Service Contract - Terms and Conditions
Dotcom Netware Limited is a provider of Web Site hosting services. Under the terms of this agreement, use of Dotcom Netware Limited's Web Site hosting services ("services") and/or your placement of information on Dotcom Netware Limited's servers is an acknowledgement that you have read and understood this agreement and the accompanying Use Policies, and that you agree to be bound by the terms and conditions below. If you do not wish to be bound by these terms and conditions, you should not proceed to utilize of Dotcom Netware Limited's Web Site hosting services and/or place any information of any kind on Dotcom Netware Limited's servers.
1. SERVICE
a. During the term of this Agreement, Dotcom Netware Limited shall provide web site hosting services to Customer. The specific web site hosting services to be provided to Customer shall be established by correspondence between Dotcom Netware Limited and Customer. Such web site hosting services shall be deemed incorporated by reference into this Agreement, as if fully set forth herein.
b. At Customer's request, Dotcom Netware Limited will acquire an Internet Second-Level Domain Name ("Domain Name"), from the Contracted Registrar on behalf of Customer. Customer's request for and/or acceptance of a Domain Name obtained by Dotcom Netware Limited shall in all cases constitute Customer's waiver of any and all claims which Customer may have, or which may later arise, against Dotcom Netware Limited or its third party providers, for any and all damages, losses, claims or expenses arising or related to the acquisition, registration and/or use of the Domain Name. Any cost incurred by Dotcom Netware Limited to obtain and/or maintain the Domain Name on behalf of Customer shall be charged to Customer. Request for and acceptance of a domain name requires Dotcom Netware Limited to supply the domain name to the Contracted Registrar, which in turns supplies the Domain Name to third parties. c. During the term of this Agreement, Dotcom Netware Limited grants to Customer a non-exclusive, personal, non-transferable license to access and use the Dotcom Netware Limited Services solely on and as part of Dotcom Netware Limited's World Wide Web site and servers. Dotcom Netware Limited may modify the Dotcom Netware Limited Services at any time for any reason and may provide modified versions of the Dotcom Netware Limited Services to Customer.
2. FEES AND PAYMENT
All orders are subject to acceptance by Dotcom Netware Limited. An order will be deemed accepted by Dotcom Netware Limited when Dotcom Netware Limited sends written or electronic confirmation of the order to Customer. In consideration of Dotcom Netware Limited's Web Site hosting services, you agree to pay Dotcom Netware Limited, in advance of the time period during which such services are provided. You agree that all setup fees are non-refundable once setup is completed. You agree that until and unless you notify Dotcom Netware Limited of your desire to cancel any or all services received, those services will be billed on a recurring basis. You agree that if you are paying by credit card, prepayments will be billed and charged automatically, and that Dotcom Netware Limited may apply the amount due to the provided card at any time. You also agree that you are an authorized user of any credit card that you supply to us and agree that we have an obligation to fully investigate any possible fraudulent credit card use.
Dotcom Netware Limited shall charge Customer's credit card for the applicable set-up fees and monthly fees. Such fees and charges shall include, without limitation, the fees for connectivity and design services. Dotcom Netware Limited reserves the right to change the amount of, or basis for determining, any fees or charges and institute new fees and charges upon prior notice to Customer. Customer must provide Dotcom Netware Limited with a valid credit card number to which Dotcom Netware Limited will automatically charge all Dotcom Netware Limited fees as they become due. All monthly fees and set-up fees shall be due in advance of the month incurred and all additional charges shall be due at the end of the month in which such charges are incurred. Except as provided in Section 3, the set-up fees are nonrefundable and Dotcom Netware Limited does not issue pro rata refunds for fees paid in advance. If payment by Customer's credit card is denied, or Customer's charge is returned to Dotcom Netware Limited for any reason, including charge back or Customer otherwise fails to make any payments owing to Dotcom Netware Limited, Dotcom Netware Limited may, at Dotcom Netware Limited's discretion, suspend or terminate access to the Dotcom Netware Limited Services and/or terminate this Agreement. Customer's right to use the Dotcom Netware Limited Services are subject to any limits established by Dotcom Netware Limited or by the issuer of Customer's credit card. Interest charges of 1% per month (or the highest rate permitted by law if lower than 1% per month) will accrue daily on any unpaid balance, which is more than thirty (30) days overdue. Customer shall be responsible for any and all taxes related to this Agreement. If payment is not made when due, Dotcom Netware Limited may engage legal counsel to take any action necessary to enforce collection of the amount due. In addition, Dotcom Netware Limited shall be entitled to recover all costs of collection, including attorney's fees. Dotcom Netware Limited reserves the right to change or modify its fees at any time, except with respect to any fees paid an advance of such change or modification.
