EGS Governing Terms
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Terms & Conditions as between You – the I-Name Registrant – and an I-Name Service Provider
Intended Use
The following Governing Terms and Conditions approved by XDI.ORG are common to agreements between I-Name Registrants and I-Name Service Providers for the provision of any services related to XDI i-names and i-numbers (“I-Name Services”). They may be incorporated by reference in such agreements. The terms of a particular agreement for I-Name Services may modify or supersede these common terms, so long as the agreement is consistent with relevant OASIS and XDI.ORG technical specifications and any applicable XDI.ORG rules, policies, or standards.
These common terms are approved by XDI.ORG, and XDI.ORG can modify them at any time, effective on 30 days’ notice, as detailed in the section entitled “Modifications to Agreement.”
Parties and Definitions
“You” and “your” refers to the registrant for any I-Name Service.
“We,” “us,” and “our” refers to any I-Name Service Provider, a term used here to refer collectively to XDI.ORG and to its licensors or licensees, i-brokers, other XDI Global Services Providers, and any of their respective contractors, suppliers, affiliates, agents, assigns, employees, officers, directors, and shareholders, to the extent that any of these persons provides you with an i-name service or makes offers, statements, or representations (on a website or otherwise) about an i-name service.
“Agreement” refers to the relevant agreement between you and an I-Name Service Provider concerning the provision of I-Name Services, including these Governing Terms and Conditions when incorporated by reference
Disclaimer of Warranties and Limitation of Damages
EXCEPT AS EXPRESSLY STATED IN AN AGREEMENT BETWEEN YOU AND AN I-NAME SERVICE PROVIDER, OR AS REQUIRED BY AN APPLICABLE OASIS OR XDI.ORG SPECIFICATION, RULE, POLICY, OR STANDARD, ALL CONTENT, SERVICES, PRODUCTS AND SOFTWARE PROVIDED IN CONNECTION WITH YOUR I-NAME AND I-NUMBER ARE PROVIDED "AS IS" AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. I-NAME SERVICE PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. I-NAME SERVICE PROVIDER MAKES NO WARRANTY THAT SERVICE(S) LICENSED HEREUNDER WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE(S) 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 SERVICE(S) OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH OUR SERVICES.
YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR SERVICES OR OUR WEBSITES 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.
YOU ARE SOLELY RESPONSIBLE FOR DETERMINING IF THE CONTENTS OF OUR WEBSITES AND THE PRODUCTS AND SERVICES WE OFFER ARE APPROPRIATE FOR YOUR INTENDED APPLICATION AND USE. I-NAME SERVICE PROVIDER DOES NOT WARRANT THAT OUR WEBSITES, THEIR CONTENT, OR THE PRODUCTS AND SERVICES WE OFFER MEET YOUR REQUIREMENTS.
SUBJECT TO THE TERMS OF ANY AGREEMENT BETWEEN YOU AND I-NAME SERVICE PROVIDER, NEITHER YOU NOR I-NAME SERVICE PROVIDER SHALL BE LIABLE TO THE OTHER FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, EVEN IF YOU OR I-NAME SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
The foregoing provision is not intended to waive or modify (a) I-Name Service Provider’s right to collect payments for I-Name Services provided to you, (b) any remedies to which you or I-Name Service Provider may be entitled for fraudulent or criminal acts by a party, or (c) any rights that you or I-Name Service Provider may have to indemnification in the event of third-party claims, as provided in the Indemnification provisions below.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
WE MAKE NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH ANY OF OUR WEBSITES OR SERVICES OR ANY TRANSACTIONS WITH THIRD PARTIES ENTERED INTO THROUGH SUCH WEBSITES OR SERVICES. WE ARE NOT RESPONSIBLE FOR AND SHALL HAVE NO LIABILITY WITH RESPECT TO ANY PRODUCTS AND/OR SERVICES PURCHASED BY YOU FROM A THIRD PARTY.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OUR WEBSITES OR SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. TO THE EXTENT JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
Indemnification
(a) We agree to release, indemnify, and defend you, and hold you harmless, from all liabilities, claims, damages, costs, and expenses, including reasonable attorneys’ fees and expenses, to the extent that you are sued or threatened with suit by a third party for injury resulting from our action or inaction. Our indemnification obligations under this Agreement are conditioned on your giving us prompt notice of such claims, allowing us to participate in the defense of such claims with our own counsel and at our own expense, and not entering into a settlement without our written consent, which we shall not unreasonably withhold.
