1 ABOUT THIS AGREEMENT
1.1 These Terms and Conditions together with the Insertion Order form the agreement between the Advertiser and carsales in respect of Advertising Services. By submitting an Insertion Order, the Advertiser acknowledges that it has read, understood, and agrees to be bound by these Terms and Conditions and the Insertion Order.
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.
1.3 If carsales supplies Advertising Services which are not specified in an Insertion Order these Terms and Conditions still apply.
2 WORDS AND PHRASES
2.1 In this Agreement:
(a) "AD" means an advertisement on one or more Carsales Network websites or nominated external websites and includes any Bonus Ad or Advertiser SOV;
(b) "ADVERTISER" means the person who signs the the Insertion Order, and includes an advertiser on whose behalf the Advertising Services are being provided to or an agency or media company that arranges the Advertising Services for its clients;
(c) "ADVERTISING MATERIAL" means all creative in respect of an Ad including text, graphics, icons, images, titles, descriptions, trademarks, listings, abstracts, keywords, Ad target options, domain names (including click through URLS if relevant), content, data, data feeds and URL information;
(d) "ADVERTISING SERVICES" means the advertising services described in the Insertion Order;
(e) “ADVERTISER SOV” means ‘share of voice’ Ad which is provided to the Advertiser, the details of which are set out in the Insertion Order (if applicable).
(f) "AGREEMENT" means these Terms and Conditions and an Insertion Order signed by the Advertiser and accepted by carsales;
(g) “BONUS AD” means an Ad which is provided as an incentive to the Advertiser, the details of which are set out in the Insertion Order (if applicable).
(h) "BUSINESS DAY" means any day excluding Saturday or Sunday or a bank or public holiday in Australia;
(i) "CARSALES" means carsales.com.au Limited (ABN 91 074 444 018) and/or its Related Bodies Corporate;
(j) “CARSALES CREATIVE ADVERTISING RULES” means the carasales Creative Advertising Rules provided to the Advertiser as part of the Insertion Order.
(k) "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.plantmachinerysales.com.au, www.trucksales.com.au, www.constructionsales.com.au, www.farmmachinerysales.com.au, www.caravancampingsales.com.au, www.redbook.com.au, www.homesales.com.au, www.discountnewcars.com.au, www.discountusedcars.com.au, www.discountnewbikes.com.au, www.prestigenewcars.com.au, www.valueguide.com.au, www.erginternational.com.au and the carsales search engine wherever distributed on the internet;
(l) "DEFAULT EVENT" means the events listed in clause 14.2;
(m) "FORCE MAJEURE" means an event or circumstance beyond the reasonable control of a Party (without fault or negligence of that Party);
(n) "FEE" means the fees and charges for Advertising Services set out in the Insertion Order;
(o) "IMPRESSION" means a single appearance of an Ad on a Carsales Network website resulting from that website being accessed;
(p) "INSERTION ORDER" means an order for Advertising Services in the form required by carsales from time to time;
(q) "INSOLVENT" means:
(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;
(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 or proposed for its winding up; or
(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;
(r) "INTELLECTUAL PROPERTY" means all intellectual property including all present and future registered and unregistered copyright, trade marks, trade and business names, moral rights, designs, patent, rights to sue for passing off or unfair competition, semi-conductor or circuit layout, trade secrets, domain names, know how, confidential information, inventions and discoveries and all other similar or equivalent rights and including all applications for, and renewals, extensions or revivals of, such rights for their full term;
(s) "INTELLECTUAL PROPERTY RIGHTS" means any rights in Intellectual Property;
(t) "PROHIBITED WEBSITE" means a website that contains any content of a kind described
in sub-clauses 5.1(a)(i)-(v) ;
(u) PUBLICATION DATE" means the start date for the Ad described in the Insertion Order;
(v) "RELATED BODY CORPORATE" has the meaning given in the Corporations Act (Cth) 2001;
(w) a reference to any party or other person includes that person's successors and permitted assigns;
(x) a reference to this or any other document includes a reference to that document as amended, supplemented, novated or replaced from time to time;
(y) 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;
(z) 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;
(aa) the words "include" and "including" mean "including but not limited to"; and
(bb) the headings in this agreement do not affect its interpretation.
