Universal Terms and Conditions
- This Universal Agreement (the "Agreement") is entered into by and between Hosted.com LLC, a Delaware limited liability company ("Hosted.com"), and you. By viewing or using this Domains.Africa website (“Site”), ordering, installing, connecting or making use of any of Hosted.com’s goods, products or services collectively “Services”), or by indicating your acceptance of this Agreement in any other way, you agree to be bound by this Agreement and that you have read, understand and acknowledge it’s terms and conditions. You also agree that you have read, understand, acknowledge and agree to be bound by all of Hosted.com’s policies and product and service agreements, which are referred to and incorporated in this Agreement by reference.
- You agree that you are at least eighteen years old and are eligible to enter into this Agreement. You agree to be bound by the terms of this Agreement for transactions entered into on your behalf by anyone acting as your agent, and transactions entered into by anyone who uses your account that you set up with Hosted.com, whether or not such transactions were entered into on your behalf and whether or not entered into with or without your knowledge. If you are acting on behalf of a legal entity such as, but not limited to, a company or corporation, you warrant that you are legally authorized to bind such legal entity. If you are found to not be so authorized, you agree to be personally liable for all obligations of such legal entity, including payment of any fees due to Hosted.com.
- If you do not agree to any of the terms and conditions contained in this Agreement or any other agreement listed on the Site or any policy or policies of Hosted.com, do not view or use the Site or any of the Services.
- Any reference to “our”, “we”, “us”, “ourselves”, www.domains.africa, or “domains.africa”, shall mean Hosted.com. Any reference to “customer”, “you”, “your”, “user” or “yourself” shall mean any person or legal entity that views or uses the Site or any of the Services, and shall include such person’s heirs, agents, successors and assigns. Hosted.com and you will also individually be referred to as "Party" and collectively as "Parties".
- The meanings of any capitalized words in this Agreement, unless defined elsewhere in this Agreement, may be found under the glossary at the end of this Agreement.
Except as may otherwise be provided in this Agreement, Hosted.com may at any time and, in its sole and absolute discretion, revise, change or modify this Agreement, and any policies, product and/or service agreements referred to herein. Any such revision, change or modification will be binding and effective immediately upon posting to this Site. Your continued use of the Site or the Services after such revisions, changes or modifications have been made shall constitute your acceptance of this Agreement as last revised. Hosted.com may, in its sole and absolute discretion, advise you of the revision, changes or modifications by email, however, you agree that it is your responsibility to review the Site from time to time to familiarize yourself with the Agreement as last revised. . If you do not agree to be bound by this Agreement or any of the policies or other agreements as last revised, do not use (or continue to use) the Site or the Services. If you do not agree to any of the revisions, changes or modifications, you may terminate this Agreement by cancelling any applicable Service or discontinuing your use and/or purchase of any and all Hosted.com Services. Hosted.com may from time to time offer promotions which may be limited in time with various fees and/or features.
- Term of Agreement, Renewal and Payment of Fees
This Agreement shall be effective and applicable at all times that you use the Site or any of the Services, and shall continue to apply even after the termination of your use of the Site or the Services to any prior viewing, use of the Site and /or Services. Unless otherwise specified, any Services provided to you are provided on an automatically renewing basis. Your purchase will extend for the period initially specified by you and will automatically renew thereafter for additional periods equal in length to the period initially specified, unless terminated in terms of this Agreement.
Where the commencement of a Service is delayed, the renewal date of the Service will be calculated from the date the Service commenced.
If the Service Order does not specify a time period, the Service will automatically renew monthly, unless terminated by you by giving Hosted.com 1 (one) calendar months’ notice of termination in writing. Termination of any Service will not be effective until acknowledged by Hosted.com.
You agree to pay all fees and charges due for Services purchased or obtained from the Site as stated at the time you order the Services. Fees and charges are non-refundable unless otherwise expressly stated, regardless of whether the Services are suspended, terminated, or transferred prior to the end of the term of the Service. Hosted.com may change or modify its fees and charges at any time. These changes will be posted on the Site and will be effective immediately upon posting. If you have purchased or obtained Services for a specified period, changes or modifications in fees and charges shall be effective when the Services in question come up for renewal.
Payment may be made by you through credit card, electronic check or Pay by PayPal (“Payment Method”). If you signed up for a monthly payment plan, your monthly billing date will be determined based on the day of the month you purchase the Services.
Hosted.com will automatically renew the Services in terms of this Agreement and will take payment from the Payment Method you have on file. Hosted.com shall not be liable to you or any other party for any costs, loss or damage of any kind if it is unable to charge your Payment Method in order to renew any Services.
Unless otherwise agreed:
- Billing will commence on the date that the provision of a Service commences.
- Partial months (if applicable) will be charged pro rata, and this fee may be included in the following month’s charge.
- For Services that are not pre-paid (if applicable), invoices must be paid by you within ten (10) calendar days of the date of Hosted.com’s invoice.
You acknowledge and agree that, depending upon your bank or the state or country indicated in your billing address, you may be charged additional taxes, Value Added Tax ("VAT"), Goods and Services Tax ("GST").
All fees, charges and transactions are processed in United States Dollars. Hosted.com will not be liable for any exchange rate fluctuations or conversion fees or charges by your bank.
If Hosted.com agrees to accept payment for a particular Service by cash or check mailed to Hosted.com, Services shall only be activated once payment has been received and cleared by the bank.
Hosted.com is not responsible for domains being lost, or taken by a third party during the transition period between the registration and the receipt and clearing of the payment for said domains.
Hosted.com may at its sole discretion suspend or terminate the provision of Services in respect of which any amount is outstanding. Reconnection of any Service suspended in terms hereof will be subject to a reasonable reconnection fee which will be published on the Site from time to time.
