Terms and Conditions
Terms of Agreement for Digital Services – Blue Mark Digital Pty Ltd
Amended February 16, 2020
By requesting or purchasing products and/or services from Blue Mark Digital Pty Ltd (ABN 67 621 386 776) (the Agency), you (the Client) agree to be bound by the following terms and conditions.
Please note that some of the terms and conditions are product or service specific, and may not be applicable to you. If you have any questions regarding our terms and conditions, please contact us prior to engaging our services.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.bluemarkdigital.com/terms. Customers will be notified by email if the terms and conditions change, and will be required to immediately cease services if the do not accept or agree to the new terms and conditions.
1 General
1.1 Blue Mark Digital agrees to provide the Client services described in the proposal or on invoices hereinafter referred to as “Services”. The services will be applied directly or indirectly to the Client’s website, business listings, third party properties and/or social media profiles.
1.2 To summarise the service/s provided may include some or all of, but are not limited to
1.2.1.1 Search Engine Optimisation
1.2.1.2 Local Search Optimisation
1.2.1.3 Reputation Marketing
1.2.1.4 Call Tracking and Analytical Services
1.2.1.5 Social Media Optimisation and/or Content Supply
1.2.1.6 Email Marketing
1.2.1.7 SMS Marketing and Lead Generation Services
1.2.1.8 Website Design or Development
1.2.1.9 Paid Advertising Management (PPC Management)
1.2.1.10 Advertising Media Spend
1.2.1.11 Website Hosting
2 About
2.1 These terms and conditions are subject to change from time to time, so you should review them for changes periodically.
2.2 Please read these Terms and Conditions carefully. They apply to:
2.2.1 your use of the Services;
2.2.2 any Goods or any quotations for or offers to supply Goods; and/or
2.2.3 any Other Services, provided to you by Blue Mark Digital Pty Ltd, ACN 621 386 776 (in this Agreement referred to as “our”, “we”, “us”, “Blue Mark Digital” or “Agency”).
3 Definitions and Interpretation
“Agreement” means this agreement for the provision of the Supplies by us to you.
“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;
“Blue Mark Digital” or “Agency” or “us” means Blue Mark Digital Pty Ltd – ACN 621 386 776
“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));
“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 Blue Mark Digital.
“Goods” means any goods we supply to you (including goods supplied in connection with any Services);
“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, and is applicable to Australian Clients;
“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;
“Media Spend” means any amount that has been or will be disbursed to a third party provider or platform for which ads have been purchased for your account. This charge will be on-billed and is payable by you.
“Other Services” means any other services in connection with Goods and/or Services (including installation and maintenance services);
“Policy” means any policy published by us from time to time and notified to you;
“Service” and “Services” means a product or service(s) which we have agreed to supply to you or you have requested from us;
“Software” means software we provide to you for your use in connection with the Services (if any);
“Supplies” means the Services, Goods and/or Other Services, as appropriate;
“Term” means, in respect of a Service, the contract period specified in the Application for that Service. If no term is specified the service is deemed to be ongoing with no end date.
“you” or “your” or “Client” means the current account holder.
4 Interaction with our Staff
4.1 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.
5 Access Information
5.1 We will provide you with any access information required to use the Services that we deem reasonably necessary (if any). Access may be revoked to any or all services should any invoice fall outside our trading terms.
5.2 You will:
5.2.1 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
5.2.2 notify us immediately if your username and password are lost, or you think someone else is using them.
5.2.3 You will be liable for all Charges resulting from use of the Services accessed through your access information, whether authorised by you or not.
5.2.4 By accessing and using our services, you agree to comply with these terms and conditions, and any of our policies.
6 Acceptable Use Policy
6.1.1 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.
6.1.2 You must not use or attempt to use your Service to store, send, distribute or otherwise make available any content or material which:
6.1.3 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;
6.1.4 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;
6.1.5 is confidential, subject to copyright or any other rights of a third party (unless you have a lawful right to do so); or
6.1.6 is otherwise illegal, fraudulent or likely to give rise to civil or criminal proceedings.
6.1.7 You must not use or attempt to use your Service to:
6.1.7.1 store, send or distribute any viruses or other harmful programs, codes or other malicious software;
6.1.7.2 hinder, restrict or interfere with the normal operation of our network, systems and equipment or that of any other person or entity;
6.1.7.3 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;
6.1.7.4 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;
6.1.7.5 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;
6.1.7.6 send or distribute any material or take any other action with the aim of overloading any network or system (including our network and systems);
6.1.7.7 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’;
6.1.7.8 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;
6.1.7.9 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;
6.1.7.10 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
6.1.7.11 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.
6.2 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.
7 Configuration
7.1 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.
7.2 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.
7.3 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.
8 Bandwidth
8.1 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.
8.1.1 Excess bandwidth is currently $10 per Gb for any excess.
8.1.2 Excess storage is currently $0.6 / Mb for any excess.
8.1.3 Unused bandwidth may not be carried over from month-to-month.
8.2 You will ensure that neither you nor any of your End Users makes excessive or wasteful use of the Server to Blue Mark Digitals’ detriment or that of Blue Mark Digitals’ 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.
