FAIRFAX
ADVERTISING TERMS
These
terms apply to all advertising provided to any person (‘Customer’) by
Fairfax Media Limited ABN 15 008 663 161 or
a subsidiary (‘Fairfax’). Customer
includes an advertiser on whose behalf Advertising is placed and any media
company or agency that arranges the Advertising for its clients.
1.
Publication of Advertising
1.1
Subject to these Terms, Fairfax
will use its reasonable endeavours to publish advertising (‘Advertising’)
in the format and in the position agreed with the Customer. ‘Advertising’
includes images submitted for publication and content or information relating
to published Advertisements.
1.2
Customer grants Fairfax a
worldwide, royalty-free, non-exclusive, irrevocable licence to publish, and to sub-licence
the publication of, the Advertising in any form or medium, including print,
online or other. Customer warrants that it is authorised to grant Fairfax
the licence in this clause 1.
2.
Right to Refuse Advertising
2.1
Neither these Terms nor any written or verbal quotation by Fairfax
represents an agreement to publish Advertising. An agreement will only be
formed between Fairfax and Customer when Fairfax
accepts the Advertising in writing or generates a tax invoice for that
Advertising.
2.2 Fairfax
reserves the right to refuse or withdraw from publication any Advertising at
any time without giving reasons (even if the Advertising has previously been
published by Fairfax).
3.
Right to vary Format, Placement or Distribution
3.1 Fairfax
will use reasonable efforts to publish Advertising in the format and in the
position requested by the Customer. However, Fairfax
reserves the right to vary the placement of Advertising within a title or website
or to change the format of Advertising (including changing colour to black and
white).
3.2 Fairfax
may distribute interstate or regional editions of a title without all inserts
or classified sections.
3.3
Except in accordance with clause 12, Fairfax
will not be liable for any loss or damage incurred by a Customer arising from Fairfax’s
failure to publish Advertising in accordance with a Customer’s request.
3.4
If Fairfax changes the press
configuration for a publication, Fairfax
reserves the right to shrink or enlarge the Advertising by up to 10% without
notice to Customer or any change to rates.
4.
Submission of Advertising
4.1
Customer warrants to Fairfax that
the publication of the Advertising does not breach or infringe:
(a)
the Competition and Consumer Act (Cth) or equivalent State legislation;
(b)
any copyright, trade mark, obligation of confidentiality or other personal or
proprietary right;
(c)
any law of defamation, obscenity or contempt of any court, tribunal or royal
commission;
(d)
State or Commonwealth privacy legislation or anti-discrimination legislation;
(e)
any financial services law as defined in the Corporations Act 2001 (Cth);
or
(f)
any other law or applicable code (including any common law, statute, delegated
legislation, rule or ordinance of the Commonwealth, or a State or Territory).
4.2
Customer warrants that if Advertising contains the name or photographic or
pictorial representation of
any
living person and/or any copy by which any living person can be identified, the
Customer has obtained the authority of that person to make use of his/her name
or representation or the copy.
4.3
Advertising containing contact details for the Customer must contain the full
name and street address of the Customer. Post office box and email addresses
alone are insufficient.
4.4
If a Customer submits Advertising that looks, in Fairfax’s
opinion, like editorial material, Fairfax
may publish the Advertising under the heading ‘Advertising’ with a border
distinguishing it from editorial.
4.5 Fairfax
will not be responsible for any loss or damage to any Advertising material left
in its control.
4.6
Advertising submitted electronically must comply with Fairfax’s
specifications. Fairfax may reject
the Advertising material if it is not submitted in accordance with such
specifications.
4.7
Advertising material delivered digitally must include the Fairfax booking or
material identification number.
4.8
If Customer is a corporation and the Advertising contains the price for
consumer goods or services, Customer warrants that the Advertising complies
with the component pricing provisions of the Competition and Consumer Act (Cth)
and contains, as a single price, the minimum total price to the extent
quantifiable at time of the Advertising.
4.9
Customer must not resell Advertising space to any third party without Fairfax’s
consent.
4.10
If Advertising promotes a competition or trade promotion, Customer warrants it
has obtained all relevant permits and indemnifies Fairfax
against any loss in connection with the Advertising.
