Terms and Conditions

Note: Any capitalised terms you see which aren’t defined in the text itself are defined in the Definitions at the end. Any ‘tooltips’ (the tips marked in blue – like this one) are for guidance only and don’t form part of the terms of this Agreement.

Operative Provisions
1. Your Agreement With Us

Summary: You’re agreeing to receive services from us and will comply with the terms of this Agreement.

1.1 Application. This Agreement is binding on you from the earlier of the date you sign an Order which links these Terms, or the date you instruct us to commence any Services, and applies to all Services we undertake for you.

1.2 Term. This Agreement will continue to apply to the relationship between the parties unless terminated under the terms of these Terms or expressly superseded by another document.

1.3 Other Documents. Our Standard Terms of Engagement also form part of these Terms. Where there is any inconsistency between the Standard Terms of Engagement and these Terms, these Terms shall apply to the extent of that inconsistency.

2. Services

Summary: We’ll perform the services to the standards agreed. There are some limitations to what we do, and we’ll charge for services performed outside scope.

2.1 Services. We will provide the Services subject to these Terms and Conditions.

2.2 Quotes from us. We may provide you with a quote in written form. Upon receipt of that quote, you may:

(a) accept that quote, in which case it will become a valid Order;
(b) reject the quote outright, in which case we will not be obliged to perform any additional Services for you;

You may also submit an Order to us, which we may accept or reject at our discretion. For clarity, no Order shall be valid unless both parties agree to the terms of that Order and indicate that agreement in writing.

2.3 Digital Orders. Orders may be placed through an Order form or online, through a portal or ordering system which we operate.

2.4 Performance. We’ll provide the Services within the timeframes set out in an Order. If there is no Order, we’ll provide the Services in due course.

2.5 Service limitations. We’ll use reasonable efforts in providing the Services, however other than as set out in this Agreement, to the fullest extent permitted at law, we don’t warrant or guarantee the Services are 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.

2.6 Out-of-Scope Services. We may at our discretion, upon request by you, provide Out-of-Scope Services. Unless we inform you otherwise, we’ll charge the Default Rate for any Out-of-Scope Services we provide.

2.7 Right to sub-contract. We may appoint employees or agents to provide all or part of the Services. Those entities will be bound by the same obligations as us.

3. Your Rights and Obligations

Summary: You also have a responsibility to do the right thing by us. This includes giving us clear instructions, protecting your systems, taking responsibility for things which are under your control and protecting our Intellectual Property.

3.1 Instructions, equipment and materials. You must:

(a) give us clear instructions regarding the scope and specifications of the Services and respond to any questions we have promptly and clearly;
(b) respond in a timely matter to any requests for content approval, or other approval requests related to the Services;
(c) provide any Client Materials necessary for us to perform the Services, including (but not limited to) information about your business operations; media assets, such as files, content, copy, images, logos and marketing material; and insight into your various offerings in market, your client profiles and any products/services you offer;
(d) 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.

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

3.2 Warranties. You guarantee that you and your representatives have all necessary licenses 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.

3.3 Access Authority. 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’s your responsibility to arrange access and ensure we have everything we need.

4. Social Media Related Services

Summary: Our services are specialised and designed for use in the unique social media environment. You’re 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.

4.1 Specific Services. Our Services may include (but are not limited to) the following:

(a) Social Media Management. Service overview can be found at: https://www.blueflamesocialmedia.com.au/BFSM-SMManagement.pdf
(b) Social Media Marketing. Service overview can be found at: https://www.blueflamesocialmedia.com.au/BFSM-SMManagement.pdf
(c) Hot Desk. A service desk option for Facebook where we provide ad-hoc Facebook Services at a set hourly rate.
(d) 1 on 1 Training. Training delivered on location or via video call. Travel and accommodation are usually included in the price.
(e) Video Training. Training delivered via pre-recorded on demand video. Separate Terms and Conditions apply.
(e) Consulting. Supplying expert advice and/or training to people or staff associated with or within a business or businesses.

