Welcome to Total Website NZ Ltd’s web hosting services. This Hosting Agreement, as part of Total Website NZ Ltd’s Legal Agreement, governs your purchase and use, in any manner, of all web hosting services, including the Shared Hosting Services and the Dedicated Hosting Services, (collectively, the “Services”) as described on totalwebsite.co.nz, ordered by you and accepted by Total Website NZ Ltd, and describes the terms and conditions that apply to such purchase and use of the Services. For purposes of this Agreement, the Shared Hosting Services include the E-Commerce Services. You must register and accept the terms of this Agreement in order to use the Services.
Use of Services
Hosting shall be for an “Initial Term” of either (a) three (3) months, (b) six (6) months, or (c) twelve (12) months if you register for Shared Hosting Services, or (d) twelve (12) months from the order date if you register for Dedicated Hosting Services. Hosting will be automatically renewed (the “Renewal Term”) at the end of the Initial Term for the same period as the Initial Term unless you provide Total Website NZ Ltd with notice of termination at least thirty (30) days prior to the end of the Initial Term or the Renewal Term, whichever is then applicable. You must provide Total Website NZ Ltd with your notice of termination according to the “Cancellation/Termination” section of the Billing policy. Upon canceling your service, you may be asked to provide Total Website NZ Ltd with additional customer identification information so that Total Website NZ Ltd may properly identify you and your account.
If you terminate your receipt of the Services prior to the end of the Initial Term or the Renewal Term, whichever is then applicable, (a) Total Website NZ Ltd shall not refund to you any fees paid in advance of such termination and (b) you shall be required to pay the lesser of three (3) times the standard monthly charge or 100% of Total Website NZ Ltd’s standard monthly charge for each month remaining in the term, unless otherwise expressly provided herein. Your termination request must be submitted to Total Website NZ Ltd according to the Cancellation Section of the Billing Policy.
In the event you need to cancel, please specify whether you would like to cancel your domain name only, your Web hosting plan only, or both your domain and hosting accounts. The cancellation or expiration of your domain name does not automatically terminate your hosting account (or vice versa). Your hosting account billing term automatically renews upon completion, unless you notify us you would like to cancel your account.
Unless you have contracted Total Website NZ Ltd to create your web content and/or maintain it for you, you must ensure that all material and data placed on Total Website NZ Ltd’s equipment is in a condition that is “server-ready,” which is in a form requiring no additional manipulation by Total Website NZ Ltd. Total Website NZ Ltd will make no effort to validate any of this information for content, correctness or usability. In the event that your material is not “server-ready”, Total Website NZ Ltd has the option at any time to reject this material. Total Website NZ Ltd will notify you of its refusal of the material and afford you the opportunity to amend or modify the material to satisfy the needs and/or requirements of Total Website NZ Ltd. Use of the Services requires a certain level of knowledge in the use of Internet languages, protocols and software. This level of knowledge varies depending on the anticipated use and desired content of your web site. You must have the necessary knowledge to create and maintain a web site. It is not Total Website NZ Ltd’s responsibility to provide this knowledge or customer support outside of the Services agreed to by you and Total Website NZ Ltd.
You agree that use of the Services hereunder will not exceed the bandwidth, storage and email usage limits outlined for your plan. If you use any bandwidth or storage space in excess of the agreed upon number of megabytes per month or if you exceed email storage and attachment size limitations, Total Website NZ Ltd may, in its sole discretion, assess you with additional charges, suspend the performance of the Service, or terminate this Agreement. In the event that Total Website NZ Ltd elects to take any corrective action, you will not be entitled to a refund of any unused pre-paid fees. Total Website NZ Ltd’s servers are not intended to be used for permanent storage of your emails. You are expected to download email onto your local computer via an email client, such as Microsoft Outlook, Mozilla Thunderbird or similar program. Webmail is provided as a convenience and should not be used as a primary email/calendaring system.
As part of the Services, you will provide Total Website NZ Ltd with a registered domain name(s) or Total Website NZ Ltd will register such domain name(s) selected by you, provided that such domain name is available for registration and does not violate any OpenSRS or other registration services’ policies, or any law or regulation. You agree to promptly reimburse Total Website NZ Ltd for any fees paid by Total Website NZ Ltd for registration services with respect to the registration and maintenance of such domain name(s). In the event of any dispute or cause of action arising out of or related to your domain name used in connection with the Services, upon your request Total Website NZ Ltd will attempt to register an alternative domain name chosen by you. You agree to be bound by the terms of Total Website NZ Ltd’s and OpenSRS’ then current domain name policy and/or the policies of the national DNS registration authorities to which you become subject upon registration of your domain name. The inability to use a domain name shall not entitle you to a refund by Total Website NZ Ltd of any fees paid with respect to the registration of such unusable domain name.
Total Website NZ Ltd shall also maintain and control ownership of all Internet protocol (“IP”) numbers and addresses that may be assigned to you by Total Website NZ Ltd. Total Website NZ Ltd reserves, in its sole discretion, the right to change or remove any and all such IP numbers and addresses.
Total Website NZ Ltd is not responsible for Client’s files residing on Total Website NZ Ltd’s servers. These files include, but are not limited to, all website files, email, calendars, contacts and database files. You are solely responsible for independent backup of data stored on our servers. There are multiple ways you are able to access and backup your data. If you need additional information on these options please contact us at email@example.com. Total Website NZ Ltd performs regular backups on a daily basis for emergency purposes, but we cannot be held responsible for any lost data files, email or other.
