DEFINITIONS
In this Agreement, the following expressions have the following meanings:
“Ad” means any advertisement provided by Agency on behalf of an Advertiser.
“Advertiser” means the advertiser for which Agency is the agent under an applicable IO.
“Advertiser Content” means any material, content, graphics, images, text or any other item provided by the Advertiser to the Agency in order for the Agency to provide the Services.
“Advertising Materials” means artwork, copy, or active URLs for Ads.
“Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.
“Agency” means the advertising agency listed on the applicable IO.
“CPA Deliverables” means Deliverables sold on a cost per acquisition basis.
“CPL Deliverables” means Deliverables sold on a cost per lead basis.
“Deliverable” or “Deliverables” means the inventory delivered by Media Company (e.g., impressions, clicks, or other desired actions).
“IO” means a mutually agreed insertion order that incorporates these Terms, under which Media Company will deliver Ads on Sites for the benefit of Agency or Advertiser.
“Media Company” means the publisher listed on the applicable IO.
“Intellectual Property” means all present and future rights conferred by law in relation to copyright, patents, inventions, designs, trademarks, trade and business names, rights to sue for passing off or for unfair competition, copyright, moral rights and related rights, rights in databases, chip or semiconductor topography rights, domain names, rights in information (including proprietary information), including, but not limited to, software and know-how in the programmatic advertising, programmatic, dynamic retargeting, Ad Automation and digital advertising industry, Source Code and Object Code, and all other similar or equivalent rights in any part of the world, in each case whether registered or unregistered or patentable.
These rights include:
All rights in all applications to register these rights;
All renewals and extensions of these rights; and
All rights in the nature of these rights, excluding Moral Rights.
“Media Company Properties” are websites specified on an IO that are owned, operated, or controlled by Media Company.
“Network Properties” means websites specified on an IO that are not owned, operated, or controlled by Media Company, but on which Media Company has a contractual right to serve Ads.
“Policies” means advertising criteria or specifications made conspicuously available, including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Media Company’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Site on which the Ads are to appear), other editorial or advertising policies, and Advertising Materials due dates. “Representative” means, as to an entity and/or its Affiliate(s), any director, officer, employee, consultant, contractor, agent, and/or attorney.
“Site” or “Sites” means Media Company Properties and Network Properties.
“Terms” means these Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less.
“Third Party” means an entity or person that is not a party to an IO; for purposes of clarity, Media Company, Agency, Advertiser, and any Affiliates or Representatives of the foregoing are not Third Parties.
“Third Party Ad Server” means a Third Party that will serve and/or track Ads.
1 ADVERTISER’S CONTENT
1.1 The Agency reserves the right within its discretion and without prior consultation or notice to Advertiser, to amend any advertisement in any terms whatsoever to reject or remove from any Agency 3rd Party Websites any Advertiser Content, software code associated with the Advertiser Content (e.g. pixels, tags, JavaScript), or website to which the Advertiser Content is linked, that does not comply with its Advertiser Guidelines or, in the Agency’s sole reasonable judgment, with any applicable law, regulation, or other judicial or administrative order or may be of offensive or of defamatory nature.
1.2 Should Agency so amend the advertisement, the agreed price shall not be reduced.
1.3 The Agency will use all Advertiser Content in compliance with these terms and conditions.
1.4 The Agency agrees to use commercially reasonable efforts to promptly remove, or cause to be removed, any Advertiser Content from any Agency 3rd Party Website that Advertiser deems objectionable, upon receipt of written notice from Advertiser.
1.5 When providing 1st party data to The Agency, the Advertiser confirms that they have legal basis to provide this first party data and use in Advertising i.e., a users opt-in consent.
1.6 The Agency does not undertake to retain any content and/or data related to the Advertiser or Campaign after a Campaign or IO has been completed.
2 CAMPAIGN DETAILS
2.1 Advertiser may change the Campaign Information (e.g. Campaign Dates, Ad Creatives) set forth in the attached Insertion Order / Order, for a particular month, a portion of a month or on a going-forward basis, at any time by giving 7 days notice and either (i) sending Agency representative who has been designated as the account manager for Advertiser’s account (“Agency Account Manager”) an email confirming the change and the period during which it shall be in effect. This will only be revised upon Advertiser’s receipt of a confirmation email by Agency’s Account Manager.
