Web Hosting Terms of Trade
This agreement sets out the terms that apply to the relationship between you, your agent(s) and/or principal(s) (“you” and “your”) and Hart Design Limited our agent(s) (“we”, “us” and “our”).
a) Hart Design includes its employees and directors.
b) The “Agreement” means Terms and Conditions and the details on the Application for an account.
c) The “Customer” means the person(s) or company identified as the customer on the application for an account.
d) The “Service” means Hart Design services, including but not limited to: web hosting, domain registration, virtual private server hosting, SSL certificates and labour.
e) The “Users” refers to the Customer’s employees, agents, affiliates and customers.
Hart Design retains the right to refuse service to anyone at any time.
These terms and conditions are the terms on which Hart Design provides the Service to the customers, modified only by any written variation between Hart Design and the Customers in any particular case. The terms so modified constitute the agreement in its entirety and supersede all prior agreements. Hart Design may modify these terms, the pricing structure for the Service and the operation of the Service by notice to (the last email address provided to Hart Design by) the Customer.
a) The Service is an automatically renewing subscription payable in advance.
b) Payments can be made by Cheque, Visa, and Mastercard.
c) If the Customer chooses to pay by credit card, the card will be securely stored and used for processing future payments including renewals, overuse charges, labour and upgrades. Notification of all charges will be provided via email at least 7-days in advance, or in lieu of advance notice will require written confirmation of acceptance from the customer. Upon request, cards will be removed from the Hart Design billing system.
d) The Customer must pay for all Service charges and other amounts incurred by the Customer or its Users or incurred as a result of any use of the Customer Password (whether authorised or not) in accordance with the billing option selected. In addition, the Customer may be liable for all charges and expenses incurred by Hart Design resulting from any security breach or attack or customer error that involves Customer hardware, software, or network configuration, including IP addresses.
e) The Customer is liable for all overuse on their account and must pay all service overuse charges as they arise.
f) Hart Design reserves the right to upgrade accounts that regularly exceed their quota, where this is a lesser charge than overuse. In the event of an upgrade, Hart Design will provide 7-days written notice of the change and any fees that may apply. Customers can downgrade accounts at any time once usage has been reduced.
The Customer must provide and pay for all equipment and related software and services needed to access or utilise the Service at their own cost.
Invoices are sent by email to the last email address provided to Hart Design by the Customer.
a) Payment for all service is due upon the invoice due date. The Customer must pay all amounts billed in accordance with the billing option selected by the Customer. Any questions regarding the charges on an account must be addressed within 14 days of the billing date. Where a charge is in dispute the Customer may withhold the disputed portion whilst it is investigated but non-disputed charges may not be withheld.
b) No credit terms are given, all accounts must be paid by the due date.
c) Accounts with an overdue balance may be suspended without further warning. Suspended accounts may not be altered or closed until full payment is received.
d) Suspended accounts may be sent to Hart Design’s debt collection agency without further notice. Any expenses incurred in the recovery of debt, including but not limited to legal and debt collection costs, shall be payable by the Customer.
Hart Design will endeavor to notify by email where an account is overdue and facing suspension, however no responsibility is accepted for the successful receipt of email messages.
Hart Design may require the payment of a security deposit before providing, or as a condition of continuing the Service, and may use the security deposit to meet any costs, loss or liability incurred by the Customer. When the Customer has fully performed his or her obligations, Hart Design shall return the outstanding balance of the security deposit, without interest.
Email exchange offers significantly more storage space, greater stability, improved deliverability and easy integration with other Microsoft software such as Calendars.
The Customer consents to Hart Design obtaining credit reports and information containing personal information (as well as information concerning commercial creditworthiness and activities) for the purpose of assessment by Hart Design of an application for credit (whether commercial or personal) or for the purpose of the collection of payments that are overdue.
Hart Design will not reveal, sell, or in any way divulge information about the Customer or the Internet usage of the Customer to any individual, business, marketing, or research group without the prior consent of the customer or without legal warrant.
