Domain Registration Reseller Agreement
This Domain Registration Reseller Agreement (hereinafter referred to as the "Agreement") is made, entered into and executed on the date on which you electronically consent to the Agreement (hereinafter referred to as the "Effective Date"),
(hereinafter referred to as "Registrar") and you (hereinafter referred to as "Reseller"). If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the term "Reseller" shall refer to such entity.
Registrar and Reseller may be referred to individually as a "Party" and collectively as the "Parties."
WHEREAS Registrar provides various Registrar Services;
AND WHEREAS Reseller wishes to purchase and resell Registrar Services;
NOW, THEREFORE, for and in consideration of the mutual promises, benefits and covenants contained herein and for other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, Registrar and Reseller, intending to be legally bound, hereby agree as follows:
REPRESENTATIONS AND WARRANTIES
- "API Resellers (OpenHRS Connected) Program" or "API Resellers Program" refers to resellers who connect via API directly to Registrar's third-party technology partner to resell Registrar Services. API Resellers are responsible for all payments due to Registrar.
- "Advance Account" refers to the balance of funds maintained by Reseller with Registrar as required in the API Reseller Program.
- "Business Day" refers to a weekday, Monday through Friday, excluding all U.S. public holidays.
- "Confidential Information," as used in this Agreement, shall mean all data, information and materials including, without limitation, computer software, data, information, databases, protocols, reference implementation, documentation, functional and interface specifications, provided by Registrar to Reseller under this Agreement, whether written, transmitted, oral, through Registrar Website or otherwise, that is marked as "Confidential" or that by its nature and content, it is reasonable to believe is confidential and proprietary.
- "Customer" refers to the customer of Reseller.
- "Fees" refers to the payment due to Registrar pursuant to any Order.
- "gTLD" refers to the top-level domain(s) of the DNS delegated by ICANN pursuant to a registry agreement that is in full force and effect, and does not include any country code TLD ("ccTLD") or internationalized domain name ("IDN") country code TLD.
- "ICANN" is the Internet Corporation for Assigned Names and Numbers.
- "Order" refers to a Registrar Service purchased directly or indirectly by a Reseller, pursuant to this Agreement.
- "Personal Data" is data about any identified or identifiable natural person.
- "Private Label Program" refers to resellers offering Registrar Services for which Registrar: receives payment directly from Customers, provides customer service, and provides a revenue share to Reseller for Registrar Services sold.
- "RAA" is the Registrar Accreditation Agreement entered into by ICANN and Registrar, or one of its affiliated companies.
- "Registered Name" is a domain name within the domain of a gTLD or ccTLD, consisting of two or more levels (e.g., john.smith.name), for which a TLD Registry Operator (or an Affiliate or subcontractor thereof engaged in providing registry services) maintains data in a database operated by the Registry Operator, arranges for such maintenance, or derives revenue from such maintenance.
- "Registered Name Holder" is the owner of a Registered Name as listed in the Whois record.
- "Registrar Services" refers to all products and services of Registrar which it has provided, rendered, or sold or is providing, rendering, or selling through Reseller pursuant to this Agreement, including, but not limited to, domain registration, renewal, and transfer.
- "Registrar Servers" refers to Web servers, mailing list servers, database servers, and any other machines or servers that Registrar or its Service Providers operate for the Registrar Website, Registrar Services and any other operations required to fulfill services and operations of Registrar.
- "Registrar Website" refers to www.domain.com.
- "Registry Operator" is the person or entity responsible for providing registry services for a specific gTLD or ccTLD.
- "Reseller Contact Details" refers to the name, address, phone number, fax number, email address, and website(s) of Reseller that Reseller provides to Registrar.
- "Reseller Program" refers to any of Registrar's current reseller programs including the Private Label, Wholesale, WholesalePlus or API Resellers Program, as currently described or later modified, and any reseller programs to be offered by Registrar in the future.
- "Service Providers" refers individually and collectively to any third party that Registrar may, directly or indirectly, engage, employ, outsource, or contract with for the fulfillment, provision, or purchase of Registrar Services and any other services and operations of Registrar, and shall have the same rights as Registrar to the extent required to perform services pursuant to the terms of this Agreement and as authorized by Registrar.
- "Wholesale Program" and "WholesalePlus Program" refers to resellers offering Registrar Services for which Registrar collects funds directly from Reseller for Registrar Services.
- RIGHTS AND OBLIGATIONS OF REGISTRAR
- Pursuant to the Whois Accuracy Specification Program published by ICANN, Registrar shall verify the email address of the Registered Name Holder by sending an email to the Registered Name Holder requiring an affirmative response from the Registered Name Holder which must be returned in a manner designated by the Registrar. Such verification must occur within fifteen (15) days of registration, transfer, or modification of the Registered Name Holder's Whois contact information. If the Registered Name Holder fails to verify the email address, Registrar shall suspend the Registered Name. In addition, within fifteen (15) calendar days after receiving any changes to the Whois contact information related to any Registered Name sponsored by Registrar, Registrar shall attempt to validate such change. If the Registered Name Holder fails to verify the contact changes, Registrar shall suspend the Registered Name.
