[ARIN-consult] Draft RSA Version 12 and LRSA Version 4
MLindsey at avenue4llc.com
Sun Aug 30 21:56:25 EDT 2015
The new RSA includes many positive changes. ARIN staff has improved the RSA considerably with this new draft. Restricting the application of the RSA (mostly) to the specific "Included Number Resources" is very helpful. Generally, collapsing the RSA and LRSA is directionally positive -- though several clauses in this new RSA (as discussed below) give rise to divergent concerns for legacy holders without existing contracts, and organizations that purchase their IPv4 numbers via the market.
There are, however, several remaining key issues with the RSA that should be addressed before a new version is adopted and applied to IPv4 number resources post-exhaustion.
Many of the rights and remedies favoring ARIN in this draft RSA make sense for resources allocated by ARIN from its free pool, but are ill suited to IPv4 numbers acquired in the transfer market or impose barriers for legacy holders to sign up. Buyers who spend considerable capital to acquire their numbers will, for example, be concerned about ARIN's right to materially alter the buyers' use and enjoyment of their purchased numbers via unilateral contract amendments, and will have trouble with ARIN's far-reaching termination rights that do not offer holders typical commercial notice and cure rights.
Below is a description of several specific concerns (and corresponding suggestions for further improvement).
(1) Section 1(e) allows ARIN to modify the Agreement either where the Board believes there is an immediate and compelling need to do so (as described therein) or upon recommendation of the Board and ratification by the Members.
Comment 1: ARIN should not have the right to unilaterally change agreements previously entered into with registrants. Registrants' existing terms and conditions with ARIN should only change when they affirmatively opt to replace their existing RSA with a new one. New RSAs or amendments to an existing RSA should only apply to resources registered after the new RSA is issued or amendments finalized (except where, as mentioned above, the registrant opts in to the new or amended RSA). The Agreement already allows ARIN to unilaterally modify its policies, which are incorporated into the RSA by reference. This alone affords ARIN reasonable operational flexibility, also, by operation of the order of precedence, provides Holders some contractual stability.
The rights and entitlements in IP addresses ought to be reasonably stable, particularly with respect to numbers purchased and registered via the transfer market. This clause represents a material deterrent for many legacy holders to sign the RSA, and will encourage some IP address purchasers in the secondary market to find ways to use of their purchased numbers without seeking registration transfers. This, in turn, introduces undesirable registry inaccuracies (e.g., the entity in actual control of the numbers does not appear in the WHOIS listing).
(2) Section 2(b) states that ARIN's obligation to provide Services to the Holder and grant the Holder rights under the Agreement is subject to the Holder's ongoing compliance with its obligations under the Service Terms.
Comment 2: ARIN has termination and suspension rights under Section 13(b) of the RSA that it is free to exercise if the Holder violates the RSA. The Agreement should not provide a backdoor opportunity for ARIN to avoid its obligations as permitted by 2(b). For these reasons, this particular condition should be stricken.
(3) Section 2(f) allows ARIN to take actions adverse to the Holder without notice, where it is following a governmental, court or similar Order concerning number resources (including terminating the RSA).
Comment 3: ARIN should be obligated to provide the Holder notice prior to taking any adverse action against the Holder unless such prior notice is expressly prohibited by the Order. This would provide an affected Holder a reasonable and appropriate opportunity to challenge or possibly avoid/mitigate the adverse effects of the actions.
(4) Section 3(c) makes the Holder solely and exclusively responsible for all acts and omissions of its POCs and/or others acting on behalf of the Holder.
Comment 4: Registrants do not always have full control over POC listings. A company may have an outdated POC and ARIN's processes present roadblocks to efficiently updating this information. This leads to situations where a POC without authority is still listed notwithstanding the organizations clear expectation and intent to remove such authority.
While it may be fair to presume that the Holder has control over the POC and the POC remains authorized to act for the Holder, this presumption should be rebuttable. If the Holder has put ARIN on notice that the POC is no longer authorized and presents evidence that the POC does not have authority to act on the Holder's behalf, then the Holder should not be held responsible by ARIN for the POC's actions, particularly where the failure to remove or update the POC is attributable to ARIN's actions (i.e., pending review or rejection of a transfer request, or OrgID recovery request).
(5) Section 4(a) provides that ARIN may change the fee schedule and will post changes on its website.
Comment 5: The language should be clear on when the fee changes are effective and in no event should fee changes be applied retroactively.
(6) Section 4(d) states that fees paid by the Holder to ARIN are non-refundable.
Comment 6: This clause should be subject to the Holder's right to terminate the agreement under Section 13(c) (in which case fees should be refundable where termination is effected mid-year).
(7) Section 7 requires the Holder to acknowledge that number resources are not property.
Comment 7: This issue has not yet been determined under law (and there is controlling precedent to support a conclusion contrary to the acknowledgment in Section 7). In fact, many registrants disagree with ARIN's position, and object to being asked to accept ARIN's policy position on the matter as a (non-negotiable) condition to registering their numbers with ARIN. This is very problematic for legacy holders contemplating whether to enter into an LRSA/RSA to update the registry, and for buyers of IP address space in the secondary market.
ARIN could preserve its legal and policy position on the matter, without using its contract and control over the IPv4 registry to either coerce registrants who object into conceding the issue or compelling organizations that have not considered that matter to unknowingly renounce their legal rights. This clause should be restructured as an acknowledgement of ARIN's (but not the Holder's) position. It would also be reasonable for it to make clear that neither ARIN nor the RSA conveys any property rights to Holders. Even with the incremental improvements in this version of the RSA, this clause represents a material deterrent for many legacy holders to sign the RSA with ARIN.
