Terms and Conditions
1.1. In these Conditions:
“CONTRACT” means the contract for the provision of the Services;
“CUSTOMER” means you, the person, company or partnership with whom the Company enters into the Contract and for whom the Company has agreed to provide the Services in accordance with these Conditions;
“DOCUMENT” includes, in addition to a document in Writing, a map, plan, design, drawing, picture or other image, or any other record of any information in any form;
“DOMAIN NAME” means the Internet Protocol name identifier which has been registered or reserved by the Company with the central registration authorities on the Internet, on behalf of or in the name of the Customer as requested by the Customer in the Specification Sheet, or any other domain name agreed by the parties;
“HOSTING” means the making available of the Customer’s Domain Name and website to the Internet community;
“ILLEGAL” means any act or acts which are capable of breaching the criminal laws of Kenya.
“INPUT MATERIAL” means any Documents or other materials, and any data or other information provided by the Customer relating to the Services;
“MATERIAL” means any work, information, products, comments, statements, messages, services or other material Uploaded or posted on to the Website
“SERVER” means the computer system and server equipment operated by the Company (or third party sub-contractors of the Company), in connection with the provision of the Services.
“SPECIFICATION SHEET” means the sheet to which these Terms are appended or, where applicable, the Specification Sheet on the Company’s website;
“SERVICES” means all or any of the services to be provided by the Company for the Customer and referred to in the Specification Sheet (including but not limited to Domain Name Registration Wesbsite Hosting, Website forwarding and Email forwarding);
“COMPANY” means Webhost Kenya (registered in Kenya );
“STANDARD CHARGES” means the charges shown in the Company’s brochure, on the Company’s website or other published literature relating to the Services from time to time;
“TERM” means the period of 1year from the date of the Contract or such other period as is agreed between the parties in the Specification Sheet;
“TRANSFER AGREEMENT” means the agreement between the Customer, the Company and the proposed transferee of any Domain Name, relating to the transfer of a Domain Name, situated on the Company’s websites www.webhostkenya.com
“Transfer Fee” means the administration fee to be levied on the Customer by the Company on the transfer of a Domain Name or Website pursuant to clause 8.1 of these Conditions as shown on the date of such transfer in the Company’s brochures or other published literature or on the Company’s website (as the case may be).
“WEBSITE” means the area on the Server allocated by the Company to the Customer for the use by the Customer as a site on the Internet and for the explicit purpose of this order;
“WWW” means World Wide Web service available on the Internet;
1.2. The headings in these Terms are for convenience only and shall not affect their interpretation.
2. Supply of the Services
2.1. The Company shall provide the Services to the Customer subject to these Conditions. Any changes or additions to the Services or these Conditions must be agreed in Writing by the Company and the Customer.
2.2. The Customer shall at its own expense supply the Company with all necessary Documents or other materials, and all necessary data or other information relating to the Services, within sufficient time to enable the Company to provide the Services in accordance with the Contract. The Customer shall ensure the accuracy of all Input Material.
2.3. The Services shall be provided in accordance with the Specification Sheet and otherwise in accordance with the Company’s current brochure or other published literature relating to the Services from time to time, subject to these Conditions.
2.4. The Company may correct any typographical or other errors or omissions in any brochure, promotional literature, quotation or other document relating to the provision of the Services without any liability to the Customer.
2.5. The Company may at any time without notifying the Customer make any changes to the Services which are necessary to comply with any applicable statutory requirements, or which do not materially affect the nature or quality of the Services provided.
3.1. Subject to any special terms agreed, the Customer shall pay the Company’s Standard Charges and any additional sums which are agreed between the Company and the Customer for the provision of the Services or which, in the Company’s sole discretion, are required as a result of the Customer’s instructions or lack of instructions, the inaccuracy of any Input Material or any other cause attributable to the Customer.
3.2. The Company shall be entitled to vary its Standard Charges from time to time by giving not less than one month’s Written notice to the Customer.
3.3. All charges quoted to the Customer for the provision of the Services are exclusive of any Value Added Tax, for which the Customer shall be additionally liable at the applicable rate from time to time.
3.4. The Company shall, where payment is not received in advance of the provision of the Services, be entitled to invoice the Customer in full in respect of the Company’s Standard Charges relating to the Services on the date of Commencement of such Services or at any time thereafter.
