This User Agreement (“Agreement”) governs your purchase and use of any Marketing Services or associated brand/website including but not limited to Cloud 4 and Bluesky Strategies (collectively called “Services”), ordered by you (“you” and/or “Customer”) on the order form, agreed quotation form, via email requests or via telephone calls and subsequent site visits (“Order Form”) and provided by Marketing Services. The account set up with Marketing Services through which the Services will be administered is referred to as your “Plan(s)”. This Agreement explains the terms and conditions that apply to your purchase and the use of the Plan(s) and Marketing Services’s Web site. This Agreement exists to define the agreement between you and Marketing Services and to ensure that Marketing Services’s customers are using Marketing Services’s Services with regard to the rights of other Internet users and in conformity with the requirements of Marketing Services’s network environment.
You are required to use Marketing Services’s Service(s) responsibly. This includes respecting other customers of Marketing Services. Subject to the terms and conditions of this Agreement, Marketing Services grants you a non-exclusive, non-transferable, limited license to access, display and use our Services, Web sites and their contents. You shall comply with all copyright laws worldwide in your use of Marketing Services’s Services and Web sites and prevent unauthorized copying of their contents. Except as provided in this Agreement, Marketing Services does not grant you any express or implied right in or under any patents, trademarks, copyrights or trade secret information. You may only use our Services for the loading and displaying of your own website.
Marketing Services servers may be used for lawful purposes only. Transmission, storage, or distribution of any information, data, or material in violation of any applicable law or regulation, or that may directly facilitate the violation of any particular law or regulation is prohibited.
Examples of prohibited use include, but are not limited to:
In purchasing Marketing Services services, all Marketing Services customers certify that they and/or the organization they represent in procuring services from Marketing Services are not, nor have been designated, a suspected terrorist as defined in USA Executive Order 13224; are not owned or controlled by a ‘suspected terrorist’ as defined in USA Executive Order 13224; and are not on, are not a member of, related to, associated with, or controlled by any organizations on the list contained in the Annex to USA Executive Order 13224 and all updates thereto.
Marketing Services has the right, in its sole and absolute discretion, to (i) edit, redact, or otherwise change the content of any works posted on any website, or (ii) delete any information that is determined to be inappropriate, including but not limited to works that use offensive language or breach any terms stated above.
Marketing Services reserves the right to refuse service to anyone and to cancel an account at any time.
Shared Web Hosting: Usage of Allotted Resources
Customer agrees that bandwidth and disk usage shall not exceed the number of megabytes agreed to in the stipulated measurements outlined on the web site at the time of sign-up (or other measurements of services in the form of gigabytes, terabytes, etc.) per month for the Services ordered by Customer on the Order Form (the “Agreed Usage”). Marketing Services will monitor Customer’s bandwidth and disk usage. Customer agrees that bandwidth allowances represent the sum of the incoming and outgoing allowances. Once a plan reaches the bandwidth allowance, the plan will automatically be suspended until the next calendar month or until the plan’s bandwidth allowance is upgraded. Bandwidth calculations are updated daily and are not in real time. Therefore, Customer agrees that the sum of incoming and outgoing bandwidth usage that exceeds the plan’s allowance shall be billed at $2.00 per GigaByte. Further, if Marketing Services’s automated system fails to suspend a plan when reaching the plan’s bandwidth allowance, customer agrees to be billed at $2.00 per GigaByte for each GigaByte of bandwidth usage in excess of the plan’s bandwidth allowance. Marketing Services shall have the right to take corrective action if Customer’s disk usage exceeds the Agreed Usage, including but not limited to deletion of all plan files, termination of this Agreement or suspension of Services. Such actions may be taken in Marketing Services’s sole and absolute discretion.
Shared Web Hosting: Usage of Server Resources
In order to preserve the integrity of Marketing Services’s Services and provide Customers with Marketing Services’s 99.95% uptime guarantee, Marketing Services must be able to regulate its customers’ use of server resources. Therefore, Customer agrees that Customer shall not use excessive amounts of server resources (such as, but not limited to, CPU & Memory usage) on any of Marketing Services’s servers. Marketing Services shall define ” excessive amounts of server resources” as using any form of server resource in a manner which noticeably hinders the quality of any service. Customer agrees to be held under strict liability for assuring reasonable server resource usage. Any violation of this policy will result in immediate account cancellation and imposition of an Administrative Fee of $75.00. Marketing Services shall not refund to Customer any fees paid in advance of such cancellation and Customer shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation; further, Customer shall be obligated to pay 100% of all charges for all Services for each month remaining in the Term. Marketing Services reserves the right to determine, in its sole and absolute discretion, what constitutes a violation of this provision.
