Updated: August 26, 2013
YOU ACKNOWLEDGE THAT MONIKER IS A REGISTRAR ACCREDITED BY THE INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS (“ICANN”) AND IS BOUND BY AN AGREEMENT WITH ICANN AND THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF ICANN’S UNIFORM DOMAIN NAME DISPUTE RESOLUTION POLICY LOCATED HERE, AS AMENDED FROM TIME TO TIME, WHICH IS HEREBY INCORPORATED AND MADE A PART OF THIS AGREEMENT BY REFERENCE FOR ALL TLD DOMAIN NAME REGISTRATIONS OR RENEWALS.
MONIKER SERVICE AGREEMENT TERMS AND CONDITIONS
You also agree to establish an account with us for such Services. When you use your account or permit someone else to use your account to purchase or otherwise acquire access to Services or to modify or cancel your Services (even if we were not notified of such authorization), this Agreement covers any such Service or actions. Any acceptance of your request for Services and the performance of such Services will occur at the location of our principal executive office in Portland, Oregon.
Current services offered by Moniker include, but are not limited to, domain name registration services, back-order services, auction services, domain WHOIS privacy services, security locks, URL and e-mail forwarding, domain sales, auctions, escrow, domain traffic monitoring and monetization, web hosting, e-mail, and file upload (together with other product offerings and services Moniker may provide from time to time, the “Services”). Services do not include checking whether the domain names you select, or the use you make of such domain names or of the Services, infringe the legal rights of third parties. It is your responsibility to know whether the domain names you select or use infringe the legal rights of third parties.
You must be eighteen (18) or over, or be represented by someone eighteen (18) or over, to register with Moniker or otherwise use any of the Services. Participation in the Services is void where prohibited. By using the Services, you represent and warrant that you have the right, authority, and capacity to enter into this Agreement and to abide by all of the terms and conditions hereof.
As consideration for any Services you select, you agree to pay Moniker the applicable fees for such Services as set forth on our website at the time of your selection, unless a different fee or payment arrangement is agreed to in advance by us in writing. You also agree to pay any additional fees, surcharges, or supplemental payments that may be imposed on Moniker by ICANN, or any other regulatory agency, that relates to your domain name registration.
Payments may be made by bank wire, valid credit card, PayPal, or check. All fees are due immediately and are non-refundable—including any fees used to pre-fund your account or otherwise prepaid by you—even if your Services are suspended, terminated, or transferred prior to the end of the Services term. Domain name registrations that are over five (5) days past due may be manually or automatically deleted at any time, in our sole discretion, without prior notice to you. Similarly, any Services that are over five (5) days past due may be immediately terminated by us without prior notice to you. We also may, in our sole discretion, use any and all remedies available to us to collect any outstanding fees for Services rendered, including charging the credit card on your file, collecting funds held in your account, or, in the event a domain name registration has not been paid for, assuming ownership of said domain name, which we can either keep for our own account or sell.
Initial domain name registrations and Services and domain name registrations and Services whose terms have expired must be paid in full before they can be transferred, deleted, or modified in any way, including any modification requests to affect the domain name record or to provide domain name services.
If you paid for any Services by credit card, you hereby authorize, but do not obligate, Moniker to automatically charge your credit card and renew the applicable Services on or before their renewal date using the credit card information you have provided to us, unless you expressly opt out of any automatic renewal process in accordance with the instructions on our website and e-mail forms. You are solely responsible for the credit card information you provide to Moniker and must promptly inform Moniker of any changes thereto including, but not limited to, changes of expiration date or account number, security code, or billing address).
When you use any of our Services through our e-mail or web-based or wholesale application process, you are solely responsible for protecting your account and your domain name registration records (including your contact records and host records) from unauthorized changes by setting, and continuously managing, your password and security settings. You are solely responsible for maintaining the confidentiality and secrecy of your password and account security settings, as well as your credit card and other information. All consequences resulting from a voluntary disclosure by you of your password or account information, as well as from any activities that occur in your account, are your responsibility.
