These policies are between Laurus Technology Ltd ("Utopia") and all customers ("You") of Utopia.
1.0 Content
2.0 Charges/Invoicing
3.0 Late Payment and Suspension of Services
4.0 Hosting Terms and Commencement
5.0 Payment Terms
6.0 Quotations
7.0 Estimate of Costs
8.0 Referrers
9.0 Security
10.0 Responsibilities
11.0 .nz Domain Name Registrations
12.0 Acknowledgement of Terms
1.0 Content
1.1 Lawful Content
All services provided by Utopia may be used for lawful purposes only.
Transmission, storage, or presentation of any information, data or material in violation of any New Zealand law is prohibited. This includes, but is not limited to:
- copyrighted material,
- material we judge to be threatening or obscene,
- material protected by trade secret and other statute.
In relation to all services you use through Utopia you are required to comply with all applicable laws, regulations, standards and codes, including but not limited to the Privacy Act 1993, the Fair Trading Act 1986, the Copyright Act 1994, the Defamation Act 1992 and the Crimes Act 1961.
The subscriber agrees to indemnify and hold harmless Utopia from any claims resulting from the use of the service which damages the subscriber or any other party.
Pornography and sex-related merchandising are prohibited on any Utopia servers/virtual accounts. This includes sites that may infer sexual content, or link to adult content elsewhere. This is also true for sites that promote any illegal activity or content that may be damaging to Utopia's servers or any other server on the internet. Links to such materials are also prohibited.
Other unacceptable content or links include:
- Pirated software,
- Hackers programs or archives,
- Warez sites,
- IRC Bots,
- Multiple hosts resolving at an IP or domain name that we provide,
- Audio and Movie files like RealVideo.
1.2 CGI Scripts
Each account is supplied with its own cgi-bin. You are free to use any cgi scripts you wish however we reserve the right to disable any CGI script that effects normal server operation.
1.3 Chat Rooms
We do not allow clients to install their own chat rooms. These tend to be large system hogs and we cannot allow it as an account option.
1.4 IRC
We currently do not allow IRC or IRC bots to be operated on our servers.
2.0 Charges/Invoicing
2.1 Charges
The minimum contract period is three months. Accounts are due for payment seven days after invoicing.
Utopia will issue the Customer an invoice for all Services provided to the Customer where Utopia’s records show they are chargeable to the Customer’s account. The Customer must pay all charges due by their Payment Due Date unless the payment is in dispute.
Any alterations and additions requested to your project will be charged for at our standard design and development rates. Work carried out that is not specified in the brief for the project will be charged in addition at our normal hourly rates with a minimum charge of fifteen minute increments.
2.2 Support
Once a website is live we are happy to provide ongoing telephone and email support. This includes clarification of hosting and services and general issues with hosting.
If a support request requires programming or specialised expertise from a Utopia staff member, then that request will be charged for at the client's applicable design and development rates as laid down in the terms of the initial project quote. If the support request is not related to a project then a quote will be provided for the work required.
Support related to bug-fixes will not be charged for.
2.3 Disputed Amounts
Where the Customer wishes to dispute any item(s) appearing on an invoice, the Customer must write to, email, or telephone Utopia, and seek resolution of the disputed amount. Any notification to Utopia of a dispute must be made within 14 days of the invoice date.
The Customer must pay any undisputed amount by the Payment Due Date.
If Utopia agrees there is a mistake, the account balance will be corrected as soon as practicable. If Utopia finds there is no mistake, the Customer will be required to pay the outstanding amount immediately on being notified of Utopia’s finding, or by the Payment Due Date, whichever is the latter.
2.4 Dispute Resolution Technique
Having regard to the high degree of good faith that must exist between the parties, the parties agree to do their utmost to ensure that disputes between them are settled equitably, amicably, quickly and without resort to arbitration. In the event of any dispute relating to or arising out of this Agreement, the parties shall (without prejudice to any other right or entitlement they may have pursuant to the Agreement otherwise), explore whether the dispute can be solved by agreement between them using informal dispute resolution techniques.
2.5 Dispute that cannot be settled by negotiation
Any dispute arising out of this agreement that cannot be settled by negotiation between the parties within one calendar month from the initial communication indicating that an item is in dispute, and pursuant to clause 1.5 above shall be referred to arbitration and shall be finally settled in accordance with the Arbitration Act 1996 and the Arbitration Amendment Act 1998.