The Customer accepts responsibility for all information and material issued by the Customer over the Service and indemnifies Hart Design against any liability in relation thereto. In particular, the Customer undertakes that it shall not publish, distribute or issue any information that is illegal, including defamatory or copyrighted materials. The Customer also acknowledges that Hart Design does not vet or approve, and therefore does not accept any liability for any information or material available through any service. To the full extent permitted by law, the Customer accesses and uses such information and material at his or her own risk.
Hart Design endeavours to provide continuous uninterrupted service at all times; however, the Service provided to the Customer is not fault-free and relies on factors outside the control of Hart Design. The Service is provided to the Customer at such times and means as Hart Design decides.
Except as provided in clause 12 Hart Design is not liable to the Customer or any other person for:
a) any cost, loss or liability (including loss of profit or other consequential damage) arising from Hart Design supply or failure or delay in supplying Service including as a result of our own negligence.
b) the content, context, or confidentiality of any communications made using the Service. Hart Design does not provide support for third-party software, including software downloaded from the Internet.
Except as provided below, all terms, warranties, undertakings, inducements and representations, written or verbal, express or implied, relating to the provision of any Service or goods are excluded and Hart Design will not be liable for any loss or damage (including consequential loss or damage) however caused (whether by negligence or otherwise) in respect of any Service inclusive of any software material hosted or designed by Hart Design. However, Hart Design’s liability for any breach of such implied term or warranty will be limited at Hart Design’s option in accordance with this clause or in any way permitted by the legislation.
The Customer shall indemnify Hart Design against any loss (including any loss of profit) incurred by Hart Design as a result of any breach of the terms of any agreement with Hart Design including damages in respect of any period up to and including the date of actual termination (including termination under clause 16).
The Customer shall indemnify Hart Design against all claims, expenses, damages, loss of income or other liabilities arising directly or indirectly from using the Service.
Either party may terminate a non-fixed term agreement with written notice. Any balance owing on an account must be paid prior to closure. After reasonable notice is given Hart Design may terminate any agreement of the provision of any Service if:
a) the customer breaches any term of any agreement; or
b) for any other reason by giving you one month’s notice.
All outstanding charges become immediately payable on giving of such notice and in no circumstances shall the Customer be entitled to any refund of payments made under this Agreement. Normally, we will charge a $10.00 cancellation fee to cover Administration charges in the process of a refund.
Upon the request of the Customer for termination or due to a Hart Design procedure, all customer data, email, back-ups and configurations will be deleted from our servers.
Hart Design may from time to time (without notice, for reasons other than non-payment, reasonable notice will be given when possible) suspend any Service or disconnect or deny the Customer access to any Service:
a) during any technical failure, modification or maintenance involved in the Service although Hart Design will endeavour to procure the resumption of the Services as reasonably practicable; or
b) if the Customer fails to comply with any agreement (including failure to pay charges due, having been notified of the overdue amount) until the breach (if capable of remedy) is remedied, or does, or allows to be done anything which in Hart Design’s opinion may have the effect of jeopardising the operation of any service.
Notwithstanding any suspension of any Service under this clause the Customer shall remain liable for all charges due through the period of suspension. An account that is suspended may not be altered or closed until full payment on any outstanding balance is received.
Except as otherwise expressly permitted in writing, no person may reproduce, redistribute, retransmit, publish or otherwise transfer or exploit any information which they receive regarding the Service in any way which is to be used for purposes which are or could be competitive with the Service.
The Customer cannot assign its rights under the agreement without the prior written consent of Hart Design. Hart Design may transfer our rights and responsibilities under this assignment to another party with 30 days’ written notice to you.
This Agreement is governed by the laws of New Zealand and the parties submit to the jurisdiction of the New Zealand Courts.
Users of Hart Design are expected to adhere to all the policies of Hart Design, available in writing upon request.
While spamming and port scanning may not currently be fully illegal activities in New Zealand, Hart Design does not support or condone these activities without the express consent of the recipient or administrator of the recipient system.
The Hart Design servers may be used only for lawful purposes. Users may not use Hart Design’s Network in order to transmit, distribute or store material (a) in violation of any applicable law, (b) in a manner that will infringe the copyright, trademark, trade secret or other intellectual property rights of others or the privacy, publicity or other personal rights of others, or (c) that is obscene, threatening, abusive, hateful or otherwise defamatory.
