Effective Date: 24/12/2017
WebHost Systems Ltd is one of the official Domains Names Resellers of Namecheap registering all of its client’s domain names through the Namecheap’s API and following the very same. Namecheap WHOIS Proxy Agreement (“Proxy Agreement”) who sets forth the terms and conditions of your use of the services offered by Whoisguard, Inc., a Republic of Panama corporation, (“Whoisguard”) and Namecheap, Inc., a Delaware corporation, (“Namecheap”) pursuant to the Services Agreement by and between Whoisguard and Namecheap, wherein Whoisguard agrees to provide consumers of WebHost Systems Ltd and Namecheap’s domain name registration and hosting services (“WebHost Systems Ltd and/or Namecheap Registrant”) with WHOIS privacy protection services (“Whoisguard Services Agreement”).
This Proxy Agreement serves to supplement your Domain Registration Agreement and/or Hosting Services Agreement between you on the one hand and WebHost Systems Ltd / Namecheap on the other hand, and which is incorporated herein by reference. In this Proxy Agreement “you” and “your” refer to you or any agent, employee, servant or person authorized to act on your behalf, and the WebHost Systems Ltd / Namecheap Registrant listed in the WHOIS contact information for the domain name. This Proxy Agreement explains WebHost Systems Ltd/Namecheap’s obligations to you in connection with your WHOIS privacy protection services, and explains your obligations to WebHost Systems Ltd/Namecheap for privacy protection services offered by third party Whoisguard under the Whoisguard Services Agreement.
By subscribing to the WebHost Systems Ltd/Namecheap WHOIS Privacy Protection Services (“WHOIS Privacy Services”), you are engaging Whoisguard to administer and register each domain name controlled by you (“Protected Domain”) in the name of WhoisGuard. Thus, your name, postal address, email address, phone and fax numbers shall be kept confidential, subject to this Proxy Agreement. The following information (and not your personal information) will be made publicly available in the WHOIS directory for each Protected Domain:
You will retain the right to sell, transfer, or assign each Protected Domain.
You will retain the right to control and set the DNS settings for the Protected Domain(s).
You will retain the right to renew each Protected Domain name registration upon expiration (subject to your WebHost Systems Ltd/ Namecheap’s applicable rules and policies).
You will remain responsible to resolve any and all monetary or other legal claims that arise in connection with your Protected Domain(s), subject to the remaining provisions of this Proxy Agreement, the Whoisguard Services Agreement, and your Domain Registration Agreement and/or Hosting Services Agreement with WebHost Systems Ltd/Namecheap (collectively, “Agreements”).
You agree that for each Protected Domain, you will provide to Whoisguard and maintain as current and accurate, the following information:
You agree to:
If you do not supply primary and secondary domain name servers, you agree that Whoisguard or WebHost Systems Ltd/Namecheap may point your Protected Domain(s) to an IP address of its choosing until such time as you supply primary and secondary domain name servers.
Whoisguard may modify its information from time to time in such a way which may constitute a “Change of Registrant” under ICANN’s transfer policy (the “Transfer Policy”). In such a case, You and Whoisguard explicitly opt out of any 60-day inter-registrar transfer lock that would otherwise be imposed under the Transfer Policy due to any such Change of Registrant. In addition, You and Whoisguard explicitly authorize the registrar of the Protected Domain to act as its “Designated Agent” (as defined in the Transfer Policy) to approve each “Change of Registrant” (as defined in the Transfer Policy) on its behalf.
If you have selected automatic renewal of the WHOIS Privacy Services administered by Whoisguard, you agree:
If you do not wish to automatically renew the WHOIS Privacy Services administered by Whoisguard, you agree that the exclusive method for communicating this shall be by logging into your WebHost Systems Ltd/Namecheap Account to ensure that the auto-renewal or renewal option is not selected. You understand that you must do this at least 31 days prior to the end of the then current Term (as defined below).
It is your responsibility to keep necessary funds in your WebHost Systems Ltd. If Whoisguard is unable to collect renewal or other fees, you agree that Whoisguard may contact you, but is not obliged to do so, and you agree that Whoisguard may suspend or terminate the WHOIS Privacy Services as a result of inability to obtain payment.
You understand that the term of WHOIS Privacy Services administered by Whoisguard begins on the date your attempt to purchase the WHOIS Privacy Services is accepted by Whoisguard and that it shall run for the unit of time which you order (“Term”). You understand that the Term may be different than the registration term of the Protected Domain which is associated with WebHost Systems Ltd/Namecheap. If a Protected Domain registration expires and is deleted before the end of the Term of the associated WHOIS Privacy Services, then the WHOIS Privacy Services associated with the domain will end when the Protected Domain is deleted and you understand that there will be no refund for any resulting unused portion of the Term. If the Term ends while the registration term for the Protected Domain is still ongoing, then the WHOIS Privacy Services will no longer be provided, the personal information specified in this Proxy Agreement shall be listed in the public WHOIS Directory output for the (then former) Protected Domain, and the communications forwarding services specified in this Proxy Agreement will no longer be provided.
