This Agreement (“Agreement”) is between AfroDigital and the person (individual or legal person) who signs AfroDigital’s order form (“Order”) incorporating this Agreement by reference (“the Customer”).
Definitions and interpretation in the Agreement:
This Agreement governs the Customer’s use of AfroDigital’s Web Hosting and/or related services.
Subject to the terms of this Agreement, and contingent on the Customer’s satisfaction of AfroDigital’s credit approval requirements, AfroDigital agrees to provide the Customer with web hosting and / or related services selected by the Customer from AfroDigital’s then published list of services (“Services”) and as described in the Order, for the fees stated in the Order.
The Services to be provided initially to the Customer shall be as selected in the Order and thereafter as established through correspondence between the Customer and AfroDigital.
Shared hosting
This Clause applies where AfroDigital agrees to make available to the Customer shared hosting services.
AfroDigital will make available to the Customer hosting capacity on a shared server meeting the specification set out in the Order.
AfroDigital will make available to the Customer the ability to access, update or amend the Hosted Materials by FTP or similar means.
For the avoidance of doubt, the Customer will not have administration rights in relation to any shared server, and AfroDigital may refuse any request to change the configuration of a shared server at its sole discretion.
Virtual Private Server and Dedicated Server hosting
This Clause applies where AfroDigital agrees to make available to the Customer a virtual private server or a dedicated server.
AfroDigital will make available for the exclusive use of the Customer a virtual private server or dedicated server meeting the specification set out in the Order, and will (upon request) grant to the Customer administration rights with respect to that server.
The Customer acknowledges that AfroDigital will not provide support in connection with the administration of any virtual private server or dedicated server, and the Customer warrants that it has all necessary expertise to configure, manage and keep the virtual private server or dedicated server secure at all times.
The Customer will not configure, or allow any other person to configure, a virtual private server or dedicated server in any way contrary to the guidelines published on the AfroDigital website from time to time.
AfroDigital may from time to time require that the Customer apply software and/or hardware upgrades to the virtual private server or dedicated server.
For the avoidance of doubt, virtual private servers or dedicated servers made available under the Agreement will remain the property of AfroDigital at all times.
Email services
This Clause applies where AfroDigital agrees to provide to the Customer email transmission, storage and/or management services.
AfroDigital will upon request provide POP3/IMAP and webmail email services to the Customer.
All mailboxes will be protected by anti-spam and anti-virus software.
If the Customer or a mailbox exceeds the relevant storage limit set out on the Order / notified by AfroDigital to the Customer from time to time, AfroDigital may delete stored emails to bring the Customer or mailbox within the storage limit.
Charges payable in respect of email services will be as specified on the Registration Form / as agreed between AfroDigital and the Customer.
Domain name registration
Subject to the payment of the applicable Charges in advance, AfroDigital will attempt to register domain names that the Customer orders using the interface on the AfroDigital website, but does not warrant that it will be able to do so. Domain name orders will be subject to the provisions of this Clause.
Charges in respect of domain name registrations are non-refundable.
Domain name registrations will be subject to periodic renewal fees and transfer fees as stated on the AfroDigital website from time to time.
The Customer warrants that the information submitted for the purposes of a domain name registration is current, accurate and complete, that it has the legal right to apply for and use the domain name, and that its use of the domain name will not infringe any person’s Intellectual Property Rights or other legal rights.
The Customer undertakes to keep the information required for the purposes of a domain name registration up-to-date (which changes may be subject to additional Charges).
The Customer acknowledges that certain information submitted for the purposes of a domain name registration will be published on the internet via “WHOIS” services.
AfroDigital may reject in its sole discretion any request to register a particular domain name.
AfroDigital will not offer any advice in relation to any actual or potential domain name dispute, and will have no liability in respect of the suspension or loss of a domain name by the Customer as a result of any domain name arbitration procedure or court proceedings.
AfroDigital will have no responsibility for the Customer’s use or retention of a domain name once registered, and it will be the Customer’s responsibility to ensure that domain names are renewed and that applicable renewal charges are paid.
The Customer acknowledges that domain names will be subject to the rules and policies from time to time of the relevant registry or registration authority, and the Customer agrees to abide by all such rules and policies.
Charges payable in respect of domain name services will be as specified on the Order.
SSL certificates
Subject to the payment of the applicable Charges in advance, AfroDigital will attempt to obtain SSL certificates that the Customer orders. SSL certificate orders will be subject to the provisions of this Clause.
Charges in respect of SSL certificates are non-refundable.
SSL certificates will be subject to periodic fees as stated on AfroDigital website from time to time.
The Customer warrants that the information submitted for the purposes of an SSL certificate is current, accurate and complete.
The Customer undertakes to keep the information required for the purposes of an SSL certificate up-to-date.
Charges payable in respect of SSL certificates will be as agreed between AfroDigital and the Customer.
Support
AfroDigital will make available, on Business Days between the hours of 9.00 am and 6.00 pm (London time), a responsive e-mail ticket support facility for the purpose of providing support to the Customer (and AfroDigital’s other customers). AfroDigital will use reasonable endeavours to respond to requests for support within four hours.
