Terms of Service
This file was last modified on Tuesday, 28th April 2020.
SMEspree is available for general contact Monday - Friday 9am - 5pm UTC+12:00, excluding public holidays followed by New Zealand.
Technical support is additionally offered Saturday and Sunday, and can be reached by creating a support ticket.
- SMEspree does not allow pornographic material.
- SMEspree does not allow unsolicited email and requires opt-in list managers to include at least one single action method of unsubscribing in each email. We reserve the right to limit incoming or outgoing email at any time.
- SMEspree reserves the right to terminate your account at any time without a refund. Reasons for termination include, but are not limited to:
- Abuse of the machines - either intentional or due to improper coding
- Committing or Promoting any type of illegal activity including fraud, mailbombing, denial of service attacks, storing and/or housing and/or linking to illegal content, including but not limited to, "warez", "hacking"/"cracking"/"key generators".
- The Services to traffic in illegal drugs, gambling and/or obscene materials.
- The Services to misappropriate or infringe the patents, copyrights, trademarks or other intellectual property rights of any third party.
- Additionally, SMEspree reserves the right to terminate your account if at any time your site has pornography and/or nudity of any kind, including but not limited to, adult pornography, Anime, child pornography, "adult content" and/or the written word of a sexual nature.
- Use of ad-servers, attempts to circumvent quota system owned by 'nobody', certain podcasting sites, use of torrent software, proxies, excessive resource usage or 'core dumping'.
- Attempts to circumvent any of our security policies, procedures or systems.
Business Hosting Plans
After your purchase of a Business Hosting account, you may contact support to have your physical uptime checked no more than once within a 30-day period. If your server has a physical downtime that is not within the 99% uptime guarantee then you may receive one month of credit on your account. Approval of the credit is at the discretion of SMEspree, dependent upon the results of the check performed by SMEspree support. Third-party monitoring service reports may not be used for justification, due to a variety of factors, including the monitor's network capacity and reliability. The uptime of the server is defined as the reported uptime from the operating system and the Apache Web Server which may differ from the uptime reported by other individual services. If an approved downtime event is reported following a check you request, you must request your credit within one (1) week of receiving notification of such a report.
Scheduled downtime for server maintenance is not regarded as downtime for purposes of relevance for this credit, nor is downtime caused by unavoidable acts of God, nor by third-party digital or physical attacks on SMEspree servers and data centres, such as direct denial of service (DDoS) attacks, or other forms of hacking. Interruptions in service caused by you from custom scripting, coding or the installation of third-party applications are likewise not eligible to be counted against downtime. SMEspree reserves the right to measure uptime on its own at any time.
To request a credit, please create a ticket with our support department with justification. Uptime guarantees only apply to Business Hosting accounts.
This User Agreement ("Agreement") is an agreement between SMESPREE ("Company") and the party set forth in the related order form (“Customer” or “You”) incorporated herein by reference (together with any subsequent order forms submitted by Customer, the "Order Form"), and applies to the purchase of all services ordered by Customer on the Order Form (collectively, the "Services").
PLEASE READ THIS AGREEMENT CAREFULLY.
BY SIGNING UP FOR THE SERVICES CREATES A CONTRACT BETWEEN CUSTOMER AND COMPANY, CONSISTING OF THE ORDER, THE APPLICABLE SERVICE DESCRIPTION AND THIS USER AGREEMENT AND YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING COMPANY'S USAGE POLICY. YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
- Acceptable Use Policy. Under this Agreement, Customer shall comply with Company's then current Acceptable Use Policy (“AUP”), as amended, modified or updated from time to time by Company, and which is incorporated in this Agreement by reference. Customer hereby acknowledges that it has reviewed the AUP and that the terms of the AUP are incorporated herein by reference. In the event of any inconsistencies between this Agreement and the AUP, the terms of the AUP shall govern. Company does not intend to systematically monitor the content that is submitted to, stored on or distributed or disseminated by Customer via the Service (the "Customer Content"). Customer Content includes content of Customer's customers and/or users of Customer's website. Accordingly, under this Agreement, You will be responsible for Your customers' content and activities on Your website. Notwithstanding anything to the contrary contained in this Agreement, Company may immediately take corrective action, including removal of all or a portion of the Customer Content, disconnection or discontinuance of any and all Services, or termination of this Agreement in the event of notice of possible violation by Customer of the AUP. In the event Company takes corrective action due to a violation of the AUP, Company shall not refund to Customer any fees paid in advance of such corrective action. Customer hereby agrees that Company shall have no liability to Customer or any of Customer's customers due to any corrective action that Company may take (including, without limitation, disconnection of Services).
- Term; Termination; Cancellation Policy.
- The initial term of this Agreement shall be as set forth in the Order Form (the "Initial Term"). The Initial Term shall begin upon commencement of the Services to Customer. After the Initial Term, this Agreement shall automatically renew. ADDITIONALLY AFTER THE INITIAL TERM, YOU ACKNOWLEDGE, AGREE AND AUTHORIZE COMPANY TO AUTOMATICALLY BILL AND/OR CHARGE ON YOUR CREDIT CARD FOR SUCCESSIVE TERMS OF EQUAL LENGTH AS THE INITIAL TERM, UNLESS TERMINATED OR CANCELLED BY EITHER PARTY AS PROVIDED IN THIS SECTION. The Initial Term and all successive renewal periods shall be referred to, collectively, as the "Term".
- If the payment method you use with us, such as a credit card, reaches its expiration date and you do not edit your payment method information or cancel, you acknowledge, agree and authorize SMEspree to continue billing your credit card and you remain responsible for any uncollected amounts.
- Additionally, in an effort to ensure your domain registration renewal processes successfully, SMEspree may process the renewal charge up to two weeks in advance of your expiration date unless you explicitly request otherwise.
- This Agreement may be terminated
- by either party by giving the other party thirty (30) days prior written notice,
- by Company in the event of nonpayment by Customer,
- by Company, at any time, without notice, if, in Company's sole and absolute discretion and/or judgment, Customer is in violation of any term or condition of the this Agreement and related agreements, AUP, or Customer's use of the Services disrupts or, in Company's sole and absolute discretion and/or judgment, could disrupt, Company's business operations and/or
- by Company as provided herein.
- If You cancel this Agreement, upon proper notice to Company, prior to the end of the Initial Term or any Term thereafter,
- You shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation;
- Company may (but is not obligated to) refund to You all pre-paid fees for basic hosting services for the full months remaining after effectiveness of cancellation (i.e., no partial month fees shall be refunded), less any setup fees and any discount applied for prepayment, provided that, You are not in breach of any terms and conditions of this AUP, User Agreement, Spamming Policy or Domain Policy; and/or
- You shall be obligated to pay one hundred percent (100%) of all charges for all Services for each month remaining in the Term (other than basic hosting fees as provided in (ii) above). Any cancellation request shall be effective thirty (30) days after receipt by Company, unless a later date is specified in such request.
- Company may terminate this Agreement, without penalty,
- if the Services are prohibited by applicable law, or become impractical or unfeasible for any technical, legal or regulatory reason, by giving Customer as much prior notice as reasonably practicable; or
- immediately, if Company determines that Customer’s use of the Services, the Web site or the Customer Content violates any Company term or condition, including this AUP, User Agreement, Spamming Policy, or Domain Policy. If Company cancels this Agreement prior to the end of the Term for Your breach of this Agreement and related agreements, including the AUP, User Agreement, Spamming Policy, or Domain Policy or Customer's use of the Services disrupts our network, Company shall not refund to You any fees paid in advance of such cancellation and You shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation; further, You shall be obligated to pay 100% of all charges for all Services for each month remaining in the Term and Company shall have the right to charge You an administrative fee of a minimum of $50.00.
