Terms and Conditions Agreement
These terms, together with the accompanying engagement letter, apply to all work we carry out for you unless we agree otherwise in writing.
“We” means WEBSITES AND BEYOND, a New Zealand firm of website design and digital marketing professionals.
The general terms and conditions of our engagement are attached in Appendix 1. You agree with the following additional terms also apply to all engagements, paid and unpaid:-
- Where applicable, a final version of our deliverable will be presented to you for your acceptance. You will have five business days to determine, acting reasonably, whether that deliverable meets the specification contemplated by the engagement letter. If no material issue is raised by you within the five day period, or you use the deliverable for any purpose, you will be deemed to have accepted the deliverable.
- Either party may request an amendment to this agreement (including by the addition of any services or deliverable and/or the extension of any time frame within which they are to be provided) by providing written notice of a change request. A change request will become binding when signed by both parties. If you agree that we should prepare a change request, we are entitled to charge for the reasonable costs of preparing that request.
• The parties acknowledge that, unless otherwise stated, the timeframes and fees contained in the engagement letter are estimates and subject to the assumptions therein. A change to those assumptions may necessitate a change to the scope of the services and/or deliverables (including the time frame within which they are delivered) and/or the fee charged.
- We will not be responsible for the performance, operation, or functionality of any third-party applications provided to you under or in connection with this agreement. Third-party applications include software, databases, applications, or products supplied or procured by us but which are not owned by us (for example Microsoft Dynamics AX). You agree to comply at all times with the terms of any license agreements required by the providers of third-party applications supplied to you as part of the services.
- We accept no liability for (a) any indirect or consequential loss or damage arising under or in connection with this engagement (even if foreseeable or even if advised of the possibility of such damages); (b) any economic loss, including loss of profits, revenue, anticipated savings, goodwill, increased operating costs or business opportunity; or (c) any loss or corruption of, or damage, to data or information.
- Copyright and Intellectual Property Rights
The technology and content provided by the Supplier, unless specified otherwise in writing is owned by or licensed to the Supplier. Content includes but not limited to text, graphics, logos, icons, images, sound clips, video clips, data compilations, page layout, underlying code, and software.
- For all content, imagery, or photography provided to the Supplier in the provision of the Services, the Client hereby warrants:
o a. they own the intellectual property rights in that content;
o b. that content does not infringe the intellectual property rights of a third party; o c. that content is not fraudulent, stolen, or otherwise unlawful;
o d. that content does not violate any applicable law, statute, ordinance, or regulation (including but not limited to, those governing export control, consumer protection, unfair competition, or criminal law);
o e. that content is not defamatory, unlawfully threatening or unlawfully harassing; and
o f. that content does not contain viruses or other computer codes, files, or programs that are designed to limit or destroy the functionality of other computer software or hardware.
- The Supplier at its sole discretion reserves the right to refuse any content it considers to be in contravention with any of the above statements. The Supplier and its licensors retain all proprietary rights to that content and technology and other intellectual property rights in any work created, commissioned, or otherwise acquired by the Supplier during the implementation of the Services until full payment has been
- Received. Upon full payment, the Supplier hereby agrees to transfer to the Client all rights title and interest in the copyright and other intellectual property rights in all artwork, manuals, information, material reports, source code, and other output which is produced, extended, or modified during the implementation of the Services.
- Responsibilities of the Client
The Client acknowledges that if a debit is returned by his/her/its financial institution as unpaid, a failed payment fee is payable by the Client to the Supplier. The Client will also be responsible for any fees and charges applied by his/her/its financial institution for each unsuccessful debit attempt together with any collection fees, including but not limited to any debt recovery agency or law firm’s fee, as may be incurred by the Supplier. The Client authorizes the Supplier to attempt to re-process any unsuccessful payments after 3 business days. If the payment remains unsuccessful after 14 days, the Client authorises the Supplier to suspend all services, pending full payment.
- Entire Agreement
This Agreement and the Proposal together form the entire agreement between the parties about its subject matter and supersedes all other discussions, negotiations, representations, arrangements, warranties, or agreements.
Any rights under this Agreement may not be waived or varied except in writing signed by the party to be bound. Unless otherwise expressly stated in the Contract, no waiver or relaxation in whole or in part of any of the terms and conditions of the Agreement will be binding on the Supplier unless in writing and signed.