You agree to notify us immediately of any unauthorized use of your account or any other breach of security. You agree that you are responsible for all activity arising from your account, whether initiated by you, by others on your behalf, or by unauthorized third parties. Moniker shall be entitled to rely on any requests initiated from your account, whether initiated or authorized by you or not, and shall not be liable for any such activity. Funds in your account can only be used to purchase Services from Moniker and, except to cover unpaid or delinquent fees as set forth in Section 3 above, will not be credited for other purposes.
As further consideration for the Services, you agree to provide us with certain true, current, complete, and accurate information about you as required by our application process as well as to maintain and update this information as needed to keep it true, current, complete, and accurate. This information includes (the “Contact Data”):
We rely on Contact Data to send you important information and notices regarding your account, legal matters, and our Services, as well as to provide proper WHOIS information of your registered domain names as required by ICANN and the registries with which we have contractual obligations. It will be considered a material breach of this Agreement if you: (i) fail to update your Contact Data within five (5) business days of any changes (ii) willfully provide inaccurate or unreliable Contact Data; (iii) willfully fail promptly to update your Contact Data; or (iv) fail to respond within fifteen (15) days to our inquiries or those of the registrar regarding the accuracy of the Contact Data. Such a breach will be a sufficient basis for us to exercise all the rights and remedies available to us under applicable law and this Agreement, including, without limitation, suspension or termination of the Services and any accounts you may have with us.
If you provide us with personal data pertaining to third party individuals as part of using our Services, you represent and warrant that you have notified, and obtained consent from, any such third party individuals with regards to:
You further agree to provide such notice and obtain such consent with regard to any third party personal data you supply to us in the future. We are not responsible or liable for any damages or other consequences resulting from either your failure to provide notice or receive consent from such individuals or from your provision of outdated, incomplete, or inaccurate information. Even if you license the use of our Services to a third party, you remain responsible for complying with all the terms and conditions of this Agreement, and you accept liability for any harm caused by such licensee’s wrongful use of our Services, unless you promptly disclose the identity of such licensee upon request by any person who provides reasonable evidence of actionable harm.
You acknowledge that the Internet, the domain name system and its policies, and the practice of registering, monitoring, and administering domain names are continually evolving and that, as such, Moniker may need to modify this Agreement or its Services, as well as any other of its rules, policies, or agreements to comply with any such changes and to adjust to new or different business circumstances. Any such modifications or changes to the Services will be binding and effective immediately upon posting of the modified Agreement or Services on Moniker’s website, or upon notification to you by e-mail or regular mail. You agree to periodically review our website, including the current version of this Agreement, to learn of any such modifications.
Your continued use of any Services, or of any domain name registered through our domain name registration services, will constitute your acceptance of this Agreement and of any rule or policy adopted by Moniker, as they may be modified from time to time as permitted by this Section 8. If you do not agree with any modification to the Agreement, you may terminate this Agreement at any time as provided in Section 20. You acknowledge and agree that such termination will be your exclusive remedy and our sole liability if you do not wish to abide by any modification or changes to this Agreement or with any additional rules or policies that may be adopted by Moniker.
We are not bound by nor should you rely on (a) any representation by any agent, representative or employee of any party, other than an agent, representative, or employee of Moniker, that you may use to apply for the Services; or (b) information posted on our website of a general informational nature. No employee, contractor, agent or representative of Moniker is authorized to alter or amend the terms and conditions of this Agreement.
Our Domain Name Renewal, Deletion, Recovery Information, and Fees Policy can be found at https://www.moniker.com/renew-delete-recovery-info. Please review the policy, as you will be bound by it. If you do not timely renew your domain name registration prior to its expiration, you expressly agree that we may take ownership of your expired domain names until such time as they are renewed, auctioned, sold, or deleted as provided in our Domain Name Renewal, Deletion, Recovery Information, and Fees Policy, and that we may modify the domain name registration accordingly.
You may transfer your domain name registration to a third party of your choice as provided herein. You may not, however, transfer your domain name to another registrar before the 61st day after the initial registration, renewal, or transfer of the domain name to Moniker, or change of ownership of the domain name within the Moniker system.