Shared Web Hosting: Disk Usage and Bandwidth
Marketing Services provides Users with bandwidth and disk space, the amount of which is defined in Marketing Services’s web pages describing the package of Services purchased at the time of purchase. In all cases, the Services are intended for normal use and displaying Customer’s website only, and any activity that results in excessive usage that is inconsistent with normal usage patterns is strictly prohibited. Marketing Services reserves the right to suspend, discontinue or delete the accounts of Users whose use of disk space, bandwidth or other resources results in or presents the risk of degradation of service to other customers, regardless of the amount of disk space, bandwidth or other resources included in the User’s plan. User agrees that such usage shall not exceed the amounts set by Marketing Services for the Services purchased (the “Agreed Usage”) and is additionally subject to normal usage guidelines established by Marketing Services as in effect from time to time. These allotments are optimized and dedicated towards serving the Content and User’s active electronic mail services related solely to User’s web hosting account(s) with Marketing Services.
Marketing Services’s Shared Hosting plans are not intended for the storage of data not specifically utilized as an element or content within your site’s web pages. Examples include, but are not limited to:
Backup generation through cPanel’s automated backup utility is limited to accounts under 10GB. Please see our knowledgebase for details on backing up an account that is larger than 10GB.
Hosting space is intended for normal use only, and is limited to Web files, active e-mail and content of the hosted Web sites, not for storage (whether of media, e-mails, or other data including music or video files). Hosting space further may not be used as offsite storage of electronic files, electronic mail or FTP hosts. You are responsible for removing any files, e-mails or other data which do not meet these requirements, and for adhering to any usage requirements or limits allocated to your account(s). Failure to do so may result in removal and deletion of such materials (including without limitation files and e-mails), and/or in discontinuation of your services or account, which actions we may take in our sole discretion.
Marketing Services will monitor User’s use of bandwidth, disk usage and other resources. Marketing Services, in its sole discretion, shall have the right to take any corrective action if User’s utilization of bandwidth, disk usage or other resources exceeds the Agreed Usage, resource usage, or is used for other improper storage or usage. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all Services, removal or deletion of User’s Web site, User Content, User’s electronic mail and e-mail services and/or other materials and services or termination the User’s account and of this Agreement, which actions may be taken in Marketing Services’s sole and absolute discretion.
Shared Web Hosting: Backups
Marketing Services, for its own operational efficiencies and purposes, backs up data on its shared web hosting servers from time to time — but is under no obligation or duty to Customer to do so under this User Agreement. CUSTOMER AGREES THAT IT IS SOLELY THE CUSTOMER’S RESPONSIBILITY AND DUTY TO BACKUP CUSTOMER’S DATA ON Marketing Services’S SERVERS. Customer knowingly and willingly accepts the risk of loss of data if customer does not maintain offsite backups of customer’s data. Customer also agrees that Marketing Services is NOT liable to anyone FOR DAMAGES OF ANY KIND, under any legal theory, under any circumstance, for loss of Customer data on any Marketing Services server. Marketing Services will NOT attempt to back up shared web hosting accounts that exceed 50,000 files (by inode count) or 10,000 MegaBytes of space for any reason.
Shared Web Hosting: Mass Emailing Policy
We do NOT allow mass email to lists. If you have a list please use services such as Mailchimp or Constant Contact. Therefore each hosting plan is limited to sending no more than 100 emails in any 60 minute period. This policy is necessary to protect the quality of Marketing Services’s hosting service, as mass emailing can consume excessive amounts of server resources, which negatively impacts the quality of hosting service other clients receive. First violations of this policy will result in immediate account suspension. To be re-activated , the client must provide a written and signed statement stating “I have read, understood, and agree to Marketing Services’s Mass Emailing Policy”. Any second violation of this policy will result in account suspension and Marketing Services shall decide in its sole and absolute discretion the necessary action, including but not limited to account cancellation. Marketing Services shall not refund to Customer any fees paid in advance of such cancellation and Customer shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation; further, Customer shall be obligated to pay 100% of all charges for all Services for each month remaining in the Term. Marketing Services reserves the right to determine, in its sole and absolute discretion, what constitutes a violation of this provision.
