WhoisGuard, Inc., a Republic of Panama Corporation (“WhoisGuard”) is an internet service provider for anonymous privacy protected domain registration services in connection with the WHOIS directory. By accessing, browsing, and/or using the website at www.whoisguard.com or any other website owned or controlled by WhoisGuard (collectively, the “Site”), including any service provided on or via the Site (the “Services”), you agree to be bound by these Terms of Service (the “TOS”), by the terms of the WhoisGuard Privacy Policy, incorporated herein by reference, and any other document, third party agreement or regulation referenced and incorporated herein. The Site, including all information, data, documents, content, materials, graphics, logos, and API code, (the “Content”) is made available to you for your personal, non-commercial use and subject to the terms and conditions set forth in these TOS, whether purchased directly from WhoisGuard or through a registrar offering WhoisGuard’s WHOIS privacy protection services. You may not otherwise utilize any of the Content without the express written consent of WhoisGuard. You do not acquire any ownership rights to any Content in the Site. Any unauthorized use terminates the permission or license granted by WhoisGuard. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS, THEN DO NOT USE OR ACCESS THE SITE/SERVICES. WhoisGuard reserves the right to change the TOS from time to time at its sole discretion. Your use of the Site will be subject to the most current version of the TOS posted on the Site. Any changes to the TOS shall be effective as of the date published. You acknowledge and agree that your only remedy if you do not agree with any such change is to stop using the Site and/or Services. No amendment or modification shall apply to a dispute under the Section entitled “Disputes — Arbitration” arising, or arising out of events occurring, before the amendment or modification became effective.
You may not use the Site if (i) you are not at least 18 years old, or (ii) you lack legal capacity to enter into legally binding contracts, or (iii) use of the Site or Services is prohibited by law in the country where you are located.
In this TOS “you” and “your” refer to you, the user, or any agent, employee, servant or person authorized to act on your behalf, and the Registrant listed in the WHOIS contact information for the domain name. This TOS explains WhoisGuard’s obligations to you in connection with the Services, and explains your obligations to WhoisGuard for the Services offered by third party.
The public WHOIS Directory generally requires an email address for every purchased domain name registration. When you purchase the Services administered by WhoisGuard, an email address will be automatically generated for the corresponding Protected Domain (e.g.
[email protected]). Thereafter, when messages are sent to the email address listed in the WhoisGuard address, WhoisGuard will forward such messages to the email address you provided to WhoisGuard, in accordance with this TOS. If such email address becomes non-functioning or if the email to such address bounces, WhoisGuard shall not be obligated to attempt to contact you through other means. You agree that WhoisGuard may elect, in its sole discretion, to allow you to access the email server logs if available and view email information sent to the WhoisGuard addresses, though such alternative means of servicing your account is an option and not a requirement. By subscribing to the Services, you are engaging WhoisGuard to substitute its own contact information for your information into the WHOIS database for the selected domain name (“Protected Domain”). Thus, your name, postal address, email address, phone and fax numbers shall be kept confidential, subject to this TOS.
