CARSALES.COM.AU LIMITED

(CarSales)

INSERTION ORDER TERMS AND CONDITIONS


  1. 1 ABOUT THIS AGREEMENT

    1. 1.1 These Terms and Conditions together with the Insertion Order form the agreement between the Advertiser and carsales in respect of Advertising Services.
    2. 1.2 If these Terms and Conditions and the Insertion Order are inconsistent, then the terms of the Insertion Order will prevail to the extent of the inconsistency.
    3. 1.3 If carsales supplies Advertising Services which are not specified in an Insertion Order these Terms and Conditions still apply.

  2. 2 WORDS AND PHRASES

    1. 2.1 In this Agreement:
      1. (a) “AD” means an advertisement on one or more Carsales Network websites;
      2. (b) “ADVERTISER” means the person who signs the the Insertion Order;
      3. (c) “ADVERTISING MATERIAL” means all creative in respect of an Ad including text, graphics, icons, images and URL information;
      4. (d) “ADVERTISING SERVICES" means the advertising services described in the Insertion Order;
      5. (e) “AGREEMENT” means these Terms and Conditions and an Insertion Order signed by the Advertiser and accepted by carsales;
      6. (f) “BUSINESS DAY” means any day excluding Saturday or Sunday or a bank or public holiday in Australia;
      7. (g) “CARSALES” means carsales.com.au Limited ( ABN 91 074 444 018) and/or Related Bodies Corporate;
      8. (h) “CARSALES NETWORK” means the network of websites and related services owned or operated by carsales including, but not limited to www.carsales.com.au, www.bikesales.com.au, www.quicksales.com.au, www.uniquecarsales.com.au, www.autogate.com.au, www.carpoint.com.au, www.bikepoint.com.au, www.boatpoint.com.au, www.ihub.com.au, www.horsepoint.com.au, www.rvpoint.com.au, www.valueguide.com.au, www.erginternational.com.au and the carsales search engine wherever distributed on the internet;
      9. (i) “DEFAULT EVENT” means the events listed in clause 14.2;
      10. (j) “FORCE MAJEURE” means an event or circumstance beyond the reasonable control of a Party (without fault or negligence of that Party) ;
      11. (k) “FEE” means the fees and charges for Advertising Services set out in the Insertion Order;
      12. (l) “IMPRESSION” means an appearance of an Ad on a Carsales Network website resulting from a person accessing that website;
      13. (m) “INSERTION ORDER” means an order for Advertising Services in the form required by carsales from time to time;
      14. (n) “INSOLVENT” means:
      15. (i) is unable to pay its debts as and when they fall due or becomes insolvent or makes an assignment, arrangement or composition for the benefit of its creditors or discontinues or ceases to carry on business in Australia;
      16. (ii) has a receiver or receiver manager appointed to the whole or any parts of its assets, or if a mortgage in possession is appointed in respect of any of its assets, or if a resolution is passed for its winding up; or
      17. (iii) is presented with an application for its winding up or is served with a notice pursuant to the Corporations Act which pertains to an amount of money owed by it and which is not bona fide in dispute and such notice remains outstanding for 21 days or more;
      18. (o) “INTELLECTUAL PROPERTY” means all intellectual property including all present and future registered and unregistered copyright, trade marks, designs, patent, semi-conductor or circuit layout, trade secrets, know how, confidential information, inventions and discoveries;
      19. (p) “INTELLECTUAL PROPERTY RIGHTS” means any rights in Intellectual Property;
      20. (q) “PROHIBITED WEBSITE” means a website that contains any content of a kind described in sub-clauses 5.1(a)(i)-(v) ;
      21. (r) “PUBLICATION DATE” means the start date for the Ad described in the Insertion order;
      22. (s) “RELATED BODY CORPORATE” has the meaning given in the Corporations Act (Cth) 2001;
      23. (t) a reference to any party or other person includes that person's successors and permitted assigns;
      24. (u) a reference to this or any other document includes a reference to that document as amended, supplemented, novated or replaced from time to time;
      25. (v) a reference to a person includes a natural person, corporation, partnership, trust, estate, joint venture, sole partnership, government or governmental subdivision or agency, association, co-operative and any other legal or commercial entity or undertaking;
      26. (w) where a party comprises two or more persons any agreement or obligation to be performed or observed by that party binds those persons jointly and each of them severally, and a reference to that party is deemed to include a reference to any one or more of those persons;
      27. (x) the words “include” and “including” mean “including but not limited to”; and
      28. (y) the headings in this agreement do not affect its interpretation.

