Limelight Online Limited
Terms and Conditions of Trade
You must accept the terms of this Agreement in order to use the Services. By using the services, you acknowledge that you have read this agreement and agree to be bound by the Terms and Conditions contained herein as well as all acceptable use policies incorporated by reference.
Limelight Online Limited reserves the right to change or modify any of the terms and conditions contained in this Agreement, any Addendum and any policy or guideline incorporated by reference at any time and from time to time in its sole discretion, and to determine whether and when any such changes apply to both existing or future customers. Any changes or modification will be effective upon posting of the revisions on the Limelight Online Limited Web site (the "Site"). Your continued use of Services following Limelight Online Limited’s posting of any changes or modifications will constitute your acceptance of such changes or modifications.
You agree to provide us with accurate information about yourself and/or your organisation. In particular, you agree to ensure the customer name field of the account application form bears your full legal name. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms "you" and "your" shall refer to such entity.
1. TERM AND PAYMENT FOR SERVICES
1.1. Term
This Agreement shall be for an "Initial Term" as chosen by you at the time you register for the Services. This Agreement will be automatically renewed (the "Renewal Term") at the end of the Initial Term for the same period as the Initial Term unless you provide Limelight Online Limited with notice of termination thirty (30) days prior to the end of the Initial Term or the Renewal Term.
1.2. Termination Policy
If you terminate your receipt of the Services prior to the end of the Initial Term or the Renewal Term, whichever is then applicable, (a) Limelight Online Limited will not refund to you any fees paid in advance of such termination and (b) you shall be required to pay 100% of Limelight Online Limited's standard monthly charge for each month remaining in the term, unless otherwise expressly provided in this Agreement. Notwithstanding the foregoing, if you terminate your receipt of Shared Hosting Services prior to the end of the first thirty (30) days of the Initial Term, you are entitled to a refund of the fees you paid in advance for the monthly Services, not including any setup fees. Your termination request or notice must be submitted to Limelight Online Limited in the manner described in Section 1.1. Limelight Online Limited may terminate this Agreement at any time and for any reason by providing to you written notice thirty (30) days prior to the date of termination. If Limelight Online Limited terminates this Agreement, Limelight Online Limited will refund to you the pro-rata portion of prepaid fees attributable to Services (excluding setup fees) not yet rendered as of the termination date unless otherwise expressly provided in this Agreement.
1.3 Default and Cure
In the event that either party hereto defaults in the performance of any of its material duties or obligations under this Agreement, including failure to make any payments due under this Agreement, and such default is not cured within five (5) days after written notice is given to the defaulting party specifying the default, then the party not in default, after given written notice thereof to the defaulting party, may terminate this Agreement.
1.4. Charges
You agree to pay for all charges attributable to your use of the Services at the then current Limelight Online Limited prices, plus any applicable taxes. The prices quoted shall be in the currency of the country of the Client.
1.5. Payment
All charges for Services must be paid in advance according to the then current prices applicable to the Services. If you choose to pay by credit or debit card upon registering for the Services, you thereby authorise Limelight Online Limited to charge your credit or debit card to pay for any charges that may apply to your account. You must notify Limelight Online Limited of any changes to your card account (including, without limitation, applicable account number or cancellation or expiration of the account), your billing address, or any information that may prohibit Limelight Online Limited from charging your account. Limelight Online Limited may also create periodic invoices for any applicable Supplemental Charges associated with your use of the Services. You agree to pay to Limelight Online Limited the amount indicated in each invoice by the due date reflected on that invoice. If you fail to pay any fees and taxes by the applicable due date for credit card or invoice payments, late charges of ten cent (10%) per month shall also become payable by you to Limelight Online Limited . In addition, your failure to fully pay any fees and taxes within fourteen (14) days after the applicable due date will be deemed a material breach of this Agreement, and Limelight Online Limited may, in addition to any other remedy it may have: (i) suspend its performance of the Services and/or terminate this Agreement; and/or (ii) At the time of such nonpayment, Limelight Online Limited may, delete any and all content from the Limelight Online Limited Servers. Any such suspension or termination of the Services would not relieve you from paying past due fees plus interest. In the event of collection enforcement, you will be liable for any costs associated with such collection, including, without limitation, reasonable attorneys' fees, court costs and collection agency fees.
