This Acceptable Use Policy (the “Agreement”) sets forth the terms and conditions of Your Use of hosting and related services (“Services”). In this Agreement “You” and “Your” refer to You, as the user of Our Services, or any agent, employee, servant or person authorized to act on Your behalf. “We”, “us” and “our” refer to The Web Group Limited, as well as its subsidiaries and sister companies (“MyWebhost.co.nz”). This Agreement explains Our obligations to You, and explains Your obligations to Us for various services offered by MyWebhost.co.nz. When You Use Your account or permit someone else to Use it to purchase or otherwise acquire access to additional MyWebhost.co.nz service(s) or products or to cancel Your MyWebhost.co.nz service(s) (even if We were not notified of such authorization), this Agreement covers such service or actions. MyWebhost.co.nz’s Terms of Service agreement (“TOS”) is incorporated herein by reference and is applicable to all Services under this Accepted Use Policy.
1. Sharing of Information.
2. User Obligations.
You represent and warrant to MyWebhost.co.nz that: Your content does not and shall not contain any content, materials, data, work, trade or service mark, trade name, link, advertising or services that actually or potentially violate any applicable law or regulation or infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person and that You own Your account content and all proprietary or intellectual property rights therein, or have express written authorization from the owner to copy, use and display the content on and within Your server account. You also represent and warrant that the server content being hosted by MyWebhost.co.nz shall not be used in connection with any illegal activity.
You expressly (i) grant to MyWebhost.co.nz permission to cache the entirety of the content that is submitted, stored, distributed or disseminated by you via the Services and your website, including content supplied by third parties, hosted by MyWebhost.co.nz under this agreement; and (ii) agree that such caching is not an infringement on any of your intellectual property rights or any third party’s intellectual property rights.
3. Network Interruptions.
MyWebhost.co.nz will use its best efforts to maintain a full time Internet presence for Your account. You hereby acknowledge that the network may, at various time intervals, be down due, but not restricted to, utility interruption, equipment failure, natural disaster, acts of God, or human error. In no event shall MyWebhost.co.nz be liable to You for any damages resulting from or related to any failure or delay of MyWebhost.co.nz in providing access to the Internet under this Agreement. In no event shall MyWebhost.co.nz be liable to You for any indirect, special or consequential damages or lost profits arising out of or related to this Agreement or the performance or breach thereof. The aggregate, total liability of MyWebhost.co.nz under this Agreement, if any, shall in no event or circumstance exceed the total amount actually paid by the Account Holder hereunder. The terms of this Section will survive the termination of this Agreement.
This Agreement applies to all accounts, sub-accounts, and alternative account names associated with Your principal account. You are responsible for the use of each account, whether used under any name or by any person, and for ensuring full compliance with this Agreement by all users of that account. A MyWebhost.co.nz account may not be transferred without prior written approval from MyWebhost.co.nz.
5. IP Address.
MyWebhost.co.nz assigns to You an Internet Protocol (“IP”) address in connection with Your use of the MyWebhost.co.nz services. The right to use that IP address will remain with and belong only to MyWebhost.co.nz, and You will have no right to use that IP address except as allowed by MyWebhost.co.nz in its sole and absolute discretion.
6. Payment Terms:
· You may receive a refund if: i) Your Stellar, Stellar Plus, Stellar Business, VPS Pulsar or VPS Quasar account is cancelled within the initial 30 days after sign-up. Only first-time Stellar, Stellar Plus or Stellar Business accounts are eligible for the 30-day money-back guarantee. If the account holder cancels after the time period specified, there will be no refund given. Refunds do NOT apply to dedicated IP addresses, SSL certificates, renewals, any third party product (WHMCS, cPanel, Softaculous, etc.) that are not included into the package and are purchased at additional fee, domain registration related fees; (ii) Your Dedicated Clearance Server or Dedicated New Server account is cancelled within the initial 7 days after sign-up. Only first-time Dedicated Server accounts are eligible for the 7-day money-back guarantee. If the account holder cancels after the time period specified, there will be no refund given. Refunds do NOT apply to dedicated IP addresses, SSL certificates, renewals, any third party product (WHMCS, cPanel, Softaculous, etc.) that are not included into the package and are purchased at additional fee, domain registration related fees.
· MyWebhost.co.nz may temporarily deny service or terminate this Agreement upon Your failure to pay charges when they become due. Such termination or denial will not relieve You of responsibility for the payment of all accrued charges, plus reasonable interest and any collection fees.