The terms and conditions in Appendix 1 (and above) form part of and should be read in conjunction with, this Engagement Letter.
Final acceptance of this engagement letter, by WEBSITES AND BEYOND, is subject to the satisfactory completion of WEBSITES AND BEYOND’s internal client and engagement acceptance procedures.
This Agreement constitutes the entire understanding between WEBSITES AND BEYOND and yourselves in relation to the current engagement.
We currently have no obligation to you in respect of any services performed by us in connection with this engagement other than those obligations set out in this letter, and those subsequently agreed to by WEBSITES AND BEYOND in writing and those implied by law.
Use of Client’s name in marketing materials
The client agrees that WEBSITES AND BEYOND may disclose the organisation as a client, by name and/or logo, in its marketing materials. In addition, the Client gives WEBSITES AND BEYOND the right to Client’s logo on documents prepared for the Client internally (e.g. internal presentations, etc.).
Please confirm your agreement to and acceptance of the terms of this letter and the attachment by signing and returning to us the enclosed copy.
We look forward to working with you.
Please do not hesitate to contact us if you require any further
Detailed Terms and Conditions.
1 Conflicts of interest
We have procedures in place to identify and respond to conflicts of interest. If a conflict of interest arises we will advise you and discuss an appropriate solution.
We will hold in confidence all confidential or proprietary information concerning you or your affairs that we acquire in the course of providing services to you.
We will not disclose such information to any other person unless:
- You instruct us to do so; or
- We are required by law to do so; or
- Such disclosures are made for the purpose of complying with WEBSITES AND BEYOND’s
internal quality assurance processes.
We will not disclose to you confidential information belonging to any other client.
You will hold in confidence any proprietary or confidential information belonging to us.
3 Provision of information by you
You agree to provide us promptly with any information or assistance that we reasonably require to perform the agreed services, including access to your premises, staff, records, information technology, and other systems.
We are entitled to assume the accuracy of any information which you give us or which anyone else gives us on your behalf.
You must notify us promptly if any information you have given us becomes incorrect, misleading, or potentially misleading. You must take all reasonable steps to correct any communication or document that refers to or is based upon any such information.
You acknowledge that, because of the size of WEBSITES AND BEYOND and the range of services we provide, WEBSITES AND BEYOND staff engaged in providing the services covered by this agreement may not receive or otherwise be aware of information that you may have provided to other WEBSITES AND BEYOND staff in relation to other matters.
4 Our advice and services
We will communicate our advice to you in writing.
You may not rely on any advice given orally, in the draft, or on an interim basis.
You agree not to:
- Use our services or advice other than for the purpose for which they were sought,
- disclose to any other persons any advice or opinion we give you, or
- use our name in connection with any offering document, financial statement, report, or another public document, without our prior written consent.
Our duties are owed to you. They do not extend to any associated persons, such as shareholders, related companies, directors or employees, or family members.
We do not undertake to update any advice, report, or other work product after we have issued it in final form.
5 Our fees
Our fees, or the basis upon which our fees will be calculated, will be set out in the engagement letter or in a separate fees
6 Other charges
In addition to our professional fees, we may incur costs or make payments to third parties on your behalf.
We will charge you an additional 4% of our professional fees for routine office expenses and third-party charges, such as filing fees, photocopying, research, couriers, on-line search fees, mileage, and toll/mobile charges.
We will charge airfares, accommodation, and other substantial out-of-pocket expenses separately.
GST (if any) will be added to our fees and other charges.
Our invoices are payable in full within 7 days of the billing date unless we have agreed otherwise with you.
If any amount you owe us is more than 7 days overdue: • we may charge bank interest at the rate of 2% above the 90-day Bank bill rate;
- we may suspend work; and
- we may exercise a lien over any of your documents that are in our possession.
8 Ownership of work product
You will acquire ownership of our final work product upon payment of our fees and other charges, save that we will retain all ownership rights in all our intellectual property.
Our work papers, which do not form an integral part of our final work product, will remain our property.
9 Electronic services and communications
You authorise us to communicate with you and other electronically.
Electronic services and communications can be subject to interference, interceptions, or corruption. We do not represent or warrant that our electronic services or communications will always be accurate, complete, confidential, and secure.
