Johanson Brothers Australia Online Agreement

Please read this agreement in its entirety.

All users of our service will be bound by this Agreement.

This User Agreement (the “Agreement”) governs the terms of the use by Client of web-hosting services (“the Services”) offered by Johanson Brothers Australia, ABN 30 147 753 723 (“Johanson Brothers”). The Client agrees to use Services according to the following terms and conditions:

1. Selection of Service Plan. Client will select one of the service plans(“the Plans”) offered by Johanson Brothers, and agrees to use the Services according to the Plan selected.
2. Payment for Services. Client may pay for the Services directly by credit card authorisation provided to Johanson Brothers or be invoiced by Johanson Brothers. When initiating the Services, Client will be charged the published set up fee for the Services contained in the Plan selected, and will be charged a monthly payment for the Services from the date of initiation according to the Plan selected by Client. If Client pays for Services via credit card, the Client authorises Johanson Brothers to charge the Clients credit card when the next payment is due according to the Plan selected by Client. If Client elects to take advantage of any discounts offered for prepayment of Services and this Agreement is terminated for any reason, other than in clause 23, then any unused prepaid amounts will not be refunded by Johanson Brothers.
3. Satisfaction Guarantee. Johanson Brothers gives a 30 day money back guarantee on the Services not including the Reseller Packages. If you are not completely satisfied with the Services within the first 30 days of use, you will be given a full refund excluding set up fees and overages. If Client elects to take advantage of any discounts offered for prepayment of Services, then any unused prepaid amounts will not be refunded by Johanson Brothers.
4. Variation of Agreement. Johanson Brothers reserves the right to unilaterally vary the terms, fees and conditions contained in this Agreement at any time without prior notification to the Client of its intention to do so. However, upon any variation the Client will be issued with a notice from Johanson Brothers detailing any variations made and the Client will be deemed to have accepted any such variation unless written notice of termination is given to Johanson Brothers within seven (7) days of receipt of such notification.
5. Term. This Agreement will continue for the time specified in the Plan (“the Term”) selected by the Client and will be automatically renewed on the expiry of the initial Term and then further renewed for each and every subsequent Term unless terminated in accordance with this Agreement.
6. Termination. Unless otherwise stated this Agreement may be terminated at any time by either party on the giving of sixty (60) days notice in writing by post or facsimile transmission. E-mail and telephone requests will not be acceptable as notification of termination. If this Agreement is terminated for any reason by either party, then any unused prepaid amounts will not be refunded by Johanson Brothers.
7. Compliance with Law. Client will use the Services offered by Johanson Brothers in a manner consistent with all applicable Local, State, Federal and International laws, treaties and regulations and any violation of this provision can result in termination immediately or with 30 days notice depending on the severity of the of the violation and Johanson Brothers shall retain the unfettered discretion in determining the severity of such a breach.
8. Prohibition of Publication of Certain Material. Client shall not knowingly or unknowingly submit to Johanson Brothers for publication through the Service any of the following material (including pictures, links, or any other content):
   • • (a) any material which violates or infringes any copyright, trademark, trade secret, patent, statutory, common law or other proprietary rights of others;
     • (b) any material that is libelous or slanderous;
     • (c) any material which is or contains anything obscene or pornographic; or
     • (d) distribution lists to be used via unsolicited electronic mail or other mass electronic mailings including but not limited to: mass-newsgroup postings, SPAM and unsolicited email sent from Client’s host server, or any other service on the Internet, which contains Client’s domain name or any other domain name on Johanson Brother’s network; or

   (e) any material, virus, Trojan Horse or other programs which is designed to damage, destroy or harm in any way both hardware and/ or software of the computer and electronic operating systems of Johanson Brothers or any third party.

   • (f) any material, mp3’s, video streaming or video files;

   Any violation of the above conditions or failure or refusal by Client within seven (7) days to remove any material or content referred to above on request by Johanson Brothers may result in termination of Client’s account and Johanson Brothers has the unfettered discretion in determining what constitutes unacceptable material or content.