The following information (and not your personal information) will be made publicly available in the WHOIS directory for each Protected Domain:
The Content may be used solely for informational, personal, non-commercial purposes. Without the prior written consent of, or unless specifically allowed by certain paid Services, you are not allowed to copy, download, print, distribute, republish, sell or otherwise use or make the Content available to others. You may not use the Site or any Services provided through, or in connection therewith, to: (a) defame, abuse, harass, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others; (b) conduct or forward illegal contests, pyramid schemes, or chain letters; (c) publish, post, distribute, disseminate or link to any: (i) inappropriate, profane, defamatory, infringing, obscene, adult content, nude, indecent or unlawful topic, name, material or information; (ii) software or other material protected by intellectual property laws, copyright licenses, rights of privacy or publicity, or other proprietary rights, unless you own, control such rights or have received all necessary consents for your use of such software and other materials; (iii) software or other material that contains viruses, corrupted files, or that may, or are intended to, damage the operation of another's computer (e.g., “cracks,” “hacks,” or other programs written to defeat the security measures of any computer, system or program(s)); (d) sell, distribute, disseminate or link to any sites for marketing, sales or distribution of: firearms, explosives, ammunition, liquor, tobacco products, food that is not packaged or does not comply with all applicable laws for sale to consumers by commercial merchants, pharmaceuticals and controlled substances, counterfeit, pirated or stolen goods, fraudulent goods, any goods or services that infringe or otherwise violate a third party's rights, registered or unregistered securities, goods or services that: (i) you cannot legally sell, (ii) are misrepresented, and/or (iii) if sold, would cause WhoisGuard to violate any law, statute or regulation; (e) harvest or otherwise collect information about third parties, including email addresses, without the express consent of such third parties; (f) restrict or inhibit any other user from using and enjoying its rights in the Services or the Site, interfering with or disrupting the Services or the Site service or servers or network connected to the Site; (g)email or otherwise transmit, distribute, publish or disseminate any junk email, spam, chain letters, pyramid schemes, or any other form of duplicative or inappropriate solicitations or messages (commercial or otherwise); (h) violate the rights of any third parties, including, but not limited to, trademark, naming or publicity rights, or violate any applicable government laws or regulations. WhoisGuard does not condone or allow spam. You may not use the Site or Services to advertise, promote, market or solicit offers to acquire goods/services that compete with the Services or Site. You hereby agree and accept that WhoisGuard will cooperate with legal authorities and Internet service providers in releasing information about users who violate these TOS or any incorporated terms and conditions.
When WhoisGuard receives a communication to the Protected Domain, WhoisGuard will send an email to the email address you provided to WhoisGuard in accordance with this TOS. The email message from WhoisGuard to you will identify the sender of the correspondence and the date received. As an alternative, you agree that WhoisGuard may allow you to access your account to view full or partial scanned copies of (non-email) communications sent to the Protected 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 WhoisGuard. 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.
You represent and warrant that all information provided by you pursuant to this TOS is truthful, complete, current and accurate and you represent and warrant that you will maintain all information in this status throughout the term of the TOS.
You also represent and warrant that you are using the Services in good faith and that you have no knowledge or reason to believe that your Protected 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 Services nor Protected Domain(s) will be used in connection with any illegal or morally objectionable activity, or, in connection with the transmission of unsolicited commercial email(s) (“spam”). Further, you represent and warrant that you will not provide any third party with the WhoisGuard addresses for the purpose of having such third party transmit communications to you through WhoisGuard.
You agree that from time to time, WhoisGuard will review communications sent to the WhoisGuard addresses associated with your Protected Domain. For communications received via certified or traceable courier mail (such as UPS, FedEx, or DHL), or first class mail which does not appear to be unsolicited commercial mail, you agree that WhoisGuard 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 how you wish WhoisGuard to proceed with respect to that communication.
You understand that WhoisGuard may, in its own judgment and discretion, elect to not forward to you such 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 use of the Services administered by WhoisGuard as a general mail forwarding service. You authorize WhoisGuard 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 WhoisGuard, including such failures which arise from WhoisGuard's mistake of judgment made in good faith in determining whether a communication is or is not an unsolicited communication.
In the event you do not respond to communications from WhoisGuard, irrespective of whether WhoisGuard is forwarding an email or making an unrelated inquiry or communication, you understand and agree that WhoisGuard may immediately reveal the information you provided in accordance with this TOS and/or cancel the Services regarding either the Protected Domain in question or with respect to all of your Protected Domains, depending on the circumstances. This means the WHOIS directory will revert to displaying your name, postal address, email address and phone number.
Except materials provided by you and accepted by us (“your data”), you may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, software, products, services or benefits obtained from the Site, except as expressly provided herein. Except as to your data, all content, database information, data and services available on, and collected as a whole through this Site, are property of WhoisGuard, its affiliates, advertisers and licensors, and are protected by copyrights, trademarks, service marks, patents, trade secrets, and other proprietary rights and laws in the Republic of Panama and internationally. Certain names, products or services that may be mentioned in the Site may be the trademarks of their respective owners. All rights are reserved. WhoisGuard respects the intellectual property of others. If you believe that your rights are being infringed, please submit a notice of your claim to the following Designated Agent:
WhoisGuard Inc.
