Based on 4's/IAB Standard Terms and Conditions Version 3.0
'Ad' means any advertisement provided by Agency on behalf of an Advertiser.
'Advertiser' means the entity which advertises or otherwise promotes goods or services on the Media Company's website, pursuant to anagreement between the Advertiser and the Agency for the placement of Ads on the Media Company's website.
'Advertising Materials' means artwork, copy, or active URLs for Ads.
'Affiliate' means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.
'Agency' means the client listed on the applicable IO.
'CPM Deliverables' means Deliverables sold on a cost per thousand impression basis.
'Deliverable' or 'Deliverables' means the inventory delivered by Media Company (e.g., impressions, clicks, or other desired actions).
'IO' means a mutually agreed insertion order that incorporates these Terms, under which Media Company will deliver Ads on Sites for the benefit of Agency or Advertiser.
'Intellectual Property Rights'includes: (a) all copyright (including rights in relation to phonograms and broadcasts); (b) all rights in relation to inventions, plant varieties,trademarks (including service marks), designs and circuit layouts; and (c) all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields, but does not include: (d) Moral Rights; (e) the non-proprietary rights of performers; or (f) rights in relation toConfidential Information (as defined in Section XII.a).
'Media Company' means the Commonwealth of Australia as represented by the Bureau of Meteorology or any other Commonwealth entity responsible for administering any IO.
'Media Company Properties' are websites and/or mobile phone applications specified on an IO that are owned, operated, or controlled by Media Company.
'Moral Rights' means the following non-proprietary rights of authors of copyright material: (a) the right of attribution of authorship; (b) the right of integrity of authorship; and (c) the right not to have authorship falsely attributed.
'Policies' means advertising criteria or specifications made conspicuously available, including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Media Company's public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Site on which the Ads are to appear), other editorial or advertising policies, and Advertising Materials due dates and, without limitation, includes Media Company's Advertising Policy set out at http://advertising.gov.au/bom/policy/ or as updated from time-to-time by written notice from Media Company to Agency ('Advertising Policy').
'Representative' means, as to an entity and/or its Affiliate(s), any director, officer, employee, consultant, contractor, agent, and/or attorney.
'Site' or 'Sites' means Media Company Properties.
'Terms' means these terms and conditions.
'Third Party' means an entity or person that is not a party to an IO; for purposes of clarity, Media Company, Agency, and any Affiliates or Representatives of the foregoing are not Third Parties.
'Third Party Ad Server' means a Third Party that will serve and/or track Ads.
a. IO Details. From time to time, Media Company and Agency may execute IOs that will be accepted as set forth in Section I(b). Each IO accepted by the Parties will constitute a separate contract between the parties which will, except as specified in the IO otherwise, include these Terms. As applicable, each IO will specify: (i) the type(s) and amount(s) of Deliverables, (ii) the price(s) for such Deliverables, (iii) the maximum amount of money to be spentpursuant to the IO, (iv) the start and end dates of the campaign, and (v) the identity of and contact information for any Third Party Ad Server. Other items that may be included are, but are not limited to, reporting requirements, any special Ad delivery scheduling and/or Ad placement requirements, and specifications concerning ownership of data collected.
b. Availability; Acceptance. Media Company will make commercially reasonable efforts to notify Agency within two (2) business days of receipt of an IO signed by Agency if the specified inventory is not available. Acceptance of the IO and these Terms will be deemed the earlier of (i) written (which, unless otherwise specified, for purposes of these Terms, will include paper or e-mail communication) approval of the IO by Media Company and Agency, or (ii) the display of the first Ad impression by Media Company, unless otherwise agreed on the IO. Notwithstanding the foregoing, modifications to the originally submitted IO will not be binding unless approved in writing by both Media Company and Agency.
c. Revisions. Revisions to accepted IOs will be made in writing and acknowledged by the other party in writing.
a. Compliance with IO. Media Company will comply with the IO, including all Ad placement restrictions, and, except as set forth in Section VI(c), will create a reasonably balanced delivery schedule.
b. Changes to Site. Media Company will use commercially reasonable efforts to provide Agency at least 10 business days prior notification of any material changes to the Site that would materially change the target audience or materially affect the size or placement of the Ad specified on the applicable IO. Should such a modification occur with or without notice, as Agency's and Advertiser's sole remedy for such change, Agency may cancel the remainder of the affected placement without penalty within the 10-day notice period. If Media Company has failed to provide such notification, Agency may cancel the remainder of the affected placement within 30 days of such modification and, in such case, will not be charged for any affected Ads delivered after such modification.
