Terms and Conditions

Australian Community Media and/or Australian Community Media’s third-party agents, contractors, suppliers and/or vendors (Vendors), will use reasonable endeavours to provide the Services to or for the benefit of the Customer within any agreed time frame or otherwise within a reasonable period. The Customer must use reasonable endeavours to promptly deliver to Australian Community Media such information it reasonably requests to enable Australian Community Media to provide the Services, If the Customer fails to deliver the information reasonably requested by Australian Community Media within 60 days of the Customer signing the Purchase Order (a) Australian Community Media may commence the monthly invoicing of fees in accordance with these Terms; or (b) Australian Community Media may suspend or cancel the provision of the Services by notice to the Customer. In the event of suspension or cancellation of the Services the Customer will forfeit any Set-up Fees it has paid.

Customer shall not be entitled to receive a proof of any advertising (each an Ad) created in connection with any Services ordered under the Purchase Order. Australian Community Media makes no representation or warranty that any Ad will not be similar to, or resemble, any other Ad that is produced by Australian Community Media or any Vendor.

Australian Community Media reserves the right to reject and/or not to distribute (as applicable) any Service (or part thereof) ordered by Customer that, in the opinion of Australian Community Media, is illegal, offensive, obscene and/or contrary to the business interest, goodwill and/or reputation of Australian Community Media or any of its Vendors or for any other reason in the discretion of Australian Community Media (Rejected Services). If Australian Community Media rejects or refuses to distribute any Service, Customer shall not have any recourse against Australian Community Media or any Vendor in connection with such rejection, except that Australian Community Media will refund to Customer a portion of any fees already paid to Australian Community Media by the Customer to the extent Australian Community Media considers these fees represent amounts paid for Rejected Services that will not be provided to Customer.

With respect to any products the subject of the Services, Australian Community Media has the right in its sole discretion to determine the placement of any such product. With respect to any Services, Australian Community Media does not guarantee the results of any such Service purchased by Customer.

Customer acknowledges and agrees that Australian Community Media products relating to SEM incorporate a management fee within the retail price to cover Google advertising account setup, optimization and management. Customer further acknowledges that it is not permitted to resell all or any part of the Services.

Customer acknowledges that Customer’s use of certain Services that are furnished by Australian Community Media’s Vendors (and/or the Vendors’ vendors) are subject to additional terms and conditions as required by such Vendors (Vendor Terms). By agreeing to these Terms, Customer acknowledges that it will comply with the relevant Vendor Terms of those Vendors who will be used to fulfill the Purchase Order. Where Customer is unable to comply with such Vendor Terms, the parties shall negotiate in good faith to find a solution. To the extent that there is any inconsistency between these Terms and any current or future modifications to any Vendor Terms that may occur from time to time, the latter shall prevail. Australian Community Media reserves the right to use, not use, or replace any specific Vendor in its sole judgment.

(a) Any Set-up Fees (as detailed in the Purchase Order) will be invoiced to the Customer on or about the day the Purchase Order is signed and will be payable within 30 days of invoice unless otherwise agreed. (b) All other Services fees will be invoiced to the Customer monthly in advance during the Term. The first monthly invoice will be issued on the earlier of the date of the commencement of the Services and 60 days from the date of execution of the Purchase Order by the Customer. The monthly invoices are payable within 30 days of the invoice date. (c) Without limiting Australian Community Media’s rights and remedies at law, if the Customer fails to pay any amount due in accordance with the Purchase Order and/or these Terms when the same falls due and fails to cure such non-payment within 7 days of written notice from Australian Community Media, Customer shall reimburse Australian Community Media on demand for all reasonable costs and expenses incurred by Australian Community Media in collecting such amount (including, but not limited to, all fees and disbursements of counsel) and/or any collection agency of Australian Community Media plus interest on the overdue amounts at a rate 2% above the National Australia Bank Overdraft Base Rate in respect of the period from the due date for payment and the date the outstanding amount is actually paid.(d) Without limiting Australian Community Media’s rights and remedies at law, if the Customer fails to pay any amount due to Australian Community Media (or its related body corporate) within 30 days of it being due in accordance with the relevant purchase order, Australian Community Media may suspend the provision of Services to the Customer until all amounts due to Australian Community Media have been paid in full. Australian Community Media shall have no liability to Customer for such suspension.

(a) Unless otherwise specified in the Purchase Order, Customer acknowledges and agrees that it orders the Services for the minimum initial contract term set out in the Purchase Order (Initial Term) after which the term will automatically continue on a rolling basis until cancelled or terminated in accordance with these Terms. (b) A party may cancel the Services at any time without penalty after the Initial Term by giving the other party 30 days’ written notice. Upon any such cancellation, the Customer must pay to Australian Community Media any outstanding amounts due to Australian Community Media as at the date of the written notice as well as the fee payable in respect of the 30 days’ notice period. (c) A party may cancel any part of the Services at any time after the Initial Term by giving the other party 30 days’ written notice. Upon any such cancellation, the Customer must pay to Australian Community Media the fee payable in respect of the cancelled part of the Services in respect of the 30 days’ notice period. Future monthly payments will then be calculated on the basis of the adjusted price that reflects the Services that the Customer will continue to receive. The Customer acknowledges that requests to Australian Community Media for amendments to the Services may also be subject to additional charges as specified by Australian Community Media. (d) Notwithstanding anything to the contrary in the Purchase Order and/or these Terms, Australian Community Media may suspend or cancel all or any part of the Services at any time in its discretion upon notice to the Customer for any reason. Australian Community Media shall have no liability to Customer for such suspension or cancellation except that Australian Community Media will refund or credit the account of Customer for, any amount specifically paid for any Service that is affected by such suspension or cancellation. Australian Community Media will not be responsible for reimbursing Customer for any losses, liabilities, costs, expenses or damages which may be incurred by Customer in connection with any suspension or cancellation under these Terms.

