Hosting Agreement

RECITALS:

WHEREAS the Parties have agreed that the Maxlence shall provide the Client with the list of services as annexed under Schedule II to this agreement and all dealing with online marketing and website development and related services on the terms and conditions set out in this agreement

AND WHEREAS The scope of services and costs are as stated in Schedule-I to this agreement now this Agreement witnesseth as follows:

Definition:

In this agreement the following words have the following meaning, unless expressly agreed otherwise:

1. Agreement means this agreement along with annexure A of this Website Development Agreement.
2. Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010(Cth).

• Business day means Monday to Friday excluding public holidays.

1. Confidential Information means any information or document about or in any way relating to the terms of this Agreement in any media or form that is acquired by or made available to the Client in the course of the relationship between the Parties, including but not limited to any information or documents about the Website and development process, the Maxlences business, organisational structure, activities, operating procedures, products and services, trade secrets and know-how, finances, plans, transactions and policies.
2. Force Majeure Event means war, strike, lockout, natural disaster, flood, earthquake, act of God or other circumstances beyond the reasonable control of the Maxlence.
3. Insolvency Event means: (a) where the party is a company, a resolution is passed or Court order made for the winding up of that party or an administrator is appointed to that party pursuant to any relevant law; (b) a receiver or manager or receiver and manager is appointed to the assets or undertaking of the party or any part thereof; or (c) the party is unable to pay its debts as and when they fall due.

• Intellectual Property Rights means all copyright, trademark rights, patent rights, and design rights, whether registered or unregistered, and all other rights to intellectual property as defined under article 2 of the convention establishing the World Intellectual Property Organization, and all rights to enforce any of the foregoing rights and Intellectual Property means any property that has these rights, including the Client Materials.
• Maxlence Code means all software, Source Code, Object Code, graphics, text, libraries and other components of the Website.

1. Object Code means software code expressed in machine-readable form.
2. Payment Terms means as set out in the Annexure-I
3. Personal Property Securities Register means the Personal Property Securities Register established under the Personal Property Securities Act 2009 (Cth).

• Search Engines means Google.com or as otherwise agreed between the parties.
• Source Code means software code expressed in human-readable form, which when compiled, assembled, interpreted or translated becomes Object Code.

    Website means the website to be developed under this Agreement as set out in this agreement

1. GENERAL TERMS AND CONDITIONS OF THE AGREEMENT

1.1. This Agreement sets out the standard terms and conditions on which Maxlence would provide its services to the Client.
1.2. The initial term of this Agreement is for a period of twelve months from the date of execution of the Agreement and which may be extended for such further period as may be agreed to between the parties.
1.3. Any reference to Maxlence in this agreement shall take into account it’s agents and employees except third parties who may be hired from time to time for fulfilment of services.

2. CLIENT OBLIGATIONS

2.1. The Client undertakes and agrees to comply with all the terms and conditions of this Agreement.
2.2. To make all payments due to Maxlence in due time as per the timelines provided in this Agreement.
2.3. Co-operate with Maxlence it’s agents and associates in providing efficient services.
2.4. The Client shall not commit an offence, or do anything that is contrary to the law in force in the State/s wherever the terms of this agreement may become directly or indirectly enforceable.
2.5. The Client shall not do anything which to the knowledge of the Client is likely to damage or interfere with (or threatens to damage or interfere with) the operation of any of Maxlence Services or which is likely to or may cause loss or damage to another person or entity.
2.6. The Client shall not transmit, publish or communicate any material which is defamatory, offensive, indecent, and abusive or which affects another person’s moral or legal rights or that which is against the law in force at all relevant times.
2.7. The Client shall not commit or cause commission of any action which is in direct breach of this agreement or any annexure and / or mutual understanding of the parties to this agreement.

3. MAXLENCE OBLIGATIONS:

3.1. To comply with all the terms of this Agreement with its Annexures.
3.2. To provide services in an efficient manner.
3.3. To maintain confidentiality of services unless required otherwise by law. In particular, Maxlence may be subject to the number of laws that require Maxlence to divulge information regarding the services provided to the Client. If directed to provide any information to law enforcement bodies Maxlence shall not be held accountable for the same by the Client.

4. INVOICE AND PAYMENTS

4.1. Fees and Charges:
4.1.1. The Client must pay all charges for the services received and scheduled to be received in accordance with the provisions of the Service description and pricing schedule.
4.1.2. Additional services provided on request which may or may not form part of this agreement will be separately charged.
4.1.3. The Client acknowledges and agrees that GST will be applicable to the Services that Maxlence provides. If Maxlence fees and charges are expressed as an amount exclusive of GST, th e Client must pay GST at the applicable rate in addition to the fees and charges. If Maxlence fees and charges are expressed as an amount inclusive of GST, the charges may vary in accordance with any changes to the applicable GST rate. The Clause may not apply if you are based outside Australia and the services are deemed to be exported.
4.2. Invoicing: It is acknowledged and agreed that
4.2.1. Client will be invoiced for the services in accordance with Service Description, the Pricing Schedule or as otherwise agreed in writing;
4.2.2. Fixed recurring charges will be invoiced monthly in advance;
4.2.3. Variable charges, if applicable, will be invoiced monthly in arrears. Invoices for variable charges are calculated on the basis of data recorded, logged or received by Maxlence and/ or its suppliers. Variable charges invoiced to the Client would only be reviewed in case the Client could show gross error in recording of variable charges.
4.2.4. All charges relating to an invoicing period/ billing cycle will be covered in the relevant invoice generated. However, in certain exceptional circumstances where the situation so demands the Client acknowledges and agrees that the charges may be included in a later invoice, provided that such invoice is issued within twelve months from the date of the relevant service having been given. In case of a conflict between this clause and any other clause of the agreement this clause should apply.
4.2.5. The Client agrees that Maxlence may amend and or review any invoice if an error is subsequently discovered provided that the same is notified and resent to the Client within 30 days from the date of dispatch of the earlier invoice except in cases covered under Clause 4.2.4 above.
4.2.6. In case the Client wants to dispute the issuance of an invoice;
a. The dispute must be raised in writing stating the reasons thereof and such other details which Maxlence may call for, within six months from the date of issuance of the invoice.
b. The Client undertakes that no proceedings in or under the law would be initiated unless first a dispute has been raised with Maxlence within six months of receiving the invoice.
c. If on inquiry Maxlence officials find no error in the invoice the same shall be communicated to the Client in writing stating reasons thereof, thereafter the pending invoice should be paid within 15 days of such communication having been received by the Client.
4.3. PAYMENTS
4.3.1. The Client undertakes to pay the invoices amounts within 10 days from the date of receipt of the invoice.
4.3.2. In case of delay in payment of Invoice beyond 10 days from the date of its issuance and delivery the Client shall be liable to pay interest on the delayed payment at the sole discretion of Maxlence which has the right to charge interest fee for the delayed payments as the same are likely to cause losses to general business administration requirements of Maxlence and result in losses to third parties/ agents of Maxlence who may be hired to provide certain services.
4.3.3. The Client understands that in case timely payments are not received by Maxlence for the services given, it is likely to affect the overall business of Maxlence. In case the Client refuses to pay the invoiced amounts within due time, Maxlence shall be at liberty to take legal action at a total cost and risk to the Client.

5. CHANGES TO PRICING

5.1. The attached Pricing Schedule forms an integral part of this agreement and any changes to the same shall be at the sole discretion of Maxlence and same shall be forwarded to the client in writing and.
5.2. Subject to other clauses of this Agreement if the Client is on a Fixed Term Contract, the Pricing Schedule shall remain fixed for the contracted services, unless agreed otherwise in writing.
5.3. If the fixed-term contract is terminated before the end of the term due to the Client’s breach of this Agreement the Client shall not be entitled to any refunds of advance payments if any paid and the same shall be adjusted against any amounts owed by the Client.

6. QUALITY AND MAINTENANCE

6.1. Maxlence aims to provide, but does not guarantee, continuous fault- free services.
6.2. The Service Description attached to this Agreement sets out Maxlence’s maintenance commitment to the client and the customer support that Maxlence shall provide.
6.3. The Client acknowledges and agrees that:
a. Maxlence or its agents may carry out regular maintenance on their Network in order to continue to provide the services;
b. Maxlence and/ or its agents shall always attempt to carry out maintenance outside of normal business hours, but there may be circumstances where this is not reasonably possible; and
c. Subject to all other provisions of this agreement if the Client’s services are terminated for reasons beyond control of Maxlence or the Client, Maxlence shall act reasonably to assist the Client with transferring of services to another provider.
6.4. The Client acknowledges and agrees that:
a. Before reporting a fault to Maxlence or it’s agent, the Client shall take all reasonable steps to ensure that the fault is not in, or caused by, any of Client equipments.
b. Any costs that Maxlence may incur due to Client’s incorrect reporting of faults may be charged to the Client.
c. Maxlence owes no responsibility for rectifying any fault in the Services beyond the scope of this Agreement and where the fault arises out of or is caused by, Client’s equipment or any third party provider engaged directly by the Client.

7. SECURITY

7.1. Subject to other terms of this Agreement the Client acknowledges and agrees that that Maxlence does not warrant that the Services meet your technical requirements, and that you are required to rely on your own knowledge and expertise when ordering and using Services.
7.2. If the Client request that Maxlence provide technical advice at any time, the Client agrees that:
7.2.1. Additional charges may apply, which will be disclosed to you before the technical advice is provided;
7.2.2. You may be required to enter into a Service Schedule as a condition of the technical advice being provided;
7.2.3. You must supply all relevant information regarding your technical requirements in a timely manner to enable us to provide accurate technical advice. If you do not supply all of the relevant information, and if our technical advice would have been different if all of the relevant information had been provided, you agree that we are not liable for any loss or damage that may result.
7.3. You acknowledge and agree that we do not provide you with any security for your Services, other than the physical security for the hardware in the relevant data centre, unless you have purchased a Managed Security Service through Maxlence
7.4. The Client warrants and agrees that the Client shall be solely responsible for managing the security for their services, unless otherwise agreed in writing.

8. AUSTRALIAN CONSUMER LAW

8.1. If the Client is an individual or a small business, as defined in the Australian Consumer Law, the Client has certain rights in relation to agreements such as this.
8.2. We have prepared this Agreement, and the associated documents so that they are fair and in accordance with the Clients rights and Maxlence obligations under the Law.
8.3. Maxlence acknowledges that Maxlence has a wide range of customers who all have different circumstances. If the Client believes that any of the terms of this Agreement are unfair, within the meaning of the Australian Consumer Law, please let Maxlence know and the concern shall be appropritaly discussed and addressed.
8.4. If the Client advices Maxlence that any of the terms of this agreement are unfair, the same shall be negotiated and appropriate amendments shall be made by Maxlence.

9. THIRD PARTY SUPPLIERS

9.1. Maxlence obtain Third Party Products and Services that are used, and permit the Client to use as part of our services. This includes, but not limited to, Software licences,
9.2. Maxlence confirms that the Client has entered into an agreement with Maxlence alone and not with any suppliers (unless the Client entered into a separate agreement with them). Maxlence shall be responsible for providing technical support for Third Party Products and Services, unless other arrangements have been agreed to.
9.3. It is the condition of our agreement with Suppliers that the Client must agree to certain obligation with respect to third party products and services as stated herein below:
9.3.1. The Client must not remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Third Party Products and Services;
9.3.2. The Client must not use any Supplier logos in any manner, without prior written consent;
9.3.3. The Client must not undertake any action that may diminish or interfere with any Supplier’s right, title or interest in any intellectual property, including but not limited to copyright, trademarks or patents;
9.3.4. If the Client refers to any Third Party Products and Services in any written or visual communication, the client must use the appropriate trademark, product descriptor and trademark symbol, and clearly indicate the Supplier's ownership of such marks;
9.3.5. The Client must not reverse engineer, decompile or disassemble the Third Party Products and Services, except to the extent that such activity is expressly permitted by the applicable law; and
9.3.6. The Client must disclaim, to the extent permitted by the applicable law, all warranties by the Suppliers and any liability by the Suppliers for any damages, whether direct, indirect or consequential, arising from the Third Party Products and Services.

10. SUSPENSION OF SERVICES

10.1. Maxlence may immediately suspend Client services if the Client
10.1.1. If the Client engages in or attempts to engage in, port- scanning, hacking, snooping or any attempts to gain access to Maxlence systems or those Maxlence agents and third-party service providers.
10.1.2. If Maxlence or its third-party service providers reasonably suspect that you have engaged or intent to engage in, illegal activity.
10.1.3. If Maxlence receives any takedown or similar notices from Court or other authority.
10.1.4. If required so by the Law.
10.1.5. If any invoice is overdue.

