Advertising Terms & Conditions
CarAdvice.com Pty Ltd (ABN 84 116 608 158) (a Nine Entertainment Co. Group company) (“we/Drive“) and the customer (“you“) wish to enter into an agreement regarding advertising, content integration and creative services we may supply to you for use on the Drive Network (as defined below).
1. Overview
2. Definitions
3. Services
4. Advertising Copy
5. Sales Material
6. Betting and Gaming
7. Creative Services
8. Warranties
9. Intellectual Property
10. Payment
11. Approved Agencies
12. Confidential Information
13. Indemnity & Liability
14. General
1. Overview
1.1 The Agreement
The Agreement comprises:
(a) these booking terms and conditions (Terms)
(b) the terms of the Insertion Order(s);
(c) any Credit Application Form submitted by you; and
(d) where you are a Preferred Agency, any special terms we have agreed.
1.2 Variation of these Terms and Conditions
We may, in our absolute discretion, modify or amend these terms and conditions by publishing those modified or amended terms and conditions on our website and such modification or amendment will be binding on you upon such publication. You must thereafter comply with the amended terms and conditions or otherwise terminate your advertising agreement with us by written notice within 30 days of publication of the amended terms and conditions.
1.3 Entire agreement of parties
This Agreement constitutes the entire agreement between us and replaces and supersedes any previous discussions, communications or other documents concerning the supply of the Services. For the sake of clarity, this Agreement does not include any terms and conditions that may be separately submitted by you to us that are not expressly set out in this Agreement.
2. Definitions
In this Agreement, the following words have these meanings, unless the context otherwise requires:
Ad means an advertisement on any part of the Drive Network and includes any Bonus Ad or Advertiser SOV;
Advertising Copy means all advertising, marketing or other material supplied by you (including, without limitation, all text, graphics, icons, images, titles, descriptions, keywords, content, data and URLs) for publication on any of our sites in the form and manner approved by us;
Advertising Guidelines means our advertising guidelines (as may be modified by us from time-to-time) which are available here.
Advertiser SOV means ‘share of voice’ Ad which may be provided as an incentive to you, the details of which will be set out in the Insertion Order (where applicable);
Affiliate means any legal entity that Owns, is Owned by, or is commonly Owned with, us, and includes all Related Bodies Corporate of such legal entities;
Approved Agency means any customer who provides advertising agency services to its customers and which is registered with us as an approved agency;
Bonus Ad means an Ad which we may provide to you as an incentive, the details of which will be set out in the Insertion Order (where applicable);
Business Day means any day excluding Saturday or Sunday or a public holiday in the state of New South Wales, Australia.
Cancellation Fee means the estimated charges and costs we would have reasonably expected to have received for provision of Services but for your late cancellation including our charges for producing any Custom Materials and our Fees for publishing any Custom Materials or Advertising Copy based on the applicable Insertion Order;
Confidential Information means:
(a) the terms and conditions of the Agreement;
(b) our Rate Card; and
(c) all information of a confidential nature disclosed or communicated by the disclosing party to the recipient including any financial and pricing data; business plans; policies; suppliers; inventions; product information and information about a party’s marketing and/or promotional activities but excludes any information which the recipient can establish:
(i) is or becomes generally available in the public domain otherwise than through a breach of this Agreement or any obligation of confidence owed to the disclosing party;
(ii) is or becomes known to the recipient from a source other than the disclosing party otherwise than through a breach of an obligation of confidentiality owed to the disclosing party;
(ii) is or has been independently developed or acquired by the recipient; or is approved in writing by the disclosing party for disclosure by the recipient;
Creative Services means design, production and promotional services we may provide for interactive media including without limitation creating, producing and marketing Custom Materials, advertising marketing campaigns, e-direct marketing, developing and hosting integrated offerings such as competitions and associated creative services as set out in the Insertion Order;
Custom Materials means customised content and materials in any form which we may have produced for any particular campaign, Ad or promotion including any banner, advertisement, copy, mini website or co-branded webpages, native content (including videos and articles), cross-platform sponsored content, newsletters or e-marketing materials as set out in the Insertion Order;
Drive Network means all the digital properties (including without limitation websites, mobile sites and applications) operating under the Drive brand (as may be updated by Drive from time to time) including without limitation www.drive.com.au, www.caradvice.com.au, www.caradvicetv.com.au, caradvice.tv, and boatadvice.com.au Fees means our fees and charges for the provision of Services as specified in the Insertion Order;
Gaming Services means any products or services which provide the means for customers to play a ‘game of chance’;
Indirect Losses includes losses of profits, revenue, opportunity, anticipated savings or data or any indirect or consequential loss or damage;
Insertion Order means an insertion order in the form required by Drive which specifies details of the Services we agree to provide to you;
Launch Date means the date at which we are scheduled to publish any Advertising Copy or make available any Custom Materials for publication as specified in the Insertion Order;
Order means an order for Services described in an Insertion Order which has been accepted by us in accordance with this Agreement;
Our Sites means the websites, mobile-optimised websites sites and applications comprising the Drive Network;
Own means having at least fifty per cent (50%) ownership of an entity’s voting securities.
