ACT Valid & Fair Contract - Digital Marketing Company for Facebook Ads

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LawQuestion2

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19 August 2014
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A friend is in a dispute with a digital marketing company based in NSW. They contacted her offering to do Facebook advertising to increase search rankings for her company including ad creation, plus detailed analysis of keywords and reports ongoing on a contract. They took a recording of her agreeing to go ahead in June by phone, but they clearly state on the recording they will send her the terms and conditions after the phone call.

During the phone call they took her company's credit card details and sent the first two ads to her the following day for approval, and also deducted the full years fees of just under $4,000.

The ads weren't suitable to go ahead and took numerous revisions. They have never provided the promised reports. As such my friend has changed the passwords on the company's Facebook page so they can no longer access the site.

My friend has asked for the contract to be cancelled and stated that she is agreeable to having the prorated amount deducted from the yearly amount with the balance refunded. She also asked for a copy of the verbal agreement recording.

The company has refused and is insistent on having access back to the Facebook account.

My friend then contacted her bank and requested a chargeback. Once the company was alerted to the chargeback they have sent through the recording. In the recording she can be heard to agree. But the company representative can also be clearly heard to say that the terms and conditions will be sent to her after the phone call.

I have looked at the contract and there is no ability for my friend's company to exit, except to stop the contract automatically renewing prior to the end of the 12 months in writing.

Their contract states:
By proceeding with this Contract or making any payment to the Company under this Contract the Customer acknowledges that it has read, and accepts these Conditions.

Is this a valid and fair contract? And what are her options? I have suggested calling the ACCC. She is also calling the Small Business Ombudsman.

It sounds very similar to the Search Results Specialists and Premium Locals scam - http://forums.whirlpool.net.au/archive/2269291.
 
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Rob Legat - SBPL

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16 February 2017
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Yes, contact the ACCC. I think they'll be the most useful here. If the 'contract' was entered into on or after 12 November, 2016, your friend runs a 'small business' and it was their 'standard contract', then the unfair contracts provisions of the Australian Consumer Law will apply.