1.1.1 The SMS framework is a system for the delivery and administration of applications and services to a web site. It provides a framework for the development of web site solutions using tools that have been developed by Hyperlink.
1.1.2 Within this SMS framework are applications developed by Hyperlink. These include, but not be limited to, newsMaker, pageEdit, messageMaker, surveyMaker, hyperShop and checkOut.
1.1.3 The SMS framework is a set of leased applications available to clients who host with Hyperlink. The framework and applications cannot be transferred to another hosting provider. As part of the leasing of this framework and application(s) it is acknowledged that the data generated via these applications is owned by the client.
1.1.4 Custom applications developed within the SMS framework (those applications specifically developed for a client (and for which full payment has been received), are owned by the client.
1.1.5 The use of the SMS framework and its applications does not consititute ownership. The rights of ownership to the SMS framework and applications are asserted by Hyperlink.
2.1 Unless terminated pursuant to the Terms of this Agreement, this Agreement shall remain inforce until it is terminated by either party giving thirty (30) days notice in writing.
3.1 This Agreement constitutes the entire understanding between the parties and supercedes and replaces all agreements, understandings and arrangements that may have preceded this Agreement.
3.2 Hyperlink may at any time modify these terms, the pricing structure or Services by notice delivered by post, email or by update to its web site.
4.1 The Customer agrees to pay for all Hosting and Application Service fees incurred by the Customer whether or not the Customer gains any benefit therefrom, including any unauthorised use.
5.1 Hosting and Application Service fees are to be paid one month in advance.
5.2 Additional charges, not included in the Hosting and Application Service fees will be invoiced and must be paid 14 days of invoice date.
5.3 If an account remains unpaid 14 days after the invoice due date Hyperlink reserves the right to suspend a Customer account. Charges will continue to accrue on the account unless notification of termination is received. All charges must be paid before Service is reinstated.
5.4 Hyperlink shall be entitled to charge and recover interest on an outstanding account at a rate of 2.5% per month on all outstanding accounts.
5.5 If the Customer defaults the Customer agrees to pay Hyperlink its reasonable expenses, including solicitor and collection agency fees, incurred in enforcing its rights under this Agreement.
6.1 The Customer shall be responsible for:
6.2 The Customer will not use the Service to interfere with or disrupt network users, services or equipment. Disruptions include, but are not limited to, distribution of unsolicited emails or messages, propagation of computer viruses, using the network to make unauthorised entry to any other machine accessible from the Service.
6.3 The Customer agrees to refrain from publishing or transmitting any material that is grossly offensive, abusive, indecent, obscene or menacing. The Customer agrees not to publish material that provides instructional information about illegal activities, promoting physical harm or injury against any group or individual, displaying material containing nudity or pornographic material of any kind, or material that exploits images of children under the age of 18 years.
6.4 The Customer shall not permit any other party to use the Service for any illegal purpose.
6.5 The Customer warrants that it will conduct such tests and computer virus scanning as may be necessary to ensure data uploaded by it to the server does not contain any computer virus and will not, in any way, corrupt the data or system of any person.
6.6 The Customer warrants that all data uploaded onto the server under this agreement will not expose Hyperlink to the risk of any claim, legal or administrative action or prosecution.
6.7 Hyperlink reserves the right to remove any part of the Customer's data that, in Hyperlink's opinion, infringes any of the warranties set out in this agreement.
6.8 Hyperlink is under no obligation to review or edit content of the Customer's data.
6.9 The Customer is solely responsible for dealing with persons who access the Customer's data.
6.10 The Customer agrees to indemnify and hold Hyperlink harmless against all liabilities, losses, damages, costs, and expenses (including legal fess and expenses) associated with, or arising out of any claim against the Customers warranties or otherwise attributable to the Customer's data.
7.1 The reselling of Hosting and Application Services is prohibited. Customers who wish to resell Hosting and Application Services must notify Hyperlink of this intention so alternative arrangements can be made. The use of any software or technique to run multiple web sites using parked domains or sub domains is not permitted.
8.1 Hyperlink may require the payment of a security deposit before providing Hosting and Application Services, or as a condition of continuing any Service and may use the security deposit to meet any costs, loss or liability incurred by the Customer.
9.1 Hyperlink 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.
9.2 Hyperlink 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.
9.3 Hyperlink makes no warranties of any kind, whether expressed or implied, for the service it provides. Hyperlink also disclaims any warranty of merchantability or fitness for a particular purpose.
9.4 Hyperlink will not be responsible for any damage suffered. This includes loss of data resulting from delays, non-deliveries or service interruptions. The use of any information obtained via Hyperlink is at the Customers own risk. Hyperlink specifically denies any responsibility for the accuracy or quality of information obtained through its services.
10.1 Hyperlink is not liable to the Customer or any other person for:
10.2 Not withstanding anything herein contained or implied no employee, agent or director of Hyperlink shall be liable to the Customer for any breach of duty or care in contract, tort, equity or otherwise in relation to the performance of obligation under this contract or in relation to the subject matter of this contract.
10.3 This clause shall survive the termination of this Agreement.
11.1 Hyperlink excludes all liability for any direct, indirect, special or consequential damages however caused in respect of any service. Where such liability cannot be excluded, liability to the Customer is strictly limited, at Hyperlink's option, to the following:
12.1 Hyperlink may immediately terminate any agreement for the provision of any Service if:
12.2 All deposits paid to Hyperlink will be non-refundable if at any time the order is cancelled by the Customer.
12.3 All outstanding charges shall become immediately payable on giving such notice and in no circumstances shall the Customer be entitled to any refund of any payment made under this Agreement.
13.1 Hyperlink may from time to time and without notice suspend any Service or disconnect or deny the Customer access to any Service:
13.2 In the case of routine maintenance Hyperlink will notify all Customers by email of the any planned disruption to Service, including where possible the duration of disruption
13.3 Not withstanding any suspension of any Service under this clause the Customer shall remain liable for all charges due throughout the period of the suspension and may incur a reconnection fee for the resumption of service.
14.1 Failure by any party to enforce any right or obligation with respect to any matter arising in connection with this Agreement shall not constitute a waiver to that matter or any other matter either then or in the future. Any waiver of any right or obligation under this contract shall only be of any force and effect of such waiver is in writing and is expressly stated to be a waiver of a specified right or obligation under this Agreement.
15.1 Only a written request received at Hyperlink's main office, to terminate Hosting and Application Services relieves the Customer of the obligation to pay the required monthly fees. Written requests must be received 30 days in advance to apply the termination for the upcoming billing cycle. Hyperlink will not accept terminations by telephone.
15.2 Hyperlink reserves the right to extirpate, delete and obliterate all Customer data, files, emails and other information that Hyperlink holds in computer storage once the Customer's account has been terminated by either party.
16.1 These terms and conditions and the relationship between the parties shall be governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand Courts.