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Service Agreement
WhoisProtector™ Service Agreement
(Last updated April 9, 2008)
The private registration services (“WhoisProtector
Sevices”) that WhoisProtector, Inc. (“WhoisProtector”)
provides you are subject to the provisions of this Services
Agreement (“Agreement”). The term “you”
(and any derivative thereof, such as “your”)
also refers to and includes, but is not limited to, any
person ordering WhoisProtector Services, any person for
whom WhoisProtector Services are ordered, any person using
WhoisProtector Services, or any agent, employer, employee,
contractor, and other individual or entity acting on your
behalf or in relation to your obligations under this Agreement.
THE SUBMISSION OF YOUR “ORDER FORM”
(WHICH INCLUDES, WITHOUT LIMITATION, WHOISPROTECTOR’S
ONLINE ORDER FORM, HARD COPY WRITTEN ORDER FORM, AND ORDERS
MADE VIA OTHER VALID MEANS ACCEPTABLE TO WHOISPROTECTOR)
OR YOUR USE OF WHOISPROTECTOR SERVICES WILL IMMEDIATELY
AND AUTOMATICALLY CONSTITUTE YOUR ACCEPTANCE OF THIS AGREEMENT.
WHOISPROTECTOR MAY, AT ITS SOLE DISCRETION, ACCEPT OR REJECT
YOUR ORDER FORM AND THE PROVISION OF WHOISPROTECTOR SERVICES
FOR ANY REASON WHATSOEVER. IF YOU ARE SUBMITTING AN ORDER
FORM ON BEHALF OF ANOTHER PARTY, YOU REPRESENT AND WARRANT
THAT YOU HAVE THE AUTHORITY TO BIND THAT PARTY AS A PRINCIPAL
TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.
WhoisProtector reserves the right to update
this Agreement (including, without limitation, changing
or discontinuing any of the WhoisProtector Services) at
any time and such modifications will become effective from
the time the updated Agreement is published on WhoisProtector’s
website located at http://www.whoisprotector.com (the “Web
Site”). The operative and effective version of the
Agreement will be the latest version available on the Web
Site. Your continued use of WhoisProtector Services after
any update to the Agreement will constitute your acceptance
of the new version of the Agreement.
You and WhoisProtector agree to the following terms and
conditions:
1. WHOISPROTECTOR SERVICES
1.1 The amount of personal contact information kept private by WhoisProtector is dependent upon the type of WhoisProtector Service subscribed for. Once WhoisProtector accepts your Order Form, WhoisProtector's information will be made publicly available, and your personal information will not appear in the Whois database, unless otherwise specified in the Order Form.
1.2 By submitting your Order Form to WhoisProtector or otherwise subscribing for WhoisProtector Services, you expressly authorize and designate WhoisProtector to be listed as the registrant of record and other contacts (except where otherwise specified in the Order Form) for your domain name(s) for the effective duration of this Agreement between you and WhoisProtector.
1.3 Upon expiry or termination
of this Agreement for any reason, all the Whois information
for your domain name will be replaced with the information
that existed immediately prior to WhoisProtector becoming
the registrant of record or otherwise the information you
disclosed to the particular service provider that offers
WhoisProtector Services (the “Provider”), as
the case may be.
1.4 You will at all times
remain the true owner of your domain name(s) that are subscribed
for WhoisProtector Services and you will possess the full
rights normally associated thereto.
1.5 You understand, acknowledge,
and agree that the registration of your domain name(s),
including, but not limited to, renewals, transfers, or other
processes, is not one of the WhoisProtector Services and
that WhoisProtector is not liable or responsible in any
way for such processes.
1.6 You understand, acknowledge,
and agree that any recommendation made by WhoisProtector
employees for services or products ancillary to WhoisProtector
Services are the recommendations of that employee only and
not of WhoisProtector. Therefore, WhoisProtector does not
warrant the integrity or quality of the services or products
provided by such third parties.
