Melbourne IT Paid Search Engine Marketing Services
Date: November 2011
These are the standard terms and conditions apply to Melbourne IT’s supply of advice and consulting services in respect of paid search strategies (“MLB Services”).If you decide to engage with Advantate to implement your campaign resulting from MLB Services (“SEM Services”), you will need to agree to additional terms and pay fees in connection with the SEM services.. Please read these terms and conditions carefully. It is a condition of your use of the Services that you ("you") comply with these terms and conditions.
1.1 This agreement comprises, in order of priority, highest to lowest:
1.1.1 the terms and conditions of this agreement; and
1.1.2 the Melbourne IT Search Engine Marketing Proposal, if any ("Proposal").
1.2 Melbourne IT may change these terms and conditions either by obtaining your consent or giving you notice. The period of notice given by Melbourne IT depends on the nature of the change. If:
1.2.1 the change will benefit you, we may make the change immediately and are not required to notify you prior to the change;
1.2.2 the change is required by law, a regulatory body or for a technical reason (including for security), we will give you a reasonable period of notice not exceeding 3 days;
1.2.3 we consider that the change has a significant and detrimental impact on our customers generally, we will give you at least 30 days notice prior to the change, and
1.2.4 for all other changes, we will also give you at least 30 days notice prior to the change. Melbourne IT may give notice of a change by posting the new version of the Agreement on its website located at http://www.melbourneit.com.au/policies/
1.3 If you use a Service after publication of any change in accordance with clause 1.2, your use will constitute acceptance of the amended terms.
1.4 These terms constitute the agreement in its entirety and supersede all prior agreements.
2.1 Your purchase of the MLB Services will have a minimum term of 1 month.
2.2 You acknowledge that the SEM Services are provided subject to an agreement between you and Advantate, which includes the payment of separate and additional terms and fees, and that Melbourne IT has no liability to you in connection with that Agreement or the conduct of Advantate or its representatives.
3.1 You must pay for the MLB Services in accordance with the prices and charges published on the Melbourne IT Web Site or the Proposal (as applicable, and as amended from time to time in accordance with clause 1.2). You must pay for the SEM Services in accordance with your agreement with Advantate.
3.2 You must pay all prices and charges for the MLB Services and other amounts incurred by you or any designated users or incurred as a result of any use of the Services (whether authorised or not) in accordance with the billing provisions specified on the Melbourne IT Web Site or in the Proposal.
3.3 Prices and charges published on Melbourne IT's Web Site or in the Proposal are inclusive of any government taxes or charges unless otherwise stated.
3.4 You consent to Melbourne IT obtaining a credit reporting agency report containing personal information about you (as well as information concerning commercial creditworthiness and activities) for the purpose of assessment by Melbourne IT of an application for credit (whether commercial or personal) or for the purpose of the collection of payments that are overdue.
3.5 Unless otherwise stated, all fees are payable in advance and non-refundable.
3.6 If we have invoiced you in arrears for any MLB Services, and you fail to pay the charges in any invoice by the due date specified in any applicable billing provisions (as referred to in clause 3.2 above) or the invoice ("Unpaid Charges"), in addition to any other rights under this agreement, Melbourne IT may charge you interest and you agree to pay, on demand by Melbourne IT, interest on the Unpaid Charges at the Applicable Rate from the date the Unpaid Charges became due until those Unpaid Charges are paid to Melbourne IT in full. For the purposes of this clause, "Applicable Rate" means the Reserve Bank's Official Cash Rate (as published in the Australian Financial review at the time the Unpaid Charges become due).
3.7 You agree that in the event of any action being taken by Melbourne IT to recover any overdue amount due to it under this agreement or the Proposal, as evidenced for example by, without limitation, your credit card company notifying Melbourne IT of you disputing the payment of, or refusing to pay such charge, or where your credit card payment has been declined or reversed, any costs incurred by Melbourne IT in recovering the debt (including, without limitation, any legal expenses (on a solicitor/client basis), collection agency charges or any other reasonable associated costs incurred by Melbourne IT) are payable by you to Melbourne IT and shall be recoverable by Melbourne IT as a separate debt.
You warrant that:
4.1 you have not entered into this agreement or obtained any Services on the basis of, or in reliance on, any statement or representation (whether made orally or in writing and regardless of the medium used) made by either Melbourne IT or Advantate concerning this agreement or any of the Services, other than any statement or representation contained in this agreement;
4.2 you are at least 18 years of age;
4.3 your use of the Services will not infringe the intellectual property or any other rights of Melbourne IT, Advantate or any third party;
4.4 your use of the Services will at all times comply with all laws required to be complied with by you; and
4.5 your use of the Services complies with all relevant policies of those third parties (for example, without limitation, you comply with the Google policies in relation to use of its AdWords service).
