Terms of Service for Whois API Hosted Webservice

Definition of Whois API Hosted Webservice

• “Data” means all data retrieved via the Services, whether as Parsed Data or raw format database dumps, and whether provided via Webservices or Data Feed. Data includes data provided in any format, including but not limited to MYSQL, MYSSQL, and CSV files.
• “Purchase Order Form” means a Whois API ordering document which, if duly executed by both Parties, sets forth the Data that Customer may access and use pursuant to this Agreement.
• “Services” means the services as provided by Whois API to Customer pursuant to this Agreement, including but not limited to the Data Feed and Webservices API services.
• “Data Feed” means the provision Data as a data feed, namely in a downloadable format for use off of local storage.
• “Webservices” is the provision of the Data via webservices API, for retrieval from network storage.
• "Parsed Data" as used herein refers to specific data fields separated from the original record. Examples of such fields include, but are not limited to, registrant name, postal address, postal code, country code, phone number, and email address.
• “License and Use Exhibit” means a separately executed document covering additional services, data, or allowed uses.

Ownership

As between Customer and Whois API, Whois API owns and shall continue to own the Services, all underlying software making the Services operable, the Data, Parsed Data, all derivatives thereof, and all intellectual property rights therein.

License Grants

You are granted a limited, revocable, nonexclusive license to use any data, images, text, content, tools, or other information, including but not limited to Data, the Services, and Parsed Data (collectively referred to as the "Whois API Properties") in accordance with the terms and conditions described herein. You agree that you will provide accurate information when signing up for any Whois API account.

Whois API shall retain all rights not expressly granted either herein, and Customer shall not use the Data, Services, or any Whois API Properties in any manner not expressly allowed.

Unless otherwise expressly stated, any licenses to use the Data or Services granted herein or in any License and Use Exhibit are limited to use thereof at a single Customer Site (as defined below).

“Site” means one instance of the use of the Parsed Data, Data, or Services on a single machine or virtual machine.

Use Restrictions

• No Abuse; Prohibited Uses. Customer may not use the Data or the Services, or any APIs provided by Whois API for any abusive purpose, nor may Customer use the Data or the Services to abuse computer resources accessible through any network—local, wide-area, or internet. Whois API does not collect Customer queries information and is not responsible for any potential abuse stemming from any Customer client application. The term “abuse” as used herein shall include, but is not limited to, unauthorized data mining, denial of service attacks, unauthorized computer system incursions, and any actions that violate applicable laws and/or regulations. Furthermore, Customer may not use the Data or the Services in any manner that could damage, disable, overburden, or impair Whois API’s Data, Services, and/or the network(s) connected thereto, or interfere with any other party's use and enjoyment of Whois API’s Data and Services. Customer may not attempt to gain unauthorized access to Whois API’s Data or Services, or any other accounts, computer systems or networks connected to the Services, through hacking, password mining, or any other means. Finally, Customer may not obtain or attempt to obtain any materials or information through any means not intentionally made available by Whois API through its Services.
• Automated Use. Absent the prior written consent of Whois API, your use of the Services shall not exceed:
  
  
  • 50 requests per second;
  • 20 concurrent requests; or
  • 5 concurrent requests for bulk data.
  
  Whois API may reject requests in excess of the foregoing at its sole discretion. The above limits apply to all instances of any application created, made available, or otherwise run by you in aggregate (e.g, no more than 50 requests per second across all instances of any applications create).
• Additional Restrictions.
  
  
  • Data usage. Customer may not use contact information obtained through the Data or Services for any purpose or in any manner prohibited by applicable law or regulation. Customer shall be solely liable for any use of the Data (or any derivative thereof) by Customer’s customers and/or users in any manner or for any purpose that violates applicable law or regulation, and shall have a written contract with such customers and/or users restricting such use. Whois API does not collect or analyze Customer’s queries, as such Customer shall be solely responsible for complying with all applicable regulations and laws, solely liable for failure to do so, and, without in any way limiting any other indemnification obligations herein, shall indemnify Whois API from and against any liability arising from or related to Customer’s failure to adhere to the terms of this provision.
  • Display and Transfer. Unless expressly allowed per the terms of a duly executed License and Use Exhibit, the data obtained via the Services are provided solely for Customer’s internal use, and Customer shall not distribute or otherwise make available, the Data to any third-party, including but not limited to, portions and/or derivatives thereof.
  • No Resale or Sublicensing. Customer may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, sublicense, transfer, assign, rent, sell or otherwise convey any information, software, products or services obtained from Whois API’s Services, the Data, and/or Whois API Properties without the express prior written consent from Whois API. Furthermore, Customer shall not allow any other parties to use Customer’s Whois API’s Services account or login credentials, and shall remain solely liable for any activities that occur using said credentials.

