Advertising Terms & Conditions

Background

  1. Power Retail (PR) ABN 75126991535 is a continuously improving news and information resource for the online retail industry.
  2. PR initiatives are delivered across a multitude of online media formats, including but not limited to:
    • important industry news on the PR website
    • print advertising (Playbook)
    • digital advertising (EDM’s)
    • Spotlight Series
    • best practice case profiles
    • tutorials
    • insights
    • opinions
    • special reports
    • white papers
    • road tests
    • expert advice
    • enewsletter
  3. The Advertiser wishes to connect to potential contacts using the PR Initiatives.
  4. The Advertiser is the party which is listed in the Advertising Sales Order and the Advertiser wishes to purchase from PR advertising services in connection with the PR Initiatives.
  5. The terms and conditions set out in this Agreement are incorporated into the Advertising Order and govern the provision of services by PR to the Advertiser.

Agreement

  1. Content placement
    1. When material is supplied to PR, by or on behalf of the Advertiser, PR accepts no responsibility for that material. PR shall not be responsible for any loss of or damage to any material provided to PR by the Advertiser.
    2. The deadline for submission of material by the Advertiser is as specified in the Advertising Order. It is the Advertiser’s responsibility to confirm the deadline for submission of material whether or not such is explicitly stated in the Advertising Order. If such material is not furnished to PR by the deadline, PR may without further reference to the Advertiser either:
      • Substitute alternate material that PR holds for the Advertiser or
      • Delete the space and charge the Advertiser for the full amount of the Fee for the space booked.
    3. PR retains full editorial control of the PR initiatives and may at any time in its absolute discretion alter the name, size and/or layout (but not the general subject matter) of the PR initiative without notice or incurring any liability whatsoever to the Advertiser. Should any change be made by PR this will not constitute grounds for cancellation of the Advertising Order nor will it give any rise to PR being liable for any loss or damage or any claim as a consequence of such change.
    4. PR may at its absolute and uncontrolled discretion, reject or remove any material it considers unsuitable for display or to be featured on the PR initiative for any reason whatsoever without incurring any penalty or liability.
    5. The Advertiser must not on-sell, assign, transfer or otherwise purport to grant to any third party any of the Advertiser’s rights or obligations under the Advertising Order without the prior written consent of PR. Such consent may be withheld at the PR’s sole and absolute discretion.
    6. If the Advertiser commits a breach of clause (5) PR may refuse to display or feature any and all Advertisements in any PR initiative but the Advertiser shall remain liable for the full amount of the Fee.
  2. Refunds and cancellations
    1. Advertiser is eligible for a refund of 50% of the Agreed Advertising Fee in the following circumstances:
      1. where Advertiser is not in breach of any term of this Agreement and Advertiser cancels an Advertising Order with written confirmation more than 14 days before the start of the campaign date the Advertising Order relates to, and
      2. where Advertiser is not in breach of any term of this Agreement and PR cancels an Advertising Order under clause 17(1).
    2. Where the Advertising Agreement is cancelled, expired or suspended by PR, the Advertising Fee, calculated in accordance with the applicable Rate Card, shall be adjusted to reflect the pro-rata value of the PR initiatives that were displayed or otherwise featured, and the Advertiser agrees to pay the amended amount calculated by PR in full without deduction.
    3. PR will not refund any amounts paid to it by Advertiser in connection with this document in the following circumstances notwithstanding the non or part provision of the Services:
      1. where Advertiser has breached any provision of this Agreement
      2. where PR terminates this Agreement with cause
      3. where all Content required by PR in order to provide the Services is not provided by Advertiser by the Submission Deadline
      4. where Advertiser cancels an Advertising Order less than 14 days before the start of a campaign, and
      5. where Advertiser supplies incomplete or incorrect data, Content or information, or supplies data, Content or information that does not meet the PR’s specifications as set out by PR in advance and, Advertiser acknowledges it will have no claim for any refund of any amounts paid in such circumstances.
  3. Charges
    1. Advertiser will:
      1. on signing an Advertising Order pay the Initial Fee, and the Agreed Advertising Fee as per the agreed payment terms on the Advertising Order, and
      2. pay the Charges as invoiced and in accordance with this Agreement to PR.
    2. PR will submit to Advertiser invoices in relation to the Services.
    3. All sums due in connection with the Services must be paid by Advertiser within the payment terms indicated on the invoice issued by PR, which shall match the agreed terms on the Advertising Order. In the event that the Advertiser defaults on its payment obligations in advance of a campaign, PR is entitled to withhold the Advertiser’s Content from being featured in that campaign, without waiving any of PR’s rights to full payment in accordance with the terms of the Advertising Agreement.
