Terms and Conditions
terms & conditions policy
Terms and Conditions of Working with Scene It Social
The client (herein the “Client“) named in the attached Digital Marketing Proposal (“the DMP“) agrees with Shorter Marketing Pty Ltd (ACN 618 708 311) (“Scene It Social“) that in consideration of Scene It Social agreeing to provide the Services to Client the following terms and conditions shall apply:
1. Legal Agreement:
This agreement (which includes the DMP) shall be a legal agreement between Client and Scene It Social. The agreement shall constitute the entire agreement between Client and Scene It Social in relation to the Services and the DMP and it shall not include any terms and conditions of Client (including on any purchase order or other document submitted by Client) unless agreed to in writing by Scene It Social.
2. Term of Agreement:
This agreement commences on the start date specified in the DMP (start date) and is for an indefinite term unless a finish date is specified in the DMP or the agreement is ended earlier in the matter permitted by this agreement.
3. Services Scene It Social will provide:
Scene It Social will:
a. provide the work and services to be carried out by Scene It Social as described in the DMP (the “Services“);
b. where a maximum time per month for the provision of the Services is set out in the DMP, provide the Services for a period of time up to that maximum amount per month;
c. use its best endeavours to ensure the Services are provided in compliance with all relevant Australian legislation;
d. provide the Services with care and skill and will exercise professional judgement free from any conflict of interest;
e. provide support in respect of the Services as specified in the DMP;
f. act in Client’s best interests but will not do anything which is unethical or unlawful;
g. keep records of work performed under this agreement and provide copies of those records to Client on request; this includes all digital files.
h. provide only the resources specified in the DMP as required to be provided by Scene It Social to deliver the Services;
i. provide the Services to Client alone and will not regard any other entity as its client in relation to the Services; and
j. unless otherwise stated in the DMP, shall determine at its discretion the personnel who will provide the Services.
4. Additional Services:
a. At the request of Client, Scene It Social may provide work and services additional to the Services including:
b. any additional services set out in the DMP; and updates required as a result of changes to any relevant digital interface or services required in respect of matters set out in clause 5.
c. Client agrees and acknowledges that:
(i) the fee for any Additional Services is not included within the fee for the Services and will be charged at Scene It Social time based charge out rates of $120/hr and
(ii) by submitting a quick quote or other form of purchase order to Scene It Social in respect of any Additional Services, Client agrees to pay for the Additional Services.
5. Limitations on services:
a. Social media platforms change their interfaces on a regular basis. Unfortunately Scene It Social cannot pre-empt these changes. This may require us to redesign your social media pages, for which a quotation will be provided.
b. any modification of Client’s website by Client or any third party may impact on the listing or ranking of Client’s website. Any work or services required by Scene It Social as a result of such modification shall be Additional Services; and
c. Scene It Social will not provide the following services under this agreement (Scene It Social may at its discretion provide these services as Additional Services at the request of Client):
i. support outside Business Hours. In this agreement, Business Hours means 9am to 5pm Brisbane time on any day except a Saturday, Sunday or public holiday in Queensland;
ii. support of or assisting the client in the use of operating systems, ancillary services or software or other platforms;
iii. managing authorised usernames and passwords;
iv. installing or managing Client’s security measures;
v. support where Service impairment results from installation, un-installation, or use of other software applications;
vi. recovery of damage or data loss arising from hard drive or CPU failure, network failure, misuse, negligence, alteration, improper wiring, malware, viruses or failure to complete daily and weekly backups;
vii. support where Client has failed to implement a recommendation from Scene It Social where in the reasonable opinion of Scene It Social the recommendation should be implemented to ensure Scene It Social can properly deliver the Services; or
viii. consulting services or accelerated development or advanced customisations of or enhancements to or new features of the Services.
6. Service Eligibility.
Client must be over the age of eighteen (18) in order to secure the Services. Scene It Social does not knowingly provide its Services to persons under the age of eighteen (18). All Clients are otherwise prohibited from providing Scene It Social with personally identifiable information of persons under the age of thirteen (13).
7. Items to be provided by Client:
a. provide to Scene It Social all items and materials to be provided by Client as requested in the DMP and all information and materials relating to Client’s requirements with respect to the Services, including as regards scope and timing;
b. obtain all approvals which are required for the lawful provision and use of the Services; and
c. appoint a person to act as Client’s representative, which person shall be deemed to have authority to act on behalf of and bind Client in connection with this agreement.
