TERMS AND CONDITIONS OF ADVERTISING SPACE CONTRACT
1. This agreement is made between Australian Billboard Company Pty. Ltd. A.C.N. 055 925 221 of Level 2, 9 Seabank Lane Southport, Queensland trading as ABsee media ("ABsee media") and the Advertiser/Agency described in the Contract.
2. In consideration of payment of the Rental set out in the Contract by the Advertiser/Agency ABsee media will display the advertising Material ("Material") for the Term at the Site(s) described in the Contract and Annexure B. This agreement is for the provision of advertising space and if indicated in the Contract the production of Material.
3. ABsee media will maintain the Material in good order throughout the Term (subject to sub-clause 5(b). If the Advertiser/Agency becomes aware that the Material has not been displayed or has been damaged, the Advertiser/Agency must notify ABsee media in writing of those circumstances.
4. Lead times
4.1 If it is indicated in the Contract that it is intended that ABsee media will carry out production in respect of the Material.
(a)ABsee media will make a proposal to the Advertiser/Agency regarding such production when, if accepted by the Advertiser/Agency, will constitute an agreement between ABsee media and the Advertiser/Agency for ABsee media to carry out such production in accordance with such proposal, any signed Contract, Annexure A and the attached Annexure B.
(b)If ABsee media is engaged to provide production, the Advertiser/Agency must at least 14 working days before the commencement of the display period, provide ABsee media with a copy of the artwork for the Material, at such address as ABsee media may direct, which is to scale and supplied as finished reflection or electronic art and which is, in ABsee media’s opinion, in compliance with the Contract and Annexures, suitable for display and of a nature which will be approved by any Authority whose approval is required.
(c)If ABsee media is engaged to provide production, the production services will be provided on ABsee media’s standard terms and conditions for supply of production services from time to time and the Advertiser/Agency will, if required by ABsee media, execute ABsee media’s standard production agreement in respect of such production. ABsee media may subcontract such production. ABsee media may receive and retain any commission paid to ABsee media by any third party production company in respect of such production or may charge the Advertiser/Agency a fee for production comprising the third party production company’s fees, plus ABsee media’s standard administration fee from time to time.
4.2 If it is specified in the Contract that the Advertiser/Agency will carry out it’s own production, the Advertiser/ Agency must provide ABsee media with the Material at least 5 working days before the commencement of the display period at such address as ABsee media may direct, which is, in ABsee media’s opinion, in compliance with this Contract and Annexures, suitable for display, of a nature which will be approved by any Authority whose approval is required and in compliance with ABsee media’s materials specifications from time to time.
4.3 To facilitate the efficient delivery of production services to the Advertiser/Agency, the Advertiser/Agency consents to ABsee media’s disclosure of information relating to the Advertiser/Agency’s production requirements to third party production entities, but the Advertiser/Agency may withdraw that consent by written notice to ABsee media.
5. The Advertiser/Agency:
(a) is liable for the Rental from the Commencement Date if it fails to provide the Material to ABsee media within the time specified in clause 4, notwithstanding that the Material may not be displayed at the Site from that date. The Advertiser/Agency will be responsible for any delays or other losses arising from the Advertiser’s/Agency’s failure to comply with the supply lead-time specified in clause 4 and will not be entitled to any extension of the display period or other compensation. ABsee media may impose additional installation fees in respect to Material not delivered in compliance with this clause and may also require reimbursement of additional costs incurred including storage, handling and delivery.
(b) will supply ABsee media with sufficient copies of the Material to enable ABsee media to maintain the displayed Material in good order. ABsee media will not be responsible for any failure to display the Material where such failure is caused by the Advertiser’s/Agency’s failure to comply with this clause.
(c) will not sell or otherwise assign its rights under this agreement without ABsee media's prior written consent.
(d) will subject to any special conditions, pay the Rental within 45 days of the date the invoice is able to be rendered, regardless of the actual date that the physical invoice is issued or received by the Advertiser/Agency. (Invoices are able to be rendered on or after the last day of the calendar month in which the Commencement Date falls, and each subsequent month thereafter). If the Advertiser/Agency breaches this provision and without prejudice to any other rights of ABsee media arising from the default the Advertiser/Agency will pay interest on any amount in default at a rate of 15% per annum calculated daily from the date of default until payment is made.
(e) will ensure the Material complies with all laws and regulations affecting it and without limiting the generality of this clause, the Advertiser/Agency will ensure the Material complies with the provisions of the Trade Practices Act 1974 (Cwth), any similar State legislation, any requirements of the Gold Coast City Council and any similar legislation from time to time enacted. The Advertiser/Agency hereby indemnifies ABsee media and any Site owner or occupier from and against in respect of all actions, claims, damages and costs brought against or incurred by ABsee media and any Site owner or occupier which in any way arise out of or in connection with the Material, its display or its content.
