This Agreement ("Agreement") is by and between WHOISguardians GmbH. ("Service Provider"), a Delaware corporation, and Customer, which is defined hereunder as the entity using our domain name WHOIS privacy service ("Service"). The terms "you" and "your" refer to Customer where applicable; the terms "we," "our" and "us" refer to Service Provider where applicable.
This Agreement constitutes the complete understanding between you and us. Customers who fail to agree to this Agreement will not be allowed to utilize the Service. By using the Service, you assent to be bound by this Agreement. By assenting to the terms and conditions of this Agreement, you acknowledge that you have read, understood and agreed to be bound by all of the terms and conditions constituting this Agreement. Your assent to this Agreement includes your intent to be bound for all transactions involving and/or entered into by: (i) you on your own behalf in any account which you have with us; (ii) anyone acting as your agent or legal representative; and (iii) anyone who uses any account you have established with us for the use of this Service, whether or not the transactions were on your behalf and/or authorized by you. You agree that you will be bound by all representations made by any third party you use to obtain this Service from us. You further acknowledge that you have freely entered into this Agreement of your own free will and accord and that you had the opportunity to seek the advice of legal counsel before you agreed to the terms of this Agreement.
Your assent to this Agreement also includes your continued obligation 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") and your domain name registrar of record for your domain names you elect to utilize this Service.
1. Description of Service. We provide domain name contact information for those parties desiring to maintain their privacy on the Internet. Service Provider will provide the following:
We also provide limited postal mail forwarding services to the email address you specify to receive communications involving any domain names utilizing this Service (See Paragraph 9 below for more details)
2. Retention of Ownership. You remain the owner and registrant for each domain name using this Service, with all the attendant rights, responsibilities, and liabilities. We have no ownership or registrant interest, license, or any other interest in any of the domain names using this Service. This means that you solely accept and assume all liability to any third party for any harm caused by any of your domain names that are using this Service and/or any use of said domain names.
3. Notification Obligations; Representation and Warranties.
a. Personal Information
As a material condition of this service, You agree that for each domain name using this Service, you will provide accurate and current information for our internal records as to:
In addition to your obligation to provide valid contact information for your domain names, you are required to update this information regularly to keep it current, complete and accurate. You agree to:
Your willful provision of inaccurate or unreliable information, your willful failure to promptly update information provided to us, or any failure to respond within five (5) calendar days to our inquiries concerning the accuracy of contact details associated with any of your domain names using this Service shall constitute a breach of this Agreement by you.
You shall be solely responsible for the confidentiality of the transmission of your contact information to us. You agree that in the event your contact information is transmitted to a third party through no action on our part, neither us nor any of our officers, employees, agents, affiliates or subsidiaries can or will have any responsibility or liability to you or to any other person whose claim may arise through you for any claim(s) with respect to the handling or mishandling of your contact information submitted to us.
You shall also be the only authorized user of this Service under this Agreement. You further understand and agree that, as a condition of using this Service, you shall immediately notify us if you become aware of any unauthorized use of your contact information.
4. Use of Agents. You agree that if your agent (e.g., representative, employee, etc.) utilizes this Service on your behalf, you are, nonetheless, bound as a principal by all of the terms and conditions of this Agreement. Your continued use of this Service shall ratify any unauthorized actions of your agent. By acting on your behalf, your agent certifies that he, she or it is authorized to apply for this Service on your behalf, that he, she or it is authorized to bind you to the terms and conditions of this Agreement, and that he, she or it has apprised you of the terms and conditions of this Agreement. In addition, you are responsible for any errors made by your agent. We will not refund any fees paid by you or your agent acting on your behalf for any reason, including, but not limited to, in the event that your agent fails to comply with the terms and conditions of this Agreement, your agent incorrectly provides information in the application process, or if your agent intentionally or negligently misrepresents or falsifies any updates or corrections to your domain name contact information submitted to us.
5. License of Domain(s). If you license use of a domain name to a third party, you acknowledge that you remain responsible for providing and updating your own full contact information and for providing and updating accurate technical and administrative contact and other information in accordance with this Agreement. In no event shall any party you license use of a domain name to be deemed a third party beneficiary of this Agreement. You remain fully bound by this Agreement as principal, and we shall have no responsibility or obligation to any licensee of any domain name made in accordance with this Paragraph.