(8) Section 10 allows ARIN to take certain actions in the event a Holder files for bankruptcy, including intervening in the bankruptcy event, a declaration that none of the resources constitute property under bankruptcy law, and ARIN's ability to continue to exercise its rights and remedies even in the case of a stay or injunction.
Comment 8: Subsections (b), (c) and (d) should be stricken and the last two sentences under Subsection (a) substantially narrowed. This clause represents overreaching by ARIN. The fact of a bankruptcy in and of itself does not afford ARIN broad rights of relief. This is for the bankruptcy court to decide depending on the circumstances. The protection that ARIN seeks may be appropriate in the context of free resources allocated by ARIN but not for resources that are obtained in the transfer market. It could also be a deal breaker for legacy holders with bankruptcy experience.
(9) Section 11 provides for indemnification by Holder from any and all claims brought by a third party arising from or in connection with access or use of services (even access/use expressly authorized/permitted by ARIN) and any breach of the Service Terms.
Comment 9: Having some indemnification protection is understandable, but as written, Section 11 is overbroad. The scope of the holder's indemnity should be limited to specific claims arising from a Holder's patently bad acts, i.e., fraud or breach of Section 2(d) (prohibited conduct).
(10) Section 12(a) requires the Holder to acknowledge that the number resources and registration of the numbers is provided on an "as is" basis including all inherent risks and faults.
Comment 10: Registry accuracy should be a top priority, and ARIN should be accountable for its failures to deliver Services. An "AS IS" disclaimer in the contract signals that ARIN is not willing to accept a binding commitment to its members to maintain an accurate registry. In light of the very low liability cap in the RSA, ARIN should have a firm contractual obligation to deliver quality services to its members. With this in mind, the first sentence of Section 12(a) should be removed.
(11) Section 12(c) provides for a cap on liability that is the greater of $100 or 6 months' fees regardless off the nature of the failure and without exception.
Comment 11: There should be a larger cap on liability (e.g., $100,000) for damages that arise when a registrant is materially harmed because ARIN wrongfully either changed a registration or failed to make a change in accordance with its policies. These types of registry mistakes would, in the IPv4 context post exhaustion, have considerable financial consequences for the Holder. ARIN should have some skin in the game with respect to registry accuracy. Further, as matter of contract law and public policy, damages caused by a party's fraud or willful misconduct should also not be capped (in many jurisdictions such caps on liability are unenforceable).
(12) Section 13(b) provides ARIN very broad rights to suspend services or terminate the Agreement immediately upon written notice.
Comment 12: Immediate breach without an opportunity to cure is inappropriate except under the most extreme situations, like where ARIN faces imminent and material harm. IP number resources are critical to the operations of those that use them, and Holders should not be dispossessed of their numbers (even temporarily) without a fair and reasonable opportunity to contest/respond and (reasonably) cure their violation prior to the termination or suspension occurrence. With regard to the specific clauses that trigger immediate suspension, Section 7 (property rights waiver) seems out of place. It looks like an attempt to deter Holders from seeking judicial review of the "property" question. And Section 4 already addresses remedies for nonpayment (although 13(b) could appropriately provide for suspension pursuant to Section 4 without further notice).
(13) Section 13(b) also provides that if the Holder breaches any other provisions of the Agreement and the breach is uncured then ARIN has the right to terminate the Agreement for cause.
Comment 13: ARIN should be able to terminate under these circumstances only where the breach is material in nature. This is the common commercial standard.
(14) The last sentence of Section 13(c) provides that if an Arbitrator finds that the Holder has properly terminated for cause due to a breach by ARIN, then ARIN will not be obligated to provide services under the Agreement and the number resources "will resume the status they had prior to this Agreement."
Comment 14: It is unclear what this sentence means. The clause should clarify that (i) the Holder does not have to return the numbers, and (ii) that where the Agreement is voided, the Holder assumes the status of a legacy resource holder, i.e., no agreement with ARIN and no relinquishment of the number resources. When ARIN is in breach and the RSA is terminated as the result, the non-breaching Holder's on-going use of its number resources should not be in jeopardy.
(15) Section 13(e) provides that if an Agreement is terminated, then ARIN can immediately revoke the number resources and cease providing services without liability.
Comment 15: This provision should only apply where the termination is "for cause" by ARIN. The clause also should be clear that it does not apply in the case of a termination due to a force majeure. See also comment 14.
(16) Section 13(f) lists the terms that will survive termination of the Agreement.
Comment 16: Section 7, as currently written, should not survive with respect to legacy resources. Section 7 and 13(f) together result in legacy holders waiving their rights long after ARIN ceases providing the registration services that induced the legacy holder to enter into the LRSA/RSA in the first place. This is out of balance with the exchange of consideration between ARIN and legacy IP number resource holders.
(17) Section 13(j) provides that if a party terminates the Agreement due to a force majeure, then ARIN will cease providing services under the Agreement and the number resources will resume the status they had before the Agreement.
Comment 17: Same issues arise as discussed in comment 14 (with respect to 13(c)). In addition, termination by the holder for ARIN's breach - even if that breach is excused by a force majeure - should not result in revocation of the Holder's numbers.
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