Preferred Agency means an Approved Agency with who we have agreed to offer special trading terms;
Rate Card means our current standard rates and charges for the provision of Services as notified to you from time to time;
Related Body Corporate has the same meaning as given to that term in the Corporations Act 2001 (Cth);
Services means the services to be supplied by us to you as described in any Insertion Order;
User means a person who accesses a page on our Sites;
we/our/us means Drive;
you/your means the person identified as the “Customer” or “Advertiser” in the Insertion Order (and includes any advertising agency that is acting on behalf of any advertiser or client on whose behalf Services are being requested pursuant to an Insertion Order)
3. Services
3.1 Provision of Services
We will provide you with, and you agree to use, the Services in accordance with this Agreement.
3.2 Orders for Services and Right to Refuse Services
You may request Services from us by completing an Insertion Order issued by us setting out the particulars of the Services required to be provided by us and the associated fees.
We will not be obliged to supply to you the particular Services set out in the Insertion Order until you have signed the Insertion Order and provided all Advertising Copy to us and we have accepted the Insertion Order. We may require you to submit a completed Credit Application Form prior to issuing you with an Insertion Order.
Neither these Terms nor any written or verbal quotation by Drive represents an agreement to publish Advertising Copy or provide Services to you. An agreement will only be formed between Drive and you when Drive receives and accepts your signed Insertion Order.
An Insertion Order will be deemed to not have been accepted by Drive if the Ad is not published. However, if an Ad is published where there is no Insertion Order, you will be liable to pay the Fees as set out in these Terms.
Drive reserves the right to refuse or withdraw from publication any Advertising Copy at any time that, in the opinion of Drive, is illegal, defamatory, offensive, obscene and/or contrary to the business interest, goodwill and/or reputation of Drive or any of its customers, Affiliates or vendors or is likely to infringe on the rights of third parties (even if the Advertising Copy has previously been published by Drive).
3.3 Cancellation of Services
(a) Standard Campaigns: You may cancel an Order for any Services at any time without charge provided that you give us at least thirty (30) days’ notice prior to the Launch Date for Orders on the Drive Network. If you cancel an Order for Services less than thirty (30) days before the Launch Date, your Order will nonetheless be billed as booked by Us and You will be charged the full Fees for the Order. No credit or other compensation will be issued by Us to You or Your client.
(b) Baseline Campaigns: You may cancel an Order for any Services at any time without charge provided that you give us at least ninety (90) days’ notice prior to the Launch Date for Orders on Drive Network. If you cancel an Order for Services less than ninety (90) days before the Launch Date, your Order will nonetheless be billed as booked by Us and You will be charged the full Fees for the Order. No credit or other compensation will be issued by Us to You or Your client.
(c) Creative Services: If you cancel your Order less than 30 days prior to the Launch Date, we will bill your Order as booked and you will be liable to pay the full amount of Fees owed for your Order. We will, however, issue you with a makegood and/or a credit equivalent to the total Fees paid by you for your cancelled Order. Details of the makegood and/or credit will be documented through a Drive credit note provided by us to you.
