1. Media Provider:
3CMG Pty Ltd ABN 78 142 639 549
681 Barrenjoey Road Avalon Beach NSW 2107 PO Box 603 Avalon Beach NSW 2107
“Advertising” means graphics, images or other materials in any form supplied by a Customer to the Media Provider for display in a Publication.
“Customer” means any person who completes and submits an Insertion Order that is accepted by a Media Provider.
“Event” means any event run by the Media Provider or for which the Media Provider has naming rights and/or any other relevant rights to on-sell Advertising to the Customer.
“Insertion Order” or “IO” means a form as required by and agreed with the Media Provider to be completed and submitted for acceptance, which sets out all the relevant details of the Advertising to be displayed on any one or more Publications and must include either a copy of the current version of the Terms or a link to the Terms on the Media Providers website.
“Intellectual Property Rights” means all rights in the nature of trademarks, patents, copyright or designs (registered or unregistered or any applications or rights to apply for any of the foregoing.
“Legal Requirement” means the requirement of any Commonwealth, State or local government legislation, regulation or other mandatory requirement to the display of Advertising in a Publication.
“Magazine” means any magazine or other print property owned or published by the Media Provider including but not limited to any listed in clause 1 above.
“Media Provider” means the entity listed in clause 1 above or their assignee. “Publication” means any Magazine, Website or Event.
“Run of Network” means Advertising can be displayed for a Customer across any of the Websites but does not guarantee that it will appear on any particular Website.
“Tax” means any tax (other than income tax), duty, levy, charge or impost payable by the Media Provider on any amount payable by the Customer pursuant to Advertising.
“Tax Invoice” means an invoice compliant with any applicable Tax. “Terms” means these Terms & Conditions as varied from time to time.
“Website” means any website or other digital property owned or controlled by the Media Provider including but not limited to those listed in paragraph 1 above.
3. Legally Binding Agreement
These Terms when read together with an Insertion Order constitute a legally binding agreement between the Customer and the Media Provider in relation to the Advertising referred to in that Insertion Order and the provision of any other services to the Customer by or on behalf of the Media Provider.
Furthermore, if there is more than one Publication referred to in an Insertion Order, then that Insertion Order read together with these Terms becomes a separate legally binding agreement between the Customer and the Media Provider in relation to the Advertising on each Publication.
For the avoidance of doubt, if an Insertion Order is accepted on a Run of Network basis then these Terms read together with the Insertion Order constitute a separate legally binding agreement between the Customer and the Media Provider for each Website on which Advertising is displayed.
To the extent of any inconsistency between these Terms and the terms of an Insertion Order, the terms of the Insertion Order will prevail.
4. Suitability of Advertising
The Customer warrants that it will only submit for display Advertising for its own brands, goods or services (or in the case of an advertising agency its client’s brands, goods or services).
The Customer warrants to the Media Provider that the Advertising submitted for display on the Publication is not false or misleading, defamatory, libellous or obscene, or in breach of any obligation of confidentiality or privacy or other Legal Requirement and does not infringe the Intellectual Property Rights of any third party.
The Customer indemnifies the Media Provider (and its directors, employees and agents) against all claims, demands, proceedings, costs (including solicitors and own client costs), expenses, damages, awards, judgments and any other liability whatsoever arising wholly or partially, directly or indirectly, from or in connection with a breach by the Customer of such warranties, or such warranties being untrue.
The Customer further warrants that it permits the Media Provider to do all things necessary to display the Advertising even where such display may infringe upon its own Intellectual Property Rights and acknowledges that in displaying the Advertising the Media Provider is relying on this warranty.
The Media Provider owes no duty to the Customer to review any Advertising and no review or approval by the Media Provider will affect the Customers’ responsibility for the content of the Advertising. It is the responsibility of the Customer to notify the Media Provider of any error immediately after it appears. Unless so notified, the Media Provider accepts no responsibility for any recurring error or any loss relating to any recurring error.
5. Submission of Advertising
The Customer must submit all Advertising to the Media Provider as follows (Deadlines):
For Websites: a click-through URL to at least 3 working days (5 working days for non-gif material) before the Advertising is
scheduled to appear on the Website.
For Magazines: the advertising material in a form required by the Media Provider at least 14 days prior to the notified
For Events: the advertising material in a form required by the Media Provider at least 90 days prior to the notified
The Customer must meet all Deadlines imposed by the Media Provider.
The Customer must submit all Advertising in accordance with the specifications imposed by the Media Provider.
6. Right to Refuse or Withdraw Advertising
All Advertising submitted by a Customer for display in a Publication is subject to the Media Provider’s approval. Neither, the completion and submission of an Insertion Order, agreement with these Terms nor any written or verbal quotation by the Media Provider represent an offer to display Advertising and the Media Provider reserves the right to refuse or to withdraw from display any Advertising at any time without giving reasons (even if the Advertising has previously been displayed).
7. Display of Advertising
Subject to these Terms, the Media Provider will use reasonable endeavours to display Advertising in the format submitted and in accordance with the placement instructions of the Customer.
8. Right to Vary Format and Placement of Advertising
Whilst the Media Provider will endeavour to notify the Customer of any changes to the display of Advertising, the Media Provider reserves the right to vary without notice the placement of Advertising or to change the format of Advertising within the Publication.
The Media Provider reserves the right to vary any Advertising which it perceives to be offensive, in breach of any applicable laws or in breach of any third-party rights. The Media Provider reserves the right to clearly distinguish that the Advertising is advertising and not editorial content, including by using headings or text such as “advertisement”, “partner content” or “sponsored by…”.
Any variation to the placement, format or content of any Advertising does not affect the Customer’s obligation to pay for the Advertising.