Note: Pornography and sex-related merchandising are prohibited on all servers. This includes sites that may infer sexual content or link to adult content elsewhere. This is also true for sites that promote any illegal activity or content that may be damaging to our servers or any other server on the Internet. Links to such materials are also prohibited.
In addition to any site selling or promoting bulk email services is not allowed.
Examples of non-acceptable content or links include pirated software, hacker programs, warez sites, IRC bots and file archives (such as audio/video).
Hart Design will be the sole arbiter as to what constitutes a violation of this provision.
Hart Design does not permit the storing of credit card data (in any format) on its servers. It is the customer’s sole responsibility to ensure they are compliant with their merchant agreements, Hart Design is not responsible for identifying card data or notifying customers of compliance issues.
Any attempts to undermine or cause harm to a server is strictly prohibited.
Customers are free to use any CGI/PHP/ASP (not an exhaustive list) Scripts provided with their account or add any additional ones they require. Any scripts deemed to be adversely affecting the server performance or the network integrity may be shut down without prior notice. Script sharing with Domains not hosted by Hart Design is not allowed.
23. (a) Scripts that are adversely affecting server performance may be stopped, reset or fixed by Hart Design staff at the cost to the customer as an alternative to shutting down a website. Labour will be charged up to $100 without prior authorization at Hart Design’s discretion where it is deemed to be the less harmful option to the customer (e.g. shutting down a site late evening, where the customer may not be aware of the problem until the following day).
Background Daemons, in general, are prohibited. Virtual Private Servers (VPS) accounts are not prohibited from running Background Daemons.
Hart Designs’ servers may not be the source, intermediary, or destination address involved in the transmission of spam, flames or mail bombs. Your Domain may not be referenced as originator, intermediary, or reply-to address in any of the above. We consider spam to include any mass unsolicited message in the mediums of Newsgroups and Email. If you are found to have spammed, then we will immediately, without warning, disable your Domain.
We reserve the right to refuse or cancel service to known spammers. Lastly, we reserve the right to determine what violates this policy.
As such, any violation will result in immediate deactivation of services without refund.
Hart Design performs backups of Shared Hosting (Standard Hosting and Reseller Plans) content on a daily basis. Hart Design makes every effort to ensure that these back-ups are valid. Hart Design assumes no liability for any information published to any server including all customer website content, related files, backup files, databases or mail belonging to any customer hosted at Hart Design. Backup arrangements for client content for any frequency other than the standard backup frequency must be made by written contract and acceptance by Hart Design and any such contract will be subject to premium monthly charges. Hart Design backups VPS for the purpose of disaster-recovery and makes no warranty as to the availability of backups of individual files.
Hart Design assumes no liability for lost content if a hardware or system failure occurs and data maintained on the affected servers cannot be recovered from the most recent backups. Access to your own customer content is provided to the Customer at any time. It is the sole responsibility of the account owner to ensure that they maintain their own backup copy of any materials placed on Hat Design Servers, or of any database maintained on any server operated by Hart Design in the event, Hart Design is unable to restore customer content from a backup.
AT NO TIME SHALL HART DESIGN ASSUME ANY LIABILITY FOR LOST CUSTOMER CONTENT.
Any Customer reselling Hart Design’s Service agrees that:
a) there is no direct relationship between Hart Design and the Customer’s Users;
b) the Customer will not refer their Users to Hart Design for support;
c) the Customer will ensure its Users understand who to contact for User support;
d) this agreement otherwise also applies to the Customer’s Users.
Hart Design maintains control and any ownership of any and all IP numbers and addresses that may be assigned to the Customer and reserves the right to change or remove any and all IP numbers and addresses.
All notices under this agreement shall be given to the last known e-mail address of the Customer, either the address on the Application or as advised by the Customer to Hart Design at any time after the Customer enters into this agreement. The Customer shall ensure that it keeps Hart Design informed of the current and active e-mail address of the Customer.
Each clause of the agreement you have with us is separately binding.
The cancelling of any agreement you have with us does not affect any rights and responsibilities, which are intended to continue or come into force afterwards.
You are responsible for everybody who you permit to act for you as a User. We will take reasonable care to satisfy yourself that you have permitted those persons to act for you.
The following additional terms and conditions apply to domain registrations and transfers.
