Terms & Conditions for the Supply of Services

Effective: 01/04/2006

1. Definitions
a) 'Loomsday' is Loomsday Limited, and its employees, officers, agents, and affiliates.
b) The 'Agreement" means Terms and Conditions and the details on the Application for Loomsday IT Services.
c) The 'Customer' refers to all other persons, companies, or other entities identified on the Application for Loomsday IT Services.
d) The 'Service' means the computing and provisioning service known as the Loomsday IT Service, as modified from time to time.
e) The 'Monthly Billing Date' defines the day of the month one month after the Customer has signed up the Agreement initially, and the subsequent same dates.

2. Application and Variation of these Terms
These terms and conditions are the terms on which Loomsday provides services to its customers, modified by any written contract between Loomsday and it's Customers in any particular case. The terms so modified constitute the agreement in its entirety and supersede prior agreements, excluding specific term contracts and contracts with Service Level Agreements. Loomsday may modify these terms as applying to any agreement, the pricing structure for any Service (excluding term contracts) or the terms of the operation by general notice at http://www.loomsday.co.nz, and by email newsletter to the last email address provided to Loomsday by the Customer. The Customer is required to keep their contact details with Loomsday current. Any use of Service more than 14 days after modification of these terms will constitute acceptance of these terms.

3. Security
The Customer takes responsibility for all use of the usernames and passwords related to the Service.

4. Internet Traffic
Loomsday reserves the right to restrict network bandwidth on services for Customers who exceed their monthly network traffic volume as stated in the Agreement. If the Customer has chosen to pay for exceeding network traffic, he or she will be billed separately when the Monthly Billing Date is due.

5. Charges
The Service is a subscription service payable in advance. The customer must pay for all services by the due date. In particular the Customer must pay for all service time charges and other amounts (e.g. network traffic) incurred by the Customer or its Users or incurred as a result of any use of the Customer Password (whether authorised or not) in accordance with the Service selected. In addition, the Customer may be liable for all charges and expenses incurred by Loomsday resulting from any security breach or attack or customer error that involves Customer hardware, software, or network configuration, including IP addresses.

6. Payment of Services
a) Payment for all service is due upon the invoice due date. The Customer must pay all amounts billed in accordance with the Service they are on. Any questions regarding the charges on a Service must be addressed within 14 days of the billing date. Where a charge is in dispute the Customer may withhold the disputed portion whilst it is investigated but non-disputed charges may not be withheld.
b) No credit terms are given. If payment is not received after the due date a finance fee of 3% (minimum $10) per month will be payable on all overdue amounts.
c) Services with a balance more than 30 days overdue may be suspended without further warning. A $10 suspension fee will be automatically applied. Suspended services may not be altered or closed until full payment is received.
d) Suspended services may be sent to Loomsday's debt collection agency without further notice. Any expenses incurred in the recovery of debt, including but not limited to legal and debt collection costs, shall be claimed on the customer.

7. Credit Checks Privacy Consent
The Customer consents to Loomsday obtaining credit reports and information containing personal information (as well as information concerning commercial credit worthiness and activities) for the purpose of assessment by Loomsday of an application for credit (whether commercial or personal) or for the purpose of the collection of payments that are overdue.

8. Privacy
Loomsday will not reveal, sell, or in any way divulge information about the Customer or the Service usage of the Customer to any individual, business, marketing, or research group without prior consent of the customer or without legal warrant.

9. Publication at Customers Risk
The Customer accepts responsibility for all information and material issued by the Customer over any Service, and indemnifies Loomsday against any liability in relation thereto. In particular the Customer undertakes that it shall not publish, distribute or issue any information that is illegal, including copyrighted materials. The Customer also acknowledges that Loomsday does not vet or approve any information or material available through any service and that Loomsday does not accept any liability. To the full extent permitted by law the Customer accesses and uses such information and material at his or her own risk.

10. Provision of Service
Loomsday will do their best to provide the Services to a high standard. However, the Service provided to the Customer relies on factors outside the control of Loomsday, i.e. it is impossible for Loomsday to provide perfect, uninterrupted or fault free Services.
In case of any planned or unplanned suspension of Service, Loomsday will try to restore the Service as soon as possible and will notify the Customer upon recovery from the outage.