(b) You agree to release, indemnify, defend and hold harmless I-Name Service Provider from all liabilities, claims, damages, costs, and expenses, including reasonable attorneys' fees and expenses, to the extent that I-Name Service Provider is sued or threatened with suit by a third party for injury resulting from your action or inaction. By way of example and not of limitation, this obligation may arise where a third party claims losses relating to or arising out of (a) the breach of your warranties, representations and obligations under this Agreement, (b) your use of I-Name Service Provider services, including without limitation infringement or dilution of the trademark, copyright, or other intellectual property or proprietary rights of any person or entity, either by you or by someone else using our service(s) from your computer, (c) a violation of any of our operating rules or policies relating to the service(s) provided, (d) any information or data you supplied to I-Name Service Provider, including, without limitation, any misrepresentation in your application, if applicable, or (e) the inclusion of meta-tags or other elements in any website created for you or by you via the I-Name Service Provider services, or accessed via links or pointers provided by you and stored by I-Name Service Provider. Your indemnification obligations under this Agreement are conditioned on I-Name Service Provider giving you prompt notice of such claims, allowing you to participate in the defense of such claims with your own counsel and at your own expense, and our not entering into a settlement without your written consent, which you shall not unreasonably withhold.
The terms of this section shall survive any termination or cancellation of this Agreement.
TERMINATION. a. By You. You may terminate this Agreement upon at least thirty (30) days written notice to I-Name Service Provider for any reason. b. By Us. We may terminate this Agreement or any part of the I-Name Service Provider services at any time in the event you breach any obligation hereunder, fail to respond within ten (10) calendar days to an inquiry from us concerning the accuracy or completeness of the information provided to us for purposes of maintaining any i-name or i-number registration, if we determine that you have violated the EGS Terms of Service (hereby incorporated by reference), or upon thirty (30) days prior written notice if we terminate or significantly alter a product or service offering. c. Effect of Termination. I-Name Service Provider will cease charging your credit or debit card or bank account, if applicable, for any monthly service fees as of the expiration of the monthly billing cycle in which the termination is effective. Unless otherwise specified in writing by I-Name Service Provider, you will not receive any refund for payments already made by you as of the date of termination, and, you may incur additional fees (in the case of a monthly or annual subscription being paid over time, as provided in various Schedules below). If termination of this Agreement is due to your default hereunder, you shall bear all costs of such termination, including any reasonable costs I-Name Service Provider incurs in closing your account. You agree to pay any and all costs incurred by I-Name Service Provider in enforcing your compliance with this section. You agree that upon termination or discontinuance for any reason, we may delete all information registered to you in the I-Name Service Provider service, if applicable. In addition to the terms set forth herein, certain I-Name Service Provider services may have additional terms regarding termination, which are set forth in your specific agreement with that I-Name Service Provider. d. Effect of Termination of Bundled Services. In addition to the terms set forth in subsection (c) above, if you purchase I-Name Service Provider services which are sold together as part of a "bundled" package of services, any termination relating to such bundle will terminate all I-Name Service Provider services included in such bundle; however, you will retain the right to transport your i-name and/or i-number to an alternative I-Name Service Provider. For instance, any i-name or i-number registered with or maintained by an I-Name Service Provider under this Agreement (but not including any i-names or i-numbers you may have registered, either with I-Name Service Provider or a third-party registrar, separately and not as part of a bundled service) will no longer be serviced by that I-Name Service Provider. Failure to contract with another I-Name Service Provider for within thirty (30) days after such termination may result in your i-name and/or i-number becoming available for registration by another party.
