http://www.mashrlab.com and its subdomains ("the Website") is maintained and operated by Mashr Lab Pty Ltd (ABN 74 091 282 227) at Level 1, 266 Chapel St, Prahran, Victoria, 3181, Australia ("we", "us", "our"), including its directors, employees, servants and agents) and is an e-commerce Website which sells electronic marketing tools and related software codes, that can be embedded to internet advertising or e-marketing campaigns for analytic purposes, as further described below ("Tool(s)").
(a) "Content" means any visual representation generated optically, electronically, digitally or by any other means or in any media or other material that you are viewing from the Website, together with any accompanying material.
(b) "E-Marketing Campaign" means your internet advertising campaign or electronic direct mail campaign for which a selected Tool is to be used.
(c) "Embed Code" means the code which may be provided by us for you to access a Tool for an E-Marketing Campaign.
(d) "Intellectual Property" means all existing and future rights in patents, designs, copyright, know-how, moral rights, trade secrets, confidential information, trademarks, service marks, trade names, goodwill and other rights arising from the provision of the License and performance of the Services.
(e) "License" means the license granted to you to access the Website to use the Services and Tool(s).
(f) "Password" means your password to activate and access your User Account.
(g) "Server" means the third party server which is hosting the Tool(s) and which is facilitating the provision of the Embed Code for the E-Marketing Campaign;
(h) "Term" means the term of the License;
(i) "Tool(s)" means the tool(s), products and services for an E-Marketing Campaign offered on the Website now or in the future, comprising of tracking pixels or a tracking link via Email Tracker and/or Ad Tracker tools, which allow the sender to gather analytics about how and where your E-Marketing Campaign is read by recipients.
(j) "User Account" means the account you create when registering on the Website to purchase access to any of the Services;
3. Access to the Website
In accessing and using the Website, you agree and acknowledge that:
(a) your access and use of this Website is at your own risk and you are responsible for compliance with the laws of your jurisdiction if applicable, and these Terms and Conditions;
(b) we do not guarantee that this Website, Server, Tool(s) or the Content on it will be free from viruses or that access to this website will be uninterrupted and we are not responsible for the content of external internet sites.
(c) you must immediately notify us if you become aware of any unauthorised use of the Website;
(d) you must, in order to make proper use of the Website, have a basic knowledge of how the Internet functions, netiquette and what types of uses are, and are not acceptable;
(e) we reserve the right to permanently ban, and/or notify the appropriate authorities of, any person that uses, or attempts to use, our Website for illegal or improper purposes, or who posts or publishes, or attempts to post or publish, abusive, obscene, vulgar, offensive, defamatory, hateful, threatening or sexually-oriented material.
(f) we may amend or modify these Terms and Conditions from time to time for any reason, without notice, including but not limited to, the right to suspend or terminate with or without notice, with no liability to you or any third party, by posting the amended terms on the Website and you agree that we may properly and effectively serve you with notice in this way. All future agreements will be bound by the terms in force at that point in time and therefore you are advised to review these Terms and Conditions on a regular basis.