You may request to transfer your domain name to (or from) Moniker to (or from) another registrar by logging in to your account and following the instructions or procedures set forth therein. When transferring a domain name to Moniker, your registration will be extended for one year, provided that in no event shall the total unexpired term of the registration exceed ten (10) years.
You agree to maintain accurate records appropriate to document and prove the initial domain name registration date, regardless of the number of Registrars with which you entered into a contract for registration services.
Moniker’s highly recommended “Auto-Renew Services” allow us, subject to this Agreement, to attempt to automatically renew your domain name registration on your behalf approximately thirty (30) days prior to its expiration date. The exact timing of renewal will depend on the particular TLD at issue, as each provides for different time frames in which early renewal can occur. Specific TLD information pertaining to the different domain name renewal and term policies is available at https://www.moniker.com/help/delete-autorenew-details.jsp.
If you subscribe to our Auto-Renew Services, so long as sufficient funds are available in your account or your account contains a valid credit card on file, we will attempt to automatically renew the domain name registration on your behalf. We will not auto-renew a domain name if, at the time set for renewal, your account either lacks sufficient funds to pay for such renewal or does not have a valid credit card. It is your responsibility to monitor your domain names and ensure they are renewed in a timely manner. We shall not be liable to you for any failure to renew or auto-renew a domain name.
If you are registering a domain name through our affiliate SnapNames.com, Inc. and that domain name was a Post Term Renewal and Transfer as described in Section 9 above, you acknowledge and agree that the term of your registration will be for a period of one year from the domain name’s original expiration date, not one year from the date on which you took ownership of the domain name. If you are registering a domain name at Moniker through SnapNames.com, Inc. and the domain is not a Post Term Renewal and Transfer name, you acknowledge and agree that the term of your registration will be for a period of one year from the date of the domain name registration.
If you reserve or register a domain name through us, you agree to be bound by our current domain name dispute policy, which can be found at www.moniker.com/help/disputepolicies.jsp, and which is incorporated herein and made a part of this Agreement by this reference (our “Dispute Policy”). You also agree to submit to any proceedings commenced under ICANN’s Uniform Domain Name Dispute Resolution Policy (“UDRP”), which can be found at www.icann.org/en/help/dndr/udrp, or ICANN’s Uniform Rapid Suspension System (“URS”) applicable for generic top level domains introduced into the root after January 1, 2013 (“gTLDs”), which can be found at http://newgtlds.icann.org/en/applicants/urs, as these may be modified from time to time. Please familiarize yourself with these policies, as you will be bound by them.
You agree that we, in our sole discretion, may modify our Dispute Policy. Any such modification to the Dispute Policy will be binding and effective immediately upon posting the modified policy on our website. By maintaining the reservation or registration of your domain name with us after any such modification becomes effective, you are agreeing to the modifications. You acknowledge that if you do not agree to any such modification, you may terminate this Agreement, subject to your payment of any outstanding fees or expenses, if any, owed to us, in accordance with Section 20. We will not refund any fees paid by you if you terminate your Agreement with us.
If your use of the domain name registration services is challenged by a third party, you agree to be subject to the terms of our Dispute Policy in effect at the time of the dispute. If a third party brings a domain name dispute against your domain name, you agree to indemnify, defend and hold us harmless pursuant Section 18 of this Agreement. It is your responsibility to list accurate contact information in association with your account and to communicate with litigants, potential litigants, and governmental authorities. It is not our responsibility to forward court orders or other communications to you.
If we are notified that a complaint has been filed with another registrar or a judicial, governmental, or administrative body regarding your use of our domain name registration services, (i) we may, in our sole discretion, take whatever action we deem necessary regarding further modification, assignment of and/or control of the domain name to comply with the actions or requirements of such judicial, governmental or administrative body until such time as the dispute is settled; (ii) you shall hold us harmless for any such action taken in good faith; and (iii) you agree not to make any changes to your domain name record without our prior approval. You agree that we may disallow you to make changes to such domain name record until we receive formal notice from the relevant judicial, governmental or administrative body directing us to do otherwise, or if we receive notification from you and the other party contesting your use of our domain name registration services that the dispute has been settled.
