Case 3:18-cr-04683-GPC Document 149-2 Filed 01/23/20 PageID.1164 Page 1 of 145
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`
`Gary S. Lincenberg - SBN 123058
` glincenberg@birdmarella.com
`Naeun Rim - SBN 263558
` nrim@birdmarella.com
`BIRD, MARELLA, BOXER,
`WOLPERT, NESSIM, DROOKS,
`LINCENBERG & RHOW, P.C.
`1875 Century Park East, 23rd Floor
`Los Angeles, California 90067-2561
`Telephone: (310) 201-2100
`Facsimile: (310) 201-2110
`
`Attorneys for Petr Pacas
`
`David W. Wiechert - SBN 94607
`dwiechert@aol.com
`Jessica C. Munk - SBN 238832
`jessica@wmgattorneys.com
`William J. Migler - SBN 318518
`william@wmgattorneys.com
`WIECHERT, MUNK & GOLDSTEIN, PC
`27136 Paseo Espada, Suite B1123
`San Juan Capistrano, California 92675
`Telephone: (949) 361-2822
`
`Attorneys for Jacob Bychak
`
`
`
`
`Randy K. Jones - SBN 141711
`rkjones@mintz.com
`MINTZ, LEVIN, COHN, FERRIS,
`GLOVSKY AND POPEO, P.C.
`3580 Carmel Mountain Road, Suite 300
`San Diego, California 92130
`Telephone: (858) 314-1510
`
`Attorney for Mark Manoogian
`
`
`Whitney Z. Bernstein - SBN 304917
`wbernstein@bmkattorneys.com
`Thomas H. Bienert, Jr. - SBN 135311
`tbienert@bmkattorneys.com
`James Riddet - SBN 39826
`jriddet@bmkattorneys.com
`BIENERT | KATZMAN PC
`903 Calle Amanecer, Suite 350
`San Clemente, California 92673
`Telephone: (949) 369-3700
`
`Attorneys for Mohammed Abdul Qayyum
`
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`UNITED STATES OF AMERICA,
`
`Plaintiff,
`
`vs.
`
`JACOB BYCHAK, MARK
`MANOOGIAN, MOHAMMED
`ABDUL QAYYUM, AND PETR
`PACAS
`Defendants.
`
`
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
` CASE NO. 3:18-cr-04683-GPC
`
`DECLARATION OF NAEUN RIM
`IN SUPPORT OF DEFENDANTS’
`JOINT MOTION TO DISMISS
`WIRE FRAUD COUNTS 2-5 AND
`TO STRIKE WIRE FRAUD
`ALLEGATIONS IN COUNT 1 FOR
`FAILURE TO STATE AN
`OFFENSE
`
`Date: February 20, 2020
`Time: 1:00 PM
`Dept.: 2D
`
`Assigned to Hon. Gonzalo P. Curiel
`
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`Case No. 3:18-cr-04683-GPC
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`DECLARATION OF NAEUN RIM IN SUPPORT OF MOTION TO DISMISS WIRE FRAUD COUNTS
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`

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`DECLARATION OF NAEUN RIM
`I, Naeun Rim, declare as follows:
`I am an active member of the Bar of the State of California and a Principal
`1.
`with Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, A Professional
`Corporation, attorneys of record for Defendant Petr Pacas in this action. I make this
`declaration in support of Defendant Petr Pacas’ Motion to Dismiss Wire Fraud Counts 2
`to 5 and to Strike Wire Fraud Allegations in Count 1 for Failure to State and Offense
`Except for those matters stated on information and belief, I make this declaration based
`upon personal knowledge and, if called upon to do so, I could and would so testify.
`Attached as Exhibit A is a true and correct copy of a Registry Service
`2.
`Agreement (“RSA”) template dated March 10, 2011, by American Registry for Internet
`Numbers, Ltd (“ARIN”), produced to Defendants by ARIN as Bates numbers ARIN-
`BYCHAK 0093-101.
`Attached as Exhibit B is a true and correct copy of an RSA template dated
`3.