6. Duration of Service. This Service commences when you first activate it for a domain and it terminates one year after the Service is first used on your domain name. Additionally, this Service will terminate when you decide not to renew it for any domain name(s), you switch off the service from within your account, or you are in violation of the terms of this Agreement. If this Service is terminated due to a violation of the terms of this Agreement, the Service will not be able to be re-activated for the domain. Additionally, we may disallow your use of this service on any and/or all of your domain names.
7. Automatic Renewal of Service. We offer the option for you to have this Service automatically renewed for any of your domain names using this Service. If you elect to participate in this feature, this Service will be automatically renewed fourteen (14) calendar days before the Service is scheduled to expire. All renewals hereunder will be for successive one-year periods. Regardless of whether you choose to have this Service automatically renewed, we will notify you at your email address on file before this Service is set to expire. You further agree that we may charge the credit card you have on file with us to process any renewals for this Service or if you have a credit balance in your account, we will deduct the renewal fee from this credit balance. You must select the method of payment prior to the day of renewal of the Service.
8. Disclosure of Your Contact Information. You agree that we may cancel this Service with respect to any domain name(s) enrolled in this Service and further that we may disclose your identity as owner and/or registrant of any domain name to any third party under the following set of circumstances:
Our authority to act pursuant to this Paragraph entitles us, at our sole discretion, to reveal your private domain name contact information by having said information revealed in the WHOIS directory.
10. Fees. The annual cost of WHOISguardians WHOIS service is set on a per client basis. Please email sales sales(at)whoisguardians.com for specific quotes and/or more information.
11. Representations and Warranties. Your Representations and Warranties.
In no event shall we be liable or responsible to you or to any third party for any breach of your obligation pursuant to this Paragraph. You agree to defend and hold us harmless against any and all claims, demands, causes of action or damages (of any kind) arising out of or related to your breach of the representations and covenants set forth in this Paragraph.
We make no representations or warranties of any kind in connection with this Agreement. Specifically, but without limitation, we do not represent or warrant that use of this Service will immunize you from challenges to your registration and/or use of your domain name(s).
12. Limitation of Liability. YOU COVENANT AND AGREE THAT WE WILL NOT BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY LOSS THAT MAY OCCUR DUE TO, ARISING OUT OF OR RESULTING FROM (A) ANY ACT OR OMISSION BY YOU OR YOUR AGENT (WHETHER AUTHORIZED OR UNAUTHORIZED); (B) ANY LOSS OF REGISTRATION OF ANY DOMAIN NAME; (C) THE USE OF YOUR DOMAIN NAME; (D) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO OUR WEBSITE OR OUR SERVICES; (E) THE NON-DELIVERY OR MISDELIVERY OF DATA BETWEEN YOU AND US; (F) EVENTS BEYOND OUR REASONABLE CONTROL; (G) THE PROCESSING OF ANY REGISTRATION DATA; (H) THE PROCESSING OF ANY MODIFICATION TO ANY INFORMATION ASSOCIATED WITH YOUR DOMAIN NAME; (I) THE FAILURE OF YOU OR YOUR AGENT TO PAY ANY FEES HEREUNDER; (J) THE UNAUTHORIZED USE OF OUR ACCOUNT OR OF OUR SERVICE; (K) ANY ERROR, OMMISSION OR MIS-STATEMENT BY US; OR (L) ANY FAILURE FOR ANY REASON TO RENEW OUR SERVICE WITH YOU.
FURTHERMORE, YOU COVENANT AND AGREE THAT, REGARDLESS OF CIRCUMSTANCES, WE WILL NOT BE LIABLE FOR: (I) ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) FOR ANY REASON REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, STRICT LIABILITY AND/OR ANY OTHER BASIS, FOR ANY REASON WHATSOEVER, RELATED TO THIS AGREEMENT OR YOUR DOMAIN NAMES; (II) YOU OR ANOTHER'S USE OR INABILITY TO USE THIS SERVICE, WEBSITE AND/OR ANY OF ITS CONTENTS OR MATERIALS OR OF ANY WEBSITES LINKED TO THIS WEBSITE; OR (III) YOUR PROVIDING ANY INFORMATION TO US OR TO ANY THIRD PARTY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME JURISDICTIONS DO NOT PERMIT THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN ANY SUCH JURISDICTION, OUR MAXIMUM AMOUNT OF LIABILITY SHALL BE LIMITED TO THE SMALLEST AMOUNT PERMITTED BY LAW. IN NO EVENT SHALL OUR MAXIMUM LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU TO US FOR THIS SERVICE.
