Master Service Level Agreement

  1. 1. Definitions
    • “Acceptable Use Policy” means ServientHost's Acceptable Use Policy found at http://www.servienthost.co.nz/acceptable-use-policy.html as of the date you sign or submit your Order.
    • “Business Day” means 9:00 a.m. – 5:00 p.m. New Zealand Standard Time (NZST), Monday through Friday, excluding public holidays.
    • “Cancellation Date” is defined based on the Cancellation Request and its requirements.
    • “Cancellation Request” means a written cancellation request submitted via email. ServientHost is not responsible for continued invoicing if the above method is not followed. Cancellation Request should be submitted to ServientHost at least 30 days in advance of the requested Cancellation Date.
    • “Confidential Information” means all information disclosed by either party to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential, including without limitation:
      1. for you, all information transmitted to or from, or stored on, ServientHost’s systems,
      2. for ServientHost, unpublished prices and other terms of service, audit and security reports, product development plans, server configuration designs, and other proprietary information or technology, and
      3. for both parties, information that is marked or otherwise conspicuously designated as confidential.
    • “Order” means either:
      1. the online order that you submit to ServientHost via the ServientHost Website, or
      2. any other written order (either in electronic or paper form) provided to you by ServientHost for signature that describes the Services you are purchasing, and that is signed by you, either manually or electronically.
    • “ServientHost” is defined conditionally as Servient Hosting Solutions Limited or MediaCore Solutions Limited.
    • “ServientHost Website” means ServientHost’s websites located at http://www.servienthost.co.nz or http://www.servienthost.net.nz
    • “Services” means those ServientHost products or services described in the Order.
    • “Service Level Agreement” means ServientHost’s Service Level Agreement located at http://www.servienthost.co.nz/service-level-agreement.html as of the date you sign or submit the Order.
    • “Third Party Products” means third party software or products that ServientHost may provide to you under this Agreement.
    • “Third Party Vendors” means certain reseller and other relationships that ServientHost has established with certain commercial vendors.
  2. 2. Obligations, Rights and Responsibilities
    1. 2.1 ServientHost Obligations
      • For all Orders accepted by ServientHost and subject to this Master Service Level Agreement, ServientHost agrees to provide the Services and the applicable support listed on your Orders, subject to and in accordance with ServientHost’s Service Level Agreement.
    1. 2.2 Your Obligations
      • For all Orders accepted by ServientHost and subject to this Master Service Level Agreement, ServientHost agrees to provide the Services and the applicable support listed on your Orders, subject to and in accordance with ServientHost’s Service Level Agreement.
        1. pay when due the fees for the Services and applicable charges;
        2. use reasonable security precautions in light of your use of the Services;
        3. cooperate with ServientHost’s reasonable investigation of outages, security problems, and any suspected breach of the Agreement;
        4. keep your billing contact, information, and other account information up to date;
        5. immediately notify ServientHost of any unauthorized use of your account or any other breach of the security of the Services; provided, that in the event of a dispute between the parties regarding the interpretation of applicable law or the Acceptable Use Policy, then ServientHost’s reasonable determination will control;
        6. pay all local sales, use, value added, surcharges, excise, franchise, property, gross receipts, license, privilege, and any other taxes assessed with respect to the Services; and
        7. provide ServientHost with accurate factual information to help ServientHost determine if any tax is due with respect to the provision of the Services, and if ServientHost is required by law to collect taxes on the provision of the Services, then you must pay ServientHost the amount of the tax that is due or provide satisfactory evidence of your exemption from the tax.
    1. 2.3 Acceptable Use Policy
      • By agreeing to the terms and conditions of this Agreement, you agree to ServientHost’s Acceptable Use Policy, which is expressly incorporated herein by reference.
    1. 2.4 Intellectual Property Rights.
