Terms and Conditions

TERMS AND CONDITIONS

Section 1 – Purpose of Service

These Terms of Service (“Terms”) form an agreement between you, the individual or entity on whose behalf you are entering into this agreement (“you” or “your”), and CUBWEB Limited (“CUBWEB”, “we”, “us”, or “our”).

By accessing our website or using any of our services (“Services”), you agree to be bound by these Terms, including all related policies referenced herein (collectively, the “Policies”), such as our Acceptable Use Policy, Support Policy, Refund & Billing Policy, Privacy Policy, Server Maintenance Policy, and DMCA Policy.

We may update these Terms and Policies from time to time. Continued use of the Services constitutes acceptance of those changes.

Section 2 – Customers

We act as an independent contractor and provide Services to facilitate your online presence. We are responsible only for the Services we directly provide and are not liable for:

  • your actions,
  • the actions of third parties, or
  • the actions of users of your services or website.

Section 3 – Services

We provide various services, including hosting, domain registration, and related services. All Services (whether paid or free) are subject to these Terms and the Policies.
We may modify or discontinue Services at any time. Third-party providers we rely on may also change their offerings, and we are not responsible for those changes.
We do not provide migration or transition services to or from third-party providers unless expressly agreed in writing. Any assistance provided is at our discretion and may incur additional fees.

We may change the specifications or details of the Services at any time but we have no obligation to change the Services.  Additionally, the third parties we contract with to provide Services may change their offering between the time of purchase and the date the Services are delivered.  We will use commercially reasonable efforts to inform you of changes to the Services.

    1. Our Knowledgebase has additional information about our services.
  • Domain Name TERMS OF SERVICE
    1. We also resell domain names. When you register or transfer your domain name to us, your domain name will be registered on our terms and our vendor’s terms. We have partnered with different domain seller vendors so we can give you the best pricing on the market.  By using our Domain Name Services, you agree to be bound by our domain name registration policies and procedures. You acknowledge that you have read and understood these terms. Because of the mechanics of domain name registration, we cannot guarantee that your domain name will be registered.  After registration, it is your responsibility to ensure your domain name does not lapse, for whatever reason, and we are not responsible for any lapse or any damages caused by any lapse.  
    2. It is your sole responsibility to fully investigate and ensure that the domain name you register does not infringe on the legal rights of others. We do not check to see whether a domain name you register or use infringes on the legal rights of any third party and we suggest you seek the advice of legal counsel before registering any domain.
    3. We will use commercially reasonable efforts to comply with any legal order to cancel, modify, or transfer your domain name. ICANN’s Transfer Policy requires a 60-day transfer lock to apply to your domain name(s) in the event of any “Change of Registrant.” CUBWEB currently locks your domain name for any change involving your Who Is information. This feature is designed to protect your domain from any unauthorized attempt to transfer your domain. We do not offer an option to opt-out of the 60 day transfer lock. Any “Change of Registrant” as defined by ICANN’s Transfer Policy will subject the domain to a 60 days transfer lock. Please note that the parameters that trigger the 60-day transfer lock are subject to change. The current parameters which trigger the 60 day lock include: (A) change of registrant First Name, (B) change of registrant Last Name, (C) change of registrant Organization Name, (D) change of registrant Email.  You also agree and understand ICANN’s policies for Domain Verification and any other current or future policies they might enact.  http://www.icann.org/en/resources/registrars/registrant-rights/benefits
  2. Hosting Services Terms
    1. Accounts are allocated bandwidth depending on the package you select.  The bandwidth for Services purchased does not rollover and is not creditable across periods.  In the event you require more bandwidth than you have purchased, your account may be suspended until the next period, you may purchase additional bandwidth by upgrading your account, your account may be terminated for a violation of the terms of the package you purchased, or we may charge you an additional fee for the overage, in our sole discretion.
    2. We will provide, as part of the Service cost, the number of primary IP addresses included in the plan you select.  You may request additional IP addresses for an additional fee.  If we need to change one of your assigned IP addresses we will notify you of the change by email. You may use the IP addresses provided only in association with the Services and they may not be transferred.
    3. In using our hosting Services, you may not place excessive burdens on our CPUs, servers, or other resources, including our customer support services. You understand that bandwidth, connection speeds, and other similar indices of capacity are maximum numbers. Consistently reaching these capacity numbers may result in our need to place restrictions on your use of the Services, including suspension or termination of your account or a reduction in bandwidth available for your use (also known as bandwidth throttling), in our sole discretion. You agree that we may place restrictions on your use of the Services or customer support services to the extent that they exceed the use of these resources by similarly situated customers.

