Terms and Conditions
Our Terms and Conditions help us formulate a transparent & honest working relationship with our clients that is win win for both parties.
Terms and Conditions MARKETING LAB Terms and Conditions
“Agreement” means the agreement which is governed by these Terms and Conditions “Associated Documents” means any documents created by Marketing Lab on the reading of which contains terms which relate to the relationship between Marketing Lab and its Customer.
“Customer” means the person who engages the Services of MARKETING LAB pursuant to the Agreement and any other person deemed to be a Customer pursuant to these Terms and Conditions.
“Period” means the duration of the Agreement, which is four months unless otherwise stated in the Customer proposal.
“PPC Services” means pay per click services and products such as Google Adwords, Facebook, Bing that MARKETING LAB may manage on behalf of the Customer the Terms of which are governed by the PPC Terms attached hereto.
“MARKETING LAB” means MARKETINGLAB.NET.AU and MARKETING LABORATORY PTY LTD or any other related entity or company trading under the MARKETINGLAB.NET.AU brand name.
“Services” means all services of the type and nature as described in these Terms and Conditions, Customer Proposal, Schedule to Customer Proposal and Associated Documents provided by Marketing Lab to the Customer.
“Service Fee” means the specified rate, price or lump sum amount for the performance of each item of the Services as adjusted in accordance with the Agreement.
“Terms and Conditions” means the terms and conditions of the Agreement as provided in clause 2.2.
“Website” means those of the Customer’s website or website which specifically are to be the subject of the Services.
2.1 The Customer is deemed to have accepted the Terms and Conditions in any of the following ways:
2.1.1 by providing a written acceptance to the Terms and Conditions by execution of MARKETING LAB Terms and Conditions or by any other form of written communication:
2.1.2 by placing an order with MARKETING LAB or instructing MARKETING LAB to provide the Services after:
(a) MARKETING LAB Terms and Conditions received by the Customer; or
(b) the availability of MARKETING LAB Terms and Conditions on MARKETING LAB’s website are brought to the notice of the Customer in the Customer Proposal or otherwise.
2.2 The Terms and Conditions comprise the terms in MARKETING LAB Terms and Condition read in conjunction with the Customer proposal, Schedule to Customer Proposal and Associated Documents if any and where there is a conflict between MARKETING LAB’s Terms and Conditions and the other contractual documentation created by MARKETING LAB the documentation will prevail in the following priority to the extent of such inconsistency:
2.2.1 Service Agreement if any;
2.2.2 Customer Proposal.
2.2.3 MARKETING LAB’s Terms and Conditions;
2.2.4 Associated Documents.
2.3 Where there are PPC Services provided by Marketing Lab to the Customer, the PPC Terms will prevail over the documents stated in subclause 2.2
2A. WARRANTIES BY CUSTOMER
2A.1 If the Customer is not the registered proprietor of the domain name of the Website, the Customer warrants that it is authorised to contract on behalf of the registered proprietor and both the Customer and the registered proprietor are jointly and severally liable for the obligations of the Customer under the Terms and Conditions.
2A.2 The Customer warrants that it has given MARKETING LAB all necessary information for it to perform its work including details of all parties which have access to make changes to the website.
2B. CUSTOMER’S RESPONSIBILITIES
2B.1 The Customer will:
2B.1.1 disclose to MARKETING LAB all information in the Customer’s possession relevant to the provision of the Services;
2B.1.2 comply with all legal requirements and requirements of all relevant statutory authorities relating to the Services;
2B.1.3 provide MARKETING LAB with such access to the Website and to provide all necessary assistance to enable MARKETING LAB to change and modify the Website which is reasonably required to enable MARKETING LAB to provide the Services safely in accordance with the Agreement;
2B.1.4 make available as soon as is reasonably possible to MARKETING LAB all material required to complete the Services;
2B.1.5 notify MARKETING LAB in writing within 14 days prior to any proposed change in the legal entity, structure, management, change, control of the Customer’s business or change of the registered proprietor of the domain name of the Website The Customer will remain liable under the Agreement unless released in writing by MARKETING LAB.