3 PLACING AN ADVERTISEMENT
3.1 In order to place an Ad the Advertiser must:
(a) submit a signed Insertion Order; and
(b) subject to the terms of the Insertion Order and these Terms and Conditions, provide all Advertising Material to carsales.
3.2 If carsales is to create the Ad, separate terms and conditions will apply to the creation of the Ad.
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 to have been accepted by carsales if the Ad is not published. However if an Ad is published where there is no Insertion Order, the Advertiser will be liable to pay the Fees as set out in these Terms and Conditions.
4 WHAT THE ADVERTISER MUST DO
4.1 The Advertiser must:
(a) provide all required Advertising Material to carsales in the relevant timeframe prescribed in the Creative Advertising Rules and in the format prescribed by carsales from time to time;
(b) comply with the carsales Creative Advertising Rules;
(c) ensure that all Advertising Material submitted is free from all viruses or other programs that may damage or interfere with any carsales system, data or information;
(d) obtain permission from the owner of Intellectual Property Rights in any third party material included in the Advertising Material; and
(e) if the Ad involves a competition or trade promotion which requires to be licensed under any applicable laws, the Advertiser must have (and warrants to carsales that it has) all necessary licenses to conduct that competition or trade promotion;
4.2 If the Advertiser does not provide the Advertising Material to carsales in the time set out in clause 4.1(a) or in compliance with the other terms of clause 4.1, Ad’s publication may be delayed or the Ad may not be published. In either of those cases, the Advertiser is and will remain liable to pay for the Ad and will be invoiced the Fee from the Publication Date regardless of whether the Ad is published. The Advertiser is responsible for providing third parties with lead time and other Ad requirements and carsales will not be responsible where any delay or failure to publish has occurred due to a third party’s actions contributing to any delay or breach of the above provisions by the Advertiser.
5 WHAT THE ADVERTISER MUST NOT DO
5.1 The Advertiser represents and warrants that it has the legal power and capacity to be bound by the Agreement and will not:
(a) submit Advertising Material which:
(i) does not comply with all relevant laws including but not limited to the Competition and Consumer Act 2010 (Cth), the Privacy Act 1988 (Cth) and any financial services laws under the Corporations Act 2001 (Cth);
(ii) infringes the Intellectual Property Rights of any person or breaches any duties towards any person including privacy rights;
(iii) is illegal, fraudulent, obscene, offensive, defamatory, or in any way unsuitable for people under the age of eighteen (18) years;
(iv) is misleading or deceptive or likely to mislead or deceive;
(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;
(b) disclose to any person carsales’ rate card or this Agreement;
(c) resell, assign or transfer any rights under this Agreement to any person;
(d) insert any tag, code, cookie or other data tracking or collection device for the purpose of re-targeting carsales.com users on a third party site, network or exchange;
(e) link, pool, correlate, resell, transfer, disclose or make available any advertising statistics the result of displaying the creative on the carsales network for the purposes of behavioural targeting or other type of re-targeting off the carsales network without carsales express written permission;
(f) use any automated means to access, monitor, scrape or copy the carsales Network or any data therein; and/or
(g) interfere with the proper working of the carsales Network.
6 PUBLICATION OF ADS
6.1 If accepted, carsales will use its best endeavours to publish the Advertiser's Ad as set out in the Insertion Order on these terms and conditions.
6.2 The Advertiser acknowledges and agrees that:
(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 and will be required to pay for the Fees;
(b) while every endeavour 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 in an Ad or omission or failure to publish the Ad in the form ordered, including acts or omissions of carsales, its employees or agents;
(c) carsales is not responsible for any aspect of the Advertiser’s or any third-party’s website(s) including whether any information is current and accurate and whether the Advertiser or any third party has all necessary rights in relation to the information on those websites.
