DISCLAIMER : Brainstorm Technology are resellers of Web Hosting. As such we are bound by our suppliers Terms of Service. By using our hosting services our account holders will not hold Brainstorm Technology responsible for any issues in breach of the terms of services listed below, or failure to supply services as promised (unless it can be clearly proven that the breach resulted from Brainstorm Technologies actions independent of their suppliers). Any action taken thereafter will be directly between the account holder and our hosting reseller. Likewise any breach of the terms of service resulting from an account holders action where Brainstorm technology incur any charges or penalties will be passed onto the account holder. Should an account holders actions have an adverse effect on any or all other account holders with Brainstorm Technology, including Brainstorm Technology, then the offending account holder will be responsible for compensation to all effected parties in whatever form deemed appropriate by Brainstorm Technology. Where legal action occurs against Brainstorm technology by our suppliers as a result of one of our account holders actions, Brainstorm technology reserves the right to identify the account holder to our supplier as the sole instigator of said action. The account holder agrees to accept legal liability and resolve Brainstorm Technology of any legal liability.
By using Brainstorm Technology's hosting services you are agreeing to the above disclaimer and the Terms of Services printed below.
Terms of Service
This is an agreement between you and Brainstorm Technology and associated partners (hereafter the service provider), regarding your use of the service provider's computer, interactive information, communication and server management service. This Agreement governs the terms and conditions under which our supplier makes the services offered by the service provider available to individual consumers through a personal computer or similar access, or to individual consumers or small businesses in connection with the “Brainstorm Technology " web hosting or similar services. Under this Agreement, you must comply with the service provider's then current "Acceptable Use Policy," as updated from time to time by the service providers, which can be viewed at: http://www.brainstormtech.com.au/hostingterms.php
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.
1. Brainstorm Technology's and associated partners (herafter refered to as the service provider) will host an account for you, the purchaser (hereafter referred to as the Account Holder), for the Account Holder's chosen domain name, for the period of time (the Term) corresponding with the payment plan chosen by the Account Holder. This contract will be automatically renewed at the end of the Term and each successive renewal term, unless terminated.
2. The service providers services are provided on an as is, as available basis without warranties of any kind, either express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose or non-infringement. The service provider expressly disclaims any representation or warranty that the service providers services will be error-free, secure or uninterrupted. No oral advice or written information given by the service provider, its employees, licensors of the like, will create a warranty; nor may you rely on any such information or advice. The terms of this Section will survive any termination of this Agreement.
3. Account Holder acknowledges that the nature of the service furnished and the initial rates and charges have been communicated to the Account Holder. Account Holder is aware that the service provider reserves the right to change the specified rates and charges from time to time.
4. The Account Holder agrees to follow generally accepted rules of "Netiquette" when sending e-mail messages or posting to newsgroups. Account Holder is responsible for security of its password. The service provider will not change passwords to any account without proof of identification, which is satisfactory to The service provider, which may include written authorization with signature. In the event of any partnership break-up, divorce or other legal problems that includes Account Holder, Account Holder understands that the service provider will remain neutral and may put the account on hold until the situation has been resolved. Under no circumstances will the service provider be liable for any losses incurred by Account Holder during this time of determination of ownership, or otherwise. The Account Holder agrees to indemnify and hold harmless the service provider from any and all Claims arising from such ownership disputes. The terms of this Section will survive any termination of this Agreement.
5. The Account Holder's rights and privileges under this Agreement cannot be sold or transferred without the prior written consent of the service provider.
6. If the Account Holder sells or resells advertising or web space to a third party then the Account Holder will be responsible for the contents of that advertising and the actions of that third party. The service provider has the absolute right to reject any advertising or other third party content that is illegal, offensive or otherwise in breach of the then current service providers Acceptable Use Policy. The e-mail distribution by the Account Holder of "SPAM", "JUNK MAIL", or "UNSOLICITED COMMERCIAL E-MAIL", is expressly prohibited. If the Account Holder refuses to remove any advertising or other third party content deemed objectionable by the service provider, the service provider may terminate the services being provided to the Account Holder.
7. The service provider will use its best efforts to maintain a full time Internet presence for the Account Holder. The Account Holder hereby acknowledges that the network may, at various time intervals, be down due, but not restricted to, utility interruption, equipment failure, natural disaster, acts of God, or human error. In no event shall the service provider be liable to the Account Holder for any damages resulting from or related to any failure or delay of the service provider in providing access to the Internet under this Agreement. In no event shall the service provider be liable to the Account Holder for any indirect, special or consequential damages or lost profits arising out of or related to this Agreement or the performance or breach thereof. The aggregate, total liability of the service provider under this Agreement, if any, shall in no event or circumstance exceed the total amount actually paid by the Account Holder hereunder. The terms of this Section will survive any termination of this Agreement.
