GAUK Hosting is a brand of GAUK Media Ltd Registered in New Zealand. (hereinafter referred to as “gauk Hosting”), a provider of internet related services including connectivity, co-location, dedicated and shared server, website hosting and domain name services. These Conditions set out the terms under which gauk Hosting will provide Services to the Client (as such terms are defined below). These Conditions should be read in conjunction with the acceptable user policy (below) These Conditions will be supplemented from time to time by order confirmation forms setting out specific details relating to services requested by the Client and, as so supplemented, will apply to the exclusion of any other terms and conditions including any which the Client may attempt to introduce. GAUK Hosting reserves the right to change, add, subtract or in way alter these Conditions without the prior consent of the Client.
To the extent that the Client is deemed to be a consumer then these Conditions will not affect the rights of the Client as a consumer and will apply to the extent that applicable law allows.
By logging into your account or updating files you are deemed to have accepted these terms and conditions
These Conditions are divided into five parts, however all parts may not apply in every case:
Part 1 applies in all cases.
Part 2 applies where gauk Hosting is to provide software and/or equipment in connection with the Services.
Part 3 applies where the Services include ongoing support and maintenance services.
Part 4 applies where the Services include domain name registration services.
Part 5 applies to the gauk Media Hosting and gauk Media Hostingplus product.
Part 1: General Provisions
In these Conditions, the following expressions will have the following meanings, unless inconsistent with the context:
the agreement between gauk Hosting and the Client for the provision of Services formed by these Conditions and the Order Confirmation(s)
any Software and/or Equipment
in respect of either party, a subsidiary or holding company of that party or any subsidiary of such holding company and the terms “subsidiary” and “holding company”
a day which is not a Saturday or Sunday or public or bank holiday
9am to 5pm on each Business Day
data, text, images, graphics, videos, logos and other content and material, hardware or equipment provided by the Client in connection with the Agreement for use by gauk Hosting in providing the Services
as identified on the Order Confirmation(s)
the Client’s computer system upon which the Software is loaded or otherwise in connection with which the Services are provided
these conditions (in five parts) to be read in conjunction with the Order Confirmation(s)
any defect in systems having a material effect on the Client’s use or operation of the Services or any failure by any Ancillary System to comply with any term of Part 2 of these Conditions
those domain registration and other related services (if any) provided to the Client by gauk Hosting pursuant to the Agreement, as described on a relevant Order Confirmation
any hardware, cabling and/or other equipment provided to the Client by gauk Hosting in connection with the Agreement
the charges due to gauk Hosting under the Agreement in relation to the Services, as set out on the Order Confirmation(s)
gauk Media Limited, registered in New Zealand (Company No. 21008713), whose registered office is at Level 6, 135 Broadway Newmarket
“Intellectual Property Rights”
any and all patents, trade marks, service marks, copyright, moral rights, rights in design, know-how, confidential information and all or any other intellectual or industrial property rights whether or not registered or capable of registration and whether subsisting in the United Kingdom or any other part of the world together with all or any goodwill relating to the same
generally accepted standards and codes of practice for use of the internet including but not limited to sending bulk unsolicited email, mail bombing or impersonating another person, organisation or website
the order confirmation form(s) submitted by gauk Hosting to the Client by email or otherwise in writing for the provision of the Services, in response to the Client’s order or request
gauk Media Limited, registered in New Zealand (Company No. 21008713), whose registered office is at Level 6, 135 Broadway Newmarket
those development, implementation, consultancy, hosting and other services (if any) provided to the Client pursuant to the Agreement, as described on a relevant Order Confirmation, together with any Support Services and Domain Services
any communications or other software provided to or made available to the Client by gauk Hosting in connection with the Agreement, but excluding Third Party Software
those support and maintenance services provided to the Client pursuant to the Agreement, as described on a relevant Order Confirmation
the hours during which gauk Hosting will provide the Support Services, as set out on a relevant Order Confirmation
“Third Party Software”
any software identified as third party software (if any) to be provided to the Client pursuant to the Agreement, as set out in a relevant Order Confirmation
“Use the Software”
to load the Software onto and store and run it on the Client System and/or Equipment in accordance with the terms of the Agreement
2.1 The headings used in the Agreement are inserted for convenience only and are not intended to be part of nor to affect the meaning or interpretation of any of the Agreement.
2.2 In the Agreement the masculine includes the feminine and the neuter, and the singular includes the plural and vice versa as the context shall admit or require.
2.3 The expression “person” means any individual, firm, body corporate, unincorporated association, partnership, government, state or agency of a state or joint venture.
2.4 In the event of a conflict between any of these Conditions and any Order Confirmation, the conflict will be resolved according to the following order of priority: these Conditions then the Order Confirmation.
2.5 The words “include”, “includes”, “including” and “included” will be construed without limitation unless inconsistent with the context.
2.6 The Agreement (as varied in accordance with its terms) forms the entire understanding of the parties in respect of the matters dealt within it and supersedes all previous agreements, understandings and negotiations between the parties.
2.7 The parties do not intend that any of the terms of the Agreement will be enforceable by virtue of the Contracts (Rights of Third Parties) by any person not party to it.
2.8 References in these Conditions to clauses means clauses of these Conditions. References in these Conditions to the provisions of statutes or statutory instruments are deemed to include those provisions as amended or substituted.
3.1 The Services are described or referred to on the Order Confirmation(s). gauk Hosting agrees to supply Services to the Client on the following conditions, these conditions are not an offer to provide service but a statement of the terms on which we would provide them.
3.2 gauk Hosting will use its reasonable endeavours to provide the Services in accordance with any timescale set out on the Order Confirmation(s), but will not be liable to the Client where, using those endeavours, it fails to meet any timescale.
3.3 gauk Hosting will not be liable for any failure to provide the Services resulting from any breach by the Client or its employees, agents or subcontractors of the Agreement.
