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Standard terms and conditions for advertisers
ninemsn Pty Limited (ACN 077 753 461) These Standard Terms and Conditions for Advertisers are incorporated into the Advertising Agreement between ninemsn Pty Limited ("ninemsn") and the entity placing the order for advertising ("Client"). The provisions of the Advertising Agreement also include the terms (and all details given by the Client) on the Advertising Sales Booking Form, Insertion Order (if applicable), the Advertiser's Application for Credit, any commercial discounts applied in favour of specific Clients off the ninemsn published Ratecard, and if so marked on the Sales Booking Form, the ninemsn sales Power Point™ slide pack (receipt and acceptance of which is hereby acknowledged by the Client). All of these documents are referred to collectively as the "Advertising Agreement".
1. ORDERS FOR ADVERTISEMENTS OR CONTENT INTEGRATION: All bookings, orders or other requests by the Client for advertising and/or content integration on the ninemsn network are governed by these Standard Terms and Conditions for Advertisers. No other conditions, provisions or terms of any sort appearing in any documents or communications made in connection with any order, including without limitation those contained on or accompanying any cheques or other forms of payment, will be binding on ninemsn whether in conflict with or in addition to these Standard Terms and Conditions for Advertisers. Orders which quote rates other than ninemsn's then current published rates will not be binding on ninemsn (unless approved by ninemsn on the relevant Advertising Sales Booking Form), and will be deemed requests for advertising or content integration (as the case may be) on the terms of this Advertising Agreement at ninemsn's then current rates. All orders are binding on the Client and cannot be cancelled after sixty (60) days prior to first scheduled publication or integration (except as provided below under paragraphs 7 and 8). The Client may not resell, assign or transfer any order for advertisements or content integration. The Client must submit to ninemsn all finalised advertising material (including any content for integration into the ninemsn network) no later than five working days prior to the date on which the advertising campaign is scheduled to commence. ninemsn may require the Client to submit an Advertiser's Application for Credit (as indicated on the relevant Advertising Sales Booking Form) in which case ninemsn will not be required to fulfil any of its obligations under this Advertising Agreement until such documentation has been properly executed by the Client, submitted to, and approved by, ninemsn.
2. ACCEPTANCE: Any offer by ninemsn to publish advertisements and/or integrate content for the Client is made on these Standard Terms and Conditions for Advertisers only, and the placement or other communication of an order for advertising or content integration with ninemsn will constitute the Client's unconditional acceptance of these Standard Terms and Conditions for Advertisers. ninemsn reserves the right to reject or cancel any advertising at any time in its sole discretion (including at any time after the commencement date). Any failure by ninemsn to publish any requested advertisement or to integrate any particular item of content will be deemed to constitute a rejection of the order for such advertisement, but does not constitute a breach of contract or otherwise entitle the Client to any legal remedy from ninemsn or the advertising syndication partner or any of ninemsn's or the advertising syndication partner's affiliates.
3. PRODUCTION: If the Client asks ninemsn to produce an advertisement or item of content for integration, the Client must: i) pay the "production fee" set out on the Advertising Sales Booking Form, or if no production fee is specified then the amount set out in ninemsn's then current rates, and ii) provide ninemsn with all relevant material and design instructions at the time of completion of the order form. All relevant material must be supplied in the manner and in the format ninemsn specifies. ninemsn will not be required to publish any advertisement or integrate any item of content, nor will it be liable for any form of loss, damage, liability or expense resulting from any delay or error in any publication, if the Client fails to supply ninemsn with all relevant material in accordance with these Standard Terms and Conditions for Advertisers. ninemsn will procure the production of the advertisement and submit it to the Client for approval. Included in the production fee is the opportunity to request amendments or alterations to the advertisement on one occasion only. Each subsequent request for amendment or alteration will incur an extra fee at ninemsn's then current rates. The Client acknowledges that only one (1) piece of standard gif/jpeg media creative may be used per $1,000 order for advertisements booked and one (1) piece of rich media creative per $5,000 order for advertisements booked (prices exclusive of GST). Any additional creative submitted over this limit incurs a production charge of $200 per creative. If the Client requests ninemsn to develop and build a "mini-site" as part of the requested content integration, then the following provisions apply: (a) the mini-site will consist of a home page, up to 15 secondary pages, a vote page, a competition page, and an audio/video page. Any variations to this standard package will be charged to the Client at ninemsn's then current production rates (b) two Client revisions of the mini-site are included in the amount set out in the Advertising Sales Booking Form. Any additional revisions will be charged to the Client at ninemsn's then current production rates; (c) all original creative and raw artwork files for the mini site must be supplied to ninemsn no later than 5 days prior to the proposed launch date of the mini site; and (d) the Client will pay for the data and traffic fees on the basis set out in the Power Point™ slide pack.
