Elevate360 Pty Ltd (hereinafter referred to as ‘Elevate360’)
ABN 61 610 021 915
Terms & Conditions of Services
These Terms & Conditions govern your engagement with Elevate360 Pty Ltd (‘Elevate360’) that provides Customers with access to:
Any and all Services provided by Elevate360 shall be subject to these Terms and Conditions of Service and is conditional upon your acceptance of these stated terms and conditions. Please read the following terms and conditions. Your acceptance of these terms and conditions is indicated by your payment for the Services.Elevate360 reserves the right, at its discretion, to change or modify all or any part of these Terms and Conditions at any time. Such changes or modifications shall be effective immediately upon notice published on elevate360.com.au your continued use of the Service constitutes your binding acceptance of these terms and conditions, including any changes or modifications made by Elevate360 as permitted above. If at any time these Terms and Conditions are no longer acceptable to you, you should immediately terminate your agreement to the Service in writing which must be given at least 30 days prior to cessation of Service.
These Terms and Conditions should be read in conjunction with the Service Level Agreement (‘SLA’), Scope of Works (‘SOW’), Quote or other documentation provided to you when your project commenced.
You will be able to see the additional terms and conditions governing each of our Services by clicking the links above (the “Product Terms”).
Access to Elevate360’s Services is available only to individuals who are at least 18 years of age or to incorporated businesses or sole traders or partnerships or trusts or associations owned or operated by individuals who are at least 18 years of age. Your right to use the Service cannot be transferred to any other person or any other entity.
Identification of Fees. You agree to pay the amounts set forth in the Quote in accordance with Section 3 or as may be further explained in the Quote (the “Fees”). The Fees are generally divided into product fees, service fees and set-up fees. Product fees are the recurring fees that you will be charged for the specific product you have purchased as shown on the Quote. Service fees are for the delivery of any premium services that Elevate360 may, from time to time, offer. Set-up fees are one-time fees for the set-up of campaigns or other services. Elevate360 reserves the right to change any of the Fees at any time, provided that such changes will not take effect until a new Quote has been executed and delivered to Elevate360 by you.
Once a Quote has been accepted by Elevate360, you will be responsible for payment in full of all Fees, except as may otherwise be provided in Section 4(c) hereof. The Fees shown are not inclusive of GST.
Manner of Payment.
You shall pay for all amounts payable under this Agreement either by credit card (the “Client Card”), Direct Debit (electronic debit from your bank account) or such other form of payment as Elevate360 may, in its sole discretion, permit. You will be required to agree to the applicable payment authorization form(s), which also permit Elevate360 to recover any Cancellation Fees (as defined below) in the authorized manner. With Elevate360’s prior approval, under certain circumstances you may pay by cheque. In the case of payment through EFT, no amounts owing are considered paid until the electronic debit has been received by Elevate360’s bank.
Timing of Payment.
Fees, as identified on the Quote, are due in advance of each Month as more fully described in the Product Terms. If there are Set-Up Fees (as set forth on the Quote), such Fees shall be paid in advance together with all amounts owed for the first Month. Elevate360 shall have the right to charge the Client Card or debit from your account through EFT for Fees in accordance with these Marketing Services Terms and the Product Terms. You understand and acknowledge that all amounts owed must be paid in advance and that, in addition to being in breach of your contractual obligations, your campaign or service may be paused or terminated if timely payment is not received.
The Agreement shall commence upon execution of a Quote and, unless otherwise provided in the Product Terms, shall continue until cancelled in accordance with the terms of this Agreement. Free trials and other limited time offers signed up for without a Quote have limited terms and will automatically conclude unless the Marketing Service is purchased via an Quote at the end of the trial period.
Unless otherwise provided in the Product Terms, you may cancel any Service at any time and for any reason by submitting a cancel request form (a “Cancellation Request”).
If you have not completed the initial number of months set forth on the Quote (the “Initial Term”), cancellation will be effective at the completion of the Initial Term.
If you have completed the Initial Term, cancellation will be effective at the completion of one full month after Elevate360’s receipt of your Cancellation Request (for example if you request cancellation while you are in the middle of the 6th month, the cancellation will be effective after completion (and payment) through and including the 7th month).
Elevate360 may cancel at any time for any reason on written notice to you (which may be provided by email) upon the conclusion of a month.
Unless otherwise provided in the Product Terms, if you wish to cancel any Service immediately without completing the applicable term described above, you may do so, but you will have to pay a cancellation fee equal to 50% of any unpaid portion of such Service’s term (the “Cancellation Fee”).
Elevate360 may, consistent with established payment practices, charge the Client Card or shall be permitted to cause payment to be made through efT for the Cancellation Fee or Elevate360 may invoice you for the Cancellation Fee, which invoice must be paid within seven (7) business days after the invoice date. No cancellation of an Quote under this section shall take effect until the Cancellation Fee has been paid, meaning that Elevate360 may continue the campaign, and you shall continue to be obligated to pay for the campaign in accordance with the terms of this Agreement. You acknowledge that the Cancellation Fee is not a penalty, but rather is a reasonable amount of liquidated damages to compensate Elevate360 for your early cancellation of Services.
You may, upon written notice to Elevate360 (email is acceptable) revoke such termination within 30 days after you have made a Cancellation Request, in which case the Quote will be reinstated and all applicable campaigns, if they had been stopped, will be re-initiated upon payment in full of all amounts owed. If the Cancellation Fee has already been paid, it shall be applied to the amount owing on the Quote.
