1. General
All Services are provided on an “as is, as available” basis. We suggest that you thoroughly read and familiarise yourself with these terms and conditions to ensure you understand the terms and conditions of the agreement you are entering into with CyberHub. 1.1 To the extent that there is any uncertainty in the construction of the terms of this contract, the definitions listed in Schedule 1 shall be used to construe the proper meaning of the terms of this contract or the terms shall be construed in the ordinary meaning. 1.2 CyberHub gives no warranty, express or implied, for the Product/Services, including any reimbursement for losses of income due to disruption of services by CyberHub or its providers for any amount greater than the fees paid by the Customer to CyberHub for the services. The Customer irrevocably, waives all right to claim reimbursements for lost business income as a result of interruptions to Product/Services provided by CyberHub. 1.3 The Customer warrants to CyberHub that they will use the Product/Services provided by CyberHub in a manner consistent with the laws of New Zealand and any local laws to which the Customer is subject in its use of the Internet. The Customer further indemnifies CyberHub against all liability for the illegal use of the Internet and any criminal, civil or other sanctions which may result from the illegal use of the Internet in any and all jurisdictions in which Customer operates using CyberHub’s Network in any way. 1.4 You may have the benefit of statutory guarantees under the Consumer Guarantees Act 1993. Unless you use, or hold yourself out as using, the services for the purposes of a business. 1.5 While we take all reasonable security precautions, the nature of telecommunications services means that we cannot guarantee the confidentiality of any calls or transmissions you make using our Product/Services. 1.6 We may vary the Product/Service or price from time to time, or decide to stop providing a particular Product/Service. We will notify you 7 days prior to making a variation to your Product/Services via email.
2. Accounts
CyberHub retains the right to refuse service to anyone at any time for any reason. 2.1 The Customer is required to provide and regularly update CyberHub with correct contact details for billing and technical notification purposes. CyberHub accepts no liability for disruption to services due to inability to contact the Customer. It is the Customer’s responsibility to provide CyberHub with a valid email address that allows emails from CyberHub that can get through your spam filter, which is not at the domain(s) The Customer is signing up under. 2.2 Credit Worthiness 2.2 If at any time CyberHub has reasonable concerns about the customer’s creditworthiness, or its ability to comply with the terms of this agreement, then CyberHub may require that the customer do one or more of the following: (a) Bond: provide CyberHub with an amount equal to two months’ estimated charges. (b) Letter of credit: provide a letter of credit to CyberHub from your bank. (c) Guarantee: provide a guarantee in support of the customer’s obligations under this agreement in a form and from an entity approved by CyberHub. (d) Trade references: provide trade references from two creditors approved by CyberHub, in which case the customer must pay, provide or deliver the relevant items to CyberHub within 5 Business days of CyberHubs written request. failure to pay, provide or deliver the relevant items to CyberHub within that time constitutes a breach of this agreement
3. Datacentre
3.1 Waiver for damage if a colocation box is supplied without rails, if the customer can’t bring rails they have to accept the risk of possible damage to their server. 3.2 If you cancel your colocation and there is debt due on your account, your server will be held in lieu of any debt due, even if the server is more valuable than the debt. You have 180 days to zero balance the due amount left on your account otherwise you forfeit/gift your server asset to CyberHub to sell to recover any debts. 3.3 If you cancel your colocation server and do not pick it up within 7 days after cancellation, CyberHub will charge you a one off storage fee of $150 + GST until picked up. 3.4 Any parts from your server such as rails, power leads, etc are not returned after your colocation service has ended CyberHub, we will do our best to supply the missing parts but will NOT be held liable for them or pay for their replacement.
4. Support Requests
4.1 You may request support from CyberHub via a phone call, in person, via email or via CyberHub’s support system. 4.2 All support requests will be charged at our hourly rate of $120/hour + gst or at an agreed rate. 4.3 All charges relating to your support request is required to be paid within 7 days of the invoice being issued. 4.4 If you have chosen to make payment via credit card to CyberHub, your nominated credit card will be charged on the due day.
