Service Terms and Conditions

Last modified: 27th July 2022

Very Social Media Pty Ltd ACN 652 693 984 trading as Very Social, a company incorporated in Australia (Very Social/we/us) provides various online ad creation services for social media sites, search engine optimisation services, copy and content creation and property listing services on our Suburb Site (Services) for real estate agents and real estate agencies (you/your).

You agree that you shall be bound by these terms and conditions (Agreement) in relation to your access and use of our Services, the manner in which we provide the Services and the payment of our Service Fees for the Services. Please read this document carefully as it contains important information about your rights and responsibilities when using our Services.

Without limiting the way in which you may become bound by this Agreement, you will be deemed to have accepted and will be bound by the terms and conditions of this Agreement by ticking a box on our Website acknowledging that you have read and understood this Agreement, signing a document agreeing to be bound by this Agreement or by proceeding with the any use of the Services. This Agreement commences on and from the date set out in our Services Pack.

1. definitions

Ad means an advertisement created by us using Your Content as part of our Ad Services.

Ad Services means, if your Services Pack includes this as a Service or if you subsequently request us to deliver Ad Services on your behalf, the creation and uploading of Your Content on your behalf onto those platforms you nominate which may include:

· Facebook® and Instagram and/or Social Media sites you elect;

· via Audience Network Placement;

· via In Article.

Ad Service Charges means all fees and charges incurred by us in providing the Services to you such as Google Ad charges, Instagram Ad charges and Facebook Ad charges.

Account means an account that you set up and complete for the purposes of being provided our Services to you.

Audience Network Placement is an Ad created and managed through Facebook which can display across other apps.

Authorised Users means any person who, on your behalf and authority, is granted use by you of our Services.

Change Request means the written request made by either party for changes to the Services after we have both agreed to the scope of Services in our Services Pack.

Change Request Quote means a quote given to you by us after we receive a Change Request from you or if we send you a Change Request.

Confidential Information means all information that is identified as confidential at the time of disclosure by the Disclosing Party (being a party who discloses Confidential Information) or should be reasonably known by the Receiving Party (being a party who receives Confidential Information) to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Confidential Information shall not include information that the Receiving Party can demonstrate: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.

Customer means you, a customer who has requested us to provide the Services to you and includes your Authorised Users.

Customer Dashboard means a general user interface accessible to Customers for the use of the Services.

Enquiries means the contact details of potential customers we communicate to you that we receive from your Suburb Site should you have elected to receive that Service and Enquiry shall mean the same thing.

Enquiry Fee means the fee payable by you to us for every Enquiry we communicate to you.

Feedback means any suggestions, enhancement requests, recommendations, corrections or other feedback provided by you or any Authorised User in relation to the Services.

In Article means an Ad which displays Your Content when people from an audience view these articles. We have no say or visibility over which publishers or what content In-Article ads are displayed with.

Intellectual Property Rights means all intellectual property rights of any kind whatsoever throughout the world, including all present, future, registered and unregistered rights which subsist in Our Content or Your Content including any copyright, trademarks, patents, designs and circuit layouts.

Membership means your membership granted to you on the terms of this Agreement.

Services Pack means the package of services you choose as part of the account set up and online onboarding process setting out the following details:

· our details

· your details

· the Services Pack you have chosen

· the Services that make up your Services Pack

· exclusions that do not form part of your Services Pack

· the Service Fees payable to us for the Services Pack

· the Third Party Charges payable to us that we will incur on your behalf

· the Enquiry Fee

· your nominated budget for Ad Service Charges

· the timing and manner in which you must pay us the Service Fees.

Our Content means our templates, programs, instructions, images, manuals, books, articles, videos, graphics etc that make up part of our Services and in which Intellectual Property Rights may subsist and are owned by us.

Search Engine software that is accessed on the internet to assist a user to search a query on the world wide web.

Search Engine Ranking means the position your website holds in the results for a specific query on a Search Engine.

SEO Services means search engine optimisation services for your website.

Services means the services we provide to you from time-to-time which are better described on the Site and in the Services Pack, your Account (when you sign up) and include access to, and use of Our Content.

Site means the Very Social website located at the URL www.verysocial.com.au, and associated sub-pages, scripts, APIs, and source code that make up the website and includes all Intellectual Property Rights that .

Service Fees means the fees payable to Very Social for provision of our Services as specified in the Services Pack.

Service Term means the period of time you we provide the Services and Content specified in the Services Pack to you.

Suburb Property Listings means, if your Services Pack includes this as a Service, the listing and advertising of your property listings for inclusion on the Suburb Site.

Suburb Site means the website specific to a particular suburb owned and maintained by Very Social for the purposes of generating Enquiries.

Taxes means taxes, levies, duties or similar governmental assessments of any nature, including, for example, any sales, use, GST, value-added, withholding, or similar taxes, whether domestic or foreign, or assessed by any jurisdiction.

Third Party Charges means all fees and charges incurred by us on your behalf in providing the Services and where the context requires, includes the Ad Service Charges.

Third Party Materials means textual, graphical, audio or like materials, together with any software, which is incorporated into the Services.

