HOSTING AND WEBSITE TERMS AND CONDITIONS

Here is the boring stuff, the legal information and our terms and conditions of service.
Please have a read through if you have a website which we have created or host as this applies to you.

Terms and Conditions

PARTY A within these terms and conditions is as follows...

Registered company name:
Activate Design Limited

Address:
205 Durham Street South
Christchurch 8025

Phone:
(03) 961 1106

Postal Address:
PO Box 3871
Christchurch

Website:
www.activatedesign.co.nz

Email:
[email protected]

PARTY B within these terms and conditions is as follows...

Either...

The owner of a hosting account with Activate Design
The owner of a website hosted with Activate Design
A private person(s) contracting Activate Design to undertake computer/web duties
A business(s) contracting Activate Design to undertake computer/web duties

Section 1 : Payment

Payment overview
Unless PARTY A has agreed in writing to extend credit to PARTY B, the terms and conditions of payment are as follows:

Condition 1: Hourly labour
Payment is due without deviation within 5 working days on the completion of work requested by PARTY B unless otherwise agreed to in writing by form of contract addition, physical letter, or e-mail notification.

Condition 2: Website creation

Payment is due without deviation within 5 working days after website completion unless otherwise agreed to in writing by form of contract addition, physical letter, or e-mail notification.
In the case of PARTY B failing to make payment by the due date to PARTY A, PARTY B forfeits ownership and assigns by breach of terms and conditions full ownership of the website to PARTY A (including the domain name if under the management of PARTY A).

Condition 3: Hosting

Hosting can be terminated by PARTY B informing PARTY A in writing with 1 months notice.
Hosting payment types are as follows:
1. Monthly via automatic bank deposit / direct debit / credit card.
2. Annually via bank deposit / direct debit / credit card.
Monthly hosting payments are requested to be paid into PARTY A's bank account no later than the twentieth day of each month.
Hosting payments are checked on the twentieth day of each month which defines the cut-off date for hosting payments
Failure to make hosting payments by the due date (cut-off date) may result in a $35.00 + gst administration fee as per the following grace periods:
1. First failure: 1 months grace period.
2. Second failure: 5 days grace period.
3. Third failure onwards: No grace period.
Continued failure to make hosting payments will result in hosting accounts being suspended until all due payments (including all administration fees) are made in full.
In the case of PARTY B failing to make hosting payment(s) and/or penalty fees related to failed hosting payments and the period extends to 60 days past the initial hosting payment failure date, PARTY B forfeits ownership and assigns by breach of terms and conditions full ownership of the website to PARTY A (including the domain name if under the management of PARTY A). PARTY B may regain ownership of the website once all due amounts (including penalty fees and payment for any work done on the site while in a suspended status) are paid in full within 90 days of payment failure.
With disregard to any instance of ownership transfer in the case of PARTY B failing to make hosting payment(s) and/or penalty fees related to failed hosting payments and the period extends to 90 days past the initial hosting payment failure date, all due fees may be passed to a debt collecting agency.
Hosting charges are subject to alteration at the discretion of PARTY A at any given time by method of 30 days notice to PARTY B. This includes modification to existing contracts between PARTY A and PARTY B.
Hosting invoices are delivered upon request via email only. Hardcopy invoices are available but will incur an administration fee by arrangement.
Activate Design reserves the right to suspend hosting of any customers website who has any unpaid account with Activate Design which is more than 30 days overdue.

Subsection 1 : WEP-Site System Hosting Costs and Conditions

WEP-Site : $25.00 per month plus GST
Approximate space limit : 100MB
Approximate bandwidth limit : 1GB
Bandwidth calculation for WEP-Site systems : PARTY A offers PARTY B a very flexible bandwidth usage system. PARTY A will pool all WEP-Site customers together at the end of each month and match this with the bandwidth allocation quota. If a particular PARTY B website has used over its quota within this month period the normal policy is to allow other websites using lesser bandwidth to buffer and absorb any extra usage. If in the situation that PARTY B’s website continues to consume an excessively disproportionate bandwidth volume to the medium (determined by the discretion of PARTY A) PARTY B will be contacted by PARTY A to discuss appropriate hosting payment plan alterations to match the bandwidth consumed.

