WHOIS PRIVACY SERVICE AGREEMENT
PLEASE BE ADVISED THAT IF YOU ELECT TO USE THE WHOIS PRIVACY SERVICES AS SET FORTH HEREIN (“WHOIS PRIVACY SERVICES”), YOUR DOMAIN NAME REGISTRAR OR ITS AFFILIATES (“YOUR REGISTRAR”) WILL NOT ESCROW CERTAIN DOMAIN REGISTRATION INFORMATION.
PLEASE READ THIS WHOIS PRIVACY SERVICE AGREEMENT ("AGREEMENT") CAREFULLY. BY USING THE WHOIS PRIVACY SERVICES, YOU AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT. YOU AGREE THAT DPSI (DEFINED BELOW) MAY AMEND THIS AGREEMENT BY POSTING THE AMENDED AGREEMENT ON THE WEBSITE WHERE YOU OBTAINED THE WHOIS PRIVACY SERVICES. YOU AGREE THAT ANY NEW, DIFFERENT OR ADDITIONAL FEATURES THAT CHANGE THE WHOIS PRIVACY SERVICES WILL AUTOMATICALLY BE SUBJECT TO THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ANY SUBSEQUENT AMENDMENTS HERETO, DO NOT USE, ACCESS, OR CONTINUE TO USE THE WHOIS PRIVACY SERVICES. CONTINUED USE OF THE WHOIS PRIVACY SERVICES AFTER CHANGES TO THIS AGREEMENT HAVE BEEN POSTED CONSTITUTES YOUR ACCEPTANCE OF SUCH CHANGES.
This Agreement is by and between Domain Protection Services, Inc., a Nevada corporation ("DPSI"), the party who makes the Whois Privacy Services available to you, your heirs, executors, administrators, agents, successors and assigns ("You," "Your," and other appropriate formatives). This Agreement sets forth the terms and conditions of Your relationship with DPSI and Your use of the Whois Privacy Services. You acknowledge that You have read, understand and agree to be bound by all the terms and conditions of this Agreement for transactions entered into by: (i) You on Your behalf; (ii) anyone acting as Your agent; (iii) anyone who uses the account You establish to obtain the Whois Privacy Services, whether or not the transactions were on Your behalf and/or authorized by You. You agree that You will be bound by representations made by third parties You use to obtain the Whois Privacy Services. You further agree to abide by the terms and conditions promulgated by the Internet Corporation for Assigned Names and Numbers ("ICANN"), including the Uniform Domain Name Dispute Resolution Policy ("Dispute Resolution Policy," http://www.icann.org/dndr/udrp/policy.htm) any policy which ICANN may establish with respect to WHOIS information, and the terms and conditions of Your domain name registration with Your Registrar (the ICANN-accredited person or entity through which You register a domain name). This Agreement is in addition to domain name registration agreement(s) entered into by You and Your Registrar.
- THE WHOIS PRIVACY SERVICES
If you subscribe to the Whois Privacy Services, each domain name registration which you control and which You designate ("Whois Privacy Domains") will thereafter be registered in the name of DPSI, as registrant. Your name, postal address, email address, phone and fax numbers shall be kept confidential, subject to Section 5 of this Agreement. The following information (and not your personal information) will be made publicly available in the "Whois" directory for each Whois Privacy Domain:
- DPSI's email address, postal address and phone and facsimile number for the registrant, administrative, technical, and billing contacts ("Whois Privacy Addresses");
- The primary and secondary domain nameservers You designate for the Whois Privacy Domain;
- The Whois Privacy Domain's original date of registration and expiration date;
- The identity of Your Registrar, domain name service provider (if different from Your Registrar) and the status of the Whois Privacy Domain with the registrar (such as, "active," "Registrar Lock," "clienthold," etc.).
DPSI may modify its information from time to time in such a way which may constitute a "Change of Registrant" under ICANN’s Transfer Policy (the "Transfer Policy"). In such a case, You and DPSI explicitly opt out of any 60-day inter-registrar transfer lock that would otherwise be imposed under the Transfer Policy due to any such Change of Registrant. In addition, You and DPSI explicitly authorize the registrar of the Whois Privacy Domain to act as its "Designated Agent" (as defined in the Transfer Policy) to approve each "Change of Registrant" (as defined in the Transfer Policy) on its behalf.
