DOMAINS BY PROXY, INC.
Domain Name Proxy Agreement
PLEASE READ THIS DOMAIN NAME PROXY AGREEMENT
(“AGREEMENT”) CAREFULLY.
BY USING THE SERVICES AND OR WEB SITE OF DOMAINS BY PROXY, INC. (“DBP”),
YOU AGREE TO ALL THE TERMS AND CONDITIONS SET
This Agreement is by and between DBP, an
1.
DESCRIPTION OF DBP’S PRIVATE REGISTRATION SERVICES
The business of DBP is to maximize Your right to privacy to the greatest extent possible. When you subscribe to DBP’s private registration service through a DBP-affiliated Registrar, each and any available domain name registration that You designate will thereafter be registered in the name of DBP, as Registrant. In exchange for DBP becoming the Registrant of each domain name registration on Your behalf, DBP shall keep Your name, postal address, email address, phone and fax numbers confidential, subject to Section 4 of this Agreement. When DBP becomes the Registrant of Your domain name registration, the following DBP information (and not your personal information) will be made publicly available in the “Whois” directory as determined by ICANN policy:
- DBP’s name and postal address as Registrant of the domain name;
- DBP’s email address, postal address and phone number for the domain name registration’s technical contact;
- DBP’s email address, postal address and phone number for the domain name registration’s administrative contact;
- DBP’s email address, postal address and phone number for the domain’s name registration’s billing contact;
- The primary and secondary domain name servers You designate for the domain name;
- The domain name’s original date of registration and expiration date of the registration;
- The identity of Your Registrar.
2.
FULL BENEFITS OF DOMAIN REGISTRATION RETAINED BY YOU
Although DBP will be the Registrant of each domain name registration
You designate, You will retain the full benefits of domain name registration with
respect to each such domain name registration, including:
- The right to sell, transfer or assign each domain name registration;
- The right to control the use of each domain name registration, including designating the primary and secondary domain name servers to which each domain name points;
- The right to cancel each domain name registration;
- The right to cancel Your account with DBP so that You become the Registrant;
- The right to renew each domain name registration upon its expiration, subject to Your Registrar’s applicable rules and policies;
- The right to initially resolve any and all monetary, creditor or other claims that arise in connection with a legal or other dispute involving Your domain name registration, subject to DBP’s Section 4 rights, which shall, in all events, supersede any and all of Your rights as set forth in this Section 2.
3.
YOUR NOTIFICATION OBLIGATIONS; REPRESENTATIONS & WARRANTIES
a. Personal Information. You agree that for each domain name for which DBP
becomes the Registrant on Your behalf, You will provide accurate and current information
as to:
- Your name and postal address;
- The email address, postal address, phone and fax numbers for the domain name registration’s technical contact;
- The email address, postal address, phone and fax numbers for the domain name registration’s administrative contact;
- The email address, postal address, phone and fax numbers for the domain name registration’s billing contact;
- The primary and secondary domain name servers to which each domain name points;
- The domain name’s original date of registration and expiration date.
You agree to: (i) notify DBP within five (5) business days when any of the personal
information You provided upon subscribing to DBP’s services, changes; (ii)
respond within five (5) business days to any inquiries made by DBP to determine
the validity of personal information provided by You; (iii) respond to email messages
posted to Your DBP account regarding correspondence DBP has received that is either
addressed to or involves Your domain name registration, as more fully set forth
in Section 5(b) below. It is Your responsibility to keep Your personal information
current and accurate at all times.
b. Renewals. You agree that
DBP, as Registrant, will (i) arrange for Your Registrar to automatically renew on
Your behalf, for a period of one year only, any domain name registration that is
up for renewal; and (ii) arrange for Your Registrar to charge the credit card You
have on file with the Registrar, at the Registrar’s then current rates.
Renewal fees, once charged, will be non-refundable. You may also elect not
to automatically renew DBP’s private registration services, by logging into
Your customer account at Your Registrar’s web site and selecting the manual
renewal option. It is Your responsibility
to keep Your credit card information current and accurate, including the expiration
date.
c. Representations & Warranties. You warrant that all information provided
by You to DBP is truthful, complete, current and accurate.