5. Backups and Data Loss
5.1 While CyberHub makes every reasonable effort to protect data stored in it’s Datacentre, CyberHub accepts no liability for the Customer’s data residing on any equipment in any way. The Customer is solely responsible for maintaining offsite backups. 5.2 The Customer agrees that a charge of $120.00 + GST per hour MAY be applied per incident to restore The Customer’s data where possible. 5.3 The Customer agrees that the scope of CyberHub’s backup and scheduling of backups shall be at its sole and exclusive discretion and that the Customer waives any legal right or objection in relation to CyberHub’s decisions in relations to these matters. The Customer agrees that CyberHub shall not be held liable for the retention and or restoration of any data held on its servers at any time.
6. Termination
6.1 This contract may be terminated by CyberHub without cause, by giving the Customer written notice. This notice shall be delivered via email with the termination date set as the end of the Customers current billing cycle. 6.2 If the Customer pays annually and wishes to cancel the service before their next due date; In such case, CyberHub shall not refund any monies for the remaining period. 6.3 CyberHub may, at its sole discretion, cancel an account at any time if, in its opinion, the Customer has failed to abide by this contract or the Acceptable Use Policy or any other policy relating to CyberHub’s operations and any future policy or change of policy which is determined as being necessary at the sole discretion of CyberHub. In such case, CyberHub shall be entitled to all reasonable costs and expenses of such enforcement including collection fees, court costs and legal fees. 6.4 The Customer must give 30 days written notice via email to [email protected] before cancellation of any service takes place. 6.5 In such cases, if the service is cancelled without due notice by the Customer, CyberHub is not responsible for saving or returning any data, files or directories, also it is the customers responsibility to cancel any automatic payments that are setup to pay CyberHub. 6.6 CyberHub will be entitled to payment for the balance of the month where less than the one month’s notice is given.
7. Technical Issues
7.1 In relation to the use of a particular amount of bandwidth, upon purchase of a Product through this website, the Customer agrees to abide by the terms of clause 14. 7.2 CyberHub maintains control and ownership of all IP numbers and addresses that may be assigned to the Customer and reserves the right to change or remove any and all IP numbers and addresses to the Customer’s service. If we need to make a change, we will give the customer at least 48 hours prior warning. 7.3 After Suspension or Termination of a dedicated server, where money is left owing on The Customers account, CyberHub maintains control and ownership over the dedicated server asset and any data residing on the hardware after the termination date and remains the property of CyberHub.
8. Retrieval of Access Information
8.1 The retrieval of access shall be conducted in the following manner. If the Customer loses their account access information, the Customer must do these things in order: (a) Request an automatic password re-send if available, via the service login form provided for service in question online; (b) Email CyberHub’s support staff to re-send the details to the email address CyberHub has on record; and (c) Fax in required identification as requested by CyberHub.
9. Payments, Debt and Pricing
9.1 The terms of payment by the Customer to CyberHub are: (a) The Customer will be billed one month in advance from the date the service becomes active. (b) All prices stated on CyberHub’s website are in New Zealand dollars and exclude GST. (c) All prices are subject to change with 14 days advance notice from CyberHub. Prices may increase due to increased operating costs, for example: power, bandwidth and or administration costs, and at CyberHub’s sole discretion. (d) CyberHub only accepts payment by Visa or MasterCard, Cheque, Direct Credit, Automatic Payment and Phone-In Credit Card. (e) If the Customer’s payment is not received for an invoice within seven days of the due date shown on the invoice, services WILL be suspended or even terminated (at the discretion of CyberHub). (f) A late payment fee of 9% per invoice will be applied to the Customer’s overdue invoice seven days after the date on which payment was first due. 9.2 If you are in arrears and past a due date by eight days, CyberHub WILL hand the Customer’s accounts/records/logs and other information over to it’s debt collection agency (Baycorp) and the Customer will be liable for all costs incurred in recovering the debt. 9.3 CyberHub reserves the right to terminate this contract as a result of any late payment by the Customer, without notice. 9.4 If the Customer fails to make payments on time each month, CyberHub WILL require the Customer to pay a deposit as a condition to keeping your account open. 9.5 CyberHub does not offer any credit services to its Customers. 9.6 If the customer has chosen to make payment to CyberHub by direct debit or by credit card the customer authorizes CyberHub to charge the bank account or credit card the amount owing on the outstanding account on the due date.