Furthermore, you agree that if you are subject to litigation regarding your registration and use of our domain name registration services, we may, in our sole discretion, deposit control of your domain name with the court by supplying the court a registrar certificate. You agree that we may comply with all court orders, domestic or international, directed against you and/or the domain name registration and may move such domain names into our disputed domain account at Moniker. Furthermore, you agree that we may suspend, cancel or transfer your domain name registration services in order to (i) correct mistakes made by us or by the registry in registering your chosen domain name or (ii) resolve a dispute under our Dispute Policy. We will not refund any fees paid by you if we terminate your services.
For the adjudication of disputes concerning or arising from your use of any domain name you register with us, you submit, without prejudice to other potentially applicable jurisdictions and without objection on the basis of forum non-conveniens or any other basis, to the jurisdiction of the courts (1) of your domicile, and (2) where our principal executive office is located, currently Portland, Oregon.
As a condition of your use of the Services, you agree not to use them for any purpose that is unlawful or prohibited by this Agreement, any applicable local, state, federal, and international laws, government rules or other such requirements. Without limiting the generality of the foregoing, the following is a non-exhaustive list of actions that are not permitted when using the Services:
We reserve the right to cancel or terminate your use of the Services if you engage in any of the activities described in this Section 14 or if your use of the Services results in, or is the subject of, legal action or threatened legal action against Moniker or any of its affiliates or partners, regardless of whether such legal action or threatened legal action is determined to be with or without merit.
You agree that all of the following may be considered by us a material breach of your obligations under this Agreement:
You represent, warrant and agree that:
You agree that your use of the Services is solely at your own risk. You agree that all of the Services are provided on an “as is” and “as available” basis and that neither Moniker nor any of its representatives makes any representation or warranty of any kind in connection with this Agreement or the provision of any Services to you.
MONIKER EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVILABLE” BASIS. WE MAKE NO WARRANTY THAT OUR SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH OUR .COM MAIL SERVICE. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR .COM MAIL SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.
WE MAKE NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH ANY OF OUR SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH SUCH SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OUR .COM MAIL SERVICE, SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. TO THE EXTENT JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
You agree to release, indemnify, defend and hold harmless Moniker, its parent, subsidiaries and affiliates and each of our and their respective employees, officers, directors, shareholders, affiliates, contractors, agents, successors and assigns (collectively, the “Moniker Parties”) from any and all claims, actions, proceedings or demands and all liabilities, claims, damages, losses, costs and expenses, including reasonable attorneys’ fees and expenses, of third parties, relating to or arising under this Agreement, the Services provided hereunder, your domain name registration, or your use of the Services, including without limitation (i) infringement of or dilution by you, or someone else using our Services from your computer or on your behalf, of any intellectual property or other proprietary right of any person or entity; (ii) your failure to perform any of your obligations to us or others relating to the Services; or (iii) a violation of the terms of this Agreement or of policies and procedures incorporated herein or relating to the Services provided. If we are threatened with lawsuit or are sued by a third party, we may seek written assurances from you concerning your promise to indemnify us; your failure to provide such assurances may be considered by us to be a material breach of this Agreement providing us any and all remedies provided herein, including, without limitation, suspension or termination of your account with us and confiscation of your domain names.
You agree to notify Moniker of any such claim promptly in writing and to let Moniker, should it so desire, participate fully in the defense of any such claim, including through counsel of its own choosing or by taking control of the proceedings, and you agree to cooperate fully with Moniker during such proceedings. You further agree you will not be entitled to a refund of any fees paid to Moniker if, for any reason, Moniker takes corrective action with respect to your improper or illegal use of its Services.
