1. Term and Payment For Services
1.1 Agreement Term This Agreement shall be for an 'Initial Term' of 1 year. This Agreement will be automatically renewed (the 'Renewal Term') at the end of the Initial Term for the same period as the Initial Term unless you provide Web Industries Ltd (WEB INDUSTRIES) with notice of termination thirty (30) days prior to the end of the Initial Term or the current Renewal Term.
1.2 Termination Policy If you terminate your receipt of the Services prior to the end of the Initial Term or the current Renewal Term, whichever is then applicable, you must pay, in full, the remainder outstanding of your current Term. WEB INDUSTRIES will not refund to you any fees paid in advance of such termination. WEB INDUSTRIES may terminate this Agreement at any time and for any reason by providing to you written notice. If WEB INDUSTRIES terminates this Agreement, WEB INDUSTRIES will refund to you the pro-rata portion of prepaid fees attributable to Services (excluding setup fees) not yet rendered as of the termination date. If termination was enforced to due violations that result in damages or fees assigned to WEB INDUSTRIES on your behalf, no refunds shall apply and you will be held liable for such fees.
1.3 Charges You agree to pay for all charges attributable to your use of the Services at the then current WEB INDUSTRIES prices.
1.4 Payment All charges for Services must be paid in advance according to the then current prices applicable to the Services. WEB INDUSTRIES Hosting may also create periodic invoices for any applicable Supplemental Charges associated with your use of the Services. You agree to pay to WEB INDUSTRIES the amount indicated in each invoice by the due date reflected on that invoice. WEB INDUSTRIES will follow the following process and timeframes relating to outstanding accounts receivable invoices:
- Invoices for regular hosting services are sent out 20 days prior to their due date.
- Payment is required by the due date - our services are provided on a payment in advance basis.
- A reminder notice will be sent 5 days after the due date.
- If the account is not paid within 15 days after the due date your account will be temporarily suspended and payment received prior to services being reactivated.
Your failure to fully pay any fees and taxes by the applicable due date will be deemed a material breach of this Agreement, and WEB INDUSTRIES may, in addition to any other remedy it may have: (i) suspend its performance of the Services and/or terminate this Agreement; and/or (ii) At the time of such nonpayment, WEB INDUSTRIES may, delete any and all content from the WEB INDUSTRIES Servers. Any such suspension or termination of the Services would not relieve you from paying past due. 1.4.1 You will remain liable for all fees during any period when Services have been discontinued or suspended due to a failure on your part to comply with these terms and conditions.
1.4.2 You are liable to pay overdue interest at 5% per week on any amounts not paid within 7 calendar days of invoice for hosting services.
1.4.3 You must pay WEB INDUSTRIES' charges without any set off, counter claim or deduction unless same is agreed in writing between us.
1.4.4 WEB INDUSTRIES reserves the right to prioritize early paying clients and to charge urgency fees for turnaround within 3 working days. (VIP status)
1.4.9 In the case of non-payment of invoices, you are liable for all collection costs, including any actual solicitor's fees or debt collection agency fees until the debt is paid in full.
1.5 Errors If you ever feel that WEB INDUSTRIES incorrectly charged, you must contact accounts for a correction, within (5) days of the due date on the invoice by emailing accounts[at]webindustries.co.nz.
2. Use Of Services
2.1 Acceptable Use Policy The WEB INDUSTRIES Acceptable Use Policy (AUP) governs the general policies and procedures for use of the Services. YOU SHOULD CAREFULLY READ THE AUP. BY USING OUR SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THE AUP AND ANY MODIFICATIONS. WEB INDUSTRIES reserves the right to terminate your account for any violation of the AUP or this agreement. WEB INDUSTRIES' Acceptable Use Policy (AUP) is designed to protect our clients and other Internet users from activities that are potentially damaging, abusive or illegal.
All users of WEB INDUSTRIES' Web Hosting and Internet services must comply with this Acceptable Use Policy. We support the free flow of information and ideas over the Internet and do not exercise editorial control over the content of any Web site, electronic mail transmission, news group, or other material created or accessible over or through our system (except for certain proprietary websites). However, in accordance with our Terms of Service, we may remove any materials that, in our sole discretion, may impact on the performance of our web hosting system, may be illegal, may be offensive, may subject us to liability, or which may violate this Acceptable Use Policy.
