T&Cs
Terms and Conditions of Service
1. DEFINITIONS
The following expressions used in these Terms and Conditions have the following meaning unless the context
clearly requires otherwise:
a) Claim means, in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost, liability, action,
proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or
recovered by or against the person or company, however arising and whether ascertained or unascertained, or
immediate, future or contingent;
b) Contract means any Proposal accepted by you which includes these Terms and Conditions;
c) Client (you / your) means the person or entity specified as “Client” on a Proposal, website sign-up, or otherwise
provided by you in entering into the Contract with us;
d) Debt means any and all moneys due and owing by you to Socially Sands whether in relation to one or more
Contracts and includes, without limitation, any Overdue Amounts;
e) Fees means the fees payable by you to Socially Sands for the Services provided pursuant to a Proposal;
f) Goods includes any (novel) software programs, content, editing, source and object codes, specifications,
designs, processes, techniques, concepts, improvements, discoveries, ideas, inventions and related documentation,
made or arising in connection with the Services;
g) IP means all intellectual and industrial property rights (such as copyright and related Rights), all Rights in
relation to inventions (including patents and patent Rights), all registered and unregistered trademarks, all
Rights relating to registered designs, and all other Rights resulting from intellectual activity in the artistic,
literary or scientific fields excluding any moral attribution Rights;
h) Obligation means any express or implied legal, equitable, contractual, statutory or other obligation, promise,
agreement, covenant, commitment, duty, undertaking or liability;
i) Proposal means any verbal or written communication made by Socially Sands (or any person on behalf of
Socially Sands) to you for the supply of Services to you, which includes Services advertised via our website, online
booking services, social media and online content, or in specific quotations or invoices;
j) Overdue Amount means any amount of money that remains unpaid after the due date on an invoice provided
to you pursuant to a Proposal you have accepted has passed;
k) Parties means you and Socially Sands;
l) Personal Information has the definition attributed to it under the Privacy Act 1988 (Cth);
m) Rights means any legal, equitable, contractual, statutory or proprietary right, chosen in action, power,
authority, benefit, privilege, remedy, or discretion;
n) Services means any service that Socially Sands may provide from time to time;o) Socially Sands means Big Fat Mouths Media Pty Ltd ACN 678 342 446 and any of its related entities, servants and
agents; and
p) Terms and Conditions means the Terms and Conditions set out in this document.
2. GENERAL
When you enter into a Contract with Socially Sands you agree that:
a) you have read and understood these Terms and Conditions and you agree to be bound by them;
b) these Terms and Conditions apply to every transaction for the supply of Goods or Services Socially Sands
provides to you;
c) any variation to a Contract or these Terms and Conditions must be made with the consent of both Parties and
must be in writing and agreed to by both Parties;
d) each party will be and act as an independent contractor and not as an agent or partner of, or joint venturer
with, the other party for any purpose related to the Contract or the transactions contemplated by any
Contract, and you do not have any Rights, power or authority to act or create any Obligation, express or
implied, on behalf of Socially Sands;
e) during the rendering of Services and for a period of 1 year after the completion of the Services, you will not
solicit, offer employment, or in any way procure the services of an employee of Socially Sands or any consultant
deployed by Socially Sands in rendering Services to you. In the event that you breach this provision, Socially
Sands will be entitled to recover from you, liquidated damages equal to 20% of:
(i) in the event that the relevant employee has been engaged on a full-time basis in the 12-month period preceding
the breach, the relevant employee’s gross income paid by Socially Sands during the 12-month period preceding the
breach; or
(ii) in the event that the employee has not been engaged on a full-time basis in the 12-month period preceding the
breach, the employee’s or consultant’s gross income paid by Socially Sands pro-rated and extrapolated to a full-
time gross annual amount; or
(iii) the relevant consultant’s gross income paid by Socially Sands pro-rated and extrapolated to a full-time
gross annual amount.
f) Socially Sands may subcontract any and all of its Rights and Obligations under any Contract to a third party.3. PROPOSALS TO SUPPLY
a) Socially Sands will provide you with a Proposal which may be delivered in writing, advertised on our website, social
media or via email.
b) You acknowledge that by agreeing to our Proposal, you are agreeing to be bound by these Terms and Conditions.
c) You may accept a Proposal by:
(i) written notice to Socially Sands;
(ii) making payment via the website or other online platform;
(iii) verbally communicating your acceptance to Socially Sands personnel, or
(iv) allowing (through act or omission) Socially Sands to provide Services to you.
