emmersion

WE’RE OBSESSED WITH ROI-DRIVEN PERFORMANCE. YOURS.

We are not just obsessed with results. We are a results-driven business in a sea of Cowboys, Influencers and Gurus, we offer brands a new way forward. A way to help retailers stay agile and keep top of mind in our fast-paced world of digital.

 

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terms & condations 

emmersion’s Terms & Condations 

 

(Last Updated: January 2025)

 

These Terms and Conditions (“Agreement”) govern the provision of services by emmersion Pty Ltd (“we”, “our”, “the Agency”) to you (“the Client”). By engaging our services, the Client acknowledges that they have read, understood, and agree to be bound by these Terms, together with any Proposals, Schedules, or Service Agreements provided.

1. Services

 

The Agency will provide digital advertising, marketing, creative, and related services as outlined in the Proposal or Ongoing Agreement.

 

1.1 The Agency will manage campaigns, create ad content, and optimise performance as specified in the Proposal.

1.2 Additional services not specified in the Proposal may incur separate fees, agreed in writing prior to commencement.

1.3 The Agency will manage campaigns, create content, and optimise performance using reasonable skill, care, and industry best practices.

1.4 All services are subject to availability, and timelines may be adjusted where delays are outside of the Agency’s control.

 

2. Fees & Payment

 

2.1 A minimum monthly performance advertising fee applies. This may increase based on campaign results, as per the performance-based fee model outlined in the Proposal.

2.2 All invoices are payable within 7 days of issue unless otherwise agreed in writing.

2.3 Late payments may incur interest at 2% per month, accruing daily, until paid in full.

2.4 All fees are exclusive of GST, which will be applied where applicable.

2.5 Ad spend is paid directly by the Client to the relevant platforms (e.g., Meta, Google).

 

2.6 The Agency reserves the right to pause or suspend campaigns immediately in the event of non-payment, delayed approvals, missing assets, or compliance concerns. Such suspension does not relieve the Client of fee obligations.

 

3. Client Responsibilities

 

3.1 The Client will provide the Agency with timely access to accounts, platforms, brand assets, and approvals as required.

3.2 The Client warrants that all materials and instructions provided are accurate, lawful, and do not infringe on third-party rights.

3.3 The Client will provide access, brand assets, and approvals as required. Delays may affect campaign performance or the achievement of guaranteed results.

 

3.4 Delays or failures by the Client to provide necessary information or approvals may impact campaign performance and the achievement of guaranteed results.

3.5 The Client remains responsible for ensuring its own business operations, products, and services comply with applicable laws and regulations.

 

4. Audit & Record-Keeping

 

  • The Agency reserves the right to request access to sales data, CRM records, or other relevant information to verify performance outcomes and calculate performance-based fees.

 

5. Performance Guarantee (if applicable)

 

Pay-for-Performance Terms

 

  • Campaigns operate under the agreed performance guarantee in the Proposal, including specific targets, metrics, and conditions.
  • Performance is measured according to the reporting schedule in the Proposal.
  • Metrics may include ROAS, leads, clicks, or other KPIs.
  • Non-compliance or delays by the client may affect results but will not reduce fees already earned by the agency.

5.1 The guarantee applies only where the Client has:

  • Provided all required access, assets, and approvals on time;
  • Maintained sufficient ad spend levels as specified;
  • Not interfered with campaigns outside of Agency management.

5.2 Performance is measured strictly according to the metrics, targets, and reporting schedule set out in the Proposal.

 

5.3 The Agency shall be the sole authority in measuring, attributing, and verifying performance outcomes.

 

5.5 Performance guarantees are void if:

  • The Client fails to provide approvals or assets in a timely manner,
  • The Client modifies campaigns or platforms without Agency consent,
  • Market conditions, platform rules, or external factors materially change,
  • The Client breaches any obligations in this Agreement.
  • Where conditions are not met, the guarantee does not apply.
  • The agency is not liable for results impacted by factors outside our control, including market conditions, platform policies, or client delays.

 

6. Term & Termination

 

6.1 This Agreement continues on a rolling monthly basis unless terminated in accordance with these terms.

6.2 Either party may terminate with 30 days’ written notice.

6.3 The Agency may terminate immediately if:

  • The Client breaches this Agreement;
  • Payment is not received within 14 days of invoice due date;
  • Immediate termination may occur for breach, non-payment, or unlawful activity.

6.4 On termination, all outstanding fees remain payable.

6.5 Termination does not affect accrued rights or obligations.

 

7. Confidentiality & Intellectual Property

 

7.1 Both parties agree to keep confidential all information disclosed during the term of this Agreement and for 2 yearsfollowing termination.

7.2 All creative assets, campaign data, and intellectual property produced by the Agency remain its property until full payment is received, unless otherwise agreed in writing.

