Dudobi Limited and Dudobi (Pty) Ltd (“Dudobi”) provide a range of technical services, including internet hosting services for web and software applications (“Hosting Services”); In consideration of the Charges (as defined below), Dudobi agrees to provide the Hosting Services to you on the terms and conditions set out below.
MASTER SERVICES AGREEMENT
SCOPE OF THE AGREEMENT
This Agreement (including the Schedules and pages containing prices and the services provided) sets out the entire agreement of the parties in relation to the provision of Hosting Services by Dudobi to you.
YOUR RESPONSIBILITIES AND WARRANTIES
The Customer may be an incorporated entity (such as a company or close corporation), trust, partnership, or individual.
By entering in to this Agreement, the Customer warrants that;
they are legally authorised to do so and indemnifies Dudobi against any loss or damage that we may sustain resulting from the person’s lack of authority; and
all the information supplied to Dudobi at any time relating to the entity, trust, partnership, association or other person who they represent is true, accurate, and complete.
Dudobi reserves the right to treat all misrepresentations by you or the person representing you as fraud and the person indemnifies us against any loss or damage that we may sustain resulting from the person’s lack of authority.
You, the Customer, shall provide Client Content to Dudobi for use in connection with the performance of Dudobi’s obligations under this Agreement (“Permitted Purpose”).
It shall be your responsibility to maintain your own equipment, data and communication lines required to access your website or Client Content.
You acknowledge that Dudobi’s ability to perform its obligations under this Agreement is, where relevant, dependent upon your reasonable co-operation with Dudobi as well as the accuracy and completeness of any information and data which you provide to Dudobi. Therefore, you shall:
where given reasonable notification in advance, provide Dudobi with access to, and use of, all information, data, documentation and computer time reasonably deemed necessary by Dudobi; and
appoint someone who shall provide professional and prompt liaison with Dudobi and have the necessary expertise and authority to act on your behalf.
You will obtain all necessary releases, licences, permits or other authorisations necessary for the permitted use of the Client Content by Dudobi as provided for in this Agreement. You shall also comply with all relevant legislation in relation to your use of the Services, including but not limited to data protection legislation.
All internet use is susceptible to breaches of security and you must take reasonable security precautions in light of your business and the services you use. Dudobi will provide security as part of the Hosting Services where agreed, but you are fully responsible for security other than that.
You must comply with the Acceptable Use Policy and Dudobi reserves the right to suspend services where a breach of such policy occurs. You agree to reimburse Dudobi for its costs and expenses arising from any breach of the Acceptable Use Policy, or a breach of a third party’s rights by the Client Content, data or equipment.
DUDOBI’S RESPONSIBILITIES AND WARRANTIES
Dudobi represents and warrants that;
in performing its obligations under this Agreement, it shall use good quality materials, and shall provide services in a professional, workmanlike and timely manner, in accordance with generally accepted IT industry standards and with all reasonable care, skill and diligence,
it has the facilities, infrastructure, capacity and capability to provide the Services, and
it will provide the Services in accordance with all applicable laws and regulations.
Despite this warranty, the Services are provided “as is” and “as available”. No warranty of any kind is given, whether express or implied, including warranties of merchantability, title, or non-infringement, except where such a warranty is specifically required by law.
Dudobi reserves the right, at its own expense, to change the location or configuration of the Hosting Services; provided, however, that Dudobi shall not arbitrarily or discriminatorily require such changes. Dudobi and you shall work in good faith to minimise any disruption to your services that may be caused by such changes in location or configuration of the Hosting Services.
RELATIONSHIP BETWEEN PARTIES
Nothing in this agreement shall be construed as;
constituting a temporary employment service,
creating a partnership between the Parties and neither Party shall have any authority to incur any liability on behalf of the other or to pledge the credit of the other party.
The Parties shall at all times owe each other a duty of good faith.
The relationship between the Parties will not be an exclusive one and both Parties will be free to enter into agreements similar to this one with third parties.
In consideration of the supply of the Hosting Services, in accordance with the terms of this Agreement and as outlined on the fees page, Dudobi will invoice in advance Charges for all Services except for Charges that are dependent upon usage of Services, which are invoiced in arrears.
Dudobi reserves the right to charge you additional fees (as set out on the Fees page), for any ancillary services provided to you, pursuant to clause 5.1 above.
You shall pay the Charges to Dudobi within thirty (30) days from the date of an invoice. Payment shall only be deemed received by Dudobi upon receipt of cleared funds.
The Charges are stated exclusive of Value Added Tax and you shall pay Value Added Tax on the Charges at the rate and in the manner prescribed by law from time to time.