4. RESPONSIBILITY FOR ADVERTISEMENTS AND CONTENT: The Client represents and warrants to ninemsn that it is fully authorised to publish the entire contents and subject matter of all advertisements or integration content submitted to ninemsn (including, without limitation, all text, graphics, icons, photographs, materials provided to ninemsn for production purposes, URLs, and sites to which URLs are to be linked), and that all such contents and subject matter will comply with all applicable laws, regulations and relevant industry codes. If the relevant advertisement or integration content includes any information on a competition or promotion, the Client: i) acknowledges and agrees that neither ninemsn or its advertising syndication partner is the promoter, ii) will ensure that the advertisement does not imply that ninemsn or its advertising syndication partner is the promoter, iii) will ensure that the correct identity of the promoter is set out in the advertisement or on the website represented by the hyperlink embedded in the advertisement, and iv) will ensure that all applicable permits have been obtained, and all applicable regulations governing the conduct of the relevant competition/promotion have been complied with.
The Client agrees unconditionally to indemnify ninemsn and hold ninemsn harmless (including all of its officers, agents employees and affiliates) from and against any and all loss, damage, liability and expense (including all reasonable legal fees) suffered or incurred by reason of any claims, proceedings or suits based on or arising out the publication of, or any act or omission in relation to, the advertisements or integration content, including but not limited to claims related to defamation, contempt of court, rights of publicity and/or privacy, copyright infringement, trade mark infringement, misleading or deceptive conduct and any failure to comply with or fulfill any representations, warranties or agreements made in the relevant advertisement or on any website represented by a URL shown or embedded in the relevant advertisement or any object in such advertisement.
5. POSITIONING & STYLE: All order provisions regarding positioning of advertisements will be treated as requests which will be fulfilled at ninemsn's sole discretion. Advertisements that simulate ninemsn's editorial matter in appearance or style, or that are not readily identifiable as advertisements, are not acceptable. ninemsn may in its sole discretion label any advertisement as an "advertisement" for clarification and may stipulate other conditions to ensure that it is clear that the advertisement is not ninemsn editorial matter. If applicable, ninemsn will use reasonable commercial endeavours to integrate the integration content into the ninemsn network (including any content promoting the Client as a tenant or anchor tenant within the shopping category of the ninemsn network) substantially in the manner set out in the attached the ninemsn sales Power Point™ slide pack.
6. LATE CREATIVE: All creative must be received by ninemsn 5 working days prior to the start date for commencement of a campaign. An estimated percentage of impressions that have not run due to receipt of late creative will be calculated and will be cancelled from the total impressions to run at ninemsn’s sole discretion. If a Client books a campaign with less than 5 working days until the start date, ninemsn does not guarantee that the campaign will be published in less than 5 working days from the date that the creative is received by ninemsn, however ninemsn shall use commercially reasonable endeavours to commence the campaign as soon as possible.
7. DELETE AND CHARGE: A cancellation by the Client of any type of activity (advertisement or content integration) within the period 28 to 15 days from the campaign date will be “Delete and Charged” for a value credit. Delete and Charge allows the Client to reschedule an activity to commence on a later date. All Delete and Charge activity must be published within 2 months of the date of notice of Cancellation. ninemsn will use commercially reasonable endeavours to publish the activity in the original schedule. Delete and Charge value credit is not available on ninemsn Premium placements. If Premium placements form part of a cancelled activity, they will be rescheduled in non-Premium placements pending availability. Rebooked placements are based on availability. The value credit must be used by the Client and is not transferable. The value credit must be used for the same type of activity; however a different product may be advertised. Cancellation of any activity by the Client within the 14 day period will be cancelled and charged to the Client and no value credit will be given.