- Upon termination of this Agreement for any cause or reason whatsoever, neither party shall have any further rights or obligations under this Agreement, except as expressly set forth herein. The provisions of Sections 2(e), 3, 4, 10, 11, 13, 15 and 16 of this Agreement shall survive the expiration or termination of this Agreement for any cause or reason whatsoever, and, notwithstanding the expiration or termination of this Agreement, the parties shall each remain liable to the other for any indebtedness or other liability theretofore arising under this Agreement. Termination of this Agreement and retention of pre-paid fees and charges shall be in addition to, and not be in lieu of, any other legal or equitable rights or remedies to which Company may be entitled.
- The initial term of this Agreement shall be as set forth in the Order Form (the "Initial Term"). The Initial Term shall begin upon commencement of the Services to Customer. After the Initial Term, this Agreement shall automatically renew. ADDITIONALLY AFTER THE INITIAL TERM, YOU ACKNOWLEDGE, AGREE AND AUTHORIZE COMPANY TO AUTOMATICALLY BILL AND/OR CHARGE ON YOUR CREDIT CARD FOR SUCCESSIVE TERMS OF EQUAL LENGTH AS THE INITIAL TERM, UNLESS TERMINATED OR CANCELLED BY EITHER PARTY AS PROVIDED IN THIS SECTION. The Initial Term and all successive renewal periods shall be referred to, collectively, as the "Term".
- Customer’s Responsibilities.
- Customer is solely responsible for the quality, performance and all other aspects of the Customer Content and the goods or services provided through the Customer Web site.
- Customer will cooperate fully with Company in connection with Company’s performance of the Services. Customer must provide any equipment or software that may be necessary for Customer to use the Services. Delays in Customer’s performance of its obligations under this Agreement will extend the time for Company’s performance of its obligations that depend on Customer’s performance on a day for day basis. Customer will notify Company of any change in Customer’s mailing address, telephone, electronic mail or other contact information.
- Customer assumes full responsibility for providing end users with any required disclosure or explanation of the various features of the Customer Web site and any goods or services described therein, as well as any rules, terms or conditions of use.
- Because the Services permit Customer to electronically transmit or upload content directly to the Customer Web site, Customer shall be fully responsible for uploading all content to the Customer Web site and supplementing, modifying and updating the Customer Web site, including all back-ups. Customer is also responsible for ensuring that the Customer Content and all aspects of the Customer Web site are compatible with the hardware and software used by Company to provide the Services, as the same may be changed by Company from time to time. Specifications for the hardware and software used by Company to provide the Services will be available on Company’s Web site. Customer shall periodically access Company’s Web site to determine if Company has made any changes thereto. Company shall not be responsible for any damages to the Customer Content, the Customer Web site or other damages or any malfunctions or service interruptions caused by any failure of the Customer Content or any aspect of the Customer Web site to be compatible with the hardware and software used by Company to provide the Services.
- Customer is solely responsible for making back-up copies of the Customer Web site and Customer Content.
- Customer’s Representations and Warranties.
- Customer hereby represents and warrants to Company, and agrees that during the Initial Term and any Term thereafter Customer will ensure that:
- Customer is the owner or valid licensee of the Customer Content and each element thereof, and Customer has secured all necessary licenses, consents, permissions, waivers and releases for the use of the Customer Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by Company to pay any fees, residuals, guild payments or other compensation of any kind to any Person;
- Customer’s use, publication and display of the Customer Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any person, including, without limitation, any contractual, statutory or common law right or any “moral right” or similar right however denominated;
- Customer will comply with all applicable laws, rules and regulations regarding the Customer Content and the Customer Web site and will use the Customer Web site only for lawful purposes; and
- Customer has used its best efforts to ensure that the Customer Content is and will at all times remain free of all computer viruses, worms, Trojan horses and other malicious code.
- Customer shall be solely responsible for the development, operation and maintenance of Customer's web site, online store and electronic commerce activities, for all products and services offered by Customer or appearing online and for all contents and materials appearing online or on Customer's products, including, without limitation
- the accuracy and appropriateness of the Customer Content and content and material appearing in its store or on its products,
- ensuring that the Customer Content and content and materials appearing in its store or on its products do not violate or infringe upon the rights of any person, and
- ensuring that the Customer Content and the content and materials appearing in its store or on its products are not defamatory or otherwise illegal. Customer shall be solely responsible for accepting, processing and filling customer orders and for handling customer inquiries or complaints. Customer shall be solely responsible for the payment or satisfaction of any and all taxes associated with its web site and online store.
- Customer grants Company the right to reproduce, copy, use and distribute all and any portion of the Customer Content to the extent needed to provide and operate the Services.
- In addition to transactions entered into by Customer on Your behalf, Customer also agrees to be bound by the terms of this Agreement for transactions entered into on Customer’s behalf by anyone acting as Customer’s agent, and transactions entered into by anyone who uses Customer’s account, whether or not the transactions were on Customer’s behalf.
- Customer hereby represents and warrants to Company, and agrees that during the Initial Term and any Term thereafter Customer will ensure that:
- License to Company. Customer hereby grants to Company a non-exclusive, royalty-free, worldwide right and license during the Initial Term and any Term thereafter to do the following to the extent necessary in the performance of Services under the Order:
- digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the Customer Content; and
- make archival or back-up copies of the Customer Content and the Customer Web site.
- Except for the rights expressly granted above, Company is not acquiring any right, title or interest in or to the Customer Content, all of which shall remain solely with Customer.
- Company, in its sole discretion, reserves the right (i) to deny, cancel, suspend, transfer or alter, modify, correct, amend, change, program, or take any other corrective action to protect the integrity and stability of the Services (including altering, modifying, correcting, amending, changing, programming, or taking any other corrective action regarding any malicious code, software or related abusive activity, Customer Content and/or web site(s)), and/or (ii) to comply with any applicable laws, government rules, or requirements, requests of law enforcement, or to avoid any liability, civil or criminal. Customer further agrees that Company shall not be liable to Customer for any loss or damages that may result from such conduct.
- Billing and Payment.
- Customer will pay to Company the service fees for the Services in the manner set forth in the Order Form.
- Company may increase the Service Fees (i) in the manner permitted in the service description and (ii) at any time on or after the expiration of the Initial Term.
- The Service Fees do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority with respect to the Services or any software provided hereunder (excluding any tax on Company’s net income). All such taxes will be added to Company’s invoices for the fees as separate charges to be paid by Customer. All fees are fully earned when due and non-refundable when paid.
- Unless otherwise specified, all fees and related charges shall be due and payable within thirty (30) days after the date of the invoice. If any invoice is not paid within fourteen (14) days after the date of the invoice, Company may charge Customer a late fee of 10% for. If an account remains overdue for thirty (30) days then Company may suspend the account until all outstanding invoices and any associated late fees (if any), administration fees (if any) and/or other assoicated account fees are paid in full.
- If Company collects any payment due at law or through an attorney at law or under advice therefrom or through a collection agency, or if Company prevails in any action to which the Customer and Company are parties, Customer will pay all costs of collection, arbitration and litigation, including, without limitation, all court costs and Company’s reasonable attorneys’ fees.
- If any check is returned for insufficient funds Company may impose a minimum processing charge of $25.00.