3.4 gauk Hosting will not be obliged to provide any services not referred to on the Order Confirmation(s). Furthermore, gauk Hosting cannot provide the Services where the Client makes use of what in the sole discretion of gauk Hosting can be deemed as incompatible communication systems
3.5 The terms of the Agreement form the entire agreement between gauk Hosting and the Client in relation to the Services and all other understandings, agreements, warranties, conditions, terms or representations, whether express or implied, statutory or otherwise, are excluded to the fullest extent permitted by law. The Client may not rely upon any representation made or given by any employee of gauk Hosting prior to the Agreement being entered into unless confirmed in the Agreement.
3.6 gauk Hosting reserves the right at any time and from time to time to improve, correct or otherwise modify all or any of the Services (including substituting Software and/or Equipment. gauk Hosting will endeavour to give the Client reasonable notice of any such modification, where this is reasonably practicable.
3.7 Without prejudice to its other rights and remedies, gauk Hosting may at its sole discretion suspend the provision of the whole or any part of the Services (temporarily or permanently) and will have no liability to provide the Services on the occurrence of any of the following events:
3.7.1 notified or unscheduled upgrade or maintenance of gauk Hosting’ IT systems;
3.7.2 issue by any competent authority of an order which is binding on gauk Hosting which affects the Services;
3.7.3 if the Client fails to pay any Fees or any other sums owing to gauk Hosting by the Client when they fall due;
3.7.4 if an event occurs and gauk Hosting deem it to be appropriate to terminate the Agreement;
3.7.5 if the bandwidth or computer memory used by the Client in relation to the Services exceeds any agreed or stipulated level and gauk Hosting determines in its sole discretion that suspension is necessary to protect all and any internet solutions provided by gauk Hosting from time to time;
3.7.6 if the size of an email, mailing list or cron job used by the Client exceeds any agreed or stipulated size, level or frequency and gauk Hosting determines in its sole discretion that suspension is necessary to protect all and any internet solutions provided by gauk Hosting from time to time; or
3.7.7 failure or deficiencies in the Client System referring but not limited to hardware, server corruption and security breaches
3.7.8 failure by the Client to adhere to any of the provisions outlined in gauk Hosting’s acceptable usage policy.
Where gauk Hosting suspends provision of the Services in accordance with clause 3.7.3, it will only be obliged to recommence provision during Business Hours and once the Client has paid all relevant outstanding sums in clear funds together with any relevant reinstatement fee as published from time to time by gauk Hosting and has accepted any revised payment terms requested by gauk Hosting (such as payment by direct debit).
3.8 The Client will provide to gauk Hosting those Client Materials identified on the Order Confirmation(s) within a reasonable time period taking account of the obligations of gauk Hosting under the Agreement.
3.9 The Client warrants that the Client Materials will be accurate in all material respects and will not knowingly include material which is illegal, the accessing holding transmitting or supplying of which would be a criminal offence or which is otherwise unlawful or in breach of any applicable law or code of practice applying to such materials. In particular, the Client warrants that all necessary licences, consents and waivers (including those from rights owners, performers and other contributors) are obtained and paid for by the Client. Without prejudice to the foregoing, gauk Hosting may decline to use any Client Materials on any reasonable grounds.
3.10 The Client will supply in a timely manner all information, instructions, review and feedback reasonably required by gauk Hosting in connection with the performance of its obligations under the Agreement and will appoint a representative who is fully empowered and authorised to provide the same.
4.1 The Client acknowledges that, given the nature of such services, gauk Hosting cannot guarantee that the Services, when delivered via the internet, will be uninterrupted or error free.
4.2 To the fullest extent permitted by law and save as provided elsewhere in the Agreement, the Services and any Client Systems and Ancillary Systems are provided by gauk Hosting to the Client on an “as is” and “as available” basis and no warranty or representation (express or implied) of any kind are given in connection with the Agreement including as to satisfactory quality and fitness for a particular purpose. In particular, gauk Hosting gives no warranty or representation that:
4.2.1 the Services will meet the Client’s requirements;
4.2.2 the Services will be provided on an uninterrupted, timely, secure or error-free basis; or
4.2.3 any results obtained from use of the Services will be accurate, complete or current.
4.3 gauk Hosting warrants that it will provide the Services with reasonable care and skill. gauk Hosting will not be liable for a breach of such warranty unless the Client notifies gauk Hosting in writing of such failure within 14 days of the Client becoming aware of the failure.
4.4 If the Client makes a valid claim against gauk Hosting based on a failure by gauk Hosting to comply with the warranty set out in clause 4.3 gauk Hosting may, at its option, take such steps as it deems necessary to remedy such failure or refund such part of the Fees as relates to such Services, provided that the liability of gauk Hosting under such warranty will in no event exceed one and a quarter times the amount of the Fees paid to gauk Hosting by the Client (excluding VAT and expenses) in the 12 month period prior to the date on which the Client makes the claim. If gauk Hosting complies with this clause, it will have no further liability for a breach of the said warranty.
