Terms & Conditions
Introduction
The supply of any goods and/or the service performance by MLK Marketing Pty Limited (“we” or “us” or “our”) to all its customers (“you”) is offered exclusively and only on the basis of the following terms and conditions. By requesting, ordering or otherwise permitting us to supply goods to or perform services for you, you hereby accept unconditionally and irrevocably our offer without any derogation or qualification.
Mandatory Repair Notices
As per the Competition and Consumer Act 2010, please note the following Mandatory Repair Notices required by law:
(a) Goods presented for repair may be replaced by refurbished goods of the same type rather than being repaired. Refurbished parts may be used to repair the goods.
(b) Repair of goods may result in loss of data.
1.0 Definitions
In these conditions:
“Conditions” means these Terms and Conditions;
“Customer” or “you” means a person, firm or corporation, jointly and severally if more than one, that requests goods or services from us;“goods” means all products and other goods (including any software) supplied by us to you or on your behalf;
“including” is not a word of limitation and means without limitation;
“services” means all services performed by us for you or on your behalf;
“business hours” means Monday to Friday 8am to 6pm at your local time, excluding gazetted public holidays;
“MLK Marketing” or “we” or “us” or “our” means MLK Marketing Pty Limited (ABN 79 821 704 048); and
“Party” and “Parties” means (severally and not jointly) MLK Marketing and/or the Customer as the context requires.
2.0 About Us
2.1 We offer an on-site service available seven days a week. We have a number of experienced technicians who aim to provide the fastest solution for your marketing needs. We can provide expertise for onsite repairs, help and servicing for an expansive range of computer issues. This includes software and hardware repairs, solutions for system security, wired and wireless networking, data recovery and back up. These services are available for businesses and home computer users, covering basic set ups to large corporate enterprises.
2.2 We will explain in plain English any course of action which is recommended, how and why it is being carried out.
2.3 We aim to provide an unparalleled level of Customer Service. Our specialist Customer Service team are available between 9am-6pm Monday to Friday. All other times and during the majority of public holidays are supported via a ticketing system.
2.4 We also offer a training service to individuals or groups on all aspects of getting the most from your computer. These informal trainings are conducted by our experienced technicians. For further information please contact us to discuss your needs.
3.0 Basis of Contract
3.1 Unless previously agreed in writing, these Terms and Conditions apply to all supplies of goods and the provision of services by us to you. They cannot be amended, varied, or supplemented by any other terms or conditions without prior consent in writing.
3.2 Our written quotations provided to you regarding the proposed supply of goods or services are only valid for 30 (thirty) days. This provides an invitation for you to place an order based upon that quotation. These Conditions may be supplemented by additional terms in our quotation which are not inconsistent with these Conditions.
3.3 Our experienced technicians will arrive on time. They will identify themselves upon arrival and will keep you completely informed as to what is happening with the issue resolution. The technician will provide a diagnosis of the issue and an estimate as to how long it will take to resolve. We ensure that all our technicians have professional experience and/or industry certification, providing you with advanced knowledge of all aspects of computer support and repair.
4.0 Charges and Payment
4.1 Our fees have been structured to be completely time based and ensure they are transparent and simple to understand. This provision allows for a technician to work on multiple problems and/or computers simultaneously without additional charges. Please note that service fees do not include any software or hardware, which can be supplied by us at competitive prices.
4.2 The majority of onsite service issues are usually completed within one hour. We have a simple thirty minute rate and there is a one hour minimum charge for onsite services. If the issue is going to require further attention, the technician will advise you and provide an estimate for approval before proceeding any further. Our Technicians aim to perform any service or repair quickly onsite, should offsite repair be necessary, they will provide a fixed quotation for approval. Should the problem be resolved before the end of the minimum one hour, our technicians are happy to spend the remaining time answering any technical questions you may have and optimising your current system.
4.3 Payment for goods and services must be made by cash or credit card on or prior to the supply of the goods or the performance of the services unless you have a credit account with us. When the appointment is booked, we will confirm your preferred method of payment. Any credit card details given to us at the time of booking are encrypted and stored in accordance with Australian regulations with our bank. The payment will only be processed once the service is completed and you authorise the charge. We will also email a receipt and invoice for your business records. Credit card payments will attract a Merchant Service Fee (MSF) of 0.97% for Visa or MasterCard and 2.97% for American Express.
