serviceagreement

THE WHOIS PRIVACY SERVICE AGREEMENT (“AGREEMENT”)

BY USING THE FUNDACION PRIVACY SERVICES LTD’S SERVICES (“WHOIS PRIVACY SERVICES”), YOU AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT. YOU AGREE THAT WE MAY AMEND THIS AGREEMENT BY POSTING THE AMENDED AGREEMENT ON fundacionprivacy.com. ADDITIONAL FEATURES THAT CHANGE OUR WHOIS PRIVACY WILL AUTOMATICALLY BE SUBJECT TO THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ANY SUBSEQUENT AMENDMENTS HERETO, DO NOT USE, ACCESS, OR CONTINUE TO USE WHOIS PRIVACY SERVICES. CONTINUED USE OF THE WHOIS PRIVACY SERVICE AFTER CHANGES TO THIS AGREEMENT HAVE BEEN POSTED CONSTITUTES YOUR ACCEPTANCE OF SUCH CHANGES.

This Agreement is between Fundacion Privacy Services Ltd, a Company incorporated in the Republic of Panama with registered office address at 3rd Floor Humbolt Tower, Calle 53 Este, Panama and administrators, agents, successors and assigns (“Fundacion Privacy”, “We”, “Us”) and you, your heirs, executors, administrators, agents, successors and assigns (“You”, “Your”). You acknowledge that You have read, understand and agree to be bound by all the terms and conditions of this Agreement for transactions entered into by: (i) You on Your behalf; (ii) anyone acting as Your agent; (iii) anyone who uses the account with or without your authorization that access the Whois Privacy Services.

1. Introduction

This Agreement governs the terms and conditions upon which We agree to provide You with our Whois Privacy Service

a. Fundacion Privacy reserves the right to amend the terms and conditions contained in this Agreement at any time by posting the amended Agreement in full, to the fundacionprivacy.com website without further notice to You, effective immediately upon such posting.

b. By using the Whois Privacy Service, You acknowledge that You have read, understood, and agree to be bound by the terms and conditions of this Agreement (as amended from time to time).

c. You agree to comply at all times with the rules and policies adopted by the Internet Corporation for Assigned Names and Numbers (“ICANN”) including the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the Uniform Rapid Suspension System (“URS”) if applicable to your chosen domain name(s).

d. You may use our services as either a corporate body or as a natural person unless the specific terms and conditions of the respective registry of certain top level domains (“TLDs”), for which you may wish to use the Whois Privacy Service, provide for restrictions as to the publication of Whois data.

e. You acknowledge and agree that We may, in our sole and absolute discretion, suspend, cancel, or modify the Whois Privacy Service or your use of the Service at any time in accordance with the provisions of this Agreement, without notice to you.

f. The Fundacion Privacy service is NOT A GENERAL MAIL FORWARDING SERVICE. You agree that You will not provide any third party with the Whois Privacy Addresses for the purpose of having such third party transmit communications to you. Third parties may obtain the Whois Privacy Addresses listed in the Whois directory by their own initiative, but You agree that You will not be the one to provide the Whois Privacy Addresses to such third parties.

g. You may request support from Us at any time by using our contact form.

2. The Whois Privacy Service

a. Fundacion Privacy provides You with an Proxy service allowing you to keep certain identity and contact details from appearing in public Whois information. We will become the registered name holder of record, and out identity and contact information is displayed in the Whois data.

b. The Whois Privacy Service is available for a large number of TLDs, on condition that the applicable registration requirements of certain domain name registries may not allow privacy protection services as provided by Whois Privacy Service. Therefore, We cannot and will not guarantee that the full scope of the Whois Privacy Service will be available for all TLDs.

c. Therefore by agreeing to use this Whois Privacy Service You elect to remove the following information on the publicly available Whois Directory:

i. You as Registrant and the administrative, technical, and billing contacts;

ii. Your Postal address and assigned email address and telephone number on behalf of You as registrant and any named administrative, technical, and billing Contact(s).

iii. You accept that if the Whois Privacy Service is disabled during the term, your information will be displayed on the publicly available Whois Directory.

d. You have elected to display the following information on the publicly available Whois Registry:

i. The primary and secondary nameservers shall be those designated by you.

ii. The original date of registration and the expiration of each domain name;

iii. Fundacion Privacy Services Ltd will be identified as the registrant of record.