c. Technical Specifications. Media Company will submit or otherwise make electronically accessible to Agency final technical specifications within two (2) business days of the acceptance of an IO. Changes by Media Company to the specifications of already-purchased Ads after that two (2) business day period will allow Agency to suspend delivery of the affected Ad for a reasonable time (without impacting the end date, unless otherwise agreed by the parties) inorder to (i) send revised Advertising Materials; (ii) request that Media Company resize the Ad at Media Company's cost, and with final creative approval of Agency, within a reasonable time period to fulfill the guaranteed levels of the IO; (iii) accept a comparable replacement; or (iv) if the parties are unable to negotiate an alternate or comparable replacement in good faith within five (5) business days, immediately cancel the remainder of the affected placement without penalty.
d. Editorial Adjacencies. Media Company acknowledges that certain Advertisers may not want their Ads placed adjacent to content that promotes pornography,violence, or the use of firearms, contains obscene language, or falls within another category stated on the IO ('Unwanted Content'). Media Company will use commercially reasonable efforts to ensure that Ads are not placed adjacent to Unwanted Content, although Media Company will at all times retain editorial control over the Media Company Properties. Should Ads appear adjacent to Unwanted Content, Agency's sole and exclusive remedy is to request in writing that Media Company remove the Ads and provide credit to the Agency for make-good Ads to the value of the Ads that appeared adjacent to the Unwanted Content. After Agency notifies Media Company that specific Ads are appearing (or have appeared) next to Unwanted Content, Media Company will make commercially reasonable efforts to correct such violation within 24 hours. If such correction materially and adversely impacts such IO, Agency and Media Company will negotiate in good faith mutually agreed changes to such IO to address such impacts. Notwithstanding the foregoing, Agency acknowledges and agrees that it will not be entitled to any remedy for any placement of Ads next to Unwanted Content resulting from: (i) the Ads being placed, inaccordance with the IO, at locations other than the Sites, or (ii) Ads being displayed on properties that Agency or Advertiser is aware, or should beaware, may contain Unwanted Content.
a. Invoices. Invoices will be sent by Media Company upon completion of the first month's delivery, or within 30 days of completion of the IO, whichever is earlier. Invoices will be sent to Agency's billing address as set forth on the IO and will include information reasonably specified by Agency, such as theIO number, Advertiser name, brand name or campaign name, and any number or other identifiable reference stated as required for invoicing on the IO. Allinvoices (other than corrections of previously provided invoices) pursuant to the IO will be sent within 90 days of delivery of all Deliverables.
Upon request from the Agency, Media Company should provide proof of performance for the invoiced period, which may include access to online or electronic reporting, as addressed in these Terms, subject to the notice and cure provisions of Section IV. Media Company should invoice Agency for the services provided on a calendar-month basis with the net cost (i.e., the cost after subtracting Agency commission, if any) based on actual delivery,flat-fee, or based on prorated distribution of delivery over the term of the IO, as specified on the applicable IO.
b. Payment Date. Agency will make payment 30 days from its receipt of invoice, or as otherwise stated in a payment schedule set forth on the IO. For payments not made within 60 days of issuing the invoice (and the invoiced amount is not being disputed) the Agency is required to pay an additional interest fee, which is based on an interest rate of 10% per annum calculated on a daily basis by reference to the amount of the invoice that remains unpaid each day. For delay of payment beyond 60 days of issuing the invoice Media Company may terminate the IO in accordance with clause V.c.
c. The following terms apply to Goods and Services Tax:
i. In this clause III.c, 'GST' has the meaning that it has in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
ii. Unless otherwise indicated, any consideration for a supply under these Terms includes an amount for GST imposed on the supply on the basis that thesupply is a taxable supply. If an amount on account of GST has been included in the consideration for a supply under these Terms and the supply is not a taxable supply for any reason, the supplier must refund to the recipient on demand the amount paid on account of GST.
iii. Media Company must give the Agency a tax invoice for any taxable supply made under these Terms before any consideration for that supply is payable,and Media Company will give Agency an adjustment note for any amount on account of GST refunded to the Agency at the same time the amount is refunded. No party may claim or retain from the other party any amount in relation to a supply made under these Terms for which the first party can obtain an input tax credit or decreasing adjustment.
d. Agency must pay all taxes, duties and government charges imposed in connection with these Terms.
a. Confirmation of Campaign Initiation. Media Company will, within two (2) business days of the start date on the IO, provide confirmation to Agency, either electronically or in writing, stating whether the components of the IO have begun delivery.
b. Media Company Reporting. If Media Company is serving the campaign, Media Company will make reporting available at least as often as weekly, eitherelectronically or in writing, unless otherwise specified on the IO. Reports will be broken out by day and summarized by creative execution, content area(Ad placement), impressions, clicks, spend/cost, and other variables as may be defined on the IO (e.g., keywords).
