Proposed Revision to Whois Terms of Use [Archived]

Proposed Revision

Based on the review of the ARIN Whois Service as well as experience with the community and users of the ARIN Whois Service, ARIN has constructed a new ARIN Whois Terms of Use (“TOU”).

Following community consultation and finalization, entities requesting Internet number resource WHOIS information from ARIN will be doing so as governed by this new TOU. There are notable and substantive changes with this new version, and ARIN invites the community to review this new version of the TOU. Information about this consultation is available on the ARIN website.

The community’s constructive thoughts on this new TOU are welcome during this 30-day review period.

Please provide comments to arin-consult@arin.net. You can subscribe to this mailing list at:
http://lists.arin.net/mailman/listinfo/arin-consult.

Discussion on arin-consult@arin.net will close on 28 March 2014.

If you have any questions, please contact us at info@arin.net.

EFFECTIVE: ____, 2014

Please read the following Whois Service Terms of Use (these “Terms”) carefully because, by accessing and using the Whois database available on ARIN.net (“Whois Service”), you accept and agree to them. These Terms form an agreement between you and American Registry for Internet Numbers (“ARIN”). By using the Whois Service, you represent to us that you are legally competent to enter into this agreement.

These Terms apply to any use of the Whois Service, including compilation, repackaging, dissemination or other use of ARIN Whois data.

A. Use of the Whois Service

The Whois Service is to be used for Internet operational or technical research purposes, including:

• Evaluating routing policies or assuring compliance with routing policies;
• Facilitating operational coordination between network operators (e.g., network problem resolution, outage notification, etc.);
• Providing reversed DNS and ENUM delegations;
• For use in conjunction with the normal course of your business in providing network and Internet services so long as such use does not republish, resell, or make publicly available data contained within the ARIN Whois database;
• Ensuring the uniqueness of Internet number resource usage;
• Conducting scientific research into network operations;
• Automated processing of abuse requests, research and tracking of abuse issues in connection with the maintenance of Whois data, and efforts to maintain accurate SWIP records; and
• Identifying resources used or suspected of being used for unlawful or harassing purposes.

You are specifically prohibited from using the Whois Service (i) as part of a commercial service or product, including the solicitation and servicing of your or your employer’s customers, even if additional data not derived from the Whois Service is incorporated or (ii) for advertising, direct marketing, marketing research or similar purposes.

If you provide access to the Whois Service to third parties in accordance with these Terms, you must provide the data subject to terms that are at least as restrictive as the provisions of these Terms. You shall be responsible for any use of the Whois Service by such third party as if you had engaged in the activity yourself.

Unless ARIN provides specific prior written authorization, no other use of the Whois Service other than as expressly described in these Terms is implied or permitted. Please contact info@arin.net if you would like to discuss possible uses of the Whois Service that are not described in these Terms.

B. Additional Terms

1. Changes

The Effective Date of these Terms is set forth at the top of this webpage. We do not intend to change these Terms very often but reserve the right to do so. We will not make changes that have retroactive effect unless we are legally required to do so. Whenever possible, we will notify you in advance of changes to these Terms. Unless otherwise noted on this webpage, the Terms, as changed, will become effective thirty (30) days after they are initially posted.

2. Supplemental Terms

Certain services offered on or through ARIN.net may be governed by other terms and conditions presented in conjunction with them. You must agree to the other terms before using such services. These Terms and any other terms will apply equally. If any additional term is irrevocably inconsistent with any provision of these Terms, the other term will prevail.

3. Privacy

Please make sure that you carefully read our Privacy Statement available at https://www.arin.net/privacy.html to learn about the information that ARIN collects and how we process it.

4. Disclaimer of Warranties & Limitations of Liability

ARIN warrants that it has validly entered into these Terms and has the legal power to do so. You warrant that you have validly entered into these Terms and have the legal power to do so.

EXCEPT AS EXPRESSLY PROVIDED ABOVE, THE Whois SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. ARIN specifically disclaims all warranties and conditions of any kind, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title, non-infringement, freedom from defects, uninterrupted use and all warranties implied from any course of dealing or usage of trade. ARIN does not warrant that (a) the Whois Service will meet your requirements, (b) operation of the Whois Service will be uninterrupted or virus- or error-free or (c) errors will be corrected. Any oral or written advice provided by ARIN or its authorized agents does not and will not create any warranty. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES WHICH MEANS THAT SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

• YOU AGREE THAT IN NO EVENT WILL ARIN BE LIABLE (Y) FOR DAMAGES OF ANY KIND, INCLUDING DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS OR BUSINESS INTERRUPTION), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER ARISING IN ANY WAY IN CONNECTION WITH THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF ARIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR (Z) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE WHOIS SERVICE. The foregoing disclaimer of liability will not apply to the extent prohibited by applicable law.
• You acknowledge and agree that the above limitations of liability together with the other provisions in these Terms that limit liability are essential terms and that ARIN would not be willing to grant you the rights set forth in these Terms but for your agreement to the above limitations of liability.

5. Indemnification

You agree to indemnify and defend ARIN and its directors, officers, employees and agents from and against all losses, liabilities, actual or pending claims, actions, damages, expenses, costs of defense and reasonable attorneys’ fees brought against ARIN by any third party arising from your use of Whois Service or any violation of these Terms, the rights of a third party or applicable law. ARIN reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification hereunder. In any event, no settlement that affects the rights or obligations of ARIN may be made without ARIN’s prior written approval.