All makegoods and credits issued pursuant to clause 3.3(c) above must be used within three (3) months of the issue date (unless agreed otherwise by us in writing) or they will be forfeited by you. You agree to alert us to the redemption of any makegood and/or credit by you at the time of completing a new Order for Services. You further acknowledge that use by you of any makegood and/or credit is subject to the availability of replacement services
Regardless of the period of notice you have provided to us, if you cancel any Order for Creative Services we will charge you for any production costs and charges we have incurred as of the date of the cancellation.
We may cancel an Order or part Order at any time without giving you any reasons for the cancellation. If we exercise this right we will at our option:
(a) refund to you any Fees that you already paid to us;
(b) issue you with a makegood and/or credit; or
(c) reschedule the Launch Date to another date within sixty (60) days of the cancellation date,
and you agree that this is our sole liability to you in relation to that particular Order or part Order.
For the avoidance of doubt, a cancellation of an Order or part Order by either party pursuant to this clause 3.3 will be deemed to be a termination of this Agreement by that party in relation to such Order or part Order.
3.4 Optimisation
We will use reasonable endeavours to deliver Services in accordance with the Order. If we reasonably believe that any campaign is underperforming, we may in our discretion change the placement of Advertising Copy from that specified in the Order provided that it is displayed within a substantially equivalent-sized advertising unit and on a reasonably equivalent website environment within the Drive Network to those specified in the Order.
3.5 Right to refuse advertising
We reserve the right not to publish and/or to withdraw from our Sites any Advertising Copy at any time without prior notice to you and without giving reasons (even if the Advertising Copy has previously been published by Drive).
3.7 No right to Re-sell Services
You agree that you will not resell any Services, including Creative Services requested by you or advertising placements purchased on our Sites, to any third party without Drive’s express prior written consent.
4. Advertising Copy
4.1 Form of Advertising Copy
You will ensure all Advertising Copy complies with our Advertising Guidelines (including advertising deadlines) or such other requirements of which we may advise you. Your failure to meet our Advertising Guidelines may delay or prevent placement of the Advertising Copy on the Drive Network, or cause the removal of your Ad from the applicable Site, and will result in you being in breach of this Agreement. Without limiting clause 4.5, you must provide us with replacement Advertising Copy within forty-eight (48) hours if we refuse to publish Advertising Copy or if we remove any Advertising Copy pursuant to this Agreement.
4.2 Editorial Matter
You will ensure that Advertising Copy is clearly identifiable to users as advertising material and does not contain any material which could be confused by Users with our editorial content. You acknowledge that we may label any Advertising Copy as an advertisement when we publish it.
You acknowledge that we have absolute editorial control in relation to the publication of the Advertising Copy, including without limitation the format, position and placement of the Ad. We may headline an Ad “Advertisement” whenever required by applicable law or whenever we consider it appropriate to do so.
4.3 Promotion of Competitions
You will ensure that any Advertising Copy which references any game of skill competition or lottery promotion clearly identifies the promoter of the competition and that you have obtained all applicable permits and approvals for the conduct of the competition prior to the Advertising Copy being published on our Site.
4.4 Website Links
You will ensure that any URL referenced in any Advertising Copy will link Users to the intended website. We may test whether the URL is functional and may in our discretion remove any URL which does not meet with our approval.
4.5 Delivery of Advertising Copy
You will supply us with Advertising Copy for our approval in the timeframes set out in our Advertising Guidelines. You acknowledge that time is of the essence in your provision of the Advertising Copy to us. We may, in our sole discretion, accept late Advertising Copy for publication.
If we do not receive your Advertising Copy by Launch Date, we (at our sole discretion) may:
(i) treat this as a cancellation of the applicable Order or part thereof and we may charge you a Cancellation Fee;
(ii) charge you fees from the Launch Date on a pro rata basis based on the value of the full Order (excluding portions consisting of performance-based) for each full day that the Advertising Copy is not received; and/or
(iii) in respect of portions that are performance-based, deliver the same amount of Impressions as detailed in the applicable Order over a shorter timeframe once we receive the Advertising Copy from you.
