[ARIN-consult] Consultation on Registration Services Agreement 11.0 Now Open - corrected URL

[Ryan, Stephen]

Thoughtful comments deserving of careful evaluation. Thanks to Google.

Stephen M. Ryan
McDermott Will & Emery LLP
600 Thirteenth Street, N.W.
Washington, DC 20005-3096

sryan at mwe.com
(P) 202.756.8333
(F) 202.756.8087

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-----Original Message-----
From: arin-consult-bounces at arin.net [mailto:arin-consult-bounces at arin.net] On Behalf Of Mike Joseph
Sent: Monday, March 26, 2012 11:49 AM
To: arin-consult at arin.net
Subject: Re: [ARIN-consult] Consultation on Registration Services Agreement 11.0 Now Open - corrected URL

Google would like to propose the following changes to the new RSA draft:

1. Sec. 2(e): We propose a sentence at the end of this section that
allows ARIN, where possible, to give the Holder notice of any such
governmental or judicial inquiry or order. Suggested language:
"However, where legally permitted, ARIN will notify Holder of any such
court order or direction, and will give Holder the opportunity to
protect its interest in the Service before stopping any Service or
terminating this Agreement."

2. Sec. 11(a): Indemnification is a provision designed to deal with
third-party claims. A failure to make this explicit could possibly
give a right to recover under the indemnity clause for a breach of
contract. We would propose clarifying this by adding "by a third
party" after "brought or asserted."

3. Sec. 11(b): If a Holder is obligated to indemnify, then they will
most likely want to choose and direct their own counsel. Because the
Holder is indemnifying ARIN, ARIN does not need the ability to control
the disposition of the claim -- that is the role of the indemnifying
party. Therefore, we propose a provision like this: "ARIN has the
right to approve any counsel retained to defend against any claim in
which ARIN is named a defendant, and ARIN will not unreasonably
withhold such approval. ARIN has the right to control and participate
in the defense of any such claim concerning matters that relate to
ARIN, and Holder will not settle any such claim without ARIN's
reasonable consent. If, in ARIN's reasonable judgment, a conflict
exists between the interests of ARIN and Holder in such a claim, ARIN
may retain its own counsel whose reasonable fees will be paid by
Holder."

4. Sec. 11(c): As currently drafted, this provision casts a wide net.
Proposed rewrite: “Holder will provide written notice to ARIN promptly
of any Claim brought or asserted against any of the Indemnified
Parties alleging facts or circumstances that, in any way, whether
directly or indirectly, relate to, arise from, or may be connected
with the acts or omissions listed in Section 11(a) above.”

Thanks for your consideration of these proposed changes.

Mike Joseph
Google Network Engineering
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IRS Circular 230 Disclosure:  To comply with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained herein (including any attachments), unless specifically stated otherwise, is not intended or written to be used, and cannot be used, for the purposes of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter herein.
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This message is a PRIVILEGED AND CONFIDENTIAL communication. This message and all attachments are a private communication sent by a law firm and may be confidential or protected by privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of the information contained in or attached to this message is strictly prohibited.  Please notify the sender of the delivery error by replying to this message, and then delete it from your system.  Thank you.
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