Revised December 2014

Domainz Standard Terms and Conditions

1. WHEN THESE STANDARD TERMS & CONDITIONS APPLY

These Standard Terms & Conditions apply to the provision of services by Domainz Limited (IA 830304) (Domainz, we, us, our) to you as a user and customer of our services (you, your).

Certain words used in these Standard Terms and Conditions have a special meaning which is set out in clause 14.

2. THE TERMS OF YOUR CONTRACT

2.1 Your agreement with us (Contract) in respect of each service you obtain from us (a Service) is made up of:

1. a. these Standard Terms & Conditions;
2. b. the relevant Service Description for the Service;
3. c. any relevant Service Terms;
4. d. our Acceptable Use Policy; and
5. e. our Privacy Policy.

2.2 The documents listed in clause 2.1 supersede all prior arrangements (whether written or oral) in relation to their subject matter.

3. HOW WE CAN MAKE CHANGES TO THE TERMS OF YOUR CONTRACT

3.1 We may change the terms of your Contract by giving you notice of the change and posting new versions of any online terms on the Legals page of our website, by logging a notice in your customer interface (MyAccount, The Console or other customer interface(s) provided by us from time to time) or sending an email to you. If you continue to use the Service after the relevant notice period, you will be taken to have agreed to the change. The period of notice required to be given depends on the nature of the change. If:

1. a. the change will benefit you or have a neutral impact on you, we may make the change effective immediately and without advance notice by posting a general notice on our website as outlined above;
2. b. the change is required to comply with any law or requirement of any regulatory body (including ICANN, .NZ Domain Name Commission or any other domain name regulatory body), we will provide a reasonable period of notice (such period to be as reasonably practicable);
3. c. the change is required to preserve or safeguard the security or integrity of any network or system we use to provide services to our customers or to maintain any accreditation we are required to have, we will make the change effective immediately and will provide notice through one or more of the methods outlined above; and
4. d. for all other changes, we will also give you at least 30 days' notice.

4. SUPPLY OF SERVICES

4.1 We will supply each Service to you in accordance with the terms of the Contract until the Service is terminated in accordance with the Contract.

4.2 Monthly contracts will roll on a monthly basis without notice to you. Unless expressly stated otherwise in the Service Terms, fixed contract period Services (other than a month-to-month contract) will automatically roll over for a further fixed contract period on the date notified to you by our reminder email. Following auto-renewal, the further term of a fixed contract period Service will take effect at the end of the then current term.

4.3 If your fixed contract period Service is to be auto-renewed, we will notify you of, and provide you the ability to cancel, the impending auto-renewal. You must advise us by the specified date prior to the auto-renewal date if you wish to cancel the Service. If we do not receive your cancellation or "do not renew" advice in time, the Service will be auto renewed to ensure it continues uninterrupted. Your Service will be renewed for the same duration at the then current applicable charges published on our website.

4.4 Our Services (or any part of those Services) may not be resupplied or sublicensed to any third party, directly or indirectly, under any circumstances.

4.5 We reserve the right to refuse to supply Services to a Potential Customer who has previously had an account with Domainz which was either terminated for breach, or has any unpaid fees remaining on it. In this clause, "Potential Customer" includes:

1. a. (if the Potential Customer is a corporation) its Related Company (as that phrase is defined in the Companies Act 1993); and
2. b. (if the Potential Customer is an individual) any corporation in which the potential customer was at the relevant time an officer or shareholder, or a Relative of a shareholder (as that phrase is defined in the Companies Act 1993).

5. PROVISION OF SECURE ACCESS TO DOMAINZ SYSTEMS

5.1 In order to access some of the features of our website, or the Services, you will have to create an account with us via The Console or you may have an existing account in our My Account system. Additionally, some of Services may require us to allocate you a username and password or provide you access codes or access to non-public website addresses for the purpose of gaining secure access to those systems. Any such account or access details created by you or us will be referred to collectively as Login Details.

5.2 You must keep all Login Details secure and confidential at all times and must not disclose them to anyone else (except those of your employees who need to know them for the purposes of their employment). For security purposes, we recommend you change your password(s) at least once every 6 months.

5.3 You agree that you are totally responsible for all actions of the people (if any) to whom you provide your Login Details (whether knowingly or not, and whether directly or indirectly) while they obtain access to our systems using those Login Details, and that we are entitled to treat instructions provided by those people through such access as instructions originating from you.

5.4 You must notify us immediately of any breach of security or unauthorised use of your Login Details to access our systems. We will not be liable for any loss you incur due to any unauthorised use of your Login Details.

5.5 You consent to our use of your Login Details in provisioning the Services, including in respect of any migration or transition of your account, content or data (to or from any suppliers we use) as reasonably necessary for the continued provision of the Services.