10. Indemnity
10.1 The Customer agrees to indemnify, defend and hold CyberHub and its affiliates, licensors and suppliers harmless from any liability, loss, claim and expense, including reasonable solicitor’s fees related to the Customer’s breach of this contract. 10.2 Notwithstanding anything else in the contract, CyberHub shall not be liable to the Customer for loss of profits, contracts, loss of reputation, loss caused by any third party deleting, removing, deactivating or tampering with the CyberHub Service or other indirect or consequential loss whether arising from negligence, breach of contract or howsoever. 10.3 The Customer shall immediately indemnify CyberHub against all proceedings, fees, expenses, payments, liabilities, injury, costs and damages arising out of: (a) The breach by the Customer of any of its obligations under the contract; and (b) Any express or implied warranties, representations, confirmations or acknowledgements that are given by the Customer which are untrue or misleading. 10.4 The Customer agrees that CyberHub shall not be liable to the Customer for any force majeure event (unavoidable event) being any situation (other than a failure to pay money due to the other party) in which CyberHub fails to comply with its obligations under the contract due to anything beyond its reasonable control. 10.5 The Customer agree that CyberHub shall not be liable to the Customer for loss arising from or in connection with any representations, agreements, statements or undertakings made prior to the date of execution of the contract other than those representations, agreements, statements or undertakings confirmed by a duly authorised representative of CyberHub in writing or expressly incorporated or referred to in the contract. 10.6 This contract represents the entire understanding between Customer and CyberHub, regarding Customer’s relationship and supersedes any prior statements or representations.
11. Warranties and Guarantees
11.1 CyberHub gives no warranties in relation to any of the Product/Services content, goods or services provided through its websites. CyberHub does not guarantee in any way the merchantability, quality or use of Products purchased through the site. 11.2 The Customer warrants that the they are in possession of the following and that they waive any legal right to claim against CyberHub in relation to loss of damage resulting from the absence of the following: (a) An Internet connection with sufficient bandwidth and quality to allow trouble-free browsing and data uploading and downloading; (b) A fully functional Internet browser; (c) Suitable and necessary tools to develop and publish content; and (d) Tools with which to access database servers. 11.3 The Customer warrants that: (a) The Customer has full power and authority to enter into and perform the contract; (b) All information provided by the Customer to CyberHub shall be complete, accurate and not misleading; (c) The Customer will comply with all its duties under any data protection laws and regulations applicable to the Customer’s operations; (d) The Customer’s performance of its obligations under the contract will not infringe the Intellectual Property Rights of CyberHub or any third party; and (e) None of the information or materials supplied by the Customer to CyberHub shall be libelous, obscene or abusive nor shall it breach any law or regulation or give rise to any legal claims of any sort. 11.4 The Customer agrees that all conditions, warranties, representations or other terms concerning the supply of the Product which might otherwise be implied or incorporated into the contract or any collateral contract, whether by statute, common law, custom or otherwise, are hereby expressly excluded to the fullest extent permitted by law. 11.5 The Customer should have their own insurance organised for their owned equipment stored or hosted at CyberHub’s datacentre’s.
