Hosting Service Agreement
This document sets forth the principles, guidelines and requirements of the Hosting Service Agreement of Pukunui Technology (“Pukunui”)governing the use by the Customer (“Customer”) of Pukunui’s services and products (“Services and Products”).
The purpose of Pukunui’s Hosting Service Agreement, hereinafter referred to as the HSA, is to comply with all federal, state, and local laws coupled with protecting the network security, network availability, physical security, Customer privacy, and other factors affecting the services provided by Pukunui.
Pukunui reserves the right to impose reasonable rules and regulations regarding the use of its services provided to all Customers and such rules and regulations are subject to change. Such rules and regulations are located on the Internet at https://pukunui.com/docs/. The HSA is not an all inclusive exhaustive list and Pukunui reserves the right to modify the HSA at any time as needed, effective upon either the posting of the modified HSA to https://pukunui.com/docs/hsa.html or notification to the Customer via email.
Acceptance and execution of a Hosting Service or Package binds all parties to Pukunui stated HSA at the time the contract is executed and as modified from time to time. Any violation of the HSA may result in the suspension or termination of Customer account(s) or such other action as Pukunui deems appropriate. No credits will be issued for any interruption in service resulting from policy violations.
Term and Renewal
Customer agrees to a one-year term or unless otherwise stated in an Order Form or any service description, the initial term (“Initial Term”) of this Agreement shall be yearly, commencing on the Effective Date and shall automatically renew in the case of a one-year term, each yearly anniversary of the Effective Date for successive one-year periods unless cancelled or terminated earlier pursuant to the express terms of this Agreement (in each case, a “Renewal Period”).
Customer agrees to be bound by the service term as confirmed in writing when initiating a service offered by Pukunui.
Pukunui may cancel or elect not to renew the Products and Services for any reason or no reason at all by delivering to Customer a written notice of non-renewal at least five (5) days prior to the expiration of the Initial Term or the then-current Renewal Period, as applicable.
Customer Cancellation or Non-Renewal
In order to cancel or elect not to renew any Product or Service, Customer must provide a Cancellation Notice by:
(i) advise in writing or email to support@pukunui.com at least two (2) weeks prior to expiration of the Initial Term or the then-current Renewal Term and
(ii) upon submission of the Cancellation Notice, contact via telephone a Pukunui customer service representative to confirm the information set forth on the Cancellation Notice, unless otherwise instructed in writing by Pukunui to do so otherwise.
Customer acknowledges and agrees that no product or service will be cancelled, all products and services shall continue to renew and customer will continue to be billed for all products and services unless customer confirms via telephone the information provided in the cancellation notice as provided in section 3 clause (ii) above.
Termination
Pukunui may immediately terminate this Agreement at any time, and without liability, upon the occurrence of any of the following events (“Pukunui Termination”):
(i) Customer’s failure to pay any overdue amount within ten days after written notice by Pukunui is given to Customer or
(ii) Customer’s material breach or violation of any provision of this Agreement (other than such violations set forth in clauses (iii), (iv) and (v) below) that is not cured within ten (10) days of Customer’s receipt of written notice from Pukunui referencing such breach or violation;
(iii) Customer ceasing to do business in the normal course, becoming or being declared insolvent or bankrupt, being the subject of any proceeding relating to liquidation or insolvency which is not dismissed within ninety (90) calendar days, or making an assignment for the benefit of its creditors;
(iv) Customer’s violation of the AUP or the Privacy Policy; or
(v) Pukunui determines in its sole discretion that Customer continues to host content that may subject Pukunui to legal liability (in which case, Pukunui may terminate or modify the Products and Services to avoid such liability).
Customer may terminate this Agreement with respect to all, and not less than all, of the Products and Services without liability (except for Charges due through the effective date of such termination) upon the occurrence of a material breach by Pukunui of its obligations to provide the Products and Services according to the terms of this Agreement that is not cured within ten (10) business days after written notice from Customer describing such breach in detail is received by Pukunui (“Customer Termination”).
In the event of a Customer Termination, Customer shall pay
(1) all outstanding amounts payable through the effective date of such termination and
(2) if the Products and Services include software for which Pukunui does not then provide general customer support, Customer shall pay to Pukunui an amount equal to Pukunui’s cost of such software for the entire Initial Term and any applicable Renewal Periods.
If Customer terminates this Agreement for any reason other than a Customer Termination, Customer shall pay to Pukunui an amount equal to all unpaid Charges through the effective date of such termination and
(A) in the case of any Product and Service subscribed for on an annual basis, all Charges for the Products and Services through the remainder of the Initial Term or the then-current Renewal Term, as applicable and
(B) in the case of any Product and Service subscribed for other than on an annual basis, all Charges for the Products and Services through the remainder of the Initial Term or the then-current Renewal Term, as applicable, calculated based upon the then-current Minimum Annual Commitment payable by Customer upon the date of termination.
The Customer acknowledges that they will not be entitled to any refund or credit in the event that any product or service that is provided on the basis of a one-year term is terminated, with or without cause, prior to the expiration of the one-year term. The Customer hereby waives all rights to any such refund or credit.
