Virtual Private Server Terms and Conditions

This page is important. It gives you, as the customer, a summary of your rights and responsibilities and requires you to formally agree to them before your application proceeds further. By proceeding further you agree to these terms and conditions.

Definitions

The following words and expressions shall have the meanings hereby assigned to them except where the context otherwise requires;

Client", "Customer(s)", and "You" and "Your" mean the party or parties who enter into this agreement with 2day.com;

2day.com, "us", "we" and "our" means 2day.com (part of the ICONZ group);

"Backbone connection point" means the nearest network node to the Data Centre in which the server is housed which is an Internet peering exchange. For servers hosted in the ICONZ data centre, this is defined as the Auckland Peering Exchange.

"Managed Services" means any procedures carried out by 2day.com at the customer's request which are outside the scope of standard support and for which a charge will apply.

"Provision" means for us to configure the virtual server on a physical server installed in the Data Centre, and to install the Virtual Private Server’s operating system and management software (if any), and issued you with access details.

Physical Server means a physical server owned and operated by 2day.com, or its parent company, including subsidiary companies, and configured with virtualisation software, designed to facilitate the operation of multiple Virtual Private Servers.

Virtual Private Server or VPS means a virtual server configured on a Physical Server, and provided for the exclusive use of the customer so long as this agreement is active

Service means the provision of the Virtual Private Server with the specifications defined on the application form, including operating system, network traffic quota, and any server software management licence selected.

System means the computer system, programming and communication facilities required by 2day.com for the operation of the service;

General Terms

2.1 The Terms and Conditions set out on this page relate only to your use of the Virtual Private Server provided by 2day.com.
2.2 Our contract with you also includes the application form and the specifications contained therein, and 2day.com’s Acceptable Use Policy together with such amendments to it as may be issued by 2day.com from time to time.
2.3 You must notify 2day.com by emailing accounts@2day.com whenever any of your contact details change, or by updating details at any web page that 2day.com may provide for that purpose.
Without limiting the indemnity and liability provisions below 2day.com will not be responsible in any way for any losses, damages, costs or expenses as a result of your failure to comply with this clause.
2.4 2day.com reserves the right to modify, enhance and withdraw all or part of the service and alter its Policies and these Terms and Conditions. In the event of any change 2day.com shall endeavour, except in cases of emergency, notify you by email giving reasonable prior notice of the change(s).
2.5 2day.com will endeavour to provision your Virtual Private Server in a timely manner, but makes no guarantees as to availability of hardware or provisioning time.
2.6 Any changes to the price and description of hardware and/or services on 2day.com's website subsequent to provisioning of your server will not apply to your server during the term of your agreement and may not be able to be provided on your server.
2.7 2day.com may, at any time, perform a credit reference check and/or a trade reference check with respect to Your circumstances or status, whether financial or otherwise;
2.8 You warrant that if the customer is a corporate body you are duly authorised to enter into this contract on behalf of the customer.
2.9 You warrant that if the customer is an individual, you are over 18 years of age.

Cancellation of agreement and suspension of service

3.1 The term of this agreement operates on a monthly basis.
3.2 The customer may cancel a montly service any time via the website or by sending a letter or a facsimile message.
3.3 Service fees billed in advance in relation to cancelled services will result in a credit to your account for the month in advance that was not used
3.4 You acknowledge the right of 2day.com to cancel this agreement at any time upon a breach of these terms and conditions, that remain without cure of the breach, after 7 days notice in writing to your last known contact address. Any cancellation shall be subject to the provisions of clause 6 as to the exemption from liability that 2day.com has in such circumstances. Any cancellation shall be notified to you by email at your last notified email address.
3.5 If payment of annual or monthly fee is not received by 4 days after due date, your services will be automatically suspended.
3.6 In the event of a charge back by a credit card company (or similar action by another payment provider allowed by us) or other non-payment by you in connection with the service, your service will be automatically suspended. A reinstatement fee of $NZ50 will apply.