· If Your account becomes overdue, the account will be suspended. And it won’t be reactivated until the outstanding balance is paid in full. If outstanding balance is not paid by You within 30 days after Your hosting account’s billing date for shared hosting accounts and within 7 days for VPS and dedicated servers MyWebhost.co.nz reserves the right to terminate Your services for non-payment.
· If an account is found to be in violation of the Terms of Service it will be terminated immediately and all payments forfeited.
· For closed accounts there is a $15.00 per incident charge for all inquiries regarding previous services and or support.
· Backups of new/changed data are made weekly for shared and reseller servers. No guarantees are made of any kind, either expressed or implied, as to the integrity of these backups. For Stellar Plans, internal backups are performed twice a week. For Stellar Plus and Business Plans (previously Ultimate and Business SSD Plans), the free AutoBackup tool via cPanel automatically backs up your website data with access to daily, weekly and monthly backups. If loss of data occurs due to an error of MyWebhost.co.nz, We will attempt to recover the data for no charge to the client. If data loss occurs due to negligence of a client in securing their account or by an action of the client, MyWebhost.co.nz will attempt to recover the data from the most recent archive for a $15.00.
· Clearance Server Subscription is to be renewed via automatic renewal option with a designated credit card only. Automatic renewal option must be enabled prior to the renewal date. In the event the auto-renew option is disabled, the Subscription will be cancelled on the renewal date and Your server content will be permanently deleted. In the event the auto-renew option is enabled, but the attempt to automatically renew Your Subscription failed as a result of a decline of Your credit card, the Clearance Server Subscription will be suspended and the email notification will be sent to You accordingly. MyWebhost.co.nz will try to charge Your credit card for an additional 4 days after the billing date, once a day. After five consecutive failed attempts to renew the Clearance Server Subscription, the server will be canceled and Your server content will be permanently deleted. In the event You order any additional services or licences to Your Clearance Server Subscription, Your designated Credit Card will be charged for the prorated amount for the current billing period.
7. Secure Shell (“SSH”) Access.
You may enable SSH access in Your account, or by contacting our Support team. Upon completion of said terms You will be granted Jail access to the system on a provisionary basis any misuse of the system will result in access being revoked. The use of php or any other means to circumvent this policy will result in immediate account termination.
8. Prohibited Activities.
By using any Services, provided by MyWebhost.co.nz You agree:
· not to violate the laws, regulations, ordinances or other such requirements of any applicable Federal, State or local government.
· not to transmit any unsolicited commercial or bulk email, not to be engaged in any activity known or considered to be spamming or Mail Bombing.
· not to make any illegal communication to any Newsgroup, Mailing List, Chat Facility, or another Internet Forum.
· not to make, attempt or allow any unauthorized access to MyWebhost.co.nz website, servers, your own hosting account or the account of any other customers of MyWebhost.co.nz.
· not to allow any remote code execution of malicious software through the hosting account provided by MyWebhost.co.nz.
· not to cause denial of service attacks, port scans or other endangering and invasive procedures against MyWebhost.co.nz servers and facilities or the servers and facilities of other network hosts or Internet users.
· not to forge the signature or other identifying mark or code of any other person or engage in any activity to attempt to deceive other persons regarding the true identity of the User.
· not to use MyWebhost.co.nz services to host any website, other content, links or advertisements of websites that: infringe any copyright, trademark, patent, trade secret, or other proprietary rights of any third party information; contain nudity, pornography or other content deemed adult related; profess hatred for particular social, ethnical, religious or other group; contain viruses, Trojan horses, worms, time bombs, corrupted files, or any other similar software or programs that may damage the operation of a computer or a person’s property; contain warez; contain any kind of proxy server or other traffic relaying programs; promote money making schemes, multi-level marketing or similar activities; contain lottery, gambling, casino; contain torrent trackers, torrent Portals or similar software; violent or encouraging violence.
· not to upload unacceptable material which includes: IRC bots, warez, image, file storage, mirror, or banner-ad services, topsites, streaming, Escrow, High-Yield Interest Programs (HYIP) or related sites, investment sites (FOREX, E-Gold Exchange, etc), bitcoin miners, sale of any controlled substances without providing proof of appropriate permit(s) in advance, AutoSurf sites, Bank Debentures, Bank Debenture Trading Programs, Prime Banks Programs, lottery sites, muds / rpg’s, hate sites, hacking focused sites/archives/programs, or sites promoting illegal activities, IP Scanners, Brute Force Programs, Mail Bombers and Spam Scripts.
