Terms & Conditions
BETWEEN New Homes Guide Pty Ltd and all its subsidiaries (“Publisher”) and The Party described as the Advertiser on the Booking Form (“Advertiser”) (each a Party, collectively the Parties).
BACKGROUND
1. The Website (newhomesguide.com.au) and all marketing services delivered using Associated Platforms and Channels, provides a forum for builders and developers of new homes, apartments, land estates and building suppliers to advertise their products and services to potential customers.
2. The Publisher owns, operates and controls the Website.
3. The Advertiser wants to list and advertise their new home designs and/or building products and/or services on the Publisher’s Website and Associated Platforms and Channels.
4. The Publisher agrees to render the Services and publish the Advertiser’s product listing/s and advertisement/s on the Website, and Associated Platforms and Channels, on the terms and conditions of this Agreement.
1. DEFINITIONS
“Additional Services” means Services or tasks not set out in the initial booking form which the Advertiser requests from the Publisher after the Agreement date.
“Advertiser” means the Party described as the Advertiser in the Booking Confirmation form;
“Advertisement” means any advertisement or marketing content published by the Publisher on behalf of the Advertiser;
“Advertising Materials” means any artwork, copy, or active URLs for Advertisements and content provided by the Advertiser to the Publisher;
“Agreement” means this Advertiser Agreement, the Booking Form, Website Terms of Use and any document expressly incorporated into the agreement pursuant to clause 2 of this Agreement;
“Associated Platforms and Channels” means other websites, social media and digital marketing platforms and channels employed by the Publisher for the delivery of the agreed services;
“Booking Form” means the form located at the front of this Agreement containing name, address and contact details of the Advertiser, the type of advertisement ordered and payment details;
“Change Submission” has the meaning set out in clause 5.4.
“Commencement Date” means the date of acceptance in writing by the Publisher of the Advertiser’s Booking Form;
“Confidential Information” means all financial, technical, marketing,commercial, research and other information of or disclosed by that Party, in a material form or otherwise, which is Confidential or is designated by the Advertiser as Confidential or which a reasonable person would treat as Confidential including in the Publisher’s case all information relevant to its Intellectual Property Rights; and includes any copies, reproductions or records of or based on that information;
“Contract IPR” refers to New Contract Material which is not otherwise defined.New Contract Material and any IPR created in relation to this Agreement;
“Dispute” has the meaning set out in clause 12.1.
“Existing Material” means any Publisher material or information that existed prior to the date of this Agreement;
“Fees” means the money to be paid by the Advertiser to the Publisher for providing Services under this Agreement;
“GST” means any goods and services tax imposed by the A New System (Goods and Services Tax) Act 1999 as amended from time to time and any associated legislation;
“Intellectual Property Rights” or “IPRs” means all intellectual and industrial property rights, including rights protected or recognised under copyright, patent (including standard, innovation or petty patent or utility models), design and registered design, trade mark, service mark,Confidentiality, trade secret, database or any similar laws;
“Losses” means actions, claims, liabilities, expenses, damages and costs (including but not limited to legal costs on a full indemnity basis, whether incurred by or awarded against a Party) and consequential and indirect losses and damages including those arising out of any third party claim;
“Minimum Term” has the meaning set out in clause 3.2, namely 12 months.
“Package” means a group of Services selected by the Advertiser in the Booking Form.
“Party” means the Advertiser or the Publisher and Parties means both.
“Publisher” means New Homes Guide Pty Ltd(ACN 641 248 615) and all its subsidiaries;
“Services” means advertising and marketing services for new home builders, developers and associated businesses to showcase their goods and services on the website itself, and utilising additional marketing channels and platforms as deemed appropriate and provided by the Publisher;
“Website” means the newhomesguide.com.au website;
“Website Terms of Use” means the terms of use for the Website from time to time available at the Website URL.
2. OUR AGREEMENT WITH YOU
2.1. The terms and conditions form the basis of the Agreement between the parties and specifically incorporate any terms specified in the Booking Form and/or any attachment to it that is expressly incorporated in writing as well as the Website Terms of Use. The Agreement between the Advertiser and the Publisher will be binding immediately upon the Advertiser providing the Publisher with instructions, written or otherwise, to commence Services. No other terms or conditions apply to this Agreement under any circumstances except where the Publisher first provides its agreement in writing. In the event of inconsistency between the documents forming the Agreement, these terms and conditions will take precedence.