Once Media Company has provided the online or electronic report, it agrees that Agency is entitled to reasonably rely on it, subject to provision of Media Company's invoice for such period.
c. Makegoods for Reporting Failure. If Media Company fails to deliver an accurate and complete report by the time specified, Agency may initiate makegood discussions pursuant to Section VI, below.
If Agency informs Media Company that Media Company has delivered an incomplete or inaccurate report, or no report at all, Media Company will cure suchfailure within five (5) business days of receipt of such notice. Failure to cure may result in nonpayment for all activity for which data is incomplete ormissing until Media Company delivers reasonable evidence of performance; such report will be delivered within 30 days of Media Company's knowledge of such failure or, absent such knowledge, within 180 days of delivery of all Deliverables.
a. Without Cause (by Agency). Unless designated on the IO as non-cancelable, Agency may cancel the entire IO, or any portion thereof, as follows:
i. With 14 days' prior written notice to Media Company, without penalty, for any guaranteed Deliverable, including, but not limited to, CPM Deliverables.For clarity and by way of example, if Agency cancels the guaranteed portions of the IO eight (8) days prior to serving of the first impression, Agency will only be liable for the first six (6) days of those Deliverables.
ii. With seven (7) days' prior written notice to Media Company, without penalty, for any non-guaranteed Deliverable, including, but not limited to, CPC Deliverables, CPL Deliverables, or CPA Deliverables, as well as some non-guaranteed CPM Deliverables.
iii. With 30 days' prior written notice to Media Company, without penalty, for any flat fee- based or fixed-placement Deliverable, including, but not limited to, roadblocks, time- based or share-of-voice buys, and some types of cancelable sponsorships.
iv. Agency will remain liable to Media Company for amounts due for any custom content or development ('Custom Material')provided to Agency or completed by Media Company or its third-party vendor prior to the effective date of termination. For IOs that contemplate theprovision or creation of Custom Material, Media Company will specify the amounts due for such Custom Material as a separate line item. Agency will pay for such Custom Material within 30 days from receiving an invoice therefore.
b. Without Cause (by Media Company). Media Company may by written notice, at any time and in its absolute discretion, terminate an IO or reduce the scope of an IO. Such termination or reduction takes effect by the date specified in the notice issued to the Agency, being at least 7 calendar days from the date ofthe notice. In the event of a reduction in scope under this clause, Agency must continue to perform any unaffected obligations under these Terms. Agency'sliability to pay fees will, unless there is agreement in writing to the contrary, reduce in accordance with the Deliverables not provided as a result of the termination or reduction in scope. Agency will not be entitled to compensation for damages as a result of the termination or reduction, including loss of prospective profits.
c. For Cause. Either Media Company or Agency may terminate an IO at any time if the other party is in material breach of its obligations hereunder, which breach is not cured within 10 days after receipt of written notice thereof from the non-breaching party, except as otherwise stated in these Terms with regard tospecific breaches. Additionally, if Agency breaches its obligations by violating the terms of a Policy (and such Policy was provided to Agency orAdvertiser), even if Agency or Advertiser cures such breaches, then Media Company may terminate the IO or placements associated with such breach upon written notice.
a. Notification of Under-delivery. Media Company will monitor delivery of the Ads, and will notify Agency either electronically or in writing as soon aspossible (and no later than 14 days before the applicable IO end date unless the length of the campaign is less than 14 days) if Media Company believes that an under-delivery is likely. In the case of a probable or actual under-delivery, Agency and Media Company may arrange for a makegood consistent withthese Terms.
b. Makegood Procedure. If actual Deliverables for any campaign fall below guaranteed levels, as set forth on the IO, and/or if there is an omission of any Ad (placement or creative unit), Agency and Media Company will use commercially reasonable efforts to agree upon the conditions of makegood, either on the IO or at the time of the shortfall. If no makegood can be agreed upon, Agency may execute a credit equal to the value of the under-delivered portion of the IO for which it was charged. If Agency has made a cash prepayment to Media Company, specifically for the campaign IO for which under-delivery applies,then, if Agency has paid all amounts owed to Media Company under any other agreement for such Advertiser, Agency may elect to receive a refund for the under-delivery equal to the difference between the applicable pre-payment and the value of the delivered portion of the campaign. In no event will Media Company provide a makegood or extend any Ad beyond the period set forth on the IO without the prior written consent of Agency.
