1. General
Publisher has the right to amend these conditions at any time. Notification of amendment shall be deemed to have been given to all Advertisers immediately upon publication of the amended conditions or other written notice, which shall apply to all advertising booked after the date of that publication (except where there is an express written agreement between the Publisher and Advertiser that those amendments will not apply to particular advertisements).
2. Publisher rights and discretions
2.1. Every Advertisement submitted for publication is subject to Publisher’s approval. Publisher may at its absolute discretion at any time: a. refuse to publish or distribute any advertisement without giving any reason (in which case, no charge to Advertiser will be incurred); b. cancel a campaign (in which case, no charge to Advertiser will be incurred for the unpublished portion of the campaign); or c. head an advertisement ‘Advertisement’.2.2. Publisher owes no duty to Advertiser to review, approve or amend any Advertisement and no review, approval or amendment by Publisher will affect Advertiser’s responsibility for the content of the Advertisement. 2.3. Publisher may, but is not obliged to, under pressure of deadline and without prior consultation or notice to Advertiser, amend any Advertisement in any terms whatsoever, if Publisher perceives it to be (i) in breach of any law of Australia or of any state (whether civil or criminal), (ii) in breach of any pre-existing publishing agreement entered into by Publisher, (iii) defamatory, (iv) in contempt of court or parliament, (v) otherwise likely to attract legal proceedings of any kind, (vi) offensive. Should Publisher so amend the Advertisement, the agreed price shall not be reduced. 2.4. Publisher has the right, and the right to permit other persons, to republish any Advertisement in any print, electronic or digital form for any purpose using any media and in any part of the world.
3. Positioning, Placement and other Advertiser requests
3.1. The positioning and placement of an Advertisement is at the discretion of Publisher except where expressly agreed in writing by Publisher. Publisher will attempt to position Advertisements, in accordance with the Advertiser’s request if the Advertiser has agreed to pay any relevant preferred position loading charges. If Publisher fails to publish the Advertisement in accordance with Advertiser’s requests, Publisher’s liability will be limited to refunding the relevant position loadings paid.
4. Deadlines & Specifications
4.1. Publisher imposes various deadlines (including for the provision to the Publisher of bookings for Advertisements and material for Advertisements, changes or variations to Advertisements) and specifications (including for size). All deadlines and specifications must be met by Advertiser. Publisher is under no obligation in relation to material or information received after relevant deadlines or not in accordance with the relevant specifications. 4.2. It is the Advertiser’s responsibility to ascertain the relevant deadlines and specifications for the relevant publications for each publication or insertion date as deadlines and specifications may be changed at any time by Publisher. All deadlines and specifications are available at the media kit.4.3. Publisher accepts no responsibility for any error when instructions or copy have or has been provided over the telephone unless Publisher receives written confirmation of the instructions or copy before the deadline. 4.4. It is the responsibility of the Advertiser to notify Publisher of any error immediately after it appears. Unless so notified, Publisher accepts no responsibility for any recurring error or any Loss relating to that recurring error. 4.5. Cancellations by the Advertiser must be made, in writing, prior to deadlines. Failure to do so will relieve the Publisher of any obligation to comply with the cancellation request and, if Publisher proceeds with the publication of the relevant Advertisement, then Publisher will be entitled to charge the Advertiser accordingly.
5. Advertisements produced by Publisher
5.1. Publisher owns and retains all copyright and other intellectual property rights in relation to any Advertisements produced by Publisher or any materials provided by Publisher for use in an Advertisement. Advertiser obtains no rights in relation to those advertisements produced by any Publisher or in relation to content from any Publisher. This clause does not in any way derogate from Advertiser’s obligations or liabilities in relation to such Advertisements.
6. Proofs
6.1. Publisher to provide proofs but only where so requested by Advertiser prior to relevant deadlines.6.2. Colour shown on any proof is an indication only. Final print colours may vary with the print process and stock variations.6.3. Where Publisher fails to provide a requested proof in accordance with clause 6.1, and the published advertisement substantially conforms to the copy provided by the Advertiser, then Advertiser is liable to pay the full cost of the Advertisement.
7. Advertising Expenditure Agreements
7.1. Maximum period of any Advertising Expenditure Agreement is one year (except in exceptional circumstances). In the absence of any valid Advertising Expenditure Agreement, including if an Advertising Expenditure Agreement has expired, casual rates will be charged by Publisher. 7.2. Publisher reserves the right to cancel or suspend any Advertising Expenditure Agreement where: a. Advertiser is in material breach of the Advertising Expenditure Agreement, these terms or any another agreement with Publisher; or b. Publisher considers Advertiser becomes a credit risk; or c. Advertiser’s advertisements pose a reputational risk or other unacceptable risk for Publisher; or d. Publisher is no longer able to deliver the advertising services the subject of the Advertising Expenditure Agreement, including where it is no longer the Publisher; or e. any other clause of these terms or any other agreement with Publisher enables the Publisher to terminate or suspend an Advertising Expenditure Agreement.
