Where the content states: “We” includes Balance Software or any party acting on Balance Software implicit instructions. “You” includes the person purchasing the services or any party acting on the customer’s instructions. “Member” includes the purchaser of services or any party acting on the purchaser’s instructions. “The Registrant” includes the person applying for a domain name or any party acting on the Registrant’s instructions. “The Registry” refers to the relevant domain names Registry. “Server” means the computer server equipment in connection with the provision of the Services. “Web Site” means the area on the Server allocated by us to you for use by you as a site on the Internet. “TAC” includes this agreement. Balance Software reserves the right to modify this policy at any time. In consideration of the mutual covenants herein, the parties agree to the following, which shall apply during the term of this agreement:
DOMAIN NAME REGISTRATION:
1.1 We make no representation that the domain name you wish to register is capable of being registered by or for you or that it will be registered in your name. You should therefore not assume registration of your requested domain name(s) until you have been notified that it has or they have been registered. Any action taken by you before such notification is at your risk.
1.2 The registration and use of your domain name is subject to the terms and conditions of use applied by the relevant naming authority; you shall ensure that you are aware of those terms and conditions and that you comply with them. You shall have no right to bring any claim against us in respect of refusal to register a domain name. Any administration charge paid by you to us shall be non-refundable notwithstanding refusal by the naming authority to register your desired name.
1.3 We shall have no liability in respect of the use by you of any domain name; any dispute between you and any other person must be resolved between the parties concerned in such dispute. If any such dispute arises, we shall be entitled, at our discretion and without giving any reason, to withhold, suspend or cancel the domain name. We shall also be entitled to make representations to the relevant naming authority but will not be obliged to take part in any such dispute.
1.4 We shall not release any domain to another provider unless full payment for that domain has been received by us.
WEB SITE HOSTING AND EMAIL
2.1 We make no representation and give no warranty as to the accuracy or quality of information received by any person via the Server and we shall have no liability for any loss or damage to any data stored on the Server.
2.2 You shall effect and maintain adequate insurance coverage in respect of any loss or damage to data stored on the Server.
2.3 You represent, undertake and warrant to us that you will use the Web Site allocated to you only for lawful purposes. In particular, you represent, warrant and undertake to us that:
2.3.1 You will not use the Server in any manner which infringes any law or regulation or which infringes the rights of any third party; nor will you authorize or permit any other person to do so.
2.3.2 You will not post, link to or transmit:
(a) Any material which is unlawful, threatening, abusive, malicious, defamatory, obscene, pornographic, blasphemous, profane or otherwise objectionable as determined by Balance Software in any way.
(b) Any material containing a virus or other hostile computer program.
(c) Any material which constitutes, or encourages the commission of a criminal offense, or which infringes any patent, trade mark, design right, copyright or any other intellectual property right or similar rights of any person which may subsist under the laws of any jurisdiction.
2.3.3 You will not send bulk email, whether opt-in or otherwise, from our network. Nor will you promote a site hosted on our network using bulk email.
2.3.4 You will not employ programs which consume excessive system resources including, but not limited to, processor cycles and memory. We do not host IRC, IRC bots, or other server resource intensive programs.
2.3.5 If you surpass your allotted disk/bandwidth usage as set forth in your purchased plan, you agree to purchase the excess in blocks as set forth in our “plans” section. Such payment is to be immediate and non-disputable.
2.4 We reserve the right to remove any material which we deem inappropriate from your web site without notice. We do not host Warez, Underage Adult, Pornographic, or Copyrighted MP3 content.
2.4.1 We reserve the right to shift sites using excessive bandwidth to offshore servers where traffic is not a problem. We will chat to you in regards to this if your account becomes an issue. This includes Video, Audio, File downloads available from your site.
2.5 You shall keep secure any identification, password and other confidential information relating to your account and shall notify us immediately of any known or suspected unauthorized use of your account or breach of security, including loss, theft, or unauthorized disclosure of your password or other security information.
2.6 You shall observe the procedures which we may from time to time prescribe and shall make no use of the Server which is detrimental to our other customers.
2.7 You shall procure that all mail is sent in accordance with applicable legislation (including data protection legislation) and in a secure manner.
2.8 Sending unsolicited mail messages, including, without limitation, commercial advertising and informational announcements, is expressly prohibited. A Member shall not use another site’s mail server to relay mail without the express permission of the site.
2.8.1 It is contrary to Balance Software policy for Members to use our servers to effect or participate in any of the following activities:
2.81(a) To post to any Usenet or other newsgroup, forum, e-mail mailing list or other similar group or list articles which are off-topic according to the charter or other owner-published FAQ or description of the group or list.
(b) To send mass e-mailings; whether unsolicited, opt-in, or otherwise.
