METRO MEDIA PUBLISHING PTY LTD A.C.N. 141 396 741
GENERAL ADVERTISING BOOKING TERMS & CONDITIONS
(Standard trading terms & conditions for customers)
Effective as at Friday 23 April 2010
Metro Media Publishing Pty Ltd (“we”) and the customer (“you”) wish to enter into an agreement regarding advertising in our publications.
1.
1.1 The agreement comprises:
(a) these Terms and Conditions;
(b) the terms of the Booking Order(s);
(c) the Credit Application Form if any; and
1.2 The agreement constitutes the entire agreement between the parties and
replaces any previous discussions, communications or other documents concerning
the supply of the Services.
2 Interpretation
2.1 Definitions
In this agreement, the following words have these meanings, unless the context
otherwise requires:
Advertising Copy means all advertising, marketing or other material supplied by you
for publication in any of our magazines or on our web-site in the form and manner
approved by us;
Approved Agency means any customer who provides advertising agency services to
its customers and which is recognized by us as an approved agency;
Cancellation Fee means the estimated charges and costs we would have reasonably
expected to have received for provision of the Services but for your late cancellation
including our charges for producing any Custom Materials and our Fees for publishing
any Custom Materials or Advertising Copy based on the applicable Booking Order;
Custom Materials means customised content and materials in any form which we
have produced for any particular campaign or promotion.
Confidential Information means:
(a) this agreement; and
(b) all information of a confidential nature disclosed or communicated by the
disclosing party to the recipient including any financial and pricing data; business
plans; policies; suppliers; inventions; product information and information about a
party’s marketing and/or promotional activities
(c) but excludes any information which the recipient can establish:
(i) is or becomes generally available in the public domain otherwise than
through a breach of this agreement or any obligation of confidence owed to the
disclosing party;
(ii) is or becomes known to the recipient from a source other than the disclosing
party otherwise than through a breach of an obligation of confidentiality owed to the
disclosing party;
(iii) is or has been independently developed or acquired by the recipient; or
(iv) is approved in writing by the disclosing party for disclosure by the recipient;
Creative Services means any design, production and promotional services we may
provide;
Fees means our fees and chargers for the provision of Services as specified in the
Booking Order;
Indirect Losses includes losses of profits, revenue, opportunity, anticipated savings or
data or any indirect or consequential loss or damage;
Booking Order means a Booking Order Confirmation Form which specifies details of
the Services we agree to provide to you;
Publication date means the Wednesday prior to the date of publication;
Order means an order for Services described in a Booking Order which has been
accepted by us in accordance with this agreement;
Rate Card means our current standard rates and charges for the provision of Services
as notified to you from time to time;
Services means the services to be supplied by us to you described in any Booking
Order;
We, our or us means Metro Media Publishing Pty Ltd (ACN 141 396 741);
You or your means the person identified as the “Customer” in the Booking Order; and
Value Credit means a credit we may issue to you upon your cancellation of an Order in
accordance with 3.4 (b) for the supply by us of replacement services of equivalent
value to the Order.
3 Services
3.1 Provision of Services
We will provide to you with, and you agree to use the Services in our publications in
accordance with the agreement.
3.2 Orders for Services
(a) You may request Services from us by completing a Booking Order.
(b) We will not be obliged to supply you the particular Services set out in the
Booking Order until both the parties have signed the Booking Order.
(c) We may require you to submit a completed Credit Application Form prior to
our signature of the Booking Order.
3.3 Cancellation of Services
(a) You may cancel an Order for any Services at any time without charge
provided that you give us at least fourteen (14) days notice prior to the Publication
Date.
(b) In the event you cancel an Order for Services on less than fourteen (14) days
notice prior to the Publication Date we may in our absolute discretion issue you with a
Value Credit or charge you a Cancellation Fee.
(c) All Value Credits must be used within sixty (60) days of the issue date
unless otherwise agreed.
(d) You further acknowledge that use by you of any Value Credit is subject to the
availability of replacement services.
(e) If you cancel an Order for Creative Services, regardless of the notice period
we will charge you for any production costs and charges incurred as of the date of the
cancellation.
(f) We may cancel an Order or part of an Order at any time without giving you
any reasons for the cancellation. If we exercise this right we will at our option:
(i) refund to you any Fees already paid to us;
(ii) issue a Value Credit; or
(iii) reschedule the Publication Date to another date within sixty (60) days of the
cancellation date;
and you agree that this is our sole liability to you in relation to that particular Order or
part Order.
4 Advertising Copy
4.1 Form of Advertising Copy
You will ensure all Advertising Copy complies with our advertising specifications,
which are available on request.
4.2 Editorial Matter
(a) You will ensure that Advertising Copy is clearly identifiable to users as
advertising material and does not contain any material which could be confused by
readers with our editorial content.
(b) You acknowledge that we may label any Advertising Copy as an
advertisement when we publish it.
4.3 Promotion of Competitions
You will ensure that any Advertising Copy which references any competition clearly
identifies the promoter of the competition and that you have obtained all applicable
permits and approvals for the conduct of the competition prior to the Publication Date.
4.4 Website Links
Any reference in any Advertising Copy directing readers to a website will be checked
by us and may be removed from the Advertising Copy in our discretion in the event it
does not meet with our approval for whatever reason.
4.5 Delivery of Advertising Copy
(a) You will supply us with Advertising Copy for our approval at least five (5
days) prior to the Publication Date.
(b) We may in our discretion accept late Advertising Copy for publication..
(c) If we do not receive your Advertising Copy on time we may treat this as a
cancellation of the applicable Order or part thereof and we may charge you a
Cancellation Fee.
5 Sales Materials
You acknowledge that any marketing slide packs, mock ups, presentations or
marketing materials supplied to you concerning our Services are examples only and
that we may in our discretion vary the placement of any Advertising Copy.
6 Creative Services
6.1 Instructions and Materials
You will supply us with any design instructions, logos, art work or materials which we
will need to carry out Creative Services for you in the manner and format we specify at
the time of completion of the Booking Order.
6.2 Approval of Custom Content
We will use reasonable endeavours to supply mock-ups of all Custom Materials for
your approval reasonably in advance of the Publication Date.
6.3 You must promptly check mock ups upon receipt and notify us of your
approval or of any errors or amendments you require prior to the Publication Date. We
may charge you additional fees for any amendments.
6.4 Subject to Clause 6.2 if we do not receive your approval for mocks ups of
the Custom Materials supplied to you at least five (5) days prior to Publication Date
we may in our discretion treat this as a cancellation of the applicable Order or part
thereof and we may charge you a Cancellation Fee.
7 Warranties
7.1 Your Warranties
You warrant to us that:
(a) you have all applicable licenses and consents necessary to enter into and
perform your obligations under the agreement;
(b) you are fully authorised to act on behalf of any advertiser or client on whose
behalf you are requesting Services;
(c) you have complied and will continue to comply with all applicable laws and
regulations in performing your obligations under the agreement;
(d) you will not breach any agreement, arrangement or understanding with a third
party as a result of entering into or performing any part of the agreement;
(e) all Advertising Copy complies with all applicable laws and regulations and
industry guidelines;
(f) Advertising Copy will not infringe the intellectual property rights of any person;
(g) Advertising Copy will not include or contain a link to any content that is,
illegal, obscene, violent, defamatory or pornographic;
(h) you will not use or redistribute to any third party without our permission any
information or reports we may supply to you other than for the purpose of evaluating
the performance of our Services.
7.2 Our warranties
We warrant to you that:
(a) we have the right to supply the Services to you;
(b) we will use reasonable care and skill in supplying the Services; and
(c) we will comply with all applicable laws and regulations in supplying the
Services.
7.3 Exclusion of Warranties
We exclude all implied conditions and warranties from this agreement except any
conditions or warranties (such as those implied by the Trade Practices Act (1974)
which cannot by law be excluded.
8.1 Intellectual Property
(a) Unless otherwise agreed in the Booking Order we or our licensors own the
intellectual property in the Custom Material, our trade marks and any other material
developed or provided by us under the agreement.
(b) You and your licensors own the intellectual property in any Advertising Copy,
your trade marks and any other material you provide to us under the agreement.
(c) Except as authorised by the agreement, the parties agree not to:
(i) reproduce the other party’s intellectual property; or
(ii) sub-license, on-supply or further syndicate the other party’s intellectual
property.
8.2 Licence of Intellectual Property
(a) You grant us a limited, non-exclusive and non-transferable licence to
reproduce and communicate to the public the Advertising Copy in our publications in
accordance with the agreement.
(b) You grant us a limited non-exclusive right to copy, adapt, modify and
otherwise use any logos or other design materials you supply to use for the purposes
of supplying you with Creative Services.
9 Payment
9.1 Rates and Fees
You will pay the Fees. If no Fees are specified in the Booking Order the charges for
our Services will be as set out in our current Rate Card at the time of our acceptance
of the Order.
9.2 Changes to Rates
We may change our Rate Card from time to time without notice.
