Multi Channel Network Pty Ltd (ABN 72 077 436 974). These Terms and Conditions for Advertisers are incorporated into the Advertising Agreement between Multi Channel Network Pty Ltd ("MCN") and the entity placing the order for advertising ("Client"). The provisions of the Advertising Agreement also include the terms (and all details given by the Client) on the Advertising Booking Form, Insertion Order (if applicable), the Advertiser's Application for Credit, any commercial discounts applied in favour of specific Clients off the MCN published Ratecard, and if so marked on the Advertising Booking Form. All of these documents are referred to collectively as the "Advertising Agreement".
1. ORDERS FOR ADVERTISEMENTS OR CONTENT INTEGRATION:
All bookings, orders or other requests by the Client for advertising and/or content integration on the MCN network are governed by these Terms and Conditions for Advertisers. No other conditions, provisions or terms of any sort appearing in any documents or communications made in connection with any order, including without limitation those contained on or accompanying any cheques or other forms of payment, will be binding on MCN whether in conflict with or in addition to these Terms and Conditions for Advertisers. Orders which quote rates other than MCN's then current published rates will not be binding on MCN (unless approved by MCN on the relevant Advertising Booking Form), and will be deemed requests for advertising or content integration (as the case may be) on the terms of this Advertising Agreement at MCN's then current rates. All orders are binding on the Client and cannot be cancelled after sixty (60) days prior to first scheduled publication or integration (except as provided below under paragraphs 7 and 8). The Client may not resell, assign or transfer any order for advertisements or content integration. The Client must submit to MCN all finalised advertising material (including any content for integration into the MCN network) no later than five working days prior to the date on which the advertising campaign is scheduled to commence. MCN may require the Client to submit an Advertiser's Application for Credit (as indicated on the relevant Advertising Booking Form) in which case MCN will not be required to fulfil any of its obligations under this Advertising Agreement until such documentation has been properly executed by the Client, submitted to, and approved by, MCn.
2. ACCEPTANCE:
Any offer by MCN to publish advertisements and/or integrate content for the Client is made on these Standard Terms and Conditions for Advertisers only, and the placement or other communication of an order for advertising or content integration with MCN will constitute the Client's unconditional acceptance of these Standard Terms and Conditions for Advertisers. MCN reserves the right to reject or cancel any advertising at any time in its sole discretion (including at any time after the commencement date). Any failure by MCN to publish any requested advertisement or to integrate any particular item of content will be deemed to constitute a rejection of the order for such advertisement, but does not constitute a breach of contract or otherwise entitle the Client to any legal remedy.
3. PRODUCTION:
If the Client asks MCN to produce an advertisement or item of content for integration, the Client must: i) pay the "production fee" set out on the Advertising Booking Form, or if no production fee is specified then the amount set out in MCN's then current rates, and ii) provide MCN with all relevant material and design instructions at the time of completion of the order form. All relevant material must be supplied in the manner and in the format MCN specifies. MCN will not be required to publish any advertisement or integrate any item of content, nor will it be liable for any form of loss, damage, liability or expense resulting from any delay or error in any publication if the Client fails to supply MCN with all relevant material in accordance with these Terms and Conditions for Advertisers. MCN will procure the production of the advertisement and submit it to the Client for approval. Included in the production fee is the opportunity to request amendments or alterations to the advertisement on one occasion only. Each subsequent request for amendment or alteration will incur an extra fee at MCN's then current rates.
If the Client requests MCN to develop and build a "mini-site" as part of the requested content integration, then the following provisions apply: (a) the mini-site will consist of a home page, up to 10 secondary pages, a vote page, a competition page, and an audio/video page. Any variations to this standard package will be charged to the Client at MCN's then current production rates (b) two Client revisions of the mini-site are included in the amount set out in the Advertising Sales Booking Form. Any additional revisions will be charged to the Client at MCN's then current production rates; (c) all original creative and raw artwork files for the mini site must be supplied to MCN no later than 5 days prior to the proposed launch date of the mini site; and (d) the Client will pay for data and traffic fees.
