This WHOIS Privacy Protection Service Agreement (“Service Agreement”) sets forth the terms and conditions of your use of the services offered through WHOISPrivacyShield.org, and serves to supplement the Registration Agreement between you and Pheenix, Inc. (“Pheenix”). In this Service Agreement “you” and “your” refer to you 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. “We”, “us” and “our” refer to Pheenix. This Service Agreement explains our obligations to you, and explains your obligations to us for privacy protection services offered by Pheenix via WHOISPrivacyShield.org.
1. WHOIS Privacy Protection Services
1.1 By subscribing to the WHOIS Privacy Protection Services offered by Pheenix via WHOISPrivacyShield.org (“Privacy Services”), you are engaging Pheenix to register a domain name controlled by you (“Your Domain Name”) in the name of WHOISPrivacyShield.org, and authorizing Pheenix to make publicly available to the WHOIS directory the following information for Your Domain:
(a) WHOISPrivacyShield.org listed as the registrant of Your Domain Name;
(b) WHOISPrivacySheild.org’s email address, postal address, phone number, facsimile number for the registrant, administrative, and billing contacts of Your Domain Name;
(c) The primary and secondary domain name servers you designate for Your Domain Name;
(d) The identity of the registrar and the status of Your Domain Name with the registrar; and
(e) The original date of registration and expiration date of Your Domain Name.
2. Your Rights
2.1 You will retain the right to sell, transfer, or assign Your Domain Name. You will retain the right to control and set the DNS settings for Your Domain Name. You will retain the right to renew Your Domain Name registration upon expiration (subject to your registrar’s applicable rules and policies). You will remain responsible to resolve any and all monetary or other legal claims that arise in connection with Your Domain Name, subject to the remaining provisions of this Services Agreement and the Registration Agreement (collectively, “Agreements”).
2.2 You may elect to cancel your subscription to the Privacy Services at any time, whereupon after cancellation is effected, your registration information that you have provided us pursuant to Paragraph 3 below will be made publicly available to the WHOIS directory.
3. Your Personal Information
3.1 You agree that you will provide to us and maintain as current and accurate, the following registration information for Your Domain Name:
(a) Your name, address, email address, postal address, phone and fax numbers;
(b) The name, address, email address, postal address, phone and fax numbers for the administrative, technical, and billing contacts for Your Domain Name; and
(c) The primary and secondary domain name servers for Your Domain Name.
3.2 You agree to:
(a) update your registration information immediately as it changes over time;
(b) respond within five (5) business days to any inquiries made by us to determine the validity of personal information provided by you;
(c) promptly respond to messages regarding correspondence addressed to or involving Your Domain Name.
3.3 If you do not supply primary and secondary domain name servers, you agree that we may point Your Domain Name to an IP address of our choosing until such time as you supply primary and secondary domain name servers.
4. Your Representations and Warranties
4.1 You represent and warrant that all information provided by you pursuant to this Service Agreement is truthful, complete, current and accurate and you represent and warrant that you will maintain all information in this status throughout the term of this Service Agreement. You also represent and warrant that you are using the Privacy Services in good faith and that you have no knowledge or reason to believe that Your Domain Name 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.
4.2 You represent and warrant that neither the Privacy Services nor Your Domain Name will be used in connection with any illegal or morally objectionable activity (as defined below in Paragraph 5), or, in connection with the transmission of unsolicited commercial email(s), including, but not limited to, spam.
4.3 You represent and warrant that you will not provide any third party with our email address(es) or postal address(es) designated to Your Domain Name for the purpose of having such third party transmit communications to you through us.
