1. Terms and Conditions
These Terms and Conditions apply to the Services to be provided by Impulse Screen Media Pty Ltd (ABN 74 161 946 201) trading as iNC Digital Media (“iNC”) for the Client, further details of which are set out in the Advertising Order.
2. Defined terms
In these Terms and Conditions the following terms have the following meanings:
- “Accredited Agency” has the meaning given in clause 16;
- “Advertising” means all advertising, marketing and related services, and/or as the context requires, the advertisements and other materials and content that are the subject or end result of those services (but excludes the Creative Services) and includes material in any form lodged for broadcast, publication or communication as an advertisement (including as published advertorial or social media comments);
- “Advertising Order” means an order for Services in the format required by iNC and that has been accepted by iNC;
- “Agreement” means the agreement between the Client and iNC in respect of the Services, comprised of the Advertising Order, these Terms and Conditions and any schedules and attachments to the Advertising Order;
- “Approved Booking Agent” means an advertising booking agent approved in writing by iNC;
- “Approved Unaccredited Agency” means an advertising agency approved in writing by iNC for the purposes of this Agreement, other than an Accredited Agency;
- “Business Day” means a day other than a Saturday, Sunday or public holiday in New South Wales;
- “Claim” means any and all proceedings, demands, losses, costs (including legal costs on a full indemnity basis), damages and other liabilities of any nature taken, made or awarded against or incurred by iNC and/or its employees, officers and agents including, without limitation, as a result of claims by third parties;
- “Client” means:
- the person or company specified as the “Client” in the Advertising Order; and/or
- where any Services have been ordered by an advertising or similar agency in an Advertising Order, the term includes that agency.
- “Creative Services” means creative, production or related services;
- “Fees” means the fees applicable to the provision of the Services, including, without limitation, any set out in Advertising Order, other fees in accordance with clause 11, and unless the context requires otherwise includes any third party disbursements;
- “Initial Term” means the longer of the following periods;
- the period ending 90 days from the date of execution of this Agreement;
- a later end date if specified in the Advertising Order; and
- a later end date specified in any agreement for Creative Services;
- “Insolvency Event” means an act of bankruptcy (in the case of an individual), or if an entity is unable to pay its debts as and when they fall due, enters into any arrangement with its creditors other than in the ordinary course of business, passes a resolution for administration, winding up or liquidation (other than for the purposes of re-organisation or reconstruction), has a receiver, manager, liquidator or administrator appointed to any of its property or assets or any petition is presented for its winding up (all in the case of a body corporate);
- “Material” means, in connection with Advertising, all written, audio, video or other digital advertising assets necessary to complete the Advertising Order and, if Creative Services are to be provided by iNC, will include all advertisements, advertising copy, advertising script, creative proposals, sound recordings, audio and any other material necessary or requested by iNC to enable iNC to perform the Creative Services;
- “Services” means the Advertising and/or Creative Services to be provided by iNC hereunder; and
- “Term” means the Initial Term and any extension thereto in accordance with clause 4.
This Agreement cannot be varied except in writing signed by the parties.
A completed written Advertising Order must be executed by an authorised representative of iNC.
In the event of any conflict between these Terms and Conditions, any Advertising Order or any schedule or attachment to any Advertising Order and these Terms and Conditions, these Terms and Conditions will prevail.
Unless otherwise agreed by iNC in writing, this Agreement will continue, at a minimum, for the Initial Term. After the expiry of the Initial Term this Agreement will continue on a rolling month to month basis, unless terminated by either party by the provision of not less than 28 days’ prior written notice to the other.
5. The Client and agency
Where Services have been ordered by a Client that is an advertising or similar agency, the agent agrees to be bound by these terms and conditions as both principal and agent for its client.
Where the Client is ordering Services on behalf of another entity, the Client represents and warrants that it has been authorised by each such entity to act as its agent in all respects relating to the Agreement, including, without limitation, the making of elections or giving of any consents.
Each person that signs an Advertising Order or any part of an Agreement purportedly on behalf of a Client warrants that they have the authority to bind the Client in accordance with this Agreement.
6. Deadlines for Material
The Client must deliver the Material to iNC and instructions for use of such Material within the timeframes specified in writing by iNC (or as may otherwise be agreed in writing between the parties) for such Materials and or instructions as the case may be.