1.7 You are solely responsible,
and WhoisProtector is not responsible, for ensuring the
confidentiality and secrecy of any and all passwords related
to your domain name(s). If you forget or lose any of your
passwords, and/or you require a new password, you will abide
by all the security measures and procedures that WhoisProtector
may implement and require of you, including your provision
to WhoisProtector of valid photo identification, credit
card number, and/or notarized affidavit. You understand,
acknowledge, and agree that if you do not comply with or
satisfy (in WhoisProtector’s sole discretion) WhoisProtector’s
security and identification verification procedures, then
WhoisProtector reserves the right to refuse any or all of
your inquiries and/or requests as they relate to WhoisProtector
Services.
2. YOUR INFORMATION
2.1 For each and all of
the domains for which you subscribe WhoisProtector Services,
you must disclose to the Provider certain information associated
thereto, and such information must be complete, accurate,
and current at all times during the effectiveness of this
Agreement. It is your sole responsibility to ensure that
the Provider has actual knowledge of any and all updates
to such information. The information that you must submit
to the Provider include, but are not limited to, the following:
(a) Your full legal
name, mailing address, e-mail, and telephone number;
(b) The full legal name, mailing address,
e-mail, and telephone number of the registrant of record
(if different from section 2.1(a) above);
(c) The full legal name, mailing addresses,
e-mails, and telephone numbers of each of the administrative,
technical, and billing contacts;
(d) The IP addresses of the primary name
server and any secondary name server, and the corresponding
names of such name servers;
(e) Your credit card number and expiry
date and the credit card holder’s full name as it
appears on the credit card;
(f) Any other information that ICANN
(the Internet Corporation for Assigned Names and Numbers)
or any domain name registry may require to be submitted
to it; and
(g) Any other information that WhoisProtector
may require that you submit to it.
2.2 In addition to the
information that you are required to provide, WhoisProtector
may maintain certain other information related to your domain
name(s), including, but not limited to, the following:
(a) The submission
date and time of your Order Form to WhoisProtector;
(b) The original creation date of the
domain name;
(c) The expiration date of the domain
name;
(d) Communications in any form related
to you and the provision of WhoisProtector Services;
(e) Billing records and other records
of account;
(f) Any other information regarding any
and all other activities between you and WhoisProtector
regarding WhoisProtector Services.
2.3 If you provide information
about any third party, you hereby represent and warrant
that you have obtained such third party’s express
prior written consent to the disclosure and use of that
party’s information. WhoisProtector reserves the right
to request from you a copy of such written consent and you
will thereby provide WhoisProtector with such written consent.
Failure to provide such written consent upon request will
be a material breach of this Agreement.
2.4 Your failure to provide
complete, accurate, and current information, or your failure
to update the information you have already provided to the
Provider within three (3) calendar days of such information
changing, will be a material breach of this Agreement.
2.5 The failure to respond,
within three (3) calendar days, to any of WhoisProtector’s
e-mail correspondence to the administrative, technical,
or billing contacts of your domain(s) will be a material
breach of this Agreement.
2.6 Any notice that WhoisProtector
is sends you will be deemed to have been given if sent to
the contact information you have provided to WhoisProtector.
2.7 You understand, acknowledge,
and agree that WhoisProtector owns all rights, titles, and
interests worldwide in WhoisProtector’s domain name
database and all information and derivative works generated
therefrom.
2.8 You understand and acknowledge
that WhoisProtector may, for security purposes, place into escrow
with a designated escrow agent any and all information that you have
provided to WhoisProtector pursuant to this Agreement and you
expressly agree to such disclosure.
3. SPAM
You understand, acknowledge, and agree that WhoisProtector
has a zero-tolerance policy against the sending of unsolicited
bulk e-mails and/or unauthorized commercial messages over
the Internet (“Spam” or “Spamming”).
You must not Spam or engage in any type of Spamming activities.
Non-compliance with the Spam/Spamming prohibition herein
is a material breach of this Agreement.