`June 18, 2004, produced to Defendants by ARIN as Bates numbers
`ARIN_BYCHAK_0051-58.
`Attached as Exhibit C is a true and correct copy of an RSA template dated
`4.
`October 31, 2007, by ARIN and produced to Pacas as Bates numbers
`ARIN_BYCHAK_0123-127.
`Attached as Exhibit D is a true and correct copy of a Federal
`5.
`Communications Commission (“FCC”) Staff Working Paper by Robert Cannon and
`produced to Defendants by ARIN as Bates numbers ARIN_BYCHAK_0272-302.
`Attached as Exhibit E is a true and correct copy of an article entitled
`6.
`“Guidance from ARIN on Legal Aspects of the Transfer of Internet Protocol Numbers”
`published in Business Law Today and produced to Defendants by ARIN as Bates numbers
`ARIN_BYCHAK_0188-192.
`Attached as Exhibit F is a true and correct copy of an article entitled
`7.
`“Internet Protocol Numbers and the American Registry for Internet Numbers…”
`Case No. 3:18-cr-04683-GPC
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`DECLARATION OF NAEUN RIM IN SUPPORT OF MOTION TO DISMISS WIRE FRAUD COUNTS
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`published in Bloomberg BNA and produced to Defendants by ARIN as Bates numbers
`ARIN_BYCHAK_0193-197.
`Attached as Exhibit G is a true and correct copy of a letter from the National
`8.
`Telecommunications and Information Administration and produced to Defendants by
`ARIN as Bates numbers ARIN_BYCHAK_0001-02.
`Attached as Exhibit H is a true and correct copy of a letter from Canada’s
`9.
`Department of Industry regarding Case No. 09-10138 (KG) and produced to Defendants
`by ARIN as Bates numbers ARIN_BYCHAK_0269-271.
`10. Attached as Exhibit I is a true and correct copy of the transcript for the April
`30, 2019, hearing in this matter.
`I declare under penalty of perjury that the foregoing is true and correct, and that I
`executed this declaration on January 23, 2020, at Los Angeles, California.
`
`
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`s/ Naeun Rim
`
`Naeun Rim
`
`3624658.2
`Case No. 3:18-cr-04683-GPC
`3
`DECLARATION OF NAEUN RIM IN SUPPORT OF MOTION TO DISMISS WIRE FRAUD COUNTS
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`Case 3:18-cr-04683-GPC Document 149-2 Filed 01/23/20 PageID.1167 Page 4 of 145
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`CERTIFICATE OF SERVICE
`Counsel for Defendant certifies that the foregoing pleading has been electronically
`
`served on the following parties by virtue of their registration with the CM/ECF system:
`Sabrina L. Feve
`Assistant U.S. Attorney
`sabrina.feve@usdoj.gov
`
`Melanie K. Pierson
`Assistance U.S. Attorney
`melanie.pierson@usdoj.gov
`
`Robert Ciaffa
`Assistant U.S. Attorney
`robert.ciaffa@usdoj.gov
`
`Respectfully submitted,
`
`Gary S. Lincenberg
`Naeun Rim
`Bird, Marella, Boxer, Wolpert, Nessim,
`Drooks, Lincenberg & Rhow, P.C.
`
`
`
`
`DATED: January 23, 2020
`
`By:
`
`/s/ Naeun Rim
`Naeun Rim
`
`Attorneys for Petr Pacas
`
`Case No. 3:18-cr-04683-GPC
`4
`DECLARATION OF NAEUN RIM IN SUPPORT OF MOTION TO DISMISS WIRE FRAUD COUNTS
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`EXHIBIT A
`
`5
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`

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`Case 3:18-cr-04683-GPC Document 149-2 Filed 01/23/20 PageID.1169 Page 6 of 145
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`RSA: Version 10.2 (10 March 2011)
`
`AMERICAN REGISTRY FOR INTERNET NUMBERS, LTD.
`SERVICE AGREEMENT
`
`This SERVICE AGREEMENT ("Agreement") is made by and between the AMERICAN REGISTRY FOR
`INTERNET
`NUMBERS,
`LTD.