9. Measurement of Website Advertising
The Media Provider reserves the right to measure all Advertising on Websites (including impressions delivered and clicks achieved) through its own in-house systems or in its sole discretion other relevant industry measurement systems and results from Customer or other third party ad servers will not be accepted for invoicing purposes or any other performance assessment of the Advertising.
10. Payment for Advertising
The Customer must pay to the Media Provider the amount as set out in the Insertion Order and as provided in one or more Tax Invoices sent by the Media Provider to the Customer.
The Customer acknowledges that the Media Provider may invoice in advance of the display of Advertising and, unless specified otherwise in an Insertion Order or a Tax Invoice, payment terms are 14 days from the date of Tax Invoice.
Cancellations by the Customer must be made in writing prior to deadlines. Failure to do so will relieve the Media Provider of any obligation to comply with the cancellation request and, if Media Provider proceeds with the publication of the relevant Advertising, then Media Provider will be entitled to charge the Customer accordingly.
Interest may be charged on overdue payments at the RBA cash rate plus 4%.
11. Account Credit
The Media Provider may grant, deny or withdraw credit to a Customer at any time at its sole discretion. Any non-payment of monies outstanding by a Customer will result in the automatic cancellation of any existing credit arrangement with the Customer and at the sole discretion of the Media Provider may also result in the immediate suspension or cancellation of any further display of any Advertising on behalf of the Customer.
The Customer must also ensure that any assigned Customer account number (as advised by the Media Provider) is only made available to those of its employees authorised to use it. The Customer acknowledges that it will be liable for all Insertion Orders accepted by the Media Provider where the Customer’s account number is quoted.
12. Limitation of Liability
12.1 Subject to any rights or remedies under the Australian Consumer Law which cannot be excluded, restricted or modified, the Media Provider makes no representation or warranty:
a. in relation to the continued production of any Publication;
b. in relation to the final placement, positioning or date of publication or distribution of Advertising;
c. that distribution of a Publication will occur on a specific date, by a specific time, to a specific number of consumers or readers or within a specific geographic area;
d. in relation to the number of visitors to any Website or the number of impressions at any Website;
e. in relation to exclusivity; or
f. in relation to the success of any Advertising or the impact of any Advertising on the performance of the Customer’s business.
12.2 Subject to the application of the Australian Consumer Law, to the maximum extent permitted by law the Media Provider will not be liable for any costs, expenses, losses or damages suffered or incurred by a Customer arising from any errors with Advertising or any failure to display Advertising in accordance with a Customer’s request, whether such error or failure was negligent or otherwise.
12.3 The Media Provider will not be liable for any indirect loss of any nature, whether or not such loss was in the reasonable contemplation of the parties or a party at any time. In this clause 12.3, indirect loss includes loss of profit, loss of revenue, loss of business opportunity, loss of goodwill and payment of liquidated sums or damages under any other agreement.
12.4 The Media Provider will not be liable for any loss arising from a failure of the World Wide Web, any telecommunications provider, commercial printer or any other factor outside the Media Providers reasonable control (including but not limited to any Act of God, war, breakdown of plant, industrial dispute, electricity failure, governmental or legal restraint).
12.5 If a Customer wishes to make a claim on the Media Provider for credit, re- display or any other remedy in respect of Advertising (“Affected Advertising”), the Customer must send the claim in writing to the Media Provider no later than 7 days after the due date for display of the Affected Advertising.
12.6 Notwithstanding anything to the contrary in these Terms and to the full extent legally permissible, the Media Provider’s maximum liability is limited to the republication of the relevant Advertising or the payment of the cost of republication of the relevant Advertising, at the Media Provider’s discretion.
12.7 Without limiting the indemnity in clause 4, the Customer indemnifies the Media Provider (and its directors, employees and agents) against all claims, demands, proceedings, costs (including solicitors and own client costs), expenses, damages awards, judgments and any other liability whatsoever arising wholly or partially, directly or indirectly, from or in connection with the display of any Advertising, except to the extent caused by the Media Provider.
The Media Provider and the Customer agree to keep the details of the Insertion Order (other than the Advertising itself) private and confidential.
The Media Provider may collect personal information from the Customer, including the name and contact details of individuals which the Customer provides. The Customer must inform all such individuals that their personal information will be used and disclosed and warrants that those individuals consent to the use and disclosure of their personal information.
The Customer warrants that Advertising provided by it for display by Media Provider does not contain: (i) any third party cookies intended to retarget or advertise to users or their browsers or to collect use or disclose any personal information about visitors or users of the Publications; (ii) or any code, technique or mechanism to track or in any way identify users of any of Media Provider’s Publications (unless such tracking does not identify personal information and is used for the sole purpose of analysing performance of the Advertising).
15.1 These Terms read together with the Insertion Order represent the entire agreement between the Customer and the Media Provider in relation to the Advertising referred to in the Insertion Order and cannot be varied on behalf of the Media Provider except in writing by an authorised officer of the Media Provider. Furthermore, no purchase order or other document issued by the Customer will vary these Terms.
15.2 Where a Customer is an agency, it agrees to these terms and conditions as principal and as agent for its client.
15.3 Media Provider has the right to amend these Terms at any time. Notification of amendment will be deemed to have been given to all Customers immediately upon publication of the amended Terms or other written notice. The amended Terms will apply to all advertising booked after the date of that publication.
15.4 The Media Provider may assign the agreement with a Customer at any time.
15.5 No delay or failure by the Media Provider to enforce any provision of these Terms will be deemed a waiver of its rights. No waiver by the Media Provider will be effective unless it is in writing and signed.
15.6 The laws governing the Agreement between the Customer and the Media Provider will be the laws of New South Wales, Australia and the Customer irrevocably submits to the exclusive jurisdiction of the Courts in that state.