- Pursuant to the Expired Registration Recovery Policy (the "ERRP"), Reseller shall send expiration renewal reminders to the Registered Name Holder via email and may also be required to interrupt services to the domain upon expiration as applicable pursuant to the ERRP.
- Registrar expressly reserves the right to deny any Order or cancel any Order within thirty (30) days of processing. In such case, Registrar may refund the fees charged for the Order, after deducting any processing charges for the Order.
- Notwithstanding anything to the contrary, Registrar, expressly reserves the right to, without notice or refund: (i) access, delete, suspend, deny, cancel, modify, intercept, analyze, copy, backup, redirect, log usage of, monitor, limit access to or of, take ownership of, or transfer any Order; (ii) delete, suspend, freeze, or modify Reseller's access to Registrar Services; (iii) publish, transmit, share data from any Order with any person or entity, or contact any entity associated with an Order, to recover any payment from Reseller for any service rendered by Registrar including services related to this Agreement for which Reseller has been notified and requested to remit payment; (iv) publish, transmit, share data from any Order with any person or entity, or contact any entity associated with any Order, or (v) correct any mistakes associated with any Order, including with processing or executing any Order, with retroactive effect.
- Registrar may terminate this Agreement at any time, with or without notice, in its sole discretion: (i) in the case of any actual or potential breach or violation of this Agreement by Reseller or its Customers; (ii) to protect the integrity and stability of Registrar Services, or (iii) to comply with any applicable laws, government rules or requirements, or any applicable dispute resolution process; (iv) to avoid any liability, civil or criminal, on the part of Registrar and/or its Service Providers, or their affiliates, subsidiaries, officers, directors and employees.
- In case an Order has expired, is suspended, or if a Registered Name does not contain valid information to direct it to any destination, Registrar may redirect any Registered Name to any Internet Protocol ("IP") address including, without limitation, to an IP address which hosts a parking page or a commercial search engine for monetization purposes. Reseller acknowledges that Registrar does not control and is not able to monitor the content on any redirected web page, including whether the content infringes any legal rights, including but not limited to, intellectual property rights or violates any other rights or any applicable rule, regulation or law. Accordingly, Registrar expressly disclaims any liability or damages caused directly or indirectly by such redirection.
- Registrar may terminate any Reseller or Customer account that Registrar determines, in its sole discretion, is in violation of any U.S. sanctions, export or import laws, any executive orders, or any rules, regulations or orders issued by the U.S. Department of the Treasury's Office of Foreign Asset Control ("OFAC").
- Registrar may utilize all information necessary from any and all Orders to comply with the data escrow deposit requirements established by paragraph 3.6 of the RAA and any other policies and procedures established by ICANN relating to data escrow deposits.
- RIGHTS AND OBLIGATIONS OF RESELLER
- Reseller must enter into a paper or electronic registration agreement with each of its Customers. The registration agreement shall contain all provisions and notices required by the RAA and any applicable ICANN Consensus Policies, including, but not limited to the following:
- Reseller shall require its Customers to submit accurate and reliable contact details and to correct and update them within seven (7) days of any change during the term of the Registered Name registration, including: full name, postal address, e-mail address, telephone number, and fax number, if available, of the Registered Name Holder; name of authorized person for contact purposes if the Registered Name Holder is an organization, association, or corporation; and the data elements listed in RAA Subsections 126.96.36.199, 188.8.131.52 and 184.108.40.206.
- A Registered Name Holder's willful provision of inaccurate or unreliable information, its willful failure to update information provided to Registrar via Reseller within seven (7) days of any change, or its failure to respond for more than fifteen (15) days to inquiries by Reseller or Registrar concerning the accuracy of contact details associated with the Registered Name Holder's registration, shall constitute a material breach of the registration agreement between Customer and Reseller and will be a basis for suspension and/or cancellation of the Registered Name registration.
- Any Registered Name Holder that intends to license use of a domain name to a third party is nonetheless the Registered Name Holder of record and is responsible for providing its own full contact information and for providing and updating accurate technical and administrative contact information sufficient to facilitate timely resolution of any problems that arise in connection with the Registered Name. A Registered Name Holder licensing use of a Registered Name according to this provision shall accept liability for harm caused by wrongful use of the Registered Name, unless it discloses the current contact information provided by the licensee and the identity of the licensee within seven (7) days to a party providing the Registered Name Holder reasonable evidence of actionable harm.
Reseller shall notify each new or renewed Registered Name Holder of, and shall obtain consent for, each of the following:
- The purposes for which any Personal Data collected from the Customer are intended;
- The intended recipients or categories of recipients of the data ,including Registrar and the Registry Operator and others who will receive the data from Registry Operator;
- Which data are obligatory and which data, if any, are voluntary; and
- How the Registered Name Holder or data subject can access and, if necessary, correct the data held about them.