4. ENTIRE AGREEMENT
a) These Terms and Conditions and the terms of any approved Proposal are the only terms that apply to the Contract.
b) You fully indemnify and hold Socially Sands harmless from any Claim based on terms and conditions outside of these
Terms and Conditions.
5. TERM
Each Contract will remain in force until varied in writing by agreement of the Parties.
6. PPSAYou acknowledge and agree that pursuant to the Contract and for the purposes of the Personal Properties and
Securities Act 2009 (PPSA):
(i) if any part of Socially Sands’s invoices remain unpaid:
a. Socially Sands will retain ownership of the Goods and IP provided as part of (or developed out of)
the Services; and
b. you will remain a mere bailee in possession by virtue of it being on your site or social media
platform to conduct the Services until any Overdue Amount is paid;
(ii) Socially Sands will maintain a security interest in all of your assets as well as any work product created
that has derived from the Services Socially Sands provided until any amount stated in any invoice issued by
Socially Sands is paid in full;
(iii) Socially Sands is entitled in its sole discretion to take such steps as it considers necessary to register its
security interest on the PPSA register including providing information about you as the grantor of the
security interest; and
You grant Socially Sands the right to lodge any (or all) of the following:
(i) general security interest over your all present and after-acquired assets;
(ii) a PMSI over any Goods, IP or other work product created as part of the Services or ancillary to the
Contract;
(iii) a specific security interest over any account, invoice or request for payment issued by you to a third
party which includes Goods or Services wholly or partly provided by Socially Sands.
7. OWNERSHIP OF IP FOR CONTENT CREATION
a) The parties agree that any IP that Socially Sands makes, develops, or conceives in providing its Goods or
Services for content creation, content editing or IP for your social media, will vest in you (to the extent that it
was created by Socially Sands and no other party has ownership in the IP) upon full payment to Socially Sands of
any amount stated in any invoice, payment plan, or Proposal issued by Socially Sands to you.b) Upon completion of the Services under the applicable Proposal, all Rights in the Goods or Services that
Socially Sands makes, develops or conceives will solely and exclusively vest in you, upon full payment to Socially
Sands of any amount stated in any invoice issued by Socially Sands to.
c) Until such time, you shall not sell, transfer, publish, display, disclose or otherwise make these Rights available
to any third party without the prior written consent of Socially Sands.
8. OWNERSHIP OF IP FOR COURSE MATERIAL
a) The parties agree that an IP that Socially Sands makes, develops, or conceives in delivering its Services to you
for educational purposes, as a part of a course, or training, will remain the sole property of Socially Sands (to
the extent that it was created by Socially Sands and no other party has ownership in the IP).
b) You shall not sell, transfer, download, copy, share, publish, display, disclose or otherwise make these Rights
available to any third party without the prior written consent of Socially Sands.
c) You may print off one copy and may download the extracts, of any pages(s) from our platform for your
personal use only, and you may draw the attention of others to content posted on our platform/s.
9. INSURANCE
You must maintain Public Liability insurance to a minimum of $20 million for each instance that covers Socially
Sands and its servants, agents and employees in the event they are required to attend any site or premises occupied
(or controlled) by you. You agree to indemnify Socially Sands against any Claims resulting in our attendance at any
site premises occupied (or controlled) by you.
10. NO REPRESENTATIONS
You acknowledge that no employee, agent, representative or affiliate of Socially Sands has the authority to bind
Socially Sands to any oral representations or warranty concerning the Goods or Services. You agree that any
written representation or warranty not expressly contained in these Terms and Conditions is unenforceable.11. CLIENT’S DUTIES AND RESPONSIBILITIES
a) You are required to make available in a timely manner, at your own cost, all technical data, computer
facilities, programs, files, documentation, test data, sample output, photographs, videos or other information and
resources required by Socially Sands for the performance of the Services. You are responsible for and assume the
risk of any damage resulting from the content, accuracy, completeness, and consistency of all such data,
materials, and information supplied to Socially Sands.
b) You may be required to provide, at your own cost, office space, services and equipment (such as copiers, fax
machines and modems) reasonably required by Socially Sands to perform its Services. You agree that certain
Services may be provided by Socially Sands via remote access, requiring the establishment of a secure link via the
Internet, and you agree that you will assist Socially Sands in establishing and maintaining such a remote
connection when required.
c) You acknowledge that while Socially Sands is providing you with a Service the results of the Service are not
guaranteed, should you not adapt and incorporate the Service knowledge into your business/platform. You
acknowledge that you are required to put in the work to get results.
