1.1 In consideration of your payment of the Price, we will provide the Services in accordance with this Agreement, whether ourselves or through our Personnel.
1.2 If this Agreement expresses a time within which the Services are to be supplied, we will use reasonable endeavours to provide the Services by such time, but you agree that such time is an estimate only.
1.3 You acknowledge and agree that any information, advice, material or work provided by us as part of the Services does not constitute legal, financial, due diligence or risk management advice.
1.4 All variations to the Services must be agreed in writing between the Parties and will be priced in accordance with any schedule of rates provided by us, or otherwise as reasonably agreed between the Parties. If we consider that any instructions or directions from you constitute a variation to the scope of the Services or our obligations under this Agreement, then we will not be obliged to comply with such instructions or directions unless agreed in accordance with this clause.
1.5 Notwithstanding clause 1.4, you agree that we may vary the Services or the Price at any time, by providing 14 days’ written notice to you (Variation Notice Period). If we seek to increase the Price without changing the Services, we agree that such Price increase shall be in proportion to the Australian Bureau of Statistics Consumer Price Index (CPI) increases for the 12-month period preceding the Price increase. If you do not agree to any amendment made to the Services or Price, you may, before the end of the Variation Notice Period, terminate this Agreement by giving us 14 days’ notice in writing, in which case, the proposed variation will not come into effect and clause 14.4 will apply.
2.,1 You agree to (and to the extent applicable, ensure that your Personnel agree to):
a. comply with this Agreement, all applicable Laws, and our reasonable requests;
b. provide us with all documentation, information, instructions, cooperation and access reasonably necessary to enable us to provide the Services;
c. not (or not attempt to) disclose, or provide access to, the Services to third parties without our prior written consent; and
d. promptly respond to our questions and requests and provide us with any approvals required in a timely manner;
not do anything to interfere with the Services.
e. You agree to pay our additional costs reasonably incurred as a result of you failing to comply with this clause 2.1.
2.2 You agree to pay our additional costs reasonably incurred as a result of you failing to comply with this clause 2.1.
Credentials
2.3 You must provide us with access to the relevant accounts on third party platforms (such as Facebook and Google) that you wish for us to manage (Accounts), including the login details, passwords and other the credentials (Credentials) as required by us to perform the Services.
2. 4 You authorise us to use the Credentials to access the relevant Accounts and perform the Services.
2.5 Upon termination or expiry of this Agreement, we recommend you change your Credentials in order to ensure that your security is not compromised.
3.1 During the Term, you may request us to supply Additional Services by notifying us in writing or by any other process we specify (Order Request)
3.2 If we accept the Order Request, we will issue confirmation of your Order Request and it will become a binding Order.
3.3 Each Order is subject to, and will be governed by, this Agreement and any other conditions expressly set out in the Order. To the extent of any ambiguity or discrepancy between an Order and this Agreement, the terms of the Agreement will prevail.
4.1 In consideration for us providing the Services, you agree to pay all amounts due under this Agreement in accordance with the Payment Terms.
4.2 If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion, and without prejudice to any of our rights or remedies under this Agreement or at Law):
a. after a period of 5 Business Days from the relevant due date, cease providing the Services, and recover, as a debt due and immediately payable from you, our reasonable additional costs of doing so (including all recovery costs); and/or
b. charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the relevant due date in accordance with the Payment Terms.
c. When applicable, GST payable will be clearly shown on our invoices. You agree to pay us an amount equivalent to the GST imposed on these charges. “GST” has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
4.3 When applicable, GST payable will be clearly shown on our invoices. You agree to pay us an amount equivalent to the GST imposed on these charges. “GST” has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Direct Debit and Transaction Fees
4.4 You agree to pay us the Price, and any other amounts payable to us under this Agreement, without set-off or delay, via direct debit from your bank account or credit card through our payment processor, Stripe.
4.5 If required, you agree to complete a direct debit request form and/or direct debit request service agreement, which may be provided by us or by a third-party provider on our behalf.