4. REPRESENTATIONS, WARRANTIES,
AND COVENANTS
4.1 You hereby represent,
warrant, and covenant that you hold the necessary rights
to use, or permit to use, the domain name(s) subscribed
for WhoisProtector Services and that such use does not and
will not in any way:
(a) violate or potentially
violate any right of any third party, including, but not
limited to, infringement or misappropriation of any copyright,
patent, trademark, trade secret, or other intellectual
propriety right;
(b) constitute or potentially constitute
violations, such as, but not limited to, false advertisement,
unfair competition, defamation, invasion of privacy, invasion
of rights, and discrimination;
(c) cause or potentially cause any kind
of dispute between or among any combination of parties;
(d) constitute or potentially constitute
the sending of unsolicited bulk-emails or Spam;
(e) be or potentially be unlawful, harmful,
fraudulent, libelous, slanderous, threatening, abusive,
harassing, defamatory, vulgar, obscene, profane, hateful,
racially, ethnically, disputatiously, argumentatively,
ethically, or otherwise offensive or objectionable; or
(f) encourage, promote, facilitate, or
condone conduct that would constitute a criminal offense,
give rise to civil liability, or otherwise violate any
applicable law and/or regulation, including, but not limited
to, local, provincial, state, national, international,
or other laws and/or regulations.
4.2 You further represent,
warrant, and covenant that you are and will be using your
domain(s) and WhoisProtector Services in good faith. Breach
of any representation, warranty, or covenant set out herein
will constitute material breach of this Agreement.
5. FORWARDING SERVICES
5.1 You understand, acknowledge,
and agree that WhoisProtector will forward to you only first
class mail, registered mail, and couriered items (collectively
referred to herein as “Mail”). WhoisProtector
is not obligated in any way to forward to you any Mail by
first class, registered mail, or courier regardless of how
WhoisProtector received such Mail. The means of forwarding
to you any and all Mail will be at WhoisProtector’s
sole discretion.
5.2 You will be solely
responsible, and WhoisProtector will not be responsible,
for all fees, charges, taxes, and other costs involved in
forwarding your Mail to you.
5.3 For Mail that appears
to be of a legal nature (as solely determined by WhoisProtector)
and received by WhoisProtector by first class mail, WhoisProtector
will digitally scan the Mail and e-mail you the image. You
will then have five (5) calendar days to reply and request
that WhoisProtector forward the particular Mail to you.
If WhoisProtector does not receive a reply from you within
such five (5) calendar days, then WhoisProtector may dispose
or return to sender such Mail.
5.4 You understand, acknowledge,
and agree that WhoisProtector may dispose or return to sender
any or all items received by WhoisProtector that does not
constitute Mail as defined herein, as determined at WhoisProtector’s
sole discretion.
5.5 Depending on the
particular e-mail forwarding option that you choose, WhoisProtector
will do one of the following with respect to e-mails that
WhoisProtector receives on your behalf:
(a) Forward all of
the e-mails to you;
(b) Filter your e-mails for Spam and
forward to you all other e-mails; or
(c) Forward no e-mails to you.
5.6 YOU HEREBY EXPRESSLY
CONSENT TO WHOISPROTECTOR RECEIVING, FORWARDING, RETURNING
TO SENDER, REPLYING TO (IF NECESSARY), DISPOSING/DELETING,
STORING, AND OTHERWISE HANDLING YOUR MAIL, YOUR E-MAIL,
AND ANY OTHER ITEM THAT WHOISPROTECTOR RECEIVES ON YOUR
BEHALF (ALL AT WHOISPROTECTOR’S SOLE REASONABLE DISCRETION).
5.7 You understand, acknowledge,
and agree that WhoisProtector will in no way be liable or
responsible for any Mail, e-mail, or other item received
by WhoisProtector on your behalf that is missing, destroyed,
damaged, stolen, lost, or otherwise.
5.8 You understand, acknowledge,
and agree that you will indemnify and hold harmless WhoisProtector
from and against any and all claims arising out of or resulting
from the failure of any Mail, e-mail, and/or other items
received by WhoisProtector on your behalf from reaching
you.