You hereby grant Total Website NZ Ltd a non-exclusive, worldwide, and royalty-free license for the Initial Term and the Renewal Term, if applicable, to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display, and otherwise use your content as necessary for the purposes of rendering and operating the Services to you under this Agreement. You expressly (a) grant to Total Website NZ Ltd a license to cache materials distributed or made available for distribution via the Services, including content supplied by third parties, and (b) agree that such caching is not an infringement of any of your intellectual property rights or any third party’s intellectual property rights.
You acknowledge and agree that Total Website NZ Ltd exercises no control over, and accepts no responsibility for, the content of the information passing through Total Website NZ Ltd’s host computers, network switches and points of presence, or the Internet. ALL SERVICES PERFORMED HEREUNDER ARE PERFORMED “AS IS” AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, WITHOUT LIMITATION, ANY FAILURE DUE TO COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, TOTAL WEBSITE NZ LTD DOES NOT MAKE AND HEREBY DISCLAIMS, AND YOU HEREBY WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE.
Limitation and Exclusion of Liability
IN NO EVENT SHALL Total Website NZ LtdOR ITS SUPPLIERS HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. NEITHER Total Website NZ Ltd NOR ITS SUPPLIERS SHALL HAVE LIABILITY WITH RESPECT TO Total Website NZ Ltd’S OBLIGATIONS UNDER THIS AGREEMENT, ANY ADDENDUM OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF Total Website NZ Ltd HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE FOREGOING LIMITATION OR EXCLUSIONS MAY NOT APPLY TO YOU. IN ANY EVENT, THE LIABILITY OF Total Website NZ Ltd AND ITS SUPPLIERS TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO Total Website NZ Ltd BY YOU UNDER THIS AGREEMENT AND ANY ADDENDUM DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY Total Website NZ Ltd HEREUNDER HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU HEREBY RELEASE Total Website NZ Ltd AND ITS SUPPLIERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIM IN EXCESS OF THE LIMITATION STATED IN THIS SECTION A.
You hereby acknowledge and agree that Total Website NZ Ltd and its suppliers will not be liable for any temporary delay, outages, or interruptions of the Services. Further, Total Website NZ Ltd shall not be liable for any delay or failure to perform its obligations under this Agreement, where such delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, communications or third-party supplier failure).
Total Website NZ Ltd’s network uses multiple, redundant, high-speed connections providing fast, reliable connectivity. We understand the importance of providing a reliable service and have developed the following level of service to ensure maximum performance and uptime. The Total Website NZ Ltd Service Level Agreement (SLA) provides for network quality and web site availability.
These guidelines apply to Total Website NZ Ltd customers that have registered for either Shared Hosting Services or Dedicated Hosting Services (collectively, the “Services”) and who are in good financial standing with Total Website NZ Ltd.
In a given month Total Website NZ Ltd endeavors to have the content of customer’s web site available for http access by third parties 99.99% of the time (“Web Site Availability”), excluding the restrictions below. Downtime exists when third parties are unable to transmit and receive data and Total Website NZ Ltd records such failure within its monitoring systems. Downtime is measured from the time the trouble ticket is opened by a customer to the time the server is once again able to transmit and receive data.
In the event that there is not Web Site Availability, Total Website NZ Ltd will credit the following month’s service fee as follows:
For Shared Hosting services, such credit will be retroactive and will be as calculated below and as measured 24-hours a day in a calendar month, with the maximum credit not to exceed the monthly charge for the affected month. The monthly service charge is described as the monthly hosting fee only. Domain charges and additional service charges are not considered part of the monthly hosting fee and are not applicable to this SLA.
Customer Web Site Availability Credit
95% to 99.98% 25% credit
90% to 94.9% 50% credit
89.99 % or below 100% credit
For Dedicated services, if the Web Site Availability is between 89.9% and 99.98% for any particular month, the credit will be retroactive and equivalent to the difference between the guaranteed level of availability of the customer’s services, during the month and the calculated actual level of availability of the customer’s services, multiplied by the actual charges incurred by the customer for the services during that month. In addition, for Dedicated services, customers may be entitled to additional credits as calculated below and as measured 24-hours a day in a calendar month, with the maximum credit not to exceed fifty percent (50%) of the monthly service charge for the affected month. The monthly service charge is described as the monthly hosting fee only. Domain charges and additional service charges are not considered part of the monthly hosting fee and are not applicable to this SLA.
Minutes of Continuous Downtime Credit
60 to 179 Minutes 25% credit
180 Minutes or More 50% credit
In order for a customer to receive a credit on their account, the customer must request such credit within seven (7) business days after customer experienced no Web Site Availability. Customers must request credit by sending an email to our billing department. For security, message must contain customer name, the dates and times of the unavailability of customer web site, and such other customer identification requested by Total Website NZ Ltd. Credits will usually be applied within sixty (60) days of customer credit request. Credit to customer account will be customer’s sole and exclusive remedy in the event that there is no Web Site Availability.
Credits will not be provided to a customer in the event that the customer has no Web Site Availability resulting from (i) scheduled maintenance as posted from time to time via email bulletins, direct mail and at totalwebsite.co.nz, (ii) customer behavior including acts or omissions of customer, or any use or user of the service authorized by customer, or the performance or failure of customer’s equipment, facilities or applications, or customer’s ISP or connection to the internet, or (iii) circumstances beyond Total Website NZ Ltd’s reasonable control, including, without limitation, acts of God, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability or interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of customer’s service.