8. RATE CHANGES: All of ninemsn's advertising and production rates are subject to change at ninemsn's sole discretion. ninemsn will use its commercially reasonable efforts to announce all advertising and production rate changes at least thirty (30) days in advance of their effective date. In the event ninemsn makes a rate change in respect of a period (or any portion thereof) for which the Client has placed an order for advertising with ninemsn and upon subsequent notice to ninemsn by the Client that the Client wishes to cancel its order (or relevant portion) due to such rate change, ninemsn will have the option of either: i) allowing the Client to cancel that portion of its order affected by the rate change in which case the order will be cancelled within thirty (30) days of receipt by ninemsn of the relevant notice from the Client, or ii) acknowledging that the lower rate will apply for the remainder of the then current term of the Advertising Agreement after which time, if the agreement is extended or renewed, all rates will be adjusted in accordance with ninemsn's then current advertising and production rates and amended thereafter as notified by ninemsn from time to time. The Client acknowledges, warrants and undertakes that any and all commercial terms offered to them in respect of any documentation comprising this Advertising Agreement is Confidential Information and shall not be disclosed to any third party without the prior written consent of ninemsn. In the event that the Client breaches their confidentiality obligations to ninemsn, ninemsn reserves the right to cancel this Agreement forthwith, and to pursue the Client for all equitable relief including damages.
9. LINKS TO WEBSITES: The Client warrants and represents to ninemsn that each website represented by any URL shown or embedded in any relevant advertisement or any object in any such advertisement or in any integration content: (i) is controlled and operated by the Client, its independent contractors or a client of the Client (in the event the Client is an advertising agency applying on behalf of its own client), (ii) will be functional and accessible at all times, (iii) will at all times operate in compliance with all applicable laws, regulations and relevant industry codes, and (iv) is suitable in all respects including subject matter to be linked to and from the ninemsn website containing the advertisement or integrated content. ninemsn may test all relevant URLs, and may remove any URLs which in ninemsn's sole unfettered opinion fail to comply with the any of the above requirements at any time.
10. COMMITMENT & PAYMENT: By submitting an Advertising Sales Booking Form to ninemsn, the Client agrees to be liable for all relevant fees and costs of such order. Unless otherwise indicated in the relevant order and agreed by ninemsn in writing, the Advertising Agreement commences on the later of the two signature dates on the Advertising Sales Booking Form and will continue for the term set out therein. The Client will be billed or electronically debited monthly. Unless otherwise agreed by the parties in writing, payment terms are net thirty (30) days from the date of each ninemsn invoice. All advertising fees not paid in accordance with this Advertising Agreement will accrue interest at the rate of 2% over the base rate quoted by Westpac Banking Corporation in Sydney on the date the payment becomes due. In addition to all other available rights and remedies, ninemsn may cancel and remove any advertisement or integration content which is not paid for on a timely basis. Reinstatement after cancellation may require a new Advertising Agreement (including all applicable fees). In the case of an approved advertising agency ("Approved Agency") only, the Approved Agency placing advertising or integration content with ninemsn will be eligible to receive commission in accordance with paragraph 14 below. ninemsn may terminate the Advertising Agreement at any time on 30 days' notice to the Client. The Client will be responsible for paying all amounts outstanding at the effective date of any termination or expiration of the Advertising Agreement. No termination or expiration of the Advertising Agreement will terminate or otherwise affect the warranties and indemnities provided by the Client herein or the Director's Guarantee and Indemnity which will continue in respect of this Advertising Agreement and any subsequent and/or other advertising agreement between the parties, and all such warranties and indemnities and the Director's Guarantee and Indemnity will survive and remain in full force and effect in respect of the performance of all of the Client's relevant obligations.