Section 4 – Access

Physical access to servers is not permitted. You must not interfere with or disrupt server functionality or other users’ access.

Section 5 – Control Panel

Use of third-party software (such as cPanel) is subject to the provider’s terms.  When you subscribe for use of cPanel with any of the Services, you agree to be bound by cPanel’s End User License Agreement, available at: http://cpanel.com/legal-store.html.  Please be sure to review cPanel’s End User License Agreement before use of cPanel-related Services.

Section 6 – Enrollment; Account Information

    1. Eligibility.  You must be at least 18 years old and have authority to enter into this agreement. You may be subject to a credit check and screening for potential fraud and accurate information must be supplied for purposes of this screening.  Further, before using the Services, you represent and warrant to eesel MEDIA that: (i) you have the experience and knowledge necessary to use the Services; (ii) you understand and appreciate the risks inherent to you, your business and your person, which come from using the Services in particular, and doing business on the Internet in general; and (iii) you will provide us with material that may be implemented by us to provide the Services.
    2. Account Information.  You must provide accurate and up-to-date account information. You must also keep this information, including your email address, up to date during the course of our relationship. On occasion, we may need to communicate with you by email about the Services. We have no responsibility, or liability, for interruptions in the Services, or damages of any sort, based on email communications that are misdirected or blocked by a third party application as a result of your failure to maintain updated account and contact information or for circumstances beyond our control.
  • Account Security
    1. You are responsible for all activity under your account. All account access, password, and other security measures are your responsibility. eesel MEDIA is not liable for any damages, direct or indirect, that result from unauthorized access or use.  
    2. In addition to terms under the Support Policy in connection with support services, you will be responsible for all authorized actions taken by our support personnel using your login.  You must back up your data before requesting support.
    3. You agree to give eesel MEDIA permission to access your accounts for the purpose of troubleshooting technical issues with the account or server and to confirm compliance with all of our policies.  We also conduct automated scans of data for security purposes and reserve the right to change permissions, modify files or quarantine files that are deemed to be malicious in nature.
  • Third-Party Access

You may request that we grant access to third parties on your behalf. We may rely on such requests once appropriate verification is completed.
You acknowledge that:
– any third party you authorise acts on your behalf; and
– we are not responsible for their actions.
We may access your account to provide support, ensure compliance, and maintain security.

Section 7 – Payments, Termination,  and Renewal

We are not obligated to perform any Services until payment has been received from you through our web platform (the “Effective Date”). Services will commence on the Effective Date and continue for the term specified on the applicable service page. If no term is specified, the initial term will be one (1) month (the “Initial Term”).

Automatic Renewal
The Initial Term will automatically renew for successive periods of equal duration (each a “Renewal Term”) unless cancelled in accordance with this section.

To avoid renewal, you must submit a cancellation request prior to the start of the next Renewal Term. Cancellation requests must be made through your account portal or by contacting us at [email protected]
with sufficient notice.

You must provide valid proof of account ownership and authorisation to cancel.

Termination for Convenience
Either party may terminate the Services for convenience by providing at least thirty (30) days’ written notice to the other party.

If you terminate the Services, you remain responsible for all fees payable for the remainder of the current Initial Term or Renewal Term.

All cancellation requests must be submitted through your account portal unless otherwise agreed by us.

Transition on Termination / Migration
If you wish to transfer your Services to another provider, you must provide no less than thirty (30) days’ written notice prior to termination.

Upon receiving such notice, we will use commercially reasonable efforts to facilitate the transition by providing administrative access to the hosting environment.

For security and audit purposes:
– access will be granted by creating a new user account for the incoming provider; and
– you must supply all required details to enable this setup in a timely manner.

We do not:
– provide full migration services unless agreed in writing;
– guarantee successful migration or transfer of Services; or
– accept responsibility for any third-party provider or their configuration, systems, or actions.

Any assistance beyond the provision of access may be subject to additional fees.

Where we elect to terminate Services (other than for breach), we will provide no less than thirty (30) days’ notice, where reasonably practicable.

Nothing in this section limits our right to suspend or terminate Services immediately in accordance with these Terms.

Suspension and Immediate Termination
We may suspend or terminate the Services immediately and without notice if:
(a) you breach these Terms or any Policies;
(b) you fail to pay any amounts due;
(c) suspension is necessary to prevent disruption to network providers; or
(d) it is required to protect the integrity, security, or operation of our systems.

You are not entitled to compensation, notice, or the right to dispute such action prior to suspension or termination.