3. Conclusion of Contract / Your Obligations

a. You can only activate the Whois Privacy Service for any particular domain names through one of our resellers (such as registermatrix.com). In this regard, reference is made to the restrictions set forth in Section 2(b). The Whois Privacy Service may either be activated directly upon registering a domain name or also subsequently for domains already registered, however in the latter case historical Whois information may be available from the period prior to the activation of the Whois Privacy Service.

b. You shall be solely responsible for the maintenance of complete and accurate data transmitted to Us according to Section 4.

c. By ordering Whois Privacy Services for specific domains, you expressly warrant that the domain(s) concerned do not and shall not infringe upon any third parties’ rights nor will the registration and/or use of any such domain names constitute a breach or violation of any international, national or local laws, regulations, rules, policies, or the Terms of Service. You further warrant that you are entitled to order Whois Privacy Service under any laws, regulations, rules, policies, and the Terms of Service.

d. Without limiting the generality of the foregoing, any registration or use of a domain name, including but not limited to use in association with a website, ftp site, or email by you or by any other party as long as the domain name is subject to the Whois Privacy Service, shall not breach any of the following prohibitions:

i. Your registered domain(s) is (are) violating or infringing a third party’s trademark, trade name, copyright interests or other legal rights of third parties;

ii. appeal primarily to prurient interests;

iii. defame, embarrass, harm, abuse, threaten, bully or harass;

iv. involve hate crimes, terrorism or child pornography;

v. are vulgar, obscene, invasive of a third party’s privacy, race, ethnicity, or are otherwise objectionable;

vi. impersonate the identity of a third party;

vii. spamming, hacking, DoS attacks, DDoS attacks, DRDoS attacks;

viii. harm minors in any way; or

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.

4. Provision of Your Personal Information

a. You agree that for each Whois Privacy domain name, You will provide to Us and maintain as current and accurate, the following information:

i. Your name, address, email address, postal address, phone and fax numbers;

ii. The name, address, email address, postal address, phone and fax numbers for the Domain’s administrative, technical, and billing contacts;

iii. The primary and secondary domain name servers for the Domain.

b. You agree to;

i. update this information immediately as it changes over time;

ii. respond within five (5) business days to any inquiries made to determine the validity of personal information provided by You;

iii. promptly respond – if needed – to messages regarding correspondence addressed to or involving YourDomain(s), as more fully set forth in sections 8 and 9 below.

iv. If You do not supply primary and secondary domain name servers, You agree that We may point Your Domain(s) to an IP address of our choosing until such time as You supply primary and secondary domain name servers.

c. You will retain complete control over the domain name and its registration records.

d. You may suspend and reinstate the Whois Privacy Service at your discretion.

e. The Whois Privacy Service may be used with both new and existing domain name registrations.

f. You may use the Whois Privacy Service with respect to a domain name that has been transferred but it will only commence after the transfer has been completed.

g. If You wish to transfer the domain name to a different registrar, the Whois Privacy Service must be disabled in order to initiate the transfer.

h. We will send all renewal and transfer related communications to the contact details You supply.

i. We reserve the right to conduct audits of the data provided by you at any time at our sole discretion, to ensure accuracy and completeness. This includes contacting you by telephone.

5. Data Privacy / Data Transfer / Information

a. Fundacion Privacy Services Ltd. will collect and store the personal data mentioned in Section 4 in accordance with its PRIVACY AND DATA PROTECTION POLICY. Fundacion Privacy Services Ltd. staff may at any time review and, if necessary, modify this personal data for a specific purpose due to one of the reasons set forth in Sections 8 and 9.

b. On the basis of the Registrar Data Escrow (RDE) Regulations, Fundacion Privacy Services Ltd. might be bound to transfer registry data for certain TLDs to escrow holders for purposes of data backup.

c. Except as provided in this Agreement, Fundacion Privacy Services Ltd. will not disclose Your personal data to third parties. Fundacion Privacy Services Ltd. may in its discretion, abide by all court orders no matter the originating jurisdiction and may cooperate in all criminal investigations or proceedings without regard to the originating jurisdiction. Fundacion Privacy Services Ltd. will promptly advise You of all instances of intended or actual release of your personal information to a third party unless Fundacion Privacy Services Ltd. is prohibited from informing You due to legal provisions, official orders, restraining orders, or judgments of a court of the Republic of Panama or any other court of competent jurisdiction as determined by Fundacion Privacy Services Ltd. in its sole discretion. In any such case, Fundacion Privacy Services Ltd. will inform You as soon as the legal impediment ceases to exist.

d. In the event of termination of the Privacy Services and/or of the Terms of Service, Fundacion Privacy Services Ltd. shall be entitled, by means of data modification, to transmit your current personal data with the responsible registrar to the respective WHOIS database, to replace the Whois Privacy Service data with your data.