You also warrant that You are using DBP’s private registration services
in good faith and that You have no knowledge of Your domain name infringing upon
or conflicting with the legal rights of a third party or a third party’s trademark
or trade name. You also warrant that the domain name being registered by DBP on
Your behalf will not be used in connection with any illegal or morally objectionable
activity (as defined below in Section 4), or, in connection with the transmission
of Spam.
4. DBP’S RIGHTS TO DENY, SUSPEND,
TERMINATE SERVICE AND TO DISCLOSE YOUR PERSONAL INFORMATION
a. You understand
and agree that DBP has the absolute right and power, in its sole discretion and
without any liability to You whatsoever, to either:
(i) close Your account (which means You then become the Registrant of the
domain name registration); (ii) reveal Your name and personal information that You
provided to DBP when required by law, in the good faith belief that such action
is necessary in order to conform to the edicts of the law, or to comply with a legal
process served upon DBP; (iii) resolve any and all third party claims, whether threatened
or made, arising out of Your use of a domain name registered by DBP on Your behalf;
or (iv) take any other action DBP deems necessary:
- In the event you breach any provision of this Agreement or the DBP Anti-Spam Policy;
- To protect the integrity and stability of the applicable domain name Registry;
- To comply with any applicable laws, government rules or requirements, subpoenas, court orders or requests of law enforcement;
- To comply with ICANN’s Dispute Resolution Policy;
- To avoid any financial loss or legal liability (civil or criminal) on the part of DBP, its parent companies, subsidiaries, affiliates, shareholders, agents, officers, directors and employees;
- If the domain name DBP registers on Your behalf violates or infringes a third party's trademark, trade name or other legal rights;
- If it comes to DBP’s attention that You are using DBP’s 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 purely to the prurient interests of third parties; (ii) defame, embarrass, harm, abuse, threaten, or harass third parties; (iii) violate state or federal laws of the United States and/or foreign territories; (iv) involve hate crimes, terrorism and child pornography; (v) are tortious, vulgar, obscene, invasive of a third party’s privacy, racially, ethnically, or 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.
b. You also acknowledge and agree that DBP may, in its sole discretion and without
any liability to You whatsoever: (i)
cancel the registration of any domain name DBP has registered on Your behalf during
the first thirty (30) days after registration has taken place; (ii) cancel the registration
of any domain name DBP has registered on Your behalf if that name is being used
in association with Spam; (iii) suspend your rights under Section 2 of this Agreement
during resolution of a dispute.
c. You further understand and agree that if DBP is named as a defendant in, or investigated
in anticipation of, any legal or administrative proceeding arising out of Your domain
name registration or Your use of DBP’s services, Your private domain name
registration will automatically revert back to You and Your identity will therefore
be revealed in the Whois directory as Registrant.
d. In the event:
(i) DBP takes any of the actions set forth in paragraphs (a),
(b) or (c) above; (ii) You elect to cancel DBP’s services for
any reason, neither DBP nor your Registrar will refund any fees paid by You whatsoever.
5. COMMUNICATIONS FORWARDING
a. Correspondence Forwarding. Inasmuch as DBP’s name, postal address
and phone number will be listed in the Whois directory, You agree that DBP will
review and forward communications addressed to your domain name that are received
via email, certified or traceable courier mail (such as UPS, FedEx, or DHL), or
first class U.S. postal mail. You specifically
acknowledge that DBP will not forward to You first class postal mail (other than
legal notices), “junk” mail or other unsolicited communications (whether
delivered through fax, postal mail or telephone), and You further authorize DBP
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 DBP.
b. Email Forwarding. The Whois directory requires an email address for every purchased domain name registration. When You purchase a private domain registration, DBP creates a private email address for that domain, “<yourdomainname>@domainsbyproxy.com”. Thereafter, when messages are sent to Your private email address, DBP handles them according to the email preference You selected for that particular domain. You have three email preferences from which to choose. You can elect to: (i) have all of the messages forwarded; (ii) have all of the messages filtered for Spam and then forwarded; or (iii) have none of the messages forwarded.
c. Notifications Regarding Correspondence and Your Obligation to Respond. When DBP receives certified or traceable
courier mail or legal notices addressed to Your domain name, we will post an email
message to Your DBP account. Our email
message will identify the sender of the correspondence, the date we received it,
and a brief description of its contents.
