MHP DIGITAL LIMITED
PLEASE READ THESE MHP DIGITAL TERMS AND CONDITIONS OF SERVICE CAREFULLY.
These MHP Digital Terms and Conditions of Service set out the terms and conditions upon which MHP Digital Limited provides website hosting, support services, development services or consultancy services.
These MHP Digital Terms and Conditions of Service prevail over any additional or inconsistent terms and conditions that may be specified by any user or customer, and no variation to these MHP Digital Terms and Conditions of Service will be binding on MHP Digital Limited, unless specifically accepted by MHP Digital Limited in writing.
You will be deemed to have accepted these MHP Digital Terms and Conditions of Service if you click “I accept and have read the MHP Digital Terms and Conditions of Service” during the customer registration process, or during the process of ordering any services from us, or if you provide us with some other form of written acceptance of these MHP Digital Terms and Conditions of Service.
If you do not accept these MHP Digital Terms and Conditions of Service, you must not use or access any of the Services.
1.1 For the purposes of these Conditions, the following terms have the following meanings:
Conditions means these MHP Digital Terms and Conditions of Service;
Deliverables means any new or enhanced software, apps, websites, documentation or other materials created or developed by us in the course of providing the Other Services;
Existing Material means all documentation, software, content and other materials used or supplied in the Deliverables that are:
(a) owned by, or licensed by third parties to, either party prior to the date of commencement of the applicable Other Services; or
(b) developed independently by either party or its third party licensors or suppliers;
Fees means:
(a) the Subscription Fees; and
(b) the fees payable for the provision of the Other Services, as set out in the applicable Order or as otherwise agreed by the parties in writing;
Hosting Service mean the provision by us to you of a subscription website hosting service, as described in an Order for that hosting service;
IP Rights means all industrial and intellectual property rights (including applications for such rights) whether conferred by statute, at common law or in equity, including, but not limited to all copyrights and similar rights that may subsist in works or other subject matter, rights in relation to inventions (including all patents and patent applications), rights in relation to trade secrets and confidential information, rights in relation to designs (whether or not registrable), rights in relation to registered and unregistered trade marks and business names, and rights in relation to circuit layouts;
Order means an order form or online transaction that you submit and we accept, outlining the Services to be provided by us;
Other Services means any services other than the Hosting Service that we have agreed to provide to you and that are described in an Order, such as support services, development services or consultancy services;
Services means the Hosting Service and the Other Services;
Subscription Fees means the fees payable for the provision of the Hosting Service;
Third Party Product means any software, equipment, hardware or other product sourced by us for you from a third-party supplier;
User Content means any website or other content that you provide or make available to us in the course of our providing the Hosting Service;
We or our or us means MHP Digital Limited; and
You or your means the person or organisation who establishes a customer account with us.
2.1 We agree to provide the Services in the manner described in the applicable Order, or as otherwise agreed by the parties in writing.
2.2 We will use reasonable endeavours to provide the Services in accordance with the timeframes or dates for provision (if any) specified in the Order or as otherwise agreed by the parties in writing.
2.3 To enable us to provide any Services, you will provide to us such resources, information, assistance and co-operation as may be specified in the Order or that we may reasonably request. We will not be liable to you for any delay or failure in providing the Services to the extent such delay or failure is caused by a delay or failure by you in complying with your obligations under this clause 2.3. We may charge additional fees to you (based on our standard rates in effect at the time) if our provision of the Services is delayed or made more difficult or costly as a result of any failure by you to comply with this clause 2.3.
2.4 The Services will be provided primarily by us or our employees or contractors, but we may sub-contract the provision of parts of the Services to other persons. In particular, the Hosting Service is provided using Amazon Web Services.
3.1 If you have subscribed for the Hosting Service, then you must maintain that subscription (by paying the applicable Fees), and you must comply with your other obligations under these Conditions, in order to continue to use the Hosting Service.
3.2 During the term of your subscription for the Hosting Service, we will give you access to a User Portal, where you can manage and monitor your user account and other settings in relation to the Hosting Service. We grant to you a licence to use the Hosting Service for the purposes of hosting your User Content. This licence is non-exclusive, non-transferable and non-sublicensable.