6. YOUR OBLIGATIONS

6.1 You must provide us with such co-operation and support as we may reasonably request to perform the Services, including by:

1. a. responding promptly to our communications in relation to the Services and requests for you to review Work Product; and
2. b. providing accurate and prompt responses to our requests for any information or documentation reasonably required by us to perform the Services.

6.2 All details and information you provide to us (including without limitation when creating any account) must be accurate, current and complete, and must be maintained by you in an ongoing basis.

6.3 Except to the extent that we expressly agree to do so as part of a Service, you must conduct backups of any of your data (whether hosted on our computer systems or provided to us in connection with the performance of the Services) at such intervals as are reasonable having regard to the nature of the data.

6.4 You indemnify us and our officers, agents, employees, contractors and suppliers from and against any and all liabilities incurred, suffered or sustained by any of them in connection with:

1. a. our use of or reliance upon any images or trading names, or any data, information, specifications, documentation, computer software or other materials provided by you;
2. b. our compliance with any directions or instructions by you in relation to the provision of the Services; and
3. c. your use of our Services.

7. FEES AND PAYMENT

7.1 You must pay us the Service fees without setoff or deduction of any kind by the due date specified in any invoice sent to you or as required at the time of purchase. Customers on monthly billings are required to make payments by way of a direct debit from their bank account, or direct credit from a credit card.

7.2 You authorise us and provide consent to keep on file and automatically debit the credit card details associated with your account for all Services fees on issuance of a valid invoice (Consent Agreement). To minimise service disruption due to credit card expirations, you consent to our billing systems automatically attempting to update the expiry date of your credit card when necessary to process payments, however we do not guarantee this will be successful. We remind you that it is your responsibility to ensure your credit card details are kept up to date at all times. Changes to this Consent Agreement will be notified to you by changes to this terms and conditions web page. The expiration date of this Consent Agreement will be taken to be the expiry of any Services provided to you. The stored credential will only be used for payment for the Services.

7.3 Monthly, quarterly or bi-annual fees are not refundable if your Service is terminated part way through a payment period. Each time we charge a transaction, we will provide you with a receipt of the payment. We require 3 business days’ notice prior to your next billing date to avoid charging you at that next billing date. If you elect to cancel a payment method, we will then, subsequent to the expiry of the notice period, provide a cancellation or refund confirmation within 3 business days.

7.4 Prices quoted or published are inclusive of any government taxes or charges unless otherwise notified, and exclusive of any registration or delegation charges imposed by domain name authorities.

7.5 Monthly fees are not refundable if your Service is terminated or cancelled part way through a month (unless otherwise expressly provided for in the Service Terms). Refunds are not available for domain names.

7.6 Unless the Service Terms expressly provide differently, if you terminate a fixed period contract before the end of its term, you will be charged an early termination charge equal to 6 months’ fees or the fees for the rest of the contract term, whichever is the lesser (Early Termination Fee). If you have prepaid the fees for the fixed period contract and there is greater than 6 months remaining, you will be refunded the balance of the prepaid fees minus the Early Termination Fee.

7.7 14 Day Money Back Guarantee

7.7.1 Only new purchases (excluding renewals) of the products listed below are eligible to participate in the 14 Day Money back Guarantee program. Products and Services covered by the Guarantee, are:

1. a. Cloud Hosting
2. b. cPanel Hosting

7.7.2 In order to claim a refund:

1. a. You must send an email to 4service@domainz.net.nz within 14 days from the date that the service was provisioned as defined by the invoice creation date. You will then be provided with an acknowledgement receipt with a unique identification number. If you do not receive the acknowledgement receipt, your request has not reached our system and you should either resend your email or call us immediately.
2. b. Upon receipt, the request will be vetted for eligibility. If the request is determined to be ineligible, the request will be treated as a standard cancellation.
3. c. If the request is deemed eligible, you agree to provide us 10 working days to resolve any issue you may have with the Service. If you remain dissatisfied with the outcome at the end of the consultation process, we will provide a full refund of the Services fees.
4. d. Refunds will be made to either the credit card used in the original transaction or by way of direct deposit to a nominated bank account. Under no circumstances will cheques be issued.

7.7.3 The 14 Day Money Back Guarantee does not apply if the Service has been:

1. a. discounted by greater than 20% from the normal published web prices; or
2. b. upgraded within the past 3 months, irrespective of whether a pro-rata credit was applied or not.

7.7.4 Should the Service purchased be part of a product and/or service bundle that includes components that are ineligible for the Guarantee, only the eligible components in the bundle will be considered for refund as part of the Guarantee.

