These Customer T&Cs will apply to every supply of Services to You by One Social.
1. 1. DEFINITIONS
In these Customer T&Cs, these capitalised terms have the following meanings:
Agreement means these Customer T&Cs together with any Quote.
Confidential Information means all confidential information (provided in writing or verbally) relating to your business, financial affairs, strategic plans, concepts, technology or products, including without limitation: a) any information which is marked confidential; b) any information which ought reasonably to be understood as being confidential; c) any information relating toyour business or proposed business ventures; d) any information relating to your products, services, members, customers or clients; but excludes information: i) that is public knowledge (otherwise than as a result of a breach of confidentiality by us or any person to whom we have disclosed information); or ii) otherwise lawfully known by us.
Deliverables means any Material produced, procured, or provided by us for you as part of the Services, including any draft or final website, webpage, or other platform.
Fixed Term Services means any Services described in a Quote as being provided for a fixed period of time.
GST means Goods and Service Tax imposed in Australia by legislation;
Intellectual Property means all intellectual property, whether registered or unregistered, including without limitation copyright, trade marks, designs, and any rights in relation to works, designs, specifications, technical data, file layouts and interfaces and trade secrets.
Losses means any direct, indirect, consequential or incidental loss, costs, damages or expenses of any nature whatsoever and howsoever caused including, but not limited to, loss of profits, loss of savings or other incidental or consequential damages, and any claims, actions, or demands in relation to any of the foregoing.
Material means all material, images and content whatsoever, including without limitation any proposed domain name, logos, pictures, text, Intellectual Property, data, Confidential Information, or personal information.
Quote means the written communication setting out the Services to be undertaken and the fees payable in respect to such Services and may include additional terms and conditions of trade.
Services means the provision of goods or services by One Social to you under the Agreement, as detailed in the Quote.
One Social, we, us means One Hundred Pty Ltd (ACN 603 001 887) t/a One Social.
you, your means the entity which requests the Services from One Social or to which the Services are delivered by One Social.
2. SERVICES & FEES
2.1 Exclusivity: You appoint us as your exclusive provider of the Services and all services similar to the Services. You warrant and agree that you will not prior to the termination or expiry of this Agreement engage, contract with, or pay, any entity to provide any services identical or similar to the Services.
2.2 Autonomy: You agree that subject to the written limitations set out in this Agreement, we are engaged to provide the Services with creative and editorial autonomy to speak for, act on behalf of, and represent your business.
2.3 Quotes: Provided that we receive an acknowledgement and order confirmation of a Quote within three (3) months of receipt of a Quote by you, we will provide the Services in accordance with the Quote in exchange for the fees payable.
2.4 Fees payable: The Quote will set out the fees payable for the relevant Services. All fees payable must be paid within fourteen (14) days of the due date stated on any invoice or the date of a scheduled direct debit (Due Date).
2.5 GST: Unless expressly stated, all fees quoted by us exclude GST. You must pay GST (if applicable) at the same time (and by the same method) as you pay the fees.
2.6 Payment method: You may pay fees by direct debit, direct funds transfer, credit card or any other method we agree to in advance.
2.7 Overdue payments: We reserve the right to suspend the Services in the event of late payment of any amounts owed by you to us. You must pay interest on any unpaid fees at the rate of 10% p.a. from the Due Date until full payment is made. You will be liable for any costs incurred by One Social in relation to collection of any outstanding amounts owed by you to us including but not limited to legal costs.
2.8 Fee changes: Except where the Services are Fixed Term Services, we may increase or vary fees payable for the Services on 30 days’ written notice to you. You may terminate this Agreement by giving us written notice within 30 days of receiving notice of a fee variation, but in the absence of notification from you, you will be taken to have agreed to the variation in fees.
2.9 Fees on early termination: You agree that we incur significant costs at the beginning of our engagement and our fees and rates are calculated in reliance on an extended relationship. You agree and acknowledge that termination costs (if any) cited in a Quote: (a) represent a genuine pre-estimate of the losses we will suffer in the event that this Agreement is terminated prior to an extended relationship having been established; and (b) will be paid by you if you terminate this Agreement early (as outlined in the termination costs section of the quote).
3. Third Party GOODS AND SERVICES
3.1 Engagement: You acknowledge that One Social may on your behalf engage third party providers of goods and services in connection with the Services, e.g. hosting or payment processing services. Any agreement for the supply of third party goods or services is made directly between you and the third party provider. You agree that, to the extent that One Social engages any third party provider, we do so only as your authorised agent.
3.2 Transaction processing: You agree that any transactions processed via your website or other platform concerning the sale of goods or services or any other payment transaction will be between you and your end customer and will be processed by a third party merchant facility provider and One Social will not be a party to those transactions.
3.3 Terms: You agree to be bound by any third party provider terms and conditions as notified to you from time to time.
3.4 Liability: One Social will not be liable for any Losses caused by the actions or omissions of, or arising from your agreements or transactions with, third party providers, including any Losses arising from the interruption, change, or termination of such services, or the handling of your Material by the third party provider.
4. INTELLECTUAL PROPERTY
4.1 You are solely responsible for obtaining and providing to us any and all necessary consents, licences, and authorisations in relation to all Material provided by you (or on your behalf) to us for the purposes of supplying the Services.
