Namecheap.com - Namecheap™ Whois Privacy Service Agreement (original) (raw)

1. INTRODUCTION

Namecheap, as a proud leader in online privacy, provides free domain registration privacy service for all eligible domains. The domain registration privacy service is offered using a third-party service provider selected by Namecheap (“WHOIS Privacy Service”).

This WHOIS Privacy Service Agreement (“WHOIS PSA”) sets forth the terms that apply when you use, whether by purchase or free, WHOIS Privacy Service provided by Namecheap. This WHOIS PSA supplements and is in addition to any other Namecheap terms that apply to you and your use of Namecheap services, such as our Universal Terms of Service and Domain Registration Agreement. By using or continuing to use WHOIS Privacy Service offered by Namecheap, you acknowledge and agree to these terms.

In this WHOIS PSA, “you” and “your” refer to you and any agent, employee, servant or person authorized to act on your behalf, and the Namecheap Registrant listed in the WHOIS contact information for the domain name. This WHOIS PSA explains Namecheap’s obligations to you in connection with your WHOIS Privacy Services and explains your obligations to Namecheap.

2. PRIVACY SERVICES

Namecheap has selected WithHeldForPrivacy (WFP) as its third-party provider of WHOIS Privacy Services. WFP, an Icelandic company subject to the GDPR, was chosen because of its unmatched privacy-by-design approach for the provision of privacy services for domain WHOIS information.

WFP’s privacy services include the use of its contact information (address, phone and email) for all relevant WHOIS fields that may be otherwise publicly displayed. Accordingly, as part of this service, WFP may be contacted by third parties who wish to reach you as the domain registrant. WFP will provide a privacy protected means for such third parties to reach you.

Your personal and WHOIS information will not be shared with WFP. WFP does not collect, nor are they provided with, your personal information.

However, Namecheap’s provision of WFP’s privacy service for WHOIS Privacy Services is subject to your compliance with these terms.

You may find more information about WFP by visiting their site. See https://withheldforprivacy.com/.

3. YOUR RIGHTS & RESPONSIBILITIES

You acknowledge and agree that you understand that Namecheap’s WHOIS Privacy Services are third party services and provide domain privacy protection only. You further acknowledge and agree to the terms of Namecheap’s Domain Registration Agreement, which includes that you alone are responsible for the appropriate and legally permissible use of your domain. This means that you will remain responsible to resolve any and all monetary or other legal claims that arise in connection with your protected domain(s) that are subject to the provisions of this WHOIS PSA, your Domain Registration Agreement and/or Hosting Services Agreement with Namecheap and applicable WFP Terms (collectively “Agreements”).

4. YOUR REPRESENTATIONS & WARRANTIES

You represent and warrant that all information provided by you pursuant to Namecheap’s Agreements are truthful, complete, current and accurate, and you represent and warrant that you will maintain all information in this status throughout the term of the Agreements.

You also represent and warrant that you are using the WHOIS Privacy 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 WHOIS Privacy Services nor protected domain(s) will be used in connection with any illegal activity, activity that violates Namecheap’s Acceptable Use Policy, 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 WFP Addresses for the purpose of having such third party transmit communications to you through WFP.

5. SUSPENSION OR TERMINATION AND DISCLOSURE OF YOUR PERSONAL INFORMATION

Notwithstanding Namecheap’s provision of WHOIS Privacy Service, you explicitly agree and consent to Namecheap’s right and/or obligation to disclose your privacy protected information to relevant third parties and/or the public in the event any of the following occur:

You also acknowledge that WFP removal of Services may happen in limited situations. While WFP cannot disclose Customer personal information because such information is not delivered to WFP, there may be circumstances where WFP is legally required to remove its services. In this situation, WFP will notify and work with Namecheap in advance, where possible and reasonable in its sole discretion, to determine if privacy, in whole or in part, may still be secured for the domain in question and in an appropriate circumstance.

In the event that Namecheap and/or WFP decides or is required to take any of the actions set forth above or in the event you elect to explicitly disable the WHOIS Privacy Service for any reason, you agree that neither Namecheap nor WFP shall be liable to you for any reason.