- In the event that any amount due to Company remains unpaid seven (7) days after such payment is due, Company, in its sole discretion, may immediately terminate this Agreement, and/or withhold or suspend Services.
- There may be a minimum $25.00 charge to reinstate accounts that have been suspended or terminated.
- Wire transfers originating from outside of New Zealand will be assessed a minimum $35.00 charge.
- There may be a minimum $35.00 charge to for all credit card chargebacks.
- Customer acknowledges and agrees that Company may pre-charge Customer's fees for the Services to its credit card supplied by Customer during registration for the Initial Term.
- YOU ACKNOWLEDGE, AGREE AND AUTHORIZE COMPANY TO AUTOMATICALLY BILL AND/OR CHARGE ON YOUR CREDIT CARD FOR SUCCESSIVE TERMS OF EQUAL LENGTH AS THE INITIAL TERM, UNLESS TERMINATED OR CANCELLED BY EITHER PARTY AS PROVIDED IN SECTION 2.
- Company as Reseller or Licensor. Company is acting only as a reseller or licensor of the hardware, software and equipment used in connection with the products and/or Services that were or are manufactured or provided by a third party ("Non-Company Product"). Company shall not be responsible for any changes in the Services that cause the Non-Company Product to become obsolete, require modification or alteration, or otherwise affect the performance of the Services. Any malfunction or manufacturer's defects of Non-Company Product either sold, licensed or provided by Company to Customer or purchased directly by Customer used in connection with the Services will not be deemed a breach of Company's obligations under this Agreement. Any rights or remedies Customer may have regarding the ownership, licensing, performance or compliance of Non-Company Product is limited to those rights extended to Customer by the manufacturer of such Non-Company Product. Customer is entitled to use any Non-Company Product supplied by Company only in connection with Customer's permitted use of the Services. Customer shall use its best efforts to protect and keep confidential all intellectual property provided by Company to Customer through any Non-Company Product and shall make no attempt to copy, alter, reverse engineer, or tamper with such intellectual property or to use it other than in connection with the Services. Customer shall not resell, transfer, export or re-export any Non-Company Product, or any technical data derived therefrom, in violation of any applicable United States or foreign law.
- Internet Protocol (IP) Address Ownership. If Company assigns Customer an Internet Protocol (“IP”) address for Customer's use, the right to use that IP address shall belong only to Company, and Customer shall have no right to use that IP address except as permitted by Company in its sole and absolute discretion in connection with the Services, during the term of this Agreement. Company shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to Customer by Company, and Company reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion.
- Caching. Customer expressly
- grants to Company a license to cache the entirety of the Customer Content and Customer's website, including content supplied by third parties, hosted by Company under this Agreement and
- agrees that such caching is not an infringement of any of Customer's intellectual property rights or any third party's intellectual property rights.
- CPU Usage. Customer agrees that Customer shall not use excessive amounts of CPU processing on any of Company's servers. The maximum number of files is 50,000 per account. Any violation of this policy may result in corrective action by Company, including assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement, which actions may be taken in Company's sole and absolute discretion. If Company takes any corrective action under this section, Customer shall not be entitled to a refund of any fees paid in advance prior to such action.
- Bandwidth and Disk Usage. Company shall provide Customer with a large volume of bandwidth, disk space and other resources, such as email and/or file-transfer-protocol ("FTP") accounts. The Services are intended for legitimate and normal business use only. Any activity that results in excessive usage inconsistent with normal usage patterns is strictly prohibited. Customer agrees that such bandwidth and disk usage shall not exceed the amounts set by Company for the Services (the "Agreed Usage"). These allotments are optimized and dedicated to serving the Content and Customer's electronic mail services related solely to Customer's web hosting account(s) with Company. Customer shall not use any bandwidth and/or disk usage for materials other than the Customer’s business website, Customer Content and/or Customer's electronic mail services. For example, Customer may not use bandwidth or disk usage as an offsite storage area for electronic files or as a provisioning service for third party electronic mail or FTP hosts. Company will monitor Customer's bandwidth and disk usage. Company, in its sole discretion, shall have the right to take any corrective action if Customer's bandwidth or disk usage exceeds the Agreed Usage or other improper storage or usage. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all Services, removal or deletion of Customer’s Web site, Customer Content, Customer's electronic mail services and/or other materials or termination of this Agreement, which actions may be taken in Company's sole and absolute discretion. If Company takes any such corrective action under this section, Customer shall not be entitled to a refund or credit of any fees paid prior to such action. Customer will comply with all applicable laws, rules and regulations regarding Customer’s Web site, Customer Content and/or Customer's electronic mail services and will each, including bandwidth, disk space and other resources only for lawful purposes. Customer may not utilize: the Services to copy material from third parties (including text, graphics, music, videos or other copyrightable material) without proper authorization; the Services to misappropriate or infringe the patents, copyrights, trademarks or other intellectual property rights of any third party; the Services to traffic in illegal drugs, illegal gambling, obscene materials or other any products or services that are prohibited under applicable law; the Services to export encryption software to points outside the United States in violation of applicable export control laws; the Services to forge or misrepresent message headers, whether in whole or in part, to mask the originator of the message. If Company learns or discovers that Customer is violating any law related to Customer’s website, Customer Content and/or Customer's electronic mail services, use of bandwidth, disk usage or Agreed Usage, Company may be obligated to inform the necessary law enforcement and/or any related agency(ies) of such conduct and may provide such agency(ies) with information related to Customer, Customer’s Web site, Customer Content and/or Customer's electronic mail.
- Parked Domain Services. In addition to the applicable terms and conditions contained herein:
- If Customer signs up to register and park a domain name with Company, Customer agrees to pay Company the annual fee a set forth on our website. Customer’s annual billing date will be determined based on the month Customer establishes the Parked Page Services with Company. Payments are non-refundable. If for any reason Company is unable to charge Customer’s payment method for the full amount owed Company for the service provided, or if Company is charged a penalty for any fee it previously charged to Your payment method, Customer agrees that Company may pursue all available remedies in order to obtain payment. Customer agrees that among the remedies Company may pursue in order to effect payment, shall include but will not be limited to, immediate cancellation without notice to Customer of Customer’s service. Company reserves the right to charge a reasonable service fee for administrative tasks outside the scope of its regular services. These include, but are not limited to, customer service issues that cannot be handled over email but require personal service and disputes that require legal services. These charges will be billed to the payment method we have on file for Customer.
- Customer agrees to be responsible for notifying Company should Customer desire to terminate use of any of the Parked Page Services, including, but not limited to, those purchased. Notification of Customer’s intent to terminate must be provided to Company no earlier than thirty (30) days prior to Customer’s billing date but no later than ten (10) days prior to the billing date. In the absence of notification from Customer, Company will automatically continue the Parked Page Services indefinitely and will charge Customer’s payment method that is on file with Company, at Company's then current rates. It is Customer’s responsibility to keep their payment method information current, which includes the expiration date if using a credit card. In the event Customer terminates the Parked Page Services, moving their website off of the Company hosting servers is Customer’s responsibility. Company will not transfer or FTP such web site to another provider. Any change by Customer of their name-server is not deemed cancellation of the Parked Page Services.
- Company will provide Customer with the Parked Page Services as long as Customer abides by the terms and conditions set forth herein and in each of Company's policies and procedures.
- By using any of the Parked Pages Services, Customer agrees that Company may point the domain name or DNS to one of Company's or Company's affiliates web pages, and that they may place advertising on Customer’s web page and that Company specifically reserves this right. Customer shall have no right to any compensation and shall not be entitled and shall have no right to receive any funds related to the monetization of Customer’s Parked Pages.