Termination of any annual or bi-annual account before its pre-paid term ends will be subject to a reasonable administration fee which will be published on the Hosted.com Website from time to time.
Should any amount be outstanding by more than 60 Business Days, Hosted.com may refer the matter to a debt collection agency or attorney for collection. Should it do so, you will be liable for a reasonable administration fee which will be published on the Site from time to time, as well as any legal costs and attorneys’ fees arising from collection of the outstanding amount.
Hosted.com may increase or decrease its fees for any Service from time to time.
If you have been given a discount or any type of incentive as a result of referring a third party to Hosted.com, the discount will be forfeited if the referee terminates its agreement with Hosted.com within three (3) months of commencement.
If Hosted.com is unable to charge your Payment Method for the full amount owed for the Services provided at any time or for any reason, or if Hosted.com receives notification of a chargeback, reversal, payment dispute, or is charged a penalty for any fee it previously charged to your Payment Method, you agree that Hosted.com may pursue all available lawful remedies to obtain payment, including but not limited to, immediate cancellation, without notice to you, of any domain names or Services registered or renewed on your behalf.
- Authorization of Payment Methods
If you elect to purchase Hosted.com Services by using PayPal, Inc. ("Pay by PayPal"), you agree to allow PayPal to debit the full amount due to Hosted.com for any billing period, including your initial purchase and renewal purchases, from Your PayPal account balance or the preferred funding source you established with PayPal, which is non-refundable. You are responsible to keep your PayPal account current, and to have available funds in it. Neither PayPal nor Hosted.com will be responsible for payments that fail to go through as a result of your funding source no longer existing, or holding insufficient funds. If we do not receive from PayPal full amount owed for the Services provided, you agree that Hosted.com may pursue all available remedies in order to obtain payment from you. By electing to pay using PayPal, you authorize the creation of an electronic funds transfer (EFT), and you authorize a debit of the full amount of your order from your PayPal Account or preferred funding source.
If you elect to use Hosted.com’s pay by check option (“Pay By Check”), you can purchase Hosted.com Services using an electronic check from your checking account. The checking account may be a personal or business account and must be held at a financial institution in the United States and the check must be payable in United States Dollars. You agree to Hosted.com, or any service provider selected by Hosted.com for this purpose, to debit the full amount of your purchase from your checking account, which is non-refundable. You agree that an electronic funds transfer (“EFT”) or bank draft will be created and presented to your bank or financial institution for payment from your checking account. It is your responsibility to keep your checking account current and funded. You acknowledge and agree that Hosted.com may decline a transaction for any reason and no action will lie against Hosted.com. If for any reason Hosted.com is unable to receive payment via this method, Hosted.com may pursue all available lawful remedies to obtain payment (plus any applicable fees). If the EFT or bank draft is returned unpaid, you will pay a service charge of $30 USD and may be debited from your checking account using an EFT or bank draft.
- Service Orders
The Services that Hosted.com will provide to you, will be described in Service Orders. More details of particular Services may be contained in the Service Order or any schedules or annexures thereto.
The Service Order(s) also form part of the Agreement between Hosted.com and you. If the Parties enter into a Service Level Availability or agree to an annexure to any of these documents, these will also form part of the Agreement.
If there is any conflict between any of these documents, they will be interpreted in descending order of precedence as follows: Standard Terms (this document), Service Terms, Service Order, Acceptable Use Policy, and Service Level Availability, unless otherwise expressly stated in writing.
Hosted.com will provide the Services to you as described in Service Orders in terms of the Agreement.
- Initiation and Use of Services
- Compliance with Laws
Hosted.com does not warrant or represent that the content on the Site or the Services are appropriate in every country or jurisdiction. It is prohibited to access this Site or the Services from countries or jurisdictions where its content is illegal. You are responsible for compliance with all local laws, rules and regulations.
This Site and the Services found on this Site are subject to applicable laws, rules and regulations of The Republic of South Africa and where appropriate or applicable, the United States of America, more specifically the export laws, regulations of the United States Department of Commerce, Department of Treasury Office of Foreign Assets Control (“OFAC”), State Department, and other United States authorities (“U.S. Laws”). Users shall not use the Services or the Site in any manner which violates any South African or U.S. Laws. By using this Site and the Services, you represent and warrant that you are not a national or resident of, located in, or under the control of, any restricted country; and you are not on the OFAC or any other denied parties list. The obligations under this section shall survive any termination or expiration of this Agreement or your use of this Site or the Services.
- Spam and Email accounts
Hosted.com has zero tolerance for the transmission of spam. Hosted.com monitors traffic to and from our servers for indications of spamming. If you are found to be responsible for spam, Hosted.com will take appropriate action against you which may include the immediate suspension or termination of Services, without any refund, and/or civil, criminal or administrative action against you.
Spam incudes, but is not limited to, the sending of unsolicited messages or information via delivery channels such as email, text message, instant message, pop up messages, chat room advertising or facsimile (fax) sent to recipients as an advertisement or otherwise, without first obtaining prior consent from the recipient(s)to receive such communications. You must comply with the Can-Spam Act of 2003, the Telephone Consumer Protection Act, and all other applicable laws and regulations.
Suspected Spam can be reported to Hosted.com’s Abuse Department; at https://www.domains.africa/submitticket.php
Hosted.com may filter incoming and outgoing email for unsolicited bulk email (Spam), Virus and Malicious Code. This filtering will be done on a best effort basis without any warranty of any kind. The servers used to provide an email Service will be subject to the same level of security as the rest of the Hosted.com System. You may not send unsolicited bulk email or faxes unless the recipients have agreed or "opted-in" or subscribed to receive these messages, in which event, the messages must contain a return address, reply-to address, the sender's physical address, and an unsubscribe option in the message. Hosted.com will be entitled to take whatever steps it deems necessary to prevent the sending of spam using the Hosted.com System.