`("ARIN"),
`a
`Virginia
`nonprofit
`corporation,
`and
`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ' ("Applicant").
`ARIN will not accept any alterations to this Agreement. Applicant must return the entire Agreement,
`including a completed signature page, to ARIN to indicate its acceptance, without modification, of all the
`terms and conditions of the Agreement. Applicant may return the signed Agreement in PDF form.
`
`1.
`
`INTRODUCTION
`
`ARIN is a Regional Internet Registry serving Canada, the United States, and specific designated
`islands in the Caribbean Sea and North Atlantic Ocean, and is responsible for the registration,
`administration, and stewardship of Internet number resources in these geographic areas.
`Applicant must submit this Agreement and any requested accompanying information to ARIN to
`apply to receive and use certain services ("Services") from ARIN, which may include, without
`limitation, an allocation/assignment of IP address space, assignment of Autonomous System
`numbers ("ASNs"), inverse addressing on network blocks, maintenance of resource records, and
`administration of IP address space. Allocation/assignment of IP address space and assignment of
`ASNs shall hereinafter be defined as "number resources."
`
`2. AUTHORITY TO MODIFY AGREEMENT
`
`BECAUSE OF THE NECESSARY ROLE THAT ARIN PERFORMS FOR THE INTERNET
`COMMUNITY, ARIN RESERVES THE RIGHT TO MODIFY THIS AGREEMENT AT ANY TIME.
`ARIN WILL PROVIDE NOTIFICATION OF ANY MODIFICATION(S) VIA ELECTRONIC MAIL TO
`THE CURRENTLY REGISTERED ADMINISTRATIVE POINT OF CONTACT. FOLLOWING
`ITS
`THIS ELECTRONIC NOTIFICATION, ARIN WILL POST THE MODIFICATION(S) ON
`WEBSITE. CHANGES WILL BE EFFECTIVE AFTER BEING POSTED ON ARIN'S WEBSITE
`FOR 30 DAYS AND WILL BE APPLIED TO ALL APPLICANTS OR PERSONS RECEIVING
`SERVICES. CONTINUED RECEIPT OR USE OF THE SERVICES CONSTITUTES
`APPLICANT'S ACCEPTANCE OF THE CHANGES.
`
`3. EVALUATION AND ACCEPTANCE
`
`Following Applicant's submission of a completed application, ARIN will evaluate Applicant's
`request for Services. Evaluation may require additional documentation to support the application
`such as, but not limited to, business plans, management documentation, state registration, Dun &
`Bradstreet and/or taxpayer information, and/or registration under the province or country in which
`the entity is registered for verification purposes.
`If ARIN, in its sole, exclusive, and reasonable
`discretion, applying ARIN's Number Resource Policy Manual, Guidelines, and Procedures
`(collectively, the "Policies"), as published on ARIN's website, located at "http://www.arin.nef' (the
`"Website"), and internal verification process, determines that it will provide the Services to
`Applicant, ARIN shall provide written notice to Applicant of its willingness to do so, and ARIN will
`promptly commence providing the Services to Applicant in accordance with the terms and
`conditions of this Agreement. If ARIN, in its sole, exclusive, and reasonable discretion, applying
`its published Policies and internal verification process, determines that it will not provide the
`Services, it will provide written notice to Applicant of its decision. If, at any point, including during
`the application process and/or the pendency of this Agreement, Applicant actively misrepresents,
`falsifies, or otherwise fraudulently provides information, ARIN may immediately terminate this
`Agreement.
`
`4. CONDITIONS OF SERVICE
`
`- 1 -
`
`ARIN BYCHAK 0093
`-
`-
`
`6
`
`

`

`Case 3:18-cr-04683-GPC Document 149-2 Filed 01/23/20 PageID.1170 Page 7 of 145
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`R A: Ver ion 10.2 (10 March 2011)
`
`(a) Provision. Subject to ARIN's agreement to provide the Services and Applicant's ongoing
`compliance with its obligations under this Agreement. including, without limitation, the timely
`payment of the Fees (as defined below), ARIN shall provide the Services to Applicant in
`accordance with this Agreement and the Policies.