13. Indemnity. You agree to release, defend, indemnify and hold harmless WHOISguardians, GmbH. its parent companies, subsidiaries, affiliates, shareholders, agents, directors, officers and employees, as well as any domain name registrar through which this Service is offered and its registrar's parent companies, subsidiaries, affiliates, shareholders, agents, directors, officers and employees, 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: (i) this Agreement, (ii) this Service provided to you by us, or (iii) any dispute of whatever nature or kind arising out of or in connection with any domain name for which you use or seek to use the Service expressly including, but expressly not limited to, any infringement of any trademark, copyright or other intellectual property right.
14. Disclaimer of Warranties. WE EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, INFORMATIONAL CONTENT AND NONINFRINGEMENT OF THIRD PARTY RIGHTS IN CONNECTION WITH OR RELATED TO THIS AGREEMENT, THIS SERVICE, OUR WEBSITE, OR ANY WEBSITE LINKED THERETO.
WE EXPRESSLY DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN OUR SERVICE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF OUR SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN OUR SERVICE WILL BE CORRECTED. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF OUR SERVICE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE.
YOU FURTHER ACKNOWLEDGE AND AGREE THAT WE PROVIDE OUR SERVICE TO YOU ON AN "AS-IS" AND "AS-AVAILABLE" BASIS AND THAT YOUR USE OF OUR SERVICE IS ENTIRELY AT YOUR OWN RISK. NEITHER WE NOR ANY OF OUR DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS SHALL HAVE ANY LIABILITY TO YOU FOR ANY FAILURE OR DELAY TO MAINTAIN OR PROVIDE TO YOU OUR SERVICE.
15. Miscellaneous Provisions
This Agreement, including any policies or agreements it incorporates by reference, constitute the complete and exclusive agreement between you and us regarding the subject matter contemplated herein, and supersedes and governs all prior agreements or other communications whether oral or written. Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between you and us.
Our failure to require your performance of any provision hereof shall not affect the right to require such performance 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.
In the event that any provision of this Agreement is deemed illegal, unenforceable or invalid, in whole or in part, such illegality, unenforceability or invalidity of said provision shall not affect or impair the legality, enforceability or validity of the remainder of this Agreement, and such provision shall be automatically amended and replaced with a provision that is valid and enforceable and which achieves, to the extent possible, our original objectives and intent as reflected in the original provision.
No provision of this Agreement may be amended or modified by you except by means of a written document signed by us. We may modify this Agreement at any time by posting such modification(s) on our website and/or any website from or upon which our service is offered. Such modification(s) will become effective fifteen (15) calendar days after posting. Your continued use of this Service after such modification(s) become(s) effective constitutes your acceptance of those modifications. This Agreement shall not confer any benefits upon any person or entity other than you and us, and shall not be construed to create any obligation by us to any non-party. There are no third party beneficiaries to this Agreement.
The headings herein are for informational purposes only and will not be considered a part of this Agreement
b. Governing Law; Venue
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.
All notices to you from us will be sent to the email address you provided to us at the time of registered or that you have updated. Any notices sent by email shall be deemed effective 24 hours after the email is sent by us. All notices from you to us shall be sent via certified mail, return receipt requested or traceable courier to us,
Attn: General Counsel
Notices sent via certified mail or traceable courier shall be deemed effective five (5) days after the date of mailing.
d. Term of Agreement; Survival
The term of this Agreement shall continue in full force and effect as long as we are providing this Service for any domain name on your behalf. Notwithstanding the foregoing, Sections 9 (Communications Forwarding), 12 (Limitation of Liability), 13 (Indemnity), 14 (Warranty Disclaimer), and 15 (Miscellaneous Provisions) shall survive any termination or expiration of this Agreement.