DOMAINS BY PROXY AGREEMENT
Last Revised: October 25, 2017
DOMAIN NAME PROXY AGREEMENT
This Agreement is by and between DBP and you, your heirs, assigns, agents and contractors ("You") and is made effective as of the date of electronic execution. This Agreement sets forth the terms and conditions of Your relationship with DBP and Your use of DBP's services and represents the entire Agreement between You and DBP. By using 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; and
- 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 You will be bound by representations made by third parties acting on Your behalf, which either use or purchase services from DBP. You further agree that DBP will not be bound by statements of a general nature on DBP's website or DBP promotional materials. 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") 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
When You subscribe to DBP's private registration service through a DBP-affiliated Registrar, DBP will display its contact information in the publicly available "Whois" directory in place of Your information. DBP shall keep Your name, postal address, email address, phone and fax numbers confidential, subject to Section 4 of this Agreement. The following information (and not Your personal information) will be made publicly available in the "Whois" directory as determined by ICANN policy:
- i. DBP's name as the proxy Registrant of the domain name and a proxy email address, phone number and postal address for the proxy Registrant's contact information;
- ii. A proxy postal address and phone number for the domain name registration's technical contact;
- iii. A proxy email address, postal address and phone number for the domain name registration's administrative contact;
- iv. A proxy email address, postal address and phone number for the domain's name registration's billing contact;
- v. The primary and secondary domain name servers You designate for the domain name;
- vi.The domain name's original date of registration and expiration date of the registration; and
- vii. The identity of the Registrar.
Although DBP will show in the "Whois" directory as 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, subject to Section 4 below:
- i. The right to sell, transfer or assign each domain name registration, which shall require cancellation of the DBP services associated with each such domain name registration;
- ii. 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;
- iii. The right to cancel each domain name registration;
- iv. The right to cancel the DBP services associated with each domain name registration and/or Your privacy services with DBP so that Your contract information is listed in the "Whois" directory; and
- v. The right to renew each domain name registration upon its expiration, subject to Your Registrar's applicable rules and policies.
Personal Information and Your Notification Obligations
You agree that for each domain name for which you use DBP services, You will provide accurate and current information as to:
- i. Your name, the email address, postal address, phone and fax numbers for the domain name registration's Registrant contact;
- ii. The email address, postal address, phone and fax numbers for the domain name registration's technical contact;
- iii. The email address, postal address, phone and fax numbers for the domain name registration's administrative contact;
- iv. The email address, postal address, phone and fax numbers for the domain name registration's billing contact; and
- v. You agree to provide government issued photo identification and/or government issued business identification as required for verification of identity when requested.
You agree to:
- i. Notify DBP within three (3) calendar days when any of the personal information You provided upon subscribing to DBP's services, changes;
- ii. Respond within three (3) calendar days to any inquiries made by DBP to determine the validity of personal information provided by You; and
- iii. Timely respond to email messages DBP sends to You regarding correspondence DBP has received that is either addressed to or involves You and/or Your domain name registration, as more fully set forth in Section 5(c) below.
- iv. To allow DBP to act as your Designated Agent (as that term is defined below) in instances when DBP services are added to or cancelled from your domain name and for the purpose of facilitating a change of registrant request (as further described below).
It is Your responsibility to keep Your personal information current and accurate at all times.
You agree DBP will arrange for Your Registrar to charge the credit card You have on file with the Registrar, at the Registrar's then current rates.
If for any reason DBP and/or the Registrar for Your domain name is unable to charge Your credit card for the full amount of the service provided, or if DBP and/or the Registrar is charged back for any fee it previously charged to the credit card You provided, You agree that DBP and/or the Registrar may, without notice to You, pursue all available remedies in order to obtain payment, including but not limited to immediate cancellation of all services DBP provides to You.
Representations and 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 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 the domain name being registered by DBP on Your behalf will not be used in connection with any illegal activity, or in connection with the transmission of Spam, or that contains or installs any viruses, worms, bugs, Trojan horses or other code, files or programs designed to, or capable or, disrupting, damaging or limiting the functionality of any software or hardware.