`
`(b) Change Request. To change the Services that it receives from ARIN, Applicant must provide
`ARIN with written notice (entitled a "Change Request"). If ARIN, In its sole, exclusive, and
`reasonable discretion, determines that it will provide the Services to Applicant as set forth in the
`Change Request, ARIN will commence providing the Services as modified to Applicant in
`accordance with the terms and conditions of this Agreement. If ARIN, in its sole, exclusive, and
`reasonable discretion, determines that it will not provide the Services as requested by Applicant
`to be modified, it will provide written notice to Applicant that it will not provide Services in
`accordance with the Change Request.
`
`(c) Cooperation. During the term of this Agreement, Applicant shall provide ARIN complete, up(cid:173)
`to-date, and accurate information, assistance, and cooperation that ARIN reasonably requests in
`ARIN's provision of the Services to Applicant, including, without limitation, during ARIN's review
`of Applicant's utilization of number resources. Applicant shall promptly notify ARIN If any of its
`If Applicant does not provide ARIN with all
`information changes during the Agreement.
`information, assistance, and cooperation that ARIN reasonably requests, ARIN may: (i) take such
`failure into account in refusing Applicant's future allocation/assignment of number resources;
`and/or (ii) terminate this Agreement and revoke and reclaim Applicant's number resources.
`
`(d) Prohibited Conduct. In using the Services, Applicant shall not: (i} disrupt or interfere with the
`security or use of the Services; (ii) violate any applicable laws, statutes or regulations; or (iii)
`If a definitive
`assist any third party in engaging in any activity prohibited by this Agreement.
`finding of a violation of law or regulation is established by a decision of a national, state, or other
`government authority regarding any of (i) through (iii), ARIN will follow such decisions and will
`cooperate with all government inquiries that utilize legally appropriate methods to obtain
`information from ARIN.
`
`(e) Content Control. Applicant acknowledges that ARIN does not have the ability to control or
`influence content accessible through or facilitated by those who receive number resources,
`directly or Indirectly, from ARIN.
`
`5. USE OF THE ARIN DATABASE
`
`(a) Authorization. The Administrative Point of Contact ("POC") will be the principal point of
`contact between Applicant and the ARIN database, and have the sole right to designate other
`qualifying POCs of Applicant with authority to modify the ARIN database ("Authority"). The
`Administrative POC will also facilitate Applicant's compliance with the terms and conditions of this
`Section 5. Applicant will provide ARIN with any and all documentation and information regarding
`the Administrative POC that ARIN reasonably requests. Applicant must notify ARIN in writing
`immediately if: (i) the relationship an employee with Authority has with Applicant is or will be
`terminated; (ii) an employee with Authority will have that Authority revoked; (iii) Applicant has
`reason to believe that an employee with Authority has granted or will grant a third party
`unauthorized access to the ARIN database; (iv) Applicant has any reason to believe that an
`employee with Authority should not be trusted; or (v) Applicant wants to designate another
`Administrative POC. Notices to ARIN under this Section must be given by e-mail to
`hostmaster@arin.net or submitted through an authorized account via ARIN Online and will be
`effective when acknowledged as received by ARIN .
`
`(b) Responsibility for Directory Services Data. Applicant is responsible for the timely and
`accurate maintenance of directory services data (WHOIS), as well as data concerning any
`organization to which it further sub-delegates number resources.
`
`- 2 -
`
`ARIN_ BYCHAK_ 0094
`
`7
`
`

`

`Case 3:18-cr-04683-GPC Document 149-2 Filed 01/23/20 PageID.1171 Page 8 of 145
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`RSA: Version 10.2 (10 March 2011)
`
`(c) Applicant Liability for Unauthorized Acts or Omissions. Applicant is solely and exclusively
`responsible for all acts and omissions undertaken by any of its POCs and/or employees with
`law or in fact. Applicant is solely and exclusively
`Authority, whether or not authorized in
`responsible for the security of its access to and use of number resources in the ARIN database
`and any loss or damage that Applicant suffers based on any unauthorized access thereto.