8.3 If the contents of your Space regularly generate more server traffic than is deemed acceptable by Blue Mark Digital, to the detriment of other Blue Mark Digital customers, Blue Mark Digital shall issue a warning by email to you, at the address you provided to Blue Mark Digital, in which Blue Mark Digital 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, Blue Mark Digital reserves the right to terminate the Services.
9 Domain Name Registration and Transfer
9.1 Blue Mark Digital will on request register, transfer or renew a requested domain name on your behalf through our reseller account.
9.2 Where Blue Mark Digital has registered, renewed or transferred a domain name on your behalf or at your request, and payment of the fees for this service remain outstanding after a period of 7 days after registration, renewal or transfer, Blue Mark Digital reserves the right to transfer ownership, registrant details or admin details as it sees fit to protect its interest in outstanding moneys. You agree to facilitate this request if required by Blue Mark Digital.
9.3 You agree that Domain names are prohibited from being transferred out if Blue Mark Digital believes there are still moneys owing on any services associated with the domain to Blue Mark Digital. The domain will be held in the Blue Mark Digital portal as security for any outstanding invoices and until such time as full payment is received and transfer approved by Blue Mark Digital at its sole discretion.
10 Charges/Fees – Applicable to all Services
10.1 You must be over the age of 18 at the time you place your Order.
10.2 All Charges (unless otherwise confirmed by the Agency), 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).
10.3 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 15.1 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:
10.3.1 terminate the supply agreement (as set out in Clause 15.1); and/or
10.3.2 Charge interest on any monies owing to us at a rate equivalent to 2.0% per calendar month (24% per annum), and that interest to be calculated and compounded from the date on which the relevant payment was due until all outstanding monies have been paid in full.
10.4 Service suspensions under Clause 15.1 (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.
10.5 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.
10.6 Where you request us to invoice amounts owing under this Agreement to a nominated credit card:
10.6.1 you will operate the credit card within terms and credit limits set in order to pay your account in full;
10.6.2 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;
10.6.3 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
10.6.4 we can charge you a credit card payment processing fee.
10.7 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.
10.8 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.
10.9 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.
11 Back Up Creation
11.1 If we are providing hosting services, we store a daily backup of your data 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 Blue Mark Digital, 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. Blue Mark Digital will not be liable for any loss, damage or inability to store or restore any backup.
11.2 Blue Mark Digital 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.
11.3 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.
11.4 Blue Mark Digital will on request by you try it’s best to restore a backup made by Blue Mark Digital. 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, Blue Mark Digital will not be liable for any loss or damage that you may sustain or incur as a result, whether directly or indirectly.
12 Technical Support
12.1 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 Blue Mark Digital. 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.
12.2 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.
13 Third Party Intellectual Property Rights
13.1 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.
14 Complying with Regulatory Authorities
14.1 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.
14.2 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.
15 Suspension
15.1 We reserve the right to immediately and without notice (and without prejudice to our rights of termination under Clause 16) suspend your access to the Services in our discretion if we:
15.1.1.1 reasonably consider that you have Materially Breached our terms and conditions;
15.1.1.2 reasonably consider that you may have Materially Breached our Acceptable Use Policy;
15.1.1.3 receive allegations (which we reasonably believe to be genuine) which indicate that you have Materially Breached our Acceptable Use Policy; or
15.1.1.4 reasonably suspect that your use of the Services breaches any state federal or Commonwealth law.
15.1.1.5 reasonably believe or receive information that makes us believe that you or your company has become insolvent or appear to be trading whilst insolvent.
15.2 If we suspend your access to the Services under Clause 15.1, 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.
15.3 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 15.1 or in relation to our reconnection or resupply of the Services to you under Clause 15.2.
15.4 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 15.1, and we have not reactivated your access to the Services within seven (7) days of this suspension.
15.5 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.
16 Termination By Us
16.1 Without limiting the generality of any other Clause in this Agreement, we may terminate this Agreement immediately by notice in writing if:
16.1.1 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;
16.1.2 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;
16.1.3 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;
16.1.4 if you are a natural person, we discover or reasonably believe that you are a minor;
16.1.5 we believe you are about to or may become or are in jeopardy of becoming subject to any form of insolvency administration;
16.1.6 if you being a partnership, dissolve, threaten or resolve to dissolve or are in jeopardy of dissolving;
16.1.7 in Blue Mark Digitals’ reasonable opinion, you do not have sufficient technical expertise to use the Service without excessive ongoing technical support;
16.1.8 if you, being a natural person, die; or
16.1.9 you cease or threaten to cease conducting business in the normal manner.
16.2 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).
16.3 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.
16.4 We may terminate or suspend any and all services immediately upon notification of a Credit Card or Paypal chargeback.
17 Cancellation by You
17.1 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.
17.2 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 or at the end of the billing cycle;
17.3 In any case of cancellation or termination, Blue Mark Digital will not offer any refunds of any charged pre-paid amounts, excessive bandwidth usage charges and/or excessive data storage charges.
17.4 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.
17.5 All cancellation or termination requests must be completed through the client portal by logging in at https://www.bluemarkdigital.com/clients and selecting the active service that you wish to cancel, then selecting request cancellation from the menu.
17.6 Blue Mark Digital will only accept cancellation requests that are completed correctly through the client portal and the cancellation request will be deemed as received from that date.
18 Marketing Contract Termination
18.1 If The Client wishes to end services and they are on a month to month service agreement, then the client simply has to submit in writing the request to cancel services 30 days ahead of time through the client portal.