4. RESPONSIBILITY FOR ADVERTISEMENTS AND CONTENT:
The Client represents and warrants to MCN that it is fully authorised to publish the entire contents and subject matter of all advertisements or integration content submitted to MCN (including, without limitation, all text, graphics, icons, photographs, materials provided to MCN for production purposes, URLs, and sites to which URLs are to be linked), and that all such contents and subject matter will comply with all applicable laws, regulations and relevant industry codes. If the relevant advertisement or integration content includes any information on a competition or promotion, the Client: i) acknowledges and agrees that MCN is not the promoter, ii) will ensure that the advertisement does not imply that MCN is the promoter, iii) will ensure that the correct identity of the promoter is set out on the website represented by the hyperlink embedded in the advertisement, and iv) will ensure that all applicable permits have been obtained, and all applicable regulations governing the conduct of the relevant competition/promotion have been complied with. The Client agrees unconditionally to indemnify MCN and hold MCN harmless (including all of its officers, agents employees and affiliates) from and against any and all loss, damage, liability and expense (including all reasonable legal fees) suffered or incurred by reason of any claims, proceedings or suits based on or arising out the publication of, or any act or omission in relation to, the advertisements or integration content, including but not limited to claims related to defamation, contempt of court, rights of publicity and/or privacy, copyright infringement, trade mark infringement, misleading or deceptive conduct and any failure to comply with or fulfil any representations, warranties or agreements made in the relevant advertisement or on any website represented by a URL shown or embedded in the relevant advertisement or any object in such advertisement.
5. POSITIONING & STYLE:
All order provisions regarding positioning of advertisements will be treated as requests which will be fulfilled at MCN's sole discretion. Advertisements that simulate MCN's editorial matter in appearance or style, or that are not readily identifiable as advertisements, are not acceptable. MCN may in its sole discretion label any advertisement as an "advertisement" for clarification and may stipulate other conditions to ensure that it is clear that the advertisement is not MCN editorial matter. If applicable, MCN will use reasonable commercial endeavours to integrate the integration content into the MCN network.
6. LATE CREATIVE:
All creative must be received by MCN 5 working days prior to the start date for commencement of a campaign. An estimated percentage of impressions that have not run due to receipt of late creative will be calculated and will be cancelled from the total impressions to run at MCN's sole discretion. If a Client books a campaign with less than 5 working days until the start date, MCN does not guarantee that the campaign will be published in less than 5 working days from the date that the creative is received by MCN, however MCN shall use commercially reasonable endeavours to commence the campaign as soon as possible.
7. DELETE AND CHARGE:
A cancellation by the Client of any type of activity (advertisement or content integration) within the period 28 to 15 days from the campaign date will be "Delete and Charged" for a value credit. Delete and Charge allows the Client to reschedule an activity to commence on a later date. All Delete and Charge activity must be published within 2 months of the date of notice of Cancellation. MCN will use commercially reasonable endeavours to publish the activity in the original schedule. Delete and Charge value credit is not available on MCN Premium placements. If Premium placements form part of a cancelled activity, they will be rescheduled in non-Premium placements pending availability. Rebooked placements are based on availability. The value credit must be used by the Client and is not transferable. The value credit must be used for the same type of activity; however a different product may be advertised. Cancellation of any activity by the Client within the 14 day period will be cancelled and charged to the Client and no value credit will be given.
8. RATE CHANGES:
All of MCN's advertising and production rates are subject to change at MCN's sole discretion. MCN will use its commercially reasonable efforts to announce all advertising and production rate changes at least thirty (30) days in advance of their effective date. In the event MCN makes a rate change in respect of a period (or any portion thereof) for which the Client has placed an order for advertising with MCN and upon subsequent notice to MCN by the Client that the Client wishes to cancel its order (or relevant portion) due to such rate change, MCN will have the option of either: i) allowing the Client to cancel that portion of its order affected by the rate change in which case the order will be cancelled within thirty (30) days of receipt by MCN of the relevant notice from the Client, or ii) acknowledging that the lower rate will apply for the remainder of the then current term of the Advertising Agreement after which time, if the agreement is extended or renewed, all rates will be adjusted in accordance with MCN's then current advertising and production rates and amended thereafter as notified by MCN from time to time. The Client acknowledges, warrants and undertakes that any and all commercial terms offered to them in respect of any documentation comprising this Advertising Agreement is Confidential Information and shall not be disclosed to any third party without the prior written consent of MCn. In the event that the Client breaches their confidentiality obligations to MCN, MCN reserves the right to cancel this Agreement forthwith, and to pursue the Client for all equitable relief including damages.