10 Your documents
Upon completing the agreed services and payment of our fees and other charges, we will return your documents to you (including share registers or company constitutions). We may retain copies of any documents we return to you.
11 Limitation of our liability to you
- i) If we breach any duty we owe to you, our liability will be limited to the professional fees
you have paid WEBSITES AND BEYOND for
performing the services under this agreement.
You agree to release us from all claims arising
out of or in connection with our services to the
the extent that our liability to you would otherwise
exceed this amount.
This limitation of liability will apply:
- To any claim whatsoever that you
may have against us; and
- To any kind of loss or damage you
- ii) Any claim you may have against us (whether based upon negligence or breach of a
contractual, statutory, or other duty) will be
further limited to the extent that you or anyone
acting for you has contributed in any way to
any loss or damage you have suffered.
iii) The limitations of liability in this section apply to the maximum extent permitted by law.
12 Your indemnity to us
You must indemnify us, to the maximum permitted by law, against any and all costs, expenses, or liabilities we incur to any person:
- In relation to any claim against us by a third party arising from or connected with any breach of your obligations to use;
- By relying on any information provided to us by you or on your behalf and which is false, misleading, or incomplete.
Section 12 prevails over section 11 in the event of any inconsistency in the application of the two sections.
13 Addressing your complaints and resolving disputes We always welcome your feedback on our services.
If you have a complaint or would like to discuss how we can improve, please contact the director who has overall responsibility for the matter. This person will be identified in the engagement letter.
We are committed to investigating and resolving any concerns or complaints you may have as soon as possible. In some cases, it may be necessary for us to suspend work until the dispute is resolved.
If we cannot agree on the solution to your concern, we will both attempt to resolve the matter through mediation or some other form of alternative dispute resolution, before commencing legal proceedings.
You must commence any court proceedings against us within three years of the cause of action arising.
14 Termination of this agreement
You may terminate this agreement at any time by giving us 30 calendar days prior notice in writing.
We may terminate this agreement for good cause and by giving you 30 calendar days prior written notice.
Good cause includes:
- If there has been any change of law, rule, regulation or professional standard or a change in circumstance that would cause the continued provisions of services by us under this agreement to violate such law, rule, regulation or professional standard or would
otherwise, in our reasonable opinion, prejudice our ability to comply with any applicable auditor
- If you fail to provide instructions or information as and when we reasonably require;
- If you fail to pay our fees and expenses on the agreed basis;
- If you become insolvent;
- If our services are suspended for more than 10 days due to non-payment of our fees and charges or a dispute.
If this agreement is terminated, you must pay our fees due up to the date of termination and all expenses incurred up to that date.
Terms that shall survive termination of this agreement include those in sections 2 (confidentiality), 8 (Ownership of the work product), 11 (Limitations of our liability to you), and 12 (Your indemnity to us).
Our relationship with you is governed by New Zealand law. New Zealand courts shall have exclusive jurisdiction over any dispute arising out of this agreement or the agreed services.
These terms, and our engagement letter, do not affect any statutory right you may have irrespective of any term of your agreement with us.
The terms of the contractual relationship between us are set out in their entirety in these terms and our engagement letter. No statement or representation that we have made to you that is not recorded in these terms or in our engagement letter shall form part of the contract between us.
Terms & Conditions of Hosting Services
Websites and Beyond (“WNB”) is a reseller of OpenHost (“OH”).
The terms and conditions below are for the clients whose websites and apps are hosted by WNB. Requested to use WNB hosting services only if you agree and abide by the following terms and conditions.
The Registrant has requested OH to provide services to him/her/it and OH has agreed to do so on the terms and conditions set out in this Agreement.
For the purposes of this Agreement the following words have the following meanings assigned to them:
“Us”, “We” and “Our” means Freeparking Limited trading as Openhost (“OH”). OH includes its employees and directors.
“Customer”, “You” and “Your” means the Registrant.
“DNC” means the office of the Domain Name Commissioner.
“GDPR” means General Data Protection Regulation.
The “Service” means the provision of OH services including but not limited to: web hosting, domain name registration and registrar services by OH, virtual private server hosting, SSL certificates and labour.