You further agree to indemnify, defend and hold harmless the Moniker Parties, their business partners, and any applicable domain name registry, including without limitation VeriSign, Inc., Afilias Limited, NeuLevel, Inc., NeuStar, Inc., SITA and Public Interest Registry, and their respective subsidiaries and affiliates, and the directors, officers, employees and agents, subcontractors and shareholders of each of them, from and against any and all claims, actions, losses, damages, expenses and costs, including reasonable attorneys’ fees and expenses, arising out of or relating to (i) your domain name registration, (ii) any breach by you of this Agreement, including the Dispute Policy, or (iii) any third party claim, action, or demand related to your domain name or its use thereof. This indemnification obligation shall survive the termination or expiration of this Agreement.
The indemnification obligations set forth in this Section 18 are in addition to any other rights or remedies Moniker may have against you at law or in equity.
You agree that our entire liability, and your exclusive remedy in law, in equity, or otherwise with respect to any Services provided under this Agreement and/or for any breach by Moniker, or by its employees, of this Agreement is limited solely to the amount you paid for such Services. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ANY MONIKER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS OR THE COST OF PROCURMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE ANY OF THE SERVICES, EVEN IF MONIKER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Without limiting the generality of the foregoing, you agree that we are not responsible for, and we specifically disclaim, any:
Where expressly permitted by another Section of this Agreement, you may terminate this Agreement by contacting us as set forth on https://www.moniker.com/contact.jsp or sending us notice at the following address:
Registrar Business Affairs
1800 SW 1st Ave, Suite 440
Portland, Oregon 97201
Your termination will become effective once we receive your notice and process your request, provided that all outstanding fees and expenses owed by you are paid in full. Upon termination, any fees pre-paid by you are nonrefundable, but you will not incur additional fees, unless they reflect or result from any unpaid Services or a delinquent account.
We may terminate your contractual right to use the Services where expressly permitted by another Section of this Agreement or in the event of a breach set forth in Section 15. You agree that we also may terminate your contractual right to use our Services if the information that you are obligated to provide to register your domain name or register for other Moniker Services, or that you subsequently modify, contains false or misleading information, or conceals or omits any information we would likely consider material to our decision to register your domain name or to continue to provide you with domain name registration services.
Moniker expressly reserves the right to deny, cancel or transfer any registration that it deems necessary, in its discretion, to protect the integrity and stability of the registry, to comply with any applicable laws, government rules or requirements, requests of law enforcement, in compliance with any dispute resolution process, or to avoid any liability, civil or criminal, on the part of Moniker, as well as its affiliates, subsidiaries, officers, directors and employees. We also reserve the right to freeze a domain name during the resolution of a dispute, whether an “official” dispute, such as a lawsuit or the filing of a UDRP or URS proceeding, or an “unofficial” dispute as determined in our sole discretion.
We, in our sole discretion, reserve the right to refuse to register you for Services, to register a domain name, or to continue supporting an existing registration, for any reason, including your failure to comply with the terms of this Agreement. In the event we refuse to register your domain name or continue to support an existing registration, we will not issue a refund for any applicable fees you have paid. We will inform you that Moniker refuses to provide you the Service, and, in the case of an existing domain name registration, may allow you a period of time to transfer the domain name away from Moniker. If you are unwilling or unable to transfer a domain name that we have refused, you agree that we may delete the domain name in question or charge you additional fees, in our sole discretion, until such time as you transfer the domain name. You agree that we shall not be liable to you for loss or damages that may result from our refusal to register, or our deletion of, your domain name or from our refusal to register you for Services.
All domain names registered through Moniker that do not specify a DNS may be pointed to a “coming soon,” “for sale,” “parking,” or special “idle” webpage that informs visitors that the registrant has recently registered their domain name with Moniker. These web pages may be modified at any time by Moniker without prior notice to you and may include such things as, without limitation, (i) links to additional products and services offered by Moniker; (ii) advertisements for products and services offered by third parties; and (iii) an internet search engine interface. You agree that Moniker has the right to point names as set forth herein without compensation or remuneration to you. If for any reason you do not wish to have the domain name you have registered pointed to a “coming soon,” “for sale,” “parking,” or special “idle” webpage, please use Moniker Domain Manager utility to forward your domain name to another location.
