default
under or breach of this Agreement or give rise to any liability. The time for
performing or complying with the obligation in question will be extended by a
period equal to the period during which the Force Majeure operates to prevent
(in whole or in part) compliance. The party whose performance is affected by
the event of Force Majeure will promptly give notice to the other party of the
occurrence of any Force Majeure which prevents performance or compliance with
an obligation under this Agreement. (2) For the purposes of this
Agreement, "Force Majeure" means any cause beyond the reasonable control of
the party seeking to take advantage of such Force Majeure, including, without
limitation, any strike, lock-out, labour dispute, act of God, inability to
obtain labour, utilities or services, acts of any government authority, enemy
or hostile actions, sabotage, war, blockades, insurrections, riots,
epidemics, washouts, nuclear and radiation activity or fallout, civil
disturbances, explosions, fire or other casualty, unanticipated loads of
transactions in the Registry system, breaches of security, computer viruses,
faults in third party software and equipment and degradation or failure of
telecommunications services; provided that if any such event is reasonably
foreseeable by the party seeking to take advantage of such Force Majeure,
such party shall have taken all reasonable steps within its reasonable control
to avoid the occurrence of such Force Majeure. 11.15 Remedies
Cumulative. The rights and remedies of CIRA under this Agreement are
cumulative and no exercise or enforcement by CIRA of any right or remedy
hereunder shall preclude the exercise or enforcement by CIRA of any other
right or remedy hereunder or to which it is otherwise entitled by law to
enforce. 11.16 Language. The parties to this Agreement have required
that this Agreement and all deeds, documents and notices relating to this
Agreement, be drawn up in the English language. Les parties aux pre'sentes ont
exige' que le pre'sent contrat et tous autres contrats, documents ou avis
affe'rents aux pre'sentes soient re'dige's en langue anglaise. 11.17
Copy of Agreement. The Registrant acknowledges having downloaded, or requested
to be sent by email a copy of this Agreement (including the Rules of
Procedures) for its own records.
11058189.7
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