Violation of this Acceptable Use Policy may result in the suspension or termination of your access to our Services. By using our web hosting services, you agree to comply with our Acceptable Use Policy. This AUP is designed to protect our customers who purchase our services in good faith and expecting a high quality level of service. It is aimed at restricting harmful activity, not the legitimate use of our services.
2.1.1 Introduction This Acceptable Use Policy (AUP) sets forth the principles that govern the use by customers of the Web-based products and services provided by WEB INDUSTRIES Ltd. This AUP is designed to help protect our customers, and the Internet community, from irresponsible, abusive or illegal activities.
2.1.2 General Violations · This AUP identifies the actions that WEB INDUSTRIES considers to be Prohibited Actions - primarily, those actions which create denial of access or impediment of service, however there may be other uses not detailed in this AUP that constitute unacceptable use, and determination of actions considered to be unacceptable use will be solely at the discretion of WEB INDUSTRIES. · Any actions which adversely impact on system or network performance are strictly prohibited and restriction of service may be immediate and without prior notice. · All activities considered to be illegal by New Zealand law are obviously prohibited.
2.1.3 Prohibited Actions: Copyright · Any activities that breach of international or New Zealand Copyright law are prohibited, including unlicensed use of any proprietary software, this includes providing services for a fee using any Licensed Products without specific permission or unless we are providing you with a Licensed Product for this purpose.
2.1.4 Prohibited Actions: Privacy · Using the Services to collect, or attempt to collect, personal information about third parties without their knowledge or consent.
2.1.5 Prohibited Actions: Access, Impersonation And Fraud · Unauthorized distribution of passwords and/or access codes. · Adding, removing, or modifying identifying network header information (aka 'spoofing') in an effort to deceive or mislead. · Attempting to impersonate any person by using forged headers or other identifying information. · Fraudulent activity of any nature.
2.1.6 Prohibited Actions: Network Unfriendly Activity And Server Load · Any activities adversely affecting the ability of other people or systems to use WEB INDUSTRIES services or the Internet. This includes 'denial of service' attacks against the WEB INDUSTRIES servers, network hosts or individual users. · Any activities that result in high server load are prohibited, and services may be discontinued immediately. This includes any activities that cause excessive consumption of resources, including CPU time, memory, disk space and session time. You may not use resource-intensive programs which negatively impact other customers or the performance of WEB INDUSTRIES servers, and we reserve the right to terminate or limit such activities. We can provide you with services that are not subject to the same limitations, if you need such a service, please contact us to discuss your requirements. · Peer-to-peer file sharing systems of any nature are unacceptable on WEB INDUSTRIES servers, regardless of copyright related considerations. · Serving videos without our prior permission is also prohibited, as is providing Internet TV.
2.1.7 Prohibited Actions: Reselling Services · Reselling WEB INDUSTRIES services is prohibited without our prior authorisation. If you want to resell services, please contact us in regards to our Reseller package.
2.1.8 Prohibited Actions: Commercial E-Mail · Sending unsolicited commercial e-mail (spam) using a WEB INDUSTRIES e-mail or website address. · Sending large volumes of e-mail whether solicited or unsolicited (aka 'mail bombing'/spam). · If you have any questions regarding 'spam', please contact us to discuss them – decisions on whether email is 'spam' will be made on a case-by-case basis. · You can find information on spam law as it applies in New Zealand at: www.antispam.govt.nz. It is better to check prior to sending emails that may be considered spam. · Sending spam from our service, or using our service in any way whatsoever connected to spamming activities will result in immediate discontinuation of service provision to relevant accounts.
2.1.9 Prohibited Actions: Access Control And Authentication · Attempting to circumvent user authentication or security of any host, network, or account (aka 'cracking') is strictly prohibited. This includes, but is not limited to, accessing data not intended for the customer, logging into a server or account the customer is not expressly authorised to access, or probing the security of WEB INDUSTRIES servers and networks. · 'Phishing' in any form, including using our services as a third party in phishing activities.