Third Party Rights means Intellectual Property Rights owned by or licensed to third parties including:

(a) computer programs owned by third parties and licensed by us to provide the Services; and

(b) any literary, dramatic, artistic and musical works owned by third parties and licensed to us for inclusion in the Services.

Third Party Services means services provided by third parties to us for the purposes of Very Social delivering its Services to you, such as Google Ads, Instagram Ads or Facebook Ads.

Third Party Software means any computer program or modification or enhancement of a computer program, which is not owned by us, and which is used by us in connection with performing the Services.

Your Content means images, data, copy, videos, graphics and any other content or media owned or supplied by you to us for purposes of Very Social delivering the Services to you and includes all information, data, your customer information and other content associated with all your property listings.

2. THE SERVICES

(a) Subject to the terms and conditions of this Agreement, the provision of the Services constitute our only obligation to you. We will provide the Services in accordance with our obligations under laws and government regulations applicable to the provision of the Services to our Customers generally, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data, without regard to your particular use of our Services and subject to your use of the Services in accordance with this Agreement.

(b) You agree that we may modify the Services at any time and discontinue the Services (or part thereof) at any time. We may also restrict your use of some or all Services. If you have pre-paid for any Services which are modified or discontinued then you should contact us to discuss whether you are entitled to a partial refund.

(i) we do not guarantee that the Services will always be accurate, reliable, or error-free; and

(ii) all Intellectual Property Rights which subsist in the Services and Our Content, including any data, material, or information created by or on behalf of us and displayed, together with any adaptations, enhancements or new versions of the same (Very Social Intellectual Property Rights) are the exclusive property of Very Social.

(d) We are a non-exclusive independent contractor to you. Nothing in this Agreement is intended to create an employment or agency relationship between us and you.

(e) You acknowledge and agree that we do not provide the Services to you on an exclusive basis and we may provide the same or similar Services to businesses which are the same or similar to your business wherever located.

(f) In the course of delivering the Services to you, we may engage third parties to supply goods or services to us or to you. You acknowledge and agree that we may receive a commission or some other benefit where we use or recommend such third party suppliers.

3. CREATING AN ACCOUNT WITH VERY SOCIAL

(a) You are required to create an account (Account) in order to use some or all of the Services.

(b) When you create an Account with us you agree:

(i) that the Account will be created using our online sign up process, or any other method specified by us from time to time;

(ii) to keep confidential and secure any password used to access the Account;

(iii) and you warrant, that all information provided by you to us in the setup of the Account is true and correct in every detail; and

(iv) that you will only use the Account for the purposes of us delivering the Services to you, and for no other purpose.

(c) During the registration process, you may be asked to select a password for your Account. You agree to keep your password confidential at all times and must not disclose it to any other person. You are fully responsible for activities that relate to your Account or your password and also fully responsible for any unauthorised access of your Account that occurs because of something you do that allows this to occur.

(d) If you have reason to believe that your password has been obtained by someone else without your consent, you must inform us immediately so we can disable your Account. If a third party accesses your Account because your credentials are compromised, we are not liable to you in any way, even if you tell us about it and we fail to act within a reasonable time to disable access to your Account. If you become aware of your credentials to your Account being compromised, you must advise us immediately.

(e) We reserve the right to suspend or terminate your Account with us in the event of your credentials being compromised.

(f) As part of delivering the Services to you, we may require partial or complete access to your social media and other accounts. For instance in order for us to provide Ad Services to you, we will need access to your Facebook or Instagram account via the processes and protocols set out by the owners of such social media sites. If you do not provide us with the necessary access we may not be able to deliver the Services to you and in such case, we may elect to suspend or terminate the delivery of the Services to you. If we elect to suspend or terminate the delivery of Services to you because you do not give us access on request with a reasonable time, we will not be liable to you in any way for any loss or damage you suffer as a result.

4. SERVICES LICENCE

(a) In consideration for the payment of Service Fees, we grant to you a non-exclusive, non-transferable, revocable licence (Licence) to: (a) to receive the Services from us; and (b) to allow your employees and personnel to receive the Services from us (as Authorised Users) subject to the terms of this Agreement.

(b) Notwithstanding clause (a), we may refuse to grant a Licence to any person, for any reason whatsoever in its sole discretion.

(c) You may only sublicense or authorise your Authorised Users to receive the Services from us on the condition that they also agree to be personally bound by this Agreement (and will be deemed Users). A User may not otherwise sublicense, deliver, transfer or assign the Licence to any other person except with the written permission of Very Social. Each User may be required to set up a separate Account with their own separate username and password and are, as far as they can apply, subject to the obligations in clauses 3(b), 3(c), 3(d) and 3(e) of this Agreement.

(d) You are primarily responsible for the acts and omissions of all Authorised Users in relation to access and use of the Services and you are primarily responsible for the compliance of Authorised Users with the terms of this Agreement.

5. EVALUATION ACCOUNT

(a) We may at our sole discretion offer you free trials for selected features of the Services (Evaluation Account). Once your free trial period ends, your ability to access and use the Services will terminate. We reserve the right to determine if you are eligible for a free trial and to discontinue any free trial without notice at our sole discretion. On termination of access to (including access to any of Our Content) and use of the Services will immediately cease.