Subsection 2 : WEP-eCom System Hosting Costs and Conditions

WEP-eCom : $50.00 per month plus GST
Approximate space limit : 250MB
Approximate bandwidth limit : 1GB
Bandwidth calculation for WEP-eCom systems : PARTY A offers PARTY B a very flexible bandwidth usage system. PARTY A will pool all WEP-eCom customers together at the end of each month and match this with the bandwidth allocation quota. If a particular PARTY B website has used over its quota within this month period the normal policy is to allow other websites using lesser bandwidth to buffer and absorb any extra usage. If in the situation that PARTY B’s website continues to consume an excessively disproportionate bandwidth volume to the medium (determined by the discretion of PARTY A) PARTY B will be contacted by PARTY A to discuss appropriate hosting payment plan alterations to match the bandwidth consumed.

Condition 4 : General Payment Conditions

Payment by cheque or any type of bank transfer will not be considered payment until the payment has been fully cleared through the banking system and present in PARTY A’s bank account.
If PARTY B fails to make payment to PARTY A by the due date PARTY B shall be liable to pay PARTY A interest on the unpaid overdue amount at a rate of 2% greater than party A's banks overdraft rate for the period (but not less than 15% per annum) during which the amount remains unpaid which interest shall accrue on a daily basis until payment is received by PARTY A. Payments received by PARTY A shall be credited first against any interest accrued.
PARTY B shall be liable to pay all related costs (including legal costs such as a solicitor or lawyer) incurred by PARTY A in relation to PARTY Bs failure to make due payment.
PARTY A at any time without assigning any reason may refuse to extend credit to PARTY B.
Multiple instances of contractual agreements (inside or outside these terms and conditions) between PARTY A and PARTY B are treated as part thereof and entire and singular entity of contractual agreement therefore breach of one instance of a contractual agreement affects all instances of contractual agreements and puts PARTY B liable to repercussions of these terms and conditions with disregard to the fact one or more instances of contractual agreement do not breach these terms and conditions or any other such contractual requirements bound by their respective conditions.

Section 2 : Illegal or offensive content

Condition 1
All content hosted by PARTY B on an Activate Design hosting account cannot contain any content that will breach any legal conditions of any New Zealand or worldwide governing bodies or law. Any such occurrences either knowingly or unknowingly that incur legal action or repercussions of any other variant will be the sole responsibility of PARTY B. PARTY A will be exempt in all cases if such issues arise.

Condition 2
At all times PARTY A will have the authority to remove content deemed as being offensive. If any legal body requests the removal of offensive material and PARTY B does not oblige, PARTY A will immediately step in and the time consumed by PARTY A will be invoiced to PARTY B.

Conditon 3
PARTY A may monitor any PARTY B email account which is believed by PARTY A to be being used for any illegal or offensive activities.

Condition 4
Without exception the content of the following nature will not be allowed and/or is deemed as offensive:

Illegal acts or encouragement of illegal acts
Dangerous instruction (Such as bomb making)
Incest, rape, bestiality, or any other such illegal sexual conduct covered by the USC 2257 act, the NZOFLC, and the NZDIA
Statements that breach the Fair Trading Act
Slanderous statements
Spam harvesting
Unethical pop-up scripts/functions, malicious or endless loop scripts
Pirated or illegally obtained material
Racist remarks
Illegal hot-linking

Section 3 : Applicable Law

Condition 1
The relationship between PARTY A and PARTY B shall be governed by New Zealand law with PARTY A having authority to select jurisdiction of proceedings in the case of legal action being initiated by either PARTY A or PARTY B.

Section 4 : Exclusion of Liability

Condition 1

PARTY A cannot be held responsible for any damage caused to PARTY B's business or self, even if the damage is directly caused by one of PARTY A's employees. PARTY A cannot be held responsible for any loss of data or service interruption, but will do its best to help PARTY B
You, as a PARTY A customer, are solely responsible for the content stored on and served by your website. You must maintain (or request to have maintained at additional cost) adequate backups of your content unless otherwise agreed to in writing by form of contract addition, physical letter, or e-mail notification.
Any defect in PARTY A’s services or maintenance shall not entitle PARTY B to immediate cancellation of PARTY B’s contract.
Notwithstanding anything else herein contained or implied PARTY A is not attempting to exclude any of its legal liabilities under the Consumer Guarantees Act 1993.