2.1.10 Prohibited Actions: Ip Proxy Servers, Proxy Hunters, Spiders, Robots · Using any program/script/command, or sending messages of any kind, designed to interfere with a User's session, by any means, locally or by the Internet. · Using scripts of any form on WEB INDUSTRIES servers is the user's responsibility. Any scripts that interfere with our services will result in immediate discontinuation of services, so please check carefully the implications of running scripts in any language, of any nature. · IP Proxy Servers may not be used in any form.
2.1.11 Enforcement · WEB INDUSTRIES reserves the right to monitor Internet access to the WEB INDUSTRIES services by authorised users, as part of the normal course of its business practice. · Should WEB INDUSTRIES discover users engaged in prohibited actions as outlined above, which create denial of access or any form impediment of service, and which adversely affect WEB INDUSTRIESS' ability to provide services, WEB INDUSTRIES reserves the right to temporarily or permanently suspend access to the WEB INDUSTRIES Host Server and/or Database. · WEB INDUSTRIES shall notify the user of any suspension, and the cause thereof, as soon as reasonably possible. We may restrict access immediately and prior to notice being served in circumstances where network performance is affected. Any temporary suspension will remain in effect until the Prohibited Actions have ceased. · Actions causing significant network performance impairment will result in all user data being removed from the WEB INDUSTRIES servers immediately and permanently with no notice. · These enforcement actions are solely to protect our clients who use our services in good faith and expecting certain levels of service quality. It is only cases of flagrant abuses of this AUP that will result in permanent suspension and data removal.
2.1.12 Security · You are responsible for any misuse of your account, even if the inappropriate activity was committed by a friend, family member, guest or employee. Therefore, you must take steps to ensure that others do not gain unauthorized access to your account. · It is your responsibility to ensure that your network is configured in a secure manner. A Client may not, through action or inaction, allow others to use their network for illegal or inappropriate actions. A Client may not permit their network, through action or inaction, to be configured in such a way that gives a third party the capability to use their network in an illegal or inappropriate manner.
2.2 Material and Product Requirements Unless we have agreed otherwise in a separate agreement, you must ensure that all material and data placed on WEB INDUSTRIES equipment is in a condition that is 'server-ready', which is in a form requiring no additional manipulation by WEB INDUSTRIES. WEB INDUSTRIES will make no effort to validate any of this information for content, correctness or usability. If your material is not 'server-ready', WEB INDUSTRIES has the option at any time to reject this material. WEB INDUSTRIES will notify you of its refusal of the material and afford you the opportunity to amend or modify the material to satisfy the needs and/or requirements of WEB INDUSTRIES. It is not WEB INDUSTRIES' responsibility to provide knowledge or customer support outside of the Services agreed to by you and WEB INDUSTRIES.
2.3 Bandwidth and Storage Usage You agree that use of the Services under this Agreement will not exceed the bandwidth and storage usage limits set out. If you use any bandwidth or storage space in excess of the agreed upon number of megabytes per month, you agree to pay the associated additional charges.
2.4 Fair Use and 'Unlimited' Usage We may offer you 'Unlimited', 'Unmetered' or similar, accounts. At all times this implies that services will be provided on the basis of Fair Use, to be determined on a case-by-case basis at our discretion. This is not to limit legitimate use of Unlimited accounts, but to protect our system, and yours, from high traffic/use accounts which may adversely effect our network performance.
3.1 Investigation of Violations WEB INDUSTRIES Ltd may investigate any reported or suspected violation of this Agreement, its policies or any complaints and take any action that it deems appropriate and reasonable under the circumstance to protect its systems, facilities, customers and/or third parties. WEB INDUSTRIES will not access or review the contents of any e-mail or similar stored electronic communications except as required or permitted by applicable law or legal process.
3.2 Actions WEB INDUSTRIES reserves the right and has absolute discretion to restrict or remove from its servers any content that violates this Agreement or related policies or guidelines, or is otherwise objectionable or potentially infringing on any third party's rights or potentially in violation of any laws. If we become aware of any possible violation by you of this Agreement, any related policies or guidelines, third party rights or laws, WEB INDUSTRIES may immediately take corrective action, including, but not limited to, (a) issuing warnings, (b) suspending or terminating the Service, (c) restricting or prohibiting any and all uses of content hosted on WEB INDUSTRIES systems. If WEB INDUSTRIES takes corrective action due to such possible violation, WEB INDUSTRIES shall not be obligated to refund to you any fees paid in advance of such corrective action.