3.3 Your subscription for the Hosting Service may include data limits, as well as limits on the number of users who may use the Hosting Service. We may also impose restrictions on what particular types of users may do, and what information they may access, when they use the Hosting Service.
3.4 If the person using the Hosting Service is doing so on behalf of any entity, that person represents that they have authority from the entity to do so. You are responsible for the actions of any person who uses the Hosting Service on your behalf, as if those actions were your own under these Conditions.
3.5 You are responsible for keeping your Hosting Service login information, including any user account name and password issued to you or your authorised users, secret and secure. You must not permit any other person to use that login information. You must immediately notify us of any unauthorised use of that login information, and in such event we may take such actions as we deem reasonably necessary in order to maintain or enhance the security of the Hosting Service, including by temporarily suspending your subscription or your access to the Hosting Service or resetting any or all user passwords.
3.6 You are responsible for making sure that any user registration details you submit are kept up to date and are accurate. We are not responsible for any loss, damage, cost or expense arising as a result of any failure by you to keep your user registration details up to date, or as a result of any inaccurate information provided by you.
3.7 To use the Hosting Service, you will need compatible devices and operating systems, and internet access. It is your responsibility to ensure that your software, hardware and systems are compatible with the Hosting Service, and meet any minimum specifications that may be notified by us to you from time to time. Please note that these minimum specifications may change over time as we make further changes and improvements to the Hosting Service.
3.8 We will use reasonable endeavours to keep the Hosting Service operational 24 hours a day, seven days a week. However, no warranty or representation is given that the Hosting Service will be uninterrupted or error-free.
3.9 Any bugs, errors, defects or unexplained outages affecting the Hosting Service that you become aware of should be reported to us by email to our dedicated helpdesk. No warranty or representation is given by us that any bugs, errors, defects or outages affecting the Hosting Service will be responded to or resolved within any particular time period, or that any resolution to a particular issue will be possible or practical from a technical or business administrative perspective.
3.10 You acknowledge that:
(a) the operation and availability of the systems and networks used by you to access the Hosting Service, such as computer systems and the internet, may be unpredictable and prevent use of or access to the Hosting Service; and
(b) there may be occasions where some or all of the Hosting Service is unavailable, for example to permit maintenance, or due to unexpected or uncontrollable outages. We will use reasonable endeavours to notify users in advance of any significant planned service outages.
You must not use the Hosting Service for any purpose that requires uninterrupted availability of the Hosting Service and where interruption of the Hosting Service may cause death, personal injury, physical injury or property damage.
3.11 You must not do any of the following things:
(a) use the Hosting Service for the purposes of enabling the transmission, distribution or storage of illegal or offensive material, or in any fraudulent or unlawful manner;
(b) use the Hosting Service for the transmission, distribution or storage of material that contains software viruses or any other disabling or damaging programs;
(c) use the Hosting Service in any way that would violate any IP Rights of any third party;
(d) damage, disable, interfere with or harm the Hosting Service, or any network or system underlying or connected to the Hosting Service, in any way whatsoever;
(e) modify, adapt, translate, reverse engineer or decompile any part of the Hosting Service, or any software comprising or underlying the Hosting Service, or in any manner attempt to derive the source code of any such software;
(f) use any robot, spider, site search/retrieval application, or other device or technological process to retrieve or index any portion of the Hosting Service, except as expressly authorised by us in writing; or
(g) encourage, assist or direct any other person to do any of the things set out in paragraphs (a) to (f) above.
If you do any of these things, you will be liable to us for any resulting losses, damages, costs or expenses we incur or suffer.
3.12 We reserve the right without any liability to you or any other person to take down, disable, edit or remove from the Hosting Service any User Content, where we reasonably believe that you may have done any of the things set out in clause 3.11, or in the event that we receive notification from any third party alleging an infringement by you of any IP Rights in connection with such User Content.
4.1 You acknowledge that legal and beneficial ownership of the Hosting Service, and all IP Rights in or to the Hosting Service, will vest with us or our third-party licensors. Except as expressly stated in these Conditions, no right or licence is granted to you in relation to the Hosting Service.
4.2 We do not claim any ownership of the IP Rights in or to any of your User Content. You grant to us a non-exclusive, royalty-free, sub-licensable, transferable, worldwide licence to use, modify, publish, copy and distribute the User Content solely to the extent necessary to provide the Hosting Service to you under these Conditions.