E-mail Spamming Prohibited
“Spamming” includes the sending of unsolicited bulk and/or commercial messages over the Internet using Marketing Services’s Services or through another ISP or IPP with a reference to Marketing Services or a website hosted by Marketing Services, maintenance of an open SMTP policy, and selling or distributing software (on a Web site residing on a Marketing Services server) that facilitates the foregoing. Spamming is prohibited. Violators will be assessed a minimum fine of $200 and may have their Plan(s) terminated or suspended. Marketing Services reserves the right to determine, in its sole and absolute discretion, what constitutes a violation of this provision.
System and Network Abuse
Violation of system or network security is prohibited and may result in criminal and civil liability. Examples of system or network security violations include, without limitation the following:
Offering or distributing any fraudulent goods, services, schemes or promotions (e.g. – make money fast schemes, chain-letters, pyramid schemes), or submitting false data on any sign-up form, contract or online application through registration, or any fraudulent use of information obtained through the use of the Plans, including, without limitation, use of credit card numbers, phone numbers, e-mail addresses, or home addresses is strictly prohibited.
Violation of this Agreement
If Marketing Services becomes aware of any violation or threatened violation of this Agreement, Marketing Services may pursue any remedies and take any action against you or your customers to stop or correct such violation, including, but not limited to, denying access to Marketing Services’s Services and equipment or to the Internet, removal of all or a portion of the information stored on Marketing Services’s server, suspension of any and all Services, or termination of this Agreement. In the event Marketing Services is required to suspend Services or terminate this Agreement, Marketing Services shall not refund any of the Fees paid in advance of such corrective action. In addition, Marketing Services may charge you for any costs or expenses it incurs as a result of the threatened or actual violation of this Agreement. You agree that Marketing Services shall have no liability to you or any of your customers as a result of any corrective action Marketing Services may take (including, without limitation, termination of Services). You are expected to cooperate with Marketing Services in any corrective or preventive action that Marketing Services deems necessary.
In consideration of the Services provided to you by Marketing Services or any associated organisation/brand (where owners are the same), you shall pay the service fees set forth in your Plan(s) (“Fees”). Marketing Services offers 12 month Plans. All Plans are prepaid and automatically renew for successive like periods unless terminated in accordance with this Agreement. All Fees must be paid in advance by bank transfer, credit card or personal cheque. By establishing a Plan with Marketing Services, you authorize Marketing Services to automatically charge the Fees and any administrative or other fees provided for in this Agreement to your credit card or transfer money from your bank account. You may discuss other payment arrangements with Marketing Services’s Billing Manager by contacting us
You must notify Marketing Services of any changes in your personal information (including, but not limited to, the billing address, account number or credit card or bank account, or expiration or cancellation of your card.).
It shall be your sole responsibility to assure any and all payments are received in full and on time. If payment is not collected by the date due, (1) your account will be suspended until payment is received in full, (2) a $50.00 late payment charge will be added to the invoice, and (3) Marketing Services reserves the right to terminate your Plan(s). If a Plan is suspended for insufficient payment, you must contact Marketing Services and arrange for immediate payment. Suspended accounts will continue to be responsible for the payment of fees. Accounts in default are subject to a service charge of 1% ( or such other maximum amount permitted by law ) per day on the outstanding balance. Termination of Services shall not relieve customer from the obligation to satisfy outstanding amounts due and payable. In the event Marketing Services utilizes a solicitor and/or collection agency to collect any unpaid amounts, Customer shall be responsible for the payment of all of Marketing Services’s solicitor’s fees, collection agency fees, and all other costs related to the collection of outstanding amounts.
If you have a dispute with your invoice, you MUST notify Marketing Services within 7 days of invoice receipt to avoid automated suspension.
