GRIZZLE DESIGN PTY LTD (ABN: 26 042 138 550) of PO Box 8018, North Road LPO, Brighton East VIC 3187 (“GD”)
*These Terms and Conditions are to be read in conjunction with and forms part of the above Advertising Agreement. Any capitalised terms used in these Terms & Conditions have the meaning set out in the Advertising Agreement.
1.1 The Advertiser hereby engages GD to provide advertising services in accordance with the Advertising Agreement, and GD accepts the engagement on these Terms & Conditions and subject to receiving the Fee in full (“Advertising Services”).
1.2 The Advertising Services shall include but is not limited to GD promoting the Advertiser’s business on advertisements on or in connection with GD’s publication (“Advertisement”).
2.1. The term of this Agreement shall commence on the date of this Agreement and will continue until the completion of the Advertising Services, unless or until terminated in accordance with these Terms & Conditions (“Term”).
3. ADVERTISEMENTS DESIGNED BY ADVERTISER
3.1. Unless otherwise agreed upon, the Advertiser is responsible for supplying all materials to be used on their Advertisement in accordance with the requirements stipulated by GD (including but not limited to supply deadlines, colour, quality, size, packaging and bundling).
3.2. The Advertiser’s failure to supply such materials in accordance with Clause 3.1. may result in the non-publication of their Advertisement; or GD, in its sole discretion, inserting one of the Advertiser’s past Advertisements (if any).
3.3 GD shall not be liable for any loss or damage that may result in the Advertiser’s delay or failure to supply materials under this Clause 3. For the avoidance of doubt, the Advertiser is not entitled to any refund of the Fees (in whole or in part) for such delay or failure.
3.4. GD has the right to dispose of any materials supplied to GD relating to an Advertisement after its publication, and GD is under no obligation to retain or return any materials thereafter.
4. ADVERTISEMENTS DESIGNED BY GD
4.1. All Advertisements created by GD are solely owned by GD (including copyright) in accordance with Clause 11.
4.2. Where GD is creating the Advertiser’s Advertisement, the Advertiser shall be provided with a low-resolution electronic proof of their Advertisement for approval. The Advertiser shall then be entitled to two (2) rounds of reasonable revisions of the initial proof, after which, any additional revisions requested by the Advertiser shall be subject to a fee charged at AUD$75.00 per hour.
4.3. To the fullest extent permitted by law, GD does not guarantee that any proofs under this Clause 4 shall be an accurate representation of the final Advertisement published.
5. GD’S RIGHTS & DISCRETION
5.1. All Advertisements are subject to GD’s prior approval, and GD, in its sole discretion, reserves the right at any time (without giving reason) to:
(a) Refuse to publish or distribute any Advertisement; and/or
(b) Suspend, cease and/or withdraw any Advertisement (whether published or not).
5.2. In the event of a refusal and/or cancellation under Clause 5.1, the Advertiser is entitled to a refund of the Fee (in whole or in part).
5.3. GD reserves the right to make minor amendments (e.g., formatting, size, cropping) to the Advertisement without obtaining the Advertiser’s prior approval. For the avoidance of doubt, the Advertiser is not entitled to any review, approval or amendment to the final Advertisement published.
5.4. The positioning and final layout of an Advertisement shall be at the sole discretion of GD and/or in accordance with the Advertising Agreement.
5.5. The Advertiser authorises GD to add links and/or content to the Advertisement as GD may deem appropriate or necessary for the purposes of delivering the Advertising Services, and the Advertiser agrees that GD is not responsible for any loss or damage that may arise from such additions.
5.6. GD reserves the right (and the right to permit others) to reproduce, republish and distribute the Advertisement on all media throughout the World.
5.7. It is the Advertiser’s responsibility to notify GD of any error in materials provided or its published Advertisement. Upon such notice, GD will use its reasonable efforts (but is under no obligation) to remedy such error.
6. EXCLUSIVE ADVERTISING AGREEMENTS
6.1. Certain Advertising Agreements shall offer GD’s Advertising Services in specific categories exclusively to the Advertiser (“Exclusive Agreements”). Exclusive Agreements shall be limited to the terms of that relevant Exclusive Agreement.
6.2. GD will use its best efforts to maintain exclusivity in connection with an Exclusive Agreement, however the Advertiser agrees that GD’s platform is largely automated in digital advertising and therefore cannot guarantee 100% exclusivity at all times.