Acceptable Use

4.1 Failure to follow our Acceptable Use Policy may result in individual sites or the entire Virtual Private Server being immediately suspended without prior notice until such time as your site(s) again comply with the policies.
4.2 Amendments to the Acceptable Use Policy will take effect 15 business days after they are notified. Continued use of the service signifies your acceptance of the amendments. If you consider that the amendments prevent your continued use of the service you may notify us in writing and terminate this agreement without liability.
4.3 2day.com may monitor your use of the Services and any material posted, downloaded, transmitted or communicated using the Services for compliance with 2day.com’s Terms. 2day.com may pass any material or information it suspects as illegal or offensive, to the relevant authority and you will have no claim against 2day.com for this.
4.4 2day.com may also monitor your use of the services at anytime with regard to reasonable usage and if it deems your usage is in excess of the agreed service plan(s), and, or it solely places a strain on 2day.com resources or services to its existing or prospective clients, 2day.com reserves the right to request you to upgrade your service plan within 48 hours of written notification from 2day.com to your last known contract address. Failure to authorise, or provide suitable remedies in the above event may result in the suspension of your services.

Payments

5.1 In consideration of 2day.com providing you with the service, you agree to make payment as follows:

(a) The only acceptable methods of payment for 2day.com Virtual Private Servers are cheque, direct credit and credit card.
(b) Any one-off costs incurred for upgrades to the service or for Professional Services shall be payable in full by the due date for all services billed to your account.
(c) If any payment due to us is not received by the due date we may charge you interest at a rate we specify and which is equivalent to our bank overdraft interest rate plus 2% per annum on the overdue amount from the due date until payment of the relevant amount and we may also recover from you all legal and related collection costs incurred by us arising from the collection of any amount which you owe.

Limitation of Liability and Indemnity

6.1 2day.com shall not be liable for:

(a) Any costs, losses, expenses and/or damages whether direct or indirect which are incurred by you as a result of your failure in whole or in part to comply with any of these terms and conditions.
(b) Any costs, losses, expenses and/or damages whether direct or indirect which are incurred by you as a result of our failure to fulfil our commitments under this agreement in circumstances where the failure is due in whole or in part to any cause or event outside the reasonable control of 2day.com.
(c) Any indirect or consequential costs, losses, expenses and/or damages including but not limited to loss of profits, caused by any failure on the part of 2day.com to perform its commitments under this Agreement.
(d) Any third party claims and/or third party costs, losses, expenses and/or damages whether brought against 2day.com or you and which relate to your site. Further you agree to indemnify 2day.com, it's employees, owners and directors against all such third party claims, costs, losses, expenses and/or damages, including any reasonable legal costs of and incidental to 2day.com (and/or it's employees, owners and directors) defending itself.
(e) Any amount by way of claim not otherwise excluded above , which exceeds in total an amount equal to six months’ fees.

Backup

In the event that you have purchased backup space:

7.1 Backup space is provided on the basis of storage space on the backup server only. Performance of backups is the customer's responsibility.
7.2 In the event that the customer has selected Server Management software provided by 2day.com and chooses to use the backup capability of that software:

(a) 2day.com makes no guarantee than any individual backup attempt will succeed, nor that any restoration attempt will succeed.
(b) 2day.com reserves the right to require the customer to vary the time of backup processes for operational purposes.
(c) The backup image is intended to facilitate restoration of the full system from the backup image in the event of hard-drive failure or similar event.
(d) A service charge will apply to requests to extract data from a backup image in any circumstance other than failure of the server.

7.3 2day.com's responsibility in the event of server failure is limited to the provision of a replacement hard drive(s) (if required) and reinstallation of the operating system and server management software (if any) provided by 2day.com.