a. Media Company may bonus as many ad units as Media Company chooses unless otherwise indicated on the IO. Agency will not be charged by Media Company for any additional Deliverables above any level guaranteed on the IO.
a. Generally. Excluding payment obligations, neither Agency nor Media Company will be liable for delay or default in the performance of its respective obligations under these Terms if such delay or default is caused by conditions beyond its reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes ('Force Majeure event'). If Media Company suffers such a delay or default, Media Company will make reasonable efforts within five (5) business days to recommend a substitute transmission for the Ad or time period for the transmission. If no such substitute time period or makegood is reasonably acceptable to Agency, Media Company will allow Agency a pro rata reduction in the space, time, and/or program charges hereunder in the amount of money assigned to the space, time, and/or program charges at time of purchase. In addition, Agency will have the benefit of the same discounts that would have been earned had there been no default or delay.
b. Related to Payment. If Agency's ability to transfer funds to third parties has been materially negatively impacted by an event beyond the Agency'sreasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Agency will make every reasonableeffort to make payments on a timely basis to Media Company, but any delays caused by such condition will be excused for the duration of such condition. Subject to the foregoing, such excuse for delay will not in any way relieve Agency from any of its obligations as to the amount of money that would have been due and paid without such condition.
c. Cancellation. If a Force Majeure event has continued for five (5) business days, Media Company and/or Agency has the right to cancel the remainder ofthe IO without penalty.
a. Submission. Agency will submit Advertising Materials pursuant to Section II(c) in accordance with Media Company's then-existing Policies.
b. Late Creative. If Advertising Materials are not received by the IO start date, Media Company will begin to charge the Agency on the IO start date on apro rata basis based on the full IO, excluding portions consisting of performance-based, non-guaranteed inventory, for each full day the Advertising Materials are not received. If Advertising Materials are late based on the Policies, Media Company is not required to guarantee full delivery of the IO. Media Company and Agency will negotiate a resolution if Media Company has received all required Advertising Materials in accordance with Section IX(a) butfails to commence a campaign on the IO start date.
d. Damaged Creative. If Advertising Materials provided by Agency are damaged, not to Media Company's specifications, or otherwise unacceptable, Media Company will use commercially reasonable efforts to notify Agency within two (2) business days of its receipt of such Advertising Materials.
e. No Modification. Media Company will not edit or modify the submitted Ads in any way, including, but not limited to, resizing the Ad, without Agency's approval. Media Company will use all Ads in strict compliance with these Terms and any written instructions provided on the IO.
f. Ad Tags. When applicable, Third Party Ad Server tags will be implemented so that they are functional in all aspects.
g. Trademark Usage. Media Company, on the one hand, and Agency, on the other, will not use the other's trade name, trademarks, logos, or Ads in any publicannouncement (including, but not limited to, in any press release) regarding the existence or content of these Terms or an IO without the other's prior written approval.
a. Media Company will not be liable for any damages, liabilities, costs, and expenses (including legal costs and expenses on a solicitor/own client basis and thecost of time spent, resources used or disbursements paid by the Media Company) (collectively, 'Losses') resulting from claim, judgment, orproceeding (collectively, 'Claims') to the extent that such Claims result from (1) Media Company's customization of Ads or Advertising Materials based upon detailed specifications, materials, or information provided by the Advertiser, Agency, and/or each of its Affiliates and/orRepresentatives, or (2) a user viewing an Ad outside of the targeting set forth on the IO, which viewing is not directly attributable to Media Company's serving such Ad in breach of such targeting.
b. By Agency. Agency will defend, indemnify, and hold harmless Media Company and each of its Affiliates and Representatives from Losses resulting from any Claimsbrought by a Third Party resulting from:
i. Agency's alleged breach of any of these Terms,
ii. any act or omission involving fault on the part of Agency or its Representatives in connection with these Terms; and
iii. any allegation that any material provided by Agency (including any material provided by or on behalf of an Advertiser), or any act of the Agency (or an Advertiser) in relation to these Terms infringes any Intellectual Property Right or other right of any person.
c. Indemnity not exclusive right. The right of Media Company to be indemnified under Section X.b.iii is in addition to, and not exclusive of, any other right, power or remedy provided by law, but Media Company is not entitled to be compensated in excess of the amount of the relevant cost, liability, loss,damage or expense.