3. PERFORMANCE LEVELS
3.1 The Customer acknowledges that:
3.1.1 MARKETING LAB is unable to guarantee improved rankings in Australia’s major search engines;
3.1.2 MARKETING LAB is unable to guarantee improved traffic to the Customer’s website(s).
3.1.3 MARKETING LAB makes no warranty that the Services will generate any increase in sales, business activity, profits or any other form of improvement for the Customer’s business or any other purpose;
3.2 The use of the MARKETING LAB Services is at the Customer’s own risk.
3.3 MARKETING LAB will endeavor to ensure that any development/design site or application will function correctly on the server 2 which it is initially installed on when viewed with the latest version of the web browsing software Microsoft Internet Explorer or Mozilla browsers or Chrome browsers. MARKETING LAB can offer no guarantees of the correct functioning with all browsers.
4. EXCLUSION OF LIABILITY OF MARKETING LAB
4.1 To the fullest extent permissible by law, MARKETING LAB shall not be liable to the Customer for any damages, including without limitation any direct, indirect, special, punitive, incidental or consequential damages (including but not limited to damages for loss of business profits, business interruption, loss of programs or information, loss of goodwill or loss of use of facilities or equipment), or any other damages whether arising from the negligence of MARKETING LAB or otherwise. Where liability cannot be legally excluded, the liability of MARKETING LAB shall be limited to the cost of supplying the Services again.
4.2 The Customer agrees to indemnify MARKETING LAB, its subsidiaries, affiliates, officers, agents and partners and its and their respective employees from and against all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys fees and disbursements and court costs) by any third party claim for damages arising out of or in any way connected with the supply of Services by MARKETING LAB to the Customer, including without limitation any direct, indirect, special, punitive, incidental or consequential damages (including but not limited to damages for loss of business profits, business interruption, loss of programs or information, loss of goodwill or loss of use of facilities or equipment), or any other damages whether arising from the negligence of MARKETING LAB or otherwise including any claims arising from or in connection with the Customer’s information and the Customer’s use of MARKETING LAB Services.
4.3 The exclusions and indemnities in clauses 4.1 and 4.2 above apply to but are not limited to the following instances:
4.3.1 malfunctioning of the Website or any part of it;
4.3.2 copyright infringements and any other infringements of intellectual property rights including but not limited to patents and confidential information caused by materials submitted by the Customer.
4.3.3 failure to meet agreed deadlines;
4.3.4 URLs dropped or excluded by a search engine for any reason;
4.3.5 acts or causes beyond MARKETING LAB control, including but not limited to acts of God, strikes, lockouts, communications line or equipment failures, power failures, earthquakes, or other disasters;
4.3.6 failure of URLs to achieve specific positions within a particular search engine;
4.3.7 the use or the results of the use of the materials available through the MARKETING LAB Services from third parties or otherwise not being correct, accurate, timely or reliable;
4.3.8 loss of data through corruption, piracy, breach of security or for any other reason that is not based on intentional or grossly negligent actions of MARKETING LAB;
4.3.9 the functioning of any software created for the Customer whether database, e-commerce applications or otherwise;
4.3.10 unavailability, malfunction or interruption of services; and
4.3.11 changes made by MARKETING LAB to the Customer’s website.
4.4 MARKETING LAB reserves the right to refuse to handle in any way, material which may be deemed offensive, illegal or in any way controversial, and also to terminate any hosting service should the necessity arise and MARKETING LAB reserves the right to refuse to use, incorporate or implement any material of a copyrighted or other legally protected nature unless adequate proof is given of permission to use such material.
5. FEES AND PAYMENTS
5.1 Upon acceptance of the Terms and Conditions, the Customer is liable to pay the total amount in advance for MARKETING LAB Services. However, MARKETING LAB may agree at its sole option to accept in lieu of payment of the total amount, equal monthly payments in advance during the Period. If the Customer breaches the Terms and Conditions, the total amount will immediately become due and payable.
5.2 If additional work is performed by MARKETING LAB as a result of changes requested by the Customer which were not contemplated by the parties at the date of the Agreement or which resulted from a default by the Customer or an algorithm penalty or by changes made to the website by a third party, MARKETING LAB may make a reasonable additional charge for the additional work performed by it.
5.3 All MARKETING LAB services rendered will be invoiced and have 14 days to paid, as direct deposit into the account shown on the invoice.
5.4 In the event that the Customer fails to make payment of MARKETING LAB invoices, without prejudice to any other rights MARKETING LAB has, interest will accrue at the rate of 2% per month on any outstanding amount and the Customer indemnifies MARKETING LAB against all costs and expenses however arising from such default including legal costs on a solicitor/own client basis and any mercantile agent’s cost at a commission rate of not more than 18 percent and any such liability shall be deemed to be part of the indebtedness of the Customer to MARKETING LAB.