If Advertising Copy is late (as calculated by reference to this section), we are not required to guarantee full delivery of the Order and will not issue make goods or credits for any missed activity. For the sake of clarity, we are not responsible for any delays in you providing us with your Advertising Copy which may be caused or contributed by third party actions.
You will ensure that all Advertising Copy submitted is free from all viruses or other programs that may damage or interfere with any of our systems, data or information.
4.6 Right to Publish Advertising Copy
You represent and warrant to us that you are fully authorised to publish, and that you authorise us to publish on your behalf, Advertising Copy on our Sites.
4.7 Change to Advertising Copy
You may, after submitting an Insertion Order but prior to the Launch Date, request in writing changes or variations to the Insertion Order (a ‘Change Request’). We will, as soon as practicable, advise you:
(a) if we accept 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 our ability to perform our obligations in accordance with the Insertion Order.
We will not have any obligation to proceed with a Change Request until we both agree in writing and you have paid any additional Fees that may apply. We reserve the right to amend or reduce any bonus or increase previously discounted rates to reflect any Change Request by you.
4.8 Advertiser Contact details
Advertising Copy containing contact details for the advertiser must contain your full name and street address. Post office box and email addresses alone are insufficient.
4.9 No liability for Advertising Copy
Drive will not be responsible for any loss or damage to any Advertising Copy left in its possession or control.
4.10 Errors in Advertising Copy
You must promptly check proofs of Advertising Copy (if provided to You by Drive) and notify Drive of any errors in the proofs or in published Advertising Copy as soon as possible. Drive does not accept responsibility for any errors submitted by you or your agent, including errors in Advertising Copy placed over the telephone.
5. Sales Material
You acknowledge that any marketing slide packs, mock ups, presentations or marketing materials supplied to you concerning our Services are examples only and that we may in our discretion vary the placement of any Advertising Copy within our Sites.
6. Betting and Gaming
6.1 If you use our Services for the purpose of promoting or marketing any Gaming Services provided by you or any third party, you will implement appropriate procedures to ensure that all Users who access such services via our sites are not domiciled in a country which prohibits access to Gaming Services. You will also ensure you have obtained any licences required to conduct that competition or trade promotion under applicable laws. We may in our discretion have the right to audit and test the effectiveness of your procedures and you will provide us with any reasonable technical assistance we require for such audit.
6.2 The Advertiser represents and warrants that:
(a) it is a non-proprietary association[1] or licenced wagering operator[2] with the meaning of the Betting and Racing Act 1998 (NSW);
(b) the correct responsible gambling messaging will be applied throughout the Advertisement;
(c) where any prices are indicated in the Advertisement, the Advertiser will provide a disclaimer about the date, time and zone that a price is current to;
(d) no promotions of odds will occur siren to siren during the broadcast, transmission or other communication of the match in play;
(e) in NSW, there will be no advertising relating to any fixture or match that is in progress at the time of broadcast, transmission or communication of the advertisement; and
(f) In NSW, SA and WA, there will be no promotion of inducements in contravention of the legal requirements in those states.
6.3 Publication of each Advertisement by Drive or its and related bodies corporate is approved by the Advertiser pursuant to section 33H of the Betting and Racing Act 1998 (NSW).
6.4 The Advertiser hereby indemnifies Drive and its related bodies corporate and affiliates from and against any and all costs, losses and expenses it may suffer or incur and any damages, claims or proceedings arising from or in relation to the acceptance of this approval and/or the broadcasting, transmission or communication of each advertisement.
6.5 For the avoidance of doubt, the indemnity provided by the Advertiser in clause 6.4 above extends to any act, or failure to act, on the part of Drive and its related bodies corporate and affiliates, including any failure by Drive to apply or produce components (eg. graphical, textual, disclaimers) of the Advertisement.
[1] “Non-proprietary association” means a body formed for the purpose of promoting and conducting race meetings, that does not distribute profits and is registered to with a controlling body responsible for the type of racing conducted by the relevant body.
[2] “Licensed wagering operator” means a wagering operator that holds a licence or authority (however described) under the legislation of New South Wales or any other State or Territory to carry out its wagering operations (whether in that State or Territory or elsewhere).
