Terms and Conditions of advertising in the Australian Over 50s Living & Lifestyle Guide (AOF).
These Terms and Conditions shall apply to all Advertisements submitted to and accepted by the Publisher for publication in the AOF, and the Parties agree that these Terms and Conditions form a legal binding contract between the Parties (“Agreement”). An Advertisement submitted to the Publisher shall not be deemed to have been accepted unless and until it is either confirmed in writing by the Publisher or the advertising campaign commences and the first Advertisement appears in the AOF. By submitting an Advertisement to AOF, the Customer agrees to be bound by these Terms and Conditions as principal, even if it is acting as agent or buyer for the actual advertiser. A Customer’s standard Terms and Conditions of purchase or other standard Terms and Conditions shall not apply.
Throughout these Terms and Conditions, the terms AOF, Australian Over Fifties Living & Lifestyle Guide and the Publisher are interchangeable and the case of one term includes all other two Terms.
In these Terms and Conditions, the following definitions shall apply:
"Advertisement" means an advertisement or article published, reproduced, or inserted in AOF pursuant to an Advertisement Order;
"Advertisement Order" means any order submitted to AOF for the publication, reproduction, or insertion of Material in AOF
"Customer" means the person who submits the Advertisement Order even if it is acting as agent or buyer for the actual advertiser or third party;
"AOF” means Australian Over 50s Living & Lifestyle Guide, published by DeCalais Consultants Pty Ltd (ABN 51139753361);
“Publisher” means DeCalais Consultants Pty Ltd (ABN 51139753361);
"Material" means any advertising material/copy, artwork, photographs or other material provided or to be provided by the Customer in connection with the Advertisement Order,
"Rate Card" means the rate card of AOF in effect from time to time, which AOF may amend at any time at its sole discretion.
2.1 The Customer hereby undertakes and warrants and represents to AOF that:
(a) all information and Material supplied to the Publisher is true, accurate and not misleading, and nothing contained in it is liable to bring AOF or the Publisher into disrepute;
(b)the Material is not obscene, defamatory, or libellous and it will not infringe the intellectual property rights, copyrights, trademarks or any other rights (including any right of privacy or confidentiality) of any third party;
(c) the Material complies with all applicable legislation, rules, ordinances, and codes of practice in the countries in which the Material is to be published; and
(d)the Customer has all the necessary rights, licenses and consents (including where necessary regulatory consents and consents from persons or entities cited or quoted in the Material) needed to permit the Publisher to use, display, reproduce, insert, or publish the Material pursuant to the Advertisement Order.
2.2 The Customer shall indemnify the Publisher and AOF, and shall keep AOF and the Publisher indemnified against all losses, damages, expenses (including legal expenses), charges or other costs including any settlement payments suffered or incurred by the Publisher as a result of a breach, or alleged breach, of any of the warranties contained in Clause 2.1 above.
By submitting and/or authorising the submission of an Advertisement for publication or Advertising, the Customer indemnifies AOF and the Publisher, and their employees, officers and agents against any proceedings, demands, losses, costs (including legal costs on a full indemnity basis), damages and any other liabilities of any nature taken, made or awarded against or incurred by AOF or the Publisher and/or its employees, officers and agents in connection with the Advertisement or any Advertising.
3.1 AOF does not guarantee that the Customer’s product featured in an Advertisement will be the only product of that type featured in Advertisements on any one page or any one edition of AOF. AOF will not be responsible or liable to the Customer in any way if the Customer’s request cannot be granted, or the product featured in the Customer’s Advertisement is not the only product of that type featured in Advertisements on any one page or any one edition of AOF.
3.2 Online Advertising will be published via internet accessible Advertisement serving software (“Software”). AOF makes no warranties of any kind, whether express or implied of the fitness of this Software for a particular purpose. AOF shall not be liable for any loss, damage, or expense incurred in connection with AOF’s or the Customer’s use of the Software, including without limitation, for any technical malfunction, computer error or loss of data or other injury, damage or disruption of any kind.
3.3 The Customer agrees that the Publisher may accept or reject any Advertisement for publication at its’ sole discretion for any reason whatsoever without explanation.