5.5 MARKETING LAB has the right to suspend the provision of the Services in the event of non payment for the same by the Customer of accounts rendered by MARKETING LAB for the period of 30 days;
5.6 There are no refunds available on Services by MARKETING LAB.
5.7 If the Customer disputes an invoice including disputing an item in an invoice, the Customer must notify MARKETING LAB in writing of the issue in dispute within 7 days of becoming so aware and must pay such part of the invoice which is not disputed in accordance with MARKETING LAB’s trading terms, failing which the Customer waives all rights to dispute the invoice at a later date.
6.1 Subject to clause
6.2, Both MARKETING LAB and the Customer may each terminate the Agreement at the expiration of the Period by giving written notice of its intention to do so at least 90 days before the end of the Period. If neither party gives notice of intention to terminate, the Agreement will continue for a further Period on the same terms and conditions unless it has been agreed in writing between the parties that the Agreement shall not run for a further Period in which case the Agreement shall continue from month to month until terminated by either party on one month’s notice.
6.2 MARKETING LAB may give the Customer written notice of variation of the Agreement (including the fees and charges of MARKETING LAB) and the variation(s) will take effect 14 days after such notice is given but never any earlier than the expiration of the Period of the Agreement. If notice of variation is given, the Customer may terminate the Agreement by giving written notice to MARKETING LAB within 14 days of receiving notice of variation, such termination to take effect when the variation would have taken effect save for the termination by the Customer.
6.3 MARKETING LAB may terminate the Agreement immediately by written notice to the Customer where the Customer:
6.3.1 becomes bankrupt, or insolvent, or becomes subject to external administration; or
6.3.2 commits a substantial breach or default under the Agreement; or
6.3.3 repudiates the Agreement; and if MARKETING LAB does give such notice, the Customer must pay MARKETING LAB the sum of all monies due and payable but unpaid which includes any balance of a lump sum amount.
7. MARKETING LAB’S RIGHTS
7.1 Any remedy of MARKETING LAB under these Terms and Conditions is in addition to and not in substitution for any remedy which MARKETING LAB has in law.
7.2 If the Customer unlawfully terminates, MARKETING LAB can remove data or other matters which it placed on the Website.
7.3 Any scripts, cgi applications or software (unless specifically agreed) written by MARKETING LAB remain the copyright of MARKETING LAB and may only be commercially reproduced or resold with the permission of MARKETING LAB.
8.1 The Customer agrees that the Customer’s personal data may be used and retained by MARKETING LAB for the following purposes:
8.1.1 provision of good & services
8.1.2 marketing of good & services
8.1.3 processing any payment instructions.
9.1 Notwithstanding the expiration or termination of the Agreement, each party agrees to keep in confidence and prevent the unauthorised use or disclosure to any unauthorised person or persons of all Confidential Information which is received under the Agreement and to use such data only for the above stated purpose save where such Confidential Information is:
9.1.1 in the public domain at the time it is disclosed; or
9.1.2 known to the receiving party at the time of disclosure; or
9.1.3 used or disclosed with the prior, written approval of the disclosing party;
9.1.4 used or disclosed after five (5) years from the date it was first disclosed by the disclosing party to the other party pursuant to the Agreement; or
9.1.5 independently developed by the receiving party; or
9.1.6 known to the receiving party from a source other than the disclosing party without a breach of the Agreement by the receiving party.
10.1 These Terms and Conditions shall be governed by, performed under, and construed in accordance with the laws of the State of Victoria and the parties hereto agree to submit to the non exclusive jurisdiction of the courts of Victoria.
10.2 If any provision or any part of a provision of these Terms and Conditions is held invalid, unenforceable or illegal for any reason, these Terms and Conditions shall remain otherwise in full force apart from such provision or such part of a provision which shall be deleted.
10.3 MARKETING LAB can assign it rights under the Agreement upon the provision of 30 days written notice to the Customer. The Customer cannot assign its rights under the Agreement without the express written consent of MARKETING LAB.
This schedule provides additional specific terms and conditions for the provision of PPC Services by MARKETING LAB. Where the terms and conditions in this Schedule are in conflict with any other terms, the terms and conditions in this schedule will prevail in accordance with clause 2.3 of the Terms and Conditions.
1. There is a minimum three months’ term for the supply and charging of PPC Services by MARKETING LAB to the Customer.
2.1 The fee for PPC Services is stated in the Customer Proposal as a base monthly fee plus GST payable in advance.
2.2 The first monthly fee plus the account set-up fee is payable on setting up the account and payable monthly thereafter.