The Charges include your monthly use of bandwidth up to but not exceeding the “Monthly data transfer” agreed between Dudobi and you.
If your average use of bandwidth exceeds this amount in any one month for a period greater than one month then you will be liable to Dudobi for an “Additional hosting bandwidth” charge for this extra bandwidth for that month, as set out on the Fees page.
For bandwidth use above the amount agreed and where you do not pay the specified additional hosting bandwidth charges as set out on the Fees page, Dudobi reserves the right to filter your bandwidth so that usage is restricted (or suspend the Hosting Services).
If you reasonably dispute any portion of an invoice, you must pay the undisputed portion of the invoice and notify Dudobi in writing of the disputed amount within thirty (30) days after delivery of the relevant invoice. You waive the right to dispute any Charges not disputed within thirty (30) days after delivery of the relevant invoice.
If you fail to pay any sum when due, Dudobi shall be entitled to bear interest at the maximum rate permissible by law. Dudobi reserves the right to send overdue accounts to a collection agency.
The Charges shall be reviewed no more than once annually and shall be notified to you in writing 30 days in advance of their implementation.
Where applicable, we will give you a VAT invoice in electronic format. You agree that by submitting an application form to us when making application for Services, that the application is seen as your confirmation to accept electronic invoices for claiming input tax.
OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS
Nothing in this Agreement shall grant to either party any right, title or interest in or to any Intellectual Property Rights of the other party.
All Intellectual Property Rights created and/or developed by Dudobi pursuant to the terms of this Agreement (other than those Intellectual Property Rights relating solely to the Client Content) is (and shall remain) the sole property of Dudobi (the “Dudobi IPR”).
You shall fully indemnify Dudobi against all reasonable claims, demands, actions, losses and damages (excluding indirect or consequential damages) costs, charges and expenses (including, but not limited to, reasonable legal costs and disbursements) arising from or incurred by reason of any infringement or alleged infringement by the Client Content (when used for the Permitted Purpose) of any third party Intellectual Property Rights.
You shall retain all rights to, and ownership of, the Client Content and any Client IPR.
For the Term of this Agreement, you hereby grant to Dudobi a non-exclusive, worldwide, royalty-free licence:
to make archive or backup copies of the Client Content and / or the Client IPR only as necessary for the Permitted Purpose.
to digitise, convert, install, upload, modify, select, order, arrange, compile, combine and otherwise use any or all of the Client Content and / or the Client IPR, for the sole purpose of developing any Applications for you;
Except as permitted in accordance with this Agreement, Dudobi shall not use the Client Content or the Client IPR without your prior written approval.
Dudobi has no knowledge of, nor interest in, Customer content hosted on your behalf and do not in any way contribute to or approve the content. Nothing that we do in the performance of our obligations under the Service will be seen as an assumption of responsibility or liability by us as a result of any content.
THIRD PARTY PRODUCTS
If Dudobi and you agree that Dudobi will use Microsoft or other third-party software to provide the Hosting Services, then you agree to the licence terms for such software and you further agree that if you resell the services, you will require your customers to also agree to those terms.
You agree that the use of third party products is in accordance with the product’s standard terms and is at your sole risk and Dudobi are in no way responsible for the product’s performance, features or failures.
All Customer Data allocated to you is personal to you and you will be liable for any loss or damage you or third parties have suffered because of your actions or the actions of a person to whom you have disclosed your Customer Data.
If any security violations are reasonably believed to have occurred in connection with your account, we will investigate and, if necessary, change the relevant Customer Data, including access codes and passwords, and notify you immediately.
We reserve the right to take any action we find necessary to preserve the security and reliable operation of our infrastructure. You may not do anything (or permit anything to be done) that will compromise our security.
Dudobi agrees and undertakes to you in relation to the processing of Personal Data as follows:
not to process any Personal Data which is disclosed to it, except in accordance with your instructions;
in relation to the use of Personal Data, to hold the Personal Data in strict confidence; not to disclose the Personal Data to any third parties; and not to use any Personal Data for any purpose other than as permitted by you. In particular, Dudobi is not to make any commercial use of the Personal Data whether for itself or a third party;
to ensure that appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of or damage to Personal Data;
to provide details, at your request, of any security measures taken in relation to the Personal Data and to procure compliance with such measures at all times;
to return promptly to you, at your request, all tangible and intangible items containing Personal Data together with any copies, destroy any other documents containing Personal Data together with any copies and expunge all Personal Data from any computer, word processor or other device containing it and further confirm compliance with the above in writing to you;
We have systems in place to assist our critical technical infrastructure to recover from a natural or human-induced disaster. However, we do not specify any recovery time and are not liable for any loss or damage you suffer as a result of a disaster. Nothing contained in Our Terms will be seen as a representation that any back-ups of data we have implemented will be successful or in any way will assist with disaster recovery.
