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.

1. 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 Freeparking;

Freeparking, Freeparking.co.nz, "us", "we" and "our"

means Freeparking (a trading division of WebFarm Ltd. and part of the ICONZ group.);

"Backbone connection point"

means the nearest network node to the datacentre 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.

"Backup"

means storage provided for backup images on a disk-based on-site backup device.

"Managed Services"

means any procedures carried out by Freeparking 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 physically install the server in the datacentre, connect to network and power, install the agreed operating system and management software (if any), and issue you with access details.

Server

means a physical web server owned and operated by Freeparking or its parent company and provided for the exclusive use of the customer so long as this agreement is active;

Service

means the lease of the server, its rack space, data communications, power and air conditioning, operating system, network traffic quota, operating system, any server software management licence selected.

System

means the computer system, programming and communication facilities required by Freeparking for the operation of the service;

2. General Terms

• • 2.1 The Terms and Conditions set out on this page relate only to your use of the dedicated server provided by Freeparking.
  • 2.2 You must notify Freeparking by emailing info@freeparking.co.nz whenever any of your contact details change, or by updating details at any web page that Freeparking may provide for that purpose.
    
    Without limiting the indemnity and liability provisions below Freeparking 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.
  • 2.3 By accepting these terms and conditions you agree to abide by Freeparking's Acceptable Use Policy together with such modifications and updates to it as may be issued by Freeparking from time to time. Failure to follow such policies may result in individual sites or the entire server being immediately suspended without prior notice until such time as your site(s) again comply with the policies.
  • 2.4 Freeparking 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 Freeparking shall endeavour, except in cases of emergency, notify you by email giving reasonable prior notice of the change(s).
  • 2.5 Freeparking will endeavour to provision your 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 Freeparking'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.

3. Guarantee period

• • 3.1 You may cancel this agreement for any reason by notice in writing during the first thirty days of its operation ("the guarantee period").
  • 3.2 The guarantee period shall commence when we send the provisioning notification email containing initial access codes and passwords for your server.
  • 3.3 Upon cancellation of the agreement within the guarantee period, Freeparking will refund all fees paid with the exception of a service fee of $99.95 + GST and any "Managed services" fees. The setup fee shall apply in all cases, including the 12-month payment option.

4 Cancellation of agreement and suspension of service

• • 4.1 The term of this agreement for provision of a dedicated server is fixed at 24 (twenty four) months, at the conclusion of which it shall operate on a monthly basis.
  • 4.2 After expiry of the 24 month period, either party can give the other one month's notice of cancellation of the agreement. If the customer requests termination of the service with notice of less than one month, the full month's fee shall be payable.
  • 4.3 If this agreement is cancelled after 24 months and payment is on an annual basis, fees will be refunded for the number of months unused in accordance with the notice provisions above.
  • 4.4 You acknowledge the right of Freeparking to cancel this agreement at any time upon a breach of these terms and conditions remaining unremedied 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 Freeparking has in such circumstances. Any cancellation shall be notified to you by email at your last notified email address.
  • 4.5 If payment of annual or monthly fee is not received by 5 days after due date, your services will be automatically suspended.
  • 4.6 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.

5. Payments

• • 5.1 In consideration of Freeparking providing you with the service, you agree to make payment as follows:
    • (a) The only acceptable methods of payment for Freeparking dedicated servers are cheque and credit card.
    • (b) Any one-off costs incurred for upgrades to the service or for Managed Services shall be payable within one month of their being incurred.
    • (c) Customer is responsible for all costs incurred or payable by Freeparking related to the collection of unpaid debt.

6. Limitation of Liability and Indemnity

• • 6.1 Freeparking 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 Freeparking.
    • (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 Freeparking 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 Freeparking or you and which relate to your site. Further you agree to indemnify Freeparking, 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 Freeparking (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 12 months fees.

7. 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 Freeparking and chooses to use the backup cabability of that software:
    • (a) Freeparking makes no guarantee than any individual backup attempt will succeed, nor that any restoration attempt will succeed.
    • (b) Freeparking 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 Freeparking'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 Freeparking.

8. Applicable Law

• • 8.1 You agree that you are acquiring our services for the purpose of a business, then you agree that the provisions of the Consumer Guarantees Act 1993 will not apply to our service to you.
  • 8.2 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.

9. 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.

10. Service Levels

• • 10.1 Server Uptime is defined as the percentage of time the 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.
    
    Freeparking 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.
    
    Freeparking 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 Freeparking'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 up time and network up time shall be subject to any event of Force Majeure.

11. Preventative Maintenance Downtime Notice

• • 11.1. Preventative Maintenance means support required in the opinion of Freeparking to maintain the integrity of service.
  • 11.2. Freeparking shall endeavour to give notice of preventative maintenance as follows:
    • (a) Planned, non-critical maintenance: 3 business days notice
    • (b) Planned, critical maintenance: 24 hours notice
    • (c) Emergency maintenance: Earliest possible opportunity, at our discretion
  • 11.3. Where possible we will undertake preventative maintenance at a time where effects on New Zealand-based users are minimised.
  • 11.4. Notification will be by email to the address supplied to us for such purpose, or, with prior agreement by SMS message to a mobile telephone number supplied to us for such purpose.

12. System security

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

13. Miscellaneous

• • 12.1 This agreement shall become effective on the date of your order form 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 supersede all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter of this agreement.
  • 13.3 Freeparking 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 Freeparking this address is listed on the contact page of the freeparking.co.nz website.
    • (b) By facsimilie transmission to the last known fax number. For notices to Freeparking this number is listed on the contact page of the freeparking.co.nz website.