- Registered Name Holder shall represent that notice has been provided equivalent to that described in RAA Subsection 220.127.116.11 to any third-party individuals whose Personal Data are supplied to Registrar by the Registered Name Holder, and that the Registered Name Holder has obtained consent equivalent to that referred to in RAA Subsection 18.104.22.168 of any such third-party individuals.
- Reseller agrees that it will not process Personal Data collected from the Registered Name Holder in any way incompatible with the purposes or limitations stated in its notice to the Registered Name Holder provided in accordance with RAA Subsection 22.214.171.124.
- Reseller agrees that it will take reasonable precautions to protect Personal Data from loss, misuse, unauthorized access or disclosure, alteration, or destruction.
- Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
- For the adjudication of disputes concerning or arising from use of a Registered Name, the Registered Name Holder shall submit, without prejudice to other potentially applicable jurisdictions, to the jurisdiction of the courts (1) of the Registered Name Holder's domicile and (2) where Registrar is located.
- Registered Name Holder shall agree that its registration of the Registered Name shall be subject to suspension, cancellation, or transfer pursuant to any ICANN specification or policy, or pursuant to any registrar or registry procedure not inconsistent with any ICANN specification or policy: (1) to correct mistakes by Registrar or the Registry Operator in registering the name or (2) for the resolution of disputes concerning the Registered Name.
- Customer shall indemnify and hold harmless both Registrar and Registry Operator and each of its directors, officers, employees, and agents from and against any and all claims, damages, liabilities, costs, and expenses (including reasonable legal fees and expenses) arising out of or related to the Registered Name Holder's domain name registration.
- Reseller shall identify Domain.com, LLC, as the sponsoring registrar for domain registrations.
- Reseller shall require Customer to consent to ICANN's Uniform Domain-Name Dispute-Resolution Policy.
- Reseller agrees that Registrar Services under this agreement may be made available to a Customer only after the Customer enters into a legally binding agreement which is no less protective of Registrar than this Agreement and which contains the requirements contained herein as applicable to Reseller. Reseller acknowledges and agrees that Reseller will be responsible for ensuring Customer compliance with applicable terms and conditions and shall be responsible for any liability resulting from Customer's noncompliance with such terms and conditions.
- Reseller shall identify the sponsoring registrar upon inquiry from Customer.
- Reseller shall comply with any ICANN-adopted Specification or Policy that establishes a program for accreditation of providers of proxy and privacy registration services (a "Proxy Accreditation Program"). Among other features, the Proxy Accreditation Program may require that: (i) proxy and privacy registration services may only be provided by individuals or entities accredited by ICANN pursuant to such Proxy Accreditation Program; and (ii) Registrar prohibit Resellers from knowingly accepting registrations from any provider of proxy and privacy registration services that is not Accredited by ICANN pursuant to the Proxy Accreditation Program. Until such time as the Proxy Accreditation Program is established, Reseller shall comply with the Specification on Privacy and Proxy Registrations.
- Reseller shall clearly display on any website it operates for domain registration or renewal a link to ICANN's Registrants' Benefits and Responsibilities (currently available at http://www.icann.org/en/resources/registrars/registrant-rights/benefits) and shall not take any action inconsistent with the corresponding provisions of the RAA or applicable law.
- Reseller shall clearly display on any website it operates for domain registration or renewal a link to the appropriate ICANN webpage detailing Registrant Educational Information (currently available at http://www.icann.org/en/resources/registrars/registrant-rights/educational).
- Reseller shall not display the ICANN or ICANN-Accredited Registrar logo, or otherwise represent themselves as accredited by ICANN, unless they have written permission from ICANN to do so.
- If enrolled in the API Resellers Program, Wholesale Program, or WholesalePlus Program, Reseller shall be responsible for providing customer service, billing support, and technical support to Customers unless otherwise provided in the terms on the applicable Reseller Program webpage on the Spry website. Registrar shall be responsible for providing customer service, billing support, and technical support to Customers who purchase from Resellers enrolled in the Private Label Program.
- Reseller acknowledges that in the event of any dispute and/or discrepancy concerning any data element of any transaction, the data element in Registrar's records shall prevail.
- Reseller acknowledges that all information about Customer that Reseller transmits to Registrar is accessible by Registrar.
- Reseller shall not make any changes to any information or configuration of an Order without explicit authorization from Customer of that Order.
- Reseller acknowledges that Registrar Services may be obtained through Service Providers, and as such, changes in structure or contracts may occur, and as a result services may be adversely affected. Reseller acknowledges and agrees that Registrar shall not have any liability associated with any such occasion.
- Reseller agrees to provide to Registrar complete and accurate Reseller Contact Details and to update any Reseller Contact Details within seven (7) calendar days of any change.