You agree You are entirely responsible for maintaining the confidentiality of Your customer number/login ID and password ("Account Access Information"). You agree to notify DBP immediately of any unauthorized use of Your account or any other breach of security. You agree DBP will not be liable for any loss that You may incur as a result of someone else using Your Account Access Information, either with or without Your knowledge. You further agree You could be held liable for losses incurred by DBP or another party due to someone else using Your Account Access Information. For security purposes, You should keep Account Access Information in a secure location and take precautions to prevent others from gaining access to Your Account Access Information. You agree that You are entirely responsible for all activity in Your account, whether initiated by You, or by others. DBP specifically disclaims liability for any activity in Your account, regardless of whether You authorized the activity.
Designated Agency and Change of Registrant Information
“DESIGNATED AGENT” MEANS AN INDIVIDUAL OR ENTITY THAT THE PRIOR REGISTRANT OR NEW REGISTRANT EXPLICITLY AUTHORIZES TO APPROVE A CHANGE OF REGISTRANT REQUEST ON ITS BEHALF. IN THE CASE OF DBP SERVICES, A CHANGE OF REGISTRANT REQUEST MAY ALSO ARISE DUE TO INSTANCES WHERE DBP SERVICES ARE ADDED, OR REMOVED, FROM A DOMAIN NAME. FOR THE PURPOSE OF FACILITATING ANY SUCH CHANGE REQUEST, AND IN ACCORDANCE WITH ICANN'S CHANGE OF REGISTRANT POLICY, YOU AGREE TO APPOINT DBP AS YOUR DESIGNATED AGENT FOR THE SOLE PURPOSE OF EXPLICITLY CONSENTING TO MATERIAL CHANGES OF REGISTRATION CONTACT INFORMATION ON YOUR BEHALF.
You understand and agree that DBP has the absolute right and power, in its sole discretion and without any liability to You whatsoever, to:
- i. Cancel the privacy service (which means that Your information will be available in the "Whois" directory) and/or reveal Your name and personal information that You provided to DBP
- A. 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 in the interest of public safety;
- B. To comply with legal process served upon DBP or in response to a reasonable threat of litigation against DBP (as determined by DBP in its sole and absolute discretion); or
- C. To comply with ICANN rules, policies, or procedures.
- ii. Resolve any and all third party claims, whether threatened or made, arising out of Your use of a domain name for which DBP is the registrant listed in the "Whois" directory on Your behalf; or
- iii. Take any other action DBP deems necessary:
- A. In the event you breach any provision of this Agreement or the DBP Anti-Spam Policy;
- B. To protect the integrity and stability of, and to comply with registration requirements, terms, conditions and policies of, the applicable domain name Registry and/or Registry Provider;
- C. To comply with any applicable laws, government rules or requirements, subpoenas, court orders or requests of law enforcement;
- D. To comply with ICANN's Dispute Resolution Policy or ICANN's Change of Registrant Policy;
- E. 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;
- F. If the domain name for which DBP is the registrant on Your behalf violates or infringes a third party's trademark, trade name or other legal rights; and
- G. If it comes to DBP's attention that You are using DBP's services in a manner (as determined by DBP in its sole and absolute discretion) that:
- Is illegal, or promotes or encourages illegal activity;
- Promotes, encourages or engages in child pornography or the exploitation of children;
- Promotes, encourages or engages in terrorism, violence against people, animals, or property;
- Promotes, encourages or engages in any spam or other unsolicited bulk email, or computer or network hacking or cracking;
- Violates the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 or similar legislation, or promotes, encourages or engages in the sale or distribution of prescription medication without a valid prescription;
- Infringes on the intellectual property rights of another User or any other person or entity;
- Violates the privacy or publicity rights of another User or any other person or entity, or breaches any duty of confidentiality that you owe to another User or any other person or entity;
- Interferes with the operation of DBP services;
- Contains or installs any viruses, worms, bugs, Trojan horses or other code, files or programs designed to, or capable of, disrupting, damaging or limiting the functionality of any software or hardware; or
- Contains false or deceptive language, or unsubstantiated or comparative claims, regarding DBP or its services.