5.
Classified Advertising
5.1 Fairfax
will publish classified Advertising under the classification heading it
determines is most appropriate. These headings are for the convenience of
readers. Fairfax will publish
classified display Advertising sorted by alphabetical caption and, where space
permits, with related line Advertising.
6.
Online Advertising
6.1
For online banner and display Advertising, Customer must submit creative
materials and a clickthrough URL to Fairfax
at least 3 working days (5 working days for non-gif material) or within such other
deadline advised by Fairfax at its
discretion before publication date. Fairfax
may charge Customer for online Advertising cancelled on less than 30 days
notice or if creative materials are not submitted in accordance with this
clause 6.1.
6.2
All online Advertising (including rich media) must comply with Fairfax’s
advertising specifications.
6.3 Fairfax
will measure online display and banner Advertising (including impressions
delivered and clicks achieved) through its ad-serving systems. Results from Customer
or third party ad-servers will not be accepted for the purposes of Fairfax’s
billing and assessment of Advertising.
6.4 Fairfax
is not liable for loss or damage from an internet or telecommunications
failure.
6.5
Customer acknowledges that Fairfax
may at its discretion include additional features or inclusions such as third
party advertisements within online classified Advertising.
7.
Errors
7.1
Customer must promptly check proofs of Advertising (if provided to the Customer
by Fairfax) and notify Fairfax
of any errors in the proofs or in published Advertising.
7.2 Fairfax
does not accept responsibility for any errors submitted by the Customer or its
agent, including errors in Advertising placed over the telephone.
7.3
Customer must send any claim for credit or republication in writing to Fairfax
no later than 7 days after the date of publication of the Advertising.
8.
Advertising Rates and GST
8.1
The Customer must pay for Advertising, unless otherwise agreed, at the casual
ratecard rate. Ratecard rates may be varied at any time by Fairfax
without notice. Customer must pay GST at the time it pays for Advertising. Fairfax
will provide a tax invoice or adjustment note (as applicable).
8.2
Eligibility for discounts or rebates will be based on the Customer’s
GST-exclusive advertising spend.
9.
Credit and Customer Accounts
9.1 Fairfax
may grant, deny or withdraw credit to a Customer at any time in its discretion.
Customer must ensure that its Customer account number is available only to
those employees authorised to use it. Customer acknowledges it will be liable
for all Advertising placed under Customer’s account number.
10.
Payment
10.1
The Customer must pre-pay for Advertising if required by Fairfax.
If Advertising is on account, payment must be within 7 days of date of the
invoice or, for certain Rural Press publications, within 21 days of the end of
the month in which the invoice is issued. If a commercial account has been established
with Fairfax, payment must be
within 30 days of invoice date.
10.2
If Customer fails to provide the copy for a booking by publication deadline,
Customer will be charged unless a cancellation is approved by Fairfax.
If Fairfax accepts Advertising
after the deadline, it will be deemed out of specification. Customer has no
claim against Fairfax for credit,
republication or otherremedy for out of specification Advertising.
10.3
Customer must pay the full price for Advertising even if Fairfax
varied the format or placement of the Advertising or if there is an error in
the Advertising, unless the error was Fairfax’s
fault. Customer must pay its electronic transmission costs.
11.
Failure to Pay and Other Breach
11.1
If Customer breaches these terms, fails to pay for Advertising or suffers an
Insolvency Event (defined in clause 11.2), Fairfax
may (in its discretion and without limitation):
(a)
cancel any provision of credit to Customer;
(b)
require cash pre-payment for further Advertising;
(c)
charge interest on all overdue amounts at the rate 2% above the NAB
Overdraft Base Rate;
(d)
take proceedings against the Customer for any outstanding amounts;
(e)
recover Fairfax’s costs including
mercantile agency and legal costs on a full indemnity basis;
(f)
cease publication of further Advertising or terminate an agreement for Advertising
not published;
(g)
exercise any other rights at law.