4. Prohibited Uses of the Website
Without limiting any other obligations, in accessing the Website, you warrant that you will not:
(a) use the Website to send spam, commercial, unsolicited or bulk electronic messages to anyone or in any other way which would constitute an infringement of the Spam Act 2003 (Cth)("Spam Act");
(b) allow any unauthorised third party to use or access the Services or share, re-sell or attempt to share or re-sell the Services to any third party, unless otherwise approved in writing by us;
(c) use the Website for any unlawful purpose, or for the publication, linking to, issue or display of any unlawful material (including but not limited to any pirated software or any material which is obscene, pornographic, threatening, malicious, harmful, abusive, defamatory or which breaches the rights of any third party or which is or encourages a criminal act or contains any virus, worm, Trojan horse or other harmful code or which may harm us or any of its clients or bring us into disrepute) whether under Australian law or regulation, the laws or regulations of any other place where the results of such purpose or such material can be accessed;
(d) provide any technical or other information obtained from us and/or relating to the Tool(s) and/or Services to any person, company, firm or government;
(e) reverse engineer, de-code or in any way disassemble the Website or any part of thereof;
(f) data mine or conduct automated searches on the site or the content on the Website, whether through the use of additional software or otherwise;
(g) create links from the Website to any other website, frame or mirror the Website without our prior written consent;
(h) tamper with, hinder the operation of, or make unauthorised modifications to the Website;
(i) violate the security or any security measures of this Website;
(j) access any data on or from this Website which is not intended for you;
(k) probe, scan or test the vulnerability of this Website or any of our systems or networks used to facilitate this Website;
(l) interfere with service to any other user of this Website or use any device, software or routine to interfere or attempt to interfere with the proper working of this Website or any activity being conducted on this Website; and/or
(m) use the Website for any purpose not contemplated by these Terms and Conditions.
5. Accessing the Services
In order to access the Services, you must set up a User Account in accordance with clause 8 below and in respect of your access and use of the Services, you:
(a) warrant that you have the authority to accept these Terms and Conditions if acquiring the Services on behalf of a legal entity;
(b) must provide all information reasonably required by us to grant the License and provide the Services;
(c) must comply with the Privacy Act in the handling of all personal information (including making the necessary disclosures to, and obtaining the relevant consents from, your customers in relation to the handling of the E-Marketing Campaign campaign);
(d) must ensure that all E-Marketing Campaign and other material operated by you and communicated via, or hosted on the Server is free of viruses and other harmful code; and
(e) must keep backups of all E-Marketing Campaign materials provided by you (if any) to us.
(f) acknowledge and agree that we have no obligation to manipulate any of the E-Marketing Campaign or related materials, or validate or vet the E-Marketing Campaign for usability, legality, content or correctness; and
(g) must ensure that all information, content, videos, photos and other materials provided by you to us is accurate, complete and up to date at all times and to allow us to use the materials to provide the Services, you hereby grant us a perpetual, irrevocable and royalty-free licence to use, reproduce, modify, edit, adapt, publish, translate, create derivative works from, distribute, perform and display such material (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology, now known or later developed for the full term of any rights that may exist in such content. You also authorise us to share relevant information to your third party developer for the purpose of providing the Services to you, subject to your prior written consent.
6. License to access the Website
Subject to complying with the Terms and Conditions, we grant you a non-exclusive, non-transferable, revocable License to use and access the Website to browse the Services and Tool(s) and get an indication of the pricing under our various credit plans. For the avoidance of doubt, you may only access and print the Content on this Website for your own non-commercial use unless you have prior written approval from us. All other copying of content on any part of this Website is prohibited except to the extent permitted by law.
7. Accessing the Services and Tools
In order to access the Tools as part of the Services, via the Website, you must set up a User Account in accordance with clause 8 below.
8. Set Up of User Account
When creating a User Account, go to the "Login/ Sign Up" page and provide the following details:
(a) Full name;
(b) Company Name;
(d) Registered Address;
(e) Billing Address;
(f) Credit Card or PayPal account details; and
(g) Password for the User Account.
We will use the User Account details for the purpose of providing the Services, including, but not limited to tracking orders for Tool(s) and tracking credits purchase history.
If your User Account is inactive for a period of 3 months or more, we have the right to delete any materials, information from the Server, on the understanding that we will first send you a notification to re-activate your User Account. Once re-activated, this will re-set the 3 month countdown to the next notification to delete your materials/ information from the Server and we accept no liability for any deletions.
By completing your User Account details and signifying your acceptance of these Terms and Conditions, you accept this Agreement either for yourself or on behalf of your employer or the entity that is identified as the member account holder, and agree to be bound by its provisions. If you are accepting on behalf of your employer or the entity that is the member account holder, you represent and warrant that you have full legal authority to bind your employer or such other entity. If you do not have such authority or you do not accept or agree with these Terms and Conditions, do not accept the Agreement and do not use the Tool(s).