11. TERMINATION OF SERVICES

11.1.1. The present Agreement shall end at the end of the twelve-month period from the date of execution of the agreement unless otherwise agreed to between the parties in writing.
11.1.2. In the event of termination of services by default, the clause _____ and Clause ___ shall remain in force for such further periods until all accounts have been duly settled between the parties.
11.1.3. Maxlence may terminate the services in the following circumstances:
11.1.3.1. At the end of any fixed term, by either party providing the other party with at least thirty (30) days’ notice in writing;
11.1.3.2. If an event of Force Majeure has occurred and remains subsisting for at least fourteen (14) days, by either party providing the other party with at least seven (7) days’ notice in writing;
11.1.3.3. If Maxlence relocates from the data centre that the Client are located in to another data centre, and if due to such relocation Maxlence is unable to reasonably able to transfer the Services, by either party providing the other party with at least thirty (30) days’ notice in writing;
11.1.3.4. If the Client commits a breach of this Agreement, or any other documents and fails to rectify that breach within 14 days from the date of receiving a notice from Maxlence to rectify the breach.
11.1.3.5. If the breach of the Agreement by the Client is such that it cannot be rectified, or that causes serious risk of loss or harm to Maxlence and/ or other customers or suppliers;
11.1.3.6. If the Client representatives engage in conduct that is abusive, intimidating, or harassing towards our employees, and that conduct has continued after you have received two (2) written warnings;
11.1.4. The Client acknowledges and agrees that if Services are terminated for any reason:
11.1.4.1. All data stored with Maxlence on those Services will be deleted or destroyed within 48 hours of termination;
11.1.4.2. Maxlence cannot recover deleted or destroyed data; and
11.1.4.3. Maxlence is not liable for any loss or damage caused by the deletion or destruction of data.

12. FORCE MAJEURE

12.1.  A Party is not liable for failure to perform its obligations under this Agreement if such failure is solely the result of the occurrence of an event of Force Majeure.

12.2. If a Party asserts that an event of Force Majeure pursuant to clause 21.1 caused a failure to perform its obligations under this Agreement, that Party must prove that:
12.2.1. It took all reasonable steps to minimise delay or damages caused by foreseeable events;
12.2.2. It substantially fulfilled all non-excused obligations; and
12.2.3. It notified the other Party of the likelihood or actual occurrence of the Force Majeure event in a timely manner.

13. LIABILITY

13.1. The Client acknowledges and agrees that all express or implied terms, conditions, warranties, statements, assurances and representations in relation to the provision of the Services by Maxlence are hereby excluded, with the exception of:
a. The terms and conditions of this Agreement, and any additional terms and conditions or variations to which we both agree in writing;
b. Any conditions, warranties or requirements expressed or implied under the provisions of any legislation that cannot be contracted out of, including but not limited to the provisions of the Australian Consumer Law.

13.2. Maxlence’s liability for Client for direct loss is set out in the Service Level Agreement, unless otherwise agreed in writing.

13.3. The Client acknowledges and agrees that Maxlence Service Level Agreement is in excess of Clients rights, and Maxlence obligations, under the Australian Consumer Law.

13.4. However, if Maxlence Service Level Agreement does not meet the requirements of the Australian Consumer Law, or if Maxlence is not permitted by law to exclude its liability, then liability will be limited, to the maximum extent permitted by law, to one or more of the following as determined by us in our absolute discretion:
a. The re-supply of the Services; or
b. The payment of the reasonable cost of having the Services re-supplied; or
c. The refund of any payments made to us by you for the relevant time period.

13.5. To the maximum extent permitted by law, and except as expressly provided in this Agreement, Maxlence will not be liable for any consequential loss or damage, whether arising in contract, tort or otherwise, sustained by the Client in connection with or arising out of the provision of the Services by Maxlence, its Related Entities or the Suppliers.

13.6. Any advice, recommendation, information, assistance of service given by Maxlence in relation to the Services is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given, but is provided without any warranty as to accuracy, appropriateness or reliability. To the maximum extent permitted by law, Maxlence do not accept any liability or responsibility or any loss or damage suffered as a result of Client’s reliance on any such information, assistance or service.

14. DISPUTE RESOLUTION

If any dispute arises out of, or in connection with, this Agreement or the interpretation of its terms, a Party must not commence any court proceedings relating to that dispute unless this dispute resolution clause has been complied with, except:

a. Where that party seeks urgent interlocutory relief; or
b. Where we are entitled to recover a debt owed to us by you. A Party claiming that a dispute has arisen under or in relation to this Agreement must give written notice to the other parties specifying the nature of the dispute. On receipt of that notice by the other parties, all of the Parties must use their best endeavours to resolve the dispute within a reasonable period of time.