This Domain Name Whois Privacy Protection Service Agreement ("Services Agreement") sets forth the terms and conditions of your use of the services offered by Domain Name Whois Privacy and serves to supplement the Registration Agreement ("Agreement") between you on the one hand and DomainName, Inc. ("DomainName") on the other hand. In this Agreement "you" and "your" refer to you or any agent, employee, servant or person authorized to act on your behalf, and the registrant listed in the WHOIS contact information for the domain name. "We", "us" and "our" refer to DomainName, Inc. ("DomainName"). This Services Agreement explains our obligations to you, and explains your obligations to us for privacy protection services offered by DomainName. When you use your account or permit someone else to use it to purchase or otherwise acquire access to additional DomainName service(s) or products or to cancel your DomainName service(s) (even if we were not notified of such authorization), this Services Agreement covers such service or actions.
DOMAIN NAME WHOIS PRIVACY PRIVACY PROTECTION. By subscribing to the Domain Name Whois Privacy Protection Services ("Domain Name Whois Privacy Services"), you are engaging us to register each domain name controlled by you ("Protected Domain") in the name of Domain Name Whois Privacy. Thus, your name, postal address, email address, phone and fax numbers shall be kept confidential, subject to Section 8 of this Service Agreement. The following information (and not your personal information) will be made publicly available in the "Whois" directory for each Protected Domain: a) Domain Name Whois Privacy email address, postal address and phone and facsimile number for the registrant, administrative, technical, and billing contacts ("Domain Name Whois Privacy Addresses"); b) The primary and secondary domain name servers you designate for the Protected Domain; c) The Protected Domain’s original date of registration and expiration date; and d) The identity of your registrar, domain name service provider (if different from registrar) and the status of the Protected Domain with the registrar (such as, "active," "Registrar Lock," "clienthold," etc.).
YOUR RIGHTS. You will retain the right to sell, transfer, or assign each Protected Domain. You will retain the right to control and set the DNS settings for the Protected Domain(s). You will retain the right to renew each Protected Domain name registration upon expiration (subject to your registrar’s applicable rules and policies). You will remain responsible to resolve any and all monetary or other legal claims that arise in connection with your Protected Domain(s), subject to the remaining provisions of this Services Agreement and the Agreement (collectively, "Agreements").
YOUR PERSONAL INFORMATION. You agree that for each Protected Domain, you will provide to us and maintain as current and accurate, the following information: a) Your name, address, email address, postal address, phone and fax numbers; b) The name, address, email address, postal address, phone and fax numbers for the Protected Domain’s administrative, technical, and billing contacts; and c) The primary and secondary domain name servers for the Protected Domain. You agree to: a) update this information immediately as it changes over time; b) respond within five (5) business days to any inquiries made by us to determine the validity of personal information provided by you; c) promptly respond to messages regarding correspondence addressed to or involving your Protected Domain(s), as more fully set forth in section 5 below. If you do not supply primary and secondary domain name servers, you agree that we may point your Protected Domain(s) to an IP address of our choosing until such time as you supply primary and secondary domain name servers.
YOUR REPRESENTATIONS & WARRANTIES. You represent and warrant that all information provided by you pursuant to this Services Agreement is truthful, complete, current and accurate and you represent and warrant that you will maintain all information in this status throughout the term of the Agreements. You also represent and warrant that you are using the Domain Name Whois Privacy Services in good faith and that you have no knowledge or reason to believe that your Protected Domain or the content found at any associated IP address infringes upon or conflicts with the legal rights of any third party or any third party’s trademark or trade name. You also warrant that neither the Domain Name Whois Privacy Services nor Protected Domain(s) will not be used in connection with any illegal or morally objectionable activity (as defined below in section 5), or, in connection with the transmission of unsolicited commercial email(s) ("Spam"). Further, you represent and warrant that you will not provide any third party with the Domain Name Whois Privacy Addresses for the purpose of having such third party transmit communications to you through us.