3.4 Except as provided for in these Terms and Conditions, AOF makes no representation of any kind, express or implied with respect to the provision of the Advertisement.
3.5 No warranty is made by AOF for the performance of third party software, content or equipment or internet wifi latency.
4.1 The Publisher shall not be liable to the Customer in respect to the Advertising, in contract, tort (including negligence), or otherwise for any direct or indirect loss of profits, business, contracts, orders, revenue, goodwill or anticipated savings or for any special or consequential loss or damage or special or exemplary damage suffered by the Customer or any other person, even if such loss or damages are foreseeable and whether or not AOF had been advised of the possibility thereof.
4.2 The liability of the Publisher in respect of any and all claims (whether in contract or tort) arising out of or in connection with an Advertisement or Advertisement Order shall not exceed the amount the Customer has paid AOF and/or the Publisher in connection with that Advertisement or Advertisement Order (including in respect to any errors or inaccuracies however caused, whether by negligence, system, software or press failure, mistake, misclassifications, early, late or non-insertion of Advertisements, or loss or delay in the delivery of replies) and shall be limited to an amount equal to the cost of the space of the relevant Advertisement, provided that if the Customer does not advise AOF of any error within five (5) days of the original publication of the Advertisement AOF shall have no liability whatsoever.
4.3 The Publisher shall not be liable for any loss of any Material, however caused.
4.4 It is the Customer's responsibility to ensure that all Advertisements are correct, accurate and not misleading. The Publisher accepts no responsibility for any errors in an Advertisement. The Customer acknowledges and agrees that AOF shall take the Advertisement submitted by the Customer or approved by the Customer to the be the full and final Advertisement, unless otherwise agreed in writing between the Parties pursuant to Clause 7 below.
4.5 The services provided hereunder are provided "as is". Except as otherwise expressly provided herein, the Publisher makes no warranties of any kind, either express or implied, including, but not limited to, warranties of satisfactory quality, accuracy or fitness for a particular purpose.
4.6 The Publisher agrees to use its reasonable endeavours to run requested positions of Advertisements in the AOF, which have been agreed by it in writing, but is unable to guarantee this.
4.7 The Publisher will use all reasonable endeavours to reproduce the Customer’s trademarks and logos featured in Advertisements correctly in accordance with written instructions given to it, but is unable to guarantee this, and is heavily reliant on the same being properly produced by the Customer.
4.8 To the extent permitted by law, all conditions, warranties, and terms implied by law and any liability for consequential or indirect damages are excluded from this Agreement.
4.9 The Publisher shall not responsible for errors made in any Advertisement that result from changes or alterations made by the Publisher at the Customer's request.
4.10 The Customer is responsible for promptly reviewing any Advertisement upon the first publication and notifying the Publisher in writing, within one (1) week of the publication date, of any errors in the published Advertisement. Refunds will not be given for any errors except for full omission of an Advertisement. For any other errors that were the manifest fault of the Publisher, a full or partial credit will be given to the Advertiser depending upon the circumstances of the error, to be decided by AOF at its sole discretion. Such credits can be applied towards future advertising.
4.11 AOF will not be liable to the Customer or any other person for any loss whatsoever as a result of other Advertising of a third party, or an Advertisement not being available for publication or not published where such loss arises from any cause beyond its control.
4.12 Any loss suffered as a result of any partial or total breakdown of AOF’s operation or network, any technical malfunction, computer error or loss of data shall be deemed to be an event beyond AOF’s control. Should such an event occur, AOF will take responsibility to resurrect the sites and links, and the Customer has the right to cancel the particular contract for the affected advertising at no penalty if such an occurrence results in the site being down for more than seven (7) working days (working days being Monday to Friday inclusive, but excluding statutory holidays). However, AOF will not be liable to the Customer for any error or inaccuracy in Advertisements placed by telephone.
Unless otherwise stated by AOF, all advertising rates are quoted exclusive of GST and the Customer will pay GST in addition to any such rates.
6.1 Unless otherwise agreed by the Publisher in writing, the Publisher shall invoice the Customer in advance of publication for all amounts as they become due. Invoices must be paid within seven (7) days of date of such invoice
6.2 The Publisher may charge interest on all sums outstanding after the due date of any payment. Interest may be charged on that basis from the due date of payment until the actual date paid at the rate of six percent (6%) interest per annum calculated daily.