Applicable Law

8.1 If you are using our Service for personal domestic or household purposes, the Consumer Guarantees Act will apply and nothing in these Terms and Conditions shall derogate from that. Thereafter all statutory and implied warranties which can be excluded are deemed hereby to have been excluded to the fullest extent possible.
8.2 If you are using our Service for any purpose in respect of which the Consumer Guarantees Act does not apply then you agree that the Act and all other statutory or implied warranties will not apply to this contract with you and they are excluded to the fullest extent possible.
8.3 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.

Force Majeure

9.1 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 reasonable control. Such circumstances comprise, but are not confined to, acts of God, war, sabotage, technological deficiency in the Internet, telephone and communications network or other facilities owned and/or operated by third parties or similar.

Service Levels

10.1 Server Uptime is defined as the percentage of time the Virtual Private Server is running and capable of responding via its Ethernet port, excluding any scheduled downtime whether notified or not. Server uptime shall be assessed over a minimum period of one month.

2day.com undertakes to make every reasonable effort to maintain Server uptime of 99.6%

10.2. Network Uptime is defined as the percentage of time there is a route to the server from the backbone connection point , excluding any scheduled downtime whether notified or not. Network uptime specifically excludes connectivity from the backbone connection point to any arbitrary point on the Internet. Network Uptime shall be assessed over a minimum period of one month.

2day.com undertakes to make every reasonable effort to maintain Network uptime of 99.9%

10.3. Notwithstanding the earlier limitations as to liability contained in section 6, in the event of any breach of the Service levels established by this section 2day.com's liability under this section shall be limited to a maximum of one month's fee for the affected Products and/or Services.
10.4. In all cases server uptime and network uptime shall be subject to any event of Force Majeure.

Preventative Maintenance Downtime Notice

11.1. Preventative Maintenance means support required in the opinion of 2day.com to maintain the integrity of service.
11.2. 2day.com shall endeavour to give notice of preventative maintenance as follows:

(a) Planned, non-critical maintenance: 2 business days notice
(b) Planned, critical maintenance: 24 hours notice
(c) Emergency maintenance: Earliest possible opportunity, at our discretion

11.3 Although we follow industry-standard security procedures, 2day.com makes no warranty as to the privacy of your data or email.
11.4. Where possible we will undertake preventative maintenance at a time where effects on New Zealand-based users are minimised.
11.5. Notification will be by email to the address supplied to us for such purpose.

System Security

12.1 The customer is responsible for choosing adequately secure passwords and for maintaining the security of said passwords.
12.2 2day.com reserves the right to use password strength analysis tools to determine the security of passwords on the server. 2day.com may change any password immediately should it be found to be inadequately secure for its purpose. 2day.com will notify the customer by email to the last known contact address in such an event.

Miscellaneous

13.1 This agreement shall become effective on the date of your order form has been submitted to us for the said service.
13.2 You shall be deemed to have read this agreement and agree to be bound by this agreement. This agreement shall
13.3 2day.com reserves the right to require whatever form of identification is deemed necessary to verify the authenticity of any request regarding the service.
13.4 Either party may deem the other party to have received any notice sent under this agreement within the following time of its being sent to the last known relevant address:

(a) Within four days of its being lodged with the postal service or within 24 hours of successful transmission by facsimilie machine in the case of notices that are required to be in writing.
(b) Within 48 hours of its sending by email or SMS service, provided that no bounce or failure response has be received in that time for all other notices.

13.5 Notices required to be in writing may be given in the following ways:

(a) by post or commercial courier service to the last known address of the other party. For notices to 2day.com this address is listed on the contact page of the 2day.com website.
(b) By facsimile transmission to the last known fax number. For notices to 2day.com this number is listed on the contact page of the 2day.com website.

13.6 We may assign or transfer our rights and responsibilities under this contract to someone else. We will give you written notice in advance if we intend to do this.
13.7 We may also subcontract the performance of any of our responsibilities under this contract to anyone else.
13.8 You may not assign or transfer any of your rights or responsibilities under this contract to anyone else without our prior written consent.

terms & conditions