Publisher’s international Pty Limited ACN 003 667 954 (Pi)
Terms of Supply of Services
These are the terms upon which Pi will perform the services requested by the Customer which are stated in any Insertion Order and/or any attached Schedule as well as any other services requested by the Customer and agreed to be provided by Pi (“Services”). No terms in any Customer document, whether styles a purchase order or otherwise, supplied by Customer before or after this Order, will have any application and are hereby expressly excluded to the extent inconsistent with these Terms. Except as provided below all other representations and terms, express or implied, written or otherwise, and whether given by a Pi representative or otherwise, that would bear upon the subject matter of the Order and would qualify, add to or amend these Terms, are hereby excluded and negated.
1. Authority. Where the Customer is not the person or company on whose behalf advertising material has been produced in relation to its products and/or services where such advertising material is the subject of the Services provided pursuant to this Agreement (“Advertiser”), the Customer warrants to Pi:
a. that it has proper authority to enter this agreement for the provision of the Services by Pi in relation to the Advertiser’s products and/or services;
b. that it has fully disclosed to the Advertiser all fees, rebates, payments and benefits (including the agency rebate/fee) it has or will receive from Pi howsoever in connection with, or as a result of, the provision of the Services, has received the fully informed consent of the Advertiser to such fees, payments, rebate, or benefits and has complied with all legal and other requirements prior to the receipt of such fees, payments, rebate, or benefits;
c. to the extent that Pi agrees to pay any fee or provide any rebate to the Customer, such fee or rebate shall be deducted from the amount payable by the Customer to Pi but only if such amount payable is paid by the Customer to Pi within 45 days from the end of the month of the invoice.
2. Relationship: The relationship between Pi and the Customer is that of agent and principal. Pi is expressly authorised to act on the Customer’s behalf as agent for the Customer in connection with Pi’s obligations under this agreement.
3. Legal compliance: The Customer warrants that advertising material submitted by it:
a. will not constitute the breach or infringement of any statute, regulation, order, rule or requirement of any government, semi-government or statutory authority, or public or private rights, including without limitation any intellectual property rights;
b. will comply with the requirements of any relevant code of conduct including (without limitation) for alcohol related advertising and sexual or suggestive content. The Customer must on request by Pi provide evidence of compliance and approval under the relevant code;
c. is the subject of all necessary permits, licenses and approvals required and that the advertisement material will not be offensive, defamatory or inappropriate to display in public.
Pi reserves the right, without any liability or obligation to the Customer, to refuse to provide or perform any services, or commit or omit any act or pursue any course of conduct, which in its reasonable opinion may be misleading, indecent, dishonest, untruthful, false, deceptive, defamatory, libellous, unlawful, politically or culturally sensitive, or otherwise prejudicial to its interests or the interests of any other entity.
4. Customer’s obligations: In order to enable Pi to perform the Services, the Customer must:
a. provide the advertising material to Pi in the manner and format required by Pi, no less than seven business days prior to the start date as specified in the Order or in accordance with any other timetable agreed by the parties;
b. if Pi is also required to produce the advertising material, the Customer must provide Pi with sufficient information required by Pi, in such manner and format as Pi may direct, in reasonable time to enable Pi to have the material produced and approved by the Customer.
Where the advertising material is damaged or destroyed for any reason whatsoever, Pi will repair or replace the material (as the case may be) at its discretion and at the cost of the Customer, unless Pi has agreed in writing to cover the cost.
The Customer is responsible for the accuracy, completeness, rights to use, propriety and truth of all materials and information furnished to Pi in connection with Pi’s provision of the Services under this agreement.
The Customer must promptly comply with any request by Pi for such materials and information required to provide the Services.
The Customer must ensure that creative, advertising and any other agencies and entities appointed or retained by the Customer comply promptly and fully with all requests for information and/or assistance made by Pi in order to enable Pi to comply with its obligations set out in this agreement.
5. Remuneration: In consideration of the agreement by Pi to perform the Services, the Customer must pay Pi its fees as specified in the Order, as well as expenses payable under this agreement, plus any GST or other tax that must be collected by Pi under law, within 30 days from date of invoice, or if the Customer is an advertising agency, within 45 days from the end of the month of invoice. If the Customer is a representative of the Advertiser, such as an advertising agency, the Customer acknowledges that it will be solely liable to Pi for payment of all monies, costs and expenses, howsoever payable in respect of the Services, notwithstanding that it may not have received payment from the Advertiser. In case of any delay in receipt of payment beyond the due date:
a. the Customer must reimburse Pi for any charges or costs imposed on Pi because of late payment by the Customer of any Invoice;
b. Pi may invoice the Customer for, and the Customer will pay, interest on the overdue amount at the rate of 15% per annum.; and
c. if any invoices or other amounts owing by the Customer to Pi remain outstanding for whatever reason for at least 60 days after the due date, Pi may refuse to perform or provide any further Services to the Customer until all such outstanding amounts have been paid.