`
`6. FEES AND PAYMENTS
`
`(a) Fee Schedule. As a condition precedent to ARIN's duty to provide the Services, Applicant
`shall pay ARIN for providing the Services in accordance with ARIN's Fee Schedule, which is
`available on the Website. From time to time, during the term of this Agreement and as it may
`renew, ARIN will have the right to change the amount of the fees or institute new fees relating to
`the Services.
`
`(b) No Refunds. All fees paid by Applicant to ARIN are deemed fully earned upon receipt and are
`nonrefundable.
`
`(c) Registration Fees. Prior to ARIN providing Applicant with its requested allocation/assignment
`of number resources, Applicant shall pay ARIN the applicable "registration fee," as set forth in the
`Fee Schedule, as well as any outstanding fees for other resources received from ARIN. Applicant
`shall also pay ARIN the applicable "annual renewal fee," if any, as set forth in the Fee Schedule,
`at least five (5) days prior to the end of the anniversary month of ARIN's first issuance of the
`Services to Applicant (e.g., ARIN's initial allocation/assignment of number resources to Applicant)
`occurs. If, for any reason, the Applicant has not made prompt payment, and/or ARIN is unable to
`contact the Applicant, ARIN has the right to take the following actions if the invoice is overdue: (i)
`stop providing Services; or (ii) terminate this Agreement and revoke the number resources
`previously allocated or assigned. Any Applicant whose Services were stopped pursuant to 6(c)(i)
`may have the Services restored if it brings its account current before revocation. Any number
`resources revoked pursuant to 6(c)(ii) shall be held by ARIN for a minimum 6-month period from
`the date of revocation before they are reissued. Any Applicant whose number resources have
`not been reissued by ARIN may restore the Services related to these number resources and have
`the revocation nullified if it contacts ARIN, brings its account current, signs a revised Agreement,
`and begins prepayment for all future Services.
`
`7. POLICIES
`
`Pursuant to ARIN's Policy Development Process, ARIN maintains the Policies and may, at any
`time in its sole and absolute discretion, amend the Policies, implement new policies (which, once
`implemented, will be considered Policies), or make certain Policies obsolete. Such amendments
`or new Policies shall be binding upon Applicant immediately after they are posted on the Website.
`Applicant acknowledges and agrees it has read, understands, and agrees to be bound by and
`comply with the Policies, as amended.
`
`8. REVIEW OF APPLICANT'S NUMBER RESOURCES
`
`ARIN may review, at any time, Applicant's use of previously allocated or assigned number
`resources or Services received from ARIN to determine if Applicant is complying with this
`Agreement and the Policies and is using the Services for their intended purposes. Without
`limiting the foregoing, if Applicant is a holder of a direct allocation or assignment from ARIN,
`Applicant agrees that it will use the number resources solely for uses consistent with its
`application and this Agreement, including, for example, its internal infrastructure or to provide
`Internet access to its customer base. If ARIN determines that the number resources or any other
`Services are not being used in compliance with this Agreement, the Policies, or the purposes for
`which they are intended, ARIN may: (i) revoke the number resources; (ii) cease providing the
`Services to Applicant; and/or (iii) terminate this Agreement.
`
`- 3 -
`
`ARIN BYCHAK 0095
`
`8
`
`

`

`Case 3:18-cr-04683-GPC Document 149-2 Filed 01/23/20 PageID.1172 Page 9 of 145
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`RSA: Version 10.2 (10 March 2011)
`
`(c) Applicant Liability for Unauthorized Acts or Omissions. Applicant is solely and exclusively
`responsible for all acts and omissions undertaken by any of its POCs and/or employees with
`law or in fact. Applicant is solely and exclusively
`Authority, whether or not authorized in
`responsible for the security of its access to and use of number resources in the ARIN database
`and any loss or damage that Applicant suffers based on any unauthorized access thereto.
