Website Terms and Conditions of Use
1. About the Website
1.1. Welcome to www.mk2.com.au/www.mark2creative.com.au (the ‘Website’).
1.2. The Website is operated by Mark 2 Creative Pty Ltd. Access to and use of the Website, or any of its associated Products or Services, is provided by Mark 2 Creative. Please read these terms and conditions (the ‘Terms’) carefully. By using, browsing and/or reading the Website, this signifies that you have read, understood and agree to be bound by the Terms. If you do not agree with the Terms, you must cease usage of the Website, or any of Services, immediately.
1.3. Mark 2 Creative reserves the right to review and change any of the Terms by updating this page at its sole discretion. When Mark 2 Creative updates the Terms, it will use reasonable endeavours to provide you with notice of updates to the Terms. Any changes to the Terms take immediate effect from the date of their publication. Before you continue, we recommend you keep a copy of the Terms for your records.
2. Acceptance of the Terms
You accept the Terms by remaining on the Website. You may also accept the Terms by clicking to accept or agree to the Terms where this option is made available to you by Mark 2 Creative in the user interface.
3. Copyright and Intellectual Property
3.1. The Website, the content and all of the related products of Mark 2 Creative are subject to copyright. The material on the Website is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the content and compilation of the Website (including but not limited to text, graphics, logos, button icons, video images, audio clips, Website, code, scripts, design elements and interactive features) or the content are owned or controlled for these purposes, and are reserved by Mark 2 Creative or its contributors.
3.2. All trademarks, service marks and trade names are owned, registered and/or licensed by Mark 2 Creative, who grants to you a worldwide, non-exclusive, royalty-free, revocable license whilst you are a visitor to:
(a) use the Website pursuant to the Terms;
(b) copy and store the Website and the material contained in the Website in your device’s cache memory; and
(c) print pages from the Website for your own personal and non-commercial use.
Mark 2 Creative does not grant you any other rights whatsoever in relation to the Website or the content. All other rights are expressly reserved by Mark 2 Creative.
3.3. Mark 2 Creative retains all rights, title and interest in and to the Website and all related content. Nothing you do on or in relation to the Website will transfer any:
(a) business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright, or
(b) a right to use or exploit a business name, trading name, domain name, trade mark or industrial design, or
(c) a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process), to you.
3.4. You may not, without the prior written permission of Mark 2 Creative and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the content or third party content for any purpose, unless otherwise provided by these Terms. This prohibition does not extend to materials on the Website which are freely available for re-use or are in the public domain.
5. General Disclaimer
5.1. Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
5.2. Subject to this clause 5, and to the extent permitted by law:
(a) all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and
(b) Mark 2 Creative will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the content or these Terms (including as a result of not being able to use the content or the late supply of the content), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
5.3. Use of the Website and the content is at your own risk. Everything on the Website and the content is provided to you “as is” and “as available” without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors and licensors of Mark 2 Creative make any express or implied representation or warranty about the content or any products or content (including the products or content of Mark 2 Creative) referred to on the Website. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:
(a) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;
(b) the accuracy, suitability or currency of any information on the Website, the content, or any of its content related products (including third party material and advertisements on the Website);
(c) costs incurred as a result of you using the Website, the content or any of the products of Mark 2 Creative; and
(d) the content or operation in respect to links which are provided for your convenience.
6. Limitation of liability
6.1. Mark 2 Creative’s total liability arising out of or in connection with the content or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of the content to you.
6.2. You expressly understand and agree that Mark 2 Creative, its affiliates, employees, agents, contributors and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
6.3. You acknowledge and agree that Mark 2 Creative holds no liability for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you as a result of providing Your Content to the Website.
7. Termination of Contract
7.1. If you want to terminate the Terms, you may do so by providing Mark 2 Creative with 30 days’ notice of your intention to terminate by sending notice of your intention to terminate to Mark 2 Creative via the ‘Contact Us’ link on our homepage.
7.2. Mark 2 Creative may at any time, terminate the Terms with you if:
(a) you have breached any provision of the Terms or intend to breach any provision;
(b) Mark 2 Creative is required to do so by law;
(c) Mark 2 Creative is transitioning to no longer providing the Services to Members in the country in which you are resident or from which you use the service; or
(d) the provision of the Services to you by Mark 2 Creative, is in the opinion of Mark 2 Creative, no longer commercially viable.
7.3. Subject to local applicable laws, Mark 2 Creative reserves the right to discontinue or cancel your membership at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Website or the Services without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts Mark 2 Creative’s name or reputation or violates the rights of those of another party.
7.4. When the Terms come to an end, all of the legal rights, obligations and liabilities that you and Mark 2 Creative have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of this clause shall continue to apply to such rights, obligations and liabilities indefinitely.
8.1. You agree to indemnify Mark 2 Creative, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:
(a) all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with Your Content;
(b) any direct or indirect consequences of you accessing, using or transacting on the Website or attempts to do so; and/or
(c) any breach of the Terms.
9. Dispute Resolution
If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sort).
A party to the Terms claiming a dispute (‘Dispute’) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.
On receipt of that notice (‘Notice’) by that other party, the parties to the Terms (‘Parties’) must:
(a) Within 30 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
(b) If for any reason whatsoever, 30 days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Conflict Resolution Service or his or her nominee;
(c) The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;
(d) The mediation will be held in New South Wales, Australia.
All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.
9.5. Termination of Mediation:
If 3 months have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.
10. Venue and Jurisdiction
The Services offered by Mark 2 Creative is intended to be viewed by residents of Australia. In the event of any dispute arising out of or in relation to the Website, you agree that the exclusive venue for resolving any dispute shall be in the courts of New South Wales, Australia.
11. Governing Law
The Terms are governed by the laws of New South Wales, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of New South Wales, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns.
12. Independent Legal Advice
Both parties confirm and declare that the provisions of the Terms are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.
If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.