(b) A Customer may access and use the Service during the Evaluation Account, but only for its own benefit on an evaluation basis to determine whether to purchase our Services and in accordance with the terms and conditions of this Agreement.

6. IMPLEMENTATION OF SEO SERVICES

(a) You acknowledge and agree that Very Social may, as part of the client’s SEO campaign, add links and content to your website. A failure to allow Very Social to add links and content to your website may result in the SEO Services failing.

(b) You acknowledge that Search Engine Optimization and our SEO Services are governed by many factors which are outside the direct control of Very Social. Search Engines are third party systems with unknown variables, algorithms and indexing decisions that can change at any time and without notice over which we have no control. Very Social will use best efforts, techniques and accepted standards to improve your Search Engine Ranking but cannot guarantee of #1 ranking of your website on any major Search Engine using your desired keywords. You further acknowledge that your website’s ranking with a particular query will rely on both the relevancy of that term on the pages of your website, and the popularity of that term on other websites.

(c) You further acknowledge and understand that your website’s Search Engine Ranking may go backwards. You agree that we are not liable to you in anyway if this occurs unless it occurs because we breach our obligations under this Agreement.

(d) Very Social is not responsible for changes made to your website by other parties that adversely affect the Search Engine Rankings of your website.

(e) Very Social is not responsible for you where you overwrite Very Social’s content on your website (e.g. you/webmaster uploading content over work already provided/optimized). You may be charged an additional fee for re-constructing content on your website.

(f) Very Social follows a strictly ethical SEO policy and will not be responsible for any bans or search engine suspension for the following (this is not an exhaustive list):

(i) duplicate sites, duplicate content or pages, redirects or doorway pages;

(ii) link farms or any spanning techniques which may harm the web site’s ranking with Google;

(iii) increased traffic or enquiries;

(iv) hidden links;

(v) automated web site submission software or websites.

(g) You acknowledge that Very Social is permitted to include the words “SEO Services by Very Social” and link to the footer section of your website.

7. IMPLEMENTATION OF GOOGLE ADWORDS®

(a) Very Social may provide you with a management service of a Google AdWords® account in where this forms part of your Services Pack.

(b) You expressly permit Very Social to create a Google AdWords™ account on your behalf as limited agent. Client acknowledges that Google AdWords™ are subject to Google’s Terms and Conditions. Your account will be deemed active once Google™ approves it for online advertising. Very Social is not liable if Client’s account is rejected.

(c) Very Social acknowledges that you own and are primarily liable for and responsible for the Google AdWords™ Account developed by Very Social. Upon expiration or termination of this Agreement, you may elect to retain the Google AdWords® account and in its configuration at that time. If you elect to do this you will notify us within 7 days failing which we reserve the right to terminate the Google AdWords® account. We are not liable to you in anyway if this occurs.

8. FACEBOOK, INSTAGRAM AND SOCIAL MEDIA ADVERTISING

(a) Very Social agrees to promote Your Content in accordance with the Services Pack and any subsequent Services you request us to deliver to you.

(b) You agree to provide us with Your Content promptly where we are engaged to provide Ad Services to you and further agree that you will comply with any technical specifications provided to you by Very Social to ensure Your Content is acceptable for Ad Services. Where Your Content is not acceptable for Ad Services we will advise you, but we will have no liability to you for a failure to provide us with Your Content which is acceptable for the provision of Ad Services.

(c) Client acknowledges that Facebook, Instagram and other social media sites reserve the right to refuse advertisements at any time and for any reason, whether or not the same has already been acknowledged and/or previously published, including but not limited to for reasons relating to the contents of the advertisement or any technology associated with the advertisement. If the advertisement is rejected due to Your Content, Very Social shall require you to supply new Content acceptable to the social media sites that rejected or terminated your advertisement. Very Social is not liable for rejection of advertisements by third party websites. You acknowledge that if an advertisement previously accepted and displayed on a social media site is then subsequently removed by a social media site, prior to the end of the agreed advertising period, that we are not liable to you for this decision.

9. LINK BUILDING

(a) If link building services form part of your Services Pack, Very Social shall provide the link building services.

(b) The number of links stated in Services Park is the number of links that Very Social will provide on the link building report. The number is correct at the point at which the report is generated and quality controlled, whereupon it will be emailed to you.

(c) Very Social offers no guarantee for the length of time each link will remain live after the point at which it has been confirmed and reported on the link report.

(d) You acknowledge that we are not liable for the content of those sites. Use of any such linked web site is at your own risk.

(e) The inclusion of any link does not imply endorsement by Very Social of the site.

(f) You acknowledge that linking to “bad neighbourhoods” or receiving links from “link farms” can seriously damage all SEO efforts. Very Social does not assume liability for your choice to link to or obtain a link from any particular website without prior consultation.

10. SURBURB SITE AND ENQUIRIES

(a) If your Services include Suburb Property Listings then we shall list your Suburb Property Listings on your nominated Suburb Site.

(b) We will use our reasonable endeavours to pass on any Enquiry we receive about your Suburb Property Listings via your Suburb Site to you as soon as practicable.