- Customer agrees to indemnify and hold harmless Company for any complications arising out of use of the Parked Page Services, including, but not limited to, actions Company chooses to take to remedy Customer’s improper or illegal use of a web site hosted by Company. Customer agrees it is not be entitled to a refund of any fees paid to Company if, for any reason, Company takes corrective action with respect to any improper or illegal use of the Parked Page Services.
- If a dispute arises as a result of one or more of Customer’s Parked Pages, Customer will indemnify, defend and hold Company harmless for damages arising out of such dispute. Customer also agrees that if Company is notified that a complaint has been filed with a governmental, administrative or judicial body, regarding a website hosted by Company, that Company, in its sole discretion, may take whatever action Company deems necessary regarding further modification, assignment of and/or control of the website to comply with the actions or requirements of the governmental, administrative or judicial body until such time as the dispute is settled.
- Property Rights.
- Company hereby grants to Customer a limited, non-exclusive, non-transferable, royalty-free license, exercisable solely during the term of this Agreement, to use Company technology, products and services solely for the purpose of accessing and using the Services. Customer may not use Company’s technology for any purpose other than accessing and using the Services. Except for the rights expressly granted above, this Agreement does not transfer from Company to Customer any Company technology, and all rights, titles and interests in and to any Company technology shall remain solely with Company. Customer shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the Company.
- Company owns all right, title and interest in and to the Services and Company's trade names, trademarks, service marks, inventions, copyrights, trade secrets, patents, know-how and other intellectual property rights relating to the design, function, marketing, promotion, sale and provision of the Services and the related hardware, software and systems ("Marks"). Noting in this Agreement constitutes a license to Customer to use or resell the Marks.
- Disclaimer of Warranty. Customer agrees to use all Services and any information obtained through or from Company, at Customer's own risk. Customer acknowledges and agrees that Company exercises no control over, and accepts no responsibility for, the content of the information passing through Company's host computers, network hubs and points of presence or the Internet. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. NONE OF COMPANY, ITS PARENT, SUBSIDIARY OR AFFILIATED CORPORATIONS, OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, ATTORNEYS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE (EACH, AN "COMPANY PERSON") MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES OR ANY EQUIPMENT COMPANY PROVIDES. NO COMPANY PERSON MAKES ANY WARRANTIES THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. COMPANY IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER'S CUSTOMERS VIA THE SERVICES PROVIDED BY COMPANY. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ANY COMPANY PERSON, WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE. The terms of this section shall survive any termination of this Agreement.
- Limited Warranty.
- Company represents and warrants to Customer that the Services will be performed (a) in a manner consistent with industry standards reasonably applicable to the performance thereof; (b) at least at the same level of service as provided by Company generally to its other customers for the same services; and (c) in compliance in all material respects with the applicable Service Descriptions. Customer will be deemed to have accepted such Services unless Customer notifies Company, in writing, within thirty (30) days after performance of any Services of any breach of the foregoing warranties. Customer’s sole and exclusive remedy, and Company’s sole obligation, for breach of the foregoing warranties shall be for Company, at its option, to re-perform the defective Services at no cost to Customer, or, in the event of interruptions to the Services caused by a breach of the foregoing warranties, issue Customer a credit in an amount equal to the current monthly service fees pro rated by the number of hours in which the Services have been interrupted. Company may provision the Services from any of its data centres and may from time to time re-provision the Services from different data centres.
- The foregoing warranties shall not apply to performance issues or defects in the Services (a) caused by factors outside of Company’s reasonable control; (b) that resulted from any actions or inactions of Customer or any third parties; or (c) that resulted from Customer’s equipment or any third-party equipment not within the sole control of Company. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND COMPANY HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO CUSTOMER HEREUNDER IS PROVIDED “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
- Limitation of Liability.
- IN NO EVENT WILL COMPANY’S LIABILITY IN CONNECTION WITH THE SERVICES, ANY SOFTWARE PROVIDED HEREUNDER OR ANY ORDER, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE SERVICE FEES PAID TO COMPANY BY CUSTOMER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
- COMPANY CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. COMPANY WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM.
- EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY ORDER, OR FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
- The limitations contained in this Section apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability), other than claims based on fraud or willful misconduct. The limitations contained in Section 15(c) shall not apply to Customer’s indemnification obligations.
- Notwithstanding anything to the contrary in this Agreement, Company's maximum liability under this Agreement for all damages, losses, costs and causes of actions from any and all claims (whether in contract, tort, including negligence, quasi-contract, statutory or otherwise) shall not exceed the actual dollar amount paid by Customer for the Services which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose.
- Customer understands, acknowledges and agrees that if Company takes any corrective action under this Agreement because of an action of Customer or one of its customers or a reseller, that corrective action may adversely affect other customers of Customer or other reseller customers, and Customer agrees that Company shall have no liability to Customer, any of its customers or any Reseller Customer due to such corrective action by Company.
- This limitation of liability reflects an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with this Agreement. The terms of this section shall survive any termination of this Agreement.
- Indemnification. Customer agrees to indemnify, defend and hold harmless Company and its parent, subsidiary and affiliated companies, and each of their respective officers, directors, employees, shareholders, attorneys and agents (each an "indemnified party" and, collectively, "indemnified parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney's fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to Customer's use of the Services, (ii) any violation by Customer of the AUP, (iii) any breach of any representation, warranty or covenant of Customer contained in this Agreement or (iv) any acts or omissions of Customer. The terms of this section shall survive any termination of this Agreement.
- Arbitration Agreement And Class Action Waiver.
- Purpose. This Arbitration Agreement facilitates the prompt and efficient resolution of any disputes that may arise between you and SMEspree. Arbitration is a form of private dispute resolution in which parties to a contract agree to submit their disputes and potential disputes to a neutral third person (called an arbitrator) for a binding decision, instead of having such dispute(s) decided in a lawsuit, in court, by a judge or jury trial. Please read this Arbitration Agreement carefully. It provides that all disputes between you (sometimes referred to as “Customer”) and SMEspree (sometimes referred to as “Company”) shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this Arbitration Agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Entering into this Arbitration Agreement constitutes a waiver of your right to litigate claims in court and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this Arbitration Agreement and can award the same damages and relief as a court (including attorney’s fees if otherwise authorized by applicable law). The term “Dispute” means any dispute, claim, or controversy between you and SMEspree regarding any aspect of your relationship with SMEspree, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, gross negligence or reckless behavior), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Arbitration Agreement (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced.
- WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS ARBITRATION AGREEMENT.
- Pre-Arbitration Dispute Resolution. For all Disputes, you must first give SMEspree an opportunity to resolve the Dispute. You must commence this process by mailing written notification to PO Box 572, Cambridge 3450, Waikato, New Zealand. That written notification must include (1) your name, (2) your address, (3) a written description of the Dispute, and (4) a description of the specific relief you seek. If SMEspree does not resolve the Dispute to your satisfaction within 45 days after it receives your written notification, you may pursue your Dispute in arbitration.
- Arbitration Award. The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator shall make any award in writing but need not provide a statement of reasons unless requested by a party. Such award by the arbitrator will be final and binding on the parties, except for any right of appeal provided by New Zealand law, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
- Location of Arbitration. You may initiate arbitration in New Zealand.
- Class Action Waiver. The parties agree that the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims unless both you and SMEspree specifically agree in writing to do so following the initiation of the arbitration. Neither you, nor any other Member of SMEspree and/or user of SMEspree services, can be a class representative, class member, or otherwise participate in a class, representative, consolidated or private attorney general proceeding.