You will have seventy-two (72) hours to decide whether to reject the correspondence
or have it forwarded via overnight courier, facsimile (or both).
You will be informed of the charge for both shipping options and the credit
card You provide will be billed only after You have affirmatively selected one or
both shipping options. You must select
a shipping option and the credit card transaction must be successful prior to us
forwarding the correspondence to You.
In the event You do not respond to our email message, DBP will attempt to contact
you via telephone. If you do not respond
to our email or voice messages and/or the correspondence that DBP has received regarding
Your domain name registration concerns a legal dispute or otherwise requires immediate
forwarding and/or immediate disposition, DBP may immediately reveal Your identity
and/or cancel our private registration service regarding either the domain name
registration in question or with respect to all of Your private domain name registrations,
depending on the circumstances. This
means the Whois directory will revert to displaying Your name, postal address, email
address and phone number. We take this
action because DBP will not become involved in any legal or other matters between
You and third parties.
d. Forwarding Fees. In consideration
for (i) handling and forwarding certified and traceable courier mail and certain
first class correspondence, and (ii) responding to and dealing with complaining
third parties, You agree to pay DBP at the time such services are provided.
DBP may change its forwarding fees
at any time. Unless otherwise stated,
all fees are posted (and payable by You) in U.S. Dollars.
You are responsible for paying all fees and taxes associated with using DBP’s
forwarding services. Payment shall
be made by You providing a valid credit card for charge by DBP, and is non-refundable.
If for any reason DBP is unable to charge Your credit card with the full amount
of the service provided, or if DBP is charged back for any fee it previously charged
to the credit card You provided, You agree that DBP may, without notice to You,
pursue all available remedies in order to obtain payment, including but not limited
to, sale of the domain name registration to a third party, and immediate cancellation
of Your account and all services DBP provides to You.
e. Additional Administrative Fees.
DBP reserves the right to charge a reasonable service fee for administrative
tasks outside the scope of its regular services.
These include, but are not limited to, customer service issues that cannot
be handled over email but require personal service, and disputes that require legal
services. You agree that DBP will arrange
for Your Registrar to bill these charges to the credit card You have on file with
the Registrar. Administrative fees,
once charged, will be non-refundable.
It is Your responsibility to keep Your credit card information current and accurate,
including the expiration date. Failure
to do so could result in termination of DBP’s services.
6. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL DBP BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL,
PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES FOR ANY REASON WHATSOEVER RELATED TO
THIS AGREEMENT, YOUR DOMAIN NAME REGISTRATION, DBP’S SERVICES, USE OR INABILITY
TO USE THE DBP WEB SITE OR THE MATERIALS AND CONTENT OF THE WEB SITE OR ANY OTHER
WEB SITES LINKED TO THE DBP WEB SITE OR YOUR PROVISION OF ANY PERSONALLY IDENTIFIABLE
INFORMATION TO DBP 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 DBP 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, DBP’S
LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE SMALLEST AMOUNT PERMITTED
BY LAW.
You further understand and agree that DBP 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 our affiliated-Registrars; (iii) data non-delivery
or misdelivery between You and DBP; (iv) the failure for whatever reason to renew
a private domain name registration; (v) the unauthorized use of Your DBP account
or any of DBP’s services; (vi) errors, omissions or misstatements by DBP;
(vii) deletion of, failure to store, failure to process or act upon email messages
forwarded to either You or Your private domain name registration; (viii) processing
of updated information regarding Your DBP account; (ix) any act or omission caused
by You or Your agents (whether authorized by You or not).
