e-Agent Web-Hosting and Related Services Terms and Conditions
These are the standard terms and conditions of supply of the e-Agent web-hosting and certain other services offered from time to time on the e-Agent Web Site at www.e-Agent.co.nz ("Services").
Please read these terms and conditions carefully. It is a condition of your use of the Services that you ("you") comply with these terms and conditions.
  • 1. Terms and Amendment Procedure
    • 1.1 Any reference in this AUP to e-Agent "Supplier" is a reference to e-Agent, Ltd:
      • 1.1.1 e-Agent Ltd, 199 Cashel Street Christchurch New Zealand if and to the extent that e-Agent is accessing e-Agent Ltd systems in order to assist e-Agent™ to supply the Services to you; and
      • 1.1.2 any third party service provider of e-Agent™, if and to the extent such third party services provider is supplying the Services to you on behalf of e-Agent™.
    • 1.2 This agreement commences on the date upon which e-Agent™ confirms to you by email or any other written medium that a Service has been activated ("Commencement Date").
    • 1.3 The parties agree that the initial period that e-Agent™ or its Supplier will supply the Services/s to you for the "Initial Period" specified in the written confirmation by e-Agent™ to you of receipt of payment by you of the Plan Cost applicable to the Services for the Initial Period ("Initial Period Payment Confirmation"). Thereafter, the Service/s will be automatically renewed indefinitely for the same period as the period specified in the Initial Period Payment Confirmation (each a "Renewal Period") unless you have terminated the provision of any Service/s in accordance with clause 14, upon your payment of the applicable renewal fees and charges prior to the expiry of the relevant period and subject to the terms and conditions of this agreement.
    • 1.4 We may vary these terms (including the Acceptable Use Policy or the Privacy Policy referred to in clause 5 below), the amount we charge for any Service, or the terms of the operation of any Service, at any time by general notice on a page of the Internet referred to on the home page of our Web Site at www.e-Agent.co.nz. Changes other than price changes will become effective upon publication of the notice. Where we vary the prices for any Service, we will give at least 30 days notice of the change by the same means, and the new prices will apply at the end of that period.
    • 1.5 If you use a Service after publication of any change in accordance with clause 1.4, your use will constitute acceptance of the amended terms.
    • 1.6 Following the Commencement Date, you may at any time upgrade the Plan applicable to a Service acquired by you by written notice to e-Agent™ in accordance with the process specified in the Initial Period Payment Confirmation ("Upgraded Service"). You agree that e-Agent™ will supply you with the Upgraded Service in accordance with this agreement and you agree to at all times comply with this agreement in connection with any Upgraded Service (including, without limitation, paying any additional, or increased fees or charges that may apply to any Upgraded Service).
    • 1.7 These terms constitute the agreement in its entirety and supersede all prior agreements.
  • 2. Services
    • 2.1 You shall at all times keep your password and log-in details secure. You agree that e-Agent™ cannot and does not know whether you have given access to your account and to the Services to other people (whether knowingly or not). You therefore agree that you are totally responsible for:
      • 2.1.1 when and how your account with e-Agent™ is used (including, without limitation, if your Accounts and/or the Services are terminated pursuant to clause 14 (if applicable)); and
      • 2.1.2 the actions of the people (if any) you allow to access, or transmit information through the systems of e-Agent™ or its Supplier, or otherwise utilise the Services.
    • 2.2 You agree that you are solely responsible for any of your content residing on the Supplier's servers.
    • 2.3 You agree that you are solely responsible for the back-up of your content and any other files (including, without limitation, email files, if applicable) unless otherwise agreed with e-Agent™.