12. DIRECT DEBIT
a) Socially Sands may require you to pay the fees specified in a Proposal by way of direct debit. In such cases, you
authorise Socially Sands to debit the fee specified in the Proposal from your nominated account.
b) You acknowledge and agree that direct debit payments are managed on behalf of us by a third party.
13. FEES AND PAYMENTS
a) Under the Proposal, you have the option to choose your payment method which may include direct debit,
payment plan, subscription payment, direct upfront payment, or otherwise advertised by Socially Sands.b) By entering into a Contract with Socially Sands, you must pay Socially Sands within the terms of the Proposal,
unless otherwise specified on an invoice or in a Proposal, or otherwise advertised.
c) If you fail to pay an amount as per the payment arrangement with Socially Sands, the unpaid portion of the
relevant payment becomes an Overdue Amount.
d) You do not have any right to set off any amount against a Debt or Overdue Amount. You agree any Claim you
have against Socially Sands for monetary remuneration will be made separately from your Obligations to make
payment of a Debt under this Contract.
e) Socially Sands may charge you a dishonour fee and interest at a rate of four (4) % per month on any Overdue
Amount until the Overdue Amount is paid.
f) If you accept our Proposal, our rates for Services provided pursuant to that Proposal will be as expressly stated
in that Proposal (or any further correspondence we issue to you) and you acknowledge the provisions and
expectations listed for the potential for any Services to be required outside of the scope contained in the
Proposal.
g) If Socially Sands foresees that further work is required and is not included in the scope original Proposal, it
will inform you in writing as soon as reasonably practicable.
14. CANCELLATION OF COACHING CALL (if applicable)
a) You warrant that if you are required to cancel a pre-booked (or reoccurring) coaching call Service with
Socially Sands, you acknowledge that you must provide 24 hours’ notice to be eligible for a rescheduling of the
Service.
b) In the event that you do not provide 24 hours' notice to Socially Sands, you acknowledge that you will forfeit
your pre-booked call and will not be eligible for a re-schedule unless decided otherwise at Socially Sands' sole
discretion.15. PRIVACY
a) From when you contact us, we will collect Personal Information about you, including information relating
to your business and finances. Your Personal Information may be:
(i) transferred to and stored out of Australia, including to a country that does not have the same level of privacy
protection as Australia; and
(ii) disclosed to and used by other third-party contractors or persons, to allow you access to our Services.
b) By signing this Agreement, you consent to us collecting, using, disclosing, and dealing with your Personal
Information in accordance with this clause. You consent to the transfer and storage of your Personal
Information outside Australia, and the disclosure and use of your Personal Information to third-party
providers inside and outside Australia.
c) You must tell us promptly if you change your contact or payment details or if there is a change to other
relevant Personal Information.
16. OUR PROMISE TO YOU
Socially Sands is passionate about providing Service that is of high quality and high professional standard. If at any
point you are not completely satisfied with the Service we have provided, we encourage you to bring this to our
immediate attention. We will then, appropriately address your concerns.
17. DISPUTE RESOLUTION
If you consider there is a genuine dispute between the Parties regarding any aspect of a Contract, you must give
Socially Sands notice in writing setting out the full details of the dispute (Dispute Notice) before seekingarbitration or commencing other legal proceedings. The Parties agree to take the following steps to resolve the
dispute:
a) for a period of 14 days after a Dispute Notice is given (or a longer period if the Parties agree in writing), the
Parties will engage in negotiations and discussions in order to seek to resolve the dispute;
b) the Parties must participate in the negotiations and discussions and use all reasonable endeavours to resolve
the dispute. The Parties may also appoint third-party consultants to assist in the resolution of the dispute;
c) if the Parties cannot resolve the dispute within the period stated in paragraph (a), the dispute may be referred
to –
(i) mediation provided that both parties agree to refer the matter to mediation and agree to the appointment of a
particular mediator; or
(ii) a court of competent jurisdiction or an adjudicator with jurisdiction to determine the dispute, such referral being
made by either of the Parties.
18. ILLEGALITY AND SEVERABILITY
So far as possible a Contract will be construed so as not to be invalid, illegal or unenforceable but if any provision is
deemed by a court of competent jurisdiction to be illegal, invalid or unenforceable:
a) that provision will be read down to the extent necessary to ensure that it is not illegal, invalid or unenforceable and
in such manner as may be reasonable in all the circumstances so as to give it a valid operation of a partial character; or
b) if the provision or part of it cannot be read down in a manner that will give it a valid operation, then the provision or
relevant part will be deemed to be void and severable and the remaining provisions of this document will not in any way
be affected or impaired.