In submitting any Material or in submitting any changes to Material, the Client must comply with the submission requirements and deadlines set out above or as otherwise notified to the Client by iNC.
iNC will not be obliged to accept any Material, Advertising or order for Creative Services which has not been submitted in this manner or is not otherwise in accordance with this Agreement.
7. Client Undertakings in Relation to Content
The Client undertakes and warrants to iNC that no Advertising and no Material provided by or on behalf of the Client will:
- contravene the Broadcasting Services Act 1992 (Cth), the Competition and Consumer Act 2010 (Cth), the Privacy Act 1988 (Cth) or equivalent or other legislation or code in force in any State or Territory of Australia;
- infringe copyright, trademark or other intellectual property or moral rights of any person (including any legal or equitable right of confidentiality);
- contain material that is obscene, offensive, discriminatory, defamatory, or otherwise unsuitable for broadcast, communication or publication;
- infringe any applicable laws, regulations and advertising and broadcasting codes or standards; or
- give rise to any liability on the part of iNC, cause iNC to be in breach of any law by virtue of broadcasting, communicating or publishing of the Advertising or utilising the Material, or result in a claim being made against iNC.
8. iNC’s right to reject Advertising or Material
iNC may in its absolute discretion at any time and without notice to the Client cancel, reject or refuse to broadcast, communicate or publish or to continue broadcasting, communicating or publishing any Advertising or Material, without providing any reason for such rejection or refusal at any time prior to, or after, publication of the Advertising, provided this right will not be unreasonably exercised.
iNC shall have no liability to the Client in respect of any action taken pursuant to this clause 8.
In the event that an event in clause 8.1 occurs, iNC may at its sole discretion, provide the Client with credit which may be used against an alternative campaign (subject to availability) or a refund in respect of Fees paid for Advertising not broadcast, communicated or published as a result of iNC exercising its discretion not to do so pursuant to this clause.
9. Campaign Start Times
Unless specified otherwise in the Advertising Order, all Advertising must be booked at least 7 Business Days before the scheduled start date specified in the Advertising Order.
Subject to availability and these Terms and Conditions, iNC will use reasonable endeavours to “go live” with Advertising by any scheduled specified times or periods set out in the Advertising Order or otherwise agreed between the parties.
The Client acknowledges and agrees that iNC and its agents and subcontractors may, at their discretion, vary the content, position, placement and formatting of Advertising. Such variations by iNC will not constitute a breach of this Agreement nor in any way affect the obligation of the Client to pay the Fees.
iNC will determine in its discretion, the online publishers or platforms on which the Advertising will run during the course of any campaign or booking. The Client acknowledges that iNC does not operate or control the online publishers or platforms and, at any time during a campaign, the mix of online publishers/platforms may change, including at iNC’s discretion.
Where the Services involve the provision of delivery of Advertising on social media or any other digital media channels, iNC shall use reasonable endeavours to deliver Advertising targeted to local customers. In order to enable iNC to deliver this Service, the Client must provide access to its digital media accounts including Google, Facebook and/or other digital and social media account(s) (as applicable) and authorises iNC to act as its administrator solely in connection with promotion of their ads on these digital platforms. All applicable third-party digital media platform terms and conditions and policies will apply to these activities. iNC reserves the right to refuse or alter any Advertising or content it deems unsuitable in its absolute discretion, acting reasonably.
11. Payment of Fees
11.1 The Client agrees to pay the Fees set out in the Advertising Order including, as applicable the following, in the amounts as set out in the Advertising Order:
- The “Campaign Management Fee”, which represents campaign management, optimisation, reporting and booking services and use of platforms and tools. The Campaign Management Fee will be 30 per cent (unless another figure is approved in writing by iNC) of the costs of the following:
The Campaign Management Fee will be included in any invoice provided to the Client.
- Google suite of products (including but not limited to Google Ads, GDN, Remarketing, Gmail Ads, YouTube);
- Microsoft advertising product (e.g. Microsoft Ads – Bing);
- social media (Facebook, Instagram, Pinterest, Twitter, LinkedIn, Snapchat etc); and
- any SEO, content seeding and other services as set out in the Advertising Order.