    • 2.4 You agree that data transfer bandwidth usage and/or disk space usage shall not exceed the number of megabytes per month for the Services ordered by you, as published by e-Agent™ on its website located at www.e-Agent.co.nz (“Agreed Megabytes”). e-Agent™ shall monitor your usage of the Services. If data transfer bandwidth usage and/or disk space usage exceeds the Agreed Megabytes, you agree that you will be responsible for purchasing any additional data transfer bandwidth and/or disk space that you determine may be required at your own cost and that your failure to do so may result in the Services ceasing to operate or function. In addition you also agree that if at any time your data transfer bandwidth usage and/or disk space usage exceeds the Agreed Megabytes, e-Agent™ or its Supplier may charge you additional fees with respect to the additional megabytes used by you, suspend any and all Services, or, in the case of e-Agent™, terminate this agreement. In the event that any such action is taken by e-Agent™ or its Supplier (as the context requires), you agree that you shall not be entitled to a refund of any fees paid in advance of such corrective action.
    • 2.5 You agree that e-Agent™ or its Supplier may be required to perform maintenance to maintain the continuous operation of the Supplier’s servers, which maintenance may affect the operation or functioning of the Services. We will attempt to provide you with notice of the maintenance downtime, except when circumstances beyond the control of e-Agent™ or its Supplier prevent either e-Agent™ or its Supplier (as the context requires) from doing so. You also agree that e-Agent™ or its Supplier may also be required to suspend the Services, or disconnect or deny you access to the Services, in accordance with clause 14.1.2.
  • 3. Billing and Payment
    • 3.1 You must pay for the Services in accordance with the prices and charges published by e-Agent™ on its website located at www.e-Agent.co.nz (as amended from time to time in accordance with clause 1.4).
    • 3.2 You must pay all prices and charges for the Services and other amounts incurred by you or any designated users or incurred as a result of any use of the Services (whether authorised or not) in advance, and, in accordance with the billing provisions specified in the Initial Period Payment Confirmation.
    • 3.3 Prices and charges published on e-Agent™' Web Site are inclusive of any government taxes or charges unless otherwise stated.
    • 3.4 You consent to e-Agent™ or its Supplier obtaining a credit reporting agency report containing personal information about you (as well as information concerning commercial creditworthiness and activities) for the purpose of assessment by e-Agent™ of an application for credit (whether commercial or personal) or for the purpose of the collection of payments that are overdue.
    • 3.5 You agree that in the event of any action being taken by e-Agent™ to recover any overdue amount due to it under this agreement and/or the Initial Period Payment Confirmation (as evidenced for example by, without limitation, your credit card company notifying e-Agent™ of you disputing the payment of, or refusing to pay such charge, or where your credit card payment has been declined or reversed), any costs incurred by e-Agent™ in recovering the debt (including, without limitation, any legal expenses (on a solicitor/client basis), collection agency charges or any other reasonable associated costs incurred by e-Agent™) are payable by you to e-Agent™ and shall be recoverable by e-Agent™ as a separate debt.
  • 4. Cancellation
    • 4.1 You may cancel a Service/Services in accordance with this clause 4. This clause 4 shall not apply where you terminate this agreement and cease obtaining the Services from e-Agent™ pursuant to clause 14.6.
    • 4.2 You may cancel a Service/s in accordance with clause 14.3. Where you cancel a Service/s in accordance with clause 14.3, you shall be required to pay e-Agent™ the following cancellation fees:
      • 4.2.1 if you cancel the Service/s within 30 days of the Commencement Date, or, within 30 days of the date upon which e-Agent™ confirms by email or other written medium that the Service/s has been renewed for an additional period, as referred to above in clause 1.3 (each a “Renewal Commencement Date”), you will pay e-Agent™ a cancellation fee equal to the Set Up Fee applicable to the Service/s, which e-Agent™ may deduct from any payments you have previously paid e-Agent™ with respect to the Service/s; and
      • 4.2.2 if you cancel the Service/s at any time following 30 days from the Commencement Date or Renewal Commencement Date (as the context requires), you will pay e-Agent™ a cancellation fee equal to:
        • 4.2.2.1 the Set Up Fee applicable to the Service/s; and
        • 4.2.2.2 an administrative fee which shall be either a fee of AUD$25, or, a fee equivalent to the Plan Cost payable with respect to the Services for two months, whichever is the greater, which e-Agent™ may deduct from any payments you have previously paid e-Agent™ with respect to the Service/s.