Effects of Termination
Upon termination of the Services:
– your account will be closed;
– your data may be deleted; and
– all outstanding fees become immediately due and payable.
We are not responsible for:
– forwarding emails or communications; or
– retaining or restoring any data after termination.

You are responsible for ensuring that all required data is backed up prior to termination.

If your Services are terminated due to breach, no refunds or credits will be provided.

Termination for Breach
You may terminate the Services if we commit a material breach that remains unremedied for ten (10) days after receiving written notice from you detailing the breach.

Post-Termination Data Access
Where possible, we may (at our sole discretion) provide access to backup data after termination. This may incur a minimum fee of $25 or more.
We do not guarantee that any data will be available after termination, and such data may be permanently deleted.

Billing and Refunds
All billing, refund, and payment terms are governed by our Refund & Billing Policy.

Section 8 – Money Back Guarantee

We don’t want any customers to leave.  However, if you do want to leave, we offer a Money-Back Guarantee that will allow you to receive a full or partial refund of certain fees.  For details on this policy, please see our Refund & Billing Policy.

Section 9 – Use of the Services

Your use of the Services is governed by these TERMS OF SERVICE, including our Policies.  We provide no guarantee that the Services will be uninterrupted, or continuous, or that you will be able to access our hosting network at a particular time, or that any data transmitted by our Hosting is accurate, error-free, virus-free, secure, or inoffensive.

Section 10 – Testimonials

You may provide us with a written or verbal endorsement of our Services in connection with your use of the Services (“Endorsement”). The Endorsement will be the actual first-hand account of your experience using our Services and we may, at our discretion, use the Endorsement to promote our Services in-person, in print, online, and all other media. We may also edit the Endorsement for brevity or other reasons, so long as it is consistent with your original Endorsement. In connection with our use of your Endorsement, you hereby agree that we may use your first name, last initial, home state, voice or likeness, and/or contact information in connection with its publication of the Endorsement. If, at any time, you want us to stop using your Endorsement, please contact us using the contact information in Section 18 and we will cease using the Endorsement soon after processing your request.

Section 11 – Data Backup

You are solely responsible for maintaining complete and up-to-date backups of all data, content, and materials associated with your use of the Services.

We do not guarantee the availability, integrity, or recoverability of any data stored on our systems.

To the maximum extent permitted by law, we are not responsible or liable for any loss, corruption, or deletion of data, including (without limitation) loss arising from:

  • your use of the Services;
  • actions taken by you or any third party authorised by you;
  • system failures, outages, or security incidents;
  • suspension or termination of Services; or
  • any migration, transfer, or transition of Services to another provider.

You acknowledge that any transition or migration process carries inherent risk, and you are responsible for ensuring that appropriate backups are taken prior to, during, and after such process.

We are under no obligation to retain, maintain, or provide access to any data after termination of the Services. Any data that remains after termination may be permanently deleted without notice.

Section 12 – Licenses; Intellectual Property; Data Ownership

  1. Services performed or provided by eesel MEDIA are not “work made for hire” and we hereby grant you a license to use the Services and technology under the terms of these TERMS OF SERVICE, including our Policies.  The license is non-exclusive, non-transferable, non-sublicensable worldwide, and royalty-free and terminates when you or eesel MEDIA terminates the Services.
  2. All right, titles and interests in our hosting technology shall remain with eesel MEDIA, or our Hosting’s licensors. You are not permitted to circumvent any devices designed to protect eesel MEDIA, or its licensors’, ownership interests in the technology provided to you. In addition, you may not reverse engineer this technology.
  3. We use all information we gather as specified under the terms of our Privacy Policy.  You hereby grant us, and any third parties used by eesel MEDIA to provide the Services, a non-exclusive, non-transferable, worldwide, royalty-free license to use, disseminate, transmit and cache content, technology, and information provided by you and, if applicable, End Users, in conjunction with the Services.
  4. For information on how we share data and other confidential information, please see our Privacy Policy

Section 13 – Warranty

  1. eesel MEDIA warrants that it will perform the Services in accordance with prevailing industry standards. To make a warranty claim, you must notify us in writing, specifying the breach in reasonable detail, within thirty (30) days of the alleged breach. Your sole and exclusive remedy and eesel MEDIA sole and exclusive obligation, in the case of a breach of warranty is, at our option, to (i) reperform the Services, or (ii) issue you a credit based on the amount of time the Services were not in conformity with this warranty, subtracted (“pro-rated”) by the amount of time they were in conformance.  SERVICES PROVIDED BY THIRD PARTIES ARE EXPRESSLY EXCLUDED FROM THIS WARRANTY.