Hosted.com will be entitled to take whatever steps it deems necessary to prevent an IP address allocated to Hosted.com from being blocked as result of the transmission of bulk unsolicited email, and may amongst other measures suspend your email account, and suspend access to a domain name hosted on the Hosted.com System.
If Hosted.com incurs costs in unblocking any of its IP addresses as a result of you sending bulk unsolicited email using the Hosted.com System, you will be liable for those costs, including time and materials at Hosted.com’s standard rates. Hosted.com will use your Payment Method on file to recover these costs.
If email accounts are held on Hosted.com’s servers:
- Hosted.com may delete emails received or sent more than 180 days before a given date. It is your responsibility to download your e-mails.
- If the mailbox size specified in the relevant Service Order is exceeded, no further emails will be received into your account.
- No emails larger than 20 Mb will be sent or received;
- Upon termination of the Service all email will be deleted and email addresses associated with your account will cease to function.
- Hosted.com has no responsibility for backing up email stored on its servers; and
- “Webmail” is provided as a complimentary service and Hosted.com gives no warranty that it will be accessible by you at any given time.
- Individual mail sent to your POP3/IMAP box or forwarded to your existing email address may be limited to 5MB in size each.
- Hosted.com reserves the right to refuse domain and hosting services based on network, domain and/or equipment identifiers and at our sole discretion.
- Intellectual Property and Content
Unless expressly stated otherwise, nothing in this Agreement will be interpreted as granting either Hosted.com or you a license to deal in any way with any Intellectual Property owned by the other, nor will anything be construed as an assignment, transfer or licensing use of Intellectual Property to the other.
With the exception of content such as literary, artistic works or photos you post to your hosted website or via the Services (“ User Content”), all content on this Site and the Services , including without limitation scripts, source code, API, forms, images, audiovisual displays, text, software, graphics, photos, sounds, music, videos and interactive features and the trademarks, service marks and logos contained therein (“Hosted.com Content”), are owned by or licensed to Hosted.com in perpetuity, and are subject to copyright, trademark, and/or patent protection in the United States and foreign countries, and other intellectual property rights under United States and foreign laws.
All Hosted.com Content and other intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Services are owned by Hosted.com or its licensors, and you agree to make no claim of interest in or ownership therein. You acknowledge that no title to the Hosted.com Intellectual Property Rights is transferred to you, and that you do not obtain any rights, express or implied, in Hosted.com’s software or Services or its licensors' service, other than the rights expressly granted in this Agreement. Hosted.com Content is provided to you “as is” and “with all faults” for your information and non-commercial use only. Hosted.com Content may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any purposes whatsoever without the express prior written consent of Hosted.com.
If you post User Content via the Site or the Services, you represent and warrant to Hosted.com that (i) you have the necessary rights to distribute such content, either because you are the owner or author of the content, or because you have the requisite distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owner of the User Content, and (ii) the User Content does not violate the rights of any third party. YOU WARRANTS THAT YOU EITHER OWN THE INTELLECTUAL PROPERTY RIGHTS TO ALL MATERIAL TRANSMITTED, ACCESSED, STORED, DISPLAYED OR REPRODUCED USING THE HOSTED.COM SYSTEM, OR THAT YOU HAVE THE PERMISSION OF THE OWNER OF THE MATERIAL TO MAKE USE OF THAT MATERIAL IN THAT WAY.
If Hosted.com provides you with Software as part of providing a Service, and it holds Intellectual Property rights to the Software, it grants you a non-exclusive, non-transferable license to use that Software only for your personal purposes, for making use of the Services, and for the duration of this Agreement and subject to its terms.
Hosted.com provides the Services and Software "as is" without any warranty, including but not limited to warranties or conditions of merchantability or fitness for a particular purpose and cannot be held liable for any loss or damages arising thereof whether tangible or intangible arising from the use of the Software.
If Hosted.com provides you with Software owned by a third party, you must comply with all license terms imposed by the third party when you use the Software. These terms include any terms appended to a Service Order.
Copyright in any Software or other works created by Hosted.com in terms of this Agreement will vest in Hosted.com.
You are specifically prohibited from reverse engineering, disassembling, decompiling or using any method to discover the source code of any Software provided in terms of this Agreement (or attempting to do so), where the Intellectual Property is not owned by you.
You undertake to comply with all intellectual property laws, and to do nothing related to or connected with this Agreement or its use of the Hosted.com System which may infringe the Intellectual Property rights of Hosted.com or any third party.
Hosted.com has the right to make copies of your Data if this is necessary to provide a Service.
While providing the Services, Hosted.com may have one or more Internet Protocol (“IP”) addresses allocated to you. You must put the assigned IPs to the use specified or implied in the Service Order, and will not put them to another use without the express written consent of Hosted.com. You acknowledge that IP addresses are not property and cannot be owned. As a result you have no right or expectation of a right to ownership of any IP address assigned to you. On termination of this Agreement or the relevant Service Order, any IP Addresses assigned to you may be removed from you, and you will have no recourse against Hosted.com or any third party as a result of any loss sustained as a result.
Hosted.com will implement measures to ensure the security of the Hosted.com System and the physical security of the Hosted.com Premises and or Data Centers, but gives no warranty that breaches of security will not take place.
When applying for Hosted.com Services, you will be required to establish an account with Hosted.com for such Services. When you register a domain name with Hosted.com or use any of its Services you are responsible for selecting and continuously managing your customer login, password, credit/debit card number, and PIN (if applicable).