During the Term of this Agreement and for two (2) years thereafter, Reseller shall maintain the following records relating to its dealings with Registrar, Customers, prospective Customers and/or their agents or authorized representatives, in electronic, paper or microfilm form:
- All current and past Orders with Reseller, including dates and amounts of all payments, discount, credits and refunds;
- Customer's acceptance of Reseller's registration agreement, including date, time, and Registered Name;
- All information relating to the request for a transfer of a Registered Name to or from Registrar, in accordance with the ICANN Policy on Transfer of Registrations between Registrars; and
- All written communications with respect to Registrar Services.
Reseller shall provide these records to Registrar within seven (7) calendar days of Registrar's request.
- Reseller shall provide notice to each new or renewed Registered Name Holder stating: (i) the purposes for which any Personal Data collected from Customer are intended; (ii) the intended recipients or categories of recipients of the data (including Registrar, Registry Operator and others who will receive the data from Registry Operator); (iii) which data are obligatory and which data, if any, are voluntary; and (iv) how the Registered Name Holder or data subject can access and, if necessary, correct the data held about them. The Registered Name Holder shall consent to the data processing referred to here.
- Reseller shall ensure that the identity and contact information provided by Customer of any privacy or proxy registration service offered or made available by Reseller in connection with each registration will be deposited with Registrar or, alternatively, display a conspicuous notice to such Customers, at the time an election is made to utilize such privacy or proxy service, that their data is not being escrowed by Registrar. In addition, Reseller shall comply with any ICANN-adopted Specification or Policy that establishes a program for accreditation of individuals or entities who provide proxy registration services.
- Reseller shall comply with the validation requirements contained in Section 1(a)-(d) of the Whois Accuracy Program Specification. Reseller will have ninety (90) days from the date of notification by Reseller to comply with the requirements of Section 1(e) of the Whois Accuracy Program Specification.
- When requested by Registrar, Reseller shall comply with all requests for production of information to confirm compliance within the date specified in the request. Failure to comply with such a request shall constitute a material breach of this Agreement and may result in termination and/or temporary suspension of services pursuant to Section 5 below.
- Reseller shall comply with all other terms or conditions established from time to time by Registrar, Registrar's Service Providers, ICANN, and/or Registry Operators.
TERM AND TERMINATION
- Reseller represents and warrants that: (i) it is a sole proprietor, partnership, or corporation duly incorporated, validly existing and in good standing under the laws of the state/country of its domicile; (ii) it has all requisite legal power and authority to execute, deliver and perform its obligations under this Agreement; (iii) the execution, performance and delivery of this Agreement by its officers, employees and agents has been duly authorized by Reseller; (iv) no further approval, authorization or consent of any governmental or regulatory authority is required to be obtained or made by Reseller in order for it to enter into and perform its obligations under this Agreement; (v) Reseller is not located in a prohibited country subject to the sanctions or export or import laws of the U.S. government, including without limitation, any executive orders, rules, regulations or orders issued by OFAC; and (vi) there is no pending or, to the best of Reseller's knowledge, threatened claim, action, or proceeding against Reseller, with respect to the execution, delivery, or consummation of this Agreement, or with respect to Reseller's trademarks, and, to the best of Reseller's knowledge, there is no basis for any such claim, action or proceeding.
- Registrar represents and warrants that: (a) it is a limited liability company duly incorporated, validly existing and in good standing under the laws of the State of Washington; (b) it has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement; (c) the execution, performance and delivery of this Agreement by its officers, employees and agents has been duly authorized by Registrar; (d) no further approval, authorization or consent of any governmental or regulatory authority is required to be obtained or made by Registrar in order for it to enter into and perform its obligations under this Agreement; and (e) there is no pending or, to the best of Registrar's knowledge, threatened claim, action, or proceeding against Registrar, with respect to the execution, delivery, or consummation of this Agreement, or with respect to Registrar's trademarks, and, to the best of Registrar's knowledge, there is no basis for any such claim, action or proceeding.
FEES, PAYMENTS & TAXES
Term. The term of this Agreement commences on the date Reseller electronically accepts the Agreement and continues until terminated pursuant to the terms herein (the “Term").
Termination Rights. Unless otherwise provided in this Agreement, either Party may terminate this Agreement at any time by giving the other Party thirty (30) days' advance written notice of termination. Any domain registrations made by Reseller with Registrar during the Term of this Agreement shall remain with Registrar unless the Registered Name Holder initiates a change of registrar as outlined in Section 5(c) below. Registrar reserves the right in its sole discretion to refuse to renew domains and related services as of the effective date of termination of this Agreement.
Termination for Cause. In the event that Reseller materially breaches any term of this Agreement, including any of its representations and warranties hereunder, and such breach is not substantially cured, as determined in Registrar's sole discretion, within ten (10) calendar days after written notice of such breach is given, then Registrar may immediately terminate the Agreement by written notice to Reseller.
Termination for Inactivity. In the event Reseller has no transactions for a period of one hundred and eighty (180) consecutive days and no other currently active Registrar Services purchased by Customers, Registrar may immediately terminate this Agreement by written notice to Reseller.
- Effect of Termination.
- Upon termination of this Agreement, Registrar will complete the domain registrations or renewals of domain names processed by Reseller prior to the date of termination.