7.3 The Client grants the Agency a licence to use Client brand assets solely for the purpose of delivering services.

7.4 The Agency may showcase general results, case studies, or campaign outcomes for marketing purposes, provided no confidential information is disclosed without consent.

 

8. Limitation of Liability

 

  • The Agency is not liable for indirect or consequential damages, lost profits, lost opportunities, reputational damage, or results affected by factors outside its control.

8.1 To the maximum extent permitted by law, the Agency is not liable for:

  • Indirect, incidental, or consequential loss;
  • Loss of profits, revenue, goodwill, or opportunity;
  • Results impacted by factors outside the Agency’s control (e.g. platform changes, Client actions, market conditions).

8.2 The Agency’s total liability for any claim is limited to the amount of fees paid by the Client in the 3 monthspreceding the event giving rise to the claim.

8.3 Nothing in this Agreement excludes liability for fraud, wilful misconduct, or liability which cannot be excluded under Australian law.

  • Liability is limited to the total fees paid by the Client in the 3 months prior to the claim.

 

9. Data Protection & Privacy

 

9.1 The Agency will handle all Client data in accordance with the Privacy Act 1988 (Cth) and relevant Australian data protection laws.

9.2 The Client is responsible for ensuring that all customer data provided or used in campaigns complies with applicable privacy regulations.

9.3 The Agency will not be responsible for breaches arising from third-party platforms.

9.4 The client retains ownership of their data but grants the agency permission to use data as necessary to perform services.

9.5 The agency complies with applicable privacy laws and will not share client data without consent.

 

10. Compliance

 

10.1 The Client is responsible for ensuring its products, services, and advertising claims comply with Australian Consumer Law and all applicable regulations.

10.2 The Agency may refuse to run campaigns that it deems unlawful, unethical, or damaging to its reputation.

10.3 Where campaigns are suspended for compliance reasons, the Client remains responsible for all fees incurred to date.

 

11. Dispute Resolution

 

11.1 In the event of a dispute, both parties agree to attempt resolution through good-faith negotiation.

11.2 If unresolved, disputes will proceed to mediation, and if still unresolved, to binding arbitration in Victoria, Australia.

11.3 Legal proceedings may not be initiated until mediation has been attempted.

 

12. Force Majeure

 

12.1 Neither party will be liable for delay or failure to perform obligations under this Agreement if such delay or failure is due to events beyond reasonable control (e.g. natural disasters, strikes, platform outages).

12.2 If a Force Majeure event continues for more than 30 days, either party may terminate the Agreement.

12.3 The agency is not liable for delays or failure to perform due to events outside our reasonable control, including natural disasters, internet outages, or platform disruptions.

 

13. General Provisions

 

  1. Entire Agreement: This Agreement, together with the Proposal and referenced documents, constitutes the entire agreement between the parties. All prior discussions, negotiations, or understandings are superseded.
  2. Amendments: Any amendments must be in writing and signed by both parties.
  3. Force Majeure: The Agency will not be liable for failure to perform obligations due to events beyond reasonable control (including but not limited to natural disasters, strikes, internet outages, government restrictions).
  4. Non-Solicitation: During the term of this Agreement and for 12 months after termination, the Client agrees not to directly solicit or hire the Agency’s staff, contractors, or suppliers without prior written consent.
  5. Assignment: The Client may not assign this Agreement without written consent from the Agency.
  6. In the event of inconsistency, the order of precedence is: (1) Proposal, (2) Service Agreement, (3) these Terms & Conditions.

 

14. Pay for Performance – Other Terms and Conditions

 

  1. Performance Metrics: The Client acknowledges that performance outcomes are contingent on agreed KPIs (e.g., ROAS, CAC, leads generated) as defined in the Proposal. These metrics are based on historical performance data, industry benchmarks, and assumptions, not guarantees of future earnings.
  2. Client Obligations: Performance is dependent on the Client providing timely approvals, assets, product availability, website functionality, and adherence to Agency recommendations. Failure to comply may void any performance-related commitments.
  3. Adjustments: If platforms, algorithms, or market conditions materially change, the Agency reserves the right to adjust performance targets accordingly.
  4. Exclusions: Performance fees exclude costs arising from third-party issues (payment gateways, hosting downtime, shipping delays, pricing errors, or competitor actions).

 

15. Social Media Disclaimer (Facebook, Instagram, TikTok, YouTube, LinkedIn, etc.)

 

  1. Platform Control: The Agency is not responsible for changes made by social media platforms (e.g., algorithm updates, account suspensions, policy changes, or technical outages) that impact campaign performance.
  2. Content Approval: The Client is solely responsible for the accuracy, legality, and compliance of content submitted for use on social platforms. The Agency will not be held liable for claims, takedowns, or penalties resulting from non-compliant content.
  3. No Ownership of Platforms: The Client acknowledges that the Agency has no ownership or control over third-party platforms, and therefore outcomes are subject to those platforms’ policies and operations.
  4. The agency provides social media management and advertising services but is not responsible for platform-specific content moderation or policy enforcement.
  5. Client acknowledges that results may vary and platforms may change rules at any time.

