Terms of Agreement
1. The Agreement
1.1 This Agreement commences on the Start Date (date that offer is purchased, and payment is made) and ends when the parties terminate it in accordance with clauses 12.1 or 12.2.
1.2 The Manager (Pink Cow Social) agrees to perform the Services for the Client at the Price set out in the Schedule.
1.3 The Client agrees to accept the Services on the basis set out in this Agreement.
2. What the Social Media Manager Must Do
2.1 The Manager must:
(a) Comply with the Agreement and the Timeline for Delivery of Services in the Schedule, including any set schedule for posting on Social Media Accounts;
(b) Support the Client’s development of its brand identity, promotional strategies and social media goals (as completed in the questionnaire) in performing its Services;
(c) Stay up to date on the latest trends on all social media channels and accounts;
(d) Comply with any reasonable technical directions given by the Client during the term of this Agreement;
(e) Perform their Services under this Agreement to the best of the Manager’s knowledge and abilities in a professional, efficient and safe manner without negligence;
(f) Ensure that they have sufficient resources to perform their obligations under this Agreement;
(g) Ensure that the Key Person or Key People perform the Services in compliance with this Agreement;
(h) Comply with all applicable standards, awards, laws and regulations;
(i) Notify the Client at the first available opportunity if any Key Person or Key People are unable to perform the Services during the term of the Agreement;
(j) Subject to the Client’s agreement, replace a Key Person or Key People unable to perform Services with persons approved by the Client; and
(k) Provide all of the Manager’s Equipment necessary to provide the Services at their own expense unless otherwise agreed in writing with the Client.
2.2 The Manager must also provide the Client with a Tax Invoice at agreed times throughout the term for the Price that:
(a) Complies with any requirements from the Australian Taxation Office;
(b) Includes the Manager’s Australian Business Number (ABN);
(c) Includes an itemised list of the Services billed by the Manager under that invoice; and
(d) Includes a list of expenses claimed by the Manager, noting that such expenses should be pre-agreed between the parties and evidence of receipts provided before the Client will agree to pay them.
3. What the client must do
3.1 The Client must:
(a) Allow the Manager to access the Client’s Social Media Accounts during normal working hours or extended hours as agreed to supply the Services where applicable; and
(b) Promptly provide the Manager with all information in the Client’s possession or control that the Manager reasonably requires to provide the Services.
(c) Understand that Sked Social is the publishing tool of choice and shall a client choose not to use this tool they understand the analytics will be more basic and derived from the social accounts rather than a detailed overview.
(d) Approve posts in a timely (24 hours from the time of receiving the post-approval email) to ensure that the social media posting process isn't held up or delayed. Only one change can be made to copy without further charges being incurred.
(e) Understand that posts that are not physically approved in Sked Social will not be posted under any circumstances regardless of comments in emails etc.
(f) Acknowledge that Social Media is only one element of its marketing plan, and while the Manager (Pink Cow Social) will do everything in its power to achieve great results on your social media in terms of engagement rate, followers etc, there is no guarantee of any increase in business sales or new clients and the Manager ( Pink Cow Social) will not be held liable in this regard in any way.
(g) Provide high-quality, ready-to-post imagery that has been previously approved by the necessary parties for posting.
(h) Understand that if they want to post on the various platforms whilst the Manager (Pink Cow Social) is posting then they will work around the posting times specified by the Manager (Pink Cow Social).
4. Relationship Between the Parties
4.1 The Manager acknowledges that it will supply the Services as an independent contractor.
4.2 Nothing in this Agreement gives rise to any relationship of employer and employee, agency, partnership or otherwise between the parties.
5. Records
5.1 The Manager must keep adequate records in sufficient detail to enable their compliance with this Agreement to be verified records and permit the Client to inspect the records upon reasonable notice at reasonable times to verify the cost of the Services as set out in the Schedule.
6. Price and Payment
6.1 Upon accepting the offer, payment will be automatically deducted from the nominated credit card weekly. Upon commencement, a 4-week upfront payment is required. An invoice will be sent to the Client.
6.2 The Price is inclusive of GST unless otherwise specified by the Manager.
6.3 The Manager is responsible for the payment of all taxes, fees, charges and other imposts that apply to them with respect to the Services and indemnifies the Client against any taxes, fees, charges and other imposts, excluding income tax, payable by the Client.
6.4 The Client may by notice in writing to the Manager provide four weeks notice if wanting to reduce the price/social media package.
7. GST
7.1 Unless otherwise stated, the Price is inclusive of all Taxes including GST. If any supply under this Agreement is a Taxable Supply, then the party making the supply may, at the same time that an invoice is rendered for the agreed consideration for the Taxable Supply, recover the amount of GST payable on that Taxable Supply, subject to the issue of a valid Tax Invoice.