18.2 If the Client is on a multiple months or annual service contract, then they may end contract anytime by making a full payment of the remaining monthly fees. Alternately, the Client may terminate the Agreement on 30 (thirty) days written notice, without any penalty, if Agency makes a material amendment to these standard terms and conditions that is to the detriment of the Client.
18.3 Agency may terminate the Agreement at any time without further notice if the Client has failed to pay any outstanding amount within a period of 30 (thirty) days of a written notice to do so. Should Agency terminate the Agreement owing to a lack of payment on the Client’s behalf, the remaining outstanding full contract value will become due and payable.
19 Web Design Service Termination
19.1 In the event of cancellation of this assignment, ownership of all copyrights and any original artwork shall be retained by The Agency.
19.2 The Client may cancel work on the website at any time by submitting notice to the Agency via the client portal or via a support ticket. The Agency will halt work upon receipt of the noitice from Client requesting cancellation. At that time, Client will be responsible for paying for all work completed prior to the Agency’s receipt of cancellation request. Work completed shall be billed at an hourly rate of $85 + gst per hour. If, at the time of request for refund, work has been completed beyond the amount of work paid for by the initial payment, the Client shall pay for work completed.
19.3 The Agency reserves the right to refuse service and cancel a website project if necessary, in which case, the balance of the initial payment will be returned to Client after all applicable fees have been deducted for work completed. The Agency may cancel project for any reason deemed necessary, including but not limited to Client not providing necessary information, text and graphics in a timely fashion to the Agency.
20 Refund Policy
20.1 There will be no refunds for work completed. In short, we have a NO Refund Policy.
20.2 You are not entitled to a credit or refund for loss of access during any suspension period in accordance with Clause 15.1 or in the event that this Agreement is terminated in accordance with clause 16.
20.3 In any case of cancellation or termination, Blue Mark Digital will not offer any refunds of any charged or paid amounts, excessive bandwidth usage charges and/or excessive data storage charges.
21 Our Rights
21.1 Blue Mark Digital reserves the right to terminate any client or account at its sole discretion without notice.
21.2 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.
21.3 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.
21.4 Blue Mark Digital 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 Blue Mark Digital believes the migration will affect these services in any significant way, shape or form, only then may Blue Mark Digital issue a notification by email to you, at the address you provided to Blue Mark Digital.
22 Technical Support
22.1 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 Blue Mark Digital. 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.
22.2 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 $90 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.
22.3 You represent and warrant that:
22.3.1 you have the experience and knowledge necessary to use the Service;
22.3.2 you and your End Users understand and appreciate the risks inherent to you, your business and your person that come from accessing the Internet;
22.3.3 you have sufficient knowledge about administering, designing and operating the functions facilitated by the Service necessary to take advantage of the Service;
22.3.4 you will not violate any applicable laws and/or regulations in your use of the Services;
22.3.5 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
22.3.6 you will pass through the terms of these Terms and Conditions, and any agreements incorporated by reference, to your End Users.
23 Customers Migrated to us from Other Hosts due to Wind Up or Administration.
23.1 As part of our agreement with the Administrators or Operators of other agencies that have either been wound up or liquidated for whatever reason, we will assist you where possible to maintain your online presence by:
23.1.1 Maintaining your hosting service live for a period of not less than 90 days. During that time you will have full access to copy, move or maintain your website as you require.
23.1.2 After the initial period of 90 days, we may choose, at our sole discretion, to restrict admin access to the hosting platform (ftp, control panel or cPanel) depending on the service, or if the domain name has been let expire we may terminate the account.
23.1.3 After the initial 90 day period, we will invoice you at a rate appropriate to your existing package to continue to maintain the services after the 90 day period.
23.1.4 Once this hosting fee has been paid in full, admin access to the account will be restored.
23.1.5 If the invoice falls outside our standard trading terms and becomes overdue from non-payment, we may suspend the service which could interrupt all email delivery and prevent the website from displaying.
23.1.6 If the invoice still remains unpaid, we may terminate the account, deleting all data.
23.2 We will charge a fee of $59 + gst to recover the website and data after the 90 day period or allow a temporary 7 day ftp access to the account, should you choose not to continue hosting services with us. Please note that data is only kept for a period of 30 days after the account had been terminated, then it is permanently deleted.
23.3 Blue Mark Digital will not be held responsible for any loss of data or site downtime throughout this period, and falls outside our standard Service Level Agreement. Our responsibility only begins after the hosting invoice has been paid and official hosting services with us begin.
23.4 We will assist you to recover control of your domain name, and transfer the domain to our registry, if it is not already present.
23.5 Domain names that have not expired may be transferred out of the registry without charge. If the domain has already expired the renewal charges first need to be paid so the transfer can take effect.
23.6 Additional charges will be incurred if the Registrant required a Name Change.
24 Indemnity
24.1 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.
24.2 The terms of this section shall survive any termination of these Terms and Conditions.
25 Variations
25.1 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.bluemarkdigital.com.
25.2 By commencing the use of any services provided by Blue Mark Digital, you agree and accept these Terms and Conditions.
