Please read this Managed WordPress Hosting Terms and Conditions Agreement carefully, as it contains important information regarding your legal rights and remedies.
This Managed WordPress Hosting Terms and Conditions Agreement (“Agreement”) is entered into by and between Cheeky Monkey Hosting t/a WPhost (“WPhost”) and you (“Client”). This Agreement is made effective as of the date of your use of this website (“Site”) or the date of electronic acceptance. WPhost and Client are sometimes referred to herein collectively as the “parties” or individually as a “party.”
WPhost agrees to provide Client with hosting and support services related to the development and management of Client’s WordPress website (the “Website”) as set forth or as described during the registration process (the “Website Services”). WPhost shall provide the Website Services so that the Website is accessible to third parties. Except as expressly provided herein, Client agrees that WPhost is responsible only for providing the Website Services, and WPhost is not responsible for providing any services or performing any tasks not specifically agreed to between WPhost and Client during the registration process. At the time of execution of this Agreement, to the extent that Client wishes to receive from WPhost, and WPhost wishes to provide to Client, services other than the Website Services (collectively, the “Additional Services”), such Additional Services and the arrangements for their provision shall be set forth in a separate addendum to this Agreement which is duly executed by the Parties (the “Services Addendum”), and the Services Addendum shall be incorporated into, and become a part of this Agreement. The Website Services and the Additional Services will hereinafter be referred to collectively as the “Services”.
Client shall post all materials comprising the Website, including, but not limited to, any images, photographs, illustrations, graphics, audio clips, video clips or text (the “Client Content”), which shall be in a correct format (as specified by WPhost in consultation with Client). Client acknowledges that Website construction and management is Client’s responsibility. WPhost shall not be responsible for Website management or files lost or damaged by Client. WPhost maintains system backups that are intended to recover from system failure and which may be used for restoration of files to individual sites.
The Website shall be accessible to third parties via the Internet twenty-four (24) hours a day, seven (7) days a week, except for scheduled maintenance and required repairs, and except for any loss or interruption of WPhost Services due to causes beyond the control of WPhost or which are not reasonably foreseeable by WPhost, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures. In the event of any loss or interruption of WPhost Services, Client’s sole and exclusive remedy and WPhost's sole and exclusive liability for any loss or interruption of WPhost Services shall be as follows: for loss or interruption of WPhost Services which is due to (i) causes other than scheduled maintenance and required repairs; (ii) causes beyond the control of WPhost; or (iii) causes which are not reasonably foreseeable by WPhost, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures, which loss or interruption of WPhost Services exceeds a continual period of twenty-four (24) hours, Client shall receive a credit against future WPhost Services equal to a pro rata portion of WPhost Services fees for the period of downtime.
Client agrees that it will not exceed the bandwidth or storage space limits applicable to the purchased WPhost Services. In the event that the Website exceeds the limits included in the WPhost Services, or should Client request or require increased limits, WPhost will automatically bill Client for any such upgrade in the level of WPhost Services, or the additional incremental storage required by Client’s use to be included in the WPhost Services, on a time and materials basis and in accordance with the fee schedule set forth in the plan that includes the appropriate storage amounts.
Updates to the Website shall be the sole responsibility of the Client. WPhost shall provide the necessary SFTP access to allow Client to make the updates.
WPhost represents and warrants it has implemented and will maintain reasonable and appropriate administrative, physical, and technical safeguards to protect the confidentiality, integrity, and availability of Client Content.
As between Client and WPhost, Client Content shall remain the sole and exclusive property of Client, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights. During the term of this Agreement, WPhost shall have the right to use Client’s name, trade name and/or trademark(s) in connection with the marketing and promotion of its business activities. Except as provided in this Section 2.1, nothing in this Agreement shall be construed to grant WPhost any ownership right in, or license to, the Client Content provided by Client to WPhost.