You represent and warrant that all information provided by you pursuant to this Proxy 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 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 or morally objectionable activity (as defined below), or, in connection with the transmission of unsolicited commercial email(s) (“Spam”). Further, you represent and warrant that you will not provide any third party with the WhoisGuard Addresses for the purpose of having such third party transmit communications to you through Whoisguard.
Notwithstanding your purchase of the WHOIS Privacy Services administered by Whoisguard, WebHost Systems Ltd/Namecheap reserves the right in its sole judgment and discretion to disclose your personal protected information, or instruct Whoisguard to disclose such information, in the event any of the following occur:
In the event WebHost Systems Ltd/Namecheap decides to take any of the actions set forth above or in the event you elect to cancel the WHOIS Privacy Services administered by Whoisguard for any reason, WebHost Systems Ltd/Namecheap shall not be liable for fees paid by you for the WHOIS Privacy Services administered by Whoisguard.
You agree that from time to time, Whoisguard (and if applicable,WebHost Systems Ltd/ Namecheap) will review communications sent to the WhoisGuard Addresses associated with your Protected Domain.
For communications received via certified or traceable courier mail (such as UPS, FedEx, or DHL), or first class mail which does not appear to be unsolicited commercial mail, you agree that Whoisguard may either i) forward such communication to you or ii) may attempt to communicate to you a scanned copy of a page of the communication to ascertain how you wish Whoisguard to proceed with respect to that communication.
You understand that Whoisguard may, in its own judgment and discretion, elect to not forward to you such first class postal mail or email, fax, postal mail or telephone communications which appear to be unsolicited communications, which offer or advertize 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 Whoisguard as a general mail forwarding service. You authorize Whoisguard to either discard all such communications or return all such communications to sender unopened.
You agree to waive any and all claims arising from your failure to receive communications directed to your domain name but not forwarded to you by Whoisguard, including such failures which arise from Whoisguard’s mistake of judgment made in good faith in determining whether a communication is or is not an unsolicited communication.
The public WHOIS Directory generally requires an email address for every purchased domain name registration. When you purchase WHOIS Privacy Services administered by Whoisguard, an email address will be automatically generated for the corresponding Protected Domain (e.g. XXXXXX.firstname.lastname@example.org). Thereafter, when messages are sent to the email address listed in the WhoisGuard Address, Whoisguard will forward such messages to the email address you provided to WhoisGuard, in accordance with this Proxy Agreement. If such email address becomes non-functioning or if the email to such address bounces, WhoisGuard shall not be obligated to attempt to contact you through other means. You agree that WhoisGuard may elect in its sole discretion, to allow you to access the email server logs if available and view email information sent to the Whoisguard Addresses, though such alternative means of servicing your Account is an option and not a requirement.
When Whoisguard receives a communication to the Protected Domain, Whoisguard will send an email to the email address you provided to Whoisguard in accordance with this Proxy Agreement. The email message from Whoisguard to you will identify the sender of the correspondence and the date received. As an alternative, you agree that Whoisguard may allow you to access your account to view full or partial scanned copies of (non-email) communications sent to the Protected Addresses and that you may be required to interact with your account to have the physical originals of such communications forwarded to you and that if you do not interact with your account in the ways indicated upon accessing your account, that the communications may not be forwarded to you. In either event, you will have seventy-two (72) hours to decide whether to have the communication(s) forwarded. If you do not respond within this time period, the communication(s) will not be forwarded. Method of forward will be determined by Whoisguard. Communication(s) may not be immediately forwarded upon your election; there may be a delay and communication(s) may be aggregated to be forwarded together.
You agree to submit to fees where Whoisguard may begin charging fees for forwarding communications or may change the method by which communications are forwarded without written notice.
In the event you do not respond to communications from Whoisguard, irrespective of whether Whoisguard is forwarding an email or making an unrelated inquiry or communication, Whoisguard may immediately reveal the information you provided in accordance with this Proxy Agreement and/or cancel the WHOIS Privacy Services regarding either the Protected Domain in question or with respect to all of your Protected Domains, depending on the circumstances. This means the Whois directory will revert to displaying your name, postal address, email address and phone number.
UNDER NO CIRCUMSTANCES SHALL WEBHOST SYSTEMS LTD OR NAMECHEAP BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES FOR ANY REASON WHATSOEVER RELATED TO THIS PROXY AGREEMENT, YOUR DOMAIN NAME REGISTRATION, THE WHOIS PRIVACY SERVICES ADMINISTERED BY WHOISGUARD, YOUR USE OR INABILITY TO USE THE WEBHOST SYSTEMS LTD OR NAMECHEAP WEBSITE(S) OR THE MATERIALS AND CONTENT OF THE WEB SITE(S) OR ANY OTHER WEB SITES LINKED TO SUCH WEB SITE(S) OR YOUR PROVISION OF ANY PERSONALLY IDENTIFIABLE INFORMATION TO BACKEND SERVICE PROVIDER OR ANY THIRD PARTY. THIS LIMITATION APPLIES REGARDLESS OF WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF WEBHOST SYSTEMS LTD OR 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, WEBHOST SYSTEMS LTD OR 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 Webhost Systems Ltd or/ 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 TO EACH SERVICE PROVIDER IN THE PRECEDING YEAR WITH RESPECT TO THE SERVICES WHICH GAVE RISE TO THE LIABILITY OR $100.00 PER PROTECTED DOMAIN.