8. Rates, invoices and GST
8.1. Advertisers agree to pay accounts rendered by the Publisher in accordance with 7 day payment terms. Accounts will be rendered by Publisher on the basis of the casual rate applicable at the date of publication of the advertisement (regardless of the rates which were applicable when any advertising expenditure agreement was entered into), less any percentage discount agreed in writing between the parties. 8.2. Casual rates are as quoted by the relevant publication or sales representative and may be varied by Publisher at any time, effective from the time nominated by Publisher and such varied casual rates will apply to all advertising booked from that nominated date including in relation to then current Discount Protected Advertising Expenditure Agreements but not any current Rate Protected Advertising Expenditure Agreements (unless otherwise expressly agreed by the parties in writing). 8.3. Advertising expenditure will be calculated inclusive of loading values but exclusive of production charges.8.4. If Publisher has quoted a rate to publish advertising for a client and that rate is different from that included in any published material or sales collateral, that quoted rate only applies to that specific client for that specific purpose where the advertising is booked directly with Publisher and without the involvement of any advertising, media buying or other agency (unless otherwise specifically agreed in writing by the Publisher). 8.5. Where the Publisher changes the basis on which advertising is charged by Publisher during the term of any Advertising Expenditure Agreement or between the booking and placement of any Advertisement, Publisher will endeavour to provide Advertiser with at least 28 days’ notice prior to the change taking effect. Advertiser will be entitled to terminate the Advertising Expenditure Agreement or bookings affected (prior to the cancellation deadline for such affected bookings) within 14 days of such notice from Publisher.8.6. Any dispute the Advertiser has with an invoice must be raised with Publisher promptly and no later than 14 days after the invoice date. After that time, Advertisers will be deemed to have accepted that the full amount set out in the issued invoice is due and payable by Advertiser. 8.7. All rates and charges are expressed by the Publisher as GST inclusive (except where otherwise made clear). Publisher will issue a valid tax invoice in relation to any supply of advertising or related services under these terms which are subject to GST. 8.8. Advertiser agrees to pay any GST liability arising in relation to the provision by Publisher of advertising services under these terms. 8.9. The GST component does not count towards overall advertising expenditure agreements or rate card discount levels. 8.10. Surcharges or rebates on advertising which is subject to GST will have the GST component recalculated. Calculations made by Publisher of any surcharge or rebate will be deemed to be conclusive and binding on Advertiser unless a manifest error is brought to the attention of Publisher by Advertiser within 14 days of notification to Advertiser. Surcharges or rebates only apply to Advertising Expenditure Agreements signed by both parties.
9. Limitation of liability
9.1. Nothing in these terms and conditions excludes or varies any rights or remedies under the Australian Consumer Law in the Competition and Consumer Act (2010) (Australian Consumer Law) which cannot be excluded, restricted or modified. However, Publisher excludes all rights, remedies, guarantees, conditions and warranties in respect of goods or services from an Advertiser’s use of or acquisition of or in relation to the ordering or booking of any advertising services (including under an Advertising Expenditure Agreement) from the Publisher whether based in statute, common law or otherwise to the extent permitted by law. To the fullest extent possible and subject to Alive Magazine’s liabilities and obligations under the Australian Consumer Law, the remaining provisions of this clause 9 shall apply. 9.2. Publisher makes no representation or warranty of any kind and in particular makes no representation or warranty: a. in relation to the continued production of any publication, in print or digital form; b. in relation to the final placement, positioning or date of publication or distribution of an advertisement; c. that there will be one and only one copy of each insert or sample distributed in each relevant publication; d. that distribution of a publication will occur on a specific date, by a specific time, to a specific number of consumers or readers or within a specific geographic area; e. in relation to the number of visitors to its websites or the number of impressions at any site; or f. exclusivity. 9.3. Subject to clause 9.1, the Advertiser acknowledges that distribution of a relevant publication may be suspended or ceased at any time for any reason. 9.3. Publisher is not liable to Advertiser for any direct or Indirect Loss of any nature including where arising from the failure of Publisher, whether negligent or otherwise, to publish an Advertisement or from the failure of Publisher to publish an Advertisement in the form prescribed or from publication of the Advertisement with errors or omissions or in any way relating to the distribution or lack of distribution of the relevant publication9.4. Subject to clause 9.1, where any of the circumstances set out in clause 9.4 arise: a. Advertiser shall incur no cost where the Advertisement has not been published at all or where the error or failure has arisen solely due to the negligence of a Publisher or any of its employees, or agents; and b. in all other circumstances, and subject to the other applicable terms, the agreed rate shall be reduced according to circumstances. In no circumstances will the Publisher’s liability be greater than: i. in relation to the failure to provide any placement, position or other benefit in relation to which a specific loading charge was paid by the Advertiser, the amount of that loading charge; or ii. otherwise, republication of the relevant advertisement, or payment of the cost of republishing the relevant advertisement, at Publisher’s discretion. 9.5. Subject to clause 9.1, Publisher’s liability for a breach of a term or guarantee implied by law is limited at Publisher’s discretion, to the supply of the service again or payment for the cost of having the service supplied again. 9.6. Subject to clause 9.1, Publisher has no responsibility or liability to Advertiser in relation to: a. Publisher exercising its rights under these terms; or b. any failure of telecommunications services or systems which affect the receipt by Publisher of any material, a notice or communication of any kind or the publication of an advertisement or campaign.