Hosted.com specifically disclaims liability for any third party activity in Your account, whether authorized by you or not and shall not be held liable for any loss suffered or likely to be suffered by you in the event of any use of your customer login, password, credit card number, and PIN (if applicable) whether with or without your knowledge.
If you discover a security violation, or think that a security violation is imminent, you must immediately notify Hosted.com’s Abuse Department; at https://www.domains.africa/submitticket.php
Hosted.com will not be liable for any loss or corruption of your data through a security violation, unless this was caused by the gross negligence or willful misconduct of Hosted.com. Notwithstanding this, under no circumstances will Hosted.com be liable for any indirect or consequential damages. Any compensation, loss or damage that Hosted.com is found to be liable for in terms hereof, will be limited to the amount of the fees paid by you to Hosted.com for the Service(s).
You must not do anything that may prejudice the security of the Hosted.com System, and must take all reasonable measures necessary to ensure that:
- No unlawful access is gained to the Hosted.com System, or your system.
- No Malicious Code is introduced into the Hosted.com System.
- Your Data is safeguarded.
- Any Internet Protocol ("IP") address range assigned to you cannot be attacked by third parties.
- All use of the Services occurs in compliance with the Acceptable Use Policy.
If a security violation occurs, or Hosted.com is of the view that a security violation is imminent, Hosted.com may take whatever steps it considers necessary to maintain the proper functioning of the Hosted.com System including without limitation (i) changing your access codes and passwords (or those of any user of the Hosted.com System), (ii) preventing access to your system, and (iii) preventing access to the Hosted.com System.
Hosted.com takes reasonable measures to provide disaster recovery but does not warrant that recovery will be successful or that it will be completed within any time limit.
You must give your full cooperation to Hosted.com in any investigation that may be carried out by Hosted.com regarding a security violation. If it is found that you have violated the Acceptable Use Policy, or any other policy or agreement of Hosted.com you will be held liable for costs, fees or expenses associated therewith.
If you are providing any service to third parties that makes use of the Hosted.com System, you must contractually bind those third parties to equivalent terms regarding security as are set out in this Agreement.
- Suspension or Termination of Service
Hosted.com is entitled to terminate or suspend provision of the Service(s) to you or lock or modify access to your account as determined by Hosted.com in its sole discretion, without notice for any reason, including but not limited to:
- If you are found to be in breach of this Agreement, the Acceptable Use Policy or any other policy or agreement of Hosted.com.
- If you have not made payment of any monies owing to Hosted.com by due date.
- If, a suspension is necessary to maintain security of the Hosted.com System.
- If Hosted.com needs to carry out Emergency Maintenance.
- If you have failed to co-operate in an investigation as may be required or otherwise have breached your duties set out in this Agreement such that your continued access to the Services constitutes a threat to security.
- Where so ordered by a court, arbitrator, regulatory body or other authority having jurisdiction over Hosted.com.
- To comply with any local, state, U.S. or international law, rule or regulation.
Reconnection of any Service suspended in terms of clauses 13(i), (ii) or (v) will be subject to a reasonable reconnection fee.
Hosted.com is entitled to terminate or suspend any Service or apply additional fees to you if Hosted.com determines, in its sole discretion that your use of space and bandwidth is excessive or exceeds that allowed by Hosted.com.
- Data & Content
You consent to Hosted.com monitoring your traffic data using the Hosted.com System for accounting purposes and to ensure that the hosted.com system is operating properly or for any other purpose.
You must not upload to, store on or transmit any data or content via the Hosted.com System that is unlawful, harmful, or in breach of the Acceptable Use Policy.
You consent to Hosted.com processing personal information transmitted to the Hosted.com System in a way which is consistent with the Service being provided. Where your use of a Service leads to the transmission of personal information to or from the United States, you acknowledge that you have a duty to comply with any relevant statutory provisions dealing with data privacy either in the United States or in any foreign country to which the personal information is transmitted. You warrant that you have obtained the consent of any third party for the use of that party’s personal information in this way.
Hosted.com has no knowledge of or interest in data that you may transmit via, store on or access from the Hosted.com System. Hosted.com also has no duty to monitor any content made available or published through the Hosted.com System, unless required to do so by law.
You are solely responsible for any and all of your User Content or User Content that is submitted through your Account, and the consequences of, and requirements for, distributing it.
- Legal and Statutory Compliance
Hosted.com is obliged to comply with certain laws, regulations or other statutory provisions and Hosted.com's compliance may require measures that would otherwise be an infringement of your privacy, such as interception of your communications or the examination of your Data. No action will lie against Hosted.com for any damages that it may suffer as a result of these measures.
