Last Updated: April 24, 2012
Please read these Advertising Terms carefully before using the services offered by Real Media Pty. Ltd. (“Real Media”).
These Advertising Terms sets forth the legally binding terms and conditions for your participation in Real Media’s advertising program on Real Media’s websites, mobile applications, print publications or sections contained in print publication, and other properties (the “Platform”).
By registering for and/or using the Platform in any manner, you agree to be bound by these Advertising Terms. These Advertising Terms applies to all users of the platform. All defined terms used herein shall be solely applicable to these Advertising Terms.
Real Media reserves the right to alter these Advertising Terms or other Platform policies at any time and notify you of material changes by posting notice through the Platform. What constitutes a “material change” will be determined at Real Media’s sole discretion, in good faith, and using common sense and reasonable judgment.
In these Terms:
‘We’, ‘us’, ‘our’ & ‘Real Media’ means Real Media Pty Ltd ABN 15 008 663 161 or any of its subsidiaries.
‘Advertiser’ & ‘you’ means the person or organisation registering for and or using the Platform in any manner.
‘Advertising’ means all content, advertising or promotional message(s) that the Advertiser desires to have placed on the Platform.
‘Ad Materials’ means all artwork, copy, content, and all other information and materials made available to Local Assist by or on behalf of the Advertiser or that the Advertiser instructs and/or authorises Local Assist to utilise (including Advertiser Generated Content, as defined below) for the purpose of Advertising.
‘Advertising Plan’ means an offer of Advertising that specifies the size, price, frequency, medium and duration of the Advertising.
1. We will establish an Advertising Account enabling you to purchase Advertising.
PUBLICATION OF ADVERTISING
2. You hereby grant to us the right to reproduce and publish in any form and in any medium the Ad Materials for the purpose of Advertising on our Platforms.
3. The positioning, size and colour of Advertising is subject to availability and is at our absolute discretion. Any instructions or conditions you communicate to us including but not limited to the page location, size, colour, separation from competitive products or services, or the placement in close proximity to editorial copy of your Advertising, are requests only and are not binding.
4. We reserve the right to change the format of your Advertising.
5. We will publish your Advertising under the classification heading that in our opinion is most appropriate.
6. You agree to submit all Ad Materials prior to the deadline for us receiving Material (‘Material Deadline’) as published in our media-kits.
7. You agree to pay the full cost of the Advertising when we fail to publish the Advertising as a result of your failure to provide Ad Materials prior to the Material Deadline.
8. We may reject your Ad Materials if they do not comply with our specifications which are set out in a relevant document (‘Ad Material Specifications’) which is available to you upon request or may be viewed on our website.
9. You must not submit Ad Materials in which you refer to your contact details by way of a post office box or email addresses alone.
10. You are responsible for the correctness of all Ad Materials. Errors or omissions in, but not limited to addresses, phone numbers, website addresses and email addresses are your responsibility.
11. You acknowledge that we accept no responsible for:
a) any loss or damage to Ad Materials;
b) the storage or return to you of Ad Materials and you hereby authorise us to dispose of any Ad Materials you submit to us immediately following the publication of the Advertising;
c) errors or omissions in Ad Materials.
ACCOUNTS AND PASSWORDS
12. You must complete the registration process by providing to us current, complete and accurate information, as required by the current registration and verification procedures.
13. You represent and warrant that all registration information you submit is accurate and truthful. We will use the contact and other information you provide to verify your identity and you hereby consent to us contacting you directly or through automated means to do so.
14. You are solely responsible for all activity that occurs on your account and shall be responsible for maintaining the confidentiality of your Platform password.
15. You shall never use another user’s account without such other user’s express permission.
16. You will immediately notify us in writing of any unauthorised use of your account, or other account related security breach of which you are aware. You agree that Local Assist cannot and will not be liable for any loss or damage arising from your failure to keep your password secure.
17. You must keep your account information up-to-date and accurate at all times, including a valid email address and phone number. You may not transfer or sell your Local Assist account to another party.