    4. Advertiser may not set off, deduct or withhold payments to PR for any reason whatsoever.
    5. PR will charge interest on any amount due and not paid in accordance with this Agreement at a rate of 5% above the Commonwealth Bank of Australia then current published variable rate and Advertiser acknowledges this interest charge is a fair and reasonable remedy for PR in connection with non-payment and is a reasonable pre-estimate of the loss PR will suffer due to non-payment.
    6. In the event that the Advertiser commits a default under the Advertising Agreement, the Advertiser shall pay to PR on demand all costs and interest including without limitation all interest accrued and calculated pursuant to clause 3.5, legal costs (assessed on a solicitor/own client basis), all mercantile agent’s fees incurred by PR in recovering all amounts outstanding under this Agreement and any dishonour or bank fees incurred by PR relating to payments made by the Advertiser from time to time.
  4. Term and services
    1. In relation to each Advertising Order, this Agreement will commence on the Commencement Date and will continue in force until the end of the PR initiative the Advertising Order relates to.
    2. PR will provide the Services to Advertiser in accordance with the terms of this Agreement.
  5. Interpretation and definitions
    1. Interpretation: In this Agreement:
      1. references to any law or regulation includes any change, consolidation, replacement, re-enactment or extension of the law or regulation
      2. reference to a document is a reference to the document as from time to time supplemented or varied
      3. references to clauses, and parties are to clauses and parties to this Agreement
      4. headings are for reference only and do not affect the meaning of this Agreement
      5. references to $ or dollars means Australian dollars
      6. the plural implies the singular and vice versa.
    2. Definitions: In this Agreement the following expressions have the meanings stated:
      1. Act means the Privacy Act 1988 (Cth).
      2. Advertisement means the material agreed between PR and the Advertiser to be displayed or otherwise featured on the PR Website and/or Enewsletter and/or other PR initiative.
      3. Agreement means the agreement between PR and the Advertiser for the provision of Services as set out in this Agreement and an Advertising Order. An Advertising Order may be presented in writing or via email with confirmation by an authorised representative of the Advertiser constituting the Agreement.
      4. Agreed Advertising Fee means the overall fee agreed between PR and Advertiser for the provision of Services as set out in this Agreement and an Advertising Order.
      5. Campaign means digital advertising, print advertising, email marketing, special reports, social media or other unspecified PR-hosted marketing activity featuring the Advertiser’s branding and/or offers.
      6. Campaign period means the full period during which the Advertiser’s branding and promotional content is featured as part of a campaign.
      7. Charges means the charges to be paid by Advertiser for the Services calculated in accordance with the Rate Card.
      8. Claim means any claim made under or in connection with this Agreement or its subject matter, whether arising under contract, negligence or any other tort, under statute or otherwise.
      9. Commencement Date means the date specified in the Advertising Order for the start of the campaign period.
      10. Confidential Information includes all written, electronic or oral information relating to the business or assets of each party and its customers, clients and suppliers; the terms or subject matter of this Agreement, and the negotiations relating to this Agreement.
      11. Content means all materials provided to PR by Advertiser in connection with the Services.
      12. GST means a good and services tax, value added tax, consumption tax or services tax.
      13. Intellectual Property Rights means all copyright and rights in the nature of copyright, design rights, patents, trademarks, data base rights, applications for any of the above, moral rights, know-how, domain names or any other intellectual or industrial property rights (and any licences in connection with any of the same) whether or not registered or capable of registration and whether subsisting in Australia or any other part of the world.
      14. PR means Power Retail Pty Ltd
      15. PR Initiative means the services provided by PR to the Advertiser as detailed in the Advertising Order.
      16. Rate Card means the then current rates for advertising services published by PR from time to time.
      17. Services means the provision of advertising and associated services specified in an Advertising Order to be provided by PR to the Advertiser.
      18. Submission Deadline means the date specified as such on an Advertising Order.
  6. GST: The Charges and all other amounts payable under this Agreement are expressed exclusive of GST. If GST is payable as a consequence of any supply made (or deemed to be made) by one party to the other in connection with this Agreement, the party receiving the supply must pay to the party making the supply an amount equal to the GST payable in respect of the supply, in addition to the Charges or other consideration (if any) required to be paid under any other provision of this Agreement.
  7. Co-operation and deadline
    1. Advertiser will co-operate with PR in all respects in connection with the provision of the Services.
    2. Advertiser will submit all things (including Content) to PR before the Submission Deadline
  8. Warranties
    1. Advertiser represents and warrants that:
      1. It is duly incorporated in accordance with the laws of its jurisdiction, validly exists under those laws and has capacity to sue or be sued in its own name and to own its property and conduct its business as it is being conducted
      2. It has capacity unconditionally to sign and deliver and comply with its obligations under this Agreement
      3. It is not insolvent and by entering into this Agreement and receiving the Services it is not breaching any laws
      4. PR may use the Content in connection with Services without restriction,
      5. The Content and use of the Services do not, and will not at any time, infringe any Intellectual Property Right or any other right of any person, and
      6. Any information that it has given to another party in connection with this Agreement is true and accurate in all material respects and not misleading in any material respect (including by omission) as at the date of this Agreement or, if given later, when given.