6.3. Although Exclusive Agreements are generally offered to one business per category, the Advertiser is able to enter into non-Exclusive Agreements with GD at the same time.
7. FEE & PAYMENT TERMS
7.1. In consideration of the Advertising Services provided by GD to the Advertiser under this Agreement, the Advertiser agrees to pay GD the Fee set out in Advertising Agreement.
7.2. GD shall provide the Advertiser with an invoice for the Fee, and the Advertiser shall pay the Fee upon receiving such invoice via direct debit or credit card payment.
7.3. GD is not responsible for any payments processed (or not processed).
7.4. GD, in its sole discretion, may change the method of Fee payment and will give reasonable notice to the Advertiser of such change.
7.5. In the event that GD does not receive the Fee in full and on time, GD may, in its sole discretion, charge a reasonable penalty fee and suspend all Advertising Services under this Agreement until the Fee is received.
8.1.In the event that GD has applied a discount to the Fee for a series of Advertisements across consecutive issues of GD’s publication and such Advertisements are not published due to the Advertiser’s failure to fulfil its obligations:
(a) The discount shall be removed and the Fee shall be accordingly adjusted; and
(b) The Advertiser may be required to pay an additional penalty fee as determined by GD in its sole discretion.
9.1. A request to cancel a Partnership Advertising Agreement must be made within 30 days prior to GD’s next publication in accordance with the Advertising Agreement. If GD accepts such request, the Advertiser shall be liable to pay 50% of the Fee with respect to any unused Advertising Services.
9.2. A request to cancel a Standard Advertising Agreement must be made one (1) month prior to the relevant publication date set out in the Advertising Agreement.
9.3. Where such cancellation requests are made outside of the timeframe set out in this Clause 9, the Advertiser shall be liable to pay 100% of the Fee and GD shall be under no obligation to complete the Advertising Services under this Agreement.
10. LIMITATION OF LIABILITY
10.1. The Advertiser accepts that GD’s provision of the Advertising Services may be based on factors which are outside the direct control of GD. GD is not responsible for any loss or damage that may arise from such factors, including but not limited to:
(a) Changes to unknown variables, algorithms and decisions of third party search engines;
(b) Variations of an Advertisement (e.g., colour, quality, format and placement) resulting from operating systems, platforms or other systems outside of GD’s control;
(c) Any unnatural or defective link connected with the Advertisement; or
(d) Any slow or blacklisted server in connection with GD’s website or other platforms.
11. INTELLECTUAL PROPERTY & COPYRIGHT
11.1. “Advertiser Content” for the purposes of this Agreement includes but is not limited to images, photographs, text, graphics, logos, icons, images, sound clips, video clips, data compilations, page layouts, underlying code, software and/or other intellectual property provided by the Advertiser to GD in connection with this Agreement.
11.2. The Advertiser grants GD the irrevocable, non-exclusive right to use the Advertiser Content for the purposes of this Agreement during the Term throughout the World. For the avoidance of doubt, the Advertiser will retain ownership of all Advertiser Content.
11.3. The Advertiser hereby warrants that:
(a) The Advertiser owns, holds and/or is licenced the intellectually property rights in the Advertiser Content;
(b) GD’s use of the Advertiser Content does not infringe any intellectual property rights of a third party;
(c) The Advertiser Content is not fraudulent, stolen, or otherwise unlawful; and
(d) The Advertiser Content does not contain viruses or other computer codes, files or programs which are designed to limit or destroy the functionality of any other computer software or hardware.
11.4. Except for third party data (including Advertiser Content) or otherwise stated, GD owns and retains all copyright and other intellectual property rights in relation to any Advertisements created by GD or any materials provided by GD for use in an Advertisement. For the avoidance of doubt, the Advertiser obtains no rights in relation to those Advertisements (in whole or in part) produced by GD (“GD Materials”).
11.5. All rights are reserved. GD Materials shall not be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without the prior written consent of GD.
12. CONFIDENTIAL INFORMATION
12.1. Each party must not, without the prior written consent of the other, use or disclose the other party’s Confidential Information unless expressly permitted by this Agreement or required to do so by law.
