Network Classifieds Pty Ltd (“Network Classifieds”) accepts all Advertisements and notices (“Advertisements”) from any person (“Customer”) for publication in publications or websites under its control or represented by Network Classifieds under a contract, agency, reseller or similar representative arrangement (“Network Classifieds Publications”) on the following terms and conditions (”Terms and Conditions”). These Terms and Conditions will apply to:
(a) classified advertising in Network Classifieds Publications (“Newspaper Advertising”);
(b) online banner advertising on Network Classifieds Publications (“Banner Advertising”);
(c) online advertising on Network Classifieds Publications other than Banner Advertising (“Online Advertising”);
(d) advertising in supplementary magazines and in newspaper inserted brochures; and
(e) all other advertising services provided to the Customer by Network Classifieds in relation to Advertisements (“Other Advertising”),
(together referred to as “Advertising”).
- TERMS INCONSISTENT:
The placing of an order for any Advertising by a Customer constitutes acceptance by the Customer of these Terms and Conditions and of all rates set out by Network Classifieds in the relevant rate cards unless otherwise agreed in writing by Network Classifieds. To the extent that any order submitted by the Customer attempts to include terms that are inconsistent with these Terms and Conditions, those terms will not apply.
The expression “Customer” means the advertiser and, where any Advertising has been placed with Network Classifieds by an advertising agency (subject to clause 24), includes that agency, and all obligations (including payment obligations), warranties, indemnities, releases and discharges expressed to be given under these Terms and Conditions by the Customer are expressed to be given by the advertiser and the advertising agency on a joint and several basis.
- ENTIRE AGREEMENT:
Subject to clause 27, these Terms and Conditions (including booking confirmations and any credit terms referred to in clause 13 if applicable) set out the entire agreement between the parties in relation to any Advertising and supersedes all prior arrangements, undertakings, representations and warranties by or between the parties in relation to such Advertising.
- SUBMISSION OF ADVERTISING:
If submitting any Advertisements, the Customer must comply with the submission requirements and deadlines set out in the relevant Network Classifieds Publication or otherwise notified to the Customer by Network Classifieds. Network Classifieds will not be obliged to accept any Advertisement for publication which has not been submitted in this manner.
(a) Subject to these Terms and Conditions, Network Classifieds will use its reasonable endeavours to publish Advertisements submitted by Customers in the format submitted by the Customer and in accordance with the placement instructions of the Customer, but the Customer acknowledges given the nature of various different Network Classifieds Publications that it will not always be possible or feasible to use the format submitted by the Customer or to accommodate the placement requested by the Customer.
(b) Network Classifieds will publish classified Advertisements under the classification heading that it reasonably believes is most appropriate.
(c) Without limiting the above, if Network Classifieds, reasonably believes that the placement instructions of the Customer for an Advertisement are inappropriate for any reason, Network Classifieds may offer the Customer alternate placements. If the Customer does not accept the alternate placements, clause 10(a) will apply.
- CANCELLATION (BANNER ADVERTISING):
Any cancellation by the Customer of Banner Advertising must be made at least 7 days before the publication date. Network Classifieds reserves the right to charge the Customer for Banner Advertising cancelled with less than 7 days notice.
The cancellation by the Customer of any Advertising (other than Banner Advertising) after the booking deadline will incur a cancellation fee of 100% of the charges that would be payable by the Customer if the Advertising had been published or completed.
- CUSTOMER UNDERTAKINGS:
The Customer undertakes and warrants to Network Classifieds that no Advertisement will:
(a) breach or infringe the Competition and Consumer Act;
(b) infringe copyright, trade mark or other intellectual or moral property rights of any person;
(c) contain material that is obscene, offensive, defamatory, or otherwise unsuitable for publication;
(d) breach or infringe any laws relating to therapeutic goods, financial services, anti-discrimination, political publication, publication of court or tribunal materials, or any other State or Commonwealth legislation, rule or ordinance; or
(e) give rise to any liability on Network Classifieds, cause Network Classifieds to be in breach of any law by virtue of publishing the Advertisement, or result in a claim being made against Network Classifieds.