2.2. No amendments to this Agreement will be binding on the Parties unless approved in writing by the Publisher and the Advertiser.
2.3. The Agreement includes the Booking Form which the Advertiser must complete and provide to the Publisher. The Publisher may accept and rely on a digital copy of the Booking Form as if it was an original. The Advertiser will be bound by a digital copy of the Booking Form as if it was an original. Failure to provide the completed Booking Form will not affect the Advertiser’s obligations under the Agreement.
3. TERM
3.1. This Agreement will commence on the Commencement Date and continue for the Minimum Term specified for each Package, Custom Option or Service unless earlier terminated in accordance with this Agreement. The Publisher will accept or decline the Advertiser’s Booking Form, and notify the Advertiser of the outcome, within a reasonable time following receipt. After the Minimum Term, subject to clause 13, the Agreement will continue on a month-to-month basis, paid monthly in advance, until the Publisher receives a request from the Advertiser for cancellation. All requests for cancellation must be given in writing to the Publisher with 30 days’ notice.
3.2. Subject to clause 13, the minimum term of this Agreement is 12 months from the Agreement’s Commencement Date. This agreement will continue on a month-to-month basis after the expiration of the minimum term until cancellation has been provided by either party. Written cancellation of this agreement must be 30 days’ notice. Agreement of the Parties.
4. SERVICES
4.1. The Publisher will provide the Advertiser with the Services as specified in the Booking Form and selected by the Advertiser.
4.2. From time to time during the term of this Agreement, the Advertiser may request the Publisher to provide Additional Services by furnishing the Publisher with a request specifying the details of the Additional Services to be performed.
4.3. The Parties agree that any such request for Additional Services:
(a) does not expressly or impliedly confer upon the Publisher any obligation to perform those services until such time as the Publisher agrees to perform the Additional Services; must include sufficient detail so as to allow the Publisher to accurately determine the nature, scope and costs of providing the Additional Services; and
(b) must be responded to in writing by the Publisher within 14 days of receiving the same with such response being a quotation for the Additional Services, a request for further and better particulars of the Additional Services, or an acceptance or declination to perform the Additional Services.
4.4. On receipt of a request from the Advertiser, the Publisher must notify the Advertiser within a reasonable time whether it accepts or declines the Advertiser’s request for Additional Services. The Advertiser will be bound to the Additional Services upon acceptance by the Publisher. Failure to provide the information or response under clause 4.3 shall not affect the Advertiser’s liability under this clause 4.4.
4.5. The Publisher will use its best efforts to Provide the Services and options in a professional and timely manner. In no case will the Publisher be liable for any failure to provide the Services in accordance with the Booking Form. The Advertiser’s sole remedy in such case is a prorated refund of the Fees which it has already paid.
5. ADVERTISEMENT MATERIALS
5.1. The Publisher will make up to two attempts to contact the Advertiser for the purpose of requesting the submission of content from the Advertiser, that the Publisher requires to deliver the Services. Should the Advertiser fail to supply the requested content, the Publisher reserves the right to source and publish content on behalf of the Advertiser. This content will be based on “Existing Material” previously published by the Advertiser. The Publisher may make modifications to the “Existing Material” to make it suitable for the required application.
5.2. The Publisher will provide the Advertiser draft Advertising Materials for review. The Advertiser may, within 2 business days of receipt, request revisions (including deletions or additions) to the Advertising Material by giving notice to the Publisher of:
(a) the proposed revisions to the draft Advertising Material; and
(b) an explanation of the proposed revisions.
5.3. The Publisher must review within a reasonable time each request submitted under clause 5.1 and notify the Advertiser whether the Publisher is willing to perform the revisions. If the Publisher is willing to perform the revisions, it must prepare and submit to the Advertiser at the Publisher’s cost, a written submission including:
(a) proposed revisions to the Advertising Materials; and
(b) any additional amounts or Fees to be paid under this Agreement.Where no revision is requested within the specified time period, the Advertiser is deemed to have accepted the Advertising Materials as provided.
5.4. Where at any time the Publisher considers that it is in the Advertiser’s best interests to introduce changes to the Advertising Material, the Publisher
may prepare and submit to the Advertiser at the Publisher’s cost, a written submission for proposed improvements to the Advertising Materials including additional amounts or Fees to be paid under this Agreement (“Change Submission”).
