1. Contract and Acceptance

  1. These terms and conditions (terms) constitute an agreement between Engine Scout Pty Ltd (ACN 613 917 105) of Level 11, 65 York St, Sydney, NSW 2000 (Engine Scout or we) and the customer (Customer or you) in relation to any services to be provided to the Customer by Engine Scout. The Customer is taken to have accepted and be bound by these terms if it instructs Engine Scout to provide any services, or accepts these terms in any other manner recognised by law. These terms may only be amended by written agreement between the parties.
  2. The Customer acknowledges and agrees that these terms and conditions shall be read together with any quote or proposal  that may have been provided by Engine Scout to the Customer in relation to Engine Scout’s services.

2. Definitions

  1. “Engine Scout” means Engine Scout Pty Ltd trading as Engine Scout and includes any agents, sub-contractors and employees of the company.
  2. “Customer” means the Customer or entity purchasing services from Engine Scout, its successors and assigns or any person acting on behalf of and with the authority of the Customer, as described in any quote, proposal or other form. 
  3. “Google Ads Spend” means the separate fee which will be charged to the Customer by Google Inc, (Google) which is a separate company to Engine Scout.
  4. “Guarantor” means any person or persons, or entity, who agrees to be jointly and severally liable for the debts of the Customer in accordance with these terms.
  5. “Management fee” means the fee Engine Scout will charge you in relation to your  account management through third party digital marketing companies and is a separate fee to the fees charged by the third party companies. 
  6. “Third Party” means any external company providing digital marketing services that Engine Scout chooses to use in accordance with the respective proposal, which may include Google, Facebook, MailChimp and any other digital marketing company. 
  7. “Services” means any services provided by Engine Scout to the Customer in accordance with the services defined in any quote or proposal, which must be read together with these terms and conditions.

3. Term and Scope of Agreement

  1. Engine Scout will provide the services, as defined above and in any quote or proposal, and the duration of the agreement will be a minimum of 2 months in the case of Search Engine Optimisation services and 2 months in case of any other services  (“the initial term”), and thereafter on a month-to-month basis, subject to 30 days written notice of termination, unless agreed to the contrary in writing. 
  2. In the case of Search Engine Optimisation services, the Customer may suspend the operation of this agreement and payment of the management fee for a period of up to 1 month without penalty, provided the agreement thereafter continues for the balance of the 2 month period. The Customer is responsible for communicating the intent and confirmation of their account suspension and reinstatement.  
  3. The Customer acknowledges and agrees that Engine Scout may use sub-contractors to assist with the provision of the services.
  4. The Customer acknowledges that they will not have direct access to the AdWords portal or MyClients Centre (MCC) of Google during the course of the agreement.

4. Price and Payment

  1. The price payable for the services shall be either:
      1. the management fee quoted by Engine Scout, or
      2. such other fee as may be quoted by Engine Scout in any proposal or quote. 
  1. Engine Scout requires management fees to be paid monthly in advance.
  2. All fees for services are quoted exclusive of GST, which will be payable in addition to the quoted fee.
  3. Any amounts not paid within 14 days of due date shall be liable for payment of interest at the rate stipulated in terms of the Penalty Interest Rates Act (Vic), as varied from time to time, with effect from the due date. In the event of Engine Scout incurring any costs (including legal costs) in order to recover any amount owing in terms of these terms, or to enforce its rights in accordance with these terms, the Customer agrees that it will be liable for the legal costs of Engine Scout on a solicitor and own client basis and/or any collection agency costs. In the event of management fees not being paid by the Customer on due date, then Engine Scout may suspend the provision of services until such time as any amounts in arrears have been paid, together with Engine Scout’s reactivation charge. 
  4. You acknowledge and agree that your management fee will depend on the amount of your third party service fee and traffic, as higher traffic will involve more management and result in an increase of the management fee. Accordingly, any increase or decrease in management fees is variable, based on the total third party digital marketing spend at the end of each month. Accordingly, you agree that the management fee may be adjusted at the end of each month, depending on the total amount spent on the relevant digital marketing company.