3.5. The Company’s Charges and any additional sums payable shall, save where payment is made in advance, be paid by the Customer (together with any applicable Value Added Tax, and without any set off or other deduction) within 14 days of the date of the Company’s invoice.
3.6. If payment is not made on the due date, the Company shall be entitled, without limiting any other rights it may have:
3.6.1 to charge interest on the outstanding amount (both before and after any judgment) at the rate of 4% above the base rate from time to time of Barclays Bank Ltd from the due date until the outstanding amount is paid in full; and/or
3.6.2 to terminate and discontinue the provision of the Services in respect of which payment is due but unpaid.
3.7 If this Contract is terminated prior to the end of the Term as a result of any failure by the Customer to comply with these terms and conditions then the Customer shall not be entitled to any refund (except at the discretion of management) of any of the Charges that are due or would become due in respect of the Company’s provision of the Services during the Term which shall, if not paid in advance, be payable in full on Termination
4. Intellectual Property Rights
4.1. The property and any copyright or other intellectual property rights in any Input Material shall belong to the Customer.
4.2. The Customer warrants that any Input Material (which for the avoidance of doubt shall include any Domain Name) and its use by the Company for the purpose of providing the Services will not infringe the copyright or other rights of any third party, and the Customer shall indemnify the Company against any loss, damages, costs, expenses or other claims arising from any such infringement.
5. Warranties and Liability
5.1. The Company warrants to the Customer that the Services will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the Specification. Where the Company supplies in connection with the provision of the Services any goods or services of a third party, the Company does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but shall, where possible, assign to the Customer the benefit of any warranty, guarantee or indemnity given by the person supplying the goods or services to the Company.
5.2. The Company shall have no liability to the Customer for any loss, damage, costs, expenses or other claims for compensation arising from any Input Material or instructions supplied by the Customer which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non arrival, or any other fault of the Customer.
5.3. Except in respect of death or personal injury caused by the Company’s negligence, or as expressly provided in these Terms, the Company shall not be liable to the Customer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of the Company, its servants or agents or otherwise) which arise out of or in connection with the provision of the Services or their use by the Customer, and the entire liability of the Company under or in connection with the Contract shall not exceed the amount of the Company’s Charges paid by the Customer in respect of the Services which are the subject of any such claim.
5.4. The Company shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Company’s obligations in relation to the Services, if the delay or failure was due to any cause beyond the Company’s reasonable control.
5.5. The Company shall not be liable to the Customer for any loss of registration and the use or loss of use of the Customer’s Domain Name. The Company does not check to see if the registration of or the use of the Domain Name by the Customer will infringe the rights of any third party. The Customer warrants and represents that the Domain Name is not being registered for any unlawful purpose.
5.6. The Customer understands and agrees that any Material downloaded or otherwise obtained through the use of the Services is done at the Customer’s own direction and risk and the Customer is solely responsible for any damage to the Customer’s computer system or loss of data that results from the download of such material and/or data.
5.7. The Customer undertakes to indemnify and hold the Company (including its officers, agents and employees) harmless from and against all liabilities, actions, costs (including reasonable legal fees), claims, expenses, demands, damages and penalties suffered, ordered or incurred by the Company in respect of any claim made or threatened by way of legal proceedings or otherwise in respect of:
5.7.1 the Customer’s use of the Website or other Services provided hereunder or any liability of the Company arising from any instructions given to the Company by the Customer in respect of any of the Services.
5.7.2 the use of any illegal, unlawful, pornographic, discriminatory, libellous or defamatory content on the Website or when using the Services.
5.7.3 Any breach by the Customer of the provisions of Clause 7.3
5.8. No claim shall be brought against the Company in respect of the provision by the Company of the Services unless the Customer has notified the Company in writing of the claim within one year of it arising.
6 Domain Name Registration
6.1 The Company makes no representation that any Domain Name(s), the Customer wishes to register are capable of being registered by or for the Customer. The Customer should therefore not assume registration of the requested Domain Name(s) until they have been notified, by the Company, that such Domain Name(s) have been officially registered. Any action taken by the Customer, before such notification, is at the Customer’s own risk.
6.2 The registration and use of any Domain Name by the Customer is subject to the terms and conditions of use applied by the relevant naming authority. The Customer shall ensure that they are aware of those terms and conditions and that they comply with them. The Customer shall have no right to bring any claim against the Company in respect of refusal to register a Domain Name. Any third party charges paid required to be paid in the provision of the Service shall (unless otherwise stated) be non-refundable, notwithstanding refusal by the naming authority to register the Customer’s desired name.