Upon termination of this Agreement, Pukunui and Customer shall have no obligations to each other, except as provided for in this Agreement. Upon termination of this Agreement, Customer shall
(i) pay all Charges and other amounts due and owing to Pukunui under these Terms of Service,
(ii) immediately remove from Pukunui’s premises all property owned by Customer, including, but not limited to, immediately removing all of Customer’s data from Pukunui Network (including all servers owned or operated by Pukunui ), and
(iii) return to Pukunui all software, access keys, and any other property provided to Customer by Pukunui under this Agreement.
Any physical property of Customer not removed from Pukunui’s premises within forty-five (45) days after such termination shall become the property of Pukunui, which may, among other things, dispose of such property without the payment of any compensation to Customer. Sections 4, 5, 6, 7 and 8 shall survive the expiration, cancellation and termination of this Agreement for any reason.
Payment
Customer agrees to pay all charges, fees, penalties, early cancellation charges, reconnection fees, service interruption fees, installation fees and other amounts due under this Agreement (collectively “Charges”) in Australian dollars. Each Customer that is an Australian resident agrees to pay all taxes applicable to its account. Except as otherwise provided for herein, all Charges for the Products and Services, and for any additional services described herein, shall be invoiced to the Customer and paid in advance of the Initial Term and each Renewal Term (but may include any applicable pro-rated amounts for partial years of for Products and Services provided on an annual basis) and shall be due and payable upon receipt.
Customer also shall pay to Pukunui all expenses incurred by Pukunui in exercising any of its rights under this Agreement or applicable law with respect to the collection of a payment default, including attorneys’ fees, court costs, and collection agency fees. If Customer fails to pay any past due amount within five (5) days after written notice by Pukunui is given to Customer, Pukunui may suspend performance under this Agreement and if such past due amounts remain unpaid within five (5) days thereafter, Pukunui may terminate this Agreement. Pukunui may charge interest on any invoice amounts that are overdue by more than ten (10) days at the lesser of
(a) 1.5% per month or
(b) the maximum non-usurious rate under applicable law.
Customer shall be deemed to have accepted as conclusively accurate any invoice that it has not disputed in a writing delivered to Pukunui within sixty (60) days of the invoice date.
Customer may withhold the disputed portions of payments that are properly and timely disputed hereunder as long as it timely pays all undisputed charges that are outstanding.
The parties shall work together in good faith to resolve any such disputed charge. In the event that this Agreement is terminated by Pukunui for any reason constituting “Pukunui Termination” (as defined above) or by Customer for any reason other than “Customer Termination” (as defined above), all Charges under the Agreement, including all remaining quarterly or yearly fees due for the remaining portion of the Initial Term and each applicable Renewal Period, shall accelerate and are immediately due and payable.
All set-up fees, annual service fees and usage fees are non-refundable. Customer shall not be entitled to any refunds or credits, pro-rated or otherwise, in the event of early termination of this Agreement by Pukunui according to the terms herein.
Indemnification
Customer agrees to indemnify and hold harmless Pukunui, its subsidiaries, their affiliates and each of their respective directors, officers, employees, shareholders and agents (each an “Indemnified Party”) against any losses, claims, damages, liabilities, penalties, actions, proceedings, judgments, or any and all costs thereof (collectively, “Losses”) to which an Indemnified Party may become subject and which Losses arise out of, or relate to the Agreement, Customer’s use of the Products and Services, breach of any confidentiality obligation or any alleged infringement of any trademark, copyright, patent or other intellectual property right and will reimburse an Indemnified Party for all legal and other expenses, including reasonable attorneys’ fees incurred by such Indemnified Party, in connection with investigating, defending, or settling any Loss, whether or not in connection with pending or threatened litigation in which such Indemnified Party is a party.
Disclaimers; Limitation on Company Liability
Pukunui shall not be liable for:
(i) any indirect, incidental, special or consequential damages, or for any loss of profits or loss of revenue resulting from the use of the products and services by the customer or any third parties or any failure of the products and services or
(ii) any loss of data, including loss of data resulting from delays, nondeliveries, mis-deliveries, service interruptions, failure of Pukunui network, reclamation of servers by Pukunui, failure of servers, the reloading of an operating system or other software on a server or the negligence of Pukunui.
Customer is solely responsible for safeguarding, backing up and archiving all data owned, controlled or transmitted by customer that resides on Pukunui network or any server owned or operated by Pukunui.
In no event shall Pukunui’s aggregate liability for any claim under this agreement exceed the aggregate amount paid by customer to Pukunui in the billing cycle immediately preceding such claim. Pukunui provides all products and services “as is,” without warranty of any kind, whether express or implied and disclaims all implied warranties, including, but not limited to, the implied warranties of merchantability or fitness for a particular purpose.
Customer shall be solely responsible for the selection, use and suitability of the products and services and Pukunui shall have no liability therefore.
No claim may be asserted by customer against Pukunui more than two (2) years following the date of the event that underlies any such claim.
Customer hereby acknowledges and agrees that its sole remedy in the event of Pukunui ‘s failure to provide any products and services in accordance with the terms of this agreement as a result of a “qualified downtime event” (as defined in the SLA) shall be the right to service credits (as defined in the SLA) solely as provided for in the SLA.
Any questions or comments regarding the HSA should be directed to info@pukunui.com
Contact
If you have any questions regarding this policy, or your dealings with our website, please contact us here:
Pukunui 116 Parry Street, Perth WA 6000