P.O. Box 0823-03411
Panama
Republic of Panama
WhoisGuard reserves the right to limit or refuse users access to the Site or any Service. WhoisGuard reserves the right to change the requirements for accessing the Site and the Services at any time and for any reason at its sole discretion, including changes to membership fees or other fees for Services. WhoisGuard reserves the right to alter, suspend, or discontinue the Site or any of the Services at any time and for any reason, without prior notice to you. The Site may become unavailable due to maintenance or malfunction of computer equipment or other reasons. WhoisGuard may at any time block your access to the Site if:
The Site may provide links to third-party websites, which are not under the control of WhoisGuard. WhoisGuard makes no representations about third-party web sites. WhoisGuard is not responsible for the reliability of any data, opinions, advice, or statements made on third-party sites. WhoisGuard provides these links merely as a convenience. The inclusion of such links does not imply that WhoisGuard endorses, recommends, or accepts any responsibility for the content of such sites. WhoisGuard shall not be liable, directly or indirectly, for any damage or loss caused or alleged to be caused by the use of a third-party web site or any information or materials received from a third-party web site.
You remain bound by these terms and conditions until and unless the TOS is properly terminated. You may terminate the TOS provided that you have no outstanding payment or other obligations due to WhoisGuard. WhoisGuard may terminate the TOS and/or your access to the Site or any Services at any time, with or without cause or notice, and without liability. Notwithstanding termination of the TOS by you or by WhoisGuard, the provisions in this TOS shall remain in full force and effect. Upon termination, you will no longer have access to any data or information you had previously created, maintained, managed, or stored in or through the Site, and WhoisGuard is under no obligation to maintain any such data or information.
You understand that the term of the Services administered by WhoisGuard begins on the date your attempt to purchase the Services is accepted by WhoisGuard and that it shall run for the unit of time which you order (“Term”). You understand that the Term may be different than the registration term of the Protected Domain which is associated with WhoisGuard. If a Protected Domain registration expires and is deleted before the end of the Term of the associated Services, then the Services associated with the domain will end when the Protected Domain is deleted, and you understand that there will be no refund for any resulting unused portion of the Term. If the Term ends while the registration term for the Protected Domain is still ongoing, then the Services will no longer be provided, the personal information specified in this TOS shall be listed in the public WHOIS Directory output for the (then former) Protected Domain, and the communications forwarding services specified in this TOS will no longer be provided.
Notwithstanding your purchase of the Services administered by WhoisGuard, WhoisGuard reserves the right in its sole judgment and discretion to disclose your personal protected information, or instruct WhoisGuard to disclose such information, in the event any of the following occur:
If you have selected automatic renewal of the Services administered by WhoisGuard, you agree:
YOUR USE OF THE SITE AND/OR SERVICES, INCLUDING ANY DATA PROVIDED, IS AT YOUR SOLE RISK. THE ACCURACY, CONDITION AND AVAILABILITY OF THE SITE AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS. WHOISGUARD EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WHOISGUARD MAKES NO WARRANTY THAT: (i) THE INFORMATION ON THIS SITE IS CORRECT, ACCURATE OR RELIABLE; (ii) THE FUNCTIONS CONTAINED ON THIS SITE WILL BE UNINTERRUPTED OR ERROR-FREE; OR (iii) DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. IN NO EVENT SHALL WHOISGUARD, ITS AFFILIATES, PARENTS, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, OR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SITE, THE SERVICES, OR THESE TOS (HOWEVER ARISING, INCLUDING GROSS NEGLIGENCE). WITHOUT AFFECTING THE LIMITATIONS OF LIABILITY IN THIS SECTION, THE LIABILITY OF WHOISGUARD, AND/OR ITS AFFILIATES, PARENTS, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IS LIMITED IN ALL CIRCUMSTANCES TO $1.00 OR THE MINIMUM AMOUNT SET BY LAW IN THE CORRESPONDING JURISDICTION WHERE THE DISPUTE IS ADJUDICATED, WHICHEVER IS LOWER.