6.3 carsales may without notice or liability, refuse to publish, withdraw or terminate the publication of an Ad if:
(a) the Advertiser is in breach the Agreement comprised of the Insertion Order and these terms and conditions; or
(b) carsales determines, in its absolute discretion, to refuse to publish, withdraw or terminate the publication of an Ad.
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" whenever required by law to do so or whenever it considers it appropriate to do so.
7 CHANGE REQUESTS
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 (a ‘Change Request’).
7.2 carsales will, as soon as practicable, advise the Advertiser:
(a) if it accepts the Change Request;
(b) any variation to the Fees;
(c) any changes to this Agreement which may result from implementing the Change Request; and
(d) 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.
7.3 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 SERVICE LEVELS
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. The Advertiser understands and accepts that traffic levels to carsales’ Network websites may fluctuate and the Advertiser is not guaranteed any particular level of exposure by purchase of the Ad.
8.2 If the Insertion Order includes a number of Impressions per month on the carsales’ Network, carsales will use its best endeavours to supply that number of Impressions. If the number of Impressions set out in the Insertion Order is not supplied, provided that the Advertiser is not in breach of this Agreement carsales will provide additional Impressions of the Ad in the following month(s) in its absolute discretion as the Advertiser's sole remedy, except in the case of Advertiser SOV and Bonus Ads. Results for the number of Impressions will be determined in carsales’ absolute discretion and results from the Advertiser or any third party provider will not be accepted for the purposes of determining any results.
8.3 Carsales may provide Bonus Ads or Advertiser SOV to the Advertiser in an Insertion Order. If either Bonus Ads or Advertiser SOV is provided to the Advertiser:
(a) the Advertiser acknowledges 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 as part of any Bonus Ad or Advertiser SOV;
(b) the Advertiser understands and accepts that traffic levels to carsales’ Network websites may fluctuate and the Advertiser is not guaranteed any particular level of exposure as part of any Bonus Ad or Advertiser SOV; and
(c) and any set number of Impressions, click throughs or like metrics are not met (or percentage level in the case of Advertiser SOV), the Advertiser acknowledges that in those circumstances Carsales will not be under any obligation to refund, reimburse or credit the account of the Advertiser or provide the Advertiser with any residual number of Impressions nor would the Advertiser have any right of set-off against Carsales for the payment of Fees to Carsales.
9 CANCELLATION OF ADVERTISEMENTS
A. Standard Campaigns:
The Advertiser may cancel an Ad and terminate the Agreement without cause, on 30 days written notice to carsales prior to the Publication Date. carsales reserves the right to charge the Advertiser for the full cost of the Ad where the Agreement is terminated with less than 30 days written notice prior to the Publication Date.
B. Backbone Campaigns:
The Advertiser may cancel an Ad and terminate the Agreement without cause, at any time on 90 days written notice to carsales (Minimum Notice Period), provided that:
(i) if the Publication Date has occurred before the date notice of termination is received by carsales or if the Publication Date occurs during the Minimum Notice Period, then:
(a) the Ad shall remain published for the Minimum Notice Period;
(b) carsales reserves the right to charge the Advertiser for the costs of the Ad over the Minimum Notice Period; and
(c) at the end of the Minimum Notice Period, carsales will remove the Ad.
(ii) if the Publication Date is to occur after the end of the Minimum Notice Period, the Ad will not be published and carsales will not charge the Advertiser for the costs of the Ad.
10 HOW AND WHEN CARSALES FEES ARE PAYABLE
10.1 The Advertiser will pay the Fees as set out in the Insertion Order.
10.2 Fees are:
(a) invoiced in respect of the month the Insertion Order is received ; and
(b) payable within 30 days of invoice.
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.
10.4 If the Advertiser fails to pay any Fees by the required time in addition to any other rights it may have at law, carsales may require that the Advertiser pay:-
(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
(b) any expense (including legal fees) incurred by carsales in recovering the outstanding Fees from the Advertiser.
