DOMAIN NAME REGISTRATION AGREEMENT
UPDATED March 24, 2019
Evolving Media & Design, Inc®. Registration Agreement
This Registration Agreement (“Agreement”) sets forth the terms and conditions of your use of domain name registration and related services (“Services”). In this Agreement “you” and “your” refer to you or any agent, employee, servant or person authorized to act on your behalf, and the registrant listed in the WHOIS contact information for the domain name. “We,” “us” and “our” refer to Evolving Media & Design, Inc.®, operating under the brand name Evolving Media and Evolvingmedia.com. This Agreement explains our obligations to you and explains your obligations to us for various services offered by Evolving Media. When you use your account or permit someone else to use it to purchase or otherwise acquire access to additional Evolving Media service(s) or products or to cancel your Evolving Media service(s) (even if we were not notified of such authorization), this Agreement covers such service or actions.
You agree to this agreement and the referenced agreements.
By using the service(s) provided by Evolving Media under this Agreement, you acknowledge that you have read and agree to be bound by all terms and conditions of this Agreement, the accompanying dispute policy and any pertinent rules or policies that are or may be published by Evolving Media, the Uniform Dispute Resolution Policy (“UDRP”) described below, and the rules, policies, or agreements published in association with specific of the Service(s) and/or which may be enforced by Internet Corporation of Assigned Names and Numbers (“ICANN”), the registries, and governments.
If you are registering a domain name in the following registries: .AC, .AI, .AU, .BZ, .CA, .CC, .CH, .CM, .CN, .CO, .CX, .DE, .ES, .EU, .FM, .FR, .GG, .ID, .IN, .IO, .LA, .LI, .ME, .MX, .NU, .PE, .PW, .SE, .SG, .SH, .TV, .UK, .US, .VC. .WS, you are also agreeing to the additional terms and requirements promulgated by and pertaining to each such registry, as set out in the Supplemental Agreement and the specific agreements and/or covenants referenced therein and incorporated into this Agreement.
If you are enrolling in the WhoisGuard™ privacy protection services, you also agree to the WhoisGuard™ Service Agreement.
If you are ordering an SSL certificate, you also agree to the SSL Service Agreement.
If you are enrolling in the Evolving Media Affiliate Program, you also agree to the Affiliate Program Service Agreement.
Changes to agreement
This Agreement will change over time in response to changes in the requirements of governments and administrative bodies, legislation and changes in the nature of the industry. If, as a result of such an amendment to this Agreement, you no longer agree with its term, you agree that your exclusive remedy is to transfer your domain name registration services to another registrar or request Evolving Media to cancel your domain name registration and/or related Services. Should you elect to cancel the Agreement with Evolving Media, you will not receive a refund for any fees you may have paid to Evolving Media. If you continue to use the Services following a change in this Agreement and/or the Services, your continued use of the Services indicates your consent to the changes. You agree to review this Agreement periodically to make yourself aware of any such revisions.
The term of this Agreement shall continue in full force and effect as long as you have any domain name registered through Evolving Media, as a reseller, or as long as you are employing any Service(s). You agree that you will not transfer any domain name registered through Evolving Media to another domain name registrar during the first sixty (60) calendar days from its initial registration date.
Service(s) provided at will and termination of service(s)
We may reject your domain name registration application or elect to discontinue providing Service(s) to you for any reason within 30 days of a Service initiation or a Service renewal. Outside of this period, we may terminate or suspend the Service(s) at any time for cause, which, without limitation, includes registration of prohibited domain name(s), abuse of the Services, payment irregularities, material allegations of illegal conduct, or if your use of the Services involves us in a violation of any Internet Service Provider’s (“ISP’s”) acceptable use policies, including the transmission of unsolicited bulk email in violation of the law. You agree that if we terminate or suspend the Services provided to you under this Agreement, that we may then, at our option, make either ourselves or a third party the beneficiary of Services which are substantially similar to those which were previously provided to you and that any reference in this Agreement to termination or suspension of the Services to you includes this option. If we have grounds to terminate or suspend Service(s) with respect to one domain name or in relation to other Service(s) provided through your account, we may terminate or suspend all Service(s) provided through your account, including Service(s) to other domain names maintained by you with us. No fee refund will be made when there is a suspension or termination of Service(s) for the cause. At any time and for any reason, we may terminate the Services thirty (30) days after we send notice of termination via mail or email, at our option, to the WHOIS contact information provided in association with your domain name registration. Following notice of termination other than for cause, you must transfer your domain name or risk that we may delete your domain name or suspend or modify services to it. If we terminate services for a reason other than cause, we will attempt to refund your fees. You further acknowledge and agree that your registration of a domain name is subject to suspension, cancellation or transfer by any ICANN procedure, by any registrar or registry administrator procedures approved by an ICANN-adopted policy, to correct mistakes by us, another registrar or the registry administrator in administering the domain name or for the resolution of disputes concerning the domain name. You agree that your failure to comply completely with the terms and conditions of this agreement and any Evolving Media rule or policy may be considered by Evolving Media to be a material breach of this agreement and that Evolving Media may provide you with notice of such breach either in writing or electronically (i.e. email). In the event you do not provide Evolving Media with material evidence that you have not breached your obligations to Evolving Media within ten (10) business days, Evolving Media may terminate its relationship with you and take any remedial action available to Evolving Media under the applicable laws. Such remedial action may be implemented without notice to you and may include, but is not limited to, cancelling the registration of any of your domain names and discontinuing any services provided by Evolving Media to you.