4.2 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 of content, the nature of the content, the subject matter of the content and all other aspects of the content will vary from time to time and be generated based on what we believe best suits your business.

4.3 Approval. Generally, we will submit to you all posts/content scheduled for publication with adequate time for your review. All posts/content will go on to be published unless you inform us of any required edits/changes in writing. However, you acknowledge and agree that in case of emergency, we may be required to act quickly where there is an incident on one of your accounts.

4.4 Discretion. We reserve the right to (at our discretion) change, alter or otherwise adapt the way we provide the Services and interact with social media platforms. We may also refuse to publish content or reject content for publishing until alterations are made, implement new methodologies in the management of your social media presence, recommend that certain users be restricted from posting to your social media or remove or alter any content previously published.

4.5 Payments and Spend. While we provide the Services on your social media accounts, you are still the owner and ultimate controller of those accounts. It’s your responsibility to ensure that your social media accounts, at all times, have active payment credentials, are appropriately funded and have no issues which may impede our abilities to provide the Services. We don’t charge any commission on advertising spend.

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

4.7 Public-Facing Engagement. The nature of the Services is that they are ultimately consumer facing. Consumers and other users will often interact with content we post on your social media accounts and engaging with this is a critical part of providing the Services. For that reason, you:

(a) acknowledge and agree that we may engage with third party users as part of the Services;
(b) give us license to comment, post and otherwise converse with third party users on your social media accounts; and
(c) release us from any and all Liability in relation to anything covered by this clause 4.

4.8 Acknowledgements. You acknowledge and agree that:

(a) the return on ad spend results for one customer does not mean another will get the same results;
(b) training we provide is merely the imparting of our knowledge – it’s up to you to put that knowledge into action (and we make no guarantees about outcomes regarding same); and
(c) everything is ultimately at the discretion of platform operators, who may change rules, algorithms and processes without warning or consultation. We make no guarantees that what currently works will continue to work, or that we will continue to generate the same results after any such change.

4.9 Pauses. Social media campaigns may be paused within contract on a monthly basis for a total maximum period of two months. 30 days notice is required and a pause fee of $750/month is applicable.

5. Payments

Summary: You need to pay us any agreed fees for all the various work we do for you. If you don’t pay us, we can take action to get that money from you.

5.1 Payments. Payments are to be made in accordance with the Order. In addition to any fees specified in this Agreement, we’ll issue separate invoices for Out-of-Scope Services, after-hours services or any pre-approved expenses. All fees are exclusive of GST unless otherwise agreed.

5.2 Fee disputes. If you believe an invoice contains an error, you must let us know before the due date of the invoice, and pay the undisputed portion of the invoice. Provided you’ve followed this clause, we won’t suspend or terminate any Services for non-payment of the disputed fees while we’re investigating the dispute.

5.3 Default in payment. If you fail to pay any invoice by the due date, then without affecting to our other rights or remedies, until payment is made in full (including for any accrued interest), you acknowledge and agree that we will be permitted to charge interest, suspend work or hold you liable for damages (including for any costs). If work is suspended, this will resume as soon as payment is received into our nominated account. A fee of $150 will be applied to the next invoice to cover administration for re-instatement of the account. Any overdue invoices that fall beyond 4 weeks from the invoice due date will, by default, generate a Statutory Demand to be issued to you. All costs associated with pursing the debt will be your liability and added to the final amount payable.

5.4 Change and Tax. We reserve the right to alter our Fees at any time. You are solely responsible for any duties in relation to taxation, legal or regulatory compliance with regards to payment and Fees.

5.5 Digital Payments. We may offer automatic or manual payment through card processing facilities or other digital payment methods. We’ll use third parties to provide this functionality and any payments will be subject to their terms. We won’t be responsible for any issues with payment through these methods, and you release from any Liability for same.

5.6 Time & Materials. Any fees paid or hours purchased in advance must be used against the scoped engagement unless mutually agreed to reallocate funds. Prepayments or hours purchased expire after 12 months if not used.