While You will not be listed as the registrant for the Whois Privacy Domains, and other than as described in this Agreement, DPSI will not act to control the Whois Privacy Domain(s). You will retain the right to sell, transfer, or assign each Whois Privacy Domain; You will retain the right to control and set the DNS settings for the Whois Privacy Domain(s); You will retain the right to renew each Whois Privacy Domain name registration upon expiration (subject to Your Registrar's applicable rules and policies); and You will remain responsible to resolve any and all monetary or other legal claims that arise in connection with Your Whois Privacy Domain(s), subject to the remaining provisions of this Agreement.
IMPORTANT: THE WHOIS PRIVACY SERVICES ARE NOT A GENERAL MAIL FORWARDING SERVICE. You agree that You will not provide any third party with the Whois Privacy Addresses for the purpose of having such third party transmit communications to you through DPSI. Third parties may obtain the Whois Privacy Addresses listed in the Whois directory by their own initiative, but You agree that You will not be the one to provide the Whois Privacy Addresses to such third parties.
PROVISION OF PERSONAL INFORMATION
You agree that for each Whois Privacy Domain, You will provide to DPSI and maintain as current and accurate, the following information:
- Your name, address, email address, postal address, phone and fax numbers;
- The name, address, email address, postal address, phone and fax numbers for the Whois Privacy Domain's administrative, technical, and billing contacts;
- The primary and secondary domain nameservers for the Whois Privacy Domain;
You agree to: (i) update this information immediately as it changes over time; (ii) respond within five (5) business days to any inquiries made by DPSI to determine the validity of personal information provided by You; (iii) promptly respond to messages regarding correspondence addressed to or involving Your Whois Privacy Domain(s), as more fully set forth in section 6 below. If You do not supply primary and secondary domain nameservers, You agree that DPSI may point Your Whois Privacy Domain(s) to an IP address of DPSI’s choosing until such time as You supply primary and secondary domain nameservers.
RENEWALS AND FEES
If You have selected automatic renewal of the Whois Privacy Services through the account which you use to manage Your Whois Privacy Services ("Your Account"), You agree i) that the Whois Privacy Services shall be automatically renewed 30 days prior to the end of Your Whois Privacy Services term, ii) that DPSI will attempt to charge the credit card You have on file with DPSI at the then current rates, and iii) You waive any requirement to obtain you ongoing affirmative consent to any such automatic renewal. If you do not wish to automatically renew the Whois Privacy Services, You agree that the exclusive method for communicating this to DPSI shall be by logging into Your Account to ensure that the auto-renewal or renewal option is not selected. You understand that You must do this at least 31 days prior to the end of the then current Whois Privacy Service term. It is Your responsibility to keep Your credit card information current and accurate, including the expiration date. If DPSI is unable to collect renewal or other fees, you agree that DPSI may contact You, but is not obliged to do so, and You agree that DPSI may suspend or terminate the Whois Privacy Services as a result of inability to obtain payment.
If DPSI elects to begin charging fee(s) to forward communications to You (see below), You agree that you may be required to pay such fees before the communications will be forwarded. DPSI may change its service and forwarding fees at any time. DPSI may also charge reasonable fees for administrative tasks outside the scope of regular services. These may include, but are not limited to, customer service issues that require personal service and disputes that require legal services. You are responsible for paying all fees and taxes associated with using DPSI's services. Payment shall be made by credit card unless other options are indicated in Your Account. You agree that charges may appear on the credit card statement under a descriptive provider identifier, such as "Domain Name Registration Services." Fees are non-refundable. If for any reason there is a charge back for any fee previously charged to the credit card by DPSI, You agree that DPSI may, without notice, pursue all available remedies in order to obtain payment. Without limitation on other remedies which may be available under such circumstances, You agree that DPSI may assume complete ownership of the Whois Privacy Domain(s), that the Whois Privacy Domain(s) may be sold to third parties, or that the Whois Privacy Domain(s) may be pointed to IP numbers of DPSI's choosing, and that DPSI may immediately cancel Your Account and all services provided to You.
IMPORTANT TERMS REGARDING RELATIONSHIP OF TERM OF WHOIS PRIVACY SERVICES AND REGISTRATION TERM OF AN ASSOCIATED WHOIS PRIVACY DOMAIN: You understand that your Whois Privacy Services term begins on the date Your attempt to procure the Whois Privacy Services is accepted by DPSI and that it shall run for the unit of time which You order (typically, this would be one year). You understand that the Whois Privacy Services term may be different than the registration term of the Whois Privacy Domain which is associated with the Whois Privacy Services. If a Whois Privacy Domain expires and is deleted before the end of the term of the associated Whois Privacy Services, then the Whois Privacy Services associated with the domain will end when the Whois Privacy Domain is deleted and You understand that there will be no refund for any resulting unused portion of a Whois Privacy Services term. If the Whois Privacy Services term ends while the registration term for a Whois Privacy Domain is still ongoing, then the Whois Privacy Services will no longer be provided, the personal information specified in section 2 shall be listed in the WHOIS output for the (then former) Whois Privacy Domain, and the communications forwarding services specified in section 6 will no longer be provided.