    • 4.3 Where you have cancelled any Service/s pursuant to clause 4.2, subject to your payment of the applicable cancellation fee as specified in clause 4.2, and any payments required by clause 14.7, e-Agent™ will refund you for any other payments you have previously paid to e-Agent™ with respect to the Service/s being cancelled unless otherwise expressed to the contrary in this agreement (including, without limitation, pursuant to clauses 2.4 or 5.1).
  • 5. Acceptable Use Policy and Privacy Policy
    • 5.1 You agree to comply with e-Agent™’ Acceptable Use Policy, as varied from time to time by e-Agent™ in accordance with clause 1.4 (“AUP”). If we receive notice of, or otherwise become aware that you have failed to comply with any provision of this AUP, in addition to any other rights of e-Agent™ under this agreement, you agree that e-Agent™ or its Supplier may immediately take corrective action, including suspension of any and all Services, or, in the case of e-Agent™, terminating this agreement. In the event that any such corrective action due to a violation of the AUP occurs, e-Agent™ shall not refund to you any fees paid to e-Agent™ prior to such corrective action.
    • 5.2 You agree to comply with e-Agent™’ Privacy Policy, as varied from time to time by e-Agent™ from time to time in accordance with clause 1.4 (“Privacy Policy”).
    • 5.3 You agree that the AUP and the Privacy Policy form part of the terms and conditions of this agreement.
  • 6. Supplier Agreements and Licences
    • 6.1 You agree that e-Agent™ or its Supplier shall maintain and control ownership of all IP numbers and addresses that may be assigned to you by e-Agent™’ Supplier and e-Agent™ or its Supplier may, in each’s respective sole discretion, change or remove any and all such IP numbers and addresses.
    • 6.2 You expressly grant to e-Agent™ and its Supplier a licence to cache the entirety of your Web Site, including data and content supplied by you and/or third parties, hosted by e-Agent™’ Supplier under this agreement. You agree that you shall be responsible for obtaining any agreements and/or consents required of any third party in connection with the grant of this licence to e-Agent™ and its Supplier. You also agree that any such caching is not an infringement of any of your intellectual property rights or any third party’s intellectual property rights.
  • 7. Supplier’s Equipment
    • 7.1 You acknowledge that e-Agent™’ Supplier is acting only as a reseller and/or provider of any hardware, software, circuit and equipment (collectively, the “Equipment”) offered to you under this agreement that was manufactured by a third party.
    • 7.2 You agree that you shall only be entitled to use any Equipment provided by e-Agent™’ Supplier in connection with any permitted use of the Services as specified in this agreement or as notified to you by e-Agent™ from time to time.
    • 7.3 You shall not resell, transfer, export or re-export any Equipment, or any technical data derived from any Equipment, in violation of any law applicable to you.
    • 7.4 You agree that:
      • 7.4.1 neither e-Agent™ nor its Supplier shall be responsible for any changes in the Services that cause Equipment to become obsolete, require modification or alteration, or otherwise affect the performance of the Services;
      • 7.4.2 any malfunction or manufacturer’s defects of Equipment either sold or provided by e-Agent™ or its Supplier to you or purchased directly by you used in connection with the Services will not be deemed a breach of the obligations by e-Agent™ and/or its Supplier under this agreement; and
      • 7.4.3 any rights or remedies you may have regarding the performance or compliance of Equipment are limited to those rights extended to you by the manufacturer of such Equipment.