6. PAYMENT OF FEES
6.1 You are responsible
for paying all fees associated with the provision of and/or
your use of WhoisProtector Services (“Fees”).
6.2 You must make payments
for Fees by valid credit card or such other payment method
as WhoisProtector may authorize.
6.3 Your failure to make
payment for the Fees, or any portion thereof, by the relevant
due date will constitute material breach of this Agreement.
6.4 WhoisProtector reserves
the right to modify Fees from time to time at WhoisProtector’s
sole discretion.
6.5 You understand and
acknowledge that WhoisProtector is in no way obligated to
provide any or all of WhoisProtector Services to you if
you do not pay the Fees or any portion thereof.
6.6 In the event of a
charge back by a credit card company (or similar action
by another payment provider approved by WhoisProtector),
in connection with the payment of your Fees, you agree that
WhoisProtector may immediately terminate this Agreement
and any or all provision of WhoisProtector Services to you
and charge you a penalty fee for such charge back.
6.7 You understand, acknowledge,
and agree that you will be responsible for the full and
prompt payment of any and all outstanding Fees (including,
but not limited to, any penalty fee) notwithstanding the
termination or expiry of this Agreement for any reason.
7. BREACH AND TERMINATION
7.1 You understand, acknowledge,
and agree that WhoisProtector may, at its sole discretion,
immediately terminate or suspend this Agreement, or take
other disciplinary measures, in the event of any or all
of the following:
(a) your material breach
of this Agreement;
(b) your breach of this Agreement and
such breach is not cured within three (3) calendar days
of receiving a notice from WhoisProtector (whether written
or verbal) to cure such breach;
(c) WhoisProtector’s receipt of
an order from a court of competent jurisdiction or an
arbitration award or directions from ICANN;
(d) WhoisProtector’s receipt of
an order from a government authority, such as, but not
limited to, law enforcement agencies;
(e) any actual, potential, or threat
of legal or other action against WhoisProtector (or its
executives, directors, officers, attorneys, managers,
employees, agents, consultants, contractors, parent companies,
subsidiaries, co-subsidiaries, and divisions), any domain
name registry, or ICANN resulting from or arising out
of WhoisProtector Services and/or your use thereof;
(f) any other grounds for termination,
suspension, or other disciplinary measures as determined
by WhoisProtector at its sole reasonable discretion given
the circumstances;
(g) your failure to comply with the rules,
policies, and agreements with any third party, including,
but not limited to, the registry, the registrar, and any
other provider of services in relation to your domain
name(s) or in affiliation with WhoisProtector Services;
or
(h) the cancellation, suspension, transfer,
modification, expiry, or termination of your domain name
registration.
7.2 You understand, acknowledge,
and agree that WhoisProtector will not be obligated to refund
to you any of the Fees because of any termination or suspension
of this Agreement or other disciplinary measures.
7.3 You understand, acknowledge,
and agree that material breach of this Agreement is not
limited to the provisions that expressly state that the
breach of such provision constitutes material breach.
7.4 You may terminate
without penalty this Agreement and the provision of WhoisProtector
Services upon ten (10) days written notice to WhoisProtector.
Except as otherwise provided in any Order Form, all Fees
incurred or paid hereunder are non-refundable.
8. MODIFICATIONS
You acknowledge that the domain name and
Internet industries are constantly evolving and, therefore,
you agree that WhoisProtector may modify this Agreement,
or any other applicable agreement and/or policy, as is necessary
to comply with the rules of ICANN, or any other entity or
individual, as well as to adjust to changing circumstances.
Your continued use of WhoisProtector Services will constitute
your acceptance of this Agreement with any new change. If
you do not agree to any such change, you may request in
writing that the provision of WhoisProtector Services and
this Agreement be terminated. You agree that such termination
will be your exclusive remedy if you do not wish to abide
by any change to this Agreement, or any other applicable
agreement.