SUSPENSION OR TERMINATION OF Domain Name Whois Privacy Privacy Protection SERVICE AND DISCLOSURE OF YOUR PERSONAL INFORMATION. Notwithstanding your purchase of the Domain Name Whois Privacy Privacy Protection Services, we reserve the right in our sole judgment and discretion to disclose your personal protected information in the event any of the following occur:
If the Protected Domain(s) is (are) alleged to violate or infringe a third party’s trademark, trade name, copyright interests or other legal rights of third parties;
If you breach any provision of this Services Agreement;
If You breach any provision of the Agreement;
If necessary to comply with any applicable laws, government rules or requirements, subpoenas, court orders or requests of law enforcement;
If we are named as a defendant in, or investigated in anticipation of, any legal or administrative proceeding arising out of your use of the Domain Name Whois Privacy Services or a Protected Domain;
If necessary to comply with ICANN’s Dispute Resolution Policy or other policies promulgated by ICANN;
If necessary to avoid any financial loss or legal liability (civil or criminal) on our part our on the part of our parent companies, subsidiaries, affiliates, shareholders, agents, officers, directors and employees;
If necessary to protect the integrity and stability of the applicable domain name registry; or
if it comes to Backend Service Provider’s attention that you are alleged to be using the Domain Name Whois Privacy Services for purposes of engaging in, participating in, sponsoring or hiding your involvement in illegal or morally objectionable activities, including but not limited to, activities which are designed, intended to or otherwise: (i) appeal primarily to prurient interests; (ii) defame, embarrass, harm, abuse, threaten, or harass; (iii) violate state or federal laws of the United States and/or foreign territories; (iv) involve hate crimes, terrorism or child pornography; (v) are tortious, vulgar, obscene, invasive of a third party’s privacy, race, ethnicity, or are otherwise objectionable; (vi) impersonate the identity of a third party; (vii) harm minors in any way; or (viii) relate to or transmit viruses, Trojan Horses, access codes, backdoors, worms, timebombs or any other code, routine, mechanism, device or item that corrupts, damages, impairs, interferes with, intercepts or misappropriates any software, hardware, firmware, network, system, data or personally identifiable information.
FOREFEITURE OF FEES IN THE EVENT OF TERMINATION. In the event we take any of the actions set forth above or in the event you elect to cancel the Domain Name Whois Privacy Services for any reason, we will not refund any fees paid by you for the Domain Name Whois Privacy Services.
FORWARDING COMMUNICATIONS. You agree that we will review communications sent to the Domain Name Whois Privacy Addresses associated with Your Protected Domain. For communications received via certified or traceable courier mail (such as UPS, FedEx, or DHL), or first class U.S. postal mail which does not appear to be unsolicited commercial mail, we may either i) forward such communication to you or ii) we may attempt to communicate to you a scanned copy of a page of the communication to ascertain how you wish us to proceed with respect to that communication. You understand that we may, in our own judgment and discretion, elect to not forward to you such first class postal mail or email, fax, postal mail or telephone communications which appear to be unsolicited communications, which offer or advertize the sale of goods or services or which solicit charitable contributions, or communications which appear to arise from your use of the Domain Name Whois Privacy Services as a general mail forwarding service. You authorize us to either discard all such communications or return all such communications to sender unopened. You agree to waive any and all claims arising from your failure to receive communications directed to your domain name but not forwarded to you by us, including such failures which arise from our mistake of judgment made in good faith in determining whether a communication is or is not an unsolicited communication.
FORWARDING EMAIL COMMUNICATIONS. The Whois directory generally requires an email address for every purchased domain name registration. When you purchase Domain Name Whois Privacy Services, an email address will be automatically generated for the corresponding Protected Domain as follows:email@example.com, where yourdomain.com is the domain which you registered with us. Thereafter, when messages are sent to the email address listed in the Domain Name Whois Privacy Address, we will forward such messages to the email address you provided to us, in accordance with Section 2 of this Services Agreement. If such email address becomes non-functioning or if the email to such address bounces, we shall not be obligated to attempt to contact you through other means. You agree that we may elect in our sole discretion, to allow you to access the email server logs if available and view email information sent to the IDP Addresses, though such alternative means of servicing your Account is an option and not a requirement.
YOUR OBLIGATION TO RESPOND TO OUR COMMUNICATIONS. When we receive a communication to the Protected Domain, we will send an email to the email address you provided to us in accordance with Section 3 of this Services Agreement. The email message from us to you will identify the sender of the correspondence and the date received. As an alternative, you agree that we may allow you to access your account to view full or partial scanned copies of (non-email) communications sent to the Protected Addresses and that you may be required to interact with your account to have the physical originals of such communications forwarded to you and that if you do not interact with your account in the ways indicated upon accessing your account, that the communications may not be forwarded to you. In either event, you will have seventy-two (72) hours to decide whether to have the communication(s) forwarded. If you do not respond within this time period, the communication(s) will not be forwarded. Method of forward will be determined by us. Communication(s) may not be immediately forwarded upon your election; there may be a delay and communication(s) may be aggregated to be forwarded together. We may begin charging fees for forwarding communications or may change the method by which communications are forwarded without written notice.