4.6 If applicable, you expressly consent to, authorise, and instruct us to deduct the Price from your nominated account as an automatic payment in accordance with the dates as set out in the Schedule (Billing Dates) until the expiry or termination of this Agreement.
4.7 We are not responsible for any payments processed by a third-party payment processor.
4.8 You must ensure your chosen payment method has sufficient funds to pay the Price on the Billing Dates.
4.9 If after two attempts of deducting the Price from your nominated account we are unable to deduct the Price, you may be charged a late fee.
5.1 Both Parties agree to keep proper financial and other records of account in connection with this Agreement, including, but not limited to:
a. Financial, account, and billing information to enable us to determine any amounts that may be payable under this Agreement; and
b. All information in relation to the total revenue obtained by you through the AI Conversion System (Records).
5.2 You agree to provide us with a copy of any Records, at the times and in the manner as may be reasonably requested by us.
5.3 If you fail to comply with clause 6.2, you grant us the right to inspect your Records, solely to the extent reasonably necessary to enable us to assess your compliance with your obligations under this Agreement and the accuracy of any Lead Revenue reports.
5.4 Should any audit or inspection show that we have not received any part of the Price or other amounts that are or would otherwise be due and payable under this Agreement, you agree to pay us:
a. The balance of the Price outstanding and any other amounts due and payable; and
b. Any costs associated with the inspection or audit, as a debt due and immediately payable.
6.1 Each Party represents and warrants that:
a. It has full legal capacity, right, authority, and power to enter into this Agreement, to perform its obligations under this Agreement, and to carry on its business; and
b. This Agreement constitutes a legal, valid, and binding agreement, enforceable in accordance with its terms.
6.2 You represent and warrant that:
a. All information and documentation that you provide to us in connection with this Agreement is true, correct, and complete;
b. In your use of the Services, you will not breach, or cause us or our Personnel to be in breach of, any third-party rights (including Intellectual Property Rights and Privacy Rights);
c. You must obtain (and where necessary, provide us with) all necessary consents, approvals, licences, and permissions necessary to enable us to provide the Services;
d. You will implement appropriate and reasonable technical and organisational security measures to keep your data secure;
e. You are responsible for the integrity of your Facebook Ads Account;
f. You must not use, and you must ensure that no person uses, any part of the Services:
1. To break any Law or infringe any person’s rights (including Intellectual Property Rights);
2. To transmit, publish, or communicate material that is defamatory, offensive, abusive, indecent, menacing, or unwanted; or
3. In any way that damages, interferes with, or interrupts the supply of the Services.
6.3 You agree that you will complete all assigned tasks to you (for example the completion of market research form, filming of footage, providing access to required systems, reviewing our content development for you, etc) within 3 days (including weekends) of them being communicated to you, either through Slack, email, conversation in person or over the phone, or via mail.
(a) If you cannot complete the task in the timeframe you agree to notify and request for an extension which may be granted at our discretion.
(b) Only 2 extensions may be requested per task.
(c) Where you breach the timeframe, you waive your right to have our Monthly Service fee waived for when we do not achieve the results we have agreed upon in the agreement allowing us to charge the full monthly fee.
6.4 You understand and agree that you are solely responsible for the integrity of your marketing Accounts, including your Facebook Ads Account. Except where directly caused by our gross negligence or wilful misconduct, we will not be liable should a third-party provider ban your marketing Account.
7.1 You understand and agree that we make no guarantee that our Services or the Deliverables will result in any increase in your business revenue.
7.2 You acknowledge and agree that:
(a) the Services, including the Marketing System, may interact with, or be reliant on, certain Third Party Services;
(b) we do not make any warranty or representation in respect of any Third Party Services; and
(c) to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from, or connected with any Third Party Services.
8.1 As between the Parties:
(a) we own all Intellectual Property Rights in Our Materials;
(b) you own all Intellectual Property Rights in Your Materials; and
(c) nothing in this Agreement constitutes a transfer or assignment of any Intellectual Property Rights in Our Materials or Your Materials.
8.2 As between the Parties, ownership of all Intellectual Property Rights in any New Materials will at all times vest, or remain vested, in us upon creation. To the extent that ownership of such Intellectual Property Rights in any New Materials does not automatically vest in us, you hereby assign all such Intellectual Property Rights to us and agree to do all other things necessary to assure our title in such rights.
8.3 We grant you a non-exclusive, revocable, royalty-free, worldwide, non-sublicensable and non-transferable right and licence, to use Our Materials that we provide to you and the New Materials, solely for your use and enjoyment of the Services, as contemplated by this Agreement.
8.4 You grant us a non-exclusive, irrevocable, royalty-free, worldwide, non-sublicensable (other than to our related bodies corporate, as that term is defined in the Corporations Act 2001 (Cth)) and non-transferable right and licence to use Your Materials that you provide to us solely for the purpose of performing our obligations or exercising our rights under this Agreement.
8.5 If you (if you are an individual) or any of your Personnel have any Moral Rights in any material provided, used or prepared in connection with this Agreement, you agree to (and will procure that your Personnel) consent to our use or infringement of those Moral Rights.
8.6 We own all intellectual property rights in our Services. This includes how our copyrighted works, trademarks, inventions, designs and other intellectual property. You agree not to copy or otherwise misuse our intellectual property without our written permission (for example, to reverse engineer or discover the source code of our intellectual property), and you must not alter or remove any confidentiality, copyright or other ownership notice placed on the New Materials and Assigned Deliverables.
9.1 Ownership of all Intellectual Property Rights in the Assigned Deliverables will vest in us upon creation. We grant you a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence to use the Assigned Deliverables solely for the purpose of assessing its compliance with this Agreement.
9.2 Upon payment in full of the Price, ownership of all Intellectual Property Rights in the Assigned Deliverables will vest in you.
9.3 You grant us a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence to use the Assigned Deliverables solely for the purposes for which it was developed and for the performance of our obligations under this Agreement, including any other purpose that we deem necessary for the improvement of the Business.
10.1 Subject to clause 11.2, each Party must (and must ensure that its Personnel) keep confidential, and not use (except to perform its obligations under this Agreement) or permit any unauthorised use of, information provided by the other Party, including information about this Agreement and the other Party’s business and operations.
10.2 Clause 11.1 does not apply where the disclosure is required by Law or the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that the disclosing Party ensures the adviser complies with the terms of clause 11.1.
11.1 Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees, and remedies relating to the supply of the Services by us to you which cannot be excluded, restricted, or modified (Consumer Law Rights). To the extent that you maintain Consumer Law Rights at Law, nothing in this Agreement excludes those Consumer Law Rights.
11.2 Our services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
(a) to cancel your service contract with us; and
(b) to a refund for the unused portion, or to compensation for its reduced value.
11.3 You are also entitled to be compensated for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure, you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract.
11.4 Subject to your Consumer Law Rights, we provide all material, work, and services (including the Services) to you without conditions or warranties of any kind, implied or otherwise, whether in statute, at Law, or on any other basis, except where expressly set out in this Agreement.
Change of mind refunds
11.5 We may provide change of mind refunds, at our sole discretion. In order to request a change of mind refund, you must, as reasonably determined by us (where applicable):
(a) have operated the AI Conversion System for at least 80 days after the launch date of the AI Conversion System with it completely integrated in your business;
(b) have acted and tested all our recommendations as advised by us, in accordance with our instructions, for at least 45 days;
(c) have a proven offer that sells profitably and in reasonable quantity;
(d) have a basic marketing infrastructure which includes a good quality website, social media with daily posts, active blog with quality SEO, and have followed our instructions to upgrade such systems if such instructions were provided;
(e) have good Google reviews;
(f) be able to show that you have a good track record of fulfilling orders with satisfied customers; and
(g) have a reasonable advertising budget available which is more than $4,000 (excl. GST) per month.
12.1 Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with:
(a) you (or your Personnel) breaching, or causing us or any of our Personnel to be in breach of, any third party's rights (including Intellectual Property Rights); or
(b) you (or your Personnel) breaching any privacy or confidentiality obligation under this Agreement, or any applicable law;
(c) any works, services, goods, materials or items which do not form part of the Services (as expressed in this Agreement), or which have not been provided by us;
(d) any Third Party Services; and
(e) any delay or failure by you or any of your Personnel to provide any relevant approvals, or to provide any information or documentation necessary to allow us to provide the Services.
12.2 Despite anything to the contrary but subject to your Consumer Law Rights, to the maximum extent permitted by Law:
(a) neither Party will be liable for Consequential Loss;
(b) a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and
(c) (where our Services are not ordinarily acquired for personal, domestic or household use or consumption) in respect of any failure by us to comply with relevant Consumer Law Rights, our Liability is limited (at our discretion) to supplying the Services again or paying the cost of having the Services supplied again; and
(d) our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to the Price paid by you to us in respect of the supply of the relevant Services to which the Liability relates.
13.1 This Agreement will operate for the Term.
13.2 Either Party may terminate this Agreement at any time by giving 14 days’ notice in writing to the other Party.
13.3 This Agreement will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:
(a) the other Party (Defaulting Party) breaches a material term of this Agreement and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
(b) the Defaulting Party goes bankrupt, insolvent or is otherwise unable to pay its debts as they fall due.
13.4 Upon expiry or termination of this Agreement:
(a) without limiting and subject to your Consumer Law Rights, any payments made by you to us for Services already performed are not refundable to you;
(b) you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under this Agreement;
(c) by us pursuant to clause 14.3, you also agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including recovery fees); and
(d) we may retain your documents and information (including copies) to the extent required by Law or pursuant to any information technology back-up procedure, provided that we handle your information in accordance with clause 10.
13.5 Unless otherwise agreed between the Parties, if this Agreement is terminated:
(a) by us, then any current Order will also terminate on the date of termination and we will immediately cease providing the Services; or
(b) by you, then any outstanding Orders will continue in accordance with the terms of the Order (and this Agreement) until such time as the Order is complete or the Order is otherwise terminated in accordance with its terms.
13.6 Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.
14.1 Amendment: Subject to clauses 1.4 and 1.5, this Agreement may only be amended by written instrument executed by the Parties.
14.2 Assignment: Subject to clauses 15.3 and 15.11, a Party must not assign, novate, or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
14.3 Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with this Agreement, to a debt collector, debt collection agency, or other third party.
14.4 Disputes: A Party may not commence court proceedings relating to any dispute arising from, or in connection with, this Agreement (Dispute) without first meeting a representative of the other Party within 10 Business Days of notifying that other Party of the Dispute. If the Parties cannot resolve the Dispute at that meeting, either Party may refer the Dispute to mediation administered by the Australian Disputes Centre.
(a) Payment Disputes: A Party may not lodge a payment dispute with their bank or credit provider without first submitting a Letter of Dispute to the Businesses address at 81-83 Campbell Street Surry Hills, Sydney, New South Wales, 2010, Australia via mail and allow for no less than 35 business days for a response by the Business. The response may be to the email or address on file for the Party. The Letter of Dispute must outline the facts of the situation that has led to a Payment Dispute. The Letter of Dispute must also be authorised by a Lawyer or Accountant who is other then the Party themselves in order to verify the validity of the Dispute, this is to negate false or misleading information or otherwise fraudulent Letters of Demand.
14.5 Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under this Agreement if such delay or failure is caused or contributed to by a Force Majeure Event, provided that the Party seeking to rely on the benefit of this clause:
(a) as soon as reasonably practical, notifies the other Party in writing details of the Force Majeure Event, and the extent to which it is unable to perform its obligations; and
(b) uses reasonable endeavours to minimise the duration and adverse consequences of the Force Majeure Event. Where the Force Majeure Event prevents a Party from performing a material obligation under this Agreement for a period in excess of 60 days, then the other Party may by notice terminate this Agreement, which will be effective immediately, unless otherwise stated in the notice. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under this Agreement.
14.6 Governing Law: This Agreement is governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
14.7 Notices: Any notice given under this Agreement must be in writing addressed to the addresses set out in this Agreement, or the relevant address last notified by the recipient to the Parties in accordance with this clause. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
14.8 Privacy: Each Party agrees to comply with the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth), as if it were an ‘APP entity,’ and any other applicable Laws relating to privacy.
14.9 Publicity: Despite clause 10, with your prior written consent, you agree that we may advertise or publicise the broad nature of our supply of the Services to you, including on our website or in our promotional material.
14.10 Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment, or agency relationship between the Parties.
14.11 Subcontracting: We may subcontract the provision of any part of the Services without your prior written consent. We agree that any subcontracting does not discharge us from any liability under this Agreement and that we are liable for the acts and omissions of our subcontractor.
14.12 Survival: Clauses 9, 10, 11, 12, 13, and 14 will survive the termination or expiry of this Agreement.
In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Schedule, and:
ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.
Additional Services means services outside of the scope of Services as set out in the Schedule.
Agreement means these terms and conditions and any agreed Order issued under it and any documents attached to, or referred to in, each of them.
AI Conversion System means the artificial intelligence system that we utilise for you as part of this Agreement.
Assigned Deliverables has the meaning as set out in the Schedule.
Business Day means a day on which banks are open for general banking business in Sydney, New South Wales, excluding Saturdays, Sundays and public holidays.
Commencement Date means the date this Agreement is signed by the last of the Parties.
Confidential Information means information which:
a. is disclosed to the Receiving Party in connection with this Agreement at any time;
b. relates to the Disclosing Party’s business, assets or affairs; or
c. relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement,
whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information.
Consequential Loss includes any consequential loss, special or indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. However, your obligation to pay us the Price will not constitute “Consequential Loss”.
Consumer Law Rights has the meaning given in clause 12.1.
Deliverables means any materials, goods, items or other deliverables forming part of the Services, as particularised in the Schedule or any Order.
Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.
Intellectual Property Rights or Intellectual Property means any and all existing and future rights throughout the world conferred by statute, common law, equity or any corresponding law in relation to any copyright, designs, patents or trade marks, domain names, know-how, inventions, processes, trade secrets or confidential information, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing, whether or not registered or registrable.
Law means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with this Agreement or the supply of the Services.
Lead Revenue means all revenue earned and collected by you through the use of the AI Conversion System.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.
Moral Rights has the meaning given in the Copyright Act 1968 (Cth) and includes any similar rights in any jurisdiction in the world.
New Materials means all Intellectual Property developed, adapted, modified or created by or on behalf of us or you or any of your or our respective Personnel in connection with this Agreement or the supply of the Services, whether before or after the date of this Agreement and any improvements, modifications or enhancements of such Intellectual Property, but excludes Our Materials and Your Materials, and the Assigned Deliverables.
Order means an order for the supply of Additional Services, placed in accordance with clause 3.
Our Materials means all Intellectual Property which is owned by or licensed to us and any improvements, modifications or enhancements of such Intellectual Property, but excludes New Materials and Your Materials.
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.
Price means the price set out in the Schedule or any Order, as adjusted in accordance with this Agreement.
Schedule means the schedule to this Agreement.
Services means the services set out in the Schedule or any Order, as adjusted in accordance with this Agreement.
Third Party Services mean third parties or any goods and services provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Services may be contingent on, or impacted by.
Your Materials means all Intellectual Property owned or licensed by you or your Personnel before the
Commencement Date (which is not connected to this Agreement) and/or developed by or on behalf of you or your Personnel independently of this Agreement and any improvements, modifications or enhancements of such Intellectual Property, but excludes Our Materials and New Materials.