7.8 Where any part of the Contract refers to charges on a "time and materials basis" for performing particular activities, we may charge you for all time spent by personnel in performing those activities, at our then current hourly rates (as published by us or notified to you from time to time) and all out of pocket expenses incurred by us in performing those activities.

7.9 If payment of the Service fees or any part of them is overdue, then we may at our option suspend the performance of the Services until such payment is made (including any interest charged on overdue amounts), and we may, at our sole discretion, extend the times for performance of the Services by a period equal to the time lost due to suspension.

7.10 If we have taken action to recover overdue amounts from you, any reasonable costs incurred by us in recovering the debt including but not limited to any legal expenses and collection agency charges, will be recoverable from you.

8. DELIVERY AND FORCE MAJEURE

8.1 Timeframes we provide for the performance of Services are good faith estimates only. We will use reasonable endeavours to comply with such timeframes, but time is not of the essence in the adherence to such timeframes.

8.2 We are not responsible for any delay in performing or failure to perform any of our obligations under the Contract to the extent that failure is due to an event or circumstances beyond our reasonable control (including any negligence by you, failure by you to perform any of your obligations under the Contract or any of your other wrongful acts or omissions).

9. TERMINATION

9.1 The Contract commences from the date on which on the Services are stated to commence, or, where no such date is specified, on the day the Contract is agreed to by you and us.

9.2 Either party may terminate the Contract immediately by notice in writing to the other party if:

1. a. the other party commits a material breach, which cannot be remedied, of its obligations under the Contract (including a breach of clause 10.1);
2. b. the other party commits a remediable material breach of its obligations under the Contract which can be remedied, but fails to remedy that breach within 14 days of being required to do so in writing by the first-mentioned party; or
3. c. an insolvency event occurs with respect to the other party.

9.3 Where the Contract does not state expressly that the Services are to be provided for a minimum fixed period or, following the expiry of such a period if specified and where renewal of a further fixed period has not occurred, either party may terminate the Contract on 30 days' written notice to the other.

10. CONFIDENTIALITY AND INTELLECTUAL PROPERTY

10.1 You agree to:

1. a. keep the Confidential Information secret and confidential;
2. b. use the Confidential Information only for the purpose of receiving the Services;
3. c. not to disclose the Confidential Information to any person, without our permission;
4. d. restrict the disclosure of the Confidential Information to those of your employees who need to know; and
5. e. notify us promptly if you become aware of any breach or threatened breach of the your obligations of confidence.

10.2 The restrictions contained in clause 10.1 do not apply to:

1. a. any Confidential Information lawfully in the public domain;
2. b. the disclosure of any Confidential Information to the extent required by a court of competent jurisdiction, governmental body or applicable regulatory authority under law, provided that you use reasonable endeavours to give us as much prior notice of such disclosure as is reasonably practicable.

10.3 Nothing in the Contract transfers to either party any IPR owned by the other party existing prior to the commencement of the Services. All IPR in the Work Product, other than those pre-existing IPR, are and will remain owned by us and you hereby assign such IPR (both present and future) to us. We grant you a perpetual, irrevocable, non-exclusive, royalty-free licence to use the Work Product for your internal business purposes (but not to disclose the Work Product to third parties unless otherwise agreed in writing).

11. WARRANTIES

11.1 Each party warrants that it is authorised to enter into this Contract. If you are not the customer, you warrant that you have the power and authority to enter into this Contract on behalf of the customer and will indemnify us for any breach of the Contract by the customer.

11.2 We warrant that:

1. a. we will perform the Services using reasonably qualified and experienced personnel; and
2. b. we will not knowingly infringe the IPR or other rights of any third person in the preparation of any Work Product.

11.3 You acknowledge that neither we nor any person acting on our behalf (including any supplier we use) has made any representation or warranty regarding the Services or any Work Product (including as to the quality or suitability for any purpose of the Services or the Work Product, or whether the performance of the Services or the possession or use of the Work Product will infringe the rights of any person, or whether the Services will be uninterrupted or error free), which is not recorded expressly in the Contract.

11.4 We do not warrant that the Services will be uninterrupted, timely, secure, always accurate or error free, or that they will be free from hackers, virus, denial of service attack or other persons having unauthorised access to our services or those of our suppliers.

11.5 You agree that we may be required to perform maintenance in respect of our systems to ensure their satisfactory operation which may affect the availability or functioning of the Services. We will use reasonable endeavours to provide you with advance notice of any maintenance downtime, except when circumstances beyond our reasonable control prevent us from doing so.