The terms of this clause 9 shall apply to all Personal Data processed by Dudobi on your behalf from time to time and will remain in effect without limit of time.
Both parties warrant that they will duly observe all their obligations under the Data Protection Act 2018 which arise in connection with this Agreement. Without prejudice to the generality of the preceding sentence, both parties hereby warrant that they will obtain, and at all times maintain, a registration under the Data Protection Act 2018 to the performance of their obligations under this Agreement.
Dudobi and/or you may, in the course of working together pursuant to this Agreement have access to or to have communicated to them certain Confidential Information belonging to the other which is proprietary and must be held in confidence.
Any Confidential Information, whether contained in original or copy documents or in any other form, shall at all times remain the property of the party disclosing the Confidential Information (“the Discloser”) together with all notes, memoranda and drawings that have been made as a result of access to such Confidential Information.
The party receiving Confidential Information (“the Recipient”), shall hold in confidence all Confidential Information disclosed to it by the Discloser, and no Confidential Information will be used by the Recipient for any purpose other than the Permitted Purpose without the prior written permission of the Discloser, unless such information is trivial or obvious;already in its possession other than as a result of a breach of this clause; or in the public domain other than as a result of a breach of this clause.
The Recipient shall take all reasonable steps to minimise the risks of unauthorised disclosure of the Confidential Information and will provide proper and secure storage for all information and any papers, drawings or other materials which relate to or are compiled from such information.
The confidentiality obligations expressed in this Agreement shall continue for the Term of this Agreement and for two years thereafter.
Nothing in this Clause shall be deemed or construed to prevent either party, from disclosing any Confidential Information obtained from the other party to any employee, other contractor or any other person engaged by you or Dudobi in connection with this Agreement, provided that the Discloser shall have obtained from the employee, contractor or other person a signed confidentiality undertaking on substantially the same terms as are contained in this Clause.
Dudobi reserves the right to make any press announcements or publicise this Agreement in any way, subject to the Customer’s prior written approval of the wording of any such release.
Any notice, demand or other communication given or made under or in connection with the matters contemplated by this agreement shall be sent by electronic mail to the address, as notified by each party to the other from time to time.
Any notice or communication required or permitted to be given under this Agreement will be valid and effective only if in writing.
For the purposes of this Agreement, the expression “Force Majeure” shall mean any cause affecting the performance by a party of its obligations arising from acts, events, omissions, happenings or non-happenings beyond its reasonable control including fire, flood, civil riot, terrorism or war, delays in transportation, failure of public power supplies, failure of communication facilities, or failure or interruption of services supplied by a third party or any disaster or industrial dispute affecting a third party, for which a substitute third party is not reasonably available.
If either of the parties shall become aware of circumstances of Force Majeure which give rise to or which are likely to give rise to any failure or delay on its part, it shall forthwith notify the other party and shall inform the other of the period which it is estimated that such failure or delay shall continue.
Should a circumstance of Force Majeure persist for a period of greater than 30 (thirty) days, either party may by written notice to the other terminate this Agreement forthwith.
Neither party shall be liable to the other for failure to perform its obligations under this Agreement, which is due to Force Majeure.
No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of this Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this Agreement.
TERM AND TERMINATION
This Agreement shall subsist for one (1) year from the Effective Date and, unless earlier terminated either in whole or in part in accordance with the following provisions of this Clause, shall continue thereafter for successive periods of one (1) year commencing on the anniversary of the date hereof.
Dudobi may, upon written notice to you, suspend or terminate the Hosting Services without liability if you fail to pay any past due balance for such Services (other than those disputed under Clause 5.8) within five (5) days after written notice from Dudobi.
Either party may terminate this Agreement forthwith by notice in writing to the other party if the other party is unable to pay its debts or enters into a compulsory or voluntary liquidation, or confirms with or convenes a meeting of its creditors or has a receiver appointed over any or all of its assets or takes or suffers any similar action in consequence of a debt, or ceases or threatens to cease to carry on business, for any reason.
Either party may terminate this Agreement forthwith where the other party fails to perform any of its obligations under this Agreement and has not remedied such failure within fifteen (15) days of having been notified of the failure by the other party.
In the event of any termination of this Agreement, Dudobi shall forthwith return or destroy (as required by you) all the Client Content and you may be required to give up any IP addresses allocated to it, and if you do not, then Dudobi reserve the right to change or remove such IP addresses.
Termination shall not prejudice or affect any right of action or remedy which shall have accrued or shall thereafter accrue to either party, and any clause intended to continue in force shall do so.