All materials, including but not limited to the Platform, any computer software (in object code and source code form), data or information developed or provided by WPhost or its suppliers under this Agreement, and any know-how, methodologies, equipment, or processes used by WPhost or its suppliers to provide the Website Services to Client, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto (collectively “WPhost Materials”) shall remain the sole and exclusive property of WPhost or its licensors. To the extent, if any, that ownership of the WPhost Materials does not automatically vest in WPhost by virtue of this Agreement or otherwise, Client hereby transfers and assigns to WPhost all rights, title and interest which Client may have in and to the WPhost Materials. Client acknowledges and agrees that WPhost is in the business of providing the Platform and licensing access, use, and operation of the Platform, which allows its customers to host their WordPress websites and receive associated support services, and that WPhost shall have the right to provide services to third parties that are the same or similar to the Website Services, and to use or otherwise exploit any WPhost Materials in providing such services.
Each party agrees that during the course of this Agreement, information that is confidential or proprietary may be disclosed to the other party, including, but not limited to, software, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, and marketing data (“Confidential Information”). Confidential Information shall not include information that the receiving party can demonstrate (i) is, as of the time of its disclosure, or thereafter becomes part of the public domain through a source other than the receiving party; (ii) was known to the receiving party as of the time of its disclosure; (iii) is independently developed by the receiving party; or (iv) is subsequently learned from a third party not under a confidentiality obligation to the providing party. Except as provided for in this Agreement, each party shall not make any disclosure of the Confidential Information to anyone other than its employees who have a need to know in connection with this Agreement. Each party shall notify its employees of their confidentiality obligations with respect to the Confidential Information and shall require its employees to comply with these obligations. The confidentiality obligations of each party and its employees shall survive the expiration or termination of this Agreement.
Client assumes sole responsibility for (i) acquiring any authorization(s) necessary for hypertext links to third party websites; (ii) the accuracy of materials on the Website, including, without limitation, Client Content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted; and (iii) ensuring that the Client Content does not infringe or violate any right of any third party.
WPhost does not intend to and shall have no obligation to systematically monitor the content that is submitted, stored, distributed or disseminated by Client via the Website. An Acceptable Use Policy (“AUP”), available at https://www.webhost.nz/legal/2/acceptable-use-policy, is in effect for the Website Services. Any violation of the AUP may result in the immediate cancellation or suspension of any or all Services without warning.
WPhost respects the intellectual property of others and requests that Client does too. WPhost shall respond to notices of alleged copyright infringement if they comply with the law. We reserve the right to delete or disable content alleged to be infringing and terminate accounts of repeat infringers.
Website Services shall be paid in New Zealand Dollars ("NZD") by valid payment method (acceptable to WPhost) at the time of purchase at the fee set forth on the WPhost's website. Client’s monthly, quarterly, semi-annual or annual payments for the Website Services, depending on the plan selected by Client, shall be automatically charged to the payment method provided by Client at the time of purchase (with such payments being charged in advance on a monthly, quarterly, semi-annual or annual basis, as applicable) each month, quarterly, semi-annually or annually, as applicable (“Website Services Fee”), and you hereby agree that WPhost is authorized to so charge the payment method on file. WPhost may, at its sole discretion, suspend or terminate Website Services without notice if Client fails to provide payment for the new term.
If Client initiates a chargeback with the provider of a credit card or initiates a similar action to a payment provider allowed by WPhost for charges billed by WPhost for Website Services, Website Services will be immediately suspended without notice. Reestablishment of service following a chargeback or similar action will require sufficient explanation for the action and payment of the disputed charge and/or WPhost’s bank dispute fee.
WPhost expressly reserves the right to change the fees charged hereunder for the Website Services with advanced notice to the Client. If Client does not agree to any such pricing change, it may cancel the Website Services within thirty (30) days from the date of your notice; otherwise all such changes shall be effective with respect to Client’s account and Client agrees that WPhost is authorized to charge the payment method provided by Client for any new Website Services Fee, on the next monthly, quarterly, semi-annual or annual (as applicable) payment cycle.