5. Suspension or Termination
5.1 Notwithstanding your subscription of the Privacy Services, we reserve the right in our sole judgment and discretion to disclose your personal protected information in the event any of the following occur:
(a) If Your Domain Name is alleged to violate or infringe a third party’s trademark, trade name, copyright interests or other legal rights of third parties;
(b) If you breach any provision of this Service Agreement;
(c) If you breach any provision of the Registration Agreement;
(d) If necessary to comply with any applicable laws, government rules or requirements, subpoenas, court orders or requests of law enforcement;
(e) If we are named as a defendant in, or investigated in anticipation of, any legal or administrative proceeding arising out of your use of the Privacy Services or Your Domain Name;
(f) If necessary to comply with ICANN’s Dispute Resolution Policy or other policies promulgated by ICANN;
(g) If necessary to avoid any financial loss or legal liability (civil or criminal) on our part our on the part of our parent companies, subsidiaries, affiliates, shareholders, agents, officers, directors and employees;
(h) If necessary to protect the integrity and stability of the applicable domain name registry; or
(i) If it comes to our attention that you are alleged to be using the Privacy 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 (collectively, “Illegal or Misleading Activities”):
(i) is hateful, defamatory, derogatory or bigoted based on racial, ethnic, sexual preference, age, disability or political grounds or that may otherwise cause injury, damage or harm of any kind to any person or entity;
(ii) defame, embarrass, harm, abuse, threaten, or harass;
(iii) violate any applicable local, state, national or international law or regulation;
(iv) involves terrorism or child pornography;
(v) is tortuous, vulgar, obscene, invasive of a third party’s privacy, race, ethnicity, or are otherwise objectionable;
(vi) impersonate the identity of a third party;
(vii) harm minors in any way; or
(viii) advertises or offers for sale any goods or services that are unlawful or in breach of any national or international law or regulation;
(ix) 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.
5.2 We do not condone the use of Your Domain Name for or in connection with any Illegal or Misleading Activities, and we reserve the right to report such activities to the relevant law enforcement agencies if we determine at our sole and absolute discretion that Your Domain Name is being used in such manner.
5.3 In the event we take any of the actions set forth above or in the event you elect to cancel the Privacy Services for any reason, we will not refund any fees paid by you for the Privacy Services.
6. Forwarding Communications
6.1 You hereby authorize us to read or listen to all communications received in relation to Your Domain Name, including telephone messages.
6.2 For communications received via certified or traceable courier mail (such as UPS, FedEx, or DHL), or first class United States postal mail which does not appear to be unsolicited commercial mail, we will forward such communication to you at your expense. You agree that a handling fee of US$25.00 will be charged to you whenever physical action is required on our part to forward or fax mail. This does not apply to the automatic forwarding of email. This handling fee is in addition to the postage cost (together referred to as the “Forwarding Charge”) and you hereby authorize Pheenix to deduct the amount of the Forwarding Charge from your Pheenix account.
6.3 You understand that we may, in our 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 advertize the sale of goods or services or which solicit charitable contributions, or communications which appear to arise from your use of the Privacy Services as a general mail forwarding service. You authorize us to either discard all such communications.
6.4 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 us, including such failures which arise from our mistake of judgment made in good faith in determining whether a communication is or is not an unsolicited communication.
6.5 The WHOIS directory generally requires an email address for every purchased domain name registration. When you subscribe to Privacy Services, an email address will be automatically generated for Your Domain Name as follows: [email protected] . Thereafter, when messages are sent to this email address, we will forward such messages to the email address you provided to us, in accordance with Paragraph 3 of this Service Agreement. If such email address becomes non-functioning or if the email to such address bounces, we shall not be obligated to attempt to contact you through other means.
7.1 Either party may terminate this Service Agreement by giving notice to the other party.
7.2 This Service Agreement will automatically terminate if Pheenix ceases to be the registrar of Your Domain Name.
8. Limitation of Liability
8.1 UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES FOR ANY REASON WHATSOEVER RELATED TO THIS AGREEMENT, YOUR DOMAIN NAME REGISTRATION, THE PRIVACY SERVICES, YOUR USE OR INABILITY TO USE OUR WEB SITE(S) OR THE MATERIALS AND CONTENT OF THE WEB SITE(S) OR ANY OTHER WEB SITES LINKED TO SUCH WEB SITE(S) OR YOUR PROVISION OF ANY PERSONALLY IDENTIFIABLE INFORMATION TO BACKEND SERVICE PROVIDER 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 WE HAVE 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, OUR LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. IF ANY PROVISION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE UNENFORCEABLE, ONLY SUCH PROVISION SHALL BE REMOVED AND THE REMAINDER SHALL BE ENFORCED TO THE GREATEST EXTENT PERMITTED BY LAW.
