Terms & Conditions of Social Agent

1. DEFINITIONS

“Business Days” means a day that is not a Saturday, Sunday, or public holiday in the Australian Capital Territory.

“Business Hours” means 9:00 am to 5:00 pm on a Business Day.

“Client” means the party, including its employees, agents, subcontractors, permitted assignees, nominees or those acting on its behalf, placing the Order with the Company or provided for on the Quote.

“Company” means, in connection with the supply of the Services, Social Agent Aus 2 Pty Ltd (CAN: 684 694 648) t/as Social Agent Co and its successors and assigns or any person acting on behalf of and with the authority of the Company, making the supply to Client.

“Confidential Information” means: the terms of the Contract; all information marked as confidential by either Party; all information that would reasonably be considered confidential given its nature or the circumstances of its disclosure; the Company’s methodologies, processes, and proprietary tools; the Client’s business strategies, marketing plans, and customer data; pricing information and financial data; technical specifications and trade secrets; and any information that gives either party a competitive advantage.

“Consequential Loss” means loss of expected savings, loss of use, loss of opportunity, loss of profit, loss of revenue, increased financing costs, loss arising from delay, or any consequential, special or indirect loss or damage, whether or not the possibility or potential extent of the loss or damage was known or foreseeable, and whether arising from a claim under indemnity, contract, tort (including negligence), statute or otherwise.

“Contract” means the contract formed between the Company and the Client as referenced under clause 2.4.

“Dispute” means a dispute between the parties with respect to anything in connection with the Contract.

“Fees” means the Fees specified in the Quote for the provision of the Services and any additional fees required to be paid under these T&Cs.

“Material Breach” means a breach of the Contract that substantially impairs a party’s business operations or performance under the Contract, including breaches that result in significant financial or reputational harm, while excluding minor or technical breaches.

“Order” means an offer by a Client to purchase the Services from the Company and which is subject to these T&Cs.

“Quote” means the document provided by the Company to the Client stating the Services offered to be supplied for the Fees.

“Party” and “Parties” means a party or the parties to the Contract and includes “party” and “parties” where the context allows.

“Rules of Engagement” means the service levels, standards and expectations required by the Company to provide the Services as detailed in the document titled “Rules of Engagement” found at this link INSERT.

“Services” means the services to be provided by the Company to the Client as detailed in the Services Package.

“Services Package” means the specific combination of services selected by the Client as provided for in the Quote.

“Start Date” means the date the Company is to commence providing the Services to the Client as contained in the Quote or otherwise agreed between the parties.

“Suspension Period” means the period the Term is suspended in accordance with clause 5.

“T&Cs” means these Terms and Conditions.

“Term” means the term of the Contract as provided for in clause 3.1.

Singular words include the plural and vice versa. A mention of anything after include, includes or including, does not limit what else might be included.