9. LINKS TO WEBSITES:
The Client warrants and represents to MCN that each website represented by any URL shown or embedded in any relevant advertisement or any object in any such advertisement or in any integration content: (i) is controlled and operated by the Client, its independent contractors or a client of the Client (in the event the Client is an advertising agency applying on behalf of its own client), (ii) will be functional and accessible at all times, (iii) will at all times operate in compliance with all applicable laws, regulations and relevant industry codes, and (iv) is suitable in all respects including subject matter to be linked to from the MCN website containing the advertisement or integrated content. MCN may test all relevant URLs, and may remove any URLs which in MCN's sole unfettered opinion fail to comply with the any of the above requirements at any time.
10. COMMITMENT & PAYMENT:
By submitting an Advertising Sales Booking Form to MCN, the Client agrees to be liable for all relevant fees and costs of such order. Unless otherwise indicated in the relevant order and agreed by MCN in writing, the Advertising Agreement commences on the later of the two signature dates on the Advertising Sales Booking Form and will continue for the term set out therein. The Client will be billed or electronically debited monthly. Unless otherwise agreed by the parties in writing, payment terms are net thirty (30) days from the date of each MCN invoice. All advertising fees not paid in accordance with this Advertising Agreement will accrue interest at the rate of 2% over the base rate on the date the payment becomes due. In addition to all other available rights and remedies, MCN may cancel and remove any advertisement or integration content which is not paid for on a timely basis. Reinstatement after cancellation may require a new Advertising Agreement (including all applicable fees). In the case of an approved advertising agency ("Approved Agency") only, the Approved Agency placing advertising or integration content with MCN will be eligible to receive commission. MCN may terminate the Advertising Agreement at any time on 30 days' notice to the Client. The Client will be responsible for paying all amounts outstanding at the effective date of any termination or expiration of the Advertising Agreement. No termination or expiration of the Advertising Agreement will terminate or otherwise affect the warranties and indemnities provided by the Client herein or the Director's Guarantee and Indemnity which will continue in respect of this Advertising Agreement and any subsequent and/or other advertising agreement between the parties, and all such warranties and indemnities. Indemnity will survive and remain in full force and effect in respect of the performance of all of the Client's relevant obligations.
11. NO REPRESENTATIONS OR WARRANTIES; NO DAMAGES:
The provisions of this paragraph are subject to the terms of the following paragraph regarding Australian consumer warranties. Any of MCN's services which are the subject of these Standard Terms and Conditions for Advertisers are provided without warranties of any nature, and MCN disclaims all warranties, express or implied, including without limitation any implied warranties of merchantability and fitness for a particular purpose. In no event will MCN be liable for any form of loss, damage, liability or expense whatsoever including but not limited to consequential, indirect, incidental, or special damages, damages for loss of profits, business interruption, loss of or unauthorised access to information, and the like, even if MCN has been advised of the possibility of such damages. For the avoidance of doubt, MCN will not be liable to the Client for any form of loss or damage whatsoever arising from any discrepancy, fault or malfunction of any third party ad server. Other than third party reports produced for MCN specifically pursuant to the Client's participation in an inventory optimisation program, any reporting provided by a third party ad server will be for indicative purposes only, and MCN's ad serving software will be used for the purposes of metrics, billing and reporting under this Agreement, notwithstanding the results produced by any third party system. In no event will MCN be liable to the Client for an amount in excess of the total dollar amount actually received by MCN from the Client for the relevant advertisement(s) or integrated content. The Client acknowledges that MCN has not made any warranties in respect of any advertisement, the use of statistics or the level of impressions to be achieved. Other than for bookings and orders the result of the Client agreeing to participate in MCN's inventory optimisation program, MCN will use its reasonable commercial endeavours to achieve the level of impressions set out on the relevant Advertising Sales Booking Form. In the event the level of impressions set out on the Advertising Sales Booking Form is not achieved during the relevant period, MCN will continue (during a subsequent period at no cost to the Client) to run the relevant advertisement until the appropriate total number of impressions has been achieved. For the avoidance of doubt, MCN does not make any representations about the number or placement of impressions made pursuant to the Client's participation in MCN's inventory optimisation program. This will constitute the Client's sole and exclusive remedy for such failure. The Client is not entitled to any reduction in fees due to MCN achieving a level of page or ad impressions during the relevant period which is lower than that set out on the relevant Advertising Sales Booking Form. All statistics not expressly set out in this Advertising Agreement are excluded.