   Johanson Brothers does not screen in advance Client’s material submitted to Johanson Brothers for publication. Johanson Brother’s publication of material submitted by Client does not create any express or implied approval by Johanson Brothers of such material, nor does it indicate that such material complies with the terms of this Agreement.

9. Confidential Information/Privacy. Due to the public nature of the Internet, all material submitted or e-mail sent by Client to or through the Services will be considered publicly accessible and Johanson Brothers makes no warranties as to the confidentiality, secrecy or privacy of any information so submitted or sent whether or not the Client expressly informs Johanson Brothers or it can be reasonably inferred such information is confidential or private.
10. Limitation/Disclaimer of Liability. Johanson Brothers does not represent or warrant to Client that Client will receive continual and uninterrupted Services during the term of this Agreement. In no event shall Johanson Brothers be liable to Client for any damages resulting from or related to any failure or delay of Johanson Brothers to provide Services under this Agreement if such delays or failures are due to strikes, riots, fire, inclement weather, acts of God, theft or vandalism or other causes beyond Johanson Brother’s control, as defined by standard practices in the industry. Such failure or delay shall not constitute a default under this Agreement.
    Neither Johanson Brothers, its directors, servants, agents or employees shall be in any way liable for any loss or damage of any nature whatsoever suffered, whether arising directly or indirectly, by the Client or any person related to or dealing with the Client out of, in connection with or reasonably incidental to the provision of the Services by Johanson Brothers to the Client.
11. Disclaimer of Warranties. While Johanson Brothers uses all reasonable care in providing the Service, Johanson Brothers shall not have any liability whatsoever in contract, tort or otherwise to any party in respect of any loss or damage (including without limitation direct or consequential loss, economic loss or loss of other contracts) arising out of the provision of the Service, any inaccuracy or error or omission from any part of the Service or a Client’s inability to use the Service and information contained therein and in the event that this Agreement constitutes a supply of services to a consumer as defined in the Trade Practices Act 1974 or relevant State or Territory legislation, nothing contained in this Agreement excludes restricts or modifies any condition, warranty or other obligation where to do so would be unlawful and in such event Johanson Brother’s sole liability for breach of any such condition, warranty or other obligation, including any consequential loss which the Client may sustain or incur shall be limited to in relation to services the supplying of the Service again or the payment of the cost of having the Service supplied again as Johanson Brothers may elect.
12. Indemnity. Client agrees to defend, indemnify and hold Johanson Brothers harmless from and against any and all claims, losses, liabilities and expenses (including solicitors’ fees) related to or arising out of the Services provided by Johanson Brothers to Client under this Agreement, including without limitation claims made by third parties (including customers of Client) related to any false advertising claims, liability claims for products or services sold by Client, claims for patent, copyright or trademark infringement, claims due to disruption or malfunction of services provided hereunder, or for any content published by Client using the Services, but excluding those directly caused by the negligence of Johanson Brothers.
13. Resale of Johanson Brother’s Service. If Client acts as a ‘reseller’ of the Services provided by Johanson Brothers to Client hereunder, by Client providing similar services to its customers, then all the terms of this Agreement shall apply to the resale. Without limiting the foregoing, Client’s obligations under Section 12 (‘Indemnity’) shall apply to any and all claims made against Client and/or Johanson Brothers which arise out of the resale of Johanson Brother’s Services.
14. Netiquette. The Client agrees to follow generally accepted rules of “Netiquette” when sending e-mail messages or posting to newsgroups.
15. Password. The Client is responsible for security of their password. Johanson Brothers will not change passwords to any account without proof of
    identification which is satisfactory to Johanson Brothers, which may include written authorisation with signature.