We agree that we will:
1.1 comply with all registry policies and accurately represent these to you;
1.2 disclose accurately and completely all our terms and conditions associated with your use of our services to register and maintain a domain name sought to be used by you, including price and billing information;
1.3 comply with your lawful directions in a diligent and timely manner regarding your .nz domain name, (for example, registration, cancellation, amendment, deletion, and associated technical support and billing);
1.4 process any new domain name registrations with the registry within 4 hours from the time we receive all the information required to complete a registration if it is within our advertised business hours of 8:30am – 5:00pm Monday-Friday, and otherwise within 48 hours;
1.5 notify you of the registration of your domain name(s), including the relevant details of: the domain name such as your contact details, our contact details, the registration period, the unique authentication ID for your domain name and your obligations as a registrant;
1.6 arrange for correction of any error in the information in the register about any domain name registered to you when requested;
1.7 provide to you, or to someone we reasonably believe to be acting on your behalf, the unique authentication ID for your domain name when requested and for no charge;
1.8 use your personal information only as authorised by you;
1.9 take all reasonable steps to safeguard and protect all information about you stored in our databases and system(s);
1.10 comply with any order of any authority having jurisdiction regarding any domain name registered to you;
1.11 use our best endeavours to deal with any complaints you may have about the services we provide for you.
You agree that you will:
2.1 comply with all registry policies. You agree that you have read and understood the current policies;
2.2 make sure all information you give us is accurate and complete, keep us informed of changes to any information you give us, and that you have the authority to enter into this agreement;
2.3 keep the unique authentication ID for your domain name and any other security information that we give to you confidential, safe and secure;
2.4 satisfy yourself that your use of a domain name will not infringe anybody’s intellectual property rights and protect us, and everybody we are in any business relationship with to provide services to you, from any such claim;
2.5 ensure that you only use our services for a lawful purpose;
2.6 ensure that the use of any domain name registered to you does not interfere with other users of the Internet;
2.7 ensure that any order of any authority having jurisdiction regarding any domain name registered to you is complied with;
2.8 protect us, and everybody we have a business relationship with, against any legal action taken against us because of the receipt or use of our services by you or someone you are responsible for, including reliance by us or anybody we have a business relationship with, on information supplied by you.
Duties of other persons
2.9 You agree to make sure everyone you are responsible for or who uses a domain name registered to you also meets the above duties.
When a domain name is registered to you, or in your name as directed by you, then you agree:
3.1 that the following information becomes available to any member of the public:
– your name,
– your contact details and
– the domain name, its commencement and expiry dates and addresses/details of the name servers for it, and our name.
3.2 the domain name is registered in your name only because no other person has it according to the records of the register; and
3.3 neither we nor anybody else is representing anything else to anybody regarding that domain name. The entry of a domain name in the “who is” database shall not be taken as evidence of anything other than such registration; and
3.4 that you protect us and everybody we have a business relationship with to provide services to you, from any claim arising out of the domain name being registered in your name or as you direct.
For all purposes, the details shown in the register shall be treated as correct and the authoritative record.
5.1 All domain name transactions must be paid for in advance including registrations, renewals and transfers.
5.2 If you transfer a domain name registered to you to another registrant or to be managed by another registrar, all charges owing to us shall become immediately due and payable on the date of that transfer.
If you do not pay our charges for a domain name registered to you we may:
• cancel the registration of that domain name; or
• refuse to provide a service you request.
If we are going to cancel the registration of a domain name registered to you as a result of you not paying our charges relating to that registration, we will give you fourteen days notice before we initiate action to cancel that domain name.
We exclude all liability we may have to you for any claim except where we have acted in bad faith.
This exclusion also applies for the benefit of:
8.1 InternetNZ, the registry and any other entity we are in any business relationship with;
8.2 every officer, employee, contractor, agent of us or any entity in clause 8.1;
8.3 anyone else we get to perform our duties under any agreement you have with us.
None of the persons specified above is liable or has to pay you for anything else in connection with or resulting from anything any of us does or does not do, or delays in doing, whether or not it is contemplated or authorised by any agreement you have with us. This exclusion applies whatever you are claiming for and in whatever way liability might arise.