18. The term of these Advertising Terms commences upon the Advertiser’s registration on the Platform acceptance and will continue for an initial period as set forth in the Advertising Plan (and if not set forth therein, then 12 months).
19. The term of these Advertising Terms will automatically renew, unless terminated as set forth in these Advertising Terms, for a like term under the then-current Advertising Terms.
20. You must check and approve any hard-copy or soft-copy proofs of your Advertising we provide to you prior to the deadline for approving proofs (‘Proof Approval Deadline’) and immediately notify us of any errors in the proofs.
21. If you fail to approve the proofs prior to the Proof Approval Deadline we reserve the right to publish the most recent proof we sent to you.
22. Proofs will not be provided when Ad Materials are received after the Material Deadline.
23. If we fail to provide a proof for any reason, you agree to pay the full cost of the Advertising where it substantially conforms to the Ad Materials you have provided to us.
FEES AND PAYMENT
24. You will pay to us the fees specified in the Advertising Plan you have purchased for the duration of its term. The fees are fixed for the duration of the commitment period specified in the applicable Advertising Plan, but may be modified by us thereafter by providing one month’s prior written notice to you. If your payment method fails or you have overdue fees, we may collect past due amounts using other collection mechanisms, and you agree to pay all expenses associated with such collection, including reasonable attorneys’ fees.
25. IF YOU PROVIDE US WITH CREDIT CARD, DEBIT CARD, OR BANK ACCOUNT INFORMATION, YOU HEREBY AUTHORISE US TO USE SUCH PAYMENT INFORMATION TO AUTOMATICALLY CHARGE YOU ON A RECURRING BASIS TO COLLECT ALL FEES DUE HEREUNDER. YOU REPRESENT THAT YOU ARE AUTHORISED TO INCUR CHARGES AGAINST THE PAYMENT CARD USED TO PURCHASE THE ADVERTISING. THE FORM OF PAYMENT CANNOT BE CHANGED OR ALTERED UNLESS OTHERWISE AGREED TO BY THE PARTIES IN WRITING.
26. The price for Advertising is set out our Advertising Rate-card which is published on our website at www.realmedia.com.au/advertise.
27. Unless otherwise stated, all amounts payable for Advertising are exclusive of GST, which must be paid by you in addition to the price of Advertising at the time of payment of the Advertising.
28. In addition to the prices stated in the Advertising Plan, we reserve the right to charge you fees for:
a) additional costs incurred or additional work we perform as a result of your Ad Material not complying with our Ad Material Specifications;
b) any additional costs we incur in providing services which you request for the purpose of Advertising;
c) the delivery of hard-copy Proofs;
d) fees for processing your payments by credit card;
e) other charges, fees or disbursements referred to in these Advertising Terms and not specified in this clause.
29. We use a third-party payment processor (the “Payment Processor”) to bill you through a payment account linked to your account on the Platform (your “Billing Account”) for Advertising. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to these Advertising Terms. We are not responsible for error by the Payment Processor. By purchasing Advertising, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for any Advertising in accordance with the applicable payment terms and you authorise us, through the Payment Processor, to charge your chosen payment provider (your “Payment Method”). You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
30. Payments are due in advance of the period for which they apply, or as otherwise set forth in the Advertising Plan.
31. We may grant, deny or withdraw credit to you at any time at our discretion.
32. You agree to immediately pay us at the time of withdrawal of any credit facilities all outstanding monies in full.
33. If the limit of credit we grant is reached, or if your account is overdue we reserve the right:
a) terminate any Advertising Terms in relation to any Advertising and credit;
b) to credit any of your payments to meet any accrued default on outstanding monies and the balance applied to reduce the outstanding balance;
c) charge a default penalty at the rate 2.5% per month on all overdue amounts;
d) take proceedings against you for any outstanding amounts and for all costs related to their recovery including but not limited to mercantile agent fees and legal costs incurred on a solicitor/own Advertiser basis;
e) to exercise any other rights at law.
34. For the purposes of billing and assessment of Advertising, the measurements provided by us are the official, definitive measurements of Advertising.
USER SUBMISSIONS, PROHIBITED CONTENT AND ACTIVITIES
35. By uploading, posting, submitting or otherwise distributing any Ad Material (“User Submission”) via the Platform or which you otherwise provide to us, you hereby grant and agree to grant to us a non-exclusive, transferable, perpetual, irrevocable, non-exclusive, royalty-free right and license (with right to sublicense) to use, reproduce, publicly display, modify, distribute, User Submission, in any form, in connection with the Platform (including without limitation, in connection with the Platform).
36. You hereby represent and warrant to us that:
a) that you have full legal power and authority to enter into these Advertising Terms, perform your obligations hereunder, and authorise the fee payments set forth in Advertising Plan nominated by the Advertiser;
b) you have full authority to act on behalf of any and all owners of any right, title or interest in and to any content in your User Submissions to use such content as contemplated by these Advertising Terms and to grant the license rights set forth above;
c) you are authorised to grant all of the aforementioned rights to the User Submissions to us and all users of the Platform;
d) you have the permission to use the name and likeness of each identifiable individual person in your
e) that any information or Ad Materials that you provide to us for the purpose of Advertising:
i. does not infringe any patent, trademark, trade secret, copyright, right of publicity or other intellectual or other right of any other person or entity or violates any law or contractual duty;
ii. does not violate any applicable federal, state or territory law, statute, ordinance, regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, false Advertising, or beverage alcohol Advertising and marketing) or industry guideline;
iii. is not false, misleading, untruthful or inaccurate;
iv. is not unlawful, defamatory, threatening, abusive, harassing, obscene, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane;
v. does not constitute unauthorised or unsolicited Advertising, junk or bulk e-mail (“spamming”);
vi. does not contain software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorised access to any system, data, password or other information of Real Media or any third party;
vii. does not impersonates any person or entity, including any employee or representative of Real Media;
viii. does not includes anyone’s identification documents or sensitive financial information;
ix. does not use the name or image of any person without the written authority of that person;
xi. is not in contempt of any court, tribunal or royal commission;
xii. is not placed on behalf of or does not promote the goods and services of third parties unless you are an Advertising agency;
37. We reserve the right to (a) reject, remove, edit or modify any Advertising in our sole discretion without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Advertising or if we are concerned that you may have violated the Advertising Terms, or for no reason at all and (b) to remove or block any User from submitting content to the Platform.
38. You agree not to (directly or indirectly):
a) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or its third party providers’) infrastructure;
b) interfere or attempt to interfere with the proper working of the Platform or any activities conducted on the Platform;
c) bypass any measures we may use to prevent or restrict access to the Platform (or other accounts, computer systems or networks connected to the Platform);
d) run any form of auto-responder or “spam” on the Platform or Site;
e) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site;
f) harvest or scrape any Content from the Platform or Service;
g) modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, republish, repurpose, sell, trade, or in any way exploit the Platform, Service or Site Content (other than your User Submissions), except as expressly authorised by us;
h) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Platform (including without limitation any application or widget), except to the limited extent applicable laws specifically prohibit such restriction;
i) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder; or
j) otherwise take any action in violation of our guidelines and policies.
k) not authorise or induce any other party, to:
i. generate automated, fraudulent or otherwise invalid impressions, inquiries, conversions, clicks or other actions;
ii. use any automated means or form of scraping or data extraction to access, query or otherwise collect Real Media content and reviews from the Platform, except as expressly permitted by Local us or
iii. use any Local Assist trademarks in any manner without our prior written consent. All rights not expressly granted to you hereunder are reserved by us.
39. We shall have the right to use, reproduce, transfer, sublicense and otherwise exploit perpetually any place, venue, latitude and longitude, or other location information that you submit, upload, post, create or add to the Platform.
40. As a condition of use, you promise not to use the Platform for any purpose that is prohibited by the Advertising Terms. You are responsible for all of your activity in connection with the Platform.
41. If you carry on business as an Advertising agency, you are entering into these Advertising Terms for the supply of Advertising in your own right and not as a representative or agent of any third party.