5.1 To the extent permitted by law, neither Melbourne IT nor any employees, affiliates, agents, suppliers, third-party information providers, merchants, licensors nor the like (each a "Relevant Party") of Melbourne IT make any warranties of any kind, either expressed or implied, statutory or otherwise, relating in any way to the subject matter of this agreement, including, but not limited to, warranties of merchantability or fitness for a particular purpose, or non-infringement for the Services or any equipment provided, and all such warranties are hereby excluded.
5.2 Melbourne IT agrees to use all reasonable efforts to provide the Services to you. However, you acknowledge to, and agree with, Melbourne IT, that nothing in this agreement shall constitute an express or implied warranty or guarantee by any Relevant Party of Melbourne IT:
5.2.1 that the Services will be uninterrupted or error free;
5.2.2 that the Services will be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorised access to the services or systems of Melbourne IT;
5.2.3 concerning the results or success that may be obtained from the use of the Services;
5.2.4 concerning any increase in revenue, profit or goodwill that may be obtained as a consequence of you using the Services (including, for the avoidance of doubt, any increase in revenue, profit or goodwill in connection with any products and/or services that you may determine to offer for supply, or supply via your web site, the Internet or otherwise ("Your Products and Services"));
5.2.5 as to the accuracy, reliability or content of any information services or merchandise contained in or provided through the Services, or, for the avoidance of doubt, any information provided by Melbourne IT in any advice, report or communication to you or any other party;
5.2.6 that the provision of the Services will result in the ranking of your web site improving; and/or
5.2.7 that the provision of the Services will result in an increased amount of traffic or users to your web site; and/or
5.2.8 concerning any market conditions (whether favourable or not) that may be in existence at the date of this Agreement will continue; and/or
5.2.9 that the provision of the Services generally, or any software utilised by Melbourne IT to provide the Services, will not be subject to, or result in, either errors and/or delays.
You will indemnify and defend Melbourne IT and all directors, officers, employees, and agents of Melbourne IT (each an "Indemnified Party") 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 legal fees) incurred by any Indemnified Party arising out of, or directly or indirectly relating to:
6.1 any breach of this agreement by you; and/or
6.2 the use of the Services by you.
Such claims shall include, but shall not be limited to, claims based upon trademark, service mark, trade name, copyright and patent infringement, trademark dilution, tortious interference with contract or prospective business relations, unfair competition, restrictive trade practices, misleading statement, misleading or deceptive conduct, breach of contract, defamation or injury to reputation, or other injuries or damage to business.
7.1 You agree that Melbourne IT shall not be liable for any indirect, incidental, special or consequential damages, or loss of profits, revenue, data or use, suffered by you or any third party, whether in an action in contract, tort or strict liability or other legal theory, even if Melbourne IT has been advised of the possibility of such damages.
7.2 Subject to clause 7.1, you further agree that the aggregate liability of Melbourne IT for any damages, losses and causes of actions whether in contract or tort (including negligence or otherwise) shall not exceed the actual dollar amount paid by you for the MLB Service which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose.
7.3 You agree that where any statute implies any term into this agreement, and that statute avoids or prohibits provisions in a contract excluding or modifying the application of or liability under such a term, then the term will be taken to be included in this agreement. However, the liability of Melbourne IT for any breach of the term will, if permitted by that statute, be limited, at our option, to the re-supply of the services again; or payment of the cost of having the services supplied again.
7.4 We acknowledge that some jurisdictions do not allow the exclusion or limitation of warranties or incidental or consequential damages, so that the above limitations or exclusions may not apply to you. In such jurisdictions, the liability of Melbourne IT (and the liability of any director, officer, employee, agent, affiliate, content provider or service provider of Melbourne IT) shall be limited to the greatest extent permitted by applicable law.
8.1 You acknowledge that all right, title and interest in any and all:
8.1.1 technology, including the software;
8.1.2 any documentation and material that is part of or provided with the Services; and
8.1.3 any know-how, trademarks or service marks of Melbourne IT, (collectively, "Our Intellectual Property") is vested in Melbourne IT and/or the licensors of Melbourne IT (as the context requires).
8.2 Unless otherwise specifically provided in this agreement, you agree that you shall have no right, title, claims or interest in or to Our Intellectual Property.
8.3 You may not copy, modify or translate any of Our Intellectual Property or related documentation, or decompile, disassemble or reverse engineer any of Our Intellectual Property, to use it other than in connection with the Services, or grant any other person or entity the right to do so.