2.3 Monthly fees will be calculated as the base monthly fee stated in the Customer Proposal plus GST per month.
3. MARKETING LAB will offer a managed Adwords service with the following provisions:
3.1 MARKETING LAB will setup a new Adwords account for the Customer.
3.2 MARKETING LAB will have sole access and retain ownership of the new Adwords account.
3.3 MARKETING LAB will provide the Customer via Google Analytics with access 24/7 to reporting and campaign date.
3.4 MARKETING LAB will endeavour to spend the predetermined Google click cost budget each month. MARKETING LAB will not be liable for any under or over spend.
3.5 The Customer is liable for all Adwords charges generated from the Adwords account.
4.1 All fees are payable monthly in advance.
4.2 All fees including Click costs payable to Google shall be paid by the Customer either by:
4.2.1 the provision of a credit card by the Customer to MARKETING LAB that can be used to pay Google click costs directly to Google up to a defined spending budget as confirmed by the Customer together with the fees of MARKETING LAB; or
4.2.2 the Customer providing a direct debit authority the fees of MARKETING LAB including Google click cost budget for payment directly into the MARKETING LAB bank account which shall be transacted each month before MARKETING LAB makes payment to Google. MARKETING LAB will raise an invoice for the click costs and GST and be responsible for paying Google for the click costs due from the pre deposited amount.
5. Termination of service After the initial three month term, to terminate the PPC services, the Customer has to give at least one month’s notice in writing of termination and if notice is given during a calendar month, the notice will be deemed to have been given on the last day of that calendar month and the Customer will be liable for the cost of the Services to the expiration of the notice period.
1.1 These terms and conditions are subject to change from time to time, so you should review them for changes periodically.
1.2 Please read these Terms and Conditions carefully. They apply to:
1.2.1 your use of the Services;
1.2.2 any Goods or any quotations for or offers to supply Goods; and/or
1.2.3 any Other Services, provided to you by MARKETING LAB Pty Ltd ABN 39 925 227 959 trading as MARKETING LAB (in this Agreement referred to as “our”, “we”, “us” or “MARKETING LAB”).
2 Definitions and Interpretation
2.1 “Agreement” means this agreement for the provision of the Supplies by us to you.
2.2 “Application” means each application form completed by you (either hard copy or soft copy on our Website) and sent to us requesting the Services we provide to you;
2.3 “Charges” means the charges payable by you to us for the Supplies (as specified on the Application or other reasonable charges introduced by us from time to time (including without limitation, credit card processing charges and charges incurred for the provision of paper invoices by post or by fax));
2.4 “End Users” means the users, both public or private, who have the ability to access and use the software, data and file storage provided to you by MARKETING LAB.
2.5 “Goods” means any goods we supply to you (including goods supplied in connection with any Services);
2.6 “GST” has the same meaning as it does in section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 and any related or similar legislation;
2.7 “Material Breach” means a material breach of this Agreement which includes, without limitation, any breach due to your failure to make any payment(s) on time as required pursuant to this Agreement and/or any breach due to your failure to comply with any of our Policies;
2.8 “Other Services” means any other services in connection with Goods and/or Services (including installation and maintenance services);
2.9 “Policy” means any policy published by us from time to time and notified to you;
2.10 “Service” and “Services” means a product or service(s) which we have agreed to supply to you as stated in your Application;
2.11 “Software” means software we provide to you for your use in connection with the Services (if any);
2.12 “Supplies” means the Services, Goods and/or Other Services, as appropriate;
2.13 “Term” means, in respect of a Service, the contract period specified in the Application for that Service
2.14 “you” or “your” means the current account holder.
3 Interaction with our Staff
3.1 You will not bully, abuse, harass, intimidate or otherwise engage in threatening or offensive behaviour towards our staff. Our staff reserves the right to terminate any phone call with you, and/or refuse to serve you, if you engage in such behaviour. We reserve the right to terminate your Service if you engage in such behaviour.
4 Access Information
4.1 We will provide you with any access information required to use the Services that we deem reasonably necessary (if any).
4.2 You will:
4.2.1 subject to disclosure permitted by us, maintain the secrecy and confidentiality of all access information required by you to access the Services, and not disclose to any other person, corporation, entity or organisation any access information, whether in use or not, nor any other confidential information relating to the Services; and
4.2.2 notify us immediately if your username and password are lost, or you think someone else is using them.
4.3 You will be liable for all Charges resulting from use of the Services accessed through your access information, whether authorised by you or not.