The “Agreement” means Terms and Conditions and the details on the Application for an account.
The “Users” refers to the Customer’s employees, agents, affiliates and customers.
2. Application and Variation of these Terms
These terms and conditions are the terms on which OH provides the Service to the customers, modified only by any written variation between OH and the Customers in any particular case. The terms so modified constitute the agreement in its entirety and supersede all prior agreements. OH 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 OH by) the Customer.
OH retains the right to refuse service to anyone at any time.
a) The Service is a automatically renewing subscription payable in advance.
b) Payments can be made by Cheque, Visa, Mastercard, American Express and Diners.
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 OH 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 OH 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) OH 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, OH 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.
4. Customer Costs
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.
5. Payment of Accounts
Invoices are sent by email to the last email address provided to OH 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 OH’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.
OH will endeavour to notify by email where an account is overdue and facing suspension, however no responsibility is accepted for the successful receipt of email messages.
6. Security Deposit
OH 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, OH shall return the outstanding balance of the security deposit, without interest.
7. Credit Checks Privacy Consent
The Customer consents to OH obtaining credit reports and information containing personal information (as well as information concerning commercial credit worthiness and activities) for the purpose of assessment by OH of an application for credit (whether commercial or personal) or for the purpose of the collection of payments that are overdue.
OH 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 prior consent of the customer or without legal warrant.
9. Publication at Customer’s Risk
The Customer accepts responsibility for all information and material issued by the Customer over the Service, and indemnifies OH 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 OH 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.
10. Provision of Service
OH 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 OH. The Service is provided to the Customer at such times and means as OH decides.
11. Exclusion of Liability
Except as provided in clause 12 OH 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 OH’s 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. OH does not provide support for third party software, including software downloaded from the Internet.
12. Limitation of Liability
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 OH 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 OH. However, OH’s liability for any breach of such implied term or warranty will be limited at OH’s option in accordance with this clause or in any way permitted by the legislation.
The Customer shall indemnify OH against any loss (including any loss of profit) incurred by OH as a result of any breach of the terms of any agreement with OH 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 OH 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 OH 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 an OH procedure, all customer data, email, back-ups and configurations will be deleted from our servers.
16. Suspension of Service
OH 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 OH 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 OH’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.
17. Information 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 OH. OH may transfer our rights and responsibilities under this assignment to another party with 30 days’ written notice to you.
19. Governing Law
This Agreement is governed by the laws of New Zealand and the parties submit to the jurisdiction of the New Zealand Courts.
20. Acceptable Use
Users of OH are expected to adhere to all the policies of OH, available in writing upon request.
While spamming and port scanning may not currently be fully illegal activities in New Zealand, OH does not support or condone these activities without the express consent of the recipient or administrator of the recipient system.
The OH servers may be used only for lawful purposes. Users may not use OH’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 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).
OH will be the sole arbiter as to what constitutes a violation of this provision.
21. Credit Card Data
OH does not permit the storing of credit card data (in any format) on its servers. It is the customers sole responsibility to ensure they are compliant with their merchant agreements, OH is not responsible for identifying card data or notifying customers of compliance issues.
22. Server Abuse
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 OH is not allowed.
23. (a) Scripts that are adversely affecting server performance may be stopped, reset or fixed by OH staff at cost to the customer as an alternative to shutting down a web site. Labour will be charged up to $100 without prior authorisation at OH’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).
24. Background Running Programs
Background Daemons in general are prohibited. Virtual Private Servers (VPS) accounts are not prohibited from running Background Daemons.
OH’s 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.
26. Client Content, Back-ups and Data Loss
OH performs backups of Shared Hosting (Standard Hosting and Reseller Plans) content on a daily basis. OH makes every effort to ensure that these back-ups are valid. OH assumes no liability for any information published to any server including all customer web site content, related files, backup files, databases or mail belonging to any customer hosted at OH. Back-up arrangements for client content for any frequency other than the standard backup frequency must be made by written contract and acceptance by OH and any such contract will be subject to premium monthly charges. OH backups VPS for the purpose of disaster-recovery and makes no warranty as to the availability of backups of individual files.
OH 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 OH Servers, or of any database maintained on any server operated by OH in the event OH is unable to restore customer content from backup.