8. Access to Social Media Accounts and IT Systems
8.1 Without limiting the generality of clauses 8.2 and 8.3, the Client must provide the Manager and their Key Person or Key People with access to and use of their Social Media Accounts, and may also provide the Manager with access to and use of their IT Systems, to enable the Manager to provide the Services.
8.2 In accessing and using the Client’s Social Media Accounts and IT System with respect to clause 8.1, the Manager must ensure that they and their Key Person or Key People:
(a) Only access the part of the Social Media Accounts and/ or IT System which they are authorised to access;
(b) Only do so to perform their obligations under this Agreement;
(c) Do not use the Social Media Accounts and/ or IT Systems for unlawful activity or to send or transmit any information that is obscene, indecent, uses offensive language, defames or offends any person;
(d) Do not knowingly or recklessly transmit any computer virus to the Social Media Accounts and/ or IT Systems;
(e) Do not remove any antivirus or other software;
(f) Do not tamper with the Social Media Accounts and/ or IT Systems or make unauthorised modifications to it; and
(g) Do not delegate the use of the Social Media Accounts and/ or IT Systems for the use of any unauthorised third party.
8.3 In seeking access to the IT Systems and Social Media Accounts, the Manager and the Key Person or Key People agree:
(a) To comply with any computer, internet and social media use policies provided to them by the Client;
(b) Note that the Client is entitled to monitor their usage of the IT Systems and Social Media Accounts at the Client’s discretion; and
(c) If the Client provides a password or passwords for the access of IT systems, Social Media Accounts or other third-party platforms, to return and/ or destroy those passwords at the termination of this Agreement.
9. Intellectual Property Rights
9.1 The Client does not claim ownership of anything of the Manager that is not developed, created or generated specifically for the Client.
9.2 The client warrants that it will not provide for use by The Manager (Pink Cow Social), the material owned by a third party which would breach the ownership rights of a third party.
10. Warranties, Indemnities and Insurances
10.1 The Manager warrants that:
(a) In supplying the Services, they will not infringe the intellectual property rights of any person;
(b) All Services will be supplied with due care and skill; and
(c) They have all rights, consents and licenses necessary to use the Equipment in supplying the Services.
10.2 The Manager indemnifies the Client for all Claims against, losses and damages suffered by the Client as a result of any breach of a warranty in clause 10.1.
11. Confidentiality
11.1 Each party:
(a) May use Confidential Information of the other party solely for the purposes of this Agreement;
(b) Except as permitted under this clause, must keep confidential all Confidential Information of the other party; and
(c) May only disclose Confidential Information of the other party only to persons who are aware and agree that the Confidential Information of the other party must be kept confidential, who have a need to know (and only to the extent that each has a need to know), or have been specifically approved by the other party or as required by law or stock exchange regulation.
11.2 If required by the Client, the Manager will require each of their employees and subcontractors to enter into an agreement with the Client containing confidentiality obligations the same as those in this clause.
12. Termination
12.1 This Agreement terminates if:
(a) The Manager has finished supplying the Services in accordance with this Agreement.
(b) Either party gives the Minimum Termination Notice Period of 4 weeks to the other party; or
(c) This Agreement is terminated immediately in accordance with clause
12.2. A party may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) The other party breaches a material term of this Agreement that is not capable of remedy;
(b) The other party breaches a material term of this Agreement that is capable of remedy but is not remedied within 5 days after receiving a notice requiring them to do so;
(c) The other party enters into liquidation or insolvency (being a company) or bankruptcy (being an individual); or
(d) An Insolvency Event occurs in relation to the other party.
12.3 The Client is not entitled to terminate the contract within 3 months as results, working schedules, communication and process take time to master.
13. After Termination
13.1 On termination, each party must return to the other party all Confidential Information of that other party in material form (including without limitation, those parts of all notes or records containing Confidential Information of the other party) in that party’s possession or control.
13.2 At any time after the termination of this Agreement, a party must not:
(a) Use or disclose to any person any Confidential Information of the other party;
(b) Record any Confidential information of the other party; or
(c) Sell or otherwise transfer any Confidential Information of the other party.
13.3 Clauses 3, 6, 7, 10, 11, 13.1 and 13.2 continue to apply after termination.
- Limitation of Liability
14.1 Neither party will be liable to the other party for any Consequential Loss suffered or incurred by the other party arising out of or in connection with this Agreement, whether arising under contract law, tort law (including negligence) or otherwise.
14.2 To the maximum extent permitted by Law, the Client’s maximum aggregate liability to the Manager arising out of or in connection with this Agreement is limited to the total amount of the Price paid under this Agreement.
- Subcontracting
15.1 The Manager may subcontract the performance of any or all of their obligations under this Agreement to any person (other than any person specified in the Schedule as a permitted sub-contractor) at the Manager’s sole discretion.