If the Customer is found to be in breach of this Agreement, Dudobi may, without prejudice to any other rights that they may have and without notice to the Customer;
claim immediate payment of all outstanding charges due to us,
terminate or suspend your use of the Services,
terminate our relationship with you; or
list the Customer with any credit bureau, Internet Service Provider list or fraud prevention service. By agreeing to the Terms & Conditions, the Customer expressly consent to this.
In all instances, we may retain all Services Fees you have already paid and recover all of our costs associated, including legal costs of an attorney.
Upon termination of this agreement, subject to due payment by the Customer of all undisputed amounts due and payable to Dudobi, Dudobi shall render such reasonable assistance to the Customer so as to enable the Customer to migrate any Services affected by such termination to a service provider of the Customer’s choice.
LIMITATION OF LIABILITY
Except in the case of death or personal injury caused by the negligence of Dudobi, Dudobi shall not be liable to you by reason of any representation (unless fraudulent) or any implied warranty, condition or other term, or any duty at common law, or the express terms of this Agreement, for any interruption of service or for any loss of profit or indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of Dudobi, its agents or contractors or otherwise) and Dudobi’s maximum liability under or in connection with this Agreement, whether in contract, tort (including negligence) or other, will in no circumstances exceed the charges paid by you under this Agreement during the previous 3 months.
Our liability for direct damages under clause 16.1 will be excluded where we are held liable because of your use of any third party services or products which you accessed together with the Services, but which we did not provide to you.
This clause will apply even if you advised Dudobi of the possibility of loss of damage prior to its occurrence.
If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provision hereof shall continue in full force and effect as if this Agreement had been valid.
SUSPENSION OF SERVICES
Dudobi may temporarily suspend its Service to repair, maintain, upgrade, modify, replace or improve any of its Services. Where circumstances permit, Dudobi will provide prior notice of any service suspension to Customers and endeavour to undertake such maintenance at times of low traffic volume. However, Dudobi will not be held liable for any resulting loss or damage suffered as a result of the service suspension.
Dudobi is entitled to suspend the provision of the Services to the Customer under the following circumstances;
where the Customer has not made payment of monies owing by due date as set out in clause 5.3
where such suspension is necessary to maintain security as set out in clause 9.4
Suspensions under clause 18.2 can be performed immediately and without notice, provided that Dudobi shall use reasonable commercial endeavours to communicate such actions.
The period of suspension shall be that which is reasonable under the particular circumstances which gave rise to the suspension.
Dudobi reserves the right to make changes to Our Terms at any time. An updated version of our Terms will be posted on the Website.
It is the Customer’s responsibility as a diligent user to check any amended Terms posted on the Website.
The Customer indemnifies Dudobi from any liability arising from civil or criminal proceedings instituted against us or for any loss or damage you, or a third party, have suffered because of any interruption or unavailability of the Services.
The Customer indemnifies Dudobi against all losses suffered or actions against us as a result of: the use of the Services, or any downtime, outage, degradation of the network, interruption in or unavailability of the Services. Included within the range of downtime, outage, degradation of the network, interruption, or unavailability of the Services is any of the following:
software or hardware service, repairs, maintenance, upgrades, modification, alterations, replacement or relocation of premises affecting the Services,
non-performance or unavailability of any of the services given by an electronic communications network or service provider, including, line failure, or in any international services or remote mail Servers,
non-performance or unavailability of external communications networks to which you or our network infrastructure is connected, and
repairs, maintenance, upgrades, modifications, alterations or replacement of any hardware forming part of the Services, or any faults or defects in the hardware.
If Dudobi are sued for something that you have indemnified us for, you will take our place in the law suit or be liable to pay us back for any costs, damages and expenses including attorney’s fees on the attorney and own client scale finally awarded against us by a court or agreed to in a written settlement agreement, provided that:
we notify you in writing as soon as we become aware of the indemnified claim so you can take steps to contest it;
you may assume sole control of the defence of the claim or related settlement negotiations; and
we will give you, at your expense, with the assistance, information, and authority necessary to enable you to perform your obligations under this clause.
You must pay us any amount due under clause 12.3 as soon as we demand payment. If you contest the amount, you must pay the amount into your attorney’s trust or give us security to cover the amount, until we have resolved the dispute.
Dudobi and you agree to resolve in good faith, all disputes or differences which may arise in respect of the construction or effect of this Agreement or the rights, duties and liabilities of the parties or any matter or event connected with or arising out of this Agreement. If a resolution cannot be reached within 30 days, then the matter shall be referred to CEDR (Centre for Effective Dispute Resolution).
