The following the terms and conditions and the Fairfax Advertising Terms and Conditions which are available here
are the terms (Terms) upon which the parties agree that Fairfax Media Management Pty Ltd ABN 11 124 337 239 (Fairfax) will provide the product/s detailed in the Purchase Order (Services) to the Customer. Capitalized terms not defined in these Terms have the meanings given to those terms in the Purchase Order and/or its annexures, schedules and exhibits (Purchase Order). To the extent of any conflict between these Terms and the Purchase Order, these Terms will prevail. Fairfax reserves the right to change the Terms and/or the pricing included on the Purchase Order at any time by giving 30 days prior written notice to Customer. If you receive notice of any amendment(s) to the Terms, you may terminate this agreement by giving us written notice within 14 days of the amendment(s) taking effect. Failure to terminate within this period will constitute acceptance of the amendment(s).
Fairfax and/or Fairfax’s third-party agents, contractors, suppliers and/or vendors (Vendors), will use reasonable endeavours to provide the Services to or for the benefit of the Customer within any agreed time frame or otherwise within a reasonable period. The Customer must use reasonable endeavours to promptly deliver to Fairfax such information it reasonably requests to enable Fairfax to provide the Services. If the Customer fails to deliver the information reasonably requested by Fairfax within 60 days of the Customer signing the Purchase Order (a) Fairfax may commence the monthly invoicing of fees in accordance with these Terms; or (b) Fairfax may suspend or cancel the provision of the Services by notice to the Customer. In the event of suspension or cancellation of the Services the Customer will forfeit such amount of the Set-up Fees that have already been paid that represent the time and efforts of Fairfax to set-up the Customer for the provision of the Services.
Customer shall not be entitled to receive a proof of any advertising (each an Ad) created in connection with any Services ordered under the Purchase Order. Fairfax makes no representation or warranty that any Ad will not be similar to, or resemble, any other Ad that is produced by Fairfax or any Vendor.
3. Rejected Services.
Fairfax reserves the right to reject and/or not to distribute (as applicable) any Service (or part thereof) ordered by Customer that, in the opinion of Fairfax, is illegal, offensive, obscene and/or contrary to the business interest, goodwill and/or reputation of Fairfax or any of its Vendors or for any other reasonable reason in the opinion of Fairfax (Rejected Services). If Fairfax rejects or refuses to distribute any Service, Customer shall not have any recourse against Fairfax or any Vendor in connection with such rejection, except that Fairfax will refund to Customer a portion of any fees already paid to Fairfax by the Customer to the extent Fairfax considers these fees represent amounts paid for Rejected Services that will not be provided to Customer.
4. Placements / Results.
With respect to any products the subject of the Services, Fairfax has the right in its sole discretion to determine the placement of any such product. With respect to any Services, Fairfax does not guarantee the results of any such Service purchased by Customer.
5. Customer Acknowledgements.
Customer acknowledges and agrees that Fairfax products relating to SEM incorporate a management fee within the retail price to cover Google advertising account setup, optimization and management. Customer further acknowledges that it is not permitted to resell all or any part of the Services.
6. Vendor Terms & Conditions.
Customer acknowledges that Customer’s use of certain Services that are furnished by Fairfax’s Vendors (and/or the Vendors’ vendors) are subject to additional terms and conditions as required by such Vendors (Vendor Terms). By agreeing to these Terms, Customer acknowledges that it will comply with the relevant Vendor Terms of those Vendors who will be used to fulfill the Purchase Order. Where Customer is unable to comply with such Vendor Terms, the parties shall negotiate in good faith to find a solution. To the extent that there is any inconsistency between these Terms and any current or future modifications to any Vendor Terms that may occur from time to time, the latter shall prevail. Fairfax reserves the right to use, not use, or replace any specific Vendor in its sole judgment.
7. Payment Terms.
(a) Any Set-up Fees (as detailed in the Purchase Order) will be invoiced to the Customer on or about the day the Purchase Order is signed and will be payable within 30 days of invoice unless otherwise agreed. (b) All other Services fees will be invoiced to the Customer monthly in advance
during the Term. The first monthly invoice will be issued on the earlier of the date of the commencement of the Services and 60 days from the date of execution of the Purchase Order by the Customer. The monthly invoices are payable within 30 days of the invoice date. (c) Without limiting Fairfax’s rights and remedies at law, if the Customer fails to pay any amount due in accordance with the Purchase Order and/or these Terms when the same falls due and fails to cure such non-payment within 7 days of written notice from Fairfax, Customer shall reimburse Fairfax on demand for all reasonable costs and expenses incurred by Fairfax in collecting such amount (including, but not limited to, all fees and disbursements of counsel) and/or any collection agency of Fairfax plus interest on the overdue amounts at a rate 2% above the National Australia Bank Overdraft Base Rate in respect of the period from the due date for payment and the date the outstanding amount is actually paid.(d) Without limiting Fairfax’s rights and remedies at law, if the Customer fails to pay any amount due to Fairfax (or its related body corporate) within 30 days of it being due in accordance with the relevant purchase order, Fairfax may suspend the provision of Services to the Customer until all amounts due to Fairfax have been paid in full. Fairfax shall have no liability to Customer for such suspension.