Any such reference shall be in writing and specify the nature of the dispute and the points at issue. The parties will agree on a single arbitrator, or failing agreement, such arbitrator will be appointed by the President of the Council of the Arbitrators’ and Mediators’ Institute of New Zealand Inc (AMINZ).
The award of the arbitrator shall be final and binding on the parties.
2.6 Transaction Fees
Any client who performs online credit card transactions through their website that is hosted by Utopia is liable for a transaction processing fee on each transaction that routes through the Utopia server.
2.7 Free Domain Name Offer
A minimum of three months Standard, Standard +, Windows or Windows + hosting must be paid for to be eligible for the free domain name offer. If hosting is cancelled before the minimum period has passed the full three months hosting will be charged or the domain name must be paid for in full.
3.0 Late Payment and Suspension of Services
3.1 Right to Suspend Services
If the Customer fails to make payment to Utopia for any Service by the Payment Due Date, Utopia may suspend the provision of that and/or any other Service.
Utopia will provide the Customer five (5) Working Days written notice of its intention to suspend any Service, sent to the most recent postal address, or email address, held on file for the Customer. If payment is not received, or agreed to within that five (5) Working Days Utopia may suspend the Customer’s Service(s).
Utopia may require the Customer to pay a deposit, or an advance payment, as a condition of lifting any suspension imposed under this clause.
3.2 Right to Terminate Services or Agreement(s)
Utopia reserves the right to terminate this Agreement or any related Delivery of Service Agreement(s), and/or restrict credit terms, where accounts are deemed to be in a state that is deemed to be a financial (or other) risk from Utopia’s perspective.
A “financial risk” to Utopia would include where invoices are more than two (2) months overdue.
3.3 Debt Collection Costs
Where the Customer’s accounts are sent for debt collection with an external agent, the Customer agrees to bear and pay all costs imposed on Utopia in relation to the collection of the debt.
These costs will generally include debt collection commission charges; case opening or closing fees; and legal costs in extended cases.
4.0 Hosting Terms and Commencement
If hosting with Utopia, Hosting Fees shall commence on the agreed go live date and shall continue on a month-to-month basis indefinitely unless expressly terminated with one months notice.
5.0 Payment Terms
Utopia will not commence a project until a contract or agreement is signed and the client has been invoiced the project deposit amount as indicated on the document given to the client outlining provision of services.
The Customer must pay an invoice, or their account balance, by the Payment Due Date, which is based on the Payment Terms they have with Utopia at the time the invoice is generated. If not specified then payment terms are seven days from the date of invoice.
6.0 Quotations
Where fixed price quotations are provided, these are exclusive of GST and disbursements and are valid for 30 days from the date of the quotation.
7.0 Estimate of Costs
Where it is not possible to provide a quotation, an estimate will be given if required. If you decide not to proceed with the matter to completion, work carried out and payments made on your behalf remain chargeable.
Any significant costs to be incurred in excess of any estimate given will be referred to the client prior to the work being undertaken.
8.0 Referrers
Referrers must be signed up to the Referrers programme before any sales commissions are paid and be seen to be promoting Utopia’s services. Referrers must have read and agreed to Utopia's Referrers Agreement. Referrers must identify, when promoting Utopia's services, that they are referrers for Utopia and that they and potential clients agree to Utopia's Services Policy. Single commission payments are only made once the customer you signed up has been using Utopia's services for a minimum of 6 months. Membership to the referrer programme is at the sole discretion of Utopia. Membership is only open to New Zealand based organisations. Commissions are paid in New Zealand dollars.
9.0 Security
9.1 Commercial Advertising - Email
Our servers may not be the source, intermediary, or destination address involved in the transmission of spam, flames, or mail bombs. Your domain may not be referenced as originator, intermediary, or reply-to address in any of the above. We consider spam any mass unsolicited message in the mediums of Newsgroups and Email. If you are found to have spammed, then we reserve the right to immediately, without warning, disable your domain.
9.2 Server Abuse
Any attempts to undermine or cause harm to a Utopia server or customer of Utopia is strictly prohibited.
9.3 Password Security
All login usercodes and passwords are not to be given to people outside of the members organisation. These are only to be used by the people who are reading email and the person maintaining the web site.