16. How to Deal with Service Problems
16.1 The Manager (Pink Cow Social) must notify the Client immediately after becoming aware of anything that is likely to or will result in a material delay in or failure to perform any Services, specifying at least:
(a) The nature of the delay or problem;
(b) The cause of the delay or problem;
(c) The steps being taken to minimise the impact of the delay or problem; and
(d) Whether or not the problem is caused by something outside the Manager’s reasonable control.
16.2 The Manager must:
(a) Keep the Client informed of how they plan to work around the problem and progress made in that regard; and
(b) Comply with all reasonable requests made by the Client to prevent, or minimise the impact of, the delay or failure.
(c) If unsatisfied with the resolution then provide the minimum termination amount of 4 weeks in writing.
- Assignment
17.11 The Manager must not assign this Agreement or any right under this Agreement without the Client’s written consent.
- Notices
18.1 A party that is required to notify the other party or give a notice to the other party under this Agreement must provide a notice which is:
(a) In writing;
(b) Addressed to the address of the other party specified in the Schedule; and
(c) Sent by email to the address that the Client has been communicating to.
- How Can the Parties Vary This Agreement?
19.1 If the parties want to vary this Agreement (including varying the Services set out in the offer), they must do so by writing an email outlining which package they would like to increase or reduce to.
- Entire Agreement
20.1 This Agreement contains the entire agreement between the parties and will take priority over all previous agreements, negotiations, understandings, representations, warranties and commitments.
- What Law Governs This Agreement?
21.1 The laws of the State in which the Manager resides govern this Agreement.
- Definitions
22.1 In this Agreement:
(a) Agreement means this Social Media Manager Services Agreement.
(b) Claim means a claim, action, demand, damage, loss, liability, cost, charge, expense (including legal costs on a full indemnity basis), outgoing, fine or payment.
(c) Client means the Client with details set out in the Schedule.
(d) Confidential Information of a party means information of a confidential nature including information about their business, operations, strategy, technology, customers, affairs, employees, the Manager, suppliers or clients, but does not include any information that is in the public domain, other than through a breach of confidence.
(e) Consequential Loss means any loss of profits, loss of revenue, loss of any contract Value, loss of anticipated profit or damages for lost opportunity.
(f) Dispute means a dispute arising out of or relating to this Agreement, including without limitation, a dispute about the breach, termination, validity, or subject matter of this Agreement, or a claim in equity or in tort relating to the performance or nonperformance of this Agreement.
(g) Equipment means any equipment or materials specified in the Schedule.
(h) GST means a goods and services tax, or a similar value added tax, levied or imposed under the GST Law.
(i) GST Law has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(j) Insolvency Event means the occurrence of any event of insolvency including a winding up application being made and not withdrawn within 21 days, a failure to comply with a statutory demand, the appointment of a provisional liquidator or administrator, the entering into of an arrangement with creditors, a voluntary winding up other than for the purpose of a bona fide corporate reconstruction, any inability to pay debts as and when they fall due, any admission of insolvency, any court order relating to any of the above or anything which occurs under the law of any jurisdiction which has a similar effect to any of the above.
(k) IT Systems means the Client’s information technology systems, including any development, test and production environments operated by the Client within their business.
(l) Key Person or Key People means the Key Person or Key People specified in the Schedule.
(m) Minimum Termination Notice Period means the minimum notice period to be given by either party to terminate the Agreement as set out in the Schedule.
(n) Price means the price specified in the Schedule.
(o) Services means the Services set out in the Schedule and include all things, materials, deliverables, documents, information and items developed by or on behalf of the Manager or their employees or sub-contractors of or in the connection with the supply of the Services. Services includes electronic form and encompasses all software, inventions, designs, graphics, logos, artworks, advices, proposals, models, drawing, plans and the like.
(p) Social Media Accounts means the social media accounts that are owned by the Client, including but not limited to those set out in the Schedule.
(q) Start Date means the date in the Schedule that this Agreement starts.
(r) Tax Invoice has the meaning given in the GST Law.
(s) Taxable Supply has the meaning given in the GST Law.
(t) Manager means the Manager and any Key People or sub-contractors employed by the Manager.
- Other things to note
Content Creation involves Pink Cow Social sourcing and researching content that’s relevant to your business, target market and industry related trends, etc. The content is then written accordingly for Social Media.
• Community interaction involves commenting on people’s stories/accounts, sharing some of their feed posts, and liking their content. Please note it doesn't include responding to comments unless specified in your offer.
• A tailored hashtag strategy is a collection of hashtags that have been researched and are relevant to your business offering and your target market.
• Timing of posts is determined by research through the various tools that Pink Cow Social have available.
• If you have a link in bio, it is your responsibility to make sure your links are up to date.