Service Level Guarantee
Marketing Services guarantees a 99.95% up time service level. If you are unable to obtain 99.95% access to your website, Marketing Services will, on an as-requested basis, issue a prorated credit to you for future services conditional upon your submission of proof that 99.95% up time was not achieved as documented by an industry recognized and reputable third party monitoring service such as that of Alertra.com service. This guarantee shall not apply in the event of Force Majeur (as described below), scheduled maintenance periods, inability to access applications or scripts running on the server or if customer’s account is not in good standing at the time of the outage.
THERE ARE ABSOLUTELY NO REFUNDS OFFERED, PROMISED, OR AVAILABLE.
Credit Card Chargebacks
Any Customer who initiates a chargeback on their credit card, (removal of Marketing Services’s debit of your credit card account for Fees) will be subject to (1) an Administrative Fee of $100.00 per chargeback, (2) re-payment of the amount(s) originally charged to the credit card (3) and immediate termination of all Customer’s Plan(s).
The term of this Agreement shall be as set forth in the Order Form, unless otherwise terminated under this Agreement. The Term shall begin upon commencement of the Services to Customer. After the Initial Term, this Agreement shall automatically renew for successive like periods unless terminated in accordance with this Agreement . The Initial Term and all successive renewal periods shall be referred to, collectively, as the “Term”.
Termination by Customer
All plans automatically renew until terminated. In order to terminate or cancel your plan, you must submit the online account termination form by logging into your Client Area:
Any attempts to cancel by phone, email, live chat, or any other method will be rejected and billing will continue until these instructions have been followed. Please be aware that there are absolutely no refunds available outside the 30-day money back guarantee. Termination requests must be received a minimum of THIRTY (30) days prior to the end of your plan’s term to prevent automatic renewal . If a plan has already been renewed, there are absolutely no refunds available for any reason. Marketing Services is unable to cancel your account effective for a future date. Once the online account termination form has been submitted, your request will be placed in our service cancellations queue and you will receive a confirmation email within 20 minutes. If you do not receive this email, your request was not received! The confirmation email will contain a Ticket ID, which is your proof of submission and can be used to track the status of your termination request.
Knowledge and Expertise
Use of the Plan(s) requires a certain amount of knowledge of Internet programming Languages, protocols and software, and other technological information. By establishing a Plan, you or your webmaster represent that you have the knowledge necessary to maintain your web site. Marketing Services will not advise, teach, supply or provide any such knowledge or customer support outside of the scope of the Plan(s).
Marketing Services/Customer Communications
Customer shall direct all communications through our ticket system at
Ownership of Website
You have previously developed, planned and created source and object code for purposes of creating an operational Web site (collectively, the “Website”). The Website is owned exclusively by you or your agents. In the event a dispute arises over ownership of your web sites and/or the Plan established with Marketing Services, you agree to fully comply with any and all of Marketing Services’s security measures. If such website was created by Marketing Services, Marketing Services has the rights in its sole discretion to remove all third party software and extensions which have been supplied under Marketing Services’s licences by Marketing Services to the Customer.
Internet Protocol (IP) Address Ownership
During the Term of this Agreement, Marketing Services may provide you with a restricted license to use an Internet Protocol (“IP”) address. You may use the IP address only as provided by Marketing Services. Marketing Services shall maintain and control ownership of all IP numbers and addresses that may be assigned to Customer by Marketing Services, and Marketing Services reserves the right to change or remove any and all such IP numbers and addresses, in its sole and absolute discretion.
You agree NOT to approach Marketing Services’s employees with any offer to hire them as your own employees or contractors. If you hire any of Marketing Services’s employees, you agree to pay Marketing Services the greater amount of such employee’s three year salary or $300,000.
Advertising & Marketing
You agree that during the term of this Agreement Marketing Services may publicly refer to you, orally and in writing, as a customer of Marketing Services. Any other public reference requires your written consent.
Warranties and Representations
You warrant and represent to Marketing Services that you are (1) at least eighteen 18 years of age; (2) you possess the legal right and ability to enter this Agreement; (3) you will use the Plan(s) only for lawful purposes and in accordance with this Agreement and all policies and guidelines that may apply; (4) you will be financially responsible for your Plan(s); (5) you have acquired, or will acquire all necessary arrangements for hypertext links to a third party Web sites or other content; (6) you have verified or will verify the accuracy of materials distributed or made available through use of the Plan(s), including, without limitation, your content, claims, warranties, guarantees, nature of business, and address where business is conducted, and (7) your content does not infringe or violate any right of any third party (including intellectual property rights) or violate any applicable law, regulation or ordinance.