If the dispute has not been resolved by the CEDR process within 2 months, then the matter shall be referred to the courts.
Unless Unless otherwise agreed in writing between the parties, this Agreement shall be subject to and construed or interpreted in accordance with English law and shall be subject to the exclusive jurisdiction of the English courts to which both parties hereby submit.
SCHEDULE 1 – HOSTING SPECIFIC TERMS
Dudobi shall provide to you the Hosting Services and such other ancillary services (such as development services and consulting services) as may be agreed between Dudobi and the Client from time to time, pursuant to these Terms and Conditions and the Acceptable Use Policy, and in consideration for the additional fees, as may be advised.
The Hosting Services shall include virus checking and firewall protection, but Dudobi shall not be liable to you for any unauthorised access to you website, content or data, or through use of Dudobi’s Hosting Services, unless the access was caused by Dudobi’s failure to perform its obligations under this Agreement, and such failure caused the unauthorised access.
Save for routine and emergency maintenance, Dudobi shall provide the Hosting Services on a continual basis and in accordance with the Service Levels. Any break in the continuity of Hosting Services resulting from routine and emergency maintenance will be notified to you as soon as reasonably possible.
If you breach any of these Terms and Conditions, Dudobi reserves the right to suspend the Services. If you wish to reconnect any Hosting Service that has been suspended or terminated by Dudobi, you may do so upon payment of the Reconnection fee as set out on the fees page.
SERVERS AND INFRASTRUCTURE
Where applicable, Dudobi will make a Server available to you for your own exclusive use. The Server will at all times remain the property of Dudobi, who will setup and manage the Server at the Location on your behalf.
Dudobi will manage all Servers, including the hardware, software, and upgrades at their sole discretion. Customers will be informed before any adjustments or upgrades and a suitable time will be agreed upon between parties.
Where we supply and install the Software, we will do so according to the written specifications agreed to between both Parties. For that purpose, the Customer must give Dudobi all the relevant information and co-operation needed to enable us to do the installation. If there are any extra costs involved with the Software, which were not present before we contracted with you, these will be for your account. If the Customer requires assistance for the installation of the Software, you will be charged according to our standard hourly rates.
The Customer is responsible for all bandwidth and traffic associated with their Server. Dudobi will monitor traffic usage and any spikes that may occur during business hours. However, the Customer will remain solely responsible for all traffic associated costs. If your Server becomes the target or source of any form of denial of service attack, we reserve the right to disconnect the Server from the network if we find that no other solution is possible at that stage.
Dudobi will not be responsible for your use of any Software that you may install (and any vulnerabilities including traffic generated as per clause 3.4 that may result from the use of the Software). You use the software at your own risk.
TROUBLESHOOTING, AD-HOC AND EMERGENCY WORK
Any troubleshooting you request will be charged at our standard hourly rate. If the cause turns out to be due to the gross negligence on our part, these charges will be waived. Our senior management will decide whether or not an act of gross negligence has been committed.
If you require any ad-hoc (on request) work to be done outside Business hours, you must specifically schedule this with us. We will only attend to emergency work outside of Business hours.
We may invoice you for time spent troubleshooting issues that we find are outside our control that we cannot reasonably be expected to have prevented or solved quickly. Only we may decide what is reasonably within or outside our reasonable control.
SCHEDULE 2 – DEFINITION OF TERMS
“Application(s)” or “Client Application(s)” means each software or web program, both privately and publicly accessible, or located on the Internet, comprised of computer software programs and information, and any associated or linked applications, databases and/or software.
“Charges” mean Dudobi’s charges as set out under “Charges” above at clause 5. All charges exclude VAT.
“Customer” is any person identified on the application form for Services or in any addendum.
“Customer Data” means any username, password or email address we give the Customer as part of the Services.
“Client Content” means information, text, graphics, data, databases, photographs, sounds or any other copyright work publicly available on any Application, or provided for publication on any Application either by you or any other third party commissioned by you, together with all User Generated Content and information regarding Users (such as, for example, the number of page impressions, Users’ email addresses or any other information posted by Users or detected by the System about Users).
“Client IPR” means your intellectual property rights.
“Confidential Information” means all information designated as such by either party in writing together with all other information which relates to the business, affairs, products, developments, trade secrets, know-how, personnel, customers and suppliers of either party or information which may reasonably be regarded as the confidential information of the disclosing party (whether or not so designated) and including any materials, trade secrets, know how, formulas, processes, algorithms, ideas, strategies, inventions, data, network configurations, systems architecture, designs, flow charts, drawings, proprietary information, business and marketing plans, financial and operational information, and all other non-public information relating to the current and/or future operations of a party.
“Hosting Services” or “Services” means those Internet and related services to be provided by Dudobi.
