Trendee Branding

Terms and Conditions

1. About

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. Definition 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. Configuration

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. Suspension

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. Indemnity

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.

19. Variations

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 https://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.

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