11 GOODS AND SERVICES TAX
All rates and charges are quoted exclusive of GST unless expressly stated otherwise. carsales will issue the Advertiser with a valid tax invoice and the Advertiser will pay to carsales any applicable GST in addition to the rates and charges quoted.
12.1 Other than as set out in this Agreement, and to the full extent permitted by law, all implied and express warranties, rights, remedies, conditions and guarantees in respect of the Advertising Services provided by carsales under this Agreement are hereby excluded.
12.2 Subject to clause 12.3, carsales will only be liable to the Advertiser:
(a) where the law creates or implies a guarantee, right or term into this Agreement which cannot be excluded and carsales breaches that term provided that to the full extent permitted by law, carsales’ liability is limited, at its option, to supplying the relevant services again or paying the cost of supplying those services again; or
(b) subject to paragraph 12.2(a), 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) 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.
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.
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 (other than for a failure to pay any Fees) 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.
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.
12.6 Any amount claimed by the Advertiser 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 Advertiser.
13 SUSPENSION OF ADVERTISING SERVICES
carsales may in its absolute discretion immediately suspend the Advertising Services in the event of a Default Event by the Advertiser.
14 WHEN DOES THIS AGREEMENT AND/OR A PRODUCT AND SERVICES AGREEMENT END
14.1 Carsales may terminate this Agreement on 30 days written notice to the Advertiser.
14.2 A Party may terminate this Agreement by immediate written notice to the other Party (the "Defaulting Party") if:-
(a) the Defaulting Party breaches any provision of the Agreement that is not capable of remedy;
(b) the Defaulting Party breaches any provision of the Agreement that is capable of remedy and fails to remedy such breach within 14 days of receipt of written notice; or
(c) the Defaulting Party is Insolvent.
14.3 On the termination or expiry of this Agreement:
(a) carsales will immediately cease to provide the Advertising Services;
(b) the Advertiser must pay all outstanding Fees to carsales; and
(c) clauses 12, 14 and 15 will survive.
14.4 Termination of this Agreement will not prejudice any accrued rights or liabilities of a Party.
15 WARRANTY AND INDEMNITY
15.1 The Advertiser warrants to carsales that it is fully authorised to publish and authorise carsales to publish (and authorise others to publish) on its behalf the Ad and all Advertising Material.
15.2 The Advertiser indemnifies carsales and the carsales Network (plus any website which carsales syndicates Ads to), each of their directors, officers, agents and employees against all actions, claims, proceedings, demands and any other liability (including the cost of defending or settling any actions, claims and demands) which may be instituted against, claimed or demanded from carsales (or any of the indemnified persons set out in this clause 15.2) arising wholly or partially, directly or indirectly, out of:
(a) a breach of the Agreement by the Advertiser;
(b) any wilful, unlawful or negligent act or omission by the Advertiser;
(c) the publication by carsales or any other person of the Advertisers Ad or any Advertising Material.
16 OWNERSHIP AND LICENCE
16.1 Subject to warranties provided in these Terms and Conditions by the Advertiser, carsales acknowledges that the Advertising Materials are owned by or licensed to the Advertiser.
16.2 The Advertiser grants carsales a non exclusive, royalty free, worldwide licence to use, copy, adapt, re-format, re-compile, edit, modify, perform, reproduce, display, transmit and distribute the Advertising Material for the purposes of performing its obligations pursuant to this Agreement.
carsales may, in its absolute discretion, modify or amend these Terms and Conditions by publishing those modified or amended Terms and Conditions on its website (or the MediaMotive website) and such modification or amendment will be binding on the Advertiser upon publication. The Advertiser must thereafter comply with the amended Terms and Conditions or terminate this Agreement as set out herein.
18 OTHER LEGAL MATTERS
18.1 Usage Statics
carsales statistics shall, in the absence of evidence to the contrary, be conclusive for the purpose of calculating the number of Impressions, usage statistics and like metrics, in respect of the Advertising Services.