AT NO TIME SHALL OH ASSUME ANY LIABILITY FOR LOST CUSTOMER CONTENT.
27. Resale of Services
Any Customer reselling OH’s Service agrees that:
a) there is no direct relationship between OH and the Customer’s Users;
b) the Customer will not refer their Users to OH 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.
28. IP Addresses
OH 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 OH at any time after the Customer enters into this agreement. The Customer shall ensure that it keeps OH informed of the current and active e-mail address of the Customer.
30. Each Clause Separately Binding
Each clause of the agreement you have with us is separately binding.
31. Rights and Responsibilities that Continue
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.
32. More Than One Person
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 & Conditions apply to domain registrations and transfers.
1. OH’s Obligations
We agree that we will:
1.1 comply with all registry policies and accurately represent these to you;
2.1 Comply with the .nz policies promulgated by any lawful authority from time to time and all statements of roles and responsibilities issues by the DNC. You agree that you have read and understood all .nz current policies and statements posted at the official website of the DNC.
2.2 Make sure all information you gave us is accurate and complete, keep us informed of changes to any information you give us and in particular update and maintain using the interface provided at Openhost official website, and that you have the authority to enter into this agreement. We will not be liable to you for anything in any way should your contact or other details not be kept accurate or up to date.
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 to is complied with.
2.8 Protect and fully indemnify 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 are responsible for everyone who uses a domain name registered to you to ensure they also meet the above duties.
3. Registration and Renewal of a Domain Name
When a domain name in the .nz domain name space is registered to you, or in your name as directed by you, you agree:
3.1 Operation of the .nz domain name space requires the collection of information, including some personal information, from you. In order to have a domain name registered in your name, this information must be entered into the register (see clause 5 below for more details regarding the register).
When a domain name in the .nz domain name space is registered to you, or in your name as directed by you, you agree:
3.2 By entering into this agreement, you consent to providing us with the following personal information (“personal information”): name / email / address / country / phone number.
3.3 While you have the right to withdraw your consent to providing us with your personal information, without this personal information we cannot perform our obligations under this agreement (including registering and maintaining a domain name for you) because:
i) the personal information is necessary in order for your domain name to be recorded on the .nz register;
ii) we need to be able to contact you in relation to the administration of the domain name; and
iii) we are required by .nz policies to collect your personal information;
3.4 If you decide to transfer management of your domain name to another registrar, or if your domain name is cancelled, or if this agreement ends for any other reason, we will continue to store your personal information for a period of not less than 6 years for limitation and tax administration purposes.
3.5 You further agree that:
i) the domain name is registered in your name only because no other person has it according to the records of the register; and
ii) neither we nor anybody else is representing anything else to anybody regarding that domain name. The entry of a domain name in the Query Service shall not be taken as evidence of anything other than such registration; and
iii) 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.
3.6 The domain name is registered in your name only because no other person has it according to the records of the register; and
3.7 Neither we nor anybody else is representing anything else to anybody regarding the domain name. The entry of a domain name in the “query service” database shall not be taken as evidence of anything other than such registration; and
3.8 That you protect and fully indemnify 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.
3.9 The registrant email contact given by you for your domain name(s) will be notified by email more than fourteen (14) days prior to the renewal date for the name(s). It is your responsibility to maintain a correct email contact address. We will process your renewal only if payment is received in full on or prior to the renewal date. If payment has not been received in full we will not take any action to renew the domain name(s) and shall not be obliged to notify you of this. We will not be responsible for any losses, costs, expenses or damages resulting from the lapsing of the domain name(s) in these circumstances.
4. Register is the Record
4.1 The register is the authoritative database of .nz domain names and the details shown in the register is treated as the correct record. The register is operated by the registry branch of InternetNZ (“Registry”).
4.2 In order to have a domain name, it is necessary that the registry store your personal information on the register.
4.3 When a domain name is no longer registered in your name, the registry will continue to store your personal information (“historical personal information”). Historical personal information may only be disclosed where authorised or required by New Zealand law.
4.4 To the extent GDPR applies, EU registrants have the right to object to the registry storing historical personal information and/or disclosing it as authorised or required by New Zealand law.
