Service Agreement

Definitions

HilderBuild means C J Hilder, trading as HilderBuild web design and hosting. We, us, and our refer to HilderBuild.

You means an individual or organisation using HilderBuild’s services as a customer. Your and yours have a corresponding meaning.

The service means the hosting service subscribed to by you and provided by HilderBuild.

Our servers means the computers used by us in providing you with the service.

Lawful means not in violation of any New Zealand law, not in violation of any United States Federal, State or City law, and not in violation of any of the laws of your country. Illegal means “not lawful”

Our websites means websites available at www.HilderBuild.com, www.uk.HilderBuild.com, and www.nz.HilderBuild.com.

The agreement below is a legal agreement between you and us. If you use any service provided by us, you are legally bound by this agreement. Use of our services implies agreement with this contract.

Service Agreement

Last Updated 23/Sep/2005

1. HilderBuild Services

We agree to provide to you with a “standard website” as described on our websites and whatever extras you have requested (“the service”).

2. Payment and Invoicing

• In consideration of the performance of the service, you shall pay us in advance the amount charged for any hosting, and shall pay the amount invoiced for any other part of the service.
• You are responsible for all activities and charges resulting from your use of the service. You agree to pay all fees, bandwidth charges, storage charges, and other charges incurred by you.
• You acknowledge that no refunds will be given by us in the event that your hosting account is terminated by either you or us mid-term.
• In the event of a breach of security, you will remain liable for any unauthorised use of the service until you notify us.
• Current rates for using our services may be obtained on our web sites. We reserve the right to change fees and charges or to institute new fees and charges at any time.
• Any changes in fees shall become effective upon thirty (30) days' notice. Such notice shall be deemed to have been given by publishing the new fees on our websites and sending notification by email to your current email address according to our records.
• If we do not receive the full amount of your account balance within thirty (30) days of invoice date, a late charge equal to 2% per month will be added to your bill and shall be due and payable. You shall also be responsible for all debt collection and legal fees arising from our efforts to collect any unpaid balance.

3. Our Responsibilities and Rights

• Means of Performance. Where we provide you with hosting services, we have the right to control and direct the means, manner, and method by which the hosting services are performed.
• Support. We shall provide a reasonable level of technical support to you via phone, email or web page for the term of this Agreement.
• Monitoring and disclosure. We may elect to electronically monitor hosting services provided by us and may disclose any content or records to satisfy any law, regulation, or other governmental requirement or to properly operate hosting services and protect our customers.

4. Your Responsibilities and Rights

• You represent and warrant that
  • you are at least eighteen (18) years of age,
  • you possesses the legal right and ability to enter into this Agreement, and
  • the performance of your obligations and use of the services will not violate any applicable laws, regulations or the rules and regulations or cause a breach of any agreement with any third parties or unreasonably interfere with other Internet users.
• You assume all risks related to processing of transactions related to electronic commerce.
• You agree to provide us with accurate, complete and updated contact (name and address) information for you.
• Breach of Warranties: In the event of the breach of any of the foregoing warranties, in addition to any other remedies available at law we will have the right, in our sole discretion, to suspend or terminate immediately any service.

5. Fees and Expenses.

You shall be responsible for payment of all costs assessed by third parties in the course of being provided the service, except where we have expressly agreed in writing to meet those costs.

6. Third-Party Software.

Third-party software available through the service may be governed by separate end user licenses. By using the service and the third-party software, you agree to be bound by the terms of such end user licenses regarding the applicable third-party software. You consent and authorise us to delegate the authorisations you provide to us to our third party service providers as we deem necessary or desirable to provide the applicable service. You agree that the terms and conditions of this Agreement, including any of the other terms, conditions, warranty disclaimers and liability disclaimers incorporated into this Agreement, inure to the benefit of such third party service providers and such third party service providers are deemed to be third party beneficiaries of the Agreement, including any other terms, conditions, warranty disclaimers and liability disclaimers incorporated into this Agreement.

You agree that all reference to us within this Agreement and any incorporated terms are also deemed to include, where applicable, our agents, such as third party service providers.

7. Advertising, Solicitation, and Client Name Harvesting

You may not use the service to send unsolicited advertising, promotional materials, or other forms of solicitation to any Internet users unless you receive the express permission of such individuals. You may not use unsolicited advertising to advertise a site hosted by us. You may not use the service to collect or “harvest” user-names of any Internet users without the expressed prior permission of such individuals. We reserve the right to block or filter mass email solicitations sent from sites hosted by us.