7. Creative Services
7.1 Instructions and Materials
You will supply us with any design instructions, logos, fonts, style guides, product imagery, art work or other materials which we will need to carry out Creative Services for you in the manner and format we specify in our Advertising Guidelines and Product Specifications (or as we otherwise may specify) at the time of completion of the Insertion Order or when requested by us shortly thereafter.
7.2 Changes to Custom Materials during Production
You acknowledge that any materials, ideas, talent, headlines and other concepts that we pitched to you prior to commencing production of the Custom Materials were not final and are subject to change to suitable alternatives at our discretion on written notice and discussion with you.
Standard production completion time for Custom Materials is four (4) weeks from execution of the Insertion Order for written content and six (6) weeks for video content unless agreed otherwise with you.
7.3 Approval of Custom Materials
We will use reasonable endeavours to supply mock ups of all Custom Materials for your approval reasonably in advance of the Launch Date. You must promptly check mock ups upon receipt and notify us of your approval or of any errors or amendments you require prior to the Launch Date. We may charge you additional fees for any amendments outside the scope of works originally agreed for the Creative Services.
If we do not receive your approval for mocks ups of the Custom Materials supplied to you at least two (2) days prior to Launch Date (unless such delay is caused by us), we may in our discretion but acting reasonably treat this as a cancellation of the applicable Order or part thereof and we may charge you a Cancellation Fee.
7.4 IP in Custom Materials
Unless specified otherwise in the signed Insertion order, Drive will own all intellectual property rights subsisting in the Custom Materials it creates for you in accordance with these Terms.
To the extent you own any intellectual property rights in the Custom Materials, you agree to licence these to Drive and Drive agrees to use and licence such Custom Materials pursuant to the licence rights set out in clause 9.2 of these Terms unless varied by agreement in writing between you and Drive in the applicable Insertion Order.
8. Warranties
8.1 Your Warranties
You warrant to us that:
(a) you have all applicable licenses and consents necessary to enter into and perform your obligations under this agreement;
(b) if you are an advertising agency:
(i) you are fully authorised to act on behalf of any advertiser or client on whose behalf you are requesting Services and to bind such advertiser or client to this Agreement;
(ii) both you and the advertiser or client on whose behalf you are requesting Services agree to be jointly and severally liable for all applicable responsibilities stated in this Agreement, including (without limitation) the payment obligations set out in clause 10 below; and
(iii) as at the date of this Agreement, the advertiser or client on whose behalf you are requesting Services is not in material breach of any agreement with you, nor is such advertiser or client in default with respect of any amounts owed to you.
(c) you have complied and will continue to comply with all applicable laws and regulations in performing your obligations under this Agreement;
(d)you will not breach any agreement, arrangement or understanding with a third party as a result of entering into or performing any part of this Agreement;
(e) the Advertising Copy complies with all applicable laws and regulations and industry guidelines;
(f) You will comply (and will ensure that your Client complies) with any additional terms imposed by a third party which apply to your use of the Services, as disclosed by us in the Insertion Order;
(g) the Advertising Copy will not infringe the intellectual property rights of any person or be misleading or deceptive or likely to mislead or deceive;
(h) the Advertising Copy will not include any reference to or promote any domestic or international competitor automotive website;
(i) the Advertising Copy will not comprise anything which may adversely reflect on Drive or any of our Sites on which any Ad is published;
(j) the Advertising Copy will not include content, or contain a link to any content, that is illegal, obscene, fraudulent, violent, defamatory, pornographic, offensive or discriminatory based on considerations of race, national origin, gender, age, disability, religion, sexual orientation or expression, that facilitates or promotes the unauthorised downloading, uploading, peer-to-peer sharing or streaming of copyrighted content, or promotes any companies, products or services that are in contravention of applicable Australian law, codes or regulations;
(k) neither you (nor any research vendor that you engage to conduct any research or study on the Drive Network) will insert any tag, code, cookie, pixel or other data tracking or collection device into the Advertising Copy without our express permission (including without limitation for the purpose of re-targeting our Site users on a third party website, network or exchange);
(l) you will not link, pool, correlate, resell, transfer, disclose or make available any advertising statistics the result of displaying the creative on the Drive Network for the purposes of behavioral targeting or other type of re-targeting off the Drive Network without our prior written consent;
(m) you will not use any automated means to access, ad load verify, monitor, content scrape or copy any content in the Drive Network or any data contained in any part of the Drive Network and/or interfere with the proper working of the Drive Network to any extent whatsoever;
(n) if Advertising contains the name or photographic or pictorial representation of any living person and/or any copy by which any living person can be identified, you have obtained the authority of that person to make use of his/her name or representation on the Advertising Copy; and
(o) you will not use or redistribute to any third party without our permission any information or reports we may supply to you other than for the purpose of evaluating the performance of our Services.