4.5 Despite clause 5.4, pursuant to Article 21 of GDPR, the registry maintains that it has compelling legitimate grounds for storing an historical auditable record of all domain names and disclosing historical personal information as authorised or required by New Zealand law. This is because without carrying out these functions, the integrity and operation of the register would be significantly undermined.
5.1 DNC is the entity which regulates the .nz domain name market space.
5.2 DNC provides a domain name registration data query service (“Query Service”) (see section 21 of .nz Operations and Procedures policy for further details). Through the Query Service, the public is able to access the register with respect to a particular domain name from DNCL’s website. Subject to the Individual Registrant Privacy Option (“IRPO”) referred to in clause 5.7 below, in response to a Query, registrants’ personal information will be available (along with the domain name, its commencement and expiry dates and addresses/details of the name servers for it, and our name).
5.3 When a name is cancelled it holds a pending release status. During the pending release period of 90 days from date of cancellation, a registrar may fully re-instate the domain name for the registrant, so that it becomes active again. This means that your personal information remains viewable on the Query Service for that 90 day period. Following the 90 day period when your name is released, your personal information will no longer be disclosed on the Query Service.
5.4 To the extent GDPR applies, EU registrants have the right to object to their personal information being made available through the Query Service. However, pursuant to Article 21 of GDPR, DNC maintains that it has compelling legitimate grounds for disclosing the personal information on the Query Service. This is because without the Query Service, the integrity of the .nz domain name space would be significantly undermined.
5.5 For the avoidance of doubt, by entering into this agreement, you hereby give consent to your personal information being made available on the Query Service.
5.6 To the extent GDPR applies, EU registrants have the right to withdraw their consent under clause 5.5. However, any withdrawal of consent is without prejudice to DNC’s position that it has a legitimate interest in disclosing the personal information on the Query Service.
5.7 The IRPO is an optional feature available for individuals who are not using the domain name it is applied to in significant trade. If you are eligible and choose to use IRPO, your telephone number and contact address information will not be disclosed on the Query Service (“Withheld Data”). If you use your domain name for significant trade purposes you will not be eligible for the IRPO (see section 8 of .nz Operations and Procedures policy for further details).
5.8 Despite clause 5.7, Withheld Data may be released in the following circumstances:
Where applications are made by any person, entity or organisation who have established a legitimate need for the Withheld Data (see sections 22.2-22.22 of .nz Operations and Procedures policy);
Where disclosure is ordered by a court of competent jurisdiction or is required by any other order with the force of law (see sections 22.23-22.24 of .nz Operations and Procedures policy);
Where an entity has a Memorandum of Understanding with DNC, such that the entity has automatic access, or alternatively streamlined access, to the Withheld Data (see sections 22.25 to 22.40 of .nz Operations and Procedures policy).
5.9 To the extent that GDPR applies, EU registrants, who are eligible for the IRPO, have the right to object to Withheld Data being disclosed in the circumstances described in clause 5.8. However, pursuant to Article 21 of GDPR, DNC maintains that, based on the Privacy Act 1993 (or any substitute enactment) (and in particular Principle 11) it has compelling legitimate grounds to disclose Withheld Data on these circumstances.
6. Payment of Fees
6.1 You agree to pay in advance for the services we provide for you at such rate as may from time to time be charged by us. Payment can only be accepted where made by Visa, MasterCard or American Express credit card, direct credit, cheque or cash.
6.2 Current fees for services are set out on our website at www.openhost.co.nz
6.3 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.
6.4 We may alter our fees from time to time. When we alter them we will send you notice of the alteration 30 days before the new fee takes effect.
6.5 Our usual domain name fees are for registration and renewal of domain name licenses and the provision of Domain Name Server (DNS) services. Support is also included to the extent that it is noted on this website on the support page. We may also charge for other products and services provided by us if you chose to add these. We will tell you before any additional charge is incurred via our purchase invoices and any quotes/orders ahead of you agreeing to procure these services.
6.6 Our prices are stated in New Zealand dollars and do not include GST.
6.7 You agree that unless we accept a cancellation under clause 1.13 above, all payments made by you are non-refundable whether in whole or in part once our services have been provided irrespective of what might subsequently happen to your domain name (i.e. suspension, cancellation or transfer of the name to another registrar or registrant).