3. 30 DAY MONEY BACK GUARANTEE
Customer will be invoiced immediately upon signup and effective the initial service date. In accordance with our 30 day money back guarantee customer must provide written or electronic confirmation of cancellation before expiration of the 30th day of service. Upon receipt of notice, we will refund all fees associated with this account, except any account set-up fees disclosed to Customer at the time of signup, and except any domain name registration fees . If we do not receive such written or electronic confirmation within 30 days, customer will be responsible to pay all fees associated with their account.
4. REFUSAL OR DISCONTINUANCE OF SERVICE; TERMINATION OF AGREEMENT
Dotcom Netware Limited reserves the right to refuse or discontinue service, in whole or in part, to anyone at Dotcom Netware Limited's sole discretion. Dotcom Netware Limited shall have no responsibility to notify any third-party providers of services, merchandise, or information, nor any responsibility for any consequences resulting from such discontinuance or lack of notification. Dotcom Netware Limited reserves the right to refuse to post or to remove any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, undesirable, or in violation of this agreement.
A. This Service Contract and Customer's access to the Dotcom Netware Limited Services shall terminate as follows: (i) Either party may terminate upon thirty (30) days prior notice; (ii) Dotcom Netware Limited may immediately and without prior notice terminate upon a violation by Customer of Dotcom Netware Limited's acceptable use policies; (iii) Dotcom Netware Limited may terminate immediately and without prior notice. Customer has any breached this Agreement.
B. Upon any termination in accordance with Section (i) above, Dotcom Netware Limited shall permit Customer forty-eight (48) hours to download or otherwise copy any of Customer's information and data residing on Dotcom Netware Limited's facilities prior to removing such information and data from Dotcom Netware Limited's facilities. Upon termination under all other circumstances, Dotcom Netware Limited may immediately remove all of Customer's data and information from Dotcom Netware Limited's facilities and Customer shall have no right to copy or download such data or information, and, in such event, all such information and data, including all copyrighted or copyrightable material therein, shall then become the property of Dotcom Netware Limited. In cases where Customer's account has been cancelled, and Customer is requesting reactivation, Dotcom Netware Limited, at it's option, may reactivate the same account, only if the account had been cancelled less than sixty (60) days prior. After sixty (60) days, Customer will be required to set up a new account.
C. To cancel a Dotcom Netware Limited web hosting, domain name services or electronic commerce services, Customer should use the online administrator to cancel their account. Annual Accounts canceled before their term has expired will be charged monthly rates for services rendered to that point and a $25 cancellation fee. If account is cancelled within 3 weeks of renewal, a $10 cancellation fee will be applied. Monthly accounts cancelled after the 1st day of the month will be charged applicable charges for that month.
D. The use of Dotcom Netware Limited or any other service with reference to services obtained through Dotcom Netware Limited, for unsolicited mass mailings, postings, or other activities considered an annoyance to others, commonly referred to as "spamming" is strictly prohibited and may cause your services to be terminated immediately and without warning and you will be held fully responsible for any damages to you, Dotcom Netware Limited, or any other party or parties resulting from any such conduct.
5. USER IDENTIFICATION AND CONDUCT
You agree that you as the person legally responsible for use of this account, are at least 18 years of age. You agree to supply Dotcom Netware Limited with a current and truthful name, postal address and telephone number for our records, and you have a continued obligation to keep this information current.
You agree not to maliciously or intentionally interfere with the proper operation of the system, including but not limited to defeating identification procedures, obtaining access beyond that which you are authorized for, and impairing the availability, reliability, or quality of service for other customers. You further agree not to interfere with the proper operation of other systems reachable through the Internet, including any attempt at unauthorized access. You agree to follow the Acceptable Use Policy of any network or service you connect to.