4.4 By accessing and using our services, you agree to comply with these terms and conditions, and any of our policies.
5 Acceptable Use Policy
5.1 You, or anyone connecting to your Service, must use your Service responsibly and in accordance with the law. If you engage in any conduct which could result in injury or damage to any person or property (including our network, systems and equipment) access to your Service may be restricted, suspended or terminated without prior notice.
5.2 You must not use or attempt to use your Service to store, send, distribute or otherwise make available any content or material which:
5.2.1 defames, harasses, threatens, abuses, menaces, offends or incites violence or hatred against any person or class of persons whether on grounds of gender, race, religion or otherwise;
5.2.2 is prohibited or unlawful under any Commonwealth, State or Territory law or classification system, or which is likely to be offensive or obscene to a reasonable person;
5.2.3 is confidential, subject to copyright or any other rights of a third party (unless you have a lawful right to do so); or
5.2.4 is otherwise illegal, fraudulent or likely to give rise to civil or criminal proceedings.
5.3 You must not use or attempt to use your Service to:
5.3.1 store, send or distribute any viruses or other harmful programs, codes or other malicious software;
5.3.2 hinder, restrict or interfere with the normal operation of our network, systems and equipment or that of any other person or entity;
5.3.3 access, monitor, use or control any other person’s equipment, systems, networks or data (including usernames and passwords) without their knowledge or consent or to otherwise probe, scan or test the vulnerability of any such equipment, networks, systems or data;
5.3.4 send, relay or otherwise distribute any electronic message, the contents or properties of which have been created, forged or altered for the purpose of impersonating, hiding or otherwise obscuring the original sender or source of that message;
5.3.5 send, store or distribute unsolicited commercial electronic messages in breach of the provisions of the Spam Act 2003 (Cth). We will immediately terminate your Service if we believe, at our sole discretion, it is transmitting or is otherwise connected with any spam or other unsolicited bulk email. In addition, because damages are often difficult to quantify, you agree to pay us liquidated damages from or otherwise connected with your Service. This will be charged at the rate specified in our Schedule of Fees and Charges, or actual damages to us, whichever is greatest;
5.3.6 send or distribute any material or take any other action with the aim of overloading any network or system (including our network and systems);
5.3.7 make fraudulent offers to sell or buy products, items, or services or to advance any type of financial scam such as ‘pyramid schemes’, ‘Ponzi schemes’, and ‘chain letters’;
5.3.8 add, remove or modify identifying network header information in an effort to deceive or mislead. Attempting to impersonate any person by using forged headers or other identifying information is prohibited. The use of anonymous remailers or nicknames does not constitute impersonation;
5.3.9 access, or to attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, ours or a third party’s security measures, computer software or hardware, electronic communications system, or telecommunications system, whether or not the intrusion results in the corruption or loss of data;
5.3.10 engage in any activity which adversely affects the ability of other people or systems to use our Services. This includes ‘denial of service’ (DoS) attacks against another network host or individual user. Interference with or disruption of other network users, network services or network equipment is prohibited; or
5.3.11 redistribute, re-sell or attempt to redistribute or re-sell the Services provided by us, unless you have explicit written permission from us to do so.
5.4 You must not authorise, aid, abet, encourage or incite any other person to do or attempt to do any of the acts or engage in any of the prohibited conduct described above.
6.1 The Services are provided to you as configured for our standard customer. In some cases, they may have the manufacturer’s default settings. You bear ultimate responsibility to ensure that the Services are configured to meet your operational, privacy and security needs.
6.2 Your hardware, software and any other items you deem necessary to use the Services must be compatible with the Services. We are not obligated to modify the Services to accommodate your use. You may not terminate an Order based on your inability to use the Services because such a use is incompatible with them.
6.3 If your use of the Services damages the Services or Equipment, you will be charged for any repairs we need to make to the Services or Equipment. We may suspend your use of the Services until we determine whether your use of the Services has damaged the Services or Equipment.
7 Bandwidth / excessive use
7.1 You must comply with the current bandwidth, data storage and other limitations on the Services. Additional bandwidth usage over the amount allotted in the hosting plan or the pre-arranged, pre-paid amount will be billed at the end of that month to the pre-arranged credit account. Billing of additional bandwidth usage is subject to all other terms of this agreement and no refund will be given on the charges.