- LIMITATION OF LIABILITY
YOU AGREE THAT HOSTED.COM, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ALL THIRD PARTY SERVICE PROVIDERS WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY DAMAGES WHATSOEVER, INCLUDING DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THE POSSIBILITY THAT SUCH DAMAGES WERE FORESEEABLE), ARISING FROM, RELATING TO OR CONNECTED WITH: (A) THE USE OR INABILITY TO USE ANY OF THE SERVICES, (B) THE COST OF REPLACEMENT OF ANY SERVICES PURCHASED OR OBTAINED, (C) DISCLOSURE OF, UNAUTHORIZED ACCESS TO, USE OF OR ALTERATION OF YOUR DATA, PERSONAL OR FINANCIAL INFORMATION OR CONTENT, (D) STATEMENTS, CONDUCT OR OMISSIONS OF ANY SERVICE PROVIDERS OR OTHER THIRD PARTY ON OUR SERVICE, (E) ACTIONS OR INACTIONS OF OTHER USERS OF OUR SITE OR OUR SERVICES OR ANY OTHER THIRD PARTIES FOR ANY REASON, (F) ANY OTHER MATTER ARISING FROM, RELATING TO OR CONNECTED WITH OUR SERVICES OR THESE TERMS, (G) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, (H) TERMINATION OF THE AGREEMENT BEFORE COMMENCEMENT OF A SERVICE, DUE TO TECHNICAL INFEASIBILITY, (I) VIRUSES, WORMS, BUGS, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR FROM THIS SITE OR ANY SITES LINKED TO THIS SITE, (J) ANY USER CONTENT OR CONTENT THAT IS DEFAMATORY, HARASSING, ABUSIVE, HARMFUL TO MINORS OR ANY PROTECTED CLASS, PORNOGRAPHIC, “X-RATED”, OBSCENE OR OTHERWISE OBJECTIONABLE, (K) THE INTERRUPTION, SUSPENSION OR TERMINATION OF THE SERVICES, (L) LOSS OF DATA (INCLUDING FAILURE IN BACKUP OR DISASTER RECOVERY), (M) DAMAGED OR CORRUPTED DATA OR A DELAY OR FAILURE IN TRANSMISSIONS, (N) ANY ACT OR OMISSION RELATING TO THE TRANSMISSION OF DATA TO AND FROM THE HOSTED.COM SYSTEM, ITS STORAGE ON THE HOSTED.COM SYSTEM OR ITS PUBLICATION USING THE HOSTED.COM SYSTEM TO THIRD PARTIES, INCLUDING FALSE POSITIVES IN SPAM FILTERING, AND/OR (O) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF THIS SITE OR THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY. (P) FALSIFY THE ORIGIN OR SOURCE OF SOFTWARE OR OTHER MATERIAL CONTAINED IN A FILE THAT IS UPLOADED.
HOSTED.COM WILL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMING UNDER THIS AGREEMENT WHERE SUCH FAILURE OR DELAY IS DUE TO CAUSES BEYOND HOSTED.COM’S REASONABLE CONTROL, INCLUDING NATURAL CATASTROPHES, GOVERNMENTAL ACTS OR OMISSIONS, LAWS OR REGULATIONS, TERRORISM, LABOR STRIKES OR DIFFICULTIES, COMMUNICATIONS SYSTEMS BREAKDOWNS, HARDWARE OR SOFTWARE FAILURES, TRANSPORTATION STOPPAGES OR SLOWDOWNS OR THE INABILITY TO PROCURE SUPPLIES OR MATERIALS.
IN NO EVENT WILL HOSTED.COM’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY IN ANY MATTER ARISING FROM, RELATING TO OR CONNECTED WITH OUR SERVICES OR THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF THE FEES PAID BY YOU FOR THE SERVICE(S) IN THE 3 (THREE) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT CAUSED THE DAMAGE.
THIS LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT ALLOWED BY LAW, AND SHALL SURVIVE ANY TERMINATION, SUSPENSION OR EXPIRATION OF THIS AGREEMENT, YOUR USE OF THE SERVICES OR THE SITE.
YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF HOSTED.COM' S SERVICES, YOUR USE THEREOF, OR THE SITE MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR SUCH CLAIM SHALL BE FOREVER BARRED.
YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS HOSTED.COM, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND THIRD PARTY SERVICE PROVIDER FROM AND AGAINST ANY AND ALL LIABILITY, CLAIMS, DAMAGE, COST, EXPENSES, AWARDS, FINES, JUDGMENTS, AND ATTORNEY FEES (INCLUDING, WITHOUT LIMITATION, COSTS, ATTORNEY FEES, EXPERT WITNESS FEES, AND OTHER EXPENSES OF LITIGATION) OF EVERY NATURE ARISING OUT OF OR IN CONNECTION WITH (A) HOSTED.COM’S PERFORMANCE IN TERMS HEREOF, OR ITS FAILURE TO COMPLY WITH ANY OF ITS OBLIGATIONS CONTAINED IN THIS AGREEMENT, (B) YOUR USE OF AND ACCESS TO THIS SITE OR THE SERVICES, (C) YOUR VIOLATION OF ANY PROVISION OF THIS AGREEMENT OR THE POLICIES OR OTHER AGREEMENTS WHICH ARE INCORPORATED HEREIN, AND/OR (D) YOUR VIOLATION OF ANY THIRD-PARTY RIGHT, INCLUDING WITHOUT LIMITATION ANY INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHT, (E) YOUR BREACH OF ANY PRIVACY RIGHTS, OR INFRINGEMENT OF ANY LAW (WHETHER U.S. OR FOREIGN), AND/OR (F) ANY OTHER WRONGFUL ACT OR OMISSION BY YOU.
THIS INDEMNITY SHALL APPLY TO THE FULLEST EXTENT ALLOWED BY LAW, AND SHALL SURVIVE ANY TERMINATION, SUSPENSION OR EXPIRATION OF THIS AGREEMENT, YOUR USE OF THE SERVICES OR THE SITE.