9.4 E-commerce
For secure internet hosting, Utopia does not accept any responsibility for credit card clearing, authorising or funds handling. We process the receipt of card details and store them for your retrieval. It is the clients responsibility to handle removing the secure transactions once they have been read and to match card numbers to expiration dates. Utopia does not accept any responsibility for clients who pass on their secure services account details to third parties. Any misuse of the service is the sole responsibility of the secure hosted client.
9.5 E-commerce liability
Utopia is not responsible or liable for misuse, abuse or removal of a customer e-commerce related activities. The customer accepts that they are the provider of commerce to their own customers and will not hold Utopia responsible for issues pertaining to fraudulent charges.
9.6 General Service Usage
During the operation of an Internet system, it is occasionally necessary to monitor information. Utopia reserves the right to monitor any traffic moving through the system. It is illegal to view certain types of information in New Zealand. Users of Utopia may not break any laws while using the system. The availability of such material on the Internet is beyond Utopia's control. Users are under no circumstances to engage in mass mailing, with the exception of the use of Listserves. Mass Mailing includes SPAM and forwarding of chain letters and pyramid schemes. Users are not to engage in hacking type activity (including portscans). Where a user is found to have engaged in any of the aforementioned , they will be banned from the system immediately and no refund given. Your password and connection is for use only by you and immediate household Members/your Company. Passwords are under your control and unauthorised use is your responsibility. You agree that Utopia shall not be liable for any damages whatsoever including but not limited to loss of profits for any claim made by you. Only one person may only use the account at a time. Utopia reserves the right to disconnect users after fifteen minutes of inactivity.
9.7 Privacy
Utopia will not reveal, sell, or in any way divulge information about the Customer or the Internet usage of the Customer to any individual, business, marketing, or research group without prior consent of the customer or without legal warrant.
10.0 Responsibilities
10.1 Utopia’s Responsibilities
Utopia will provide each Service in accordance with the terms and conditions set out in the documentation outlining the provision of Services to you and in accordance with those overridden by any Service Level Agreement that may apply.
Where Utopia performs work for the customer, it will ensure that competent and suitably experienced personnel carry out all work, in a professional manner and in accordance with the appropriate standards and regulations.
While Utopia will make every endeavour to ensure a fully professional approach to all work carried out, it cannot guarantee the results of recommendations as many factors are outside of our control. Consequently, Utopia shall not be liable for any consequences of the provision of services to you, except for consequences arising as a direct result of the proven negligence on the part of Utopia .
Utopia will provide Hosting Services with reasonable care and skill, and will use all reasonable efforts to ensure that the Hosting Services are reliable at all times, but cannot, and it does not, guarantee that the Services will be continuous or fault free except in the case of proven negligence.
Utopia cannot and will not be responsible for unauthorised access to our facilities or equipment or for alteration, loss or destruction of data files, programs, procedures or information of the Customers by accident, fraudulent method or equipment, any Act of God or any other method.
From time to time, Utopia may (and has the right to) send information and offers to the Customer about upgrades and other services offered by Utopia.
10.2 The Customer’s Responsibilities
The Customer agrees that they will not use the Services, nor permit the services to be used in any way that is illegal, or could damage or knowingly affect Utopia’s or any other operators network.
The Customer will ensure that all information provided to Utopia is accurate, and that they will inform Utopia promptly of any material changes to this information, including all contract information.
The Customer will use the Services for the purposes that they are provided, and in accordance with any reasonable directions given by Utopia.
The Customer is liable for and indemnifies Utopia against any costs, expenses, or damages incurred by Utopia as a result of the Customer failing to comply with their obligations under this clause.
10.3 System/Site Backups
Utopia is responsible for the equipment and backup of system information only. You are responsible for your own site files. We recommend that you maintain your own backup.
10.4 Exclusion of Liability
Except as provided in clause "Limitation of Liability" Utopia is not liable to the Customer or any other person for:
a) any cost, loss or liability (including loss of profit or other consequential damage) arising from Utopia's supply or failure or delay in supplying Service.
b)the content, context, or confidentiality of any communications made using the Service. Utopia does not provide support for third party software, including software downloaded from the Internet.