Term

This Agreement is effective as of the date of your first access and/or use of the Services and shall continue in effect for as long as the term of any license granted pursuant to a duly executed License and Use Exhibit, or Service provided hereunder pursuant to any Purchase Order Form, unless earlier terminated in accordance with the terms of this Agreement.

Fees, Payments, & Taxes

• Fees for particular permitted uses and license grants shall be as specified in the relevant duly executed License and Use Exhibit
• All Purchase Order Forms are subject to acceptance by Whois API in writing.
• All service orders are non-cancelable, and all fees paid thereunder are non-refundable.
• Prices are subject to change at any time. Fees for the services and license grants provided per the terms herein do not include any taxes. Customer is responsible for any and all of its tax liability arising from the payment of any fees described herein, unless exempt therefrom.
• Payment of the total invoice amount, without offset or deduction, is due five (5) days from the invoice date or as otherwise approved in writing by Whois API. On any past due invoice, Whois API may charge (i) interest from the payment due date to the date of payment at 18% per annum, plus reasonable attorney fees and collection costs; or (ii) the maximum amount that is allowed under the applicable law, whichever is less. At any time, Whois API may change the terms of Customer’s credit, require financial data from Customer for verification of Customer’s creditworthiness, require a bank guarantee or other security, or suspend any outstanding Purchase Order Forms of Customer. Whois API may apply payments to any of Customer’s accounts. If Customer defaults on any payment under this Agreement, Whois API may reschedule or cancel any outstanding delivery and declare all outstanding invoices due and payable immediately. Unless otherwise provided by applicable law, any credit issued by Whois API to Customer in respect of any of Customer’s accounts will expire if unused for twelve (12) months following the date of issuance of such credit.
• Payment & Documentation of Taxes. All prices quoted are exclusive of all applicable sales, use and other related taxes. Whois API shall invoice Customer for all taxes applicable to payment of fees pursuant to this Agreement, itemized by type and jurisdiction, which Whois API is required by law to collect from Customer.
• Entity Size. Fees described herein or in any Purchase Order Form are based on, among other factors, the size of the licensing entity. Notwithstanding anything to the contrary within this Agreement or on any Purchase Order Form, upon any increase of the licensing entity employee count of more than twenty percent (20%), the licenses granted herein shall cease to be effective, and the parties shall mutually agree upon different pricing. For the avoidance of doubt, upon the merger with, purchase by, or purchase of another entity, all employee counts shall be aggregated. Should two or more entities with licenses to Whois API products merge or otherwise become structured in a way to be under common control, license fees shall continue to be due for such products under separately entered license agreement.

Invoice Disputes

Within thirty (30) days of the invoice date, Customer must notify Whois API in writing and provide sufficiently detailed support of any invoice dispute. If Customer fails to do so, Customer is deemed to have waived its right to dispute that invoice and the invoice will be deemed accurate and valid.

Trademarks

Either party may make general statements to confirm the existence of this Agreement. Whois API grants Customer the limited right to use Whois API’s logos and trademarks in any marketing and promotional materials associated with this Agreement. Customer grants Whois API the limited right to use Customer’s logos and trademarks in any marketing and promotional materials associated with this Agreement, including but not limited to on WHOS API’s website.

Indemnification

Customer agrees to defend, indemnify, and hold harmless WHOS API and its affiliates, and each of their officers, directors, employees, agents, representatives, information providers and licensors, from any claims, costs, losses, damages, judgments and expenses, including but not limited to reasonable attorney's fees, relating to or arising out of Customer’s use of the Data, the Services, or any Parsed Data; any breach of this Agreement by Customer; or any use of Whois API’s Data, Services, or Parsed Data by any third party via the use of Customer’s credentials, software, computers, or systems.