With respect to ICANN, the registry operators, Webhost Systems Ltd 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 Proxy Agreement, 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 Webhost Systems Ltd/Namecheap may be involved in a suit involving a third party and which is related to the WHOIS Privacy Services administered by Whoisguard to you under this Proxy Agreement, Webhost Systems Ltd/Namecheap may seek written assurances from you in which you promise to defend, indemnify and hold Webhost Systems Ltd/Namecheap harmless from the costs and liabilities described in this paragraph. Such written assurances may include, in Webhost Systems Ltd/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 Webhost Systems Ltd/Namecheap to be a breach of this Proxy Agreement by you and may, in Webhost Systems Ltd or 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 Webhost Systems Ltd or Namecheap is the registrar of record.
Should Webhost Systems Ltd or 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 Webhost Systems Ltd or 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 Primary and Backend Service Providers, and their parent companies, subsidiaries, affiliates, shareholders, agents, directors, officers and employees and Your registrar, from and against any and all claims, demands, liabilities, losses, damages or costs, including reasonable attorney’s fees, arising out of or related in any way to the Agreements, the web sites of the Service Providers, your Account, and/or your use of your Protected Domain.
The terms of this Section will survive any termination or cancellation of this Proxy Agreement.
THE BACKEND 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 PROXY AGREEMENT, THE SERVICES PROVIDED HEREUNDER, THE WEB SITES OF THE BACKEND 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 BACKEND SERVICE PROVIDER SERVICES, AS WELL AS THE BACKEND SERVICE PROVIDER WEB SITE, ARE PROVIDED “AS IS”. YOUR SUBSCRIPTION TO AND USE OF BACKEND 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.
Except as otherwise set forth in the UDRP or any similar ccTLD policy with respect to any dispute over a domain name registration this Proxy Agreement, your rights and obligations and all actions contemplated by this Proxy Agreement shall be governed by the laws of the United States of America and the State of California.
You agree that any action brought by you to enforce this Proxy Agreement or any matter brought by you and which is against or involves Webhost Systems Ltd or Namecheap and which relates to your use of the Services shall be brought exclusively in the United States District Court for the Central District of California, or if there is no jurisdiction in such court, then in a state court in Los Angeles County, State of California.
You consent to the personal and subject matter jurisdiction of any state or Federal court in Los Angeles County, State of California in relation to any dispute between you and Webhost Systems Ltd or / Namecheap under this Proxy Agreement.
You agree that service of process on you by Webhost Systems Ltd or Namecheap in relation to any dispute arising under this Proxy Agreement may be served upon you by first class mail to the address listed by you in your account and/or domain name WHOIS information or by electronically transmitting a true copy of the papers to the email address listed by you in your account and/or domain name WHOIS information.
YOU AGREE TO WAIVE THE RIGHT TO TRIAL BY JURY IN ANY PROCEEDING THAT TAKES PLACE RELATING TO OR ARISING OUT OF THIS PROXY AGREEMENT.
You agree that any notices required to be given under this Proxy Agreement by Webhost Systems Ltd or 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.
You attest that you are of legal age to enter into this Proxy Agreement.
This Proxy Agreement, the referenced agreements incorporated herein, the ICANN Policy and the UDRP, together with all modifications, constitute the complete and exclusive agreement between you and Webhost Systems Ltd or Namecheap, and supersede and govern all prior proposals, agreements, or other communications. This Proxy Agreement may not be amended or modified by you except by means of a written document signed by both you and an authorized representative of Webhost Systems Ltd or Namecheap.
Nothing contained in this Proxy Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties hereto. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
Any failure on the part of Webhost Systems Ltd or 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 Webhost Systems Ltd or Namecheap of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
In the event that any provision of this Proxy Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Proxy Agreement unenforceable or invalid as a whole. Webhost Systems Ltd or 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.
Except as otherwise set forth herein, your rights under this Proxy Agreement are not assignable or transferable. Any attempt by your creditors to obtain an interest in your rights under this Proxy Agreement, whether by attachment, levy, garnishment or otherwise, renders this Proxy Agreement voidable at the option of Webhost Systems Ltd or Namecheap.
Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its control including, but not limited to: earthquake; flood; fire; storm; natural disaster; act of God; war; terrorism; armed conflict; labor strike; lockout; boycott; supplier failures, shortages, breaches, or delays; or any law, order regulation, direction, action or request of the government, including any federal, state and local governments having or claiming jurisdiction over Webhost Systems Ltd or Namecheap or its affiliates, or of any department, agency, commission, bureau, corporation or other instrumentality of any federal, state, or local government, or of any civil or military authority; or any other cause or circumstance, whether of a similar or dissimilar nature to the foregoing, beyond the reasonable control of the affected party, provided that the party relying upon this Section
The section headings appearing in this Proxy Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.