9. Process for accessing a Tool
The process for accessing a Tool, is as follows:
(a) you must select your preferred type of Tool and login in to your User Account in order to complete the payment process;
(b) before purchasing your Tool, you must provide the required information for the E-Marketing Campaign and also provide the desired configuration of the Tool for your E-Marketing Campaign;
(c) you are then provided with an Embed Code and/or one or more tracking links for each Tool, which you can copy & paste to download into your E-Marketing Campaign. We will also email these details to you (or your nominated third party developer);
(d) at any time, Users can go to the Account Page to view and edit your Account Settings (including changing plans, making a one-off or automated top-up of credits for the month, or cancelling your plan at the end of the current billing period), and also view your Campaign History;
(e) we will email Users once 75% of your opens/ clicks estimate for a selected Tool is exceeded, so Users may immediately boost your opens/ clicks; and
(f) once 100% of the opens/ clicks for a Tool has been used, you may still access your analytics for those opens/ clicks which have been purchased and boost opens/ clicks tracked for that E-Marketing Campaign to unlock updated analytics.
We shall charge you, and you agree to pay, all applicable fees for the Services.
You are responsible for reviewing the relevant pricing plans set out in the Pricing page.
We may, but are not obligated to, contact you to warn you that you have exceeded the included features (ie. opens/ clicks) or other limits of the selected pricing plans for the Tool(s).
Options for Purchasing Access to the Tools
There are two (2) main options for purchasing access to the Tools, as follows:
(a) "Casual User": making a one-off purchase of a bulk number of credits that can be used with no ongoing commitment; or
(b) "Saver Plans": Users can subscribe to various types of monthly or annual plans which provide them with a certain number of credits per month.
For the avoidance of doubt, we may vary the prices for opens/ clicks from time to time, without notice.
In order to purchase a Tool for your E-Marketing Campaign, Users must:
(a) start the purchase process by selecting the desired Tool at the "Get Started" page on the Website; and
(b) choose and customise the Tool(s) you want, including the maximum number of opens/ clicks which you desire to be tracked.
We accept payment for credits and opens/ clicks, by either credit card or PayPal. Payment will only be deemed to be received by us upon receipt of cleared funds. Payment must be made in full without any abatement, set off or deduction. No access to Tool(s) or Services will be provided unless and until payment has cleared. You acknowledge and agree that:
(a) credits and opens/ clicks are not transferable or refundable for cash or any other type of payment;
(b) credits and opens/ clicks are not assignable to any third party; and
(c) the minimum amount of credits which can be purchased at one time is 5,000 credits.
(d) if you do not have sufficient credits for your E-Marketing Campaign, you can top up opens/ clicks or you may also tick and select "Auto Top Up" option, so that you don't run out of opens/ clicks; and
(e) all unused credits will expire on the earlier of expiry or termination of the License.
Except as otherwise provided in this Agreement or required by law, we will not provide refunds or credits for partial or unused periods of Service or mid-term downgrades.
GST law and other terms used in this clause (except Recipient) have the meanings ascribed to those terms by the A New Tax System (Goods and Services Tax) Act 1999 (as amended from time to time) or any replacement or other relevant legislation and regulations, except that GST law also includes any applicable rulings. If GST becomes payable by a party to this Agreement ("Supplier") in relation to any supply that it makes under or in connection with this Agreement, the parties agree that:
(a) unless clearly stated in this Agreement to the contrary, any consideration (including the value of any non-monetary consideration) provided for that supply ("Agreed Amount") is exclusive of GST;
(b) an additional amount will be payable by the party providing consideration for that supply ("Recipient") equal to the amount of GST payable by the Supplier in relation to that supply;
(c) the additional amount is payable at the same time as any part of the Agreed Amount is to be first provided for that supply.