AfroDigital will use reasonable endeavours to ensure that a member of its support staff can be reached by support ticket outside Business Hours in the case of an emergency.
The Customer must make all requests for support Services through the support ticket system, and all such requests must be made from the Customer’s registered email address.
AfroDigital will use reasonable endeavours to resolve issues raised by the Customer promptly.
General support provisions
The Customer’s utilisation of Resources must not exceed the limits set out on the Order. If the Customer’s utilisation of Resources exceeds those limits, the parties will endeavour to agree a variation to the Agreement. If the parties cannot agree such a variation within a reasonable period (being not more than 14 days) following notice from AfroDigital to the Customer requesting such variation, and Resource utilisation continues to exceed those limits, the Customer will be deemed to be in material breach of the Agreement.
AfroDigital may suspend some or all of the Services in order to carry out scheduled or emergency maintenance or repairs. Subject to this, AfroDigital will use reasonable endeavours to maintain the Services at the availability level specified on the Order.
The initial term of the Agreement shall begin on the date that AfroDigital generates an order confirmation e-mail message to the Customer announcing the activation of the Customer’s account (the “Service Commencement Date”) and shall continue for the number of months stated in the Order (the “Initial Term”).
However, no service shall commence unless and until AfroDigital receives and accepts a completed Order from the Customer, plus payment in full for Services to be rendered during the Initial Term and any set up charges.
AfroDigital reserves the right to reject any submitted Order for any or no reason prior to written acceptance thereof by AfroDigital.
Upon expiration of the Initial Term, this Agreement shall automatically renew for successive terms of the same length as the Initial Term (“Renewal Term”) unless AfroDigital or the Customer provides the other with written notice of non-renewal at least fourteen (14) days prior to the expiration of the Initial Term or then current Renewal Term, as applicable. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the “Term.”
Fees
All fees for Services rendered or provided to the Customer shall be in accordance with AfroDigital’s prices.
The Customer’s billing cycle shall be monthly, quarterly, annually or biennially as indicated on the Order, beginning on the Service Commencement Date. AfroDigital may require payment for the first billing cycle before beginning service. Fees for the Renewal Term are payable seven (7) days in advance of each billing cycle.
If the Order provides for credit / debit card billing, the Customer authorises AfroDigital to bill subsequent fees to the credit / debit card before, on or after the first day of each successive billing cycle during the Term of this Agreement otherwise AfroDigital will invoice Customer via electronic mail to the Primary Customer Contact listed on the Order.
Payments must be made in Great British Pounds. The Customer is responsible for providing AfroDigital with changes to billing information (such as credit card expiration, change in billing address).
Payment in full of such invoiced amount is due upon receipt of the invoice. Should payment in full of any invoice not be received, AfroDigital may charge interest on overdue amounts at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law. In addition AfroDigital may terminate this Agreement and / or suspend Services without notice if payment for Services is overdue.
Fees not disputed within fourteen (14) days of due date are conclusively deemed accurate. The Customer agrees to pay AfroDigital’s reasonable reinstatement fee following a suspension of service for non-payment, and to pay AfroDigital’s reasonable costs of collection of overdue amounts, including collection agency fees, legal fees and court costs.
Fee Increases
AfroDigital may amend the Services and / or the fees it charges for Services by giving at least fourteen (14) days notice to the Customer, and if the Customer does not give a notice of non-renewal as provided in Section 2 above, the Customer shall be deemed to have accepted the new fee and for any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term).
Taxes
At AfroDigital’s request the Customer shall remit to AfroDigital all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on AfroDigital) regardless of whether AfroDigital fails to collect the tax at the time the related services are provided.
Early Termination
The Customer acknowledges that the amount of the fee for Services is based on the Customer’s agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event AfroDigital terminates the Agreement for the Customer’s breach of the Agreement in accordance with Section 9 (Termination), or the Customer terminates the service other than in accordance with Section 9 (Termination) for AfroDigital’s breach, the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due seven (7) business days following termination of the Agreement.
The Customer agrees to use the services in compliance with applicable law and AfroDigital’s Acceptable Use Policy (the “AUP”), which is hereby incorporated by reference in this Agreement.
The Customer agrees that AfroDigital may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on the Customer’s use of the Services.
Amendments to the AUP are effective on the earlier of AfroDigital’s notice to the Customer that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment.
The Customer agrees to cooperate with AfroDigital’s reasonable investigation of any suspected violation of the AUP. In the event of a dispute between AfroDigital and the Customer regarding the interpretation of the AUP, AfroDigital’s commercially reasonable interpretation of the AUP shall govern.
The Customer represents and warrants to AfroDigital that the information he, she or it has provided and will provide to AfroDigital for purposes of establishing and maintaining the service is accurate.
