Domains By Proxy, Inc Domain Name Proxy Agreement

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 FORTH BOTH HEREIN AND IN THE DBP PRIVACY POLICY, WHICH IS INCORPORATED BY REFERENCE. YOU ACKNOWLEDGE THAT DBP MAY AMEND THIS AGREEMENT AT ANY TIME UPON POSTING THE AMENDED TERMS ON ITS WEB SITE, AND THAT ANY NEW, DIFFERENT OR ADDITIONAL FEATURES THAT CHANGE THE SERVICES PROVIDED BY DBP WILL AUTOMATICALLY BE SUBJECT TO THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY, OR IF YOU OBJECT TO, THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ANY AMENDMENTS HERETO, DO NOT USE OR ACCESS OUR SERVICES. CONTINUED USE OF DBP’S SERVICES AND ITS WEB SITE AFTER ANY SUCH CHANGES TO THIS AGREEMENT HAVE BEEN POSTED, CONSTITUTES YOUR ACCEPTANCE OF THOSE CHANGES.

This Agreement is by and between DBP, an Arizona corporation, and you, your heirs, executors, administrators, agents, successors and assigns (“You”). This Agreement sets forth the terms and conditions of Your relationship with DBP and Your use of DBP’s services. You acknowledge that You have read, understand and agree to be bound by all the terms and conditions of this Agreement, and You further agree to be bound by the terms 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 have established with DBP, 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 purchase services from DBP, and that statements of a general nature on DBP's web site or in DBP promotional materials will not bind DBP. 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) and Your Registrar (i.e., the ICANN-accredited person or entity through which You register a domain name).

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 Maricopa County, Arizona, excluding its conflicts of laws rules. Except as provided immediately below, You agree that any action relating to or arising out of this Agreement, shall be brought exclusively in the courts of Maricopa County, Arizona. For the adjudication of domain name registration disputes, you agree to submit to the exclusive jurisdiction and venue of the U.S. District Court for the District of Arizona located in Phoenix, Arizona. 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.

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, 15111 North Hayden Road, Suite 160, PMB 353, Scottsdale, AZ 85260. Notices sent via certified mail or trackable courier shall be deemed effective five (5) days after the date of mailing.

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.

15111 N. Hayden Road/Suite 160

PMB 353

Scottsdale, AZ 85262

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.

U.S. Pat. No. 7,130,878