a. Procedure. Where Media Company wishes to enforce the indemnity in Section X.a, Media Company shall notify Agency in writing as soon as practicable, and shall reasonably permit and assist Agency, at Agency's expense, to handle all negotiations or settlement and, as permitted by law, to control and directany litigation that may follow. In defending Media Company or otherwise dealing with any Claim, Agency shall comply with the following provisions of theCommonwealth Attorney-General's Legal Services Directions issued under section 55ZF of the Judiciary Act 1903 (Cth) (the Legal ServicesDirections) as if Agency were Media Company: (a) paragraph 4.2 and Appendix B - which provide that claims are to be handled and litigation is to beconducted as a model litigant; (b) paragraph 4.3 - which provides that claims and litigation are to be conducted in accordance with legal principle and practice (as that expression is amplified in paragraph 2 of Appendix C to the Legal Services Directions); and paragraph 8 - which requires reliance on statutory limitation periods unless approval otherwise is given. Agency shall keep Media Company informed of any significant developments relating to theconduct of negotiations and the defence of any Claim; consult with Media Company immediately in circumstances where the requirements stated in the LegalServices Directions, paragraph 2 (Tied work) or paragraph 10 (Sharing of advice within Government) arise; and provide to Media Company, information anddocumentation reasonably requested by Media Company, to enable Media Company to ascertain whether the defence by Agency of any Claim or any negotiation orother relevant matter is being conducted in accordance with the provisions of the Legal Services Directions and Media Company's best interests. The information and documentation that Agency is obliged under this Section to provide to Media Company includes information and documentation covered by legal professional privilege or any other confidentiality obligation.
Excluding Agency’s, Advertiser’s, and Media Company’s respective obligations under Section X, damages that result from a breach of Section XII, or intentional misconduct by Agency, Advertiser, or Media Company, in no event will any party be liable for any consequential, indirect, incidental, punitive, special, or exemplary damages whatsoever, including, but not limited to, damages for loss of profits, business interruption, loss of information, and the like, incurred by another party arising out of an IO, even if such party has been advised of the possibility of such damages.
a. Confidential Information. 'Confidential Information' means information of Agency or an Advertiser specifically agreed by Media Company to constitute confidential information. Media Company will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Media Company shall not disclose Confidential Information to anyone exceptan employee, agent, Affiliate, or third party who has a need to know same, and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as are those in this section. Media Company will not use Confidential Information other than as provided for on theIO.
b. Official Information. 'Official Information' means any information developed, received or collected by or on behalf of Media Company to which Agency gains access under or in connection with these Terms, and includes these Terms and each IO. Agency will not, without prior writtenauthorisation of Media Company, disclose any Official Information to any person (unless required to do so by law). Agency is authorised to provide Official Information to those Representatives who require access for the purposes of these Terms, subject to each Representative entering into a binding confidentiality agreement relating to the protection and non-disclosure of Official Information. In addition, Agency agrees to secure all Official Information against loss and unauthorised access, use, modification or disclosure. Agency also agrees to deliver up or destroy any and all copies of Official Information on expiration or termination of any IO if requested by the Media Company.
c. Information not protected. Notwithstanding anything contained herein to the contrary, the terms 'Confidential Information' and 'Official Information' will not include information which: (i) was previously known to the party receiving the information ('Recipient'); (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient's possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by the disclosing party ('Discloser'); (iv) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information or Official Information (as applicable); or (v) wascommunicated by Discloser to an unaffiliated third party free of any obligation of confidentiality or secrecy.
d. Exceptions. An obligation of a party under this Section XII will not be taken to have been breached to the extent that Confidential Information:
i. is disclosed in accordance with the provisions of these Terms by the Media Company to its personnel for the sole purpose of and only to the extent strictly necessary to comply with its obligations, or to exercise its rights, under these Terms;
ii. is made available by the Media Company to its personnel on a 'needs to know basis';
iii. is made available by the Media Company to its auditor or a professional adviser on a 'needs to know basis' and in such circumstances where they are legally bound to comply with confidentiality and security requirements no less stringent than under these Terms;
iv. is disclosed for use by any Minister of the Australian Government;
v. is disclosed in order to respond to a request or direction of a House, or a request by a Committee, of the Parliament of the Commonwealth of Australia,for information;
vi. is used by Media Company or disclosed to and used by another government agency, where this serves the Australian Government's legitimate interests; or
vii. is authorised or required by Law to be disclosed by the Media Company.
e. Additional Definitions. As used herein the following terms shall have the following definitions:
i. 'IO Details' are details set forth on the IO but only when expressly associated with the applicable Discloser, including, but not limited to, Ad pricing information, Ad description, Ad placement information, and Ad targeting information.
ii. 'Performance Data' is data regarding a campaign gathered during delivery of an Ad pursuant to the IO(e.g., number of impressions, interactions, and header information), but excluding Site Data or IO Details.