• QUOTE
  • A Quote remains valid and open for acceptance for a period of 30 days from the date of the Quote unless a revised Quote is sent for the same Services.
  • The Quote is taken to have been exclusively accepted if the Client places an Order for the Services or the Client accepts, or agrees to, the terms of the Quote via email or some other form of written communication including SMS message or the Client, upon receiving the Quote, instructing the Company to act in a manner which would suggest that the Client agrees to be bound by the terms of the Contract or in such a matter that is consistent with the Client performing its obligations under the Contract.
  • The Company reserves the right in its absolute discretion to reject, in whole or in part, any Order upon notice to the Client.
  • Upon acceptance or deemed acceptance of the Quote under this clause 2, a contract is formed between the Company and the Client and comprises the Quote, these T&Cs and any special conditions agreed in writing between the parties.
  • In the event of any inconsistency between the documents specified in clause 2.4, they shall take precedence in the order listed within that clause.
• TERM
  • Subject to clause 3.3, the Contract will commence on the Start Date and will continue until terminated in accordance with the Contract.
  • If any Services are supplied after the termination of the Contract without the parties having entered into a replacement contract or otherwise having expressly agreed in writing that the terms of the Contract will not apply, the terms of the Contract will continue to apply for those Services.
  • Despite any other clause in the Contract, the Term must be for at least a continuous period of 3 months.
• SUSPENSION OF THE TERM
  • The Client is entitled to have the Term suspended for a period of one (1) month during any twelve (12) month period subject to compliance with any other clause in this clause 4.
  • The Client may initiate a suspension of the Term to which it is entitled under clause 4.1, by providing notice in writing to the Company provided such notice:
    • provides at least 14 days’ notice of the date the proposed suspension is proposed to begin; and
    • the proposes date the suspension is to begin is a first day of a month.
  • The Suspension Period cannot be within the 3-month period commencing from the Start Date.
  • During the Suspension Period, the Services for that period will be temporarily suspended.
  • At the end of the Suspension Period the Services will automatically recommence, and access to the Services and related benefits will be reinstated.
  • No Fees will be payable by the Client to the Company for the Suspension Period.
  • Despite any other clause in the Contract, the Company may agree, at its sole discretion, to suspend the Term on the request of the Client for any period of the Term.
  • The Client acknowledges and agrees that the Company is in no way liable to the Client for anything that may arise due to the suspension of the Term under the Contract.
• THE SERVICES
  • The Company must provide the Services to the Client in the form and manner provided for in the Quote and in accordance with the Rules of Engagement.
  • The Company shall perform the Services with due care, skill and diligence; ensure that all personnel engaged in providing the Services are suitably qualified and experienced; comply with all reasonable directions and requirements of the Client in relation to the provision of the Services; maintain appropriate insurance coverage for the provision of the Services; and keep the Client informed of all material developments in relation to the Services.
  • The Company shall: use the Client’s materials solely for the purpose of providing the Services; maintain the security and confidentiality of any access credentials provided by the Client; and comply with the Client’s reasonable security and access policies.
  • The Company may, in good faith, modify the Services from time to time to comply with any applicable law or regulatory requirement; address any applicable security or technical requirement; reflect changes in market practices or conditions; or to incorporate improvements or enhancements to the Services.
  • The Client may seek to vary the Services by providing written notice to the Company, setting out the request and all the relevant details.
  • If the Company agrees to the request provided under clause 5.5, the Company will issue the Client with a quote.
  • If the Client accepts the terms of the quote provided under clause 5.5, within the terms contained in the quote, then the quote will become the “Quote” as defined under and for the purposes of these T&Cs.
  • The quote referenced in clause 5.6 may be accepted or be deemed to be accepted by the methods contained in clause 2.2.
  • If the Client accepts, or is taken to have accepted, the terms and conditions of the quote referred in clause 5.6 then the terms and conditions contained in that quote will commence: on any date as specified as such in the quote; or if no such date is specified as agreed between the parties in writing; or if no said agreement on the first day of the following month.
• CLIENT OBLIGATIONS
  • The Client acknowledges and shall comply with the Rules of Engagement to the extent possible.
  • The Client must: provide the Company with timely access to all information, instructions, materials, documentation, and resources reasonably required by the Company to provide the Services; ensure that all information provided to the Company is accurate, complete and not misleading; obtain and maintain all necessary licenses, permissions and consents required for the Company to provide the Services; comply with all reasonable requests made by the Company in connection with the provision of the Services; and provide timely feedback and approvals as reasonably requested by the Company.
  • The Client must provide the Company with: administrative access to relevant Social Media Platforms; brand guidelines, logos, and other marketing materials; content approval processes and timeframes; and designated points of contact for communication and approvals.
• FEES AND PAYMENT
  • The Client must pay the Company the Fees on a monthly basis as provided for in the Quote and in accordance with these T&Cs unless agreed otherwise between the Company and the Client.
  • The Company will invoice the Fees monthly to the Client on the first day of each month for that month.
  • The Fees are payable in advance on the first day of each month and will be prorated for any partial month of service.