(d) We make no representation or warranty about the accuracy of the data that makes up the Enquiry or the genuineness of the Enquiry. We are not responsible to you for any loss or damage and you must pay the Enquiry Fee irrespective of whether:

(i) you already have the data that makes up the Enquiry in your own database or CRM;

(ii) the Enquiry does not convert into a retained client in any capacity;

(iii) the Enquiry contains inaccurate or misspelled or false data such as incorrect phone details.

11. CONTENT CREATION SERVICES

(a) If Content Creation services form part of your Services Pack, Very Social shall provide the Content Creation Services to you.

(b) Content Creation will be delivered using Your Content. No content we create on your behalf will be published until it has been proofed by you and you have advised us that it is acceptable to be published.

(c) You are entitled to two rounds of revisions for content we author and produce as part of the Content Creation services.

(d) In relation to any moral rights that may arise by operation of the Copyright Act 1968 (Cth) in respect of Intellectual Property Rights in content we author and produce, you irrevocably and unconditionally consent, to the maximum extent permitted by law (either present or future), to us:

(i) using, disclosing, reproducing, copying, adapting, publishing, performing, exhibiting, communicating, renting or transmitting any of the content or any adaptation of any of the content:

(A) in whatever form and in whatever circumstances we think fit, including the making of any distortions, additions or alterations to any of the content, or any adaptation of any of them; and

(B) without making any identification of you as the author in relation to any of them; and

(ii) doing anything or omitting to do anything in relation to any of content that would otherwise infringe your moral rights, or any similar non-assignable, personal rights that you might have with respect to Your Content.

12. YOUR GENERAL OBLIGATIONS

(a) We will:

(i) perform the Services with due care and skill in a timely and professional manner;

(ii) endeavour to provide the Services in accordance with this Agreement;

(iii) comply with all applicable laws and maintain any licences or authorisations to provide the Services.

(b) We will notify you, stating reasons and the methods proposed to remedy the situation if:

(i) if we have not provided the Services in accordance with our agreed timetable with you;

(ii) it has become apparent to us that we will not deliver the Services in accordance with our agreed timetable.

(c) We will give notice to you if we reasonably consider that we are unable to perform our obligations under this Agreement as a result of your default or any delay caused by you in providing us with Your Content and any necessary documents, Third Party Charges, assistance or access (if needed) to your existing information technology infrastructure.

(d) You have no right to terminate where we comply with this clause and we are not liable to you if we comply with this clause.

13. THIRD PARTY RIGHTS

(a) Where we consider it necessary to use Third-Party Materials, Third-Party Software or Third Party Rights (collectively, Third Party IP) to provide the Services, we will use reasonable endeavours to obtain the required approvals, consents and licenses to utilise the Third Party IP.

(b) You acknowledge and agree that you do not obtain any rights in any Third Party IP other than the licence to use the Third Party IP as incorporated into the Services by us.

(c) Where the provision of Third Party IP charges a fee at a time after the creation of an account, we reserve the right to pass on the payment of that fee, and the Fees payable are deemed to be varied to include such fee.

14. ACKNOWLEDGMENT AND ATTRIBUTION

(a) You authorise us to use your name and logo, together with a summary of the Services for various marketing purposes including but not limited to, in the form of a case study, marketing and a visual aid of the end product as part of our demonstration materials.

15. YOUR CONTENT

(a) We will take all reasonable steps to maintain appropriate security over and protect Your Content in our possession against misuse or loss.

(b) In the event of any loss or damage to Your Content, your sole and exclusive remedy shall be for us to use reasonable commercial endeavours to restore Your Content that is lost or damaged from the latest back-up of maintained by us or our third party suppliers of data storage services.

(c) We shall not be responsible for any loss, destruction, alteration or disclosure of Your Content caused by any third party.

(d) If we process any personal data on your behalf when performing our obligations under this Agreement, the parties record their intention that you shall be the data controller and we shall be a data processor and in any such case:

(i) you acknowledge and agree that the personal data may be transferred or stored outside the country where you are located in order to provide the Services and our other obligations under this Agreement;

(ii) you shall ensure that you are entitled to transfer the relevant personal data to us so that we may lawfully use, process and transfer the personal data in accordance with this Agreement on your behalf;

(iii) you shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;

(iv) we shall process the personal data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by you from time to time; and

(v) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

16. THIRD PARTY STORAGE

(a) You acknowledge that we engage and use the services of third-party storage and security of Your Content. We make no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party product, or any transactions completed, and any contract entered into by us, with any such third party.

(b) We recommend that you refer to the third party’s website terms and conditions and privacy policy prior to entering into this Agreement. We do not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

17. SERVICE FEES AND THIRD PARTY CHARGES

(a) All Service Fees are set out in the Services Pack or notified to you when you create an Account. In relation to your Account, you will pay the Service Fees to us in the time and manner we specify from time-to-time commencing in the manner we specify when you create an Account.

(b) All Third Party Charges are set out in the Services Pack or notified to you when you create an Account. In relation to your Account, you will pay the Third Party Charges to us in the time and manner we specify from time-to-time commencing in the manner we specify when you create an Account. Together your Service Fees and your Third Party Charges are the Fees.

