|| ENCIRCA'S PROFORWARDING AGREEMENT

This PROFORWARDING Domain Name License Agreement is incorporated in Section 24 of EnCirca's Terms and Conditions

PLEASE READ THIS DOMAIN NAME LICENSE AGREEMENT ("AGREEMENT") CAREFULLY. BY USING THE PROFORWARDING SERVICES AND OR WEB SITE OF ENCIRCA, INC. ("EnCirca"), YOU AGREE TO ALL THE TERMS AND CONDITIONS SET FORTH HEREIN, WHICH IS INCORPORATED BY REFERENCE. YOU ACKNOWLEDGE THAT ENCIRCA MAY AMEND THIS AGREEMENT AT ANY TIME UPON POSTING THE AMENDED TERMS ON ITS WEB SITE, AND THAT ANY NEW, DIFFERENT OR ADDITIONAL FEATURES THAT CHANGE THE SERVICES PROVIDED BY ENCIRCA WILL AUTOMATICALLY BE SUBJECT TO THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY, OR IF YOU OBJECT TO, THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ANY AMENDMENTS HERETO, DO NOT USE OR ACCESS OUR SERVICES. CONTINUED USE OF ENCIRCA'S SERVICES AND ITS WEB SITE AFTER ANY SUCH CHANGES TO THIS AGREEMENT HAVE BEEN POSTED, CONSTITUTES YOUR ACCEPTANCE OF THOSE CHANGES.

This Agreement is by and between EnCirca, a Massachusetts corporation, and you, your heirs, executors, administrators, agents, successors and assigns ("You"). This Agreement sets forth the terms and conditions of Your relationship with EnCirca and Your use of EnCirca's services. You acknowledge that You have read, understand and agree to be bound by all the terms and conditions of this Agreement, and You further agree to be bound by the terms of this Agreement for transactions entered into by: (i) You on Your behalf; (ii) anyone acting as Your agent; (iii) anyone who uses the account You have established with EnCirca, whether or not the transactions were on Your behalf and/or authorized by You. You agree that You will be bound by representations made by third parties You use to purchase services from EnCirca, and that statements of a general nature on EnCirca's web site or in EnCirca promotional materials will not bind EnCirca. You further agree to abide by the terms and conditions promulgated by the Internet Corporation for Assigned Names and Numbers ("ICANN") (including the Uniform Domain Name Dispute Resolution Policy ("Dispute Resolution Policy") (http://www.icann.org/dndr/udrp/policy.htm) and EnCirca acting as your Registrar (i.e., the ICANN-accredited person or entity through which You register a domain name).

Licensee may not, in connection with use of the Domain Name, explicitly or implicitly misrepresent professional credentials, including but not limited to levels of training, certification, education, licensing or membership in a professional organization.

1. DESCRIPTION OF ENCIRCA'S PROFORWARDING SERVICES

When you subscribe to EnCirca's ProForwarding service, each and any available domain name registration that You designate will thereafter be registered in the name of EnCirca, as Registrant. As Registrant of the domain, EnCirca will submit and maintain valid license credentials for two third-level .pro domain names. By associating your domain name with these third level domains, EnCirca will ensure your domain will resolve in the internet.

You will be listed as the Admin Contact for the domain. EnCirca will also be listed as the Billing and Technical contact but you are free to change this information.

2. FULL BENEFITS OF DOMAIN REGISTRATION RETAINED BY YOU

Although EnCirca will be the Registrant of each domain name registration You designate, You will be listed as the Admin Contact and retain the full benefits of domain name registration with respect to each such domain name registration, including:

  • The right to sell, transfer or assign each domain name registration;

  • The right to control the use of each domain name registration, including designating the primary and secondary domain name servers to which each domain name points;

  • The right to renew each domain name registration upon its expiration, subject to EnCirca's applicable rules and policies;

  • The right to cancel each domain name registration;

  • The right to switch your domain to a ProResolving domain name so that You become the Registrant. This change requires you to first register two third-level .pro domains in different professions with EnCirca;

  • The right to initially resolve any and all monetary, creditor or other claims that arise in connection with a legal or other dispute involving Your domain name registration, subject to EnCirca's Section 4 rights, which shall, in all events, supersede any and all of Your rights as set forth in this Section 2.

  • Domains maintained by EnCirca's ProForwarding service do not include a .pro digital certificate;

  • Second level .pro domains may be transferred to another ICANN Registrar provided that the third-level domains they are associated with are also transferred along with all other second level domains associated with the third level domains.