  • 8. Your Warranties
    You warrant that:
    • 8.1 you have not entered into this agreement or obtained any Services on the basis of, or in reliance on, any statement or representation (whether made orally or in writing and regardless of the medium used) made by either e-Agent™ or its Supplier concerning this agreement or any of the Services, other than any statement or representation contained in this agreement;
    • 8.2 you are at least 18 years of age;
    • 8.3 you will conduct such tests and computer virus scanning as may be necessary to ensure that any data uploaded or downloaded to and from the Server of e-Agent™’ Supplier by you does not contain any computer virus and will not in any way, corrupt the data or systems of any person (including, without limitation, e-Agent™ or its Supplier);
    • 8.4 your use of the Services will not at the Commencement Date or thereafter, infringe the intellectual property or other proprietary rights of e-Agent™, its Supplier or any third party; and
    • 8.5 you will otherwise at all times use the Services in accordance with this agreement (including, for the avoidance of doubt, the AUP or the Privacy Policy);
  • 9. Our Disclaimer of Warranties
    • 9.1 You acknowledge and agree that neither e-Agent™ nor its Supplier exercises any control over, and accepts no responsibility for, the content of the information passing through the Supplier’s host computers, network hubs and points of presence or the Internet, nor, for any products and/or services that you may determine to offer for supply, or supply via your web site, the Internet or otherwise (“Your Products and Services”).
    • 9.2 To the extent permitted by law, neither e-Agent™ nor its Supplier, nor any employees, affiliates, agents, suppliers, third-party information providers, merchants, licensors nor the like (each a “Relevant Party”) of either e-Agent™ or the Supplier, make any warranties of any kind, either expressed or implied, statutory or otherwise, relating in any way to the subject matter of this agreement, including, but not limited to, warranties of merchantability or fitness for a particular purpose, or non-infringement for the Services or any equipment provided, and all such warranties are hereby excluded.
    • 9.3 In addition to clause 9.2, to the extent permitted by law, neither e-Agent™ nor its Supplier, or, any Relevant Party of either e-Agent™ or its Supplier:
      • 9.3.1 warrant that the Services will be uninterrupted or error free;
      • 9.3.2 warrant that the Services will be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorised access to the services or systems of e-Agent™ or its Supplier;
      • 9.3.3 make any warranty concerning the results that may be obtained from the use of the Services or as to the accuracy, reliability or content of any information services or merchandise contained in or provided through the Services.
    • 9.4 Neither e-Agent™ nor its Supplier shall be liable for the content or loss of any content, data or files (including, without limitation, email files, if applicable) transferred either to or from you or stored or backed-up by you or any of your customers via the Services.
  • 10. Indemnification
    You will indemnify and defend e-Agent™ and its Supplier and all directors, officers, employees, and agents of e-Agent™ and its Supplier (each an “Indemnified Party”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including but not limited to reasonable legal fees) incurred by any Indemnified Party arising out of, or relating to, Your Products and Services (if applicable) and/or the use of the Services by you, including the implementation of the AUP by e-Agent™, any action taken by e-Agent™ or its Supplier in accordance with the AUP, or, any breach or violation of the AUP. Such claims shall include, but shall not be limited to, claims based upon trademark, service mark, trade name, copyright and patent infringement, trademark dilution, tortious interference with contract or prospective business relations, unfair competition, defamation or injury to reputation, or other injuries or damage to business.
  • 11. Limitation of Liability
    • 11.1 You agree that neither e-Agent™ nor its Supplier shall be liable for any indirect, incidental, special or consequential damages, or loss of profits, revenue, data or use, suffered by you or any third party, whether in an action in contract, tort or strict liability or other legal theory, even if e-Agent™ or its Supplier (as the case may be) has been advised of the possibility of such damages.
    • 11.2 Subject to clause 11.1, you further agree that the aggregate liability of e-Agent™ and its Supplier for any damages, losses and causes of actions whether in contract or tort (including negligence or otherwise) shall not exceed the actual dollar amount paid by you for the Service which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose.