8. This Agreement applies to all accounts, sub-accounts, and alternative account names associated with your principal account. The Account Holder is responsible for the use of each account, whether used under any name or by any person, and for ensuring full compliance with this Agreement by all users of that account. A service providers account may not be transferred without prior written approval from the service provider. The Account Holder is responsible for maintaining the confidentiality of his/her password. In the event of a breach of security through the Account Holder's account, the Account Holder will be liable for any unauthorized use of the the service provider services, including any damages resulting there from, until the Account Holder notifies the service provider's customer service.
9. If the service provider assigns the Account Holder an Internet Protocol address in connection with the Account Holder's use of the service providers services, the right to use that Internet Protocol address will remain with and belong only to the service provider, and the Account Holder will have no right to use that Internet Protocol address except as allowed by the service provider in its sole and absolute discretion.
10. This Agreement constitutes the entire agreement between the Account Holder and the service provider with respect to the service providers services and supersedes all prior agreements between the Account Holder and the service provider. The service provider's failure to enforce any provision of this Agreement shall not be construed as a waiver of any provision or right. In the event that a portion of this Agreement is held unenforceable, the unenforceable portion will be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions will remain in full force and effect. The terms of this Section will survive any termination of this Agreement.
11. The parties shall attempt to resolve all disputes arising out of this Agreement in a spirit of cooperation and with a problem-solving mindset, without formal proceedings. Any dispute, which cannot be so resolved, shall be subject to binding arbitration upon the written demand of either party. Arbitration shall take place in either Western Australia or Las Vegas, NV, the location of which is the decision of the service provider. The arbiter shall be non-biased, and shall be selected by mutual agreement of the parties unless the parties fail to agree on a specific arbitrator within one week of either party requesting for arbitration to be scheduled, in that event, the appropriate legal body shall appoint a specific arbitrator. Either party shall pay 50% of the total cost of arbitration in advance prior to the scheduling of arbitration. Should any legal action permissible under this Agreement be instituted to enforce the terms and conditions of this Agreement, in particular the right to collect money due on unpaid invoices, the prevailing party shall be entitled to recover reasonable attorney's fees and expenses incurred at both the trial and appellate levels. The terms of this Section will survive any termination of this Agreement.
12. The Account Holder agrees to indemnify and hold the service provider harmless from any and all Claims resulting from or connected with any activities conducted by the Account Holder. The Account Holder and the service provider will promptly notify the other upon receipt of any Claim or legal action arising out of activities conducted pursuant to this Agreement. The rights and responsibilities established in this paragraph will survive any termination of this Agreement.
13. the service provider may include the Account Holder's name and contact information in directories of the service provider service subscribers for the purpose promoting the use of the services by additional potential clients. However, the service provider is not authorized to print the Account Holder's name, trademarks or other identifying information in any other advertising or promotional materials without the prior written consent of the Account Holder.
14a. With the provision of 14b, the interpretation and enforcement of this Agreement shall be governed according the laws of the state of Nevada (excluding its choice of law rules) and the federal laws of United States applicable therein. The Account Holder hereby consents to personal jurisdiction in the federal and provincial courts of Las Vegas, NV for any action arising out of or relating to the Account Holder's use of the the service providers services. The federal and provincial courts of Las Vegas, NV will have exclusive jurisdiction over all such actions. In any such action, the prevailing party will be entitled to recover all legal expenses incurred in connection with the action, including but not limited to its costs, both taxable and non-taxable, and reasonable attorney's fees. The terms of this Section will survive any termination of this Agreement.
14b.
Where a dispute arrises between the Account Holder and the service provider, that is not covered by this agreement, and/or where Brainstorm Technology can clearly be identified as the sole provider of products or services relating to the dispute, then the interpretation and enforcement of this Agreement shall be governed according to the laws of the state of Western Australia (excluding its choice of law rules) and the federal laws of Australia applicable therein. The Account Holder hereby consents to personal jurisdiction in the federal and provincial courts of Albany, Western Australia for any action arising out of or relating to the Account Holder's use of the the service providers services. The federal and provincial courts of Albany, Western Australia will have exclusive jurisdiction over all such actions. In any such action, the prevailing party will be entitled to recover all legal expenses incurred in connection with the action, including but not limited to its costs, both taxable and non-taxable, and reasonable attorney's fees. The terms of this Section will survive any termination of this Agreement.