YOUR REPRESENTATIONS & WARRANTIES
You represent and warrant that all information provided by You pursuant to this 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 this Agreement. You also represent and warrant that You are using the Whois Privacy Services in good faith and that You have no knowledge or reason to believe that Your Whois Privacy 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 Whois Privacy Services nor Whois Privacy Domain(s) will 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 ("Spam").
DPSI'S SUSPENSION OR TERMINATION OF SERVICE AND DISCLOSURE OF YOUR PERSONAL INFORMATION
In the event of any of the following:
- If the Whois Privacy 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 Agreement or an anti-Spam policy of DPSI;
- If You breach any provision of Your Registrar's Registration Agreement;
- If necessary to protect the integrity and stability of the applicable domain name registry;
- If necessary to comply with any applicable laws, government rules or requirements, subpoenas, court orders or requests of law enforcement;
- If DPSI is named as a defendant in, or investigated in anticipation of, any legal or administrative proceeding arising out of Your use of the Whois Privacy Services or a Whois Privacy Domain;
- If necessary to comply with ICANN's Dispute Resolution Policy or other policies promulgated by ICANN (including policies which may preclude use a service such as ID Protect);
- If necessary to avoid any financial loss or legal liability (civil or criminal) on the part of DPSI, its parent companies, subsidiaries, affiliates, shareholders, agents, officers, directors and employees;
- OR if it comes to DPSI's attention that You are alleged to be using the 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, THEN
You understand and agree that DPSI has the absolute right and power, in its sole discretion and without any liability to You whatsoever, to suspend the Whois Privacy Services, close Your Account, terminate provision of the Whois Privacy Services, list the information You provided in section 2 in the Whois output or provide the information You provided in section 2 to a claimant, resolve any and all third party claims, whether threatened or made, arising out of Your use of Whois Privacy Domain, or take any other action which DPSI deems necessary.
In the event DPSI takes any of the actions set forth above or in the event You elect to cancel the Whois Privacy Services for any reason, DPSI will not refund any fees paid by You for the Whois Privacy Services.
You also acknowledge and agree that DPSI may, in its sole discretion and without any liability to You whatsoever, cancel the Whois Privacy Services during the first thirty (30) days after You procured the Whois Privacy Services, and/or at any time suspend Your rights under this Agreement and list the Whois Privacy Addresses during resolution of a dispute or investigation of allegations.
You agree that DPSI will review communications sent to the Whois Privacy Addresses associated with Your Whois Privacy 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, DPSI may either i) forward such communication to You or ii) may attempt to communicate to you a scanned copy of a page of the communication to ascertain Your desires with respect to forwarding the communication to You. You specifically acknowledge that DPSI may elect to not forward to You (nor to otherwise communicate with You) regarding first class postal mail or email, fax, postal mail or telephone communications which appear to be unsolicited communications which offer or advertise the sale of goods or services or which solicit charitable contributions, or communications which appear to arise from Your having used the Whois Privacy Services as a general mail forwarding service (see section 1, above). You authorize DPSI 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 DPSI, including failures which arise from DPSI's mistake in judging whether a communication appears to be an unsolicited communication.
The Whois directory generally requires an email address for every purchased domain name registration. When You purchase Whois Privacy Services, DPSI creates an email address for that domain. Thereafter, when messages are sent to the email address listed in the Whois Privacy Address, DPSI forwards such messages to the email address You listed in section 2. If such email address becomes non-functioning or if email to such address bounces, DPSI is not obligated to attempt to contact You through other means. You agree that DPSI may elect, in DPSI's sole discretion, to allow You to access Your Account and view email sent to the Whois Privacy Addresses, though such alternative means of servicing Your Account is an option and not a requirement.
When DPSI receives a communication which may warrant forwarding to You, per the terms of this Agreement, DPSI will send an email to the email address You provided to DPSI pursuant to section 2. The email message will identify the sender of the correspondence and the date received. As an alternative, You agree that DPSI may allow you to access Your Account to view full or partial scanned copies of (non-email) communications sent to the Whois Privacy 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 DPSI. 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. DPSI may begin charging fees for forwarding communications or may change the method by which communications are forwarded without written notice.