(f) will keep this agreement and details of its terms confidential and not without ABsee media’s prior written consent disclose such information to a third party.
6. ABsee media will make every reasonable effort to display the Material in accordance with the requirements of the Advertiser/Agency as set out in this Annexure A but will also be entitled to:
(a) refuse to display Material it considers unsuitable (either physically or in content);
(b) relocate the Advertiser/Agency's Material to another Site provided such relocation is without cost to the Advertiser/Agency and ABsee media will give the Advertiser/Agency at least 7 days written notice of the proposed relocation. If the Advertiser/Agency objects in writing to the new location prior to the relocation ABsee media will provide the Advertiser/Agency with a selection of other available sites of similar value (if any) and the Advertiser/Agency may nominate an alternate Site from that selection. If the Advertiser/Agency forms the view that there is no other acceptable sites, it may at its option terminate the agreement, with respect to the Sites the subject of the relocation, by written notice to ABsee media;
(c) terminate this agreement without penalty if the right of ABsee media to display Material at the Site is terminated by the Site owner or occupier or by any Government, Gold Coast City Council or other authority or council provided that in such event ABsee media will refund any Rental paid in advance to the Advertiser/Agency on a “pro-rata” basis;
(d) terminate this agreement without penalty if the Site is damaged or destroyed and the Material is unable to be relocated in accordance with clause 6(b);
(e) terminate this agreement forthwith by notice in writing in the event of the liquidation, receivership, appointment of an official manager, or becoming an insolvent under administration (as defined in the Corporations Law) of the Advertiser/Agency or the non-payment of the Rental within 7 days of the due date for payment of same; and
(f) dispose of all Material 30 days after the end of the Term without liability to the Advertiser/Agency. The Advertiser/Agency may, prior to that date, collect such copies at it’s own expense.
7. If this agreement continues on after the Term without a further written agreement for a fixed term, it will be deemed to be continued on a fortnightly basis with either party being entitled to terminate the agreement at any time by giving 14 days notice in writing to the other party, and otherwise on the terms set out herein so far as applicable.
8. Unless prohibited by law, the liability of ABsee media for a breach of any condition or warranty in this agreement (other than those implied pursuant to Section 69 of the Trade Practices Act 1974) is limited to:
(a) the supplying of the services again or the payment of having the services supplied again; or
(b) where goods are produced and sold by ABsee media, the repair of the goods, the replacement of the goods or the supply of equivalent goods or payment of the cost of repairing or replacing the goods or the cost of acquiring equivalent goods
9. ABsee media is not liable for any failure or delay in the performance of this agreement where such failure or delay arises out of an act beyond the reasonable control of ABsee media. If for any reason beyond the reasonable control of ABsee media:
(a) it is unable to secure or retain tenure for all or some of the Sites, ABsee media may exclude the relevant sites and adjust the advertising rental accordingly or terminate this agreement on 14 days notice to the Advertiser/Agency and neither party will have any further obligation to the other in respect to the Site; and
(b) including where bad weather renders posting unsafe or impracticable, there is a delay in the posting of the Material by ABsee media, ABsee media will not be responsible for any such delay.
10. Subject to notification by the Advertiser/Agency pursuant to clause 3, where a posting delay is caused by ABsee media, then the Advertiser/Agency will be entitled to either a pro-rata abatement of charges or to a space credit against future displays.
11. The Advertiser/Agency acknowledges that the initial Advertising Rental has been negotiated exclusive of any allowances for a Goods and Services Tax or similar tax (“GST”). If a GST applies to this agreement because it is a taxable supply or for any other reason, the Advertiser/Agency must pay to ABsee media an additional amount on account of GST calculated by multiplying the consideration payable under this agreement by the prevailing GST rate.
12. Entire Understanding
This agreement:
(a).is the entire agreement and understanding between the parties on everything connected with the subject matter of this agreement;
(b).supersedes any prior agreement or understanding on anything connected with that subject matter; and
(c).each party has entered into this agreement without relying on any representation by any other party or any person purporting to represent that party.
13. Subject to the termination rights set out in clauses 6(c), 6(d), 6(e), 7 and 9, this agreement is not subject to cancellation and the Advertiser/Agency remains liable for payment for the Rental from the Commencement Date regardless of whether the Material is ready for posting by the supply lead-time specified in clause 4.
14. Governing Law and Jurisdiction
(a) The law of Queensland governs this agreement;
(b) The parties submit to the non-exclusive jurisdiction of the courts of Queensland and of the Conmmonwealth of Australia. |