· not to engage in or to instigate actions that cause harm to MyWebhost.co.nz or other customers. Such actions include, but are not limited to, actions resulting in blacklisting any of Our IPs by the any online spam database, actions resulting in DDOS attacks for any servers, etc. MyWebhost.co.nz reserves the right to refuse service to anyone upon Our discretion. Any material that in MyWebhost.co.nz judgment, is either obscene or threatening is strictly prohibited and will be removed from MyWebhost.co.nz servers immediately with or without prior notice and may lead to possible warning, suspension or immediate account termination with no refund. You agree that We have the sole right to decide what constitutes a violation of the acceptable policy use described above as well as what is the appropriate severity of any corrective action to be applied. In the event that a violation of Our Acceptable Use Policy is found, MyWebhost.co.nz will take corrective action upon our own discretion and will notify You. MyWebhost.co.nz decision in such case is binding and final, and cannot be a subject of a further change. MyWebhost.co.nz cannot and shall not be liable for any loss or damage arising from Our measures against actions causing harm to MyWebhost.co.nz or any other third party. We have the right to terminate each and any hosting account that has been suspended for any reason for more than 14 calendar days after the suspension date, unless You has taken corrective measures to remove the initial suspension threat or violation. Any backup copies of the hosting account will be permanently deleted upon termination and no refund will be due. MyWebhost.co.nz will not be liable for any loss or damages in such cases.
· not to violate the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 or similar legislation, or promote, encourage or engage in the sale or distribution of prescription medication without a valid prescription.
At its discretion, MyWebhost.co.nz can remove any content we determine to be prohibited by this agreement or our Terms and Conditions. No backups will be kept of removed content.
9. Email and Anti-spam Policy.
You must comply with the CAN-SPAM Act of 2003 and all relevant regulations and legislation on bulk and commercial email. You are prohibited from sending mass unsolicited email messages. All emails sent to recipients who have not Confirmed Opt-In or Closed-Loop Opt-In in to mailings from You will be considered as unsolicited email messages. You using and sending mass mailings must at all times maintain complete and accurate records of all consents and opt-ins and upon request provide said records to MyWebhost.co.nz. In the event that You cannot provide actual and verifiable proof of such consents and opt-ins, We will consider the mass mailing to be unsolicited. MyWebhost.co.nz prohibits the following activities listed without limitation hereunder:
· Usage of the MyWebhost.co.nz network and systems to receive replies to unsolicited mass e-mail messages.
· Forgery of e-mail headers (i.e.”spoofing”).
· Spamming using third-party proxy, aggregation of proxy lists, or proxy mailing software installation.
· Configuring a mail server to accept and process third-party emails for sending with no user identification and/or authentication.
· Hosting web pages advertised via “spam e-mail” sent from another network (“spamvertising”).
· Hosting any web pages or providing any services that support spam.
· Using weblog posts, IRC/chat room messages, guestbook entries, HTTP referrer log entries, usenet posts, pop-ups, instant messages or text/SMS messages for sending, posting or transmitting unsolicited bulk messages.
· Advocating any activities, prohibited by the Acceptable Use Section of this Agreement.
· If we determine that you have deliberately or recklessly used our hosting services for the sending of SPAM e-mail messages, we reserve the right to assess a $500 charge upon your account, which shall serve to compensate us for increased administration costs and expenses of redressing SPAM-related activity. You agree that in the event we determine that you have deliberately or recklessly engaged in SPAM activity, we may assess the fee entirely at our discretion. The fee will be charged to your account, in accordance with the payment information submitted by you as part of your acquisition of our services. You further agree that in the event we determine that you have deliberately or recklessly engaged in SPAM activity we may share information regarding your activities, including but not limited to your identity, with the various anti-SPAM organizations and/or blacklists.
We take all SPAM issues extremely seriously and will take redress such activity whenever we deem necessary.
10. Additional Acceptable Use Policy for Virtual accounts:
Server Resource Provision. Your use of the server resources shall not endanger the capacity and operation of the shared server.