6.3 Where applicable, all applicable taxes, including without limitation GST and taxes on advertising space, will be the responsibility of the Customer and shall be paid by the Customer in addition to the fee payable pursuant to the Rate Card.
6.4 The Publisher reserves the right to change the rates in the Rate Card at any time at its sole discretion. The current prevailing Rate Card shall be made available to Customers upon request.
6.5 The Customer must pay AOF for Advertisements: a) in accordance with the rates set out in the relevant Rate Card; b) by prepayment, if so required by AOF; c) if payment is agreed in writing by AOF to be on account, on the credit terms supplied by AOF to the Customer; and d) on the basis of booked space or advertising material, whichever is larger provided that if the actual space is reduced during printing, the Parties agree that AOF shall not be liable to the Customer for any credit or refund for such reduction.
7.1 If the Customer requires any creative, production, programming, or other services (“Production Services”) from AOF, the Customer must pay AOF additional charges for such services, as agreed in writing by AOF at the time or shortly after the Customer requests the Production Services. AOF may charge the Customer for these Production Services on a case by case basis
7.2 The Advertiser authorises the Publisher to dispose of any Materials supplied to the Publisher relating to an Advertisement (including illustrations, copy, photographs, artwork, and press-ready PDF digital files) following publication of an advertisement. The Publisher is not required to retain or return to the Advertiser the Materials.
7.3 AOF owns and retains all copyright and other intellectual property rights in relation to any content produced by AOF or any materials provided by AOF for use in any Advertisement. The Customer obtains no rights in relation to those advertisements produced by AOF or in relation to content from AOF. This Clause does not in any way derogate from the Customer’s obligations or liabilities in relation to such Advertisements.
7.4 AOF may agree at its sole discretion to provide proofs to the Customer but only where requested in writing by the Customer prior to relevant agreed deadlines.
7.5. Colour shown on any proof is an indication only. Final print colours may vary slightly with the print process and stock variations.
7.6. Where AOF fails to provide a requested proof in accordance with this Clause 7, and the published Advertisement substantially conforms to the copy provided by the Customer, then the Customer remains liable to pay the full cost of the Advertisement.
7.7 Where the Customer fails to provide the Advertisement material to the Publisher by the due date notified by the publisher, then the publisher may at its sole discretion use the most recent advertisement material received from the customer whether previously published or not in that communication to the customer.
If any payment is not received by AOF on or before the date that such payment is due, AOF may at its sole discretion:
9.1 Once an Advertisement Order has been accepted, a Customer may only cancel or alter the Advertisement Order within 7 (seven) days, provided 7 (seven) days still remain before printing date. Otherwise the written consent of the Publisher is required for any such cancellation or alteration. If such consent is not granted, then the Customer will be liable for all sums due to the Publisher pursuant to the Advertisement Order.
9.2 If the Customer had contracted for more than one Advertisement and has received a discounted rate for the series of Advertisements, after which the Customer cancels any of the advertisements, then any discounts so given will be payable by the Customer within seven (7) days, alternatively and at the sole discretion of the Publisher any refund may be adjusted from the amounts to be refunded to the Customer as if only one Advertisement had been contracted for.
9.3 If a cancellation is accepted and the Publisher has carried out design work on behalf of the then Customer, the Customer shall be liable to pay the Publisher fifty percent (50%) of the advertising fee or $495.00 whichever is higher as fair compensation for the design work carried out by the Publisher.
9.4 An administration charge of $50.00 plus GST is applicable to all cancellations.
9.5 The failure by the Customer to provide Materials by the date specified by AOF or failure to respond to communication or correspondence from AOF does not constitute cancellation of the Advertisement order and the Customer will continue to be liable for all the payments relating to the order, and AOF shall not be held liable for any delays to publication of the Advertisement caused by such failure.