  3. 3 PLACING AN ADVERTISEMENT

    1. 3.1 In order to place an Ad the Advertiser must:
      1. (a) submit a signed Insertion Order ; and
      2. (b) subject to the terms of the Insertion Order, provide all Advertising Material to carsales.
    2. 3.2 If carsales is to create the Ad, separate terms and conditions will apply to the creation of the Ad.
    3. 3.3 carsales is not bound to publish an Ad until the Insertion Order is accepted by carsales. An Insertion Order will be deemed not accepted if the Ad is not published.

  4. 4 WHAT THE ADVERTISER WILL DO

    1. 4.1 The Advertiser will:
      1. (a) provide all required Advertising Material to carsales not less than 5 days prior to thePublication Date in the format prescribed by carsales from time to time;
      2. (b) comply with carsales advertising policy; and
      3. (c) obtain permission from the owner of Intellectual Property Rights in any third party material included in the Advertising Material.

  5. 5 WHAT THE ADVERTISER WILL NOT DO

    1. 5.1 The Advertiser represents and warrants that it will not:
      1. (a) submit Advertising Material which:
        1. (i) does not comply with all relevant laws;
        2. (ii) infringes the intellectual property rights of any person;
        3. (iii) is illegal, fraudulent, obscene, offensive, defamatory, or in any way unsuitable for people under the age of eighteen (18) years;
        4. (iv) is misleading or deceptive or likely to mislead or deceive;
        5. (v) comprise anything which may adversely reflect on carsales or any website on which the Advertising Material is published or suggests any endorsement by or affiliation with carsales or any website on which the Ad is published;
      2. (b) ensure that links to other websites or HTML enhancement text embedded in any Ad:
        1. (i) directly relates to the subject matter of the Ad,
        2. (ii) will be functional and accessible at all reasonable times; and
        3. (iii) the linked website is not a Prohibited Content;
      3. (c) disclose to any person carsales rate card or this Agreement; or
      4. (d) resell, assign or transfer any rights under this Agreement to any person.

  6. 6 PUBLICATION OF ADS

    1. 6.1 If accepted, carsales will use its best endeavors to publish the Advertiser’s Ad as set out in the Insertion Order on the terms and conditions of this Agreement.
    2. 6.2 The Advertiser acknowledges and agrees that
      1. (a) carsales ability to provide the Advertising Services is dependent upon the Advertiser and third parties performing their obligations. If carsales is unable to provide the Advertising Services as a direct or indirect result of any act or omission of the Advertiser or any third party or Force Majeure the Advertiser will have no remedy against carsales in relation to any delay or any failure to provide the Advertising Services.
      2. (b) while every endeavor will be made to publish the Advertiser’s Ad as set out in the Insertion Order, carsales will not ( other than as set out in clause 12) be liable for any error, omission or failure to publish the Ad in the form ordered, including acts or omissions of carsales, its employees or agents.
    3. 6.3 carsales may without notice or liability, refuse to publish, withdraw or terminate the publication of an Ad if:
      1. (a) the Advertiser is in breach this Agreement; or
      2. (b) carsales determines, in its absolute discretion, to refuse to publish, withdraw or terminate the publication of an Ad.
    4. 6.4 Subject to the terms of the Insertion Order, carsales has absolute editorial control in relation to the publication of the Advertiser’s Ad, including, but not limited to the format, position and placement of the Ad. carsales may head an Ad “ Advertisement”.

  7. 7 CHANGE REQUESTS

    1. 7.1 The Advertiser may, after submitting an Insertion Order but prior to the Publication Date , request in writing changes or variations to the Insertion Order.
    2. 7.2 carsales will, as soon as practicable, advise the Advertiser:
      1. (a) if it accepts the Change Request;
      2. (b) any variation to the Fees;
      3. (c) any changes to the terms and conditions of this Agreement which may be required to implement the Change Request; and
    3. 7.3 any impact which implementation of the Change Request is expected to have on the ability of carsales to perform its obligations in accordance with the Insertion Order.
    4. 7.4 carsales will have no obligation to proceed with a Change Request until such time as both parties agree in writing and the Subscriber has paid any additional Fee.

  8. 8 SERVICE LEVELS

    1. 8.1 Subject to the Insertion Order, the Advertiser acknowledges and agrees that carsales makes no representation or warranty with respect to the continuous accessibility or availability of the carsales network or the number of Impressions, click throughs or like metrics. .
    2. 8.2 If the Insertion Order includes a number of Impressions per month, carsales will use its best endeavors to supply that number of Impressions. If the Impressions are not supplied carsales will provide additional Impressions of the Ad in the following month(s) in its absolute discretions as the Advertiser’s sole remedy._

  9. 9 CANCELLATION OF ADVERTISEMENTS

    1. The Advertiser may cancel an Ad and terminate the Agreement without cause, on written notice to carsales, not later than 30 days prior to the Publication Date. carsales reserves the right to charge the Advertiser in accordance with the Agreement where the Agreement is terminated with less than 30 days written notice.

  10. 10 HOW AND WHEN CARSALES FEES ARE PAYABLE

    1. 10.1 The Advertiser will pay the Fees as set out in the Insertion Order .
    2. 10.2 Fees are :
      1. (a) invoiced in respect of the month the Insertion Order is received ; and
      2. (b) payable with 14/30 days of invoice..
    3. 10.3 The Advertiser acknowledges and agrees that no fee or other payment will be paid by carsales to the Advertiser for placing an Ad.
    4. 10.4 If the Advertiser fails to pay any Fees by the required time, carsales may require that the Advertiser pay:-
      1. (a) interest to carsales, on the daily amount outstanding, at the rate applicable from time to time under the Penalty Interest Rates Act, 1983 until all monies due are paid; and
      2. (b) any expense (including legal fees) incurred by carsales in recovering the outstanding Fees from the Advertiser.

  11. 11 GOODS AND SERVICES TAX

    1. If GST is imposed on any taxable supply by a Party in connection with this Master Agreement or any Product and Services Agreement and the consideration payable is not expressed to be inclusive of GST, then, subject to a valid tax invoice being issued, the Party liable to pay for the taxable supply must pay on demand an additional amount calculated by multiplying the value of the GST exclusive consideration ( without deduction or set off) by the current GST rate.

  12. 12 LIABILITY

    1. 12.1 Other than as set out in this Agreement, and to the extent permitted by law, all implied and express warranties in respect of the Advertising Services are hereby excluded.
    2. 12.2 Subject to clause 12.3, a carsales will only be liable to the Advertiser:
      1. (a) where the law implies a term into this Agreement which cannot be excluded and carsales breaches that term. Provided that, where the breach relates to goods or services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption and where it is fair and reasonable to do so carsales liability is limited, at its option, to replacing, repairing or re-supplying the relevant goods or re-supplying the relevant services; or
      2. (b) where the claim or cause of action arises out of or in connection with this Agreement ( whether arising in contract, tort ( including negligence), indemnity or breach of statute) but carsales liability to the Advertiser for such claim or cause of action is limited, in aggregate in respect of all claims or causes of action, to the sum of Fees paid or payable in respect of the Advertising Services to which the claim or cause of action relates.
    3. 12.3 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.
    4. 12.4 The Parties agree that the time within any claim or cause of action may be brought arising out of or in connection with this Agreement is limited to 1 month from the date the claim or cause of action arose or the date on which the claim or cause of action should reasonably have been discovered.
    5. 12.5 For the purposes of this clause, the term carsales or Party will mean carsales or a Party to this Agreement, its officers, employees, contractors and agents, whether individually or collectively.
    6. 12.6 Any amount claimed by a Party pursuant to clause 12.2 will be reduced proportionally to the extent that any loss, damage, liability, claim or expense is directly or indirectly caused, or contributed to, by the other Party.

  13. 13 SUSPENSION OF ADVERTISING SERVICES

    1. carsales may suspend the Advertising Services in the event of a Default Event by the Advertiser.

  14. 14 WHEN DOES THIS AGREEMENT AND/OR A PRODUCT AND SERVICES AGREEMENT END

    1. 14.1 Carsales may terminate this Agreement on 30 days written notice to the Advertiser.
    2. 14.2 A Party may terminate this Agreement by written notice to the other Party ( the “Defaulting Party”) if:-
      1. (i) the Defaulting Party breaches any provision of this Master Agreement that is not capable of remedy;
      2. (ii) the Defaulting Party breaches any provision of this Master Agreement that is capable of remedy and fails to remedy such breach within 14 days written notice;
      3. (iii) the Defaulting Party is Insolvent.
    3. 14.3 On the termination or expiry of this Agreement:
      1. (a) carsales will immediately cease to provide the Adverting Services;
      2. (b) the Advertiser must pay all outstanding Fees to carsales;
      3. (c) carsales will return all Advertising Material to the Advertiser; and
      4. (d) clauses 12, 14 and 15 will survive.
    4. 14.4 Termination of this Agreement will not prejudice any accrued rights or liabilities of a Party.

  15. 15 INDEMNITY

    1. 15.1 The Advertiser indemnifies carsales against all actions, claims and demands (including the cost of defending or settling any actions, claims and demands) which may be instituted against carsales arising out of:
      1. (a) a breach of this Agreement by the Advertiser;
      2. (b) any willful, unlawful or negligent act or omission by the Advertiser;
      3. (c) the publication by carsales or any other person of the Advertisers Ad.

  16. 16 OWNERSHIP AND LICENCE

    1. 16.1 carsales acknowledges that the Advertising Materials are owned by or licensed to the Advertiser.
    2. 16.2 The Advertiser grants carsales a non exclusive, royalty free , worldwide licence to use, copy, perform, reproduce, display, transmit and distribute the Advertising Material for the purposes of performing its obligations pursuant to this Agreement.

  17. 17 VARIATION

    1. carsales may, in its absolute discretion, modify or amend these Terms and Conditions upon 30 days written notice to the Advertiser and such modification or amendment will be binding on the Advertiser at the expiration of the notice. The Advertiser must thereafter comply with the amended Terms and Conditions or terminate this Agreement as set out herein.

  18. 18 OTHER LEGAL MATTERS

    1. 18.1 Usage Statics
      1. carsales statistics shall, in the absence of evidence to the contrary, be conclusive for the purpose of calculating impressions, usage statistics and like metrics, in respect of the Advertising Services.
    2. 18.2 Entire Agreement
      1. These Terms and Conditions and the Insertion Order set out the entire agreement between carsales and the Advertiser in respect of the Advertising Services and supersedes all prior arrangements, undertakings, representation and warranties in respect of the Advertising Services including any terms and conditions submitted by the Advertiser and not set out in this Agreement.
    3. 18.3 Further Acts
      1. Each Party agrees to do all things that may be necessary or desirable to give full effect to every part of this Agreement if asked in writing by the other Party to do so.
    4. 18.4 Assignment
      1. Neither Party may assign, transfer or otherwise dispose of, in whole or in part their rights or obligations under this Agreement, without the prior written consent of the other which consent will not be unreasonably withheld.
    5. 18.5 Sub-contractors
      1. carsales may subcontract the performance of this Agreement or any part thereof.
    6. 18.6 Provisions Severable
      1. If any provision of this Agreement is invalid, illegal or unenforceable in any respect the validity, legality and enforceability of the remaining provisions will not be affected and such invalid, illegal or unenforceable provision is to be severed from the relevant agreement.
    7. 18.7 Variation and Waiver
      1. Failure by any Party to exercise or delay in exercising any right, power or remedy under this Agreement does not prevent its exercise. Any variation or waiver of this Agreement must be in writing signed by the Party or Parties to be bound.
    8. 18.8 Notice
      1. Where in this Agreement a Party is required to give notice in writing a Party may give the same by:
        1. (a) prepaid ordinary post to the parties address set out in Item 3 and 4 of the Schedule which will be deemed to be delivered 2 Business Days after it is sent ;
        2. (b) fax to the fax number set out in Item 3 and 4 of the Schedule which will be deemed to be delivered once a correct transmission slip is received; or
        3. (c) any other way permitted by law.
    9. 18.9 Governing Law
      1. This Agreement is governed by and construed in accordance with the laws of the State of Victoria, Australia and the Parties irrevocably submit to the exclusive jurisdiction of the Courts in that State.
    10. 18.10 Costs
      1. The Parties agree to pay their own legal and other costs and expenses in connection with the preparation, execution and completion of this Agreement.