8. Management of Site

• Management of your site will be shared between you and us. Both parties will have the right to modify the content of the site. Providing that we act in accordance with your instructions, you shall be responsible for all content of your site.
• You warrant that content you place on your site or that you supply to us for use on your site will not infringe on or violate any copyright, patent or any other third-party right; and will not contain any content which violates any applicable law, rule or regulation.
• We shall have no obligations with respect to the content you place on your site or that you supply to us for use on your site including, but not limited to, any duty to review or monitor any such content.
• We reserve the right to block or terminate any site that violates any of the above-stated terms, or which in our sole discretion, we deem objectionable or offensive, or otherwise violates a law or the Terms of Service.

9. Compliance with Laws

You agree that you will use the service only for lawful purposes and in accordance with this Agreement. You will comply at all times with all applicable laws and regulations and the Terms of Service, as updated by us from time to time. The Terms of Service are incorporated herein and made a part hereof by this reference. We may change the Terms of Service, with notice, which may be provided by posting the new Terms of Service at our websites. You may request a current copy of the Terms of Service by sending a request to us. You agree that you have received, read and understand the current version of the Terms of Service.

10. Proprietary Rights

• When you authorise us to register and pay for an Internet domain name on your behalf, you shall remain the registrant and owner of that Internet domain name (provided that you are lawfully entitled to own it), you agree that you are responsible for that domain name and any duties and liabilities that may be associated with it, and you warrant that you are lawfully entitled to own it.
• Such ownership, duties and liabilities associated with a domain name will remain with you after the expiry or termination of this Agreement.
• You agree that any dispute over your rights to a domain name shall be between you, the relevant domain registrar, and any other parties to the dispute. We will act as your agent in registering your domain name, but we will not act as your agent in a dispute arising from that registration. If you are not legally entitled to own the domain name, ownership will revert to the legal owner, or to the relevant registrar, but not to us.
• All work performed by us shall remain our property. This agreement provides you with a licence to use the software, codes, and designs provided by us as part of the service for the life of this Agreement. All information resources owned by you and provided by you remain your property for the life of this Agreement and after its expiry or termination, regardless of the extent to which we may have edited or enhanced them.
• When we develop new resources for you, you retain ownership of the content (such as text, images and designs) and we retain ownership of the delivery technology (such as underlying software and codes) unless we agree in writing to vary the provisions of this Section.

11. Marketing Rights

You agree that we may refer to you, or your business in our marketing materials, our websites, and communication to our current and prospective customers. You grant us a limited license and permission to use your trade name and/or trademark for such, and only for such, purposes.

12. Limitation of liability, disclaimer, and indemnification

• In the event that any limited guarantees are provided by us, such limited guarantees are null and void if you fail to follow the Terms of Service or otherwise breach this Agreement.
• We do not monitor or exercise control over the content of all of the information transmitted through our servers. Use of the service is at your own risk. The service is provided on an “as is” basis. We do not make any express and/or implied warranties, including, but not limited to, warranties of merchantability, fitness for a particular purpose, non-infringement and title, and any warranties arising from a course of dealing, usage, or trade practice. We do not represent or warrant that the service will be uninterrupted, error-free, or completely secure.
• We do not and cannot control the flow of information to or from our servers and other portions of the Internet. Such flow depends in large part on the performance of the Internet services provided or controlled by third parties. At times, actions or inactions of such third parties may impair or disrupt your or your website’s connection to the Internet (or portions thereof). We cannot guarantee that such events will not occur. Accordingly, we disclaim any and all liability resulting from or related to such events.
• You agree to indemnify, defend and hold us and our affiliates, agents, employees, and licensors (including the third party service providers) harmless from any and all claim, demand, loss, costs or expense, including legal costs, made by any person arising out of your violation of this Agreement, your illegal acts, or your violation of any other person's rights including but not limited to infringement of any copyright or violation of any proprietary or privacy right.
• Under no circumstances, including but not limited to a negligent act, will we or our affiliates, agents, employees, or licensors (including third party service providers) be liable for any damages of any kind that result from the use of, or the inability to use the service, even if any such party has been advised of the possibility of such damages.
• In no event will we or our third party service providers be liable to you or any third party for any tort, contract or any other liability arising in connection with the use of the service, or reliance on any information or services provided by us. We and our third party service providers will under no circumstances be liable to you or any third party, regardless of the form of action, for any loss of profits, goodwill, use, data or other intangible losses, or any direct, indirect, special, consequential, incidental or punitive damages whatsoever, even if we or our third party service providers has been advised of the possibility of such damages, resulting from:
  • the use of, unauthorised use of, or the inability to use the service;
  • the timeliness, deletion, misdelivery, or failure to store any user data, communications or personalisation settings;
  • the cost of getting substitute goods and services resulting from failure of any products, data, information or services purchased or obtained or messages received or transactions entered into, through or from the service;
  • statements or conduct of anyone on the service; or
  • any other matter relating to the service.
• You agree that you will not in any way hold us responsible for any selection or retention of, or the acts or omissions of, third parties (including third party service providers) in connection with the service.
• Because some jurisdictions prohibit the limitation of liability for consequential or incidental damages, in such jurisdictions the limitation of liability only with respect to consequential or incidental damages may not apply to you, and the respective liability of us and our third party service providers, employees, distributors and agents is limited to the greatest extent allowable under applicable law in those jurisdictions.
• In the event that a court should hold that the limitations of liability or remedies available as set forth in this Agreement, or any portions thereof, are unenforceable for any reason, or that any of your remedies under this Agreement fail, then you expressly agree that under no circumstances will the total, aggregate liability of us and our third party service providers, employees, distributors, agents or affiliates, to you or any party claiming by or through you for any cause whatsoever exceed $200 (NZ), regardless of the form of action and whether in contract, statute, tort or otherwise.