Disclaimers and Limitations
You expressly agree that the use of Services or any information provided by Marketing Services is at your sole risk. Neither Marketing Services, nor its affiliates, nor any of its officers, directors, employees, agents, third-party content providers, or licensors (collectively, “Providers”), or the like, warrant that this site or the Services provided will be uninterrupted or error-free; nor does Marketing Services make any warranty as to the results that may be obtained from the use of the Services.
THE SERVICES, WEB SITES AND THE INFORMATION, SOFTWARE, PRODUCTS AND SERVICES ASSOCIATED WITH THEM ARE PROVIDED ON AN “AS IS,” “WHERE AVAILABLE” BASIS. Marketing Services AND ITS PROVIDERS DISCLAIM ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO THE SERVICES, WEB SITES AND ANY INFORMATION, SOFTWARE, PRODUCTS AND SERVICES PROVIDED HEREIN, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. USE OF THE WEB SITES IS AT YOUR OWN RISK. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
Limitation of Liabilities
YOU AGREE THAT NEITHER Marketing Services NOR ITS PROVIDERS SHALL BE LIABLE FOR ANY DAMAGE, LOSS, OR EXPENSE OF ANY KIND ARISING OUT OF OR RESULTING FROM YOUR USE OF THE SERVICES, MATERIALS, CONTENT, OR INFORMATION ON ITS SITES REGARDLESS OF WHETHER SUCH LIABILITY IS BASED IN TORT, CONTRACT, OR OTHERWISE. IN NO EVENT, INCLUDING WITHOUT LIMITATION A NEGLIGENT ACT, SHALL Marketing Services OR ANY OF ITS PROVIDERS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OR CORRUPTION OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR INTERRUPTION OF BUSINESS), ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICES, MATERIALS, CONTENT OR INFORMATION PROVIDED BY Marketing Services OR ANY OTHER PRODUCTS, SERVICES, OR INFORMATION OFFERED, SOLD, OR DISPLAYED ON Marketing Services’S SITES, YOUR USE OF, OR INABILITY TO USE Marketing Services ‘S SERVICES GENERALLY, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF WHETHER Marketing Services OR ANY OF ITS PROVIDERS HAVE BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES.
Notwithstanding anything to the contrary in this Agreement, Marketing Services’s maximum liability under this Agreement for all damages, losses, costs and causes of actions from any and all claims (whether in contract, tort, including negligence, quasi- contract, statutory or otherwise) shall not exceed the actual dollar amount paid by Customer for the Services which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose. The terms of this section shall survive any termination of this Agreement.
Customer shall defend, indemnify and hold harmless Marketing Services, its affiliates and their respective present, former and future officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns (collectively the “Indemnities”), from and against any and all losses, damages, costs, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys’ fees) which any of the Indemnities may suffer, incur or sustain resulting from or arising out of (i) Customer’s breach of any representation, warranty, covenant or agreement contained this Agreement or any other agreement incorporated by reference, (ii) Customer’s information stored on Marketing Services’s server, the Customer’s web site or an end user’s use of the such information or the Customer’s web site, (iii) violation by Customer or any of its officers, directors, employees or agents of any applicable law, rule, regulation or order, (iv) claims or actions of third parties alleging misappropriation of trade secrets or infringement of patents, copyrights, trademarks or other intellectual property rights arising from the use, display or publication of the Customer’s information or the use in connection with services, software or information not provided by Marketing Services, (v) claims or actions by third parties relating to or arising out of Customer’s use of the Services, and (vi) any failure of Customer’s information or any aspect of the Customer web site to be compatible with the hardware or software used by Marketing Services to provide the Services, including any damage to Marketing Services’s servers or other hardware caused thereby. The terms of this section shall survive any termination of this Agreement.
Limitations of Claims
Any cause of action you may have with respect to your use of Marketing Services’s Services, Web sites or other information must be commenced within one (1) year after the claim or cause of action arises.