4.2 You retain ownership of the Material which you provide to us or license us to use in relation to the supply of the Services.
4.3 One Social retains ownership of all Deliverables that are produced for or provided to you by us in relation to the services, and One Social grants you a transferrable, non-exclusive, irrevocable, loyalty free and paid up licence in perpetuity to use the Deliverables.
4.4 We warrant that we have the right to use, or provide you with access to or use of, any Deliverables in connection with the supply of the Services, subject to any applicable third party rights or notified restrictions.
5. YOUR DATA AND CUSTOMERS
5.1 You are responsible for maintaining backups of all information, content, data, or other material that you provide to us, and of any website, page, profile, or related information, content, data, or other information that is generated by the Services once it is provided or accessible to you.
5.3 We rely on the information and instructions you give us complying with the Applicable Laws and you warrant that your instructions, if carried out, will not cause you or us to breach any Applicable Laws.
6.1 We warrant that we will:
(a) exercise all due care and skill in the provision of the Services;
(b) keep confidential all of your Confidential Information, except where we make a disclosure in compliance with your instructions or as required by law; and
(c) inform you of any actual or potential breaches of your data security in relation to the Services as is practical.
6.2 We do not warrant that:
(a) the Services or any Deliverables will be virus, bug, or error-free, or available without interruptions; or
(b) the Services will result in increased traffic to your website, a higher website ranking in search engine results, optimised conversion rate, increased sales, increased customer response, or increased media reach.
6.3 You warrant to us that:
(a) you will not knowingly or recklessly post, link to or transmit, or provide to One Social in connection with the Services, any Material that: is unlawful; contains a virus or other hostile computer program; violates or infringes any trade mark, copyright, other intellectual property rights or similar rights of any person under the laws of any jurisdiction; or, is defamatory, offensive, indecent, or pornographic;
(b) you have the right to provide us with your Material and that our use of your Material in accordance with this Agreement will not infringe your Intellectual Property rights or those of any third party;
(c) you will keep secure any identification, password and other Confidential Information relating to your account and you will notify us immediately of any known or suspected unauthorised use of your account, or any or suspected breach of security, including loss, theft or disclosure of your password information; and
(d) you will pay your debts as and when they fall due.
6.4 To the extent permitted by law, all warranties other than those expressly set out in this Agreement are excluded.
7.1 Capped liability: If you suffer or incur Losses that are directly caused by our:
(a) gross negligence, willful misconduct, or fraud; or
(b) defamatory publication;
(c) breach of any Applicable Law; or
(d) infringement of any third party rights in relation to Intellectual Property (where such action or omission is not authorised by you or in accordance with your instructions),
then our liability will be capped at the amount of fees paid by you for the Services under the relevant Quote in the 12 months immediately preceding the date on which the cause of action accrued.
7.2 Limited liability: To the extent that our liability in connection with the Services cannot be excluded by law, you agree that such liability is limited (at our election) to us supplying of the Services (or any relevant goods) again; or paying the cost of having the Services (or any relevant goods) supplied again, or, in the case of goods, repaired or substituted for equivalent goods.
7.3 Liability exclusions: Except as set out in clause 7.1 or 7.2, to the fullest extent permitted by law, we exclude all liability for any Losses suffered or incurred by you in connection with the Services.
8.1 You continually indemnify us against all Losses suffered or incurred by One Social arising as a result of a breach of any warranty given by you in this Agreement, including but not limited to any Losses arising from any action, claims, demands or suits commenced or made against us by any third party.
9.1 Either party may terminate this Agreement without cause by giving thirty days written notice to the other party, except where the Services are Fixed Term Services.
9.2 We may terminate this Agreement immediately by notice in writing to you if you breach the warranty given in clause 2.1 or fail to pay fees on or by the Due Date and the fees remain unpaid five days or more after we give final notice demanding payment.
9.3 Either party terminate this Agreement if:
(a) the other party breaches the Agreement and fails to rectify the breach within five working days of receiving a notice from the non-breaching party requesting rectification; or
(b) the other party becomes insolvent.
9.4 If this Agreement terminates or expires, you remain liable for all fees payable up to the date of the termination or expiry. No refunds will be given in respect of fees paid or payable.
9.5 We reserve the right to charge reasonable fees for any services provided in respect of hand-over at termination or expiry.
10. GENERAL TERMS
10.1 Non-poach: During the term of this Agreement and for a period of six months after its termination or expiry you must not directly or indirectly, without our prior written consent:
(a) induce or assist in the inducement of any of our directors or employees to leave or terminate, his or her employment with us; or
(b) employ any person who during the term of this Agreement was one of our directors or employees of One Social.
You acknowledge this clause is necessary to protect our business.
10.2 Promotion: You agree that we may publicise or disclose the fact that you are one of our customers for the purpose of marketing and promoting our business and/or services.
10.3 Assignment: We may assign its rights and obligations under this Agreement at any time but you may not assign your rights under this Agreement without our prior written consent (such consent not to be unreasonably withheld).
10.4 Entire Agreement: The Agreement constitutes the whole of the agreement between you and One Social in respect of the Services and supersedes all prior agreements, understandings or representations.
10.5 Governing Law: This Agreement is governed by the laws of NSW, Australia. The parties irrevocably submit to the exclusive jurisdiction of the Courts there.