4.3 If we agree to provide any Other Services, then the following terms and conditions will apply to those Other Services:
(a) despite any other provision of this clause 4.3 to the contrary, each party or its third party licensors or suppliers will retain ownership of the IP Rights in its Existing Material. Nothing in these Conditions will limit the rights of either party to use, copy, distribute or commercially exploit its Existing Material;
(b) if we develop or create any Deliverables in the course of providing the Other Services, then unless otherwise specified in the Order or agreed by us in writing:
(i) all IP Rights in or to those Deliverables will be owned by us upon their creation; and
(ii) we grant to you a non-exclusive, non-transferable, perpetual, royalty-free, non-sub-licensable licence to use, copy and distribute the Deliverables solely to the extent necessary for you to take the benefit of the Other Services. We may by written notice to you terminate this licence if you do not pay any Fees owing to us by the due date for payment, or if you breach any of the Conditions;
(c) if you provide us with any of your Existing Material in connection with the Other Services, we will be licensed on a non-exclusive, royalty-free, sub-licensable, transferable, worldwide basis to use, modify, publish, copy and distribute that Existing Material solely to the extent necessary to provide the relevant Other Services under these Conditions; and
(d) all software Deliverables will be provided in object code format only, unless otherwise specified in the Order or agreed by the parties in writing. If we have agreed to provide source code versions of any software Deliverables, we may withhold such source code until you have paid all Fees.
4.4 Some Third Party Products we provide to you may be supplied subject to separate licence or supply terms and conditions. We will notify you of the existence of any such separate licence or supply terms and conditions that we are aware of, and any applicable costs payable for those Third Party Products, and you may be required to enter into a licence agreement or other agreement directly with the provider of those Third Party Products.
5.1 In consideration for the provision of the Services by us, you agree to pay to us the Fees.
5.2 In relation to the Subscription Fees, you acknowledge and agree that:
(a) we will notify you of the applicable Subscription Fees payable for the Hosting Service, and any changes to the Subscription Fees payable, when you subscribe for the Hosting Service, or when you seek to make changes to your subscription;
(b) we may change the Subscription Fees at any time, upon giving you at least 30 days prior written notice. Any such change will apply to the Subscription Fees payable by you after expiry of that notice period. You may avoid paying the changed Subscription Fees by cancelling your subscription prior to the expiry of that notice period;
(c) the Subscription Fees are payable in advance unless otherwise agreed with us in writing. We are not required to activate your subscription for the Hosting Service until we have confirmed that the applicable Subscription Fees have been paid
(d) we will send invoices for the Subscription Fees to you by email or other means agreed between us and you; and
(e) If payment after service provision has been agreed, the fees are due 14 days after the end of the month the service was provided in.
5.3 The payment and invoicing terms for any Fees for the Other Services will be as set out in the applicable Order or as agreed by the parties in writing.
5.4 All Fees payable by you:
(a) will be paid by you in New Zealand Dollars;
(b) are inclusive of all applicable goods and services taxes, sales taxes or value added taxes
(c) will be paid by you in full by the due date for payment, without set-off or deduction of any kind, failing which:
(i) we may suspend the provision of all or some Services until the failure to pay has been rectified;
(ii) we may charge you interest on the outstanding amount at an annual rate equivalent to the standard interest rate charged by our bankers for commercial overdrafts, plus 3%. Interest will be calculated on a daily basis from the due date until the date of actual payment; and
(iii) you will reimburse us for all costs and expenses we incur in connection with any actions or proceedings for recovery of such amounts, including all reasonable accounting costs, legal and attorney costs (on a solicitor and own client basis), court costs, and debt collection costs.
5.5 We are not required to refund to you any Fees paid if you change your mind about any Services, or if you decide that you no longer need any Services.
5.6 Where more than one invoice we have issued to you remains unpaid, we may at our sole discretion determine which of those invoices to allocate any payment we receive from you towards, even if your payment instructions specify a particular invoice that you are paying.
5.7 We may use a third-party payment platform provider to process and collect the Fees due from you. That third-party payment platform provider may have its own policies and procedures that you must adhere to. We are not responsible for the acts or omissions of any third-party payment platform provider, as we have no control over their business operations or practices.