11. Exclusion of Liability
Except as provided in clause 12 Loomsday is not liable to the Customer or any other person for:
a) any cost, loss or liability (including loss of profit or other consequential damage) arising from Loomsday's supply or failure or delay in supplying Service.
b) the content, context, or confidentiality of any communications made using the Service. Loomsday does not provide support for third party software, including the operating system, and any software downloaded from the Internet.

12. Limitation of Liability
Except as provided below all terms, warranties, undertakings, inducements and representations relating to the provision of any Service are excluded and Loomsday will not be liable for any loss or damage (including consequential loss or damage) however caused (whether by negligence or otherwise) in respect of any Service inclusive of any software material hosted or designed by Loomsday. However, Loomsday's liability for any breach of such implied term or warranty will be limited at Loomsday's option or in any way permitted by the legislation including where so permitted:
a) If the breach relates to goods: the replacement or repair of the goods; or the payment of the costs of replacing or repairing the goods.
b) If the breach relates to services: the supplying of those services again; or the payment of the costs of having those services supplied again.

13. Breaches
The Customer shall indemnify Loomsday against any loss (including any loss of profit) incurred by Loomsday as a result of any breach of the terms of any agreement with Loomsday including damages in respect of any period up to and including the date of actual termination (including termination under clause 14).

14. Indemnity
The Customer shall indemnify Loomsday against all claims, expenses, damages, or other liabilities arising directly or indirectly from accessing or publishing of obscene, defamatory, or offensive material via the Loomsday IT service.

15. Termination
Either party may terminate a non-fixed term agreement with 30 days written notice. Fixed term agreements (term as stated as in the Product / Service Selection on the online order form) may be terminated under the same conditions after the initial term has finished. Any balance owing on a Service must be paid prior to closure. After reasonable notice is given Loomsday may terminate any agreement of the provision of any Service if:
a) The customer breaches any term of any agreement
b) Loomsday forms the opinion in good faith that the Customer is or may be insolvent.
All deposits paid to Loomsday will be non-refundable if at any time the customer cancels the order.
All outstanding charges become immediately payable on giving of such notice and in no circumstances shall the Customer be entitled to any refund of payments made under this Agreement.

16. Suspension of Service
Loomsday may from time to time without notice, for reasons other than payment (reasonable notice will be given when possible) suspend any Service or disconnect or deny the Customer access to any Service:
a) During any technical failure, modification or maintenance involved in the Service provided that Loomsday will endeavour to procure the resumption of the Services as reasonably practicable; or
b) If the Customer fails to comply with any agreement (including failure to pay charges due, having been notified of the overdue amount) until the breach (if capable of remedy) is remedied, or does, or allows to be done anything which in Loomsday's opinion may have the effect of jeopardising the operation of any Service.
Notwithstanding any suspension of any Service under this clause the Customer shall remain liable for all charges due through the period of suspension. A Service that is suspended may not be altered or closed until full payment on any outstanding balance is received.

17. Information Received
Except as otherwise expressly permitted in writing, no person may reproduce, redistribute, retransmit, publish or otherwise transfer or exploit any information which they receive regarding Loomsday's Service in any way which is to be used for competitive purposes in relation to the Service.

18. Assignment
The Customer cannot assign its rights under any agreement with Loomsday without the prior written consent of Loomsday. Loomsday may transfer our rights and responsibilities under this assignment to another party with 30 days written notice to you.

19. Governing Law
This Agreement is governed by the laws of New Zealand and the parties submit to the jurisdiction of the New Zealand Courts. It is illegal to view certain types of information (notably types of pornographic material) in New Zealand. Users of Loomsday may not break any laws while using the system. The availability of such material on the Internet is beyond Loomsday's control.

20. Acceptable Use
Users of Loomsday are expected to adhere to all policies of Loomsday, available in writing upon request or on our web site at the footer of each page. While hacking, spamming and port scanning are not illegal activities in New Zealand, Loomsday does not support or condone these activities without the expressed consent of the recipient or administrator of that system.