5.1 The Client agrees that it will:
5.1.1 immediately notify gauk Hosting on becoming aware of any unauthorised use of all or any of the Services and/or relevant part of the Client System;
5.1.2 not use the Services, Ancillary Systems and/or Client System or allow them to be used for any unlawful purpose or for the publication, linking to, issue or display of any unlawful material (including any pirated software or any material which is obscene, pornographic, threatening, malicious, harmful, abusive, defamatory or which breaches the rights including Intellectual Property Rights of any third party or which is or encourages criminal acts or contains any virus, worm, trojan horse or other harmful code) whether under English law or regulation, the laws or regulations of the Client’s country or any other place where the results of such purpose or the material in question can be accessed;
5.1.3 not use the Services, Ancillary Systems and/or Client System or allow them to be used for the publication, web forwarding, linking to issue of or display of any material which in the absolute discretion of gauk Hosting may harm gauk Hosting or any of its Associated Companies or clients or bring gauk Hosting into disrepute or which calls into question any action taken by gauk Hosting on the Client’s behalf;
5.1.4 not use the Services, Ancillary Systems and/or Client System or allow them to be used in breach of good Netiquette practices;
5.1.5 remove or prevent access to any material hosted on any of the Equipment and/or Client System which causes or is likely to cause the Client to be in breach of the Agreement;
5.1.6 ensure that it has all necessary consents, permissions and licences to make use of the Services including registration and appropriate consents and approvals under the Data Protection Act 1998;
5.1.7 not provide any technical or other information obtained from gauk Hosting and/or relating to the Services to any person which the Client is aware or ought reasonably be aware may directly or indirectly lead to a breach of any law or regulation;
5.1.8 not, in breach of good Netiquette practices, use any service provided by any third party (including an internet web site and/or email) for the publication, linking to, issue or display of any material which refers to an internet web site hosted by gauk Hosting or any other products or services offered by gauk Hosting from time to time without gauk Hosting’ prior written consent;
5.1.9 ensure that all material or data hosted by gauk Hosting on any web site operated by the Client from time to time or communicated through such site or using the Client System is checked for viruses and other harmful code and has appropriate security patches applied;
5.1.10 save as provided in any Order Confirmation, be responsible for keeping regular and full back ups of all material and data hosted by gauk Hosting on any web site or other system operated by the Client from time to time including the Client System and/or Ancillary Systems;
5.1.11 comply with any security policy notified to it from time to time by gauk Hosting and, in particular, ensure that all passwords and user names provided to it by gauk Hosting are at all times kept confidential, used properly and not disclosed to unauthorised people. If the Client has any reason to believe that any password or user name has become known to someone not authorised to use it or is being or is likely to be used in an unauthorised way or of any other breach of security then the Client will inform gauk Hosting immediately;
5.1.12 independently monitor its bandwidth in relation to the use of Services and report to gauk Hosting any use of bandwidth over and above those agreed or stipulated levels as detailed on the gauk Hosting website at the time of purchase. Exceeding stipulated levels will incur additional fees as noted in clause 6.1.3;
5.1.13 be entirely liable for all activities conducted and charges incurred under its passwords and user names whether authorised by it or not and the Client acknowledges that gauk Hosting shall not be liable for any loss of confidentiality or for any damages arising from the Client’s inability to comply with these Conditions;
5.1.14 ensure that the Client obtains and maintains insurance over all parts of the Client System which are located on the premises of gauk Hosting or any of its Associated Companies and to provide evidence that such insurance is in place, upon gauk Hosting’s demand;
5.1.15 ensure that all communication details which it provides to gauk Hosting are at all times true, current, accurate and complete. The Client will promptly notify gauk Hosting of any change to such details and acknowledges that gauk Hosting will not be liable for any loss suffered or incurred by the Client as a result of its failure to notify such changes to gauk Hosting; and
5.1.16 ensure that its systems (including the Client System) meet any minimum system specifications notified to the Client from time to time.
5.2 The Client acknowledges that it has appropriate knowledge of how the internet functions, the systems and products provided to it in connection with the Agreement and what types of use and content are and are not acceptable, some of which are referred to in clause 5.1.2. The Client acknowledges that gauk Hosting shall have no obligation to:
5.2.1 train the Client or its staff on its use of the Services or any Ancillary System;
5.2.2 manipulate any material which the Client wishes to and/or does post on any web site or other system it operates (including any Client System) or any communication which it issues or sends in connection with any Services; or
5.2.3 validate, vet or edit such material for usability, legality, content or correctness.
The Client also acknowledges that the services and products provided by gauk Hosting are standard packages which are not tailored to specific requirements of the Client, unless confirmed in writing by gauk Hosting to the contrary.
5.3 The Client will promptly provide to gauk Hosting and/or its consultants, employees and agents such information and assistance as they may reasonably require in order to be able to carry out the Services and, where relevant, deliver and install any Ancillary Systems.
5.4 The Client will procure all necessary rights from third parties (including intellectual property licences of computer software and website content including but not limited to ringtones, and music and any other relevant media which are from time to time required in order for gauk Hosting to be able legally to provide the Services.
5.5 If, in Softlayer’s opinion, the Client is in breach of the provisions of clauses 5.1.2 to 5.1.4 then gauk Hosting may without prejudice to its other rights and remedies immediately by written notice to the Client:
5.5.1 suspend provision of the Services;
5.5.2 terminate the Agreement.
gauk Hosting may also notify appropriate public authorities (governmental or otherwise including the police or other enforcement authority) of any such breach, where it deems necessary.
5.6 Where as part of the Services the Client is entitled (having obtained gauk Hosting’s prior written consent) to resell the whole or any part of the Services to a third party then the Client will:
5.6.1 procure such third party’s compliance with and acceptance of these Conditions;
5.6.2 be fully responsible for the acts and omissions of any such third party; and
5.6.3 indemnify gauk Hosting for any losses it suffers as a result of such acts or omissions.
6.1 The Fees are payable to gauk Hosting subject to the following conditions:
6.1.1 Fees payable monthly or yearly will be paid in advance and will not be refundable in whole or part if the Agreement or relevant part is terminated during the period to which the payment relates;
6.1.2 any set up fee will (unless stated to be included within later payments) be payable immediately;
6.1.3 additional Fees will become payable if the Client exceeds agreed or stipulated bandwidth use levels. In the event that the Client’s monthly data allowance exceeds that specified in the service paid for, Webfusion Limited do not prevent any further data usage. Instead, customers will be charged the standard rate of £2.00 per Gigabyte of additional data used. It is the responsibility of Clients to maintain and monitor their own data usage and no notifications will be sent by Webfusion Limited in this regard. Clients should be advised that the current quoted rate is subject to change without notice.
6.2 Any total sum for the fees set out in an Order Confirmation is (unless stated in the Order Confirmation to be a fixed and firm amount) an estimate of the fees only and not a fixed price quotation.
6.3 Any sums payable by the Client to gauk Hosting under the Agreement are exclusive of value added tax or any similar taxes, levies or duties, which will be added to such sums and be payable by the Client at the appropriate rate.
6.4 The Client agrees to pay gauk Hosting’ invoices within 7 days of invoice due date. If invoices are not settled in full by then, the Client will without prejudice to its other rights and remedies (including the right to suspend the Services under clause 3.8.3) be liable to pay interest on any sum outstanding from the due date for payment at the annual rate of 6% above the base lending rate from time to time of Bank of Scotland plc accruing on a daily basis until payment is made whether before or after any judgment.