Domain name registration. We are a reseller of domain name registration services, either through ENOM or NameCheap, who are a recognized registrar with the Internet Corporation for Assigned Names and Numbers (“ICANN”) for Top Level Domain Names (“TLDs”) (such as .com, .net, .org, etc.). ICANN oversees registrations and other aspects of the TLDs. Domain name registrations are not effective until the registry administrator puts them into effect. Domain name registrations are only for limited terms, terms which end on the expiration date. For domain names which are created as a new registration out of the available namespace, the term begins on the date the domain name registration is acknowledged by the applicable registry; for domain names registrations which were not returned to the available namespace, the term begins on the date the previous registrant’s domain name registration was acknowledged by the applicable registry. You agree that we are not liable or responsible in any way for any errors, omissions or any other actions by the registry administrator arising out of or related to a request to register, renew, modify the settings for, or transfer of a domain name registration (or limitation of liability is explained further, below). You further agree that domain name registration is a service, that domain name registrations do not exist independently from services provided pursuant to this or a similar registration agreement with a registrar, and that domain name registration services do not create a property interest.
Aftermarket domain names. We offer for sale domain names that are registered to third parties (also known as aftermarket domain names) in a variety of top-level domain names (“TLDs”) (“After Market Domain Name(s)”). All After Market Domain Name registrations are offered on a first come, first served basis. If you are the first to complete an After Market Domain Name registration application for a particular domain name, including payment of the purchase price we designate, we will initiate a transfer of the relevant After Market Domain Name to your Account. If the After Market Domain Name is at another domain registrar at the time of your purchase, we will transfer your purchased After Market Domain Name to us at no cost to you and will add one year to the existing registration period. Any subsequent renewals of the After Market Domain Name will be charged at the then-current renewal fee. Once you submit your order for an After Market Domain Name, you have entered into a valid, binding and enforceable contract to pay the designated purchase price for the After Market Domain Name. Because we are selling After Market Domain Names initially registered to third parties, we have no control and make no representations regarding the accuracy or legality of domain names advertised, the accuracy or legality of any domain name listing, or the right and the ability of the third party seller to transfer the After Market Domain Name or complete the transaction. We do not control whether or not third-party sellers will complete a transaction. We reserve the right to reject or cancel your After Market Domain Name registration for any reason including, but not limited to, any pricing errors. In the event your After Market Domain Name registration is rejected or cancelled by us, for any reason, we will refund in full the amount of the purchase price for the After Market Domain Name as your sole remedy.
Once the After Market Domain Name is transferred into your Account, such After Market Domain Name may not be transferred away from us to another registrar during the first 60 days following the transfer, during which time the After Market Domain Name may be placed on transfer lock. All of your obligations under this Agreement which applies to the registration or renewal of domain name(s) created by you apply to any After Market Domain Name(s) acquired by you, including but not limited to a prohibition against any Illegal Uses.
Agreement not to use “services” for an improper purpose
You agree not to use the Services provided by Evolving Media, or to allow or enable others, to use the services provided by Evolving Media for the purposes of:
1) the transmission of unsolicited email in violation of the law; or
2) repetitive, high volume inquires into any of the services provided by Namecheap (i.e. domain name availability, etc.). Further, if you are hosting your domain’s domain name servers (“DNS”) on Evolving Media’s servers, or are using our systems to forward a domain, URL, or otherwise to a system or site hosted elsewhere, or if you have your domain name registered with Evolving Media, you are responsible for ensuring that there is no excessive overloading of Evolving Media’s DNS systems. You may not use Evolving Media’s servers and your domain as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, or abusive attacks. Server hacking or other perpetration of security breaches is prohibited. You agree that Evolving Media reserves the right to deactivate your domain name from its DNS system if Evolving Media deems it is the recipient of activities caused by your site that threaten the stability of its network.
You agree that Evolving Media, in its sole discretion and without liability to you, may refuse to accept the registration of any domain name. Evolving Media also may in its sole discretion and without liability to you delete the registration of any domain name during the first five (5) days after registration has taken place.
Your obligations to ensure entitlement to use the domain name
Without limitation, the following are not included in the Services: We cannot and do not check to see whether the domain name(s) you select, or the use you make of the domain name(s), or other of the Service(s), infringes legal rights of others. It is your responsibility to know whether or not the domain name(s) you select or use infringes legal rights of others. We might be ordered by a court to cancel, modify, or transfer your domain name; 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. We will comply with court orders unless you contact us to contest the order.
Threatened legal action(s)
If we are sued or threatened with a lawsuit, an administrative proceeding or any other legal or administrative proceeding in connection with Service(s) provided to you, we may turn to you to indemnify us and to hold us harmless from the claims and expenses (including attorney’s fees and court costs). Under such circumstances, you agree that you will, upon demand, obtain a performance bond with a reputable bonding company or, if you are unable to obtain a performance bond, that you will deposit money with us to pay for our reasonably anticipated expenses in relation to the matter for the coming year. Such deposit will be drawn down as expenses are incurred, with all account notices sent to the WHOIS contact information provided in association with your domain names and/or account. We shall not be obliged to extend you any credit in relation to such expenses and we may terminate the Services for a failure to make or renew such a deposit. We will return any unused deposit upon the later of three (3) months from deposit or the conclusion of the matter.