To the extent, if any, that any consideration for a supply is specified in this Agreement to be inclusive of GST, that consideration will be excluded from the Agreed Amount for the purposes of this clause.
12. License to access the Tool(s) for your E-Marketing Campaign
In consideration of your full and timely payment for the Tools and compliance with these Terms and Conditions, we grant you a non-exclusive, non-transferable, revocable, worldwide License for the Term of this Agreement, to use the Tool(s) for your applicable E-Marketing Campaign. In granting the License, we will use best commercial efforts to:
(a) provide access to the Tool(s) in accordance with clause 11 above;
(b) maintain the Tool(s) so that it is in working order;
(c) repair the Tool(s) as and when required; and
(d) host the Tool(s) on the Server.
You acknowledge and agree that:
(a) the purchase of credits is payment for setting up access to the selected Tool(s) for the Term; and
(b) the License does not confer any rights (proprietary or otherwise) to you in relation to the Tool(s).
Each party warrants that:
(a) it is able to enter into and fulfil its obligations pursuant to this Agreement;
(b) it is not under any obligation or restriction that would interfere with or restrict the performance of its obligations under this Agreement;
(c) the entry into this Agreement or the performance of this Agreement will not put it in breach of any obligation to any third party as at the date of execution of this Agreement; and
(d) all representations, warranties and undertakings are true and correct to the best of its knowledge.
You indemnify and keep indemnified us, our subsidiaries, affiliates, officers, partners, employees and agents and other related bodies corporate against any action, loss, liability, damage, claim, penalty, cost or expense (including but not limited to legal fees) suffered directly or indirectly by us, arising from:
- (a) any breach by you of any of your warranties or obligations under this Agreement; or
(b) to any violation of this Agreement by you or users of your User Account, or in connection with the use of the Website, Tool(s), Services or the internet or the placement or transmission of any message, information, software or other materials on the Website or on the internet by you or users of your account; or
(c) any claims made against us in relation to your use of the Website, Tool(s) or Services.
You acknowledge and agree that:
- (a) our liability under this Agreement is limited to granting the License, providing access to the Website, Tool(s) and providing the Services in accordance with this Agreement.
- (b) in no event shall we or our suppliers or affiliates be liable for any damages whatsoever, including special, indirect or consequential damages, arising out of or in connection with the use or performance of information available from the Website, Tool(s) or Services.
- (c) we take no responsibility for the accuracy or validity of any claims or statements contained in the documents and related graphics on the Website.
- (d) we do not guarantee continuous, uninterrupted or secure access to the Website, and the Website may be interfered with factors outside our control.
- (e) we make no representations about the suitability of any of the information contained in the documents and related graphics on the Website for any purpose. All such documents and related graphics are provided without warranty of any kind.
- (f) all warranties (including, without limitation, warranties and conditions as to fitness for purpose and merchantability), whether express or implied by statute, common law or otherwise, are excluded to the extent permitted by law. Without limiting the foregoing, to the extent possible by law, we specifically exclude any warranty as to the accuracy or quality of information received by any person via any computer server operated or maintained by us in connection with the services, and we shall not be liable for any loss or damage to any data stored on any such server.
- (g) if we breach any condition or warranty implied by law which cannot lawfully be excluded under Australian Consumer Law or the Competition and Consumer Act (2010)(Cth), to the extent permitted by law our liability is limited, at its option, to (a) in the case of services, the resupply of, or payment of the cost of resupplying, the service; and (b) in the case of goods (i) the replacement of the goods or the supply of equivalent goods; or (ii) the repair of the goods; or (iii) the payment of the cost of replacing the goods or (iv) of acquiring equivalent goods; or (v) the payment of the cost of having the goods repaired.