Section 5 : Intellectual Property Protection and Site Maintenance

Condition 1
In the case of PARTY B owning a website that is not copyright or does not contain copyright sections, PARTY B is able to have server access to maintain and/or update and/or backup the website as he/she pleases restricted only by ethical boundaries while also following the conditions in section 2 referring to illegal and/or offensive content.

Condition 2

In the case of PARTY B owning a website that is copyright or contains copyright sections PARTY B will have no server access with exception to an issued admin panel if such panel is issued with the respective website. In such cases, PARTY B must employ PARTY A to undertake any such maintenance and/or modifications and/or backups referring to Section 1 with regard to payment.
In the case of PARTY B owning a website that is copyright or contains copyright sections PARTY B's website will remain hosted with Activate Design.

Condition 3

All conditions in section 2 referring to illegal or offensive content must be adhered to.
No other third parties are allowed server access or knowledge of server access details to gain knowledge for their financial gain or any other reason.
No reselling/duplicating or making public copyright files in whole or part thereof for their financial gain or any other reason.

Section 6 : Right of Sale

Condition 1
In the case of PARTY B owning a website that is not copyright or does not contain copyright sections, PARTY B is able to sell the website to a new party of their choice.

Condition 2
In the case of PARTY B owning a website that is copyright or contains copyright sections PARTY B will have to inform PARTY A in writing (with PARTY B's signature present) of the decision to on-sell the website and cooperate with the procedure for the new owner to agree to these terms and conditions and sign a new contract. Unless a new contract is signed by the new owner, legal ownership and liability will remain with PARTY B as detailed in the live contract associated with the website.

Condition 3
If the website in transition of ownership by PARTY B has affiliate promoters, the affiliates must be informed of the ownership transfer by PARTY B and be given the indisputable option to be paid out before the transfer of ownership becomes valid. Any dispute raised by affiliates wrongfully dealt with within this process or by failure of payment by PARTY B can incur suspension of hosting until all due sums are paid to the affiliate(s) in full.

Section 7 : Right of update

Condition 1
PARTY A has the authority to update these terms and conditions, and hosting plans (found here HOSTING PLANS) at their discretion.

Condition 2
In the case of any update being viewed as extensive by PARTY A, email notification to PARTY B will be issued

Condition 3
In the case of any update affecting price, a 1 month prior notice will be given to PARTY B of the increase/decrease via email

Section 8 : Customer Support

Activate Design offers support to all customers 24 hours a day 7 days a week. Depending on the nature of the support request dictates if the support is free, or if it has a charge attached.

Free support

Enquiries about new products, website creation, and website packages
Enquiries about upgrading
Requesting email accounts as part of web packages
Requesting email setup instruction sheet
Requesting information about marketing packages

Charged support

Requesting information / support / tips on web marketing
Requesting information / support / tips on search engine optimisation
Requesting support for setting up email on a local computer
Troubleshooting email issues caused by PARTY B’s ISP
Support related to ISP issues or errors caused directly or indirectly by ISPs
Support / training for WEP packages
Support / tips for using 3rd party software
General technical support and advice.

After hours support

Support outside of 8:30am to 5:30pm weekdays

Support costs

$105+gst per hour (charged on a per minute basis)

After hours costs

$105.00+gst minimum after hours call charge
$175.00+gst per hour
$40.00+gst travel cost if required to travel to work to assist / remedy

Section 9 : Backups

General Backups
Backups are performed at 1am daily. Backups are retained for 10 days incrementally, and can be restored for any hosting account on request. Backups will be restored to most valid data source available in the case of any system issue or data failure deemed PARTY A’s responsibility by PARTY A.

Customer Specific Backup Restoration
Accidental and/or intentional deletion by PARTY B is not covered by the general backup conditions and is deemed by PARTY A as a customer specific backup. Standard charges apply to perform a backup and may incur after hours call-in fees where applicable.

Section 10 : Refunds

You may cancel your hosting plan within the first 2 days for a full refund. Hosting plans cancelled within 2 days of activation will receive a full refund on the hosting service only. The refund does not apply to domain names as these cannot be cancelled at the registrar level once registered.

Activate Design and Activehost do not offer any refund for hosting plans cancelled after the first 2 days of activation.