“Intellectual Property Rights” or “IPR” means patents, trademarks, service marks, database rights, design rights (whether registrable or otherwise), applications for any of the foregoing, copyright, know-how, trade or business names, domain names and other similar rights or obligations whether registrable or not in any territory or jurisdiction (including but not limited to the Republic of South Africa).
“Service Levels” means those service levels for the provision of the Consulting Services or the Hosting Services.
“Server” means the computer hardware, machinery, and equipment on which the software operates.
“Term” means the term of this Agreement as set out under “Term and Termination” above.
“Terms and Conditions” or “Terms” means these terms and conditions together with the schedules hereto.
“User(s)” means any member of the public accessing your Hosting Services and / or Applications via the Internet or by any other means.
“User Generated Content” Means all such material posted by Users on any Application, including but not limited to text, graphics, photographs, logos, designs, drawings, designs, artistic and graphical works, and other information.
SCHEDULE 3 – ACCEPTABLE USAGE POLICY
Designed to maintain security, integrity & performance
This policy is designed to help maintain the security, integrity and performance of the Hosting Services. The following terms constitute what is considered acceptable, and if you do not agree to the terms of this acceptable use policy, then you may not use Dudobi’s services.
You shall not and shall use your reasonable endeavours to ensure that your partners, agents and employees do not make use of the Hosting Services to facilitate and further the publication and distribution of spam, chain letters or bulk email.
You shall not and shall use your reasonable endeavours to ensure that your partners, agents and employees do not make use of the Hosting Services to send or cause to be sent or forwarded either large numbers and/or large messages or a message irrespective of size at such frequency that it causes a “denial of service attack” such that the recipient’s email box becomes unable to cope with the volume of email traffic directed at it and/or disables the recipient’s email box.
You shall not and shall use your reasonable endeavours to ensure that your partners, agents and employees do not make use of the Hosting Services to send or forward malicious messages and/or viruses to cause material annoyance and/or materially disrupt the use of the Internet by another user.
You shall not and shall use your reasonable endeavours to ensure that your partners, agents and employees do not cause another Internet user to be subscribed to a mailing list or some other service without their prior express permission.
You shall not and shall use your reasonable endeavours to ensure that your partners, agents and employees do not occasion the forging or creation of a header and/or address to tend to show that a message originates from a machine other than that on which it does originate or that replies to a message are directed to a machine which you neither have a right nor permission to cause replies to be directed.
USE OF HOSTING SERVICES AND WEB SPACE
You shall not and shall use your reasonable endeavours to ensure that your partners, agents and employees do not use your Hosting Services for the publication and distribution of spamming software, lists of personal or corporate email addresses (except where each and every addressee has given their permission) or any personal data except where such data is in accordance with the Data Protection Act 2018, regulations made pursuant to that Act, and subsequent legislation.
You shall not and shall use your reasonable endeavours to ensure that your partners, agents and employees do not use unsolicited email messages or cause such to be used in order to draw attention to, promote or otherwise advertise services run under Dudobi’s Hosting Services.
You shall not and shall use your reasonable endeavours to ensure that your partners, agents and employees do not publish, hold or cause to be held or accessed via Dudobi’s Hosting Services any material that is of an illegal nature.
You may provide Dudobi with a registered domain name or names and / or as part of the Hosting Services Dudobi may register such domain name(s) selected by you, provided that such domain name is available for registration and does not violate any registration services’ or registrars’ policies, or any law or regulation.
If Dudobi registers a domain name(s) on your behalf, you agree to promptly reimburse Dudobi for any fees paid by Dudobi for registration services with respect to the registration, renewal and maintenance of such domain name(s). In the event of any dispute or cause of action arising out of or related to your domain name used in connection with the Hosting Services, upon your request, Dudobi will attempt to register with Network Solutions or other registrar an alternative domain name chosen by you. Dudobi shall forthwith, upon your request to do so, transfer to you (and take all necessary steps at your cost to facilitate such transfer of) any domain name which it has registered on your behalf.
You agree to be bound by the terms of InterNIC, ICANN or other relevant domain controlling bodies then current domain name policy and/or the policies of the national DNS registration authorities to which you become subject upon registration of your domain name. The inability to use a domain name shall not entitle you to a refund by Dudobi of any fees paid with respect to the registration of such unusable domain name.
Dudobi may provide you with an IP address or addresses as part of the Hosting Services. However, if the Hosting Services are terminated by Dudobi for any reason, then (upon Dudobi’s request and as far as permitted by law), such IP address or addresses shall revert to Dudobi, whereupon you shall cease using such IP address or addresses.