6.3 The Company shall have no liability in respect of the use by the Customer of any Domain Name. Any dispute between the Customer and any third party must be resolved between the parties concerned in such dispute. If any such dispute arises, the Company shall be entitled, at its discretion and without giving any reason, to withhold, suspend or cancel the Domain Name registration. The Company shall also be entitled to make representations to the relevant naming authority but will not be obliged to take part in any such dispute.
6.4 Although the Company will endeavour to inform the Customer of the pending renewal of their Domain Name, the final responsibility for such renewal is ultimately with the Customer and the Company shall not be liable for any loss incurred by the Customer and arising as a result of the Customer failing to renew its Domain Name registration.
6.5 The Customer understands and agrees that registration, reservation and/or use of the Customer’s chosen Domain Name does not confer immunity from objection by a third party to such registration, reservation or use.
6.6 The Domain Name shall be registered by the Company for a maximum period of the Term.
6.7 The Company shall be entitled to resell any Domain Name to a third party if any sums relating to the Domain Name Registration Service are due but unpaid.
7 Website Hosting and Email
7.1 The Company makes no representation and gives no warranty as to the accuracy or quality of information received by any person via the Server. The Website Hosting Service is provided by the Company on an ‘as is’ ‘as available’ basis and the Company does not make any warranties (express or implied) or representations of the Website or the Service whatsoever. The Customer hereby agrees that the use of the Website Hosting Service is solely at the Customer’s own risk. The Company does not warrant that the use of the Service will meet the Customer’s requirements or will be uninterrupted or error-free. Nor does it warrant that any defects will be corrected or that the use of this Service will be correct, accurate, timely or otherwise reliable.
7.2 The Customer shall effect and maintain adequate insurance cover in respect of any loss or damage to data stored on the Server.
7.3 The Customer represents, undertakes and warrants to the Company that it will not use the Website for illegal and/or immoral purposes. In particular, the Customer represents, warrants and undertakes to the Company that:-
7.3.1 the Customer will not use the Service in any manner which infringes the rights of any third party, nor will the Customer authorise or permit any other person to do so;
7.3.2 the Customer will not post, link to or transmit:
184.108.40.206 any Material which is illegal, unlawful, threatening, abusive, malicious, defamatory, obscene, pornographic, blasphemous, profane or otherwise objectionable in any way or which is in the sole opinion of the Company contrary to public decency and morality;
220.127.116.11 any Material containing a virus or other hostile computer program;
18.104.22.168 any Material which constitutes, or encourages the commission of, a criminal offence or which infringes any patent, trade mark, design right, copyright or any other intellectual property right or similar rights of any third party which may subsist under the laws of any jurisdiction.
Any breach by the Customer of this Clause 7.3 may result in the immediate termination of the Website Hosting Services provided by the Company and removal of the Customer’s website from the Server.
7.4 The Customer will ensure that it does not upload any virus which could infect the Server. The Customer agrees that it will not knowingly allow a virus to enter the Internet community by allowing Internet users to download files containing viruses from the Website and will take all necessary and appropriate steps to ensure that the Server remains virus free. The Customer agrees to indemnify the Company and hold it harmless from and against all and any losses, costs, claims, damages, expenses and proceedings incurred by the Company from any breach by the Customer of this Clause.
7.5 It is the Customer’s obligation to ensure that any Material being uploaded onto the Website is not in breach of copyright or any or any other Intellectual Property right of a third party. The Company reserves the absolute right (without explanation) to disallow the posting of any Material to the Website or to remove any Material from the Website at any time without notice to the Customer. The Company’s decision in respect of the removal of any Material posted to the Website shall be final and finding. Failure to comply with the Company’s request to remove any such Material shall entitle the Company to terminate the provision of the Services forthwith without notice and without any further liability to the Customer whatsoever.
7.6 The Company reserves the right to routinely monitor for unauthorised or unsuitable Material the Customer’s Website and in the event that any such Material has been uploaded to the Website, the Company reserves the right to inform the authorities and if such Material is not removed within 3 days of the Company’s request for such removal, to terminate this Agreement forthwith without notice.