`
`6. FEES AND PAYMENTS
`
`(a) Fee Schedule. As a condition precedent to ARIN's duty to provide the Services, Applicant
`shall pay ARIN for providing the Services in accordance with ARIN's Fee Schedule, which is
`available on the Website. From time to time, during the term of this Agreement and as it may
`renew, ARIN will have the right to change the amount of the fees or institute new fees relating to
`the Services.
`
`(b) No Refunds. All fees paid by Applicant to ARIN are deemed fully earned upon receipt and are
`nonrefundable.
`
`(c) Registration Fees. Prior to ARIN providing Applicant with its requested allocation/assignment
`of number resources, Applicant shall pay ARIN the applicable "registration fee," as set forth in the
`Fee Schedule, as well as any outstanding fees for other resources received from ARIN. Applicant
`shall also pay ARIN the applicable "annual renewal fee," if any, as set forth in the Fee Schedule,
`at least five (5) days prior to the end of the anniversary month of ARIN's first issuance of the
`Services to Applicant (e.g., ARIN's initial allocation/assignment of number resources to Applicant)
`occurs. If, for any reason, the Applicant has not made prompt payment, and/or ARIN is unable to
`contact the Applicant, ARIN has the right to take the following actions if the invoice is overdue: (i)
`stop providing Services; or (ii) terminate this Agreement and revoke the number resources
`previously allocated or assigned. Any Applicant whose Services were stopped pursuant to 6(c)(i)
`may have the Services restored if it brings its account current before revocation. Any number
`resources revoked pursuant to 6(c)(ii) shall be held by ARIN for a minimum 6-month period from
`the date of revocation before they are reissued. Any Applicant whose number resources have
`not been reissued by ARIN may restore the Services related to these number resources and have
`the revocation nullified if it contacts ARIN, brings its account current, signs a revised Agreement,
`and begins prepayment for all future Services.
`
`7. POLICIES
`
`Pursuant to ARIN's Policy Development Process, ARIN maintains the Policies and may, at any
`time in its sole and absolute discretion, amend the Policies, implement new policies (which, once
`implemented, will be considered Policies), or make certain Policies obsolete. Such amendments
`or new Policies shall be binding upon Applicant immediately after they are posted on the Website.
`Applicant acknowledges and agrees it has read, understands, and agrees to be bound by and
`comply with the Policies, as amended.
`
`8. REVIEW OF APPLICANT'S NUMBER RESOURCES
`
`ARIN may review, at any time, Applicant's use of previously allocated or assigned number
`resources or Services received from ARIN to determine if Applicant is complying with this
`Agreement and the Policies and is using the Services for their intended purposes. Without
`limiting the foregoing, if Applicant is a holder of a direct allocation or assignment from ARIN,
`Applicant agrees that it will use the number resources solely for uses consistent with its
`application and this Agreement, including, for example, its internal infrastructure or to provide
`Internet access to its customer base. If ARIN determines that the number resources or any other
`Services are not being used in compliance with this Agreement, the Policies, or the purposes for
`which they are intended, ARIN may: (i) revoke the number resources; (ii) cease providing the
`Services to Applicant; and/or (iii) terminate this Agreement.
`
`- 3 -
`
`ARIN BYCHAK 0095
`
`9
`
`

`

`Case 3:18-cr-04683-GPC Document 149-2 Filed 01/23/20 PageID.1173 Page 10 of 145
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`RSA: Version 10.2 (10 March 2011)
`
`9. NO PROPERTY RIGHTS
`
`Applicant acknowledges and agrees that the number resources are not property (real, personal,
`or intellectual) and that Applicant does not acquire any property rights in or to any number
`resources by virtue of this Agreement or otherwise. Applicant further agrees that it will not
`attempt, directly or indirectly, to obtain or assert any trademark, service mark, copyright, or any
`other form of property rights in any number resources in the United States or any other country.