CONTENT AND OWNERSHIP
42. You acknowledge and agree that the Platform and all content, information and other materials made available via the Platform are protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws or privacy laws, and Real Media (and its licensors) shall own and retain all rights, title and interests (including all intellectual property and proprietary rights) therein and thereto. Unless and only to the extent expressly authorised by us, you agree not to or allow a third party to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works of the Platform or such content, information and other materials.
43. You acknowledge that we own the intellectual property in any Ad Materials we create and you agree not to use such Ad Materials for any other purpose other than Advertising in our publications or websites without our written authority.
45. In connection with the Platform, you may obtain personal information and you may not use or disclose such information for any other purpose such personal information except to monitor the performance of your Advertising. Real Media has not granted you a license to use the information for unsolicited commercial messages. Without limiting the foregoing, without express consent from the user, you are not licensed to add any Real Media user to your email or physical mail list. You agree to take commercially reasonable steps, compliant with applicable laws, rules and regulations, to protect all Real Media user data and information from unauthorised use, disclosure or access by third parties.
46. You agree to:
a) defend Real Media and its employees, contractors, officers, directors and representatives against any action or suit that arises out of your use or misuse of the Platform, any transaction or other dealings with any other user or other third party in which you are involved, or your breach of any of your representations, warranties or covenants under these Advertising Terms; and
b) indemnify Real Media for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such a claim. Real Media reserves the right to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with Real Media in asserting any available defences.
LIMITATIONS OF LIABILITY
47. We will not be liable to you or any other entity whatsoever for any damages or loss suffered by you or any other person under these Advertising Terms or in connection with Advertising:
a) being published;
b) failing to or being delayed in being published;
c) of poor print quality resulting from your failure to submit your Ad Materials in accordance with our Ad Material Specifications;
d) containing errors when the Advertising has relied on instructions you have given to us over the telephone.
48. Any error or inaccuracy in your Advertising is to be notified to us in writing within 3 days of the date of publication of the Advertising.
49. You agree that we shall not be held responsible or liable for any unauthorised access to, alteration or use of your account, transmissions or data, or any material or data sent or received or not sent or received through the Platform. You agree that we are not responsible or liable for any threatening, defamatory, obscene, offensive, illegal or other content or conduct of any third party or any infringement of another’s rights, including intellectual property rights.
50. In no event shall we (or our affiliates, licensors and suppliers) be liable concerning any subject matter related to the platform, regardless of the form of any claim or action (whether in contract, negligence, strict liability or otherwise), for any:
a) matter beyond its reasonable control,
b) loss or inaccuracy of data, loss or interruption of use, or cost of procuring substitute technology, goods or services,
mm) indirect, punitive, incidental, reliance, special, exemplary or consequential damages including, but not limited to, loss of business, revenues, profits or goodwill, or
c) damages, in the aggregate, in excess of AUD $50.00 or the fees paid by you for access to the platform for a two week period, whichever is greater, even if we have been advised of the possibility of such damages. These limitations are independent from all other provisions of these Advertising Terms and shall apply notwithstanding the failure of any remedy provided herein.
51. FOR ALL OTHER CLAIMS ARISING FROM OR IN CONNECTION WITH ADVERTISING, OUR MAXIMUM LIABILITY AND YOUR EXCLUSIVE REMEDY IS THE AGGREGATE FEES PAYABLE TO US HEREUNDER DURING A TWO WEEK COMMITMENT PERIOD EXCEPT WHERE AND TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
52. Neither party nor its affiliates will be liable for any indirect, incidental, consequential, special, or exemplary damages (including loss of profits or revenue, or interruption of business) arising out of or related to advertising, the platform, or these advertising terms, regardless of the theory of liability, even if a party has been advised of the possibility of such damages.
DISCLAIMER OF WARRANTIES
53. You acknowledge and agree that the Platform is provided “as is” and “as available”. Your use of the Platform is solely at your own risk.
54. All obligatory conditions and warranties implied by federal, state and territory legislation apply. All other implied conditions and warranties are hereby expressly excluded.
