24.2 The Client may be debited for termination fees daily or on a once off charge basis depending on the total value. The Client will also be provided with a settlement bill being the Client’s monthly service fees for the remaining months of the Contract as specified in the Client’s current Contract. In the event a termination penalty is payable or outstanding, any credits due will be subtracted from any outstanding balance prior to the final invoice.
24.3 The Client understands and agrees that the Services need to be wound down gradually to reduce the risk of rapid cessation negatively impacting the Site rankings and undermining online marketing efforts. By terminating the Services, the Client accepts a likely change to ranking, presence, domain authority, search placement, conversions, clicks and engagement.
24.4 In line with standard industry practice any passwords, logins, intellectual property that the Client directly owns either as its property or acquired from Umph and paid for in full, will be provided back to the Client or advised to the Client promptly and professionally upon payment of any termination fees or any outstanding monies owed to Umph.
24.5 Early termination forfeits any bonuses provided by Umph in goodwill or as part of an intro offer or sales incentive and includes any provision of free months, credits back to account in goodwill and any other savings or benefits provided in good faith of contractual obligations being expected to be seen through to end of the Contract.
24.6 It is not uncommon to continue to experience improvements for up to three months from termination, however changes to strategy either in reduction of activity with Umph or a change to the Client’s strategy with another provider, could result in interruptions to the Client’s online presence.
24.7 Umph reserves the right to suspend or terminate the Services should the Client routinely fail to meet agreed Milestones or not honour agreed payment terms. 25. ARBITRATION AND MEDIATION
Any dispute or difference between Umph and the Client may be notified by one party to the other party and the parties shall firstly meet to negotiate, in good faith, resolution of the dispute and secondly, if negotiation fails to achieve a resolution of the dispute within five (5) working days of the notification of the dispute, attend mediation, administered in accordance with procedures as set out by the Institute of Arbitrators and Mediators Australia, provided that this provision shall not prevent Umph from instituting legal action at any time to recover monies owing by the Client to Umph. 26. GENERAL MATTERS
26.1 Laws Affecting Electronic Commerce
From time to time governments enact laws affecting internet electronic commerce. The Client agrees that the Client is solely responsible for complying with such laws and will hold harmless, protect and defend Umph from any claim, suit, penalty, tax or tariff arising from the Client’s exercise of internet electronic commerce.
26.2 No Waiver
A power or right is not waived solely because the party entitled to exercise that power or right does not do so. A single exercise of a power or right will not preclude any other or further exercise of that power or right or of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver. 26.3 Amendments to these Terms and Conditions
Umph reserves the right to vary these Terms and Conditions at any time with notice in writing to the Client. Any subsequent work order or new Contract will represent the Client’s agreement to these Terms and Conditions as amended.
26.4 Severability
Any provision in these Terms and Conditions which is invalid or unenforceable in any jurisdiction must be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. If that provision cannot be read down then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these Terms and Conditions or affecting the validity or enforceability of that provision in any other jurisdiction.
26.5 Governing Law and Jurisdiction
These Terms and Conditions are governed by the laws of the State of Victoria and the laws of the Commonwealth of Australia which are in force in Victoria. All disputes arising between the Client and Umph will be submitted to a court of competent jurisdiction in Victoria selected by Umph and such court shall possess territorial jurisdiction to hear and determine such proceedings. ADDITIONAL TERMS AND CONDITIONS – UMPH’S WEBSITE TERMS OF USE 27. WEBSITE USER MEMBERSHIP
27.1 To access the services on Umph’s website, the Website User (“User”) must:
a) be at least eighteen (18) years of age;
b) become a registered member by submitting the information as requested on Umph’s membership/registration webpage; and
c) agree to Umph’s Website Terms of Use.
27.2 The User will be provided with a password for member website access.
27.3 The User must confirm that their registration details are true and correct and will be kept up to date at all times.
27.4 Umph’s Privacy Policy relating to the collection, storage and use of the details provided on the registration can be accessed from Umph’s website homepage.
27.4 Umph reserves the right to terminate the User’s membership at any time if the User breaches any clause of these Website Terms of Use. 28. WEBSITE SERVICES
28.1 Minimum Age of User
Umph’s website services are provided to adults over the age of eighteen (18) years. By proceeding to entertain services through Umph’s website, the User acknowledges that he/she is over 18 years of age.