5. Third Party Management

  1. You acknowledge that the third party services provided by external third party companies are a separate service. i.e. based on a “per click” fee that is charged and paid directly to the third party account and company. You acknowledge that third party companies have their own separate terms and conditions and that you have read, understood and accepted their terms and conditions in so far as they relate to this agreement.
  2. By accepting these terms and conditions you authorise Engine Scout to set up your  third party account and to access that account for the purposes of optimisation and management of your online business. However, you acknowledge that the account will be in your name and you will be the primary contact in relation to such account.
  3. You acknowledge that Engine Scout does not represent any third party companies or act on their behalf. You furthermore undertake to provide us with your billing and relevant bank account details, which are required to set up the account.
  4. You acknowledge that it is your responsibility to notify both Engine Scout and third-party companies of the billing expiry dates and that Engine Scout will not be responsible for third party accounts not running due to expired or incorrect billing details or any other billing issue. 
  5. You acknowledge that you will be solely responsible for any debt or monies owing by you to third parties such as Google, Facebook or any other digital marketing company, either during the course of or after termination of this agreement.  
  6. You acknowledge and agree that cancellation of your agreement with us does not automatically result in termination of your third party accounts, which will continue incurring their own fees, unless the agreement with such third-party companies are cancelled by you.
  7. If you wish to cease using third party services at the same time as you cancel your agreement with us, you agree to notify us in writing with at least 4 weeks in advance, so that we may cancel your third party advertising accounts at the same time. 
  8. While Engine Scout will assist you with your online advertising goals by providing advice, information and technical services in relation to digital marketing, Engine Scout cannot guarantee any particular rate of return or performance of any online advertising on third party accounts, including, but not limited to, any particular search results pages or rankings, nor will Engine Scout be liable for any commercial outcomes relating to Internet marketing or management of your third party accounts. 
  9. The Customer will be responsible for advising Engine Scout in writing, if it wishes to change its third party account or fees. 
  10. The Customer acknowledges and agrees that:
      1. It cannot have competing active third party advertising accounts,
      2. Engine Scout is not obliged to follow the customers instructions or recommendations in relation to the services, if in its reasonably held opinion, and based on engine Scout’s knowledge and expertise, the Customer’s request is likely to impact negatively on its third party account.

6. Intellectual Property Rights

  1. The Customer warrants to Engine Scout that any elements of text, graphics, photographs, designs, trade marks or other artwork provided to Engine Scout by the Customer or its agents are owned by the Customer, or that the Customer has permission from the rightful owner to use each of the elements. The Customer will furthermore indemnify and hold harmless, Engine Scout, its officers, employees and subcontractors from any claim or suit arising from the use of such elements as may have been provided to Engine Scout by the client or its agent. Engine Scout acknowledges and agrees that it will not have any interest, claim or ownership in the client’s aforesaid intellectual property.
  2. The Customer agrees that copyright in the finished assembled work and work of the third-party account, as produced by Engine Scout, will be owned by Engine Scout until final payment has been received from the Customer. Upon receipt of the final payment due under this agreement, Engine Scout will assign ownership of the copyright of the work and of the account and all other files on the Customer server (other than the rights to the items mentioned below) to the Customer. The rights attached to any original photographs, graphics, source code, workup files, RAW files, and computer files will not be transferred to the Customer and will remain the property of Engine Scout or their respective owners, whichever is applicable.  
  3. The Customer authorises Engine Scout to display details of the services provided in terms of this agreement in its portfolio, including any portfolio displayed on digital media or any of its partners’ or subcontractors’ websites and in any media releases.

7. Confidential Information

  1. A party may not, without the prior written consent of the other party, use or disclose the other party’s confidential information, unless expressly permitted by this agreement, or required to do so by law or any regulatory authority. 
  2. Each party to this agreement must implement and maintain effective security measures to prevent unauthorised use and disclosure of the other party’s confidential information. 
  3. A party may: 
      1. use the confidential information of the other party solely for the purposes of complying with its obligations in exercising its rights under this agreement; and 
      2. disclose confidential information to its employees, advisers or sub-contractors, to the extent necessary for them to know the information for any purposes related to this agreement, provided reasonable steps are taken to ensure that the confidentiality of the information is retained.  
  4. For the purposes of this agreement “confidential information” means all information provided by one party to the other in connection with this agreement, where such information is identified as confidential, or ought reasonably be considered to be confidential based on its context, nature or the manner of its disclosure, and includes the contents of this agreement and any proposal or quote, but excludes:
      1. information that is in the public domain, other than by a breach of this agreement; or
      2. information which was already known to a third party prior to this agreement, or
      3. information developed independently by a third party.