- Immediately upon any termination of this Agreement, Reseller shall transfer to Registrar all information deemed necessary by Registrar regarding the Registered Name Holders.
- Any and all domain name registrations made through Registrar during the Term of this Agreement shall remain with Registrar as registrar unless Registered Name Holder initiates a registrar transfer in compliance with ICANN's Inter-Registrar Transfer Policy and any other applicable transfer policies established by ICANN and/or Registrar Operator. Registrar reserves the right in its sole discretion to refuse to renew domains and related services upon termination of this Agreement.
WARRANTY DISCLAIMER; LIMITATION OF LIABILITY
Reseller Deposit. API Resellers are required to maintain an Advance Account. Payment to the Advance Account may be made by credit card. Payment is expected to appear as available credit in the Advance Account within approximately forty-eight (48) hours. If Reseller is not required to maintain an Advance Account, Reseller is required to maintain a valid credit card on file with Registrar to process payment.
Fees. As per the applicable Reseller Program terms, the Fees will either be deducted from the Advance Account, charged to Reseller's credit card on file, or charged directly to the Customer when the Order is processed. Registrar reserves the right to hold or otherwise cancel any Order for which there are insufficient funds in the Advance Account to cover the fees associated with the Order. Registrar may also deduct appropriate bank charges, processing charges, or other service fees it may levy against Reseller directly from the Advance Account. Registrar reserves the right to hold or otherwise cancel any Order if Reseller does not maintain a valid credit card on file, if required by Registrar.
Reseller Participation Fee. Some Reseller programs, including the Private Label, Wholesale and WholesalePlus Programs, require a participation fee. If required, such participation fee will be invoiced, monthly or annually, as disclosed during the registration process. The failure to pay such fee will result in the termination of Reseller's ability to resell Registrar Services.
Chargebacks. In the event that Reseller issues a chargeback for any payment to Registrar, Registrar may immediately debit the Advance Account, if applicable, or charge Reseller for the amount of the chargeback as well as any fees levied against Registrar by its payment processor for such chargeback. Any negative balance on the Advance Account will be immediately due and payable via guaranteed funds. Registrar reserves the right to temporarily or permanently suspend Reseller's access to Registrar Services or terminate this Agreement if Reseller issues a chargeback to Registrar.
- Reseller may be eligible for a refund of an Order in the following circumstances:
- Registration of a Registered Name that is deleted within the add-grace period established by the appropriate Registry Operator and for which the Registrar is eligible to receive a refund from the Registry Operator. In most circumstances, the Registry Operator requires that such deletion be requested within five (5) days of the date of the registration;
- Non-explicit renewals of a Registered Name for which the Registrar is eligible to receive a refund from the Registry Operator. In most circumstances, the Registry Operator requires that such refund must be requested within thirty (30) days of the date of the non-explicit renewal; or
- Whois privacy services that are canceled in association with Registered Names eligible for refunds pursuant to Section 6(e)(i)(i) or (ii). Such refund must be requested within thirty (30) days of the date of the Whois privacy purchase or renewal.
- Registrar reserves the right to issue refunds in its sole discretion at any time in connection with the events set forth in Section 6(e)(i)(i) and (ii) (each, a “Refund Event"), solely where Registrar is able to obtain a full refund from the Registry Operator for amounts paid by the Registrar for the transaction applicable to that Refund Event. If a refund is issued by Registry Operator to Registrar for a Refund Event, the amount paid by Reseller to Registrar for the transaction reversed by the Refund Event will be credited to Reseller's credit card on file, or if Reseller has an Advance Account in place at the time of such refund, to such Advance Account, in either case within fourteen (14) Business Days of the date that Registrar actually receives the relevant refund from the Registry Operator for the Refund Event. Refunds will not accrue, and shall not be paid under any circumstances, if (A) Reseller does not submit a request for a refund to Registrar within the timeframe required by the Registry Operator in Sections 6(e)(i)(i) and (ii), (B) Reseller does not include current Reseller Contact Details with its request for such refund, or (C) Reseller's credit card information is not on file with Registrar at the time the refund is first due to be paid or Reseller does not then have an Advance Account with Registrar. Registrar is not responsible for refunds that cannot be issued because Reseller has not provided Registrar with up to date Reseller Contact Details or does not have an appropriate credit card on file.
Pricing. Registrar will display the current price for each Registrar Service within Reseller's account. Registrar has the right to modify its pricing at any time, and any such modification will be binding and effective immediately upon notification by email to Reseller or upon posting within Reseller's account.
Expiration of Registered Names.
- Reseller acknowledges that it is Reseller's responsibility to keep records and maintain reminders regarding the expiry of any Registrar Service purchased by or for a Customer. As a convenience to Reseller, and not as a binding commitment, we may notify Reseller of any such expiring Registrar Services via an email message sent to the email address listed in the Reseller Contact Details.