8.2 Our Warranties
We warrant to you that:
(a) we have the right to supply the Services to you;
(b) we will use reasonable care and skill in supplying the Services; and
(c) we will comply with all applicable laws and regulations in supplying the Services.
8.3 Exclusion of Warranties
We exclude all implied conditions and warranties from this Agreement except any conditions or warranties (such as those implied by the Competition and Consumer Act 2010 (Cth)) which cannot by law be excluded.
9. Intellectual Property
9.1 Ownership of IP
Unless otherwise agreed in the Insertion Order, we or our licensors own the intellectual property in the Custom Materials, our trademarks and any other material developed or provided by us under this Agreement. You and your licensors own the intellectual property in any Advertising Copy, your trademarks and any other material you provide to us under this Agreement and you are responsible for ensuring that you have and you represent to us that you have or will have all necessary permissions and consents from any third party owners of any intellectual property in the Advertising Copy and other material you provide to us under this Agreement to publish and use that Advertising Copy and other material in accordance with the provisions of this Agreement.
Except as authorised by this Agreement, the parties agree not to:
(a) reproduce the other party’s intellectual property; or
(b) sub-license, on-supply or further syndicate the other party’s intellectual property on any website other than our sites.
9.2 Licence of Intellectual Property
You grant us a limited, worldwide, non-exclusive, royalty free and non-transferable licence to use, reproduce, adapt, reformat, recompile, edit, modify, display, distribute and communicate to the public the Advertising Copy on our Sites in accordance with the Agreement and you represent and warrant to us that you have the requisite power and authority to grant this licence to us and that the grant of this licence will not infringe the intellectual property rights of any person. You grant us a limited non-exclusive right to copy, adapt, modify and otherwise use any logos or other design materials you supply to use for the purposes of supplying you with Creative Services.
Drive will only publish, use or otherwise share the Custom Materials created for you on the Drive Network and in promotional materials produced by Drive unless agreed otherwise in writing with you. You may publish links to the Custom Materials on your owned and operated digital and social channels, however you agree that you may not distribute, publish or otherwise exploit the Custom Materials in any way unless expressly agreed in writing by Drive (with the specifics of such licence agreement including permitted distribution platforms, formats, dates and fees (if applicable) to be agreed between the parties at the time of executing the Insertion Order.)
10. Payment
10.1 Rates and Fees
You will pay the Fees as specified in the Insertion Order. The charges for our Services will be as set out in our current Rate Card at the time of our acceptance of the Order unless we agree and specify other rates with you in the Insertion Order. If no Fees are specified in the Insertion Order, the charges for our Services will be as per our current Rate Card at the time of our acceptance of the Order.
10.2 Changes to Rates
We may change our Rate Card from time to time without notice.
10.3 Cost and Charges
We may charge you additional costs we incur in the provision of Services including (without limitation):
(a) the cost of obtaining any necessary licenses for any competitions which form part of Creative Services;
(b) any additional costs we incur in providing any talent, photography, filming, special effects of other special services which you request be supplied as part of the for the Creative Services;
(c) late payment charges for any overdue invoice which will be calculated monthly on the overdue amount at two per cent (2%) above the base rate of the Australian and New Zealand Banking Group.
10.4 GST and Taxes
You are responsible for computing and paying all taxes, duties and other government fees or charges payable or assessed in connection with this Agreement including (without limitation) goods and services tax, other value added tax, sales or use taxes, stamp duty and turnover tax, but excluding taxes, duties and government charges assessed on our income. Unless otherwise expressly stated, all rates and charges for our Services are exclusive of GST.