5.5. If the Advertiser notifies the Publisher that it accepts a Change Submission under clause 5.4, the Advertiser bound by the Change Submission which will vary and form part of this Agreement.
5.6. The Advertiser indemnifies and will keep indemnified the Publisher against all Losses claimed by any party including third parties in any way related to the publication or any use of Advertising Materials, content or other material.
6. USE OF SERVICES
6.1. The Advertiser agrees and warrant in relation to any Advertising Material provided by it to the Publisher for use that:
(a) the Advertiser is the owner of any copyright or other Intellectual Property Right in the material and/or the Advertiser has all necessary licenses to use any third party copyright or other intellectual property included or reproduced or adapted in your material (including, without limitation, any moral right or performer’s right, trade mark, trade insignia or slogan);
(b) The Publisher’s use of the Advertising Material will not infringe the IPRs of any person.
(c) The Advertising Material does not infringe any state or federal statute or regulation or compulsory or voluntary industry code of conduct, including without limitation, the Competition and Consumer Act 2010 (Cth), the Privacy Act 1988 (Cth), any act or regulation dealing with defamation, indecency, censorship, advertising standards or self-regulation;
(d) The Advertising Material shall not include any defamatory,libellous, indecent, pornographic, offensive, threatening, false or disparaging content;
(e) The Advertising Material shall not promote or encourage piracy, counterfeiting, plagiarism, unfair competition or idea misappropriation.The Advertiser indemnifies the Publisher against any Losses in any way related to a breach of this clause 6.1 or any IPRs. Any breach of this clause will be deemed a material breach of the Agreement incapable of remedy.
6.2. The Advertiser acknowledges the Publisher may, in its absolute discretion, refuse to display any advertisement and may remove any advertisement if any material contained in the advertisement may amount to a contravention of clause 6.1 hereof, is inconsistent with the Publisher’s editorial or advertising policy from time to time or for any other reason.
6.3. The Advertiser agrees that it is responsible for the provision of all information and images and is responsible for the quality and accuracy of the same. The Advertiser agrees it will indemnify and hold the Publisher, including its officers, employees and agents, harmless for any errors or omissions of the Publisher whether caused by negligence or otherwise and whether or not the Publisher was aware or should have been aware of the possibility of such loss or damage.
6.4. Any complaints received regarding false or misleading products, prices, packaging or availability may be investigated and may be removed by the Publisher at its discretion but contractual terms still apply.
7. INDEMNITY AND INSURANCE
7.1. The Advertiser indemnifies the Publisher, including its officers, employees and agents, against all Losses it directly or indirectly sustains or incurs as a result of:
(a) any negligent, unlawful or wilful act or omission of the Advertiser or the Advertiser’s officers, employees and agents;
(b) any infringement of the IPRs or moral rights of a third party arising out of the provision or use of the content or information related to the Advertising Material;
(c) any negligent acts or omissions of any subcontractor engaged by the Advertiser, except to the extent that any negligent act or omission of the Publisher materially contributed to the relevant liability.
7.2. The Advertiser shall procure and maintain through the term of the Agreement the insurance to a level commensurate with the insurance obligations of the Advertiser under the Agreement. Such insurance shall include public liability in an amount not less than $10,000,000 together with professional indemnity cover of not less than $5,000,000 where the Advertiser provides any services which may be covered by such policy. The Advertiser must provide Certificates of Currency of the requisite insurances if requested by the Publisher.
8. INTELLECTUAL PROPERTY RIGHTS AND
CONFIDENTIAL INFORMATION
8.1. The Parties agree that all Contract IPR will be owned by The Publisher.
8.2. Notwithstanding any other provision of this Agreement, the Publisher retains ownership of its IPR’s in any Existing Material.
8.3. Each Party must keep any Confidential Information disclosed to it Confidential and must not deal with it in any way that may prejudice
its Confidentiality. These obligations survive termination or expiry of the Agreement, but do not extend to disclosures to a Party’s officers or employees:
(a) who have a need to know for the purposes of the Agreement (but only to the extent that each has a need to know); and
(b) before disclosure, have been directed by the Party to keep that Confidential Information Confidential.