(c) All amounts payable to us under the Terms are provided by such merchant facility via a direct debit facility as we use from time to time (such as Ezidebit) (Payment Processor) and are subject to the Payment Processor terms of service. By agreeing to these Terms, you agree to be bound by their terms of service, as the same may be modified by the Payment Processor from time to time including the Payment Processor direct debit terms.

(d) As a condition of us enabling payment processing services through the Payment Processor, you agree to provide us with accurate and complete information about you, and you authorise us to share such info with the Payment Processor together with transaction information related to your use of the payment processing services provided by the Payment Processor.

(e) Unless expressly specified to the contrary, all amounts payable under this Agreement (consideration) by you to us have been expressed to be exclusive of Taxes. You will, at the same time as paying the consideration to us, pay an additional amount on account of such Taxes, so that after deduction of such Taxes, we receive no less than the amount of the consideration.

(f) Other than as expressly provided for in this Agreement, Fees are non-refundable. You are prohibited from setting off or deducting any money against the payment of the Fees.

(g) Failure to pay any monies due to Very Social within seven days of the due date for payment will constitute a breach of an essential term of this Agreement and, without limiting any remedies available to Very Social, Very Social may suspend performance of or access to the Services (including cancelling Ad Services) and charge interest at the lesser of the rate of one and one half percent (1.5%) per month or part thereof and the maximum rate permitted by applicable law.

(h) You will reimburse us for all costs we incur in collecting overdue Fees. If we suspend your Account for failure to pay your Fees and you subsequently pay all outstanding Fees and your account is reactivated, we will charge you a fee which is a genuine estimate of the cost to us for the failure to pay your Fees and the suspension and reactivation of your Account and access to the Services.

18. SUSPENSION AND TERMINATION

(a) This Agreement commences at the earlier of:

(i) your acceptance of the terms of this Agreement; or

(ii) the commencement date specified in the Services Pack;

(iii) your first use of the Services,

and will continue until terminated under this clause 18 (Term).

(b) Very Social may terminate this Agreement at any time, and for any reason, by:

(i) the provision of written notice to you (which may include notice via email); or

(ii) permanently disabling or deactivating your access to the Services.

(i) you notifying us that the property the subject of a property listing is either sold or withdrawn from sale;

(ii) the time frame you elect the Ad Services to run; or

(iii) the budget you allocate for the Ad Service Charges is exhausted.

(d) Very Social may suspend your use of the Services, or any part thereof, at any time, and for any reason. Very Social will however provide you with written notice (which may include notice provided via email) if it suspends the delivery of the Services (or part thereof) and will advise you subsequently if and when such suspension is lifted.

(e) If Very Social suspends or terminates this Agreement under clause (b) and if you have paid Service Fees and Third Party Charges (Fees) as at the date of termination or suspension, then we will refund you the balance of the Fees not expended on Services or Third Party Services.

(f) Apart from where required by law, and without limiting Very Social’s rights, Very Social may refuse to provide a refund under paragraph (e) where the reason for the termination or suspension is due to:

(i) a breach of this Agreement or any law by you;

(ii) an act described in clause 21(a);

(iii) Very Social being required by a government agency to enact the suspension or termination; or

(iv) Very Social reasonably considers such termination or suspension is required to avoid Very Social breaching any law.

(g) You may terminate this Agreement or one or more of the Services that form part of your Services Pack at any time, and for any reason, upon the provision of 28 days written notice to Very Social, or by cancelling your Account, at which time our obligation to deliver the Services to you will immediately cease. However, you will continue to be obligated to pay all Fees up to and including the date we receive your notice to terminate this Agreement and where Ad Services have been placed with a Third Party Service you continue to be obligated to pay for all Third Party Charges until the Third Party Service for the Ad Services finishes.

(h) Either party may terminate this Agreement immediately (or with effect from any later date that it may nominate) by written notice to the other party if:

(i) one or more Insolvency Events occurs in relation to that other party. For the purposes of this clause, Insolvency Event means, in respect of a party (other than for the purpose of solvent reconstruction or amalgamation):

(A) a receiver, administrator, manager or liquidator is appointed over the party’s undertaking or assets, or the party enters into any assignment, composition or arrangement with its creditors; or

(B) the party is unable to pay its debts when due or is deemed unable to pay its debts under any law or suspends payment to its creditors.

(ii) the other party commits a material breach of any of its obligations under this Agreement and fails to remedy that breach 7 days of prior written notice of such breach.

(i) On termination of this Agreement under this clause your access to your access to and use of the Services will immediately cease.

(j) Upon the termination of this Agreement by you or by Very Social in accordance with this clause:

(i) you and each Authorised User’s Account will be deactivated, and you and your Authorised Users will be unable to access and use the Services and we will not be obligated to deliver any Services to you;

(ii) you and each Authorised User must cease all use of the Services; and

(iii) you will pay Very Social:

(A) all Fees which are due under this Agreement;

(B) if you terminate this Agreement for convenience during the Service Term , the balance of the Service Fees calculated on a pro-rata basis between the date of termination and the last date of the Service Term (if any);

19. CUSTOMER CONTENT RETRIEVAL

(a) Upon written notice to Very Social, you will have up to seven (7) calendar days from termination or expiration of this Agreement to access to Your Content solely to the extent necessary to retrieve Your Content (Retrieval Right).