Any shared/reseller account may use no more resources than outlined below:
CPU Limit, %
Physical Memory Limit, GB
maxEntryProc limit, N
We may allow any shared account to burst up to*
CPU Limit, %
Physical Memory Limit, GB
*The burst allowance is considered an exception to the acceptable use allowance and shall be permitted solely to stabilize the operation of the website during peak intervals. Any user whose account/server employs the higher burstable resources on a consistent basis shall agree to upgrade it to a package with higher resource availability.
The decision to upgrade shall rest solely with MyWebhost.co.nz and shall be made in its reasonable discretion.
For all account packages:
· No script may use 25% or more of system resources for 60 seconds or longer;
· Running stand-alone, unattached server side processes/daemons is strictly prohibited
· Running any type of web spider / indexer (Google Cash / Ad Spy) is strictly prohibited
· Running any bit-torrent / P2P application is strictly prohibited
· Running cron scripts with intervals of less than 5 minutes, or setting up more than 5 simultaneous cron jobs is strictly prohibited
· Running of public file exchange services is strictly prohibited
MyWebhost.co.nz staff may use the following tools at our discretion to identify use of system resources:
· Conventional UNIX system tools, like ‘ps’, ‘top’, ‘iostat’ etc
· MySQL/PostgreSQL stats reporting features
· cPanel report
· Resource usage alerts from CSF/LFD server security system
Disk Usage Provision. The content on your website must be linked from an HTML or similarly coded web page with all content is freely available to the public. Your website must consist of web pages of a standard design, essentially HTML based text and graphics. Your hosting account should consist mostly of html and php files.
The number of inodes employed by one hosting account on shared and reseller servers must not exceed the following limits:
Downloadable files, media, databases must comply with the following limitations:
· A maximum of 10GB of a shared hosting account can be allocated to music, video or other multimedia files including but not limited to .aac, .avi, .mp3, .mp4, .mpeg, .jpg, .png, .gif files;
· A maximum of 10GB of a shared hosting account can be allocated to any archive and disk image files containing the complete contents and structure of a data storage medium;
· A maximum of 10GB of a shared hosting account can be allocated to databases and database dumps including but not limited to .sql files;
· A maximum of 10GB of a shared hosting account can be allocated to Executable files and all other files which are the result of compiling a program.
Any user whose account/server employs the higher burstable resources on a consistent basis shall agree to upgrade it to a package with higher resource availability.
Under its sole discretion, MyWebhost.co.nz reserves the right to determine any kind of unfair or inappropriate usage of any content which may result in immediate account suspension or upgrade to a package with higher resource availability. The decision to upgrade shall rest solely with MyWebhost.co.nz and shall be made in its reasonable discretion.
Backup Limitations. For our Stellar Business customers, we offer unlimited backup storage space with the AutoBackup tool. However, for our Stellar Plus customers who use the AutoBackup tool, if you reach the 25 GB backup storage limit, the backup will not be created until you remove other files. Any Shared Hosting account that uses more than 25 GB of disk space or contains more than 200,000 inodes will be removed from our weekly system backup. Any user whose hosting account is using more than 25 GB of disk space or contains more than 200,000 inodes is solely responsible for maintaining the copy of his/her account.
Softaculous backups are stored for 28 days. Once this period is over, backup will be removed from the server and no copy will exist. Additionally, when using backup rotation option, you are allowed to set 10 copies maximum per each script you have installed using Softaculous. The eleventh copy of your site will replace the earliest backup file, the first one, generated for the website installation.
Use of Email Services. You should use email and other related services in full compliance with the terms below:
In order to safeguard overall server performance, You may send and/or forward not more than the following number of emails, per hour per domain:
· For Shared Hosting accounts, email storage shall not exceed the 10GB limit.
· For IMAP/POP3 mailboxes, You may perform up to 100 email checks per hour.
· For POP3, You may perform up to 10 concurrent connections to email system per IP address on Shared and Reseller servers, and up to 20 concurrent connections to email system per IP address on Business and Email servers.
· For IMAP, You may perform up to 30 concurrent connections to email system per IP address on Shared, Reseller, Business and Email servers.
· For SMTP, You may perform up to 100 concurrent connections to email system on Shared, Reseller, Business and Email servers. This limit applies to the whole server.
MyWebhost.co.nz may, at its sole discretion, limit the volume of email messages You can deliver through our services. MyWebhost.co.nz may limit email volume by queuing Your email messages internally, or by temporarily rejecting requests to send email through our services. MyWebhost.co.nz may block any message You attempt to submit using our services, for any reason whatsoever, with or without notifying You of such blocking. Under no circumstances will MyWebhost.co.nz be liable to You or any other party for any indirect, special, economic or consequential damages (including without limitation lost profits) arising out of email blocking or queuing.