REPRESENTATIONS AND WARRANTIES. You agree and warrant that: (i) neither your registration nor use of any of the I-Name Services nor the manner in which you intend to use such I-Name Services will directly or indirectly infringe the legal rights of a third party, (ii) you have all requisite power and authority to execute this Agreement and to perform your obligations hereunder, (iii) you have selected the necessary security option(s) for your i-name or i-number registration record, (iv) you are of legal age to enter into this Agreement (or you are at least 13 years of age and have your parents' permission to apply for services hereunder); and (vi) you agree to comply with all applicable laws and regulations and XDI.ORG rules, policies, and standards.
MODIFICATIONS TO AGREEMENT. Except as otherwise provided in this Agreement, you agree, during the term of this Agreement, that we may: (1) revise the terms and conditions of this Agreement; and/or (2) change part of the services provided under this Agreement at any time. Changes to these Governing Terms and Conditions must be approved by XDI.ORG; other changes to this Agreement are made by the I-Name Service Provider(s) with whom you contract. Any revision or change of this Agreement will be binding and effective 30 days after posting of the revised Agreement or change to the service(s) on I-Name Service Provider Web sites or on the XDI.ORG principal Web site in the case of changes to these Governing Term and Conditions, or upon notification to you by e-mail or United States or international mail. You agree to periodically review our Web sites, including the current version of this Agreement available on our Web sites, to be aware of any such revisions. If you do not agree with any revision to the Agreement, you may terminate this Agreement at any time by providing us with notice. Notice of your termination will be effective on receipt and processing by us. Any fees paid by you if you terminate your Agreement with us are nonrefundable, but you will not incur any additional fees. By continuing to use I-Name Service Provider services after any revision to this Agreement or change in service(s), you agree to abide by and be bound by any such revisions or changes. We are not bound by nor should you rely on any representation by (i) any agent, representative or employee of any third party that you may use to apply for our services; or in (ii) information posted on our Web site of a general informational nature. No employee, contractor, agent or representative of I-Name Service Provider is authorized to alter or amend the terms and conditions of this Agreement.
ACCOUNT ACCESS. To access or use the I-Name Service Provider services or to modify your services or account information, you may be required to establish an account and obtain a login name, account number, password. You authorize us to process any and all account transactions initiated through the use of your password. You are responsible for maintaining the confidentiality of your password. You must immediately notify us of any unauthorized use of your password, and you are responsible for any unauthorized activities using your password, as well as related charges and/or liabilities. In no event will we be liable for the unauthorized use or misuse of your login name, account number, password.
AGENTS. You agree that, to the extent any agent of yours (such as an employee, contractor, or Internet service provider) requests I-Name Service(s) on your behalf, you are nonetheless bound as a principal by all terms and conditions herein, including the Dispute Resolution Policy. Your continued use of our services ratifies any unauthorized actions of your agent. By using your login name, account number or password, or otherwise purporting to act on your behalf, your agent certifies that he or she is authorized to apply for our services on your behalf, that he or she is authorized to bind you to the terms and conditions of this Agreement, that he or she has apprised you of the terms and conditions of this Agreement, and that he or she is otherwise authorized to act on your behalf. In addition, you are responsible for any errors made by your agent.
RIGHT OF REFUSAL. I-Name Service Provider reserves the right to refuse to register your chosen i-name or i-number, provide other I-Name Services, or to delete your chosen i-name or i-number within the first thirty (30) calendar days from receipt of your payment for such services. In the event an I-Name Service Provider does not register your chosen i-name or i-number, does not register you for other service(s), does not provide you with other I-Name Services, or deletes your chosen i-name or i-number or other I-Name Service Provider service(s) within such thirty (30) calendar day period, we agree to refund any applicable fee(s) you have paid. You agree that I-Name Service Provider shall not be liable to you for loss or damages that may result from our refusal to register your chosen i-name or i-number, the deletion of your chosen i-name or i-number or refusal to register you for other I-Name Service(s).
