Terms and Conditions

These are the Terms and Conditions on which Incubate Digital Pty Ltd. ABN: 69 653 450 198 (Incubate Digital) will carry out work for you. They will apply each time that you ask us to do work for you, or carry out a Service. They set out our Services and what you can expect from us. Please read them carefully. It is a condition of your use of our Services that you comply with these Terms and Conditions.

These Terms and Conditions are subject to change without notice and may be superseded. Incubate Digital may modify these Terms and Conditions by general notice on a page of our website, by email or by any other method of communication.

1. You may engage us to carry out a Service for you by:
   a. electronically accepting an Estimate from us; or
   b. signing and returning an Estimate to us; or
   c. providing an authorised Purchase Order; or
   d. making a payment, or part-payment against an Estimate or Invoice; or
   e. Purchasing a service offered by Incubate Digital on this website or purchasing a service using a subscription link referencing these Terms and Conditions
   f. verbally or electronically asking us to commence services in which case any work commenced by Incubate Digital is deemed an acceptance of these Terms and Conditions. Unless Incubate Digital notify you otherwise, Incubate Digital will accept that engagement, subject to these Terms and Conditions

2.   You acknowledge that electronic services are subject to interruption and breakdown and all non-electronic services are subject to disruption, and therefore the Services will not be error-free or uninterrupted; and your access to the Service and the operation of the Service will not be error-free or uninterrupted. Incubate Digital reserves the right to continue to provide the Services and/or invoice you for the Services in the event of any disruption, other than a disruption caused by Incubate Digital’s negligence or wilful acts or omissions. 

3.    Your approval and implementation may be required for a number of items (Approval & Implementation Item)  presented to you: 

• Service brief;
• keyword recommendations;
• local SEO report;
• on page SEO report;
• ad text;
• ad targeting;
• ad creative;
• design concepts (and your choice of one of them);
• each updated version of the chosen design concept;
• implementation of conversion tracking code
• landing page or website development
• completed design;
• variation Notices; and
• any other item for which Incubate Digital request your approval.

When Incubate Digital provide you with any Approval Item, you must notify us in writing whether you do or do not accept the completed Approval Item.  You will be deemed to have accepted the Approval Item if Incubate Digital do not receive a response from you, within 2 business days. Your acceptance of the completed Approval Item means that the Approval Item is complete, and no further amendments are necessary. Incubate Digital will proceed to the next Stage of the Service unless otherwise informed.

There may be Additional Costs in having to reschedule services, staff or facilitate continuance due to unplanned delays in obtaining approval. If unable to perform continuance, the Client may have to pay a shutdown and subsequent restart fee commensurate to the labour and resource costs incurred.

4. Unless specified in our Estimate, our Search Engine Optimisation Services exclude:
   a. Implementation of advanced conversion tracking code where website development is needed
   b. Landing Page or Website Development
   c. Website Maintenance & Security Updates
   d. New Website Migration
   e. Change of Strategy Mid-Campaign 

5. SEO, Social Media, Search Engine Marketing, Email Marketing and other recurring marketing services are billed in advance as a monthly recurring fee for the term of the contract, subject to a minimum term of 3-months unless otherwise agreed in writing prior to the commencement of services. Payment for these services must be made by credit card (Visa, Mastercard) and monthly recurring payments will be debited from the nominated card on the monthly anniversary of the subscription commencement date. Upon completion of the minimum term both parties may terminate services with 30-days written notice. When you cancel a service, the payments due for the remainder of the subscription term and/or the 30 days notice period will become due immediately and will automatically be charged to the debit/credit card held on file. The 30 day notice period applies to all Incubate Digital services except website maintenance services which can be terminated by either party with 7 days notice. 

6.   Prices do not include paid advertisements which are to be reimbursed at actuals plus a 30% administration fee if you require to use the Incubate Digital agency ad accounts. Incubate Digital requires estimated media spend including any administration fee be paid in advance via EFT to our nominated bank account. Incubate Digital does not accept credit card payments for media spend.

