- Published: 18 June 2009
1.1The terms are incorporated into each agreement entered into between the online publisher and the customer whether or not the advertising order form or any other document which the customer signs makes reference to these terms. Please contact downwind.com.au via the Contact form if you would like to establish different payment terms or arrange direct bank account payments.
1.2 In this contract the following expressions have the following respective meanings unless the context otherwise requires:
"Online publisher" means Downwind.com.au which is a brand for Quill Resources as the Trustee for the MRG Asset Trust
"Advertiser" means the person or company identified on the order form.
"Insertion order" means advertising order form either received via web form (eg. directory upgrades), email, fax or mail.
"Website" means the particular website as detailed on the insertion order.
2) Terms of payment:
Payments can be made by in advance prior to advertising placement.
Advertisers paying by invoice will be invoiced on the first day of the contract period set forth on the insertion order. Payment shall be made in full to the online publisher no later than thirty days of the "live" date of the advertiser's program, as specified in the insertion order. All payments to the online publisher hereunder shall be made in $AUD and shall be inclusive of GST. In the event of any failure by the advertiser to make payment, the advertiser will be responsible for all expenses (including legal fees) incurred by the online publisher in collecting such amounts. In the event of late payment the online publisher reserves the right to suspend the advertiser’s information posted on the website. In this event the online publisher may post an "account suspended" notice in place of any company information supplied. All selected upgrade options for the directories are paid in advance and will automatically renew for the following year.
3) Acceptance of advertising is subject to space availability upon receipt of signed contract or insertion order by the online publisher.
3.1 Receipt of a completed Standing Order Mandate will be considered as acceptance of the order and the terms & conditions of the contract.
3.2 Receipt of email confirmation of an order will be considered as acceptance of terms & conditions of the contract.
4) Advertisers Representations:
The advertiser warrants and represents to the online publisher that:
(1) it has the right to publish the contents of the advertisement, without infringement of any rights of any third party including, without limitation, intellectual property rights;
(2) it has complied with the codes of practice issued by the Advertising Standards Authority in respect of electronic and on-line advertising and all other relevant industry codes of practice;
(3) it will be fully responsible for the terms (including, without limitation, product description, price and compliance with all applicable laws and regulations) of any contract for the sale of goods or services to customers who have seen the advert displayed by the online publisher.
The advertiser agrees to indemnify the online publisher forthwith on demand and hold the online publisher harmless against any and all expenses, damages and losses of any kind (including reasonable legal fees and costs) incurred by the online publisher in connection with any claims, actual or threatened, of any kind (including, without limitation, breach of contract, any claim of trademark or copyright infringement, libel, defamation, breach of confidentiality, false or misleading advertising or sales practices) arising from the advertisement and/or any material of the advertiser to which users can link through the advertisement and any other contract entered into for the purchase of the advertised goods or services..
The advertiser will defend or settle at its own expense any action or other proceedings brought against the online publisher that relates to the advertisement and/or any material of the advertiser to which users can link through the advertisement. The online publisher shall notify the advertiser promptly of any such claim and shall permit the advertiser to assume and control the defence of such action with Counsel chosen by the advertiser (who shall be reasonably acceptable to the online publisher) and shall not enter into any settlement or compromise of any such claim without the advertiser's prior written consent. The advertiser shall pay any and all proper costs, damages and expenses (including but not limited to reasonable legal fees and costs) awarded against or incurred by the online publisher in any such action or proceedings.
Publisher rights and obligations
5.1) The online publisher reserves the right to re-design parts of or the entire website as detailed in the insertion order and to re-position advertising and sponsorship accordingly without prior notice.
5.2) The practice of deep linking may be necessary, thus enabling visitors to by-pass your home page to visit specific areas of your website directly.
5.3) Optimised web pages containing your company name and information may be submitted to search engines at the expense of the online publisher.
5.4) Positioning of advertisements is at the sole discretion of the online publisher except where a request for a specific preferred position is acknowledged by the online publisher in writing. Material must be received by the agreed date, otherwise position may be lost, reduced or, in the case of directory listings or fixed position advertisements, the insertion term may be reduced.
6) The online publisher may create an advertisement on behalf of the advertiser if material is not received by the agreed deadline.