You agree to adhere to system policies as published online by Dotcom Netware Limited, including restrictions on services available with each account type, restrictions on certain features, and all other policies designed to protect and enhance the quality and reliability of service at Dotcom Netware Limited. You agree to abide by any and all future Dotcom Netware Limited policy decisions. You agree to follow the Acceptable Use Policy of any network or service you connect to.
Any use of the service which violates any local, state, federal, or international laws which may apply to you or to Dotcom Netware Limited is strictly prohibited.
While using the service, you may not:
A. Restrict or inhibit any other user from using and enjoying the Internet;
B. Post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, offensive, indecent, pornographic, profane, or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal or international law, including without limitation the U.S. export control laws and regulations, and laws protecting intellectual property including copyright, trademark, trade secret, misappropriation and anti-dilution laws;
C. Post, publish, transmit, reproduce or distribute any information or software which contains a virus or other harmful component;
D. Post, publish, transmit, reproduce, distribute or in any way exploit any information, software, or other material obtained through the service for commercial purposes (other than as expressly permitted by the provider of such information, software, or other material);
E. Maliciously or intentionally interfere with the proper operation of the system, including but not limited to defeating identification procedures, obtaining access beyond that which you are authorized for, and impairing the availability, reliability, or quality of service for other customers.
F. Interfere with the proper operation of other systems reachable through the Internet, including any attempt at unauthorized access.
G. Transmit unsolicited or prohibited advertising or other harassing or illegal materials through electronic mail, Usenet postings, or other Internet media.
6. INDEMNIFICATION
You agree to indemnify, defend, and hold harmless Dotcom Netware Limited from any and all liability, penalties, losses, damages, costs, expenses, attorneys' fees, causes of action or claims caused by or resulting indirectly from your use of the service which damages either you, Dotcom Netware Limited, or any other party or parties without limitation or exception. This indemnification and hold harmless agreement extends to all issues associated with your account, including but not limited to domain name selection and Web site content.
7. NO WARRANTIES
Dotcom Netware Limited makes no warranties or representations of any kind for the services being offered. The service is provided on an "as is" and "as available" basis without warranties of any kind, either express or implied, including but not limited to warranties of title, noninfringement, or implied warranties of merchantability or fitness for a particular purpose. Dotcom Netware Limited provides no warranty that the service will be uninterrupted or error free or that any information, software or other material accessible on the service is free from viruses or other harmful components. Under no circumstances shall Dotcom Netware Limited be liable for any direct, indirect, special, punitive, or consequential damages that result in any way from your use of or inability to use the service, or for third parties' use of the service to access your Web space, or to access the Internet or any part thereof, or your or any third parties' reliance on or use of information, services, or merchandise provided on or through the service, or that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation or transmission, or any failure of performance. If you are dissatisfied with Dotcom Netware Limited service or any of its terms, conditions, rules, policies, guidelines, or practices, your sole and exclusive remedy is to discontinue using the service.
Dotcom Netware Limited has the right to change prices, or add or delete product features of any existing product or service. The right to change products or services extends to any software supporting a product or service. Dotcom Netware Limited has the right to discontinue products or services and the right to remove or reassign IP addresses of a customer's web site. Except for certain products and services specifically identified as being offered by Dotcom Netware Limited, Dotcom Netware Limited does not control any materials, information, products, or services on the Internet. The Internet contains unedited materials, some of which are sexually explicit or may be offensive to you. Dotcom Netware Limited has no control over and accepts no responsibility for such materials. You assume full responsibility and risk for use of the services and the Internet and are solely responsible for evaluating the accuracy, completeness, and usefulness of all services, products, and other information, and the quality and merchantability of all merchandise provided through the service or the Internet. You understand that by placing information on Dotcom Netware Limited's servers that such information becomes available to all Internet users and that Dotcom Netware Limited has no way of limiting or restricting access to such information or protecting such information from copyright infringement. You assume total responsibility and risk for your use of Dotcom Netware Limited's servers and the Internet. It is solely your responsibility to evaluate the accuracy, completeness, and usefulness of all opinions, advice, services and other information, and the quality and merchantability of all merchandise provided through Dotcom Netware Limited or on the Internet generally.