    2. Advertiser acknowledges that PR has entered into this Agreement in reliance upon the representations and warranties in this clause which are ongoing.
    3. PR makes no representation or warranty, express or implied, as to the efficacy or suitability of any Advertisement displayed or featured in the PR initiative by or on behalf of the Advertiser, nor to the effectiveness or outcome of, or response to such Advertisement, and the Advertiser’s liability to pay the Charges to PR in full and without deduction shall not be dependent in any way upon such efficacy, outcome of or response to the Advertisement.
  9. IT security and data: Advertiser warrants that all Content provided is compliant with the Act and that all required consents have been acquired, as required, to allow PR to use all data provided by Advertiser in connection with this Agreement, and further, that PR’s use of the Content or provision of Services to Advertiser will bring not PR into breach of the Act.
  10. Intellectual property and reputation
    1. The Advertiser acknowledges that PR is the owner of the copyright in all material (including artwork) prepared by the officers, employees and/or agents of PR on behalf of the Advertiser and neither the Advertiser nor any other party is entitled to publish, reproduce or otherwise enjoy the rights in such material or artwork without the prior written permission of PR.
    2. Sponsored Special Reports are exempt from the conditions set out in 9.1. The copyright in all material is shared by PR and the agreed sponsor(s) of the specific Special Report(s) being sponsored.
    3. The Advertiser unconditionally warrants to PR that any material it provides to PR in relation to any Advertisement will not infringe the intellectual property rights of any third person when published. The Advertiser continually indemnifies PR against any claim, loss, damages, costs or expenses incurred directly or indirectly by PR as a direct or indirect result of the Advertiser’s breach of this warranty.
    4. Advertiser will not do anything or omit to do anything that in any way brings PR (and its officers, employees and agents) or PR into disrepute or into breach of any law.
  11. Public announcements and promotion: Advertiser will not make any announcements or disclosures in relation to this Agreement or the Services, including press releases or other communications to the public, without the prior written consent of PR, which can be provided or withheld in its absolute and unfettered discretion.
  12. Liability
    1. Subject to and without limiting clauses 12 (2), (3) and (4) below, the total aggregate liability of PR for a Claim or Claims under or in connection with this Agreement shall not exceed the total of the amounts paid to PR relating to the service or product giving rise to the liability.
    2. While every endeavor will be made to ensure the PR initiative is in accordance with the Advertiser’s instructions, no guarantee or warranty will be given or implied, nor any liability accepted for any loss or damage occasioned by any omission, mistake, error or misplacement of any Advertisement by PR and without limiting the foregoing, PR shall not be liable for any special, incidental, or consequential damages of any kind, or for loss of profits, loss of opportunity, loss of business or goodwill or interruption of business arising out of or in connection with the Advertising Agreement however arising or wheresoever situated from any act, error or omission by PR in respect to any PR initiative on the Advertiser’s behalf.
    3. The law implies various terms, conditions, guarantees and warranties which may apply to PR supplying goods or services to Advertiser. PR excludes all of those terms, conditions, guarantees and warranties, and any other term condition, guarantee and warranty that might have otherwise been implied by custom or otherwise, to the full extent permitted by law.
    4. Provisions of the Competition and Consumer Act (Cth) 2010 in some cases either cannot be excluded, restricted or modified, or can only be restricted or modified to a limited extent. If any such provisions do apply, then to the extent permitted by law PR’s liability under those provisions is limited;
    5. in relation to goods is limited to replacement of the goods or the supply of equivalent goods, or repair of the goods, or payment of the cost of replacing the goods or of acquiring equivalent goods, or payment of the cost of having the goods repaired; and
    6. in relation to services is limited to the supplying of the services again, or the payment of the cost of having the services supplied again.
  13. Confidentiality
    1. Each party will keep the other party’s Confidential Information confidential, not disclose any Confidential Information to a third party, other than as will of necessity acquire it as a consequence of the performance of that party’s obligations under this Agreement and use Confidential Information only in connection with the proper performance of this Agreement.
    2. Clause 13(1) will not apply to any Confidential Information to the extent that it comes within the public domain other than through breach of clause 13(1), is required or requested to be divulged by any authority with competent jurisdiction to which either party is subject, wherever situated, is known to the receiving party before the disclosure to it, or is disclosed with the other party’s prior written approval to the disclosure.