Upon giving you at least seven (7) days’ prior written notice, Dudobi reserves the right to withdraw its provision of Hosting Services at any time that it becomes aware of or is notified of the misuse, abuse or illegal use of the Hosting Services contrary to either the acceptable use or any statutory regulation or law governing the relationship between Dudobi and you under this Agreement.
SCHEDULE 4 – DATA PROTECTION POLICY STATEMENT
Dudobi is committed to ensuring the information security and data protection of all of its clients, suppliers and employees, in accordance with the “EU General Data Protection Regulation” (GDPR) and the “Data Protection Act 2018”.
Specifically, Dudobi will ensure:
That it provides and maintains a fully GDPR compliant working environment, adhering to all guidelines required as both a data controller and data processor where applicable.
It incorporates information security and data protection considerations into all aspects of its ongoing operations.
That all employees are provided with the applicable processes, information and training to enable them to perform their duties without jeopardising information security and data protection.
That all relevant information security and data protection information will be communicated to current and future staff members and that their responsibilities are clearly understood.
That information security and data protection standards are maintained, using industry/ICO guidelines wherever applicable.
That it will periodically audit internal processes to check that good information security and data protection in place.
That it will periodically audit and review its Information Security Management System in accordance with its ISO27001 accreditation.
SCHEDULE 5 – DATA PROTECTION SCHEDULE
Dudobi and the Customer have entered into an Agreement (“Agreement”) for the provision of Dudobi Services, in the context of which, Dudobi may process Personal Data.
The purpose of this Data Protection Exhibit Agreement (“DP Exhibit”) is to set out the data protection requirements that apply to the provision of Dudobi Services and ensure that the Customer and Dudobi comply with Data Protection Laws.
This DP Exhibit is incorporated into and forms part of the Agreement and is in addition to any obligations in relation to data protection therein. In the event of a conflict between the Agreement and this DP Exhibit, the terms of this DP Exhibit shall control.
DEFINITION OF TERMS
“Data Controller” “Data Processor” “Data Subjects” “Personal Data” and “Personal Data Breach” shall have the meanings ascribed to them in the EU General Data Protection Regulation (Regulation 2016/679) (“GDPR”).
“Data Protection Laws” means the provisions of applicable laws regulating the use and processing of data relating to persons, as may be defined in such provisions, including a) prior to 25 May 2018, the EU Data Protection Directive 95/46/EC, b) after 25 May 2018 the GDPR, c) the Electronic Communications Data Protection Directive 2002/58/EC, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and d) all other applicable laws and regulations relating to the processing of personal data.
“Services” means the Dudobi Services to be provided to Customer under the Agreement and the applicable Services Exhibit(s).
COMPLIANCE WITH DATA PROTECTION LAWS
Dudobi and the Customer agree that, the Customer is an independent Data Controller with respect to the processing of Personal Data which is necessary for the operation of the Services, and Dudobi is an independent Data Controller with respect to the processing of billing, utilisation, usage patterns/counts/statistics, traffic data and other Customer account related information (e.g. name, address, email address)to the extent it is Personal Data, which is necessary for Dudobi’s performance of its obligations under the Agreement and the applicable Services Exhibit(s), or with respect to any Personal Data held for general business purposes.
Dudobi and Customer shall each comply at all times with its obligations under Data Protection Laws in respect of any Personal Data processed by it under the Agreement.
Dudobi acknowledges that it is a Data Processor on behalf of the Customer for the purposes of providing Services and performing its related obligations (including incident resolution, support or consultancy services). The subject matter, duration and nature of the processing, the types of Personal Data and applicable Data Subjects are described in the applicable Services Exhibit(s).
In so far as Dudobi processes Personal Data on behalf of the Customer as a Data Processor, Dudobi will:
Only process Personal Data in accordance with the Customer’s documented instructions, including as set out in the Agreement and this DP Exhibit and ensure that Dudobi personnel process Personal Data only on such instructions of the Customer, unless processing is required by EU or member state law to which Dudobi are subject, in which case Dudobi shall, to the extent permitted by such law, inform Customer of that legal requirement before processing that Personal Data;
Restrict the disclosure and processing of Personal Data to the extent necessary to provide the Services, or as otherwise permitted under the Agreement and this DP Exhibit, or by Customer in writing, and only disclose Personal Data on a need to know basis in connection with the Services to those who have committed themselves to confidentiality, or as required by applicable law;
Taking into account the state of the art, costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, implement and maintain appropriate technical and organisational measures designed to protect Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, and against all other unlawful forms of processing and ensure a level of security appropriate to the risk presented by the processing;
Ensure that only those personnel who need to have access to Personal Data are granted access to it, and that such access is granted only for the proper provision of the Services; and
If and to the extent Dudobi retains a copy of any Personal Data, not retain that Personal Data for longer than is necessary to perform the Services and at the Customer’s option, securely destroy or return such Personal Data, except where required to retain the Personal Data by law or regulation. The parties agree that Dudobi shall not actively process such Personal Data and shall be bound by the provisions of this DP Exhibit in respect of any such retained Personal Data. Dudobi shall delete such data promptly after it ceases to be obliged to retain it and shall only process it to the extent required to comply with applicable laws.