Marketing Services may reveal any information it deems necessary or appropriate, including, without limitation, user profile (e.g. name, e-mail address, etc.), usage history or other material contained on Marketing Services’s system in order to abide by any applicable laws, lawful governmental requests, to protect Marketing Services’s systems and customers, or to provide and protect the quality, functionality, and integrity of Marketing Services’s business and equipment.
Compliance with Law
You agree that when using the Services you shall comply with all applicable laws and regulations. You shall not use the Plan(s) or the Services in any way that violates NZ or US export laws, including without limitation, uses related to the distribution of weapons of mass destruction, prohibited chemical, biological, or nuclear weapons or missile use. You agree that you are not located in, under control of, or a national or resident of any country restricted as a destination by US law or on the US Treasury Department’s list of Specially Designated Nationals or the US Department of Commerce’s Table of Denial Orders.
In the event that any provision of this Agreement shall be held by any court of competent jurisdiction to be illegal or unenforceable, such provision shall be deemed severable and severed from this Agreement and the remaining provisions hereof shall remain in full force and effect between the parties.
Copyright or Trademark Infringement
The information provided by Marketing Services through the use of Services, including all images, designs, photographs, writings, graphs, data, and other materials (“Marketing Services Contents”), as well as the collection, arrangement and assembly of the Marketing Services Contents, are the exclusive property of Marketing Services and is protected by international and United States copyrights, trademarks, trade secrets, and/or other proprietary rights. Marketing Services Contents may not be used in connection with any other product or service. Any use of the Marketing Services Contents, other than as set forth in this Agreement, including reproduction for purposes of modification, distribution, or republication without Marketing Services’s prior written consent, is strictly prohibited. Marketing Services acknowledges the rights of third parties whose trademarks or registered trademarks are referenced at its Web sites.
The Digital Millennium Copyright Act (“DMCA”) sets forth the law regarding the use of copyrighted materials on the Internet. All Marketing Services customers are subject to the requirements of the DMCA. Individuals or entities submitting notifications of copyright infringement by a Marketing Services customer (per the DMCA) to Marketing Services must follow the below procedures. Copyright infringement notifications submitted to Marketing Services according to these procedures will be processed within 21 days of receipt. Customers who are the subject of a DMCA notification that meets the below criteria may be subject to account termination at Marketing Services’s sole discretion.
DMCA Copyright Infringement Notification Requirements:
Mail the notification to:
Abuse Department – DMCA Complaints
PO Box 15181, Tauranga, BOP. New Zealand 3144
Support description and SLA
Support availability and response times vary depending on the type of support maintenance account you have and the level of support you have purchased. The following table summarizes those offerings:
|Offering||Unpaid Account||Month-to-Month Account||Termed Account||Contract Premium Support|
|Email Support Response Time Commitment||Reasonable Effort||Within 5 Business Days||Next Business Day||Severity 1 Incidents:15 minutes*
All Others:Next Business Day
The following section applies to all subscribers.
“Business Hours” are 8AM-6PM Monday through Friday NZ Time.
“Business Days” are Monday through Friday excluding NZ national and public holidays.
An “Incident” is an occurrence during which end users’ use Customers services is adversely impacted.
A “Severity 1 Incident” is an incident resulting in a major service outage disallowing Client’s Customer access to the website.
A “Severity 2 Incident” is an incident resulting in minor or intermittent outage not disallowing Client’s Customers access to the website.
“Marketing Services Control” means elements entirely under Marketing Services’s control and not a consequence of (a) Subscriber hardware or software failures, (b) Subscriber or end user connectivity issues, (c) Subscriber operator errors, (d) Subscriber traffic amounts that exceed Subscriber’s Permitted Utilization as defined in the Terms and Conditions, (e) corrupted Subscriber content, (f) acts of god (any) or war, or earthquakes, or terrorist actions.
Subscribers submit support requests by sending email to support@Marketing Services.com. Subscribers receive a system-generated response within minutes containing the ticket number and a direct link to the ticket.
Incident reports should include at the least the following:
Communications between Marketing Services support engineers and subscriber staff are conducted using the ticketing application, which maintains a time-stamped transcript of all communications, and sends emails to Subscriber and Marketing Services staff as tickets are updated.
