The following are the special terms and conditions (Terms) that will govern all sales of marketing services (Services) by Fairfax Media Management Pty Ltd t/as Fairfax Marketing Services (FMS) to Customer. Capitalised terms not defined herein shall have the meanings ascribed to them in the Order Form and related documents between FMS and Customer, including its annexures, schedules and exhibits (Order Form). If there is a conflict between these Terms and the Order Form, these Terms shall prevail. FMS may discontinue specific Services upon 30 days written notice to Customer. FMS reserves the right to change the Terms below or the Order Form (including, without limitation, any pricing) with 30 days written notice to Customer.
1. Services. FMS, or FMS’s third-party vendors, including suppliers or other contractors of those vendors (each a Vendor), will provide the Services identified in the Order Form. Subject to the terms and conditions of the Order Form, including these Terms, the Services will be delivered in accordance with any specifications or requirements set forth in the Order Form. Fulfilment of Services from commencement may take 10 or more days from the date of execution of the Order Form as a result of the fulfilment time required by Vendors or other contingencies.
2. Proofs. Customer shall not be entitled to receive a proof of any advertising (each an Ad) created in connection with any Services ordered under the Order Form. FMS makes no representation or warranty that any Ad will not be similar to, or resemble, any other Ad that is produced by FMS or any Vendor.
3. Billing. FMS will invoice Customer monthly in arrears in respect of each calendar month during the term of the Order Form and until terminated in accordance with these Terms. Where an Order Form is executed between the 1st and 7th days (inclusive) of a calendar month, FMS shall commence billing as at that calendar month and invoice the Customer in respect of the Services for that calendar month in full, regardless of the date of commencement of the Service or any delay in fulfilment as described in clause 1. Where an Order Form is executed between the 8th and last days (inclusive) of a calendar month, FMS shall commence billing as at the following calendar month.
4. Cancellation and downgrades. (a) Subject to paragraph (b), below, Customer agrees that the term of the Order Form for any Services must be for a minimum of 12 months, unless otherwise specified on the Order Form, after which it may be cancelled by Customer or FMS on one full calendar month’s prior written notice, subject to paragraph (c), below. Upon any such cancellation, Customer shall not be entitled to a refund of any amount previously paid to FMS.
(b) Customer may cancel the Order Form during the initial 12 month period (or other fixed period specified on the Order Form) by giving FMS written notice and paying to FMS an amount equal to three full calendar months’ fees for the Services plus any outstanding amounts due to FMS at the date of the notice.
(c) Customer may cancel the Order form after the initial 12 month period (or other fixed period specified on the Order Form) by giving FMS written notice and paying to FMS an amount equal to one full calendar month’s fees for the Services plus any outstanding amounts due to FMS at the date of the notice.
(d) Customer may downgrade the Services, that is, cease to use certain products or services listed on the Order Form, at any time by giving FMS written notice and paying to FMS an amount equal to one full calendar month’s fees for the full Services bundle listed on the Order Form, after which all future monthly payments will be calculated on the basis of the newly downgraded package price.
5. Amendments. Requests to FMS for amendments to Services may be subject to additional charges as specified by FMS.
6. Vendor Terms & Conditions. Customer acknowledges that Customer’s use of certain Services that are furnished by FMS’s Vendors are subject to additional terms and conditions as required by such Vendors (Vendor Terms). By agreeing to these Terms, Customer acknowledges that will comply with the relevant Vendor Terms of those Vendors who will be used to fulfil the Order Form. 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 control. FMS reserves the right to use, not use, or replace any specific Vendor in its sole judgment.
7. Placement/Results. With respect to any products, FMS has the right in its sole discretion to determine the placement of any such product purchased by Customer. With respect to any Services, FMS does not guarantee the results of any such service purchased by Customer.
8. Liability Limitations. (a) Customer acknowledges that (i) FMS or its Vendors process many advertisements and web sites, and (ii) despite FMS’s or its Vendors’ reasonable efforts, inevitably publishing errors may from time to time occur, and (iii) the prices charged by FMS assume the enforceability of the limitations on liability provisions set forth in this clause 9 and that such limitations are a reasonable allocation of the risk of any publishing error occurring between Customer and FMS.
(b) No error in any Service by FMS or its Vendors shall affect the obligation of Customer to pay the full amount for such Service provided hereunder. The only obligation of FMS or its Vendors with respect to any error in a Service is to correct such error, if deemed possible, within the reasonable discretion of FMS, after written notice of such error is received by FMS from Customer. Notwithstanding the foregoing, FMS will make best efforts to resolve any errors reported by Customer within 72 hours after FMS has received notice of such error.
(c) FMS shall have no liability to Customer with respect to any error in, or otherwise with respect to, any Service published without charge to Customer and for which a specific charge is not allocated on the Order Form. FMS 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 any aspect of the Order Form.
9. Rejection. FMS reserves the right to reject and/or not to distribute (as applicable), whether before or after the date of the Order Form, any Service procured by Customer that, in the discretion of FMS, is illegal, offensive, obscene or contrary to the business interest, goodwill or reputation of FMS or any Vendor or for any other reason in the discretion of FMS. If FMS rejects or refuses to distribute any Service pursuant to the preceding sentence, Customer shall not have any recourse against FMS or any Vendor for such rejection, except that FMS will refund to Customer an equitable portion of any amount previously paid to FMS with respect thereto.
10. Collection Expenses. If Customer fails to pay any undisputed amount set forth in the Order Form when due and fails to cure such non-payment within thirty (30) days following receipt of written notice thereof, Customer shall reimburse FMS on demand for all reasonable costs and expenses incurred by FMS in collecting such amount (including, but not limited to, all fees and disbursements of counsel) and/or any collection agency of FMS.
11. Postponements and Cancellations. FMS may, in its sole discretion, postpone or cancel publication of any Service ordered under the Order Form. FMS shall have no liability to Customer for doing so beyond refunding, or crediting the account of Customer for, any amount specifically paid for any Service that is affected by such cancellation.
12. Products. FMS products relating to SEM incorporate a management fee within the retail price.
13. Warranties. Customer warrants and represents to FMS and each Vendor that (a) to Customer’s knowledge, Customer has the right to use as contemplated by the Order Form (i) all drawings, names (including, but not limited to, any domain name), logos, pictures, slogans, text or other content furnished by Customer under the Order Form (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 FMS 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 the Order Form (Customer Information) is correct. Customer grants FMS 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 Order Form and for no other purpose. FMS or any of its Vendors 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. FMS reserves the right at all times (but will not have an obligation) to remove or refuse to distribute any Customer Content for any reason. FMS reserves the right to remove, access, read, preserve, and disclose any Customer Content or other information as FMS reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms or the Order Form, 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 FMS, its Vendors, users or the public. FMS will give Reseller written notice of any such action as soon as practicable after taking such action. If FMS desires to remove any Customer Content from any Service for any reason other than as stated in clauses (i) through (v) above, FMS will give Customer prior written notice of FMS’s desire to remove such Customer Content.