iii. 'Site Data' is any data that is (A) preexisting Media Company data used by Media Company pursuant to the IO; (B) gathered pursuant to the IO during delivery of an Ad that identifies or allows identification of Media Company, Media Company's Site, brand, content, context, or users as such; or (C) entered by users on any Media Company Site.
iv. 'Collected Data' consists of IO Details, Performance Data, and Site Data.
v. 'Repurposing' means retargeting a user or appending data to a non-public profile regarding a user for purposes other than performance of the IO.
vi. 'Aggregated' means a form in which data gathered under an IO is combined with data from numerous campaigns of numerous Advertisers and precludes identification, directly or indirectly, of an Advertiser.
f. Use of Collected Data.
i. Unless otherwise authorized by Media Company, Agency will not: (A) use Collected Data for Repurposing; provided, however, that Performance Data may beused for Repurposing so long as it is not joined with any IO Details or Site Data; (B) disclose IO Details of Media Company or Site Data to any Affiliateor Third Party except as set forth in Section XII(d)(iii).
ii. Unless otherwise authorized by Agency, Media Company will not use or disclose IO Details of Advertiser, Performance Data, or a user's recorded view orclick of an Ad, each of the foregoing on a non-Aggregated basis, for Repurposing or any purpose other than performing under the IO, compensating dataproviders in a way that precludes identification of the Advertiser, or internal reporting or internal analysis.
iii. Agency and Media Company (each a 'Transferring Party') will require any Third Party or Affiliate used by the Transferring Party in performance of the IO on behalf of such Transferring Party to be bound by confidentiality and non-use obligations at least as restrictive as those on the Transferring Party, unless otherwise set forth in the IO.
h. Compliance with Law. Agency and Media Company will at all times comply with all federal, state, and local laws, ordinances, regulations, and codes which are applicable to their performance of their respective obligations under the IO.
i. Agency Use of Data. Agency will not: (i) use Collected Data unless Advertiser is permitted to use such Collected Data, nor (ii) use Collected Data inways that Advertiser is not allowed to use such Collected Data. Notwithstanding the foregoing or anything to the contrary herein, the restrictions on Advertiser in Section XII(d)(i) shall not prohibit Agency from (A) using Collected Data on an Aggregated basis for internal media planning purposes only (but not for Repurposing), or (B) disclosing qualitative evaluations of Aggregated Collected Data to its clients and potential clients, and Media Companieson behalf of such clients or potential clients, for the purpose of media planning.
XIII. Third Party Ad Serving and Tracking (Applicable if Third Party Ad Server is used)
a. Ad Serving and Tracking. Media Company will track delivery through its ad server and, provided that Media Company has approved in writing a Third Party Ad Server to run on its properties, Agency will track delivery through such Third Party Ad Server. Agency may not substitute the specified Third Party Ad Server without Media Company's prior written consent.
b. Controlling Measurement. If both parties are tracking delivery, the measurement used for invoicing advertising fees under an IO (' Controlling Measurement') will be determined as follows:
i. Except as specified in Section XIII(b)(iii), the Controlling Measurement will be taken from an ad server that is certified as compliant with theIAB/AAAA Ad Measurement Guidelines (the 'IAB/AAAA Guidelines').
ii. If both ad servers are compliant with the IAB/AAAA Guidelines, the Controlling Measurement will be the Third Party Ad Server if such Third Party AdServer provides an automated, daily reporting interface which allows for automated delivery of relevant and non-proprietary statistics to Media Company in an electronic form that is approved by Media Company; provided, however, that Media Company must receive access to such interface in the timeframe set forth in Section XIII(c), below.
iii. If neither party's ad server is compliant with the IAB/AAAA Guidelines or the requirements in subparagraph (ii), above, cannot be met, the ControllingMeasurement will be based on Media Company's ad server, unless otherwise agreed by Agency and Media Company in writing.
c. Ad Server Reporting Access. As available, the party responsible for the Controlling Measurement will provide the other party with online or automated access to relevant and non-proprietary statistics from the ad server within one (1) day after campaign launch. The other party will notify the party with Controlling Measurement if such party has not received such access. If such online or automated reporting is not available, the party responsible for the Controlling Measurement will provide placement-level activity reports to the other party in a timely manner, as mutually agreed to by the parties or as specified in Section IV(b), above, in the case of Ads being served by Media Company. If both parties have tracked the campaign from the beginning and the party responsible for the Controlling Measurement fails to provide such access or reports as described herein, then the other party may use or provide its ad server statistics as the basis of calculating campaign delivery for invoicing. Notification may be given that access, such as login credentials orautomated reporting functionality integration, applies to all current and future IOs for one or more Advertisers, in which case new access for each IO isnot necessary.