26 Special Conditions for Marketing Campaigns
26.1 SEO is governed by many factors which are outside the direct control of Blue Mark Digital and indeed, any other SEO company. Search Engines are third party systems with unknown variables, algorithms and indexing decisions that can change at any time, with which we have no control over. As such, no SEO specialist can offer a 100% guarantee of getting your website ranked #1 on any major Search Engine for your desired keywords.
26.2 Blue Mark Digital only use honest, ethical and completely legitimate techniques and accepted standards to improve your Search Engine Ranking – no tricks, no invisible text, no black hat methods. Some other SEO companies around the world use illegal software to spam Search Engines in order to improve the website rank quicker, but this usually results in a permanent ban of the website. By working with search engines and not against them, Blue Mark Digital ensures that clients have the best chance of achieving high organic search engine result page (SERP) rankings.
26.3 Blue Mark Digital will provide the services with reasonable skill and care. Notwithstanding the previous sentence, the client acknowledges that Blue Mark Digital has no direct control over Search Engines and cannot guarantee the speed of performance of technologies provided by Search Engines in relation to the delivery of the services.
26.4 The quantity and the description of the services shall be as set out in the Project Brief.
26.5 Blue Mark Digital operates within the major Search Engines in Australia and worldwide. Listings will appear on either .com.au or .com engines dependant on the website’s status, and the decisions of the Search Engines.
26.6 Hosting
26.6.1 The website should be hosted on a reliable server, based in the country of Search Engine interest, with constant availability, for optimum results. Blue Mark Digital cannot be held responsible for problems or additional costs arising due to any errors made by third parties, or failure to maintain a current copy of your own website. (Back ups can be made at the client’s request.)
26.6.2 Website downtime can severely affect SEO. Down time can potentially cost the client their ranking positions for their desired search terms, and even a short period of down time can affect Blue Mark Digitals’ SEO efforts. If the client’s website experiences downtime due to server error, maintenance or any reason outside of the control of Blue Mark Digital for a period of more than 3 days, Blue Mark Digital will not be able to fulfil the service requirements as set out in the Project Brief.
26.6.3 In the event that the client’s website becomes unavailable for any reason (eg if the server is down or unavailable, timed out, or shows to be active but with internal server errors, 404 errors and other types of common or uncommon errors associated with the internet and its underlying infrastructure), the client will not hold Blue Mark Digital responsible for these errors. All/any traffic delivered to the client’s website during this down time will not be credited or refunded. In the event that any of the above errors occur including any errors not listed but clearly intended, the client may submit in writing a request for the ad campaign to be placed on hold. Upon resolution of the problem the held campaign will continue.
26.6.4 The client acknowledges that there may be occasions when the client’s website or the websites of any third parties may be out of action for limited periods due to technical difficulties or routine maintenance of a third party server, and Blue Mark Digital shall not be liable to the client for any downtime of this sort.
26.7 Access
26.7.1 The client agrees to supply Blue Mark Digital with the necessary FTP and CMS backend access to the website in order to optimise the website unless otherwise negotiated.
26.8 Content
26.8.1 Search Engines change their inclusion policy ranking algorithms and methods all the time, and unless the site is maintained with necessary analysis, tuning and necessary alterations, a highly ranked site is unlikely to hold that position for very long.
26.8.2 Ongoing Search Engine optimisation is important. Blue Mark Digital advises that regular, fresh content added to the website will help to improve the stability of rankings within search engines. By accepting this agreement, the client understands fully that regular, unique content plays an important part of the success of their website and that failure to add unique content will lessen the impact of the SEO services provided by Blue Mark Digital.
26.9 Search Engine Submission
26.9.1 The client gives permission for Blue Mark Digital to set, create and or set up relevant accounts with search engines on behalf of client, in order to fulfil its obligations under these terms.
26.9.2 Search Engines will rank websites with their own differing strategies, so it’s technically impossible to rank highly on all the major Search Engines at the same time.
26.9.3 Some Search Engines use the algorithms and services of bigger Search Engines. The client acknowledges that any addition or alteration to the listing of the website in any Search Engine may affect the listing in other non-targeted Search Engines.
26.9.4 Search Engines have differing scheduled times to crawl and index submitted sites into their database, ranging from hours to months. No SEO firm can speed up the process in any ethical way.
26.10 Changes
26.10.1 If during the SEO contract period between Blue Mark Digital and the client, the client uses a third party (other than Blue Mark Digital) for Search Engine optimisation and / or associated workings, Blue Mark Digital cannot be held responsible for any consequential loss of listings or associated damages that may arise.
26.10.2 The client must inform Blue Mark Digital of any alterations relating to the website by the client or a third party that may affect the services supplied by Blue Mark Digital, including but not limited to deletion, alteration or additions of URL addresses, URL redirects, Landing Pages and their content, confirmation pages and their content, and the removal, overwriting or deletion of any of our optimisation changes. If alterations are made by the client or a third party to the client’s site, Search Engine placements may be affected and Blue Mark Digital cannot be held responsible. Blue Mark Digitalreserves the right to issue a charge to rectify any problems to regain listings.
26.10.3 If, after commencing services with Blue Mark Digital, the client or a third party makes modifications to the website that use unethical SEO techniques to try and achieve high listings on the Search Engines (such as cloaking, hidden text, keyword stuffing, etc) or add pharmaceutical, gambling or pornographic links to the website that have no relevance to the website, Blue Mark Digital will issue a 7 day cancellation request. If the questionable techniques are not removed within that time, Blue Mark Digital will cancel the existing contract with immediate effect and all fees payable to Blue Mark Digital will be retained. Blue Mark Digital will not be held liable for the effects caused by the client or a third party using unethical techniques.