- Reseller acknowledges that after expiration of a Registered Name, Reseller has no rights to such Registered Name, or any information associated with it, and that control of such Registered Name shall belong to Registrar. Following expiration of a Registered Name, Registrar may choose, in its sole discretion, to delete a Registered Name or to transfer the ownership of the Registered Name to any third party. Reseller acknowledges that Registrar shall not be liable to Reseller or any third party for any action performed under this clause.
Taxes. Reseller shall be responsible for any and all applicable taxes in connection with this Agreement and the Registrar Services.
Disclaimer of warranty. REGISTRAR MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR ANY OF ITS SERVICES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. FURTHER, WITHOUT ANY LIMITATION TO THE FOREGOING, REGISTRAR MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER THAT REGISTRATION OR USE OF A REGISTERED NAME UNDER THIS AGREEMENT WILL PREVENT CHALLENGES TO THE REGISTERED NAME, OR FROM SUSPENSION, CANCELLATION OR TRANSFER OF ANY REGISTERED NAME REGISTERED PURSUANT TO THIS AGREEMENT.
Limitation of liability. YOU AGREE THAT REGISTRAR AND THE INDEMNIFIED PARTIES, AS DEFINED IN SECTION 8 OF THIS AGREEMENT, WILL NOT BE LIABLE FOR ANY OF THE FOLLOWING: (i) SUSPENSION OR LOSS OF THE REGISTERED NAME ACQUIRED PURSUANT TO THIS AGREEMENT FOR ANY REASON; (ii) USE OF THE REGISTERED NAME BY YOU OR OTHERS, WHETHER OR NOT AUTHORIZED BY YOU TO HAVE SUCH USE; (iii) INTERRUPTION OF BUSINESS; (iv) ACCESS DELAYS, DENIAL OF SERVICE (DOS) ATTACKS OR ACCESS INTERRUPTIONS TO THIS SITE OR THE WEBSITE(S) YOU ACCESS TO OBTAIN THE REGISTRAR SERVICES; (v) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; (vi) EVENTS BEYOND REGISTRAR'S OR ANY OF SUCH INDEMNIFIED PARTIES' REASONABLE CONTROL; (vii) THE PROCESSING OF ANY REGISTERED NAME; (viii) ANY FAILURES OF ENCRYPTION OR OTHER SERVICES PROVIDED; (ix) APPLICATION OF THE DISPUTE POLICY; OR (x) ANY LOSS OR DAMAGES THAT MAY RESULT FROM TERMINATION OF THIS AGREEMENT PURSUANT TO SECTION 2(e). REGISTRAR AND THE INDEMNIFIED PARTIES ALSO WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF REGISTRAR OR ANY OF SUCH INDEMNIFIED PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL REGISTRAR'S OR ANY OF SUCH INDEMNIFIED PARTIES' MAXIMUM AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT PAID FOR THE REGISTRATION OF THE REGISTERED NAME THAT IS AT ISSUE FOR THE THEN-CURRENT PERIOD OF REGISTRATION.
INTELLECTUAL PROPERTY & NON-SOLICITATION
Indemnification of Registrar. Reseller shall indemnify, hold harmless, and defend Registrar and its subsidiary and parent entities, predecessors, successors, affiliates, and assigns, the Registry Operators, and all of their respective current and former officers, directors, members, shareholders, agents, and employees (the "Indemnified Parties") from any and all Claims. A "Claim" means any action, cause of action, suit, proceeding, claim, or demand of any third party (and all resulting judgments, bona fide settlements, penalties, damages, losses, liabilities, costs, and expenses (including without limitation reasonable attorneys' fees and costs)), which arise out of: (i) your breach of this Agreement or any of Registrar's policies applicable to this domain registration or related services, (ii) the operation of your domain, (iii) any negligent act or omission by you, or (iv) any third party claim, action, or demand related to the registration or use of the domain registered in your name (and this indemnification is in addition to any indemnification required under the Dispute Policy). “Reasonable attorneys' fees and costs” as used in this Section 8, includes without limitation, fees and costs incurred to interpret or enforce this Section 8. Registrar may, at its expense, employ separate counsel to monitor and participate in the defense of any Claim.
Indemnification of ICANN and Registry Operators. You agree to indemnify, defend, and hold harmless ICANN, Registry Operator(s) (including but not limited to VeriSign, Inc., Public Interest Registry, Afilias Limited, SITA, NeuLevel, Inc., and NeuStar, Inc.) and their respective subcontractors, shareholders, directors, officers, employees, affiliates and agents from and against any and all Claims arising out of or related to your domain registration and any disputes regarding the same. Some Registry Operators may not allow this indemnification provision to apply as contained herein, in such cases, this provision is in effect to the full extent permitted by law as applicable to such Registry Operator.