d. Discrepant Measurement. If the difference between the Controlling Measurement and the other measurement exceeds 10% over the invoice period and the Controlling Measurement is lower, the parties will facilitate a reconciliation effort between Media Company and Third Party Ad Server measurements. If the discrepancy cannot be resolved and a good faith effort to facilitate the reconciliation has been made, Agency reserves the right to either:
i. Consider the discrepancy an under-delivery of the Deliverables as described in Section VI(b), whereupon the parties will act in accordance with that Section, including the requirement that Agency and Media Company make an effort to agree upon the conditions of a makegood flight and delivery of anymakegood will be measured by the Third Party Ad Server, or
ii. Pay invoice based on Controlling Measurement-reported data, plus a 10% upward adjustment to delivery.
e. Measurement Methodology. Media Company will make reasonable efforts to publish, and Agency will make reasonable efforts to cause the Third Party AdServer to publish, a disclosure in the form specified by the AAAA and IAB regarding their respective ad delivery measurement methodologies with regard to compliance with the IAB/AAAA Guidelines.
f. Third Party Ad Server Malfunction. Where Agency is using a Third Party Ad Server and that Third Party Ad Server cannot serve the Ad, Agency will have a one-time right to temporarily suspend delivery under the IO for a period of up to 72 hours. Upon written notification by Agency of a non-functioning ThirdParty Ad Server, Media Company will have 24 hours to suspend delivery. Following that period, Agency will not be held liable for payment for any Ad that runs within the immediately following 72-hour period until Media Company is notified that the Third Party Ad Server is able to serve Ads. After the 72-hour period passes and Agency has not provided written notification that Media Company can resume delivery under the IO, Agency will pay for the Ads that would have run, or are run, after the 72-hour period but for the suspension, and can elect Media Company to serve Ads until the Third Party Ad Server is able to serve Ads. If Agency does not so elect for Media Company to serve the Ads until Third Party Ad Server is able to serve Ads, Media Company may use the inventory that would have been otherwise used for Media Company's own advertisements or advertisements provided by a Third Party.
g. Third Party Ad Server Fixed. Upon notification that the Third Party Ad Server is functioning, Media Company will have 72 hours to resume delivery. Any delay in the resumption of delivery beyond this period, without reasonable explanation, will result in Media Company owing a makegood to Agency.
a. Necessary Rights. Media Company represents that Media Company has all necessary permits, licenses, and clearances to sell the Deliverables specified onthe IO subject to these Terms. Agency represents and warrants that it and/or Advertiser (as appropriate) has all necessary licenses and clearances to use the content contained in the Ads and Advertising Materials as specified on the IO and subject to these Terms, including any applicable Policies.
b. Assignment. The Agency may not resell, assign, or transfer any of its rights or obligations hereunder, and any attempt to resell, assign, or transfer such rights or obligations without Media Company's prior written approval will be null and void. All terms and conditions in these Terms and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.
c. Entire Agreement. Each IO (including the Terms) will constitute the entire agreement of the parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to thesubject matter of the IO. The IO may be executed in counterparts, each of which will be an original, and all of which together will constitute one and thesame document.
d. Conflicts; Governing Law; Amendment. In the event of any inconsistency between the terms of an IO and these Terms, the terms of the IO will prevail. These Terms and all IOs will be governed by the laws of the State of Victoria, Australia. Media Company and Agency submit to the non-exclusive jurisdiction of the State of Victoria. No modification of these Terms will be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative.
e. Notice. Any notice required to be delivered hereunder will be deemed delivered:
i. upon delivery if delivered by hand
ii. upon delivery to the relevant address if sent by postage paid mail, return receipt requested,
iii. immediately if sent electronically or by fax.
A notice received after 5.00 pm, or on a day that is not a business day in the place of receipt, is deemed to be effected on the next business day in thatplace.