NOTICES AND ANNOUNCEMENTS. Except as expressly provided otherwise herein or in the particular terms of your agreement with an I-Name Service Provider, all notices required by this Agreement shall be delivered to the relevant I-Name Service Provider in writing and delivered via overnight courier or certified mail, return receipt requested, to the address provided by that I-Name Service Provider or, in the case of XDI.ORG or if you are in doubt as to the relevant I-Name Service Provider, to XDI.ORG, Attention: Legal Department, 4855 Wikiup Bridgeway, Santa Rosa, CA 95404. Except as expressly provided otherwise herein or in the particular terms of your agreement with an I-Name Service Provider, all notices to you shall be delivered to your i-name, mailing address, or e-mail address as provided in your account information (as updated by you pursuant to this Agreement) or to any i-name associated with your i-name or i-number registration(s) with I-Name Service Provider.
SEVERABILITY. You agree that the terms of this Agreement are severable. If any term or provision is declared invalid or unenforceable, in whole or in part, that term or provision will not affect the remainder of this Agreement; this Agreement will be deemed amended to the extent necessary to make this Agreement enforceable, valid and, to the maximum extent possible consistent with applicable law, consistent with the original intentions of the parties; and the remaining terms and provisions will remain in full force and effect.
ENTIRE AGREEMENT. You agree that this Agreement, the specifications, rules, policies, and standards incorporated by reference in this Agreement (including, without limitation, the XDI.ORG Dispute Resolution Policy and the XDI.ORG Privacy Statement) are the entire, complete and exclusive agreement between you and us regarding our services and supersede all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy, or precedent, with respect to the subject matter of this Agreement, including, without limitation, any purchase order provided by you for I-Name Services.
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 resell any of the Services without I-Name Service Provider prior express written consent.
GOVERNING LAW. a. Except as provided in the EGS Dispute Resolution Policy concerning i-name disputes brought by a third party, you and I-Name Service Provider agree that this Agreement and any disputes hereunder shall be governed in all respects by and construed in accordance with the laws of the Commonwealth of Virginia, United States of America, excluding its conflict of laws rules and excluding Virginia law based on the Uniform Computer Information Transactions Act. You and we each agree to submit to exclusive subject matter jurisdiction, personal jurisdiction and venue of the United States District Court for the Western District of Washington for any disputes between us under or arising out of this Agreement. If there is no jurisdiction in the United States District Court for the Western District of Washington, for any disputes between us under or arising out of this Agreement you and we agree that jurisdiction shall be in the courts of King County, Seattle, Washington. b. The parties hereby waive any right to jury trial with respect to any action brought in connection with this Agreement. c. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
AGREEMENT TO BE BOUND. By applying for I-Name Service(s) through our online application process or otherwise, or by using the service(s) provided by I-Name Service Provider under this Agreement, you acknowledge that you have read and agree to be bound by all terms and conditions of this Agreement and documents incorporated herein by reference.
INDEPENDENT PARTIES. Neither party nor their employees, consultants, contractors or agents are agents, employees or joint ventures of the other party, and they do not have any authority to bind the other party by contract or otherwise to any obligation. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
WAIVER. No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by an authorized representative of I-Name Service Provider. The remedies of I-Name Service Provider under this Agreement shall be cumulative and not alternative, and the election of one remedy for a breach shall not preclude pursuit of other remedies. The failure of a party, at any time or from time to time, to require performance of any obligations of the other party hereunder shall not affect its right to enforce any provision of this Agreement at a subsequent time, and the waiver of any rights arising out of any breach shall not be construed as a waiver of any rights arising out of any prior or subsequent breach.
The following related hyperlinked documents are hereby incorporated by reference: