Mega Mind Marketing Services Pty Ltd Terms and Conditions – Digital Products and Services

There are a number of ways we can enter into an Agreement, 

Those can include:

• Where we make contact with you and engage over the phone;
• When you request us to provide Services;

Depending on the Services you request from us, we may also ask you to enter into additional Specific Terms to cover those Services.

Regardless of how we enter into an Agreement, these Terms will apply and will form part of our Agreement. We may amend these Terms and Conditions, its policies or any notices from time to time at its discretion. The Customer will be bound by any amended, revised and or updated Terms and Conditions notified to the Customer from time to time.

You should read the Terms carefully as we are entering into a contract and they create obligations for you and set out what we each agree to do.

1. Your Agreement with Us

(a) These terms and conditions (Terms) apply to the provision of Services by Mega Mind Marketing Services Pty Ltd (ACN 665942003), or a related entity [ Mega Mind Marketing Services Pty Ltd we, us, our], to you as a customer (you, your).

(b) Our Services are designed to improve your online and digital presence, including on social media and these Terms set out what we are each required to do in order to achieve that objective. 

(c) You agree to comply with these Terms when you order or enter into an agreement with us for a Package, or by instructing us to commence any Services (Agreement).

(d) Our Agreement will include:

(i) The Product, Package or Service which you order and we agree to provide;

(ii) These Terms; and

(iii) Any specific terms and conditions relating to a particular Service identified in the Schedule (Specific Terms).

(e) Those documents will constitute our entire Agreement.

(f) If there is an inconsistency between these Terms and the Specific Terms, the Specific Terms will prevail.

(g) You will allow us to run our ad copies and creative assets as tests in an effort to maximise the chances of campaign success. 

2. Defined Terms

These Terms contain defined terms which are capitalised. The meaning which we agree to give those defined terms is set out in the Dictionary. 

3. Supply of Services

(a) These Terms will apply when we enter into an Agreement for a Package or any Services via written proposal.

(b) During the term of the Agreement:

(i) We agree to provide you digital marketing services on a weekly basis 

(ii) Our Agreement will continue on a month to month basis, you may cancel the Agreement at any time by providing 1 months’ written notice, so that the Agreement concludes at the end of the next billing cycle following the provision of notice.

(c) Our Agreement will continue on a similar periodic basis until cancelled by either party in writing. A minimum 1 month notice period is required to cancel any Agreement which will otherwise renew on those terms.

(d) Both parties agree that the proposal may be reviewed as services provided may need amending to increase or decrease services

(e) Our Commitment to You is that:

(i) We will perform the Services to the standard agreed on our proposal and will provide the Services with reasonable skill and care. 

(ii) We will let you know when Services are outside scope and your proposal may need review.

(iii) We will commence providing our Services within 2 weeks of our Agreement of (“the Commencement Date”), or shorter, if agreed.

(iv) We will provide the Services subject to these Terms. 

(v) We will, throughout the Service Period and until the Agreement is cancelled, provide the Services to you. 

(vi) We will ensure that we comply with all statutes, regulations, standards, codes of conduct and any other rules relevant to the provision of the Services. 

(vii) We will use all reasonable endeavours to accommodate any reasonable changes to your proposal as requested by you to our proposal or if we agree for you to upgrade your services with us.

(viii) You will be responsible for our then current Fees, payable as a result of such changes. 

(ix) If we provide you with any personal information or details through the provision of the Services, You agree to handle all of those details in accordance with our Privacy Policy.

(f) Service Limitations

(i) Because the Services rely on the internet and third party providers, continuity cannot be guaranteed. We will use reasonable efforts in providing the Services, however, we can’t warrant or guarantee the Services will be uninterrupted or error free, and we don’t take any responsibility for faults, delays, or interruptions to the Services caused by: 

(A) misuse or user error; 

(B) your software or equipment; 

(C) the delays, action, operation, inaction, or failure of any third party service, software, or equipment; or 

(D) any Force Majeure Event.

(g) We are not liable for any delay or failure to perform our obligations under this Agreement, if such delay or failure is due to termination of access to a Service, by a platform, service or software supplier or as a result of a change to the conditions of that supplier.

(h) Out-of-Scope Services

If you request, we may, at our discretion, provide Out-of-Scope Services. We will inform you of our then current rate for any Out-of-Scope Services you ask us to provide.

(i) Right to Sub-contract:

We may appoint employees, agents, subcontractors or partners to provide all or part of the Services. Those entities will be bound by the same obligations as us.

(j) We may change the terms of this Agreement if we inform you of the change (either in writing or via email) and provide reasonable notice. If you continue to use the Services after receiving reasonable notice you will be deemed to have accepted the change. The period of notice depends on the Service provided to you and the extent of the change. If: 

(i) The change is beneficial to you or has a neutral impact on you, or is required to preserve or safeguard the security or integrity of our systems, we may make the change effective immediately; 

(ii) The change is required to comply with any law or regulation, we will provide at least 1 months’ notice, unless the law comes into effect within that time; 

(iii) For all other changes, including price changes, we will provide you with at least 1 months’ notice. If you do not accept any change, you may cancel the Agreement by providing us with no less than one months’ written notice so that the Agreement concludes at the end of the next billing cycle following the provision of notice. 

4. Service Fees and Payment

(a) All of your service fees are custom tailored for you as set out in your proposal, which may be altered if you want to increase or decrease services with us.

 (b) You authorise us to automatically debit your credit card for all Services you request from us. You must ensure your credit card details are kept up to date and to inform us of any changes. To minimise service disruption due to credit card expirations, you consent to our billing systems automatically attempting to update the expiry date of your credit card when necessary to process payments. 

(c) If your Fees are not paid by the due date, we may suspend the provision of Services to you until such payment is made, including where payment is required in advance of provision of the Services. We may charge you interest on overdue amounts, calculated at the daily rate of 10% per annum.

(d) If we take action to recover any overdue amounts you owe to us, we may also recover our reasonable costs incurred by us in recovering the debt, including legal expenses and debt collection agency charges.

(e) Details of overdue amounts may be disclosed to credit agencies or other parties in accordance with our privacy policy and may result in a credit default listing against you.

(f) We may alter our Fees if we provide you with 1 months’ notice. If you don’t agree you may terminate our Agreement on the provision of 1 months’ notice.

(g) We may use third parties to process payments to us and (if so) any payments will be subject to their terms. 

(h) We will not accept any chargeback fee from your financial institution over any dispute in relation to our Services (Chargeback). If you are dissatisfied with our Services for any reason, you must contact us and attempt to resolve your concern.

(i) Our Fees are always inclusive of GST.

(j) Client Referral Discounts are capped at two referrals per client and are only applicable whilst the referred business remains using our services. 

(k) When signing up as a new business client you will have the option to choose one of the following 2 promotions 1. ‘Improvement Guarantee Promo’ or 2. ‘Two Weeks Free Promo’. You can only choose one promotion upon sign up.

(l) Our improvement guarantee promotion option 1, will give you 3 months worth of management fees back (this is the service fee that you pay us. This does not include any ad spend on any platform) if you do not see any improvement (0.01% or higher) with your paid ads. Improvements include ROAS, reach, results (including impression volume) and brand awareness. To be eligible for this offer you must take all of our advice such as website improvements, upping/lowering budget, turning on/off relevant campaigns and work with us to improve or add unique selling points, sales or offers. 

(m) Two weeks free servicing  promotion option 2 will give you 2 weeks free of any service fees for the services you have signed up for with Mega Mind Marketing. 

5. Your Obligations

What you must do:

(a) You have a responsibility to do the right thing by us. This includes:

(i) promptly giving us clear instructions when we request them;

(ii) pay us and/or third party providers (including Google Ads, Meta)

(iii) protecting our Systems and your systems;

(iv) taking responsibility for things which are under your control; and 

(v) protecting our Intellectual Property.

(b) You agree that in order for us to provide the Services you will: 

(i) give us clear instructions and respond to any questions we have promptly and clearly;

(ii) respond in a timely matter to any requests for content, keyword approval, or other approval requests related to the Services;

(iii) continue to pay all Fees we have agreed; 

(iv) continue to pay all third party service provider’s fees where agreed;

(v) not cease paying the fees set out in 5(b)(iii) or 5(b)(iv) without our agreement, unless you terminate under clause 7.

(vi) provide any Client Materials necessary for us to perform the Services, including files, content, images, logos and marketing material; 

(vii) respond in a timely manner if we bring an issue to your attention in relation to your material, social media accounts or anything else that affects the Services; and

(viii) provide us with all passwords and levels of access to your website and social media accounts as we inform you are necessary to provide the Services. 

(c) You acknowledge that failure to do any of the above may negatively impact our ability to provide the Services.

What you must not do:

(a) You must not use (any part of) the Services for an improper or illegal purpose or for any purpose which may cause disparagement or embarrassment to us. 

(b) You must not authorise others to access the Services (including by way of assignment or sub-licence) without our consent. 

(c) You must not attempt to gain unauthorised access to any materials other than those which you have been given express permission to access or to the computer system on which the Services are hosted.

(d) You must not transmit or input any:

(i) files that may damage any other person’s computing devices or software; 

(ii) content that may be offensive; or 

(iii) material or data in violation of any law (including data or other material protected by copyright or trade secrets which you do not have the right to use).

(e) You must not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services.

(f) You must not provide the Services, any part thereof or information relating thereto to our competitors, nor shall you use the Services or any information obtained from use of the Services in a manner which is contrary to our interests.

Warranties:

(a) You guarantee that you and/or your representatives have all necessary licences and legal right(s) to allow us to provide the Services, and that providing the Services based on your directions won’t contravene applicable laws.

(b) We retain the right (and you authorise us) to remove any Content at any time and without notice. 

(c) You must conduct backups of any of your data (whether hosted on our computer systems or provided to us in connection with the performance of the Services) at reasonable intervals having regard to the nature of the data. We will not be liable to you (or anyone) for damages resulting from loss of your computer files or data due to your failure to backup.

6. Pausing

(a) Subject to clause 7, you may ask us to pause this Agreement for convenience on 1 months’ notice for Services other than Search Engine Optimisation and custom websites, which may be paused on 1 months’ notice at the end of a billing cycle

(b) You must provide reasons why you wish to pause and the date to when you wish to return.

(c) Any decision to approve or deny your pause request will be at our discretion.

(d) Services will not be paused for more than 1 month.

(e) A pause will not be backdated.

(aa) No refund will apply where payment has been made in advance for any service, as a result of any pause of the Services.

(bb) You may terminate this Agreement prior to your pause ending, in accordance with clause 7, if you comply with those terms.

7. Suspension, Default and Termination

(a) Suspension and Force Majeure

(i) If you aren’t meeting your obligations or do something damaging, we may suspend or cancel the Services until resolved.

(b) Your Default and Suspension

(i) We may suspend or cancel our Services if you fail to make payment to us or to third parties (such as Google Ads) when due; you fail to perform your obligations, you are causing damage to us, our employees or property; or you have done something illegal or unethical.

(ii) A Suspension or cancellation of Services under this clause doesn’t affect your obligation to continue to make payments which are due to use and/or any third party. 

(iii) We can also suspend or cancel the Services if you don’t make payment within 10 days of the due date. 

(iv) We will act reasonably in applying any suspension and will lift the suspension when the issue giving rise to the suspension is remedied.

(c) You remain liable for all fees payable to us under this clause (or directly owing to third parties) even if we terminate our Agreement on the provision of notice to you.

(d) Force Majeure

(i) If a party is affected by a Force Majeure Event, they must immediately notify the other party of the circumstances. The parties’ obligations will be suspended for the duration of and to the extent that they are affected by the Force Majeure.

(ii) Either party may terminate our Agreement if the Force Majeure continues for more than 40 days.

(e) Either party can terminate this Agreement for convenience on no less than 1 month’s notice, to take effect at the end of the next billing cycle following the provision of such notice, pursuant to your agreed payment arrangement and/or as outlined in the Specific Terms.

(f) If you wish to close your account, you must give notice in writing to info@megamindmarketing.com.au and you agree to have a meeting with a team leader or manager regarding your cancellation request to resolve any issues and/or finalise your cancellation.

(g) We must both take steps to protect each other’s Intellectual Property.

(h) We will both continue to own our pre-existing material. You will own anything we develop directly for you as part of the Services, but everything which isn’t related just to you is ours.

8. Intellectual Property Rights

(a) Unless otherwise agreed, each party retains ownership of all Intellectual Property rights in all material owned or created by that party independently of this Agreement. None of that Intellectual Property is assigned or transferred by way of this Agreement.

(b) All Intellectual Property Rights subsisting in your Required Information, Required Materials, and in your Background IP shall remain your property. 

(c) You grant to us a limited, non-exclusive, non-transferable, revocable, worldwide licence to use any and all Required Information, Required Materials and any of your Background IP for the purposes of providing the Social Media Marketing Services in accordance with these Terms.

(d) All Intellectual Property Rights subsisting in the Content created specifically and exclusively for you during the term will be owned by us unless otherwise agreed in writing. 

(e) All rights in Developed IP will vest in and be owned by us when created.

(f) You have a non-exclusive, royalty-free, non-transferable licence during the Term to use our Background IP and Developed IP to the extent necessary and for the sole purpose of the performance of the Services. 

(g) We reserve the right to use or adapt any Intellectual Property developed by us pursuant to this Agreement, as well as all data associated with the Services including any Leads. You consent to our use of that Intellectual Property and associated data for any purpose. 

(h) Unless expressly agreed, we will own all rights (including all Intellectual Property Rights) in the data created through use of the Services and are entitled to use the data in the improvement or development of the Services.

(i) We will not use any confidential aspects of the Developed IP or data in projects delivered to other clients. 

(j) You acknowledge that we own all Intellectual Property in the Developed IP and our trademarks. You must not alter, remove or obscure, interfere with or oppose any brand, trademark or copyright symbol or legend or other proprietary mark shown on our products or Services.

(k) We own any Intellectual Property, including material, code, software, creative design, website layouts and methods that we develop which isn’t specifically identified by us as being exclusively developed for your sole use as part of the Services.

9. Third Party Material

(a) We may use third party materials where needed to provide the Services which may include platforms and online services. Use of third party materials may be subject to creative commons or open source licensing terms, or any third party licensing terms as notified by us to you.

(b) You must not sub-license the Developed IP or the Background IP without our written consent.

(c) You must not copy, download, distribute, adapt or modify the Content without our consent and the consent of the supplier.

(d) You are solely responsible for coordinating, conducting and fulfilling any offers promoted in the Content, obtaining any necessary permits, licences and authorities, relating to all offers provided by you. 

10. Warranties

(a) We are not responsible for things which are out of our control or you agree we won’t be responsible for. Our liability for our Services is also subject to the Australian Consumer Law. Unless specifically agreed, we won’t be responsible for any added liability.

(b) You agree to release, indemnify, defend, and hold us harmless (and our Officers, Directors, employees and agents) against any Claim or Liability arising from or in relation to your misuse of the Services, your social media accounts, the acts of anyone you allow to interact with the Services, any loss or damage caused by you, your breach of laws or third party rights (or you causing us to breach same through your instructions) or any breach of warranties under our Agreement.

(c) We do not warrant that the Services will meet your requirements, or that the Services will be uninterrupted, timely, secure or error free, or that they will be free from hackers, virus, denial of service attack or other persons having unauthorised access to our services or those of our suppliers.

(d) We will endeavour to provide you with advance notice of any maintenance downtime, except when circumstances beyond our reasonable control prevent us from doing so.

11. Liability

(a) You acknowledge and agree that we are only liable to you as set out in this clause, or as required by consumer or other laws that cannot be excluded by contract. To the fullest extent allowable at law:

(i) indirect, special, pure economic or Consequential Loss (whether arising under contract or tort and including for loss of data, loss of revenue, loss of profits, and any other kind of economic or commercial loss) are expressly excluded under this Agreement;

(ii) our liability is limited to (at our election):

(A) the amount which you have paid to us for the Services; or;

(B) the amount set out in sub-clause (b).

(b) Our goods and services come with guarantees that cannot be excluded under The Australian Consumer law. For major failures with the Service, you are entitled: 

(i) to cancel your service contract with us; and 

(ii) to a refund of the unused portion or to compensation for its reduced value.

You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract and to obtain a refund for the unused portion. You are entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service. 

(c) You will indemnify us and keep us indemnified from claims that the use of any Required Information, Required Materials or other Client Materials in the course of providing the Services constitutes an infringement of any Intellectual Property Rights belonging to a third party. 

(d) In the event of any claim under sub-clause (c), we will have (and you delegate to us) complete control over the litigation and/or settlement of the action or claim. 

12. Access to Our Systems

(a) You need to maintain privacy and digital security compliance. We will both comply with reasonable obligations regarding information privacy.

(b) You must obtain and use appropriate security measures in connection with the Services, including setting strong passwords, conducting adequate security training and implementing relevant procedures. 

(c) You must keep all login details to access our Systems secure and confidential at all times and must not disclose them to anyone else (except those of your employees who need to know them for the purposes of their employment).

(d) We will not be liable for any loss you incur due to any unauthorised use of your login details.

(e) You must notify us as soon as possible, but within 48 hours if you learn of any security breaches related to the Services. If a breach could constitute a Notifiable Data Breach under Privacy Law, you must notify us within 3 hours of identifying the breach and assist us wherever we require.

(f) It is your responsibility to protect both your systems and our systems from malicious code.

13. General

(a) The laws of New South Wales, Australia apply to our Agreement and the parties submit exclusively to the courts of that jurisdiction.

(b) Relationship between the parties. Nothing in our Agreement constitutes an agency, partnership or contract of employment, or as a guarantee of future employment or engagement. 

(c) The parties’ rights and obligations under clauses 1, 3, 4, 5, 6, 8, 9, 10, 11, 12, 13 and 14  will survive termination.

(d) Any variation or amendment to our Agreement must be in writing signed by all parties.

(e) Each party must do anything (including execute any document) and must ensure that its employees and agents do anything (including execute any document), that the other party may reasonably require to give full effect to our Agreement.

(f) Any delay or failure to enforce any rights in relation to a breach by the other party will not be construed as a waiver of those rights.

(g) Each Party must handle any information received under the Services in line with our privacy policy which may be viewed at [insert]. You must also handle all information you receive in accordance with that policy and the Privacy Act 1988 (Cth).

(h) You agree that we will use third party providers in the provision of the Services and that some of those providers may be based overseas. We will inform you of the identity of those third party providers where relevant and whether it is necessary for you to accept their terms and conditions.

(i) You acknowledge that our third party providers may change their terms and conditions and that we may be bound to accept those changes. Where that occurs, we will endeavour to provide you with reasonable notice, if that will have any effect on the provision of our Services.

(j) You also acknowledge that the social media platforms which we use in providing the Services may change their terms. Where that occurs, we will endeavour to inform you and take reasonable steps to minimise the impact on you.

13.1 Notices and Communication

(a) Notices must be in writing. Either Party may serve any communication on the other Party by sending it to that party’s email address. 

(b) We may assign our Agreement to a related entity or to any entity on restructuring or sale.

13.2 Assignment and Sub-Licensing 

(a) You may not assign, mortgage, charge (otherwise than by floating charge) or sub-licence or otherwise delegate any of your rights, or assign, delegate any of your obligations without our written consent 

13.3 Non-solicitation

(a) During this Agreement and for 12 months afterwards, you must not approach, entice, hire, engage or contract our employees without our express permission. If you do and they join you, or provide services to you, whether directly or indirectly, we may seek damages from you.

13.4 Consents

(a) Where our Agreement states that our consent or approval is required, we will act reasonably but may:

(i) give or withhold that consent or approval in our absolute discretion; and

(ii) give that consent or approval subject to conditions, unless our Agreement expressly states otherwise.

13.5 Operation Of This Document

(a) These Terms contain the entire agreement between us about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this Agreement and has no further effect.

(b) Any provision of this Agreement which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this Agreement enforceable, unless this would materially change the intended effect of this Agreement.

14. Acceptable Use Policy

(a) This Policy applies to you if you use our Services.

(b) You must not use our Services or attempt to use the Services or permit our Services to be used in a way that may result in a breach of applicable law or regulation, including but not limited to:

(i) accessing, downloading or distributing any pornographic or other offensive material which includes but is not limited to material that incites discrimination, violence or hate towards one person or group of persons because of their religion, race, gender or nationality; or which is defamatory or obscene;

(ii) engaging in any potential or actual misleading or deceptive business or marketing behaviour;

(iii) infringing on the rights of a third party including Intellectual Property Rights and moral rights; 

(iv) promoting or providing illegal or unlawful schemes or activities.

(c) You must not use our Services or attempt to use our Services or allow our Services to be used for spamming or malware purposes.

(d) We may monitor your account to assess compliance with our Terms. If we believe that you may have breached these Terms, we may:

(i) notify you of the breach;

(ii) be obliged to provide relevant details to State or Federal authorities;

(iii) suspend or terminate your Services without notice.

(e) You agree that you will not have any claim against us in relation to any action taken under this clause.

15. Dictionary

Acceptable Use Policy means the provisions as set out in clause14.

Agreement means these Terms and any order you place with us. 

Background IP means Intellectual Property rights owned by or licensed to a Party as at the Commencement Date, or acquired or developed by a Party during the term of this Agreement independently of the activities carried out under this Agreement, which that Party has the right to licence to third parties and which are necessary or desirable for the performance of the Services.

Business Day means a day (other than a Saturday or Sunday) upon which banks are ordinarily open for business in Sydney, Australia.

Claim means any claim notice, demand, investigation, action, proceeding, litigation, or judgement however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort (including negligence) or statute and whether involving a Party to this Agreement or third party.

Client Materials means any data, materials, and Intellectual Property that you must provide to us in order for us to provide the Services and includes any materials we request from you from time to time.

Confidential Information means all spoken, written or electronically stored information belonging to or relating to either Party and includes without limitation: any kind of technical, financial or business information; details of employees, suppliers, or customers; material developed under this Agreement; and Intellectual Property, concepts, know-how and trade secrets, but excludes information in the public domain (other than by default under this Agreement) or information independently known to the other Party.

Consequential Loss includes, without limitation: data loss; loss of opportunity, loss of anticipated profits or savings, expenses incurred through default or breach, wasted overheads, loss of contract, loss of business, loss of production, loss of use, loss of goodwill, and all other pure economic loss; and disappointment, distress, stress, and inconvenience.

Content means content developed by a Party pursuant to this Agreement.

Developed IP means all Intellectual Property created, conceived, developed or reduced to practise in the course of the performance of the Services, including Content.

Dictionary means this dictionary containing defined terms.

Fees means our fee for the Services we provide to you, as set out in clause 4 and as otherwise requested by you including any add-ons or additional services without limitation will include all Management Fees.

Force Majeure Event means an unforeseen event beyond the control of the affected Party, including an act of god, war, terrorism, riot, vandalism, hacking, cyber ransom, industrial action, or law or actions of any government or governmental agency.GST has the meaning given in the GST Act;

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth);

GST Law has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth), or, if that Act does not exist, means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia and any regulation made under that Act.

Indemnified Officers means, in relation to a party, its directors, employees, contractors, agents and representatives.

Insolvency Event in relation to a party means any of the following, the party:

• enters into a scheme of arrangement with its creditors;
• is wound up or dissolved, or an administrator, liquidator or receiver is appointed; or
• is placed under official management, commits an act of bankruptcy or is charged with a criminal offence.

Intellectual Property means all intellectual property rights, patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, source and object code, products, programs, technology, hardware, data, database rights, rights in confidential information (including know-how, trade secrets and marketing secrets), improvements, machines, techniques, methods, and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world. 

Intellectual Property Rights means:

(a) any and all rights in any patents, trade marks, service marks, registered designs, applications (and rights to apply for any of those rights), trade, business and company names, internet domain names and email addresses, unregistered trademarks and service marks, copyrights, database rights, know-how, rights in designs and inventions;

(b) rights under licences, consents, orders, statutes or otherwise in relation to a right in paragraph (a); rights of the same or similar effect or nature as or to those in paragraphs (a) and (b) which now or in the future may subsist; and

(c) the right to sue for past infringements of any of the foregoing rights;

Lead means a person that contacts either us or you as a consequence of the Services.

Liability means any liability (whether actual or prospective), loss, damage, cost or expense of any description, including legal fees on a solicitor and own client basis.

Notice of Default means a written notice that:

• states that it is a notice of default;
• specifies the default with sufficient detail and particulars; and 
• gives a reasonable deadline by which the default must be remedied, of not less than 5 Business Days.

Out-of-Scope Services means all services not specified as Services. 

Package means the package/s specified in the Schedule.

Product means a Package, service or combination of those provided in a separate offering or as a product.

Required Information means information concerning you and your and business activities required by us in order to provide the Services, which may include but is not limited to, Logos, background, methods of working, advertising aims; 

Required Materials means materials, including but not limited to Photographs, Video, Quotes, Sales materials, technical specifications, required by us in order to provide the Services; 

Services means services that you request, order or purchase under our Agreement, and includes the delivery of the Packages specified in the Schedule. 

Services means the specific services you have requested which are provided by us, including but not limited to:

(a) Google Ads Management

(b) Microsoft Ads Management

(c) Social Media Management

(d) Social Engagement 

(e) Search Engine Optimisation

(f) Custom websites

(g) Hosting

(h) eCommerce

(i) Custom Websites

(j) Video Animation

(k) Graphic Design 

(l) Email Marketing 

(m) Website content creation 

Social Media Content means any and all content, including but not limited to Posts, Tweets, Chats, Blogs, created by us for publication on social media in the course of providing the Services under this Agreement; and 

Systems means our information technology infrastructure systems used to provide the Services.

System or Platform means the system that forms part of our Background IP and which may be used by us to host, publish or distribute Content.

Terms or Terms and Conditions means the terms and conditions contained in this Agreement

You or your means the Party who has entered into our Agreement for the provision of the Services.

16. Liability Waiver (for Search Engine Optimisation and Digital Marketing Services)

(a) You agree that you have provided us with access to your website for the purposes of providing Search Engine Optimisation and digital marketing services to you. 

(b) You acknowledge that we require access to your website hosting or control panel to provide the SEO and digital marketing services.

(c) You undertake to obtain the relevant file transfer protocol (FTP) login details from the third-party that hosts your website and provide these details to us prior to accessing your website for the purpose of providing SEO and digital marketing services to you.

(d) You acknowledge that where it is unable to provide the login details for your website to us, that we may not be able to perform digital marketing services on your website without the risk of the website becoming corrupted in the process. All fees and cost in regards to your service will continue to be billed whilst we await the correct login details, unless you have otherwise requested to pause the service as per our pause policies outlined in Section 6 of this agreement. 

(e) You acknowledge this risk and in the event your website becomes corrupted, the website may not be able to be restored by us without the required FTP login details being provided to us. 

(f) Notwithstanding the above risk as stated in clause 16(e), you agree for us to access your website to provide SEO and digital marketing services.

(g) You hereby waive your rights to hold us liable for any direct or indirect losses, claims, costs, damages or expenses of yours, including any loss of revenue and consequential damages caused or contributed to by such corruption to your website. 

(h) In order to mitigate the risk of your website becoming corrupted, you agree and undertake to maintain backup versions of your website to guard against losses of any kind.

17. Specific Terms for Digital Products and Services 

17.1 Access Authority

(a) You are engaging us to manage, market or otherwise be a direct part of your social media presence – so we need to be empowered to do just that.

(b) Where we require access to your accounts, social media or anything else under your direction or control to perform the Services (or to do anything else under this Agreement), it is your responsibility to arrange access and ensure we have everything we need.

(c) You acknowledge that we may require you to pay various expenses, including anticipated expenses, such as hosting costs, where those costs are notified to you.

(d) You are responsible for payment of any Advertising Spend, which will be at your discretion. 

(e) You acknowledge that you are responsible to obtain any licence or permit required in connection with the Services, including to advertise in relation to your industry or work type.

17.2 Specific Services

Our Services are identified in each package set out in the Schedule.

17.3 Posts and Content

We may generate and author Content for the various social media profiles and sites we manage as part of the Services. Unless stated otherwise, the amount, nature, subject matter and all other aspects of the Content will vary from time to time and be generated based on what we believe best suits your needs.

17.4 Approval

Unless you have asked us to do otherwise, we will submit to you all posts/Content scheduled for publication with time for you to review. This will be 2 working days for keywords and 3 working days for content. After this time, keywords and content will be automatically published.

17.5 Discretion

As we operate in a dynamic environment, it may be necessary for us to change, or adapt the way we provide the Services and interact with social media platforms. We will inform you of any major changes and if you don’t agree you will have the ability to terminate our Agreement on 30 days’ notice.

17.6 Payments and Spend

While we provide the Services on your social media accounts, you are the ultimate controller of those accounts. You must ensure that your social media accounts have active payment credentials, are appropriately funded and have no issues which may impede our ability to provide the Services. We will not charge any commission on advertising spend.

17.7 Issues

Where there are account-related issues with your social media profiles, you must deal with those yourself, unless we agree to help. This includes where your accounts are restricted or affected by administrative decisions.

17.8 Public Engagement

The Services are consumer facing and other users will often interact with Content we post on your social media accounts. Engaging with others is a critical part of providing the Services. Accordingly, you:

(a) agree that we may engage with third party users as part of the Services;

(b) authorise us to comment, post and otherwise converse with users on your social media accounts; and

(c) release us from any and all Liability in relation to anything identified in this clause.

17.9 Acknowledgements

You acknowledge that:

(a) you may not get the same return on Advertising Spend results as others;

(b) platform operators may change rules, algorithms and processes without warning or consultation. Accordingly, we make no guarantee that we will continue to generate the same results after any such change.

18. Account Management

In this section, Account shall mean as the case may be, one or more of Google Ads account; Microsoft Ads account; Facebook Business Manager accounts, SEO accounts (including Facebook and/or Instagram accounts or ads) being the Services which we have agreed to provide.

You allow us to manage your Account that you and/or we have established with the nominated third party platform (being Google, Microsoft, Facebook, Instagram or such other provider as determined), on your behalf. Through our set-up and management of your account, we will use our reasonable efforts to optimise and maximise advertising for your benefit.

Specific Terms:

(a) You agree to give us permission to access your Account on your behalf.  You remain the owner of your Account and are responsible for complying with the provider’s terms and conditions for your Account.

(b) You agree that we are not responsible to pay the provider any fees whatsoever, including but not limited to, any set-up and ongoing fees for your Account.  This is your responsibility.  In particular, you are responsible for paying the provider directly for any ‘per click’ advertising fees.

(c) We do not accept any liability for “disapproved” Ads.  In addition, we do not accept any liability for your Ads being stopped or turned off by the provider. We furthermore do not accept any liability for any of your actions with respect to your Ads account, including but not limited to breaches relating to intellectual property (copyright, trademarks and patents).  

(d) On cancellation or pausing of your Services, we are not responsible or liable for any fees charged by the provider for your Ads.  In particular, on cancellation of your Services, the ability to activate or deactivate Ads is solely your responsibility and we do not accept any liability for any charges from the provider.

(e) You agree that we do not guarantee any specific results and acknowledge that results achieved by one person may differ from another.

(f) Our Fees, including the management fee will remain payable even if you pause your Account or Ads. If we have agreed to temporarily suspend/pause or stop our services, we will endeavour to assist you in suspending payments to third parties, but it is not our responsibility to manage your Account and pause your Ads and no refunds will be granted if such pausing does not occur.

(g) Your Ads campaigns must also be suspended/paused, should you wish to temporarily pause/suspend our management of your Accounts.

(h) For Facebook and Instagram, you are responsible for uploading any non-paid content to your Accounts, as well as monitoring your Accounts.

(i) You agree that we are not liable for any privacy breaches while we are managing your Accounts. We do not accept any liability for the content uploaded to your Accounts.

Payment Arrangements and Billing Cycle:

(j) Billing cycle will commence weekly 

(k) Any initial set-up fee must be paid in advance of us commencing work or providing our Services.

(l) Ongoing Fees are payable in advance, unless agreed otherwise.

(m) The ongoing Management Fee for your Google Ads advertising account will be charged on the date of sign up.

(n) The ongoing Management Fee for your Google Ads advertising account will be billed monthly in advance (on the same date each month) with the payment method used upon signing up for our Services.

19. Social Engage

You allow us to manage your Facebook Business Manager accounts that you have established with Facebook, on your behalf. Through our management of your Facebook Ads Manager and Facebook Business accounts, we will use our reasonable efforts to establish your social presence on the internet.

Specific Terms:

(a) You agree to give us permission to access your Facebook Business Manager accounts on your behalf.  You remain the owner of your Facebook Business Manager accounts and are responsible for Facebook’s terms and conditions for your Accounts.

(b) We do not accept any liability for your Facebook pages being stopped or turned off by Facebook. We furthermore do not accept any liability for any of your actions with respect to your Facebook accounts, including but not limited to breaches relating to intellectual property (copyright, trademarks and patents).

(c) This Service includes a specific maximum limit of money for Facebook ‘per click’ advertising per month. Once that maximum limit of money is used, we will not continue with the ‘per click’ advertising for that particular month.

(d) We are not liable for any privacy breaches while we are managing your Facebook and/or Instagram accounts. We do not accept any liability for the Content uploaded to your Facebook and/or Instagram accounts.

(e) We retain ownership and title to your data that is managed by us for this Service.

(f) We may use a 3rd party branding platform provider to facilitate this Service.

(g) This Product/Service is not able to be paused at any point in time and you agree to pay the Fee for the Service for the full term of the Agreement.

(h) We do not guarantee any specific results.

(i) You are responsible for uploading any non-paid content to your Facebook and/or Instagram accounts, as well as monitoring your accounts.

Payment Arrangements and Billing Cycle:

(j) You acknowledge that the provision of these Services is dynamic and that:

(k) You will comply with our payment terms as set out on our website for these Services.

(l) Ongoing Fees are payable in advance unless otherwise agreed in writing.

(m) The ongoing Management Fee for your Social Engage Social Traffic accounts will be charged in advance for the corresponding period of entry into this Agreement.

(n) Our Fees, including the management fee, will remain payable even if you pause your Facebook and/or Instagram Ads. If we agree to temporarily suspend/pause or stop our Services, it is not our responsibility to manage or pause your Facebook and/or Instagram account.

(o) Your Facebook and/or Instagram Ads must also be suspended/paused, should you wish to temporarily pause/suspend our management of your Facebook and/or Instagram accounts.

20 Search Engine Optimisation (SEO)

You allow us to make changes to your website to optimise your search engine results.

Specific Terms:

(a) You agree to give us permission to make changes to your website to optimise search engine results.

(b) You agree that we do not guarantee any increases in traffic to your website or ranking positions.  You understand that we will use our reasonable endeavours to facilitate the increase in traffic to your website, however, we are not liable for any results due to circumstances beyond our control such as where search engines change their search algorithms which in turn will impact the effectiveness of search engine optimisation.

Payment Arrangements and Billing Cycle:

You agree that the provision of these Services is dynamic and that:

(c) You will comply with our payment terms as set out on our agreement/proposal for these Services.

(d) Ongoing Fees are payable in advance, unless agreed otherwise.

21. Landing Pages 

We can create and customise an optimised landing page to receive leads using the pay per click process.

Specific Terms:

(a) You provide us with implied approval to create the Landing Page as an optimised landing page.  You agree that we do not guarantee any results.  

(b) Landing Pages remain our property at all times while services are being provided to you and after cancellation of such services.

(c) You acknowledge that while we make every effort to ensure the consistent operation of your Converto page, if a technical difficulty arises that is beyond our control, we do not accept any liability for any loss that may occur during Converto page downtime including, but not limited to, Google Ads costs and loss of conversion revenue. 

(d) We are not liable for any intellectual property infringements, including but not limited to trademarks, copyrights and patents.

Payment Arrangements and Billing Cycle:

You agree that the provision of these Services is dynamic and that:

(e) You will comply with our payment terms set out on our contract/proposal. 

(f) Ongoing fees are payable at the start of each renewal cycle and will be due weekly in advance unless otherwise agreed in writing.

(g) The ongoing Management Fee for your Landing Pages account will be charged on the date of sign up. The Management Fee will be charged in advance at the start of each renewal cycle and will be due in advance unless otherwise agreed in writing. We reserve the right to charge the Management Fee in advance at any time by email notice to you a reasonable time before the change occurs. If you do not accept any change in the Management Fee, you may terminate Our Agreement in accordance with clause 7.

22. Custom Websites

The creation and customisation of Custom Websites, including ongoing management of this service.

Specific Terms:

(a) You agree to us creating, customising, hosting and managing a website for you.  This process includes using a number of pre-populated template pages and customising these pages for your benefit.  Ongoing management (hosting) of the website is included in this service.

(b) You acknowledge that while we make every effort to ensure the consistent operation of your website, if a technical difficulty arises that is beyond our control, we do not accept any liability for any loss that may occur during website page downtime including, but not limited to, Google Ads costs and loss of conversion revenue.

(c) If you do not provide adequate Content or point to an existing website or other source of materials, we may proceed to build the Website utilising category specific pre-produced photos from our Content Library, which may be customised based on the details provided by you (e.g. contact details, description of your business and other relevant information).

(d) Custom websites remain our property at all times while services are being provided to you and after cancellation of such services.

Payment Arrangements and Billing Cycle:

(e) You will comply with our payment terms set out on our contract/proposal 

(f)  A set-up fee and ongoing management fee is payable for this service.

(g) Ongoing fees are payable monthly in advance.

(h) The ongoing Monthly Management Fee for your DIFM account will be charged monthly in advance, unless agreed in writing.

23. eCommerce

(a) The Service includes either:

(i) the building and customisation of a Website for you (including populating with content and product data) and ongoing support of the Website (with all fees to be paid on a monthly basis in advance); or

(ii) the setup of ecommerce functionality (including populating with product data) and integration into your existing Website platform (with all fees to be paid on a monthly basis in advance).

(b) The building and customisation of the Website includes the following:

(i) design based on inputs and instructions delivered by you via phone and email.

(ii) adding (including re-formatting and resizing) 

(A) (any logo provided by you (or creating a simple type based alternative), or 

(B) images provided by you;

(iii) adding copy provided by you, or writing unique copy based on inputs from you;

(iv) changing the design and layout or functionality of any page or the skin (i.e. colour and fonts) based on your review;

(v) editing the search engine optimisation meta-data used to optimise the Website for search engines;

(vi) Inserting product data and setting up checkout functionality;

(vii) integrating any supported social media and video assets you request

(viii) Optional add-ons to add further components or functionality to your Website can also be purchased subject to additional fees. When you purchase add-ons, they will automatically renew on a monthly basis (unless specified otherwise) until they are cancelled by you or the Service is terminated.

(ix) Payment Arrangements and Billing Cycle:

(x) You will comply with our payment terms set out on our contract/proposal 

(xi) The ongoing weekly Management Fee will be charged monthly in advance unless otherwise agreed in writing.

24. Hosting Services

(a) Means providing web hosting services with internet access and which includes electronic mail.

(b) A separate Agreement with terms and conditions and pricing for Hosting Services is required to be signed by You.

(c) You acknowledge that while we make every effort to ensure the consistent operation of Hosting Services, if a technical difficulty arises that is beyond our control, we do not accept any liability for any loss that may occur during Hosting Services downtime including, but not limited to, Google Ads costs and loss of conversion revenue.

25. Custom Website

A separate Agreement with terms and conditions and pricing for Custom Websites is required to be signed by You.

26. Video Animation

A separate Agreement with terms and conditions and pricing for Video Animation Services is required to be signed by You.

27. Separate Agreements

Where we require you to enter into a separate agreement with us for the provision of any Services, you:

(a) will continue to be bound by these Terms for the Services agreed herein. 

(b) These Terms will also apply to the Services identified in separate Agreements.

(c) Where there is any inconsistency, the terms of the separate Agreement will prevail over these Terms.