8. Term and Cancellation.
(a) Unless otherwise specified in the Purchase Order, Customer acknowledges and agrees that it orders the Services for the minimum initial contract term set out in the Purchase Order (Initial Term) after which the term will automatically continue on a rolling basis until cancelled or terminated in accordance with these Terms. (b) A party may cancel the Services at any time without penalty after the Initial Term by giving the other party 30 days’ written notice. Upon any such cancellation, the Customer must pay to Fairfax any outstanding amounts due to Fairfax as at the date of the written notice as well as the fee payable in respect of the 30 days’ notice period. (c) A party may cancel any part of the Services at any time after the Initial Term by giving the other party 30 days’ written notice. Upon any such cancellation, the Customer must pay to Fairfax the fee payable in respect of the cancelled part of the Services in respect of the 30 days’ notice period. Future monthly payments will then be calculated on the basis of the adjusted price that reflects the Services that the Customer will continue to receive. The Customer acknowledges that requests to Fairfax for amendments to the Services may also be subject to additional charges as specified by Fairfax. (d) A Customer may cancel the Services or any part of the Services during the Initial Term (Early Cancellation) by giving Fairfax 30 days’ written notice. Upon Early Cancellation, the Customer must pay to Fairfax (a) any outstanding amounts due to Fairfax as at the date of the written notice, (b) the fee payable in respect of the cancelled Services or cancelled part of the Services for the 30 days’ notice period; and (c) an Early Cancellation fee equal to one months’ Services fee in respect of the cancelled Services or cancelled part of the Services. (d) Fairfax shall have no liability to Customer for suspension or cancellation of the Services (or part thereof) except that Fairfax will refund or credit the account of Customer for, any amount specifically paid for any Service that is affected by a suspension or cancellation. Fairfax will not be responsible for reimbursing Customer for any losses, liabilities, costs, expenses or damages which may be incurred by Customer in connection with any suspension or cancellation under these Terms.
9. Termination for cause
The Services may be terminated by a party by notice in writing to the other party if: (a) the other party fails to pay any amount due in accordance with the Order Form and/or these Terms within 7 days of written notice from the other party requiring such payment; (b) the other party is in breach of a material obligation under this Agreement and fails to rectify that breach within 30 days of written notice from the first party specifying and requiring rectification of that breach; (c) if the other party is a corporation and: (i) an order is made or a resolution passed for the winding up or dissolution without winding up of the party; or (ii) a liquidator or provisional liquidator is appointed to the party; or (iii) a receiver or receiver and manager is appointed to any of the party's assets or undertaking; or (iv) the party enters into any compromise or arrangement with its creditors or any of them or any class of them or any application is made to any court for an order summoning a meeting of creditors of the party; or (v) the directors of the party resolve or advise that the party is unable to pay its debts as and when they fall due; or (vi) the party is placed under official management or an administrator is appointed to the party under any provision of the Corporations Act (Cth) 2001; or (vii) the party commits any other act amounting to an event of insolvency under the Corporations Act (Cth) 2001. On termination of the Services for any reason, the Customer will be required to pay Fairfax all amounts due up to and including the date of termination
10. Intellectual Property Rights.
Customer acknowledges and agrees that Fairfax and/or its licensors and/or Vendors own all right, title, and interest, including without limitation, any and all patents, copyrights, and trade secrets, in and to Services, and Customer will not earn or acquire any rights or licenses in Services by virtue of this Agreement other than the limited rights expressly granted herein. As between the parties, Fairfax acknowledges that Customer will own all non-public information provided by Customer under this Agreement relating to its customers (“Customer Information”), and during and after the term of this Agreement Fairfax may not use any Customer Information for any purpose other than to: i)provide the Services to such Customers as contemplated under this Agreement, or ii) to provide non-specific Customer and Customer aggregated data for inclusion in the data warehouse of Fairfax and/or its Vendors to be accessible by Fairfax and other third parties for general business analysis purposes.