- Limitation of Procedural Rights. You understand and agree that, by entering into this Arbitration Agreement, you and SMEspree are each agreeing to arbitration instead of the right to a trial before a judge or jury in a public court. In the absence of this Arbitration Agreement, you and SMEspree might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). You give up those rights. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited in arbitration. The right to appellate review of an arbitrator’s decision is much more limited than in court, and in general, an arbitrator’s decision may not be appealed for errors of fact or law.
- Severability. If any clause within this Arbitration Agreement (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Arbitration Agreement, and the remainder of this Arbitration Agreement will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, then this entire Arbitration Agreement will be unenforceable, and the Dispute will be decided by a court.
- Continuation. This Arbitration Agreement shall survive the termination of your contract with SMEspree and your use of SMEspree services.
- Independent Contractor. Company and Customer are independent contractors and nothing contained in this Agreement places Company and Customer in the relationship of principal and agent, master and servant, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party or to obligate or bind the other party in any manner whatsoever.
- Governing Law; Jurisdiction. Except to the extent applicable law, if any, provides otherwise, this Agreement, any access to or use of the Services will be governed by the laws of the state New Zealand, and where applicable, laws of the USA.
- Headings. The headings herein are for convenience only and are not part of this Agreement.
- Entire Agreement; Amendments. This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any purchase order, service order, work order, confirmation, correspondence or other communication of Customer or Company, the terms and conditions of this Agreement shall control. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by an authorized representative of Customer and Company. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that these Terms of Service may be modified from time to time by Company in its sole discretion, which modifications will be effective upon posting to Company's website.
- Severability. All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
- Notices. All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by a postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties’ signatures. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein. Company may give written notice to Customer via electronic mail to the Customer’s electronic mail address as maintained in Company’s billing records.
- Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
- Assignment; Successors. Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of Company. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Company may assign its rights and obligations under this Agreement and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Customer. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
- Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two years after the cause of action has arisen.
- Counterparts. If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically, Company’s records of such execution shall be presumed accurate unless proven otherwise.
- Force Majeure. Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
- No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, Customer acknowledges and agrees that Microsoft, and any supplier of third-party supplier that is identified as a third-party beneficiary in the Service Description, is an intended third-party beneficiary of the provisions set forth in this Agreement as they relate specifically to its products or services and shall have the right to enforce directly the terms and conditions of this Agreement with respect to its products or services against Customer as if it were a party to this Agreement.
- Government Regulations. Customer may not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States or New Zealand in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the United States or New Zealand government and any country or organization of nations within whose jurisdiction Customer operates or does business.
20. Marketing. Customer agrees that during the term of this Agreement Company may publicly refer to Customer, orally and in writing, as a customer of Company. Any other public reference to Customer by Company requires the written consent of Customer.
Civil Subpoena Policy
If you seek the identity or account information of a Company customer in connection with a civil legal matter, you must fax, mail, or serve the Company with a valid subpoena.
Submission of Subpoenas
The Company is located in Cambridge, New Zealand and all civil subpoenas should be served at or mailed to:
Attn: General Counsel
PO Box 572
Upon the receipt of a validly issued civil subpoena, the Company will promptly notify the customer whose information is sought via e-mail or mail. If the circumstances do not amount to an emergency, the Company will not immediately produce the customer information sought by the subpoena and will provide the customer with an opportunity to move to quash the subpoena in court.
Fees for Subpoena Compliance
The Company will charge the person or entity submitting the civil subpoena for costs associated with subpoena compliance. Payment must be made within thirty (30) days from the date of receipt of the Company invoice. Checks should be made out to the SMEspree.
The Company's subpoena compliance costs are as follows:
Research - $75.00/hour
Federal Express - Cost as Billed
Copies - $.50/page
Compact Discs - $10.00/per CD
Policies Regarding E-mail
The Company will not produce the content of an e-mail, as the Electronic Communications Privacy Act, 18 U.S.C. §2701 et seq., and any relevant New Zealand law, prohibits an electronic communications service provider from producing the contents of electronic communications, even pursuant to subpoena or court order, except in limited circumstances. The Company's e-mail servers do not retain deleted or sent e-mail. However, deleted e-mail may be recoverable from backup servers for a limited time.
The Company reserves the right to request a copy of the complaint and any supporting documentation that demonstrates how the Company e-mail address is related to the pending litigation and the underlying subpoena.
- SMEspree, (“the Company”) maintains a zero tolerance policy for use of its network in any manner associated with the transmission, distribution or delivery of any bulk e-mail, including unsolicited bulk or unsolicited commercial e-mail (“SPAM”). You may not use any our services or network to send SPAM. In addition, e-mail sent, or caused to be sent, to or through our network may not:
- Use or contain invalid or forged headers;
- Use or contain invalid or non-existent domain names;
- Employ any technique to otherwise misrepresent, hide or obscure any information in identifying the point of origin or the transmission path;
- Use other means of deceptive addressing;
- Use a third party’s internet domain name, or be relayed from or through a third party’s equipment, without permission of the third party;
- Contain false or misleading information in the subject line or otherwise contain false or misleading content;
- Fail to comply with additional technical standards described below;
- Otherwise violate the Company’s terms and conditions.
- The Company does not authorize the harvesting, mining or collection of e-mail addresses or other information from or through its network. the Company does not permit or authorize others to use its network to collect, compile or obtain any information about its customers or subscribers, including but not limited to subscriber e-mail addresses, which are the Company’s confidential and proprietary information. Use of our network is also subject to our Acceptable Use Policy, and all other terms and conditions set out on our website.
- The Company does not permit or authorize any attempt to use its network in a manner that could damage, disable, overburden or impair any aspect of any of our services, or that could interfere with any other party’s use and enjoyment of any the Company product or service.
- We monitor all traffic to and from our servers. Customers suspected of using the Company’s products and services for the purpose of sending SPAM will be investigated. It is the Company’s policy to immediately remove and deactivate any offending website sending SPAM.
- Customers may be asked to produce records that verify that explicit affirmative permission was obtained from a recipient before a mailing was sent. The Company may consider the lack of such proof of explicit affirmative permission of a questionable mailing.
- Customers are prohibited from maintaining open mail relays on their servers. Ignorance of the presence or operation of an open mail relay is not and will not be considered an acceptable excuse for its (the open mail relay) operation.
- Customers are prohibited from providing hosting services for websites that have been included in SPAM. Hosting includes, but is not limited to, hosting website(s), providing DNS services as well as website redirect services.
- If the Company believes that unauthorized or improper use is being made of any product or service, it may, without notice, take such action as it, in its sole discretion, deems appropriate, including blocking messages from a particular internet domain, mail server or IP address. The Company may immediately terminate any account on any product or service which it determines, in its sole discretion, is transmitting or is otherwise connected with any e-mail that violates this policy.
- The Company reserves the right to suspend and/or cancel permanently any and all services provided to a User without any notification. If a Customer is in violation of any term or condition of this SPAM Policy, the Acceptable Use Policy, any other terms and conditions set out on our website, or uses of our services to disrupt or, in the Company's sole judgment, could disrupt the Company's business operations, the Company reserves the right to charge such Customer an administrative fee equal to $10000 per each piece of SPAM sent.
- To report an incidence of SPAM, please send an email to [email protected].
- Nothing in this policy is intended to grant any right to transmit or send e-mail to, or through, our network. Failure to enforce this policy in every instance does not amount to a waiver of the Company’s rights.