OWNERSHIP AND USE OF DATA
Intellectual Property. Subject to the provisions of this Agreement, each Party will continue to independently own its intellectual property, including all patents, trademarks, trade names, domain names, service marks, copyrights, trade secrets, proprietary processes and all other forms of intellectual property. Any improvements to existing intellectual property will continue to be owned by the Party already owning the existing intellectual property. Without limiting the generality of the foregoing, no commercial use rights or any licenses under any patent, patent application, copyright, trademark, know-how, trade secret, or any other intellectual proprietary rights are granted by Registrar to Reseller, or by any disclosure of any Confidential Information to Reseller under this Agreement. Reseller shall further ensure Reseller does not infringe any intellectual property rights or other rights of any person or entity, or does not publish any content that is libelous or illegal while using Registrar Services under this Agreement. Reseller acknowledges that Registrar cannot and does not monitor whether any services or the use of the services by Reseller under this Agreement, infringes the legal rights of others.
Non-Solicitation. During the Term of this Agreement and for a period of one (1) year after the termination of this Agreement, Reseller agrees that it will not, and shall cause its respective affiliates to not, for any reason, directly or indirectly, solicit for employment, attempt to employ, or affirmatively assist any other person or entity in employing or soliciting for employment any person employed or hired as an employee by Registrar. Notwithstanding the foregoing, Reseller shall have the right to solicit or hire employees of Registrar when the applicable employee answers a general advertisement, responds to the posting of positions on the Internet, or responds to any other general solicitation, when the applicable employee is referred by an employment agency that does not specifically target the employees of the other, or such employee approaches Reseller without being solicited by Reseller.
MODIFICATIONS TO REGISTRAR SERVICES AND AGREEMENT
- Reseller agrees and acknowledges that Registrar owns all rights, title and interests worldwide in Registrar's domain database ("Domain Database"), and all information and derivative works generated from such Domain Database, including without limitation information relating to Registered Names, Registered Name Holders, and the Registrar Services provided to you. You further agree and acknowledge that Registrar may use the following information in connection with providing Registrar Services and as required for domain registrations for which Registrar is the registrar of record: (i) the original creation date of the registration; (ii) the expiration date of the registration; (iii) the name, postal address, email address, telephone number, and where available fax number of the technical contact, authorized contact, zone contact and billing contact for the domain registration; (iv) any remarks concerning the registered domain that appear or should appear in the Whois or similar database; and (v) any other information Registrar generates or obtains in connection with the provision of domain registration services, other than the domain being registered, the IP addresses of the primary nameserver and any secondary nameservers for the domain, and the corresponding names of those nameservers. Registrar does not have any ownership interest in your specific personal registration information outside of its rights in its Domain Database. Registrar agrees to take reasonable precautions to protect your specific personal registration information from loss, misuse, unauthorized access or disclosure, alteration or destruction.
- Registrar and Service Providers and their designees/agents have the right to backup, copy, publish, disclose, use, sell, modify, process this data in any form and manner as may be required for compliance with any agreements executed by Registrar to provide the Registrar Services pursuant to the terms of this Agreement.
- Registrar reserves the right to modify or discontinue, temporarily or permanently, Registrar Services with or without notice at any time. Registrar shall not be liable to Reseller or to any third party for any modification, suspension or discontinuance of Reseller Services.
- Except as otherwise provided in this Agreement, Reseller agrees that, during the Term of this Agreement, Registrar may revise the terms and conditions of this Agreement. Registrar will notify Reseller of any material changes to the Agreement, and, if Reseller objects, Reseller agrees that its only recourse is termination of this Agreement with ten (10) days' prior written notice to Registrar pursuant to Section 15(f) below. In the event that revisions to the RAA or any applicable registry or other governmental or non-governmental authority contract are made, Registrar may publish an amendment substituting the revised agreement in place of this Agreement, or otherwise amending, modifying or replacing this Agreement, without prior notice to Reseller if required to do so by ICANN, applicable Registry Operator, or other governmental or non-governmental authority. Reseller agrees to periodically review the Registrar Website, including the current version of this Agreement, to be aware of any such revisions. Registrar is not bound by nor should Reseller rely on any representation by (i) any agent, representative or employee of any third party that Reseller may use to apply for the Registrar Services; or (ii) on information posted on the Registrar Website of a general informational nature. Moreover, no employee, contractor, agent or representative of Registrar is authorized to alter or amend the terms and conditions of this Agreement. Only Registrar may amend this Agreement through its authorized amendment procedures.
Use of Confidential Information. Reseller's use and disclosure of Confidential Information disclosed hereunder are subject to the term and conditions of this Section 13. With respect to the Confidential Information, Reseller agrees that: (i) Reseller shall treat as strictly confidential, and use all reasonable efforts to preserve the secrecy and confidentiality of all Confidential Information received from Registrar, including implementing reasonable physical security measures and operating procedures designed to protect the same, which in any case, shall not be less stringent than the measures Reseller takes to protect its own confidential information; and (ii) Reseller shall make no disclosures whatsoever of any Confidential Information to others, provided however, that if Reseller is a corporation, partnership, or similar entity, disclosure is permitted to Reseller's officers and employees who have a demonstrable need to know such Confidential Information, provided Reseller shall advise such personnel of the confidential nature of the Confidential Information and of the procedures required to maintain the confidentiality thereof. The obligations set forth in this section shall be continuing; provided, however, that this section imposes no obligation upon Reseller with respect to information that: (x) is disclosed after Registrar's prior written approval; (y) is independently developed by Reseller without the use of the Confidential Information; or (z) is made generally available by Registrar without restriction on disclosure.