  • Unless provided for in the Service Package, if the Company is instructed by the Client to arrange paid advertisements then the Company may pay the upfront expense for the advertisements and the Client will reimburse the Company of such expenses by way of direct debit arranged by the Company.
  • The Company reserves the right to charge additional fees at the rate of $150 per hour where:
    • the Client requests any additional work or services are provided outside of the scope of the Services;
    • the Client requires or requests the Company to provide the Services outside of the Business Hours;
    • where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, additional services, limitations to accessing information and documents, prerequisite work by any third party not being completed or hidden services, etc) which are only discovered on or after the Start Date; or
    • in the event of increases to the Company in the cost of labour or materials which are beyond the Company’s control; and
    • if a variation is required to the Services due to any delays and/or actions on the part of the Client.
  • All Fees and payments required to be made by the Client under the Contract must be made by direct debit unless otherwise agreed in writing by the Company.
  • The Client must: complete and maintain any valid direct debit authority as required by the Company in favour of the Company; ensure sufficient funds are available in the nominated account for each scheduled payment; and notify the Company of any changes to their direct debit details at least 5 Business Days before the next payment is due.
  • If a direct debit payment is declined: the Company may charge a failed payment fee to cover its expenses for dealing with a failed payment and the Client must pay this fee; the Client must make alternative payment arrangements within 2 Business Days; and the Company may suspend the Services until payment is received.
  • The Client authorises the Company to: debit the nominated account for all fees and charges payable under the Contract; adjust the debit amount to reflect any changes to the Fees or Services or an additional fee or expenses required under clause 7.4 or 7.5; and debit any outstanding amounts upon termination of the Contract.
  • The direct debit authority under clause 7.9 remains in force until: the Contract is terminated and all outstanding Fees and amounts are paid; or the Client provides a replacement direct debit authority acceptable to the Company.
  • If the Client fails to pay any amount when due, the Company may charge interest: at the rate of 2% per month or the maximum rate permitted by law, whichever is lower; calculated daily from the due date until payment is received; and compounded monthly.
  • The Client must pay all costs incurred by the Company in collecting overdue amounts from the Client, including legal fees and disbursements on an indemnity basis.
• INTELLECTUAL PROPERTY
  • Each party retains all rights, title and interest in and to its existing intellectual property, including but not limited to: trademarks, logos, and brand elements; copyright materials; patents and patent applications; trade secrets and confidential information; software and technical solutions; and business methods and processes.
  • Nothing in the Contract transfers ownership of any existing intellectual property from one party to the other.
  • All intellectual property rights in materials created by the Company specifically for the Client in the course of providing the Services (“Created Materials”) will vest in the Company upon creation.
  • The Client must: execute all documents and do all things necessary to give effect to the Company’s ownership of the Created Materials; obtain written assignments from its employees and contractors as necessary to ensure the Company’s ownership of the Created Materials; not use the Created Materials for any purpose other than providing the Services without the Company’s prior written consent.
  • The Client grants the Company a non-exclusive, royalty-free license to use the Client’s materials (“Client Materials”) for the purpose of providing the Services, including: logos, trademarks, and brand elements; content, images, and videos; marketing materials and product information; and customer data and analytics.
  • The Client warrants that: it owns or has the right to license the Client Materials to the Company; the Company’s use of the Client Materials in accordance with the Contract will not infringe any third party’s intellectual property rights; and the Client Materials comply with all applicable laws and regulations and are not, or not likely to be, defamatory.
  • The Company grants the Client a non-exclusive, non-transferable license to use the Company’s proprietary tools, methodologies, and systems (“Company Tools”) solely to the extent necessary to receive the Services.
  • The license granted under clause 8.7: is limited to the Term; does not include the right to modify, reverse engineer, or create derivative works; and cannot be sublicensed without the Company’s prior written consent.
  • The Company reserves all rights not expressly granted to the Client under the Contract.
  • Upon termination of the Contract: all licenses granted under this clause 8 automatically terminate; the Client must cease all use of the Company Tools; and the Client must return or destroy all copies of the Company Tools in its possession or control.
• CONFIDENTIALITY
  • Each party (“Recipient”) must: keep confidential; take reasonable steps to ensure that the party’s officers, employees, agents, contractors, and representatives keep confidential; and not, without the prior written consent of the other party (“Discloser”), disclose to any person other than those of its officers, employees, agents, contractors, and representatives who require the information to perform their duties under the Contract, the Confidential Information of the Discloser.
  • The obligations of confidentiality in clause 9.1 do not apply to information that: is or becomes public knowledge other than by breach of the Contract; is in the Recipient’s possession without restriction before receipt from the Discloser; is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure; is independently developed without access to any Confidential Information; is required to be disclosed by law, court order, or regulatory authority, provided that the Recipient: (A) gives the Discloser reasonable notice prior to such disclosure; (B) discloses only the minimum amount necessary to comply; and (C) uses reasonable efforts to secure confidential treatment of such information.