7. You must supply to us all required materials you want us to use in the services, and all other content and materials Incubate Digital reasonably request in a timely manner. All required materials are to be made available to Incubate Digital via cloud storage services eg. Dropbox or Google Drive. Incubate Digital uses Microsoft SharePoint for file storage and you agree that Incubate Digital will require to integrate Microsoft SharePoint to your cloud storage service to provide uninterrupted services.

8. If during the course of our engagement there are changes in the specifications of the services, the changes will be treated as a variation and may incur additional fees.    

9. Unless otherwise agreed, Incubate Digital will utilise their professional account/s to engage the appropriate third-party provider e.g. Facebook, Google. You acknowledge that Incubate Digital source suppliers and placements, but the terms and conditions of those placements are governed by the suppliers. You will provide access to your social media accounts or permission for us to set up accounts on your behalf. You explicitly agree that the sole responsibility to revoke Incubate Digital’s access to these systems are yours alone and Incubate Digital will not be held liable for any breaches to systems.

10. If the Fees are not specified (in a Purchase Order, Pricing Structure or otherwise) at the commencement of the Service, then Incubate Digital will charge you at the Professional Hourly Rates for all work that Incubate Digital carry out for you in the course of the Service. The Professional Hourly Rates may change from time to time and are currently $90 per hour on weekdays and $135 per hour on weekends and public holidays, ex-GST. Incubate Digital will perform the Services as specified in the Pricing Structure or as agreed in writing with the client, utilising the specified providers and/or platforms, for the specified term.   

11. Incubate Digital reserve the right to reallocate approved pay per click budget between different approved marketing platforms (for example Google, Facebook/ Instagram, Pinterest, TikTok or LinkedIn) or strategies (demographic targeting / remarketing) based on the effectiveness of the Digital Marketing Campaign in order to maximise results.

12.  All recurring services are non-refundable and non-cancellable for the term of the contract. Unused hours on retainers may not be accrued and refunds will not be issued; a credit note may be issued at Incubate Digital’s sole discretion or if required by law. Payments may be charged to a card held on file in the event of a payment default.  

13.  Incubate Digital reserves the right to charge Additional Costs caused by the Clients instructions, lack of instructions, interruptions, mistakes, work for which Incubate Digital is not responsible and changes to the requirements, expectations or hardware and software environment, and extra work required caused by faults or defects in any service provided by a third party.

14. To the fullest extent permissible by law, Incubate Digital is not liable (whether in contract or tort) for:

• faults or defects in any services or goods provided by third parties in connection with this agreement; 
• any indirect, special or consequential loss (including loss or corruption of data, breach of systems, loss of profits, revenue, goodwill, anticipated savings and business interruption) however arising, whether or not Incubate Digital knew of the possibility of such loss and whether or not such loss was foreseeable.
• any services provided by a 3rd party where services were aggregated by Incubate Digital

To the fullest extent permissible by law, in no event will Incubate Digital’s liability in contract, tort (including negligence and breach of statutory duty) or otherwise arising out of, or in connection with, this agreement exceed the amounts actually paid by the Client to Incubate Digital for the specific part of the Service;

Incubate Digital makes no warranties regarding the likelihood of success of marketing or promotional activity undertaken pursuant to the agreement.

Without limiting the above, Incubate Digital will use its reasonable endeavours to optimise the performance of your Digital Marketing Campaign, however, Incubate Digital gives no warranties and makes no guarantees in respect of the performance of your Digital Marketing Campaign.

You acknowledge that:

• search engine and social media results and ad position will vary for each of the search engines and social media platforms;
• the algorithms of each search engine and social media platform may change from time to time; and
• this is out of the control of Incubate Digital

To the fullest extent permitted by law, the liability of Incubate Digital for a breach of a non-excludable condition is limited to:

in the case of the provision of services:

• the supplying of the services again; or
• payment of the cost of having the services supplied again by Incubate Digital

in relation to goods:

• the replacement of the goods or the supply of equivalent goods by Incubate Digital;
• the payment of the cost of replacing the goods or acquiring equivalent goods by Incubate Digital; or
• the repair of the goods or the payment of the cost of having the goods repaired by Incubate Digital.

  To the full extent permitted by law, Incubate Digital excludes all liability for: 

   

• the infringement of the Intellectual Property rights of any third party arising from any of the material or content published during the performance of the Services;
• liability for misrepresentation or negligence arising from detrimental reliance on any of the material or content published in accordance with the performance of the Services. It is your responsibility to thoroughly check and gain independent expert advice on the suitability or correctness of the material to be published as part of the performance of the Services;
• liability in respect of loss of data, 3rd party integration failure, breach of our security, interruption of business or any consequential or incidental damages;
• all representations, warranties or terms (whether express or implied) other than those expressly set out in the agreement.

Incubate Digital’s total aggregate liability for all claims relating to the agreement is limited to the price for the specific Services payable under this agreement. Either party’s liability for any claim relating to the agreement will be reduced to the extent to which the other party contributed to the damage arising from the claim.

15.  You indemnify, defend and hold harmless Incubate Digital in respect of all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal fees on a full indemnity basis), in connection with any of the following:

• any breach of this agreement;
• your negligent acts or omissions; or
• your use of the Services, including any third party claims made in connection with or arising out of the Client’s use of the Service, other than use in accordance with this agreement.
• breach of third party Intellectual Property
• breach of any systems used to perform the Services

You indemnify, and agree to keep Incubate Digital, its directors, officers and employees indemnified, against all Loss arising from actions taken performing Services.

16. Unless otherwise specified, all Intellectual Property Rights in Service Intellectual Property vest in, or will upon their creation, vest in Incubate Digital. You hereby agree that all digital marketing activities performed under this agreement have been built using Incubate Digital’s extensive intellectual property. Service Intellectual Property includes, but is not limited to the following: creation and optimisation of campaigns, ad groups, ad sets and ads, creation of ad copies, ad extensions, research and analysis of keywords, search terms, optimisation of bid strategies, media buying strategy resulting from our intellectual property and strategy pertaining to audiences, demographics, placements, drafts and experiments. Unless otherwise agreed to in writing, Incubate Digital provides you a non-exclusive, non-transferable, non-sub licensable license grant to use our Service Intellectual Property for the term of the contract.

17. Incubate Digital reserves the right to suspend all services provided to the client until any payment default is rectified. In addition, the Client undertakes to bear all costs associated with debt recovery and collection action, including all legal costs incurred by Incubate Digital or a nominated debt collection agency to recover monies owing to Incubate Digital.
18. Dispute Resolution:
    
    18.1 Before court or arbitration proceedings other than for urgent interlocutory relief may be commenced, the following steps must be taken to attempt to resolve any dispute that arises out of or in connection with this contract (including any dispute as to the validity, breach or termination of the contract, or as to any claim in tort, in equity or pursuant to any statute).
    
    18.2 Notice (the notice of dispute) must be given in writing by the party claiming that a dispute has arisen to the other party (or parties) to this contract specifying the
    nature of the dispute.

    18.3 Upon receipt of the notice of dispute, the parties must attempt to agree upon an appropriate procedure for resolving the dispute.

    
    18.4 If within 10 business days of receipt of the notice of dispute the dispute is not resolved or an appropriate alternative dispute resolution process is not agreed, then the parties shall refer the dispute to the Queensland Government Dispute Resolution Centre, for facilitation of a mediation

    18.5 The parties must co-operate with the Queensland Government Dispute Resolution Centre, Dispute Resolution Branch (DRB) mediator as facilitator.

    18.6 This clause will remain operative after the contract has been performed and notwithstanding its termination

19. Incubate Digital reserves the right to charge any credit / debit card held on file for any amounts that are overdue by 7-days or more.
20. This agreement is governed by the laws of Queensland and the Commonwealth of Australia