28.2 Prices
All prices quoted on Umph’s website are in Australian Dollars (AUD) and are inclusive of GST unless where “EX GST” is clearly stated after the price quoted. Umph endeavours to ensure that the prices are fair, provide value and are current. The pricing is case by case for most website services unless otherwise specified. Umph reserves the right to amend its prices at any time. Umph will undertake to fulfil an order at the price contracted at the time of ordering. 29. SITE ACCESS
Umph gives the User a limited licence to access and use the information on Umph’s website for personal use. The licence to access and use the information does not include the right to use any data mining robots or other extraction tools. The licence also does not permit the User to metatag or mirror Umph’s website without Umph’s prior written permission. Umph reserve the right to serve the User with notice if Umph becomes aware of the User’s metatag or mirroring of the website. 30. INTELLECTUAL PROPERTY AND COPYRIGHT
The User is permitted to download a copy of the information on Umph’s website to the User’s computer for the User’s personal use only, provided that the User does not delete or change any copyright symbol, trade mark or other proprietary notice. The use of Umph’s content in any other way infringes Umph’s intellectual property rights. Except as permitted under the Copyright Act 1968 (Cth), the User is not permitted to copy, reproduce, republish, distribute or display any of the information on Umph’s website without prior written permission from Umph. 31. COPYRIGHT
31.1 The copyright to all content on Umph’s website including applets, graphics, images, layouts and text belongs to Umph or Umph has a licence to use those materials. All trademarks, brands and logos generally identified either with the symbols TM or ® which are used on Umph’s website are either owned by Umph or Umph has a licence to use them. The User’s access to Umph’s website does not license the User to use those marks in any commercial way without Umph’s prior written permission.
31.2 Any comment, feedback, idea or suggestion (called “Comments”) which the User provides to Umph through Umph’s website becomes Umph’s property. If in future Umph uses the Comments in promoting its website or in any other way, Umph will not be liable for any similarities which may appear from such use. Furthermore, the User agrees that Umph is entitled to use the Comments for any commercial or non-commercial purpose without compensation to the User or to any other person who has transmitted the Comments.
31.3 If the User provides Umph with Comments, the User acknowledges that the User is responsible for the content of such material, including its legality, originality and copyright. 32. HYPERLINKS
32.1 Umph’s website may from time to time contain hyperlinks to other websites. Such links are provided for convenience only and Umph takes no responsibility for the content and maintenance of or privacy compliance by any linked website. Any hyperlink on Umph’s website to another website does not imply Umph’s support, endorsement or sponsorship of the operator of that website nor of the information and/or products which they provide.
32.2 The User may link Umph’s website only with Umph’s consent. Any such linking will be entirely the User’s responsibility and at the User’s expense. By linking, the User must not alter any of Umph’s website’s content including any intellectual property notices and the User must not frame or reformat any of Umph’s pages, files, text, images or other materials. 33. DISCLAIMERS
33.1 Umph will take all due care in providing its website services, but Umph does not provide any warranty either express or implied including without limitation warranties of merchantability or fitness for a particular purpose. To the extent permitted by law, any condition or warranty which would otherwise be implied in Umph’s Website Terms of Use is excluded.
33.2 Umph takes all due care in ensuring that its website is free of any virus, worm, Trojan horse and/or malware, however Umph is not responsible for any damage to the User’s computer system which arises in connection with the User’s use of Umph’s website or any linked website.
33.3 From time to time Umph may host third party content on Umph’s website such as advertisements and endorsements belonging to other traders. Responsibility for the content of such material rests with the owners of that material and Umph is not responsible for any errors or omissions in such material. 34. PRIVACY
34.1 Umph undertakes to take all due care with any information supplied by the User when accessing Umph’s website. However Umph does not warrant and cannot ensure the security of any information which the User provides. Information that the User transmits is entirely at the User’s own risk although Umph will take reasonable steps to preserve such information in a secure manner.
34.2 Umph’s compliancy with privacy legislation is set out in Umph’s separate Privacy Policy accessible from Umph’s website home page.
34.3 Umph reserves the right to utilise third parties to perform duties or services if required. Any third party will be bound by Umph’s privacy policy. 35. STATUTORY GUARANTEES & WARRANTIES TO CONSUMERS
35.1 If the User is a consumer under the Consumer Act, the statutory guarantees under the Consumer Act will be given by Umph to the User including but not limited to a warranty that at the time of supply of products or services to the User, if the products or services are defective then:
a) Umph will repair or replace the products or any part of them that is defective; and
b) Umph will provide again or rectify any services or part of them that are defective; or
c) Umph will wholly or partly recompense the User if the services are defective.
35.2 If the User is a consumer under the Consumer Act and the products and services provided by Umph relate to the repair of consumer products then Umph will give the User any notices that Umph is obliged to give the User under the Consumer Act.
35.3 A full disclosure of the Statutory Guarantees and Warranties to Consumers is available on application to Umph. 36. COOL OFF PERIOD FOR CONSUMERS
36.1 A ten (10) day cooling off period is standard with all website services, except where the User has provided in writing a notice to waiver this requirement and requests an immediate start of the website services.
36.2 A notice to rescind the Contract must be supplied within the cooling off period.
36.3 The User will indemnify Umph from any costs, losses or expenses incurred for cancellation after the cooling off period.