      • You warrant, represent, and covenant to ServientHost that:
        1. you are at least 18 years of age if an individual;
        2. you possess the legal right and ability to enter into this Agreement;
        3. you and your Users will use the Services only for lawful purposes and in accordance with this Agreement, ServientHost’s Acceptable Use Policy, and all applicable ServientHost policies and guidelines, as contained in this Agreement posted on the ServientHost Website; and
        4. you and your Users have obtained all license or other rights necessary to install or use any software or products in conjunction with your use of the Services.
    1. 2.5 IP Numbers.
      • ServientHost will maintain and control ownership of all Internet protocol numbers and addresses that it may assign to you. ServientHost may, in its sole discretion, change or remove any and all Internet protocol numbers and addresses.
    1. 2.6 Third Party Products.
      • For your convenience, ServientHost may provide you access to Third Party Products through certain Third Party Vendors. Neither ServientHost nor any Third Party Vendor makes any representations or warranties of any kind, express or implied, regarding any Third Party Products.
        You agree that you will not:
        1. copy any license keys or otherwise decrypt or circumvent any license key,
        2. run Third Party Products on a second system or through any other hosting provider,
        3. remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that appear on or during use of any Third Party Product, or
        4. reverse engineer, decompile, or disassemble any Third Party Product, except to the extent that such activity is expressly permitted by the Third Party Vendor or applicable law. You agree to observe the terms of any license or applicable end user subscriber agreement for Third Party Products and ServientHost will not have any liability for your use of any Third Party Products or any violation of any license agreements or end user subscriber agreements that govern such Third Party Products. You will be solely responsible for any additional software of products that you install or use in conjunction with the Services.
    1. 2.7 Security.
      • ServientHost is not responsible for any security breaches affecting servers or hosting accounts under your sole control. If your server or hosting account is responsible for or involved in an attack on or unauthorized access into another server, system or hosting account, then you will notify ServientHost immediately, and ServientHost will have the right to respond accordingly, including without limitation the right to identify, isolate, and block the source of the attack.
  3. 3. Term and Payment for Services
    1. 3.1 Term.
      • This Agreement will be for the “Initial Term” as further described in the Order. If no term is listed in the Order, then the Initial Term will be one month. At the end of the Initial Term, the Agreement will renew on a month to month basis. If you do not wish to renew, then you must provide ServientHost the Cancellation Request as provided in this Agreement.
    1. 3.2 Termination.
      • This Agreement may be terminated in one of the following ways:
        1. by you without cause and for convenience by providing the Cancellation Request;
        2. by ServientHost without cause by providing you with a written notice at least 14 days prior to the termination date.
        3. by ServientHost in the event you do not pay any undisputed fees due hereunder within or after 14 days of the due date;
        4. by you or ServientHost, if a party commits a material breach of or fails to perform any obligations under this Agreement and has not cured such breach or failure within 30 days of receiving written notice from the terminating party specifying such breach or failure; or
        5. as otherwise provided in this Agreement or the Acceptable Use Policy.
    1. 3.3 Termination Liability.
      • If you terminate this Agreement before the end of the Initial Term other than for ServientHost’s material breach, then you will be required to pay:
        1. actual amounts that have been invoiced for the Services provided to the date the Agreement is terminated as determined by the Cancellation Date, and
        2. for non-monthly Agreements, the difference between the monthly rate for the Services listed on the Order at the time of the Order, and the rate the Services were discounted to based on the Term pricing grid including any and all promotions. For the discount calculation, your liability will be limited to the period from the commencement of the Initial Term to the Cancellation Date.
    1. 3.4 Payment.
      1. All charges under this Agreement are due and payable on the due date of the invoices unless otherwise agreed to in writing.
      2. For recurring billing, Services are billed one month in advance and payments are due 14 days after the date of invoice.
      3. for non-recurring fees (such as fees for initial set-up, backup overages, bandwidth overages, paid for support request and any other non-recurring service) on or around the date incurred, or on or around the first day of the billing cycle that follows the date incurred, at ServientHost’s option; provided that ServientHost may wait to charge your credit card until the total aggregate fees due are at a minimum billable amount. Unless otherwise agreed in the Order or modified via request, your billing cycle will be monthly, beginning on the 19th of the month that ServientHost first makes the Services available to you.