- DISCLAIMER OF WARRANTIES AND REPRESENTATIONS
THIS DISCLAIMER APPLIES TO BOTH ISOLATED AND AGGREGATE USES OF THIS SITE AND/OR THE USE OF ANY OF HOSTED.COM’S SERVICES. YOUR USE OF THIS SITE AND THE SERVICES ARE AT YOUR OWN RISK AND THE PROVISION OF SERVICES IS ON AN "AS IS" BASIS. ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, FREEDOM FROM CONTAMINATION BY COMPUTER VIRUSES AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS ARE DISCLAIMED. HOSTED.COM, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT (A) THE PRODUCTS OR SERVICES PURCHASED OR OBTAINED THROUGH THIS SITE OR ANY LINKED SITES, AND/OR (B) THE ACCURACY, COMPLETENESS, OR CONTENT OF THIS SITE OR ANY LINKED SITES, AND HOSTED.COM ASSUMES NO LIABILITY OR RESPONSIBILITY FOR THE SAME.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM HOSTED.COM, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS OR THROUGH THE PROVISION OF THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN, YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. HOSTED.COM IS NOT RESPONSIBLE FOR AND SHALL HAVE NO LIABILITY WITH RESPECT TO ANY PRODUCTS AND/OR SERVICES PURCHASED BY YOU FROM A THIRD PARTY.
THIS DISCLAIMER OF WARRANTIES AND REPRESENTATIONS SHALL APPLY TO THE FULLEST EXTENT ALLOWED BY LAW, AND SHALL SURVIVE ANY TERMINATION, SUSPENSION OR EXPIRATION OF THIS AGREEMENT, YOUR USE OF THE SERVICES OR THE SITE.
- Successors and Assigns
This Agreement shall be legally binding upon and inure to the benefit of the Parties hereto and their respective heirs, successors and assigns.
- Relationship Between the Parties
Nothing in this Agreement will be construed as giving rise to a relationship of partnership, agency, employment, joint venture, or franchise between the Parties.
You may not resell any Service, or otherwise provide any Service to a third party for consideration, unless otherwise specified in a Service Order.
If required in order for Hosted.com to provide the Services, you agree to enter into any agreement with a third party provider.
By using the Site and/or the Services, you are consenting to receive communications from Hosted.com or any of its third party providers. Hosted.com and/or its third party providers may send you newsletters concerning new features, specials, promotions and other related services that may be offered. You authorize Hosted.com and any of its Service Providers, and their affiliates to contact you in any manner or form including calls, text message, e-mail, auto-dialer, pre-recorded messages on any of your mobile or other phone numbers or emails. You represent and warrant that any mobile or other phone numbers and email addresses you provide do not belong to anyone other than you, are not shared, accessed by others and are not employer-related email addresses. If Hosted.com calls you, you agree that you do not have any expectation of privacy during such calls and you consent to Hosted.com, in its sole discretion, recording the entirety of such calls regardless of whether Hosted.com asks you on any particular call for consent thereto. You acknowledge and agree that any such recording(s) may be submitted as evidence in any legal proceeding in which Hosted.com is a party.
All notices to you may be posted on the Site or sent to the e-mail address provided by you. A notice concerning a violation by you of this Agreement may be sent either to the e-mail address or postal address on file. Any notice that Hosted.com sends by email to an email address on file with Hosted.com will be deemed to have been received by you on the date of transmission. A notice sent to your postal address on file shall be deemed to have been received by you five (5) days after the date on which the notice was sent. Notices from you to Hosted.com shall be made either by e-mail, sent to the e-mail address provided on the Hosted.com Site, or first class mail to Hosted.com's address at 2618 San Miguel Drive #210 Newport Beach, CA 92660.
- Disputes, Governing Law and Jurisdiction
For any dispute arising from or related to your use and/or registration of a domain name falling within the jurisdiction of ICANN, you agree to be bound by the Uniform Domain-Name Dispute Resolution Policy, as modified or amended by ICANN in its sole discretion at any time("UDRP"), which can be found at http://www.icann.org/udrp and is incorporated in this Agreement by reference. Your registration or continued registration after modification of the UDRP of your domain name constitutes your acceptance of the UDRP. You further agree that you will be subject to the provisions specified in the UDRP in effect at the time Your domain name is challenged by a third party. You agree to indemnify and hold Hosted.com harmless in the event of any domain name dispute with a third party.
For all other disputes, controversies or claims arising out of this Agreement or the Services, all rights and duties of the Parties shall be governed by the internal laws of The Republic of South Africa, without regard to conflict of laws principles.
You agree that any dispute, controversy or claim arising out of or relating in any way to this Agreement or the Services, including without limitation any dispute concerning the construction, validity, interpretation, enforceability or breach of this Agreement, shall be exclusively resolved by binding arbitration in terms of this Section.
The demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question has arisen, and in no event shall it be made after two years from when the aggrieved party knew or should have known of the controversy, claim, dispute or breach.
This agreement to arbitrate shall be specifically enforceable. A Party may apply to any court with jurisdiction for interim or conservatory relief, including without limitation a proceeding to compel arbitration.
You agree that the arbitration shall be conducted in accordance with the Rules of the Arbitration Foundation of Southern Africa (AFSA) applicable to international arbitration by an arbitrator appointed by AFSA and you submit to the exclusive jurisdiction of The Republic of South Africa for the seat of any arbitration proceedings. You consent to (and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to) jurisdiction and venue in The Republic of South Africa.
The laws of The Republic of South Africa shall be applied in any arbitration proceedings, without regard to principles of conflict of laws.
Except as may be required by law, neither a party nor its representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all parties.
The arbitrator[s] shall have no authority to award punitive, consequential, special or indirect damages. The cost of the arbitration proceeding and any proceeding in court to confirm or to vacate any arbitration award, as applicable (including, without limitation, reasonable attorneys’ fees and costs), shall be borne by the unsuccessful party, as determined by the arbitrators, and shall be awarded as part of the arbitrator’s award.
It is specifically understood and agreed that any party may enforce any award rendered pursuant to the arbitration provisions of this Section by bringing suit in any court of competent jurisdiction. The parties agree that the arbitrator shall have authority to grant injunctive relief to any party.