(b) If you exercise your Retrieval Right, this Agreement shall continue in full force and effect for the duration of the Retrieval Right. Very Social shall have no further obligation to make Your Content available after termination of this Agreement and shall thereafter promptly delete your Content.

20. VERY SOCIAL CONTENT

(a) All content and information and in the delivery of the Services (other than Your Content), including, but not limited to, Our Content, Feedback, messages, information, text, music, sound, photos, graphics, video, maps, icons, software, code or other material, as well as the infrastructure used to provide such content and information, is owned by Very Social or its third party licensors and forms part of Our Content.

(b) Very Social either owns all right, title and interest (including all Intellectual Property Rights) in and to Our Content or has a right to, by way of licence or other agreement, to Our Content.

21. PROHIBITED USES

(a) You agree not to modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell or re-sell any information, software, code, products, or Our Content other than in accordance with the express limited licence granted to you under this Agreement. Additionally, you agree not to:

(i) use the Services or Our Content for any commercial purpose, other than in accordance with your Account and the terms of this Agreement;

(ii) use another person's name, account, identity or password without permission, or use the Services while impersonating another person;

(iii) access, monitor or copy any content or information of the Services using any robot, spider, scraper or other automated means or any manual process for any purpose other than in accordance with the terms of this Agreement or your Account;

(iv) violate the restrictions in any robot exclusion headers on the Services or bypass or circumvent other measures employed to prevent or limit access to the Services;

(v) use the Services in connection with any products, services or materials that constitute, promote or are used for the purpose of dealing in defamatory, obscene, pornographic, abusive or otherwise illegal or offensive content; spyware, adware, or other malicious code; counterfeit goods; items that are otherwise illegal; unsolicited mass distribution of email or multi-level marketing proposals; hate materials; hacking/surveillance/interception/descrambling equipment; or stolen products or items used for theft;

(vi) deep-link to any portion of the Services for any purpose apart from where expressly permitted by this Agreement or your Account; or

(vii) attempt to modify, translate, adapt, edit, decompile, disassemble, or reverse engineer any software programs used by Very Social in connection with the Services or the Content (except to the extent specifically permitted by law).

22. SUBCRIBER CONTENT

(a) You own all Intellectual Property Rights in Your Content you upload, submit or publish with Our Content using our Services.

(b) In consideration of Very Social granting you (and your Authorised Users) access to and use of the Services, you expressly grant an irrevocable, perpetual, royalty-free, sub-licensable, assignable license to Very Social and its affiliates to use, reproduce, modify, adapt, publish, translate and create derivative works from Your Content for the sole purpose of delivering the Services to you or as may be required by law.

(c) You represent and warrant on an on-going basis that Your Content does not infringe the rights of any other person or body and complies with all applicable laws, regulations, codes and standards, including without limitation your obligations under the Privacy Act and any other laws or regulations governing personal information.

(d) You are solely responsible for the accuracy, content and legality of all Your Content.

(e) To the extent that you have any moral rights (as that term is defined in the Copyright Act 1968 (Cth)) in Your Content, then you waive all such moral rights.

(f) You agree that you will not post, upload to, transmit, distribute, store, create or otherwise publish, and you will ensure that Your Content and any other information or materials do not contain, any of the following (Infringing Content):

(i) content that infringes, or may infringe, the Intellectual Property Rights or other rights of any person;

(ii) content that impersonates any person or entity or otherwise misrepresents your relationship with Very Social or any other person;

(iii) content that is false, unlawful, misleading, libellous, defamatory, slanderous, obscene, pornographic, indecent, lewd, abusive, harassing or advocates harassment of another person, threatening, invasive of privacy, abusive, inflammatory, fraudulent or otherwise objectionable;

(iv) content that can reasonably be considered to be offensive, such as content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual, or which incites such behaviour or action from others;

(v) content that would constitute, encourage or promote, or provide instructions for the conduct of an illegal act or omission, any criminal activity, or violate the rights of any person or party in any country of the world;

(vi) unsolicited promotions or SPAM;

(vii) content which contains the private information of any person;

(viii) content which publishes an image or likeness of a person who has not consented to their likeness or image being published; and/or

(ix) content which contains viruses, malware or any other malicious software or data.

(g) To the maximum extent permitted by law, Very Social will have no responsibility or liability for Your Content or Infringing Content used in Our Content, or for any loss or damage suffered by you or any other person as a result of Our Content making Your Content available or Infringing Content.

(h) Very Social is under no obligation to review Your Content to determine its accuracy, truthfulness, right to use by you or third party rights.

23. INTELLECTUAL PROPERTY

(a) You agree that Very Social or its suppliers retain all right, title and interest (including all Intellectual Property Rights) in and to the Content and Services, all documentation and software and any and all related and underlying technology and documentation and any derivative works, modifications, or improvements of any of the foregoing, including any Feedback that may be incorporated into Our Content.