8. No Endorsement
From time to time, the Services may contain hyperlinks to other websites. These links are for personal convenience and to provide the target end user with further information. The provision of such links does not imply any endorsement of such third party websites (or their products and services) on behalf of Scene It Social.
9. Code of Conduct
As Scene It Social’s Client, Client hereby agrees to not undertake, motivate, or facilitate the use or access of the Services in order to:
a. Infringe this agreement or the DMP, or allow, encourage or facilitate others to do so.
b. Plagiarize and/or infringe the intellectual property rights or privacy rights of any third party, including any breach of confidence, copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right.
c. Distribute, post or otherwise make available any content that: (i) infringes or endangers the intellectual property rights of any person (e.g. trademark, moral rights, trade secret, copyright, ancillary rights or other); (ii) enables any act that could promote or cause discrimination, racism, harm, libel, hatred or violence against any individual or group; (iii) endangers children and underage persons; (iv) is or allows illegal or fraudulent activities to take place; (v) is or may constitute a criminal or capital offense or otherwise infringes any applicable law; and/or (vi) is or can be considered to be obscene, threatening/defamatory, plagiarized, firearms, tobacco, alcohol, marijuana, gambling, binary options, Forex, pornographic or analogous material.
d. Collect, receive, transfer or disseminate any personally identifiable information of any person without due consent from the title holder.
e. Upload infringing, false, duplicated, altered or otherwise misleading credentials to any site.
f. Use any automated or manual process to obtain, copy, process, access and/or use the Services or any part therefrom to capture or access unauthorized data or content, for any purpose.
Client acknowledges and accept that any violation of the aforementioned provisions may result in the immediate termination of its access to the Services, without refund or reimbursement.
10. Client Authority, Exclusivity and Warranties:
a. Client authorises Scene It Social to:
i. conduct all activities as may be required to perform the Services, including submitting websites to search engines and any other resources or relevant sites; and
ii. modify any of Client’s websites, including modifying the metadata of any website, for the purposes of providing the Services;
iii. use relevant keywords and phrases, including intellectual property belonging to Client, for the purpose of delivering the Services.
b. During the term of this agreement, Client shall not permit any search engine optimisation provider to:
i. perform or deliver any service which is within the Services; or
ii. have access to any of the Client’s websites that are part of the search engine optimisation service.
c. Client agrees that Scene It Social will not be responsible for any of the Client’s websites or search engine rankings if Client does not comply with clause 7b.
d. Subject to clause 7b, if Client is required to give access to Client’s website to any third party, Client must give prior notice to Scene It Social.
11. Client’s Responsibilities:
In order to ensure that Scene It Social is able to properly deliver the Services, Client:
a. must ensure that Client’s websites are active and accessible by Scene It Social at all times;
b. must notify Scene It Social each time any modification to Client’s websites is made where that modification may affect the delivery of the Services by Scene It Social;
c. must not install or use software that may, in the reasonable opinion of Scene It Social impair the proper delivery of the Services by Scene It Social;
12. Support Provided:
a. Scene It Social shall use commercially reasonable efforts to provide support on the terms set out in the DMP but does not guarantee that any defects in the Client’s websites or Services will be fixed by Scene It Social.
b. Client acknowledges that Scene It Social relies on third party interfaces and databases to deliver the Services and as a result Scene It Social cannot guarantee uninterrupted access to and use of those third party internet interfaces and databases at all times.
Except as otherwise agreed in writing with Scene It Social;
a. the fee for the Services will be as specified in the DMP;
b. Scene It Social reserves the right to adjust its time based charge out rates on each 1 January and 1 July by an amount not less than the change in the Consumer Price Index (All Groups) Brisbane in the preceding six months.
a. Client agrees that external disbursements are not included in Scene It Social's fees. Client agrees to reimburse reasonable business expenses incurred by Scene It Social in the performance of the Services. Scene It Social will always seek authorisation from Client prior to incurring such expenses.
b. Scene It Social agrees to provide Client with tax invoices for all expenses Scene It Social seeks to have reimbursed.
15. Tax invoices:
a. will be issued by Scene It Social and must be paid on the terms of 7 days unless otherwise specified or agreed on the invoice;
b. shall be deemed correct unless disputed in writing within 3 days of the date of the invoice;
c. must be paid in full notwithstanding any counter claim or set-off Client may claim against Scene It Social; and
d. that are not paid in full and on time will attract interest at 15% per annum, calculated daily.
e. The Customer shall pay the Supplier for all costs actually incurred by the Supplier in the recovery of any monies owed by the Customer to the Supplier under this Agreement including recovery agent costs, repossession costs, location search costs, process server costs and solicitor costs on a solicitor/client basis.
f. All payments for advertising budgets must be paid by the client based on any of the payment options made available in Appendix A; Advertising Budgets paid your behalf by Scene It Social.