  14. No reliance: Advertiser has not relied on any representation made or implied by PR or arising out of or implied by its conduct save for as expressly set out in this Agreement. To the extent that PR has made or implied, or by conduct given rise to or implied, any representation that is not expressly stated in these conditions, Advertiser is not proceeding in reliance on the representation. PR makes no promise, representation or otherwise in relation to any benefit Advertiser may obtain by entering into this Agreement as set out herein and PR guarantees in no way any increased sales, transactions, revenue, goodwill or profit or any other benefit that may flow from Advertiser having entered into this Agreement.
  15. Indemnity: Advertiser will indemnify PR from and against all Claims, demands, actions, costs, expenses, liabilities and damages or losses (including all interest, penalties and legal and other professional costs and expenses) incurred by PR and its officer, employees or agents as a result of any claim or action by any third party in connection with the Services and as a result of the negligence of or breach by or malpractice and fraud on behalf of Advertiser.
  16. Relationship of the parties: PR is an independent contractor dealing at arm’s length and nothing in this Agreement will be deemed to constitute a partnership, joint-venture, co-ownership or any employment relationship between the parties nor will anything in this Agreement be deemed to constitute one party as the agent of the other.
  17. Termination
    1. PR may terminate an Advertising Order at any time prior to a campaign start date without cause.
    2. PR may terminate this Agreement immediately where any amount due to be paid to it by Advertiser is overdue.
    3. If a party (Defaulting Party): commits a breach of any of the terms of this Agreement which:
      1. is not capable of remedy, or
      2. is capable of remedy, but the Defaulting Party fails to remedy such breach within 5 days of receiving notice from the other party specifying the breach and requiring the breach to be remedied, this Agreement will terminate with immediate effect upon the other party giving to the Defaulting Party notice in writing of such breach or failure.
    4. Either party may terminate this Agreement with immediate effect by writing to the other party if the other party ceases or threatens to cease to trade (either in whole, or as to any part or division involved in the performance of this Agreement), or becomes insolvent, or is (or in the reasonable opinion of the other part is likely to be) unable to pay its debts as they fall due, or has a receiver, administrative receiver, administrator or manager appointed of the whole or any part of its assets or business, or makes any composition or arrangement with its creditors, or an order or resolution is made for its dissolution or liquidation (other than for the purpose of solvent amalgamation of reconstruction). If termination occurs, PR is no longer required to display or feature any Advertisement and all outstanding sums owed to PR by the Advertiser shall become due and payable immediately.
  18. General
    1. Termination or expiry of this Agreement (howsoever occurring) will not affect either of the parties™ accrued rights or liabilities or affect the coming into force or the continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after termination or expiry.
    2. If a party by reason out of their control is unable to perform or carry out any obligation under this Agreement, then that obligation is suspended for so long and to the extent that it is affected by that reason. This clause does not apply to any obligation to make a payment.
    3. The parties do not intend any third party to have the right to enforce any provision of this Agreement. PR may assign or transfer all or any of its rights under or in respect of this Agreement, including granting security interests in all or any of its rights. Advertiser may not assign or transfer all or any of its rights under or in respect of this Agreement.
    4. This Agreement contains the entire agreement between the parties about its subject matter and supersedes all prior discussions, representations, agreements and understandings between the parties in connection with the subject matter.Any changes to this Agreement must be agreed by all parties in writing.
    5. No failure, delay, relaxation or indulgence on the part of a party in exercising any right, power, privilege or remedy in connection with this Agreement, operates as a waiver of that right, power, privilege or remedy.
    6. Except as expressly provided under this Agreement, the rights and remedies contained in this Agreement are cumulative and are not exclusive of any other rights or remedies provided by law or otherwise.
    7. If any term of this Agreement is found to be illegal, invalid or unenforceable under any applicable law, such term will, to the extent it is severable from the remaining terms, be deemed omitted from this Agreement and will not affect the legality, validity or enforceability of the remaining terms.
    8. This Agreement may be signed in any number of counterparts and each of those counterparts taken together constitute one and the same Agreement.
    9. Any notice given under this Agreement must be in writing, addressed to the intended recipient at the address shown in this Agreement, (or updated address as relevant).
    10. This Agreement will be governed by the law of the State of Victoria, Australia and each party agrees to submit any dispute which may arise out of, under, or in connection with this Agreement to the exclusive jurisdiction of the courts of Victoria.
    11. Each party must bear its own costs including legal costs in connection with the preparation and signing of this Agreement. Advertiser must pay any stamp duty in respect of this Agreement.
    12. Each person signing this Agreement on behalf of a party, warrants to the other parties that on the date of signing, that person has full authority to sign this Agreement on behalf of that party.