11. NO REPRESENTATIONS OR WARRANTIES; NO DAMAGES: The provisions of this paragraph are subject to the terms of the following paragraph regarding Australian consumer warranties. Any of ninemsn's services which are the subject of these Standard Terms and Conditions for Advertisers are provided without warranties of any nature, and ninemsn disclaims all warranties, express or implied, including without limitation any implied warranties of merchantability and fitness for a particular purpose. In no event will ninemsn be liable for any form of loss, damage, liability or expense whatsoever including but not limited to consequential, indirect, incidental, or special damages, damages for loss of profits, business interruption, loss of or unauthorised access to information, and the like, even if ninemsn has been advised of the possibility of such damages. For the avoidance of doubt, ninemsn will not be liable to the Client for any form of loss or damage whatsoever arising from any discrepancy, fault or malfunction of any third party ad server. Other than third party reports produced for ninemsn specifically pursuant to the Client’s participation in an inventory optimisation program, any reporting provided by a third party ad server will be for indicative purposes only, and ninemsn's ad serving software will be used for the purposes of metrics, billing and reporting under this Agreement, notwithstanding the results produced by any third party system. In no event will ninemsn be liable to the Client for an amount in excess of the total dollar amount actually received by ninemsn from the Client for the relevant advertisement(s) or integrated content. The Client acknowledges that ninemsn has not made any warranties in respect of any advertisement, the use of statistics or the level of impressions to be achieved. Other than for bookings and orders the result of the Client agreeing to participate in ninemsn’s inventory optimisation program, ninemsn will use its reasonable commercial endeavours to achieve the level of impressions set out on the relevant Advertising Sales Booking Form. In the event the level of impressions set out on the Advertising Sales Booking Form is not achieved during the relevant period, ninemsn will continue (during a subsequent period at no cost to the Client) to run the relevant advertisement until the appropriate total number of impressions has been achieved. For the avoidance of doubt, ninemsn does not make any representations about the number or placement of impressions made pursuant to the Client’s participation in ninemsn’s inventory optimisation program. This will constitute the Client's sole and exclusive remedy for such failure. The Client is not entitled to any reduction in fees due to ninemsn achieving a level of page or ad impressions during the relevant period which is lower than that set out on the relevant Advertising Sales Booking Form. All statistics not expressly set out in this Advertising Agreement are excluded.
12. GST: The Client will pay all taxes, duties and other government charges payable or assessed in connection with this Agreement whether applying as at the date of this Agreement or in the future including without limitation goods and services tax, other value added tax, sales or use taxes, stamp duty and turnover tax, but excluding taxes, duties and government charges assessed on the income of ninemsn or its related parties.
13. AUSTRALIAN CONSUMER WARRANTIES: If this Agreement constitutes a supply of goods or services to a consumer as defined in the Australian Trade Practices Act 1974 or relevant legislation in force in Australian States or Territories ("the Acts") nothing contained in this Agreement excludes, restricts or modifies any condition, warranty, right or remedy pursuant to which the Acts are applicable or is conferred on the Client where to do so is unlawful, in which event ninemsn's liability (or the liability of any of its affiliates) for any breach of this Agreement, including any liability for consequential loss which the Client may suffer or incur will be limited as ninemsn may elect in its sole discretion, in the case of services supplied or offered by ninemsn, to either (a) the supplying of the services again; or (b) the payment of the cost of having the services supplied again or, in the case of goods supplied or offered by ninemsn, (c) the replacement of the goods or the supply of equivalent goods, (d) the repair of such goods, (e) the payment of the cost of replacing the goods or acquiring equivalent goods, or (f) the payment of the cost of having the goods repaired.
14. NO USE OF THE NINEMSN OR ADVERTISING SYNDICATION PARTNER NAME: In consideration of ninemsn's review for acceptance of any advertising for publication or content for integration, the Client agrees not to make promotional or merchandising reference to "ninemsn" or the advertising syndication partner or any of ninemsn's or the advertising syndication partner's affiliates in any way except with the express written authorisation of ninemsn or the advertising syndication partner, as appropriate, in each instance.