9. INDEMNIFICATION
You agree to protect, defend, hold harmless,
and indemnify WhoisProtector (for the purposes of this section
WhoisProtector includes, but is not limited to, WhoisProtector’s
executives, directors, officers, attorneys, managers, employees,
agents, consultants, contractors, parent companies, subsidiaries,
co-subsidiaries, and divisions), ICANN, any domain name
registry, and the registrar of your domain name(s) that
are subscribed for WhoisProtector Services from and against
any and all liabilities, losses, costs, judgments, damages,
claims, causes of actions, legal fees, and/or expenses arising
out of or resulting from your use of WhoisProtector Services,
(b) your breach and/or material breach of any of the representations,
warranties, and covenants contained in this section.
10. LIMITATION OF LIABILITY
YOU AGREE THAT WHOISPROTECTOR (FOR THE
PURPOSES OF THIS SECTION, WHOISPROTECTOR INCLUDES, BUT IS
NOT LIMITED TO, WHOISPROTECTOR’S EXECUTIVES, DIRECTORS,
OFFICERS, ATTORNEYS, MANAGERS, EMPLOYEES, AGENTS, CONSULTANTS,
CONTRACTORS, PARENT COMPANIES, SUBSIDIARIES, CO-SUBSIDIARIES,
AND DIVISIONS), ANY DOMAIN NAME REGISTRY, ICANN, AFFILIATES,
THIRD-PARTY PROVIDERS, MERCHANTS, LICENSORS, OR THE LIKE,
OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, OR DISTRIBUTING
WHOISPROTECTOR SERVICES WILL NOT BE LIABLE TO YOU OR ANYONE
ELSE FOR ANY LOSS THAT MAY OCCUR DUE TO ANY (A) LOSS OF
REGISTRATION OF YOUR DOMAIN NAME, (B) USE OF YOUR DOMAIN,
(C) NON-DELIVERY OR MISDELIVERY OF DATA BETWEEN YOU AND
WHOISPROTECTOR AND/OR BETWEEN WHOISPROTECTOR AND ANY OTHER
THIRD PARTY, (D) EVENT BEYOND WHOISPROTECTOR’S REASONABLE
CONTROL, (E) PROCESSING OF YOUR ORDER FORM, (F) PROCESSING
OF ANY MODIFICATION TO THE INFORMATION ASSOCIATED WITH YOUR
DOMAIN NAMES, (G) FAILURE OF YOU OR YOUR AGENT TO PAY ANY
FEE HEREUNDER, (H) SUSPENSION, TERMINATION, CANCELLATION,
MODIFICATION, OR DISCIPLINARY MEASURES AGAINST YOUR DOMAIN
NAMES BY WHOISPROTECTOR, OR (H) ENFORCEMENT OF ANY APPLICABLE
DISPUTE RESOLUTION PROVISION. FURTHERMORE, WHOISPROTECTOR
WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
OR CONSEQUENTIAL DAMAGE OF ANY KIND, INCLUDING, BUT NOT
LIMITED TO, LOST PROFITS, REGARDLESS OF THE FORM OF ACTION,
WHETHER IN CONTRACT OR TORT, INCLUDING, WITHOUT LIMITATION,
NEGLIGENCE, OR OTHERWISE, EVEN IF WHOISPROTECTOR HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL
WHOISPROTECTOR’S MAXIMUM LIABILITY EXCEED THE TOTAL
AMOUNT PAID BY YOU OR YOUR AGENT TO WHOISPROTECTOR FOR WHOISPROTECTOR
SERVICES.