55. We shall not be liable for non-performance due to causes beyond our reasonable control.
56. You may cancel your Advertising, registration and account at any time by providing 30 days written notice to [email protected]
57. Upon any termination, all rights and obligations of the parties shall cease and you shall immediately cease using the Platform, except that all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) and all remedies for breach of the Advertising Terms shall survive. After termination, we have no obligation to maintain any content in any user’s account or to forward any unread or unsent messages to you or any user of the Platform or any other party.
58. We reserve the right to modify or terminate the Platform for any reason, without notice, at any time.
59. We reserve the right and without giving you notice, to suspend, terminate, amend, withdraw or refuse to publish your Advertising and we shall have no other liability for doing so other than reimbursing any fees that were prepaid for Advertising to be rendered after the date of such termination.
60. We may terminate any user’s access to all or any part of the Platform at any time, with or without cause, with or without notice, effective immediately.
61. Your rights and obligations under the Advertising Terms are personal to you, and are not assignable, transferable or sub-licensable by you except with of our prior written consent and any purported assignment by you shall be void. We may assign, transfer or delegate any of our rights and obligations hereunder without consent. All waivers, consents and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment relationship is created as a result of the Platform or Advertising Terms, and neither party has any authority of any kind to bind the other in any respect.
62. All notices under these Advertising Terms:
oo) will be in writing (including electronically) sent via facsimile, registered or certified mail or commercial courier to the parties at their respective addresses set forth herein, and in the case of Real Media, to the attention of the General Manager, Real Media Pty. Ltd. Level 40/2 Park Street Sydney NSW 2000 Australia.
pp) will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile, e-mail or through the service; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.
63. These Advertising Terms embody the entire and exclusive Advertising Terms between the parties respecting the subject matter of herein, and supersede any and all prior related oral, emailed or written representations, proposals or communications and Advertising Terms between the parties. No statements or promises by either party have been relied upon in entering into these Advertising Terms, except as expressly set forth herein.
64. No conditions, printed or otherwise, appearing on other contracts, orders or copy instructions which conflict with, vary, or add to these Advertising Terms will be binding on Real Media, and any conflicting or additional terms contain in any other documents or oral discussions are void.
65. The Advertising Terms must be construed as if they were jointly written by both parties. The parties agree that each may bring or participate in claims against the other only in their respective individual capacities, and not as a plaintiff or class member in any purported class or representative proceeding. Unless the parties agree that any claims may not consolidated or joined with the claims of other persons or parties who may be similarly situated.
66. The Advertising Terms may not be amended or modified except as agreed upon in writing by the parties. No provision in the Advertising Terms may be waived, except pursuant to a writing executed by the party against whom the waiver is sought to be enforced.
67. If any (part of a) provision of these Terms is illegal or unenforceable then it will be severed from these Advertising Terms and the remaining provisions of these Advertising Terms will continue to apply even in the event that we do not enforce, or delay in enforcing any provision of these Advertising Terms, we shall not be construed as having waived that provision.
68. You agree to notify us in writing within one (1) day of:
a) a change in any information provided by you in this document including owners/directors details or the name of the Advertiser;
b) any legal proceedings issued against you;
c) the appointment of any liquidator, receiver, receiver manager or administrator being appointed to you;
d) any change in the ownership of your business so that if you sell your business and you do not so notify us and we place Advertising on the Platform on your behalf, the buyer of your business you will be jointly and severally liable for monies payable to us for Advertising.
69. A printed version of the Advertising Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Advertising Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
DISPUTES, CHOICE OF LAW AND FORUM
- The Advertising Terms shall be governed by and construed in accordance with the laws of the state of New South Wales and you expressly agree that the exclusive jurisdiction for any claim or action arising out of or relating to the Advertising Terms or use of the Platform shall be filed only in the state or federal courts located in New South Wales, Australia and you further agree and submits to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action. Use of the Platform is not authorised in any jurisdiction that does not give effect to all provisions of the Advertising Terms, including without limitation, this section. Notwithstanding anything to the contrary in these Advertising Terms, we may apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.