If the Customer is an individual, the Customer represents and warrants to AfroDigital that he or she is at least 18 years of age, and AfroDigital reserves the right to ask for proof of age (in the form of a valid passport or photo driving licence) and to carry out checks to verify the information provided.
AfroDigital may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to the Customer’s account until the Customer has provided a written notice changing the Primary Customer Contract.
The Customer agrees to indemnify and hold harmless AfroDigital, AfroDigital’s affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of the Customer’s services in violation of applicable law or the AUP by the Customer or any person using the Customer’s log on information, regardless of whether such person has been authorised to use the services by the Customer.
The Customer agrees to use all AfroDigital’s services and any information obtained through or from AfroDigital at customer’s own risk.
AfroDigital does not warrant or represent that the services will be uninterrupted, error-free, or completely secure. To the extent permitted by applicable law AfroDigital disclaims any and all warranties including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. To the extent permitted by applicable law, all services are provided on an “as is” basis.
Neither party shall be liable to the other for any lost profits, or any indirect, special, incidental, consequential or punitive loss or damage of any kind, or for damages that could have been avoided by the use of reasonable diligence, arising in connection with the agreement, even if the party has been advised or should be aware of the possibility of such damages.
Notwithstanding anything else in the agreement to the contrary, the maximum aggregate liability of AfroDigital and any of its employees, agents or affiliates, under any theory of law (including breach of contract, tort, strict liability, and infringement) shall be a payment of money not to exceed the amount payable by the customer for three months of service.
Suspension of Service
The Customer agrees that AfroDigital may suspend services to the Customer without notice and without liability if: (i) AfroDigital reasonably believes that the services are being used in violation of any Terms and Conditions or the AUP; (ii) the Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP; (iii) AfroDigital reasonably believes that the suspension of service is necessary to protect its network or its other customers, or (iv) as requested by a law enforcement or regulatory agency. The Customer shall pay AfroDigital’s reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.
AfroDigital operates a Banned Services Policy in the instance of a chargeback or misuse of a AfroDigital product or service.
Termination
The Agreement may be terminated by either party, without cause, by giving the other party fourteen (14) days prior written notice.
The Agreement may be terminated by the Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if AfroDigital fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of the Customer’s written notice describing the failure in reasonable detail.
The Agreement may be terminated by AfroDigital prior to the expiration of the Initial Term or any Renewal Term without liability as follows:
Either party may terminate this agreement upon ten (10) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.
If a domain name is transferred or cancelled within the first 2 years of registration, an administration fee of fourteen pounds ninety-nine pence (£14.99) will be charged. The transfer or change of handle / tags will not take place until payment has been received in full.
The Customer agrees that AfroDigital may, without notice to the Customer
(i) report to the appropriate authorities any conduct by the Customer or any of the Customer’s customers or end users that AfroDigital believes violates applicable law, and
(ii) provide any information that it has about the Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.
The Customer agrees to maintain a current copy of all content hosted by AfroDigital notwithstanding any agreement by AfroDigital to provide back up services.
Upgrades and other changes in AfroDigital’s network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of the Customer’s hosted content and/or applications. AfroDigital reserves the right to change its network in its commercially reasonable discretion, and AfroDigital shall not be liable for any resulting harm to the Customer.
Notices to AfroDigital under the Agreement shall be given via electronic mail to the e-mail address posted for customer support on http://www.afrodigital.uk/clients. Notices to the Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. The Customer may change his, her or its notice address by a notice given in accordance with this Section.
AfroDigital shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond AfroDigital’s control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organised labor action, theft, destruction, terrorist activity, acts of God or other events of a magnitude or type for which precautions are not generally taken in the industry.
The Agreement shall be governed by the laws of England and all claims concerning this Agreement shall be brought exclusively in English courts located in England. The parties hereby consent to submit to the jurisdiction of such courts and waive any personal jurisdiction or venue defences concerning said forum. The Customer is deemed to have agreed to this Agreement, when commencing use of any of AfroDigital ‘s services.
Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither party may use the other party’s name or trade mark without the other party’s prior written consent. The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer / employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority.
AfroDigital reserves the right to amend this Agreement and the AUP and the Customer shall be bound by any such amendments. The Customer shall have the obligation to periodically visit AfroDigital’s website http://www.afrodigital.uk to review the AUP and make certain the Customer is in full compliance therewith. In the event of any inconsistencies between this Agreement and the AUP, the terms of the AUP shall govern.
The terms on the Customer’s purchase order or other business forms are not binding on AfroDigital unless they are expressly incorporated into a formal written agreement signed by both parties. A party’s failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of the Agreement. A party’s waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not.
The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties. The following provisions will survive expiration or termination of the Agreement: fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement.
There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement. The Customer may not transfer the Agreement without AfroDigital’s prior written consent. AfroDigital’s approval for assignment is contingent on the assignee meeting AfroDigital’s credit approval criteria. AfroDigital may assign the Agreement in whole or in part.
This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replace any prior understanding or communication, written or oral.
The Customer is deemed to have agreed to this Agreement when commencing use of any of AfroDigital’s Services.