3. YOUR NOTIFICATION OBLIGATIONS; REPRESENTATIONS & WARRANTIES

a. Personal Information. You agree that for each domain name for which EnCirca becomes the Registrant on Your behalf, You will provide accurate and current information as to:

  • Your name, email address, phone number and postal address;

  • The email address, postal address, phone and fax numbers for the domain name registration's administrative contact;

You agree to: (i) notify EnCirca within five (5) business days when any of the personal information You provided upon subscribing to EnCirca's services, changes; (ii) respond within five (5) business days to any inquiries made by EnCirca to determine the validity of personal information provided by You; (iii) respond to email messages posted to Your EnCirca account email address regarding correspondence EnCirca has received that is either addressed to or involves Your domain name registration, as more fully set forth in Section 5(b) below. It is Your responsibility to keep Your personal information current and accurate at all times.

b. Renewals. You agree that ProForwarding, as Registrant, will (i) arrange to automatically renew on Your behalf, for a period of one year only, any domain name registration that is up for renewal; and (ii) arrange to charge the credit card You have on file with EnCirca, at EnCirca's then current rates. Renewal fees, once charged, will be non-refundable. You may also elect not to automatically renew EnCirca's ProForwarding services, by registering two third level .pro doman names, providing the required license credentials and requesting that EnCirca move your second level domain to be associated with these new domains.

c. Representations & Warranties. You warrant that all information provided by You to EnCirca is truthful, complete, current and accurate. You also warrant that You are using EnCirca's ProForwarding services in good faith and that You have no knowledge of Your domain name infringing upon or conflicting with the legal rights of a third party or a third party's trademark or trade name. You also warrant that the domain name being registered by EnCirca on Your behalf will not be used in connection with any illegal or morally objectionable activity (as defined below in Section 4), or, in connection with the transmission of Spam.

4. ENCIRCA'S RIGHTS TO DENY, SUSPEND, TERMINATE SERVICE AND TO DISCLOSE YOUR PERSONAL INFORMATION

a. You understand and agree that EnCirca has the absolute right and power, in its sole discretion and without any liability to You whatsoever, to resolve any and all third party claims, whether threatened or made, arising out of Your use of a domain name registered by EnCirca on Your behalf; or take any other action EnCirca deems necessary:

  • In the event you breach any provision of this Agreement or the EnCirca Anti-Spam Policy;

  • To protect the integrity and stability of the applicable domain name Registry;

  • To comply with any applicable laws, government rules or requirements, subpoenas, court orders or requests of law enforcement;

  • To comply with ICANN's Dispute Resolution Policy;

  • To avoid any financial loss or legal liability (civil or criminal) on the part of EnCirca, its parent companies, subsidiaries, affiliates, shareholders, agents, officers, directors and employees;

  • If the domain name EnCirca registers on Your behalf violates or infringes a third party's trademark, trade name or other legal rights;

  • If it comes to EnCirca's attention that You are using EnCirca's services for purposes of engaging in, participating in, sponsoring or hiding Your involvement in, illegal or morally objectionable activities, including but not limited to, activities which are designed, intended to or otherwise: (i) defame, embarrass, harm, abuse, threaten, or harass third parties; (ii) violate state or federal laws of the United States and/or foreign territories; (iii) involve hate crimes, terrorism and child pornography; (iv) are tortious, vulgar, obscene, invasive of a third party's privacy, racially, ethnically, or otherwise objectionable; (v) impersonate the identity of a third party; (vi) harm minors in any way; or (vii) relate to or transmit viruses, Trojan Horses, access codes, backdoors, worms, timebombs or any other code, routine, mechanism, device or item that corrupts, damages, impairs, interferes with, intercepts or misappropriates any software, hardware, firmware, network, system, data or personally identifiable information.