12. Disclaimer
12.1 The Product/Services provided from or through its website by CyberHub is provided on an “as is”, “as available” basis. All warranties, express or implied, are disclaimed including but not limited to, any implied warranties of the merchantability and fitness for a particular purpose of Product/Services. The maximum liability of CyberHub for the Product, for any reason shall be limited to the amount paid by Customer for the particular items purchased and in the event of a regular supply of Product, a sum equivalent to three month’s such supply. The Customer hereby accepts that the maximum liability of CyberHub, for any reason shall be limited to the cost of the content, goods or services provided to the Customer by CyberHub. CyberHub and any of its affiliates, dealers or suppliers are not liable for any indirect, special, incidental or consequential damages including damages for loss of business, business profits, litigation judgments or the cost of legal fees whether based on any claim for breach of contract, breach of warranty, tort, negligence, product liability or any other claim which the Customer may raise against CyberHub. This term is to subsist despite any advice from the Customer of the nature of damages proposed by the Customer or their legal representative. This clause is to be considered a material, fundamental and essential term of the bargain between the Customer and CyberHub.
13. Refunds
13.1. CyberHub does not provide refunds for any service or product purchased by the Customer.
14. Acceptable Use Policy
14.1 It is CyberHub’s intent to provide its customers with good quality services where reasonably possible. Without prejudice to or derogation from any of its general rights of termination, as provided herein, CyberHub reserves the right to immediately terminate, without notice, any service provided to the Customer which violates this “Acceptable Use Policy”. The Customer agrees they will not:- (a) Undertake any unlawful purpose. This includes, but is not limited to, posting, storing, transmitting or disseminating information, data or material which is libelous, obscene, unlawful, threatening, defamatory, or which infringes the intellectual property rights of any person or entity, or which in any way constitutes or encourages conduct that would constitute a criminal offense. (b) Violate the law of any foreign state or in particular the laws of the country in which the Customer resides. (c) Impersonate any person, entity or computer address, engage in sender address falsification, forge anyone else’s digital or manual signature, or perform any other similar activity. (d) Access any other person’s computer or computer system, software, or data without their knowledge and consent; breach the security of another user; or attempt to negate the user authentication or security of any host, network, or account. (e) Interfere with the computer networking or telecommunications service to any user, host or network, including, without limitation, denial of service attacks, flooding of a network, overloading a service, and attempts to “crash” a host. (f) Infringe any copyright, patent, trademark, trade secret or other intellectual property right registered in New Zealand, or any other country or under an international agreement. (g) Publish material which consists of any form of occult, illegal activities, racism and hate speech, violence, phishing, scams, plagiarism, hacking, stolen Internet content, Malware, Spam URL’s or other unacceptable content as determined in the sole and exclusive discretion of CyberHub.
15. Fair Use
15.1 You can use our bandwidth for any purpose other than that outlined in our Acceptable Usage Policy (14). 15.2 The term “unmetered” or “unlimited” bandwidth means “fair use”, without hidden data charges. 15.3 It is important to CyberHub that all eligible customers are able to access our services, and get the best possible experience. For this reason, and to ensure the provision of a quality service, a Fair Use Policy applies to some of our services where your usage can affect that of other customers. We have developed this Fair Use Policy by reference to average customer profiles and estimated use of our services. 15.4 We may issue a warning or suspend your services under this Fair Use Policy where in our reasonable opinion your use of our services is excessive and/or unreasonable by materially exceeding estimated usage patterns over any month. 15.5 If, after we have requested that you stop or alter your use to come within our Fair Use Policy, your excessive or unreasonable use continues, we may without further notice, apply charges to your account for the excessive and/or unreasonable element of your use; suspend, modify or restrict your use of our services or withdraw your access to the services. 15.6 Bandwidth allocated to unlimited internet users is reviewed and increased as required, but at any time there is a fixed amount of bandwidth available. The aim of this clause of the Fair Use Policy is to ensure that the experience of the vast majority of unlimited internet users is not compromised by the extreme and unreasonable usage of a few. CyberHub reserves the right to modify (through speed and other variables) the behaviour of individual users that frequently use significantly more data than the majority of the unlimited users and/or use their internet service in a way that negatively affects the experience of other users. If an unlimited internet customer is found to be in the top 1% to 5% of users and their usage is negatively impacting the network, CyberHub may attempt to communicate with the user asking them to modify their usage, may suggest a more suitable solution for all parties involved, or may exercise its rights outlined in clause 15.5 above. 15.7 You acknowledge that CyberHub does not and cannot in any way supervise, edit or control the content and form of any information or data accessed through the internet, and CyberHub shall not be held responsible in any way for any content or information accessed via the service. Furthermore, CyberHub disclaims all or any responsibility or liability for any material on the internet that you may find offensive, upsetting, defamatory, and personally offensive and in any way unsuitable for minors. 15.8 Some internet sites may have embedded within them the ability to program your modem to dial overseas numbers without your knowledge or direction. You are liable for any charges arising from such calls and CyberHub accepts no liability for such charges. 15.9 You are not permitted to operate hosted services from our Broadband, UFB services and you are not permitted to on-sell this service without written approval from us.
