Marketing King - Terms of Conditions
Marketing King Services
An online business listings, business and reputation management service designed for small businesses.
These terms apply to our services.
- Definitions and interpretation
1.1. In these Terms, unless the context otherwise requires, the following expressions have the following meanings:
‘Agreement’ means the agreement for access to and use of the services as set out in these terms, along with the registration details for the services, the fee schedule and any other terms incorporated by reference.
‘Contact details’ means the contact and billing-related details provided by You to Us from time to time for Us to use to invoice You the fees for the Services and to communicate with You in connection with the Agreement.
‘Data’ means any data inputted by You or with Your authority in utilising the Services.
‘Fee Schedule’ means the schedule of fees for the Service issued by us from time to time.
‘Minimum Term Contract’ means the agreement between the Parties to access and use the Services for a specific and minimum duration to receive discounted Subscription Fees.
‘Intellectual Property Rights’ means all present and future rights in or to any copyright, database, patent, design, utility model, trademark (including any rights in get up or trade dress), brand name, service mark, trade name, domain name, business name, eligible layout right, chip topography right, plant breeder’s right, know-how, trade secret, confidential information, and any other rights of a proprietary nature in or to the results of intellectual activity in the industrial, commercial, scientific, literary, or artistic fields, whether registered, registrable, patentable, or not and wherever existing in the world, including all renewals, extensions, and revivals of, and all rights to apply for, any of the foregoing rights.
‘Location’ means the business at the location you register for the Services that is to be profiled through the Services.
‘Our, Us, We’ means Marketing King Australia, located in Melbourne, Australia. ABN: 60 418 261 323 12
‘Party’ means a party to the Agreement.
‘Reactivation Fee’ means the fee incurred when an account, after closure due to non-payment, requires reactivation.
‘Services’ means the online business listings, business and reputation management services made available by us from time to time as the “Marketing King Services”.
‘Set-up Fees’ means the fee, if any for set up of a particular Service.
‘Subscription Fee’ means the monthly fee payable for access to Services.
‘Tax’ means any duty, customs fee or tax (other than a Party’s income tax) associated with the supplies made under the Agreement, including any related penalties or interest.
‘User’ means any person or entity, including You, that You authorise to access or use the Services.
‘Website’ means www.marketingking.com.au
‘You, Your’ means the entity who has subscribed for the Services.
1.2. All references to a statutory provision shall be construed as including references to:
any statutory modification, consolidation, or re-enactment
all statutory instruments or orders made pursuant to it; and any statutory provision of which it is a modification, consolidation, or re- enactment.
1.3. Except where the context otherwise requires:
words denoting the singular include the plural and vice versa;
words denoting any gender include all genders; and
words denoting persons include firms and corporations and vice versa.
1.4. Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase, or term preceding those terms.
1.5. A reference to “$” is to Australian dollars.
- Service Commencement
2.1. The Services will commence when we have processed your registration for the Services.
2.2. We may decide we are unable to register You for the Services. If this happens, we will let you know and You will not be charged any fees.
- Nature and variation of the Service
3.1. The available Services and their features are intended to evolve over time based on factors such as feedback, customer take-up, online and social media market developments and technology updates. The currently available Services and their features are listed on the Website.
3.2. We may add to or remove the available Services from time to time. If you have paid in advance for a removed Service, we will refund any unused portion of Subscription Fees paid for the Services. Unless it is not possible to do so, we will give you a reasonable period of notice if we intend to remove a Service of at least 30 days, together with any recommended steps you take before the Service ends.
3.3. The Services may be unavailable while we conduct activities such as maintenance, updates and implement security measures.
3.4. We may make changes to operational aspects for the Services such as how You access the Services or reset Your password.
- Fees and Invoicing
4.1 Unless otherwise agreed:
the amounts payable for the Services are as set out in the Fee Schedule.
Subscription Fees will be charged for the Services on an ongoing basis.
Set-up Fees are payable in advance; and once a Service has been set-up, any Set-up Fees paid for that Service are non-refundable.
4.2. Unless expressly stated otherwise, all amounts payable under these Terms are expressed exclusive of all applicable Taxes.
4.3. If GST or any other Tax is payable as a consequence of any supply made (or deemed to be made) by one Party to the other in connection with the Agreement, the Party receiving the supply must pay to the Party making the supply an amount equal to the Tax payable in respect of the supply, in addition to the price, or other consideration (if any) required to be paid.
4.4. We will issue invoices using the relevant Contact Details.
4.5. We may use third party service providers to process payments including payments made by credit card. Any terms applying to those third parties including their privacy practices will be identified on the registration page in the payment details section.
- Use of Services and Your responsibilities
5.1. You must ensure that each User only accesses and uses the Services as permitted under the Agreement.
5.2. You are responsible for all access to and use of the Services made using the username, passwords and other login details associated with Your account for the Services.