YOUR FAILURE TO RESPOND TO OUR COMMUNICATIONS. In the event you do not respond to communications from us, irrespective of whether we are forwarding an e-mail or making an unrelated inquiry or communication, we may immediately reveal the information you provided in accordance with Section 2 of this Services Agreement and/or cancel the Domain Name Whois Privacy Services regarding either the Protected Domain in question or with respect to all of your Protected Domains, depending on the circumstances. This means the Whois directory will revert to displaying your name, postal address, email address and phone number.
LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES FOR ANY REASON WHATSOEVER RELATED TO THIS AGREEMENT, YOUR DOMAIN NAME REGISTRATION, THE Domain Name Whois Privacy SERVICES, YOUR USE OR INABILITY TO USE OUR WEB SITE(S) OR THE MATERIALS AND CONTENT OF THE WEB SITE(S) OR ANY OTHER WEB SITES LINKED TO SUCH WEB SITE(S) OR YOUR PROVISION OF ANY PERSONALLY IDENTIFIABLE INFORMATION TO BACKEND SERVICE PROVIDER OR ANY THIRD PARTY. THIS LIMITATION APPLIES REGARDLESS OF WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE. BECAUSE CERTAIN JURISDICTIONS DO NOT PERMIT THE LIMITATION OR ELIMINATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, OUR LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. IF ANY PROVISION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE UNENFORCEABLE, ONLY SUCH PROVISION SHALL BE REMOVED AND THE REMAINDER SHALL BE ENFORCED TO THE GREATEST EXTENT PERMITTED BY LAW.
YOU FURTHER UNDERSTAND AND AGREE THAT WE DISCLAIM ANY LOSS OR LIABILITY RESULTING FROM:
the inadvertent disclosure or theft of your personal information;
access delays or interruptions to our web site or the web sites of affiliated parties;
data non-delivery or inaccurate delivery between you and the providers of the Services, including the Domain Name Whois Privacy Services;
the failure for whatever reason to renew the Domain Name Whois Privacy Services;
the unauthorized use of Your Account or any of the providers of Services;
errors, omissions or misstatements by providers of Services, including the Domain Name Whois Privacy Services;
deletion of, failure to store, failure to process or act upon email messages sent to or forwarded to either you or the email address listed for your Protected Domain;
processing of updated information regarding your Account;
any act or omission caused by you or your agents (whether authorized by you or not).
YOU AGREE THAT, IN ANY EVENT, THE PRIMARY AND BACKEND SERVICE PROVIDERS’ RESPECTIVE MAXIMUM LIABILITY TO YOU SHALL BE CAPPED BY THE LESSER OF THE AMOUNT OF FEES PAID BY YOU TO EACH SERVICE PROVIDER IN THE PRECEDING YEAR WITH RESPECT TO THE SERVICES WHICH GAVE RISE TO THE LIABILITY OR $100.00 PER PROTECTED DOMAIN.
INDEMNITY AND DEFENSE. With respect to ICANN, the registry operators, and DomainName, as well as the contractors, agents, employees, officers, directors, shareholders, and affiliates of such parties, you agree to defend, release, indemnify, and hold such parties harmless from all liabilities, claims and expenses, including attorney’s fees and court costs, for third party claims relating to or arising under the Agreements, the Service(s) provided hereunder, or your use of the Service(s), including, without limitation, infringement by you, or by anyone else using the Service(s) we provide to you, of any intellectual property or other proprietary right of any person or entity, or from the violation of any of our operating rules or policies relating to the Service(s) provided. When we may be involved in a suit involving a third party and which is related to our Service(s) to you under these Agreements, we may seek written assurances from you in which you promise to defend, indemnify and hold us harmless from the costs and liabilities described in this paragraph. Such written assurances may include, in our sole discretion, the posting of a performance bond(s) or other guarantees reasonably calculated to guarantee payment. Your failure to provide such assurances may be considered by us to be a breach of these Agreements by you and may, in our sole discretion, result in loss of your right to control the disposition of domain name services for which you are the registrant and in relation to which we are the registrar of record. Moreover, should we be forced to defend ourselves in any action or legal proceeding in connection with any Domain Name Whois Privacy Services provided to you, you shall have sole responsibility to defend us against any such claim by legal counsel of our choosing. This indemnification is in addition to any indemnification required under the UDRP. The terms of this paragraph will survive any termination or cancellation of the Agreements. Moreover, you agree to release, defend, indemnify and hold harmless the Primary and Backend Service Providers, and their parent companies, subsidiaries, affiliates, shareholders, agents, directors, officers and employees and Your registrar, from and against any and all claims, demands, liabilities, losses, damages or costs, including reasonable attorney’s fees, arising out of or related in any way to the Agreements, the web sites of the Service Providers, your Account, and/or your use of your Protected Domain.