5.7 Refunds and Advance Payments. We do not provide refunds for upfront payments or payments made in advance. If the milestone, project, or activity has been paused at the request of the customer for a period of 3 months, we reserve the right to close the project or activity and recover any remaining costs from you.

6. Confidentiality

Summary: We both need to keep each others’ information confidential.

6.1 Confidentiality. You acknowledge that in the course of receiving the Services, you may receive Confidential Information. You agree not to disclose our Confidential Information and any of our clients, directors, employees, contractors or agents Confidential Information.

6.2 Legitimate Use. Despite the clauses above, either party may use or disclose Confidential Information to the extent necessary to carry out its obligations under this Agreement, comply with laws or regulators, stock exchange listing rules or obtain professional advice.

7. Intellectual Property

Summary: We both own our own pre-existing material. Anything we develop directly for you as part of the Services is yours, but everything which isn’t related just to you is ours. We’ll both take steps to protect each other’s Intellectual Property.

7.1 Intellectual Property Rights.

(a) Unless otherwise agreed, each party retains ownership of all Intellectual Property rights in 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) The parties agree that all Intellectual Property rights in material we develop directly for you under this Agreement will vest in and will be owned by you upon creation.
(c) We’ll own any Intellectual Property, including material, code, software and methods that we develop which isn’t exclusively developed for your sole use as part of the Services. You release and forever discharge any claim or right you have to such Intellectual Property and indemnify us for any actions you take contrary to that release.

7.2 Client Materials. You grant us (and our employees, contractors and agents) an irrevocable, royalty-free, perpetual license to use, copy, modify and adapt any Intellectual Property in the Client Materials as we need to provide the Services.

7.3 Third party material. We may use third party materials where needed to provide the 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.

8. Indemnity and Limitation of Liability

Summary: We’re providing you a service, but we can’t accept responsibility for things which are either out of our control or don’t form part of the responsibilities we agree to. This clause sets out the things you agree we won’t be responsible for and gets some assurances from you so we know you understand. Without these we can’t provide our Services. Our liability for our Services lines up with Australian Consumer Law. We won’t be responsible for any added liability.

8.1 Client indemnity

(a) You agree to release, indemnify, defend, and hold us harmless (and our Indemnified Officers) 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 this Agreement.
(b) You indemnify us for any reasonable legal expenses we incur as a result of your breach of this Agreement, including expenses for enforcing payment, on a solicitor and own-client basis.

8.2 Limitation of Liability. You acknowledge and agree that we only be 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:

(a) indirect, special, pure economic or Consequential Loss (whether arising under contract or tort) are expressly excluded under this Agreement;
(b) all Services are provided under this Agreement on an ‘as is’ basis and all warranties that may be implied by law or statute (other than those set out in this Agreement) are excluded;
(c) our liability under this Agreement is limited to (at our election):
(i) in relation to Services supplying the Services again; payment of the cost of having the Services supplied again; or a refund of the amount you paid us for those Services;
(ii) in relation to goods the re-supply of the goods or payment of the cost of the re-supply of the goods; or the replacement or repair of the goods or payment of the cost of replacement or repair of the goods; and
(iii) despite any other provision to the contrary, our total liability in connection with this Agreement whether under contract or tort, will not in any circumstances exceed the maximum value equal to the total fees received by us from you in the month preceding the cause of the claim under this Agreement;
(d) we won’t be liable for any content generated in relation to Services, particularly in circumstances such as that detailed in clause 4.3.

9. Suspension and Force Majeure

Summary: If you break your word or do something damaging, we can suspend the Services until we sort it out. We both get some leeway if we’re affected by something unforeseen.

9.1 Your Default and Suspension

(a) We may suspend our Services if you fail to make due payment, you fail to perform your obligations, you are causing damage to us, our employees or property, or we suspect you’ve done something illegal or unethical.
(b) Suspension of Services under this clause doesn’t affect your liability to make payment. We’ll lift the suspension when the issue giving rise to the suspension is remedied.