27 Warranties and Liability
27.1 Blue Mark Digital warrants that the services will at the time of delivery correspond to the description given by Blue Mark Digital, either verbally or by means of the Project Brief.
27.2 The Client agrees Blue Mark Digital is not liable for any failure to carry out services for reasons beyond its control including but not limited to acts of God, telecommunication problems, software failure, hardware failure, third party interference, Government, emergency on major scale or any social disturbance of extreme nature such as industrial strike, riot, terrorism and war or any act or omission of any third party services.
27.3 The Client agrees Blue Mark Digital is not liable for absence of service as a result of illness or holiday.
27.4 Blue Mark Digital is not liable for any consequences or financial losses such as, but not limited to, loss of business, profit, revenue, contract, data or potential savings, relating to services provided.
27.5 Blue Mark Digital shall have no liability to the Client or any third parties for any damages, including but not limited to, claims, losses, lost profits, lost savings, or other incidental, consequential, or special damages arising out of the operation of or inability to operate the website, even if Blue Mark Digital has been advised of the possibility of such damages.
27.6 There are sometimes laws and taxes which affect Internet ecommerce. The Client agrees that it is their responsibility to comply with such laws and will hold harmless, protect, and defend Blue Mark Digital from any claim, suit, penalty, tax, or tariff arising from the Client’s exercise of Internet ecommerce.
27.7 Blue Mark Digital may from time to time recommend to the Client that updates are needed for their website to comply with, including but not limited to, new legislations, software releases and web standards. Blue Mark Digital reserves the right to quote for any updates as separate work. The Client agrees that Blue Mark Digital is not liable for any failure to inform or implement these updates to their site. The Client agrees that it shall defend, indemnify, save and hold Blue Mark Digital harmless from any and all demands, liabilities, costs, losses and claims arising from omission to inform or implement these updates.
27.8 The Customer acknowledges that no promise, representation, warranty or undertaking has been made or given by Blue Mark Digital or any person or company on Blue Mark Digitals’ behalf in relation to the profitability or any other consequences or benefits to be obtained from the delivery or use of the Services or Software or as to its merchantability or fitness for any purpose or purposes whatsoever and the Customer has relied upon the Customer’s own skill and judgement in deciding to acquire the Services or Software for use by the Customer and the Customer hereby agrees to indemnify and keep indemnified Blue Mark Digital against all actions, costs, expenses, charges, claims or demands whatsoever whether at law or inequity which may arise out of the use by the Customer of the Services or Software excepting always the rights conferred on the Customer pursuant to the terms of this Agreement.
27.9 Blue Mark Digital will not be responsible for a failure to supply, perform or deliver, Software and Services in the event of any fact, circumstance, matter or thing beyond the reasonable control of Blue Mark Digital and shall be relieved of that obligation to the extent, and for the period, that it is unable to supply or perform the Services or deliver the Software.
27.10 To the fullest extent permissible by the law applicable to this Agreement, Blue Mark Digital will not be liable for any personal injury, incidental damages, consequential losses, loss of profit or any like claims whatsoever arising from any use of, or incidental to, the Software. Without limiting this clause or any other clause in this Agreement, Blue Mark Digital will not be liable for any personal injury, incidental damages, consequential losses, loss of profit or any like claims whatsoever arising from or incidental to the use of the Software by the Customer.
27.11 Blue Mark Digital retains rights to all source code that it develops. The customer will receive one licence to use the product as they require.
27.12 Client acknowledges the following with respect to services:
27.12.1 The Agency has no control over the policies of search engines with respect to the type of websites and/or content they accept now or in the future. The Client’s website may be excluded from any directory at any time at the sole discretion of the search engine or directory.
27.12.2 Due to the competitiveness of some keywords/phrases, ongoing changes in search engine ranking algorithms and other competitive factors, Agency does not guarantee #1 positions or consistent top 10 positions for any particular keyword, phrase or search term.
27.12.3 Due to the unpredictable nature of search engines, the Agency is not responsible for any loss of revenue due to the ranking or placement or the lack of such for the client’s website within the search engines.
27.12.4 The Agency is not responsible for changes made to the Web site by other parties that adversely affect the search engine rankings of the Client’s Web site.
27.12.5 The Agency is not responsible for other parties overwriting SEO work on Client’s site (e.g. Client’s webmaster making changes and uploading over work already provided). The Client will be charged an additional fee for re-constructing Meta Tags, or other undesirable overwrites made by another party.
27.12.6 Client guarantees any elements of text, graphics, photos, designs, trademarks, or other artwork provided to the Agency for inclusion on the website or marketing materials, are owned by Client, or that the Client has received permission from the rightful owner(s) to use each of the elements. The Client will hold harmless, protect, and defend the Agency and its subcontractors from any liability or suit arising from the use of such elements.
27.12.7 Some search engines, directories, and article/press release publication sites may take as long as 3 to 6 months, and in some cases longer, after submission to list your site or publish the submitted content. Occasionally, search engines and publication sites will stop accepting submissions for an indefinite period of time. The Client understands that although work will be done to publish content, and submit their business into online directories, publication of content and successful directory submissions are not guaranteed.