6.8 In the event of a charge back by a credit card company (or similar action by another payment provider allowed by us) or other non-payment by you in connection with your payment of the registration, renewal or registrar transfer fee, you acknowledge and agree that the domain name shall be cancelled at the Registry. We will reinstate any such registration solely at our discretion and subject to our receipt of the applicable registration, renewal or transfer fee and our reinstatement fee, currently set at NZ$50.00.
6.9 If we are forced to hand your account over to our debt collection agency for collection you will be liable for these collection costs.
7. Suspension and Refusal to Supply Services
7.1 If you do not pay our charges for a domain name registered to you we may:
7.1.1 Cancel registration of that domain name; or
7.1.2 Refuse to provide a service you request.
7.2 If a claim is made or threatened against us by any third party, we may immediately cancel or suspend registration or refuse any request for service unless in our sole discretion we are satisfied that the claim is wholly without merit or you provide us with sufficient security (in our discretion) to protect and indemnify us against that claim. Any cancellation, supervision or refusal by us under this clause does not give you any right to claim damages compensation or any losses of any nature from us.
8. Cancellation of a Domain Name
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 or for any breach of this Agreement or any other applicable policies or terms and conditions, we will give you fourteen day’s notice before we cancel that domain name.
9. Exclusion of Liability
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:
9.1 InternetNZ, the registry and any other entity we are in any business relationship with;
9.2 Every officer, employee, contractor, agent of us or any entity in clause 9.1;
9.3 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.
This exclusion does not prevent you getting a court order requiring us to do anything we have agreed to do for you and does not limit any rights you may have (if any) under the Consumer Guarantees Act 1993.
To the extent that you are using our services for a business or business purposes you agree that the Consumer Guarantees Act 1993 does not apply.
10. Limitation of our Liability
We have excluded all other liability we or any of the persons specified in clause 10 may have to you. If any of those persons is ever liable to you and, for any reason, cannot rely on the exclusion of liability set out in clause 9 then this clause applies.
Where this clause applies, the maximum combined amount the persons specified above (together) will have to pay you and anyone else who uses the services we provide for you (together) is the amount of the last month’s fee paid by you under this Agreement.
11. Law and Jurisdiction applying to this Agreement
Unless we otherwise agree in writing, this Agreement contains all the terms of our relationship and continues to apply no matter where you are located at the time any of the services are provided or where you reside. This will be the case until this agreement is cancelled except to the extent clause 16 says otherwise.
To that extent legally permitted:
11.1 All our services are provided under New Zealand law;
11.2 Any claim or dispute arising out of or in connection with this agreement must be instituted within 60 days from the date the relevant service was supplied to you;
11.3 Except as otherwise stated, you may take action against us only in New Zealand Court;
11.4 Where you or any registrant for whom you act supplies incorrect information regarding a domain name and we incur cost in any matter concerning that name then we may recover the costs incurred by us from you.
12. Cancelling the Agreement
12.1 We may cancel or suspend this agreement by giving you one month’s notice if you do not meet your duties to us except in the event that we take action under clause 7 or 8.
12.2 We may end the agreement for any other reason by giving you one month’s notice.
13. More than One Person
You are responsible for everybody who you permit to act for you as a registrant. We will take reasonable care to satisfy our self that you have permitted those persons to act for you.
14. Each Clause Separately Binding
Each clause of the Agreement you have with us is separately binding.
If for any reason we, you, or any of the persons specified in clause 7 cannot rely on any clause, all other clauses of it are binding.
15. Rights and Responsibilities that Continue
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. These include the rights and duties under 2, 5 – 11, 13 – 14, and this clause 15.
16. Privacy Option
16.1 Registrants who are individuals are able to elect a privacy option (if this option is elected, and the Registrant is eligible, the only contact information displayed in the results returned from a Query (refer Section 22) is the name, email and country. Detailed address and phone information will be withheld (“Withheld Data”) and not be displayed.
16.2 Registrants are able to elect the privacy option at the time of registering the domain name or at any later time. Registrants are able to change their selection at any time through their Registrar.
16.3 To be eligible for the privacy option, Registrants must be
16.3.1 Natural person (“individuals”) and
16.3.2 Not using the domain name to any significant extent in “Trade” as that term is defined and used in the Fair Trading Act 1986.
This agreement was last updated 25 May 2018.
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