16. Bandwidth
16.1 If you are on an “unmetered” or “unlimited” plan, the Customer will be provided with unmetered national (within New Zealand) and international bandwidth per month. Bandwidth use is subject to our Fair Use policy Clause 15. 16.2 Customers must agree to our “Fair Use” and if heavy amounts of bandwidth are used that affect the performance of our upstream providers, other available options will be offered to the Customer. 16.3 Bandwidth management (traffic shaping) is employed on different services and times within the CyberHub Network to ensure a great service to priority applications and to avoid filling our links to capacity. 16.4 “Shared Pool” offers are subject to clauses 14, 15 and 16 and do mean “unmetered” or “unlimited” bandwidth.
17. Computer Viruses
For the purposes of this clause, a “virus” is a computer program or a code or portion of a computer program which is intentionally created and programmed to cause damage to, corrupt, hinder, crash, tie up or otherwise create negative effects on a computer system. CyberHub shall not be responsible for any incidental, consequential or special damages, whether foreseen or foreseeable, or whether they have been informed of the possibility thereof and take no actions to prevent the same. 17.1 The Customer gives CyberHub the right to immediately, and at the sole and exclusive discretion of CyberHub, delete any file on the server systems or data network which is operating as a computer virus as defined at the discretion of CyberHub. The Customer also waives any right to claim against CyberHub in relation to damage caused by a computer virus transmitted through CyberHub’s servers or data network. The Customer also undertakes to immediately notify CyberHub of any file in existence on CyberHub’s servers or data network which is potentially a threat to the integrity, security or value of CyberHub’s servers and data network.
18. Privacy
18.1 CyberHub reserves the right to disclose information about the Customer requested for a lawful purpose by a third party organisation and without limiting the total scope of what CyberHub will disclose. CyberHub will disclose information in the following circumstances: (a) Where CyberHub is required to do so by law; (b) For the purpose of the transfer of a business asset; (c) To enforce or apply its services and other contracts; or protect the rights, property or safety of CyberHub, its users or others. This includes exchanging information with other companies and organisation’s for fraud protection and credit risk reduction; 18.2 From time to time, CyberHub will collect information entered through our website, given by telephone or through electronic mail. For billing purposes, CyberHub will also collect credit card information and billing addresses. The Customer agrees to allow CyberHub to collect and hold this information for relevant business purposes and to charge for services rendered. 18.3 The Customer agree that CyberHub may use personal information stored by CyberHub in order to contact the Customer by electronic mail concerning the use of services and other promotional marketing material regarding CyberHub’s business services, operations and Products. 18.4 The Customer waives any right it may have to claim against CyberHub, in relation to any possible breach of privacy related legal obligations. Customer warrant that they will take all necessary steps to protect their personal information from unauthorised access, including but not limited to, signing off after the use of a publicly shared computer. 18.5 The Customer warrants that it will provide accurate, timely and the relevant information to CyberHub in relation to any matters which CyberHub may require for the purposes of updating information.
19. Inconsistency
To the extent that any dispute should arise about the inconsistency of terms in relation to this contract, the Customer will submit to the discretion of CyberHub to determine the interpretation of an inconsistency.