6. Renewals and Fees

a. You agree that the term of the Whois Privacy registration will run in conjunction with the term of your registered domain or renewal registration.

b. All applicable fees are published on the website(s) of the reseller through whom you chose to order the Whois Privacy Service.

c. Please note that having the Whois Privacy Service disabled or dormant for any length of time during the term of the service does not mean that the purchase price shall be refunded or reduced in any way.

7. Your Representations & Warranties

You represent and warrant that all information provided by You pursuant to this 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 Agreement.

Notwithstanding Section 3, 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 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. You also warrant that Fundacion Privacy Services Ltd. will not be used in connection with any illegal or morally objectionable activity, or, in connection with the transmission of unsolicited commercial email (“Spam”).

8. Forwarding Communications

We may forward any correspondence received by Us for You to the contact details that You supply, either by post or by email within thirty (30) days of receipt byFundacion Privacy Services Ltd.. This correspondence may be opened and scanned as necessary. Your email inbox should be capable of receiving e-mails with bulky attachments. You expressly consent into Fundacion Privacy Services Ltd. opening and electronically storing mail items addressed to or in connection with you, for the purposes of fulfilling our contractual obligations.

Notwithstanding any provision in here to the contrary, any Trademark Abuse Reports, registered mail items or mail items formally delivered and/or served by courier and/or bailiff or other official, as well as any letters clearly identifiable on their envelope as coming from a lawyer, an authority, or a court of law, shall be processed subject to the provisions of Section 9.

We will only be responsible for forwarding communications where our details have appeared in the Whois and when your Whois Information is accurate, complete and up to date.

Email correspondence will be forwarded according to the email contact details You supply.

You acknowledge that Fundacion Privacy Services Ltd. is not required to, and may not read any correspondence in any format whether hard copy or electronic, and any deadline set out in any such correspondence for a reply may not be met due toFundacion Privacy Services Ltd. aforementioned policy of only forwarding such correspondence within the aforementioned thirty (30) day period.

9. Trademark Abuse / Notices of Pending or Threatened Legal Proceedings

Any Trademark Abuse Report, registered mail items or mail items formally delivered and/or served by courier and/or bailiff or other official, as well as any letters from authorities or courts of law, and without limiting the generality of the foregoing, any such items which sets out that the Registrant is accused, charged, or has been found liable or guilty of any unlawful and/or criminal conduct related to a registered domain or otherwise, shall be subject to the below provisions in this Section.

Any allegation of infringement of third party rights or of other unlawful or criminal conduct are grounds for immediate termination of the Whois Privacy Service in the sole discretion of Whois Privacy Service.

Should any third parties make allegations of unlawful or criminal conduct or assert any claims related to Your registered domain(s),Fundacion Privacy Services Ltd. will forward the related correspondence to You by email according to Section 8 and in so doing, such correspondence shall be considered delivered to You whether or not such correspondence has been actually received by You.

In the event of correspondence received in all cases listed in Section 9 (a), Fundacion Privacy Services Ltd. will disclose Your personal data to the entity making the enquiry and the termination provisions set out in Section 10 (a) may apply.

Fundacion Privacy Services Ltd. shall in no case be obliged to check or monitor the registration and/or use of Your registered domain(s).

10. Our Right to Suspension or Termination of Service and Disclosure of Your Personal Information

We shall have the right, at our sole discretion and without liability to You or any of your Contacts, suspend or cancel your domain name and to reveal Registrant and Contact Whois Information in certain circumstances, including (but not limited to) the following:

If the Domain(s) is (are) alleged to violate or infringe a third party’s trademark, trade name, copyright interests or other legal rights of third parties;

If You breach any provision of this Agreement;

If You breach any provision of Your Registration Agreement;

If necessary to protect the integrity and stability of the domain name registry;

If necessary to comply with any applicable laws, government rules or requirements, subpoenas, court orders or requests of law enforcement;

the Registrar of record and/or Fundacion Privacy Services Ltd. are named as a defendant in, or investigated in anticipation of, any legal or administrative proceeding arising out of Your use of the Whois Privacy Services;

If necessary to comply with ICANN’s Dispute Resolution Policy, UDRP, the Uniform Rapid Suspension System , URS, or other policies promulgated by ICANN (including policies which may preclude use a service such as Fundacion Privacy Services Ltd.);

If necessary to avoid any financial loss or legal liability (civil or criminal) on the part of Fundacion Privacy Services Ltd., its parent companies, subsidiaries, affiliates, shareholders, agents, officers, directors and employees;

OR if it comes to our attention that You are alleged to be using theFundacion Privacy Services Ltd’s services in violation of Your obligations set out in Section 3, THEN You understand and agree that We have the absolute right and power, in our sole discretion and without any liability to You whatsoever, to suspend the Whois Privacy Services, close Your Account, terminate provision of the Whois Privacy Services, list the information You provided in Section 3 in the Whois pubic directory or provide the information You provided in Section 3 to a claimant, resolve any and all third party claims, whether threatened or made, arising out of Your use of the domain name, or take any other action which We deem necessary.