6.5 All sums payable to gauk Hosting under the Agreement must be paid in full with no set off or deduction.
6.6 gauk Hosting has a general and particular lien over the Client System until all claims and money payable by the Client to gauk Hosting on any account whatsoever have been received in full clear funds. If the Client fails to discharge any lien within a reasonable time from the date of notice of exercise then the Client System may be sold in or towards satisfaction of that lien and gauk Hosting will account to the Client for any excess.
6.7 gauk Hosting may make a search in relation to the Client with a credit reference agency (and make other credit enquiries from time to time), keep a record of that search and enquiries, and share that information with third parties. gauk Hosting may also make enquiries about the principle directors/proprietors of the Client with a credit reference agency.
6.8 Where the Client authorises payment of any of the Fees by credit and or debit card then gauk Hosting may deduct other amounts becoming payable to it under the Agreement from that credit or debit card without obtaining additional authorisation from the Client. For the avoidance of all doubt the Client must have an active credit or debit card stored on gauk Hosting’s systems for the duration of the Agreement.
6.9 Without prejudice to any other of its rights and remedies, gauk Hosting will be entitled to remove the Client’s data from its systems and any Equipment and/or put the Equipment to any use other than the Client’s if any amount due under the Agreement is not paid within 14 days of its due date for payment. gauk Hosting is not required to back up such data or return the same to the Client prior to any such removal or following termination of the Agreement.
6.10 gauk Hosting will not refund to the Client the cost of registering a domain name after the Client has submitted a domain name application form provided that the domain name has been registered with the appropriate registrar. This is due to the bespoke nature of domain names.
7.1 Each party will (unless contrary to law):
7.1.1 keep confidential all information obtained from the other under or in connection with the Agreement (“Information”);
7.1.2 not disclose any Information to any third party without the prior written consent of the other except to such persons and to such extent as may be strictly necessary for the performance of the Agreement;
7.1.3 not use any Information otherwise than for the purposes of the Agreement.
7.2 The provisions of clause 7.1 do not apply to Information which:
7.2.1 is or becomes public knowledge (otherwise than by breach of this clause); or
7.2.2 was in the possession of the party concerned without restriction as to its disclosure before receiving it from the disclosing party; or
7.2.3 is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
and nothing in this clause 7 prevents either party from disclosing any Information for a proper purpose to a public authority or any regulatory body, or to a court of law in New Zealand or elsewhere in legal proceedings, or to its senior management, its auditors, bankers, lawyers or other professional advisers.
7.3 The provisions of this clause 7 will continue to apply notwithstanding termination of the Agreement.
7.4 The Client, by entering into the Agreement, consents to gauk Hosting sending to the Client by whatever means gauk Hosting deems appropriate (whether by email or otherwise) information concerning new products and other services that gauk Hosting and its Associated Companies may from time to time offer.
8.1 The Client acknowledges and agrees that it will not own or acquire ownership of any Intellectual Property Rights in or relating to the Services or created in performing the Services and that it will have no rights in or to the Services other than the rights expressly granted by the Agreement.
8.2 The Client will indemnify and keep gauk Hosting indemnified from and against all costs (including the costs of enforcement), expenses, liabilities (including any tax liability), injuries, losses, damages, claims, demands, legal costs (on a full indemnity basis) and judgments which gauk Hosting incurs or suffers as a consequence of infringement of any Intellectual Property Right of any third party arising directly or indirectly from:
8.2.1 the provision by gauk Hosting of Services making use of information or specifications supplied by the Client;
8.2.2 the Client’s failure to procure all necessary rights from third parties which are from time to time required in order for gauk Hosting to be able legally to provide the Services; or
8.2.3 the use by gauk Hosting in connection with the Agreement of the Client System and the Client Materials.
8.3 No Intellectual Property Rights created or acquired by gauk Hosting will transfer or be assigned to the Client unless gauk Hosting and the Client have signed a written assignment document to that effect.
8.4 The Client shall keep the Ancillary Systems in good condition during the continuance of the Agreement and free of all charges, liens and encumbrances and protect it from any and all judicial process.
9.1 The provisions of this clause 9 and the provisions of clauses 4 and 24 set out the entire liability of gauk Hosting (including any liability for the acts or omissions of its consultants, employees, agents and authorised representatives) to the Client in respect of:
9.1.1 any breach of the Agreement; and
9.1.2 any representation, statement or tortious act or omission including negligence arising under or in connection with the Agreement.
9.2 Nothing in the Agreement excludes or limits the liability of gauk Hosting for death or personal injury caused by the negligence of gauk Hosting, fraud or a breach of the Sale of Goods Act.
9.3 Subject to clauses 9.2 the total liability of gauk Hosting in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of the Agreement is limited to:
9.3.1 $500 per breach for loss of or damage to tangible property; and
9.3.2 for any other kind of loss, one and a quarter times the amount of sums paid by the Client to gauk Hosting pursuant to the Agreement (excluding GST and expenses) during the preceding 12 month period.
9.4 gauk Hosting will not be liable to the Client in contract, tort, misrepresentation or otherwise (including negligence), for any indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever, or for any loss of profit, loss of business, loss of contract loss of revenue, depletion of goodwill or otherwise (whether direct or indirect), and whether or not caused by the negligence of gauk Hosting or its employees, agents or authorised representatives, which arises out of or in connection with the Agreement.
9.5 The Client acknowledges that the allocation of risk in the Agreement reflects the price paid for the Services and that it is not within the control of gauk Hosting how or for what purposes they are used.
9.6 Where the Client accesses gauk Hosting’ services from locations outside New Zealand, the Client does so, on the Client’s own initiative and is responsible for compliance with all and any applicable local laws.
The Client will fully indemnify and keep gauk Hosting and its Associated Companies, officers, partners, employees and agents fully indemnified from and against all actions, demands, costs (on a full indemnity basis), losses, penalties, damages, liability, claims and expenses (including legal fees) whatsoever incurred by it and arising from any of the following:
10.1 the Client’s breach of the Agreement, negligence or other default;
10.2 the operation or break down of any IT systems owned or used by the Client including the Client System but not the Equipment; or
10.3 the Client’s use or misuse of the Services.