    • 11.3 You agree that where any statute implies any term into this agreement, and that statute avoids or prohibits provisions in a contract excluding or modifying the application of or liability under such a term, then the term will be taken to be included in this agreement. However, the liability of e-Agent™ and its Supplier for any breach of the term will, if permitted by that statute, be limited, at our option, to the re-supply of the services again; or payment of the cost of having the services supplied again.
    • 11.4 We acknowledge that some jurisdictions do not allow the exclusion or limitation of warranties or incidental or consequential damages, so that the above limitations or exclusions may not apply to you. In such jurisdictions, the liability of e-Agent™ and its Supplier (and the liability of any director, officer, employee, agent, affiliate, content provider or service provider of e-Agent™ and its Supplier) shall be limited to the greatest extent permitted by applicable law.
  • 12. Intellectual Property
    • 12.1 You acknowledge that all right, title and interest in any and all technology, including the software that is part of or provided with the Services and any trademarks or service marks of e-Agent™ or its Supplier (collectively, “Our Intellectual Property”) is vested in e-Agent™, its Supplier and/or the licensors of e-Agent™ or its Supplier (as the context requires).
    • 12.2 Unless otherwise specifically provided in this agreement, you agree that you shall have no right, title, claims or interest in or to Our Intellectual Property.
    • 12.3 You may not copy, modify or translate any of Our Intellectual Property or related documentation, or decompile, disassemble or reverse engineer any of Our Intellectual Property, to use it other than in connection with the Services, or grant any other person or entity the right to do so.
    • 12.4 Unless otherwise specifically permitted by this agreement, you are not authorised to distribute or to authorise others to distribute any of Our Intellectual Property in any manner without the prior written consent of e-Agent™ and/or its Supplier (as the context requires); provided, however, that nothing in this clause 12.4 shall preclude you from using Our Intellectual Property as incorporated in the Services. This clause 12.4 shall not operate to extinguish, restrict, vary, waive or affect in any manner whatsoever any right, title or interest which you may now have or hereafter acquire in, or in relation to, the third-party software that is part of or provided with the Services solely to the extent such third-party licensors publicly provide such rights, title or interest in the third-party software to you.
  • 13. Confidential Information
    • 13.1 You acknowledge that, in the course of the performance of this agreement, you may have access to customer information and communications, including proprietary information claimed to be unique, secret, or confidential, and which constitutes the exclusive property and trade secrets of e-Agent™ or its Supplier ("Confidential Information"). You agree to maintain the confidentiality of the Confidential Information and to use the Confidential Information only to the extent necessary for legitimate business uses in connection with this agreement. Upon request of e-Agent™ or on termination or expiration of this agreement, you shall return the Confidential Information of e-Agent™ or its Supplier then in your possession to e-Agent™ or its Supplier. Nothing in this agreement shall prohibit or limit your use of information which (a) is now, or hereafter becomes, publicly known or available through lawful means; (b) is rightfully in your possession, as evidenced by your records; (c) is disclosed to you without confidential or proprietary restriction by a third party who rightfully possesses and rightfully discloses the information; (d) is independently developed by you without any breach of this agreement; (e) is the subject of a written permission to disclose provided by e-Agent™ and/or its Supplier (as the context requires); or (f) is required by law to be disclosed.
    • 13.2 You agree that e-Agent™ may disclose your account and other information in accordance with the AUP and Privacy Policy.
  • 14. Suspension or Termination of this agreement
    • 14.1 In addition to any other rights of suspension under this agreement, e-Agent™ or its Supplier may from time to time without notice to you suspend a Service, or disconnect or deny you access to any Service:
      • 14.1.1 if you fail to comply with any provision in this agreement (including failure to pay charges due, or, for the avoidance of doubt, any provision in the AUP or Privacy Policy), or do, or allow to be done, anything which in our opinion may have the effect of jeopardising the operation of the Service, until the breach (if capable of remedy) is remedied to the satisfaction of e-Agent™ or its Supplier (as the context requires);
        14.1.2 during any technical failure, modification or maintenance involved in the Service provided that we will use reasonable endeavours to procure the resumption of the Services as soon as reasonably practicable.