5.3. You are responsible for maintaining Your internet access, IT infrastructure and all other technology, communications, social media accounts and other matters needed in order for You to access and use the Services.
5.4. You must ensure that the Services are only accessed and used in relation to the Location and for no other purpose. This right is non-transferable.
5.5. You must ensure that the Contact Details and all other details We hold about You and the Location are correct, complete and up-to-date.
5.6. You must ensure all Data provided or made available to Us is correct, complete and up-to-date.
5.7. You must ensure that all usernames and passwords used to access the Services are kept secure and confidential. You must immediately notify Us of any unauthorised use of Your passwords or any other breach of security.
5.8. You must ensure that all access and use the Services, does not:
undermine or attempt to undermine the security or integrity of Marketing King’s products or, where the Services are hosted by a third party, that third party’s computing systems;
misuse or use or attempt to misuse or use the Services in any way which may impair the functionality of the Services;
gain or attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access; or
modify, copy, adapt, reproduce or reverse engineer any computer programs used to deliver the Services or attempt to do any such activity.
6.1. Save as required by law, You must only use Our confidential information as instructed by Us and You shall not disclose any confidential information relating to the Us or Our affiliates obtained during or arising out of the Agreement, to anyone (except to Your employees on an as need basis).
6.2. The obligations in clause 6.1 will survive expiration or cancellation of the Agreement.
- Intellectual Property Rights
8.1. All Intellectual Property Rights in the Services, the Website and any documentation relating to the Services remain the property of Us or Our licensors.
8.2. You retain all Intellectual Property Rights You have in in the Data.
8.3. You grant Us a royalty-free licence to use, copy, transmit, store and back-up the Data for the purposes of providing You with the Services and enabling You to access and use the Services as contemplated by the Agreement.
8.4. You warrant that all Data You provide to Us may be used as contemplated in clause 8.3 and that such use will not infringe the rights of any third party. You indemnify Us for all losses and costs We incur as a result of any claim made against Us by a third party that use of Your Data as contemplated by the Agreement infringes the third party’s rights.
8.5. Connecting to third-party social networks and websites will occur as part of the Services. You acknowledge that We may allow third-parties to access Your Data as required for the interoperation of such third-party social networks and websites with the Services. To the extent permitted by law, we are not be responsible for any disclosure, modification or deletion of Your Data resulting from any such granted access by third-party providers.
8.6 You acknowledge and agree that We shall have the right to utilise data capture, syndication and analysis tools and other similar tools to extract, compile, synthesise and analyse any non-personal unidentifiable data or information resulting from Your use of the Services (“Statistical Data”). We shall own all Intellectual Property Rights in the Statistical Data.
8.7 We shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual licence to incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receives from you.
9.1. Whilst We shall use all reasonable endeavours to ensure that all Services are free from viruses and errors, We provide no guarantee that they will be free from such defects.
9.2. Subject to clause 9.3, Our liability to You in contract, tort (including negligence), statute, or otherwise arising under or in connection with the Agreement is capped in the aggregate for all claims to the total amount paid by You to Us.
9.3. We exclude all liability to You in contract, tort (including negligence), statute, or otherwise arising under or in connection with the Agreement for loss of income or revenue; loss or interruption of business; loss of up time; loss of profits; third party claims; loss of or damage to software; loss of data; loss due to the introduction of a computer virus or other malware; loss of anticipated savings; loss of goodwill; loss of traffic; or any liability for any indirect or consequential loss or damage incurred by Us in connection with the Services; or any other loss or damage of any kind (including for any injury to any person), however arising.
9.4. The limitations on Our liability contained in the Agreement are made to the full extent permitted by law. Nothing in the Agreement restricts the effect of warranties or conditions which may be implied by law or any other rights or remedies which cannot be excluded, restricted or modified. Subject to those laws, to the extent to which We are entitled to do so, Our liability under such implied conditions or warranties or other rights or remedies, shall be limited at its option to:
the supplying of the services again; or
the payment of the cost of having the services supplied again.
- Variation of Terms
10.1. We may by notice to You vary the Agreement.
10.2. Any variation will take effect on the date specified in the notice which shall not be less than 30 days.
- Renewal, cancellation and suspension
11.1. To renew Your subscription for the Services where there is no agreed Minimum Term Contract. Before we can active and delivery our product or services you must pay Us the full applicable Subscription Fees before the end of Your current subscription period. If You do not renew Your subscription, Your access to the Services will cease when Your paid up subscription period expires. However, we will consider case by case as we are here to help you as much as we can in harmony
11.2 Where You have agreed to a Minimum Term Contract, You must pay Us the Subscription Fees each month. At the end of the Minimum Term Contract, Your Subscription will be automatically renewed at the same Subscription Fees on a month to month Subscription basis unless notified otherwise by either Party providing thirty (30) days’ notice to the to the other Party.