Unless otherwise agreed in writing, Client shall pay to WPhost all fees for Additional Services on a time and materials basis as invoiced by WPhost.
Failure of Client to fully pay any fees within five (5) days after the applicable due date shall be deemed a material breach of this Agreement, justifying suspension of the performance of the Services by WPhost, and will be sufficient cause for immediate termination of this Agreement by WPhost. Any such suspension does not relieve Client from paying past due fees plus interest and in the event of collection enforcement, Client shall be liable for any costs associated with such collection, including, but not limited to, legal costs, attorneys’ fees, court costs and collection agency fees.
WPhost represents and warrants that: (i) WPhost has the power and authority to enter into and perform its obligations under this Agreement; and (ii) WPhost's Services under this Agreement shall be performed in a professional, workmanlike manner, consistent with industry standards.
Client represents and warrants that: (i) Client has the power and authority to enter into and perform its obligations under this Agreement; (ii) Client shall use commercially reasonable efforts to prevent unauthorized access to any restricted areas of the Website and any databases or other sensitive material generated from or in connection with the Website; (iii) Client shall not copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, misappropriate or otherwise attempt to extract any or all of the WPhost Materials; (iv) Client shall use the Website Services in accord with the AUP; and (v) Client Content does not and shall not contain any content, materials, advertising or services that are inaccurate or that infringe on or violate any applicable law, regulation or right of a third party, including, without limitation, export laws, or any proprietary, contract, moral, or privacy right or any other third party right, and that Client owns the Client Content or otherwise has the right to place the Client Content on the Website. Should Client receive notice of a claim regarding the Website, Client shall promptly provide WPhost with written notice of such claim.
EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 5.1, HOST MAKES NO WARRANTIES HEREUNDER, AND HOST EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Client agrees to indemnify, defend, and hold harmless WPhost, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action is based upon a claim that: (i) if true, would constitute a breach of any of Client’s representations, warranties, or agreements hereunder; (ii) arises out of the negligence or willful misconduct of Client; or (iii) any of the Client Content to be provided by Client hereunder or other material on the Website infringes or violates any rights of third parties, including without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets, and/or licenses.
WPhost agrees to indemnify, defend, and hold harmless Client, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action arises out of the gross negligence or willful misconduct of WPhost.
In claiming any indemnification hereunder, the indemnified party shall promptly provide the indemnifying party with written notice of any claim which the indemnified party believes falls within the scope of the foregoing paragraphs. The indemnified party may, at its own expense, assist in the defense if it so chooses, provided that the indemnifying party shall control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the indemnified party shall not be final without the indemnified party’s written consent, which shall not be unreasonably withheld.
HOST SHALL HAVE NO LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, THE WEBSITE OR CLIENTS DATA FILES, PROGRAMS OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. HOST SHALL HAVE NO LIABILITY WITH RESPECT TO HOST’S OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF HOST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF HOST TO CLIENT FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO HOST BY CLIENT UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS.
The term of service shall be determined by either Client’s selection on the order form during the order process or by Client’s request to WPhost to change to a different term. Where a Client selects monthly payments for a Website Service, this agreement is for a minimum term of 3 months. The term shall begin upon the processing of Client’s order, or upon completion of requested changes by WPhost. Upon completion of the term, Client acknowledges and agrees that the term will renew automatically for successive terms of length equal to the prior term unless Client notifies WPhost of its intent to not renew the Website Services. No refunds for early cancellation will be made. The foregoing has no effect on Section 8.2, and Client may still terminate the Agreement in accordance with the terms below.
Client may terminate its account and this Agreement at any time via the WPhost web portal. Either party may terminate this Agreement if a bankruptcy proceeding is instituted against the other party which is acquiesced in and not dismissed within thirty (30) days, or results in an adjudication of bankruptcy, or the other party materially breaches any of its representations, warranties or obligations under this Agreement, and such breach is not cured within thirty (30) days of receipt of notice specifying the breach, except that the cure period for failures of payment obligations shall be ten (10) days. WPhost may terminate this Agreement at any time and for any reason by providing written notice of termination to Client and refunding a pro rata portion of fees paid to Client for Website Services not yet rendered on the date of termination.