9. YOU FURTHER UNDERSTAND AND AGREE THAT WE DISCLAIM ANY LOSS OR LIABILITY RESULTING FROM:
(a) the inadvertent disclosure or theft of your personal information;
(b) access delays or interruptions to our web site or the web sites of affiliated parties;
(c) data non-delivery or inaccurate delivery between you and us;
(d) the failure for any reason to renew the Privacy Services;
(e) the unauthorized use of your Pheenix and/or WHOISPrivacySheild.org account;
(f) deletion of, failure to store, failure to process or act upon email messages sent to or forwarded to either you or the email address listed for Your Domain Name;
(g) processing of updated information regarding Your Domain Name;
(h) any act or omission caused by you or your agents (whether authorized by you or not).
10.1 With respect to ICANN, the registry operators, and Pheenix, 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 Agreements, the Privacy Services provided hereunder, or your use of Privacy Services, including, without limitation, infringement by you, or by anyone else using the Privacy Services we provide to you, of any intellectual property or other proprietary right of any person or entity, or from the violation of any of our operating rules or policies relating to the Privacy Services provided. When we may be involved in a suit involving a third party and which is related to our Privacy Services to you under these Agreements, we may seek written assurances from you in which you promise to defend, indemnify and hold us harmless from the costs and liabilities described in this paragraph. Such written assurances may include, in our 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 us to be a breach of these Agreements by you and may, in our 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 we are the registrar of record. Moreover, should we be forced to defend ourselves in any action or legal proceeding in connection with any Privacy Services provided to you, you shall have sole responsibility to defend us against any such claim by legal counsel of our choosing. This indemnification is in addition to any indemnification required under the UDRP. The terms of this paragraph will survive any termination or cancellation of the Agreements. Moreover, you agree to release, defend, indemnify and hold harmless the Pheenix and WHOISPrivacyShield.org, and their parent companies, subsidiaries, affiliates, shareholders, agents, directors, officers and employees, from and against any and all claims, demands, liabilities, losses, damages or costs, including reasonable attorney’s fees, arising out of or related in any way to the Agreements, the Privacy Services, and/or your use of Your Domain Name.
11. Governing Law and Jurisdiction for Disputes
11.1 Except as otherwise set forth in the UDRP or any similar ccTLD policy with respect to any dispute over a domain name registration this Services Agreement, your rights and obligations and all actions contemplated by this Service Agreement shall be governed by the laws of the United States of America and the State of California, as if the Service Agreement was a contract wholly entered into and wholly performed within the State of California. You agree that any action brought by you to enforce this Service Agreement or any matter brought by you and which is against or involves us and which relates to your use of the Services shall be brought exclusively in the United States District Court for the Central District of California, or if there is no jurisdiction in such court, then in a state court in Orange County, State of California. You consent to the personal and subject matter jurisdiction of any state or Federal court in Orange County, State of California in relation to any dispute between you and us under this Services Agreement. You agree that service of process on you by us in relation to any dispute arising under this Service Agreement 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.
11.2 YOU AGREE TO WAIVE THE RIGHT TO TRIAL BY JURY IN ANY PROCEEDING THAT TAKES PLACE RELATING TO OR ARISING OUT OF THIS AGREEMENT.
12.1 You agree that any notices required to be given under this Service Agreement by us 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.
13. Legal Age
13.1 You attest that you are of legal age to enter into this Service Agreement.
14.1 This Service Agreement, the Registration Agreement, the ICANN Policy and the UDRP, together with all modifications, constitute the complete and exclusive agreement between you and us, and supersede and govern all prior proposals, agreements, or other communications. This Service Agreement may not be amended or modified by you except by means of a written document signed by both you and an authorized representative of us.
15. No Agency Relationship
15.1 Nothing contained in this Service Agreement 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.
16.1 The failure of us 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 us of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
17.1 In the event that any provision of this Service Agreement 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 Service Agreement unenforceable or invalid as a whole. We will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, our original objectives and intent as reflected in the original provision.
18.1 Except as otherwise set forth herein, your rights under this Service Agreement are not assignable or transferable. Any attempt by your creditors to obtain an interest in your rights under this Service Agreement, whether by attachment, levy, garnishment or otherwise, renders this Service Agreement voidable at our option.
19. Force Majeure
19.1 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 Pheenix, 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 Paragraph (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 Paragraph extends for a period in excess of thirty (30) days in the aggregate, Pheenix may immediately terminate this Service Agreement.