Upgrade to VPS. Each Virtual hosting account can be upgraded to a VPS (Virtual Private Server). The upgrade is performed by MyWebhost.co.nz after You have paid the first month fee. The fee depends on the VPS type chosen by You and is non- refundable. Prorate amount for unused time of the shared hosting account will not be refunded, it will be added to Your account balance in the event of upgrade to VPS. Once the account is transferred to the VPS the Virtual hosting account is terminated and the new VPS account use is governed by the paragraph 11 of this Agreement accordingly.
IPv4 Address Usage Policy. Due to the exhaustion of the IPv4 address space we actively conserve IP address space by limiting the IP addresses each web hosting account can use.
Shared hosting accounts may each use only 1 IP address.
Reseller hosting accounts may use up to 4 IP addresses. The number of IPs that are included and the account may use up to are indicated in the plan specification.
The IP address limit is a per account, not a per customer basis. Customers may hold multiple accounts to get access to additional IP addresses. We strongly urge customers to only use IP addresses for essential use and we do require justification for usage.
11. Additional Acceptable Use Policy for VPS accounts:
· Use of Traffic (Bandwidth).
· Your account monthly traffic is limited in accordance with the VPS Type. Additional Traffic can be ordered at $10.00 per 100 GB rate. The additional bandwidth is paid and applied on a monthly basis. The fee is non-refundable. If the monthly traffic limit is reached before the end of the month Your account will be suspended until the beginning of the next month.
· Disc Space Use.
· Your account disc space is limited in accordance with the VPS Type. Up to 4 GB from the disc space is allocated to the VPS system files and this space cannot be used for storing Your content.
· Additional Services.
· The initial and renewal fees for each VPS include the number of IPs in accordance with VPS type. Additional IPs can be added to a VPS. In such a case MyWebhost.co.nz will charge the appropriate fee for the dedicated IP. The fee is applied and should be paid on a per month basis. The fee is non-refundable.
· You can order Additional RAM as extra features to Your VPS account(s). MyWebhost.co.nz will charge the appropriate fee for the additional RAM, depending on the amount of RAM ordered. The fee is applied and paid on a monthly basis. The fee is non-refundable. Renewal fee is due for the Additional RAM each month after the initial order, until the upgrade or the VPS account itself is cancelled. You are solely responsible to make the renewal payments in a timely manner. In case no renewal payment is received, MyWebhost.co.nz will remove the additional RAM or will suspend the whole VPS account until receiving additional RAM renewal payment.
· Additional Limitations.
· Please note that our services are configured with built-in service limitations designed to prevent invasive activities, including but not limited to denial of service attacks and port scans. If triggered, these limitations may result in an enforced service interruption. In no event shall MyWebhost.co.nz be liable to You for any damages resulting from or related to such interruption.
12. Storage and Security.
At all times, You shall bear full risk of loss and damage to Your server and all of Your server content. You are entirely responsible for maintaining the confidentiality of Your password and account information. You acknowledge and agree that You are solely responsible for all acts, omissions and use under and charges incurred with Your account or password or in connection with the server or any of Your server content displayed, linked, transmitted through or stored on the server. You shall be solely responsible for undertaking measures to: (i) prevent any loss or damage to Your server content; (ii) maintain independent archival and backup copies of Your server content; (iii) ensure the security, confidentiality and integrity of Your server content transmitted through or stored on MyWebhost.co.nz servers; and (iv) ensure the confidentiality of Your password. MyWebhost.co.nz services are not intended to be used for data backup or archiving purposes. Using an account as an online storage space for archiving electronic files is prohibited and will result in termination of hosting services without prior notice. We reserve the right to delete Your archives if they affect Our overall server performance and MyWebhost.co.nz shall have no liability to You or any other person for loss, damage or destruction of any of Your content. The services offered by MyWebhost.co.nz are not intended to provide a PCI (Payment Card Industry) compliant environment and therefore should not be utilized as such without further compliance activity. MyWebhost.co.nz shall have no liability to You or any other person for Your use of MyWebhost.co.nz products and/or services in violation of these terms.