11.2. If We vary the Agreement under clause 10 and that variation takes effect before Your paid up subscription period or Minimum Term Contract expires (whichever is applicable), You may by written notice to Us elect to cancel Your subscription for the Services at any time before the variation takes effect.
11.3. We may cancel Your subscription for Services at any time:
- by giving You notice if a third party upon which Services depends ceases to support the underlying platform or basis for the Services. Where practicable, We will You a notice period; and
(b) if 11.3(a) does not apply, by giving You not less than 30 days’ notice.
11.4. We may suspend or cancel Your subscription for Services immediately by giving notice to You if You:
- a) have failed to pay fees when due;
- b) breach the Agreement and fail to remedy that breach within 14 days of receiving notice from Us to do so; or
- c) become insolvent or otherwise unable to pay Your debts when due or You cease to carry on business.
11.5. Our suspension under clause 11.4 does not take away Our right to cancel Your subscription for Services or Your obligation to pay the Subscription Fees for the remaining term of a Minimum Term Contract. In the suspension notice We will specify what You must do to have the suspension lifted and the deadline to do so. If You do not comply with this notice, We may exercise Our right to cancel Your subscription for Services.
11.6. Unless agreed otherwise, if Your subscription for Services is cancelled, You are not entitled to a refund of any Set-up Fee or Subscription Fees.
11.7. Unless agreed otherwise, if Your subscription for Services is cancelled due to clause 11.4(a) and we agree to reactivate the Service, you will be required to pay a $50.00 Reactivation Fee.
11.8. You may cancel your Services with Us, providing thirty (30) days’ notice to Us by telephone only, with Our authorised business representative who is named on your account. On cancellation of Your subscription for Services in accordance with this clause 11:
- Month to month Subscriptions:
We will repay You any unused portion of the Subscription Fees You have paid (excluding Subscription Fees paid within the term of a Fixed Term Contract). However, if cancellation is under clauses 11.5, We may deduct from that amount any amount We are owed by You and pay You the remainder.
- Minimum Term Contracts: You will pay to Us the monthly Subscription Fees for the remainder of the term of your Minimum Term Contract. For the avoidance of doubt, if you cancel your 24 month Minimum Term Contract after only 12 months, You will pay to Us the remaining 12 months’ Subscription Fees
- We will provide instructions to You if applicable on transitional issues for the Location’s online profile that was managed via the Services.
If You are experiencing any issues with the Services, we encourage You in advance to contact Us regarding these issues.
- Force Majeure
Neither We nor You shall be liable for any failure to, or delay in, performing Ours or Your respective obligations under the Agreement where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet service provider failure, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action, or any other event that is beyond the control of the Party in question.
- No Waiver
No failure or delay by either Party in exercising any of its rights under the Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of the Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
- Further Assurance
Each Party shall execute all such further deeds and documents and do all such further things as may be necessary to carry the provisions of the Agreement into full force and effect.
Subject to any provisions to the contrary, each Party to the Agreement shall pay its own costs of, and incidental to, the negotiation, preparation, execution, and carrying into effect of the Agreement.
- Entire Agreement
16.1. The Agreement contains the entire understanding between the Parties as to its subject matter and supersedes and excludes all prior and other discussions, specifications, representations, communications and arrangements relating to the Services including, but not limited to, those relating to performance or results that ought to be expected from Services.
16.2. Each Party acknowledges that, in entering into the Agreement, it does not rely on any representation, warranty, or other provision except as expressly provided in the Agreement, and all conditions, warranties, or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
In the event that one or more of the provisions of the Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provision(s) shall be deemed to be severed from the remainder of the Agreement. The remainder of the Agreement shall be valid and enforceable.
- Complaints and Dispute Resolution
18.1. Any complaints made about the Services or a dispute relating to the Agreement should be addressed to the “Customer Service Manager” in writing, and preferably transmitted to Us by email to firstname.lastname@example.org – or alternatively by post to the address for Us specified above in the definitions.
18.2. If You are not satisfied by Our response, the Parties shall attempt to resolve any dispute arising out of or relating to the Agreement through negotiations directly or between their appointed representatives who have the authority to settle such disputes. If such negotiations do not resolve the matter within thirty (30) Business Days of receipt of a written invitation to negotiate, the Parties will attempt to resolve the dispute in good faith through an agreed alternative dispute resolution procedure.
18.3. Nothing in this clause shall prohibit either Party or its affiliates from applying to a court for interim injunctive relief.
19.1. All notices given by Us may be given by email to the address notified by You to Us. It is Your obligation to keep that email address current and correct. You agree that a record of Us having sent a notice to You by email is, of itself, conclusive proof of receipt.
19.2. Unless otherwise stated, notices given by You must be delivered to Us in writing and addressed to: Marketing King. Telephone: 0411-569-50. Email: email@example.com Website: www.marketingking.com.au
- Governing Law
The Agreement is governed by the laws of the State of Melbourne, Victoria, Australia and each Party submits to the exclusive jurisdiction of the courts of that State.