11. DISCLAIMER
ALL WHOISPROTECTOR SERVICES ARE PROVIDED
TO YOU “AS IS,” AND WHOISPROTECTOR WILL HAVE
NO LIABILITY FOR FAILURE OF ANY OF THE WHOISPROTECTOR SERVICES
PROVIDED TO YOU, WHETHER UNDER THEORIES OF STRICT LIABILITY,
PRODUCTS LIABILITY, NEGLIGENCE, OR OTHERWISE. WHOISPROTECTOR
MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER,
EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR
WHOISPROTECTOR SERVICES, INCLUDING, BUT NOT LIMITED TO,
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. WITHOUT LIMITING THE FOREGOING, WHOISPROTECTOR
MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER
THAT THE USE OF WHOISPROTECTOR SERVICES WILL IMMUNIZE YOU
OR PROTECT YOU FROM (A) CHALLENGES TO YOUR DOMAIN NAME’S
REGISTRATION, (B) SUSPENSION, CANCELLATION, TRANSFER, OR
ANY OTHER LOSS OF THE DOMAIN(S) REGISTERED TO YOU, OR (C)
ANY THIRD PARTY OBTAINING YOUR INFORMATION, WHETHER PERSONAL
OR OTHERWISE. FOR THE PURPOSES OF THIS SECTION, WHOISPROTECTOR
INCLUDES, BUT IS NOT LIMITED TO, WHOISPROTECTOR’S
EXECUTIVES, DIRECTORS, OFFICERS, ATTORNEYS, MANAGERS, EMPLOYEES,
AGENTS, CONSULTANTS, CONTRACTORS, PARENT COMPANIES, SUBSIDIARIES,
CO-SUBSIDIARIES, AND DIVISIONS, AND ANY DOMAIN NAME REGISTRY,
ICANN, AFFILIATES, THIRD-PARTY PROVIDERS, MERCHANTS, LICENSORS,
OR THE LIKE, OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING,
OR DISTRIBUTING WHOISPROTECTOR’S SERVICES.
12. REGISTRY, REGISTRAR, AND
OTHER PROVIDERS
WhoisProtector will not be liable or responsible
in any way for any action taken by (a) the applicable domain
name registry, (b) the applicable domain name registrar,
or (c) any other provider of services related to your domain
name(s) and/or WhoisProtector Services.
13. INTELLECTUAL PROPERTY
13.1 You will not, without
WhoisProtector’s express prior written consent, copy,
reproduce republish, or otherwise use any material, in whole
or in part, that is located on the Web Site.
13.2 You will not, without WhoisProtector’s
express prior written consent, use any of WhoisProtector’s
trademarks, service marks, copyrighted materials, or other
intellectual property.
13.3 You will not, in any way, misrepresent
your relationship with WhoisProtector, attempt to pass yourself
off as WhoisProtector, or claim that you are WhoisProtector.
14. PRIVACY
Except as provided herein, WhoisProtector
will keep confidential your information that the Provider
discloses to WhoisProtector. You understand, acknowledge,
and agree that under urgent or emergency circumstances,
and/or as required by court order, official authority, police
or other law enforcement authority, or any applicable law
or regulation, WhoisProtector may make available your information
to the relevant third party.
15. ASSIGNMENT AND AGENTS
15.1 The rights and obligations
of both you and WhoisProtector (collectively the “Parties”)
under this Agreement will bind and inure to the benefit
of the Parties’ respective successors, executors,
administrators, and assigns, as the case may be. However,
you may not assign or delegate your rights and/or obligations
under this Agreement, the Order Form, other agreement for
WhoisProtector Services executed between the Parties, either
in whole or in part, without the express prior written consent
of WhoisProtector.
15.2 You understand,
acknowledge, and agree that you will at all times be bound
as a principal to this Agreement even if you have executed
this Agreement and/or the Order Form as an agent of another
party.
16. MINIMUM AGE REQUIREMENT
16.1 You represent and
warrant that you are at least 18 years of age and, subject
to section 16.2, that any other party you are acting on
behalf of for retaining WhoisProtector Services is also
at least 18 years of age.
16.2 You understand,
acknowledge, and agree that any individual under the age
of 18 years (a “Minor”) must have a parent or
guardian accept this Agreement as a principal for the Minor
to use WhoisProtector Services. If you are a parent or guardian
acting in such a capacity, then you will remain primarily
liable for ensuring complete and proper compliance with
this Agreement, including the timely and full payment of
the Fees, unless and until the Minor has reached the age
of 18 and you assign the Agreement to the Minor according
to the assignment provisions herein.