Neither party is under any liability to the other party in respect of anything which, apart from this provision, may constitute a breach of the Agreement arising by reason of force majeure which means, in relation to either party, circumstances beyond the reasonable control of that party including acts of God, acts of any governmental or supra-national authority, war or national emergency, riots, civil commotion, fire, network failure, systems fault, unauthorised use or access to the IT systems of gauk Hosting or the Client, explosion, flood, epidemic, lock outs (whether or not by that party), strikes and other industrial disputes (in each case, whether or not relating to that party’s workforce), restraints or delays affecting shipping or carriers, inability or delay in obtaining supplies of adequate or suitable materials and currency restrictions, to the extent outside of its reasonable control.
12. Term and Termination
Without prejudice to the remaining provisions of this clause 12 and any other rights and remedies available to gauk Hosting:
12.1 gauk Hosting will provide the Services for the period of 12 months from the date of the relevant Order Confirmation or, where different, any other period of supply stated on the Order Confirmation (such period being termed the “Initial Period”) and will continue beyond that period, subject to termination by:
12.1.1 the Client upon serving 30 days’ written notice on gauk Hosting following completion of gauk Hosting’ prescribed template procedures for terminating the whole or any part of the Agreement (details of which can be obtained from gauk Hosting’ Customer Services Team); or
12.1.2 gauk Hosting serving 30 days’ written notice on the Client to expire at any time after the Initial Period.
12.2 gauk Hosting may immediately terminate the Agreement (or at its option, any part of it) by notice in writing to the Client if the Client fails to pay to gauk Hosting any sum due under the Agreement on the due date for payment.
12.3 Either party may terminate the Agreement (or, at its option, any part of it) forthwith by notice in writing to the other if the other party:
12.3.1 is in material breach of the Agreement and fails (where the breach is capable of remedy) to remedy the breach within 30 days of the receipt of a request in writing to remedy the breach, such request setting out the breach and indicating that failure to remedy the breach may result in termination of the Agreement;
12.3.2 becomes the subject of a voluntary arrangement under section 1 of the Insolvency Act;
12.3.3 is unable to pay its debts within the meaning of section of the Insolvency Act;
12.3.4 has a receiver, manager, administrator or administrative receiver appointed over all or any parts of its undertaking, assets or income, has passed a resolution for its winding-up, or has a petition presented to any court for its winding-up or for an administration order; or
12.3.5 has ceased or threatened to cease to trade.
12.4 Clients that have purchased the Services as Consumers have the right to cancel the Agreement within 7 days at no additional cost from either (a) the date the contract is formed; or (b) the date that the Client receives confirmation that the contract is formed from gauk Hosting or whichever is the later. For the purposes of this clause, the date the contract is formed shall be the date that the Client presses the ‘Order’ button thereby granting consent that the Service commences.
12.4.1 The Client can exercise their right to cancel by contacting gauk Hosting through our support site.
12.4.2 The Client will no longer have the right detailed in clause 12.4 when, gauk Hosting has commenced the Service with the Client’s consent. For the purposes of this clause the Client’s consent will be deemed to be given upon the Client pressing the ‘Order’ button.
12.4.3 If you do not wish to waive these rights, then gauk Hosting will be unable to commence the Service until the end of the relevant cooling off period which is 7 days.
13.Consequences of Termination
13.1 Termination of the Agreement is without prejudice to the rights and duties of either party accrued prior to termination.
13.2 The clauses of the Agreement which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination. 13.3 gauk Hosting will without notice remove the Client’s data from its systems and any Equipment following termination. For the purposes of this clause, the date of termination will be either the date that gauk Hosting receives authorisation from the Client instructing cancellation of account or the date of expiry of notice of termination served in accordance with these Conditions.
13.4 Upon termination of the Agreement, the Client will forthwith:
13.4.1 cease to use the Software, Equipment and Services;
13.4.2 erase the Software from the Client System and certify to gauk Hosting that this has been done;
13.4.3 return to gauk Hosting any hardware or other equipment loaned to the Client in connection with the Services or any other materials and equipment owned by gauk Hosting; and
13.4.4 pay all outstanding invoices raised by gauk Hosting pursuant to the Agreement and pay for all work in progress not previously paid for on a reasonable pro-rata basis (subject to receipt of an invoice for the same from gauk Hosting).
13.5 In the event of termination of the Agreement by the Client part way through the Initial Period, the Client remains obliged to pay for Services comprising the provision of dedicated server hosting for the remainder of that period.
13.6 Where following termination, gauk Hosting is unable to cancel any registration of a domain name registered on behalf of the Client, it may levy a minimum charge to cover the cost of the domain registration fee. For the avoidance of all doubt gauk Hosting will not refund to the Client the cost of registering a domain name after the Client has submitted a domain name application form, provided that the domain name has been registered with the appropriate registrar. This is due to the bespoke nature of domain names.
13.7 Where the Client services include the purchase of licensing for software by gauk Hosting on behalf of the client, in the event of termination of the agreement by the client, gauk Hosting are unable to refund any proportion of the software and/or licensing fees incurred.
The illegality, invalidity or unenforceability of any provision of the Agreement will not affect the legality, validity or enforceability of the remainder. If any such provision is found by any court or competent authority to be illegal, invalid or unenforceable, the parties agree that they will substitute provisions in a form as similar to the offending provisions as is possible without thereby rendering them illegal, invalid or unenforceable.
15.1 The failure or delay by either party in exercising any right, power or remedy of that party under the Agreement will not in any circumstances impair such right, power or remedy nor operate as a waiver of it. The single or partial exercise by either party of any right, power or remedy under the Agreement will not in any circumstances preclude any other or further exercise of it or the exercise of any other right, power or remedy.
15.2 Any waiver by either party of a breach of or default under any of the terms of the Agreement by the other party is not deemed a waiver of any subsequent breach or default and in no way affects the other terms of the Agreement.