Scene It Social and Client each agree:
a. not to disclose or use for an improper purpose any Confidential Information received or obtained from the other party; and
b. that each party can disclose Confidential Information received by it if, and to the extent,:
i. required by law or required by a Court, stock exchange or regulatory or governmental body; or
ii. the information is disclosed on a confidential basis to professional advisers or bankers; or
iii. the information is disclosed to a director, officer, employee or agent of the party whose function requires them to have the information; or
iv. the information is in the public domain otherwise than through the fault of the disclosing party; or
v. the other party has agreed to the disclosure in writing,
vi. provided a party intending to disclose information under any of paragraphs i., ii., or iii. above consults with the other party first. If a party makes any disclosure under any paragraphs i. and ii. above it must inform the other party as soon as possible;
c. “Confidential Information” means all trade secrets, know-how, financial, marketing, management, technical and other information which is confidential or of a sensitive nature, including information regarding business strategy and processes, but excludes information in the public domain.
d. Client agrees that the identity of Client is not Confidential Information and that Scene It Social may disclose to third parties that Scene It Social has been engaged by Client.
Client agrees that, except as expressly stated in the DMP:
a. Scene It Social: owns all title, ownership, moral and proprietary and intellectual property rights (including copyright), registrable or not, in and to all deliverables, materials, documents, presentations, reports, software, data and analysis prepared or provided by Scene It Social in connection with providing the Services, including the source code and back end tactics used by Scene It Social to optimise any websites (“Documents);
b. it will not publish or transmit outside of its organisation, nor make copies or reproductions of, any such Document unless approval in writing is given by Scene It Social ; and
c. Scene It Social may, subject to clause 16, use such Documents for Scene It Social’s technical development and marketing purposes.
18. Licence to Client:
For the term of this agreement Client is hereby granted a limited, revocable, non-transferable, non-sublicensable, royalty free licence to use Documents referred to in clause 17 for the sole purpose for which the Services were provided. This includes the provision of all digital assets to the client, including website development files.
19. Liability and Indemnity:
Client agrees that except to the extent caused by the gross negligence, fraudulent act or omission or wilful breach of this agreement by Scene It Social, Scene It Social and its officers, employees and contractors shall, to the maximum extent permitted by law, not be liable to Client or its officers and employees or contractors or any other entity for any Claims whatsoever:
a. in relation to provision or non-provision of the Services or arising from any act or omission by Scene It Social relating to the Services;
b. arising from any act or omission of any third party, including the unavailability or performance of any search engine, relevant internet interface or database or the listing or ranking of any Client’s website;
c. in relation to the matters set out in clauses 5.a to 5.f inclusive;
d. in relation to the use by Client (or its officers, employees, agents or contractors) of any Documents;
e. in the event that any transaction contemplated by Client does not proceed; or
f. in relation to acts or omissions of Client or any third party,
g. and Client shall and hereby does indemnify and hold Scene It Social and its officers, employees and contractors harmless from all such Claims. In this agreement “Claim” means any claim, expense, demand, action, suit, proceeding, loss or damage of any kind or character (including without limitation for legal costs or special, indirect, punitive or consequential damages, loss of profit or business opportunity or payment of liquidated sums).
In no event, shall Scene It Social’s, or its affiliates’, clients’, licensors’ and/or distributors’ liability for all damages (except as required by applicable law) exceed; (i) the actual price paid by you for the Services in the twelve (12) months preceding the claim; or (ii) the amount of AUD$500.00 (Five Hundred Australian Dollars); whichever results less; and henceforth any arbitrator award or any award for direct, provable damages shall not to exceed such total amount.