      4. Unless you have made other arrangements, ServientHost will charge your credit card on the due date or on the 1st of the month (whichever comes first). If you pay by credit card or direct debit, then ServientHost will charge your credit card or bank account (as applicable) to pay for any charges that may apply to your account.
      5. Charges that are not disputed within 60 days of the date charged are conclusively deemed accurate.
      6. You also will be responsible for any costs ServientHost incurs in enforcing collection of any amounts due under this Agreement, including without limitation reasonable attorney’s fees, court costs, or collection agency fees.
      7. You will be responsible for costs due to insufficient funds and other charges that are incurred in connection with payment processing for your account.
      8. If you pay by credit card or direct debit, then ServientHost will charge your credit card or bank account (as applicable) to pay for any charges that may apply to your account. You agree that you will notify ServientHost of any changes to your account, your billing address, or any information that ServientHost may reasonably require in order to process your payments in a timely manner.
      9. Payment for invoices that are not formally and rightfully deemed as disputed may be subject to an interest rate of five percent (5%) per month accruing from the date which the invoice was due.
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    2. 3.5 Refund and Disputes.
      • Except where expressly provided in this Agreement, all payments to ServientHost are nonrefundable. This includes but is not limited to any applicable setup fees and subsequent charges, regardless of usage. You must report any overcharges or billing disputes to ServientHost within 60 days of the time on which you became aware, or should have become aware, of the existence of the overcharge or dispute.
    1. 3.6 Data Retention / Reclaim Policy.
      • ServientHost makes no guarantees about retaining any data stored on ServientHost’s systems or servers following expiration or termination of this Agreement. ServientHost will typically delete such data seven days following termination of any ServientHost Managed Hosting Services by either you or ServientHost. You will not have access to your data stored on ServientHost’s systems or servers during a suspension or following a termination.
  4. 4. Modification
      • ServientHost may modify any of the terms and conditions contained in this Agreement at any time at its sole discretion. Any modifications are effective upon posting of the revisions on the ServientHost Website. Your continued use of the Services following ServientHost’s posting of any modifications constitutes your acceptance of the modifications. If you do not agree to the terms of any modification, you may terminate the Agreement without any further liability by providing written notice to ServientHost within 30 days of the posting of any modifications of this Agreement by ServientHost.
  5. 5. Limitation of Liability and Indemnity
    1. 5.1 Monitoring User Activity
      • Users voluntarily engage in the activity of Internet use and bear the risks associated with that activity. ServientHost exercises no control over and expressly disclaims any obligation to monitor its customers and other Users with respect to breaches of this Agreement or any content of the information made available for distribution via the Services, including without limitation any information passing through ServientHost’s host computers, network hubs and points of presence, or the Internet, or any content posted any User may post on any website. In no event will ServientHost, its parent company, and their affiliates and subsidiaries have any liability to you or any third party for unauthorized access to, or alteration, theft, or destruction of information distributed or made available for distribution via the Services through accident, or fraudulent means or devices.
    1. 5.2 Interruption of Service.
      • Except as set expressly provided in ServientHost’s Service Level Agreement, ServientHost will not be liable for any temporary delay, outages, or interruptions of the Services. Further, ServientHost is not liable for any delay or failure to perform its obligations under this Agreement, where the delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, communications, or third-party supplier failure). ServientHost cannot guarantee that (a) access to the Services will be uninterrupted or error-free, (b) defects will be corrected, or (c) the Services will be secure.
    1. 5.3 Warranty Disclaimer.
      • EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL INFORMATION, CONTENT, AND OTHER SERVICES MADE AVAILABLE BY ServientHost OR ANY THIRD PARTY VENDORS ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS AND NEITHER ServientHost, ITS PARENT COMPANY, NOR THEIR AFFILIATES AND SUBSIDIARIES MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE SERVICES. ServientHost, ITS PARENT COMPANY, AND THEIR AFFILIATES AND SUBSIDIARIES HEREBY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES AND CONDITIONS OF ANY KIND OR NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, WARRANTIES RELATED TO ANY COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
    1. 5.4 Limitation of Liability.
      • EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY USER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS OR REVENUES OR COST OF REPLACEMENT SERVICES (WHETHER DIRECT OR INDIRECT) NOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SERVICES, EVEN IF SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR ServientHost’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, ServientHost’S LIABILITY TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION IS LIMITED TO THE AMOUNT YOU ACTUALLY PAID TO ServientHost UNDER THIS AGREEMENT DURING THE THREE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, OR OTHER TORTS. THE FEES FOR THE SERVICES SET BY ServientHost UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY WITH RESPECT TO THOSE LIABILITIES THAT CANNOT BE LEGALLY EXCLUDED OR LIMITED EVEN IF ANY OTHER PROVISION MAY SUGGEST OTHERWISE.
    1. 5.5 Customer Indemnity.
      • You agree to indemnify, defend, and hold harmless ServientHost, its parent company, and their affiliates and subsidiaries, and all employees, officers, directors, partners, representatives or any such entity, from and against any and all third party claims, damages, losses, liability, causes of action, judgments, costs, or expenses (including, without limitation, reasonable attorney’s fees) asserted against or suffered by ServientHost arising out of any breach of this Agreement by you, your Users, or your customers.
    1. 5.6 ServientHost Indemnity.
      • ServientHost agrees to indemnify, defend, and hold harmless Customer from and against any and all third party claims, damages, losses, liability, causes of action, judgments, costs, or expenses (including, without limitation, reasonable attorneys’ fees) asserted against or suffered by Customer arising out of any claim alleging that the Services as provided by ServientHost infringe any third party’s intellectual property rights.
  6. 6. Governing Law
      • With respect to Services rendered by ServientHost in New Zealand, this Agreement will be governed by, and construed in accordance with, the laws of New Zealand and all disputes arising out of or related to this Agreement will be brought exclusively in the courts located in New Zealand; provided, however, that neither party will be prevented from enforcing any related judgment against the other party in any other jurisdiction.
  7. 7. Miscellaneous Provisions
      • You and ServientHost are independent contractors and this Agreement does not establish any relationship of partnership, joint venture, employment, franchise or agency between you and ServientHost. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. You may not sell, assign or transfer your rights or delegate your duties under this Agreement either in whole or in part without the prior written consent of ServientHost, and any attempted assignment or delegation without such consent will be void. ServientHost and you agree that, except as otherwise expressly provided in this Agreement, the Order, or the terms and conditions of use of any Third Party Products, there will be no third party beneficiaries to this Agreement. To the extent any portion of this Agreement is determined to be unenforceable by a court of competent jurisdiction, such unenforceability will not invalidate this Agreement as a whole, but only that specific portion held to be unenforceable, and all other terms and conditions contained in this Agreement will remain in full force and effect. Any provision of this Agreement that, by its nature, is applicable to circumstances arising after the termination or expiration of this Agreement will survive such termination or expiration and remain if full force and effect, and no termination or expiration of this Agreement will relieve either party from any liability arising out of any breach of this Agreement occurring prior to said termination or expiration. Neither party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) to the extent such failures or delays are proximately caused by causes beyond that party’s reasonable control and occurring without its fault or negligence, including, without limitation, acts of God, government restrictions (including without limitation the denial or cancellation of any export or other necessary license), wars, insurrections, acts of terrorism, failure of suppliers, subcontractors, and carriers, or third party to substantially meet its performance obligations under this Agreement. Unless otherwise specified herein, all notices, demands, requests or other communications required or permitted under this Agreement will be deemed given when delivered personally, sent by facsimile upon confirmation, sent and received by return receipt email, or upon receipt of delivery of overnight mail.

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