13. Transfer of Content.
In the event You terminate this Agreement or Your use of MyWebhost.co.nz products and/or services, then moving Your server content off of the MyWebhost.co.nz servers is Your responsibility. MyWebhost.co.nz will not transfer or FTP Your server content to another provider. In the event Your use of MyWebhost.co.nz products and/or services is terminated, MyWebhost.co.nz will not transfer or manage Your services or Your content.
14. Third-Party Software.
MyWebhost.co.nz provides some third-party software to You for easier account management including, but is not limited to cPanel, Softaculous, etc. Such software is provided on an as is as available basis. We do not guarantee that any specific results can be obtained by using such software. MyWebhost.co.nz does not take responsibility for any faults in such software functioning.
You can add and use third-party software on Your account only if it is compatible with Our servers and is approved by MyWebhost.co.nz. Your use of any third party software is at Your own risk. MyWebhost.co.nz cannot be responsible for any third party software performance and provides no guarantees that its use will result in any particular outcome or result. MyWebhost.co.nz will have no liability or responsibility for any damage, loss of data, loss of use or other loss occurring in connection with Your use of third party software or products.
You are solely responsible for any license and other fees required by the software providers, for using any third-party software installed on Your account apart from the initial account setup.
15. MyWebhost.co.nz Reservation of Rights.
MyWebhost.co.nz explicitly reserves the right and sole discretion to: (i) modify its pricing, if desired by MyWebhost.co.nz; (ii) establish limits and guidelines concerning the use of MyWebhost.co.nz services and/or products; (iii) terminate Your use of MyWebhost.co.nz services and/or products for use of MyWebhost.co.nz services and/or products to unnecessarily or illegally harass MyWebhost.co.nz or third parties, non-payment of fees for MyWebhost.co.nz services and/or products, activities designed to defame, embarrass, harm, abuse, threaten, slander or harass third parties, activities prohibited by the laws of the United States and/or foreign territories in which You conduct business, activities designed to encourage unlawful behavior by others, such as hate crimes, terrorism and child pornography, activities that are tortuous, vulgar, obscene, invasive of the privacy of a third party, racially, ethnically, or otherwise objectionable in the sole opinion of MyWebhost.co.nz, activities designed to impersonate the identity of a third party, activities designed to harm minors in any way, and other activities whether lawful or unlawful that MyWebhost.co.nz determines, in its sole discretion, to be harmful to its other customers, operations, or reputation; (iv) terminate Your use of MyWebhost.co.nz services and/or products if Your use of MyWebhost.co.nz services and/or products may results in, results in, or is the subject of, legal action or threatened or proposed legal action, against MyWebhost.co.nz or any of its affiliates or partners, without consideration for whether such legal action or threatened or proposed legal action is eventually determined to be with or without merit; and (v) terminate Your use of MyWebhost.co.nz services and/or products at any time and for any reason if deemed reasonably necessary by MyWebhost.co.nz. MyWebhost.co.nz has no obligation to monitor Your use of MyWebhost.co.nz services and/or products, but reserves the right in its sole discretion to do so.
Right of Refusal. MyWebhost.co.nz has the right to refuse services to anyone at Our discretion.
16. Limitation of Liability; Waiver and Release.
The services offered by MyWebhost.co.nz are being provided on an “AS IS” and MyWebhost.co.nz expressly disclaims any and all warranties, whether express or implied, including without limitation any implied warranties of merchantability or fitness for a particular purpose, and non-infringement, to the fullest extent permitted or authorized by law. Without limitation of the foregoing, MyWebhost.co.nz expressly does not warrant that MyWebhost.co.nz services and/or products will meet Your requirements, function as intended, or that the use of the provided Services will meet Your requirements, function as intended, or that the use of the provided Services will be uninterrupted or error free. You understand and agree that any material and/or data downloaded or otherwise obtained through the use of the Services is done at your own discretion and risk and that you will be solely responsible for any damage to your computer system or loss of data that results from the download of such material and/or data. No advice or information, whether oral or written, obtained by you from MyWebhost.co.nz shall create any warranty not expressly made herein. You agree that MyWebhost.co.nz will not be liable for any (i) suspension or loss of the Services, except to the limited extent that a remedy is provided under this Agreement; (ii) interruption of business; (iii) access delays or access interruptions to the website(s) provided through or by the Services; (iv) loss or liability resulting from acts of god; (v) data non-delivery, mis-delivery, corruption, destruction or other modification; (vi) events beyond the control of MyWebhost.co.nz; (vii) the processing of Your application for Services; or (viii) loss or liability resulting from the unauthorized use or misuse of Your account identifier or password.