- the “Monthly Campaign Budget”, which refers to the recurring amounts payable for the Services for each month of the Term, including the Campaign Management Fee (as applicable). The parties acknowledge that, whilst iNC will attempt to spend as close to the Monthly Campaign Budget as possible, factors and influences such as market pricing fluctuations may result in under or over-spends
- Under-spends: Where underspends have occurred in any given month, and where the amount of such underspend is greater than 50% but less than 100% of the Monthly Campaign Budget, then at the end of the relevant month of the Term, the amount of the underspend will be credited to the following (one) month’s approved Monthly Campaign Budget. Where less than 50% of the Monthly Campaign Budget has been spent, the under-spend amount will be credited (on a pro rata basis across the 3 month period) to the following 3 months of the Term. Where an under-spend occurs in the last month of the Term, the Client may request a refund of any over-payment, or can request that the campaign (and hence the Term) be extended until the Monthly Campaign Budget has been spent in full.
- Over-spends. Where more than 100% but less than or equal to 110% of the Monthly Campaign Budget has been spent by iNC at the end of any given month within the Term, the over-spend amount will be debited from the following (one) month’s approved Monthly Campaign Budget.
- In the event of a campaign being paused (whether initiated by the Client or iNC) for 14 days or less, iNC will attempt to spend the Monthly Campaign Budget in full with no change to the end of month date in the month that the pause occurs. If the period of the pause extends past the end of the month, the amount of the unspent budget will be debited to the following one month’s Monthly Campaign Budget.
In the event of a campaign being paused (whether initiated by the Client or iNC) for greater than 14 days, the unspent budget will be credited on a pro rata basis across the next 3 months of the Term.
- the “Campaign Set-Up Fee”, which refers to a one-time fee for the set-up of a campaign, which includes, but is not limited to, publisher set up, phone tracking set-up, creative services and other similar set-up requirements; and
- the “Conversion/Landing Page Creation Fee” which is a one-off fee for the creation of a landing page. In addition, changes to content on a landing page will incur an hourly rate as per the iNC rate card (as amended from time to time).
The Client must pay any Fees agreed in relation to Creative Services.
The Client must pay to iNC the Fees as follows:
- if the Client does not have an approved Credit Account with iNC, no later than seven (7) Business Days before the scheduled commencement date for broadcast, publication or communication of the Advertising;
- if the Client has an approved Credit Account with iNC, in accordance with the specified terms of such credit account, but in any event within 30 days of the end of the month during which the Advertising was broadcast, published or communicated; and
- if the Client is an Accredited Agency as provided for in Clause 15, then within 45 days of the end of the month during which the Advertising was broadcast, published or communicated to the public.
Payment of Fees by credit card will only be accepted by prior written arrangement with an authorised representative of iNC and will incur additional fees.
Unless otherwise stated by iNC, Fees and any other payments or other charges are quoted exclusive of GST and the Client will pay GST in addition to such amounts.
13. Cancellation or Amendment of Advertising
Unless iNC agrees otherwise in writing, the cancellation or amendment by or at the request of the Client of any Advertising later than 28 days prior to the scheduled start date will incur a cancellation fee of 100 per cent of the Fees and any other amount that would be payable by the Client if the Advertising had been broadcast, published or communicated in accordance with the Advertising Order.
If Advertising is cancelled or amended with less than 28 days’ notice but more than 14 days’ notice from the scheduled start date, iNC may, at its sole discretion, by arrangement with the Client, provide the Client with a delete and charge credit equal to the amount of the cancellation fee. A delete and charge credit will not be effective until the applicable cancellation fee has been paid in full by the Client.
A delete and charge credit will expire 3 months after the date the relevant Advertising was cancelled and will not entitle the Client to any refund or other payment but may be utilised on unfilled broadcast times, subject to iNC’s discretion to give higher priority to other customers’ actual or anticipated Advertising Orders.
14. Failure to Pay Fees
If full payment of Fees is not received by iNC on or before the date that such payment is due, or if the Client commits or is the subject of an Insolvency Event, iNC may (without limiting any other right hereunder) at its sole election and discretion do one or more of the following:
- cancel any credit terms provided to the Client and require immediate payment in full of all Fees;
- immediately and without notice, suspend the broadcast or publishing of any Advertising or suspend or cancel all Advertising orders of the Client and terminate the Agreement in relation to Advertising not yet broadcast, published or communicated or Creative Services not yet provided;
- require cash pre-payment for any further Services;
- impose interest at the rate of 2 per cent (two percent) above the Reserve Bank’s 90 day Bill Rate on all sums that remain unpaid until full payment is received;
- commence legal proceedings against the Client for recovery of any outstanding amounts;
- recover from the Client all costs incurred by iNC in the recovery of any amount owed by the Client including any debt recovery or legal costs on a full indemnity basis; and
- take any such other steps as iNC considers appropriate or necessary to recover the Fees.