2.2 Advertiser acknowledges and agrees that Agency (i) does not guarantee that the number of clicks, conversions, impressions during any period will fully exhaust Advertiser’s Target Spend for that period or will be achieved and (ii) reserves the right to pause a campaign or cap the Target Spend in any given Campaign Month in its sole discretion.
2.3 If the Ad involves a competition, trade promotion or other form of advertising which requires to be licensed under any applicable laws, the Advertiser must have (and warrants to the Agency that it has) all necessary licenses to conduct that advertising, competition or trade promotion;
2.4 The positioning or placement of an advertisement is at the discretion of Agency except where expressly agreed in writing by Agency to the Advertiser.
2.5 The Agency reserves the right to vary the placement and/or format of advertisements across the web site. The Agency will endeavour to notify the Advertiser of any such changes. The Agency will not be liable for any costs, expenses, losses or damages suffered or incurred by an Advertiser arising from Agency’s failure to publish an advertisement in accordance with Advertiser’s request.
2.6 The Agency is not liable to Advertiser for any loss of any nature arising from (a) the total failure of Agency to publish an advertisement; or (b) the failure of Agency to publish an advertisement in the form prescribed. (c) the failure of Agency to place the advertising on specific websites or not on certain websites. This applies regardless of the cause of Agency’s failure, including if Agency was negligent or acted as permitted under these terms and conditions. In the case, of (a), the Advertiser will not have to pay any amount to Agency under the insertion order. In the case of (b), the amount payable under the insertion order may be reduced according to the circumstances at the discretion of Agency. In the case of (c), the amount payable under the insertion order may be reduced according to the circumstances.
2.7 The Agency has no liability and Advertiser indemnifies Agency in relation to any failure of telecommunications services or systems which affect the receipt by Agency of an advertisement or the publication of a campaign.
2.8 The Agency makes no representation or warranty in relation to the number of visitors to 3rd Party websites or the number of impressions at any site except for any made expressly in writing by Agency.
2.9 The Agency has the right to amend these terms and conditions at any time without notice.
2.10 The Agency Ad Operations know how, skill and experience form part of the Agency Intellectual Property. As such the Agency typically does not provide access to our Channel Accounts, campaign structures, working audience segments and targeting, and any other information that could be shared and used by 3rd parties.
2.11 Margins of the Agency can be applied at the Agency’s sole discretion to a number of areas including (but not limited to) media charges, media services or development services or all.
3 ADVERTISER REPRESENTATIONS AND WARRANTIES
3.1 Advertiser represents and warrants that it has all necessary rights, licenses and clearances to enter into this Agreement, to grant the rights granted herein and to use the Advertiser Content as specified herein and subject to these terms and conditions, including, without limitation, the intellectual property rights therein. Advertiser further represents and warrants that it will comply with Agency Advertiser Guidelines.
3.2 Advertiser agrees that Signifi Media can use the Advertiser logo, name and any creatives (Adverts) we have built for representation on our website, presentations and portfolio area (e.g., Our Clients). For any web development or eCommerce projects where Signifi Media has built the website you agree to display a “Site built by Signifi Media” with a link back to our website.
4 CREATIVE CONDITIONS AND SPECIFICATION
4.1 All creative must be received no later than 3 working days prior to the campaign start date.
4.2 It is the advertiser’s responsibility to arrange and manage re-directs with third party ad-servers and provide such third party with the creative and lead time requirements. Agency will not compensate clients for campaigns which are affected or delayed in any way by third party adserver redirect problems. Agency may in its absolute discretion remove any redirects from Agency’s network which are delayed in serving advertisements.
4.3 All click-through URL’s must open in a new window or tab within the browser.
4.4 The Advertiser will not place any 3rd party data collection beacons, image tags or scripts within the advertisement without prior written approval from Agency.