- NETWORK CLASSIFIEDS RIGHTS:
(a) If in Network Classifieds reasonable opinion, the Advertisement breaches any term of these Terms and Conditions (including clause 9) or the publication of the Advertisement may damage Network Classifieds reputation or would otherwise be contrary to Network Classifieds legitimate business interests, Network Classifieds may:
(i) without notice to the Customer alter or abbreviate to the extent reasonably necessary any Advertisement, including by inserting the word “Advertisement” above or below any Advertisement which in Network Classifieds reasonable opinion resembles editorial matter; or
(ii) at any time and without notice to the Customer cancel, reject or refuse to publish or continue publishing any Advertisement at any time prior to, or after, publication of the Advertisement, provided this right will not be unreasonably exercised.
(b) Without limiting clause 10 (a), the Customer acknowledges that it remains responsible for all Advertisements submitted by it and Network Classifieds has no obligation to review any Advertisement nor to alter, amend, cancel, reject or refuse to publish or continue publishing any Advertisement.
(c) The Customer agrees that Network Classifieds may publish or re-publish an Advertisement in other Network Classifieds Publications and media (for example Network Classifieds may publish Newspaper Advertising online, or vice versa or may publish Online Advertising in a variety of Network Classifieds Publications). Additional charging (if any) for such publishing or re-publishing will be as agreed between Network Classifieds and the Customer.
By submitting or authorising submission of an Advertisement for publication or Advertising, the Customer indemnifies Network Classifieds (and its employees, officers and agents) against any proceedings, demands, losses, costs (including legal costs on a full indemnity basis), damages and other liabilities of any nature taken, made or awarded against or incurred by Network Classifieds (and/or its employees, officers and agents) (Loss) arising from or in connection with:
(a) the Advertisement or any Advertising; or
(b) any breach of these Terms and Conditions (including clause 9) by the Customer,
except to the extent that the Loss was caused or contributed to by:
(c) breach of these Terms and Conditions by Network Classifieds; or
(d) the negligent or fraudulent act of Network Classifieds, its employees, officers, agents or contractors.
- NO GUARANTEE OR WARRANTIES: Subject to clause 17:
(a) Network Classifieds does not guarantee that the Customer’s product featured in an Advertisement will be the only product of that type featured in Advertisements on any one page. Network Classifieds will not be responsible or liable to the Customer in any way if the product featured in the Customer’s Advertisement is not the only product of that type featured in Advertisements on any one page; and
(b) Online Advertising will be published via internet accessible Advertisement serving software (“Software”). Network Classifieds makes no warranties of any kind, whether express or implied of the fitness of this Software for a particular purpose. Network Classifieds shall not be liable for any loss, damage, or expense incurred in connection with Network Classifieds use of the Software, including without limitation, for any technical malfunction, computer error or loss of data or other injury, damage or disruption of any kind other than as a result of Network Classified’s gross negligence or fraud.
- CREDIT TERMS APPLY:
The Customer acknowledges that any credit provided will be on Network Classifieds then standard credit terms which may vary from time to time.
The Customer must pay Network Classifieds for Advertisements:
(a) in accordance with the rates set out in the relevant rate cards (the rate cards may be varied at any time by Network Classifieds without notice and will apply to new Advertising submitted following the change of rates) unless otherwise agreed in writing by Network Classifieds;
(b) by pre-payment, if so required by Network Classifieds;
(c) if payment is agreed by Network Classifieds to be on account, on the credit terms supplied by Network Classifieds to the Customer; and
(d) on the basis of booked space or advertising material (whichever is larger) provided that if the actual space is reduced during printing by no more than 5%, Network Classifieds will not be liable to the Customer for any credit for such reduction.
- PRODUCTION SERVICES:
If the Customer requires any creative, production, programming, or other services (“Production Services“) from Network Classifieds, the Customer must pay Network Classifieds additional charges for such services, as notified in writing to the Customer by Network Classifieds at the time the Customer requests the Production Services or shortly after that time (but before the Production Services are provided). The Customer acknowledges that the charges for these Production Services will be Network Classified’s applicable current charges as in force from time to time.