(c) To engage in any of the foregoing activities using the service of another provider, but channeling such activities through Balance Software provided server, or using Balance Software provided server as a mail drop for responses.
(d) To falsify user information provided to Balance Software or to other users of the service in connection with use of Balance Software service.
2.8.2 (a) Consequences of Violation: When Balance Software becomes aware of an alleged violation of its Acceptable Use Policy, Balance Software will initiate an investigation. During the investigation Balance Software may restrict Member’s access in order to prevent further possible unauthorized activity. Depending on the severity of the violation, Balance Software may, at its sole discretion, restrict, suspend, or terminate Member’s account and/or pursue other civil remedies. If such violation is a criminal offense, Balance Software will notify the appropriate law enforcement department of such violation.
2.8.3 Balance Software does not issue service credits for any outages incurred through service disablement resulting from Policy violations.
2.9 Any access to other networks connected to Balance Software must comply with the rules appropriate for those other networks.
2.10 While we will use every reasonable endeavour to ensure the integrity and security of the Server, we do not guarantee that the Server will be free from unauthorized users or hackers and we shall be under no liability for non-receipt or mis-routing of email or for any other failure of email.
2.11 You may cancel the Services at any time by logging into the Ticket Desk Support System (for verification) and requesting cancellation of services.
3.1 We shall use our reasonable endeavours to make available to you at all times the Server and the Services but we shall not, in any event, be liable for interruptions of Service or down-time of the Server.
3.2 We shall have the right to suspend the Services at any time and for any reason, generally without notice, but if such suspension lasts or is expected to last for more than 7 days you will be notified of the reason. As a reseller or sub-client, it is your responsibility to take care of backup for sites that may be yours or ones under you. We also reserve the right to disallow services/hosting to any client as we feel necessary and hold no liability. Also please note that we do not offer any sort of compensation on our network up-time guarantee.
3.3 The Services provided to you hereunder and your account with us cannot be transferred or used by anyone other than you. No more than one log-in session under any one account may be used at any time by you. If you have multiple accounts, you are limited to one login session per system account at any time; user programs may be run only during log-in sessions. If your account is found to have been transferred to another party, or shows other activity in breach of this sub clause, we shall have the right to cancel the account and terminate the Services and/or this Agreement immediately.
4.1 All charges payable by you for the Services shall be in accordance with the scale of charges and rates available on request from Balance Software at any time and shall be due and payable in advance of our service provision. We reserve the right to change pricing at any time although all pricing is guaranteed for the period of pre-payment.
4.2 Payment is due each anniversary month, quarter or year following the date the Services were established until closure notice is given. If you choose to pay by credit or debit card you authorize Balance Software to debit your account renewal fees from your card.
4.3 All payments must be in NZ Dollars.
4.4 If your cheque is returned by the bank as unpaid, for any reason, you will be liable for a “returned cheque” charge of $45.
4.5 Without prejudice to our other rights and remedies under this Agreement, if any sum payable is not paid on or before the due date, we shall be entitled forthwith to suspend the provision of Services to you. Any reinstatement of service may be liable for a fee of not more than $195 plus GST.
4.6 Charge-back – By signing up to Balance Software the customer has agreed that they will not imitate a charge-back to their credit card company. Creating a charge-back against Balance Software will result in cancellation of the customer’s account. All additional charges incurred by Balance Software will be subject to collection proceedings for the full amount plus the charge-back fee and any other damages incurred by the account holder’s actions. Any charge-back incurred will automatically assume the customer is involved in fraudulent activities.
4.7 Balance Software relies on a prepaid billing system, whereby the account must be paid prior to services being provided. If the account balance is low or in debit, the customer will be notified of this. Customer’s accounts need
to be kept up to date, if you get behind more than 14 days service the account will enter the suspension process. Suspended accounts have up to a further 14 days till any domains/websites are forfeited to Balance Software. Any forfeited domain/sites will become the property of Balance Software and will be disposed of at management’s discretion.
5.1 If you fail to pay any sums due to us as they fall due, we may suspend the Services and/or terminate this Agreement forthwith without notice to you.
5.2 If you break any of these terms and conditions we may suspend the Services and/or terminate this Agreement forthwith without notice to you.
5.3 If you are a company and you go into insolvent liquidation or suffer the appointment of an administrator or administrative receiver or enter into a voluntary arrangement with your creditors, we shall be entitled to suspend the Services and/or terminate this Agreement forthwith without notice to you.
5.4 No refunds will be made for Services suspended in accordance with 5.1, 5.2 and 5.3.
5.5 We reserve the right to suspend the Services and/or terminate this Agreement at any time. In the event of this you will be entitled pro rata refund based upon the remaining period of membership.