No advice or information given by Dotcom Netware Limited or its agents or employees shall create a warranty.
THE TOTAL AGGREGATE LIABILITY OF Dotcom Netware Limited TO CUSTOMER SHALL BE LIMITED TO THE AMOUNT PAID TO Dotcom Netware Limited BY CUSTOMER HEREUNDER DURING THE THREE MONTHS IMMEDIATELY PRECEDING A CLAIM IN WHICH Dotcom Netware Limited IS LIABLE TO CUSTOMER. IN NO EVENT SHALL Dotcom Netware Limited BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR LOSS OF BUSINESS, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED UPON BREACH OF CONTRACT, TORT, OR OTHERWISE AND WHETHER OR NOT Dotcom Netware Limited HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. ECPA NOTICE
Dotcom Netware Limited has the right to monitor the service electronically from time to time and to disclose any information as necessary to satisfy the law, or to protect itself or its subscribers. You agree that Dotcom Netware Limited is not considered a "secure communications medium" for the purposes of the ECPA, and that no expectation of privacy is afforded.
9. SECURITY
You agree that the security of your account is solely your own responsibility. You further agree that if you believe the security of your account has been compromised in any way, you will notify Dotcom Netware Limited immediately in writing by registered mail, return receipted, to Dotcom Netware Limited, PO Box 3838, Wellington. Dotcom Netware Limited shall not be responsible for any misuse or compromise to your account. You agree that if any security violations are believed to have occurred in association with your account, Dotcom Netware Limited has the right to suspend access to the account pending an investigation and resolution. You also agree that Dotcom Netware Limited has the right to cooperate in any government or legal investigation regarding any aspect of our services, including services sold to you. Any use of our system to engage in software piracy or other violations of law will result in account suspension and be immediately reported to the appropriate authorities.
10. BACKUP OF DATA
Your use of the service is at your sole risk. Dotcom Netware Limited is not responsible for files and data residing on your account. You agree to take full responsibility for files and data transferred and to maintain all appropriate backup of files and data stored on Dotcom Netware Limited servers. If data, in Dotcom Netware Limited's sole determination, data can be recovered from Dotcom Netware Limited's servers, Customer may contract separately with Dotcom Netware Limited for data recovery services; a minimum non-refundable fee of $250, payable in advance, will be charged for data recovery services.
11. PRIOR AGREEMENTS
This agreement supersedes any written, electronic, or oral communication you may have had with Dotcom Netware Limited or any agent or representative thereof, and constitutes the complete and total agreement between the parties.
12. SEVERABILITY
If any provision of this agreement is determined to be invalid or unenforceable, all other provisions shall remain in full force and effect and said provision shall be reformed only to the extent necessary to make it enforceable.
13. APPLICABLE LAW, JURISDICTION, AND SERVICE
This agreement shall be governed by the applicable laws in New Zealand. Customer agrees that all services provided by Dotcom Netware Limited shall be deemed to have been requested and provided in Wellington, New Zealand. Customer agrees to accept service of process related to this agreement by ordinary mail, postage prepaid, to the most recent address provided by Customer.
14. ACKNOWLEDGEMENT
By placing and continuing to maintain or place information on Dotcom Netware Limited's servers you are stating and acknowledging that you have read the aforementioned terms and conditions and that you understand such terms and conditions and agree to be bound by them. Either party shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
Customer may not assign its rights or delegate any of its duties under this Agreement without prior written consent of Dotcom Netware Limited, and any attempted assignment or delegation without such consent shall be void. If one or more provisions of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby. Nothing in this Agreement or in the understanding of the parties construes upon the parties the status of partners or joint ventures. Dotcom Netware Limited may subcontract any work, obligations or other performance required of Dotcom Netware Limited under this Agreement without consent of Customer. Other than the termination of this agreement, all notices provided hereunder sent by email, mail or certified mail to Dotcom Netware Limited, will be effective upon transmission. Dotcom Netware Limited has the right to amend the Agreement from time to time, and will do so by posting the new Agreement on the Dotcom Netware Limited web site under the Terms and Conditions at the Policies and Agreements page.