- Unauthorized use of the Company’s network in connection with the transmission of unsolicited e-mail, including the transmission of e-mail in violation of this policy, may result in civil and criminal penalties against the sender and those assisting the sender, including those provided by USA and New Zealand law.
Domain Name Dispute Claims
Please refer to the Uniform Domain Name Dispute Resolution Policy (the "UDRP") if you have a concern or dispute concerning a domain name. The UDRP covers domain names disputes; this Policy specifically excludes domain name disputes. Please see http://www.icann.org/udrp/udrp.htm.
Copyright Infringement Claims
If you believe that material located on a site hosted by SMEspree or linked to by a site hosted by SMEspree violates your copyright, you are encouraged to notify us. SMEspree will respond to all such notices if deemed necessary by law. The response by SMEspree may include removing the infringing material or disabling all links to the infringing material if appropriate and required. SMEspree will terminate a customer’s access to and use of the site if the customer is determined to be a repeat infringer of the copyrights or other intellectual property rights of SMEspree or others. In the case of such termination, SMEspree will have no obligation to provide a refund of any amounts previously paid to SMEspree.
Unlimited Disk Space & Bandwidth
While SMEspree does not meter disk space & bandwidth, the purpose of an SMEspree hosting account is to host websites for legitimate business purposes. Using a hosting account primarily for online file storage or archiving electronic files is prohibited.
SMEspree hosting accounts are shared hosting environments, so to ensure fast & reliable service to all of our clients, accounts that adversely affect server or network performance must correct these issues or will be asked to upgrade to a virtual or dedicated server.
Free Domain Name
Qualifying web hosting purchases may include a free domain registration or transfer for the first year of service. When your web hosting account renews, the applicable then-current pricing will be applied to your account.
If a Customer registers any domain name as part of a "Free Domain Name" promotion in connection with the registration and cancels with eligibility for a refund, Subscriber's refund will be reduced by the price of the domain of for a year a $5.00 administrative fee. Customer will retain full ownership and control of any such domain names.
Customers may not use SMEspree's network as to attempt to circumvent user authentication or security of any host, network, or account. This includes, but is not limited to, accessing data not intended for the Customer, logging into a server or account the Customer is not expressly authorized to access, password cracking, probing the security of other networks in search of weakness, or violation of any other organization's security policy.
Customers may not attempt to interfere or deny service to any user, host, or network. This includes, but is not limited to, flooding, mailbombing, or other deliberate attempts to overload or crash a host or network. Customers will be held liable for incorrect setting of netmasks, routes, or any other network configuration or programming issue which causes unnecessary broadcast or multicast traffic on our network, or denial of service, deliberate or not, caused by forging ARP queries or replies or by configuring IPs into their machine which were not assigned to their server. Any of these actions may result in disconnection of the server at fault from the network and/or correction of the fault at the customer's risk and expense. Any loss of functionality caused by the attempted correction of the problem will be the customer's responsibility to solve. If the malignity of the problem is deemed by SMEspree to not warrant such drastic action, the customer will be contacted via the ticketing system to correct the problem himself. Customers are responsible for maintaining their contact information in the client and billing system such that the email address is always reachable even in the event of their SMEspree hosting service being shut down.
If your server is the initiator or target of a denial of service attack that adversely affects our/somebody else network, we will terminate your account without warning and you will be held responsible for any charges that may result from this action.
Activities that attract denial of service attacks are expressly prohibited. Customers involved in these activities will be terminated as soon as we are aware of them. These activities include, but are not limited to: selling shell accounts, and involvement with IRC of any kind. This prohibition is for the protection of our customer base as a whole; these kinds of services tend to attract attacks that have the potential to degrade service for all of our customers.
SMEspree will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in the investigation of suspected criminal violations. Users who violate systems or network security may incur criminal or civil liability. SMEspree reserves the right to charge up to $500 per complaint to investigate.
Mandatory Security Updates
From time-to-time, we notify our clients of any exploit we deem potentially catastrophic. For an exploit to be considered catastrophic, it must be attacking widely deployed applications that are in use on a majority of servers. For example, but not limited to, software related to DNS, APACHE, and SENDMAIL.
The security notification will be sent via our customer subscribed mailing list, with a subject line of "Mandatory Security Update". It will provide a synopsis of the exploit, what is effected, and probable repercussions associated with failure to update. In addition, the email will provide a link for customers to download updated software or fixes, or patches, and directions on installing it. Customers are responsible for following the instructions in all " Mandatory Security Update" within 24 hours from their release.
To ensure the security of the clients' servers and to maintain our network integrity, if 24 hours past notification the software at issue has not been updated or patched, SMEspree reserves the right to apply all necessary updates, fix any other obvious security holes we may find, and bill the customer's account at the applicable hourly support rate without further notice or customer approval.
The SMEspree Web Interface and Control Panel are proprietary software, a single Perl script at /usr/local/sbin/interface. Although we do not protect the software with compilation nor with encryption, it is protected under copyright and trade secret laws and is not to be modified or distributed in any fashion unless authorized in writing by SMEspree.
SMEspree maintains, as a convenience to its clients, regular automated data backups on accounts equal to or less than 10 gigabytes in total size. This service is provided at no additional charge. Hosting accounts greater than 10 gigabytes in size will not be included in regular data backups; this service is, however, available for an additional service charge for accounts exceeding the 10-gigabyte size limit.
While SMEspree maintains the previously stated backups, this service is provided as a convenience only and SMEspree assumes no liability as to the availability or completeness of client data backups. Each client is expected and encouraged to maintain backup copies of their own data. SMEspree will provide, upon request, one (1) data restore per four (4) calendar months free of charge. Additional data restores may be provided but are subject to additional service fees.
Upon Cancellation or Suspension for nonpayment, all data is purged from the server.
Higher levels of traffic will incur overcharges on a monthly basis. SMEspree provides full access to web reports for network traffic monitoring and reporting. SMEspree also provides graphs that show customers' monthly usage, which is the average rate and reflects the amount of bandwidth transferred during the month. The bandwidth charges reflect the average monthly bandwidth in Kilobits per second (Kbps) and in Gb/month. These charges reflect our expenses in network maintenance, upgrades, backbone port charges, leased line loops, and equipment.
ARIN (the American Registry for Internet Numbers) is becoming very stringent with IP addresses, and refuses to grant them without a strict accounting of the use of existing IP's; we must, therefore, require periodic updates of IP address use. At this time we don't offer for dedicated IP addresses for sale.
Third Party Products and Services
- SMEspree may offer certain third party products and services. Such products and services may be subject to the terms and conditions of the third party provider. Discounts, promotions and special third party offers may be subject to additional restrictions and limitations by the third party provider. You should confirm the terms of any purchase and the use of goods or services with the specific third-party provider with whom you are dealing.
- SMEspree does not make any representations or warranties regarding, and is not liable for, the quality, availability, or timeliness of goods or services provided by a third-party provider. You undertake all transactions with these third-party providers at your own risk. We do not warrant the accuracy or completeness of any information regarding third party providers. SMEspree is not an agent, representative, trustee or fiduciary of you or the third party provider in any transaction.