7. INDEMNITY
You agree to release, defend, indemnify and hold harmless DBP, 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 services provided hereunder by DBP, the DBP web
site, Your account with DBP, Your use of Your domain name registration, and/or disputes
arising in connection with the Dispute Resolution Policy (http://www.icann.org/dndr/udrp/policy.htm).
8. DBP WARRANTY DISCLAIMER
DBP, 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
DBP WEB SITE OR ANY WEB SITES LINKED TO THE DBP WEB SITE, WHETHER EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ALL DBP SERVICES, AS
WELL AS THE DBP WEB SITE, ARE PROVIDED “AS IS”.
YOUR SUBSCRIPTION TO AND USE OF DBP’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.
9.
COPYRIGHT & TRADEMARK
You understand and agree that all content and materials contained in this Agreement,
the Privacy Policy and the DBP 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 DBP expressly reserves
its rights in and to all such content and materials.
You further understand and agree that You are prohibited from using, in any
manner whatsoever, any of the afore-described content and materials without the
express written permission of DBP.
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.
10. MISCELLANEOUS PROVISIONS
a. Severability; Construction; Entire Agreement.
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 DBP regarding the services contemplated herein.
b. Governing Law; Venue; Waiver Of Trial By Jury.
This Agreement shall be governed in all respects by the laws and
judicial decisions of
c. Notices. All notices from DBP to You will be sent to the email address
You provided to DBP. Notices by email shall be deemed effective 24 hours after the
email is sent by DBP, unless DBP receives notice that the email address is invalid,
in which event DBP may give You notice via first class or certified mail, return
receipt requested. All notices from
You to DBP shall be sent via certified mail, return receipt requested or trackable
courier to DBP, Inc., Attn: General
Counsel,
d. Insurance.
In the unlikely event You lose Your domain name registration to a third party
solely as a result of DBP’s negligent actions (and absent fraud or other negligent
or willful misconduct committed by a third party), You may be insured against such
loss through DBP’s Professional Liability Insurance Policy, which is currently
underwritten by American International Insurance Company.
Of course, every claim is subject to the then-carrier’s investigation
into the facts and circumstances surrounding such claim.
In the event You have reason to believe that circumstances exist which warrant
the filing of an insurance claim, please send a written notice (specifying the basis
for such claim), via certified mail, return receipt requested, to:
Domains By Proxy, Inc.
PMB 353
Attn: Insurance Claims
e. Indemnification.
In the unlikely event You lose Your domain name registration to a third party
solely as a result of DBP’s willful misconduct, Your Registrar (the “Indemnifying
Party”) will indemnify and hold You harmless against any losses, damages or
costs (including reasonable attorneys fees) resulting from any claim, action, proceeding,
suit or demand arising out of or related to the loss of Your domain name registration. Such indemnification obligations under
this Section 10 (e) are conditioned upon the following:
(i) that You promptly give both DBP and the Indemnifying Party written notice
of the claim, demand, or action and provide reasonable assistance to the Indemnifying
Party, at its cost and expense, in connection therewith and (ii) that the Indemnifying
Party has the right, at its option, to control and direct the defense to any settlement
of such claim, demand, or action.
Any notice concerning indemnification shall, with respect
to DBP, be sent in accordance with Section 10(c) of this Agreement.
With respect to Your Registrar, notices regarding indemnification should
be sent in accordance with the notification provisions contained in Your Registrar’s
Domain Name Registration Agreement.
f. Term of Agreement; Survival. The term of this Agreement shall continue
in full force and effect as long as DBP is the Registrant for any domain name on
Your behalf. Sections 5 (Communications Forwarding), 7 (Limitation of Liability),
8 (Indemnity), 9 (Warranty Disclaimer) and 10 (Miscellaneous Provisions) shall survive
any termination or expiration of this Agreement.
Copyright © 2002 - 2008 Domains By Proxy, Inc.
All Rights Reserved.
U.S. Pat. No. 7,130,878