11. Customer Warranties.
Customer warrants and represents to Fairfax and each of its Vendors that it will comply with all applicable laws in connection with the delivery of the Services by Fairfax and/or its Vendors to Customer and the collection, storage and use of all Customer Information collected by the Customer and that it has all necessary licences, authorisations and permits in place in relation to its business and the Services. Customer further warrants and represents to Fairfax and each of its Vendors that (a) it has the right to use as contemplated by the applicable Purchase Order (i) all drawings, names (including, but not limited to, any domain name), logos, pictures, slogans, text or other content furnished by Customer under the applicable Purchase Order (“Customer Content”), (ii) all copyrights, trademarks, service marks, trade secrets and other intellectual property rights embodied in any Customer Content or content furnished directly by the Customer, and (iii) all website links that Customer requests that Fairfax include on a Website or other Services developed under this Agreement and (b) to Customer’s knowledge, all information (including, but not limited to, name, address and telephone number) furnished by Customer in connection with a Purchase Order is correct. Customer grants Fairfax a worldwide, non-exclusive, royalty-free license (with the right to sublicense to a Vendor that requires such rights to perform services hereunder) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute any Customer Content in the media and via the distribution methods expressly contemplated in the applicable Purchase Order for the sole purpose of performing the Services and for no other purpose. Fairfax may modify or adapt the format of Customer Content to the extent necessary to transmit, display or distribute it over computer networks and in various media and/or make changes to Customer Content to the extent necessary to provide the Services and conform and adapt Customer Content to any requirements or limitations of any networks, devices, services or media. Fairfax reserves the right to remove, access, read, preserve, and disclose any Customer Content, Customer Information or other information as Fairfax reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Fairfax, its users and the public. Fairfax will give Customer written notice of any such action as soon as practicable after taking such action. If Fairfax desires to remove any Customer Content from any Service for any reasonable reason other than as stated in clauses (i) through (v) above, Fairfax will give Customer prior written notice of Fairfax’s desire to remove such Customer Content. Without limiting any obligations or liability of the Customer set out in any of these Terms, and without limiting any discretion Fairfax may have to refuse to provide any Service on the basis that Fairfax considers the use of the Service by the Customer may commit a privacy infringement or invade the privacy of any person, Customer also agrees and warrants that, as between Customer and Fairfax, Customer is solely responsible for and will provide and/or obtain all disclosures, notices, consents and authorizations as required by the Privacy Act 1988 (Cth) and/or the Privacy Act 1993 (New Zealand) (as is applicable) in respect of any personal information (as defined in such legislation) used in connection with the Services, including for personal information to be received and dealt with by Fairfax and Vendors for the purposes of the Services and any Customer's use of the Services. Customer shall defend, indemnify, and hold harmless Fairfax and each of its Vendors from any and all claims, investigations, liabilities, and/or damages (including, but not limited to reasonable attorneys’ fees and costs) that directly arise from Customer’s breach of this term.
12. Intellectual Property Claims.
Customer will, at its own expense, indemnify, defend and hold harmless Fairfax, its related bodies corporate and Vendors and all of their respective officers, directors, employees and agents from and against any liabilities, losses, costs, damages and expenses resulting from any third party claim based on (i) an allegation that any Customer Content or advertisements, software or creative materials developed or provided by Customer is libelous or defamatory or violates or infringes the rights of any third party, including, without limitation, any patent, copyright, trademark, trade secret or intellectual property or proprietary rights of a third party, or any rights of privacy or publicity, or (ii) any breach or alleged breach by Customer of any of its representations or warranties set forth in section 11 of this Agreement.
13. Liability Limitations.
(a) Customer acknowledges that (i) Fairfax and/or its Vendors process many advertisements and web sites, and (ii) despite Fairfax or its Vendors’ reasonable efforts, inevitably publishing errors may from time to time occur, and (iii) the prices charged by Fairfax assume the enforceability of the limitations on liability provisions set forth in this Section and that such limitations are a reasonable allocation of the risk of any publishing error occurring between Customer and Fairfax. Notwithstanding the foregoing, Fairfax will make reasonable endeavours to resolve any errors reported by Customer within 5 business days Fairfax has received notice of such error. Fairfax shall also have no liability to Customer with respect to any delay in the Services that result from delays in the delivery of any information necessary to complete a Purchase Order. (d) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, FAIRFAX DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS AS TO THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, FAIRFAX HEREBY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, and any warranties arising from any course of dealing or usage of trade. TO THE EXTENT FAIRFAX’S LIABILITY CANNOT BE EXCLUDED BY LAW, FAIRFAX LIMITS ITS LIABILITY TO RESUPPLYING THE RELEVANT SERVICES OR REFUNDING THE PAYMENT MADE BY CUSTOMER FOR THE RELEVANT SERVICES AT FAIRFAX’S OPTION. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES (COLLECTIVELY, “CONSEQUENTIAL DAMAGES”) ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION (INCLUDING TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY AND BREACH OF WARRANTY) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING BUT NOT LIMITED TO TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY AND BREACH OF WARRANTY, EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER TO FAIRFAX UNDER THIS AGREEMENT DURING THE 6 MONTHS IMMEDIATELY PRECEDING THE COMMENCEMENT OF THE CLAIM. THIS SECTION SETS FORTH THE ENTIRE LIABILITY OF FAIRFAX AND THE SOLE REMEDIES OF THE CUSTOMER IN CONNECTION WITH THIS AGREEMENT.
Customer may not assign its rights under the Purchase Order or these Terms without Fairfax’s prior written consent. If a term of this Agreement is or becomes invalid or unenforceable, the validity and enforceability of the remainder of the Agreement will not be affected. The Purchase Order and these Terms are governed by the laws of New South Wales.