4.4 Every visit is chargeable and they are charged in half hour units after the initial first hour. Any part thereof is charged at the same rate as a full half hour unit.
4.5 Any goods supplied by us will be charged separately from services provided.
4.6 If there are any changes in costs incurred by us relating to goods or services, we reserve the right to vary our price to take these changes into account, without giving notice to you.
4.7 A Call-out fee may be applied at a rate dependent on your location. Visits on same day and/or outside of business hours may incur a surcharge
4.8 If you wish to nominate and are approved for goods or services to be invoiced, you may incur an account fee to be charged per issued invoice. You will be advised of any fees in advance. A $12 late payment charge may be applied if you exceed your stated and approved credit terms. We will then issue a revised invoice.
4.9 Support Packs or Prepaid Hours
Rather than tying you into a maintenance contract, we do offer a significantly discounted rate on onsite, remote and phone support with blocks of pre-paid hours. These ensure that you are never charged call out fees and you can enjoy a lower hourly charge rate. However;
(a)Once a block of prepaid hours has been purchased it cannot be cancelled.
(b) You have an obligation to pay for all services that us has agreed to provide you with, regardless of whether you choose to utilise those services. If you fail to provide us with any necessary information or materials in order for us to deliver those services to you, you are still liable for full payment to us.
(c) Any remote or phone support will be billed in half hour units against your Support Pack. Any part thereof will be charged at the same rate as a full half hour.
5.0 Default of Payment
5.1 If there is any default of payment of monies due, or any drawn cheques which are dishonoured, then all amounts due and monies which are payable by you on any account at a later day shall become due to be paid immediately without any additional notice. We may, without any prejudice to any other rights or remedies;
(a) Charge you interest at the rate of 2% higher than the corporate reference rate of our principal bank on any sum due. Interest charges will be calculated daily and every 30 days will be compounded for the period from due date until the date of the full payment; and
(b) impose a charge for any expenses or costs (including debt collection fees and commissions, legal fees on the basis of full indemnity and fees for dishonoured cheques) which we incur resulting from the defaulting, including taking appropriate action to recover amounts due (to clarify, shall include engaging the services of Dun & Bradstreet or other agencies for debt collection to seek recovery of the due amounts) and
(c) ) Suspend or cease as we see fit, any supply of further goods and services to you; and
(d) By written notice to you, terminate any contract which is as yet unperformed by us; without any effect on our rights accrued under this or any other contract.
5.2 Clause 5.1 may also rely upon, at our option:
(a) where as an individual, you declare bankruptcy or enter into schemes of arrangement, assignment or composition with or for the benefit of any type of your creditors; or
(b) where your corporation enters into any scheme of arrangement, assignment or composition with of fort the benefit of any type of your creditors, or you appointed a liquidator, administrator, receiver or manager appointed or any action is instigated for or with a view for your liquidation (including provisionally liquidated), dissolution or winding up.
5.3 Outstanding Payments
Debt is way up there on the ‘things absolutely no one likes’ list.
In some circumstances, we may need to refer or sell overdue debts to debt collectors or other companies. If we do this, we’ll give them secure access to the personal information they need to handle the debt.
We may also update credit reporting agencies about some types of payment defaults, although we’ll always tell you before we do this.
6.0 Passing of Property
6.1 Until the payment in full cleared funds is received by us for all supplied goods as well as other amounts owed to us:
(a) title and property of all goods remain vested in us and will not pass to you;
(b) you must hold any goods as fiduciary bailee and our agent;
(c) you must keep any goods separate from any other goods and have the labelling and packaging maintained
(d) you hereby undertake for us to hold proceeds of any sale of goods on trust for us within a separate account, however failure to do so does not affect your obligations to deal with any proceeds effectively as our trustee
(e) without any notice, we may enter any premises in which we suspect the goods may be located and remove them, notwithstanding that they could have been attached to any goods not our property, and for this purpose you license us irrevocably to enter such premises and indemnify us holding us harmless against and from all claims, costs, actions or demands by any other party arising from any such action.
7.0 Insurance and Risk
All insurance responsibility for damage, theft or otherwise in respect of these goods and the risk of the goods shall pass to you directly immediately upon delivery to the nominated premises.