16.3 Any acceptance of
this Agreement, the Order Form, or WhoisProtector Services
by an individual under the age of 18 (Minor) will be null
and void as between WhoisProtector and the Minor to the
extent that WhoisProtector will not be held liable in any
way as a result of the Minor’s age or legal incapacity
or the Minor’s use of WhoisProtector Services.
17. GOVERNING LAW AND SEVERABILITY
This Agreement (including, but not limited
to, the Order Form and other agreements for WhoisProtector
Services) will be governed by and construed in accordance
with the laws of the State of Illinois, USA without reference
to its conflicts of laws principles. Any litigation or arbitration
between you and WhoisProtector will take place in Illinois
and you consent to personal jurisdiction and venue in that
state. If any provision or portion of this Agreement is
found by a court of competent jurisdiction to be unenforceable
for any reason, then the remainder of this Agreement will
continue in full force and effect.
18. FORCE MAJEURE
You understand, acknowledge, and agree
that WhoisProtector will not be liable for delays in its
performance of this Agreement, the Order Form, or other
agreements for WhoisProtector Services caused by circumstances
beyond WhoisProtector’s reasonable control, including,
but not limited to, acts of God, wars, insurrection, civil
commotions, riots, national disasters, earthquakes, strikes,
fires, floods, water damage, explosions, shortages of labor
or materials, labor disputes, transportation problems, accidents,
embargoes, or governmental restrictions (collectively “Force
Majeure”). WhoisProtector will make reasonable efforts
to reduce to a minimum and mitigate the effect of any Force
Majeure. Notwithstanding anything to the contrary contained
elsewhere herein, lack of finances will not be considered
an event of Force Majeure nor will any event of Force Majeure
suspend any of your obligations for the full and timely
payment of Fees and other moneys due hereunder.
19. WAIVER, MODIFICATION, AND
AMENDMENT
Any waiver, modification, or amendment
of any provision of this Agreement, the Order Form, or other
agreements for WhoisProtector Services, which is initiated
by you, will be valid only if accepted by WhoisProtector
in express writing signed by an authorized representative
of WhoisProtector with proper signing authority in the circumstances.
20. INDEPENDENT CONTRACTORS
Nothing in this Agreement will be construed
as creating a partnership or relationship of employer and
employee, principal and agent, partnership or joint venture
between the Parties. Each Party will be deemed an independent
contractor at all times and will have no right or authority
to assume or create any obligation on behalf of the other
Party, except as may be expressly provided herein.
21. CONSTRUCTION AND INTERPRETATION
Wherever in this Agreement the masculine,
feminine, or neuter gender is used, it will be construed
as including all genders, and wherever the singular is used,
it will be deemed to include the plural and vice versa,
where the context so requires. The division of this Agreement
into sections/paragraphs, and the insertion of headings/captions,
are for convenience of reference only and will not affect
the construction or interpretation of this Agreement. Any
rule of construction to the effect that any ambiguity is
to be resolved against the drafting party will not be applicable
in the construction or interpretation of this Agreement.
22. COMPLETE AGREEMENT AND EXCLUSIVITY
This Agreement, including and in addition
to the recitals contained in this Agreement, the Order Form,
WhoisProtector policies, and any other agreement for WhoisProtector
Services, constitutes the complete understanding and agreement
between you and WhoisProtector regarding the subject matter
of this Agreement. Except when expressly agreed to the contrary
in signed writing by an authorized representative of WhoisProtector,
this Agreement supersedes any other agreement whether written,
oral, by conduct, or otherwise. This Agreement is exclusively
between WhoisProtector and you, and this Agreement will
not confer any rights in any third party except as otherwise
expressly provided in this Agreement.
23. INDEPENDENT LEGAL ADVICE
You represent and warrant that you have
read this Agreement thoroughly, have had sufficient opportunity
to seek independent legal counsel or have waived such opportunity,
and therefore clearly understand and agree to all the terms
and conditions contained in this Agreement.
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