 

16. Website Design and Development (if applicable)

 

  1. Scope: Any website design, development, or landing page work will be governed by a separate Proposal and Agreement.
  2. Delivery & Revisions: The Agency will provide deliverables as per the approved scope. Additional revisions, integrations, or feature requests outside the agreed scope will incur additional fees.
  3. Responsibility: The Client is responsible for providing accurate content, images, branding guidelines, and compliance with relevant laws (privacy, accessibility, eCommerce, data collection).
  4. Warranty: The Agency provides a 30-day warranty period post-delivery to fix bugs or errors directly related to its work. This does not cover third-party plugins, hosting issues, or subsequent client changes.
  5. Where the agency provides website services, the client confirms that all content is lawful, accurate, and compliant.
  6. The agency retains intellectual property rights until full payment is received.

 

17. Earnings Disclaimer

 

While the Agency provides data-driven strategies and past performance examples, the Client acknowledges that:

  • No financial results are guaranteed.
  • Earnings, leads, or sales may vary significantly based on market conditions, competition, product quality, and Client execution.
  • Past results from other clients are not indicative of future performance.

The Client accepts full responsibility for their business decisions, financial outcomes, and reliance on information provided by the Agency.

  • The agency cannot guarantee specific revenue outcomes, as these are influenced by market trends, competition, and client compliance.
  • Campaign performance may vary despite adherence to best practices.

 

18. General Disclaimer

 

All services provided by the Agency are on a best-efforts basis. The Agency is not liable for:

  • Errors, omissions, or delays caused by third-party platforms, service providers, or suppliers.
  • Client misrepresentation, inaccurate information, or non-compliance with laws.
  • Business risks taken by the Client (pricing, positioning, stock management, customer service).

The Client indemnifies and holds harmless the Agency, its directors, employees, and contractors from all claims, damages, losses, costs, or liabilities (including legal fees) arising out of:

  • Client-provided content or product claims;
  • Misrepresentation, inaccuracy, or non-compliance with laws;
  • Third-party disputes relating to advertising, platforms, or product sales.

 

19. Indemnity

 

  • The Client indemnifies and holds harmless the Agency, its directors, employees, and contractors from all claims, damages, losses, costs, or liabilities (including legal fees) arising out of:
    1. Client-provided content or product claims;
    2. Misrepresentation, inaccuracy, or non-compliance with laws;
    3. Third-party disputes relating to advertising, platforms, or product sales.

 

20. Non-Circumvention

 

  • The Client agrees not to circumvent the Agency by engaging directly with any contractor, supplier, or partner introduced by the Agency for a period of 24 months following introduction.

 

21. Advertising and Regulatory Compliance

 

The Client acknowledges responsibility for compliance with all applicable laws, including but not limited to:

  • Consumer protection and fair-trading laws.
  • Privacy, spam, and data collection regulations.
  • Industry-specific advertising standards (health claims, financial services, children’s marketing).

The Agency will advise on compliance best practices but is not liable for regulatory breaches resulting from Client-provided content, product claims, or omissions.

 

 

22. Service Provision and Modifications

 

Service Availability:

Our services are provided on an “as is” and “as available” basis. We will use commercially reasonable endeavours to ensure that our service is timely, secure, and uninterrupted; however, we do not warrant that the Service will be error-free or meet any specific performance criteria.

 

Modifications:

We reserve the right to modify, suspend, or discontinue any aspect of the Service at any time. Notice of material changes will be provided via email and/or posted on our website. Your continued use of the Service constitutes acceptance of the updated terms.

 

Compliance with Law:

Our delivery of services and this Contract are subject to all applicable Australian laws, including the Australian Consumer Law (ACL), ACCC guidelines, and relevant advertising standards. If any provision conflicts with mandatory legal requirements, those statutory rights shall prevail.

 

23. Definitions and Interpretation

 

  • “Agency” means Emmersion Pty Ltd, its employees, contractors, and affiliates.
  • “Client” means the company or individual engaging the Agency for services.
  • “Proposal” means the formal written scope of services, fees, and deliverables agreed upon.
  • “Performance Guarantee” means specific targets outlined in the Proposal and conditional on Client compliance.
  • “Services” include campaign management, ad creation, optimisation, reporting, and related marketing activities.

Unless otherwise stated, singular terms include plural and vice versa, and references to “including” are without limitation.

 

 

24. Third-Party Platforms & Fees

 

  • Platform costs (e.g., Facebook Ads, Google Ads) are the client’s responsibility.
  • The agency is not liable for changes in platform policies, account suspensions, or disapprovals.