You further understand and agree that WhoisGuard disclaims any loss or liability resulting from:
YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD WHOISGUARD AND ANY PARENT, SUBSIDIARY, AFFILIATE, OFFICER, DIRECTOR, AGENT, AND EMPLOYEE (EACH AN “INDEMNITEE”) HARMLESS FROM ANY LOSS, LIABILITY, EXPENSE, CLAIM OR DEMAND (INCLUDING REASONABLE ATTORNEYS' FEES) (COLLECTIVELY “CLAIM”), ARISING DIRECTLY OR INDIRECTLY OUT OF OR IN CONNECTION WITH (i) ANY ACT OR OMISSION BY YOU, INCLUDING YOUR USE OF THE SITE OR ANY SERVICES, OR YOUR BREACH OF THIS TOS OR ANY OTHER AGREEMENT WITH ANY THIRD PARTY OR WITH WHOISGUARD, INCLUDING ONE INCORPORATED BY REFERENCE, (ii) YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF WHOISGUARD OR ANY THIRD PARTY, INCLUDING ANY ALLEGED OR ACTUAL VIOLATION OF ANY INTELLECTUAL PROPERTY OR PRIVACY RIGHTS, AND/OR (iii) ANY ACT OR OMISSION ON THE PART OF ANY INDEMNITEE (PROVIDED THAT YOU SHALL NOT BE OBLIGATED TO INDEMNIFY AS TO ACTS OR OMISSIONS BY INDEMNITEES TO THE EXTENT SUCH CLAIM AROSE AS A DIRECT CONSEQUENCE OF AN INTENTIONAL ACT BY SUCH INDEMNITEE).
With respect to ICANN, the registry operators, the registrar with which the Protected Domain is registered and WhoisGuard, as well as the contractors, agents, employees, officers, directors, shareholders, and affiliates of such parties, you agree to defend, release, indemnify, and hold such parties harmless from all liabilities, claims and expenses, including attorney’s fees and court costs, for third party claims relating to or arising under the TOS, the Services provided hereunder, or your use of the Services, including, without limitation, infringement by you, or by anyone else using the Services provided to you, of any intellectual property or other proprietary right of any person or entity, or from the violation of any of WhoisGuard's TOS, operating rules or policies relating to the Services provided.
When WhoisGuard may be involved in a suit involving a third party and which is related to the Services administered by WhoisGuard to you under this TOS, WhoisGuard may seek written assurances from you in which you promise to defend, indemnify and hold WhoisGuard harmless from the costs and liabilities described in this paragraph. Such written assurances may include, in WhoisGuard's sole discretion, the posting of a performance bond(s) or other guarantees reasonably calculated to guarantee payment. Your failure to provide such assurances may be considered by WhoisGuard to be a breach of this TOS by you and may, in WhoisGuard's sole discretion, result in loss of your right to control the disposition of domain name services for which you are the registrant and in relation to which WhoisGuard is the service provider.
Should WhoisGuard be forced to defend itself in any action or legal proceeding in connection with any of the Services provided to you, you shall have sole responsibility to defend WhoisGuard against any such claim by legal counsel of its choosing. This indemnification is in addition to any indemnification required under the Uniform Domain Name Dispute Resolution Policy (“UDRP”).
You agree to release, defend, indemnify and hold harmless the Primary and Backend Service Providers, and their 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 TOS, the websites of other third party service providers, your WhoisGuard account, and/or your use of the Protected Domain.
The terms of this Section will survive any termination or cancellation of this TOS.
The UDRP adopted by the Internet Corporation for Assigned Names and Numbers (“ICANN”) sets forth the terms and conditions in connection with a dispute between a registrant and any party (other than the registrar) over the registration and use of an Internet domain name. The UDRP is incorporated by reference into a third party domain name registration agreement entered into between domain name registrants and their third party registrars.