Upon any termination or expiration of this Agreement, Client shall pay all unpaid and outstanding fees through the effective date of termination or expiration of this Agreement.
This Agreement and any attached schedules constitute the entire agreement between Client and WPhost with respect to the subject matter hereof and there are no representations, understandings or agreements which are not fully expressed in this Agreement.
The Parties acknowledge and agree that successful completion of the Services shall require the full and mutual good faith cooperation of each of the Parties.
The parties to this Agreement are independent contractors. Neither party is an agent, representative, or partner of the other party and this Agreement shall not be interpreted or construed to create an association, agency, joint venture, partnership, franchise or employee relationship between the Parties.
WPhost may update this Agreement from time to time in its sole discretion; the current version may be found at https://www.webhost.nz/legal/10/managed-wordpress-hosting-terms-and-conditions. Client’s continued use of the Services following such updates constitutes Client’s acceptance of the same. If Client does not agree to the terms of any modification, it may terminate this Agreement in accordance with Section 8 (Termination).
WPhost may use the name of and identify Client as a client in advertising, publicity, or similar materials distributed or displayed to prospective clients.
Except for the payment of fees by Client, if the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
This Agreement shall be deemed to be an Agreement made in New Zealand and shall be subject to, governed by and interpreted in accordance with the laws of New Zealand.
Client shall not assign, without the prior written consent of WPhost, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, operation of law or otherwise, and any attempt to do so shall be deemed a material breach of this Agreement.
Any notice provided pursuant to this Agreement, if specified to be in writing, shall be in writing and shall be deemed given (i) if by e-mail, upon confirmation thereof; or (ii) if by post, upon such delivery. All notices to WPhost shall be addressed as follows:
WPhost, PO Box 31228, Milford, Auckland 0741, New Zealand
All notices to client shall be addressed to the address on file with WPhost, which shall be updated, as needed, by Client.
The waiver of failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder.
If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
This Agreement may be executed in several counterparts, all of which taken together shall constitute the entire agreement between the parties hereto.
The section headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.
Where agreement, approval, acceptance, consent or similar action by either party hereto is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld.
All provisions of this Agreement relating to Client warranties, confidentiality, non-disclosure, proprietary rights, limitation of liability, Client indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement.
Client shall designate one (1) person who will act as the primary liaison for all communications regarding the Services.
Client is advised to print a copy of this Agreement for its records, as the Agreement may need be referenced from time to time.
WPhost and Client desire to facilitate certain transactions pursuant to this Agreement by exchanging documents, records and signatures electronically or by utilizing electronic agents. The use of electronic facilities or agents shall be in accordance with procedures established by WPhost and governed by the applicable provisions of the Contract and Commercial Law Act.
Each managed WordPress hosting plan comes with a free registration or transfer of one .nz, .co.nz, .net.nz, .org.nz, .geek.nz, .gen.nz, .ac.nz, .school.nz, .maori.nz or gTLD (.com, .net, .org, .biz or .info) domain name, to the value of $39.00, for a period of one year.
Silver, Gold and Platinum managed WordPress hosting plans come with a free renewal of one .nz, .co.nz, .net.nz, .org.nz, .geek.nz, .gen.nz, .ac.nz, .school.nz, .maori.nz or gTLD (.com, .net, .org, .biz or .info) domain name, to the value of $39.00, for a period as long as you have the hosting account. If your domain name is already registered for longer than a 1 year term you will not be entitled to a refund or discount off your managed WordPress hosting fees. Upon the expiry of your domain name we will automatically renew your domain free for 1 year and will continue to do so for a period as long as you have the hosting account.
The free domain must be registered with us to gain the benefits of this offer.
This agreement was last updated 23 August 2020.
Last Update: 23/08/2020 - 18:45pm