6. COMMUNICATIONS

The WHOIS Privacy Services offered by WFP provide the use of WFP’s physical address and phone number as a means for third parties to reach you. It also provides an anonymized email address for your use. With WFP’s services, Namecheap is provided with the technological solution to use such anonymized email as a forwarding mechanism to the email address you have on file with Namecheap. When third parties to try communicate with you via WFP’s physical address, phone or anonymized email, you agree to the following terms:

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 WFP may either i) forward such communication to Namecheap to forward to you or ii) may attempt to communicate to Namecheap a scanned copy of a page of the communication to ascertain how Namecheap wishes WFP to proceed with respect to that communication.

You understand that WFP may, in its own judgment and discretion, elect to not forward 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 WHOIS Privacy Services administered by WFP as a general mail forwarding service. You authorize WFP 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 Namecheap or by WFP, including such failures which arise from either party’s mistake of judgment made in good faith in determining whether a communication is or is not an unsolicited communication.

With the WHOIS Privacy Services administered by WFP, an email address will be automatically generated for the corresponding Protected Domain (e.g. XXXXX.protect@withheldforprivacy.com). Thereafter, when messages are sent to the email address listed in the WFP Address, the message will be automatically forwarded to the email address you provided to Namecheap. If the email address you have with Namecheap becomes non-functioning or if the email to such address bounces, you agree that neither Namecheap nor WFP shall not be obligated to attempt to contact you through other means.

7. LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES SHALL NEITHER NAMECHEAP OR ITS CHOSEN THIRD-PARTY PRIVACY SERVICE PROVIDER, INCLUDING BUT NOT LIMITED TO WFP, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES FOR ANY REASON WHATSOEVER RELATED TO THIS WHOIS PSA, YOUR DOMAIN NAME REGISTRATION, THE WHOIS PRIVACY SERVICES ADMINISTERED BY WFP OR OTHER SELECTED THIRD PARTIES, YOUR USE OR INABILITY TO USE THE NAMECHEAP WEBSITE(S) OR THE MATERIALS AND CONTENT OF THE WEBSITE(S) OR ANY OTHER WEBSITES LINKED TO SUCH WEBSITE(S) OR YOUR PROVISION OF ANY PERSONALLY IDENTIFIABLE INFORMATION TO BACKEND SERVICE PROVIDER OR ANY THIRD PARTY AS OUTLINED HEREIN. THIS LIMITATION APPLIES REGARDLESS OF WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF NAMECHEAP 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, NAMECHEAP’S 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.

You further understand and agree that Namecheap disclaims any loss or liability resulting from:

YOU AGREE THAT, IN ANY EVENT, THE PRIMARY AND BACKEND SERVICE PROVIDERS’ RESPECTIVE MAXIMUM LIABILITY TO YOU SHALL BE CAPPED BY THE LESSER OF THE AMOUNT OF FEES PAID BY YOU FOR IN THE PRECEDING YEAR WITH RESPECT TO THE SERVICES WHICH GAVE RISE TO THE LIABILITY OR $100.00 PER PROTECTED DOMAIN.

8. INDEMNITY AND DEFENSE

With respect to ICANN, the registry operators, and Namecheap, 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 WHOIS PSA, the WHOIS Privacy Services provided hereunder, or your use of the WHOIS Privacy Services, including, without limitation, infringement by you, or by anyone else using the WHOIS Privacy Services provided to you, of any intellectual property or other proprietary right of any person or entity, or from the violation of any of Namecheap’s operating rules or policies relating to the WHOIS Privacy Services provided.

When Namecheap may be involved in a suit involving a third party and which is related to the WHOIS Privacy Services, administered by WFP and/or a provider of our choice, to you under this WHOIS PSA, Namecheap may seek written assurances from you in which you promise to defend, indemnify and hold Namecheap harmless from the costs and liabilities described in this paragraph. Such written assurances may include, in Namecheap’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 Namecheap to be a breach of this WHOIS PSA by you and may, in Namecheap’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 Namecheap is the registrar of record.