9. FEES AND PAYMENT
9.1. The Advertiser agrees during the term of this Agreement:
(a) to pay the Publisher the Fees for the Services the Publisher provides to the Advertiser at the Publisher’s current prices as specified in the Booking Form;
(b) to pay the full amount of any GST and other taxes payable on the Fees as set out in the invoice. The Publisher’s Fees are exclusive of any relevant taxes;
(c) to pay invoices within the period set out in the Booking Confirmation or, if no such period is specified, prior to any Service being provided. The Publisher may at its sole discretion require payment in advance of the display of Advertising Material; and
(d) to pay all legal or other costs the Publisher may incur in recovering payment or enforcing any of the rights of the Publisher, on a full indemnity basis.
9.2. If the Advertiser disputes an amount in the invoice, the Advertiser will follow the dispute resolution procedure set out in clause 12 of this Agreement.
9.3. If the Advertiser does not pay the invoice by the Due Date, the Publisher may charge an administration fee of $15 per month or part thereof on the outstanding amount of the invoice together with interest at the rate of 15% per annum calculated daily on all overdue amounts. The Publisher may also suspend or terminate all or part of the Services pending payment of outstanding amounts on the account. Nothing in this clause affects the Publisher’s rights to terminate this Agreement under clause 13. Suspension or termination under this clause 9.3 does not affect the Advertiser’s liability to pay the Fees for suspended or terminated Services.
9.4. If for reasons beyond the Publisher’s control the server hosting the Website on which the Advertiser’s Advertisement is displayed is down, or the Website is unviewable for a period of 24 hours or more, the Advertiser will be credited Fees already paid on a pro rata on a daily rate basis.
9.5. The Publisher may vary the Fees at any time following expiry of the Minimum Term by 30 days notice to the Advertiser.
10. LIABILITY
10.1. The Advertiser acknowledges and agrees the Publisher, including its officers, employees and agents, is not liable pursuant to this Agreement, or otherwise in law for any direct, indirect, special, economic or consequential loss or damage suffered or incurred by the Advertiser whether caused by negligence or otherwise and whether or not the Publisher was aware or should have been aware of the possibility of such loss or damage.
10.2. To the extent permitted by law, all other representations, conditions orwarranties, whether based in statute, common law or otherwise from the Publisher to the Advertiser, are hereby excluded. Liability of the Publisher for any breach of a term or condition implied by law is limited, at the Publisher’s option, to the resupply of the Service. This clause does not derogate from or diminish the rights of the Advertiser under the Australian Consumer Law or any other applicable legislation and shall be read down accordingly.
11. PRIVACY
11.1. The Publisher is bound by the Privacy Act 1988 (Cth) and the Australian Privacy Principles in respect of all data, information, content and materials submitted by you. The Publisher warrants that it will take reasonable steps to keep the Advertiser’s Personal Information secure and not disclose it to a third party except as outlined in this Agreement, in the Privacy Policy or as required by law.
11.2. The Privacy Policy forms part of this Agreement. By agreeing to this Agreement, the Advertiser acknowledges that it has read and understood our privacy policy available on the Website with full details.
12. DISPUTE RESOLUTION
12.1. The parties intend that any dispute, controversy or claim arising out of or relating to this Agreement, its subject matter, or the breach, termination or invalidity of this Agreement (Dispute) will be dealt with in accordance with this clause.
12.2. If a Party believes that a Dispute has arisen, it must promptly provide any other Party with a written notice setting out material details of the Dispute including dates, evidence and a proposed resolution.
12.3. The parties must not begin court proceedings in relation to a Dispute until they have followed in good faith the alternative dispute resolution procedures set out in this clause.
12.4. On receipt of a notice of Dispute, the parties must use their best efforts, in good faith, to resolve the Dispute by negotiation and must include in those negotiations a director, officer or senior manager with full authority to settle the dispute, being someone with no direct involvement in the circumstances leading up to the dispute.
12.5. If the Dispute is not resolved by negotiation within 21 days (or longer period agreed by the parties), the parties must refer the dispute for mediation conducted via the Office of the Victorian Small Business Commissioner (www.vsbc.vic.gov.au) for mediation in accord with its then current rules for mediation. The costs of the mediator will be shared equally by the parties.
12.6. If the Dispute is not resolved by mediation within 21 days (or longer period agreed by the parties), a Party may give written notice terminating the mediation and may commence proceedings to resolve the Dispute in a court of competent jurisdiction.
12.7. Nothing in this clause prevents a Party from seeking urgent interim or interlocutory relief in a court or tribunal that has jurisdiction to grant that relief.