1.6. Consumer Guarantees Act Exclusion
You agree that the Services are acquired for the purposes of a business and that the provisions of the Consumer Guarantees Act 1993 are excluded in relation to the Services.
2. USE OF SERVICES
2.1. Acceptable Use
The Limelight Online Limited servers may be used only for lawful purposes. You may not use Limelight Online Limited’s network in order to transmit, distribute or store material (a) in violation of any applicable law, (b) in a manner that will infringe the copyright, trademark, trade secret or other intellectual property rights of others or the privacy, publicity or other personal rights of others, or (c) that is obscene, threatening, abusive or hateful. You agree to ensure that everybody with access to your Web Hosting account complies with the relevant acceptable use policy.
2.2. Brand and Identity
You hereby acknowledge and agree that it is your sole responsibility to ensure that there is no infringement of any of the terms and conditions that you have to any third party, including brand identity and franchise requirements, related to the execution of this Agreement and performance of the Services by Limelight Online Limited.
2.3. Material and Product Requirements
Unless we have agreed otherwise in a separate agreement, you must ensure that all material and data placed on Limelight Online Limited's equipment is in a condition that is "server-ready," which is in a form requiring no additional manipulation by Limelight Online Limited . Limelight Online Limited will make no effort to validate any of this information for content, correctness or usability. If your material is not "server-ready", Limelight Online Limited has the option at any time to reject this material. Limelight Online Limited will notify you of its refusal of the material and afford you the opportunity to amend or modify the material to satisfy the needs and/or requirements of Limelight Online Limited . Use of the Services requires a certain level of knowledge in the use of internet languages, protocols and software. This level of knowledge varies depending on the anticipated use and desired content of your Web site. You must have the necessary knowledge to create and maintain a Web site. It is not Limelight Online Limited’s responsibility to provide this knowledge or customer support outside of the Services agreed to by you and Limelight Online Limited .
2.4. Bandwidth and Storage Usage
You agree that use of the Services under this Agreement will not exceed the bandwidth and storage usage limits of 200MB of bandwidth and 50MB of disc space per month. If you use any bandwidth or storage space in excess of the agreed upon number of megabytes per month, you agree to pay the associated additional charges.
2.5 Domain Registration
Any domain registered by Limelight Online Limited on your behalf will be registered in your name. You agree to be bound by the Terms and Conditions of the Domain Registrar for your domain. Limelight Online Limited shall have no obligation or liability to any related party in relation to any breach of Registrar Terms and Conditions.
In the event of you terminating this Agreement under Section 1.1 all rights to the use of the domain name shall remain with you and Limelight Online Limited will immediately provision the transfer of the domain name to your new host upon receipt of written request for such action from the Registrant.
3. ENFORCEMENT
3.1. Investigation of Violations
Limelight Online Limited may investigate any reported or
suspected violation of this Agreement, its policies or any
complaints and take any action that it deems appropriate and
reasonable under the circumstance to protect its systems,
facilities, customers and/or third parties. Limelight Online
Limited will not access or review the contents of any e-mail or
similar stored electronic communications except as required or
permitted by applicable law or legal process.
3.2. Actions
Limelight Online Limited reserves the right and has absolute
discretion to restrict or remove from its servers any content
that violates this Agreement or related policies or guidelines, or
is otherwise objectionable or potentially infringing on any third
party's rights or potentially in violation of any laws. If we
become aware of any possible violation by you of this
Agreement, any related policies or guidelines, third party rights
or laws, Limelight Online Limited may immediately take
corrective action, including, but not limited to, (a) issuing
warnings, (b) suspending or terminating the Service, (c)
restricting or prohibiting any and all uses of content hosted on
Limelight Online Limited 's systems, and/or (d) disabling or
removing any hypertext links to third party Web sites, any of
your content distributed or made available for distribution via
the Services, or other content not supplied by Limelight Online
Limited which, in Limelight Online Limited 's sole discretion,
may violate or infringe any law or third-party rights or which
otherwise exposes or potentially exposes Limelight Online Limited to civil or criminal liability or public ridicule. It is
Limelight Online Limited's policy to terminate repeat infringers.
Limelight Online Limited's right to take corrective action,
however, does not obligate us to monitor or exert editorial
control over the information made available for distribution via
the Services. If Limelight Online Limited takes corrective action
due to such possible violation, Limelight Online Limited shall
not be obligated to refund to you any fees paid in advance of
such corrective action.