  • Upon termination of the Contract or at the Discloser’s request, the Recipient must: return to the Discloser all documents and materials containing, recording, or referring to the Discloser’s Confidential Information; permanently delete or destroy any copies of such documents and materials that cannot be returned; and provide a written certificate to the Discloser confirming compliance with this clause if requested to do so.
  • Notwithstanding clause 9.3, the Recipient may retain: one copy of the Confidential Information for its records and for the purposes of ensuring compliance with the Contract; copies of Confidential Information required to be retained by law or regulatory requirements; and Confidential Information stored in automatic electronic backup systems that cannot be permanently deleted.
• NON-SOLICITATION
  • During the Term and for a period of 12 months commencing on the day the Term ends, the Client must not, directly or indirectly and without the prior written consent of the Company: solicit, entice, or encourage any employee or contractor of the Company to leave their employment or engagement with the Company; employ, engage, or offer to employ or engage any person who was an employee or contractor of the Company at any time during the 12 months preceding the date of such offer or employment; or assist or encourage any other person to do any of the acts referred to in this clause.
• WARRANTIES AND INDEMNITIES
  • The Client acknowledges and agrees that social media engagement, reach, and performance metrics are influenced by numerous factors outside the Company’s control and the success of social media campaigns and SEO services depends on various external factors and there are no guarantees of success whether it be by way of increasing custom to the Client or otherwise.
  • The Client warrants:
    • that it has the legal capacity and authority to enter into the Contract and perform their obligations under it;
    • that all information, documents materials, and instructions it provides to the Company are accurate, complete, and not misleading;
    • that any intellectual property or materials provided by it to the Company for use in connection with the Services do not infringe the intellectual property rights of any third party;
    • that it will comply with all applicable laws, regulations, and industry standards in connection with the Services provided under the Contract;
    • that it will not interfere with or hinder the Company in the performance of its obligations under the Contract;
    • that it has not relied on any representations or warranties not expressly set out in the Contract; and
    • that it has reviewed and approved all content provided by the Company before publication and in doings so that such content aligns with their brand and business objectives and is not defamatory.
  • The Client indemnifies the Company against any loss, damage, or liability arising from:
    • a breach of any warranty provided by the Client under the agreement;
    • any inaccurate, incomplete, or misleading information or materials provided by the Client;
    • the use of intellectual property or materials provided by the Client that infringe the rights of any third party;
    • the Client’s failure to comply with applicable laws, regulations, or industry standards;
    • the misuse of the Services by the Client or their employees, agents, or contractors; or
    • data breaches caused by the Client’s negligence.
  • The Client indemnifies the Company against any claims, demands, or actions brought by third parties arising out of or in connection with:
    • the Client’s use of the Services; or
    • any content or materials created or provided by the Client.
  • The Client indemnifies the Company against:
    • any claims of defamation or reputational damage arising from content approved by the Client for publication;
    • any liability arising from data breaches caused by the Client’s failure to provide secure access credentials or comply with data protection obligations;
    • any claims or losses arising from the unauthorised use of content provided by the Client, including intellectual property infringement;
    • any fines, penalties, or legal costs incurred due to breaches of advertising regulations, such as those under the Australian Consumer Law, caused by the Client’s instructions or materials;
    • any losses resulting from the suspension or termination of access to social media accounts due to actions or omissions of the Client; and
    • any claims brought by third parties (e.g. customers and competitors) arising from content published on social media platforms as per the Client’s instructions or approvals;
• LIMITATION OF LIABILITY
  • Subject to clause 12.2, the Company’s total aggregate liability to the Client: under the Contract; in tort  (including negligence); under statute; or otherwise at law or in equity, is limited to the total amount of Fees paid by the Client to the Company in the 12-month period immediately preceding the event giving rise to the liability.
  • Nothing in the Contract excludes, restricts, or modifies: any rights or remedies available to the Client under the Australian Consumer Law or the Company’s liability for: (A) death or personal injury caused by its negligence; (B) fraud or fraudulent misrepresentation; and any other liability that cannot be excluded by law.
  • To the maximum extent permitted by law, neither party will be liable to the other party for any Consequential Loss.
  • Any claim arising out of or in connection with the Contract must be brought within six (6) months from the date on which the cause of action accrues; otherwise, such claim shall be irrevocably barred.
• DISPUTE RESOLUTION
  • Except where interim or urgent interlocutory relief is sought, prior to the commencement of any legal proceedings, whether in a court or by way of arbitration, the Parties agree to use prompt and diligent efforts to resolve a Dispute in accordance with this clause 13.
  • If a Party considers that a Dispute exists, then that Party must give written notice to each other Party with such notice specifying the detail of the Dispute, including any event, matter or omission that the Party relies on as giving rise to the Dispute.
