About this Agreement
Your use of services provided by ESP Design is subject to the Terms and Conditions of this Agreement. Please read this document carefully.
This Agreement begins when we notify you of our acceptance of your application. We may change this Agreement at any time by sending you written notification; if you continue to use our Service after such notification, then you are deemed to have agreed to the changes we have made.
Definition of Terms
Within this Agreement, the following words and expressions shall have meanings hereby assigned to them except where the context otherwise requires:
"ESP Design", "us", "we" and "our" means ESP Design;
"Service" means the Internet services provided by ESP Design to customers subscribing to the same;
"You", "your", "yourself" and "client" means the party who enters into this agreement with ESP Design, specifically the individual or organisation name you enter in the 'First Name', 'Last Name' and 'Company Name' fields on the account application form;
Scope of Service
ESP Design reserves the right to modify and withdraw the Service and alter policies and Service guidelines.
Providing you with Service
We strive to provide a reliable 24-hour-a-day Service although we do not guarantee that this will be continuous or fault free. If you experience a Service quality problem, we will do our best to resolve it to your satisfaction as soon as possible after notification of such problem by you.
Providing us with information
You agree to provide us with current and accurate information about yourself and your organisation. You agree to keep this information up to date by using the Control Panel ("User" link) on the focusnz.com web site. You also agree to provide us with any information we might reasonably ask for to help us provide you with Service.
Our use of information provided by you We agree to keep information provided by you private unless you consent to its disclosure or we are legally required to disclose it. We agree to use such information for no other purposes than to:
i. deliver Services you have ordered
ii. collect any money owed to us
iii. tell you about the Services we provide
iv. improve our existing Services and develop new Services.
Your use of our Service
1. You agree to ensure our Service is not used for any activity which is illegal in New Zealand or the country you connect to the Internet from or which could open ESP Design up to potential litigation including, but not limited to, copyright or trademark infringement, publication of obscene or defamatory material or material which is blatantly harmful to others, infringes the rights of others, or is likely to be misleading, deceptive or otherwise breaches the Fair Trading Act 1986.
2. You agree to ensure our Service is not used in an attempt to circumvent user authentication or security of any host, network or account. This includes, but is not limited to, accessing data not intended for your use, logging into a server or account you are not expressly authorised to access, password cracking, probing the security of other networks in search of weakness, or violation of any other organisation's security policy.
3. You agree to ensure our Service is not used in any way to attempt to interfere with or deny service to any user, host or network. This includes, but is not limited to, flooding, mail bombing, or other deliberate attempts to overload or crash a host or network.
4. You agree to ensure our Service is not used in any way which might have a detrimental effect on performance or pose a security risk including, but not limited to, testing code, installing web site content, code or data which presents an unacceptable security risk to us or degrades performance for other users.
5. You agree to ensure our Service is not used in connection with the transmission of spam, flames, mail bombs, or substantially similar, unsolicited email messages. A message is considered unsolicited if it is sent to a recipient who has not requested or invited the message. For the purposes of this provision, merely making one's email address accessible to the public will not constitute a request or invitation to receive messages.
6. You agree to ensure that everybody with knowledge of a Username allocated to your customer account complies with these Terms and Conditions and you agree to accept responsibility for all aspects of use of our Service by anybody using a Username allocated to your customer account.
Terms of payment
You agree to pay to ESP Design the Service fee as advertised at the time of ordering the Service. ESP Design may increase the Service fee at any time on or after expiration of the initial term by providing 10 (ten) days' prior written notice thereof to the client. The Service fee does not include any applicable sales or other tax imposed by any taxing authority with respect to the Service (excluding any tax on ESP Design's net income). All such taxes will be added to ESP Design's invoices as separate charges to be paid by the client.
You agree to pay the amount owed in full by the due date for all services billed to your account. If you fail to pay by the due date, then you will have 5 (five) working days from notification by us of the account becoming overdue to make payment, after which your account will be suspended until payment has been received. Notification of an account becoming overdue will be made by email; you are responsible for ensuring that we know your current email address (see 'Providing us with information' above) and for checking your email account regularly.
Upon suspension of a service you will become liable for a further setup fee of $25.00 or the current advertised setup fee for that type of account, whichever is the higher, to re-activate the service. If we are forced to pass your account to our debt collection agency you will be liable for these collection costs.
Cancellation of Service
Either party may terminate the agreement on written notification to the other party. Any Service fees billed in advance in relation to a cancelled Service are credited to your account. The amount credited is calculated from each three month hosting period. If you are closing your account after cancelling all Services and your account is in credit, we will send you a refund cheque.
You agree to indemnify us and our employees, servants and agents from and against any lawsuits, demands, liabilities or costs resulting or arising from or connected with your use of our Service or by any person with knowledge of a Username allocated to your customer account.
Limit of liability
You agree that ESP Design will not be liable for any indirect or consequential damages including but not limited to loss of profits or data or for any claim made on you by any other party even though ESP Design may have been notified of such damage or claims.
Neither party to this Agreement shall be responsible for failure to fulfil its commitments in this Agreement if such failure is due to any circumstances outside its control. Such circumstances comprise, but are not confined to, acts of God, war, riots, sabotage and terrorism.
Right to refuse Service
ESP Design may at any time and without notice remove web site content, if necessary, or suspend, cancel or refuse to continue providing you with our Service without liability if you or a person with knowledge of a Username allocated to your account fail to comply with any obligation in accordance with our Terms and Conditions of Use. This right will not be unreasonably exercised.
Right of inspection
ESP Design may at any time and without notice check the manner in which you use its service, for the purposes of ensuring that you are not breaching these Terms and Conditions, or for accessing any charges which may be payable by you.
This Agreement shall be deemed to be an Agreement made in New Zealand and shall be subject to, governed by and interpreted in accordance with the laws of New Zealand.
ESP Design shall not be liable for any damages suffered by any user of these Services, nor be liable for any claims or damages whatsoever or howsoever caused, including without limitations to property damage, loss of profits, interruption of business, loss of data, intellectual property infringement, personal injury, or for any special, consequential or incidental damages, whether arising out of the client's inability to use the Service, breaching of warranty, contract, liability or otherwise.
You shall be deemed to have read this Agreement and agree to be bound by this Agreement. This Agreement shall supersede all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter of this Agreement.