The DNS for any expired domain name registrations also may point to a “coming soon,” “for sale,” “parking,” or special “idle” webpage in accordance with our Domain Name Renewal, Deletion, Recovery Information, and Fees Policy, which can be found at https://www.moniker.com/renew-delete-recovery-info.
By applying for Services, by applying for and registering a domain name through our online application process, or by using the Services provided by Moniker under this Agreement, you acknowledge that you have read and agree to be bound by all terms and conditions of this Agreement and any pertinent rules or policies that are or may be published by Moniker at any time. These terms will continue to apply to all past use of the Services by you, even if you are no longer using the Services. You acknowledge and agree that we may terminate or block your use of all or part of the Services without prior notice for any reason, including, without limitation, if we believe you have engaged in conduct prohibited by this Agreement. You agree that upon termination or discontinuance for any reason, Moniker may delete all information related to you on the Services and may bar your access to and use of the Services.
You agree that if your agent (e.g., an Internet Service Provider, employee, etc.) purchased our Services on your behalf, you are nonetheless bound as a principal by all terms and conditions herein, including the Dispute Policy. Your continued use of our Services shall ratify any unauthorized actions of your agent. By acting on your behalf, your agent certifies that he, she, or it is authorized to purchase our Services on your behalf, that he, she, or it is authorized to bind you to the terms and conditions of this Agreement, and that he, she, or it has apprised you of the terms and conditions of this Agreement. In addition, you are responsible for any errors made by your agent. We will not refund fees paid by you or your agent on your behalf for any reason, including, but not limited to, your agent’s failure to comply with the terms and conditions of this Agreement, or your agent’s provision of incorrect information during the application process or in making changes to or otherwise modifying your domain name record incorrectly.
You authorize us to notify you of information that we deem is of potential interest to you. Notices and announcements may include commercial e-mails and other notices describing changes, upgrades, new products and services or other information pertaining to Internet security or to enhance your identity on the Internet, and/or other relevant matters. If you do not wish to receive bulk e-mail solicitation notices or announcements please contact Moniker Support in any manner provided at https://www.moniker.com/support.jsp.
Notices concerning breach will be sent either to the e-mail or postal address you have on file with us. In both cases, delivery shall be deemed to have been received five (5) business days after the date sent. Notices from you to Moniker (which shall be deemed to have been received five (5) business days after the date sent) shall be made either by (i) contacting Moniker Support as provided at https://www.moniker.com/support.jsp, (ii) contacting us as provided at https://www.moniker.com/contact.jsp, or (iii) first class mail to our address at:
Moniker Online Services, LLC
1800 SW 1st Ave, Suite 440
Portland, Oregon 97201
General. Moniker’s WHOIS Privacy Service (the “Privacy Service”) consists of the display of alternate contact information in the public WHOIS database for the applicable domain name registration and provides for certain types of communication to be forwarded by us to you. When you subscribe to the Privacy Service, you authorize and direct our affiliate, Moniker Privacy Services, LLC, to display alternate contact information in the public WHOIS database for the applicable domain name registration.
You remain in full and complete control of your domain name and retain the right to sell, transfer, convey, or assign your domain name registration, control the use of your domain name registration, and renew, cancel, or terminate your domain name registration. You also remain fully responsible for your domain name and remain liable under any disputes arising from your use of your domain name or your domain name registration. The purpose of the Privacy Service is to shield your personal information from the general public to prevent unwanted or unsolicited communications and other inquiries. The purpose of the Privacy Service is NOT to assist you in avoiding responsibility should your domain name registration infringe any third party’s legal rights or in engaging or seeking to engage in any act or activities that are prohibited by law or this Agreement.
WHOIS Record Information. The following information will be provided in the WHOIS database for each domain name registration subject to the Privacy Service, and you hereby agree that such information be provided:
You hereby acknowledge that your use of the Privacy Service may prevent Moniker from archiving or escrowing your WHOIS data with third parties.