27.12.8 Links that have been built to the Clients website are not guaranteed to last forever. The lifetime or duration of a link built to the Client’s website is dependent on the webmaster of the corresponding webpage containing the back-link and the search engines decision to index the page containing the back-link. The Agency will make its best effort to build links that will last longer, as opposed to shorter. When links built to the client’s website are documented on the work report, the Agency does not hold liability or responsibility for links that are no longer active or for broken links.
27.12.9 Certain factors can take a website offline or tell the search engines to not index a particular website or webpage. If a website goes offline or is de-indexed by the searched engines because of malware, a virus, robots txt, or another misc. reason, the Agency does not hold liability for this.
27.12.10 Not all components of the marketing campaign are reportable. The Client agrees not to hold The Agency liable for such line items in which no work report is provided or if a third party platform is disconnected from our reporting dashboard.
27.12.11 The Agency’s obligation to perform Services hereunder shall be excused without liability when prevented by strike, act of God, governmental action, accident, act of war, act of terrorism or any other similar condition that is beyond its reasonable control. Client’s obligation to pay any fees shall continue except during any suspension due to Agency’s inability to perform under the Agreement/s.
27.12.12 The Agency’s obligation to perform Services hereunder shall be excused without liability when Client does not perform in accordance with Client’s obligations under the Agreement/s. The Agency agrees to resume performance of Services as soon as practicable following cessation of such condition.
27.12.13 The Agency makes no representations or warranties, whether written, oral, express or implied, with respect to the services, including, without limitation, all reports, summaries, information or recommendations prepared or issued, or additional services, if any, or with respect to any other matter hereunder. Each party hereby expressly disclaims any and all implied warranties.
27.12.14 Limitations of liability and damages. In no event shall either party be liable, whether in contract or in tort, for any lost profits, lost savings, lost data, lost or damaged software, or any other special, indirect, consequential, incidental, or punitive damages arising out of the agreement/s, regardless of whether such party had notice of the possibility of any such loss or damage; provided, however, that the limitations in this paragraph shall not apply to either party’s indemnification obligations or breach of the contract terms.
28 Marketing Campaign Reporting Conditions
28.1 Work reports will be provided as proof of work done only if any dispute proceeds to litigation and if where applicable. These reports will be charged to the Client and subsequently added to the debt being collected at the rate of $200 + gst per service reported.
28.2 Web Design builds do not require work reports because all work completed will be evident when the website is turned over.
28.3 Marketing campaigns are supplied with a live campaign dashboard access to Campaigns.Express while the campaign is active, and the client has the ability to monitor the campaign progress in real time. Any billing disputes for the month must be reported within 7 days of the Month End.
29 Web Design Work
29.1 Agency agrees to have Client’s website completed no later than 60 days from the date the Agency accepts the project. This deadline can be reached only if the Client has provided all necessary graphics, text content, and logins to Agency WITHIN 10 DAYS FROM DATE THE AGENCY ACCEPTS THE PROJECT. The Agency shall not be held responsible for delays to site development arising out of Client’s delays in providing graphics, text, content, images and/or logins to the Agency.
29.2 If website is not completed within 120 days due to lack of Client assistance, the Agency may
29.2.1 Extend the project deadline or
29.2.2 Close the project and bill Client for work completed at $90 +gst per hour, or
29.2.3 The Agency will create a website using all content that has been provided, and send a final bill for work completed to meet the project deadline.
29.3 Completion. The Agency will submit final website to Client for approval in writing. Time required to make changes to website after the Agency has already received final Client approval of the website will be added to the final bill. If Client has already received the final bill, time required to make changes to website after Client approval will be submitted to Client as a separate bill.
30 Client Authorisation
30.1 Client authorises the Agency to access their website in order to make necessary changes for optimisation reasons. This access commonly comes in the form of FTP Access, CMS access, and/or “other” administrative backend access depending on the website itself. The client authorises the Agency to communicate directly with any third parties, e.g., your web designer, if necessary and will grant unlimited access to existing website traffic statistics such as Google Analytics and Google Webmaster if required.
30.2 Client authorises the Agency to use all Client logos, trademarks, web site images, videos, etc., for use in creating informational pages and any other uses as deemed necessary by the Agency for search engine optimisation.
30.3 Client authorises Agency to make content revisions to their existing website pages, which would include rewriting or altering the page title, Meta description tag, page headers, body text, and the footer.
30.4 Client authorises Agency to utilise third parties where necessary to help with optimisation tasks.
30.5 Client authorises Agency to perform all work required to complete the services in the agreement.
31 Client Responsibility
31.1 If the Client’s website is lacking in textual content, Client will provide additional text content in electronic format for the purpose of creating additional or richer web pages. The Agency can create site content at an additional cost to the Client as an alternative.
31.2 Communication between the Agency and Client is essential to complete said services. The client must respond within 2 business days of a request for approval or feedback in order to maintain the project schedule. Approval delays or providing required materials to the Agency could cause corresponding delays in future tasks and cause the Agency to be late when providing work reports.
