TERMS AND CONDITIONS
Section 1 – Purpose of Service
Section 2 – Customers
We are an independent contractor and we only facilitate your business in the internet. We only have control of the products and services we directly provide to you and are not liable for your actions or the actions of third party service providers including the actions of any individuals who use your products and services such as end-users.
Section 3 – Services
We provide a number of services and products to you our customers. These products are collectively known as our TERMS OF SERVICE. Any service, paid or free, that we provide as part of the package is included as part of the services referred to TERMS OF SERVICE. All services that we provide are subject to our policies as defined in our collective “Policies”. Our services may also include third party providers as such TERMS OF SERVICE they provide will also apply to this policy.
We may change the specifications or details of the Services at any time but we have no obligation to change the Services. Additionally, the third parties we contract with to provide Services may change their offering between the time of purchase and the date the Services are delivered. We will use commercially reasonable efforts to inform you of changes to the Services.
- Our Knowledgebase has additional information about our services.
- Domain Name TERMS OF SERVICE
- We also resell domain names. When you register or transfer your domain name to us, your domain name will be registered on our terms and our vendor’s terms. We have partnered with different domain seller vendors so we can give you the best pricing on the market. By using our Domain Name Services, you agree to be bound by our domain name registration policies and procedures. You acknowledge that you have read and understood these terms. Because of the mechanics of domain name registration, we cannot guarantee that your domain name will be registered. After registration, it is your responsibility to ensure your domain name does not lapse, for whatever reason, and we are not responsible for any lapse or any damages caused by any lapse.
- It is your sole responsibility to fully investigate and ensure that the domain name you register does not infringe on the legal rights of others. We do not check to see whether a domain name you register or use infringes on the legal rights of any third party and we suggest you seek advice of legal counsel before registering any domain.
- We will use commercially reasonable efforts to comply with any legal order to cancel, modify, or transfer your domain name. ICANN’s Transfer Policy requires a 60-day transfer lock to apply to your domain name(s) in the event of any “Change of Registrant.” CUBWEB currently locks your domain name for any change involving your WhoIs information. This feature is designed to protect your domain from any unauthorized attempt to transfer your domain. We do not offer an option to opt-out of the 60 day transfer lock. Any “Change of Registrant” as defined by ICANN’s Transfer Policy will subject the domain to a 60 days transfer lock. Please note that the parameters that trigger the 60-day transfer lock are subject to change. The current parameters which trigger the 60 day lock include: (A) change of registrant First Name, (B) change of registrant Last Name, (C) change of registrant Organization Name, (D) change of registrant Email. You also agree and understand ICANN’s policies for Domain Verification and any other current or future policies they might enact. http://www.icann.org/en/resources/registrars/registrant-rights/benefits
- Hosting Services Terms
- Our Hosting accounts are allocated bandwidth depending on the package you select. The bandwidth for Services purchased does not rollover and is not creditable across periods. In the event you require more bandwidth than you have purchased, your account may be suspended until the next period, you may purchase additional bandwidth by upgrading your account, your account may be terminated for a violation of the terms of the package you purchased, or we may charge you an additional fee for the overage, in our sole discretion.
- We will provide, as part of the Service cost, the number of primary IP addresses included in the plan you select. You may request additional IP addresses for an additional fee. If we need to change one of your assigned IP addresses we will notify you of the change by email. You may use the IP addresses provided only in association with the Services and they may not be transferred.
- In using our hosting Services, you may not place excessive burdens on our CPUs, servers, or other resources, including our customer support services. You understand that bandwidth, connection speeds, and other similar indices of capacity are maximum numbers. Consistently reaching these capacity numbers may result in our need to place restrictions on your use of the Services, including suspension or termination of your account or a reduction in bandwidth available for your use (also known as bandwidth throttling), in our sole discretion. You agree that we may place restrictions on your use of the Services or customer support services to the extent that they exceed the use of these resources by similarly situated customers.
Section 4 – Access
Physical access to the servers in which your data is stored is not permitted as these servers are often shared with other users. Use by any third party may affect your use and administration of the server. You shall not take any actions to limit the use of or alter the server or Service functionality or the functionality of any related equipment.
Section 5 – Control Panel
cPanel is provided through a third party. When you subscribe for use of cPanel with any of the Services, you agree to be bound by cPanel’s End User License Agreement, available at: http://cpanel.com/legal-store.html. Please be sure to review cPanel’s End User License Agreement before use of cPanel-related Services.