  • Each of the disputing Parties must meet within ten (10) Business Days of the date of the notice given under clause 13.2 for the purpose of seeking to resolve the Dispute (“Resolution Period 1”), then the disputing Parties may request another informal dispute resolution meeting within ten (10) Business Days after the end of Resolution Period 1 (“Resolution Period 2”).
  • If the Dispute is not resolved by informal dispute resolution as provided under clause 13.3, then the disputing Parties may refer the Dispute to mediation no later than five (5) Business Days after the end of Resolution Period 2.
  • Any Dispute referred to mediation under clause 13.4: must be conducted by a mediator agreed on by the disputing Parties; or if the disputing Parties are unable to agree on a mediator within five (5) Business Days of the date of the referral to mediation under clause 13.4, the mediator is to be appointed by the Institute of Arbitrators & Mediators Australia or the Law Society of the Australian Capital Territory.
  • The role of any mediator is to assist in negotiating a resolution of the Dispute within twenty-one (21) days of their appointment.
  • The disputing Parties will each bear their own costs of any mediation and equally bear the costs and expenses of any mediator appointed under this clause 13.
  • If no Party refers the Dispute to mediation under clause 13.3 and/or the Parties are unable to resolve the Dispute through mediation, then the Parties may commence legal proceedings in respect of the Dispute.
  • The existence of a Dispute does not excuse any Party from performing its respective obligations under the Contract (except those in respect of which the Dispute exists).
  • Failure by a Party to a Dispute to comply with this clause 13 may be pleaded in bar to the continuance of any legal proceedings initiated by that Party until this clause has been complied with except in cases of urgent interlocutory relief.
• TERMINATION
  • Either party may terminate the Contract by giving 30 days’ written notice to the other party subject to the other clauses in this clause 14.
  • Any notice of termination given under this clause 14.1 must specify: the intended date of termination, which must be a date which is the last date in a month and is not a date within the first 3 months of the Term.
  • Either party may terminate the Contract immediately by written notice to the other party if:
    • the other party commits a Material Breach of the Contract which is not capable of remedy;
    • the other party commits a Material Breach of the Contract which is capable of remedy but fails to remedy that breach within 14 days after receiving written notice requiring it to do so;
    • the other party becomes insolvent, bankrupt, enters into voluntary administration, has a receiver appointed to any of its assets, enters into liquidation, makes any arrangement with its creditors, or takes or suffers any similar action in consequence of debt; or
    • the other party ceases or threatens to cease carrying on business.
  • Upon termination or expiry of the Contract:
    • the Company will immediately cease providing the Services;
    • the Client must pay all outstanding Fees for Services rendered and monies owed to the Company up to the date of termination;
    • each party must return or destroy (at the other party’s option) all Confidential Information of the other party in its possession or control;
    • the Company must provide the Client with copies of all Client Materials and data in its possession or control;
    • all licenses granted under the Contract will immediately terminate;
    • each party must cease using the other party’s intellectual property rights.
    • The Client acknowledges that any Fees paid in advance are non-refundable unless otherwise agreed in writing.
• GST
  • If the Company has any liability to pay Goods and Services Tax (“GST”) on the supply of any Services to the Client, the Client must pay to the Company an amount equivalent to the GST liability of the Company at the same time as the consideration is paid for the Services (unless the consideration for that supply is expressed specifically to be GST inclusive).
• General
  • The Company shall not be liable for any failure to perform or delay in provision or performance of the Services due to force majeure including but not limited to strikes, fire, floods, storms, explosions, riots, lock-outs, industrial action, injunctions, interruption of transport, accidents, inability to obtain supplies, war, terrorism, governmental action or any other circumstances beyond the Company’s control.
  • The failure by the Company to enforce any provision of the Contract shall not be treated as a waiver of that provision, nor shall it affect the Company’s right to subsequently enforce that provision.
  • If any provision of the Contract shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
  • The Contract is governed by and are to be interpreted according to the laws in force in the Australian Capital Territory and the parties submit to the non-exclusive jurisdiction of the courts operating in the Australian Capital Territory
  • The Company may vary the Contract (including these T&Cs) from time to time by giving the Client at least 30 days’ written notice.
  • If the Client does not agree to the variation to the Contract notified in accordance with clause 16.5, the Client may terminate the Contract by giving written notice to the Company within 14 days of receiving the Company’s variation notice.
  • If the Client does not terminate the Contract under clause 16.6, the Client is deemed to have accepted the variation contained in the notice provided under clause 16.5.
  • The Client must not assign, transfer, novate or otherwise dispose of any of its rights or obligations under the Contract without the prior written consent of the Company.
  • The Company may assign, transfer, novate or otherwise dispose of any of its rights or obligations under the Contract by giving written notice to the Client.
  • Any notice or other communication under the Contract must be in writing and may be delivered: personally; by prepaid post to the address of the recipient specified in the Quote; by email to the email address regularly used by a party to the Contract when dealing with the other party.
  • A notice or other communication is taken to be received: if delivered personally, at the time of delivery; if sent by prepaid post, on the third Business Day after posting; if sent by email, the following Business Day after the date the email is sent.
  • Nothing in the Contract shall be deemed to constitute a partnership, joint venture, agency or employment relationship between the Parties.