Each party shall pay its own proportionate share of arbitrator fees and expenses and the arbitration fees and expenses of AFSA. The arbitrator[s] shall be entitled to award the foregoing arbitration and administrative fees and expenses as damages in his/her discretion.
This Section shall survive the termination or cancellation of this Agreement.
- Force Majeure
Hosted.com will not be liable for any delay or failure in performing any obligation under this Agreement due to any cause beyond its control, including without limitation: industrial action, sabotage, terrorism, civil commotion, riot, war, fire, explosion, storm, flood, or other natural physical disaster, any act or policy of any state or government or other authority having jurisdiction over either Party, sanctions, boycott or embargo, termination or suspension of upstream service.
- Survival After Termination
Sections 11 (compliance with laws), 13 (intellectual property rights), 18 (limitation of liability), 19 (indemnity), 20 (disclaimer of representations and warranties), 25 (notices), 26 (disputes, governing law and jurisdiction), shall survive any termination or cancellation of this Agreement.
- Domain Registration, Renewal, Redemption, Deletion & Domain Parking
29.1. The Registered Name Holder agrees to enter into a Registrar Registrant Agreement with the Provider when registering or transferring a domain with/to the Provider.
29.2. Ownership of the domain is the Customer’s, only after full payment has been received.
29.3. Payments for a domain name registration are non-refundable. Once a domain name is registered, the WHOIS database stores the information and it is kept there for a period of one year, until the date of renewal (‘Domain Parking’). Payment will NOT be credited back.
29.4. Domain Parking does NOT include Web Space, Virtual Hosting, or e-Mail facilities.
29.5. The Provider shall be indemnified and held harmless by the Customer if the Customer uses any Domain Name that infringes on any rights of any person, or company.
29.6. The Provider does not guarantee that a Domain Name requested by a Customer will be available. Provider’s systems may reflect that the Domain Name requested is available; however, this domain may have been already taken, as the Provider’s system is reliant on server updates from both local and international WHOIS servers.
29.7. As the Provider is a reseller of various domains, the Customer agrees to abide by the terms and conditions of the various domain registries / registrars worldwide, when registering a domain with the Provider.
29.8. As Domain registries / registrars charge a Registration Fee, Renewal Fee and Redemption Fee (This is the period after suspension by the Registry), the Customer agrees to pay the Provider the fees that relate to the registration, renewal, redemption, maintenance, or administration, of the Domain Name. These fees are not refundable.
29.9. The Registrant Name Holder has up to 10 days after the Domain Expiry date to renew the domain. After which time the domain will enter the redemption Grace Period
29.10. Once the Domain has entered the Redemption Grace Period, The Domain will be suspended at the Registry and have a status of RGP (Redemption Grace Period).
29.11. Once the Redemption Grace Period has passed, the domain will be deleted from the Registry and is available to anyone to register as a brand new name.
29.12. Should the Registered Name Holder activate auto-renewal on their domain name, the Registered Name Holder will be invoiced 30 days prior to the expiry of the domain. Once the Invoice has been paid, the domain will automatically be renewed for an additional year at the Registry.
29.13. Should the Customer misspell a Domain Name and the misspelt domain is registered, the Customer will be held liable for payment of the misspelt domain. No domain registration fee will be credited, and the Customer will then have to register the correctly spelled domain name at the cost of a new domain registration.
29.14. Clients will receive email based domain renewal notifications 90, 60, 30, 14, 7 and 1 day prior expiry
29.15. Premium domains: As various registries worldwide mark high value domains as premium domains, these domains cost more. The provider will make every effort to apply pricing of a premium domain prior to checkout however this may not always be possible. Should the client have paid for domain which will marked / reflected as premium a full refund of the regular price will be given.
29.16. Domain Availability: While the provider makes every effort to display accurate domain availability data and every attempt to secure a domain for the customer. On searching for a domain name via our / the registry WHOIS, the WHOIS service may show the domain as available however said domain may already be reserved / allocated / registered by another registrar or by another client. The provider shall not be held responsible in the event of a client registering / paying for a domain while the WHOIS reflects different information. The provider shall remit a full refund to the client in cases where this happens.
29.17. Time lapse between domain availability search and payment: As there is a time delays between the domain availability search, and the payment of the said domain, it may be possible that multiple parties are registering the same domain at the same time, the domain will be provisioned to the party that has paid first and the registry will reflect this party as the registrant.
- General Terms
Headings: The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
Accurate Account Information: You represent and warrant to Hosted.com that all information you submit when you create your account is accurate, up to date and complete. You agree that it is your responsibility to keep your account information accurate, current and complete.
Data Transfer: If you are viewing or using this Site or the Services from a country other than the country in which our servers are located, your communications with us may result in the transfer of information (including your account information) across international boundaries. You consent to such transfers.
Continuation of Services: Hosted.com may, at any time and in its sole discretion, modify, change, or discontinue any aspect of this Site or the Services, including, but not limited to charges and fees for any of the Services.
Construction: The rule of construction that an agreement will be interpreted against the Party responsible for its drafting or preparation will not apply.
Entire Agreement: This Agreement including the policies and agreements it refers to constitute the entire Agreement between you and Hosted.com regarding the use of the Site and the Services.
Waiver: Any failure by Hosted.com to enforce any of the provisions of this Agreement or its policies or other applicable agreements shall not be construed to be a waiver of Hosted.com's rights thereafter to enforce such provisions.
Third Party Beneficiaries: Nothing contained herein shall be construed as to confer upon any third party, any rights, remedies, obligations, or liabilities, unless expressly stated.
Severability: If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect. If any provision is held invalid or unenforceable with respect to a particular circumstance, it shall nevertheless remain in full force and effect in all other circumstances.