3.3 Disclosure Rights To comply with applicable laws and lawful governmental requests, to protect WEB INDUSTRIES systems and customers, or to ensure the integrity and operation of WEB INDUSTRIES business and systems, WEB INDUSTRIES may access and disclose any information it considers necessary or appropriate, including, without limitation, user profile information (i.e., name, e-mail address, etc.), IP addressing and traffic information, usage history, and content residing on WEB INDUSTRIES servers and systems. WEB INDUSTRIES also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties.
4. Intellectual Property Rights
4.1 Your License Grant to WEB INDUSTRIES You hereby grant to WEB INDUSTRIES a non-exclusive, worldwide, and royalty-free license for the Initial Term and any Renewal Term to use your content as necessary for the purposes of rendering and operating the Services to you under this Agreement. You expressly (a) grant to WEB INDUSTRIES a license to cache materials distributed or made available for distribution via the Services, including content supplied by third parties, and (b) agree that such caching is not an infringement of any of your intellectual property rights or any third party's intellectual property rights.
5. Warranty; Warranty Disclaimer
5.1 Customer and/or Third Party Acts WEB INDUSTRIES is not responsible in any manner for any non-confirming Services to the extent caused by you or your customers. In addition, WEB INDUSTRIES is not responsible for loss or corruption of data in transmission, or for failure to send or receive data due to events beyond WEB INDUSTRIES reasonable control.
5.2 No Express or Implied Warranty All services, systems and products provided by WEB INDUSTRIES under this agreements are provided without any express or implied warranty whatsoever. You acknowledge and agree that WEB INDUSTRIES exercises no control over, and accepts no responsibility for, the content of the information passing through WEB INDUSTRIES computers, network hubs and points of presence. WEB INDUSTRIES does not warrant that the operation of the services will be uninterrupted or error-free, or completely secure.
5.3 Your Warranties and Representations to WEB INDUSTRIES Ltd You warrant, represent, and covenant to WEB INDUSTRIES that (a) you are at least eighteen (18) years of age or are a duly organized and validly existing New Zealand entity; (b) you possess the legal right and ability to enter into this Agreement; (c) you will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; (d) you will be financially responsible for the use of your account; (e) you have acquired or will acquire all authorization(s) necessary for hypertext links to third-party Web sites or other content; (f) you have verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including, without limitation, your content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (g) your content and/or any software that you install or provide does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.
6. Suspension of Services
6.1 WEB INDUSTRIES reserves the right to suspend services in any case where you fail to perform your obligations under this agreement. If payment for services is not received within the terms of payment stipulated by us websites may be taken down until payment is confirmed.
6.2 WEB INDUSTRIES may from time to time and without notice or liability to you suspend any of the services if the reason for doing same is an event beyond the reasonable control of WEB INDUSTRIES.
7. Dispute Resolution
7.1 No party to this agreement shall commence any court or arbitration proceedings relating to a dispute or difference arising
7.2 The parties agree to mediate any dispute or difference arising out of or in connection with this contract, or the subject matter of this contract, including any question regarding its existence, validity or termination. Should the parties not be able to agree the selection of a mediator and or terms and or fees within 5 working days from the date one party delivers written notice to the other party that they wish the dispute or difference be resolved by mediation, then the President of the New Zealand Law Society or their nominee will appoint a mediator who is a panel member of LEADR. Each party will pay an equal share of the mediator's fee and other reasonable costs including travel, room hire, and refreshments unless one party fails to attend the mediation joint meeting then that party shall be responsible for all the costs of the mediation. The terms of the settlement will be binding on the parties.
8. Limitation And Exclusion Of Liability
8.1 Limitations In no event shall WEB INDUSTRIES have any liability whatsoever for damage, unauthorised access to, alteration, theft or destruction of information provided to WEB INDUSTRIES. Specifically, backups are for customer convenience and are held temporarily - they are not intended to serve as data archiving.
8.2 Interruption of Service You hereby acknowledge and agree that WEB INDUSTRIES will not be liable for any temporary delay, outages or interruptions of the Services. Further, WEB INDUSTRIES shall not be liable for any delay or failure to perform its obligations under this Agreement, where such delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, communications or third-party supplier failure).