8.4 Unless otherwise specifically permitted by this agreement, you are not authorised to distribute or to authorise others to distribute any of Our Intellectual Property in any manner without the prior written consent of Melbourne IT; provided, however, that nothing in this clause 8.4 shall preclude you from using Our Intellectual Property as incorporated in the Services. This clause 8.4 shall not operate to extinguish, restrict, vary, waive or affect in any manner whatsoever any right, title or interest which you may now have or hereafter acquire in, or in relation to, the third-party software that is part of or provided with the Services solely to the extent such third-party licensors publicly provide such rights, title or interest in the third-party software to you.
You acknowledge that, in the course of the performance of this agreement, you may have access to information and communications, including proprietary information claimed to be unique, secret, or confidential, and which constitutes the exclusive property and trade secrets of Melbourne IT ("Confidential Information"). You agree to maintain the confidentiality of the Confidential Information and to use the Confidential Information only to the extent necessary for legitimate business uses in connection with this agreement. Upon request of Melbourne IT or on termination or expiration of this agreement, you shall return the Confidential Information of Melbourne IT then in your possession to Melbourne IT. Nothing in this agreement shall prohibit or limit your use of information which (a) is now, or hereafter becomes, publicly known or available through lawful means; (b) is rightfully in your possession, as evidenced by your records; (c) is disclosed to you without confidential or proprietary restriction by a third party who rightfully possesses and rightfully discloses the information; (d) is independently developed by you without any breach of this agreement; (e) is the subject of a written permission to disclose provided by Melbourne IT; or (f) is required by law to be disclosed.
10.1 You agree to comply with Melbourne IT’s Acceptable Use Policy located at http://www.melbourneit.com.au/policies/acceptableusepolicy.php, as varied from time to time ("AUP"). If we receive notice of, or otherwise become aware that you have failed to comply with any provision of this AUP, in addition to any other rights of Melbourne IT under this agreement, you agree that Melbourne IT may immediately take corrective action, including suspension of any and all Services, or, in the case of Melbourne IT, terminating this agreement. In the event that any such corrective action due to a violation of the AUP occurs, Melbourne IT shall not refund to you any fees paid to Melbourne IT prior to such corrective action.
10.2 You agree to comply with Melbourne IT’s Privacy Policy located at http://www.melbourneit.com.au/privacy/, as varied from time to time ("Privacy Policy").
10.3 You agree that Melbourne IT may disclose your account and other information in accordance with the AUP and Privacy Policy.
Melbourne IT shall not be liable for failure or delay in performing its obligations under this agreement if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labour disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services.
12.1 In addition to any other rights under this agreement, Melbourne IT may suspend or terminate this agreement and cease providing the MLB Service to you:
12.1.1 if you breach any term of this agreement and (if capable of remedy) fail to remedy that breach within 14 days of receipt of a notice from Melbourne IT requiring you to remedy that breach;
12.1.2 if any of the following events occur:
12.1.2.1 you becomes insolvent or are otherwise unable to pay its debts as and when they fall due;
12.1.2.2 you (or any third party) institutes any insolvency, receivership or bankruptcy proceedings with respect to you, for the settlement of your debts;
12.1.2.3 you make a general assignment for the benefit of creditors; or
12.1.2.4 you cease to conduct business;
12.1.2.5 if requested to do so by any court, government authority, administrative or judicial body with the relevant jurisdiction over any matters affected by or concerning this agreement; or
12.1.2.6 Melbourne IT has elected to cease providing the MLB Service to you for any reason whatsoever. Notwithstanding any suspension of any Service under this clause 12.1, you shall remain liable for all charges due at the commencement of the suspension period throughout the period of suspension.
12.2 In addition to any other obligation under this agreement, if Melbourne IT terminates this agreement:
12.2.1 you must pay all outstanding charges to Melbourne IT immediately; and
12.2.2 any licence issued to or by you in relation to the MLB Service will cease from the date of termination.
13.1 The law in force in Victoria, Australia governs this agreement and the transactions contemplated by this agreement.
13.2 In the event it is necessary for Melbourne IT to enforce its rights under this agreement, you agree to pay all fees incurred by Melbourne IT (including, but not limited to, legal fees and collection agency fees)
13.3 This agreement shall be binding upon and inure to the benefit of you, your respective successors and assigns. You may not resell any Services or assign your rights and obligations under this agreement without the prior written consent of Melbourne IT.
13.4 A provision of, or a right created under this agreement, may not be waived except in writing signed by the party granting the waiver, or varied except in writing signed by the parties.
13.5 If any provision of this agreement is held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this agreement shall remain in full force and effect.