Dispute resolution policy
You agree to the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the Rules for Uniform Domain Name Dispute Resolution Policy (“UDRP Rules”), copies of which are available at http://www.icann.org/dndr/udrp/policy.htm and https://www.icann.org/resources/pages/udrp-rules-2015-03-11-en You agree that the UDRP may be changed by ICANN (or ICANN’s successor) at any time and that such a change will be binding upon you. You agree that, if the registration or reservation of your domain name is challenged by a third party, you will be subject to the provisions specified in the UDRP in effect at the time your domain name registration is disputed by the third party. You also agree that in the event a domain name dispute arises with any third party, you will indemnify and hold us harmless pursuant to the terms and conditions of the UDRP. You also understand that it is important for you to regularly monitor email sent to the email address associated with your account and domain names because, among other reasons, if a dispute arises regarding Services provided to you, you may lose your rights to receive the Services if you do not respond expeditiously to an email sent in conjunction therewith.
Fees and payments
As consideration for the Service(s), renewal of the Service(s), and, if you select it, automatic renewal of the Service(s), you agree to pay, prior to the effectiveness of the desired Service(s), the applicable Service(s) fees. All fees are non-refundable, in whole or in part, even if your domain name registration is suspended, cancelled or transferred prior to the end of your then current registration term unless this Agreement or the Evolving Media Refund Policy specifically provides for a refund. You may pay for Services by providing a valid credit or debit card, an electronic e-transfer (from your personal or business checking account, as appropriate), PayPal or any other payment method then accepted by Evolving Media (each, a “Payment Method”); provided, however, that we may at our option require that you pay fees through a particular payment means (such as by credit card or by wire transfer) or that you change from one payment provider to another. Evolving Media expressly reserves the right to change or modify its prices and fees at any time, and such changes or modifications shall be posted online on the Evolving Media website and effective immediately without the need for further notice to you. If you have purchased the Service(s) for a period of months or years, changes or modifications in prices and fees shall be effective when the Service(s) in question come up for renewal as further described below. For our current fee structure, you may access the schedule of fees available on the Evolving Media website: New Registration Fees Renewal Fees Post-Expiration Renewal Fees Redemption. If Evolving Media is for any reason unable to charge your chosen Payment Method for the full amount owed for the Services provided, or if Evolving Media is charged a penalty for any fee previously charged to your Payment Method, you agree that Evolving Media may pursue all available lawful remedies in order to obtain payment. You agree that the remedies Evolving Media may pursue in order to effect payment shall include, but not be limited to, suspension of Services, cancellation of domain names registered through our Services, and/or suspension of access to any and all accounts you have with us and/or your Primary Service Provider; and that all rights to and interest in and use of any domain name registration(s) services, website hosting, and/or email services, including all data hosted on our systems, shall be assumed by us in satisfaction of any indebtedness by you to us. We will reinstate your rights to and control over these Services solely at our discretion, and subject to our receipt of the unpaid fee(s) and our reinstatement fee, currently set at $200 (US Dollars). Charges for the Service(s) will be billed to your chosen Payment Method as charges for “EVOLVINGMEDIA.COM.” Evolving Media also reserves the right to charge you reasonably “administrative fees” or “processing fees” for (i) tasks Evolving Media may perform outside the normal scope of its Services, (ii) additional time and/or costs Evolving Media may incur in providing its Services, and/or (iii) your noncompliance with this Agreement (as determined by Evolving Media in its sole and absolute discretion). Typical scenarios include, but are not limited to, customer service issues that require additional personal time or attention, fees incurred by third-party payment providers such as PayPal or Square, fees incurred as the result of chargebacks or other payment disputes brought by you, your bank, or a Payment Method processor, and disputes that require accounting or legal services. These administrative fees or processing fees will be billed to the Payment Method you have on file with Evolving Media.
In the event of a charge back by a credit card company (or similar action by another payment provider allowed by us) in connection with your payment of fees for any Service(s), you agree that we may suspend access to any and all accounts you have with us and/or your Primary Service Provider and that all rights to and interest in and use of any domain name registration(s) services, website hosting, and/or email services, including all data hosted on our systems, shall be assumed by us in satisfaction of any indebtedness by you to us. We will reinstate your rights to and control over these Services solely at our discretion, and subject to our receipt of the unpaid fee(s) and our reinstatement fee, currently set at $200 (US Dollars). Charges for the Service(s) which use our credit card payment processor will be identified on your credit card statement as “EVOLVINGMEDIA.COM”.
Expiration and renewal of service(s) and notifications of expiration
You acknowledge that it is your responsibility to keep your own records and to maintain your own reminders regarding when your domain name registration or other Services are set to expire. However, ICANN requires, pursuant to its Expired Registration Recovery Policy (“ERRP”) that Evolving Media follow certain procedures to notify you in advance that renewal fees are due. Pursuant to the ERRP, Evolving Media will notify the registered name holder of the expiring domain name twice before the expiration date, once approximately one month before the subject domain’s expiration date and again approximately one week before the subject domain’s expiration date. Evolving Media’s renewal reminder will consist of an email message sent to the registered domain holder’s email address as it is listed in the expiring domain’s whois record. Further, Evolving Media reserves the option, but not the obligation, to send additional renewal reminder notices to any other email addresses associated with the expiring domain, including, but not limited to, the email address of the expiring domain’s account holder or the billing contact of the expiring domain’s whois record. Evolving Media also reserves the option, but not the obligation, to send additional renewal reminders at times other than the times required by the ERRP.