10.5 Invoices
We will invoice you monthly for fees and costs due under this Agreement (calculated and payable on Services booked under the applicable Insertion Order.) You will pay the amounts invoiced within forty five (45) days of the date of the invoice (or in the timeframe as otherwise specified in the invoice).
Any dispute you may have with an invoice must be raised with us promptly and no later than forty five (45) days after the invoice date. After that time, you will be deemed to have accepted the full amount set out in the issued invoice and this amount will be due and payable by you in accordance with this Agreement.
10.6 Credit and your Account
All new advertisers are required to complete the Drive Commercial Credit Application
The availability of any credit facilities is subject to our approval and conditional upon the lodgment of a written application. Any credit provided will be on specific terms made available as part of the application process. Where no credit application has been approved, upfront payment may be required for all advertising. We may grant, deny or withdraw credit to you at any time in its discretion.
Where you fail to pay an account by the due date or fail to comply with any relevant terms and conditions, we may, at our absolute discretion, cancel or suspend any booked advertising or refuse to accept any further advertising from you.
10.7 Measurement of Advertising
We will measure advertising (including without limitation impressions delivered, clicks achieved, IVT, availability) through our advertising tracking systems. Results from third party ad-servers will not be accepted for the purposes of billing and assessment of advertising performance.
Statistics generated by us 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 Services. An “impression” is a single appearance of an advertisement on our Site resulting from that Site being accessed (Impression).
You acknowledge and agree that we make no representation or warranty with respect to the continuous accessibility or availability of the Drive Network or (subject to the terms of the Insertion Order) the number of Impressions, click throughs or like metrics. You acknowledge and accept that traffic levels to our Sites may fluctuate and we have not guaranteed to you any particular level of exposure of your Ad.
If the Insertion Order includes a number of Impressions per month on the Drive Network, we will use reasonable endeavours to supply that number of Impressions. If the number of Impressions set out in the Insertion Order is not supplied, provided that you are not in breach of this Agreement, we will provide additional impressions of the Ad in the subsequent month(s) in our absolute discretion as your sole remedy, except in the case of Advertiser SOV and Bonus Ads and in the case of sponsorship agreements that are time-based.
If we agree to provide Bonus Ads or Advertiser SOV to you in an Insertion Order:
(a) you acknowledge that Drive makes no representation or warranty with respect to the continuous accessibility or availability of the Drive Network or the number of Impressions, click throughs or like metrics as part of any Bonus Ad or Advertiser SOV;
(b) you understand and accept that traffic levels to our Sites may fluctuate and we do not guarantee to you any particular level of exposure as part of any Bonus Ad or Advertiser SOV; and
(c) if any set number of Impressions, click throughs or like metrics are not met (or percentage level in the case of Advertiser SOV), you acknowledge that Drive will not be under any obligation to refund, reimburse or credit your account or provide you with any residual number of Impressions and that you will not have any right of set-off against us for the payment of Fees to owing by you to us.
11. Approved Agencies
11.1 Commission Payments
Where you are an Approved Agency you will be entitled to receive a commission equal to ten per cent (10%) of the total amount of your monthly invoiced Fees after deductions for GST and any production-related costs (including custom creative builds). Our payment of any commission is conditional upon the following:
(a) you must fully disclose to your clients the amount of commission you receive from us;
(b) you must fully comply with this Agreement; and
(c) you must pay invoices in full within forty-five (45) days.
11.2 Status as an Approved Agency
You must supply us with any information we may reasonably request in support of your application to be registered as an Approved Agency including solvency statements, balance sheet and profit and loss statements and details of any insurance policies you hold. We may revoke your status as an Approved Agency at any time upon written notice without giving any reason.
11.3 Disclosure
You warrant to us that you have disclosed to your clients all benefits you may receive from us as a result of you being an Approved Agency.
12. Confidential Information
12.1 Each party must take all action reasonably necessary to maintain the confidentiality of the other party’s Confidential Information and not disclose the other party’s Confidential Information to any person except as permitted under clauses 12.2 and 12.3 below.