7.2 Excess bandwidth is currently $10 per Gb for any excess.
7.3 Excess storage is currently $0.6 / Mb for any excess.
7.4 Unused bandwidth may not be carried over from month-to-month.
7.5 You will ensure that neither you nor any of your End Users makes excessive or wasteful use of the Server to MARKETING LAB’ detriment or that of MARKETING LAB’ other customers. The terms “excessive” and “wasteful” are defined by our experience with similarly situated customers. This means that your use of our resources may not exceed that of similarly situated customers.
7.6 If the contents of your Space regularly generate more server traffic than is deemed acceptable by MARKETING LAB, to the detriment of other MARKETING LAB customers, MARKETING LAB shall issue a warning by email to you, at the address you provided to MARKETING LAB, in which MARKETING LAB requests that you remove the contents or upgrade to a more suitable package. Excessive traffic may be caused by abnormally high traffic on your web pages or by powerful software solutions which you have installed on the Space. If you do not comply with this warning within 5 business days, MARKETING LAB reserves the right to terminate the Services.
8 Domain Name Registration
8.1 MARKETING LAB will on request register a requested domain on your behalf through our reseller account with Melbourne IT Limited. For details of the terms, conditions and associated policies related to domain name registrations, please see the policies of Melbourne IT Limited at http://www.melbourneit.com.au/policies/
8.2 Within 1 month of a domain’s expiry date MARKETING LAB will take the initiative to renew/re-register the domain without express permission, unless notified otherwise by the client. Domain renewal costs are passed onto the client.
9 Charges / Fees
9.1 You must be over the age of 18 at the time you place your Order.
9.2 All Charges (unless otherwise provided in an applicable Application), except any Charges for excess usage or specified non Internet or telecommunications services, are payable in advance and must be paid prior to the supply of the Supplies and prior to each renewal date (as applicable).
9.3 All accounts must be paid by the due date specified on the invoice/statement. Any account that is outstanding beyond the due date is in default, and an overdue notice will be issued. If payments are not received by the date specified on the overdue notice, we may suspend your access to the Services and/or the provision of the Other Services under Clause 14.1 until all outstanding monies are paid in full (and we may charge you an additional fee for any subsequent re-connection to the Services or resupply of the Goods) and may also:
9.3.1 terminate this Agreement (as set out in Clause 15.1); and/or
9.3.2 require you to pay us interest on any monies owing to us at a rate equivalent to the prime rate charged for bank overdrafts by our current bankers at that time, that interest to be calculated from the date on which the relevant payment was due until all outstanding monies have been paid in full.
9.4 Service suspensions under Clause 9.2 (if permitted by an applicable Service Schedule) will be promptly removed on receipt of full payment of all Charges owed to us under this Agreement.
9.5 If you wish to query any item you have been charged for, please do so within seven (7) days of our invoice. All non-disputed amounts must be paid in full by the due date on your invoice.
9.6 Where you request us to invoice amounts owing under this Agreement to a nominated credit card:
9.6.1 you will operate the credit card within terms and credit limits set in order to pay your account in full;
9.6.2 you will give us the authority to complete and sign on behalf of yourself, all necessary forms and documents to facilitate payments from the relevant bank, or other financial institution;
9.6.3 you agree to remain liable to us for all amounts owing to your account consequently billed to your credit card until all amounts outstanding have been paid in full; and
9.6.4 we can charge you a credit card payment processing fee.
9.7 The amounts payable by you to us for, or in connection with, the Supplies supplied under this Agreement will include any GST payable. We will provide you with invoices in the form of tax invoices.
9.8 If the rate of GST changes after the date of this Agreement, we may adjust the amounts payable by you to us in respect of the Supplies to reflect that change in the rate of GST from the date the change is effective.
9.9 You are responsible for any collection fees (including legal fees and any other costs) incurred by us as a result of the collection of outstanding monies owed by you to us under this Agreement.
10 Back Up Creation
10.1 We are pleased to provide you with a weekly backup of your data that will be kept for a period of no more than 7 days. However, we do not guarantee successful restoration of your information lodged on our servers in the unlikely event of loss of that information (due, for instance, to a catastrophic hardware failure). You agree and acknowledge that you must not rely soley on the backups provided by MARKETING LAB, and that it is your responsibility to maintain your own set of backups of all information that you lodge with us independent of those we maintain. MARKETING LAB will not be liable for any loss, damage or inability to store or restore any backup.
10.2 MARKETING LAB may refuse to create a backup of your data, if in our reasonable opinion such backup will result in security risk or will alter the performance of our Servers to the detriment of other customers.