BACKEND SERVICE PROVIDER WARRANTY DISCLAIMER. THE BACKEND SERVICE PROVIDER, ITS PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, AGENTS, DIRECTORS, OFFICERS, AND EMPLOYEES EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, THE SERVICES PROVIDED HEREUNDER, THE WEB SITES OF THE BACKEND SERVICE PROVIDER OR ANY WEB SITES LINKED TO SUCH WEB SITES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ALL BACKEND SERVICE PROVIDER SERVICES, AS WELL AS THE BACKEND SERVICE PROVIDER WEB SITE, ARE PROVIDED "AS IS". YOUR SUBSCRIPTION TO AND USE OF BACKEND SERVICE PROVIDER’S SERVICES AND ITS WEB SITE ARE ENTIRELY AT YOUR RISK. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, IN WHICH EVENT THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU. IF ANY PROVISION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE UNENFORCEABLE, ONLY SUCH PROVISION SHALL BE REMOVED AND THE REMAINDER SHALL BE ENFORCED TO THE GREATEST EXTENT PERMITTED BY LAW.
GOVERNING LAW AND JURISDICTION FOR DISPUTES. Except as otherwise set forth in the UDRP or any similar ccTLD policy with respect to any dispute over a domain name registration this Services Agreement, your rights and obligations and all actions contemplated by this Services Agreement shall be governed by the laws of the United States of America and the State of California, as if the Services Agreement was a contract wholly entered into and wholly performed within the State of California. You agree that any action brought by you to enforce this Services Agreement or any matter brought by you and which is against or involves us and which relates to your use of the Services shall be brought exclusively in the United States District Court for the Central District of California, or if there is no jurisdiction in such court, then in a state court in Los Angeles County, State of California. You consent to the personal and subject matter jurisdiction of any state or Federal court in Los Angeles County, State of California in relation to any dispute between you and us under this Services Agreement. You agree that service of process on you by us in relation to any dispute arising under this Services Agreement may be served upon you by first class mail to the address listed by you in your account and/or domain name WHOIS information or by electronically transmitting a true copy of the papers to the email address listed by you in your account and/or domain name WHOIS information.
YOU AGREE TO WAIVE THE RIGHT TO TRIAL BY JURY IN ANY PROCEEDING THAT TAKES PACE RELATING TO OR ARISING OUT OF THIS AGREEMENT.
NOTICES: You agree that any notices required to be given under this Services Agreement by us to you will be deemed to have been given if delivered in accordance with the account and/or domain name WHOIS information you have provided.
LEGAL AGE. You attest that you are of legal age to enter into this Services Agreement.
FINAL AGREEMENT. This Services Agreement, the referenced agreements, the ICANN Policy and the UDRP, together with all modifications, constitute the complete and exclusive agreement between you and us, and supersede and govern all prior proposals, agreements, or other communications. This Services Agreement may not be amended or modified by you except by means of a written document signed by both you and an authorized representative of us.
NO AGENCY RELATIONSHIP. Nothing contained in this Services Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties hereto. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
WAIVER. The failure of us to require your performance of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by us of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
ENFORCEABILITY. In the event that any provision of this Services Agreement 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 Services Agreement unenforceable or invalid as a whole. We will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, our original objectives and intent as reflected in the original provision.
ASSIGNMENT AND RESALE. Except as otherwise set forth herein, your rights under this Services Agreement are not assignable or transferable. Any attempt by your creditors to obtain an interest in your rights under this Services Agreement, whether by attachment, levy, garnishment or otherwise, renders this Services Agreement voidable at our option.
FORCE MAJEURE. Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its control including, but not limited to: earthquake; flood; fire; storm; natural disaster; act of God; war; terrorism; armed conflict; labor strike; lockout; boycott; supplier failures, shortages, breaches, or delays; or any law, order regulation, direction, action or request of the government, including any federal, state and local governments having or claiming jurisdiction over DomainName, or of any department, agency, commission, bureau, corporation or other instrumentality of any federal, state, or local government, or of any civil or military authority; or any other cause or circumstance, whether of a similar or dissimilar nature to the foregoing, beyond the reasonable control of the affected party, provided that the party relying upon this section (i) shall have given the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, DomainName may immediately terminate this Services Agreement.
HEADINGS. The section headings appearing in this Services Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.