The Services may be terminated by a party by notice in writing to the other party if: (a)the other party fails to pay any amount due in accordance with the Order Form and/or these Terms within 7 days of written notice from the other party requiring such payment; (b) the other party is in breach of a material obligation under this Agreement and fails to rectify that breach within 30 days of written notice from the first party specifying and requiring rectification of that breach; (c) if the other party is a corporation and: (i) an order is made or a resolution passed for the winding up or dissolution without winding up of the party; or (ii) a liquidator or provisional liquidator is appointed to the party; or (iii) a receiver or receiver and manager is appointed to any of the party's assets or undertaking; or (iv) the party enters into any compromise or arrangement with its creditors or any of them or any class of them or any application is made to any court for an order summoning a meeting of creditors of the party; or (v) the directors of the party resolve or advise that the party is unable to pay its debts as and when they fall due; or (vi) the party is placed under official management or an administrator is appointed to the party under any provision of the Corporations Act (Cth) 2001; or (vii) the party commits any other act amounting to an event of insolvency under the Corporations Act (Cth) 2001. On termination of the Services for any reason, the Customer will be required to immediately pay Australian Community Media all amounts due up to and including the date of termination.

Customer acknowledges and agrees that Australian Community Media and/or its licensors and/or Vendors own all right, title, and interest, including without limitation, any and all patents, copyrights, and trade secrets, in and to Services, and Customer will not earn or acquire any rights or licenses in Services by virtue of this Agreement other than the limited rights expressly granted herein. As between the parties, Australian Community Media acknowledges that Customer will own all non-public information provided by Customer under this Agreement relating to its customers (“Customer Information”), and during and after the term of this Agreement Australian Community Media may not use any Customer Information for any purpose other than to: i)provide the Services to such Customers as contemplated under this Agreement, or ii) to provide non-specific Customer and Customer aggregated data for inclusion in the data warehouse of Australian Community Media and/or its Vendors to be accessible by Australian Community Media and other third parties for general business analysis purposes.

Customer warrants and represents to Australian Community Media and each of its Vendors that it will comply with all applicable laws in connection with the delivery of the Services by Australian Community Media and/or its Vendors to Customer and the collection, storage and use of all Customer Information collected by the Customer and that it has all necessary licences, authorisations and permits in place in relation to its business and the Services. Customer further warrants and represents to Australian Community Media and each of its Vendors that (a) it has the right to use as contemplated by the applicable Purchase Order (i) all drawings, names (including, but not limited to, any domain name), logos, pictures, slogans, text or other content furnished by Customer under the applicable Purchase Order (“Customer Content”), (ii) all copyrights, trademarks, service marks, trade secrets and other intellectual property rights embodied in any Customer Content or content furnished directly by the Customer, and (iii) all website links that Customer requests that Australian Community Media include on a Website or other Services developed under this Agreement and (b) to Customer’s knowledge, all information (including, but not limited to, name, address and telephone number) furnished by Customer in connection with a Purchase Order is correct. Customer grants Australian Community Media a worldwide, non-exclusive, royalty-free license (with the right to sublicense to a Vendor that requires such rights to perform services hereunder) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute any Customer Content in the media and via the distribution methods expressly contemplated in the applicable Purchase Order for the sole purpose of performing the Services and for no other purpose. Australian Community Media may modify or adapt the format of Customer Content to the extent necessary to transmit, display or distribute it over computer networks and in various media and/or make changes to Customer Content to the extent necessary to provide the Services and conform and adapt Customer Content to any requirements or limitations of any networks, devices, services or media. Australian Community Media reserves the right to remove, access, read, preserve, and disclose any Customer Content, Customer Information or other information as Australian Community Media reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Australian Community Media, its users and the public. Australian Community Media will give Customer written notice of any such action as soon as practicable after taking such action. If Australian Community Media desires to remove any Customer Content from any Service for any reason other than as stated in clauses (i) through (v) above, Australian Community Media will give Customer prior written notice of Australian Community Media’s desire to remove such Customer Content. Without limiting any obligations or liability of the Customer set out in any of these Terms, and without limiting any discretion Australian Community Media may have to refuse to provide any Service on the basis that Australian Community Media considers the use of the Service by the Customer may commit a privacy infringement or invade the privacy of any person, Customer also agrees and warrants that, as between Customer and Australian Community Media, Customer is solely responsible for and will provide and/or obtain all disclosures, notices, consents and authorizations as required by the Privacy Act 1988 (Cth) and/or the Privacy Act 1993 (New Zealand) (as is applicable) in respect of any personal information (as defined in such legislation) used in connection with the Services, including for personal information to be received and dealt with by Australian Community Media and Vendors for the purposes of the Services and any Customer's use of the Services. Customer shall defend, indemnify, and hold harmless Australian Community Media and each of its Vendors from any and all claims, investigations, liabilities, and/or damages (including, but not limited to reasonable attorneys’ fees and costs) that directly arise from Customer’s breach of this section.