The terms listed below have the following meanings in this Agreement or in any policies or other agreements on the Site, all of which are incorporated herein and governed by this Agreement:
- "Acceptable Use Policy" or AUP means the document with that heading available on the Hosted.com Site, as amended from time to time.
- “Agreement" means these Standard Terms, as well as the relevant Service Order(s), Service Terms and any schedules or annexures relating to them or to this document, which all form part of the Agreement.
- “Affiliate” means, in relation to a Party, the Party’s holding company, its subsidiaries, the subsidiaries of its holding company and any other companies which, directly or indirectly, is controlled by the Party, controls the Party or is under common control with the Party.
- “Business Day” means any day other than a Saturday, a Sunday or a bank holiday in the United States of America.
- “Charges” or “Fees” means the rates to be paid by you for the Services as set out in the Fee Schedule or on the Site or on any Service Order.
- “Customer Support Ticket Area” means the online account administration facility provided to Customers on the Domains.Africa Site.
- “Data" means electronic representations of information in any form.
- “Database” means a collection of related data including, but not limited to, text, images sound and video, all of which have been created and integrated using a method of connecting and displaying the data into a collection of interrelated independent files or data which are stored together.
- "Hosted.com System" means equipment operated together as a system by Hosted.com to provide any Service, including without limitation servers, peripherals, routers, switches, Software, Databases, cables, generators, and uninterruptible power supplies.
- “Hosted.com Site” or “Site” means the Internet website published at the URL www.Hosted.com or another URL that Hosted.com notifies you of from time to time.
- "Domain" means an Internet subdomain registered with an authorized registrar appropriate to its top-level domain (“TLD”) and comprising its constituent domain name server records including, but not limited to, host names, aliases and mail exchange (“MX”) records.
- "Emergency Maintenance" means maintenance to the Hosted.com System intended to remedy existing circumstances or prevent imminent circumstances that are likely to cause danger to persons or property, an interruption to the Services, or substantial loss to Hosted.com, you or any third party.
- “Fees” means the fees and / or charges due to Hosted.com by you in respect of products or Services provided by Hosted.com to you in terms of this Agreement.
- “Hosting Service” means the type of hosting service selected by you, either Website Hosting or Cloud Server Hosting as described in the Site, any schedule and /or Service Order.
- “Intellectual Property Rights” means patents, registered designs, trade marks (whether registered or otherwise), copyright, trade secret rights, database rights, design rights, service marks and other intellectual property rights and rights to claim something as confidential information, including in other jurisdictions, that grant similar rights.
- “Malicious Code” means anything that contains any computer software routine or code intended to allow unauthorized access or use of a computer system by any party, or disable, damage, erase, disrupt or impair the normal operation of a computer system, and includes any back door, time bomb, Trojan horse, worm, drop dead device or computer virus.
- “Products” means any and all goods to be provided by Hosted.com to you in terms of this Agreement, including without limitation third party software.
- "Service" means a service or product provided by Hosted.com to you in terms of this Agreement.
- "Service Level Availability" means a Service Schedule with that heading defining levels of service to be met by Hosted.com under the Agreement.
- “SLA Ticket” means the reporting of a service outage or complaint regarding a Service or the Service Level Availability via the service provider’s online portal.
- “Service Order / Order” means a goods, license, services and / or work order agreed to in writing or by subscription on the Site (which includes reference to email or via the Hosted.com Site) by both the Parties in terms of this Agreement and relevant Service Terms listing the specific Services to be provided by Hosted.com to you.
- "Service Terms" means a schedule describing the terms on which Hosted.com will provide a particular Service, as amended from time to time, read with this Agreement, such as the Hosting terms , Domains, Connectivity, AUP.
- "Software” means any computer program (whether source- or object code), as well as any database structure or content, artistic work, screen layout, cinematograph film, sound recording, preparatory material, user or technical documentation or any other work created in connection therewith and any modifications, enhancements or upgrades thereto.
- “Supplier” means a supplier of goods and / or services to Hosted.com.
- “Time and Materials Rate” means Hosted.com's standard time and materials fees and charges applicable from time to time, including all expenses reasonably and actually incurred by Hosted.com, including for travel, accommodation and subsistence.
- "Your System" means you Equipment and Software operated together by you as a system.
You consent to Hosted.com carrying out a credit check on you at any applicable credit bureau if required, and may make the provision of the services dependent on its satisfaction with the results. Hosted.com may also provide information on your payment record to any credit bureau.
You acknowledge and agree that you are responsible for all of the consequences of your activities and those of your employees, officers, agents, independent contractors and all others under your control when using the services.
Your use of this Site and the Services , including any content you submit, must comply with this Agreement and all applicable local, state, national and international laws, rules and regulations.
You must make use of the Services in a considerate and lawful way. You acknowledge and agree to abide by Hosted.com’s Acceptable Use Policy that contains rules of conduct for the use of the Service. The Acceptable Use Policy is available for viewing on the Site and is incorporate herein by reference.
YOU MUST COMPLY WITH THE ACCEPTABLE USE POLICY AND ENSURE THAT ANYONE UNDER YOUR CONTROL THAT USES THE SITE OR SERVICES ALSO DOES SO. A BREACH OF THE ACCEPTABLE USE POLICY IS A BREACH OF YOUR DUTY TO ACT IN A CONSIDERATE AND LAWFUL WAY.
Hosted.com may use third party or upstream Suppliers in providing certain Services, which may maintain their own acceptable use policies. If this is the case, you agree to abide by these policies in using the relevant Services. Hosted.com may treat a breach of a Supplier’s acceptable use policy as if it were a breach of Hosted.com’s Acceptable Use Policy.