You agree and understand that WhoisGuard is a privacy registration service; it is not a registrar. Both domain name registrants who utilize WhoisGuard privacy registration services, and those who would dispute the registration and use of an Internet domain name by a WhoisGuard customer, are advised to refer to the UDRP as well as the applicable domain name registration agreement.
WhoisGuard routinely receives notices from its affiliated registrars informing it of the filing of various administrative proceedings under the UDRP. Upon receipt of such notices, WhoisGuard cancels its privacy service for the domain name that is the subject of the dispute and notifies its customer about the cancellation of service.
You agree and understanding that WhoisGuard does not and will not participate in the administration or conduct of any Policy proceedings and will not be liable as a result of any decisions rendered by any administrative panel adjudicating such UDRP proceedings. In the event that WhoisGuard is named as a party in any such proceedings, it reserves the right to raise any and all defenses deemed appropriate and to take any other action necessary to defend itself.
Except as otherwise set forth in the UDRP or any similar ccTLD policy with respect to any dispute over a domain name registration, this TOS, your rights and obligations and all actions contemplated by this TOS shall be governed by the laws of the Republic of Panama, as if the TOS was a contract wholly entered into and wholly performed within the Republic of Panama.
You agree that any action brought by you to enforce this TOS or any matter brought by you and which is against or involves WhoisGuard and which relates to your use of the Services shall be brought exclusively in the courts of Republic of Panama.
You consent to the personal and subject matter jurisdiction of the appropriate court in the Republic of Panama in relation to any dispute between you and WhoisGuard under this TOS.
You agree that service of process on you by WhoisGuard in relation to any dispute arising under this TOS may be served upon you by first class mail to the address listed by you in your account and/or domain name WHOIS information or by electronically transmitting a true copy of the papers to the email address listed by you in your account and/or domain name WHOIS information.
You agree to waive the right to trial by jury in any proceeding that takes place relating to or arising out of this TOS.
This TOS is made and entered into solely for the benefit of the parties designated herein. Nothing in this TOS, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under or by reason of this TOS. Third parties claiming rights under this TOS are specifically excluded.
You agree that any notices required to be given under this TOS by WhoisGuard to you will be deemed to have been given if delivered in accordance with the account and/or domain name WHOIS information you have provided.
This TOS, the referenced agreements incorporated herein, the ICANN Policy and the UDRP, together with all modifications, constitute the complete and exclusive agreement between you and WhoisGuard, and supersede and govern all prior proposals, agreements, or other communications. This TOS may not be amended or modified by you except by means of a written document signed by both you and an authorized representative of WhoisGuard.
Nothing contained in this TOS shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties hereto. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
Any failure on the part of WhoisGuard to require your performance of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by WhoisGuard 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 TOS shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this TOS unenforceable or invalid as a whole. WhoisGuard will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent as reflected in the original provision.
Your rights under this TOS are not assignable or transferable. Any attempt by your creditors to obtain an interest in your rights under this TOS, whether by attachment, levy, garnishment or otherwise, renders this TOS voidable at the option of WhoisGuard.
WhoisGuard may freely assign or delegate all or any part of its rights or obligations under these TOS without prior notice or consent.
Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its control including, but not limited to: earthquake; flood; fire; storm; natural disaster; act of God; war; terrorism; armed conflict; labor strike; lockout; boycott; supplier failures, shortages, breaches, or delays; or any law, order regulation, direction, action or request of the government, including any federal, state and local governments having or claiming jurisdiction over WhoisGuard or its affiliates, or of any department, agency, commission, bureau, corporation or other instrumentality of any federal, state, or local government, or of any civil or military authority; or any other cause or circumstance, whether of a similar or dissimilar nature to the foregoing, beyond the reasonable control of the affected party, provided that the party relying upon this Section (i) shall have given the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, WhoisGuard may immediately terminate this TOS.
The section headings appearing in this TOS are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