8.3 Maintenance You hereby acknowledge and agree that WEB INDUSTRIES reserves the right to temporarily suspend services for the purposes of maintaining, repairing, or upgrading its systems and network. WEB INDUSTRIES will use best efforts to notify you of pending maintenance however at no time is under any obligation to inform you of such maintenance.
8.4 All terms conditions, warranties, undertakings inducements and representations, whether express or implied, statutory or otherwise relating to the provision of services by WEB INDUSTRIES not contained in the Agreement are excluded and WEB INDUSTRIES WILL NOT ACCEPT LIABILITY FOR ANY LOSS OR DAMAGE (INCLUDING CONSEQUENTIAL LOSS OR DAMAGE) HOWEVER CAUSED (WHETHER BY NEGLIGENCE OR OTHERWISE) WHICH MAY BE SUFFERED OR INCURRED OR WHICH MAY ARISE DIRECTLY OR INDIRECTLY with respect to the service.
8.5 Where any applicable legislation implies any term, condition or warranty into the Agreement or in respect of WEB INDUSTRIES' relationship with you, or otherwise gives you a particular remedy against WEB INDUSTRIES and the legislation or any other legislation renders void or prohibits provisions excluding or modifying the application of, exercise of, or liability under such implied term, condition, warranty or remedy will be deemed to be included in the Agreement or as the case may require apply to the relationship between WEB INDUSTRIES and you. However, WEB INDUSTRIES' liability for any such breach of such implied term, condition or warranty or under such remedy, will be limited, at WEB INDUSTRIES' option, in any one or more of the ways permitted in that legislation, including, where so permitted if the breach relates to Services the supplying of those services again or the payment of the cost of having those Services supplied again.
9. Personal Guarantee
9.1 If the purchaser is a company or trust, the person signing this contract, in consideration for WEB INDUSTRIES agreeing to supply products (including services) and grant credit to the purchaser, also signs in their personal capacity and jointly and severally personally guarantees and undertakes to WEB INDUSTRIES the payment of any and all monies now and hereafter owed by the purchaser to WEB INDUSTRIES. Any personal guarantee made by any party shall not exclude the purchaser in any way whatsoever from the liabilities and obligations contained in this contract. The guarantors and the purchaser shall be jointly and severally liable under the terms and conditions of this contract.
10. Non Waiver
10.1 Failure by any party to enforce any right or obligation with respect to any matter arising in connection with this contract shall not constitute a waiver as to that matter or any other matter either then or in the future. Any waiver of any right or obligation under this contract shall only be of any force and effect if such waiver is in writing and is expressly stated to be a waiver of a specified right or obligation under this contract.
10.2 These Terms and Conditions supersede all previous representations, understandings or agreements. The Client's payment of an advance fee or written emailed acceptance of the Specification Document constitutes agreement to and acceptance of these Terms and Conditions.
11.2 Notices All notices, reports, requests, or other communications given pursuant to this Agreement shall be made in writing, shall be delivered by hand delivery, overnight courier service, fax, or electronic mail, shall be deemed to have been duly given when delivered.
11.3 Applicable Law
11.3.1 This agreement shall be deemed to be an agreement made in New Zealand and shall be subject to, governed by and interpreted in accordance with the laws of New Zealand.
11.3.2 The Consumer Guarantees Act 1993 may apply to any services we provide to you if you acquire these services for personal, domestic or household use. If this act applies, all rights you may have under it apply in addition to the rights you may have in this agreement. Nothing in this agreement will limit or exclude your rights under this act.
11.3.3 Where you acquire or hold yourself out as acquiring our services for the purpose of a business, then you agree that the provisions of the Consumers Guarantee Act 1993 will not apply to our service or the provision of any other services to you.
11.4 Severability If any provision of this Agreement is deemed illegal, invalid, void or otherwise unenforceable in whole or in part, that provision shall be severed or shall be enforced only to the extent legally permitted, and the remainder of the provision and the Agreement shall remain in full force and effect.
11.5 By paying an invoice, you automatically agree to the terms outlined in this document and in any term agreement put forward to you.
Last adjusted June 2016.