- SMEspree may act as a reseller or licensor of certain third-party services, hardware, software and equipment used in connection with the Services ("Non-SMEspree Products"). SMEspree shall not be responsible for any changes in the Services that cause any Non-SMEspree Products to become obsolete, require modification or alteration, or otherwise affect the performance of the Services. Any malfunction or manufacturer's defects of Non-SMEspree Products, either sold, licensed or provided by SMEspree to you will not be deemed a breach of SMEspree's obligations under this Agreement. Any rights or remedies you may have regarding the ownership, licensing, performance or compliance of any Non-SMEspree Product are limited to those rights extended to you by the manufacturer of such Non-SMEspree Product. You are entitled to use any Non-SMEspree Product supplied by SMEspree only in connection with your use of the Services as permitted under this Agreement. You shall make no attempt to copy, alter, reverse engineer, or tamper with such Non-SMEspree Product or to use it other than in connection with the Services. You shall not resell, transfer, export or re-export any Non-SMEspree Product, or any technical data derived therefrom, in violation of any applicable law, rules or regulations.
- The Services may contain links to other websites that are not owned or controlled by SMEspree ("Third Party Sites"), as well as articles, photographs, text, graphics, pictures, designs, sound, video, information, and other content or items belonging to or originating from third parties ("Third Party Content"). We are not responsible for any Third Party Sites or Third Party Content accessed through the Services. Third Party Sites and Third Party Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us. If you decide to access Third Party Sites or to access or use any Third Party Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable third party's terms and policies, including privacy and data gathering practices of any website to which you navigate.
Prohibited Persons (Countries, Entities, And Individuals)
The Services are subject to export control and economic sanctions laws and regulations administered or enforced by the New Zealand government. You may not use the Services to export or re-export, or permit the export or re-export, of software or technical data in violation of New Zealand Trade Laws. In addition, by using the Services, you represent and warrant that you are not (a) an individual, organization or entity organized or located in a country or territory that is the target of UN sanctions or prohibited countries; (b) otherwise a prohibited party under New Zealand Trade Laws; or (c) engaged in nuclear, missile, chemical or biological weapons activities to which New Zealand persons may not contribute without an appropriate licensing from the New Zealand government. Unless otherwise provided with explicit written permission, SMEspree also does not register, and prohibits the use of any of our Services in connection with, any Country-Code Top Level Domain Name (“ccTLD”) for any country or territory that is the target of UN sanctions. The obligations under this section shall survive any termination or expiration of this Agreement or your use of the Services.
Account Security and SMEspree Systems
- It is your responsibility to ensure that scripts/programs installed under your account are secure and permissions of directories are set properly, regardless of the installation method. When at all possible, set permissions on most directories to 755 or as restrictive as possible. Users are ultimately responsible for all actions taken under their account. This includes the compromise of credentials such as username and password. You are required to use a secure password. If a weak password is used, your account may be suspended until you agree to use a more secure password. Audits may be done to prevent weak passwords from being used. If an audit is performed, and your password is found to be weak, we will notify you and allow time for you to change or update your password before suspending your account.
- The Services, including all related equipment, networks and network devices are provided only for authorized customer use. SMEspree may, but is not obligated to, monitor our systems, including without limitation, to ensure that use is authorized, to facilitate protection against unauthorized access, and to verify security procedures, survivability, and operational security. During monitoring, information may be examined, recorded, copied and used for authorized purposes. By using the Services, you consent to monitoring for these purposes.
- Any account found connecting to a third party network or system without authorization from the third party is subject to suspension. Access to networks or systems outside of your direct control requires the express written consent of the third party. SMEspree may, at our discretion, request documentation to prove that your access to a third party network or system is authorized.
- Any account which causes us to receive an abuse report may be terminated and/or have access to services suspended. If you do not remove malicious content from your account after being notified by SMEspree of an issue, we reserve the right to leave access to services disabled.
- SMEspree reserves the right to migrate your account from one data centre to another in order to comply with applicable data centre policies, local law or for technical or other reasons without notice.
Compatibility with the Services
- You agree to cooperate fully with SMEspree in connection with SMEspree's provision of the Services. It is solely your responsibility to provide any equipment or software that may be necessary for your use of the Services. To the extent that the performance of any of our obligations under this Agreement may depend upon your performance of your obligations, SMEspree is not responsible for any delays due to your failure to timely perform your obligations.
- You are solely responsible for ensuring that all User Content and User Websites are compatible with the hardware and software used by SMEspree to provide the Services, which may be changed by SMEspree from time to time in our sole discretion.
- You are solely responsible for backing-up all User Content, including but not limited to, any User Websites. SMEspree does not warrant that we back up any User Content, and you agree to accept the risk of loss of any and all User Content.
Scope of Technical Support
SMEspree offers free technical support to all clients surrounding issues related to server-side technical support.
SMEspree also offers free technical support to clients who we offer "managed hosting" for, which unless stated otherwise includes only clients who engage us to build their website and provide ongoing management.
However, there are certain situations which wouldn't be covered by free technical support. We don't offer free technical support for cases that are deemed outside of our control, or for cases that are the result of interference from individuals or third parties.
For example, if you install software or ask another developer to install software on your website without consulting with us first, then issues might arise where new software introduced causes issues with the pre-existing software. In these situations, we can probably still help, but it would fall outside of our included ongoing support, and we might have to charge you for time spent fixing any issues.
If you're using one of our hosting packages (ie, we didn't build your website for you) then you're responsible for all technical issues you find on your website, though we will still provide free server-side technical support.
SMEspree may offer or refuse to offer, free technical support at its discretion and on a case-by-case basis.
Billing and Payment Information
- Any payments related to our Services will be shown on your bank (or card) statement as "SMEspree". Therefore "SMEspree" will be the allocated name visible on your payment records.
- It is your responsibility to ensure that your payment information is up to date and that all invoices are paid on time. You agree to pay for the Services in advance of the time period during which such Services are provided. Subject to applicable laws, rules, and regulations, payments received will be first applied to the oldest outstanding invoice in your billing account.
- Unless otherwise provided, you agree that until and unless you notify SMEspree of your desire to cancel the Services, you will be billed on an automatically recurring basis to prevent any disruption to your Services, using your credit card or other billing information on file with us.
- Listed fees for the Services do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority. Any applicable taxes will be added to SMEspree's invoice as a separate charge to be paid by you. All fees are non-refundable when paid unless otherwise stated.
- All invoices must be paid within ten (10) days of the invoice due date. Any invoice that is outstanding for more than ten (10) days may result in the suspension or termination of Services. Any invoice that remains unpaid after the above fourteen (14) day threshold may incorporate, at our discretion, a late payment fee to the amount of 10% of the original amount invoiced. Access to the account will not be restored until payment has been received. If you fail to pay the fees as specified herein, SMEspree may suspend or terminate your account and pursue the collection costs incurred by SMEspree, including without limitation, any arbitration and legal fees, and reasonable attorneys' fees. SMEspree will not activate new orders or activate new packages for customers who have an outstanding balance on their account.
- Servers are subject to being reclaimed and all content deleted if you fail to make a timely payment. If you make a late payment we are not obligated to automatically reactivate the server. Contact SMEspree directly after you make a late payment to reactivate the server.
- It is a violation of this Agreement for you to misuse or fraudulently use credit cards, charge cards, electronic funds transfers, electronic checks, or any other payment method. SMEspree may report any such misuse or fraudulent use, as determined in SMEspree's sole discretion, to governmental and law enforcement authorities, credit reporting services, financial institutions and/or credit card companies.
- You have ninety (90) days to dispute any charge or payment processed by SMEspree. If you have any questions concerning a charge on your account, please reach out to our billing team for assistance.
- SMEspree complies with the Payment Card Industry Security Standard ("PCI Standard") in connection with the collection and processing of our customer's data and billing information. However, you are solely responsible for the security of the data and billing information on your User Website. SMEspree does not monitor Customer websites for PCI compliance and we are not able to verify whether a User Website complies with the PCI Standard.