Information obtained by you from the internet may be inaccurate, offensive or in some cases illegal. MyWebhost.co.nz has no control over information contained on the Internet and accepts no responsibility for any information that you may receive or transmit via the Internet. You accept full responsibility to verify the truth and accuracy, legality and ownership of the information that you disseminate or display in connection with your use of the Services of obtain from the Internet. You agree that MyWebhost.co.nz has no obligation to back-up any data related to your website unless MyWebhost.co.nz expressly agrees otherwise in writing or has expressly stated so on the website.
Accordingly, You for Yourself and all of Your heirs, personal representatives, predecessors, successors and assigns, hereby fully release, remise, and forever discharge MyWebhost.co.nz and all affiliates of MyWebhost.co.nz, and all officers, agents, employees, and representatives of MyWebhost.co.nz, and all of their heirs, personal representatives, predecessors, successors and assigns, for, from and against any and all claims, liens, demands, causes of action, controversies, offsets, obligations, losses, damages and liabilities of every kind and character whatsoever, including, but not limited to, any action omission, misrepresentation or other basis of liability founded either in tort or contract and the duties arising thereunder, whether known or unknown, relating to or arising out of, or in any way connected with or resulting from, the Services and Your acquisition and use thereof, including, but not limited to, the provision of the MyWebhost.co.nz products and/or services by MyWebhost.co.nz and its agents and employees. Further, You agree to defend, indemnify and hold harmless MyWebhost.co.nz and any of its contractors, agents, employees, officers, directors, shareholders, affiliates and assigns from any loss, liability, damages or expense, including reasonable attorneys’ fees, arising out of (i) any breach of any representation or warranty provided in this Agreement, or as provided by MyWebhost.co.nz’s AUP or any other agreement that has been incorporated by reference herein; (ii) the Services or your use of the Services, including without limitation infringement or dilution by You or by another using the Services from Your computer; (iii) any intellectual property or other proprietary right of any person or entity; (iv) any information or data You supplied to MyWebhost.co.nz, including, without limitation, any misrepresentation in Your application, if applicable; (v) the inclusion of metatags or other elements in any website created for you or by you via the Services; (vi) any information, material, or services available on your MyWebhost.co.nz hosted website; or (vii), any negligence or willful misconduct by You, or any allegation that Your account infringes a third person’s copyright, trademark or proprietary or intellectual property right, or misappropriates a third person’s trade secrets.
This indemnification is in addition to any indemnification required of You elsewhere. Should MyWebhost.co.nz be notified of a pending law suit, or receive notice of the filing of a law suit, MyWebhost.co.nz may seek a written confirmation from You concerning Your obligation to defend, indemnify MyWebhost.co.nz. Such written confirmation may include the posting of performance bonds or other guarantees. Your failure to provide such a confirmation may be considered a breach of this agreement. You agree that MyWebhost.co.nz shall have the right to participate in the defense of any such claim through counsel of its own choosing. You agree to notify MyWebhost.co.nz of any such claim promptly in writing and to allow MyWebhost.co.nz to control the proceedings. You agree to cooperate fully with MyWebhost.co.nz during such proceedings. The terms of this section will survive any termination or cancellation of this Agreement.
18. Trademark or Copyright Claims.
MyWebhost.co.nz is a service provider and respects the copyrights and other intellectual property rights of others [and herein incorporates its Copyright Infringement Policy]. To the extent MyWebhost.co.nz receives a proper notice of infringement of copyright, trademark or other intellectual property, MyWebhost.co.nz reserves the right to access, preserve and disclose to third parties any of Your information or data (including personally identifiable information and private communications) related to a written complaint of infringement if MyWebhost.co.nz believes in its sole discretion that such access, preservation, or disclosure is necessary or useful to respond to or otherwise address such complaint.
MyWebhost.co.nz expressly reserves the right to terminate in appropriate circumstances an account or the access rights of a subscriber for repeated copyright infringement. MyWebhost.co.nz also reserve the right to terminate an account or subscriber for even one instance of infringement.