3.3. Disclosure Rights
To comply with applicable laws and lawful governmental
requests, to protect Limelight Online Limited 's systems and
customers, or to ensure the integrity and operation of Limelight
Online Limited 's business and systems, Limelight Online
Limited may access and disclose any information it considers
necessary or appropriate, including, without limitation, user
profile information (i.e., name, e-mail address, etc.), IP
addressing and traffic information, usage history, and content
residing on Limelight Online Limited's servers and systems.
Limelight Online Limited also reserves the right to report any
activity that it suspects violates any law or regulation to
appropriate law enforcement officials, regulators, or other
appropriate third parties.
4. INTELLECTUAL PROPERTY RIGHTS
4.1. Your License Grant to Limelight Online Limited
You hereby grant to Limelight Online Limited a non-exclusive,
worldwide, and royalty-free license for the Initial Term and any
Renewal Term to use your content as necessary for the
purposes of rendering and operating the Services to you under
this Agreement. You expressly (a) grant to Limelight Online
Limited a license to cache materials distributed or made
available for distribution via the Services, including content
supplied by third parties, and (b) agree that such caching is not
an infringement of any of your intellectual property rights or
any third party's intellectual property rights.
4.2. Limelight Online Limited Materials and Intellectual Property
All materials, including but not limited to any computer
software (in object code and source code form), data or
information developed or provided by Limelight Online Limited
or its suppliers or agents pursuant to this Agreement, and any
know-how, methodologies, equipment, or processes used by
Limelight Online Limited to provide the Services to you,
including, without limitation, all copyrights, trademarks,
patents, trade secrets and other proprietary rights are and will
remain the sole and exclusive property of Limelight Online
Limited or its suppliers, including but not limited to any
software programs, inventions, products and/or technology
innovations and methodologies utilized, developed, or disclosed
by Limelight Online Limited during the term of this Agreement.
Unauthorized copying, reverse engineering, decompiling, and
creating derivative works based on the any such software is expressly forbidden except as permitted in this Agreement. You
may be held legally responsible for violation of any patent
rights, copyright or trade secret rights that is caused or
encouraged by failure to abide by the terms of this Agreement.
4.3. Trademarks
You hereby grant to Limelight Online Limited a limited right to
use your trademarks, if any, for the limited purpose of
permitting Limelight Online Limited to fulfill its duties under
this Agreement. This is not a trademark license and no other
rights relating to the trademarks are granted by this
Agreement. Specifically, but without limitation, the rights
granted by this Agreement do not include the right to sublicense
use of your trademarks or to use your trademarks with
any other products or services outside the scope of the
Services provided under this Agreement. The limited trademark
use rights granted under this section terminate upon
termination of this Agreement.
5. WARRANTY; WARRANTY DISCLAIMER
5.1. Customer and/or Third Party Acts
Limelight Online Limited is not responsible in any manner for
any non-confirming Services to the extent caused by you or
your customers. In addition, Limelight Online Limited is not
responsible for loss or corruption of data in transmission, or for
failure to send or receive data due to events beyond Limelight
Online Limited's reasonable control.
5.2. No Express or Implied Warranty
All services, systems and products provided by Limelight Online
Limited under this agreement are provided without any express
or implied warranty in fact or in law, whatsoever. You
acknowledge and agree that limelight online limited exercises
no control over, and accepts no responsibility for, the content
of the information passing through Limelight Online Limited's
computers, network hubs and points of presence, or the
internet. Limelight Online Limited does not warrant that the
operation of the services will be uninterrupted or error-free, or
completely secure, and does not make any warranties with
respect to patent, copyright, trade secret or trademark
infringement. All services performed under this agreement are
performed "as is" and without warranty against failure of
performance including, without limitation, any failure due to
computer hardware or communication systems. Except as
expressly provided in this agreement, Limelight Online Limited
does not make and hereby disclaims, and you hereby waive all
reliance on, any representations or warranties, arising by law
or otherwise, regarding the services, including, without
limitation, implied warranties of merchantability, fitness for a
particular purpose, or conditions of quality, and any warranties
with respect to patent, copyright, trade secret or trademark
infringement.