6. Expenses and disbursements: Media charges will be invoiced either on insertion date or end of campaign. However, if the campaign period is spread over more than a month, then Pi may invoice, and the Customer will pay accordingly, on a pro rata basis. Installation, production, monitoring, materials or any other costs and expenses will be invoiced by Pi and paid by the Customer monthly or, at Pi’s discretion, as and when such costs and expenses are incurred. Pi must use it’s best endeavours to obtain invoices on a timely basis for work performed on behalf of the Customer. However, the Customer is responsible for reimbursement to Pi for work performed regardless of the date of any third-party invoices and of any Invoices rendered by Pi. Without limitation, Pi reserves the right to require advance payment from the Customer in the event of any substantial commitments to be made by Pi on the Customer’s behalf. In such circumstances, Pi is not required to supply any Services unless and until the Customer makes the advance payment to Pi.
7. Changes and cancellations: Unless specified in the Order or otherwise agreed by Pi in writing, the Customer may not cancel, replace or modify any advertising material or campaign once it has been submitted, accepted or approved. If Pi agrees to any cancellation, change or replacement, a charge additional to the media charge may apply. If applicable, the Customer must also provide Pi with sufficient copies of the material to allow for any change or replacement. The Customer must reimburse Pi for any upfront payment made by Pi or any media cancellation charges imposed on Pi as a result of the Customer’s requirements or instructions. Pi reserves the right to approve any last-minute changes in the mode of campaign, viz. refusal, replacement or use of any reasonable alternate mode, in the sole opinion of Pi, in case the mode nominated in the IO becomes unavailable, without liability to the Customer.
Pi may, in its absolute discretion, refuse to accept any advertising material or use an alternate or replacement medium, should the medium nominated by the Customer, be or become unavailable. Should any such replacement or relocation by Pi occur, the Customer will receive no refund and releases and forever discharges Pi from and against any liability arising from, and any costs in connection with, the refusal, removal or relocation of any advertising campaign.
Nothing in this agreement will relieve the Customer of its obligations under this agreement to pay any media charges notwithstanding any such delay, interruption or downtime.
8. Discounts and Rebates: Pi must pass on to the Customer the benefit of all credits, discounts and rebates allowed to Pi for expenditure incurred on behalf of the Customer in providing the Services.
9. Confidentiality: Each party will use or disclose to any third party any information obtained from the other party or relating to the other party that is obtained in the course of performance of this agreement, that is marked as confidential or is by its nature not generally known (“Confidential Information”) only for the purpose of performing its obligations under this agreement. The expression “Confidential Information” does not extend to information that is in the public domain otherwise than through a breach of this clause or was known to that party obtaining it prior to its doing so. Nothing in this clause restricts any such disclosure that is required by law or the rules of any applicable stock exchange to the extent only that such disclosure is so mandated. However, the party required to make the disclosure must inform the other party of the requirement and take into account any comments it has regarding the required disclosure.
10. Advertising materials: Property in advertising material supplied by or for the Customer (but not the copyright content thereof) for executing the campaign, will pass on to Pi upon the campaign being initiated. Pi will retain such advertising material for a period of three months from the date of end of the campaign. Pi may thereafter destroy the material unless, prior to the end of three month's period, the Customer at its own cost collects the material from Pi.
11. Termination: The Customer may not cancel the agreement formed by the Order and these Terms prior to the completion of the Services to be provided by Pi, without the written consent of Pi, which may be granted or withheld by Pi in its absolute discretion.
Pi may terminate this agreement and stop the provision of the Services by serving a written notice to that effect on the Customer, if:
a. the Customer fails to supply information within the required time or manner to enable PI to produce the advertising material;
b. any requisite authority approval is not obtained by the Customer within the reasonable time or is revoked;
c. the Customer fails to make a payment within 30 days of the due date;
d. the Customer fails to rectify any other breach of this agreement within a reasonable time of being requested to do so by Pi;
e. if for any reason Pi is unable to perform the Services under this agreement (or any substitute for the Services agreed with the Customer) for any reason beyond Pi’s reasonable control.
12. Consequences of termination. In the event of termination of this agreement for any reason:
a. the Customer will pay Pi a fee, not exceeding any media charges, determined by Pi to be a reasonable amount to compensate Pi for the loss of the benefit of this agreement and disruption to the Pi’s business as well as any costs and expenses incurred by Pi by reason of the termination;
b. the Customer must within 5 working days of such termination, expiration or cessation pay to Pi all fees and expenses outstanding or payable by the Customer to Pi, or which Pi has incurred, as at the date of the termination, expiration or cessation;
c. each party must return to the other party such information and documentation which belongs to the other party and to which the other party is entitled under this agreement or otherwise;
d. the Customer shall assume Pi’s liability under and indemnify Pi for all Claims with respect to all outstanding contracts and commitments made on the Customer’s behalf pursuant to or in connection with this agreement; and
e. the termination, expiration or cessation of this agreement does not prejudice the rights and obligations of each party accrued up to and including the date of such termination, expiration or cessation and does not limit the remedies available to it with respect to any breach of this agreement occurring before such date.