32 Arbitration and Governing Law
32.1 Arbitration. If any dispute arises concerning the interpretation, validity or performance of the Agreement/s, or any of its terms and provisions thereof, then the parties agree to work in good faith to resolve any such dispute. If payment is still not received by the Agency after 7 days of a final notice being issued, the Agency may proceed to commence collection action against the client resulting in additional costs to the client and the likelihood of a default being placed on the credit file of the client,
32.2 In the event the parties are unable to resolve their dispute in a reasonable amount of time, but no less than 30 days from the non-breaching party’s written notice and description of breach to the other party, then the parties shall exclusively submit such dispute for binding determination before an arbitrator. The arbitrator(s) will be selected by Queensland Civil and Administrative Tribunal.
32.3 Governing Law and Jurisdiction. Client agrees that by conducting business with the Agency any legal action beyond arbitration will be guided by the laws of and take place in Southport, Queensland; and the Client agrees to reimburse the Agency or any representative we may appoint for any legal expenses your actions may make us incur.
33 Confidentiality Agreement
33.1 Use of Services; Exclusivity. All Services, including, without limitation, all reports, summaries, information or recommendations prepared or issued by the Agency containing data specific to the Client Website, are for the exclusive use of Client in connection with the Website. No other use is authorized under the Agreements. All reports, summaries, information or recommendations prepared or issued by the Agency hereunder shall become Confidential Information. Each party agrees to protect Confidential Information from any unauthorized use or distribution, including, without limitation, unauthorized use or distribution of the Agency’s materials or the Agency’s reports, summaries or recommendations, by such party to competitors of either party, or to non-employees of either party. In recognition of the fact that other search engine related marketing activities may interfere with the Services, or otherwise impede the efficacy of the Services, during the Term Client shall not employ or engage any other search engine services provider that the Agency reasonably determines provides services that are competitive or harmful to the Services provided by the Agency.
33.2 Confidential Information. The Client agrees that during the course of the Agreement/s, each party may have access to or be exposed to (such party hereinafter referred to as “Receiving Party”), directly and indirectly, confidential or proprietary information of the other party (“Disclosing Party”), including, without limitation, Agency materials, computer software, user information, data, knowledge, marketing plans, products, services, and costs, projections, and other financial information in oral, graphic, written, electronic, or machine readable form (collectively, the “Confidential Information”). Confidential Information shall not include information that the Receiving Party can demonstrate (i) to have been rightfully in the possession of the Receiving Party from a source other than the Disclosing Party prior to the time of disclosure of said information to the Receiving Party hereunder (“Time of Receipt”), (ii) to have been in the public domain prior to the Time of Receipt, (iii) to have become part of the public domain after the Time of Receipt by publication or by any other means except an unauthorized act or omission or breach of the Agreement/s on the part of the Receiving Party, its employees, or agents, or (iv) to have been supplied to the Receiving Party after the Time of Receipt without restriction by a third party who is under no obligation to the Disclosing Party to maintain such information in confidence.
34 Payment Terms of Agreement
34.1 For one time service orders, such as website design, The Client will be required to pay 50% up front and 50% upon completion of the website. If The Client requires additional web design work outside of the scope of the proposal or in addition to any marketing campaigns, this will be billed at an hourly rate of $85.00 + gst. The Agency if it sees appropriate, will provide a breakdown of the time performed on the additional (out of scope) development tasks.
34.2 Marketing campaigns are invoiced and payable on a monthly basis (7 days nett) in advance, with the exception of Media Spend Invoices which are invoiced in arrears on 7 day nett terms.
34.3 Client agrees to adhere to these terms throughout the campaign.
35 Interest on Overdue Accounts and Payment Defaults
35.1 When monthly invoices are not paid within the 5 day grace period following the due date, the campaign may be placed on hold at the Agency’s absolute discretion. Monthly invoices will continue to be due and payable until the campaign is cancelled in writing by the client and the agency provided 30 days written notice.
35.2 As outlined in clause 10.3.2, Customers are required to pay the Agency interest on any monies owing to us at a rate equivalent to 2.0% per calendar month (24% per annum), and that interest to be calculated and compounded from the date on which the relevant payment was due until all outstanding monies have been paid in full.
35.3 Any payment defaults may be advised to a credit reporting bureau, and legal action will be commenced without notice for the recovery of the debt along with all collection costs and interest associated with the recovery.
36 Payment Methods
36.1 Payment are to be made by authorised debit by way of either credit card or direct debit from a bank account, or by Electronic Funds Transfer on approved accounts.
37 Additional Fee Conditions
37.1 PPC Fees and Media Spend
37.1.1 If the Client is availing of a Pay Per Click marketing campaign in a third party advertising platform including but not limited to Google, Bing, Facebook, Instagram, Simplifi, Linkedin or Centro (among others), the Client is responsible for all spend and fees associated with the ads. Payment will be made either directly to the search engine account, or to Blue Mark Digital for approved accounts at the agency’s absolute discretion. Payment to the Agency for the Media Spend is required within 7 days after the invoice has been provided to the Client.
37.2 Fixing of Unforeseen Website Errors and Issues
37.2.1 If The Client is engaged in a SEO campaign the following applies. During the campaign, and following regular on page optimisation audits, it is possible that the Agency will encounter unforeseen errors and issues within the website. If the Agency requires these errors or issues to be fixed, this will come at an additional charge to the Client.