9.2 Force Majeure. 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. However, either party may terminate this Agreement if the Force Majeure continues for more than 40 days.

10. Termination

Summary: Either party can terminate this Agreement if someone does the wrong thing and doesn’t fix it in time. This Agreement can also end with appropriate notice. You’ll need to pay us for any work done up to termination and if you’re on a contract, we can charge you for the time remaining on the contract term.

10.1 Termination for default. Either party may end this Agreement immediately by written notice if the other party fails to remedy a Notice of Default within the timeframe allotted, experiences an Insolvency Event or is guilty of dishonesty, serious misconduct or serious neglect of duty. That party may also, at its discretion, terminate any other Orders or other contracts that are currently on foot.

10.2 Termination by Notice. We may end an Order or this Agreement with 7 days written notice or notice prior to the end of the current billing period (whichever is sooner). We may also, at our discretion, terminate any other Orders or other contracts that are currently on foot. You may end an Order or this Agreement by giving us:

(a) for social media management contracts, no less than 60 days written notice; or
(b) for social media marketing contracts, no less than 30 days written notice.

and in any case, no less than two pay cycles notice for social media management contracts (a) and no less than one pay cycle for social media marketing contracts (b).

10.3 Consequences of Termination. If this Agreement ends for any reason, then in addition to any other rights we may have, we may issue an invoice for Fees not previously invoiced, whether for Services or any other charges contemplated by this Agreement. You must pay all of our outstanding invoices whether or not due at termination. We may also immediately terminate any other Orders or other contracts currently on foot, regardless of whether termination was at our behest or not. Where you’ve committed to a contractual term and the termination is instigated by you and not due to our default, we may charge you all Fees for the remaining contract term (and you warrant that you’ll pay it without any dispute).

11. Dispute Resolution

Summary: If we have a serious disagreement, we need to sort it out. Neither of us can run straight off to court – we’ll try mediation first.

11.1 Mediation. If a dispute arises between the parties in relation to this Agreement, either party may give the other party a written notice that they intend to arrange mediation. The parties must refer the dispute to an independent mediator within 21 days of the written notice. If the parties cannot agree on a suitable mediator, either party may contact the Law Society in their state and request that they provide a mediator. The costs of the mediation must be paid by the parties in equal shares.

11.2 Legal Proceedings. No party may commence court proceedings unless the dispute remains unresolved after 28 days from the date of the written notice provided under clause 11.1.

11.3 Dispute resolution not to apply to debts. The dispute resolution procedure set out in this clause 11 will not apply in any instance where we seek to enforce a debt in connection with these Terms.

12. Security, Privacy and Data

Summary: You need to take care of your own internal digital security. We’ll both comply with reasonable obligations regarding information privacy too.

12.1 Security Generally. You’ll use appropriate security measures in connection with the services, including setting strong passwords, conducting adequate security training and implementing any relevant procedures recommended by the Department of Industry, Innovation and Science (see – https://www.business.gov.au/Risk-management/Cyber-Security) and the Australian Cyber Security Centre (see – https://www.acsc.gov.au/ and https://cyber.gov.au) from time to time.

12.2 Notifiable Data Breaches. You’ll notify us within 48 hours if you learn of any security breaches related to the Services. If it could constitute a Notifiable Data Breach under Privacy Law, you’ll notify us within 3 hours and assist us wherever we require.

12.3 Malicious code. It’s your responsibility to protect your systems from Malicious Code.

12.4 Release. You release us from any claim or liability for your breaching this clause 12 or for a breach in areas of your systems under your responsibility. Where we’re actively employing measures to combat cyber-crime and an exploit or hack occurs on our end, you agree to hold us harmless for the consequences of same.

12.5 Privacy Policy. You agree to our privacy policy published on our website and us handling personal information in accordance with it. We make no guarantees or warranties that we’ll be compliant with any foreign privacy laws, or that the Services will bring you into compliance with same.

13. General

Summary: Some other general obligations for both of us which haven’t been dealt with elsewhere.