11.6 All terms and warranties which might otherwise be implied by any legislation, the common law, equity, trade, custom or usage or otherwise into the Contract, are expressly excluded to the maximum extent permitted by law. Where legislation implies into the Contract any term or warranty that cannot lawfully be excluded (such as any rights a consumer may have under the Consumer Guarantees Act 1993 (unless you use, or have indicated you will use our Services for business purposes)), that term or warranty is included but our liability in respect of a breach of that term or warranty is, where permitted by such legislation, limited at our option to any one or more of the following:

1. a. if the breach relates to goods:
   1. i. the replacement of the goods or the supply of equivalent goods;
   2. ii. the repair of such goods;
   3. iii. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
   4. iv. the payment of the cost of having the goods repaired; and
2. b. if the breach relates to services:
   1. i. the supplying of the services again; or
   2. ii. the payment of the cost of having the services supplied again.

12. LIABILITY

12.1 Nothing in the Contract excludes or limits either party’s liability under or in respect of:

1. a. any indemnity;
2. b. any breach of clauses 5 or 10;
3. c. any fraud or other criminal act;
4. d. personal injury or death caused by the negligence, breach of contract or other wrongful act or omission of that party; or
5. e. any other liability that cannot be excluded by law.

12.2 To the maximum extent permitted by applicable law, unless otherwise expressly stated in the Service Terms neither party is liable for:

1. a. any indirect, special or consequential loss or damage, any loss of profit, revenue or business opportunities, loss of or damage to data or loss of goodwill arising out of or in connection with the Contract (whether or not the loss or damage may reasonably be supposed to have been in the contemplation of the parties as at the date the Contract was formed as a probable result of any act or omission);
2. b. any loss or damage to the extent such loss or damage is caused or contributed to by the other party's negligence, breach of contract or other wrongful acts or omissions; or
3. c. any claim made 6 months or more after the circumstances giving rise to the claim first became known by the claimant or could, with reasonable diligence, have become known by the claimant.

12.3 Subject to clause 12.1, and to the maximum extent permitted by applicable law, each party's aggregate liability for any loss or damage in connection with the provision of a Service, which is not excluded or limited under clauses 12.2 or11.6, is limited to an amount equal to the aggregate Service Fees paid by You for the preceding 12 months to any claim in respect of that Service.

13. GENERAL

13.1 Excluding in relation to notice(s) provided under clause 3.1, any notice, demand, consent or other communication (a Notice) given or made under the Contract will be sent to the last notified address of a party and will be deemed delivered:

1. a. if delivered in person – when delivered;
2. b. if delivered by post – 2 Business Days after the date of posting (if posted to an address in the same country) or 7 Business Days otherwise; and
3. c. if delivered by email – on receipt by the sender of a receipt confirmation.

13.2 Where as a result of the above a Notice would otherwise be taken to be given on a day that is not a Business Day, it will be taken to have been duly given on the next Business Day.

13.3 Neither party may assign its rights or obligations under the Contract without the consent of the other party (not to be unreasonably withheld or delayed), provided that we may novate the Contract to any of our affiliates or assign this Contract on any merger or acquisition.

13.4 We are free to sub-contract any of our obligations under the Contract, but such sub-contracting will not release us from our liabilities under the Contract.

13.5 The Contract is governed by the laws of New Zealand.

13.6 Nothing in the Contract is to be interpreted against a party solely on the ground that the party put forward the Contract or a relevant part of it.

14. GLOSSARY OF TERMS

14.1 In the Contract, unless the context requires otherwise:

Business Day means a day of the week other than a Saturday, Sunday or a day on which trading banks in Wellington, New Zealand are not open for transacting business.

Confidential Information means all information of or pertaining to Domainz and its affiliates which has been in the past or is in the future supplied or disclosed to you or which otherwise comes to your knowledge in connection with the performance of the Services, including without limitation:

1. a. information concerning our business affairs, business partners, suppliers, plans or strategies;
2. b. information concerning any products or services which Domainz proposes to supply; and
3. c. information which is designated by Domainz as being confidential or which a reasonable person would, given the nature of the information, consider to be confidential.

IPR means all rights in relation to copyright, trade secrets, trademarks, designs, drawings, patents, know-how, secret processes, formulae, semiconductor or circuit layouts and all other similar proprietary rights and all rights to the registration of those rights, whether created, formed or arising before, on or after the date of the Contract, in Australia or elsewhere.

Service Description means the features and functions of the service you have purchased as set out on our website at http://www.domainz.net.nz/ (or as expressly identified in the Service Terms).

Service Terms means those specific terms and conditions related to the particular Service you have purchased, currently located at http://www.domainz.net.nz/legals/service-terms/.

Work Product means any materials (including information, designs, reports, documentation, specifications, data and software) produced or required to be produced in connection with the performance of the Services.