Section 6 – Enrollment; Account Information
- Enrollment. You warrant that before you use any of the Services or sign up for an account that you are at least 18 years of age and have the authority to bind yourself or the entity you represent to these TERMS OF SERVICE. You may be subject to a credit check and screening for potential fraud and accurate information must be supplied for purposes of this screening. Further, before using the Services, you represent and warrant to CUBWEB hosting that: (i) you have the experience and knowledge necessary to use the Services; (ii) you understand and appreciate the risks inherent to you, your business and your person, which come from using the Services in particular, and doing business on the Internet in general; and (iii) you will provide us with material that may be implemented by us to provide the Services.
- Account Information. You are required to provide us with accurate information when setting up your account. You must also keep this information, including your email address, up to date during the course of our relationship. On occasion, we may need to communicate with you by email about the Services. We have no responsibility, or liability, for interruptions in the Services, or damages of any sort, based on email communications that are misdirected or blocked by a third party application as a result of your failure to maintain updated account and contact information or for circumstances beyond our control.
- Account Security
- You are responsible for all actions that are performed with, by, or under your account credentials whether done by you or by others. All account access, password, and other security measures are your responsibility. CUBWEB hosting is not liable for any damages, direct or indirect, that result from unauthorized account access or use.
- In addition to terms under the Support Policy in connection with support services, you will be responsible for all authorized actions taken by our support personnel using your login. Before you request support, you should backup your data.
- You agree to give CUBWEB Hosting permission to access your accounts for the purpose of troubleshooting technical issues with the account or server and to confirm compliance with all of our policies. We also conduct automated scans of data for security purposes and reserve the right to change permissions, modify files or quarantine files that are deemed to be malicious in nature.
Section 7 – Payments
- We are not bound to perform Services until we receive payment from you when you checkout through our web platform (the “Effective Date”). We will begin delivery of the Services on the Effective Date and continue until the date set out on the page describing the said terms. If the page describing the Services does not contain an Initial Term, the Initial Term shall be one month.
- AUTOMATIC RENEWAL. The Initial Term will AUTOMATICALLY RENEW for successive periods of equal duration (each a “Renewal Term”). For more information on automatic renewal, please see our Refund and Billing Policy. If you wish to discontinue the Services, you need to notify us before automatic renewal for a Renewal Term. You can notify us by:
- Submitting a cancellation at least one (1) day before the beginning of a Renewal Term through our online cancellation form found in your CUBWEB account; or
- Contacting us at least fifteen (15) days before the beginning of a Renewal Term by sending an email our support [email protected]
- Regardless of the method of termination by you, valid proof of account ownership and authorization to cancel are required to terminate an account.
- Termination for Convenience.
- Either party may terminate the Services for convenience upon fifteen (15) days prior by providing written notice to the other. We only accept cancellations through our online cancellation form found at your CUBWEB account. If you terminate for convenience, you will be responsible for all charges for the duration of the then active Initial or Renewal Term. For details on our Anytime Money Back Guarantee, please see our Refund & Billing Policy.
- Before canceling, please contact us and request an escalation of your issue if your cancellation is due to unsatisfactory services or an unsatisfactory answer to a previous issue. If your agreement with us is for a set term, please contact us prior to canceling to determine what your charges will be in connection with the termination. All cancellation requests need to be submitted through our online cancellation form found at your CUBWEB account.
- We reserve the right to immediately suspend or cancel the Services without notice: (a) for a violation of these TERMS OF SERVICE, including any of our Policies; (b) for your failure to pay any amounts due, (c) to prevent service interruption by an Internet Service Provider or other network services provider, or (d) to protect the integrity of our network or the security of the Services. You are not entitled to notice or protest should we exercise these rights. Upon termination, your account will be closed, data deleted, and all fees and charges due and payable must be paid to us. Once your account is closed, we have no responsibility to: (x) forward email, or other communications or (y) maintain any data backup that predates the termination date. If allowed, you are encouraged to keep the Service active during a transition period should you seek to forward your email or other communications. If we suspend or terminate your use of our Services because you have violated these TERMS OF SERVICE, including any of our Policies, we will not provide you with a credit.
- For Breach. You may terminate the Services upon the occurrence of a material breach by CUBWEB Hosting, which has not been cured within ten (10) days of our receipt of written notice of the breach. A material breach does not include any of the items listed in Section 19(b). Notice of a material breach must contain sufficient detail for us to identify the breach and attempt to take corrective action.