5.6 You may cancel the Services at any time by providing one months’ notice.
5.7 Where payment has been made by credit or debit card, any refund will only be issued to the same credit or debit card.
5.8 On termination of this Agreement or suspension of the Services we shall be entitled immediately to block your Web Site and to remove all data located on it.
6.1 You shall indemnify us and keep us indemnified and hold us harmless from and against any breach by you of these terms of business and any claim brought against us by a third party resulting from the provision of Services by us to you and your use of the Services and the Server including, without limitation, all claims, actions, proceedings, losses, liabilities, damages, costs, expenses (including reasonable legal costs and expenses), howsoever suffered or incurred by us in consequences of your breach or non-observance of this Agreement.
LIMITATION OF LIABILITY
7.1 All conditions, terms, representations and warranties relating to the Services supplied under this Agreement, whether imposed by statute or operation of law or otherwise, that are not expressly stated in these terms and conditions including, without limitation, the implied warranty of satisfactory quality and fitness for a particular purpose are hereby excluded, subject always to sub clause.
7.2 Nothing in these terms and conditions shall exclude our liability for death or personal injury resulting from our negligence.
7.3 Our total aggregate liability to you for any claim in contract, tort, negligence or otherwise arising out of or in connection with the provision of the Services shall be limited to the charges paid by you in respect of the Services which are the subject of any such claim.
7.4 In any event no claim shall be brought unless you have notified us of the claim within one year of it arising.
7.5 In no event shall we be liable to you for any loss of business, contracts, profits or anticipated savings or for any other indirect or consequential or economic loss whatsoever.
7.6 You are responsible for monitoring Bandwidth and Disk space usage of your site. This is easily done from your Control Panel. If you go over the amount indicated in your current plan; you will assessed a surcharge as set forth in our pricing structure.
8.1 Any notice to be given by either party to the other may be sent by either email, fax or recorded delivery to the address of the other party as appearing in this Agreement or ancillary application forms or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent or if sent by fax shall be deemed to be served on receipt of an error free transmission report, or if sent by recorded delivery shall be deemed to be served two days following the date of posting.
9.1 If you require support and you are on one of the Balance Software support plans then in most cases your support required will be covered under your plan. If you are not on a support plan then we can provide support at $150 per hour plus GST.
9.2 Support can only be addressed in English through our Support System by emailing email@example.com or by calling on 02041485504.
9.3 All Support requests are to be processed through our Support System. Any other request for support, except as noted in Section 9.4, will be considered a breach of our Terms and Conditions.
9.4 In the event of a server outage or other such emergency, you are free to contact us in any manner.
10.1 This Agreement shall be governed by and construed in accordance with New Zealand law. You hereby submit to the non-exclusive jurisdiction of the New Zealand courts.
11.1 Headings are included in this Agreement for convenience only and shall not affect the construction or interpretation of this Agreement.
12.1 No one shall post defamatory, scandalous, or private information about a person without their consent, intentionally inflicting emotional distress, or violating trademarks, copyrights, or other intellectual property rights.
12.2 Any abuse towards any Balance Software employee will not be tolerated. You are expected to request and respond to support and other issues in a professional manner. When emailing Balance Software or utilizing the Ticket Desk Support System, refrain from using caps, exclamation points, and other forms of written yelling. Any cursing, yelling, or further intentional disruptive behaviour aimed at Balance Software or their employees shall be considered a violation of this Terms and Conditions.
12.3 Any threat; whether verbally, orally, written, or delivered by second parties directed towards Balance Software or any of their employees, partners, equipment, and concerns shall be construed as a violation of these Terms and Conditions.
12.4 Any conduct viewed as violating this section shall be considered a violation of this Terms and Conditions. Balance Software will be the sole arbitrator in regards to what is deemed a violation.
12.5 No refunds shall be given when the contents of this section necessitates removal of the account.
CANCELLATION OF SERVICES
13.1 You may cancel the services at any time by using our support service. All cancellations require one months’ notice and will incur a cancellation fee of $120+GST unless otherwise stated, and if required a backup fee of $120+GST unless otherwise stated for a standard website. Once payment has been made on monies due, we will action whichever required.
14.1 These terms and conditions together with any documents expressly referred to in them, contain the entire Agreement between us relating to the subject matter covered and supersede any previous Agreements, arrangements, undertakings or proposals, written or oral: between us in relation to such matters. No oral explanation or oral information given by any party shall alter the interpretation of these terms and conditions.
In agreeing to these terms and conditions, you have not relied on any representation other than those expressly stated in these terms and conditions and you agree that you shall have no remedy in respect of any misrepresentation which has not been made expressly in this Agreement.
14.2 Balance Software reserves the right to amend these Terms and Conditions at any time.
14.3 It is your responsibility to check these Terms of Service on occasion for any such amendments