6. Dispute Resolution

These Terms are governed by and construed and enforced in accordance with the internal laws of the Commonwealth of Virginia, without giving effect to the principles of conflicts of laws of such state, and are binding upon the parties hereto in the United States and worldwide. You and ARIN agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the interpretation or construction of these Terms.

YOU AND ARIN AGREE THAT ALL CLAIMS WILL BE RESOLVED BY BINDING ARBITRATION IN THE MANNER SPECIFIED IN THIS SECTION [6] AND THAT YOU AND ARIN WAIVE ANY RIGHT TO BRING SUCH CLAIMS BEFORE ANY COURT OF LAW.

YOU AND ARIN FURTHER AGREE THAT EACH MAY BRING claims against the other only on an individual basis and not as a plaintiff or clASS member in any PURPORTED class or representative action or proceeding. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, ALSO MAY BE UNAVAILABLE OR LIMITED IN ARBITRATION.

Any dispute between you and ARIN and its agents, employees, officers, directors, principals, successors, assigns, subsidiaries or affiliates (collectively for purposes of this Section [6], “ARIN Parties”) arising from or relating to these Terms and their interpretation or the breach, termination or validity thereof, the relationships which result from these Terms, including disputes about the validity, scope or enforceability of this agreement to arbitration (collectively, “Covered Disputes”) will be settled by binding arbitration in the U.S. State of Virginia administered by the American Arbitration Association (“AAA”) in accordance with its International Arbitration Rules in effect on the date thereof. Prior to initiating any arbitration, the initiating party will give the other party at least 60 days’ advanced written notice of its intent to file for arbitration. ARIN will provide such notice by mail or e-mail using the contact information on file with ARIN and you must provide such notice by mail to ARIN, Attn: Legal Department, 3635 Concorde Parkway, Suite 200, Chantilly, Virginia 20151.

Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. If, however, you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, ARIN will pay as much of the filing, administration and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive for you. If the arbitrator determines the claim(s) you assert in the arbitration are frivolous, you agree to reimburse ARIN for all fees associated with the arbitration that ARIN paid on your behalf, which you otherwise would be obligated to pay under the AAA’s rules.

A single arbitrator will be selected in accordance with the AAA Commercial Arbitration Rules. The arbitration shall be conducted in the English language. The arbitrator will have the power to grant whatever relief would be available in court under law or in equity and any award of the arbitrator will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction. The arbitrator will not, however, have the power to award punitive or exemplary damages, the right to which each party hereby waives. The arbitrator will apply applicable law and the provisions of these Terms and the failure to do so will be deemed an excess of arbitral authority and grounds for judicial review. The arbitrator’s decision must be with written explanation and remain confidential. ARIN and you agree that any Covered Dispute will be submitted to arbitration on an individual basis only. Neither ARIN nor you are entitled to arbitrate any Covered Dispute as a class, representative or private-attorney action and the arbitrator will have no authority to proceed on a class, representative or private attorney general basis. If any provision of the agreement to arbitrate in this Section [6] is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced (but in no case will there be a class, representative or private attorney general arbitration). Regardless of any statute or law to the contrary, notice on any claim arising from or related to these Terms must be made within one (1) year after such claim arose or be forever barred. For purposes of this Section [6], these Terms and related transactions will be subject to and governed by the Federal Arbitration Act, 9 U.S.C. sec. 1-16 (FAA).

Please Note: By agreeing to these Terms, you explicitly agree that any claims or actions that you may otherwise have against ARIN under the laws of any jurisdiction outside the United States are hereby waived, including without limitation, any claims or actions under the laws of your own country, and that your sole location and applicable law for any disputes is in the United States according to the terms of this Section 6.

7. Termination

These Terms automatically terminate when you fail to comply with any term or condition of them. ARIN may terminate or modify your access to Whois Service, with or without notice to you, at any time for any reason. For example, access to Whois Service may be denied without notice if ARIN believes that you are not at least age 13.

8. Electronic Contracting and Notice

Your affirmative act of using the Whois Service constitutes your electronic signature to these Terms (which include our Privacy Statement), and your consent to enter into agreements with ARIN electronically.

9. Miscellaneous

• These Terms, together with our Privacy Statement, contain the entire understanding by and between ARIN and you with respect to the matters contained herein and there are no promises, covenants or undertakings other than those expressly set forth herein.
• These Terms (i) inure to the benefit of and will be binding upon ARIN’s and you and your successors and assigns, respectively; and (ii) may be assigned by ARIN but you may not assign them without the prior express written consent of ARIN.
• If any provision of these Terms is or becomes unenforceable or invalid, the remaining provisions will continue with the same effect as if such unenforceable or invalid provision had not been inserted herein.
• If ARIN fails or you fail to perform any term hereof and the other party does not enforce such term, the failure to enforce on any occasion will not constitute a waiver of any term and will not prevent enforcement on any other occasion.
• Nothing contained in these Terms will be deemed to constitute ARIN or you as the agent or representative of the other or as joint venturers or partners.
• If ARIN is or you are prevented from performing or unable to perform any obligation under these Terms due to any cause beyond the reasonable control of the party invoking this provision, the affected party’s performance will be extended for the period of delay or inability to perform due to such occurrence.