Without limiting any other right or obligation of a party hereunder, the Client must notify iNC as soon as practicable of any change, event, fact or circumstance affecting the Client which may impact on its ability to pay the Fees.
At any time requested during the Term, the Client agrees to provide to iNC all information as is reasonably requested by iNC to determine the creditworthiness of the Client and its suitability and ability or otherwise to meet payment of the Fees.
15. Creative Services
The parties agree that iNC may subcontract third parties to provide Creative Services.
16. Accredited Agency
An “Accredited Agency” for the purpose of this Agreement is an agency that has been notified in writing by iNC that it meets the criteria for accreditation as determined by iNC in its sole discretion. The criteria used by iNC to determine whether a Client being an agency qualifies as an Accredited Agency, may include but will not be limited to, that the agent;
- has a minimum of five commercial clients;
- satisfies such financial criteria as are specified by iNC from time to time;
- accepts liability for payment of all Advertising booked by the agent;
- has completed an iNC agency credit application; and
- has obtained its client’s written consent for the payment of agency allowances.
iNC may by notice in writing withdraw accreditation from any Accredited Agency.
Each Client being an Accredited Agency must advise iNC immediately in writing of any change to its status or circumstances which may cause it to fail to meet the above criteria or be likely to cause it to fail to meet the above criteria, including but not limited to any change to the ownership or control, directors or senior management, revenue or asset backing, or the existence of actual or threatened litigation or other event which may compromise its ability to pay the Fees or otherwise meet its obligations under this Agreement.
Each Accredited Agency shall provide to iNC such information as is reasonably requested by iNC from time to time to enable iNC to assess its continued status as an Accredited Agency.
17. Advertising Rebates
Where payment of Fees for Advertising has been made in full within the due date specified in these Terms and Conditions and a Client is not otherwise in breach of this Agreement, then the following rebates will apply:
- if the Client is an Accredited Agency the rebate will be up to 10 per cent (or as otherwise agreed between iNC and the Client) on the amount paid for that Advertising; or
- an amount as has been agreed in writing directly with iNC in respect of Approved Unaccredited Agencies and Approved Booking Agents.
No rebate will be granted pursuant to this clause in respect of Advertising booked by an Accredited Agency, Approved Unaccredited Agency or Approved Booking Agent for the Client if the Client;
- was at the time of entry into this Agreement already an existing client of iNC or had in place a current Advertising Order; or
- had advertised with iNC through an Accredited Agency, Approved Unaccredited Agency or Approved Booking Agent during the preceding 12 months, other than through the Accredited Agency, Approved Unaccredited Agency or Approved Booking Agent seeking the rebate; or
- is in arrears in respect of payment of any Fees.
18. Intellectual Property
The Client acknowledges that:
- iNC is hereby permitted and licensed to use any Material provided by or on behalf of the Client to iNC for the purposes of the Agreement;
- All intellectual property rights, including but not limited to copyright in any Material created, produced or written for the Client by or on behalf of iNC or its employees, officers or agents is the sole property of iNC (“iNC Material”);
- Prior written permission from iNC is required for any use of any iNC Material otherwise than in accordance with this Agreement. Permission may be withheld.
- The Client must:
- keep confidential any iNC Material supplied (directly or indirectly) to the Client;
- not, without written clearance from iNC, use or exploit iNC Material except for any advertising or promotional campaign placed with iNC during the Term; and
- if directed by iNC, on termination or expiry of this Agreement, deliver up any iNC Material to iNC.
- Nothing in this Agreement gives the Client the right to use any iNC trade mark, logo or other artwork.
19. Indemnity and Release
To the extent permitted by law, the Client indemnifies iNC and its employees, officers and agents from and against any Claim arising, whether directly or indirectly, from or in connection with a breach by the Client of this Agreement or its negligence.
To the extent permissible at law, without limiting the forgoing, the Client forever releases iNC and each officer, employee or agent of iNC from and iNC accepts no liability for, any Claim, loss or liability arising in any way from or in connection with:
- the broadcast, communication or publication of Advertising or Material (including any errors in any content of any Advertising or Material);
- any mistake or deficiency in any Creative Services provided to the Client by or on behalf of iNC; and/or
- any lack of sound, image or other quality, or delay in transmission of, any Advertising.