- In the event of any termination of this Agreement: (i) all Confidential Information in Reseller's possession shall be immediately returned to Registrar or, at Registrar's sole option, Reseller shall certify as to the destruction of such Confidential Information; (ii) Reseller shall provide full voluntary disclosure to Registrar of any and all unauthorized disclosures and/or unauthorized uses of any Confidential Information; and (iii) the obligations of this section shall survive such termination and remain in full force and effect for a period of five (5) years.
- Reseller agrees that Registrar shall be entitled to seek all available legal and equitable remedies for the breach of this Section 13 by Reseller.
Reseller hereby submits to the exclusive jurisdiction of the American Arbitration Association (“AAA”) in connection with any dispute relating to, concerning or arising out of this Agreement. The arbitration will be conducted before a single arbitrator and will be held at the AAA location in Boston, Massachusetts. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. The arbitration before the AAA shall proceed solely on an individual basis without the right for any claims to be arbitrated on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of others. The arbitrator's authority to resolve and make written awards is limited to claims between Reseller and Registrar alone. Claims may not be joined or consolidated unless agreed to in writing by all Parties. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. If you initiate litigation or any other proceeding against Registrar in violation of this paragraph, you agree to pay Registrar's reasonable costs and attorneys' fees incurred in connection with its enforcement of this paragraph. Notwithstanding the foregoing, this paragraph shall not apply to any Party seeking solely injunctive relief, in which case the Party may seek such relief from any court of competent jurisdiction.
Force Majeure. Neither Party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, or any other cause beyond the reasonable control of such Party; provided, that the Party whose performance is affected by any such event gives the other Party written notice thereof within ten (10) Business Days of such event or occurrence.
Governing Law. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
Assignment. Reseller may not assign or transfer this Agreement or any of Reseller's rights or obligations hereunder, without the prior written consent of Registrar. In addition, Reseller must comply with any applicable ICANN inter-registrar transfer process. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Registrar may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without your consent. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns. You agree that Registrar may transfer your domain name from one accredited registrar to another accredited registrar without requiring your consent, to the extent not prohibited by ICANN or applicable registry rules or by applicable law.
Publicity. Reseller shall not create, publish, distribute, or permit any written, oral, or electronic material that makes reference to Registrar or its Service Providers or uses any trademarks or service marks of Registrar or its Service Providers without prior written consent. Reseller gives Registrar the right to recommend and/or refer Reseller's name and details to Customers, and use Reseller's name in marketing and promotional material with regard to its use of the Registrar Services.
Notice. Notice to Reseller shall be sufficiently given if provided in writing and transmitted by email to the current email address included in the Reseller Contact Details. Notice to Registrar shall be sufficiently given only if in writing and transmitted by facsimile to Registrar's facsimile number, delivered personally or by a nationally recognized courier service, or mailed by prepaid registered mail addressed to the Registrar at Attn: Domain.com, 10 Corporate Drive, Suite 300, Burlington MA, 01803.
Survival. In the event of termination of this Agreement for any reason, Sections 7 (Warranty Disclaimer; Limitation of Liability), 8 (Indemnification), 9 (Intellectual Property & Non-Solicitation), 13 (Confidentiality) and 14 (Arbitration), in addition to any section that by its nature should survive termination, shall survive.
Language. All notices, designations, and specifications made under this Agreement shall be made in the English language only.
Dates and Times. All dates and times relevant to this Agreement or its performance shall be computed based on the date and time observed in the city of the registered office of the Registrar.
Construction. Any reference in this Agreement to gender shall include all genders, and words importing the singular number only shall include the plural and vice versa
Disclaimer. There are no representations, warranties, conditions or other agreements, express or implied, statutory or otherwise, between the Parties in connection with the subject matter of this Agreement, except as specifically set forth herein.
No Third-Party Beneficiaries. This Agreement does not provide and shall not be construed to provide third parties (i.e., non-parties to this Agreement), including any Customer or a prospective customer of Reseller with any remedy, claim, and cause of action or privilege against Registrar or its Service Providers.
Independent Contractors. Reseller and Registrar are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, and sales representative or employment relationship between the Parties. Reseller will have no authority to make or accept any offers or representations on Registrar's behalf. Reseller will not make any statement, whether on its Website or otherwise, that reasonably would contradict anything in this Agreement.
Entire Agreement; Severance. This Agreement, which includes the specific policies referenced herein, constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes any prior agreements, representations, statements, negotiations, understandings, proposals or undertakings, oral or written, with respect to the subject matter expressly set forth herein. If any provision of this Agreement shall be held to be illegal, invalid or unenforceable, each Party agrees that such provision shall be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
This file was last modified May 21, 2014.