Marketing Services shall use reasonable efforts to respond in a timely fashion.
The following applies to any subscriber that has a contract with a term and a minimum commitment.
Marketing Services commits to acknowledging receipt of a support ticket within the next business day following submission of a support request.
In any three-month period where three (3) or more support Response Time objectives are not met and the failure to meet the objectives materially adversely impacted Subscriber, Subscriber shall have thirty (30) days to terminate their subscription agreement following the third failure.
The following applies to subscribers who have purchased Premium Support.
Severity 1 Incidents: Marketing Services will provide Subscriber an Incident Support Email address for Subscriber to report Incidents. Subscriber should report Incidents promptly using the Incident Support email.
Severity 2 Incidents: Subscriber should report Severity 2 Incidents by submitting a Support Request.
Marketing Services will respond to the report of an Incident by troubleshooting the cause(s) of the Incident and resolve them if caused by factors within Marketing Services’s control, or provide information to those who can resolve the factors if the factors are within others’ control, as follows:
For a Severity 1 Incident:
Marketing Services support staff will acknowledge receipt of the email within 15 minutes.
Marketing Services will start actively troubleshooting within 30 minutes of receipt of the email.
Marketing Services will perform its tasks on a 24/7 basis.
Marketing Services and Subscriber will immediately communicate upon learning new information that may be useful in troubleshooting the incident, and status updates between Marketing Services and Subscriber staff will take place no less frequently than every 30 minutes for the first two hours, and no less frequently than every hour thereafter.
Marketing Services staff will work until (a) the incident is resolved or (b) the incident is believed to be outside of Marketing Services’s control.
For a Severity 2 Incident:
During Business Hours, Marketing Services support staff will acknowledge receipt of the email within two hours or within two hours of the start of the next business day if the Incident does not come in during a Business Day.
Marketing Services engineers will be actively troubleshooting within one business day, will work on the Incident during Business Hours, and will provide status updates to Subscriber daily on each subsequent Business Day.
Charges for Incident Response
For Severity 1 Incidents caused by factors within Subscriber’s control, a flat fee of $150 will be assessed, and any time spent beyond one hour will be invoiced at Subscriber’s undiscounted Professional Services rates.
For Severity 2 Incidents caused by factors within Subscriber’s control, Subscriber will be invoiced at Marketing Services’s undiscounted Professional Services Rates.
For all incidents,
If the Incident-causing factors are within Marketing Services’s control, there will be no hourly charges for Marketing Services engineering staff time.
If the factors are within Subscriber’s control, Subscriber agrees to pay Marketing Services its hourly charges for Marketing Services engineering staff time. If it appears likely the factors are within Subscriber’s, Subscriber may tell Marketing Services staff to stop working on troubleshooting the Incident (thereby stopping the hourly charges from being incurred). Subscriber agrees to tell Marketing Services to stop working on an Incident via an email sent to Marketing Services’s Incident Support email address. The timestamp on the email will be the time charges cease to be incurred.
Support Invoice Credits
In the event a Severity 1 Incident occurs, Subscriber has purchased Premium Support, the cause of the Incident is within Marketing Services’s control, and any of the communication or response timeframes are materially not met, a one-time credit of $150 per incident will be credited to Subscriber’s account.
Requests for Invoice Credits must be made within 30 days of the incident which triggered the service credit.
In no event shall Invoice Credits exceed the invoice value of the month in which they are accrued.
A pending credit does not release Subscriber from its obligation to pay Marketing Services’s submitted invoices in full when due.
Credits will be applied to the invoice two months following the month an invoice credit was incurred.
No waiver of any obligation, representation or warranty shall be effective unless in a writing signed by the party to be charged. The parties waive the application of the doctrines of promissory and equitable estoppel. The mere delay in enforcement of a right shall not be a waiver of a default. No waiver by a party of any breach, default or violation of any provision of this Agreement shall constitute a waiver of any subsequent breach, default or violation of the same or other provision of this Agreement. A waiver shall be narrowly construed. Acceptance of partial performance or payment shall not constitute a waiver or an accord and satisfaction whether or not there is a dispute between the parties. A party may unilaterally waive any condition of which it is the only beneficiary.