Section 14 – Representations and Warranties

  1. You agree to reasonably cooperate with us to facilitate your use of the Services. This cooperation includes, but is not limited to, providing us with correct contact and billing information and ensuring that you, your employees, and/or agents have sufficient technical expertise to understand how to implement the Services.
  2. It is your responsibility to ensure that you can connect with us to use the Services.  You represent and warrant that you, or the entity you represent, have the sophistication and technical skill to utilize the Services.
  3. You have read and agree to the terms outlined in our Support Policy.
  4. You warrant and represent that you have full authority and power to agree to the terms of these Policies on behalf of the company you represent, if any.
  5. You warrant and represent that you and/or your company have not been identified or listed as Specially Designated National or Blocked Person by New Zealand’s designated government agency.

Section 15 – Disclaimers

  1. EXCEPT FOR THE WARRANTY IN SECTION 13, THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE (EVEN IF THAT PURPOSE IS KNOWN TO eesel MEDIA), OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. No oral or written information or advice given by eesel MEDIA, its employees, agents, owners, directors, officers, or affiliates pursuant to these TERMS OF SERVICE, or otherwise, shall create a representation or warranty or in any way increase the scope of any representations and warranties set forth in these TERMS OF SERVICE.  eesel MEDIA does not represent or warrant that the Services are complete or free from defects or errors.
  2. eesel MEDIA is not liable, and expressly disclaims any liability, for the content of any data transferred either to, or from, you or stored by you or any of your customers via the Services provided by us.  eesel MEDIA is not responsible for any loss of data, for any reason. eesel MEDIA is not liable for unauthorized access to, or any corruption, erasure, theft, destruction, alteration or inadvertent disclosure of, data, information or content, transmitted, received, or stored on its network.
  3. eesel MEDIA is not liable, and expressly disclaims any liability, for data breaches or data compromise caused by your failure to keep web applications including plugins up to date.
  4. eesel MEDIA SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING SERVICES PROVIDED BY THIRD PARTIES, REGARDLESS OF WHETHER THOSE SERVICES APPEAR TO BE PROVIDED BY US. No warranties, either express or implied, made by these third party entities to eesel MEDIA shall be passed through to you, nor shall you claim to be a third-party beneficiary of those warranties.

Section 16 – Limitation of Liability

  1. To the maximum extent permitted by law, including the Contract and Commercial Law Act 2017 and, where applicable, the Consumer Guarantees Act 1993 (to the extent it may be contracted out of), all Services are provided at your risk.

    We are not liable to you or any third party for any indirect, consequential, incidental, special, or punitive loss or damage, including (without limitation):

    • loss of profits, revenue, business, or goodwill;
    • loss of data or data corruption;
    • business interruption;
    • loss of opportunity; or
    • loss arising from service outages, performance issues, or security incidents.

    Without limiting the above, we are not liable for any loss or damage arising from:

    • your use of the Services;
    • reliance on third-party providers or services;
    • unauthorised access to your account; or
    • any migration, transfer, or transition of Services to or from another provider.

    Our total aggregate liability to you for any claim arising out of or in connection with the Services or these Terms is limited to the total fees actually paid by you to us in the three (3) months immediately preceding the event giving rise to the claim.

    Nothing in these Terms excludes or limits any rights you may have under New Zealand law that cannot be excluded. Where Services are supplied for business purposes, you agree that the Consumer Guarantees Act 1993 does not apply to the maximum extent permitted by law.

Section 17 – Indemnification

  1. You agree to indemnify, defend, and hold harmless CUBWEB and its personnel, parent, subsidiaries and affiliated companies, third party service providers, and each of their respective officers, directors, employees, shareholders, and agents (each an “indemnified party” and, collectively, “indemnified parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, reasonable attorney’s fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to (i) your use of the Services, including any data migration-related efforts you request from CUBWEB personnel or authorize CUBWEB personnel to conduct; (ii) any violation by you of these TERMS OF SERVICE or any of CUBWEB Policies, including those violations that result in a disruption of the network; (iii) any breach of any of your representations, warranties, or covenants contained in these TERMS OF SERVICE, including the Policies; or (iv) any acts or omissions by you. The terms of this section shall survive any termination of these TERMS OF SERVICE or the Services. For the purpose of this paragraph only, the terms used to designate “you” include you, your customers, visitors to your website, and users of your products or services, the use of which is facilitated by us.
  2. eesel MEDIA shall indemnify and hold you harmless from, and at its own expense agrees to defend, or at its option to settle, any claim, suit, or proceeding brought or threatened against you so far as it is based on a claim that Services provided by eesel MEDIA hereunder infringes any patent, copyright, or trademark. This indemnification provision is expressly limited to Services that are fully owned by eesel MEDIA. It does not extend to products or services provided by third parties. If contained and permitted in its agreements with third-party suppliers, eesel MEDIA shall flow down applicable intellectual property indemnification provisions to you. This paragraph will be conditioned on your notifying eesel MEDIA promptly in writing of the claim and giving eesel MEDIA full authority, information, and assistance for the defense and settlement thereof. If an infringement claim has occurred, or in eesel MEDIA opinion is likely to occur, eesel MEDIA shall have the right, at its option and expense, either to (i) procure for you the right to continue using the Service(s); (ii) replace with the Service(s), regardless of manufacturer, performing the same or similar function as the infringing Service(s), or modify the same so that it becomes non-infringing; or (iii) if neither of the foregoing alternatives is reasonably available, immediately terminate the infringing or affected Services and refund the Fees charged by us for the period in which the Services were unavailable.