9.3 Costs and charges
We may charge you additional costs we incur in the provision of Services including:
(a) cost of obtaining any necessary licenses for any competitions which form
part of Creative Services;
(b) any additional costs we incur in providing any talent, photography, filming,
special effects of other special services which you request be supplied as part of the
for the Creative Services;
(c) late payment charges for any overdue invoice calculated monthly on the
overdue amount at two per cent (2%) above the rate of rate set out in the Penalty
Interest Rates Act 1983 (Vic).
9.4 GST and taxes
You will pay all taxes, duties and other government charges payable or assessed in
connection with the agreement including 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 our income.
9.5 Invoices
(a) We will invoice you monthly for fees and costs due under the agreement.
(b) You will pay the amounts invoiced within thirty (30) days of the date of the
invoice.
10 Approved Agencies
10.1 Commission Payments
(a) Where you are an Approved Agency you will be entitled to receive a
commission equal to ten percent (10%) of the total amount of your monthly invoiced
Fees.
(b) Payment of any commission is conditional upon the following:
(i) you must fully disclose to your clients the amount of commission you receive
from us;
(ii) you must fully comply with this agreement; and
(iii) payment in full of invoices within thirty (30) days.
(c) Any commission payable to you will be deducted from your monthly invoice.
We will add GST to the commission.
10.2 Status as Approved Agency
(a) You must supply us with any information we may reasonably request in
support of your application to be registered as an Approved Agency including
solvency statements, balance sheets and profit and loss statements and details of any
insurance policies you hold.
(b) We may revoke your status as an Approved Agency at any time upon written
notice without giving any reason.
11 Confidential Information
(a) Each party must:
(i) take all action reasonably necessary to maintain the confidentiality of the
other party's Confidential Information;
(ii) not disclose the other party's Confidential Information to any person except
as permitted under paragraph (b);
(b) A party (“recipient”) may disclose the Confidential Information of the other
party:
(i) to a representative of the recipient who needs to know the Confidential
Information for the purposes of this agreement and subject to the recipient taking
reasonable steps to ensure that any such representative is fully aware of the
confidential nature of the Confidential Information of the disclosing party before the
disclosure is made; or
(ii) which is required or authorised to be disclosed by any law.
12 Indemnity and liability
You indemnify us against all loss or liability we may suffer or incur arising out of any
claim made against us as a result of breach of your warranties in clause 7.1 and any
act or omission by you in connection with your Advertising Copy.
12.1 Limitation of Liability
(a) neither party is liable for any Indirect Loss incurred by them or by any other
person arising out of or in connection with the agreement; and
(b) our liability to you for any claims made under the agreement (whether such
liability arises in contract, tort (including negligence) or otherwise) is, to the fullest
extent permitted by law, limited at our option to resupplying the Services or paying the
cost of having the Services resupplied.
12.2 No responsibility for Advertising Copy
(a) We are not liable for any aspect of the Advertising Copy including any
products or services referred to in the Advertising Copy.
(b) You are solely responsible for the content of all Advertising Copy and
associated products and services, including any ancillary competitions and
promotions.
12.3 Complaints
If you wish to make a claim for a Value Credit, republication or any other remedy in
respect of our Services you must send the claim to us within fourteen (14) days after
the Publication Date.
13 General
13.1 Applicable law
This agreement is governed by the laws of Victoria. Each party submits to the
non-exclusive jurisdiction of the courts of that State.
13.2 Notices
Any notice must be in writing to the address of the addressee as stated in the Booking
Order.
13.3 Public statements
Neither party may issue a press release or other public statement in relation to the
agreement without the prior written consent of the other.
13.4 No Agency
The agreement will not create a joint venture, legal partnership, employment or agency
relationship between you and us.
13.5 Assignment
Neither party may transfer or assign this agreement without the other party’s prior
written consent (not to be unreasonably withheld).
13.6 Force Majeure
Neither party will be liable for its failure to perform any of its obligations under the
agreement due to any contingency beyond its reasonable control.
13.7 Privacy
We may collect your personal information in order to provide the Services to you and
for invoicing purposes. The collection, use or disclosure of any personal information
provided to us by you in connection with your use of the Services is subject to our
Privacy Policy.
14 Network Distribution
14.1 MMP uses a third party supplier for the household distribution of its free publications and does not
make any representation or warranty about the performance of this service.
14.2 Any representations byMMP about distribution numbers or distribution
areas/coverage are estimates only. MMP does not provide refunds of
advertising costs in the event of fluctuations in distribution numbers or areas/coverage as these can
vary from week to week.