7) Cancellation Policy:
Any non-directory listing related campaign can be cancelled without charge up to 30 days before the scheduled start date of the campaign. Non-banner advertisements, company profiles and directory listings (where available) can be cancelled without charge up to 30 days before the scheduled start of the campaign. Cancellation damages of 50% of the advertising contract amount will be due and payable to the online publisher by the advertiser if campaigns are cancelled by the advertiser less than 30 days before the scheduled start date of the campaign. After a campaign has started all advertisements must run their contracted duration as per the insertion order form (physical or web-based).
8) All contents of advertisements are subject to online publisher's approval.
The online publisher reserves the right to reject or cancel any advertisement, insertion order, space reservation or position commitment at any time, or remove any advertisement from any website page controlled by the online publisher, or reject any URL link embodied within any advertisement.
9.1) The online publisher will notify the advertiser by email that their advertisement has been added to the website.
9.2) The agreed duration will begin from notification by the online publisher.
9.3) The advertiser must notify the online publisher as soon as is reasonable by either email or fax of any inaccuracy or changes that need to be made.
9.4) The content of all ads incorporating data provided by a third party is not subject to the advertiser's prior approval but no warranty is given by the online publisher with relation to the accuracy of such advertisements. The online publisher does not undertake to review the contents of any advertisements and any such review of, and approval by, the online publisher shall not be deemed to constitute an acceptance by the online publisher that such advertisement is provided in accordance with the terms of the Agreement, nor shall it constitute a waiver of the online publisher's rights hereunder. The online publisher makes no warranty, express or implied, as to the accuracy of any advert. In the event that any advert is inaccurate, the advertiser's sole remedy is for the online publisher to remedy such inaccuracy within 2 working days of it being notified of the inaccuracy by the advertiser.
10) Acceptance of insertion order
All insertion orders are accepted subject to provisions of the current rate card. Rates are subject to change upon notice from the publisher. In the event of a rate increase during the period of the insertion order, the advertiser will have the option to cancel the remaining period of the insertion order with one month's notice or as of the date of the rate increase, whichever period is the shorter, without penalty or continue the order at the revised rate. Page impression based campaigns are monitored and invoiced according to figures by the online publisher.
11) Limitation of Liability
The online publisher will not be liable, in contract, tort (including, without limitation, negligence), pre-contract or other representations (other than fraudulent or negligent misrepresentations) or otherwise out of or in connection with these terms and conditions for:
- any economic losses (including without limitation loss of revenues, profits, contracts, business or anticipated savings); or
- any loss of goodwill or reputation; or
- any special or indirect or consequential losses;
In any case whether or not such losses were within the contemplation of either party at the date on which the event giving rise to the loss occurred, suffered or incurred by a party arising out of or in connection with the provisions of any matter under these terms and conditions. In particular, and without limitation, the advertiser acknowledges that the online publisher will not be liable for such losses whether arising from a failure to publish an advertisement, or from the inaccuracy of any data contained in any advertisements (whether such inaccuracy arises from any action, or failure to act, of the online publisher, the advertiser or a third party).
Nothing in these terms and conditions shall exclude or limit the online publisher's liability for death or personal injury resulting from its negligence or that of its servants, agents or employees.
Subject to the above, the liability of the online publisher in contract, tort, negligence, pre-contract or other representations or otherwise arising out of or in connection with these terms and conditions or the performance or observance of its obligations under these terms and conditions, and every applicable part of them shall be limited to the amendment of any inaccurate data in accordance with Section 9 above or in the event that the online publisher fails to electronically publish an advertisement, the advertiser's sole remedy and the online publisher's entire liability to the advertiser shall be limited at the online publisher's option to either a refund of the advertising fee or relevant portion thereof, or placement of the advertisement at a later time in a comparable position.
The advertiser acknowledges that any website on which an advert is displayed is provided on an "as is" and "as available" basis without any representation or endorsement. The online publisher makes no warranties of any kind, whether express or implied, in relation to such website, including but not limited to, implied warranties of satisfactory quality, fitness for a particular purpose, non-infringement, compatibility, security, accuracy, condition or completeness, or any implied warranty arising from course of dealing or usage or trade or that the website will meet any requirements or will be uninterrupted, timely, secure or error-free, that defects will be corrected, or that the website or the server that makes it available are free of viruses or bugs or are fully functional, accurate, or reliable.