5.3 Your Warranties and Representations to Limelight Online
Limited
You warrant, represent, and covenant to Limelight Online
Limited that (a) you are at least eighteen (18) years of age or
are a duly organized and validly existing entity; (b) you
possess the legal right and ability to enter into this Agreement;
(c) you will use the Services only for lawful purposes and in
accordance with this Agreement and all applicable policies and
guidelines; (d) you will be financially responsible for the use of
your account; (e) you have acquired or will acquire all
authorization(s) necessary for hypertext links to third-party
Web sites or other content; (f) you have verified or will verify
the accuracy of materials distributed or made available for
distribution via the Services, including, without limitation, your
content, descriptive claims, warranties, guarantees, nature of
business, and address where business is conducted, and (g)
your content and/or any software that you install or provide
does not and will not infringe or violate any right of any third
party (including any intellectual property rights) or violate any
applicable law, regulation or ordinance.
6. LIMITATION AND EXCLUSION OF LIABILITY
6.1. Limitations
In no event shall Limelight Online Limited have any liability
whatsoever for damage, unauthorized access to, alteration,
theft or destruction of information provided to Limelight online
limited , distributed or made available for distribution via the
services. Limelight Online Limited shall have no liability under
this agreement or otherwise for consequential, exemplary,
special, incidental, or punitive damages even if limelight online
limited has been advised of the possibility of such damages. In
any event, the liability of Limelight Online Limited to you for
any reason and upon any cause of action shall be limited to the
amount actually paid to Limelight Online Limited by you under
this agreement during the thirty (30) days immediately
preceding the date on which such claim accrued. This limitation
applies to all causes of action in the aggregate, including,
without limitation, to breach of contract, breach of warranty,
negligence, strict liability, misrepresentations, and other torts.
The fees for the services set by Limelight Online Limited under
this agreement have been and will continue to be based upon
this allocation of risk. Accordingly, you hereby release Limelight
Online Limited from any and all obligations, liabilities, and
claim in excess of the limitation stated in this section 6.1.
Because some states do not allow the exclusion or limitation of
liability for consequential or incidental damages, in such states,
our liability is limited to the extent permitted by law.
6.2. Interruption of Service
You hereby acknowledge and agree that Limelight Online
Limited will not be liable for any temporary delay, outages or
interruptions of the Services. Further, Limelight Online Limited
shall not be liable for any delay or failure to perform its
obligations under this Agreement, where such delay or failure results from any act of God or other cause beyond its
reasonable control (including, without limitation, any
mechanical, electronic, communications or third-party supplier
failure).
6.3. Management
You hereby acknowledge and agree that Limelight Online
Limited reserves the right to temporarily suspend services for
the purposes of maintaining, repairing, or upgrading its
systems and network. Limelight Online Limited will use best
efforts to notify you of pending management however at no
time is it under any obligation to inform you of such
management.
6.4 Applicable Law
The Consumer Guarantees Act 1993 may apply to any services
we provide to you if you acquire these services for personal,
domestic or household use. If this act applies, all rights you
may have under it apply in addition to the rights you may have
in this agreement. Nothing in this agreement will limit or
exclude your rights under this act.
Where you acquire or hold yourself out as acquiring our
services for the purpose of a business, then you agree that the
provisions of the Consumers Guarantee Act 1993 will not apply
to our service or the provision of any other services to you.
7. INDEMNIFICATION
You will defend, indemnify and hold harmless Limelight Online Limited and its officers, directors, shareholders, employees, consultants, agents, affiliates and suppliers (an "Indemnitee") from any and all threatened or actual claims, demands, causes of action, suits, proceedings (formal or informal), losses, damages, fines, penalties, liabilities, costs and expenses of any nature, including attorneys' fees and court costs, sustained or incurred by or asserted against any Indemnitee by any person, firm, corporation, governmental authority, partnership or other entity by reason of or arising out of or relating to: (i) your violation or breach of any term, condition, representation or warranty of this Agreement or any applicable policy or guideline; (ii) your conduct, including but not limited to your negligence, gross negligence, or willful misconduct; (iii) your use of the Services, including any improper or illegal uses; (iv) any claim by a former employee of yours whose employment has been or may be terminated in connection with or as a result of the execution of this Agreement and performance of the Services by Limelight Online Limited ; or (v) any claim relating to your services or products, or your installation and/or use of any third-party software, including but not limited to advertising, product liability claims or infringement of any trademark, copyright, patent, trade secrets or nonproprietary right of a third party (including, without limitation, defamation, libel, or violation of privacy or publicity).