10. Warranty & Indemnity
10.1. Advertiser warrants that it will only use the advertising space which it acquires to advertise its own brands, goods or services and may not sell or otherwise deal with that advertising space. Where Advertiser is an advertising agency the space may only be used by the client for which the space was initially acquired or booked. 10.2. Advertiser warrants that the advertisement complies with all relevant laws and regulations and that its publication in accordance with these terms will not give rise to any claims against or liabilities of Publisher, its directors, employees or agents. Without limiting the generality of the above, advertisers and or advertising agencies warrant that neither the Advertisement nor its publication breaches or will breach the Competition and Consumer Act 2010, Privacy Act 1988, Copyright Act 1968, Fair Trading Act 1985 or defamation, or infringes the rights of any person. 10.3. Advertiser indemnifies Publisher its directors, employees and agents against all claims, demands, proceedings, costs (including solicitors and own client costs), expenses, damages awards, judgments and any other liability whatsoever arising wholly or partially, directly or indirectly, from or in connection with the publication of the Advertisement, except to the extent caused by the Publisher. In particular and without limitation, Advertiser indemnifies Publisher its directors, employees and agents against any claims arising from allegations that the Advertisement contains material which constitutes: a. defamation, libel, slander of title; b. infringement of copyright, trademarks or other intellectual property rights c. breach of trade practices/ competition, privacy or fair trading legislations; or d. violation of rights of privacy or confidential information.
11. Privacy Statement
11.1. Publisher collects personal information about Advertiser, including for example Advertiser’s name and contact details which you provide when registering or using our services as well as information from data houses, social media services, our affiliates and other entities you deal or interact with for example by using their services. We collect and use that information to provide you with our services, to promote and improve our services, to provide you with targeted advertising based on your online activities, for the purposes described in our Privacy Policy and for any other purposes that we describe at the time of collection. Any of us may contact you for those purposes (including by email and SMS) at any time. We may also disclose your information to our service and content providers. The policy also explains that if you do not provide us with information we have requested from you, we may not be able to provide you with the goods and services you require.
12. Other conditions
12.1. Other conditions Any text heavy Advertisement is subject to approval of the editor of the relevant Publication, to be exercised with unfettered discretion. Any such Advertisement must be presented in a manner which clearly delineates it from the editorial content of the relevant Publication including by labelling as an Advertisement in a prominent manner and using a clearly different font and format.
13. Definitions
13.1. a. Advertisement includes any material in any form lodged for publication or other distribution as an advertisement (including as a published advertorial, insert or sampling exercise). b. Advertiser means each advertiser and or advertising agency who seeks to have Publisher publish or otherwise distribute an advertisement. c. Advertising Expenditure Agreement means both a Discount Protected Advertising Expenditure Agreement and a Rate Protected Advertising Expenditure Agreement. d. Discount Protected Advertising Expenditure Agreement is a written agreement (in soft or hard copy form), which is signed or, in the case of a soft copy, otherwise agreed to in a mutually acceptable form, by or on behalf of both the Advertiser and the Publisher, detailing: i. the percentage discount from the casual rates from time to time, ii. any applicable adjustments to standard loadings, iii. any applicable positional agreements, and iv. the agreed minimum spend commitment by the Advertiser which is the basis for the benefits to be provided by Publisher as described in (i)-(iii) above, which is to apply between that Publisher and that Advertiser for the term specified in the agreement (which is not to exceed 12 months other than in exceptional circumstances) and for a specific market and/or Publication(s). e. Financial Thresholds in relation to an Advertising Expenditure Agreement, means either of the following: i. where the term of the Advertising Expenditure Agreement is 12 months or less, the agreed minimum spend commitment is $50,000 or less; or ii. where the term of the Advertising Expenditure Agreement is more than 12 months, the agreed minimum spend commitment is $500,000 or less. f. Loss means direct and indirect loss of any nature. Indirect loss includes the following: loss of profit, loss of business opportunity, loss of goodwill and payment of liquidated sums or damages under any other agreement. e. Publisher means any of the entities listed in section 21 below. g. Rate Protected Advertising Expenditure Agreement is a written agreement (in soft or hard copy form), which is signed or, in the case of a soft copy, otherwise agreed to in a mutually acceptable form, by or on behalf of both the Advertiser and the Publisher, detailing: i. the percentage discounts from the casual rates in effect at the time the agreement is entered into; and/or ii. the fixed advertising rates; iii. any applicable adjustments to standard loadings; iv. any applicable positional agreements; and v. the agreed minimum spend commitment by the Advertiser which is the basis for the benefits to be provided by Publisher as described in (i) –(iii) above, which is to apply between the Publisher and that Advertiser for the term specified in the agreement (which is not to exceed 12 months other than in exceptional circumstances) and for a specific market and/or Publication(s).