8.0 Contract Performance
8.1 Any date or period for provision of service or delivery of goods provided by us is intended to be an estimate only and does not represent a contractual commitment. We will use reasonable endeavours to aim to meet any estimated dates provided for completion of services or delivery of goods
8.2 We will make every attempt to perform onsite repairs, however it may become necessary to return your system for diagnosis or repair to our base or a third party. In such an event you will be provided with a fixed quotation for the repairs with a date when it will be available for return. We will also keep you up to date on the progress of repairs while the equipment is offsite. In these cases we do need all customers to sign a form, authorising us to remove your hardware offsite for repair.
8.3 Service Level Guarantee
MLK Group provides a 99.99% uptime guarantee on our services as per following terms:
Monthly Service Availability Penalty Credit (as % of monthly fees)
99.99% or higher – None
less than 99.00% – % of downtime x Monthly Fee [Express in decimals 1% = 0.01]
The uptime guarantee applies to all web services, i.e. http, https and MySQL and to network connectivity. In other words, we guarantee that our web servers will always be responsive and reachable by general internet users. The guarantee does NOT apply to scheduled maintenance periods.
8.4 If neither you nor we cancel the agreement at the end of the fixed period contract, we will continue to supply the service to you on a month-to-month basis.
8.5 An advertising campaign may include a “credit back performance guarantee”. This guarantee is subject to the agreed and signed performance improvement strategy of the campaign ranking.
8.6 Under this guarantee, an account credit will be issued back into the customer’s account in the event where the improvement under performs the stipulated target within the agreed upon time frame.
8.7 An account credit can be applied to a monetary refund back into the customer’s account subject to management discretion. Cash refunds can take up to 20 working days to process.
8.8 Account credit will only be applied in proportion to the search strings not meeting the identified target.
8.9 For the performance guarantee to remain valid, each campaign must implement the strategy recommendations provided by the account manager. Failing to do so will result in voiding the “credit back performance guarantee”.
8.10 If the website has been subject to spam and/or black hat advertising/marketing methodology during or prior to the campaign, this guarantee will be void and the campaign will continue as per the remainder of the agreement.
8.11 All campaigns will continue in the event that the campaign/s guarantee is voided. Each campaign will continue with respect to the remaining terms of the agreement.
8.12 The “credit back guarantee” may also be referred to as a “money back guarantee”.
8.13 Account credit may only be used for other products and/or services within MLK Group.
8.14 If penalties are applied to websites caused by efforts outside of MLK Group, it may void any guarantees associated with the marketing campaign.
8.15 Duplicate content surrounding the campaign or other associated websites must be advised in writing before any targets are set prior to agreement to remain eligible for the Credit Back Guarantee.
9.0 Our Warranty
9.1 We aim to provide a technical expertise guarantee. If our technician is unable to provide you with a solution to diagnose or fix in respect of the problem, then we will not levy a charge for this service. In certain cases where the need for a replacement or upgrade is diagnosed and you choose not to follow this recommendation to your hardware or software, you acknowledge that we have fulfilled our commitment to you and provided a solution, whether you choose not to implement it, so normal charges will apply.
9.2 We fully stand behind our services. If you notify us of any problems with the services we provided and our diagnosis of the particular problem indicates that the services were not performed to a high level of satisfaction, we will work to supply a solution to the problem as quickly as possible with no additional cost for you.
9.3 You acknowledge that computer systems are complicated and can sometimes have a more complicated or deeply rooted problem than diagnosed initially. You also acknowledge that any problem which occurs after our service with your computer system may be completely unrelated to work performed by us and is therefore outside of the scope for our service guarantee.
9.4 You acknowledge that any computer equipment presented for repairs may have other problems or pre-existing damage, and that we will not due to any such damage or problems assume the responsibility for such damage or any further problems resulting from it.
9.5 For customer convenience, our technicians have vehicles fully stocked with equipment, hardware and software to fix the majority of problems onsite. We do not provide a warranty that the software operation of any items we service or install will be error free or uninterrupted. You acknowledge that communications and information technology products such as software, may encounter problems unexpectedly or have errors, and therefore, you may experience errors or downtime with the use of the software. You further acknowledge that the use of software may be subject to a licence from a third party.