16. Johanson Brothers Impartial. In the event of any partnership break-up, divorce or other legal problems effecting the Client, Client understands that Johanson Brothers will remain neutral and may put the Service on hold until the situation has been resolved. Under no circumstances will Johanson Brothers be liable for any losses incurred by Client during any time of determination of ownership, or otherwise.
17. Governing Law. This Agreement shall be governed by the laws of the State of New South Wales, or where applicable the Commonwealth of Australia and the parties expressly submit to the jurisdiction of the Courts of that State or, where applicable, of the Commonwealth.
18. Relationship of the Parties. It is agreed that no partnership, joint venture, agency or employee/employer relationship is intended by this Agreement and any implication as to any such relationship is hereby expressly negatived.
19. Taxes. If any Federal, State or Local government entity with taxing authority over the Services provided under this Agreement imposes a tax, including but not limited to a Goods and Services Tax, directly on the Services provided by Johanson Brothers to Client under this Agreement (excluding any income, business and occupation, capital gain, death or inheritance, or other indirect taxes), then Johanson Brothers may pass the direct amount of such cost on to Client, and Client shall promptly pay such cost.
20. Waiver. Any party’s failure to insist on compliance or enforcement of any provision of this Agreement shall not affect its validity or enforceability or constitute a waiver of future enforcement of that provision or of any other provision of this Agreement.
21. Solicitors’ Fees. If a legal proceeding is commenced to enforce or obtain a declaration of rights under this Agreement, the prevailing party in such proceeding shall be entitled to recover its reasonable attorneys’ fees and costs incurred in the proceeding from the non-prevailing party, as well as any reasonable attorneys’ fees and costs that the prevailing party incurred prior to commencing the proceeding.
22. IP Addresses. Johanson Brothers maintains control and any ownership of any and all IP numbers and addresses that may be assigned to Client and reserves in its sole discretion the right to change or remove any and all IP numbers and addresses.
23. Refusal of Service. Johanson Brothers retains the absolute and unfettered discretion to approve or refuse the provision of the Services used by the Client.
24. Corporate Client. If the Client is a company
    • 24.1 it shall be bound by these terms and conditions in its own right as a company;
    • 24.2 the Directors of such a corporation shall personally guarantee, jointly and severally, to the Johanson Brothers, the performance of the company of the obligations under this Agreement and the Directors shall be liable in law or equity, for any breach or liability under this Agreement, whether caused by act or omission on the part of the company, its agents, servants or employees.
    • 24.3 The Directors shall indemnify and keep indemnified the Johanson Brothers, its directors, servants, agents and employees against any and all claims, suits, actions and demands of any kind and howsoever arising out of or in connection with this Agreement and the supply of those services by Johanson Brothers to the Client.
25. Assignment. The rights granted to the Client under this Agreement and any Services supplied is personal to the Client and is not to be assigned or transferred to any third party without the express prior consent in writing of Johanson Brothers.
26. Shared Servers. The Client understands the Service is provided on a shared server and acknowledges that its web-site cannot overwhelm the server with heavy usage from highly active scripts such as CGI or chat scripts and in the event that usage of Client’s web-site overwhelms the server leading to complaints from other clients, it will be deemed by Johanson Brothers to have outgrown the realm of shared servers and will need to relocate its web-site whereupon Johanson Brothers will refund any unused portion of pre-paid services and immediately terminate this Agreement.
27. Severability. Should any part of this Agreement be or become invalid, that part shall be severed from this Agreement and such invalidity shall not affect the validity of the remaining provisions of the Agreement.
28. Survival of Certain Provisions. Each indemnity under this Agreement is a continuing indemnity and shall constitute a separate and independent obligation of the party giving the indemnity from its other obligations under this Agreement and unless a contrary intention is indicated shall survive the termination or completion of this Agreement.
29. Entire Agreement. The Client acknowledges and agrees that this Agreement is the entire Agreement between the parties and excludes all oral or implied representations and terms unless such terms are agreed between the parties in writing.