- Termination for Convenience.
- Post Termination Access. If we are able to provide data from backup in an account that has been terminated, you will be subject to a one-time charge of twenty-five dollar ($25) or more to cover the cost of the access. All data in accounts that are not renewed or are terminated will be removed from our servers and will likely be irretrievably lost. Any domain registration packages associated with these accounts will also be cancelled.
- Billing, Refund & Payment. Please see our Refund & Billing Policy for additional details on billing, refunds, and payment processes and procedures.
Section 8 – Money Back Guarantee
We don’t want any customers to leave. However, if you do want to leave, we offer a Money-Back Guarantee that will allow you to receive a full or partial refund of certain fees. For details on this policy, please see our Refund & Billing Policy.
Section 9 – Use of the Services
Your use of the Services is governed by these TERMS OF SERVICE, including our Policies. We provide no guarantee that the Services will be uninterrupted, or continuous, or that you will be able to access our hosting network at a particular time, or that any data transmitted by our Hosting is accurate, error-free, virus-free, secure, or inoffensive.
Section 10 – Testimonials
You may provide us with a written or verbal endorsement of our Services in connection with your use of the Services (“Endorsement”). The Endorsement will be the actual first-hand account of your experience using our Services and we may, at our discretion, use the Endorsement to promote our Services in-person, in print, online, and all other media. We may also edit the Endorsement for brevity or other reasons, so long as it is consistent with your original Endorsement. In connection with our use of your Endorsement, you hereby agree that we may use your first name, last initial, home state, voice or likeness, and/or contact information in connection with its publication of the Endorsement. If, at any time, you want us to stop using your Endorsement, please contact us using the contact information in Section 18 and we will cease using the Endorsement soon after processing your request.
Section 11 – Data Backup
You acknowledge that it is solely your responsibility to regularly back-up and maintain copies of your data outside of our hosting network. We are not responsible for any data loss or corruption, including that resulting from: (i) our authorized actions, (ii) those actions you take using the Services, (iii) hardware failures, (iv) any software or other technology failures, or (v) account termination, cancellation, or suspension.
Section 12 – Licenses; Intellectual Property; Data Ownership
- Services performed or provided by CUBWEB Hosting are not a “work made for hire” and we hereby grant you a license to use the Services and technology under the terms of these TERMS OF SERVICE, including our Policies. The license is non-exclusive, non-transferable, non-sub licensable worldwide, and royalty free and terminates when you or CUBWEB Hosting terminates the Services.
- All right, title and interest in our hosting technology shall remain with CUBWEB Hosting, or our Hosting’s licensors. You are not permitted to circumvent any devices designed to protect CUBWEB Hosting, or its licensors’, ownership interests in the technology provided to you. In addition, you may not reverse engineer this technology.
Section 13 – Warranty
- CUBWEB Hosting warrants that it will perform the Services in accordance with prevailing industry standards. To make a warranty claim, you must notify us in writing, specifying the breach in reasonable detail, within thirty (30) days of the alleged breach. Your sole and exclusive remedy and CUBWEB Hosting’s sole and exclusive obligation, in the case of a breach of warranty is, at our option, to (i) reperform the Services, or (ii) issue you a credit based on the amount of time the Services were not in conformity with this warranty, subtracted (“pro-rated”) by the amount of time they were in conformance. SERVICES PROVIDED BY THIRD PARTIES ARE EXPRESSLY EXCLUDED FROM THIS WARRANTY.
Section 14 – Representations and Warranties
- You agree to reasonably cooperate with us to facilitate your use of the Services. This cooperation includes, but is not limited to, providing us with correct contact and billing information and ensuring that you, your employees, and/or agents have sufficient technical expertise to understand how to implement the Services.
- It is your responsibility to ensure that you can connect with us to use the Services. You represent and warrant that you, or the entity you represent, have the sophistication and technical skill to utilize the Services.
- You have read and agree to the terms outlined in our Support Policy.
- You warrant and represent that you have full authority and power to agree to the terms of these Policies on behalf of the company you represent, if any.
- You warrant and represent that you and/or your company have not been identified or listed as Specially Designated National or Blocked Person by New Zealand’s designated government agency.
Section 15 – Disclaimers
- EXCEPT FOR THE WARRANTY IN SECTION 13, THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE (EVEN IF THAT PURPOSE IS KNOWN TO CUBWEB HOSTING), OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. No oral or written information or advice given by CUBWEB Hosting, its employees, agents, owners, directors, officers, or affiliates pursuant to these TERMS OF SERVICE, or otherwise, shall create a representation or warranty or in any way increase the scope of any representations and warranties set forth in these TERMS OF SERVICE. CUBWEB Hosting does not represent or warrant that the Services are complete or free from defects or errors.
- CUBWEB Hosting is not liable, and expressly disclaims any liability, for the content of any data transferred either to, or from, you or stored by you or any of your customers via the Services provided by us. CUBWEB Hosting is not responsible for any loss of data, for any reason. CUBWEB Hosting is not liable for unauthorized access to, or any corruption, erasure, theft, destruction, alteration or inadvertent disclosure of, data, information or content, transmitted, received, or stored on its network.
- CUBWEB Hosting is not liable, and expressly disclaims any liability, for data breaches or data compromise caused by your failure to keep web applications including plugins up to date.
- CUBWEB HOSTING SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING SERVICES PROVIDED BY THIRD PARTIES, REGARDLESS OF WHETHER THOSE SERVICES APPEAR TO BE PROVIDED BY US. No warranties, either express or implied, made by these third party entities to CUBWEB Hosting shall be passed through to you, nor shall you claim to be a third-party beneficiary of those warranties.
Section 16 – Limitation of Liability
- It is your obligation to ensure the accuracy, integrity, title or ownership, and security of anything you receive from the Internet. You agree that CUBWEB Hosting has no liability, of any sort, for content you or your customers access from the Internet.
- In no event shall CUBWEB Hosting be liable to you in connection with these TERMS OF SERVICE or the Services, regardless of the form of action or theory of recovery, for any: (a) data loss, (b) direct, indirect, special, exemplary, consequential, incidental, or punitive damages, even if that party has been advised of the possibility of such damages; or (c) lost profits, lost revenues, lost business expectancy, business interruption losses, or benefit of the bargain damages. For the purposes of this paragraph only, the term “CUBWEB Hosting” shall be interpreted to include CUBWEB Hosting’s employees, agents, owners, directors, officers, and affiliates.
- Notwithstanding anything to the contrary contained in this policy, CUBWEB Hosting shall not be liable for any indirect or consequential damages, including damages for lost profits, loss of opportunity, loss of sales, or loss of search engine rank, suffered by you, your users, your clients, and your visitors, during periods of scheduled maintenance, service suspensions, and violation of these Policies.
- IN NO EVENT WILL CUBWEB HOSTING’S LIABILITY HEREUNDER EXCEED THE AGGREGATE FEES ACTUALLY RECEIVED BY CUBWEB HOSTING FROM YOU FOR THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
- CUBWEB Hosting will not be held responsible for any: (i) force majeure events described in Section 20(b), below, (ii) problems or service outages caused due to reboots during standard maintenance periods, or (iii) Scheduled Downtime, as further defined in our Server Maintenance Policy. Our uptime commitment described in the Server Maintenance Policy does not apply to disruptions to your use of the network because of a violation of these TERMS OF SERVICE, including our Policies.
Section 17 – Indemnification
- You agree to indemnify, defend, and hold harmless CUBWEB Hosting and its personnel, parent, subsidiaries and affiliated companies, third party service providers, and each of their respective officers, directors, employees, shareholders, 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, reasonable attorney’s fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to (i) your use of the Services, including any data migration-related efforts you request from CUBWEB Hosting personnel or authorize CUBWEB Hosting personnel to conduct; (ii) any violation by you of these TERMS OF SERVICE or any of CUBWEB Hosting’s Policies, including those violations that result in a disruption of the network; (iii) any breach of any of your representations, warranties, or covenants contained in these TERMS OF SERVICE, including the Policies; or (iv) any acts or omissions by you. The terms of this section shall survive any termination of these TERMS OF SERVICE or the Services. For the purpose of this paragraph only, the terms used to designate “you” include you, your customers, visitors to your website, and users of your products or services, the use of which is facilitated by us.
- CUBWEB Hosting shall indemnify and hold you harmless from, and at its own expense agrees to defend, or at its option to settle, any claim, suit, or proceeding brought or threatened against you so far as it is based on a claim that Services provided by CUBWEB Hosting hereunder infringes any patent, copyright, or trademark. This indemnification provision is expressly limited to Services that are fully owned by CUBWEB Hosting. It does not extend to products or services provided by third parties. If contained and permitted in its agreements with third-party suppliers, CUBWEB Hosting shall flow down applicable intellectual property indemnification provisions to you. This paragraph will be conditioned on your notifying CUBWEB Hosting promptly in writing of the claim and giving CUBWEB Hosting full authority, information, and assistance for the defense and settlement thereof. If an infringement claim has occurred, or in CUBWEB Hosting’s opinion is likely to occur, CUBWEB Hosting shall have the right, at its option and expense, either to (i) procure for you the right to continue using the Service(s); (ii) replace with the Service(s), regardless of manufacturer, performing the same or similar function as the infringing Service(s), or modify the same so that it becomes non-infringing; or (iii) if neither of the foregoing alternatives is reasonably available, immediately terminate the infringing or affected Services and refund the Fees charged by us for the period in which the Services were unavailable.
Section 18 – Notices
- Notices will be sent to you at the email address in your account. It is your obligation to ensure that we have the most current email address for you by keeping your account information up to date.
- Please refer to our website, https://cubweb.co.nz, for contact information for most issues, including technical support and billing. Notices regarding this TERMS OF SERVICE and other CUBWEB Hosting Policies should be directed to:
P.O. Box 33543
Lower Hutt 5046
Section 19 – Legal
- Compliance with Law
- It is your obligation to confirm that your use of the Services complies with applicable laws and we encourage you to learn more about NZ laws to ensure that your use of our network complies with these laws.
- We may disclose information, including information that you may consider confidential, in order to comply with a court order, subpoena, summons, discovery request, warrant, regulation, or governmental request or to protect our business, or others, from harm. We assume no obligation to inform you that we have provided this type of information unless we have affirmatively agreed to do so. In some cases, we may be prohibited by law from giving such notice. Cooperation with civil litigants is at our discretion. Responding to requests for production of documents, and other matters requiring more than mere ministerial activities on our part will incur a fee of two hundred dollars ($200) per hour. We do not honour requests from civil litigants that expenses be pre-approved, and we may require a deposit to secure payment.
- Force Majeure. Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the party’s reasonable control, including third-party service failures, software failures, hardware failures, distributed denial of service (DDoS) attacks, acts of God, bandwidth interruptions, general network outages, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, or delays of common carriers. The obligations and rights of the excused party shall be extended on a day to day basis for the time period equal to the period of the excusable delay. The party affected by an excusable delay shall notify the other party as soon as possible but in no event less than ten (10) days from the beginning of the event.
- Choice of Law, Jurisdiction, and Venue. The validity, interpretation, and performance of these TERMS OF SERVICE, including our Policies, shall be controlled by and construed under the laws New Zealand as if performed wholly within the state and without giving effect to the principles of conflicts of law. You agree that jurisdiction and venue are exclusive in the New Zealand District Courts. The parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods.
- All Claims. All claims you bring against us must be resolved in accordance with our Policies. Without limiting the previous sentence, this includes claims based on Service outages that are expressly covered by our Policies. All claims filed or brought contrary to our Policies will be considered to be improperly filed and a breach of our Policies. If you file a claim contrary to our Policies, we may recover attorney’s fees and costs. Attorney’s fees include any fees charged by our attorneys.
- No Waiver. No waiver of a right under these TERMS OF SERVICE, including our Policies, shall constitute a subsequent waiver of such right under these TERMS OF SERVICE or any of our Policies.
- Assignment. These TERMS OF SERVICE may be assigned by CUBWEB Hosting. It may not be assigned by you. These TERMS OF SERVICE shall bind and inure to the benefit of the corporate successors and permitted assigns of the parties.
- Severability. In the event that any of the terms of these TERMS OF SERVICE, including any of the Policies, become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, such term(s) shall be revised to reflect CUBWEB Hosting’s intent, as permitted by applicable law. All remaining terms of these TERMS OF SERVICE shall remain in full force and effect.
- Survival. Sections 11 through 18 shall survive the termination of these TERMS OF SERVICE.
- Construction. The terms “including”, “includes”, and “include” shall be deemed to be followed by the words “without limitation” and the illustrative items introduced thereby shall not limit the scope of the otherwise general term but shall be by way of example only.
- Claims Period. No action or proceeding against us may be commenced by you more than one (1) year after the Service which is the basis for the action is rendered. You fully acknowledge that this limitation constitutes an express waiver of any rights under any applicable statute of limitations that would otherwise afford additional time for such a claim.
Section 20 – Date of Policy
These TERMS OF SERVICE last updated 02 February 2018.