9.6 We shall honour any or all terms which are implied under the applicable State or Commonwealth laws concerning supply of goods and/or performance of services. Nothing in clause 9 seeks to modify, restrict or exclude these terms. We provide our express warranty or guarantee in addition to and unaffected by your statutory rights or remedies.
9.7 We comply fully with our obligations within the Privacy Act 1988 and according to our Privacy Policy which is available for viewing. You should read and we shall deem that you have read the policy. You consent and agree irrevocably to the use of your personal details and information in accordance with our privacy policy.
9.8 Advertising campaigns may include a guarantee for google front page results depending on the campaign, should this be the included in your campaign, and a search term drops off the front page after the guarantee period 60 days notice is required to amend this inconsistency without any changes to charges of the clients account. Post this 60 day period, we can review and advise the effects of the guarantee.
10.0 Customer Responsibility
10.1 You acknowledge that data loss is an unfortunate possibility with computer malfunctions. We highly recommend that you protect your company from data loss by having an appropriate back-up solution. We can offer customers back-up services before any onsite work is commenced, however you should ensure that all critical files are backed up regularly. As a fundamental term of our conditions back up all data, files and software that are stored on your computer system prior to the arrival of our technician. We and/or any third party service providers accept no responsibility at any time for any alteration, corruption or loss of any such data, files or software.
10.2 You are deemed solely responsible for all input of data, the manner in which goods are used by all those provided with access and outputs are derived from, and all other processing results.
10.3 At your own expense, you shall comply with any guidelines or recommendations with respect of the good’s use including replacements or adjustments required for software or equipment which is incidental or necessary for the use of goods
10.4 You shall ensure that any operators are adequately informed and trained as to use of goods and will comply with any procedures or guidelines supplied by us and/or third party manufacturers occasionally.
10.5 You shall report any faults or errors promptly in any aspect of the operation of the goods or any provision of services according to the applicable procedure for fault reporting. You shall also perform general testing, housekeeping, adjustments and/or maintenance as recommended in respect of the goods supplied by us to maximise the performance and availability of goods or permit us to perform any number of our obligations here under.
10.6 You agree to exercise due diligence and carry out precautions which may have been recommended by us or required otherwise as a matter of prudence which are in connection to the performance of us for our obligations here under, such as but without limitation of the generality of foregoing, advising members of staff of scheduled downtime, system restarts, recording of information for errors, and will co-operate with any other administration system activities for example, but not limited to tasks for operational readiness and running diagnosis tests.
10.7 You warrant and represent to us that you are the rightful owner of, and/or have the right of possession of, to make decisions regarding all media, data or equipment (“Data”) which is provided to us, and that you have previously obtained any necessary consents as required by the Privacy Act 1988 in relation to personal information disclosure by you to us and to the use of such personal information by us, and that your possession, collection, transfer and processing of such data complies with privacy and data protection laws to which you are subject. You indemnify us from any type of expense (including reasonable fees for legal services) liability or damage arising from any claim, suit or demand resulting from breaching your warranties.
10.8 Our onsite services involve technicians from us visiting you at your residence or other location (premises) as requested by you.
10.8.1 You must ensure that for the duration of the onsite service provision there is a person who is over 18 years of age present.
10.8.2 You must provide our technicians with:
(a) Access to any areas of your premises which are necessary to provide our services;
(b) Any passwords necessary for your computer;
(c) Working space and an environment which is safe to work in
(d) Electrical power and where applicable internet access
10.8.3 If the service involves installation of software, you must provide the technician with installation disks for software or operating system including any product keys for software.
11.0 Liability
11.1 To the full extent permitted by applicable law, all conditions, warranties, representations, indemnities and guarantees with respect to the goods and/or the services, or other goods or services that may be provided by us under these Conditions, that may otherwise be implied by statute, law, equity, trade custom, prior dealings between the Parties or otherwise (including, but not limited to, any implied warranty of merchantability, fitness for particular purpose, quiet enjoyment or non-infringement) are hereby expressly excluded.