15. GENERAL PROVISIONS: These Standard Terms and Conditions for Advertisers embody the entire agreement between the parties and supersede all prior and contemporaneous agreements, arrangements and understandings between the parties with respect to its subject matter. All existing advertising agreements between the parties (if any) are by agreement of the parties hereby terminated and of no further legal effect except for any provisions in such agreements which are expressed to survive termination or expiration. These Standard Terms and Conditions for Advertisers are governed by the laws of the State of New South Wales. The Client consents to the non-exclusive jurisdiction and venue of courts of New South Wales for all disputes arising out of or relating to this agreement. This agreement does not create a joint venture, partnership, employment, or agency relationship between ninemsn and the Client. ninemsn will not be taken to have waived or modified any of term of the Advertising Agreement except by an express statement in a document signed by a duly authorised representative of ninemsn. The Client may not assign any of its rights in this Advertising Agreement without the prior express written consent of ninemsn. This Agreement, including any of ninemsn's rights or obligations under it may be assigned by ninemsn on notice to the Client, provided that the relevant assignee undertakes to perform all of ninemsn's obligations herein. If any provision of these Standard Terms and Conditions for Advertisers is found invalid or unenforceable pursuant to judicial decree or decision, the remaining provisions will remain valid and enforceable, and the unenforceable provisions will be taken to be modified to the extent necessary to make them enforceable. ninemsn may send electronic mail to the Client for any notices or notifications. All notices to ninemsn relating to any legal claims or matters must be made in writing to The Chief Executive Officer, ninemsn Pty Limited, Level 7, Tower Building, Australia Square, 264 George Street, Sydney, NSW, 2000.
PARAGRAPHS 16, 17 18 AND 19 APPLY TO APPROVED AGENCY SALES ONLY.
16. COMMISSION: The Client will be eligible to receive a commission up to a maximum of ten percent (10%) of the value of the relevant advertising broadcast ON THE CONDITION THAT at all times payment for advertising is made on or before forty-five (45) days after the end of the relevant month in which the advertising was broadcast with time being of the essence in respect of punctual payment.
17. FURTHER REQUIREMENTS: If accepted by ninemsn and registered as an Approved Agency, the Client must comply with the following: 1. The Client must disclose to its relevant client the amount of commission to be paid by ninemsn to the Client; 2. The Client must not, at the time any commission would normally be payable to the Client, be in breach of any of these Standard Terms and Conditions for Advertisers or in breach of any other terms and conditions relating to advertising as advised by ninemsn from time to time; 3. The Client must ensure that no individual client of the Client at any time provides more than 50% of the Client's total billings during any 12 month period; and 4. The Client must comply with each of the provisions of paragraphs 18 and 19 below during the term of the Advertising Agreement and any extensions; The Client acknowledges that ninemsn may at any time in its sole discretion reject the Client's status as an Approved Agency after which time the Client will no longer be an Approved Agency in respect of any order it places.
18. PROPOSED CHANGES: If accepted by ninemsn and registered as an Approved Agency, the Client must advise ninemsn immediately in writing of each of the following: 1. Any change to the Client's Constitution; 2. Any change of ownership of the Client's shares or allotment or issue of any new shares; 3. Any change in the Client's directors, principal officers, partners or proprietors; 4. Any other change in the Client's capital, membership or control; 5. Any proposal that the Client cease carrying on business or, if the Client is a partnership or firm, any change in the partnership; 6. Any proposal to form a different company, partnership or entity with any other party; 7. The Client becomes (or being in jeopardy of becoming) the subject of any form of insolvency administration; 8. The existence of any significant litigation against the Client; 9. Cancellation of any debtor insurance policy; 10. A material change in any information provided by or on behalf of the Client to ninemsn as part of or in connection with the Client's application to become registered as an Approved Agency.
19. FINANCIAL INFORMATION: If accepted by ninemsn and registered as an Approved Agency, the Client must provide promptly any financial and other information that ninemsn reasonably requests from time to time including balance sheet and profit and loss account, client lists and debtor insurance status for each financial year or such other period as may be required. The Approved Agency must comply with such requirements as ninemsn may advise as to the maintenance of adequate working capital or tangible asset cover for its liabilities or any other matter which may affect the capacity of the Approved Agency to be able to meet its financial commitments. The Approved Agency must, if required by ninemsn, maintain debtor insurance in respect of its clients as ninemsn may require and provide, when requested, a copy of any policy document together with a Certificate of Currency indicating the amount of insurance cover applicable for each client of the Approved Agency.
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