Section 18 – Notices

  1. Notices will be sent to you at the email address in your account. It is your obligation to ensure that we have the most current email address for you by keeping your account information up to date.
  2. Please refer to our website, https://eeselmedia.com, for contact information for most issues, including technical support and billing. Notices regarding this TERMS OF SERVICE and other eesel MEDIA Policies should be directed to:

CUBWEB Limited
P.O. Box 33543
Lower Hutt 5046

Section 19 – Legal

  1. Compliance with Law
    1. It is your obligation to confirm that your use of the Services complies with applicable laws and we encourage you to learn more about NZ laws to ensure that your use of our network complies with these laws.
    2. We may disclose information, including information that you may consider confidential, in order to comply with a court order, subpoena, summons, discovery request, warrant, regulation, or governmental request or to protect our business, or others, from harm. We assume no obligation to inform you that we have provided this type of information unless we have affirmatively agreed to do so. In some cases, we may be prohibited by law from giving such notice. Cooperation with civil litigants is at our discretion. Responding to requests for production of documents, and other matters requiring more than mere ministerial activities on our part will incur a fee of two hundred dollars ($200) per hour. We do not honour requests from civil litigants that expenses be pre-approved, and we may require a deposit to secure payment.
  2. Force Majeure. Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the party’s reasonable control, including third-party service failures, software failures, hardware failures, distributed denial of service (DDoS) attacks, acts of God, bandwidth interruptions, general network outages, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, or delays of common carriers. The obligations and rights of the excused party shall be extended on a day-to-day basis for the time period equal to the period of the excusable delay. The party affected by an excusable delay shall notify the other party as soon as possible but in no event less than ten (10) days from the beginning of the event.
  3. Choice of Law, Jurisdiction, and Venue. The validity, interpretation, and performance of these TERMS OF SERVICE, including our Policies, shall be controlled by and construed under the laws New Zealand as if performed wholly within the state and without giving effect to the principles of conflicts of law. You agree that jurisdiction and venue are exclusive in the New Zealand District Courts. The parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods.
  4. All Claims. All claims you bring against us must be resolved in accordance with our Policies. Without limiting the previous sentence, this includes claims based on Service outages that are expressly covered by our Policies. All claims filed or brought contrary to our Policies will be considered to be improperly filed and a breach of our Policies. If you file a claim contrary to our Policies, we may recover attorney’s fees and costs. Attorney’s fees include any fees charged by our attorneys.
  5. No Waiver.  No waiver of a right under these TERMS OF SERVICE, including our Policies, shall constitute a subsequent waiver of such right under these TERMS OF SERVICE or any of our Policies.
  6. Assignment. These TERMS OF SERVICE may be assigned by eesel MEDIA. It may not be assigned by you. These TERMS OF SERVICE shall bind and inure to the benefit of the corporate successors and permitted assigns of the parties.
  7. Severability. In the event that any of the terms of these TERMS OF SERVICE, including any of the Policies, become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, such term(s) shall be revised to reflect eesel MEDIA intent, as permitted by applicable law. All remaining terms of these TERMS OF SERVICE shall remain in full force and effect.
  8. Survival. Sections 11 through 18 shall survive the termination of these TERMS OF SERVICE.
  9. Construction.  The terms “including”, “includes”, and “include” shall be deemed to be followed by the words “without limitation” and the illustrative items introduced thereby shall not limit the scope of the otherwise general term but shall be by way of example only.
  10. Claims Period.  No action or proceeding against us may be commenced by you more than one (1) year after the Service which is the basis for the action is rendered.  You fully acknowledge that this limitation constitutes an express waiver of any rights under any applicable statute of limitations that would otherwise afford additional time for such a claim.