11.2 Except to the extent specifically provided in these Conditions, our sole liability to you for any and all breaches of any term or terms of these Conditions, whether express or implied, shall be limited to:
11.2.1 subject to sub-clauses 10.2.2 and 10.2.3, the aggregate amount of the fees and charges paid by you under these Conditions as at the date of the breach;
11.2.2 In relation to goods if supplied to you as a consumer (as defined in the Trade Practices Act 1974):
(a) The replacement of the goods or the supply of equivalent goods; or
(b) payment of the cost of replacing the goods or acquiring equivalent goods; or
(c) the repair of the goods or payment of the cost of having the goods repaired, as in each case we may elect; and
11.2.3 in relation to services if supplied to you as a consumer (as defined in the Trade Practices Act 1974):
(a) the supplying of the services again; or
(b) the payment of the cost of having the services supplied again, as in each case we may elect.
11.3 In no event shall we be liable to you or to any third party under or in connection with these Conditions or in respect of the use of (or failure or performance of) the goods or the supply of the services for:
11.3.1 malfunctions or failures caused directly or indirectly by:
(a) any third party;
(b) our actions that were expressly or impliedly authorised by you, or by your employees or agents;
(c) accident, misuse or abuse by anyone other than us;
(d) alteration or modification of the goods by anyone other than us;
(e) products (including any hardware or software) not licensed or supplied by us that are attached to or used with the goods;
(f) your failure to provide a proper operating and working environment for the goods;
(g) damage during any movement, relocation or re-installation of the goods;
(h) power surge or failure,
(i) acts of God or acts outside our reasonable control;
(j) any other condition not arising under normal operating conditions; or
(k) normal wear and tear; or
11.3.2 any loss or damage of any nature arising or caused directly or indirectly by any breach of your obligations or responsibilities set out in these Conditions.
11.4 Any replacement of parts under warranty will be carried out at the premises nominated by us. The cost and risk of transport of any defective part to the nominated premises is your responsibility.
11.5 In no event will we be liable to you or to any third party under or in connection with these conditions or in respect of the use of (or failure or performance of) the goods or the supply of the services for:
11.5.1 any loss of profit, business interruption, loss of or damage to goodwill, and/or any expectation benefit;
11.5.2 your liability to any third party; or
11.5.3 incidental, consequential, special, exemplary or punitive damages of any nature, howsoever arising or caused, including without limitation the breach of these Conditions or any expiration or termination of these Conditions, whether such liability is asserted on the basis of statute, contract, tort (including negligence or strict liability), equity or otherwise, even if we have been advised of the possibility of such loss or damage.
11.6 We will not be liable for any loss or damage suffered by you where we have failed to meet any delivery date or cancelled or suspended the supply of goods or services.
11.7 Nothing contained in these Conditions excludes, restricts or modifies any:
11.7.1 implied condition, warranty or other implied obligation in relation to these Conditions or the goods and services where pursuant to applicable law to do so is unlawful or void; or
11.7.2 liability for fraud or deceit; or
11.7.3 liability for death or personal injury caused by the negligence of either Party.
11.8. In the event that an items are not collected within sixty (60) days, we reserve the right to dispose of them as we see fit and shall not be held liable for any loss that you may suffer in such an event.
12.0 Copyright in Software
12.1 We accept no responsibility to you or third parties for any breaches in software licencing in respect of the software provided by you to us for installation on to your computer
12.2 You hereby warrant that you possess valid licences in respect of such software and shall indemnify us to be held harmless against any losses, costs, harm, damage or other expenses whatsoever which arise either indirectly or directly as a result of us installing any software at your request.
12.3 Calls may be recorded for quality and coaching purposes, if you do not wish for this to occur please advise prior to your conversation.
13.0 Cancellation
13.1 If, through circumstances which are outside of our reasonable control, we are unable to complete delivery or provision of services or goods, then we may provide notice in writing to cancel your order (even if the order has previously been accepted).
13.2 We request that in the event of cancellation for onsite IT related services, you provide at least 24 hours’ notice. You acknowledge that if you supply less than 24 (twenty-four) hours’ notice to cancel the request for onsite IT related services, we may charge a fee for cancellation which is equal to the initial hour of service at the quoted rate from time of booking, to cover loss and expenses caused.
13.3 The minimum contract period is the minimum fixed period during which you must acquire the service. The minimum contract period may be specified in your application or in the plan. The minimum contract period commences when the service is activated.
13.4 If, during the minimum contract period, you cancel the service or we cancel the service because of your default, you may be liable to pay an early termination charge which is either set out in the plan brochure or in the service description.