16.Assignment and Subcontracting
The Client may not assign the benefit or delegate the burden of the Agreement nor sub-license any of its rights under the Agreement (including to its Associated Company) without the prior written consent of gauk Hosting. Any consent provided by gauk Hosting under this clause is given on condition that the assignee or licensee, as the case may be, agrees to comply with the terms of the Agreement as if they were the Client. gauk Hosting may sub-contract or assign any or all of its rights and obligations under the Agreement.
No variation or amendment to the Agreement (including any Order Confirmation) is effective unless agreed in writing and signed by an authorised representative of gauk Hosting.
Any notice to be given or made by either party under or in connection with the Agreement must be in writing and given or made to the other party at its address stated in the Order Form or to such other address as either party may from time to time notify to the other. Every notice, if so addressed, is deemed to have been duly given or made, if delivered by hand, upon delivery at the address of the relevant party, if sent by prepaid first class post, two Business Days after the date of posting and if transmitted by facsimile, at the time of transmission (provided a confirmatory letter is sent by prepaid first class post) provided that, where, in accordance with the above provisions, any notice would otherwise be deemed to be given or made on a day which is not a Business Day or after 4.00 p.m. on a Business Day, such notice shall be deemed to be given or made at 9.00 a.m. on the next Business Day. gauk Hosting may additionally serve notice on the Client under or in connection with the Agreement by email to the Client by sending an email to the contact email address stated on the Order Confirmation(s),and in such a case the email will be deemed sent once transmitted from gauk Hosting’s email server.
19.Applicable Law and Jurisdiction
The construction, performance and validity of the Agreement will be governed by New Zealand law and the New Zealand courts have jurisdiction to settle any disputes which may arise out of or in connection with it.
Part 2 : Ancillary Systems Supply
20.Provision of Software
20.1 In these Conditions, the following expressions will have the following meanings, unless inconsistent with the context:
20.2 In consideration of payment by the Client of the Fees, gauk Hosting will supply to the Client one copy of the Software and Third Party Software in object code form.
20.3 gauk Hosting grants to the Client the non-exclusive, non-transferable right to Use the Software for so long as the relevant Services continue to be provided subject to the remaining terms of these Conditions.
The Client undertakes:
21.1 to maintain accurate and up-to-date records of the number and locations of all copies of the Software;
21.2 to take good care of the Ancillary Systems; and
21.3 not to provide or otherwise make available the Software in whole or in part (including program listings, object and source program listings, object code and source code) in any form to any person other than the Client’s employees without the prior written consent of gauk Hosting.
The Client may make only so many copies of the Software as are reasonably necessary for operational security and to Use the Software. Such copies and the media on which they are stored will remain the property of gauk Hosting, and the Client will ensure that all such copies bear gauk Hosting’ proprietary notices. The provisions of Part 2 of these Conditions will apply to such copies as it applies to the Software.
23.1 Except to the extent and in the circumstances expressly required to be permitted by gauk Hosting by law, the Client may not:
23.1.1 alter, modify, adapt or translate the whole or any part of the program listings, object and source program listings, object code or source code in the Software in any way whatsoever;
23.1.2 permit the whole or any part of the Software to be combined with or become incorporated in any other computer programs; or
23.1.3 decompile, disassemble or reverse engineer the Software;
nor attempt to do any of these things.
23.2 To the extent that the law applicable to the Agreement grants the Client the right to decompile the Software in order to obtain information necessary to render the Software interoperable with other computer programs used by the Client, gauk Hosting undertakes to make that information readily available to the Client. gauk Hosting may impose reasonable conditions (including a reasonable fee) for doing so. In order to ensure that the Client receives the appropriate information, the Client must first give to gauk Hosting sufficient details of the Client’s objectives and the other computer programs concerned
24.1 The Client acknowledges that:
24.1.1 software in general is not error-free, and agrees that the existence of such errors will not constitute a breach of the Agreement; and
24.1.2 the Ancillary Systems will operate only in conjunction with the Client System and other operating systems that may be notified by gauk Hosting in writing from time to time.
24.2 gauk Hosting will use its reasonable endeavours to check the Software for the most commonly known viruses prior to delivery to the Client. However, the Client is solely responsible for virus scanning the Software and gauk Hosting gives no warranty that the Software will be free from viruses.
24.3 gauk Hosting warrants that (subject to the other provisions of the Agreement) the Ancillary Systems will as at delivery be free from material errors which prevent the Client’s use of the Services and conform in all material respects with any applicable specification agreed in writing between the Client and gauk Hosting. gauk Hosting will not be liable for a breach of this warranty:
24.3.1 if the error in question has been caused by any modification variation or addition to any part of the Ancillary Systems not performed by gauk Hosting, their incorrect use by the Client, or use with or in connection with systems with which they are incompatible; or
24.3.2 where the Client does not notify gauk Hosting in writing of a failure within 14 days of becoming aware of the same.
24.4 If the Client makes a valid claim against gauk Hosting based on the failure by gauk Hosting to comply with the warranty set out in clause 24.3 gauk Hosting will at its option take such steps as it deems necessary to remedy such failure or refund such part of the Fees as relates to the defective Ancillary Systems.
24.5 If gauk Hosting complies with clause 24.4 it will have no further liability for a breach of the warranty set out in clause 24.3.
25.Third Party Software and Services
Any Third Party Software is supplied to the Client on the basis of the relevant third party’s standard licence terms provided to the Client with the relevant Third Party Software and with which the Client agrees to comply.
Part 3 – Support Services
26.Provision of Support Services
26.1 gauk Hosting will provide the Support Services to the Client upon the terms and conditions set out in this Part 3 and Part 1 of these Conditions.
26.2 gauk Hosting will only be obliged to provide the Support Services during Support Hours.
26.3 The obligation of gauk Hosting to provide Support Services will not extend to:
26.3.1 rectification of lost or corrupted data;
26.3.2 Ancillary Systems altered modified or varied by other than gauk Hosting;
26.3.3 attendance to faults arising from the Client’s failure to comply with gauk Hosting’s instructions with regard to the use of the Services or any documentation or manuals provided by gauk Hosting, or operator error or omission; or
26.3.4 attendance to faults attributable to the use or interaction of an Ancillary System with other software or systems with which it is not compatible.