Communications Forwarding. By subscribing to the Privacy Service, you authorize and direct Moniker Privacy Services, LLC to process communications directed to you at the contact information displayed in the public WHOIS database as follows:
You acknowledge and agree that in responding to communications received by Moniker Privacy Services, LLC that constitute complaints with respect to any domain name registration which utilizes the Privacy Services, Moniker may communicate with the complainant and inform them that Moniker is not the true registrant of the domain name in question, that Moniker will forward a copy of the complaint or other communication to you and that if you do not respond within a certain period of time, your lack of response may constitute grounds for cancellation of the Privacy Service with respect to such domain name registration. Moniker may then, in its sole discretion, attach your default WHOIS information to the applicable domain name and display it on the public WHOIS database.
You acknowledge and agree that Moniker may decline to offer the Privacy Service on certain TLDs in order to comply with regulations specific to that TLD. You further agree that Moniker may terminate an existing Privacy Service subscription if it, in its sole discretion, determines that termination is necessary in order to comply with regulations specific to a TLD. In the event that Moniker does terminate an existing Privacy Service subscription for the foregoing reason, you will be eligible for a refund on that subscription.
You hereby waive any and all claims arising from your failure to receive any type of communications — whether by e-mail or postal mail — directed to the domain name contact information posted in the public WHOIS database, but not forwarded to you by Moniker Privacy Services, LLC. You hereby acknowledge that it is your sole obligation to respond to any and all legal inquiries or challenges made with respect to any of your domain names that utilize the Privacy Services. You hereby agree that neither Moniker nor Moniker Privacy Services, LLC is responsible for, and that we and it specifically disclaim any loss or liability resulting from, any claim arising out of, or related to, a domain name that utilizes the Privacy Service by or before any judicial, administrative, or governmental body.
Disclosure of Contact Data; Right to Terminate the Privacy Service. You acknowledge and agree that Moniker Privacy Services, LLC has the absolute right, as it deems necessary in its sole discretion, to reveal to third parties, including to any UDRP or URS provider, the Contact Data provided by you to Moniker Privacy Services, LLC in connection with the applicable domain name and to suspend, cancel or terminate the Privacy Service if we reasonably perceive that:
You acknowledge and agree that Moniker Privacy Services, LLC may reveal the Contact Data as provided above without prior notice to you or to Moniker, and that it will not be liable for any damages or loss that may result from such disclosure.
Indemnification. In accordance with your obligations to indemnify the Moniker Parties pursuant to Section 18, you hereby agree to release, indemnify, defend, and hold harmless the Moniker Parties, including Moniker Privacy Services, LLC, from any and all claims, actions, proceedings or demands and all liabilities, claims, damages, losses, costs and expenses, including reasonable attorneys’ fees and expenses, of third parties, relating to or arising out of your domain name registration or your use of the Privacy Services, including without limitation (i) infringement of or dilution by you, or someone else using our Privacy Services from your computer or on your behalf, of any intellectual property or other proprietary right of any person or entity; (ii) your failure to perform any of your obligations to us or others relating to the Privacy Services; or (iii) a violation of the terms of this Agreement or of policies and procedures incorporated herein. If we are threatened with lawsuit or are sued by a third party, we may seek written assurances from you concerning your promise to indemnify us; your failure to provide such assurances may be considered by us to be a material breach of this Agreement providing us any and all remedies provided herein, including without limitation suspension or termination of your account with us and confiscation of your domain names
Except as otherwise required by the UDRP or any similar ccTLD policy, or by the URS or any similar gTLD policy, regarding a dispute over a domain name registration, and unless otherwise expressly provide in this Agreement, this Agreement and the Services hereunder shall be governed by the laws of the United States and the State of Oregon, without reference to rules governing choice and conflicts of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Portland/Multnomah County, Oregon and you expressly and irrevocably consent to the exclusive jurisdiction and venue of such courts. You hereby waive to any objections that you may have as to venue, including forum non-conveniens. You further irrevocably consent to service of process by personal service within or without the State of Oregon. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms of Service.