25. Non-Solicitation

 

  • The client agrees not to directly hire the agency’s employees or contractors for 12 months following termination.

26. Change Requests / Scope Creep

 

  • Any changes outside the original Proposal must be agreed in writing.
  • Additional fees may apply for extra work or scope extensions.

27. Credit Card / Payment Authorisation

 

  • The client authorises the agency to collect recurring payments where agreed.

28. Refund Policy

 

  • All fees are non-refundable unless expressly stated in the Proposal.
  • For performance-based campaigns, refunds will only be considered if the Agency fails to meet the guaranteed performance targets and the client has fully complied with all obligations, including timely approvals, content delivery, and platform access.
  • Any approved refunds will be calculated based on the portion of services not delivered or results not achieved in accordance with the Proposal.

29. Intellectual Property Warranties

 

  • The Client warrants that they own, or have all necessary rights, licenses, and permissions to use any content, trademarks, images, or other materials provided to the Agency.
  • The Client grants the Agency a non-exclusive, worldwide, royalty-free licence to use, reproduce, and adapt this content solely for the purpose of delivering the agreed services.
  • The Agency retains ownership of all creative assets, templates, or materials it produces until full payment has been received.

30. Client Cooperation / Responsiveness Clause

 

  • The Client agrees to provide all required approvals, content, assets, and information by the deadlines specified in the Proposal or as reasonably requested by the Agency.
  • Delays or failure to provide necessary information may negatively impact campaign performance or the ability to achieve guaranteed results.
  • The Client acknowledges that the Agency cannot be held responsible for missed deadlines or underperformance resulting from lack of cooperation.

31. Limitation of Agency Liability

 

  • The Agency is not liable for indirect, incidental, consequential, or special damages, including lost profits, lost revenue, or business interruption.
  • The Agency is not responsible for platform decisions, including account suspensions, policy changes, or terminations.
  • Liability for any claim arising from this Agreement is limited to the total fees paid by the Client to the Agency under the relevant Proposal.

32. Advertising Platforms / Account Access

 

  • All ad accounts, data, and platform access remain the Client’s property.
  • The Agency will manage accounts on the Client’s behalf but is not liable for platform suspensions, policy enforcement, or terminations.
  • The Client must provide administrative access and any required verification to enable campaign management.

33. Severability

 

  • If any provision of this Agreement is found to be invalid, illegal, or unenforceable, the remaining provisions remain fully enforceable and in effect.

34. Amendments / Variation Clause

 

  • Any modifications or amendments to this Agreement must be made in writing and signed by both parties.
  • No oral or implied amendments are valid or enforceable.

35. Non-Disparagement

 

  • The Client agrees not to make any false, misleading, or damaging statements about the Agency, its services, staff, or contractors, either publicly or privately.
  • This clause survives the termination or expiry of this Agreement.

36. Automated Reporting / Data Accuracy Disclaimer

 

  • The Agency provides reporting based on data from advertising platforms and third-party tools.
  • While the Agency strives for accuracy, discrepancies may occur, and the Agency is not responsible for errors or omissions in platform-provided data.
  • Reports are for informational purposes only and should not be relied upon as exact representations of business results.

37. Survival Clause

 

  • Clauses relating to confidentiality, intellectual property, liability limitations, and non-disparagement survive the termination or expiry of this Agreement.
  • Any obligations under these clauses continue until explicitly released or satisfied.

38. Optional / Additional Risk-Protective Clauses

 

Client Credit Checks / Anti-Fraud Clause:

  • The Agency reserves the right to perform credit checks or other verifications to prevent fraudulent activity.

Non-Solicitation of Contractors / Staff:

  • The Client agrees not to directly or indirectly solicit, hire, or engage the Agency’s employees or contractors for 12–24 months following the end of the engagement without prior written consent.

Ownership of Work for Custom Templates / Tools:

  • The Agency retains ownership of all proprietary tools, templates, or methodologies used or developed during the engagement, unless expressly transferred in writing.

39. Subcontracting & Contractors

 

  • The agency may engage third-party contractors to perform services.
  • The agency remains responsible for contractor deliverables but is not liable for their independent actions.

Disclaimers & Notes

 

  • The Client is encouraged to seek independent legal, accounting, or financial advice prior to entering into this Agreement.
  • The Client acknowledges that digital marketing carries inherent risks due to constantly evolving technologies, regulations, and consumer behaviours.
  • All advice is based on information provided by the client and reasonable assumptions.
  • The agency is not responsible for third-party errors, technical failures, or external market changes.

Governing Law

 

These Terms are governed by the laws of Victoria, Australia.

Disputes will first be addressed through good-faith negotiation, then mediation or arbitration if required.