12.2. Each party may:
(a) Use the Confidential Information of the other party solely for the purposes of complying with its obligations and exercising its rights under this Agreement; and
(b) Disclose the Confidential Information to its employees, agents or advisors to the extent necessary for them to know the information for the purposes related to this Agreement but only if reasonable steps are taken to ensure that the confidentiality of the information is retained.
12.3. For the purpose of this Clause 12, “Confidential Information” means any information relating to the terms of this Agreement, technical or commercial know-how, specifications, inventions, processes, initiatives or any other information whether in writing or, to which a party gains access to, which the other party has advised as being confidential.
13.1. The Advertiser indemnifies GD (and its directors, employees and agents) against any claim, loss, damage, suit, action, proceedings, costs or expenses (including legal costs) of any nature whatsoever made against GD or which GD may suffer or incur by reason of any breach or alleged breach of this Agreement, with such indemnity being without prejudice to any other right or remedy of either party in respect of such breach.
13.2. Without limiting Clause 13.1, the Advertiser is solely responsible for the content on their Advertisement and indemnifies GD against any claim brought in relation to the Advertiser’s Advertisement including but not limited to intellectual property infringement; defamation; breach of legislation (including trade practices, privacy, competition or fair trading); and/or violation of any confidential information or privacy rights.
14. NO WARRANTIES & RELEASE
14.1. In providing the Advertising Services, GD makes no guarantee for any specific result or increase in business sales, activity or other benefit.
14.2. To the fullest extent permitted by law, GD excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in this Agreement. For the avoidance of doubt, GD does not warrant or make any representations concerning the quality, likely results, or accuracy in connection with the Advertising Services. This Agreement is to be read subject to any legislation, which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions or obligations.
14.3 GD is not liable for any consequential loss, loss of profit (actual or anticipated) or for other damages of any kind, however caused or arising in any way out of or in connection with the Advertising Services, including but not limited to any loss or damage arising from any Advertiser Content provided to GD or errors in the Advertiser’s Advertisements.
15. BREACH & TERMINATION
15.1. The Advertiser commits an “Event of Default” if it:
(a) Fails to pay the Fee in accordance with Clause 7;
(b) Contravenes any obligations or warranties pursuant to the terms of this Agreement;
(c) Commits any act of dishonesty, fraud, wilful disobedience, or gross misconduct;
(d) Or its Business is no longer an entity, brand and/or business that GD, in its sole discretion, is willing to feature in connection with GD’s publications;
(e) Becomes bankrupt or suffers an insolvency event;
(f) Fails to act in a professional manner; or
(g) Disparages GD or its publications on social media, forums, reviews or websites.
15.2. GD may terminate this Agreement if the Advertiser commits an Event of Default and fails the same within seven (7) days of receipt of written notice from GD. Any termination by GD pursuant to this Clause shall not prejudice any other rights or remedies GD may have in respect of any Event of Default or breach of this Agreement.
15.3. Upon termination of this Agreement, the Advertiser is still liable to pay GD any Fees that would otherwise be payable during the Term.
16.1. Each person signing this Agreement warrants to the other that they have the right and authority to enter into this Agreement, including where the Advertiser acts as an agent in selling advertising inventory for the Advertiser.
16.2. Neither party shall be liable for any non-performance or delay in performance hereunder which shall be caused by circumstances beyond the reasonable control of such party provided that any party whose performance is prevented or impeded by such circumstances shall promptly provide written notice with reasonable particulars to the other party, including the estimated duration of the delay in performance.
16.3. This Agreement may only be varied in writing signed by both parties.
16.4. A waiver by one party of another party’s default under this Agreement will not constitute a release of the defaulting party’s obligation to observe and perform all of its obligations under this Agreement in the future.
16.5. This Agreement embodies the entire agreement and understanding between the parties concerning its subject matter and succeed and cancel all other agreements and understandings concerning the subject matter of this Agreement.
16.6. The Advertiser must not transfer or assign its rights or obligations under this Agreement to a third party without first obtaining GD’s prior written consent.
16.7. This Agreement may be executed in two or more counterparts each of which will be deemed an original, but all of which will constitute one and the same document.
16.8. This Agreement is to be governed by and construed in accordance with the laws of the State of Victoria, Australia. Each party irrevocably submits to the non-executive jurisdiction of the courts of that State, with respect to any proceedings which may be brought at any time relating to this Agreement.