15. Notices required by this Agreement shall be in writing and shall be delivered either by personal delivery or by mail. If delivered by mail, notices shall be sent by any express mail service; or by certified or registered mail, return receipt requested; with all postage and charges prepaid. All notices and other written communications under this Agreement shall be addressed to the individuals in the capacities indicated below, or as specified by subsequent written notice delivered by the party whose address has changed.
16. Refunds. Virtual account holders can receive a refund if account is cancelled within the initial 90 days after sign up. If the account holder cancels after the time period specified, there will be no refund given.
17. The service provider may temporarily deny service or terminate this Agreement upon the failure of Account Holder to pay charges when they become due. Such termination or denial will not relieve the Account Holder of responsibility for the payment of all accrued charges, plus reasonable interest and any collection fees.
18. If an account holder's account becomes overdue, the account will be suspended. Interest will accrue on the overdue account at a rate of 5% per month until the outstanding balance is paid in full.
19. If an account holder charges back for services rendered, the customers account will be terminated and a $150.00 charge back fee will be added to the amount charged back by the customer.
20. If an account holder's account is overdue for 90 days, the account will be handed over to an outside collection agency. At that time the account holder will incur a $50.00 collection fee added to the balance previously due.
21. If an account is found to be in violation of the terms of service it will be terminated immediately and all payments forfeited.
22. For closed accounts there is a $25 per incident charge for all inquiries regarding previous services and or support.
23. SLA Credits. If the Network Uptime Guarantee of 100% is not met the user must submit within 7 days of the outage proof from an approved 3rd party monitoring site (currently approved: alertra.com, dotcom-monitor.com). Monitoring interval of reports must be 5 minutes and contain minimum 3 unique source geographical location checks. At which time the request is verified a credit will be issued at the rate of one days credit for each 0.1% below 99.99% not to exceed 30 days credit. Service Credits can only be used towards account fees. If the Server Uptime Guarantee of 99.99% is not met the user must submit within 7 days of the outage proof from an approved 3rd party monitoring site (currently approved: alertra.com, dotcom-monitor.com). Monitoring interval of reports must be 5 minutes and contain minimum 3 unique source geographical location checks. At which time the request is verified a credit will be issued at the rate of one days credit for each 0.1% below 99.99% not to exceed 30 days credit. Service Credits can only be used towards account fees.
24. Cancellation. In order to cancel an account with the service provider the account holder must complete and submit in full notification of cancellation via email http://www.brainstormtech.com.au/contact_us.php. Notification must be submitted 3 days prior to the renewal date of the account.
25. Right of refusal. The SERVICE PROVIDER has the right to refuse services to anyone.
26. Account holder is responsible to monitor all domain transfers, renewal and orders. In the event that an error occurs the account holder must notify the service provider immediately of the error. In no event shall the service provider be liable to the Account Holder for any damages resulting from or related to any failure or delay of transfer or renewal. If an account holder does not remit payment for an invoice and a domain fails to renew there will be a $25 fee assessed to manually renew the domain. The terms of this Section will survive any termination of this Agreement.
Acceptable Use Policy (AUP)
By using Brainstorm Technology and associated partners (hereinafter the service providers) web hosting services, you agree to comply with our policies. You are expected to use the Internet with respect, courtesy, and responsibility, giving due regard to the rights of other Internet users. Our Terms and Conditions of Use policy is one of zero tolerance. We reserve the right to immediately discontinue services without liability, refund or continuance of any prepaid service fees. The following are unacceptable uses: Illegality in any form, including but not limited to activities such as unauthorized distribution or copying of copyrighted software or other intellectual properties, violation of U.S. export restrictions, harassment, fraud, trafficking in obscene material, drug dealing, and other illegal activities.
Interpretation
The provisions of this Policy are intended as guidelines and are not meant to be exhaustive. Generally, conduct that violates law, regulation, or the accepted norms of the Internet community, whether or not expressly mentioned in this Policy, is prohibited. Brainstorm Technology and its associated partners reserve the right at all times to prohibit activities that damage its commercial reputation and goodwill.
Illegal Use
Brainstorm Technology and its associated partners servers may be used only for lawful purposes. Transmission, distribution or storage of any material in violation of any applicable law or regulation is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorization, and material that is obscene, indecent, intolerant, racist, defamatory, constitutes an illegal threat, or violates export control laws. Examples of non-acceptable content or links: "Pirated software", "Hackers programs or archives", "Torrents or Bit Torrents", "Warez Sites", "Irc Bots", "Mp3". We will be the sole arbiters as to what constitutes a violation of this provision.