20. Time Limit on Claims:
To the maximum extent permitted by law, Scene It Social shall be deemed to have been discharged absolutely from all Claims for liability arising from the Services (or from any act or omission of Scene It Social relating to the Services) at common law or equity or under statute after the expiration of one year from the completion of the Services. Client agrees that it and any persons or entities claiming through Client shall be barred from commencing any action, proceeding or claim whatsoever against Scene It Social, its officers or employees in respect of the Services. The date of completion of the Services will be the date of the last invoice issued by Scene It Social for the Services.
a. Neither Scene It Social nor its affiliates, subsidiaries, officers, employees and agents warrantee that the Services will be error-free, uninterrupted, secure, or produce any particular results. No advice or information given by Scene It Social or its employees, affiliates, contractors and/or agents shall create a guarantee. Scene It Social is not responsible for lost data, messages or pages lost, not delivered, delayed or misdirected because of interruptions or performance issues with the Services or communications services or networks. The Services have not been completely tested in all situations or devices, and may contain operational malfunctions, errors, viruses, bugs, worms, trojan horses, bots and other harmful and destructive components or defects.
b. To the fullest extent permissible under applicable law, the Services are provided “as is”, with “all faults” and “as available”, with all faults, without warranty of any kind, without performance assurances or guarantees of any kind, and your use is at your sole risk. No oral or written advice provided by Scene It Social, its affiliates, clients, agents, officers, licensors, distributors and/or any authorised representative, shall create any implied warranty. The entire risk of satisfactory quality and performance resides with Client. Scene It Social, and its affiliates, clients, agents, officers, licensors and/or distributors, do not make, and hereby disclaim, any and all express, implied or statutory warranties, either by statute, common law, custom, usage of trade, course of dealing or otherwise, however arising, including implied warranties of description, quality, fitness for a particular purpose, operation, integration, adequacy, suitability, title, non-infringement, non-interference with use and/or enjoyment.
c. The Services are not intended to be reliable or available all of the time, and Scene It Social does not guarantee a minimum service level. The Service may be subject to interruptions and failures for motives beyond Scene It Social's control, including but not limited to: Wi-Fi signal, Internet bandwidth, cloud service providers, wireless technology and carriers or power outages. Client hereby acknowledges and agrees to these limitations and therefore accepts and agrees that Scene It Social is not responsible for any damages allegedly caused by delay or failure of the Service.
d. The Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) provides consumer rights and remedies that may not be contracted out of, in part or wholly. Where those consumer rights and remedies apply to supply of the Services and cannot be contracted out of, they apply and override any inconsistent provisions in this agreement but only to the extent of the inconsistency. Where Client is entitled to a statutory right or term that Scene It Social is not able to exclude but Scene It Social is entitled to limit its remedy for a breach of that right or term, then Scene It Social's liability for breach of that right or term is limited to (at Scene It Social’s election) the supplying of the services again, or the payment of the cost of having the services supplied again.
a. In no event shall Scene It Social, its affiliates, clients, agents, officers, licensors, distributors and/or any authorised third party, be held liable for any special, indirect, incidental or consequential damages, including losses, costs or expenses of any kind resulting from possession, access, use or malfunction of the Services, including but not limited to, loss of revenue, profits, business, loss of use or lack of availability of computer resources, lost or corrupt data, re-procurement amount, anticipated savings, wasted expenditure, or other commercial or economic loss; or for any indirect, incidental, special, punitive, aggravated, exemplary, or consequential damages whatsoever arising out of or related to the Services, whether arising in tort (including negligence), contract, strict liability or other legal or equitable theory and whether or not Scene It Social, its affiliates, clients, licensors and/or distributors have been advised of the possibility of such damages.
b. The materials and information contained on the Services may contain technical inaccuracies and/or typographical errors. Scene It Social does not warrant the accuracy or completeness of the materials or the reliability of any advice, opinion, statement or other information displayed or distributed through the Services. Client acknowledges that any reliance on any such opinion, advice, statement, memorandum, or information shall be at its sole risk. Scene It Social reserves the right, in its sole discretion, to correct any errors or omissions in any portion of the Services.
23. Non solicitation:
Client hereby acknowledges that, by virtue of the performance of the Services on behalf of Scene It Social, Client would have access to Scene It Social’s Confidential Information, and that Client’s knowledge of such Confidential Information may enable Client to put Scene It Social at a significant competitive disadvantage if Client is engaged by or becomes involved in an undertaking directly competitive for the business of Scene It Social. Accordingly, Client agrees:
a. not to, in any manner whatsoever, including, without limitation, either individually or in partnership, jointly or in conjunction with any other person, business, incorporated entity or as an employee, adviser, principal, agent, member or proprietor in any undertaking directly competitive for the business of Scene It Social within Australia; directly or indirectly, employ, solicit, engage or direct for purposes of employment or contracting services any of Scene It Social’s staff or contractors during the term of this agreement and for a period of 12 months thereafter;
b. that if it does not comply with paragraph a above, it will pay to Scene It Social on demand a placement fee of:
i. in the case of a Scene It Social employee, 100% of the employee’s total annual remuneration package from Scene It Social (including superannuation)
24. Delay/Force majeure:
If Scene It Social is restricted or prevented from performing any of its obligations under this agreement due to any cause or delay whatsoever outside the reasonable control of Scene It Social including the unavailability of any relevant internet interface or database, then Scene It Social may give notice of such cause to Client and the time for performance of Scene It Social’s obligations shall be extended by the period the cause continues. If the Services have not been provided by 60 days after the original due date either party may terminate this agreement and if this occurs Scene It Social shall have no liability whatsoever to Client.