Dudobi acknowledges that the Customer serves as Data Controller and Dudobi as Data Processor for all customer data hosted on Dudobi’s infrastructure. Dudobi will not process Customer data for any purposes unless explicitly requested to do so by the Customer.
The Customer generally authorises Dudobi to appoint sub-processors in accordance with any restrictions in this DP Exhibit and the Agreement.
Prior to disclosing any Personal Data to any sub-processor, Dudobi shall ensure that it has undertaken appropriate due diligence in respect of such sub-processor, and shall ensure the sub-processor enters into a written agreement on terms which provide that the sub-processor has equivalent obligations to those set out in this DP Exhibit. Dudobi shall remain fully liable to Customer for any breach of such obligations by the sub-processor.
Dudobi shall maintain an up to date list of its sub-processors and shall inform Customer with details of any intended change in sub-processors at least 30 days prior to any such change. The Customer may object to Dudobi’s appointment or replacement of a sub-processor prior to its appointment or replacement, provided such objection is based on reasonable grounds relating to data protection. In such event, Dudobi will either not appoint or replace the sub-processor or, if this is not possible, the Customer may terminate the applicable Service Exhibit (without prejudice to any fees incurred by the Customer prior to termination). Dudobi shall not use such sub-processor until any such objections are resolved or the Customer has terminated the applicable Service Exhibit.
Dudobi shall, insofar as is possible, promptly notify the Customer of any inquiry, complaint notice or other communication it receives from any supervisory authority, or from any Data Subject relating to the Services (including any requests to access, correct, delete, block or restrict access to their Personal Data or receive a machine-readable copy thereof) and, insofar as is possible and to the extent technically feasible, assist the Customer with its obligation to respond to any notification or Data Subject rights request in accordance with the timescales set out in the Data Protection Laws.
If the Customer reasonably believes that Dudobi’s processing of Personal Data is likely to result in a high risk to the data protection rights and freedoms of Data Subjects, Dudobi shall, on request from the Customer, assist the Customer in connection with any data protection impact assessment and prior consultation, which may be subject to additional fees and terms, that may be required under Data Protection Laws, taking into account the nature of the processing and the information available to Dudobi.
Dudobi shall notify the Customer without undue delay on becoming aware of any Personal Data Breach involving Personal Data Processed on behalf of the Customer using the Services, and thereafter co-operate with the Customer and provide assistance as may be reasonably required by the Customer in the investigation, remediation and mitigation of such breach. Dudobi shall provide reasonable assistance to the Customer in respect of any breach reporting obligations the Customer may have, and provide such additional information relating to such breach as the Customer may reasonably require.
Dudobi commits to fulfilling their obligation to report any breach deemed to be a substantial risk to Personal Data, directly to the ICO within 72 hours of becoming aware of such an event.
Dudobi will maintain all information necessary to demonstrate compliance with its obligations identified in this DP Exhibit and a written record of all processing of Personal Data on behalf of the Customer and, upon reasonable request grant the Customer and its auditors and agents a right of access to and to take copies of records relating to compliance and all processing of such Personal Data on behalf of the Customer in order to assess whether Dudobi has complied with its obligations in respect of the processing of Personal Data. Upon reasonable notice, Dudobi shall allow the Customer to, or where applicable, shall cooperate with the Customer and Dudobi’s third-party providers to arrange for access to premises and other materials and personnel and shall provide reasonable assistance in order to assist the Customer in exercising its audit rights under this clause provided that:
such access shall occur at a mutually agreeable time and the scope of the visit will be mutually agreed upon;
such access shall not unreasonably interfere with Dudobi’s operations; and
access to Dudobi premises and systems shall be subject to Dudobi’s reasonable access requirements and security policies and shall not compromise any confidential information to which the Customer has no entitlement.
Dudobi shall not transfer any Personal Data outside the EEA except to the extent authorised by the Customer.
The Parties may amend this DP Exhibit at any time during the term of the Agreement by written agreement if necessary to comply with any legal requirement or guidance from a supervisory authority, or if required to take account of any changes to the processing of Personal Data pursuant to the Agreement and applicable Services Exhibit(s).
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