Customers are prohibited from transmitting on or through any of SMEspree 's services, any material that is, in SMEspree 's sole discretion, unlawful, obscene, threatening, abusive, libelous, or encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law.
SMEspree 's services may only be used for lawful and legitimate business purposes. Transmission, distribution, or storage of any information, data or material in violation of United States, New Zealand or state regulation or law, or by the common law, is prohibited. This includes, but is not limited to, material protected by copyright, trademark, trade secret, or any other statute. SMEspree reserves the right to remove such illegal material from its servers.
The customer is responsible for keeping his billing data with SMEspree up-to-date and accurate. Furnishing false data on any contract or application, including fraudulent use of credit card numbers, is grounds for immediate termination, and may subject the offender to civil or criminal liability.
The resale of SMEspree's products and services is not permitted unless specifically permitted and documented in a written agreement.
To ensure the quality of service of our shared hosting clients, SMEspree reserves the right to migrate high resource utilizing clients to servers to other servers. In these cases, we will notify the Customer via email and provide the opportunity for discussion.
The initial term of this Agreement shall be as set forth in the Order Form (the "Initial Term"). The Initial Term shall begin upon commencement of the Services to Customer. After the Initial Term, this Agreement shall automatically renew.
ADDITIONALLY, AFTER THE INITIAL TERM, YOU ACKNOWLEDGE, AGREE AND AUTHORIZE SMESPREE, TO AUTOMATICALLY BILL AND/OR CHARGE ON YOUR CREDIT CARD FOR SUCCESSIVE TERMS OF EQUAL LENGTH AS THE INITIAL TERM, UNLESS TERMINATED OR CANCELED BY EITHER PARTY AS PROVIDED IN THIS SECTION. The Initial Term and all successive renewal periods shall be referred to, collectively, as the "Term".
This Agreement may be terminated:
- by giving SMESPREE thirty (30) days prior written notice,
- by SMESPREE in the event of nonpayment by Customer,
- by SMESPREE, at any time, without notice, if, in SMESPREE's sole and absolute discretion and/or judgment, Customer is in violation of any term or condition of this Agreement and related agreements, AUP, or Customer's use of the Services disrupts or, in SMESPREE's sole and absolute discretion and/or judgment, could disrupt, SMESPREE's business operations.
SMEspree reserves the right to cancel service(s) at any time. All fees paid in advance of cancellation will be pro-rated and refunded by SMEspree to the customer if SMEspree initiates its right of cancellation and customer is NOT in violation of these Terms and Conditions. If cancellation is caused by customers and/or its client's breach of the Terms and conditions, the customer agrees that no refund is due. Customer understands that service(s) can be cancelled at any time effective the end of the contract.
Upon termination, either by SMEspree or Customer, for any reason, Customer is responsible for deleting his/her host registrations from domain registrar(s) immediately. Customer further agrees to pay SMEspree all reasonable administrative costs if SMEspree must intervene in deregistering the hosts.
Cancellations and Refunds
- We are not obligated to provide a monetary refund for any services or payments unless required by New Zealand consumer law.
- You may terminate or cancel the Services by giving SMEspree written notice to our Billing & Accounts team. In such event: (i) you shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation and (ii) SMEspree may, in our sole discretion, refund all pre-paid fees for basic hosting services for the full months remaining after the effectiveness of such cancellation (i.e. no partial month fees shall be refunded) less any setup fees, applicable taxes and any discount applied for prepayment, provided that you are not in breach of this Agreement.
Once we receive your notice of cancellation you will receive an automatic reply to acknowledge that your request has been received. Once we have discussed all necessary information with you via email we will inform you in writing (typically email) that your account has been cancelled. If you do not hear back from us or do not receive the automatic confirmation email within two (2) business days after submitting your cancellation request, please contact us.
- We require all cancellations to be done through our client portal in order to (a) confirm your identity, (b) confirm in writing that you are prepared for all of your files and emails to be removed, and (c) document the request. This process aims to reduce the likelihood of mistakes, fraudulent/malicious requests, and to ensure that you are aware that your files, emails, and account may be removed immediately and permanently after a cancellation request is processed.
- Exchange rate fluctuations for international payments are constant and unavoidable. All refunds are processed in New Zealand dollars and will reflect the exchange rate in effect on the date of the refund. All refunds are subject to this fluctuation and SMEspree is not responsible for any change in exchange rates between the time of payment and the time of refund.
- SMEspree may terminate your access to the Services, in whole or in part, without notice in the event that: (i) you fail to pay any fees due; (ii) you violate this Agreement; (iii) your conduct may harm SMEspree or others or cause SMEspree or others to incur liability, as determined by SMEspree in our sole discretion; or (iv) as otherwise specified in this Agreement. In such event, SMEspree shall not refund to you any fees paid in advance of such termination, and you shall be obligated to pay all fees and charges accrued prior to the effectiveness of such termination. Additionally, SMEspree may charge you for all fees due for the Services for the remaining portion of the then-current term. Upon termination of the services for any reason, user content, user emails, Customer websites and other data will be deleted.
SMEspree reserves the right to change prices or any other charges at any time. We will provide you with at least thirty (30) days notice before charging you with any price change. It is your sole responsibility to periodically review billing information provided by SMEspree, including notices sent or posted by SMEspree.
Discounts and coupon codes are reserved for first-time accounts or first-time customers only and may not be used towards the purchase of a domain registration unless otherwise specified. If you have previously signed up using a particular domain, you may not sign up again for that domain using another coupon at a later date. Any account found in violation of these policies may be reviewed by us and the appropriate charges may be added to the account. Coupon abuse will not be tolerated and may result in the suspension or termination of your account. All coupons and discounts are only valid towards the initial purchase and do not affect the renewal or recurring price.
CPU, Bandwidth and Disk Usage
- All use of hosting space provided by SMEspree is subject to the terms of this Agreement and the Acceptable Use Policy. Hosting accounts may only be used for web files, active email and content of Customer websites. Shared hosting space may not be used for storage (whether of media, emails, or other data), including, as offsite storage of electronic files, email or FTP hosts. SMEspree expressly reserves the right to review every account for excessive usage of CPU, disk space and other resources that may be caused by a violation of this Agreement or the Acceptable Use Policy.
- SMEspree may, in our sole discretion, terminate access to the Services, apply additional fees, or remove or delete User Content for those accounts that are found to be in violation of SMEspree's terms and conditions.
- "Unlimited" email accounts, bandwidth and disk space have real-world limitations set. We must enforce limits on these to avoid large spikes of unforeseen server stress, whether caused accidentally or intentionally. We are happy for users to use our services in an "unlimited" sense in relation to having unlimited access for reasonable activities, including reasonable business activities.
- SMEspree is not responsible for any damages your business may suffer.
- SMEspree does not make implied or written warranties for any of our services.
- SMEspree denies any warranty or merchantability for a specific purpose. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by SMEspree.
- The Customer will not use its network nor space provided by SMEspree to violate any law. In the event Customer violates existing law, SMEspree shall have the right to terminate all service set forth in this Agreement. In the event SMEspree is informed by government authorities of inappropriate or illegal use of SMEspree facilities or other networks accessed through SMEspree, SMEspree may terminate customer's service.
- SMEspree will cooperate fully with investigations of violation of systems or network security at other sites.
- SMEspree will cooperate with law enforcement authorities in the investigation of possible criminal violations.
- Customers who violate systems and/or network security may incur criminal or civil liability.
If you have any questions concerning the above-stated terms and conditions then please contact us.