Should these fees go unpaid, your Services will expire or be cancelled. Payment must be made by credit card or such other method as we may allow or require from time to time. If you select automatic renewal of the Service(s), we may attempt to renew the Service(s) a reasonable time before expiration, provided you have sufficient balance in your Evolving Media account and up to date. You acknowledge and agree that, while we are not required to, we may contact you with a request to update your account information in the event that an attempted transaction is not processed successfully.
You acknowledge that it is your responsibility to keep your billing information up to date. You acknowledge and understand that, as part of its management of user registrations, Evolving Media sends out periodic notices to registrants apprising them of payment deadlines, pending expiration deadlines and other important information affecting your account and, specifically, registration of domain names.
Specifically, any notifications regarding domain registrations, including but not limited to notifications consisting of pre-expiration and post-expiration notifications concerning your registered domains will be sent to you pursuant to ICANN’s policies, including, but not limited to, the ERRP. Where appropriate, Evolving Media will send such notices to the e-mail address of the subject domain’s registered domain holder, the e-mail address you provided as your contact information in connection with your account associated with the subject domain, and/or any other email address that Evolving Media determines, in its sole discretion, to be sufficiently related to the subject domain to warrant notice.
You therefore acknowledge and agree that it is your responsibility to provide and maintain accurate account information and domain name whois information, as more fully addressed in Paragraph 13 below, so that Evolving Media may provide you with important notices regarding your account.
Accurate account contact information and domain name whois information
As further consideration for the Service(s), you agree to provide certain current, complete and accurate information about you, both with respect to your account information and with respect to the WHOIS information for your domain name(s) for all domains purchased through Evolving Media. You agree to maintain and update this information as needed to keep it current, complete and accurate. With respect to you, the administrative, technical, and billing contacts for your domain name registration(s) and other Service(s), Evolving Media requires that you must submit the following for both gTLDs and ccTLDs: name, postal address, e-mail address, voice telephone number, and, if available, fax number. For residents in countries subject to GDPR, this means that by registering domains with Evolving Media, you have provided contractual consent to collect and process this information. You agree that the type of information you are required to provide may change and you understand that, if you do not provide the newly required information, your registration or and/or other Service(s) may be suspended or terminated or may not be renewed. In the event the lack of accurate/current contact information results in the loss, cancellation or transfer of the domain name(s) associated with your account, you agree that you shall not hold Evolving Media liable for any such loss or any damages associated with the loss. Not providing requested information may prevent you from obtaining all Service(s). You may provide information regarding the name-servers assigned to your domain name(s) and, if we are providing name-server services to you, the DNS settings for the domain name.
You agree to notify Evolving Media within five (5) business days when any of the information you provided as part of the application and/or registration process changes. It is your responsibility to keep this information in a current and accurate status. Failure by you, for whatever reason, to provide Evolving Media with accurate and reliable information on an initial and continual basis, shall be considered to be a material breach of this Agreement. Failure by you, for whatever reason, to respond within five (5) business days to any inquiries made by Evolving Media to determine the validity of information provided by you, shall also be considered to be a material breach of this agreement. You agree to retain a copy for your record of the receipt for the purchase of your domain name or Services.
You acknowledge and agree that domain name registration requires that this contact information, in whole or in part, be shared with the registry operator. As required by ICANN, this information may also be required to be made publicly available by means of Whois and/or the registry operator may also be required to make this information publicly available by Whois. In addition, you acknowledge and agree that certain registries require this information be made publicly available even to those residents in the EEA who are subject to GDPR. This includes but is not limited to the following ccTLDs: .asia, .ca, .cn, .uk, .co.uk, .de, .eu, .in, .id, .me.uk, .nu, .li, .ch, .fr, .sg, .com.sg, .org.uk, .us, .es, .com.es, .nom.es, .org.es, .com.au, .net.au, .paris, .vote, .voto, .xn--3ds443g, .nyc, .org.au. EEA residents who are eligible for and register domains that do not allow for privacy services explicitly agree to the publication of their personal information.
Both Evolving Media and the registry operator may be required to archive this information with a third party escrow service. You hereby consent and give permission for all such requirements and disclosures. Further, you represent and warrant that, if you are providing information about a third party, you have notified the third party of the disclosure and the purpose for the disclosure and you have obtained the third party’s consent to such disclosure.
Account Review, Data Modification or Deletion
To access, view, update, delete or download data associated with your domain name registration, you must be signed into your account. If you make a request to delete your personal data and that data is necessary for the products or services you have purchased, the request will be honoured only to the extent it is no longer necessary for any services purchased or required for our legitimate business purposes or legal or contractual recordkeeping requirements. In some cases, when data is necessary for the provisioning of service, deletion of data may cancel or suspend the services you have purchased. If you have difficulty accessing your data, modifying it, or deleting it, you may request assistance by contacting our support team.