Warranties and Disclaimers

Customer understands and agrees that the Whois API Services are provided on an "as is" and "as available" basis. Customer expressly agrees that use of the Whois API Services is at Customer’s sole risk.

To the maximum extent permitted by applicable law, Whois API disclaims all warranties of any kind, either express or implied, including without limitation any implied warranties of merchantability, fitness for a particular purpose, and non-infringement.

Without limiting the foregoing, neither Whois API nor any of its affiliates, nor any of their officers, directors, licensors, employees or representatives represent or warrant: (a) that the Whois API Data, Services, or Parsed Data, will meet Customer’s requirements or be accurate, complete, reliable, or error free; (b) that the service will always be available or will be uninterrupted, accessible, timely, or secure; (c) that any defects will be corrected, or that the service will be free from viruses, "worms," "trojan horses" or other harmful properties; (d) the availability for sale, or the reliability or quality of any products discussed or referenced in the service; (e) any implied warranty arising from course of dealing or usage of trade; and (f) that the service is non-infringing.

Customer acknowledges and agrees that any content downloaded or otherwise obtained through the Services is done at Customer’s own discretion and risk and that Customer will be solely responsible for any damage to Customer’s computer system or loss of data that results from any use of the Services. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusions may not apply to Customer. Customer may also have other legal rights, which vary from jurisdiction to jurisdiction.

Limitation of Liability

In no event shall Whois API, its affiliates, it suppliers, or any of their officers, directors, employees, agents, representatives, information providers, or licensors be liable for any consequential, incidental, direct, indirect, special, punitive, or other damages (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss) arising out of the use or inability to use the Whois API Data, Services, or Parsed Data, even if Whois API has been advised of the possibility of such damages. Notwithstanding anything contained herein to the contrary, Whois API's cumulative liability to Customer for any and all claims relating to this Agreement and/or the use of the Whois API Data, Services, and Parsed Data shall not exceed the total amount paid by Customer to Whois API for the Services, during the three (3) month period preceding the claim.

Termination

Customer may terminate this Agreement by ceasing to use the Data, the Services, and the Whois API Properties. Notwithstanding anything contained herein and/or any License and Use Exhibit or Purchase Order Form to the contrary, Whois API reserves the right to terminate this Agreement (and/or Customer’s account) or discontinue the Services or any portion or feature thereof for any reason and at any time at its sole discretion. Upon any termination or notice of any discontinuance, Customer must immediately stop and thereafter desist from using the Services, including the Data and Whois API Properties, and any applicable portions or features thereof, and delete all Data and Whois API Properties in Customer’s possession or control (including but not limited to in Customer’s applications and on Customer’s computer systems and servers). Upon notice of termination, all amounts due for the then-current term of the contract become immediately due and payable, and all of Customer’s rights to any Data, Services, and Parsed Data will automatically lapse.

Breach of Agreement

This Agreement will terminate automatically if Customer fails to comply with the terms of this Agreement. Upon termination of this Agreement, all rights and licenses granted in the Agreement shall immediately terminate, and Customer will immediately delete any and all Whois API proprietary information, including but not limited to Services, Data, and the Whois API Properties, in Customer’s possession or control.

Governing Law & Dispute Resolution

This Agreement shall be governed by the laws of the State of California, without reference to its conflict of laws provisions. Any dispute or controversy arising under or in connection with this Agreement shall be settled by binding arbitration, conducted in accordance with the commercial rules of the American Arbitration Association then in effect. Judgment may be entered on the award of the arbitrator in any court having jurisdiction. Any determination by such arbitrator shall be consistent with the provisions of this Agreement as set forth herein. In any litigation involving this Agreement or the use of Whois API’s Services, the prevailing party will be entitled to recover reasonable attorneys' fees.

