Standard terms and conditions for My Local advertisers

These Standard Terms and Conditions for Advertisers on the My Local search function are incorporated into the Advertising Agreement between ninemsn Pty Limited (ACN 077 753 461) ("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 My Local Advertising Sales Booking Confirmation which together with these terms shall be 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 My Local Advertising Sales Booking Confirmation), 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 (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 15 working days prior to the date on which the advertising campaign is scheduled to commence. ninemsn will not be required to fulfil any of its obligations under this Advertising Agreement until full payment has been properly received 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.

3. PRODUCTION: If the Client asks ninemsn to reproduce an advertisement or item of content for integration (which may be of a text nature only), the Client must provide ninemsn with all relevant material and instructions at the time of completion of the order. 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. Included in the advertising 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.

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, icons, 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. 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 fulfil 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, 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. The My Local search directory may contain, amongst other things, information provided by third parties (including without limitation a map showing the location of a Client’s business). Such third party information is provided on an ‘as is’ and/or ‘as and when available’ basis without any express or implied warranty and any underlying copyright or other intellectual property rights in such materials shall remain with the applicable licensor(s). All listing and advertisements are sorted by the distance from the searched area.

6. LATE CREATIVE: All creative must be received by ninemsn 15 working days prior to the start date for commencement of a campaign. If a Client books a campaign with less than 15 working days until the proposed start date, ninemsn does not guarantee that the campaign will be published in less than 15 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. 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. 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 rate changes at least thirty (30) days in advance of their effective date. If the agreement is extended or renewed, all rates will be adjusted in accordance with ninemsn's then current advertising 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 or email address 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 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: In making a booking over the phone, 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 date of the booking (as confirmed on the My Local Advertising Sales Booking Confirmation) and will continue for the 6 or 12 month term set out therein. Unless otherwise agreed by the parties in writing, payment terms are in full before publication or, if made available in the sole discretion of ninemsn, net thirty (30) days from the date of a 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). 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 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 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 (including without limitation any third party information featured in the My Local search directory) 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 and/or their ad server. 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. 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. NINEMSN NAME AND PROPERTY: 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", “My Local” or any of ninemsn's affiliates in any way except with the express written authorisation of ninemsn in each instance. Save as set out herein, ninemsn (or its authorised licensors) owns legally or beneficially all the intellectual property rights in the My Local search directory (including the design, text, graphics and arrangement thereof) and in the software used therein. Such intellectual property rights include, without limitation, copyrights and database rights in the information displayed.

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. ninemsn reserves the right to vary these terms and conditions without notice and current terms can be found at our website www.ninemsn.com.au. 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.