13. Records: Pi must keep adequate records in sufficient detail regarding the performance of the Services by Pi and will provide copies of such records as may reasonably be requested by the Customer upon request in writing to do so.
14. Legal Liability: Pi is not liable or responsible for any loss suffered by the Customer as a consequence of:
a. any missed deadlines, missed closing dates or missed insertions, or for any delay in or omission of publication or transmission or any error in any advertisement, or any other consequences, which arise directly or indirectly in connection with or as a result of an act or omission of the Customer;
b. any delay or interruption in the production or approval of the advertising material;
c. any delay in going live or removal of a campaign on the start date or the end date respectively;
d. the Customer’s delay in performing any task which it is the Customer’s responsibility to perform.
The Customer acknowledges and agrees the average downtime of 5% in running a campaign.
The Customer indemnifies and will keep Pi indemnified against any claim, action, demand, damage, cost, proceeding, loss or other liability whatsoever:
e. based upon a breach or alleged breach of any intellectual property rights of a third party or breach of any duty of confidentiality owed by the Customer to a third party, made on or against Pi arising directly or indirectly from or in connection with the performance of the Services to the extent based upon the use of any information or material provided by the Customer
f. arising directly or indirectly as a consequence of the breach of this agreement, including the breach of any warranty, by the Customer;
g. made against or suffered by Pi as a consequence of any failure by the Customer, to pay all monies costs or expenses howsoever payable under this agreement;
Pi excludes to the fullest extent permitted by law all warranties, representations, conditions and guarantees whether implied by law, trade, custom or otherwise. Where Pi is liable to the Customer for any reason including without limitation, for tort (including negligence), or a breach of an express or implied warranty or condition that may not be excluded, Pi’s liability will, to the extent permitted by law, be limited to, the supplying of the services again or the payment of the cost of doing so.
Except for liability that cannot be excluded by law, and to the extent permitted by law, in no circumstances will Pi (its related companies and their respective employees, officers or agents) be liable, whether in contract, tort or otherwise, for any indirect loss or consequential loss suffered by the Customer, or any other person, being losses of the nature of loss of profit, loss of or damage to goodwill, loss of expected savings or expected revenues, or any other form of expected benefit of any kind whatsoever, even if such damages are foreseeable and whether or not Pi had been advised of the possibility thereof. Pi does not guarantee the end results/ performance/ outcome of the provision of any Services, including the reliance upon any information provided by Pi in the course of or incidental to the performance of the Services. The Customer will be solely responsible for all the consequences of any decision or action taken by the Customer.
15. Third Party agreements: The parties acknowledge and agree that Pi will, in the course of performing the Services, be entering into arrangements with third parties (such as media proprietors) as agent for, and for and on behalf of, the Customer (“Third Party Agreements”). Without limitation, the Customer agrees to indemnify Pi against all Claims which arise in connection with any Third-Party Agreement unless such claim arises from Pi’s breach of this agreement, fraud, negligence or misleading conduct.
Pi must use all reasonable efforts to procure that the relevant third parties (such as the media proprietors) perform their obligations under the Third Party Agreements. The Customer agrees that Pi will not be liable to the Customer for any failure by Pi to perform the Services to the extent that it results from a breach by a third party of a Third Party Agreement.
16. Entire agreement: This agreement contains the entire agreement of the parties with respect to its subject matter. It sets out the only conduct relied on by the parties and supersedes all earlier conduct by the parties with respect to its subject matter.
17. Governing law: This agreement is governed by the laws of the State of New South Wales and the parties submit to the non-exclusive jurisdiction of courts of that State.
18. No waiver: No failure to exercise and no delay in exercising any right, power or remedy under this agreement will operate as a waiver. Nor will any single or partial exercise of any right, power or remedy preclude any other or further exercise of that or any other right, power or remedy.
19. Severance: Any provision of this agreement which is prohibited or unenforceable in any jurisdiction will be ineffective in that jurisdiction to the extent of the prohibition or unenforceability. That will not invalidate the remaining provisions of this agreement nor affect the validity or enforceability of that provision in any other jurisdiction.
Assignment: The Customer cannot without prior written consent of PI, assign its rights or obligations under this agreement. Pi may assign its rights or obligations under this agreement by giving written notice to the Customer.