  • Licensee may not, in connection with use of the Domain Name, explicitly or implicitly misrepresent professional credentials, including but not limited to levels of training, certification, education, licensing or membership in a professional organization.

b. You also acknowledge and agree that EnCirca may, in its sole discretion and without any liability to You whatsoever: (i) cancel the registration of any domain name EnCirca has registered on Your behalf during the first thirty (30) days after registration has taken place; (ii) cancel the registration of any domain name EnCirca has registered on Your behalf if that name is being used in association with Spam; (iii) suspend your rights under Section 2 of this Agreement during resolution of a dispute.

c. You further understand and agree that if EnCirca is named as a defendant in, or investigated in anticipation of, any legal or administrative proceeding arising out of Your domain name registration or Your use of EnCirca's services, Your ProForwarding registration may be immediately be suspended or deleted.

d. In the event: (i) EnCirca takes any of the actions set forth in paragraphs (a), (b) or (c) above; or (ii) You elect to cancel EnCirca's services for any reason, EnCirca will not will refund any fees paid by You whatsoever.

5. COMMUNICATIONS FORWARDING

a. Correspondence Forwarding. Inasmuch as EnCirca's name, postal address and phone number will be listed in the Whois directory as the Registrant, You agree that EnCirca will review communications addressed to your domain name that are received via certified or traceable courier mail. You specifically acknowledge that EnCirca will not forward to You first class postal mail (other than legal notices), "junk" mail or other unsolicited communications (whether delivered through fax, postal mail or telephone), and You further authorize EnCirca to either discard all such communications or return all such communications to sender unopened. You agree to waive any and all claims arising from Your failure to receive communications directed to Your domain name but not forwarded to You by EnCirca.

b. Notifications Regarding Correspondence and Your Obligation to Respond. When EnCirca receives certified or traceable courier mail or legal notices addressed to Your domain name, we will send an email message to Your email address. Our email message will identify the sender of the correspondence, the date we received it, and a brief description of its contents. You will have seventy-two (72) hours to decide whether to reject the correspondence or have it forwarded via overnight courier, facsimile (or both) at your cost. You will be informed of the charge for both shipping options and the credit card You provide will be billed only after You have affirmatively selected one or both shipping options. You must select a shipping option and the credit card transaction must be successful prior to us forwarding the correspondence to You.

In the event You do not respond to our email message, EnCirca will attempt to contact you via telephone. If you do not respond to our email or voice messages and/or the correspondence that EnCirca has received regarding Your domain name registration concerns a legal dispute or otherwise requires immediate forwarding and/or immediate disposition, EnCirca may immediately cancel our ProForwarding service regarding the domain name registration in question We take this action because EnCirca will not become involved in any legal or other matters between You and third parties.

d. Service Fees. In consideration for (i) handling and forwarding certified and traceable courier mail and certain first class correspondence, and (ii) responding to and dealing with complaining third parties, You agree to pay EnCirca at the time such services are provided. EnCirca may change its service fees at any time. Unless otherwise stated, all fees are posted (and payable by You) in U.S. Dollars. You are responsible for paying all fees and taxes associated with using EnCirca's services. Payment shall be made by You providing a valid credit card for charge by EnCirca, and is non-refundable. If for any reason EnCirca is unable to charge Your credit card with the full amount of the service provided, or if EnCirca is charged back for any fee it previously charged to the credit card You provided, You agree that EnCirca may, without notice to You, pursue all available remedies in order to obtain payment, including but not limited to, sale of the domain name registration to a third party, and immediate cancellation of Your account and all services EnCirca provides to You.

6. LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES SHALL EnCirca BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES FOR ANY REASON WHATSOEVER RELATED TO THIS AGREEMENT, YOUR DOMAIN NAME REGISTRATION, EnCirca'S SERVICES, USE OR INABILITY TO USE THE EnCirca WEB SITE OR THE MATERIALS AND CONTENT OF THE WEB SITE OR ANY OTHER WEB SITES LINKED TO THE EnCirca WEB SITE OR YOUR PROVISION OF ANY PERSONALLY IDENTIFIABLE INFORMATION TO EnCirca OR ANY THIRD PARTY. THIS LIMITATION APPLIES REGARDLESS OF WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF EnCirca HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE. BECAUSE CERTAIN JURISDICTIONS DO NOT PERMIT THE LIMITATION OR ELIMINATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, EnCirca'S LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE SMALLEST AMOUNT PERMITTED BY LAW.

You further understand and agree that EnCirca disclaims any loss or liability resulting from: (i) the inadvertent disclosure or theft of Your personal information; (ii) access delays or interruptions to our web site; (iii) data non-delivery or misdelivery between You and EnCirca; (iv) the failure for whatever reason to renew a ProForwarding registration; (v) the unauthorized use of Your EnCirca account or any of EnCirca's services; (vi) errors, omissions or misstatements by EnCirca; (vii) deletion of, failure to store, failure to process or act upon email messages forwarded to either You or Your ProForwarding registration; (viii) processing of updated information regarding Your EnCirca account; (ix) any act or omission caused by You or Your agents (whether authorized by You or not).