- FAILURE TO PAY:
If any payment is not received by Network Classifieds on or before the date that such payment is due, or if the Customer commits an act of bankruptcy (in the case of an individual), or is unable to pay its debts as and when they fall due, enters into any arrangement with its creditors other than in the ordinary course of business, passes a resolution for administration, winding up or liquidation (other than for the purposes of re-organisation or reconstruction), has a receiver, manager, liquidator or administrator appointed to any of its property or assets or any petition is presented for its winding up (all in the case of a body corporate), Network Classifieds may:
(a) cancel any provision of credit to the Customer;
(b) immediately and without notice, suspend or cancel all Advertising orders of the Customer and terminate any agreement in relation to Advertising not yet published, and in relation to which payment has not yet been received;
(c) require cash pre-payment for any further Advertising;
(d) impose interest at the rate of 2% (two percent) above the Reserve Bank’s 90 day Bill Rate on all sums that remain unpaid until full payment is received;
(e) take proceedings against the Customer for any outstanding amounts;
(f) recover from the Customer all costs incurred by Network Classifieds in the recovery of any amount owed by the Customer including any mercantile agency costs and legal costs on a full indemnity basis; and
(g) exercise any other rights at law.
(a) For Advertising which is:
(i) less than $40,000; or
(ii) which is acquired for personal, domestic or household use,
Network Classifieds acknowledges that there is an implied warranty that Network Classifieds will provide the Advertising with due care and skill.
(b) Except as expressly provided in these Terms and Conditions, Network Classifieds excludes, to the fullest extent permitted by law, all warranties, representations and conditions whether implied by law, trade, custom or otherwise.
(c) Where Network Classifieds is liable to a Customer for a breach of the warranty provided in clause 17 (a), Network Classifieds:
(i) accepts the liability for Customers that are acquiring the Advertising services for personal, domestic or household use; and
(ii) limits its liability as set out in clause 17 (d)(ii) for all Customers other than Customers described in clause 17 (c)(i).
(d) Subject to clause 17 (c), where Network Classifieds is liable to a Customer for a breach of implied warranty or condition that may not be excluded, Network Classified’s liability will, to the extent permitted by law, be limited to any one or more of the following (at Network Classifieds option):
(i) in the case of the supply of goods under these Terms and Conditions (if any):
(A) the replacement of the goods or the supply of equivalent goods or the payment of the cost of replacing the goods or acquiring equivalent goods;
(B) the repair of the goods or the payment of the cost of having the goods repaired; or
(ii) in the case of the supply of services under these Terms and Conditions:
(A) the supplying of the services again; or
(B) the payment of the cost of having the services supplied again.
(e) Except for liability for a breach of the warranty provided in clause 17 (a) which is covered by clause 17 (c), and to the extent permitted by law, in no circumstances will Network Classifieds (its employees, officers or agents) be liable, whether in tort, contract or otherwise for any indirect loss, loss of profits, consequential loss or special or exemplary damage suffered by the Customer or any other person, even if such loss or damages are foreseeable and whether or not Network Classifieds had been advised of the possibility thereof.
(f) Subject to clause 17 (c), and to the extent permitted by law, the liability of Network Classifieds (including Network Classifieds officers, employees and agents) to the Customer, or any other person, for any and all loss or damage arising in relation to these Terms and Conditions and/or Advertisements (including from any errors or inaccuracies however caused, whether by negligence, system, software or press failure, mistake, mis-classifications, early, late or non-insertion of Advertisements, or loss or delay in the delivery of replies) will be limited to an amount equal to the cost of the space of the relevant Advertisement, provided that if the Customer does not advise Network Classifieds of any error within five days of publication of the Advertisement Network Classifieds will have no liability whatsoever.
(g) This clause is subject to clause 17 (c), and applies to the extent permitted by law. Network Classifieds will not be liable to the Customer or any other person for any loss of whatever kind suffered as a result of Other Advertising, or an Advertisement not being available for publication or not published where such loss arises from any cause beyond its control. Any loss suffered as a result of any partial or total breakdown of Network Classifieds operation or network, any technical malfunction, computer error or loss of data will be deemed to be an event beyond Network Classifieds control. Should such an event occur, Network Classifieds will take responsibility to resurrect sites and links, and the Customer has the right to cancel the particular contract for the affected advertising at no penalty if such an occurrence results in the site being down for more than 7 working days (working days being Monday to Friday inclusive, but excluding statutory holidays). In addition, Network Classifieds will not be liable to the Customer for any error or inaccuracy in Advertisements placed by telephone.