10.1 AOF may terminate this Agreement immediately if:
(a) the Customer commits any act of dishonesty, fraud or wilful misconduct in the course of this Agreement;
(b) the Customer breaches any obligation contained in this Agreement;
(c) any of the following occurs in respect to the Customer: (i) The commission of any act of bankruptcy; (ii) The entering into or resolution to enter into an arrangement, composition or compromise with or assignment for the benefit of their creditors generally or a class of creditors or proceedings are called to sanction such arrangement, compromise or composition; (iii) The appointment of a receiver, receiver and manager, official manager, trustee, administrator or similar official is appointed, or steps are taken for such appointment, over any assets or undertaking; (iv) The suspension of payment of debts generally; or (x) The Provider becomes unable to pay its debts when they are due or is or is presumed to be insolvent.
11.1 The Customer hereby grants the Publisher all rights that the Publisher requires to fulfill the Advertisement Order.
11.2 The Publisher may either (as it shall choose at its discretion) refuse or require to be amended any Material relating to an Advertisement that does not comply with the Publisher’s standards or which, in the reasonable opinion of the Publisher, is or may be, defamatory, obscene, illegal, infringe the intellectual property rights or other rights of a third party or fail to comply with any relevant legislation or code of practice or formal or implicit standards of the Publisher.
11.3 The Publisher reserves the right to place the word "Advertisement" or “Advertorial” in any Advertisement containing Material, which in the Publisher's opinion resembles editorial matter. Such Advertisements must additionally conform to the Publisher's guidelines concerning advertising that resembles editorial matter (Advertisement Features, Advertorial) that are available to the Customer on request.
11.4 The Publisher shall not be liable for delay or failure caused by acts of God, suppliers, contractors, distributors, any government, flood, insurrection, embargo, strikes whether legal or illegal or other contingencies beyond the Publisher's control (“Force Majeure Event”).
11.5 The Publisher may change the publication date without notice and at its sole discretion without attributing any reason and the publisher shall not be liable for any damage or loss whatsoever that a Customer may suffer because of such change in publication date.
11.6 The Customer shall provide the Publisher with all necessary Material by any date stipulated by the Publisher. If the Customer fails to provide such Material by such date then the Publisher cannot guarantee to fulfil its obligations under the Advertisement Order and accepts no liability for a failure to do so. This is in addition to the Publisher’s rights pursuant to Clause 4 above.
11.7 This Agreement shall be subject to the laws of the state of Queensland, Australia, and the parties irrevocably submit to the non-exclusive jurisdiction of the Courts of Queensland.
11.8 Any provision of, or the application of any provision of, this Agreement which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.
11.9 Any provision of, or the application of any provision of, this Agreement which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
11.10 If a clause is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this Agreement.
11.11 The failure of The Publisher at any time to require performance by the Customer of any provision of this Agreement does not affect the Publisher's right to require the performance at any time.
11.12 The waiver by the Publisher of a breach of any provision must not be held to be a waiver of any succeeding breach of the provision or a waiver of the provision itself.
11.13 This Agreement supersedes all previous agreements, arrangements, understandings, representations or any other communication in respect of the subject matter of this Agreement and embodies the entire agreement between the parties.
11.14 This Agreement may not be changed or modified in any way subsequent to its execution except in writing signed by the parties.
11.15 In this Agreement, headings are for convenience only and do not affect the interpretation of this Agreement and, unless the context otherwise requires:
(a) words importing the singular include the plural and vice versa;
(b) words with a capital letter where defined in this Agreement have that meaning;
(c) words importing a gender include any gender;
(d) other parts of speech and grammatical forms of a word or phrase defined in this Agreement have a corresponding meaning;
(e) an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and vice versa;
(f) a reference to any thing (including, but not limited to, any right) includes a part of that thing;
(g) a reference to a party in a document includes that party's successors and permitted assigns;
(h) a reference to a statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws varying, consolidating or replacing it, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute;
(i) a reference to a document or agreement includes all amendments or supplements to, or replacements or novations of, that document or agreement.
11.15 The Customer indemnifies AOF against any or all taxation liability arising from this Agreement.
11.16 The foregoing provisions of this Agreement apply except as otherwise agreed in writing between the Parties.
In addition to these Terms and Conditions the Customer acknowledges that all Advertising, including the Conditions of payment, delivery and changes to or cancellation of such Advertising, will be in accordance with and subject to any specific Conditions notified to the Customer or generally published by AOF from time to time, including on the relevant AOF website.