Obligations and representations relating to the account and whois contact information
In the event that, in registering a domain name or obtaining other Service(s), you provide information about or on behalf of a third party, you represent that you have (a) provided notice to that third party of the disclosure and use of that party’s information as set forth in this Agreement, and (b) that you have obtained the third party’s express consent to the disclosure and use of that party’s information as set forth in this Agreement. Further, when registering a domain name on behalf of a third party, you agree to inform any customer of yours, who may be acquiring a domain name through you using Evolving Media’s registration services, that they are in fact registering their domain name through Evolving Media and that Evolving Media or its provider is an accredited registrar with ICANN. You agree not to represent that you are an ICANN accredited registrar or that you are in any way providing superior access to the ICANN Domain Name Registry. You also agree not to use the ICANN trademark logo in any of your promotional materials including your web site. By registering a domain name or applying for other Service(s) you also represent that the statements in your application are true and you also represent that the domain name is not being registered or the Services being procured for any unlawful purpose. You acknowledge that providing inaccurate information or failing to update information promptly will constitute a material breach of this Agreement and will be sufficient basis for suspension or termination of Services to you. As indicated elsewhere in this Agreement, you understand that it is important for you to regularly monitor email sent to the email address associated with your account and WHOIS contact information because, among other reasons, if a dispute arises regarding a domain name(s) or other Service(s), you may lose your rights to the domain name(s) or your right to receive the Service(s) if you do not respond appropriately to an email sent in conjunction therewith.
Please safeguard your account access credentials (including but not limited to your customer username/login, support pin code, password) from any unauthorized use. You agree that any person in possession of your account login identifier and password will have the ability and your authorization to modify your account and domain name information. We will take reasonable precautions to protect the information we obtain from you from loss, misuse, unauthorized access or disclosure, alteration or destruction of that information and that such reasonable precautions include procedures for releasing account access information to parties who claim to have lost account access information. You agree that, if we take reasonable precautions in relation thereto, that IN NO EVENT SHALL WE BE LIABLE IF SUCH REASONABLE PRECAUTIONS DO NOT PREVENT THE UNAUTHORIZED USE OR MISUSE OF YOUR ACCOUNT IDENTIFIER OR PASSWORD AND THAT, EVEN IF WE FAIL TO TAKE REASONABLE PRECAUTIONS, THAT OUR LIABILITY UNDER ANY CIRCUMSTANCES SHALL BE LIMITED BY THE LIMITATION OF LIABILITY PROVISION FOUND BELOW IN THIS AGREEMENT. If you contact us alleging that a third party has unauthorized access to your account or domain names, you agree that we may charge you administrative fees of $50 (US dollars) per hour for our time spent in relation to the matter, regardless of whether or not we return control over the account and/or domain names to you.
Transfers of domain names
You agree that transfer of your domain name(s) services shall be governed by ICANN’s transfer policy, available at http://www.icann.org/transfers/, as this policy may be modified from time to time. You agree that we may place a “Registrar Lock” on your domain name services and that this will prevent your domain name services from being transferred without your authorization, though we are not required to do so. By allowing your domain name services to remain locked, you provide an express objection to any and all transfer requests until the lock is removed. To transfer your domain name(s) you should first login to your account to lock or unlock your domain name(s) and/or to obtain the EPP “AuthCode” which is required to transfer domain services in an EPP registry (such as .org). Only the registrant and the administrative contacts listed in the WHOIS information may approve or deny a transfer request. Without limitation, domain name services may not be transferred within 60 calendar days of initial registration, within 60 calendar days of a transfer, if there is a dispute regarding the identity of the domain name registrant, if you are bankrupt, or if you fail to pay fees when due. Transfer requests typically take five business days to be processed. A transfer will not be processed if, during this time, the domain name registration services expire in which event you may need to reinstate the transfer request. You may be required to resubmit a transfer request if there is a communication failure. AS A CONSEQUENCE, YOU ACKNOWLEDGE THAT YOU ASSUME ALL RISK FOR FAILURE OF A TRANSFER IF THE TRANSFER PROCESS IS INITIATED CLOSE TO THE END OF A REGISTRATION TERM.
You agree and consent that we will make available the domain name registration information you provide or that we otherwise maintain to the following parties: ICANN, the registry administrator(s), and to other third parties as ICANN and applicable laws may require or permit (including through web-based and other on-line WHOIS lookup systems), whether during or after the term of your domain name registration services of the domain name. You hereby irrevocably waive any and all claims and causes of action you may have arising from such disclosure or use of such information. Additionally, you acknowledge that ICANN may establish or modify the guidelines, limits and/or requirements that relate to the amount and type of information that we may or must make available to the public or to private entities, and the manner in which such information is made available. Information regarding ICANN’s guidelines and requirements regarding WHOIS can be found at http://www.icann.org/registrars/wmrp.htm http://www.icann.org/registrars/wdrp.htm and elsewhere on the ICANN website at http://www.icann.org/index.html You agree that we may make publicly available, or directly available to third parties, some, or all, of the information you provide, for purposes of inspection (such as through our WHOIS service) or for targeted marketing and other purposes as required or permitted by applicable laws. One of the ways that we may make some or all of the information you provide available to the public or third parties is by way of bulk WHOIS data access provided to third parties who enter into a bulk WHOIS data access agreement with us. We reserve the right to discontinue providing bulk WHOIS data access to third parties. You agree that, to the extent permitted by ICANN policies and regulations, Evolving Media may make use of the publicly available information you provided during the registration process. If you engage in the reselling of domain names you agree to provide any individuals whose personal information you’ve obtained, information about the possible uses of their personal information pursuant to ICANN policy. You also agree to obtain consent, and evidence of consent, from those individuals for such use of the personal information they provide.