12.2 A party (“recipient”) may disclose the Confidential Information of the other party:
(i) to a representative of the recipient who needs to know the Confidential Information for the purposes of this Agreement and subject to the recipient taking reasonable steps to ensure that any such representative is fully aware of the confidential nature of the Confidential Information of the disclosing party before the disclosure is made; or
(ii) which is required or authorised to be disclosed by any law.
12.3 We may disclose and make available your Confidential Information to our Affiliates on the condition that we take reasonable steps to ensure that such Affiliates are made fully aware of the confidential nature of your Confidential Information before the disclosure is made. You consent to our Affiliates contacting you in connection with their provision to you of advertising, content integration, creative services and/or other products or services to you.
13. Indemnity & Liability
13.1 Indemnification
You indemnify us, each of our related bodies corporate and each entity to which we may syndicate Ads (Indemnified Parties) from and against all actions, claims, demands, losses, damages and/or liabilities that any Indemnified Party may suffer or incur arising in connection with:
(a) any claim made against us as a result of breach of your warranties in clause 8.1;
(b) any act or omission by you in connection with your Advertising Copy;
(c) allegations that your Ad contains materials which constitutes defamation, libel, slander, or title;
(d) allegations that your Ad infringes copyright, trademarks and/or breaches applicable trade practices/competition, privacy, and/or fair trading legislation;
13.2 Limitation of Liability
(a) Other than as expressly 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 Services provided by us under this Agreement are hereby excluded.
(b) Neither party is liable for any Indirect Loss incurred by them or by any other person arising out of or in connection with this Agreement.
(c) Our liability to you for any claims made under this Agreement (whether such liability arises in contract, tort (including negligence) or otherwise) is, to the fullest extent permitted by law, limited at our option to resupplying the Services or paying the cost of having the Services resupplied. If the Services are incapable of being resupplied, our liability to you for any claims made under this Agreement is limited to an amount equal to the Fees received by us from you for the Services the subject of the claim.
(d) Any amount claimed by you under this Agreement will be reduced proportionally to the extent that any loss, damage, liability, claim or expense is directly or indirectly caused, or contributed to, by you.
13.3 No responsibility for Advertising Copy
We are not liable for any aspect of the Advertising Copy including any products or services referred to in the Advertising Copy. You are solely responsible for the content of all Advertising Copy and associated products and services, including any ancillary competitions and promotions.
13.4 Complaints
If you wish to make a claim for a credit, republication or any other remedy in respect of our Services you must send the claim to us no less than fourteen (14) days after the Launch Date.
14. General
14.1 Applicable law
This Agreement is governed by the laws of New South Wales, Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New South Wales, Australia.
14.2 Notices
A notice must be in writing to the address of the addressee as stated in the Insertion Order and will be deemed to have been delivered on proof of receipt or 3 Business Days after it is sent, whichever is the earlier.
14.3 Public statements
You may not issue any press release or make other public statement in relation to this Agreement or the relationship established by this Agreement without our prior written consent. We may, however, make informational references to your participation in the Drive Network in press releases without obtaining your consent.
14.4 No Agency
This Agreement will not create a joint venture, legal partnership, employment or agency relationship between you and us.
14.5 Assignment
Neither party may transfer or assign this Agreement without the other party’s prior written consent (not to be unreasonably withheld) except that we may assign this Agreement to any of our Affiliates. We may also subcontract the performance of all or any part of the Services.
14.6 Force Majeure
Neither party will be liable for its failure to perform any of its obligations under this Agreement due to any matter beyond its reasonable control.
14.7 Provisions Severable
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 this Agreement.
14.8 Variation and Waiver
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.
14.9 Further Acts
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.
14.7 Privacy
You may not send us or our partners any personal information or data that can be used to identify or locate a natural person, or sensitive financial, medical or sexual data.
We may collect your personal information to provide the Services to you and for invoicing purposes. The collection, use or disclosure of any personal information provided to us by you in connection with your use of the Services is subject to the Drive Privacy Policy.
You agree to store and use all personal information which we may provide to you in accordance with the requirements of the Privacy Act 1988 (Cth), the Spam Act 2003 (Cth) and the Do Not Call Act 2006.
Last updated: 1 April 2021