25. Suspension, Expiry and Termination:
a. Scene It Social may suspend the delivery of the Services during any period in which an amount owing by Client pursuant to this agreement is overdue.
b. If either party is in breach of this agreement then the party alleging the breach may service a default notice on the other party settling out the full particulars of the alleged breach and the acts required to rectify the breach.
c. If not terminated sooner under paragraph e. of this clause 25, the engagement of Scene It Social expires at the earlier of the completion of the Services or the finish date specified in the DMP (if any).
e. A party may terminate this agreement only:
i. if the DMP expressly states that either party may terminate this agreement by notice to the other party, in which case this agreement will terminate on the date that is twenty Business Days after the date such a notice is given, provided that during that period of twenty Business Days all fees and charges as set out in the DMP will continue to be payable; or
ii. if it has issued a notice of default pursuant to clause 25.b and the default alleged therein remains unrectified 10 Business Days after service of the default notice (and termination will take effect on the 11 Business Day after service of the default notice provide a notice of termination is given); or
iii. if the other party goes into liquidation, has a receiver or manager or administrator appointed, is declared bankrupt or becomes subject to Part X of the Bankruptcy Act 1966 (and termination will take effect on giving of a notice of termination).
All fees referred to in this agreement do not include goods and services tax (GST) unless expressly stated in the DMP. In this agreement “GST, “supply”, “taxable supply” and “tax invoice” have the same meaning as in A New Tax System (Goods and Services Tax) Act 1999.
Scene It Social reserves the right to modify, amend, suspend, terminate, upgrade, update or otherwise modify this agreement and its Services, at any time and without notice. Any changes to this agreement will be displayed in Scene It Social’s websites. Please refer to the last effective date where changes were last undertaken. Client’s use of Scene It Social’s Services after the effective date of any update– either by an account registration or simple use – thereby indicates your acceptance thereof.
28. Representations and Warranties
Client hereby represents and warrants that, through the simple use of Scene It Social’s Services: (i) will comply with all applicable laws, rules and regulations applicable to the use of the Services; and (ii) will not use the Services to infringe any intellectual property rights of any third party. If Client knowingly misrepresents that online material is not infringing, it may be subject to criminal prosecution for perjury and civil penalties.
a. Reference in this agreement to the singular includes the plural, and to any party to this agreement includes the party and its successor, administrator, personal representative, transferees and assigns.
b. A notice to be served under this agreement will be duly served if it is in writing and is sent to the address appearing in the OMP for each party by certified mail, facsimile, personal delivery or email, provided there is proof of delivery.
c. Neither party may assign or transfer any right or obligation under this agreement without the written consent of the other.
d. If any provision or part provision of this agreement is invalid, unenforceable or illegal then it shall be deemed deleted and the remaining parts shall continue to apply with full force and effect.
e. Failure by Scene It Social to enforce any rights hereunder shall not be construed as a waiver of any rights with respect to the subject matter hereof.
f. This agreement is governed by the law in force in Australia. Each party irrevocably submits to the jurisdiction of the courts of Queensland with respect to any Claim which may be brought at any time relating in any way to this Agreement.
g. This Agreement sets forth the entire framework between the Parties regarding the subject matter hereof and may not be altered or amended except in writing signed by each both Parties.
h. This agreement may only be varied in writing signed by both Parties.
i. Client and Scene It Social are independent contractors, and no agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this agreement.
j. Any omission by a party to enforce any provision of this agreement shall not operate as a waiver and will not prejudice the rights of the party to enforce any of the provisions.
k. All provisions in this agreement in respect of indemnities, IP ownership, confidentiality and non-solicitation survive the termination of this agreement.
l. In offering our services to you we are not excluded from offering our services to other organisations, whether competitive to yours or not, unless a separate (from this agreement) exclusive provider contract has been entered into and we are under no obligation to reveal our client list to the public and/or to other clients.