Ownership of information and data
You agree and acknowledge that we own all database, compilation, collective and similar rights, title and interests worldwide in our domain name database, and all information and derivative works generated from the domain name database. You further agree and acknowledge that we own the following information for those registrations for which we are the registrar: (a) the original creation date of the registration, (b) the expiration date of the registration, (c) the name, postal address, e-mail address, voice telephone number, and where available fax number of all contacts for the domain name registration, (d) any remarks concerning the registered domain name that appear or should appear in the WHOIS or similar database, and (e) any other information we generate or obtain in connection with the provision of domain name registration services, other than the domain name being registered, the IP addresses of the primary nameserver and any secondary nameservers for the domain name, and the corresponding names of those nameservers. We do not have any ownership interest in your specific personal registration information outside of our rights in our domain name database.
You may modify the domain registration 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 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 explicitly authorize us and/or the registrar of record 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. Such approval will happen automatically and, thereafter, the appropriate notices sent.
You agree that, if you are registering a domain name for or on behalf of someone else, you represent that you have the authority to nonetheless bind that person as a principal to all terms and conditions provided herein. You agree that if you license the use of the domain name registered to you to a third party, you nonetheless remain the domain name holder of record, and remain responsible for all obligations under this Agreement, including but not limited to payment obligations, and providing (and updating, as necessary) both your own full and accurate contact information, and accurate technical, administrative, billing and zone contact information adequate to facilitate timely resolution of any problems that arise in connection with the domain name and domain name registration and for ensuring non-infringement of any third party intellectual property rights or other rights.
Trademark or copyright claims
Evolving Media is a service provider and respects the copyrights, trademarks and other intellectual property rights of others. To the extent Evolving Media receives a proper notice of infringement of copyright, trademark or other intellectual property, Evolving Media reserves the right to access, preserve and disclose to third parties any of Your information or data (including personally identifiable information and private communications) related to a written complaint of infringement if Evolving Media believes in its sole discretion that such access, preservation, or disclosure is necessary or useful to respond to or otherwise address such complaint.
Evolving Media expressly reserves the right to terminate in appropriate circumstances an account or the access rights of a subscriber for repeated copyright infringement. Evolving Media also reserves the right to terminate an account or subscriber for even one instance of infringement.
Proper notice of infringement shall include the following information in writing to Evolving Media’s designated agent:
the electronic or physical signature of the rights holder or the person authorized to act on behalf of that person;
identification of the work that has been infringed;
an identification of the material that is claimed to be infringing, and information reasonably sufficient to permit Evolving Media to locate the material (for example, by providing a URL to the material); or, if applicable, identification of the reference or link to material or activity claimed to be infringing, and information reasonably sufficient to permit Evolving Media to locate that reference or link;
Your name, address, telephone number, and email address;
a statement by You that You have a good faith belief that the disputed use is not authorized by the rights holder, its agent, or the law; and
a statement that the information in Your notification is accurate and a statement, made under penalty of perjury, that You are the rights holder or are authorized to act on the behalf of the rights holder.
Evolving Media’s designated agent to receive notification of claimed infringement can be reached at Attn: Legal Department, EvolvingMedia.com, 57 Gauthier Street, Ottawa, ON K0C 1A0, Canada
After the expiration of the term of a domain name registration
Immediately after the expiration of the term of domain name registration services and before deletion of the domain name in the applicable registry’s database, you acknowledge that we may direct the domain name to name-servers and IP address(es) designated by us, including, without limitation, to no IP address or to IP address(es) which host a parking page or a commercial search engine that may display advertisements, we may either leave your WHOIS information intact or that we may change the contact information in the WHOIS output for the expired domain name so that you are no longer the listed registrant of the expired domain name.
Reactivation Period Process. You acknowledge and agree that timely renewal of your domain name(s) is your sole responsibility and you assume all risks and consequences related thereto if you do not renew your domain(s) prior to the expiration of its original term. We may, but are not obligated, to offer a period of time, the “Reactivation Period”, where you can renew an expired domain. You acknowledge and agree that offering a Reactivation Period is in our sole discretion and that we shall not be liable for any reason should we choose not to offer such period. If offered, the Reactivation Period exists for approximately 30 days after the expiration of the term of domain name registration services and may involve additional fees which we and your Primary Service Provider may determine. You acknowledge and agree that, during this time and any time thereafter, we may make expired domain name services(s) available to third parties, that we may auction off the rights to expired domain name services, and/or that expired domain name registration services may be re-registered to any party at any time.
After the Reactivation Period, you agree that we may either (i) discontinue and delete the domain name registration services, (ii) pay the registry’s registration fee or otherwise provide for the registration services to be continued, with no rights to you or, (iii) or auction, sell or otherwise transfer the domain name services to a third party and transfer the domain name registration services to such third party.
