MAMA GROUP PTY LTD (ABN: 26 042 138 550) of PO Box 8018, North Road LPO, Brighton East VIC 3187 (“MG”)
*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. These terms and conditions apply to the use of Advertising, Editorial, Content and any other Submissions (“Services”) to the MamaMag Magazine (“Magazine”), the MamaMag/MamaMap website (“the Site”) and the MamaMap mobile device application (“the App”) and the provision of Advertising, Editorial, Content and any other Submissions (“Content”). The Magazine, Site and App will be collectively referred to in these terms and conditions as Platforms (“Platforms”). In using our Platforms, you agree to be bound by these terms and conditions. If you do not accept these terms and conditions, please discontinue using the Platforms.
1.1 The Advertiser/Submitter (“Client”) hereby engages MG to provide Services in accordance with the Advertising Agreement, and MG accepts the engagement on these Terms & Conditions and subject to receiving the Fee in full (“Fee”).
1.2 The Services shall include but are not limited to MG promoting the Client’s business via advertisements, editorial and any other submissions/prizes (“Content”) in connection with MG’s Platforms.
2.1. The term of this Agreement shall commence on the date of this Agreement and will continue until the completion of the advertising campaign as outlined in the agreement, unless or until terminated in accordance with these Terms & Conditions (“Term”).
2.2. Editorial Submissions grant MG a non-exclusive, perpetual, irrevocable, royalty-free, worldwide licence to publish and communicate to the public any material you submit to us in any format, including without limitation print and electronic format.
3. CONTENT/INFORMATION SUPPLIED BY CLIENT
3.1. Unless otherwise agreed upon, the Client is responsible for supplying all required Content to be used for their Services in accordance with the requirements stipulated by MG (including but not limited to supply deadlines, colour, quality, size, word count, photos, video, business information).
3.2. The Client’s failure to supply such Content in accordance with Clause 3.1. may result in the non-publication of their Content; or MG, in its sole discretion, inserting previous content from the Client (if any).
3.3 MG shall not be liable for any loss or damage that may result in the Client’s delay or failure to supply Content under this Clause 3. For the avoidance of doubt, the Client is not entitled to any refund of the Fees (in whole or in part) for such delay or failure.
3.4. MG has the right to dispose of any Content supplied to MG relating to a Service after its publication, and MG is under no obligation to retain or return any Content thereafter.
3.5. By creating a MamaMap Member Account on the Website you agree:
3.5.1 That you will keep all your MamaMap listings as up to date as possible including accurate and up to date contact information and current photos
3.5.2 That you will at all times abide by these Terms and Conditions
3.5.3 That you will keep your username and password by which you access the Members Area confidential and secure at all times
3.5.4 That you accept all liability for any unauthorised use of any username and password issued
3.5.5 That you are at least 16 (sixteen) years old
3.5.6 That you are creating a MamaMap account as an operating business that provides products and services to customers on a commercial basis and not as an individual.
3.5.7 That you are creating MamaMap listings for a business, product or services that you own or have permission to publish on behalf of.
4. CONTENT DESIGNED/PRODUCED BY MG
4.1. All Content designed by MG is solely owned by MG (including copyright) in accordance with Clause 11.
4.2. Where MG is creating the Client’s Content, the Client shall be provided with a low-resolution electronic proof of their advertisement for approval. The Client shall then be entitled to two (2) rounds of reasonable revisions of the initial proof, after which, any additional revisions requested by the Client shall be subject to a fee charged at AUD$75.00 per hour.
4.3. To the fullest extent permitted by law, MG does not guarantee that any proofs under this Clause 4 shall be an accurate representation of the final advertisement published.
5. MG’S RIGHTS & DISCRETION
5.1. All Content submissions are subject to MG’s prior approval, and MG, in its sole discretion, reserves the right at any time (without giving reason) to: (a) Refuse to publish or distribute any Content; and/or (b) suspend, cease and/or withdraw any Content (whether published or not).
5.2. In the event of a refusal and/or cancellation under Clause 5.1, the Client is entitled to a refund of the Fee (in whole or in part).
5.3. MG reserves the right to make minor amendments (e.g. formatting, size, cropping, editing) to the Content without obtaining the Client’s prior approval. For the avoidance of doubt, the Client is not entitled to any review, approval or amendment to the final Content.
5.4. The positioning and final layout of Content shall be at the sole discretion of MG and/or in accordance with the Advertising Agreement.
5.5. The Client authorises MG to add links and/or content to the Content submission as MG may deem appropriate or necessary for the purposes of delivery on our Platforms, and the Client agrees that MG is not responsible for any loss or damage that may arise from such additions.