7. INDEMNITY

You agree to release, defend, indemnify and hold harmless EnCirca, its parent companies, subsidiaries, affiliates, shareholders, agents, directors, officers and employees from and against any and all claims, demands, liabilities, losses, damages or costs, including reasonable attorney's fees, arising out of or related in any way to this Agreement, the services provided hereunder by EnCirca, the EnCirca web site, Your account with EnCirca, Your use of Your domain name registration, and/or disputes arising in connection with the Dispute Resolution Policy (http://www.icann.org/dndr/udrp/policy.htm).

8. ENCIRCA WARRANTY DISCLAIMER

ENCIRCA, ITS PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, AGENTS, DIRECTORS, OFFICERS, AND EMPLOYEES EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, THE SERVICES PROVIDED HEREUNDER, THE ENCIRCA WEB SITE OR ANY WEB SITES LINKED TO THE ENCIRCA WEB SITE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ALL ENCIRCA SERVICES, AS WELL AS THE ENCIRCA WEB SITE, ARE PROVIDED "AS IS". YOUR SUBSCRIPTION TO AND USE OF ENCIRCA'S SERVICES AND ITS WEB SITE ARE ENTIRELY AT YOUR RISK. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, IN WHICH EVENT THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU.

9. COPYRIGHT & TRADEMARK

You understand and agree that all content and materials contained in this Agreement, the Privacy Policy and the EnCirca web site, are protected by the various copyright, patent, trademark, service mark and trade secret laws of the United States, as well as any other applicable proprietary rights and laws, and that EnCirca expressly reserves its rights in and to all such content and materials. You further understand and agree that You are prohibited from using, in any manner whatsoever, any of the afore-described content and materials without the express written permission of EnCirca. No license or right under any copyright, patent, trademark, service mark or other proprietary right or license is granted to You or conferred upon You by this Agreement or otherwise.

10. MISCELLANEOUS PROVISIONS

a. Severability; Construction; Entire Agreement. If any part of this Agreement shall be held to be illegal, unenforceable or invalid, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, enforceable and valid, and the legality, enforceability and validity of the remaining provisions of this Agreement shall not be affected or impaired. The headings herein will not be considered a part of this Agreement. You agree that this Agreement, including the policies it incorporates by reference, constitute the complete and only Agreement between You and EnCirca regarding the services contemplated herein.

b. Governing Law; Venue; Waiver Of Trial By Jury. This Agreement shall be governed in all respects by the laws and judicial decisions of Middlesex County, Massachusetts excluding its conflicts of laws rules. Except as provided immediately below, You agree that any action relating to or arising out of this Agreement, shall be brought exclusively in the courts of Middlesex County, Massachusetts For the adjudication of domain name registration disputes, you agree to submit to the exclusive jurisdiction and venue of the U.S. District Court for the District of Massachusetts located in Boston, Massachusetts You agree to waive the right to trial by jury in any proceeding, regardless of venue, that takes place relating to or arising out of this Agreement.

c. Notices. All notices from EnCirca to You will be sent to the email address You provided to EnCirca. Notices by email shall be deemed effective 24 hours after the email is sent by EnCirca, unless EnCirca receives notice that the email address is invalid, in which event EnCirca may give You notice via first class or certified mail, return receipt requested. All notices from You to EnCirca shall be sent via certified mail, return receipt requested or trackable courier to EnCirca, Inc., Attn: General Counsel, 400 W. Cummings Park, Suite 1725-307, Woburn, MA 01801. Notices sent via certified mail or trackable courier shall be deemed effective five (5) days after the date of mailing.

Any notice concerning indemnification shall, with respect to EnCirca, be sent in accordance with Section 10(c) of this Agreement.

f. Term of Agreement; Survival. The term of this Agreement shall continue in full force and effect as long as EnCirca is the Registrant for any domain name on Your behalf. Sections 5 (Communications Forwarding), 7 (Limitation of Liability), 8 (Indemnity), 9 (Warranty Disclaimer) and 10 (Miscellaneous Provisions) shall survive any termination or expiration of this Agreement.

Copyright 2005 EnCirca, Inc.

All Rights Reserved.

Last updated March 16, 2005