`
`10. REPRESENTATIONS AND WARRANTIES
`
`(a) By Each Party. Each party represents and warrants to the other party that: (i) it has the full
`power and authority to enter into and perform its obligations under this Agreement; (ii) the assent
`to and performance by it of its obligations under this Agreement do not constitute a breach of or
`conflict with any other agreement or arrangement by which it is bound, or any applicable laws,
`regulations, or rules; and (iii) this Agreement constitutes a legal, valid, binding, and an executory
`obligation of the parties executing or assenting to this Agreement, enforceable in accordance with
`its terms and conditions.
`
`(b) By Applicant. Applicant hereby represents and warrants to ARIN that during the term of this
`Agreement: (i) it will not infringe the patent, copyright, trademark, trade secret, right of publicity, or
`other right of any third party in its use of the Services; and (ii) Applicant will comply with this
`Agreement, the Policies, and all applicable laws, rules, and regulations in its use of the Services.
`
`11. BANKRUPTCY
`
`If Applicant: (i) is dissolved (other than pursuant to a consolidation, amalgamation or merger); (ii)
`becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to
`pay its debts as they become due; (iii) files any petition under any chapter of the Bankruptcy
`Code or other insolvency or bankruptcy law; (iv) has a petition filed against it under any
`insolvency or bankruptcy law; (v) makes a general assignment for the benefit of creditors, has a
`receiver appointed for it, or a trustee takes possession of all or substantially all of Applicant's
`assets; or (vi) ceases or affirmatively indicates its intent to cease its normal business operations
`(each of the foregoing, a "Bankruptcy Event"), Applicant will notify ARIN immediately. Upon such
`notice, or if ARIN otherwise learns of the occurrence of any of the foregoing events, ARIN may
`intervene in any such bankruptcy or insolvency proceeding or take other appropriate, lawful
`action to preserve its rights under this Agreement and the Policies, and its ability to provide the
`Services to its other users, including, without limitation: (i) revoking the number resources
`assigned to Applicant; and/or (ii) terminating this Agreement. Applicant agrees to consent to
`ARIN's intervening in any such bankruptcy court proceeding so that ARIN can protect its rights
`under this Agreement with respect to the Policies, number resources, and any other rights ARIN
`has under this Agreement. Applicant acknowledges and agrees that this Agreement is executory.
`Applicant acknowledges and agrees that it holds no title or property interest in the number
`resources and such number resources do not, and shall not, constitute property of the Applicant's
`bankruptcy estate within the meaning of Section 541 of Title 11 of the United States Code (the
`"Bankruptcy Code"). Applicant hereby acknowledges and agrees that, upon the occurrence of a
`Bankruptcy Event, such Bankruptcy Event or any other event of default under this Agreement
`shall constitute "cause" pursuant to Bankruptcy Code Section 362(d) for granting ARIN relief from
`the automatic stay or any other applicable injunction to exercise its rights and remedies under this
`Agreement, and Applicant shall, and hereby does, consent to such relief.
`
`12. INDEMNIFICATION
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`Applicant shall indemnify, defend, and hold ARIN and its employees, representatives, agents,
`attorneys, affiliates, trustees, directors, officers, and managers, and members (the "Indemnified
`Parties") harmless from any damage, loss, cost, or expense (including without limitation,
`attorneys' fees and costs) incurred by an Indemnified Party or in connection with any claim,
`demand, or action ("Claim") brought or asserted against any of the Indemnified Parties alleging
`facts or circumstances that would constitute a breach of any provision of this Agreement by
`Applicant, or its employees or contractors, or arising from, relating to, or connected with: (i)
`unauthorized access to or use of the ARIN database by Applicant or any of its current or former
`employees, representatives, agents, attorneys, affiliates, directors, officers, POCs, or managers;
`(ii) unauthorized access to or use of Applicant's information or number resources in the ARIN
`database; or (iii) Applicant's use of the Services.
`If Applicant
`is obligated
`to provide
`indemnification pursuant to this provision, ARIN may, in its sole and absolute discretion, control
`If ARIN permits Applicant to
`the disposition of any Claim at Applicant's sole cost and expense.