26.3.5 gauk Hosting will charge its standard employee charge out rates (as published from time to time by gauk Hosting) in addition to the Fees for the carrying out any remedial work described in clauses 26.3.1 to 26.
26.4 gauk Hosting will use its reasonable endeavours to provide the Support Services
26.5 Scope of Support Services
26.6 gauk Hosting will at no additional charge to the Client initially install the standard operating system Software on to the Client System or, where appropriate, the Equipment. Any re-install will incur a charge, such charge will be detailed on the gauk Hosting website.
26.7 gauk Hosting will operate a helpline service to assist the Client and its staff in relation to the Client’s use of the Services and the identification and correction of Defects. Assistance via this helpline service may be requested by the Client and provided by gauk Hosting, by telephone, e-mail or helpdesk ticket system provided by gauk Hosting. The helpline service will be obtained by telephoning and or, e-mailing such numbers or addresses or logging into such ticketing systems, as are notified by gauk Hosting from time to time. For the avoidance of all doubt the helpline service can only be obtained by using the preceding methods of contact. Any other method applied or used by the Client or its staff shall not be deemed as a request for assistance and gauk Hosting may at its sole discretion choose not to answer such a request.
26.8 If a Defect occurs, the following procedure will be followed:
26.8.1 the Client will notify gauk Hosting of the Defect and provide such information and assistance as gauk Hosting reasonably requires in connection with such Defect; and
26.8.2 gauk Hosting will analyse the Defect and use its reasonable endeavours to rectify the Defect in question or propose a solution in connection with the same and of being notified of the same under clause 27.6.
Part 4 – Domain Services
27.1 gauk Hosting will provide the Domain Services to the Client upon the terms and conditions set out in this Part 4 and Part 1 of these Conditions.
27.2 The Client undertakes and warrants to gauk Hosting that the registration of any domain name requested by it (a “Requested Domain”):
27.2.1 and the manner in which it is to be directly or indirectly used will not infringe any third party rights; and
27.2.2 is not being made in bad faith or could be considered to be an abusive registration under the ICANN or Nominet dispute resolution policies, whichever is appropriate.
The Client also confirms and warrants that any Requested Domain is not being registered and will at no time whatsoever be used for any unlawful purpose.
27.3 The Client acknowledges that, whilst gauk Hosting will use its reasonable endeavours to register a Requested Domain, gauk Hosting will not be obliged to accept any request to register or continue to process any registration of a Requested Domain where such a Requested Domain has not been capable of registration.
27.4 The Domain Services are limited to forwarding the application submitted by the Client for registration with the relevant naming authority. For the avoidance of all doubt it shall remain the sole responsibility of the Client to verify if the Requested Domain has been successfully registered with the appropriate authority. Upon successful registration, gauk Hosting will use reasonable endeavours to notify the Client of any renewal dates however gauk Hosting accepts no liability for the loss of registration of any Domain that has failed to be renewed.
27.5 gauk Hosting makes no representations or warranties (expressed or implied) of any kind (and they are expressly disclaimed) with respect to availability or likelihood of registration of any Requested Domain. The Client acknowledges that gauk Hosting cannot guarantee the reservation or registration of any Requested Domain and that the registration of such domain name will be subject to any registration requirements of the appropriate registry.
27.6 The Client will at all times comply with the terms and conditions (from time to time subsisting) applying to the registration of domain names published by the relevant naming authority (including the domain dispute resolution policy of that authority) and any other authority having similar force.
27.7 If the Client wishes to transfer ownership of a Requested Domain then it will procure that all necessary consents to that transfer are obtained and will deliver up to gauk Hosting, on demand, documentary evidence of that all such consents have been obtained. The Client agrees that prior to transferring ownership of a Requested Domain to another person (the “Transferee”) the Client will procure that the Transferee agrees in writing to be bound by the terms of the Agreement. A Requested Domain will not be transferred until gauk Hosting receives such written assurances as it requires that the Transferee is bound by the terms of the Agreement.
27.8 gauk Hosting will not transfer ownership of a Requested Domain until all Fees attributable to the Domain Services which are due have been paid by the Client to gauk Hosting.
27.9 gauk Hosting may from time to time change the registrar that a Requested Domain is held with, at its discretion and without notice to the Client.
27.10 The Client agrees and acknowledges that gauk Hosting will make registration information provided by the Client in relation to the Requested Domain available to ICANN, Nominet or any other appropriate registration authority, the registry administrators, and other third parties as applicable laws may require or permit including the police or other enforcement authority. The Client further acknowledges that gauk Hosting may make publicly available, or directly available to third party vendors, some, or all, of the domain name registration information provided, for purposes of inspection (such as through the WHOIS service) or other purposes as required or permitted by ICANN, Nominet and applicable law. The Client consents to any and all such disclosures, whether during or after the term of registration of the Requested Domain. The Client irrevocably waives any and all claims and causes of action arising from such disclosure or use of the domain name registration information by gauk Hosting.
27.11 gauk Hosting will only allow a domain name owned or managed by the Client to be attached to the ISP tag of gauk Hosting or any of its Associated Companies if the Client has an active hosting account with gauk Hosting or one of its Associated Companies or is holding the domain name within a gauk Hosting holding account.
Part 5 – gauk Media Hosting and gauk Media HostingPlus
28.1 gauk Media Hosting and gauk Media Hosting plus products will be delivered as per the specification on the website only. gauk Hosting reserves the right to change this specification at any time without notice. gauk Hosting will not modify this product in line with a Client’s request. This product is delivered on an .as is. and .as available. basis and gauk Hosting does not provide any warranty that the product will be of a satisfactory quality or fit for the Client’s purpose. gauk Media Hosting and gauk Media Hosting plus products are NOT provided with the option of additional services such as firewall, backup solutions or server monitoring. The Client is therefore responsible for the back up of data contained on the server; gauk Hosting will NOT perform any data backups whatsoever.
