Acting on a tip from a WebHostingTalk forum, Email Battles decided to troll the Terms of Service agreements (TOS) of six Internet domain name registrars, looking for an atrocious clause similar to the $5.00 Per Spam charge tucked in Qwest’s High Speed Internet Subscriber Agreement. Chosen for either their eminence or notoriety in the user and reseller community, the six checkees are ICANN-accredited registrars enom, GKG, Go Daddy, ItsYourDomain, MarkMonitor and Tucows.

We found that all six registrars include some variation of this statement in Tucows’ Registration Agreement for resellers:

Right to Suspend and Disable. We shall have the right, at our sole discretion and without liability to you or any of your Contacts, suspend or cancel your domain name and to reveal Registrant and Contact Whois Information in certain circumstances, including but not limited to the following:
  • when required by law;
  • in the good faith belief that disclosure is necessary to further determination of an alleged breach of a law;
  • to comply with a legal process served upon Tucows;
  • to resolve any and all third party claims including but not limited to ICANN’s or a Registry’s dispute resolution policy;
  • to avoid financial loss or legal liability;
  • if we believe that you or one of your Contacts is using the Whois Privacy Service to conceal involvement with illegal, illicit, objectionable or harmful activities; or
  • to transmit spam, viruses, worms or other harmful computer programs.

In other words, “Fix it or we shut you down.”

How could anyone disagree with that? enom, GKG, Go Daddy, ItsYourDomain and MarkMonitor concur. But then one registrar takes a giant leap forward, saying, in effect, “I’m not just shutting you down, I’m fining you to boot.”

Only Go Daddy contained a Per Spam charge. An excerpt from Universal Terms of Service for Go Daddy Software and Services:

You agree Go Daddy may immediately terminate any account which it believes, in its sole discretion, is transmitting or is otherwise connected with any spam or other unsolicited bulk email. In addition, if actual damages cannot be reasonably calculated then You agree to pay Go Daddy liquidated damages of $1 for each piece of spam or unsolicited bulk email transmitted from or otherwise connected with Your account, otherwise You agree to pay Go Daddy ’s actual damages. You acknowledge You have read and understand and agree to be bound by the terms and conditions of Go Daddy s Anti-spam Policy, available here . Such terms and conditions are applicable to the use of all Go Daddy Software and Services and are incorporated herein.

Let’s see… one dollar times oh… say… a million spams, equals… well… A real big number.

Sure. You’re thinking you’re the sharpest admin on earth. No spam’s coming off your network. No hacker has a chance to find a vulnerability and set up a spam zombie, right? You’re on top of every line of code for every machine on your IP block, from IIS to Apache… SSL to SpamAssassin… phpBB to AWStats. Right?

Face it friend, a clause like that has the potential to take down anybody who signed on to the agreement. Check the forums and you’ll see plenty of admins who just don’t get it. Even some who aren’t suffering from a Superman complex think the vendor doesn’t really mean it… it doesn’t apply to me… it won’t pass judicial review… they’ll never use it against me…

Tell it to the judge. The vendor’s clause doesn’t need to pass judicial review to cow you or cost you thousands of dollars in legal fees.

Signing contracts with blue-sky liability clauses like that is just plain dumb… Especially when you have tons of alternatives at your fingertips. If you think you’re rich enough to stand up for all these unfunded liabilities, talk to your attorney, accountant, banker and insurance expert. Hand ‘em a copy of this article before you pop the question.

Let us know what they have to say… We already know, don’t we?

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