8. MISCELLANEOUS
8.1 Confidentiality
The parties each agree that all Confidential Information (as
defined below) communicated to it by the other is done so in
confidence and will be used only for the purposes of this
Agreement and will not be used to compete with the other
party or disclosed to any third party without the prior written
consent of the other party except as permitted under this
Agreement. "Confidential Information" means all information in
any form, including, without limitation, printed or verbal
communications and information stored in printed, optical or
electromagnetic format, which relates to the Services; or
computer, data processing or electronic commerce programs
and software; electronic data processing applications, routines,
subroutines, techniques or systems; information which
incorporates or is based upon proprietary information of either
party; or information concerning business or financial affairs,
product pricing, financial conditions or strategies, marketing,
technical systems of either party; or any information
concerning customers or vendors of either party; or any data
exchange between a party and any customers or vendors.
Exceptions to Confidential Information include (1) information
in the public domain; (2) information developed independently
by a party without reference to information disclosed under this
Agreement; or (3) information received from a third party
without restriction and/or breach of this or a similar
Agreement. It is not a violation of this provision to disclose
Confidential Information in compliance with any legal,
accounting or regulatory requirement beyond the control of
either Party or, but in such case, prior to disclosure, the
disclosing Party shall give written notice to the other Party to
permit that Party an opportunity to challenge such disclosure.
If either Party is subpoenaed, such Party shall give written
notice to the other Party to permit that Party an opportunity to
challenge the disclosure of Confidential Information. Upon the
termination of this Agreement and upon written request of the
disclosing Party, each Party shall promptly return all
Confidential Information of the other Party. This provision shall
survive the termination of this Agreement for two (2) years.
8.2. Notices
All notices, reports, requests, or other communications given
pursuant to this Agreement shall be made in writing, shall be
delivered by hand delivery, overnight courier service, fax, or
electronic mail, shall be deemed to have been duly given when
delivered.
8.3. Choice of Law and Forum
This agreement will be governed by the laws of New Zealand
any action relating to this agreement must be brought in the
courts located in New Zealand, and you irrevocably consent to
the jurisdiction of such courts.
8.4. Entire Agreement
This Agreement and all policies and guidelines incorporated in
this Agreement by reference constitutes the entire Agreement
of the parties and may not be modified or altered orally but
only by an agreement in writing signed by both parties.
8.5. No Fiduciary Relationship
Limelight Online Limited is not the agent, fiduciary, trustee or
other representative of you. Nothing expressed or mentioned in
or implied from this Agreement is intended or shall be
construed to give to any person other than the parties hereto
any legal or equitable right, remedy or claim under or in
respect to this Agreement. This Agreement and all of the
representations, warranties, covenants, conditions and
provisions hereof are intended to be and are for the sole and
exclusive benefit of the parties hereto.
8.6. Assignments
You may not transfer or assign your rights, duties, or
obligations under this Agreement without Limelight Online
Limited's prior written consent. Limelight Online Limited may
assign its rights and obligations under this Agreement and may
utilize affiliate and/or agents in performing its duties and
exercising its rights under this Agreement, without your
consent. Subject to that restriction, this Agreement will be
binding on, inure to the benefit of, and be enforceable against
the parties and their respective successors and assignees.
8.7. No Waiver
Limelight Online Limited's failure to enforce the strict
performance of any provision of this Agreement will not
constitute a waiver of Limelight Online Limited's right to
subsequently enforce such provision or any other provisions
under this Agreement.
8.8. Severability
If any provision of this Agreement is deemed illegal, invalid,
void or otherwise unenforceable in whole or in part, that
provision shall be severed or shall be enforced only to the
extent legally permitted, and the remainder of the provision
and the Agreement shall remain in full force and effect. If any
provision of this Agreement is deemed to be invalid, void or
unenforceable only with respect to a particular application,
such term or provision shall remain in full force and effect with
respect to all other applications.
8.9. Survival
All provisions of this Agreement relating to your warranties,
intellectual property rights, limitation and exclusion of liability,
your indemnification obligations and payment obligations shall
survive the termination or expiration of this Agreement.
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