8. Limitation of liability and Indemnity

  1. The Customer agrees that to the maximum extent permitted by law, Engine Scout, its officers, employees and subcontractors shall not be liable to the Customer, its customers, officers, employees or subcontractors for any claims whatsoever, except to the extent that such claims are caused by the gross negligence, fraudulent act or omission or willful breach of this agreement by Engine Scout, its officers, employees or subcontractors.
  2. Engine Scout’s liability to the Customer in terms of this agreement will be limited to the lesser of:
      1. the total of any setup and management fees the Customer has paid to Engine Scout, or 
      2. the cost of resupplying any services in terms of this agreement; or 
      3. the cost of rectifying the online advertising problem which has caused the Customer’s loss.
  3. Engine Scout will not be liable for any interruption in the Customer’s advertisements. The Customer acknowledges that advertisements may not be shown for short periods of time, for various reasons, including, but not limited to: 
      1. advertising content which has been changed and is pending review by the third party company, or 
      2. advertising campaign settings have been changed, or
      3. the third party service is unable to accurately determine the Customers location submitting search request, or 
      4. the third party system is off-line for maintenance, or 
      5. the Customer’s billing details have expired or its billing details have changed.
  4. The Customer acknowledges and agrees that Engine Scout does not warrant or guarantee that Search Engine Optimisation (SEO) will generate any increase in sales or business activity. The Customer furthermore acknowledges that Google continually updates its search algorithm, which may have a negative impact on the Customer’s website ranking at any time. In such circumstances, Engine Scout will endeavour to rectify any negative impact as quickly as possible, but cannot guarantee that Google rankings will improve.
  5. The Customer acknowledges and agrees that there are many factors which are outside the direct control of Engine Scout, which may affect the ranking of the website or overall performance of SEO, for example if:
      1. the Customer’s website has poor or duplicate content,
      2. the Customer’s website is on an SEO unfriendly content management system (CMS),
      3. the Customer’s website is affected by either an automatic or manual penalty from Google,
      4. the Customer’s website has an unnatural link profile, or the Customer’s website is hosted on a slow or blacklisted server.
  6. Engine Scout will not be liable for any failure to supply the services, if such failure is caused by matters beyond Engine Scout’s reasonable control, including acts of God, acts of any government, war or other hostility, pandemics or epidemics, national or international disasters, the elements, fire, explosion, power failure, equipment failure, strikes, lockouts, inability to obtain necessary supplies and any other force majeure event.
  7. The Customer acknowledges that timelines and dates set out in any proposals are only guidelines and are not binding on Engine Scout. We will make all reasonable efforts to comply with any proposed dates, but the Customer acknowledges that timelines cannot be guaranteed and may be subject to other factors, including the force majeure events referred to in clause 8 (f) above.
  8. The Customer indemnifies Engine Scout against any loss, damage, costs, claims and expenses (including legal fees on a solicitor and own client basis) which Engine Scout may incur, as a result of:
      1. the existence and or publication of any data and/or content that is on or forming part of the Customer’s website,
      2. the publication or use of the Customer’s data by Engine Scout for the purposes of providing any services in accordance with this agreement,
      3. making the Customer’s data available to anyone authorised to use the Customer’s current password/s,
      4. the Customer making its data available, either deliberately or negligently, to anyone who is not authorised to use the Customer’s current password/s,
      5. any of the Customer’s warranties under this agreement being, or becoming false, misleading or deceptive,
      6. any loss, damage, injury or claim by any user, arising as a result of reliance on any fact, statement or opinion set out in the Customers data, whether negligent or otherwise,  
      7. any third-party claims of defamation, breach of intellectual property rights or breach of the Customer’s obligations under the Privacy Act (Cth), arising from the Customer’s use of Engine Scout’s services, or 
      8. death or injury to any person or damage to any property caused by the Customer, its employees, contractors or agents.

9. Termination of Agreement

  1. Either party may cancel this agreement after the initial term referred to in clause 3 (a) above, by providing 30 days written notice to the other party. In the event of the Customer cancelling the agreement without cause during the initial term, the Customer agrees that it will be liable for payment of the management fees for the full initial period, payable immediately upon termination of the agreement.
  2. Engine Scout may terminate this agreement, with immediate effect, by written notice to the Customer, if:
      1. A third party company notifies Engine Scout that the Customer is ineligible to have an account with that company, or
      2. A third party company notifies Engine Scout that the advertisement, copy or destination URL breaches any aspects of their advertising guidelines and policies, or 
      3. the Customer breaches a material term of this agreement, which is not capable of being remedied, or 
      4. the Customer breaches a term of this agreement, which is capable of being remedied, but does not remedy that breach within 10 days of written notice to do so, or
      5. an insolvency event occurs in respect of the Customer, other than an insolvency event which does not allow termination of the agreement in terms of any law.  
  3. In the event of this agreement being terminated, the Customer will be liable for any obligations which by their nature survive termination of the agreement and must immediately pay any outstanding fees owing to Engine Scout.

10. Corporate Entity and Guarantee

If the Customer is a corporate entity the person signing or contracting on behalf of that entity warrants that they are a duly authorised representative of the entity and that person hereby personally guarantees performance by the Customer of all its obligations as specified in these terms and conditions.

11. Dispute

  1. If any dispute arises out of this agreement, the parties will attempt to resolve the dispute informally. If the parties have not resolved their dispute within 10 business days of one party notifying the other party in writing of the nature of the dispute, then the parties agree to:
    1. engage a mediator selected by agreement or, failing agreement within 5 business days after one party nominates a mediator in writing, selected by the President of the Law institute of New South Wales; and
    2. conduct a mediation in respect of the dispute within 20 business days after the mediator is appointed.
  2. The parties agree to each pay half of the mediator’s fees. 
  3. A party must not commence court proceedings, except proceedings seeking interlocutory relief, in respect of a dispute arising out of these terms and conditions, unless it has complied with this clause.

12. General

  1. These terms and conditions and the agreement entered into between the parties shall be governed by the laws of the State of New South Wales and each party submits to the non-exclusive jurisdiction of the courts of that state.
  2. In the event that any of these terms and conditions are found to be invalid, illegal or unenforceable, such validity, legality and enforceability shall not affect the validity of any other remaining provisions of these terms and conditions.
  3. Engine Scout reserves the right to alter these terms and conditions at any time.