Entire Agreement; No Third-party Beneficiary; Severability

This Agreement constitutes the entire agreement between Customer and Whois API, regarding the Data, Services, and Parsed Data noted herein and supersedes any and all prior or contemporaneous representation, understanding, agreement or communication between Customer and Whois API regarding the same. This Agreement may not be amended, varied or supplemented except by a writing executed by both Customer and Whois API that specifically references this Agreement and the provision(s) to be amended, varied or supplemented. No representation or statement not contained in this Agreement shall be binding upon Whois API as a warranty or otherwise. This Agreement does not provide any third party with any remedy, claim, liability, reimbursement, cause of action or other right or privilege.

Notwithstanding anything to the contrary herein, Whois API may amend this Agreement at any time and at its sole discretion. Should any such amendment materially affect rights of Customer, Whois API shall make conspicuous notice of such amendment via the website and/or e-mail. Customer’s continue use of the Services after such amendment shall signify Customer’s acknowledgement and acceptance thereof.

Confidentiality

If Customer receives from Whois API any information marked “Confidential” and/or “Proprietary,” then Customer agrees not to use such information except in the performance of this Agreement, and to treat such information in the same manner as it treats its own confidential information. The obligation to keep information confidential shall not apply to any such information that has been disclosed in publicly available sources; is, through no fault of Customer, disclosed in publicly available source; is in the rightful possession of Customer without an obligation of confidentiality; or is required to be disclosed by operation of law, provided the Customer provides Whois API with prior written notice of said required disclosure; thereby, affording Whois API an opportunity to contest said disclosure and protect its Confidential and/or Proprietary information. Except as otherwise provided herein, the obligation not to disclose shall be for a period of three (3) years after the disclosure of the Confidential Information.

Survival

Any provisions that by their nature should survive the termination of this Agreement (including all Purchase Order Forms), for any reason whatsoever, shall survive the expiration or earlier termination of this Agreement (including all Purchase Order Forms). Without in any way limiting the foregoing, the following sections shall survive the termination of this Agreement for any reason: 2, 6 – 14, 16 – 20, 22, and 23.

Severability

Customer hereby agrees that in the event that any one or more of the provisions of this Agreement (including in a Purchase Order Form) shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remainder of the Agreement shall not in any way be affected or impaired thereby. Moreover, Customer further agrees that if any one or more of the provisions contained in this Agreement shall be held to be excessively broad as to duration, distance, activity or subject, such provisions shall be construed by limiting and reducing them so as to be enforceable to the maximum extent allowed by applicable law.

Headings

All headings are for ease of reference only and will not affect the construction or interpretation of this Agreement.

No Assignment

Customer may not assign this Agreement (including any applicable Purchase Order Form) without the prior written consent of Whois API. This Agreement is binding on all successors and assigns. Whois API may assign this Agreement without the prior written consent of Customer.

Compliance with Laws

The parties shall observe and comply with all applicable laws, rules and regulations applicable to the performance of their respective obligations under this Agreement including, but not limited to, anti-corruption laws (such as the U.S. Foreign Corrupt Practices Act) and regulations in respect of import or export of Products.

Independent Contractors

The relationship of the parties will be that of independent contractors and the parties agree that this Agreement does not establish a joint venture, agency relationship, or partnership. Nothing contained in this Agreement will be construed to establish a relationship that would allow a party to make representations or warranties on behalf of another except as expressly set forth herein.

Export Control

The Data, Services, and Parsed Data are subject to the export control laws and regulations of federal statute, as amended. Customer may not export or re-export the Data, Services, or Parsed Data, directly or indirectly, either to (i) any countries that are subject to U.S.A export restrictions (currently including, but not necessarily limited to, Cuba, the Federal Republic of Yugoslavia (Serbia and Montenegro), Iran, Iraq, Libya, North Korea, South Africa (military and police entities), Syria, and Vietnam); (ii) any third-party who you know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons; or (iii) any third-party who has been prohibited from participating in the U.S.A. export transactions by any federal agency.

Force Majeure

Whois API is not liable for failure to fulfill its obligations under this Agreement due to causes beyond its reasonable control, including but not limited to acts of nature, acts or omissions of the Customer, operational disruptions, man-made or natural disasters, epidemic medical crises, power outages, hackers, viruses, materials shortages, strikes, criminal acts, delays in delivery or transportation, or inability to obtain labor or materials through its regular sources.