- THIRD PARTY NETWORK CLASSIFIEDS PUBLICATIONS:
The Customer acknowledges and agrees that, where Network Classifieds is selling Advertising as a contractor, agent, reseller or similar representative for an Network Classifieds Publication owned or operated by a third party (Third Party Owner):
(a) where Network Classifieds is acting as agent for and on behalf of the Third Party Owner, Network Classifieds may (at Network Classifieds sole discretion) enforce these Terms and Conditions in its own name on behalf of the Third Party Owner against the Customer, or allow the Third Party Owner to exercise its rights as principal under these Terms and Conditions by written notice to the Customer; and
(b) where Network Classifieds is acting as a reseller (or some other capacity other than as an agent) of the Third Party Owner, Network Classifieds may hold the benefit of some or all rights conferred by the Customer under these Terms and Conditions on behalf of the Third Party Owner (as trustee or otherwise) and Network Classifieds may enforce all rights conferred under these Terms and Conditions in its own right (or in its capacity as trustee, if applicable), or may assign, novate and/or transfer any or all of its rights under agreements made pursuant to these Terms and Conditions to the relevant Third Party Owner by notice in writing to the Customer (and by these Terms and Conditions, the Customer consents to such assignment, novation and/or transfer).
- LICENSING AND SYNDICATION:
The Customer grants to Network Classifieds and its contractors a worldwide, non-exclusive, sub-licensable, royalty free license to use, distribute, reproduce, modify, adapt, publish, translate and publicly display the Advertisements in any print or online publication. Additional charging (if any) for such publishing or re-publishing would be agreed between Network Classifieds and the Customer before any such additional publication
- RETURN OF ADVERTISING MATERIAL:
If the Customer requests the return of any physical material submitted to Network Classifieds in relation to Advertising (“Advertising Material”), the Customer must collect Advertising Material submitted to Network Classifieds immediately after publication. Subject to clause 17, Network Classifieds will endeavour to take reasonable care of Advertising Material in its custody and control, but will not be responsible for any loss or damage to Advertising Material (even if caused by Network Classifieds (its employees’, officers’ or agents’) negligence).
All information supplied by Network Classifieds to the Customer in relation to Network Classifieds finances and affairs, media locations, contracts, pricing, methods of business and any other information which is designated confidential by Network Classifieds or ought reasonably be regarded as confidential is confidential to Network Classifieds and the Customer must maintain and ensure that its officers, employees, contractors and consultants maintain strict confidentiality in respect of such confidential information.
- NO WAIVER:
If at any time Network Classifieds does not enforce any of these terms and conditions or grants the Customer time or other indulgence, Network Classifieds shall not be construed as having waived that term or condition or its right to later enforce that or any other term or condition.
The Customer may not:
(a) assign any of its rights under any agreement or any part of an agreement to which these Terms & Conditions apply (including the rights to advertising space allocated in accordance with such an agreement) to any third party; or
(b) place Advertisements (whether directly or indirectly) on behalf of third party advertiser(s) (whether as an agent or otherwise),
except on terms previously agreed with Network Classifieds. Advertisements are placed by a Customer on behalf of a third party advertiser where, for example (but without limitation), the Advertisement promotes or otherwise notifies readers as to the goods or services of the third party advertiser rather than the Customer.
- GOVERNING LAW:
These Terms and Conditions are governed by, and construed in accordance with state law. The parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction in relevant state, and any court that may hear appeals from any of those courts, for any proceedings in connection with these Terms and Conditions.
If any provision of these Terms and Conditions is held illegal or unenforceable, then such illegality or unenforceability shall not affect the remaining provisions of these Terms and Conditions which shall remain in full force and effect.
- ADDITIONAL TERMS:
In addition to these Terms and Conditions the Customer acknowledges that all Advertising, including the conditions of payment, delivery and changes to or cancellation of such Advertising, will be in accordance with and subject to any specific conditions notified to the Customer or generally published by Network Classifieds from time to time, including on the relevant Network Classifieds website.
Network Classifieds may vary these Terms and Conditions at any time in its sole discretion, provided that:
(a) such amended terms will not affect prior agreed Advertising orders with a date of publication within 3 months from the date of the variation; and
(b) if the Customer does not agree with a variation the Customer may cease placing orders with Network Classifieds.