10.5 Limitation of Liability
Except as provided below all terms, warranties, undertakings, inducements and representations relating to the provision of any Service or goods are excluded and Utopia will not be liable for any loss or damage (including consequential loss or damage) however caused (whether by negligence or otherwise) in respect of any Service or goods inclusive of any software material hosted or designed by Utopia. However, Utopia's liability for any breach of such implied term or warranty will be limited at Utopia's option or in any way permitted by the legislation including where so permitted:
a) If the breach relates to goods: the replacement or repair of the goods; or the payment of the costs of replacing or repairing the goods.
b) If the breach relates to services: the supplying of those services again; or the payment of the costs of having those services supplied again.
10.6 Breaches
The Customer shall indemnify Utopia against any loss (including any loss of profit) incurred by Utopia as a result of any breach of the terms of any agreement with Utopia including damages in respect of any period up to and including the date of actual termination.
10.7 Indemnity
The Customer shall indemnify Utopia against all claims, expenses, damages, or other liabilities arising directly or indirectly from accessing of obscene, defamatory, or offensive material via the Utopia Internet service.
10.8 Defamation
You must not publish words or images which in our opinion are defamatory or likely to be defamatory of any other person or business. If a person wishes to make a complaint regarding defamatory content published on a website that is hosted by Utopia, and the complainant wants Utopia to remove the website or offending content, Utopia may remove the offending material if it is satisfied of the legitimacy of the request. If Utopia deletes or prevents access to a user’s material we know or have reason to believe is defamatory, we will give notice to the user that the material has been removed or blocked.
Utopia does not monitor its clients' websites or activities to determine whether they are in compliance with this policy. However, if Utopia becomes aware of any violation of this policy it may take any action to stop or correct such violation, including but not limited to, shutting down a website, denying access to services, and removing material. In the event of a violation of this policy, no refund of service fees will be applicable and Utopia will not be liable for any damages, costs, harm or loss suffered as a result of its actions in enforcing this policy.
11.0 .nz Domain Name Registrations
11.1 The Registrar's Obligations
Utopia agrees that it will:
- comply with all .nz policies and accurately represent these to you.;
- disclose accurately and completely all our terms and conditions associated with your use of our services to register and maintain a domain name sought to be used by you, including price and billing information;
- comply with your lawful directions in a diligent and timely manner regarding your domain name(s), (for example, registration, cancellation, amendment, deletion, and associated technical support and billing);
- process any new domain name registrations with the applicable registry within 3 hours from the time we receive all the information required to complete a registration if it is within our advertised business hours of 8am - 8pm, Monday-Friday, and otherwise within 3 hours of the next business day;
- notify you of the registration of your domain name(s), including the details of: the domain name, your contact details, our contact details, the registration period, the unique authentication ID or other applicable passwords for your domain name and your obligations as a registrant;
- arrange for correction of any error in the information in the applicable register about any domain name registered to you when requested;
- provide to you, or to someone we reasonably believe to be acting on your behalf, the unique authentication ID for your domain name when requested and for no charge;
- use your personal information only as authorised by you; take all reasonable steps to safeguard and protect all information about you stored in our databases and system(s);
- comply with any order of any authority having jurisdiction regarding any domain name registered to you;
- use our best endeavours to deal with any complaints you may have about the services we provide for you.
- allow domain names to reside on DNS servers outside of our control.
11.2 The Registrant's obligations
You agree that you will:
- comply with the .nz policies. You agree that you have read and understood the current policies;
- make sure all information you give us is accurate and complete, keep us informed of changes to any information you give us, and that you have the authority to enter into this agreement;
- keep the unique authentication ID and other passwords for your domain names and any other security information that we give to you confidential, safe and secure;
- satisfy yourself that your use of a domain name will not infringe anybody's intellectual property rights and protect us, and everybody we are in any business relationship with to provide services to you, from any such claim;
- ensure that you only use our services for a lawful purpose;
- ensure that the use of any domain name registered to you does not interfere with other users of the Internet;
- ensure that any order of any authority having jurisdiction regarding any domain name registered to you is complied with;
- protect us, and everybody we have a business relationship with, against any legal action taken against us because of the receipt or use of our services by you or someone you are responsible for, including reliance by us or anybody we have a business relationship with, on information supplied by you.
- You agree to make sure everyone you are responsible for or who uses a domain name registered to you also meets the above duties.
11.3 Registration of a domain name
When a domain name in the .nz domain name space is registered to you, or in your name as directed by you, then you agree:
- that the following information becomes available to any member of the public:
- your name,
- your contact details and
- the domain name, its commencement and expiry dates and addresses/details of the name servers for it, and our name.