In the case of (i), above, you acknowledge that certain registry administrators may provide procedures by which discontinued domain name registration services may nonetheless be renewed. You acknowledge and agree that we may, but are not obligated to, participate in this process, typically called the “Redemption Grace Period” (“RGP”) and that we bear no liability should we decide not to participate. If available, RGP typically ends between 30 and 42 days after the end of the Reactivation Period of the domain name services. The typical RGP fee is $88.88 plus any registration fees, however, the redemption fees are higher for certain TLDs. You will be required to pay such higher fee if your domain is one of the listed TLDs. You agree that we are not obliged to contact you to alert you that the domain name registration services are being discontinued.
In the case of (ii), above, you acknowledge that we may then set the name-servers and the DNS settings for the domain name services, that we set the DNS to point to no IP address or to IP address(es) which host parking page(s) or a commercial search engine that may display paid advertisements, and you acknowledge that we may change the contact information in the WHOIS output for the expired domain name so that you are no longer the listed registrant of the expired domain name. You acknowledge that you have no right in any of the proceeds for such advertisements, if any, we may earn as a result. During this time, we may or may not offer said domain for auction and/or sale to a third party. Your rights, if any, to redeem an expired domain exist within the defined Reactivation Period as outlined above and the limited additional rights as outlined for domains auctioned within 40 days of expiration. You further agree that we are not obliged to contact you to alert you that the domain name registration services are being continued.,
In the case of (iii), above, where there is a successful auction bid for the domain within the first 40 days post-expiration, you have up to these same 40 days post expiration to recover the domain. Otherwise, the third party who won the auction for the domain name services will control the domain name services, including control over the WHOIS information and the DNS settings. You agree that we are not obliged to contact you to alert you that the domain name registration services are or were auctioned. You acknowledge that we do not have to pay you any of the proceeds, if any, we may earn as a result of such an auction.
You acknowledge that you have read, understood and agreed to these post-expiration rights as your sole remedies for renewal of expired domains. If you do not exercise your rights under this provision, you agree that you have abandoned the domain name services, and relinquish all rights and use of the domain name services with no liability to us.
LIMITATION OF LIABILITY
YOU AGREE THAT WE WILL NOT BE LIABLE FOR ANY (1) SUSPENSION OR LOSS OF THE SERVICE(S), INCLUDING, WITHOUT LIMITATION, DOMAIN NAME REGISTRATION SERVICES, (2) USE OF THE SERVICE(S), INCLUDING, WITHOUT LIMITATION DOMAIN NAME REGISTRATION SERVICES, (3) INTERRUPTION OF OUR SERVICES OR INTERRUPTION OF YOUR BUSINESS, (4) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO OUR WEB SITE(S) OR SERVICE(S) OR DELAYS OR ACCESS INTERRUPTIONS YOU EXPERIENCE IN RELATION TO A DOMAIN NAME REGISTERED WITH US; (5) LOSS OR LIABILITY RESULTING FROM ACTS OF OR EVENTS BEYOND OUR CONTROL (6) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; (7) THE PROCESSING OF AN APPLICATION FOR A DOMAIN NAME REGISTRATION; (8) LOSS OR LIABILITY RESULTING FROM THE UNAUTHORIZED USE OR MISUSE OF YOUR ACCOUNT IDENTIFIER OR PASSWORD; OR (9) APPLICATION OF THE DISPUTE POLICY. YOU ALSO AGREE THAT WE WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL OUR MAXIMUM AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU FOR REGISTRATION OF THE DOMAIN NAME. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR AND/OR YOUR PRIMARY SERVICE PROVIDER’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Indemnity and defence
With respect to ICANN, the registry operators, and Evolving Media, 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 this Agreement, the Service(s) provided hereunder, or your use of the Service(s), including, without limitation, infringement by you, or by anyone else using the Service(s) we provide to you, of any intellectual property or other proprietary rights of any person or entity, or from the violation of any of our operating rules or policies relating to the Service(s) provided. When we may be involved in a suit involving a third party and which is related to our Service(s) to you under this Agreement, we may seek written assurances from you in which you promise to defend, indemnify and hold us harmless from the costs and liabilities described in this paragraph. Such written assurances may include, in our 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 us to be a breach of this Agreement by you and may, in our 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 we are the registrar of record. Moreover, should we be forced to defend ourselves in any action or legal proceeding in connection with any Service(s) provided to you, you shall have sole responsibility to defend us against any such claim by the legal counsel of our choosing. This indemnification is in addition to any indemnification required under the UDRP. The terms of this paragraph will survive any termination or cancellation of this Agreement.
Indemnification of registry operators
You further agree to indemnify, defend and hold harmless all applicable registry administrator(s) (including Verisign Inc., Neulevel, Inc., Public Interest Registry, Afilias Limited, and other registry operators listed at http://www.icann.org/registries/listing.html) and all such parties’ directors, officers, employees, and agents from and against any and all claims, damages, liabilities, costs, and expenses (including any direct, indirect, incidental, special or consequential damages and reasonable legal fees and expenses) arising out of, or related to, the domain name registration services you are obtaining from us.