In the event We take any of the actions set forth above, or in the event You elect to cancel the Whois Privacy Services for any reason, neither the Registrar of record or Fundacion Privacy Services Ltd. will refund any fees paid by You for the Whois Privacy Service.

You also acknowledge and agree that the Registrar of record may, in its sole discretion and without any liability to You whatsoever, cancel the Whois Privacy Services during the first thirty (30) days after You procured the Whois Privacy Services, and/or suspend Your rights under this Agreement and list the domain names during resolution of a dispute or investigation of allegations.

11. Limitation of Liability

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 WHOIS PRIVACY SERVICES, USE OR INABILITY TO USE 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 US, THE REGISTRAR 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 EITHER WE OR THE REGISTRAR 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, OURS AND/OR THE REGISTRAR´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 the We disclaim any loss or liability resulting from: (i) the inadvertent disclosure or theft of Your personal information; (ii) access delays or interruptions to our web site or the web sites of affiliated parties; (iii) data non-delivery or misdelivery between You and Us; (iv) the failure for whatever reason to renew the Whois Privacy Services; (v) the unauthorized use of Your Account or any of our services; (vi) errors, omissions or misstatements by Us; (vii) 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; (viii) processing of updated information regarding Your Account; (ix) any act or omission caused by You or Your agents (whether authorized by You or not).

YOU AGREE THAT, IN ANY EVENT, WE AND THE REGISTRAR´S RESPECTIVE MAXIMUM LIABILITY TO YOU SHALL BE CAPPED BY THE LESSER OF THE AMOUNT OF FEES PAID BY YOU TO EACH SERVICE PROVIDER IN THE PRECEDING YEAR WITH RESPECT TO THE SERVICES WHICH GAVE RISE TO THE LIABILITY OR $100.00 PER DOMAIN.

12. Indemnity

You agree to release, defend, indemnify and hold harmless Us and our 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 Agreement, Fundacion Privacy Services Ltd. Your Account, and/or Your use of Your domain name.

13. Warranty Disclaimer

FUNDACION PRIVACY SERVICES LTD., ITS PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, AGENTS, DIRECTORS, OFFICERS, AND EMPLOYEES EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, THE SERVICES PROVIDED HEREUNDER, 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 SERVICES, ARE PROVIDED “AS IS”. YOUR SUBSCRIPTION TO AND USE OF THESE 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.

14. Miscellaneous Provisions

Severability; Construction; Entire Agreement.

You agree that if any part of this Agreement shall be held to be illegal, unenforceable or invalid, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, enforceable and valid, and the legality, enforceability and validity of the remaining provisions of this Agreement shall not be affected or impaired. The headings herein will not be considered a part of this Agreement. You agree that this Agreement, including the policies it incorporates by reference, constitute the complete and only Agreement between You and US regarding the services contemplated herein.

Governing Law;

This Agreement shall be governed in all respects by the laws of the Republic of Panama. You agree that any action relating to or arising out of this Agreement, shall be brought exclusively in the courts of the Republic of Panama. You agree that venue shall be proper in such jurisdiction, and You agree to waive any objection You may have to jurisdiction and venue in such forum. You agree to waive the right to trial by jury in any proceeding, regardless of venue, that takes place relating to or arising out of this Agreement and You agree that service upon You may be accomplished by depositing the summons and complaint by air mail, first-class mail, postage pre-paid, addressed to the address provided by You in Section 3, which service shall be deemed to be effective ten days after deposit.

Term of Agreement; Survival.

The term of this Agreement begins on the date Your attempt to procure the Whois Privacy Service is accepted by Fundacion Privacy Services Ltd.. The term shall run for the unit of time which You ordered when You procured the Whois Privacy Services, unless terminated or suspended sooner according to the terms of this Agreement. Sections 8 and 9 (Forwarding Communications), 10 (Our Right to Suspension or Termination of Service and Disclosure of Your Personal Information), 11 (Limitation of Liability), 12 (Indemnity), 13 (Warranty Disclaimer) and 14 (Miscellaneous Provisions) shall survive any termination or expiration of this Agreement.