7.7 The Customer agrees not to perform any action which will result in the reduced performance of the Server to the detriment of other users of the Server including any use of bandwidth in excess of the bandwidth allocated to it. If at any time the Customer’s use of the Service exceeds its allocated bandwidth then the Customer shall be responsible for any charges and/or penalties incurred by the Company as a result of such use by the Customer and the Company shall be entitled to limit the available bandwidth of the Customer to the bandwidth specified in the Specification Sheet or (if not so specified) the bandwidth allocated to the Customer by the Company on the commencement of the Web Hosting Service.
7.8 The Customer agrees not to use Spamming, or the sending of junk/unsolicited email, using an email address that is maintained on the Server. We will not allow our servers and services to be used for the purposes of Unsolicited Commercial Email or Unsolicited Bulk Email. you must also abide by the Company’s no spam policies. Commercial advertising and/or bulk emails may only be sent to recipients who have already “opted-in” to receive messages from the sender specifically. They must include a legitimate return address and reply-to address, and an opt-out method in the footer of the email. Upon request by Webhost Kenya, conclusive proof of opt-in may be required for an email address. Failure to comply with this policy will lead to termination of services,
8 Transfer of Website or Domain Names
8.1 The Transfer Fee will be levied in respect of the relocation of the Website or Domain Name to a third party or the server of a third party (as the case may be) or the transfer of the Domain Name to a new registrar of the Domain Name (with or without a change in the ownership of the Domain Name). The Company shall be entitled to refuse to relocate or transfer such Website or Domain Name unless the transfer fee and all other Charges due under this Agreement have been paid in full. The Company shall further be entitled to refuse the transfer of the Domain Name or Website if the Customer and the proposed transferee have not entered into and returned to the Company, (i) in respect of the Domain Name, the Transfer Agreement or (ii) in respect of the Website such other agreement as may be required by the Company in order to confirm the transferees agreement to be bound by these terms and in each case such evidence as the Company may require for the purposes of verifying the identity of the proposed transferee. The Company accepts no responsibility for the Website and any issues surrounding the Website and this Agreement shall be terminated automatically on such transfer, in respect of that particular Service provided by the Customer, but for the avoidance of doubt this Agreement shall continue in respect of all other Services which remain to be provided by the Company to the Customer.
8.2 The Company accepts no responsibility for and shall not be liable for any interruption of or loss of any of the Services, arising as a result of any transfer effected by the Company pursuant to clause 8.1 above.
9.1. Subject to the earlier termination of the Contract in accordance with the provisions of these Conditions, the Contract shall continue in force for the Term and (in respect of all Services except Domain Name Registration which shall terminate on expiry of the Term) shall continue thereafter until either party terminates the Contract by giving to the other not less than 3 months notice in writing.
9.2. Either party may (without limiting any other remedy) at any time terminate the Contract, or any part of it, by giving Written notice to the other if the other commits any breach of these Terms and (if capable of remedy) fails to remedy the breach within 30 days after being required by Written notice to do so, or if the other goes into liquidation, becomes bankrupt, makes a voluntary arrangement with its creditors or has a receiver or administrator appointed.
9.3. On termination of this Agreement or suspension of the Website Hosting Services, the Company shall be entitled immediately to block or remove the Customer’s Website from the Server and to remove all data located on it. The Company shall be entitled to delete all such data but may, at its own discretion, hold such data for such period as the Company may decide to allow the Customer to collect it at their expense, subject to payment in full of any amounts outstanding to the Company. The Company shall further be entitled to post a notice in respect of the non-availability of the Customer’s Website, as the Company deems fit.
10.1. These Conditions (together with the terms, if any, set out in the Specification Sheet) constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except in Writing between the parties. All other terms, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
10.2. A notice required or permitted to be given by either party to the other under these Terms shall be in Writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
10.3. No failure or delay by either party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by either party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
10.4. If any provision of these Terms is held by any court or other competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and the remainder of the provision in question shall not be affected.
10.5. The Company shall not be liable for any breach by it of this Agreement if the breach was caused by an act of God, insurrection or civil disorder, war or military operations, national or local emergency, acts or omissions of government, or other competent authority, the Company’s compliance with any statutory obligation, industrial disputes of any kind (whether or not involving the Company’s employees), fire, lightning, explosion, flood, subsidence, weather of exceptional severity, acts of omission of persons whom the Company is not responsible (including in particular other telecommunication service providers), or any other cause whether similar or dissimilar outside the Company’s reasonable control.
10.6. The Customer shall not be entitled to assign the benefit of this Contract in whole or in part. The Company shall be entitled to assign the benefit of this Contract by giving prior written notice of any such assignment to the Customer.