Should Namecheap be forced to defend itself in any action or legal proceeding in connection with any WHOIS Privacy Services provided to you, you shall have sole responsibility to defend Namecheap 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 third-party service provider of the offered WHOIS Privacy Service, 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 the Agreements and/or your use of your privacy protected domain.

The terms of this Section will survive any termination or cancellation of this WHOIS PSA.

9. WHOIS PRIVACY SERVICE PROVIDER WARRANTY DISCLAIMER

THE WHOIS PRIVACY SERVICE PROVIDER, ITS PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, AGENTS, DIRECTORS, OFFICERS, AND EMPLOYEES EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND IN CONNECTION WITH THIS WHOIS PSA, THE SERVICES PROVIDED HEREUNDER, THE WEB SITES OF THE WHOIS PRIVACY SERVICE PROVIDER OR ANY WEB SITES LINKED TO SUCH WEB SITES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ALL WHOIS PRIVACY SERVICE PROVIDER SERVICES, AS WELL AS THE WHOIS PRIVACY SERVICE PROVIDER WEB SITE, ARE PROVIDED “AS IS”. YOUR SUBSCRIPTION TO AND USE OF WHOIS PRIVACY SERVICE PROVIDER’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. 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.

10. GOVERNING LAW AND JURISDICTION FOR DISPUTES

Except as otherwise set forth in the UDRP or any similar ccTLD policy with respect to any dispute over a domain name registration this WHOIS PSA, your rights and obligations and all actions contemplated by this WHOIS PSA shall be governed by the laws of the United States of America and the State of Arizona.

You agree that any action brought by you to enforce this WHOIS PSA or any matter brought by you and which is against or involves Namecheap and which relates to your use of the Services offered by Namecheap directly shall be brought exclusively in the United States District Court of Arizona, or if there is no jurisdiction in such court, then in a state court in Maricopa County, State of Arizona. You consent to the personal and subject matter jurisdiction of any state or Federal court in Maricopa County, State of Arizona in relation to any dispute between you and Namecheap under this WHOIS PSA.You agree that service of process on you by Namecheap in relation to any dispute arising under this WHOIS PSA 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 WHOIS PSA.

In the event that You elect to bring suit against WFP, any such suit must be brought exclusively before the Courts of Reykjavik, Iceland. With respect to the adjudication of any claim against WFP, You consent to the personal and subject matter jurisdiction of the applicable Court in Reykjavik, Iceland and, further, consent that Icelandic substantive laws shall exclusively govern the subject dispute.

11. NOTICES

You agree that any notices required to be given under this WHOIS PSA by Namecheap 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.

12. FINAL AGREEMENT

This WHOIS PSA, the referenced Agreements incorporated herein, the ICANN Policy and the UDRP, together with all modifications, constitute the complete and exclusive agreement between you and Namecheap, and supersede and govern all prior proposals, agreements, or other communications. This WHOIS PSA may not be amended or modified by you except by means of a written document signed by both you and an authorized representative of Namecheap.

13. NO THIRD-PARTY RIGHTS

This Whois PSA is intended for the benefit of You, Namecheap, Namecheap’s selected WHOIS Privacy Service provider, and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other person or entity.

Further, you agree that you are not a party to the contract between Namecheap and its selected WHOIS Privacy Service provider. As such, you acknowledge and agree that you have no third-party rights vis-à-vis such provider and that your sole rights exist between you and Namecheap, which are governed by this WHOIS PSA plus any related agreements.

In addition, no rights are intended nor are they created for anyone who is not a direct party of this WHOIS PSA.

14. NO AGENCY RELATIONSHIP

Nothing contained in this WHOIS PSA shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties hereto, including the WHOIS Privacy Service Provider. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.

15. NO WAIVER

Any failure on the part of Namecheap 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 Namecheap of a breach of any provision hereof be taken or held to be a waiver of the provision itself.

16. ENFORCEABILITY

In the event that any provision of this WHOIS PSA 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 WHOIS PSA unenforceable or invalid as a whole. Namecheap 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.