20. Affiliates
Please only post your link in conjunction with your regular postings, as per our strict anti-spam rules. Please post responsibly. Do not bid or otherwise purchase, either directly or indirectly, the search name “CyberHub” or any misspelling or variant thereof from websites, search engines or other directory referral services. Violations of our anti-spam policy or our Terms of Service will result in immediate forfeiture of all Rewards payments. Gaining referrals through misrepresentation, improper use of CyberHub intellectual property (ie. CyberHub trademarks and copyrighted material) or impersonation of CyberHub personnel is strictly prohibited and can result in loss of accrued Rewards and/or removal from the program. Payments are made on the first business day of the month, via PayPal, for balances of $20 or more. If you have any hosting accounts with CyberHub, Rewards payments will first be applied to any balance due on those accounts before being paid out via Paypal. Promotional codes must be unique across our entire system. Use of other affiliates or CyberHub promo codes and offers, which were not created by the referring affiliate could result in the loss of all commissions and terminate the offending affiliates partnership. Promo codes only work for totally new customers (not for existing customers adding more services or new customers trying to host domains that are already in our system). Promotional code discounts are non-recurring and are only applied toward an account’s first payment. Referred customers must maintain an active hosting account during any free trial and/or money-back guarantee periods applicable. Rewards accrued from customers who cancel their accounts and/or receive a refund during these periods will be cancelled. Rewards accrued from CyberHub customers that have completed their free trial and/or money-back guarantee periods are paid out via PayPal at the start of every month, and are subject to a 5% fee. A Platinum Affiliates program is available to active affiliates generating greater than 20 sales per month, offering a number of exclusive features including earlier cashout of Rewards, payments by check, and waiving of the 5% fee on cashout. Please contact our affiliate management team at [email protected] to apply for this program. We reserve the right to modify or cancel our Affiliate program at our discretion.
Schedule 1
Definition of Terms: For the purposes of these terms and conditions, the following words and expressions shall have meanings hereby assigned to them except where the context otherwise requires: “CyberHub”, “us”, “we” and “our” means CyberHub; “Customer”, “You” and “Your” means the party or parties who are authorized to make decisions regarding signing up/registering and understanding/accepting these terms and conditions – who utilize Products and/or services provided by CyberHub; “DNS” The Domain Name System (DNS) is a hierarchical naming system for computers, services, or any resource connected to the Internet or a private network. It associates various information with domain names assigned to each of the participants. Most importantly, it translates domain names meaningful to humans into the numerical (binary) identifiers associated with networking equipment for the purpose of locating and addressing these devices worldwide. An often-used analogy to explain the Domain Name System is that it serves as the “phone book” for the Internet by translating human-friendly computer hostnames into IP addresses. “IP”, “IP Address(s)” The Internet Protocol (IP) is a protocol used for communicating data across a packet-switched network using the Internet Protocol Suite, also referred to as TCP/IP. “WHOIS” means the query and response protocol widely used for querying domain databases in order to determine the registrant or assignees of Internet resources, such as a domain name, an IP Address block or an autonomous system number. “Network” means any IP Data going via CyberHub’s network, TCP or UDP, Data transmission, digital transmission or digital communications is the physical transfer of data (a digital bit stream – is a time series of bits) over a point-to-point or point-to-multipoint communication channel. Examples of such channels are copper wires, optical fibres, wireless communication channels, and storage media. The data is represented as an electro-magnetic signal, such as an electrical voltage, radio wave, microwave or infra-red signal. “Servers”, “Server” A computer, sometimes called a web server, is a computer system that provides essential services across a IP network, to private users inside a large organization or to public Internet. Many servers have dedicated functionality such as web servers, print servers, file servers and database servers. “Incident” occurring etc. by chance in connection with something else an incidental occasion.
Acceptance of Terms and Conditions:
I have read, understood and fully comprehended these terms and conditions and their full nature, extend and effect. If I sign or purport to complete this contract on behalf of any corporate body I accept personal responsibility for and guarantee the due performance of the body of this contract and indemnify CyberHub accordingly. I understand that typing in my First, Last name and Email address and clicking the check box during the signup process on CyberHub’s web sites, I am making an electronic signature with the same nature, extent and effect of a written signature.