REPRESENTATIONS AND WARRANTIES
YOU REPRESENT THAT, TO THE BEST OF YOUR KNOWLEDGE AND BELIEF, NEITHER THE REGISTRATION OF A DOMAIN NAME NOR THE MANNER IN WHICH IT IS DIRECTLY OR INDIRECTLY USED NOR THE USE OF OTHER OF THE SERVICE(S) INFRINGES THE LEGAL RIGHTS OF A THIRD PARTY. YOU FURTHER REPRESENT AND WARRANT THAT ALL INFORMATION PROVIDED BY YOU IN CONNECTION WITH YOUR PROCUREMENT OF THE SERVICE(S) IS ACCURATE. ALL SERVICE(S) ARE PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS. EXCEPT FOR OUR STATEMENT REGARDING OUR ACCREDITATION AS ICANN-APPROVED DOMAIN NAME REGISTRAR, WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE(S), INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNLESS SUCH REPRESENTATIONS AND WARRANTIES ARE NOT LEGALLY EXCLUDABLE. WITHOUT ANY LIMITATION TO THE FOREGOING, WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER THAT REGISTRATION OR USE OF A DOMAIN NAME UNDER THIS AGREEMENT WILL IMMUNIZE YOU EITHER FROM CHALLENGES TO YOUR DOMAIN NAME REGISTRATION, OR FROM SUSPENSION, CANCELLATION OR TRANSFER OF THE DOMAIN NAME REGISTERED TO YOU. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR E-MAIL FORWARDING OR OTHER EMAIL 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 OUR E-MAIL SERVICE(S) OR ANY TRANSACTIONS ENTERED INTO THROUGH OUR E-MAIL SERVICE(S). NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
Additional reservation of rights
Evolving Media expressly reserves the right to deny, cancel, terminate, suspend, lock, or modify access to (or control of) any account or any Services (including the right to cancel or transfer any domain name registration) for any reason (as determined by Evolving Media in its sole and absolute discretion), including but not limited to the following: (i) to correct mistakes made by Evolving Media in offering or delivering any Services (including any domain name registration); (ii) to protect the integrity and stability of, and correct mistakes made by, any domain name registry; (iii) to assist with our fraud and abuse detection and prevention efforts; (iv) to comply with applicable local, state, national and international laws, rules and regulations; (v) to comply with requests of law enforcement, including subpoena requests; (vi) to comply with any dispute resolution process; (vii) to defend any legal action or threatened legal action without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit, or (viii) to avoid any civil or criminal liability on the part of Evolving Media, its officers, directors, employees and agents, as well as Evolving Media’s affiliates.
Right To Transfer Your Domain(s) As Part of Bulk / Partial Bulk Transfer
Evolving Media reserves the right to sell all or part of its domain portfolio as a registrar. Upon such sale, You agree that Evolving Media may transfer your domain(s) as part of a bulk or partial bulk transfer to the acquiring registrar.
You also agree that, where Evolving Media is a reseller and makes an acquisition in whole or in part of another registrars’ TLD portfolio that is the registrar of record for Your domain(s), Evolving Media has the right to transfer Your domain(s) from said registrar to Evolving Media’s registrar credentials as part of a bulk or partial bulk transfer.
Governing law and jurisdiction for disputes
Except as otherwise set forth in the UDRP or any similar ccTLD policy with respect to any dispute over a domain name registration this Agreement, your rights and obligations and all actions contemplated by this Agreement shall be governed by the laws of Canada and the province of Ontario. You agree that any action brought by you to enforce this Agreement or any matter brought by you and which is against or involves us and which relates to your use of the Services shall be brought exclusively in the Province of Ontario District Court.
You agree that service of process on you by us in relation to any dispute arising under this 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.
Notwithstanding the foregoing, for the adjudication of third party disputes (i.e., disputes between you and another party, not us) concerning or arising from use of domain names registered hereunder, you shall submit without objection, without prejudice to other potentially applicable jurisdictions, to the subject matter and personal jurisdiction of the courts (i) of the domicile of the registrant as it appears in the public WHOIS record for the domain name(s) in controversy, and (ii) where we are located, currently those in federal or provincial courts whose geographic districts are in Canada.
YOU AGREE TO WAIVE THE RIGHT TO TRIAL BY JURY IN ANY PROCEEDING THAT TAKES PLACE RELATING TO OR ARISING OUT OF THIS AGREEMENT.
You agree that any notices required to be given under this Agreement by us 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 Agreement.
This Agreement, the referenced agreements, the ICANN Policy and the UDRP, together with all modifications, constitute the complete and exclusive agreement between you and us and supersede and govern all prior proposals, agreements, or other communications, subject to the terms set out in Section 2 above. This 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 us.
No Agency Relationship
With the exception of the Designated Agency described in Section 19 above, Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other forms 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.
The failure of us 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 us 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 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 Agreement unenforceable or invalid as a whole. We will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, our original objectives and intent as reflected in the original provision.
Assignment and Resale
Except as otherwise set forth herein, your rights under this Agreement are not assignable or transferable. 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. You agree not to reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes any of the Services (or portion thereof) without Evolving Media’s prior express written consent.
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, provincial and local governments having or claiming jurisdiction over Evolving Media, or of any department, agency, commission, bureau, corporation or other instrumentality of any federal, provincial, 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 (i) shall have given the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, Evolving Media may immediately terminate this Agreement.
The section headings appearing in this 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.