6.1 We will maintain commercially reasonable technical and operational measures in order to protect our internal networks from malicious activity and to provide for the security and integrity of our systems. In relation to your confidential information, we will use the same degree of care that we use to protect our own similar confidential information, which in no event will be less than reasonable care. Our obligations of confidentiality will not extend to information that is publicly known, other than due to a breach of our obligations under these Conditions, or to information that we are required by law or by a regulatory or supervisory authority to disclose.
6.2 In the course of providing the Services we may collect, use, disclose, and hold personal information and other data about identifiable individuals, as well as other data about you and your business affairs, employees, users, and customers. This information will be used, disclosed and held by us in accordance with our Privacy Policy https://mhpdigital.co.nz/privacy-policy.
6.3 You acknowledge that you have read our Privacy Policy https://mhpdigital.co.nz/privacy-policy and accept its terms and conditions.
6.4 In the course of our providing the Hosting Service, Amazon Web Services (AWS), may collect, store and process personal information and other data about identifiable individuals, as well as other data about you and your business affairs, employees, users, and customers. To learn more about the privacy policies and data practices of AWS see https://aws.amazon.com/privacy
6.5 If you provide us with any personal information about any third party, then you warrant to us that you have obtained all necessary consents and authorisations from that third party to enable us to collect, use, disclose and hold such personal information in accordance with our Privacy Policy.
7.1 We warrant that in providing the Services we will use reasonable skill and care. Your sole remedy against us for any Services that do not comply with this warranty will be for us to re-provide such Services to the standard required under this clause 7.1. However, if we provide you with any Services or features on a Beta basis or for trial purposes, then those Services or features will be provided on an “as is” basis, with no warranties being given whatsoever in relation to those Services or features.
7.2 You warrant and represent to us that the copying, hosting, storage, processing and use of any User Content for the purposes of providing the Hosting Service will not infringe the IP Rights of any third party.
7.3 You agree to defend, indemnify and hold harmless us and our service providers, and the subsidiaries, affiliates, directors, officers, employees and agents of us and our service providers against any and all claims, liabilities, losses, damages, costs and expenses that may arise as a result of:
(a) any breach by you of any of these Conditions; or
(b) any claim by any person that our copying, hosting, storage, processing or use of any User Content for the purposes of providing the Hosting Service infringes the IP Rights of any person.
7.4 You acknowledge that:
(a) although we may perform backups of your User Content, we do not guarantee there will be no loss or corruption of data in connection with the Hosting Service, and we are not responsible for any loss or corruption of any User Content. You are responsible for ensuring your own backup of any User Content;
(b) in entering into these Conditions, you do not rely on any representation, warranty, term or condition that is not expressly provided in these Conditions; and
(c) all conditions, warranties or other terms implied by statute or common law are excluded from these Conditions, to the fullest extent permitted by law.
7.5 Without limiting the scope of clause 7.4 we do not give any warranty, representation or undertaking about the efficacy or usefulness of the Services, or about any fitness for a particular purpose or merchantability, that the Services will be free from bugs, defects, errors or outages; or that the Hosting Service will be accessible at any particular time.
7.6 Without limiting clauses 7.4 or 7.5, our maximum liability to you (whether in contract, tort, negligence or in any other way) arising out of any and all claims under these Conditions, or relating to any Services, will not in any circumstances exceed in aggregate the total Fees paid by you in the 12-month period in which such liability first arose.
7.7 In no event will we be liable (whether in contract, tort, negligence or in any other way) to you for:
(a) loss of revenue or profit, loss of anticipated savings, loss of goodwill or opportunity, loss of production, loss or corruption of data or wasted management or staff time; or
(b) loss, damage, cost or expense of any kind whatsoever that is indirect, consequential, or of a special nature,
arising directly or indirectly from the Services or these Conditions, even if we had been advised of the possibility of such loss, damage, cost or expense, and even if such loss, damage, cost or expense was reasonably foreseeable by us.
7.8 Where you have acquired the Services in New Zealand for the purposes of your business, then for the purposes of section 5D of the Fair Trading Act 1986 (New Zealand) (FTA) and section 43 of the Consumer Guarantees Act 1993 (New Zealand) (CGA), you and we acknowledge and agree that:
(a) the Services are being provided and acquired in trade; and
(b) to the extent permitted by law, in respect of all matters covered by these Conditions, the parties are contracting out of the CGA and sections 9, 12A and 13 of the FTA.