19. OUTSOURCED SERVICES
We may engage third parties to provide the best possible Service. You agree to us utilising such third parties to provide
Goods or Services to you.
20. JURISDICTION
You agree that the laws of Queensland apply to a Contract regardless of your business, residential location, the
location nominated for delivery of any Goods, the address for the supply of Services or any other factor.
21. ELECTRONIC COMMUNICATIONYou agree that we will communicate with each other by electronic means such as e-mail or SMS. You recognise e-mail
and the internet are inherently insecure and that emails and data can become corrupted, are not always delivered
promptly (or at all) and that other methods of communication may be appropriate. You acknowledge such hazards
and you acknowledge that you are responsible for protecting our own systems and interests and we are not
responsible for any loss or damage in any way arising from the use of electronic communication.
22. LIMITATION OF LIABILITY
a) If you have a genuine grievance with any Service you must notify Socially Sands in writing within three days
after that Service is supplied. Socially Sands will then consider the merits of your claim and at its sole
discretion:
(i)re-supply/amend the Service;
(ii) provide a partial refund for that Service; and/or
(iii) decline to provide any remedy contained in this clause.
b) Socially Sands expressly disclaims, to the fullest extent permitted by law, all express, implied and statutory
warranties.
c) Where any statutory warranties may not be excluded, the Parties agree that Socially Sands’s liability is limited
to an amount equal to the cost of replacement of the Service.
d) You agree that Socially Sands will not be liable for any damage, loss, expense, charge or cost incurred by you
as a consequence of:
(i) any delay by Socially Sands to supply Services to you, whether caused by breakdown, accident, collision,
termination of Services by you, termination of Services by Socially Sands or otherwise;
(ii) termination of Services by you;
(iii) termination of Services by Socially Sands;
(iv) any injury or death to a person; and/or
(v) any damage to property;
whether caused directly or indirectly.
e) You must fully indemnify Socially Sands against any Claim against Socially Sands under a Contract or as a
result of entering into a Contract and arises from or in connection with:(i) any injury or death to a person; and/or
(ii) any damage to or theft of Goods or property.
23. TERMINATION
Termination by Socially Sands
a) Socially Sands may terminate a Contract immediately upon notice to you in any form at any time and for any reason.
Reasons that may instigate a termination of the Contract, include (but are not limited to):
(i) You fail to pay our invoices (or payment plans) on time;
(ii) You fail to provide us with the requested information in a reasonable time;
(iii) You fail to provide us with adequate instructions;
(iv) Your instructions involve acting to the contrary to the interest of another client;
(v) A conflict of interest has arisen or it is not appropriate for us to continue to act on your behalf; and
b) Socially Sands's only liability to you upon the termination of the Contract is limited to refunding payments
made in advance for Services not yet provided offset against any Debt owing to Socially Sands.
Termination by you
a) You may terminate a Contract by providing thirty (30) days' written notice to Socially Sands sent:
1. by express post to: Big Fat Mouth Media Pty Ltd at 5/50 Balmain Street, Wooloowin QLD 4030
2. emailed to: [email protected]
b) Upon your termination of a Contract, you will still be liable to pay Socially Sands any Debt, Overdue Amounts
and any amount that would have been payable under a Proposal had you not terminated the Contract.
Effect of TerminationYour Rights and Obligations which in their nature are intended to continue even after termination of a Contract
shall continue to exist after termination of such Contract, including amongst others, the provisions with respect
to payment of fees, the Rights, limitation of liability, confidentiality, governing law and competent courts.
24. CONFIDENTIALITY
a) The Parties will receive and hold in complete confidence all information which they may obtain directly or
indirectly pursuant to any Contract or the negotiation thereof including the contents and substance of any
Contract (the Confidential Information). The Parties will take such steps as may be reasonably necessary to
prevent disclosure of the Confidential Information to others.
b) The Parties will not use any of the Confidential Information, except as necessary for the proper execution of a
Contract, it being further understood that the Confidential Information may be communicated in confidence
within the receiving Party's organisation, but only to those persons having a need to know such information for
the proper execution of a Contract. The Parties warrant that the above-mentioned persons will be bound by the
same confidentiality obligations that the Parties have agreed upon in the Contract. The Parties further warrant
that the Confidential Information will be kept in secure places, under access and use restrictions not less strict
than used by the Parties themselves to protect their own business secrets.
c) The Parties agree to return all tangible Confidential Information of the other Party including all copies
made thereof, promptly upon request by the other Party.
d) The obligations imposed by this Clause 24 will continue in effect for the term of five (5) years from the date of
the last disclosure of any Confidential Information.