13. Termination

Without Cause. This Agreement may be terminated by either party at any time for any or no reason upon either party giving to the other no less than five (5) days' prior written notice of termination. No matter which party terminates the Agreement pursuant to this Section any and all payment obligations of you under this Agreement for the service provided through the date of termination will immediately become due, and you shall be required to prepay for any portion of the service that have not been paid for and are to be rendered during such five (5) day period.

For Cause. In addition to any other rights it may have under this Agreement or applicable law, we may immediately terminate this Agreement or suspend service, effective without notice, in the event of

• a default in payment, or
• your breach or failure to comply with this Agreement or the Terms of Service.

You may terminate this Agreement if we breach any material term of this Agreement.

If this Agreement is terminated by us under this Section all charges for the balance of the then current term shall immediately become due and payable. In addition to the foregoing, we reserve the right to prohibit any conduct or to remove any materials or content in violation of the Terms of Service or which we believe in our sole discretion to be illegal or potentially harmful to others or may expose us to harm or liability.

14. No Liability for Termination

Neither party will be liable to the other for any termination or expiration of the service.

15. Survival.

The following provisions will survive any expiration or termination of the Agreement: Section 5, 6, 10, 11, 12, 13, 15, 16, 17

16. Notices

Notices. Any notices or communication under this Agreement shall be in writing and shall be deemed delivered to the party receiving such communication at the address specified below

1. on the delivery date if delivered personally to the party, or a representative of the party,
2. five business days after the mailing date, whether or not received, if sent by mail within New Zealand,
3. fifteen business days after the mailing date, whether or not received, if sent by air mail outside New Zealand,
4. on the next business day following the delivery date if transmitted by confirmed facsimile,
5. on the next business day following the delivery date if transmitted by email to a valid email address.

If to us, at

HilderBuild
9 Slant Street
Careys Bay
Port Chalmers 9005
New Zealand
Email accounts@hilderbuild.com

If to you, at your most recent address that we have on our records, as supplied by you.

17. General

• This Agreement, and all future agreements you may enter into with us, unless otherwise indicated on such other agreement, will be governed by the laws of New Zealand. This is the case regardless of whether you reside or transact business with us in New Zealand or elsewhere. You agree to submit to the personal and exclusive jurisdiction of the New Zealand courts.
• If any part of the Agreement is unlawful, void or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining provisions.
• No modifications, amendment, supplement to or waiver of this Agreement, or any of its provisions shall be binding upon the parties hereto unless made in writing and signed by both parties.
• A failure of either party to exercise any right provided for herein shall not be deemed to be a waiver of any right hereunder.
• We and our affiliates, agents, employees, or licensors (including third party service providers) shall not be liable for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any contingency beyond the reasonable control of such party, including without limitation, fire, flood, strike, and other industrial disturbance, failure to transport, accident, war, riot, insurrection, Act of God or order of governmental agency. Performance shall be resumed as soon as possible after cessation of such cause. However, if such inability to perform continues for fifteen (15) days, you may terminate this Agreement without penalty and without further notice.
• The parties to this Agreement are independent contractors. Neither party is an agent, representative, or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such a relationship upon either party.
• You agree to be bound by the Terms of Service for all of our services used by you. The current Terms of Service can be found on our websites. Should you disagree with any updates to the Terms of Service, it is your responsibility to notify us of your desire to terminate the service immediately.
• Continued use of the service constitutes implied agreement with this Agreement and the Terms of Service in their entirety. By using the service, you agree to be bound by all terms associated with the service, including this Agremeent and the Terms of Service.
• Your only recourse in the event of a disagreement is to terminate this contract immediately in accordance with Section 13 herein.
• This Agreement, and the Terms of Service, sets forth the entire agreement, and supersedes any and all prior agreements of the parties with respect to the transactions set forth herein. Neither party shall be bound by, and each party specifically objects to, any term, conditions or other provisions which are different from or in which is proffered by the other party in any correspondence or other document, unless the party to be bound thereby specifically agrees to such provision in writing.