Additional Service Terms

Portions of the Service may be subject to additional terms in addition to this Agreement. Your use and continued use of said Services shall signify your agreement to said additional terms.

Service Levels

The Service uptime has historically been 99.9% year over year, and the uptime target continues to be to exceed 99.9%. However, absent separate written agreement to the contrary, Whois API does not guarantee any minimum uptime, and shall have no obligation with respect to uptime other than to restore any outages in a reasonable timeframe, in its sole discretion.

Service response times can vary, and typical requests may take upwards of several seconds to process. Absent separate written agreement to the contrary, Whois API does not guarantee response times.

EULA

Customer shall have in place with each End User that has access to, or is otherwise provided with Data, Parsed Data, or Results, as allowed per a duly executed License and Use Exhibit, an End User License Agreement (“EULA”) that is no less protective of the rights and property of Whois API than the terms of this Agreement. At a minimum, such EULA shall contain provisions limiting Whois API’s liability by the maximum extent allowable by law; restricts End User’s use of the Data, Parsed Data, or Results to internal, non-commercial use only; and restricts against unauthorized disassembly, decompiling, reverse engineering, and copying.

Treatment of Personal Data

• Privacy Policy. Whois API’s Privacy Policy, available at https://main.whoisxmlapi.com/privacy-policy, is hereby incorporated into this Agreement by reference.
• GDPR Compliance. To the extent that Customer handles or otherwise has access to Personal Data (as that term is defined in Regulation (EU) 2016/679, generally known as the General Data Protection Regulation or GDPR), and that Whois API is a Processor of that Personal Data for Customer (with Customer as Controller), Customer agrees to execute a separate data processing addendum with Whois API which governs such Processing of Personal Data. Failure to adhere to the foregoing shall be a material breach of these terms. A copy of these terms can be found at https://www.dropbox.com/s/b0gdmvpqrptn4ge/Data%20Processing%20Addendum_2019.11.21.docx?dl=0 (the “GDPR Policy”). To the extent that the GDPR Policy conflicts with other terms in this Agreement, including the Privacy Policy, the GDPR Policy will control. Notwithstanding Customer’s failure to execute the aforementioned data processing addendum, Whois API’s rights and your obligations under the data processing addendum are hereby incorporated by reference into this Agreement. The terms “Processor”, “Controller”, and “Processing” shall have the meanings prescribed to them within the GDPR.
• Personal Data. Customer is solely responsible for Personal Data, the personal data of each of its users, and any personal data that it accesses or comes across in connection with its use of the Services, Data, and/or Parsed Data. Customer hereby represents and warrants that said personal data and its access, use, and/or disclosure thereof are in accordance with this Agreement (including the Privacy Policy and GDPR Policy) and does not violate any third-party rights or any laws, regulations, or obligations imposed by any third-party. In addition, Customer hereby represents and warrants that it has obtained or will obtain and maintain all necessary consents, approvals, and waivers to permit it to access, use, and/or disclose such personal data. Whois API will reasonably cooperate with you in facilitating data subject requests and rights required by applicable law. Customer will provide immediate notification to Whois API if personal data was, or Customer reasonably personal data has been, acquired by an unauthorized person (a “Breach”). Customer will reasonably cooperate with Whois API in the event of a Breach, including sharing information relevant to the Breach.
• No Backup. Whois API has no obligation to backup any personal data and the personal data Whois API stores may be deleted at any time.
• Personal Data License Grant. To the extent that Whois API is a processor of personal data (or otherwise manipulates or handles personal data) on behalf of Customer, Customer hereby grants to Whois API during the term of the Agreement, an irrevocable, perpetual, nonexclusive, royalty-free and fully paid, worldwide, transferable, sublicensable license to the personal data. To the extent that an agreement between Whois API and any of its third-party providers requires Whois API to grant a license in said personal data to such third-party provider, the scope of the license set forth in the foregoing sentence shall be deemed to include the rights necessary to enable Whois API to grant such license.

Contact Information

If you have any questions, concerns, or complaints about our Services or anything under this Agreement or other Agreements with us, please contact us.