You acknowledge and agree that at all times, we own all the right, title and interest in:
- (a) the Tool(s), Services, License and the Website and any modifications to the Tool(s), Services, License and the Website;
- (b) the Intellectual Property Rights in the Tool(s), Services, License and the Website;
- (c) the Intellectual Property Rights in all other names, images, pictures, logo and icons identifying us, the Tool(s), Services, License or Website; and
- (d) the Intellectual Property Rights in the design and arrangement of the Website, text and graphics and all software compilations, underlying source code, and all other material on the Website.
Unless otherwise expressed in writing to you or permitted by law, you are not authorised or licensed to use any Intellectual Property on the Website in any way and all rights are reserved to us. All other product and/or brand or company names mentioned herein are the trademarks of your respective owners.
Subject to the above, the parties acknowledge and agree that:
- (a) you own all the right, title and interest in your E-Marketing Campaign (excluding our rights to the Intellectual Property in the Website, Tools and Services);
- (b) you authorise and grant a non-exclusive license for us to access information and data relating to the E-Marketing Campaign for the purposes of providing the license or access to the Website, Tool(s) or the Services; and
- (c) we may require your E-Marketing Campaign html code, to assist with trouble shooting.
You acknowledge and agree that we may from time to time, modify, improve or correct the Services (or any part thereof) with or without notice to you. In such circumstances, we may temporarily be unable to provide access to the Services.
You agree that we will not be liable in any way whatsoever for any loss or damage suffered by you should such circumstances arise. In the event that we are temporarily unable to provide access to the Tool(s), it will endeavour to restore the access as soon as reasonably practicable.
18. Cancellation of Plan
You may cancel your remaining credits and your Plan, at the end of the current billing cycle, by clicking on the cancellation page on the Website. At such time, any remaining credits will become null and void and there shall be no claim made against us for any fees paid.
19. Removal or Suspension of your User Account
If you fail to use the User Account for a period of at least 3 months, we will notify you in writing that your User Account may be deleted. If you wish to re-activate your User Account and avoid the account deletion, you simply need to login and the 3 month countdown will be re-set for a further 3 month period.
If we suspend this Agreement, such suspension will not prejudice our rights to receive all amounts outstanding under this Agreement, and for the period of suspension, you will remain obligated to fulfil all aspects of this Agreement.
20. Term and Termination
The Term will commence on the date of this Agreement and will continue to apply to any use of the Services by you, unless earlier terminated in accordance with this Agreement.
You may terminate this Agreement and your User Account, by not activating the User Account for a period of at least 3 months or by submitting the User Account termination form.
At our discretion, we may terminate or suspend your User Account and this Agreement immediately with written notice to you if:
- (a) you are in breach of any law or of any of your obligations or warranties in this Agreement;
- (b) default on any payment due under this Agreement;
- (c) we believe that the Service(s) has been or is to be misused for spam in breach of the Spam Act;
- (d) you do anything which may impact the License, access to the Website, Tool(s), or the Services, or our ability to provide access to the Tool(s) to its other clients;
- (e) we reasonably suspect or believe that you have not provided accurate, complete and up to date information in relation to this Agreement;
- (f) we consider in our reasonable opinion, that you have said, written or done anything which will or tends to bring us into public disrepute;
- (g) we consider in our reasonable opinion that your use of the Tool(s) or access to the Tool(s) will, or tends to, bring us into public disrepute;
- (h) we become unable to provide the License, the Services or access to the Tool(s) for any reason; or
- (i) you go into liquidation, or make a composition or arrangement with creditors generally, or take advantage of any statute for the relief of insolvent debtors or being a natural person, commit an act of bankruptcy.
- Upon the termination of this Agreement:
- (a) your right to use the Website, Tools and/or Services shall cease;
- (b) you must immediately pay to us all amounts for which you are liable under this Agreement;
- (c) your User Account will be closed and you will not be entitled to any refund of the unused opens/ clicks, and any such remaining opens/ clicks will become null and void.
- (d) we will physically or electronically destroy beyond all ability to recover all original data provided to them. This includes any and all copies of the data such as backup copies created.