4.5 The Advertiser must ensure its creative content does not infringe the Intellectual Property Rights of any person or breaches any duties towards any person including privacy rights.
5 OTHER PROVISIONS
5.1 Cancellation of any advertisement or campaign must be received in writing no later than 7 days prior to the commencement of a campaign in order to receive a 100% refund. Any cancellations made after this time will be subject to a minimum cancellation fee of 20% of the total cost of the entire campaign.
5.2 The insertion order is valid for 72 hours from the time it is provided to Advertiser. Agency cannot guarantee the order is fulfilled unless a signed copy of the insertion order is received within that timeframe.
5.3 These terms and conditions form part of the insertion order and are binding on Agency and Advertiser once the insertion order is signed.
6 LIMITATION OF LIABILITY
6.1 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL AGENCY BE LIABLE TO ADVERTISER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT, OR CONSEQUENTIAL DAMAGES. THE AGENCY’S TOTAL LIABILITY TO ADVERTISER UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL NOT EXCEED THE AMOUNTS ACTUALLY PAID OR ACCRUED BY ADVERTISER TO THE AGENCY UNDER THIS AGREEMENT DURING THE ONE (1) MONTH PRIOR TO THE DATE OF THE INITIAL EVENT GIVING RISE TO THE LIABILITY.
6.2 Other than as set out in this Agreement, and to the full extent permitted by law, all implied and express warranties, rights, remedies, conditions and guarantees in respect of the Advertising Services provided by Agency under this Agreement are hereby excluded.
6.3 In no event will either Party be liable to the other for loss of use, production, profit, revenue, business, data, contract or anticipated savings or for delay or for any financing costs or increase in operating costs or any economic loss for any indirect or consequential loss or damage.
6.4 Notwithstanding any other provision of this Agreement, Agency’s liability to Advertiser under this Agreement for all and any breaches of this Agreement, any negligence or liability arising in any other way out of the subject matter of or in connection with this Agreement, will not exceed in total the maximum fees that may be received by Agency from Advertiser for the performance of Agency’s services under this Agreement.
7 WARRANTY AND INDEMNITY
7.1 Advertiser shall indemnify, defend, save and hold harmless the Agency, the owners of the Agency, Network of Agency Websites and its parents, subsidiaries, affiliates, representatives, officers, directors, agents, affiliates, and employees, from and against all losses resulting from, arising out, of or related to (i) Advertiser’s breach or alleged breach of any of Advertiser’s representations, warranties or agreements, (ii) a claim that the Advertiser Content infringes upon, violates, or misappropriates any third party Intellectual Property Rights, or slander, defame, or libel any person, or do not comply with any applicable law or regulation, (iii) Advertiser’s failure to secure all rights, title, and interest necessary to display the Advertiser Content via the Widget; and (iv) an allegation that Advertiser or Advertiser’s Content, or products or goods being advertised in the Advertiser Content, violate any applicable law or regulation.
7.2 By lodging material including electronic material or data for publication or authorising or approving the publication of any material with the Agency, Advertiser warrants that the material complies with all relevant laws and regulations and that its publication will not give rise to any claims or liabilities in Agency, its directors, employees or agents.
7.3 Without limiting the generality of the above, Advertiser warrants that nothing in the material lodged for publication breaches the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth), Copyright Act 1968 (Cth), Fair Trading Act 2010 (WA), defamation, consumer protection and sale of goods legislation of the States and Territories or infringes the rights of any person.
7.4 By lodging material including electronic material or data for publication or authorising or approving the publication of any material with the Agency, Advertiser indemnifies Agency and its directors, employees and agents against all claims, demands, proceedings and other liability arising wholly or partially, directly or indirectly, from the publication of the material.
7.5 Without limiting the generally of the above, Advertiser indemnifies Agency and its directors, employees and agents against any claims arising from (a) defamation, libel, slander of title; (b) infringement of copyright; (c) infringement of trade marks or names of publications titles; (d) unfair competition; (e) breach of trade practices or fair trading legislation; and (f) violation of rights of privacy or confidential information or licenses or royalty rights or other intellectual property rights.
Last updated 17/08/2018