Terms of Use and Sale

These terms and conditions (Terms) govern your use of our hosting, maintenance and support subscription service (Service), and forms a binding contractual agreement between you, the user of the Service and us, Evergreen Profit (ABN: 50 616 409 628) (we or us) if you tick a box to indicate your acceptance of these terms or otherwise pay for or commence using the Service. For that reason, these Terms are important and you should ensure that you read them carefully and contact us with any questions before you use the Service or accept the Terms. You can contact us at [email protected]

By using the Service you acknowledge and agree that you have had sufficient chance to read and understand the Terms and you agree to be bound by them. If you do not agree to the Terms, you must not use the Service.

1. Costs and payment

1.1 The Service is available for purchase as a monthly subscription and can be purchased by entering your credit card details through our website.

1.2 If your credit card expires or your credit card details change, you must let us know as soon as possible. If the automatic deduction of your credit card fails because you have not updated us with your new credit card details, then you may incur an administration fee of $30 + GST.

1.3 Unless otherwise stated, the Fee is quoted in United States dollars and expressed inclusive of GST unless otherwise stated.

1.4 We may at our discretion refuse to continue to provide the Service to you until we have received full payment of all Fees.

1.5 You are not entitled to a refund for any paid Fee for any reason, except to the extent of any applicable liability under any relevant consumer laws, including the Competition Consumer Act 2010 (Cth).

2. Service inclusions

2.1 By purchasing the Service, you will receive access to support staff to assist with various aspects of the hosting and maintenance of your website. A more specific list of the Service inclusions and exclusions that are subject to change at our discretion from time to time can be accessed here.

2.2 We may amend these terms and conditions at any time. If we do so, we will give you seven (7) days before it takes effect. If you do not wish to accept any amendments we notify you of, you can notify us in writing you do not accept the amended terms and conditions and terminate the agreement in accordance with the terms below. If you continue to use our Service, you will be deemed to accept the amendments.

2.3 We will use reasonable commercial endeavours to deliver the Service in accordance with any time stated to the extent that it is within our control to do so (or if no time is specified, within a reasonable time) but we will not be in breach of our obligations under the Service if we fail to meet any timelines for reasons beyond our control.

2.4 The Service is subject to a fair and reasonable use, at our discretion and we reserve the right to notify you if your request does not conform to fair and reasonable use. If at any time you do not agree with our fair-use policy, you may terminate your subscription to the Service in accordance with clause 5.2.

2.5 The Service includes access to unlimited changes which, requested at a single time, will take not more than one (1) hour to complete (Small Changes). If you require more substantive changes or any other service that is not included in the Service (Additional Services), then we will advise you of this and of the estimated cost for the provision of those Additional Services. You may then decide whether to engage us to provide you with the Additional Services.

2.6 If you provide us with only verbal instructions that are not confirmed by you in writing, we will not be liable for any loss or damage incurred by you as a result of errors due to a misinterpretation by us of those instructions.

2.7 You agree that access to the Service cannot be transferred to anyone outside of your organisation, and only staff of your organisation are authorised to access the Service. We reserve the right to immediately terminate your subscription to the Service at any time without liability if any unauthorised use, including use by an authorised person, of the Service occurs.

3. Hosting, Maintenance and Support Services

3.1 We accept no responsibility for delays or down time, break downs or data loss caused by any means whatsoever, or for corruption or problems caused by third parties making adjustments to web pages or content, or taking over the hosting of any websites or content created by us.

3.2 To ensure the integrity of our Services is not compromised, we perform frequent security checks on all hosted sites. If you do not agree to allow us to perform security checks at our discretion, we can no longer provide hosting, maintenance and support services for you.

3.3 We do not place limits on our hosting disk space or bandwidth. However, if we believe that your website size and traffic levels are too demanding for our hosting solutions, we may recommend that you invest in your own dedicated server for any relevant websites.

3.4 From time to time we will perform upgrades and maintenance to the server. This may cause minor interruptions to the Service. Where possible, we will give advance notice of any interruptions that might be caused.

4. Intellectual Property

4.1 Unless you pay an exclusivity fee to us at a rate that we determine or unless we otherwise agree in writing, we own all right, title and interest in:

(a) any information or materials owned or controlled by us prior to the commencement, or developed by us independently, of the agreement and which is contributed to or used in the course of performing the Services; or

(b) any source code developed by us during the course of providing the Services

(together, Background IP).

4.2 We grant to you a perpetual, irrevocable, non-exclusive, royalty-free licence to use the Background IP to the extent necessary for you to make use of the Services.

4.3 You will own all intellectual property excluding Background IP in all work developed through the provision of the Service subject to the receipt of the Fee in full by us.

4.4 We warrant that, other than in relation to information or material directly provided to us by you or on your behalf, the Services, or any material supplied to you as part of the Services, to the best of our knowledge:

(a) are not copied wholly or substantially from any other work, document, computer program, item or thing anywhere in the world;

(b) do not breach any law or infringe any other person’s rights in any other work, document, computer program, item or thing anywhere in the world; and

(c) have not had any right in them granted, transferred or assigned by you to any third party.

4.5 You warrant that all work and materials provided by you (including but not limited to your background intellectual property, fonts and images) will be free and clear of all liens and encumbrances and may be lawfully used by us without infringing upon the rights of others including, and without limiting the generality of the foregoing, any copyright, trade secret, patent or trade mark rights of any third party.

4.6 We will use reasonable endeavours to keep a copy of all creation files, concepts, drafts, reports, specifications, artwork and material created by us for you or on your behalf. However we do not warrant that these files will be available for you in the future if you require them, nor will we be liable for any loss or damage incurred by you as a result of these files being lost or damaged.

5. Termination

5.1 We may terminate this agreement at any time by providing thirty (30) days written notice to you.

5.2 You may terminate your subscription to the Service by providing us with notice in writing no later than 4:00pm (AEST) thirty business days prior to the due date of your next invoice, in which case termination will be effective on the date as confirmed by us.

5.3 We reserve the right to suspend Services immediately at any time and without liability if you fail to perform your obligations under this agreement, including failing to make payments to us by a due date.

5.4 Either party may terminate this agreement by written notice effective immediately if the other party enters into or suffers bankruptcy, liquidation, or other type of insolvency, administration, management, receivership.

5.5 You may terminate this agreement by written notice effective immediately if we are guilty of any fraud, dishonesty, or other serious misconduct.

5.6 Our right to suspend or terminate any contract or this agreement with you is without prejudice to any other right or remedy in respect of the breach or default.

6. Warranties and indemnities

6.1 You acknowledge that you have not relied on any advice, representation or warranty given or made by us in connection with the Services and which is not expressly stated in this agreement.

6.2 Where legislation implies in these terms and conditions any condition or guarantee which cannot be excluded or modified, the condition or guarantee is deemed to be included in these terms and conditions.

6.3 To the extent permitted by law, all warranties, conditions and representations by us are excluded, and neither we nor any of our officers, employees, agents or related bodies corporate will be responsible or liable in any way (including for negligence) for any loss, damage, liability or costs incurred, suffered or sustained by you or claims made against you, and you agree not to make any claim against us, due to or arising out of our provision of the Services. If a term is implied by law into this agreement and the law prohibits provisions in a contract excluding or modifying liability under that term, then such term will be included in this agreement. However to the extent permitted by law, our liability for breach of such term will be limited, at our option, to one or more of the following:

(a) the supply of the Services again;

(b) the payment of the cost of having the Services supplied again

6.4 We do not guarantee that our Services will provide any specific results. In particular, and without limiting the foregoing, we make no guarantees, warranties or representations that you will receive any new or increased numbers in customers or revenue as a result of our Services.

6.5 Without limitation, we will under no circumstances be liable for any indirect or consequential loss you suffer including, but not limited to, loss of use, lost production, lost income or profits, loss of opportunity, lost savings, increased or wasted expenses, delay or lost time, loss of or damage to goodwill, increased operating costs, wasted or increased financing costs, loss of or damage to data or records, loss of or unavailability of or damage to tangible or intangible property, claims made against you by others, losses or costs or expenses associated with identification, investigation, assessment, repair, replacement or servicing and any other economic loss or damage and any other special, indirect or consequential loss or damage.

7. You indemnify and hold us harmless in respect of any and all claims, loss or damage of any kind whatsoever (including legal costs and disbursements on a full indemnity basis), arising directly or indirectly out of any:

(a) act or thing done by us in good faith and purportedly pursuant to a right granted to us under the provisions of this agreement

(b) infringement of third party trade mark rights

(c) breach by you of any of the terms of this agreement

8. General

8.1 All notices and consents required or permitted to be given under this agreement must be in writing.

8.2 You must not assign, sublicense or otherwise deal in any other way with any of your rights under this agreement without our prior written permission.

8.3 We may assign or subcontract our rights under this agreement.

8.4 If a provision of these Terms are invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.

8.5 If we do not act in relation to a breach by you of these Terms, this does not waive our right to act with respect to that or subsequent or similar breaches.

8.6 This agreement is governed by the laws of State of Victoria and the parties submit to the non-exclusive jurisdiction of the courts of that State.