`control the disposition of any Claim, Applicant shall not settle, compromise, or in any other
`manner dispose of any Claim without the prior written consent of ARIN. Applicant agrees to notify
`ARIN promptly of the assertion against it or any other person of any claim or the commencement
`of any action or proceeding relating to any transaction contemplated by this Agreement, whether
`or not an Indemnified Party is named in the claim or action.
`
`13. DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS
`
`(a) DISCLAIMER OF WARRANTIES. ARIN PROVIDES THE SERVICES ON AN "AS-IS" BASIS.
`ARIN DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR THEIR USE:
`(i) WILL BE UNINTERRUPTED, (ii) WILL BE FREE OF DEFECTS, INACCURACIES, OR
`ERRORS, (iii) WILL MEET APPLICANT'S REQUIREMENTS, OR (iv) WILL OPERATE IN THE
`CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE APPLICANT USES. ARIN
`MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THIS AGREEMENT,
`AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT
`FITNESS
`FOR A PARTICULAR
`PURPOSE,
`LIMITATION, WARRANTIES OF
`MERCHANTABILITY, AND/OR NON-INFRINGEMENT.
`
`(b) EXCLUSION OF DAMAGES. ARIN WILL NOT BE LIABLE TO APPLICANT OR ANY THIRD
`PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR
`SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO LOST
`PROFITS, LOST DATA, OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO, OR
`CONNECTED WITH THE SERVICES, BASED ON ANY CAUSE OF ACTION, EVEN IF
`ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
`
`(c) LIMITATION OF LIABILITY. EXCEPT IN THE EVENT OF A MATERIAL BREACH OF ARIN'S
`REPRESENTATIONS AND WARRANTIES UNDER THIS AGREEMENT, IN NO EVENT WILL
`ARIN'S LIABILITY TO APPLICANT OR ANY THIRD PARTY EXCEED THE GREATER OF
`(i) THE AMOUNT PAID BY APPLICANT TO ARIN DURING THE SIX MONTHS IMMEDIATELY
`PRECEDING THE EVENT THAT GIVES RISE TO SUCH LIABILITY OR (ii) $100.
`
`14. TERM AND TERMINATION.
`
`(a) Term. The term of this Agreement shall commence on the date Applicant first receives the
`Services (the "Effective Date") and shall continue for one year thereafter. This Agreement shall
`renew automatically on the anniversary date of the Effective Date for unlimited one-year terms,
`unless earlier terminated in accordance with the termination provisions of this Agreement or if
`Applicant gives written notice to ARIN of its desire not to renew this Agreement at least thirty (30)
`days prior to the expiration of the then-current term.
`
`(b) Termination for Cause by ARIN. ARIN shall have the right to terminate this Agreement for
`cause by providing written notice to Applicant in accordance with Section 15U): (i) for the reasons
`as set forth in Sections 3, 4(c), 4(d), 6(c), 8, 11, or if Applicant breaches any provision of Section
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`5; or (ii) if Applicant breaches any other provision of this Agreement and such breach remains
`uncured in ARIN's reasonable determination for thirty (30) days following Applicant's receipt of
`written notice of the breach from ARIN.
`
`(c) Termination for Cause by Applicant. Applicant shall have the right to terminate this
`Agreement for cause upon written notice if ARIN materially breaches this Agreement and such
`breach remains uncured for thirty (30) days after ARIN's receipt of written notice of the breach
`from Applicant.
`
`(d) Termination by Applicant with Return of Number Resources. Applicant shall have the right to
`terminate this Agreement if it returns, without limitation, all number resources assigned and/or
`allocated to it by ARIN.
`If Applicant wishes to terminate this Agreement in accordance with this
`Section 14(d), Applicant must submit thirty (30) days' prior written notice to ARIN of its intent to
`return, in total, its ARIN assigned or allocated number resources, and must return the resources
`within thirty (30) days of ARI N's receipt of written notice of the Applicant's intent. This Agreement
`remains in effect until the Applicant has returned all number resources to ARIN.
`
`(e) Effect of Termination. If this Agreement expires or is terminated: (i) ARIN will immediat