12) Additional publisher right
The online publisher shall have the right to hold the advertiser or its agent liable for such monies as are due and payable to online publisher for advertising which the advertiser or its agent ordered and which advertising was published and displayed.
13) All the agreement
No conditions other than those set forth in the rate card shall be binding on the online publisher unless specifically agreed to in writing by the online publisher. No conditions other than those set forth in the insertion order or this shall be binding unless expressly agreed to in writing. In the event of any inconsistency between the insertion order and this Agreement, this Agreement shall prevail.
14) The online publisher is not liable for delays in delivery and/or non-delivery in the event of any situation beyond the control of the online publisher.
15.1 Notices. All notices, approvals, consents, waivers and other communications under this Agreement must be in writing and will be deemed to have been given when: (a) delivered by hand; (b) sent by facsimile (with confirmation of receipt); or (c) received by the addressee, if sent by a nationally recognized overnight delivery service or U.S. mail; to the addresses or facsimile numbers set forth herein (or to such other addresses or facsimile numbers as a party may designate by notice to the other party from time to time). Notices to Downwind.com.au shall be addressed to the attention of its Public Officer (fax: +61 3 9511 8568).
15.2 Publicity. Any references by one party to the other shall be subject to the prior written approval of the party being referenced, in the referenced party's sole discretion. The parties shall mutually agree on the form, content and timing of any publicity or promotional communications referencing both parties.
15.3 Dispute Resolution; Waiver of Jury Trial. The parties shall make good faith efforts to resolve any dispute arising under this Agreement within sixty (60) days and shall refrain during that time (except for requests for injunctive relief) from initiating any litigation or other proceeding relating to such dispute. In any litigation arising under this Agreement, the parties hereby irrevocably waive any right to a jury trial and consent to a court trial.
15.4 Legal Fees. In the event In the event of any action, suit, or proceeding arising from or based upon this agreement brought by either party hereto against the other, the prevailing party shall be entitled to recover from the other its reasonable legal fees in connection therewith in addition to the costs of such action, suit, or proceeding.
15.5 Independent Contractors. The relationship between the parties is that of independent contractors. Nothing in this Agreement shall be deemed to create an employment, partnership, joint venture or agency relationship between the parties.
15.6 Assignment. Publisher may not assign any of its rights or delegate any of its duties under this Agreement without the prior written consent of ParkLogic. Despite such consent, no assignment shall release the assignor of any its obligations or alter any of its primary obligations to be performed under the Agreement.
15.7 Governing Law. This Agreement shall be governed by the laws of Victoria without reference to its conflicts or choice of laws provisions. Each party hereby consents to the exclusive jurisdiction of the courts of Victoria.
15.8 Waiver. Any waiver by either party of a term or condition of this Agreement in any instance shall not be deemed to be a waiver of any subsequent breach thereof, or of any other provision. All remedies, rights, undertakings, obligations and agreements contained in this Agreement shall be cumulative, and none of them shall be in limitation of any other.
15.9 Severability. If any of the provisions, or part thereof, of this Agreement shall be invalid or unenforceable under the laws of the applicable jurisdiction, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement but rather the entire Agreement shall be construed as if not containing the particular invalid or unenforceable provision or part thereof, and the rights and obligations of the parties shall be construed and enforced accordingly.
15.10 Performance. If any party fails to perform its obligations because of strikes, lockouts, labor disputes, embargoes, acts of God, inability to obtain labor or materials or reasonable substitutes for labor or materials, governmental restrictions, government regulations, governmental controls, judicial orders, enemy or hostile governmental action, civil commotion, fire or other casualty, or other causes beyond the reasonable control of the party obligated to perform, then that party's performance shall be excused.
15.11 Entire Agreement. This Agreement (including the attachments and exhibits hereto) represents the complicate agreement of the parties, supersedes all prior discussions, communications and agreements between the parties with respect to the subject matter hereof, and cannot be amended or modified except in a writing signed by both parties.
15.12 This Agreement constitutes the final, complete, and exclusive statement of the terms of this Agreement between the parties and supersedes all prior and contemporaneous understandings or agreements of the parties. No party has been induced to enter into this Agreement by, nor is any party relying on, any representation or warranty outside those expressly set forth in this Agreement.