7.9 None of the exclusions or limitations set out in these Conditions is intended to limit or exclude any form of liability that cannot be so limited or excluded under applicable law.
8.1 Once you have commenced a subscription for the Hosting Service, the Hosting Service will continue until that subscription has been terminated by you or us.
8.2 You may elect to terminate your subscription for the Hosting Service at any time. To terminate your subscription, you must notify us in writing by emailing us at support@mhpdigital.co.nz. Your email notice must specify your customer account name, and the date you wish to terminate your subscription. You may not terminate the provision by us of any Other Services before the completion of those Other Services, except as provided for in the applicable Order or as agreed by us in writing.
8.3 We may elect to terminate your subscription for the Hosting Service, or the provision of any Other Services, at any time upon giving you at least 30 days prior written notice. We may also elect to terminate your subscription to the Hosting Service, or the provision of any Other Services, with immediate effect by giving written notice to you if:
(a) you are in breach of these Conditions;
(b) you cease or threaten to cease to carry on all or substantially all of your business or operations, are declared or becomes bankrupt or insolvent, are unable to pay your debts as they fall due, enter into a general assignment of your indebtedness or a scheme of arrangement or composition with your creditors, or take or suffer any similar or analogous action in consequence of debt;
(c) a trustee, manager, administrator, administrative receiver, receiver, inspector under any legislation or similar officer is appointed in respect of the whole or any part of your assets or business; or
(d) an order is made or a resolution is passed for your liquidation (other than voluntarily for the purpose of a solvent amalgamation or reconstruction).
8.4 In the event of termination of any Services under clauses 8.2 or 8.3:
(a) we will cease to provide the applicable Services to you;
(b) in the case of termination of the Hosting Service:
(i) you must cease to use the Hosting Service; and
(ii) we will retain any User Content in our possession for a minimum period of 90 days following termination, after which time that User Content may be destroyed or erased. Upon termination of your subscription you may request from us a copy of the raw User Content held by us, subject to paying any additional fees reasonably determined by us in order to cover the time spent by us in preparing such copy. Such copy will be provided in a format reasonably determined by us or otherwise agreed by us and you in writing;
(c) we may issue invoices to you for any Fees for any Services provided up to the date of termination of the applicable Services and that have not yet been invoiced, and the provisions of clause 5 will continue to apply in respect of all Fees payable by you under these Conditions;
(d) you will not be entitled to a refund of any Fees paid by you;
(e) clauses 4, 5, 7, 8.3 and 9 will remain in full force and effect; and
(f) subject to this clause 8.3 and except for any rights and remedies of the parties that have accrued before termination, including for any prior breach of these Conditions, neither party will be under any further obligation to the other party.
9.1 We will not be liable for any failure to provide any Services due to an event of Force Majeure. For the purposes of this clause 9.1, Force Majeure includes any inability to obtain supplies or labour, industrial disputes, delays, act of God, fire, flood, storm, adverse weather conditions, pandemic, act of government, or other matters beyond our reasonable control.
9.2 These Conditions embody the entire agreement of the parties in relation to the subject matter of these Conditions and supersede all prior understandings, communications and representations between the parties, whether oral or written. The parties acknowledge that they do not rely on any representation, agreement, term or condition that is not set out in these Conditions.
9.3 You may not assign, transfer or sub-contract any of your rights or obligations under these Conditions, without first obtaining our written consent.
9.4 We reserve the right to change these Conditions from time to time. In the event of a change, we will notify users by email, or by posting a notification of the change on our website at https://mhpdigital.co.nz. If any changes affect the Hosting Service in a materially adverse way, we will give you at least 30 days prior written notice of the changes, so that you can terminate your subscription for the Hosting Service if you wish to. If any changes affect the Other Services, then those changes will only take effect for Other Services ordered by you after the date of notification of the changes. Your use of the Hosting Service or your ordering of any Other Services following the date of any such changes will be deemed an acceptance by you of those changes. No other amendment to these Conditions will be effective unless in writing and signed by an authorised representative of us.
9.5 These Conditions will be governed by the laws of New Zealand, and the parties submit to the non-exclusive jurisdiction of the Courts of New Zealand.