(b) Except for the express limited rights set forth in this Agreement, no right, title or interest in any Our Content is granted to you.

(c) Notwithstanding anything to the contrary in this Agreement, Very Social may freely use and incorporate your Feedback into Very Social’s products and services.

(d) Very Social may use and display Customer’s name, logo, trademarks, and service marks on Very Social’s website and in Very Social’s marketing materials in connection with identifying Customers as a customer of Very Social. Upon your written request, Very Social will promptly remove any such marks from Very Social’s website and, to the extent commercially feasible, Very Social’s marketing materials.

24. CONFIDENTIALITY & PRIVACY

(a) Very Social will keep confidential all information provided by you or on your behalf which you designate in writing as confidential and will only use or disclose such confidential information: (a) for the purpose of providing or procuring Services under this; (b) with your consent; (c) in anonymized and aggregated form; or (d) as may otherwise be required or permitted by law.

(b) You must keep all of our content and processes that form the Services confidential.

(c) Both you and Very Social agree to comply with all applicable privacy laws in dealing with any personal information or other identifying information provided by a User or a third party about a User (Personal Information). Both you and Very Social must at all times collect, use, hold, destroy, and disclose Personal Information in accordance with each party’s respective privacy policy and applicable law.

(d) By using the Services, you agree to the terms of the Very Social privacy policy. A copy of our privacy policy may be viewed on our website.

25. YOUR INDEMNITY

(a) You indemnify and keep indemnified, Very Social, its agents, employees and officers against all loss, cost, expense or damage which Very Social, its agents, employees or officers suffer or incur, as a direct or indirect result of:

(i) any misuse of the Services by you or your Authorised Users in breach of this Agreement;

(ii) your breach of this Agreement or violation of any law or Very Social Intellectual Property Rights or Intellectual Property Rights in Your Content or other rights of a third party;

(iii) you using any Infringing Content; or

(iv) any legal proceedings or any claim made against Very Social by a third party, which arises directly or indirectly from any Infringing Content.

(b) Any amount payable by you under the forgoing indemnity will be reduced to the extent that Very Social caused or contributed to the relevant act or event giving rise to the indemnity.

(c) In no circumstances will either party be liable to the other party for consequential loss or damage including economic loss, loss of profits and loss of opportunity.

26. WARRANTY

(a) You acknowledge and agree that Very Social has made no warranties that the Services will be error free.

(b) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH SERVICE ARE PROVIDED “AS IS” AND VERY SOCIAL MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. VERY SOCIAL DOES NOT WARRANT THAT THE USE OF ANY SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES VERY SOCIAL WARRANT THAT IT WILL REVIEW THE YOUR SUBCRIBER DATA FOR ACCURACY.

27. LIABILITY AND DISCLAIMER

(a) You agree that Very Social will not be liable or responsible for any failure in, or delay to, the provision of the Services or in Very Social complying with its obligations under this Agreement where such failure or delay has arisen as a direct or indirect result of:

(i) epidemic, pandemic, fire, earthquake, storm, flood, hurricane, inclement weather or other act of God, war, terrorism, explosion, sabotage, industrial accident or an industrial strike;

(ii) denial of service attacks, telecommunications failure, hardware failure or the failure of software provided by a third party to function in accordance with its specifications;

(iii) a significant demand being placed on telecommunications infrastructure, or on Very Social’s services, which is above the usual level of demand, and which results in a failure of Very Social’s software and hardware to function correctly or in a timely manner;

(iv) the failure of any third party to fulfil any obligations to Very Social; or

(v) any other circumstances or event similar to the above which is beyond the reasonable control of Very Social.

(b) In the event any terms, conditions, representations or warranties are implied by statute, common law or equity into this Agreement which cannot be lawfully excluded (Prescribed Terms), such Prescribed Terms will apply, save that Very Social’s liability for breach of any such Prescribed Terms will be limited, to the extent permitted by law, at Very Social’s option, to any one or more of the following:

(i) in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and

(ii) in the case of software or other goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired

(c) If Very Social’s liability for breach of any Prescribed Terms are capable of exclusion, they are hereby excluded to the fullest extent permitted by law

(d) To the extent permitted by law, any conditions, warranties, guarantees, rights, remedies, liabilities and other terms implied or conferred by statute, custom or the general law that impose any liability or obligation on us are excluded under this Agreement.

(e) To the extent permitted by law, Very Social’s liability to you arising directly or indirectly under or in connection with this Agreement or otherwise in connection with or in any way relating to the Services, and whether arising under any indemnity, statute, in tort (for negligence or otherwise) or on any other basis in law or equity, is limited as follows:

(i) Very Social excludes all liability for loss of revenue, loss of use, lost or inaccurate data, loss of goodwill, loss of customers, loss of capital, downtime costs, loss of profit, loss of or damage to reputation, loss under or in relation to any other contract, loss of data, loss of use of data, loss of anticipated savings or benefits, or any indirect, consequential or special loss, damage, cost or expense or other claims for consequential compensation, incurred by or awarded against you under or in any way connected with this Agreement or otherwise in connection with or in any way relating to the Services; and

(ii) Very Social’s total aggregate liability (for damages or liability of any type) under or in any way connected with this Agreement or otherwise in connection with or in any way relating to the Services, is otherwise limited to the greater of:

(A) AUD10.00; and

(B) the total of all Service Fees you have paid to us or are payable to us, in the prior 1 month.