11.2
A Customer suffers an ‘Insolvency Event’ if:
(a)
Customer is a natural person and commits an act of bankruptcy; or
(b)
Customer is a body corporate and cannot pay its debts as and when they fall due
or enters an arrangement with its creditors other than in the ordinary course
of business or passes a resolution for administration, winding up or
liquidation (other than for the purposes of reorganisation or reconstruction);
or has a receiver, manager, liquidator or administrator appointed to any of its
property or assets or has a petition presented for its winding up.
11.3 Fairfax
may withhold any discounts or rebates if Customer fails to comply with its
payment obligations.
11.4
A written statement of debt signed by an authorised employee of Fairfax
is evidence of the amount owed by the Customer to Fairfax.
12.
Liability
12.1
The Customer acknowledges that it has not relied on any advice given or
representation made by or on behalf of Fairfax
in connection with the Advertising.
12.2
Fairfax excludes all implied conditions and warranties from these terms, except
any condition or warranty (such as conditions and warranties implied by the Competition
and Consumer Act and equivalent State acts) which cannot by law be excluded
(‘Non-excludable Condition’).
12.3 Fairfax
limits its liability for breach of any Non-Excludable Condition (to the extent
such liability can be limited) and for any other error in published Advertising
caused by Fairfax to the re-supply
of the Advertising or payment of the cost of re-supply (at Fairfax’s
option).
12.4
Subject to clauses 12.2 and 12.3, Fairfax excludes all other liability to the
Customer for any costs, expenses, losses and damages incurred in relation to
Advertising published by Fairfax, whether that liability arises in contract,
tort (including by Fairfax’s negligence) or under statute. Without limitation, Fairfax
will in no circumstances be liable for any indirect or consequential losses,
loss of profits, loss of revenue or loss of business opportunity.
12.5
The Customer indemnifies Fairfax and its officers, employees, contractors and
agents (the ‘Indemnified’) against any costs, expenses, losses, damages
and liability suffered or incurred by the Indemnified arising from the
Customer’s breach of these Terms and any negligent or unlawful act or omission
of the Customer in connection with the Advertising.
13.
Privacy
13.1 Fairfax
collects a Customer's personal information to provide the Advertising to the
Customer and for invoicing purposes. Fairfax
may disclose this personal information to its related bodies corporate, to credit
reporting agencies and other third parties as part of provision of the
Advertising and for overdue accounts, to debt collection agencies to recover
amounts owing.
13.2 Fairfax
provides some published Advertising to third party service providers. Where
such Advertising contains personal information, Customer consents to the
disclosure of their personal information in the advertising to third parties
and to the personal information being republished by a third party.
13.3
Customers may gain access to their personal information by writing to the
Privacy Officer, GPO Box 506, Sydney NSW 2001. Fairfax's
privacy policy is at www.fxj.com.au.
14.
Confidentiality
14.1
Each party will treat as confidential, and will procure that its advertising
agents, other agents, and contractors (‘Agents’) treat as confidential
and will not disclose, unless disclosure is required by law:
(a)
the terms of this Agreement (including terms relating to volumes and pricing);
(b)
information generated for the performance of this Agreement, including all data
relating to advertising schedules, budgets, forecasts, booked advertising,
prices or volumes;
(c)
any other information that ought in good faith to be treated as confidential
given the circumstances of disclosure or the nature of the information;
(d)
any information derived wholly or partly for any information referred to in (a)
to
(c)
above;
Each
party agrees to take all reasonable precautions to prevent any unauthorised
use, disclosure, publication or dissemination of the confidential information
by or on behalf of itself or any third party.
15.
General
15.1
These Terms, with any other written agreement, represent the entire agreement
of the Customer and Fairfax for Advertising. They can only be varied in writing
by an authorised officer of Fairfax.
No purchase order or other document issued by the Customer will vary these
Terms.
15.2 Fairfax
will not be liable for any delay or failure to publish Advertising caused by a
factor outside Fairfax’s reasonable
control (including but not limited to any act of God, war, breakdown of plant, industrial
dispute, electricity failure, governmental or legal restraint).
15.3 Fairfax
may serve notice on Customer by post or fax to the last known address of the
Customer.
15.4
These Terms are governed by the laws of the State in which the billing company
for the Advertising is located and each party submits to the non-exclusive
jurisdiction of that State.