- (e) for the avoidance of doubt, we retain the right to keep the results and proceeds of the analytics to your E-Marketing Campaign which have been collated prior to termination or expiry of this Agreement, subject to de-identifying the results (save for the 'type of industry' to which the campaign relates) and for this purpose, you hereby grant a royalty free, perpetual, worldwide, non-exclusive license to us to use and exploit these results and proceeds of the analytics to your E-Marketing Campaign.
- (f) termination of this Agreement will not prejudice any other rights or remedies which a party may be entitled to under law.
- (a) You authorise us to collect from any party (such as your third party developer) and to retain all relevant information relating to your use of the Website and the Tool(s), and you hereby authorise any party to provide us with such information.
- (b) You must use reasonable endeavours to prevent the unauthorised use or disclosure of such confidential information by third parties.
- (c) You must not use or disclose to any person any confidential information (including but not limited to documents, information, strategies and know how:
- (i) relating to the affairs or business of us, our subsidiaries, affiliates, officers, partners, employees and agents and other related bodies corporate; or
- (ii) which come into your possession in the course of or by reason of this Agreement; or
- (iii) relating to, or evidencing, this Agreement itself; either during the Term or any time thereafter, except in the proper course of your obligations under this Agreement or as required by law or by us.
Whilst we will reasonably endeavour to ensure that the Embed Code and/or tracking links contained in the Tool(s) and on the Server is safeguarded from damage, accident, fire, theft and unauthorised use, you acknowledge and agree that we will not be liable for any loss or damage suffered by you for any such damage, accident, fire, theft or unauthorised use.
You may, with our consent, and subject to satisfying certain security checks, change your User Password by making a written request to us or by administering your own User Account via your access information.
You acknowledge and agree that:
- (a) you are responsible for the security and proper use of all Passwords provided to you;
- (b) you must take all necessary steps to ensure that all Passwords:
- (i) are kept confidential and not disclosed to unauthorised people;
- (ii) are used properly and only for the purpose for which the Passwords are provided;
- (c) you will inform us immediately if you have any reason to believe that:
- (i) any Password has become known to an unauthorised person; or
- (ii) any Password is being or is likely to be used in any unauthorised way; or
- (iii) there has been or will be any other breach of security;
- (d) we are not, and will not be held, liable in any way, for any expense, loss or damage suffered by you arising from or in any way relating to a breach of security or failure by you to comply with this clause;
- (e) you are entirely liable for all activities conducted and charges incurred under the Password whether authorised by you or not;
- (f) if you forget or misplace any Password, you must immediately notify us.
- (g) we will re-issue a new Password to you via your email address.
25. Privacy and Spam
(a) You may not assign or attempt to assign this Agreement or any of the rights or obligations of this Agreement to any third party without our prior written consent. We may assign this Agreement and any of its rights or obligations under this Agreement without your prior consent.
(b) Subject to any provision to the contrary, this Agreement shall ensure to the benefit of and be binding upon the parties and your successors, trustees, permitted assigns or receivers but shall not enure to the benefit of any other persons.
(c) To the extent permitted by law, this Agreement:
- (i) embodies the entire understanding of the parties, and constitutes the entire terms agreed by the parties.
- (ii) supersedes any prior written or verbal or other agreements between the parties.
(d) A notice, approval, consent or other communication in connection with this Agreement must be in writing to the address stated in this Agreement or such other address as notified by the relevant party.
(e) This Agreement does not constitute any party the agent of the other, or create a partnership, joint venture or similar relationship between the parties, and no party has the power to bind any other party in any manner whatsoever.
(f) Any failure or delay by either party in exercising any rights or remedy will not constitute a waiver.
(g) If any part of this Agreement is deemed to be illegal, void or unenforceable, that part of the Agreement will be severed to the extent of that illegality, voidness or unenforceability, without invalidating the remaining provisions.
(h) This Agreement is governed by and will be construed according to the laws of Victoria, Australia and each party submits to the exclusive jurisdiction of the courts in Victoria.