Hosting.

The Preamble:

Website Hosting Services includes the hosting of a website online and a range of associated services to ensure the consistent operation of the website.

Definitions:

Company refers to Brainier Brands Pty Ltd.

Client refers to the individual or business that have requested a website be hosted for them.

Services refer to a combination of website hosting, website monitoring systems and website software maintenance duties.

Fees refer to the agreed monthly Services fee.

Supply of Hosting Services

The Company shall use reasonable endeavours to supply the Services in accordance with The Client Contract until the Services are terminated.

The Company shall not be liable for any delay or failure to perform our obligations under this Contract if such delay or failure is due to termination of access to a Service by the end supplier of the Service or as a result of a change to the conditions of supply by that supplier.

Monthly contracts will roll on a monthly basis without notice to the Client.

The Client acknowledges and accepts that a third party supplier will be used to provide the Service to the Client and the Company may change this supplier at any time in our sole discretion. Should a change in supplier occur, the Client acknowledges and agrees that the Company have full authorisation to move, alter or delete the Client data as reasonably necessary.

Minor Corrections

The Company allows for up to 10 minutes of time-related to minor website updates to the Client’s hosted website per calendar month. This time period expires at the end of each month and cannot be accrued in the following calendar months.

The minor website update time period cannot be used for the creation of new graphics, new website pages or the installation of new third-party software.

Should the Clients minor correction request require greater than 10 minutes of the Company’s time, the Company will provide a quote to the Client for finishing the website update.

Website Maintenance Services

The Company will endeavour to ensure all third party software required for the successful operation of the website is functional and updated to it’s most recent software version at least once per calendar month.

The Client acknowledges and accepts that a third party supplier of software may remove or change their software in such a way that it no longer functions on the website. The Client will not hold the Company liable for any loss or disruption to the website functionality due to such occurrences.

Intellectual Property

Nothing in the Contract transfers to either party any intellectual property rights (“IPR”) owned by the other party existing prior to the commencement of the Services.

Access To The Client’s Website

The Client must keep all login details secure and confidential at all times and must not disclose them to anyone else (except the Client employees who need to know them for the purposes of their employment).

The Client agree that they are totally responsible for all actions of the people (if any) to whom the Client provide their login details (whether knowingly or not, and whether directly or indirectly) while they obtain access to our systems using those login details, and that the Company are entitled to treat instructions provided by those people through such access as instructions originating from the Client.

The Client must notify us immediately of any breach of security or unauthorised use of the Client login details to access our systems. We will not be liable for any loss the Client incur due to any unauthorised use of the Client login details.

The Company must always have access to the Clients website at the “Administrator” level to ensure that it can perform website maintenance services. Removal of the Company access will result in the Company being required to take action to restore access. The time involved in taking such action will be invoiced to the client at an hourly rate of $120.

The Client’s Obligations

The Client must provide us with such co-operation and support as we may reasonably request to perform the Services.

The Client is solely responsible for obtaining any and all necessary intellectual property clearances and/or other consents and authorisations, including without limitation, clearances and/or consents in respect of The Client proposed domain name, any materials given by the Client to us, any content that the Client upload to the Client Service, and merchant services agreements between the Client and the relevant financial institutions.

Fees and Payment

The Client agrees to pay us the Fees as mutually agreed, in advance each month at the start of each month.

Payment of the Fees must be made by direct debit or via a nominated credit card.

It is the Client responsibility to ensure that credit card details are kept up to date at all times.

Without prejudice to our other rights and remedies under this agreement, if any Service Fees are not paid on or before their due date, we reserve the right, immediately and at our sole discretion, to suspend the provision of Services to the Client until such payment is made.

This includes, but is not limited to, placing a temporary HTTP password to prevent public access to the Clients website. The Client will continue to incur monthly charges to cover the Company’s ongoing hosting expenses during this period.

Termination

Either party can terminate a Contract for convenience at the end of the 30-day notice period.

Termination of Services must be provided by written notice.

Either party may terminate this Contract immediately by notice in writing to the other party if:

a) the other party commits a material breach which cannot be remedied, of its obligations under the Contract;

b) the other party commits a remediable material breach of its obligations under the Contract but fails to remedy that breach within 14 days of being required to do so in writing by the first party; or

c) an insolvency event, including entering into administration or liquidation, occurs with respect to the other party.

A “material breach” is defined as a breach of an obligation which is central to the performance of the Agreement which substantially and materially deprives the innocent party of the benefits it would have received under that Agreement.

Transfer

On termination of the Contract the Company, if requested, will provide support to transfer the website hosting to the Client.

The transfer support will consist of the following:

a) the arrangement of a backup and/or clone of the website to a new hosting contract with the Company’s current third-party service provider;

b) information on theme and plugin software licences required to be purchased by the Client will be provided.

c) a review of the website on the new host will be performed to ensure the website closely matches the previous version.

d) the Company will provide (if required) the client with 60 minutes of training either in person or via a conference call. Additional training will be provided at an hourly cost of $120 + GST.

The Company will only provide limited transfer support should the Client wish to transfer the website to a different hosting provider than the Company’s current provider. Should the Client wish to transfer to a different hosting provider the Company reserves the right to quote a transfer cost.

On transfer of hosting rights to the Client, the Client will immediately become responsible for all costs associated with the management of the website including, but not limited to, Third-Party Hosting, Theme and Plugin licencing costs.

Warranties

The Company does not warrant that the Services will be uninterrupted, timely, secure or error-free, or that they will be free from hackers, virus, denial of service attack or other persons having unauthorised access to our services or those of our suppliers.

The Client agrees that we may be required to perform maintenance in respect of our systems to ensure their satisfactory operation which may affect the availability or functioning of the Services. The Company will use reasonable endeavours to provide the Client with advance notice of any maintenance downtime, except when circumstances beyond our reasonable control prevent us from doing so.

Indemnity

The Client will indemnify and defend the Company and all directors, contractors, officers, employees, and agents of the Company from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including but not limited to reasonable legal fees on an indemnity basis or collection fees, commissions, fees, charges and expenses) arising out of, or directly or indirectly relating to:

a) Any Services provided to the Client;

b) Any breach of this agreement by the Client; and/or

c) The use of the Services by the Client.

Such claims shall include, but shall not be limited to, claims based upon trademark, service mark, trade name, copyright and patent infringement, trademark dilution, tortious interference with contract or prospective business relations, unfair competition, restrictive trade practices, misleading statement, misleading or deceptive conduct, breach of contract, defamation or injury to reputation, or other injuries or damage to business.

Liability

To the maximum extent permitted by applicable law, neither party is liable for:

a) any indirect, special or consequential loss or damage, any loss of profit, revenue or business opportunities, loss of or damage to data or loss of goodwill arising out of or in connection with the Services.

b) any loss or damage to the extent such loss or damage is caused or contributed to by the other party’s negligence, breach of contract or other wrongful acts or omissions; or

c) any claim made 6 months or more after the circumstances giving rise to the claim first became known by the claimant or could, with reasonable diligence, have become known by the claimant.

Each party’s aggregate liability for any loss or damage in connection with the provision of the Service, which is not excluded or limited under this clause is limited to the charges paid by the Client in respect of the Services for the preceding 12 months to any such claim.

No variation

No variation of this agreement shall be of any force or effect unless in writing and signed by the parties.

Applicable law

This agreement shall be governed and construed in accordance with the laws of the state of South Australia and the parties hereby irrevocably submit to the jurisdiction of the courts of that state.