        Notwithstanding any suspension of any Service under this clause 14.1, you shall remain liable for all charges due at the commencement of the suspension period throughout the period of suspension.
    • 14.2 In addition to any other rights under this agreement, you agree that e-Agent™ may without notice to you remove, amend or alter your data upon being made aware of: 14.2.1 any court order, judgment, determination or other finding of a court or other competent body, that the data is illegal, defamatory, offensive or in breach of a third party's rights;
      • 14.2.2 if directed to do so by the Australian Broadcasting Authority under a "take down notice", in accordance with the Broadcasting Services Amendment (Online Services) Act 1999 (as amended or replaced from time to time) if we determine (acting reasonably) that such Act applies to you; or
      • 14.2.3 an outside party or outside device disrupting or attempting to disrupt the Services.
    • 14.3 In addition to any other rights of termination under this agreement. e-Agent™ may terminate this agreement and cease providing the Services to you at any time on 30 days written notice to you. You may terminate this agreement and cease obtaining any Services from e-Agent™, or, terminate any Service/s being provided by e-Agent™ to you, on 30 days’ written notice to e-Agent™ in accordance with the process specified in the Initial Period Payment Confirmation.
    • 14.4 In addition to clause 14.3, and, in addition to any other rights of termination under this agreement, e-Agent™ may terminate agreement and cease providing the Services to you at any time on written notice to you if e-Agent™ has at any time suspended any Service or disconnected or denied access to any Service under clause 14.1.1.
    • 14.5 Where e-Agent™ supplies a Service to you through a Supplier, e-Agent™ may terminate and replace such Supplier at any time without notice to you. e-Agent™ will, however, endeavour to replace such Supplier:
      • 14.5.1 with no or minimal disruption to the supply of the Services; and
      • 14.5.2 on substantially the same terms as are set out in this agreement.
    • 14.6 Where e-Agent™ is unable to comply with clause 14.5.2, you may terminate your agreement with e-Agent™ and cease obtaining any Service/s from e-Agent™ within 30 days’ of being notified of the new terms on which e-Agent™ intends to supply the relevant Service/s to you. Where you terminate your agreement with e-Agent™ under this clause 14.6, e-Agent™ will refund you any fees previously paid by you on a pro rata basis.
    • 14.7 In addition to any other obligation under this agreement, if you terminate any Service or, either e-Agent™ or you terminate this agreement:
      • 14.7.1 you must pay all outstanding charges (including, without limitation, data transfer bandwidth over-usage charges and/or disk space over-usage charges) to e-Agent™ immediately;
      • 14.7.2 other than if the termination occurs under clause 14.6, you must pay any charges that e-Agent™ incurs from its Supplier in relation to any charges that e-Agent™’ Supplier incurs in connection with migrating your data or retrieving any of your emails following termination of this agreement;
      • 14.7.3 any licence issued to or by you in relation to the Services will cease from the date of termination; and
      • 14.7.4 e-Agent™ or its Supplier may delete all data from any storage media.
  • 15. Force Majeure
    Neither e-Agent™ nor its Supplier shall be liable for failure or delay in performing its obligations under this agreement if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services.
  • 16. Miscellaneous
    • 16.1 The law in force in New Zealand governs this agreement and the transactions contemplated by this agreement.
    • 16.2 In the event it is necessary for e-Agent™ to enforce its rights under this agreement, you agree to pay all fees incurred by e-Agent™ (including, but not limited to, legal fees and collection agency fees)
    • 16.3 This agreement shall be binding upon and inure to the benefit of you, your respective successors and assigns. You may not resell any Services or assign your rights and obligations under this agreement without the prior written consent of e-Agent™.
    • 16.4 A provision of, or a right created under this agreement, may not be waived except in writing signed by the party granting the waiver, or varied except in writing signed by the parties.
    • 16.5 If any provision of this agreement is held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this agreement shall remain in full force and effect.