Terms and Conditions
TERMS AND CONDITIONS
Before proceeding with marketing services with APAC Digital Pty Ltd ABN 28 617 526 093 (APAC Digital PTY LTD) you should read and agree to the terms and conditions set out below. These terms and conditions (“Terms”) apply to all marketing services provided to any Client/Agent (“Customer”) by APAC Digital (“we”, “our” or “us” as the context requires). Receipt of a signed Insertion Order by you constitutes your acceptance of these Terms & Conditions.
Contract for Marketing
- You must complete and sign an Insertion Order, which is an application form for the supply of marketing services and the display of advertisements within our network of publishers and search engines as advised by Customer (The Service).
- Unless we notify you otherwise, your signed return of an Insertion Order is our acceptance of the Insertion Order, and a contract (“the Contract”) will be formed between APAC Digital and you consisting (in order of priority to the extent that there is any inconsistency) of:
- The Insertion Order; and
- These Terms and Conditions; and
- Subject to these Terms, APAC Digital will use its reasonable endeavours to publish marketing materials submitted by the Customer in the format submitted by the Customer and in accordance with the placement instructions of the Customer.
By submitting Marketing Materials for publication, the Customer warrants to APAC Digital that the materials do not breach or infringe:
- The Trade Practices Act (Cth), Fair Trading Acts (State) and equivalent legislation;
- State and Commonwealth anti-discrimination legislation;
- Any copyright, trade mark or obligation of confidentiality;
- Any law of defamation or obscenity;
- Any law of contempt of any court, tribunal or royal commission; and
- The Privacy Act (Cth); and
- Any other law (including but not limited to any common law, statute, delegated legislation, rule and ordinance of the Commonwealth or any State or Territory).
You represent and warrant:
- That you have the authority to act on behalf of the Customer.
- That you are authorised to make available the entire contents and subject matter of the Marketing Materials for publication.
Suspension and Termination
- The Agreement Term as specified on the Insertion Order outlines the contractual terms of your agreement with APAC Digital.
- APAC Digital may terminate the Contract at any time for any reason provided that 7 days’ prior notice in writing is given.
- Without limiting our other rights, we may immediately suspend the placement of an product and marketing materials or terminate the Contract if:
- You do not pay any fee due to us by the due date;
- You breach any part of the Contract and fail to rectify that breach within 7 days of APAC Digital giving notice requiring rectification;
- Any information supplied by you is false or misleading;
- You enter into bankruptcy, liquidation, administration, receivership, a composition or arrangement with your creditors, or appoint a receiver or manager over all or any part of your assets or become or are deemed to become insolvent; or
- You die, or if you are a partnership, are dissolved or an application to dissolve is filed, or if you are a company, are wound up or an application for winding up is filed.
- You must pay all outstanding amounts to us within 5 business days before the campaign start date.
- You acknowledge and agree that termination of the Contract pursuant to this clause does not relieve you of your obligations and liabilities pursuant to the Contract and we reserve our rights to enforce such obligations and liabilities in any event.
Material for Publication
You acknowledge that:
- The Customer has checked all Advertising Material being supplied for publication.
- The Customer will notify APAC Digital of any errors in these materials as soon as possible prior to the commencement date of the Campaign. APAC Digital will endeavour to make the changes requested by the Customer.
- APAC Digital is not responsible for errors or omissions in any Marketing Materials provided by or on behalf of you.
- You agree to provide all Advertisements and associated materials to us, or any person nominated by us, on or before the required material deadline.
Payment and Billings
APAC Digital will issue the Customer with a GST compliant invoice and the Customer agrees to pay APAC Digital the invoiced amount 5 business days before the campaign start date. Monthly payments for Services Fees are payable monthly in advanced.
Unless otherwise agreed, payments for Media are payable in advance.
If the invoice is not paid under the Agreement Payment Terms as specified on the Insertion order, or within 14 days of the date of issue, APAC Digital may:
- Suspend the placement of Marketing Materials; and/or
- Charge interest on any overdue amount at an annual rate equal to 2% above the rate notified by our principal bank from time to time as its indicative lending rate on bank overdrafts over $100,000; and
- Demand that you pay for any costs of collecting the overdue amount, including but not limited to agency collection fees and legal fees.