Notwithstanding the foregoing, for disputes or litigation between you and another party that is not Moniker or the Moniker Parties concerning or arising from your use of domain names registered hereunder, you acknowledge and agree that you shall submit, without prejudice to other potentially applicable jurisdictions, to the jurisdiction of the courts (a) of the domain name holder’s domicile, and (b) where our principal executive office is located, currently Portland, Oregon.
You agree that any cause of action arising out of or related to the Services must commence within one (1) year after the cause of action arose; otherwise, such cause of action will be permanently barred.
With respect to any registration of a .INFO second level domain name, you agree to the following terms:
Moniker and Afilias expressly reserve the right to deny, cancel, or transfer any registration that either shall deem necessary, in its discretion, to protect the integrity and stability of the .INFO registry, to comply with any applicable laws, government rules or requirements, requests of law enforcement, any dispute resolution process, or to avoid any liability, civil or criminal, on the part of Moniker and/or Afilias as well as their affiliates, subsidiaries, officers, directors and employees. Moniker and Afilias also reserve the right to lock a domain name during resolution of a dispute.
For purposes of this Section 29, “Sunrise Period” shall mean the exclusive period of time, prior to the opening of public registration, where trademark and service mark holders are able to reserve their exact marks in the .INFO domain and preserve their brands in the new .INFO Internet real estate; “Sunrise Registration” shall mean a domain name registered as part of the Sunrise Period; and “Land Rush Period” shall mean the time during which domain names are available for registration to entities that do not own a trademark in the name they wish to register and thus would not qualify for registration during the Sunrise Period.
With respect to any registration of a .Mobi registration, you:
With respect to any .CN registration, you acknowledge and agree as follows:
Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
No Guarantee. You agree that the registration of your chosen domain name does not confer immunity from objection to either the registration or your use of your domain name.
No Third Party Beneficiaries. Except as expressly provided herein, nothing in this Agreement, express or implied, is intended to confer upon any third party any rights, remedies, obligations, or liabilities under or by reason of this Agreement.
U.S. Export Controls. Services offered by Moniker are further subject to United States export controls. No software or other Service may be downloaded from our website or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the Services, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
Prohibition of Assignment. You may not assign any of your rights or delegate any of your duties under this Agreement without the prior written consent of Moniker. Any attempt by your creditors to obtain an interest in your rights under this Agreement, whether by attachment, levy, garnishment or otherwise, renders this Agreement voidable at our option.
Successors and Assigns. Except as otherwise expressly provided herein, this Agreement shall bind and inure to the benefit of the successors, assigns, heirs, executors and administrators of the parties hereto.
Intellectual Property. You agree that Moniker holds all right, title and interest in and to all Services, its websites, any information and technology used to provide the Services, including any application programming interfaces, and all intellectual property rights of Moniker, including other rights related to intangible property. You acknowledge that no title or interest in such intellectual property rights is being transferred to you and you agree to make no claim of interest in any such Services.
Force Majeure. If any party fails to perform its obligations because of strikes, lockouts, labor disputes, embargoes, acts of God, inability to obtain labor or materials or reasonable substitutes for labor or materials, governmental restrictions, government regulations, governmental controls, judicial orders, enemy or hostile governmental action, civil commotion, fire or other casualty, or other causes beyond the reasonable control of the party obligated to perform, then that party’s performance shall be excused.
Waiver. No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No failure or delay by Moniker in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.
Severability. The provisions of this Agreement are severable. If a court or an arbitrator of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable, or invalid in whole or in part for any reason, the validity and enforceability of the remaining provisions, or portions of them, will not be affected. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited, or unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
Attorneys Fees and Costs. If Moniker prevails in any action, suit, or proceeding arising from or based upon this Agreement, Moniker shall be entitled to recover from you its reasonable attorneys’ fees in connection therewith in addition to the costs of such action, suit, or proceeding.
Headings. The headings in this Agreement are descriptive and are included for convenience only and shall neither affect the construction or interpretation of any provision in this Agreement nor affect any of the rights or obligations of the parties this Agreement.