Customer will, at its own expense, indemnify, defend and hold harmless Australian Community Media, its related bodies corporate and Vendors and all of their respective officers, directors, employees and agents from and against any liabilities, losses, costs, damages and expenses resulting from any third party claim based on (i) an allegation that any Customer Content or advertisements, software or creative materials developed or provided by Customer is libelous or defamatory or violates or infringes the rights of any third party, including, without limitation, any patent, copyright, trademark, trade secret or intellectual property or proprietary rights of a third party, or any rights of privacy or publicity, or (ii) any breach or alleged breach by Customer of any of its representations or warranties set forth in section 11 of this Agreement.

(a) Customer acknowledges that (i) Australian Community Media and/or its Vendors process many advertisements and web sites, and (ii) despite Australian Community Media or its Vendors’ reasonable efforts, inevitably publishing errors may from time to time occur, and (iii) the prices charged by Australian Community Media assume the enforceability of the limitations on liability provisions set forth in this Section and that such limitations are a reasonable allocation of the risk of any publishing error occurring between Customer and Australian Community Media. (b) No error in any Service by Australian Community Media shall affect the obligation of Customer to pay the full amount for such Service provided hereunder. The only obligation of Australian Community Media with respect to any error in an Service is to correct such error, if deemed possible, within the reasonable discretion of Australian Community Media, after written notice of such error is received by Australian Community Media from Customer. Notwithstanding the foregoing, Australian Community Media will make reasonable endeavours to resolve any errors reported by Customer within 5 business days Australian Community Media has received notice of such error. (c) Australian Community Media shall have no liability to Customer with respect to any error in, or otherwise with respect to, any Service published without charge to Customer and for which a specific charge is not allocated on the applicable Purchase Order. Australian Community Media shall also have no liability to Customer with respect to any delay in the Services that result from delays in the delivery of any information necessary to complete a Purchase Order. (d) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AUSTRALIAN COMMUNITY MEDIA DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS AS TO THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, AUSTRALIAN COMMUNITY MEDIA HEREBY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES AND CONDITIONS OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM ANY COURSE OF DEALING OR USAGE OF TRADE. TO THE EXTENT AUSTRALIAN COMMUNITY MEDIA’S LIABILITY CANNOT BE EXCLUDED BY LAW, AUSTRALIAN COMMUNITY MEDIA LIMITS ITS LIABILITY TO RESUPPLYING THE RELEVANT SERVICES OR REFUNDING THE PAYMENT MADE BY CUSTOMER FOR THE RELEVANT SERVICES AT AUSTRALIAN COMMUNITY MEDIA’S OPTION. AUSTRALIAN COMMUNITY MEDIA WILL NOT BE LIABLE TO THE CUSTOMER FOR ANY LOST PROFITS, BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES (COLLECTIVELY, “CONSEQUENTIAL DAMAGES”) ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION (INCLUDING TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY AND BREACH OF WARRANTY) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL AUSTRALIAN COMMUNITY MEDIA’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING BUT NOT LIMITED TO TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY AND BREACH OF WARRANTY, EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER TO AUSTRALIAN COMMUNITY MEDIA UNDER THIS AGREEMENT DURING THE 6 MONTHS IMMEDIATELY PRECEDING THE COMMENCEMENT OF THE CLAIM. THIS SECTION SETS FORTH THE ENTIRE LIABILITY OF AUSTRALIAN COMMUNITY MEDIA AND THE SOLE REMEDIES OF THE CUSTOMER IN CONNECTION WITH THIS AGREEMENT.

Customer may not assign its rights under the Purchase Order or these Terms without Australian Community Media’s prior written consent. If a term of this Agreement is or becomes invalid or unenforceable, the validity and enforceability of the remainder of the Agreement will not be affected. The Purchase Order and these Terms are governed by the laws of New South Wales.

Australian Community Media conducts periodic maintenance and upgrades to the website CMS. These are planned outside of regular business hours. Australian Community Media may also conduct critical maintenance during regular business hours if there are issues affecting the availability of the Services. Maintenance is undertaken without notification to the customer.

Australian Community Media shall have no liability to Customer with respect to circumstances outside the reasonable control of Australian Community Media, including, without limitation, acts of any governmental body, war, insurrection, sabotage, armed conflict, embargo, fire, flood, strike or other labour disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, virus attacks or hackers, failure of third party software (including, without limitation, ecommerce software, payment gateways, chat, statistics or free scripts) or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services.