Either you or Elevate360 may terminate the Agreement (which will terminate all current Quotes) on 30 days prior written notice (the “Notice Period”) if the other party is in material breach of its obligations hereunder and such breach has not been materially cured by the conclusion of the Notice Period. For the avoidance of doubt, Elevate360 makes no guarantees with respect to the performance of any campaign or any other service and therefore such performance shall not be a basis for termination pursuant to this Section.
Elevate360 may pause a campaign at any time for operational reasons. You may also request a pause in a campaign, during the campaign pause management fees are still payable unless otherwise agreed to by Elevate360 and the Client.
You understand and agree that you will not be entitled to any refunds of amounts already paid to Elevate360, unless you properly terminate under Section 4(e) or Elevate360 terminates under the last sentence of Section 4(b), in which case you shall only be entitled to a refund for the unspent balance of the then applicable Payment (as defined in the applicable Product Terms) or equivalent, which shall be your sole remedy.
Any amounts not paid by you when due shall bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). You agree to pay all costs of collection (including attorneys’ fees and costs and all other legal and collection expenses) incurred by Elevate360 in connection with its enforcement of its rights under the Agreement.
You understand and acknowledge that due to the nature of the Internet, certain information regarding you that was posted on the Internet as part of the Services may continue to be available on the Internet following termination of Services and/or the Agreement. All provisions of the Agreement that by their sense or nature should survive termination of the Agreement (including, without limitation, all limits of liability, indemnity obligations, and confidentiality obligations) shall survive. Without limiting the generality of the foregoing, in the event of any termination, you shall remain liable for any amounts due to Elevate360 as of the effective date of termination.
As a user of the Elevate360 Services, you agree to abide by Elevate360’s Acceptable Use Policy, and to be liable for any charges incurred for excess usage of the service, whether caused by yourself, or by others visiting your website, or sending email to your email account(s). Elevate360 will immediately suspend any services that are we deem to have breached the above policy, and if any illegal activity has been found they may at their discretion contact the appropriate Law Enforcement authorities. Elevate360 will not be held liable for any content stored on our servers in directories that are controlled by users.
You the user are responsible for making sure that all of your account passwords are kept in a secure location. Elevate360 will not set usernames and passwords to be the same thing as this breaches our security protocols. If you feel that your password has been compromised you must contact Elevate360 via email as soon as possible. Elevate360 will not be held liable for any activity that has been undertaken under an account with a compromised password.
Service Outages: whilst Elevate360 hopes there are no server outages we cannot be held responsible for any sort of software failure or hardware failure or internet connection failure. Elevate360 will also not be held liable for any loss of income due to Service Outages. Elevate360 will do its best to schedule Service Outages outside of business hours to minimise disruption to businesses.
The Customer agrees that the Customer’s personal data may be used and retained by Elevate for the following purposes:
Notwithstanding that this Agreement shall have terminated or expired, each party agrees to keep in confidence and prevent the unauthorized use or disclosure to any unauthorized person or persons of all Confidential Information which is received under this Agreement and to use such data only for the above stated purpose.
Confidential Information shall include information disclosed orally only if identified as proprietary information at the time of the first oral disclosure and reduced to writing and so designated within thirty (30) days thereof. Neither party shall be liable for use or disclosure of any such Confidential Information if the same:
In maintaining the confidentiality of confidential Information received hereunder, each party shall exercise the same degree of care that the receiving party takes to safeguard its own proprietary information.
These Terms and Conditions shall be governed by, performed under, and construed in accordance with the laws but not the conflict of law provisions of the State of New South Wales.
In no event shall Elevate360 be liable to any party for any damages, including without limitation any direct, indirect, special, punitive, incidental or consequential damages (including, but not limited to, damages for loss of business profits, business interruption, loss of programs or information, loss of profits or goodwill or loss of use of facilities or equipment), or any other damages arising – in any way, shape or form – out of the availability, use, reliance on, inability to utilise or improper use of Elevate360’s Services even if Elevate360 shall have been advised of the possibility of such damages or is negligent, and regardless of the form of action, whether in contract, tort, or otherwise.
Because some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, the above exclusions of incidental and consequential damages may not apply to you. In no event shall Elevate360 be liable to any party for any delays, inaccuracies, errors or omissions with respect to Elevate360 or the information or the transmission or delivery of all or any part thereof, for any damage arising there from or occasioned thereby, or for the results obtained from the use of information available on or through Elevate360’s Services. You expressly agree that Elevate360 shall not be responsible or liable for any loss of data, nor shall Elevate360 be required to return any lost data, resulting from the suspension or deletion of user websites or websites, network or system outages, file corruption or any other reasons.
Elevate360 urges you to maintain backup versions of your website’s content to guard against losses of any kind. You expressly agree that Elevate360 shall not be liable for any conduct by users of Elevate360 and shall not be responsible or liable for the accuracy, usefulness or availability of any information transmitted, uploaded, posted or made available on or through Elevate360’s Services.
You expressly agree to indemnify and hold harmless Elevate360, its subsidiaries, affiliates, officers, agents, co-branders and other partners, and its and their respective employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys’ fees and disbursements and court costs) arising from or in connection with your information, your use of Elevate360’s Services, your violation of these Terms and Conditions of Service or your violation of any rights of any third party.