10.3 If we provide data to you from a back up, it may be provided as raw data, and you may be required to reformat that data so that it reflects a prior configuration or use.
10.4 MARKETING LAB will on request by you try it’s best to restore a backup made by MARKETING LAB. However, our only obligation is to restore your Space or Server to its operating condition. It is your obligation to restore your website. If a backup restoration in our reasonable opinion will impose a security risk, alter the performance of our Servers to the detriment of other customers, or due to any other issues is not recommended or possible, MARKETING LAB will not be liable for any loss or damage that you may sustain or incur as a result, whether directly or indirectly.
11 Technical Support
11.1 You are solely liable for performing and storing a back-up copy of the data, files and hosting account information prior to requesting technical support and agreeing to any technical interference or operation, provided by MARKETING LAB. In the event that you are not satisfied with the outcome of any technical action, you shall be solely responsible for restoring the backup copies of your hosting account and uploading your website.
11.2 We will make all reasonable efforts to ensure continuity of the Services, but we make no guarantee that the Services will be either uninterrupted or error-free.
12 Third Party Intellectual Property Rights
12.1 We cannot be held responsible for any images, icons, web design layouts, templates or any other elements of a client`s website for which the client has no license or rights to use.
13 Complying with Regulatory Authorities
13.1 Commonwealth legislation allows the Australian Communications and Media Authority (ACMA) to direct us to remove from our network and servers any content which is classified, or likely to be classified, as ‘prohibited’ content. You must not hinder or prevent us from taking all steps necessary to comply with any direction from ACMA or any law enforcement agency and you acknowledge that we may comply with the directions of such authorities without notice to you.
13.2 You acknowledge that we reserve the right to restrict, suspend or terminate your Service if there are reasonable grounds for suspecting that you are engaging in illegal conduct or where use of your Service is subject to any investigation by law enforcement agencies or regulatory authorities.
14.1 We reserve the right to immediately and without notice (and without prejudice to our rights of termination under Clause 15) suspend your access to the Services in our discretion if we:
14.1.1 reasonably consider that you have Materially Breached this agreement;
14.1.2 reasonably consider that you may have Materially Breached our Acceptable Use Policy;
14.1.3 receive allegations (which we reasonably believe to be genuine) which indicate that you have Materially Breached our Acceptable Use Policy; or
14.1.4 reasonably suspect that your use of the Services breaches any state federal or Commonwealth law.
14.2 If we suspend your access to the Services under Clause 14.1, we may reactivate your access to the Services if we subsequently become satisfied that you are not in breach of any provision of this Agreement.
14.3 Notwithstanding any suspension of your access to the Services under this Clause, you will remain liable for our out-of-pocket costs and any third party costs incurred by us as a result of the suspension of your access to the Services under Clause 14.1 or in relation to our reconnection or resupply of the Services to you under Clause 14.2.
14.4 You are not entitled to a credit or refund for loss of access during any suspension period in accordance with Clause 14.1 or in the event that this Agreement is terminated in accordance with clause 14.5.
14.5 Without limiting the generality of any other Clause in this Agreement, we may terminate this Agreement immediately by notice in writing if we have suspended your access to the Services under Clause 14.1 or Clause 14.6, and we have not reactivated your access to the Services within seven (7) days of this suspension.
14.6 We may from time to time on 48 hours notice, or in the event of circumstances that we reasonably consider to be serious or critical, without notice suspend your access to the Services during a technical failure (including any failure caused by a TP Supplier ceasing to provide us with goods or services), or where modification or maintenance is being carried out in relation to the Services. We will use all reasonable endeavours to end any such suspension of Services as soon as practicable.
15 Termination By Us
15.1 Without limiting the generality of any other Clause in this Agreement, we may terminate this Agreement immediately by notice in writing if:
15.1.1 you are in Material Breach of this Agreement (including any Policy) and such breach is not remedied within seven (7) days of us notifying you;
15.1.2 you have provided us with false or misleading information or you have not provided us with any information that we have reasonably requested for the purposes of this Agreement;
15.1.3 your nominated payment method is refused or dishonoured, or you fail to pay the amount specified on any overdue notice as required by clause 9.3;
15.1.4 if you are a natural person, we discover or reasonably believe that you are a minor;
15.1.5 we believe you are about to or may become or are in jeopardy of becoming subject to any form of insolvency administration;
15.1.6 if you being a partnership, dissolve, threaten or resolve to dissolve or are in jeopardy of dissolving;
15.1.7 in MARKETING LAB’ reasonable opinion, you do not have sufficient technical expertise to use the Service without excessive ongoing technical support;
15.1.8 if you, being a natural person, die; or
15.1.9 you cease or threaten to cease conducting business in the normal manner.