APAC Digital and the Customer acknowledge that commercially sensitive and Confidential Information will be shared between the parties during the course of the marketing campaigns. Neither party will disclose any Confidential Information to any other third party nor use such Confidential Information for any purpose not authorised by the other.
Reporting and Campaign Tools
APAC Digital will provide enhanced reporting and campaign management insights to the Customer via various tools and systems. During this process we may:
- Collect, process and aggregate Customer Data from various 3rd party systems. Customer Data means the data concerning the characteristics and activities of content and people with your campaign and visitors to your website that is collected and analysed by APAC Digital.
- Generate & deliver Reports. Reports means the resulting analysis provided to the Customer. The number of charts, graphs, and statistics contained within a Report may vary at the discretion of APAC Digital.
APAC Digital will not share, rent, license or sell individually identifiable Customer Data to any 3rd parties without the express written consent of the Customer.
You acknowledge that any intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with the Service (“Intellectual Property Rights”) are owned by Us or licensed to Us. You agree not to claim any rights in such Intellectual Property Rights, acknowledge that no title to the Intellectual Property Rights is transferred to you, and that you do not obtain any rights, express or implied, in the Service, other than the rights expressly granted in these terms and conditions.
The Authorised Representative of the Customer agrees to act as Guarantor for all monies payable and outstanding by the Customer and hereby grants this Deed of Guarantee.The Guarantee is ongoing and binds the Guarantors legal personal representative/executor.
The Guarantor acknowledges and agrees that APAC Digital is at liberty to act as though the Guarantor is the primary debtor jointly and severally liable with the Customer, and the Guarantor waives all rights either at law or in equity or under any statute that the Guarantor might otherwise be entitled to claim or enforce as a defence to any action brought by APAC Digital.
Limitation of Liability
To the extent allowable under the Trade Practices Act 1974 (Cth) or any other applicable law, we:
- Exclude all conditions and warranties implied in the Contract;
- Exclude consequential, special or indirect loss or damage (including but not limited to loss of opportunity, loss of revenue and loss of profits);
- Limit our liability for breach of any condition or warranty that we cannot exclude to the greater of (at our option):
- re-supplying the services; or
- paying the cost of having the services re-supplied; and
- Limit our liability in respect of any other claim in connection with the Contract (whether the claim is based in contract, tort including negligence) or statute to the amount paid by you to us under the Contract.
- We will not be liable under this Agreement to the extent that liability is caused by:
- A failure of hardware or software of APAC Digital
- Any of the acts, errors, delays or omissions.
- Neither party shall be liable to the other for any indirect or consequential loss (including loss of actual or anticipated profits, business, revenue, goodwill, anticipated savings or data) whether arising from negligence, breach of contract or otherwise.
Customers upon and by lodging material with APAC Digital for publication or authorising or approving of any material and in consideration of acceptance and publication of the same by APAC Digital, jointly and severally INDEMNIFY the Company, its subsidiaries, directors, officers, employees, and agents against all liability, claims or proceedings whatsoever arising from the publication, and indemnify each of them in relation to defamation, injurious falsehood, passing off, unfair competition, breach of warranty of authority or any breach of any federal, state, territory or local statute, regulation or other law giving rise to any civil or criminal liability whatsoever and WARRANT that the material complies with all relevant federal, state, territory and local laws and regulations and that its publication will not give rise to any rights against or liabilities in INDEMNIFY the Company, its subsidiaries, directors, officers, employees, and agents and in particular that nothing therein is capable of being misleading or deceptive or otherwise in breach of the Trade Practices Act.
Alterations to these Terms and Conditions may only be made by Us and will be posted at XXXXX. You are encouraged to check back regularly to ensure that you are not affected by any changes to these Terms and Conditions.
These Terms shall be effective from the date on which a Insertion Order is accepted by us and shall only terminate as specifically mentioned in these Terms.
Last updated 22nd May 2018.