All notices to Media Company and Agency will be sent to the contact as noted on the IO.
f. Survival. Sections III, VI, X, XI, XII, XIV, XV and XVI will survive termination or expiration of these Terms, and Section IV will survive the termination or expiration of these Terms.
g. Archiving: Each party will promptly return or destroy the other party's Confidential Information upon written request and remove Advertising Materials and Ad tags upon termination of these Terms, except that Media Company may archive any materials containing Agency's Confidential Information if requiredby law.
h. Headings. Section or paragraph headings used in these Terms are for reference purposes only, and should not be used in the interpretation hereof.
i. Relationship of parties. The Agency is not by virtue of this contract an officer, employee, partner or agent of the Media Company, nor does the Agency have any power or authority to bind or represent the Media Company. The Agency agrees:
i. not to misrepresent its relationship with the Media Company; and
ii. not to engage in any misleading or deceptive conduct in relation to an IO.
j. Waiver. A failure or delay by a party to exercise any right or remedy it holds under an IO or at law does not operate as a waiver of that right. A single or partial exercise by a party of any right or remedy it holds under any IO or at law does not prevent the party from exercising the right again or to the extent it has not fully exercised the right.
a. Agency agrees:
i. to effect and maintain the insurance specified in this Section; and
ii. on request, to provide proof of insurance acceptable to the Media Company.
b. Required insurance:
i. workers' compensation as required by law;
ii. public liability insurance to a value of [$1 million]; and
iii. professional negligence insurance to a value of [$1 million].
a. In this Section XVII: 'Conflict' means any matter, circumstance, interest, or activity affecting the Agency, its personnel or subcontractors which may or may appear to impair the ability of the Agency to perform its obligations under any IO diligently and independently. A conflict of interest may existif:
i. the Agency has a relationship with, and obligations to a person or an organisation which would affect the performance of its obligations under these Terms or would bring disrepute to or embarrass the Media Company; or
ii. the Agency has as part of its business offers or has involvement with the delivery of similar services (weather, climate, water, environment, volcanic or space weather) to the Media Company. This may include but is not restricted to a website, mobile application or publisher.
b. The Agency warrants that, to the best of its knowledge after making diligent inquiry, at the date of execution of each IO, no Conflict exists or is likely to arise in the performance of obligations under these Terms.
c. If, during the period of any IO a Conflict arises, or appears likely to arise, or a previous assessed interest changes resulting in a likely conflict,the Agency agrees:
i. to notify the Media Company immediately;
ii. to make full disclosure of all relevant information relating to the Conflict; and
iii. to take any steps the Media Company reasonably requires to resolve or otherwise deal with the Conflict.
a. In this clause XIX: 'Illegal Worker' means a person who has unlawfully entered Australia, remains in Australia after their visa has expired, or is working in breach of their visa conditions.
b. The Agency must ensure that its Representatives do not include any Illegal Workers and must notify the Agency immediately if it becomes aware of any ofits Representatives being an Illegal Worker.
a. The Media Company grants (or will procure) a royalty-free, non-exclusive licence for the Agency to use, reproduce and adapt any Material provided by the Media Company to the Agency ('Commonwealth Material') for the purposes of any IO.
b. The Agency agrees to use the Commonwealth Material strictly in accordance with any direction from the Media Company.
a. In this Section XXI:
i. 'Indigenous enterprise' means an organisation that is 50% or more Indigenous owned that is operating a business;
ii. 'Indigenous Procurement Policy' means the Indigenous Procurement Policy of the Commonwealth, details of which are available at http://www.dpmc.gov.au/indigenous-affairs/publication/commonwealth-indigenous-procurement-policy
b. It is Commonwealth policy to stimulate Indigenous entrepreneurship and business development, providing Indigenous Australians with more opportunities to participate in the economy.
c. The Agency must use its reasonable endeavours to increase its:
i. purchasing from Indigenous enterprises; and
ii. employment of Indigenous Australians,
iii. in the delivery of any IO.
d. Purchases from Indigenous enterprises may be in the form of engagement of an Indigenous enterprise as a subcontractor, and use of Indigenous suppliers in the Agency's supply chain.
a. The Agency must comply with its obligations, if any, under the Workplace Gender Equality Act 2012 (Cth) (the WGE Act).
b. If the Agency becomes non-compliant with the WGE Act during the term of this contract, the Agency must promptly notify the Media Company.
c. If the term of any IO exceeds 18 months, the Agency must provide a current letter of compliance from the Workplace Gender Equality Agency within 18 months from the commencement of any IO and, following this, annually to the Media Company.
d. Compliance with the WGE Act does not relieve the Agency from its responsibility to comply with its other obligations under any IO.
a. The Agency agrees, in carrying out any IO, to comply with:
i. all relevant legislation, codes of practice and national standards relating to work health and safety, including in relation to consultation, representation and participation; and
ii. all applicable policies and procedures relating to work health and safety,
iii. including those that apply to the Media Company's premises when using those premises.
b. In the event of any inconsistency between any of the policies and procedures referred to in Section XXIII. a, the Agency will comply with those policies and procedures that produce the highest level of health and safety.