13.1 Jurisdiction. The laws of Queensland, Australia apply to this Agreement and the parties submit exclusively to the courts of that jurisdiction.

13.2 Relationship between the parties. Nothing in this Agreement constitutes an agency, partnership or contract of employment, or as a guarantee of future employment or engagement. It is the express intention of the parties to deny those relationships.

13.3 Survival. The parties’ rights and obligations under clauses 6, 7, 10.3 and 11 and will survive termination.

13.4 Variation. Any variation or amendment to this Agreement must be in writing signed by all parties.

13.5 Giving effect to this document. 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 this document.

13.6 Waiver. 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.

13.7 Privacy. We will handle any information received under the services in line with our privacy policy. You must handle all information you receive according to the Privacy Act 1988 (Cth).

13.8 Notices and Communication. Notices must be in writing. Either party may serve any communication on the other party by sending it to that party’s email address. The parties agree to send, receive and execute documents electronically in accordance with the Electronic Transactions Act 1999 (Cth), the Electronic Transactions (Queensland) Act 2001 (Qld) and section 127 of the Corporations Act 2001 (Cth).

13.9 Non-solicitation. During this Agreement and for 12 months afterwards, you can’t approach, entice or hire our employees without our express permission. If you do and they join you, you must pay us an amount equal to 50% of their new annual income.

13.10 Inconsistency with other documents. If this document is inconsistent with any other document or agreement between the parties, this document prevails to the extent of the inconsistency, except where that inconsistency arises from an Order, in which case the most recent Order will prevail.

13.11 Consents. Where this Agreement states that our consent or approval is required, we may:

(a) give or withhold that consent or approval in our absolute discretion; and
(b) give that consent or approval subject to conditions, unless this Agreement expressly states otherwise.

13.12 Operation of this document

(a) This document contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this document and has no further effect.
(b) Any right that a person may have under this document is in addition to, and does not replace or limit, any other right that the person may have.
(c) Any provision of this document which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this document enforceable, unless this would materially change the intended effect of this document.

14. Definitions and Interpretation

Summary: Definitions of all the capitalised terms in this agreement, and some guidelines for interpreting this Agreement in general.

14.1 Definitions
In this Agreement:

Agreement means these Terms and Conditions and the relevant Order.

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

Claim means any claim notice, demand, investigation, action, proceeding, litigation, or judgment 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.

Default Rates means the rate set out in the Order for personnel who provide the services.

Fees means the total fees for any Services purchased by you, as set out in the Order.

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.

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:

(a) enters into a scheme of arrangement with its creditors;
(b) is wound up or dissolved, or an administrator, liquidator or receiver is appointed; or
(c) 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.

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

Order means any document setting out the details of an engagement with us which references these Terms and Conditions.

Us, we or our means Blue Flame Social Media Pty Ltd.

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

Services means services that you request, order or purchase under this Agreement, the details of which are set out in the Order.

Terms and Conditions or Terms means this document.

You or your means the party whose details are particularised in the Order which links these Terms and Conditions.

14.2 Interpretation
The following rules of interpretation apply unless the context requires otherwise:

(a) a reference to a party includes that party’s permitted assigns, administrators, successors, executors, legal representatives and any novated party;
(b) any reference to a trustee includes any substituted or additional trustee;
(c) unless used for the usual grammatical purpose, inverted commas around a term indicate industry jargon that will be interpreted according to how that term would be understood by an individual with expertise in the relevant industry;
(d) “including”, “includes” or any derivation of those words does not limit the matter in question to the things specifically mentioned in the applicable context;
(e) where a term is defined, other grammatical forms of that term will be taken to have the same meaning;
(f) headings are for convenience and will not affect interpretation;
(g) words in the singular will be taken to include the plural and also the opposite;
(h) a reference to $ is a reference to Australian dollars;
(i) a reference to a party’s conduct includes omissions as well as acts;
(j) if a party is described as having discretion in a matter, the discretion in that matter will be interpreted as sole and absolute; and
(k) where a party is required to do “anything necessary”, this includes executing agreements and other legal instruments.