- the domain name is registered in your name only because no other person has it according to the records of the register; and
- neither we nor anybody else is representing anything else to anybody regarding that domain name. The entry of a domain name in the "who is" database shall not be taken as evidence of anything other than such registration; and
- that you protect us and everybody we have a business relationship with to provide services to you, from any claim arising out of the domain name being registered in your name or as you direct.
11.4 Register is the record
For all purposes the details shown in the applicable domain name register shall be treated as correct and the authoritative record.
11.5 Payment of fees
- You agree to pay for the services we provide for you.
- If you transfer a domain name registered to you to another registrant or to be managed by another registrar, all charges owing to us shall become immediately due and payable on the date of that transfer.
- We may alter our fees from time to time. When we alter them we will provide notice of the alteration on our website 30 days before the new fee takes effect.
- Our usual fees are specified during the registration process, or will be supplied over the phone and are also available on our website.
- Our prices are stated in New Zealand dollars and exclude GST unless otherwise specified at the time or registration.
11.6 Suspension and refusal to supply services
If you do not pay our charges for a domain name registered to you we may:
- cancel registration of that domain name; or
- refuse to provide a service you request.
11.7 Cancellation of a domain name
If we are going to cancel the registration of a domain name registered to you as a result of you not paying our charges relating to that registration, we will give you fourteen days notice before we initiate action to cancel that domain name.
11.8 Exclusion of liability
We exclude all liability we may have to you for any claim except where we have acted in bad faith. This exclusion also applies for the benefit of:
- InternetNZ, the .nz Registry and any other entity we are in any business relationship with;
- other domain name registries;
- every officer, employee, contractor, agent of us or any entity in clause 8.1;
- anyone else we get to perform our duties under any agreement you have with us.
None of the persons specified above is liable or has to pay you for anything else in connection with or resulting from anything any of us does or does not do, or delays in doing, whether or not it is contemplated or authorised by any agreement you have with us. This exclusion applies whatever you are claiming for and in whatever way liability might arise. This exclusion does not prevent you getting a court order requiring us to do anything we have agreed to do for you and does not limit any rights you may have under the Consumer Guarantees Act 1993.
11.9 Limitation of our liability
We have excluded all other liability we or any of the persons specified in clause 8 may have to you. If any of those persons is ever liable to you and, for any reason, cannot rely on the exclusion of liability set out in clause 8 then this clause applies. Where this clause applies, the maximum combined amount the persons specified above (together) will have to pay you and anyone else who uses the services we provide for you (together) is the amount of the last month's fee paid by you under this agreement.
11.10 Law and jurisdiction applying to this agreement
Unless we otherwise agree in writing, this agreement contains all the terms of our relationship and continues to apply no matter where you are located at the time any of the services are provided or where you reside. This will be the case until this agreement is cancelled except to the extent clause 14 says otherwise. To the extent legally permitted:
- all our services are provided under New Zealand law;
- any claim or dispute arising out of or in connection with this agreement must be instituted within 60 days from the date the relevant service was supplied to you;
- except as otherwise stated, you may take action against us only in a New Zealand court;
- where you or any registrant for whom you act supplies incorrect information regarding a domain name and we incur cost in any matter concerning that name then we may recover the costs incurred by us from you.
11.11 Cancelling the agreement
- We may cancel or suspend this agreement by giving you one months notice if you do not meet your duties to us.
- We may end the agreement for any other reason by giving you one month's notice.
11.12 More than one person
You are responsible for everybody who you permit to act for you as a registrant. We will take reasonable care to satisfy ourself that you have permitted those persons to act for you.
11.13 Each clause separately binding
Each clause of the agreement you have with us is separately binding. If for any reason we, you, or any of the persons specified in clause 8 cannot rely on any clause, all other clauses of it are binding.
11.14 Rights and responsibilities that continue
The cancelling of any agreement you have with us does not affect any rights and responsibilities, which are intended to continue or come into force afterwards. These include the rights and duties under 11.2, 11.4 - 11.10, 11.12 - 11.13, and this clause 11.14.
12.0 Acknowledgement of Terms
This document contains the terms upon which Utopia accepts your instructions to act for you. These Terms and Conditions of Trade may be changed by Utopia in consultation with the client.
These policies are current as of 6th September 2011.