37.3 Additional Website Content Fee
37.3.1 If the Client is engaged in a SEO campaign the following applies. Proposals do not include a charge for website content writing. During the campaign term, the on page team will analyse the website to determine if the target URL’s require additional content or not. Sometimes new pages are required to be created or additional content will be required on an existing page. You are advised that content creation is not included in this proposal. The Client will need to create content in a timely manner consistent with instructions given by the Agency. If The Client chooses to have the Agency perform this duty there will be an additional charge for this.
38 Misc Additional Service Fees
38.1 Any revisions, additions or redesign the Client requests the Agency to perform that is not specified in this document shall be considered “additional” and will require separate addendum or invoice and payment. Agency shall advise the client on any requested work that falls within these bounds.
39 Credit Card Chargeback Policy and Procedure
39.1 Fraud policy
39.1.1 The Agency does not tolerate credit card and online fraud, and all fraud, without exception, will be prosecuted to the full extent of the law. In the event of fraud, we will pursue civil legal action seeking to recover any loss of income related to the fraud, including business, legal fees, research costs, employee down time and loss of revenues.
39.2 Disputes and Chargeback Policy
39.2.1 By the Agency providing services to the Client, the Client understand that results are never 100% guaranteed and as long as the work is rendered, the Agency has fulfilled their responsibility. We do have a cancelation policy in place for those that wish to terminate services early.
39.2.2 Please note, even if the Client files a chargeback due to “services not rendered” or “services not as advertised” and the credit card company issues Client the chargeback, this does not mean that the Client did not take illegal actions. Even credit card companies encourage merchants to take additional legal actions on chargeback’s unjustly issued to the client. As long as work has been done by the Agency, any charge back successfully issued is illegal and will be combated. The Agency will pursue civil legal action seeking any loss of income related to the fraud, including business, legal fees, research costs, employee down time and loss of revenues.
40 Investigative Fees
40.1 If the Client does not take advantage of our cancelation policy or arbitration process and unilaterally places a charge reversal request (chargeback) with the credit card company or any third parties including PayPal, on purpose or by mistake, for any service order placed, and that has already been partially completed, there will be a $200 research fee charged to your account to cover investigative expenses to prove that the Client did make the purchase and we did fulfil the order or are in the process of fulfilling the service order.
40.2 If any dispute proceeds to court action, the Agency will charge a $200 + gst fee per service to investigate, document and present to the court the work detail. This will be invoiced to the Client and added to the collection costs for court.
40.3 By entering into this agreement and purchasing services from the Agency, the Client agrees to pay this fee in addition to being liable for the service cost.
41 Post-Dispute Collection and Reporting Policy
41.1 The Agency considers illegitimate credit card charge-backs to be fraud if the Client made no reasonable effort to notify the Agency that a problem existed, or to resolve or clarify a situation or matter.
41.2 In the event that the Client wins the charge back with the credit card company or PayPal and the Agency believes a fraudulent dispute has not been resolved fairly through the financial intermediaries that partake in the transaction, the Agency will exercise their right to recover the fraudulently disputed charges plus additional costs via a third-party collection agency and the Client’s account will be reported to all credit bureaus as a delinquent collection account.
41.3 The Agency considers charge reversal attempts to be frivolous/unwarranted/fraud if one of the items below is true:
41.3.1 Client made no reasonable effort to work with Agency to resolve any problems with the service
41.3.2 Client did not follow the arbitration procedure outlined in this agreement
41.3.3 Client has not taken advantage of our cancellation policy and seek to reverse the transaction and obtain a refund outside of the agreed terms of service
41.3.4 Client chargeback claim is under the category “services not as advertised” or “services not rendered” even though we have provided work reports or are in the process or fulfilling the monthly services within the stated deadline.
42 Fraudulent Chargeback Steps Taken by The Agency
42.1 A “chargeback” occurs when the Client disputes a credit card charge. A fraudulent chargeback occurs when the Client attempts to dispute a charge for services that they have actually purchased. Attempting to dispute a valid credit card charge is fraudulent and is illegal. The Agency does not tolerate chargeback fraud, and we follow the following procedure when it takes place:
42.2 If Client attempts to dispute or deny a valid charge, we will first contact Client directly, because most disputed charges occur as a result of the customer not recognising the Agency’s charge on their statement. Client will have ten (10) calendar days to reverse their dispute upon receipt of mail or our e-mail. In this time the clients accounts and access will be immediately suspended.
42.3 If Client does not reverse the dispute or otherwise attempt to resolve the situation, the Agency will file a police report with their local authorities and seek criminal charges against Client.
42.4 The Client’s account will be turned over to a collection agency, which will initiate collection activities as well as report their account as payment default to all of the major credit bureaus.
42.5 If Client still do not resolve the situation by either reversing the dispute or reimbursing the Agency for the amount disputed plus the bank fees, the Agency will file a lawsuit against Client for the amount disputed, for bank fees related to the chargeback, for additional damages for the harm the Client chargeback causes to the Agency’s merchant credit record, and for punitive damages as the courts do not take credit card fraud lightly.
43 Ongoing Obligations
43.1 The client acknowledges and agrees that the clauses of the terms and conditions above will survive any campaign.
43.2 The terms of this agreement shall survive any termination of the Client/Agency Relationship and even if campaigns are cancelled or terminated, clauses of the terms and conditions will still be enforceable.