12.8. Each Party:
(a) must treat information disclosed to it by any other Party during the Dispute resolution process as Confidential and must only use that information for the purpose of resolving or attempting to resolve the Dispute; and
(b) is responsible for its own costs of participating in this Dispute resolution process.
13. TERMINATION
13.1. This Agreement may be immediately terminated by written notice at any time if, without prior written consent:
(a) either Party breaches any term or condition of this Agreement and such breach is not remedied within a reasonable time not being less than 14 days required by the non-breaching Party;
(b) commits a breach of the Agreement which is incapable of remedy;
(c) either Party ceases to carry on business;
(d) there is a material change in either Party’s direct or indirect ownership or control;
(e) the Advertiser commits any act which may bring the Publisher into disrepute or negatively affect the Publisher’s business in any way. This clause 13.1 e. may only be invoked by the Publisher.
13.2. Either Party may terminate this Agreement without cause following the expiry of the Minimum Term by providing 30 day written notice to the other Party.
13.3. Upon termination of this Agreement, the Advertiser will immediately cease all use of any Advertising Material, Existing Material or other Publisher material or IPR’s. The Publisher may approve such ongoing use in writing at its sole discretion.
13.4. Termination of this Agreement does not affect the accrued rights and remedies of either Party.
14. GST
Defined terms in this clause 14 have an equivalent meaning to those in the A New System (Goods and Services Tax) Act 1999.
14.1. If GST is payable on a Taxable Supply made under, by reference to or in connection with this Agreement, the Party providing the Consideration for that Taxable Supply must also pay the GST Amount as additional Consideration. This clause does not apply to the extent that the Consideration for the Taxable Supply is expressly agreed to be GST inclusive.
14.2. No payment of any amount pursuant to Clause 14.1, and no payment of the GST Amount where the Consideration for a Taxable Supply is expressly agreed to be GST inclusive, is required until the Publisher has provided a Tax Invoice or Adjustment Note as the case may be to the recipient.
14.3. Any reference in the calculation of Consideration or of any indemnity, reimbursement or similar amount to a cost, expense or other liability incurred by a Party, must exclude the amount of any Input Tax Credit entitlement of that Party in relation to the relevant cost, expense or other liability.
15. GENERAL
15.1. The Publisher may alter these terms and conditions at any time by notice in writing to the Advertiser.
15.2. The Advertiser acknowledges that the advertising rates, the Fees, trading terms and conditions and all other negotiated benefits are Confidential between the Publisher and the Advertiser and that they may not be disclosed by the Advertiser to any third party person or company and may only be disclosed to employees on a need to know basis.
15.3. If the Publisher is unable to carry out any of the negotiated obligations under this Agreement by reason of any cause beyond the control of the Publisher, performance of that obligation is suspended.
15.4. The Advertiser acknowledges that there will be no Advertiser sponsorship, pop up or peripheral advertising published on the Website.
15.5. A Party (“Affected Party”) is not liable for any failure or delay in the performance of this Agreement to the extent that the failure or delay is caused by circumstances beyond its reasonable control (including natural disasters, riots, strikes and wars), provided that the other Party is promptly notified of those circumstances and immediate steps are taken by the Affected Party to mitigate the negative impact of those circumstances. If the circumstances continue for longer than 30 days the unaffected Party may terminate this Agreement by giving 30-days notice to the other Party.
15.6. The Agreement is governed by the law in force in Australia and the State of Victoria and the Parties agree to submit to the exclusive jurisdiction of the courts of Victoria.
15.7. The obligations of the Parties under the Agreement, which by their naturewould continue beyond the termination, cancellation or expiration of the Agreement, shall survive termination, cancellation or expiration of the Agreement.
15.8. Except as expressly permitted in the Agreement, neither Party shall hold itself as being:
(a) servant, partner or agent of the other Party; or
(b) authorised to enter into any contract on behalf of the other Party.
15.9. Waiver of any breach or non-performance of this Agreement will only be effective if it is written and signed by the Party giving the waiver, and only to the extent specified.
15.10. Any notice to be given under or in connection with this Agreement must be given in writing, in English, and posted, hand delivered or emailed to the intended recipient at the address or number specified in this Agreement (or any new address or number properly notified). Notices given in this way will be deemed received five (5) business days after posting (if posted), on delivery (if hand delivered during Business Hours), or on the earlier of the date when the sender’s email system receives a ‘message received’ confirmation from the intended recipient or 1 business day after the email was sent to the correct email address (if emailed).