5.6. MG reserves the right (and the right to permit others) to reproduce, republish and distribute Content on all media throughout the World.
5.7. It is the Client’s responsibility to notify MG of any error in Content provided. Upon such notice, MG 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 MG’s 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. MG will use its best efforts to maintain exclusivity in connection with an Exclusive Agreement, however the Client agrees that MG’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 Client is able to enter into non-Exclusive Agreements with MG at the same time.
7. FEE & PAYMENT TERMS
7.1. In consideration of the Services provided by MG to the Client under this Agreement, the Client agrees to pay MG the Fee set out in Advertising Agreement.
7.2. MG shall provide the Client with an invoice for the Fee, and the Client shall pay the Fee upon receiving such invoice via direct debit or credit card payment.
7.3. MG is not responsible for any payments processed (or not processed).
7.4. MG, in its sole discretion, may change the method of Fee payment and will give reasonable notice to the Client of such change.
7.5. In the event that MG does not receive the Fee in full and on time, MG may, in its sole discretion, charge a reasonable penalty fee and suspend all Services under this Agreement until the Fee is received.
8.1.In the event that MG has applied a discount to the Fee for a series of Services and such Services are not published due to the Client’s failure to fulfil its obligations:
(a) The discount shall be removed and the Fee shall be accordingly adjusted; and
(b) The Client may be required to pay an additional penalty fee as determined by MG in its sole discretion.
9.1. A request to cancel a Partnership Advertising Agreement must be made within 30 days prior to MG’s next publication in accordance with the Advertising Agreement. If MG 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 Client shall be liable to pay 100% of the Fee and MG shall be under no obligation to complete the Services under this Agreement.
10. LIMITATION OF LIABILITY
10.1. The Client accepts that MG’s provision of the Services may be based on factors which are outside the direct control of MG. MG 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 Service artwork(e.g., colour, quality, format and placement) resulting from operating systems, platforms or other systems outside of MG’s control;
(c) Any unnatural or defective link connected with the Content; or
(d) Any slow or blacklisted server in connection with MG’s website or other platforms.
11. INTELLECTUAL PROPERTY & COPYRIGHT
11.1. “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 Client to MG in connection with this Agreement.
11.2. The Client grants MG the irrevocable, non-exclusive right to use the Client Content for the purposes of this Agreement during the Term throughout the World. For the avoidance of doubt, the Client will retain ownership of all Client Content.
11.3. The Client hereby warrants that:
(a) The Client owns, holds and/or is licenced the intellectually property rights in the Client Content;
(b) MG’s use of the Client Content does not infringe any intellectual property rights of a third party;
(c) The Client Content is not fraudulent, stolen, or otherwise unlawful; and
(d) The Client 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 Client Content) or otherwise stated, MG owns and retains all copyright and other intellectual property rights in relation to any Content created by MG or any Content provided by MG for use in a Service. For the avoidance of doubt, the Client obtains no rights in relation to Materials (in whole or in part) produced by MG (“MG Materials”).
11.5. All rights are reserved. MG 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 MG.
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 Client indemnifies MG (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 MG or which MG 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 Client is solely responsible for Content submistted to MG and indemnifies MG against any claim brought in relation to the CLient’s Content 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 Services, MG 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, MG excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in this Agreement. For the avoidance of doubt, MG does not warrant or make any representations concerning the quality, likely results, or accuracy in connection with the 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 MG 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 Services, including but not limited to any loss or damage arising from any Client Content provided to MG or errors in the Client’s Content.
15. BREACH & TERMINATION
15.1. The Client 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 MG, in its sole discretion, is willing to feature in connection with MG’s publications;
(e) Becomes bankrupt or suffers an insolvency event;
(f) Fails to act in a professional manner; or
(g) Disparages MG or its publications on social media, forums, reviews or websites.
15.2. MG may terminate this Agreement if the Client commits an Event of Default and fails the same within seven (7) days of receipt of written notice from MG. Any termination by MG pursuant to this Clause shall not prejudice any other rights or remedies MG may have in respect of any Event of Default or breach of this Agreement.
15.3. Upon termination of this Agreement, the Client is still liable to pay MG any Fees that would otherwise be payable during the Term.
Authority. 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 Client.
Force Majeure. 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.
Variation. 16.3. This Agreement may only be varied in writing signed by both parties.
No Waiver. 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.
Entire Agreement. 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.
Assignment. 16.6. The Client must not transfer or assign its rights or obligations under this Agreement to a third party without first obtaining MG’s prior written consent.
Counterparts. 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.
Governing Law. 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.