15. INTELLECTUAL PROPERTY
Customer acknowledges and agrees that the Dotcom Netware Limited Services constitute confidential and proprietary information of Dotcom Netware Limited and its licensors and embodies trade secrets and intellectual property of Dotcom Netware Limited and its licensors protected under United States copyright and other laws and international treaty provisions. Customer further acknowledges that all right, title, and interest in and to all parts of the Dotcom Netware Limited Services, including, without limitation, associated intellectual property rights, are and shall remain with Dotcom Netware Limited and its licensors. Customer shall not, and shall cause its employees and agents not to, disclose or transfer any portion of the Dotcom Netware Limited Services to any third party. Customer further agrees not to translate, decompile, reverse engineer, disassemble, modify, reproduce, rent, lease, lend, sublicense, distribute, remarket or otherwise dispose of any portion of the Dotcom Netware Limited Services. Customer hereby acknowledges that, if Dotcom Netware Limited at any time or from time to time performs any customizations or modifications to Dotcom Netware Limited Services, all rights and interests to such customizations or modifications shall be the sole property of Dotcom Netware Limited.
USE POLICIES
1. Adult Content
Adult-oriented sites, designed for either entertainment or commercial purposes, are not allowed on Dotcom Netware Limited servers. Forbidden sites include those that provide access to pornographic materials (images or multimedia), whether for free or for payment, regardless of whether adult verification is used or not.
Exceptions are made for educational sites, sites providing only links to other sites, and text materials of an adult nature, although we reserve the right to make further restrictions at our own discretion.
2. Interactive Chat
Interactive Web applications, of the specific type commonly known as "chat", are not allowed on Dotcom Netware Limited's servers. For the purposes of this policy, a "chat" system is defined as a Web site or portion thereof that encourages visitors to post messages that are immediately viewable by other users, in order to engage in "real-time" conversation with other visitors at the same site. Dotcom Netware Limited does not support any systems of that nature.
3. Misuse of Account Features
All account features are to be used solely in order to develop and implement the Web site(s) associated with that account. Operating any service which makes an account feature available to third parties for any use other than normal access to that account's Web site is forbidden. Operating any service which enables or assists anonymous or abusive behavior by third parties is forbidden. Operating any service which affects the stability or reliability of any Dotcom Netware Limited server or network component, impacts other users or the company negatively, or degrades quality of service is forbidden. Dotcom Netware Limited reserves the right to immediately discontinue service for any system whose maintainer is unable or unwilling to control abuse or related problems.
4. Security and Cracking
Use of Dotcom Netware Limited services to engage in any type of fraud, "cracking", malicious, improper or illegal behavior, or harassment (as determined in Dotcom Netware Limited's sole discretion) is expressly forbidden. Interference with the proper operation of systems reachable via the Internet is forbidden. Compliance with the acceptable use policies of any network or system with which you connect through our service is required. Trafficking in pirated software and/or the use of Dotcom Netware Limited services to publish or otherwise disseminate information about the availability of pirated software or other material that is being made available illegally, including the publication of a list of links to such material, regardless of disclaimers, is specifically forbidden. If inappropriate activity is detected, all accounts of the user in question will be deactivated until the investigation is complete. Prior notification to the user is not assured. We reserve the right to contact law enforcement regarding the activity.
5. Spam
The transmission of unsolicited advertising or other content through electronic mail or Usenet postings is forbidden. The use of Dotcom Netware Limited for unsolicited mass mailings or postings (commonly known as "Spam") or use of any other service to make such a mailing or posting, with any reference to Dotcom Netware Limited services (including but not limited to mailboxes, autoresponders, and Web pages) by any customer will cause that customer's services to be terminated immediately and without notice, and the customer will be held legally responsible for the damages to Dotcom Netware Limited, both monetary and in reputation.
6. Abuse Reporting
To report any incident of abusive practices related to our services or users, please forward the offending message, with full headers included, to abuse@dotcomhosting.co.nz.
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