28.2 gauk Hosting will provide support for gauk Media Hosting and gauk Media Hosting plus by phone or via e-mail between the hours of 9am and 6pm Monday to Friday, excluding bank holidays. gauk Hosting will not be obliged to provide support at any other time or by any other means.
28.3 gauk Hosting will provide the Client with a control panel to manage gauk Media Hosting and gauk Media Hosting plus products. All management of the product will be performed by the Client through the control panel.
28.4 gauk Hosting will provide security patching and software upgrades as standard with the gauk Media Hosting and gauk Media Hosting plus product. Software upgrades will be at the discretion of gauk Hosting and gauk Hosting will not be required to provide notice of such upgrades. gauk Hosting will also provide maintenance for the server hardware.
28.5 The Client will have the option to request root access to this product. The Client acknowledges that if root access is given the Client will no longer be eligible for security patching, software upgrades, hardware maintenance or technical support. gauk Hosting will have no obligations to the Client other than to provision the service in line with the standard server and connectivity specification.
28.6 These additional terms may be amended by gauk Hosting at any time and without notice to the Client. Any changes will be published on the website and will be deemed to have been accepted 7 days after publication.
Acceptable use policy
gauk Media has created this Acceptable Use Policy (AUP) for hosting customers to protect our resources, and the resources of our customers and peering networks in order to provide a high speed network, high availability services and to ensure that gauk Hosting complies with all relevant laws. This AUP must be read in conjunction with our Terms and Conditions.
It is the responsibility of all customers of the gauk Hosting network and services to ensure that they comply with the latest edition of the AUP at any given time.
This AUP may be revised, without notice, at any time, at the sole discretion of gauk Hosting. Completion of the relevant application form, or connection to the service for the first time, is deemed to be an agreement to our Terms and Conditions and this AUP.
In the event of a breach of this policy, gauk Hosting reserve the right to terminate all or part of any service with immediate effect, without recompense, and delete any files held on our servers.
If you have any questions about any of our policies, please contact the Customer Service Team.
Compliance with Law
It is an offence under NZ, UK, USA law to transmit, receive or store certain types of files.
Customers may not use our services to engage in activities, or store, transfer or receive material of an indecent, offensive or otherwise illegal nature. Any such activities may result in prosecution under the relevant Criminal Acts including but not limited to the Computer Misuse Act 1990, the Protection of Children Act 1978, the Criminal Justice Act 1988 and the Prevention of Harassment Act 1997.
It is also a criminal offence to knowingly infringe intellectual property rights, such as copyright, patents, database rights and registered trade marks. Customers are reminded that sharing copyright material through the use of peer to peer software may consequently constitute a criminal offence if done without permission of the right owner in question. gauk Hosting will co-operate with any agency or rights holder wishing to assert their rights in these matters and gauk Hosting reserve the right to withdraw service under such circumstances.
Data Protection Acts impose numerous duties on any organisation that processes personal data relating to third parties. Failure to comply with many of these duties constitutes a criminal offence. Customers who are not merely processing personal data for domestic (including recreational) reasons are reminded of their likely duty to register with the relevant Information Commissioner.
Under the Electronic Commerce (EC Directive) Regulations 2002, gauk Hosting is in general not liable to any criminal or pecuniary penalty for any unlawful acts carried out using our service unless we have actual knowledge of those unlawful acts. Accordingly, if we become aware of credible evidence that a customer has carried out any unlawful acts we will take preventative measures to bring those acts to an end.
Compliance with foreign law
The Internet is global in reach. Consequently it is possible for anyone using the internet to break the laws of foreign countries. Customers are therefore advised to take all reasonable steps to avoid breaching relevant foreign laws.
Warranties and Disclaimers
Our service warranties and the extent of our liability are explained fully in our Terms and Conditions.
By connecting to the gauk Hosting network, Customers agree to hold gauk Hosting harmless in the event of any legal claim regarding our services.
Customers acknowledges that they have a responsibility to ensure that their connection is not used in an irresponsible manner. gauk Hosting deem irresponsible use of the services to include, but not be limited to, sending unsolicited e-mail (“spamming”), attempting to breach the security of a 3rd party machine, flooding Usenet by placing a single post in a large number of newsgroups, and if a service with unlimited or uncapped data usage is abused to the extent that it detrimentally affects other customer’s services.
In the event that a customer’s services are used for any purpose that gauk Hosting deem irresponsible then gauk Hosting reserve the right to suspend service while the usage is investigated in consultation with the customer. Should investigation determine that the service has been used irresponsibly, gauk Hosting reserve the right to terminate the customer’s account with immediate effect. Wherever possible the customer will be notified in advance of any termination.
Security and privacy
Login names and passwords must be kept secret and not be communicated to any third party. gauk Hosting must be notified immediately if they are compromised. If a customer forgets or loses their password, they will need to contact support to have it changed.
Customers are responsible for all traffic that is sent from their server. It is therefore the customer’s responsibility to ensure that all software is virus-free and up-to-date with all relevant security patches. In particular, server software running on public-facing ports, such as mail servers and proxy servers, must not be remotely exploitable.
If gauk Hosting find malicious traffic emanating from a customer’s server, gauk Hosting have an obligation to our other customers and peering networks to take urgent measures to block that traffic. In many cases, this can be achieved by selective port blocking, but in other cases, this will involve disconnecting and suspending the account until the issue has been resolved. gauk Hosting understand that in many cases a customer may not be responsible for or aware of the problem, and therefore gauk Hosting will work with the customer to resolve the issue as efficiently as possible to restore normal service.
Customers may not use gauk Hosting services to send unsolicited commercial e-mail (UCE, also known as ‘Spam’). gauk Hosting will block the mail services of any customer found to be sending such mail.
Customers may not have ‘open mail relays’. gauk Hosting will close the relay or connection of any customer found with an open mail relay.
Opt-in mailing lists are allowed, where it can be proved that subscribers did opt-in and that a suitable opt-out mechanism is available.
gauk Hosting reserve the right to remove any mail older than 60 days from shared mail servers. It is the customer’s responsibility to ensure that mail is regularly collected and removed from gauk Hosting