Proper notice of infringement shall include the following information in writing to MyWebhost.co.nz’s designated agent:
· the electronic or physical signature of the rights holder or the person authorized to act on behalf of that person;
· identification of the work that has been infringed;
· an identification of the material that is claimed to be infringing, and information reasonably sufficient to permit MyWebhost.co.nz to locate the material (for example, by providing a URL to the material); or, if applicable, identification of the reference or link to material or activity claimed to be infringing, and information reasonably sufficient to permit MyWebhost.co.nz to locate that reference or link;
· Your name, address, telephone number, and email address;
· a statement by You that You have a good faith belief that the disputed use is not authorized by the rights holder, its agent, or the law; and
· a statement that the information in Your notification is accurate and a statement, made under penalty of perjury, that You are the rights holder or are authorized to act on the behalf of the rights holder.
· Notice of infringement must be sent to MyWebhost.co.nz’s designated agent to receive notification of claimed infringement as follows: Attn: Legal, MyWebhost.co.nz via email firstname.lastname@example.org
19. Additional Reservation of Rights.
MyWebhost.co.nz expressly reserves the right to deny, cancel, terminate, suspend, lock, or modify access to (or control of) any account or any Services (including the right to cancel or transfer any domain name registration) for any reason (as determined by MyWebhost.co.nz in its sole and absolute discretion), including but not limited to the following: (i) to correct mistakes made by MyWebhost.co.nz in offering or delivering any Services (including any domain name registration); (ii) to protect the integrity and stability of, and correct mistakes made by, any domain name registry; (iii) to assist with our fraud and abuse detection and prevention efforts; (iv) to comply with applicable local, state, national and international laws, rules and regulations; (v) to comply with requests of law enforcement, including subpoena requests; (vi) to comply with any dispute resolution process; (vii) to defend any legal action or threatened legal action without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit, or (viii) to avoid any civil or criminal liability on the part of MyWebhost.co.nz, its officers, directors, employees and agents, as well as MyWebhost.co.nz’s affiliates.
In the event that MyWebhost.co.nz need exercise any of its rights expressed herein to investigate any potential breach or violation of the terms and conditions of this Agreement, service fees may continue to accrue on your accounts, and you will continue to remain responsible for the payment of any service fees that accrue during the relevant period.
20. Governing Law and Jurisdiction for Disputes.
Except as otherwise set forth in the UDRP or any similar policy with respect to any dispute regarding the Services provided under this Agreement, Your rights and obligations and all actions contemplated by this Agreement shall be governed by the laws of the United States of America and the State of Arizona. You agree that any action to enforce this agreement or any matter relating to Your use of the Services must be brought exclusively in New Zealand or if there is no jurisdiction in such court, then in a court of New Zealand.
You agree that any notices required to be given under this Agreement by Us to You will be deemed to have been given if delivered in accordance with the account and/or domain name WHOIS information You have provided. You acknowledge that it is Your responsibility to maintain current contact information in the account and/or domain name WHOIS information You have provided.
22. Legal Age:
You attest that you are of legal age (18 or over) to enter into this Agreement.
23. Final Agreement.
This Agreement, together with all modifications, constitute the complete and exclusive agreement between You and Us, and supersede and govern all prior proposals, agreements, or other communications. This Agreement may not be amended or modified by You except by means of a written document signed by both You and an authorized representative of Us. By applying for MyWebhost.co.nz’s services through the online application process or otherwise, or by using the Services under this Agreement, you acknowledge that you have read and agree to be bound by all terms and conditions of this Agreement and documents incorporated by reference.
24. No Agency Relationship.
Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties hereto. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. We will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, our original objectives and intent as reflected in the original provision.
26. Assignment and Resale.
Except as otherwise set forth herein, Your rights under this Agreement are not assignable or transferable. Any attempt by Your creditors to obtain an interest in Your rights under this Agreement, whether by attachment, levy, garnishment or otherwise, renders this Agreement voidable at Our option. You agree not to reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes any of the Services (or portion thereof) without MyWebhost.co.nz’s prior express written consent.
27. Force Majeure.
Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its control including, but not limited to: earthquake; flood; fire; storm; natural disaster; act of God; war; terrorism; armed conflict; labour strike; lockout; boycott; supplier failures, shortages, breaches, or delays; or any law, order regulation, direction, action or request of the government, including any federal, state and local governments having or claiming jurisdiction over MyWebhost.co.nz, or of any department, agency, commission, bureau, corporation or other instrumentality of any federal, state, or local government, or of any civil or military authority; or any other cause or circumstance, whether of a similar or dissimilar nature to the foregoing, beyond the reasonable control of the affected party, provided that the party relying upon this section (i) shall have given the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, MyWebhost.co.nz may immediately terminate this Agreement.
The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.