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 registration service may be canceled, which means the domain name registration will revert back to You and Your identity will therefore be revealed in the Whois directory as Registrant.
In the event:
- i. DBP takes any of the actions set forth in subsection i, ii, or iii above or section 5; and/or
- ii. You elect to cancel DBP's services for any reason --
5 . COMMUNICATIONS FORWARDING
Neither DBP nor your Registrar will refund any fees paid by You whatsoever.
a. Correspondence Forwarding
Inasmuch as DBP's name, postal address and phone number will be listed in the Whois directory, You agree 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 DBP will not forward to You first class postal mail (other than legal notices), "junk" mail or other unsolicited communications (whether delivered through email, 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 name, "@domainsbyproxy.com". Thereafter, when messages are sent to that private email address, DBP handles them according to the email preference You selected for that particular domain name. You have three (3) 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.
As with all communications, You agree to waive any and all claims arising from Your failure to receive email directed to Your domain name but not forwarded to You by DBP.
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, in most cases, DBP will attempt to forward the mail to you via email. If You do not respond to the DBP email and/or the correspondence DBP has received regarding Your domain name registration concerns a dispute of any kind or otherwise requires immediate disposition, DBP may immediately reveal Your identity and/or cancel the DBP private registration service regarding either the domain name registration(s) in question. This means the Whois directory will revert to displaying Your name, postal address, email address and phone number that you provided to DBP.
d. Additional Administrative Fees
DBP reserves the right to charge You reasonable "administrative fees" or "processing fees" for (i) tasks DBP may perform outside the normal scope of its Services, (ii) additional time and/or costs DBP may incur in providing its Services, and/or (iii) Your non-compliance with the Agreement (as determined by DBP in its sole and absolute discretion). Typical administrative or processing fee scenarios include, but are not limited to, (i) customer service issues that require additional personal time and attention; (ii) disputes that require accounting or legal services, whether performed by DBP staff or by outside firms retained by DBP; (iii) recouping any and all costs and fees, including the cost of Services, incurred by DBP as the result of chargebacks or other payment disputes brought by You, Your bank or Payment Method processor. These administrative fees or processing fees will be billed to the Payment Method You have on file with Your Registrar.
You agree to waive the right to trial by jury in any proceeding that takes place relating to or arising out of this Agreement.6 . LIMITATIONS 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 WEBSITE OR THE MATERIALS AND CONTENT OF THE WEBSITE OR ANY OTHER WEBSITES LINKED TO THE DBP WEBSITE 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 WEBSITE OR THE WEBSITES OF OUR AFFILIATED REGISTRARS;
- iii. DATA NON-DELIVERY OF MIS-DELIVERY 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; AND/OR
- ix. ANY ACT OR OMISSION CAUSED BY YOU OR YOUR AGENTS (WHETHER AUTHORIZED BY YOU OR NOT).
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 attorneys' fees, arising out of or related in any way to this Agreement, the services provided hereunder by DBP, the DBP website, Your account with DBP, Your use of Your domain name registration, and/or disputes arising in connection with the dispute policy.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 SERVICE PROVIDED HEREUNDER, THE DBP WEBSITE OR ANY WEBSITES LINKED TO THE DBP WEBSITE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ALL DBP SERVICES, AS WELL AS THE DBP WEBSITE, ARE PROVIDED "AS IS". YOUR SUBSCRIPTION TO AND USE OF DBP'S SERVICES AND ITS WEBSITE 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 AND TRADEMARK
You further understand and agree 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.
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 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.
All notices from DBP to You will be sent to the email address You provided to DBP. Notices by email shall be deemed effective twenty-four (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 traceable courier to:
Domains By Proxy, LLC
Attn: General Counsel
14455 North Hayden Rd.
Scottsdale, AZ 85260
Notices sent via certified mail or traceable courier shall be deemed effective five (5) days after the date of mailing.
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, LLC
Attn: Insurance Claims
14455 North Hayden Rd.
Scottsdale, AZ 85260
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 terms 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), 6 (Limitation of Liability), 7 (Indemnity), 8 (Warranty Disclaimer) and 10 (Miscellaneous Provisions) shall survive any termination or expiration of this Agreement.
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