15.2 We may terminate this Agreement (otherwise than under Clause 16.1) for any reason on thirty (30) days notice in writing to you (unless the applicable Service Schedule specifies a longer notice period, in which case that longer notice period must be provided).
15.3 We may terminate a particular Order, or aspect of the Services, if a Third Party ceases to make components of them available to us, or if providing them to you becomes cost prohibitive.
16 Cancellation by You
16.1 Termination by you of any Hosting Services must be requested 30 days prior to the expiration of your current Term and before a Renewal invoice is due.
16.2 The cessation of the Services will be made as soon as practicable on or after your notified specific cessation date. In most cases this will be within seven (7) days of that date;
16.3 In any case of cancellation or termination, MARKETING LAB will not offer any refunds of any charged pre-paid amounts, excessive bandwidth usage charges and/or excessive data storage charges.
16.4 Hosting services will renew for a period of one year (a Renewal Term), unless a custom offer is applied, or terminated as provided herein. Any such termination or cancellation will be subject to the payment of any outstanding charges.
17 Our Rights
17.1 MARKETING LAB reserves the right to terminate any client or account at its sole discretion without notice.
17.2 We reserve the right to remove any information or materials, in whole or in part, that we, in our sole discretion, deem to be offensive, obscene, indecent, or otherwise inappropriate regardless of whether such material or its dissemination is unlawful.
17.3 We are under no obligation to monitor transmissions or published content on the Services. However, we or our agents have the right to monitor such transmissions or published content from time to time.
17.4 MARKETING LAB controls many servers, and reserves the right to migrate your hosting account/website at any time to another server within our internal group that we believe best suits the needs of you, our clients and ourselves. Such a move is not expected to affect the provision of services to you, however if MARKETING LAB believes the migration will affect these services in any significant way, shape or form, only then may MARKETING LAB issue a notification by email to you, at the address you provided to MARKETING LAB.
18 Technical Support
18.1 You are solely liable for performing and storing a back-up copy of the data, files and hosting account information prior to requesting technical support and agreeing to any technical interference or operation, provided by MARKETING LAB. In the event that you are not satisfied with the outcome of any technical action, you shall be solely responsible for restoring the back-up copies of your hosting account and uploading your website.
18.2 If your request for technical support exceeds that of similarly situated customers, or is based on your lack of sophistication, we may charge you our standard hourly rate of $110 per hour for support. We will inform you, and receive your consent, prior to charging you for technical support. If you request technical support, you agree that we may have full access to your equipment, account, and any and all items accessible to us based on your request. While we will use reasonable efforts to provide technical support to you, all support is provided as is, and is subject to the disclaimers of warranties and limitation of liability set out herein. We retain the right to refuse to provide technical support to you if your use of technical support exceeds that of similarly situated customers, or if you are verbally abusive to our employees or contractors.
18.3 You represent and warrant that:
18.3.1 you have the experience and knowledge necessary to use the Service;
18.3.2 you and your End Users understand and appreciate the risks inherent to you, your business and your person that come from accessing the Internet;
18.3.3 you have sufficient knowledge about administering, designing and operating the functions facilitated by the Service necessary to take advantage of the Service;
18.3.4 you will not violate any applicable laws and/or regulations in your use of the Services;
18.3.5 you own all intellectual property rights in, or have a license to use, any information you provide to us necessary for us to perform the Services, or to any information transmitted by us through the Services; and
18.3.6 you will pass through the terms of these Terms and Conditions, and any agreements incorporated by reference, to your End Users.
19.1 You agree to indemnify, defend and hold harmless us, our parent, subsidiary and affiliated companies, third party service providers and each of their respective officers, directors, employees, shareholders and agents (each an “indemnified party” and, collectively, “indemnified parties”) 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 attorney’s fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to your use of the Service; any violation by you of any of our policies; any breach of any of your representations, warranties or covenants contained in these Terms and Conditions; and/or any acts or omissions by you.
19.2 The terms of this section shall survive any termination of these Terms and Conditions.
20.1 These Terms and Conditions are subject to change without notice, at any time in our discretion. New Terms and Conditions are applicable from the moment they are posted on the website http://www.marketinglab.net.au/term-of-trade-agreements
20.2 By commencing the use of any services provided by MARKETING LAB, you agree and accept these Terms and Conditions.