You may not assign or transfer this Agreement, or any of its rights or obligations hereunder, without the prior written consent of Marketing Services. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Marketing Services may assign its rights and obligations under this Agreement, and may engage subcontractors or agents to perform its duties and exercise its rights hereunder, without the consent of Customer. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
No Third-Party Beneficiaries
Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, Customer acknowledges and agrees that Microsoft, and any supplier of third-party supplier that is identified as a third-party beneficiary in the Service Description, is an intended third-party beneficiary of the provisions set forth in this Agreement as they relate specifically to its products or services and shall have the right to enforce directly the terms and conditions of this Agreement with respect to its products or services against Customer as if it were a party to this Agreement.
Minimum Age Requirement
Marketing Services customers must be at least 18 years of age. Any individual under the age of 18 years (“Minor”) must have a parent or guardian accept this Agreement in order for the Minor to become an Marketing Services customer. A parent or guardian who accepts this Agreement on behalf of a Minor will be primarily liable for ensuring complete and proper compliance with this Agreement, including the timely and full payment of the charges for Marketing Services services, and such primary liability will continue even when the Minor has attained the age of 18, unless the parent or guardian obtains Marketing Services’s express written consent to the contrary.
Marketing Services will not be liable for delays in its performance of this Agreement or provision of Services which are caused by circumstances beyond Marketing Services’s reasonable control, including acts of God, wars, insurrection, civil commotions, riots, national disasters, earthquakes, strikes, fires, floods, water damage, explosions, shortages of labour or materials, labour disputes, transportation problems, accidents, embargoes, or governmental restrictions (collectively “Force Majeure”). Marketing Services will make reasonable efforts to reduce to a minimum and mitigate the effect of any Force Majeure. Notwithstanding anything contained elsewhere herein, lack of finances will not be considered an event of Force Majeure nor will any event of Force Majeure suspend any obligation of customers for the payment of money due.
Nothing in this Agreement will be construed as creating a partnership or relationship of employer and employee, principal and agent, partnership or joint venture between Marketing Services and its customers. Each of Marketing Services and its customers will be deemed an independent contractor at all times and will have no right or authority to assume or create any obligation on behalf of the other, except as may be expressly provided herein.
Construction and Interpretation
Wherever in this Agreement the masculine, feminine, or neuter gender is used, it will be construed as including all genders, and wherever the singular is used, it will be deemed to include the plural and vice versa, where the context so requires. The division of this Agreement into sections/paragraphs, and the insertion of headings/captions, are for convenience of reference only and will not affect the construction or interpretation of this Agreement. Any rule of construction to the effect that any ambiguity is to be resolved against the drafting party will not be applicable in the construction or interpretation of this Agreement.
Governing Law; Jurisdiction
Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon arising from an alleged tort, shall be governed by the substantive laws of New Zealand. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. ANY SUIT, ACTION OR PROCEEDING CONCERNING THIS AGREEMENT MUST BE BROUGHT IN A NEW ZEALAND COURT AND EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any document, correspondence or other communication, of Customer or Marketing Services, the terms and conditions of this Agreement shall control unless otherwise set forth in this Agreement.
Marketing Services may change or modify any of the terms and conditions contained in this Agreement, including any policy or guideline incorporated by reference, at any time, and you agree to be bound by the revised terms of this Agreement. Any such modification will become effective upon the date they are first posted on this site. It is your responsibility to return to this Agreement from time to time to review the most current terms and conditions. Marketing Services does not and will not assume any obligation to notify you of the changes to this Agreement. Your continued use of Marketing Services’s Plan(s) will be the reflection of your cooperation and acceptance of any changes or modifications.
If you believe that another customer has violated this Agreement, please send communication to Marketing Services’s abuse department via email:
( abuse [at] Marketing Services [dot] com).
By clicking the following checkbox or the checkbox in your quotation (also known as Acceptance Checkbox) you acknowledge that you have read this User Agreement and agree to be bound by the terms and conditions contained in this document as well as all policies and guidelines incorporated by reference. You further agree that the act of submitting your Order Form online is equivalent to your signature and agree that all the information you submit online is true and correct to the best of your knowledge. By accepting or requesting services either verbally or via email and such are supplied by Marketing Services, you agree to be bound by the terms and conditions in this document as well as all policies incorporated by reference.
PLEASE PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS.