This Agreement ("Agreement") contains the complete terms and conditions that apply to your use of the NetPotential Hosting Services, including website, database, domain name and email hosting (the "Services"). As used in this Agreement, "NetPotential ", "we", "us", or "our" refers to NetPotential Ltd. and "you" or "your" refers to the person who uses the Services, and performs the administrative functions of the Service. The Services are offered to you subject to your acceptance without modification of this Agreement. Your use of the Services constitutes your acceptance to this Agreement.
(a) Modifications of Terms and Conditions
We may modify any of the provisions of this Agreement by posting a change notice or a new agreement on this Website. Your continued use of the Services after any modification constitutes your acceptance of such modification. Further you agree to be bound by the Hosting Supplier Terms of Service which NetPotential is bound by, currently located at http://www.webdrive.co.nz/terms/.
(b) Term of the Agreement
The term of this Agreement will begin on your first use of the Services and will end when terminated by either you or us as described below. We may terminate this Agreement at any time, with or without cause, and with or without notice. If you would like to terminate this Agreement you can do so with effect from the end of a month by notifying us before the 20th of that month. You will need to send notice of termination via email to NetPotential. Your termination of the Agreement will be effective on the last day of the month in which we received such notification. You agree to pay any outstanding debts before your account is closed, otherwise your account will continue to renew.
(c) NetPotential’s Responsibilities
a) to use all reasonable endeavours to provide the Services to you in a timely and professional manner;
b) to be available during business hours of 8.30am to 5.30pm by telephone for support and inquiries and to correct problems notified to us within a reasonable timeframe;
c) to respond within an appropriate time frame between 8.30am and 5.30pm for emergency support requests;
d) to provide an online summary of any scheduled or unscheduled downtime, and allow you to subscribe to a RSS feed in order to receive this information by email;
e) to bill you correctly for the Services; and
f) to keep all software and systems up-to-date.
(d) Your Responsibilities
a) to provide us with correct contact details, and to keep them up-to-date;
b) to keep your account current, and not let invoices fall overdue;
c) to keep your private access details (usernames and passwords) confidential;
d) to keep back-up copies of all files you publish to our servers;
e) to download your mail regularly; and
f) to not store mail on our server for longer than 30 days (or it may be removed without notice).
You agree that the following content will not be published on the Client Website (including pictures, links, and text):
a) any material that infringes any copyright, trademark, patent, common law, or rights of others;
b) any material that is defamatory;
c) any material which is or contains anything obscene, pornographic, or offensive including links to such material; or
d) distribution lists to be used via unsolicited electronic mail or other mass electronic mailings.
e) file archives of music, videos, images, without permission.
f) IRC clients, bots, servers.
You also agree that the Client Website will not:
a) be a very high-trafficked website, without permission;
b) offer free email or webmail services to the public.
We do not screen the material you publish to our servers. Any material you publish is considered publicly accessible.
If you publish prohibited material you will be responsible for the traffic charges relating to all downloads of that material.
(e) Retrieval of Access Details
If you lose your access details there are three things in the following order you can do:
a) request an automatic password re-send, if available;
b) phone or email our support staff to re-send them to the address we have on record; or
c) send a fax or letter on your company letterhead requesting changes, which must be signed by the account holder, or a company director.
(f) Changing Your Details
We can update your contact details upon request. If you require our support staff to update your details you must send a fax or letter on your company letterhead requesting changes, which must be signed by the account holder, or a company director.
(g) Email Marketing Communication
We may communicate with you via email, receipt of which by you is considered by NetPotential essential to our provision of the Service. You may unsubscribe from such communication at any time.
(h) Disclosure of Information
We will not disclose personally identifiable information about you or your private communications (i.e. content transmitted on private, non-public lists) to third parties, without your permission, unless we believe disclosure is reasonably necessary to: (1) comply with the law or legal process; (2) protect or defend our rights or property or that of others; (3) enforce this Agreement; (4) respond to claims that the contents of any communications violate the rights of others; or (5) as otherwise provided in the Agreement. From time to time, we will disclose aggregate user demographic data to third parties. We may access your Lists and related communications for technical processing and to address technical problems or service complaints.
(i) Disclaimer of Warranties
The Services are provided on an "as is" and "as available" basis. Your use of the Services is at your sole risk. To the fullest extent permissible pursuant to applicable law, we disclaim all warranties of any kind, whether express or implied, including any warranty of merchantability, fitness for a particular purpose or non-infringement. We do not make any warranty that the Services will meet your requirements, or that the Services will be uninterrupted, timely, secure, or error free, or that defects, if any, will be corrected. Nor do we make any warranty as to the results that may be obtained from the use of the Services or as to the accuracy or reliability of any information obtained through use of the Services. No advice or information, whether oral or written, obtained by you from us or through the Services will create any warranty not expressly set out in this Agreement. Some jurisdictions do not allow the exclusion of certain warranties, so some of the above exclusions may not apply to you.
(j) Limitations of Liability
We are not liable for the protection or privacy of electronic mail or other information transferred through the internet or any other network provider. We do not make claim that you will receive continual and uninterrupted Services during the term of this Agreement. In no event shall we be liable to you for any damages resulting from or related to any failure or delay to provide the Service under this Agreement if such delays or failures are due to strikes, riots, fire, inclement weather, acts of God, theft or vandalism or other causes beyond our control. Under no circumstances, including negligence, will NetPotential or its parents, subsidiaries, affiliates, officers, directors, employees, agents, or suppliers be liable for any direct, indirect, incidental, special or consequential damages, resulting from the use or the inability to use the Services or for the cost of procurement of substitute goods and services or messages received or transactions entered into by means of or through the Services, or resulting from unauthorised access to or alteration of your transmissions or data, or other information that is sent or received or not sent or received, including damages for loss of profits, use, data or other intangibles, even if we have been advised of the possibility of such damages. We are not liable for any failure to deliver, hold or store email transmitted through the Services. If you are dissatisfied with the Services, your exclusive remedy is to discontinue use of the Services.
Without limiting the foregoing, we are not responsible for any of your materials and data residing on our network hardware. You are responsible for backing-up your materials and data that may reside on our network hardware, whether or not such materials and data are produced through the use of the Services. It is your responsibility to take the necessary steps to ensure your primary means of business is maintained. In no event will we be liable to you for more than the actual dollar amount that you paid for the use of the Services during the term of this Agreement.
You agree to indemnify NetPotential, its parents, subsidiaries, affiliates, officers, directors, employees, agents, and suppliers, and their respective affiliates, officers, directors, employees, and agents, against any claim, action, demand, or damage, including reasonable attorney's fees, made by any third party related to your use of the Services or your violation of this Agreement, including the infringement by you or any other user of your account, of any intellectual property or other right of any person or entity. We may assume the exclusive defence and control of any matter subject to indemnification by you. The assumption of such defence or control by us, however, will not excuse any of your indemnity obligations.
(l) Governing law
This Agreement is governed by the laws of New Zealand and you agree to submit to the exclusive jurisdiction of the courts of New Zealand.