13.5 Once the minimum contract period is over, or your service is on a month-to-month plan, your service will continue to renew automatically, and you will continue to be charged for the service, until such time as you or we cancel the service by giving 60 days’ notice in writing.
Once your defined minimum service period has been met, your service will automatically operate on a month to month plan by default unless a new agreement has been entered into. A month to month plan begins upon the invoice issue date 3 weeks before the monthly billing cycle commences.
A 60-day notice period is required in writing to terminate services in which it takes effect when all previous commitments have been fulfilled.
By default, your minimum commitment period is on a month to month basis unless otherwise specified in your agreement.
13.6 With services paid over a contracted period, on early cancellation will require the remaining balance paid under the grounds that: The service is paid for in instalments as the setup is in proportion to the whole service.
14.0 Same Day On-Site Computer Service…or it’s FREE!
“Same Day On-Site Computer Service…or it’s FREE!™” is only available in Melbourne. This guarantee applies exclusively to service scheduled with us through our service hotline 03 9470 6723 for Windows-based systems. Same day service attracts a surcharge and must be requested over the phone no later than 10am Monday through Friday, excluding holidays. We may assign specific appointment times at our discretion, either for our own purposes or as a courtesy to you, but we only guarantee that a technician will arrive by midnight. Your request for specific appointment times are not covered by this guarantee in any way. This guarantee only applies to the initial visit by our technician and does not ensure that all necessary work can be completed on the same day. Any changes made by you to a same day service request that is already scheduled void this guarantee in its entirety.
14.1. Service Indemnity
To ensure the contracted services are delivered at optimal performance as outlined in the service agreement recommendations must be taken on board.
Should our recommendations be disregarded, the anticipated outcome may be impacted. This will void the SLA, SLG and other written agreements.
14.2. Payment Method
A credit card will be required to be kept on file upon signing up in order to keep your account active and the services delivered unless otherwise stated in the payment method.
14.3. Intellectual Property
During the service period, we may use our intellectual property to assist in taking advantage to compete with the client competitors. These intellectual properties will be removed up on termination of the service.
14.4. Exit Clause
If you are a consumer, not a business your agreement may include an exit clause. If it does it must specified in your agreement.
If included, to exercise your exit clause you must do so within 7 day of it’s allowed period emailed to your account manager.
14.5. Confidentiality
You agree that you will keep our professional relationship confidential at all times.
Furthermore, unless in written consent from us to you, at no stage will you disclose methods and strategy to other competitors or public forum.
This includes our service delivery methods, guarantees, structure, management platforms, management structures or any other “Secret Herbs and Spice”
14.6. Time Frames
You agree that you will keep our relationship professional at all times. During your marketing strategy, you may be given time frames of stages, these time frames very depending on work load and are subject to your immediate approval, delays in approvals, amendments and unplanned workload may extend the time frames provided.
15.0 No representation or reliance
15.1 You acknowledge that neither we nor any person acting on behalf of us has made any representation or other inducement to it to enter into these Conditions, except for representations or inducements expressly set out in these Conditions.
15.2 You acknowledge and confirm that you do not enter into these Conditions in reliance on any representation or other inducement by or on behalf of us, except for representations or inducements expressly set out in these Conditions.
15.3 Without limiting the generality of clauses 15.1 and 15.2, you understand and hereby confirm that:
(a) your decision to enter into these Conditions was, and is, not based on any promise, representation, statement, warranty or undertaking made or given by us or any person on its behalf in relation to the capacity, uses or benefits that might or would be derived or obtained from the goods or services, except as expressly set out in clause 8, and
(b) you have relied on your own skill and judgement in deciding to purchase and acquire the goods and services.16.0 Entire Agreement
16.0 Entire Agreement
16.1 To the extent permitted by law, in relation to its subject matter, these Conditions:
16.1.1 embody and constitute the entire legal and contractual relationship of the Parties, including the entire terms agreed by the Parties; and
16.1.2 supersede, replace and terminate by mutual consent any prior written or oral representations, negotiations, understandings, agreements or contracts between the Parties.
16.1.3 All disputes will be dealt with strictly in the Victoria legal system unless otherwise stated in writing.
17.0 Governing law
17.1 This Agreement is governed by and must be construed according to the law applying in Victoria. The Parties hereby irrevocably submit to the jurisdiction of the courts of Victoria.