20. Liability of iNC
Except as expressly provided in this Agreement, iNC excludes, to the fullest extent permitted by law, all warranties, representations and conditions whether implied by law, trade, custom or otherwise. In the event that iNC is liable to a Client for a breach of implied warranty or condition that may not be excluded, iNC’s liability will, to the extent permitted by law, be limited to any one or more of the following (at iNC’s option):
- in the case of the supply of goods under this Agreement (if any):
- the replacement of the goods or the supply of equivalent goods or the payment of the cost of replacing the goods or acquiring equivalent goods;
- the repair of the goods or the payment of the cost of having the goods repaired; or
- in the case of the supply of services under this Agreement:
- the supplying of the services again; or
- the payment of the cost of having the services supplied again.
In no circumstances will iNC or its employees, officers or agents be liable, whether in tort, contract or otherwise for any indirect loss, loss of profits, consequential loss or special or exemplary damage suffered by the Client or any other person, even if such loss or damages are foreseeable and whether or not iNC has been advised of the possibility thereof.
Without limiting the application of clause 20.1, the liability of iNC (including iNC’s officers, employees and agents) to the Client, or any other person, for any and all loss or damage arising in relation to any Agreement and/or Services (including from any errors or inaccuracies however caused, whether by negligence, system, software or press failure, mistake, early, late or failure to broadcast or communicate Advertising or provide Creative Services will be limited to an amount equal to the Fees paid in respect of that Agreement or Services, provided that if the Client does not advise iNC of any error within five days of broadcast of the relevant Advertising or advertisement produced as a result of the Creative Services iNC will have no liability whatsoever.
21. Expiration and Termination of Agreement
Unless terminated earlier in accordance with clause 21.2, the Agreement will expire at the end of the Term. The terms and conditions of any further agreement, including any further Fees, will be subject to renegotiation.
iNC may terminate the Agreement by serving a notice in writing on the Client if:
- the Client commits a breach of this Agreement and fails to remedy such breach within fourteen (14) days after being served with a notice by iNC specifying the nature of the breach and requiring that it be remedied; or
- the Client at any time commits or is the subject of an Insolvency Event or ceases carrying on business or threatens to cease carrying on business; or
- iNC or the applicable subsidiary or related or affiliated entity which has entered into this Agreement at any time commits or is the subject of an Insolvency Event or ceases carrying on business or threatens to cease carrying on business.
Termination of this Agreement by iNC does not affect any other rights of iNC under law or equity including the right to recover payment of all Fees that would have been payable under the contract had it not been terminated. In the event of termination of the Agreement, iNC shall invoice for any Fees or other amounts outstanding under the Agreement. All outstanding Fees will become payable on the date specified in the invoice.
22. No Waiver
If at any time iNC does not enforce any of these terms and conditions or grants the Client time or other indulgence, iNC shall not be construed as having waived that term or condition or its right to later enforce that or any other term or condition.
23. Assignment and subcontracting
The Client may not:
- assign to any third party any of its rights under this Agreement; or
- apply any right in respect of advertising space allocated in accordance with such an agreement.
iNC may assign to any third party any of its rights or obligations under this Agreement. iNC may subcontract to any person any and all of its obligations hereunder provided that it shall remain primarily liable for the performance of those obligations.
24. Entire Agreement
The Agreement sets out the entire agreement between the parties in relation to the Services and supersedes all prior arrangements, undertakings, representations and warranties by or between the parties in relation to such Services.
25. Force Majeure
If iNC is prevented from or delayed in complying with an obligation under this Agreement by an event beyond its reasonable control, including but not limited to a telecommunications failure national emergency, riot, civil commotion or disturbance, revolution, insurrection, malicious damage, sabotage, act of a public enemy, act of terrorism, war (declared or undeclared), blockade, quarantine, epidemic, inclement weather, fire, flood, earthquake, natural disaster, change in legislation or shortage or destruction of equipment or materials, performance by iNC of the obligation will be suspended for the period of the delay and iNC will not be liable for any loss or damage suffered by the Client arising from or relating to such delay.
If any provision of this Agreement is held illegal or unenforceable, then such illegality or unenforceability shall not affect the remaining provisions of this Agreement which shall remain in full force and effect.
iNC may vary this Agreement at any time in its sole discretion, provided that:
- such amended terms will not affect prior agreed Advertising Orders; and
- if the Client does not agree with a variation the Client may prospectively cease placing orders with iNC.
29. Governing Law
This Agreement is governed by the law in force in New South Wales and the parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction in New South Wales.