System and Network Security
Violations of system or network security are prohibited, and may result in criminal and civil liability. Examples include, but are not limited to the following: unauthorized access, use, probe, or scan of a systems security or authentication measures, data or traffic. Interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks. Forging of any TCP-IP packet header or any part of the header information in an e-mail or a newsgroup posting.
Tortious Conduct
No one shall post defamatory, scandalous, or private information about a person without their consent, intentionally inflicting emotional distress, or violating trademarks, copyrights, or other intellectual property rights. No one shall impersonate another person or entity.
Spamming
You must follow all State and Federal laws regarding unsolicited email. Sending unsolicited mail messages, including, without limitation, commercial advertising and informational announcements, is expressly prohibited. A user shall not use another site's mail server to relay mail without the express permission of the site or distributing, advertising or promoting software or services that have the primary purpose of encouraging or facilitating unsolicited commercial E-mail or spam. When Brainstorm Technology and associated partners (hereafter the service providers) becomes aware of an alleged violation of its Acceptable Use Policy, the service providers will initiate an investigation (within 24-48 hours). During the investigation the service providers may restrict Customer's access in order to prevent further possible unauthorized activity. If the Customer is found in violation of our SPAM policy, the service providers may, at its sole discretion, restrict, suspend, or terminate Customer's account and/or pursue other civil remedies. Also, the service provider reserves the right to pursue civil remedies for any costs associated with the investigation of a substantiated policy violation. If such violation is a criminal offense, the service provider will notify the appropriate law enforcement department of such violation. All personal information will be turned over to law enforcement upon their request. The service provider does not issue service credits for any outages incurred through service disablement resulting from Policy violations. The Customer shall be held liable for any and all costs incurred by the service provider as a result of the customer's violation of these terms and conditions. This is including, but is not limited to, attorney fees and costs resulting from Postmaster responses to complaints from and the cleanup of unsolicited commercial mailings and/or unauthorized bulk mailings and/or news server violations. First violations will result in a Cleanup Fee of $250 and the customer's account will be reviewed for possible immediate termination. A second violation will result in Cleanup Fee of $500 and immediate termination of the customer's account. The Customer who violates this policy agrees to also pay Investigation Fees of no more than $125 per hour that the service provider personnel must spend to investigate any violations.
Trademark and Copyrights:
You hereby agree and warrant that any material submitted for publication or use through your account(s) will not violate or infringe any copyright, trademark, patent, intellectual property right, right of privacy or publicity, statutory, common law or proprietary rights of others, or contain anything libelous or harmful, and you indemnify Brainstorm technology and associated partners (hereafter the service provider) as to the same and HOLD the service provider HARMLESS from any related civil action.
The Digital Millennium Copyright Act ("DMCA") sets forth the requirements for valid copyright infringement notification. The service provider takes all allegations seriously and will investigate each notice immediately. Once Brainstorm Technology receives your infringement notice, we will notify the web site owner that they will have 24 hours to either (i) take down or remove the disputed material, or (ii) provide a counter-notice. The service provider still reserves the right to remove or take down material immediately without any prior notice.
If you would like to notify the service provider of an infringement of your copyright, the DMCA requires that you:
• Send your notification to Brainstorm Technology. You may use one of the following two avenues for this notification:
- Fax to: Brainstorm Technology. , Attention: Abuse at (08) 98 428952
- Mail or courier to: Brainstorm Technology, Attention: Abuse, 42C Sanford Road, Albany, Western Australia, 6330
• Include in your notification the following information
- A physical or electronic signature of the copyright owner or a person authorized to act on the copyright owner's behalf (the "Claimant")
- Identification of the copyrighted work(s) claimed to have been infringed.
- Identification of the material claimed to infringe the copyright(s), and enough information for Brainstorm technology to locate it.
- The Claimant's name, address, and telephone number(s).
- A statement that the Claimant has a good faith belief that use of the disputed material is not authorized by the copyright owner or his agent.
- A statement, under penalty of perjury, that the information in the notification of copyright infringement is accurate and that the Claimant is authorized to act on behalf of the copyright owner.
If you wish to learn more about the Digital Millennium Copyright Act. visit www.copyright.gov/legislation/dmca.pdf
Modification
The service provider reserves the right to add, delete, or modify any provision of this Policy at any time without notice. Reporting Network Abuse Any party seeking to report any violations the service providers policy may contact via e-mail: paul@brainstormtech.com.au