In the event You do not respond to communications from DPSI regarding communications received at the Whois Privacy Address, DPSI may immediately reveal the information You provided pursuant to section 2 and/or cancel the Whois Privacy Services regarding either the Whois Privacy Domain in question or with respect to all of Your Whois Privacy Domains, depending on the circumstances. This means the Whois directory will revert to displaying Your name, postal address, email address and phone number. This action would be taken because DPSI will not become involved in any legal or other matters between You and third parties.
LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL EITHER THE DPSI 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 WHOIS PRIVACY SERVICES, USE OR INABILITY TO USE THE DPSI 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 DPSI 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 DPSI HAS 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, DPSI’S 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 DPSI disclaims any loss or liability resulting from: (i) the inadvertent disclosure or theft of Your personal information; (ii) access delays or interruptions to our web site or the web sites of affiliated parties; (iii) data non-delivery or misdelivery between You and DPSI; (iv) the failure for whatever reason to renew the Whois Privacy Services; (v) the unauthorized use of Your Account or any of DPSI's services; (vi) errors, omissions or misstatements by DPSI; (vii) 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 Whois Privacy Domain; (viii) processing of updated information regarding Your Account; (ix) any act or omission caused by You or Your agents (whether authorized by You or not).
YOU AGREE THAT, IN ANY EVENT, DPSI’S MAXIMUM LIABILITY TO YOU SHALL BE CAPPED BY THE LESSER OF THE AMOUNT OF FEES PAID BY YOU TO DPSI IN THE PRECEDING YEAR WITH RESPECT TO THE SERVICES WHICH GAVE RISE TO THE LIABILITY OR $100.00 PER WHOIS PRIVACY DOMAIN.
You agree to release, defend, indemnify and hold harmless DPSI, and its 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 this Agreement, the Whois Privacy Services, the web sites of DPSI, Your Account, and/or Your use of Your Whois Privacy Domain.
DPSI, 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 WEB SITES OF DPSI 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 WHOIS PRIVACY SERVICES, AS WELL AS THE DPSI WEB SITE, ARE PROVIDED "AS IS". YOUR SUBSCRIPTION TO AND USE OF THE WHOIS PRIVACY SERVICES AND DPSI 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.
COPYRIGHT & TRADEMARK
You understand and agree that all content and materials contained in this Agreement and the DPSI web site, are protected by the various copyright, patent, trademark, service mark and trade secret laws of the United States, as well as any other applicable proprietary rights and laws, and that DPSI reserves its rights in and to all such content and materials. You further understand and agree that You are prohibited from using any of the afore-described content and materials without the written permission of DPSI. No license or right under any copyright, patent, trademark, service mark or other proprietary right or license is granted to You or conferred upon You by this Agreement or otherwise.
- Severability; Construction; Entire Agreement.
You agree that if any part of this Agreement shall be held to be illegal, unenforceable or invalid, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, enforceable and valid, and the legality, enforceability and validity of the remaining provisions of this Agreement shall not be affected or impaired. The headings herein will not be considered a part of this Agreement. You agree that this Agreement, including the policies it incorporates by reference, constitute the complete and only Agreement between You and DPSI regarding the services contemplated herein.
- Governing Law; Venue; Waiver Of Trial By Jury.
This Agreement shall be governed in all respects by the laws and judicial decisions of King County, Washington, excluding its conflicts of laws rules. You agree that any action relating to or arising out of this Agreement, shall be brought exclusively in the courts of King County, Washington. For the adjudication of domain name registration disputes and disputes under this Agreement, you agree to submit to the exclusive subject matter and personal jurisdiction of the state and Federal courts located in King County, Washington, you agree that venue shall be proper in such jurisdiction, and you agree to waive any objection you may have to jurisdiction and venue in such forum. You agree to waive the right to trial by jury in any proceeding, regardless of venue, that takes place relating to or arising out of this Agreement and You agree that service upon You may be accomplished by depositing the summons and complaint in the United States mail, first-class mail, postage pre-paid, addressed to the address provided by you in section 2, which service shall be deemed to be effective five days after deposit.
- Term of Agreement; Survival.
The term of this Agreement begins on the date DPSI accepts Your attempt to procure the Whois Privacy Services. The term shall run for the period of time You ordered when You procured the Whois Privacy Services, unless terminated or suspended sooner according to the terms of this Agreement. Sections 6 (Forwarding Communications), 7 (Limitation of Liability), 8 (Indemnity), 9 (Warranty Disclaimer) and 11 (Miscellaneous Provisions) shall survive any termination or expiration of this Agreement.