28. AMENDMENTS

(a) Very Social reserves the right to revise and amend this Agreement in its discretion, as follows:

(i) if Very Social considers that the change is likely to benefit you or have a neutral or minor detrimental impact on you, it may make any changes immediately without notifying you except by publishing the amended Agreement (as applicable) on the Site; and

(ii) if Very Social considers that the change is likely to have a significant detrimental impact on you, it will make the change after it has notified you of the change (solely by using the email address you have provided) and will display a notice on the Site describing the change.

(b) Your continued use of the Services after an amendment will mean that you agree to that amendment. You must stop accessing and cease using the Services if you do not agree to an amendment.

29. FORCE MAJEURE

(a) We shall be under no liability to you in respect of anything that, if not for this provision, would or might constitute a breach of these Terms, where this arises out of circumstances beyond our control, including but not limited to:

(i) Acts of god;

(ii) Natural disasters;

(iii) Sabotage;

(iv) Accident;

(v) Internet provider outages;

(vi) Riot;

(vii) Shortage of supplies, equipment, and materials;

(viii) Strikes and lockouts;

(ix) Civil unrest;

(x) Computer hacking; or

(xi) Malicious damage.

30. GENERAL CLAUSES

(a) In the interpretation of this Agreement unless the context otherwise requires:

(i) headings and words in bold type are included for convenience only and do not affect interpretation;

(ii) the words "includes" or "including" mean "includes without limitation" or "including without limitation";

(iii) a reference to a word includes the singular and the plural of the word and vice versa;

(iv) a reference to a gender includes any gender;

(v) if a word or phrase is defined, then other parts of speech and grammatical forms of that word or phrase have a corresponding meaning;

(vi) a term which refers to a person includes a person in any capacity, a body corporate, an unincorporated body (for example a society or association), a trust, a partnership, a sovereign state, a government or a government department or agency;

(vii) a reference to a document includes a reference to that document as amended, novated, supplemented, varied or replaced;

(viii) a reference to a recital, clause, paragraph, schedule, annexure or other part is a reference to an item of that type in this Agreement;

(ix) a reference to a party is a reference to a party to this Agreement and includes a reference to that party’s successors, personal legal representatives and permitted assigns;

(x) a reference to a statute or regulation or a provision of a statute or regulation includes a reference to that statute, regulation or provision as amended or replaced, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws made or issued under that statute; and

(xi) if an individual party to this Agreement consists of two or more persons, then those persons are bound both jointly and severally.

(b) Any notice given under this Agreement must be in writing and must be signed by the party giving the notice, or alternatively must be given via functionality contained in the Site. Unless a later time is specified in a notice, the notice takes effect from the time it is received. A notice is taken to be received:

(i) in the case of a notice delivered by hand, when so delivered;

(ii) in the case of a notice sent by pre-paid express post, on the third clear Business Day after the date of posting;

(iii) in the case of a notice sent by email, at the time that the email is sent, unless the sender receives a notification that the email was delayed or not received; or

(iv) in the case of a notice sent via functionality contained in the Site, at the time the notice was sent, but if the effect of paragraphs (a) - (d) above is that a notice is taken to have been received before 9:00am or after 5:00pm on a day which is not a Saturday, Sunday or public holiday in Melbourne, Victoria, Australia (Business Day), or on a day which is not a Business Day, then the notice is taken to have been received at 9:00am of the next Business Day.

(c) Neither party is the partner, agent, employee or representative of any other party and neither party has the power to incur any obligations on behalf of any other party.

(d) We may sub-contract all or any part of our Services to any third party in our discretion.

(e) There are no other representations, promises, warranties, covenants or undertakings between the parties and this Agreement supersedes all previous agreements in respect of its subject matter and embodies the entire agreement between the parties.

(f) A provision of or a right created under this Agreement may not be waived except in writing signed by the party or parties to be bound by the waiver. No single or partial exercise by any party of any right, power or remedy under this Agreement will preclude any other or further exercise of that or any other right, power or remedy. The rights, powers or remedies provided in this Agreement are cumulative with and not exclusive of any rights, powers or remedies provided independently of this Agreement.

(g) If any provision of this Agreement is judged invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such invalidity or unenforceability (unless deletion of such provision would materially adversely affect one of the parties) will not affect the operation or interpretation of any other provision of this Agreement to the extent that the invalid or unenforceable provision will be treated as severed from this Agreement.

(h) You must not assign or novate any of your rights or obligations under this Agreement. You agree that Very Social may however assign or novate this Agreement at any time, with or without notice to you.

(i) The parties acknowledge and agree that no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or part of it.

(j) This Agreement will be construed in accordance with and will be governed by the laws in force in Victoria, Australia. Each of the parties irrevocably submits to and accepts the exclusive jurisdiction of any of the Courts of Victoria, Australia.

31. SUPPORT

(a) If you require support in relation to your use of our Services, please contact our support team at support@verysocial.com.au.

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