Last updated: 2 October 2012
ninesmsn Pty Limited (an Mi9 company) (“we”) and the customer (“you”) wish to enter into an agreement regarding advertising, content integration and creative services we may supply to you for use on the ninemsn network, our mobile sites, our applications, our partner sites, our other digital properties and products and the websites that comprise the Microsoft Media Network, the Homes Hub and the ACP Websites. You should note that the capacity in which we enter into this Agreement is as set out in these Terms & Conditions, in particular in clause 12 and in the definition of we/our/us in clause 2.
15.1 Applicable law
The Agreement comprises:
- these Booking Terms and Conditions;
- the terms of the Insertion Order(s);
- any Credit Application Form; and
- where you are a Preferred Agency, any special terms we have agreed.
1.2 Entire agreement of parties
This Agreement constitutes the entire agreement between the parties and replaces any previous discussions, communications or other documents concerning the supply of the Services.
In this Agreement, the following words have these meanings, unless the context otherwise requires:
- ACP Magazines means ACP Magazines Limited (ABN 18 053 273 546)
- ACP Websites means websites operated by ACP Magazines from time to time, including mobile optimised versions of those websites (and for the purposes of this agreement, include any websites operate by a joint venture in which ACP has an interest from time to time, including mobile-optimised versions of those websites).
- Advertising Copy means all advertising, marketing or other material supplied by you (including, without limitation, text, graphics and URLs) for publication on any of our sites in the form and manner approved by us;
- Affiliate means any legal entity that Owns, is Owned by, or is commonly Owned with, us, and in the case of UJV, includes UJV Partner, and includes all Related Bodies Corporate of such legal entities;
- Approved Agency means any customer who provides advertising agency services to its customers and which is registered with us as an approved agency;
- Audience Extension means advertising on the Mi9 Owned & Operated Network that is purchased on a CPM basis and is targeted to identified visitors to the ACP Websites, where such advertising forms a component of a broader campaign on the ACP Websites.
- Cancellation Fee means the estimated charges and costs we would have reasonably expected to have received for provision of Services but for your late cancellation including our charges for producing any Custom Materials and our Fees for publishing any Custom Materials or Advertising Copy based on the applicable Insertion Order;
- Confidential Information means:
- the terms and conditions of the Agreement; and
- all information of a confidential nature disclosed or communicated by the disclosing party to the recipient including any financial and pricing data; business plans; policies; suppliers; inventions; product information and information about a party’s marketing and/or promotional activities
but excludes any information which the recipient can establish:
- is or becomes generally available in the public domain otherwise than through a breach of this Agreement or any obligation of confidence owed to the disclosing party;
- is or becomes known to the recipient from a source other than the disclosing party otherwise than through a breach of an obligation of confidentiality owed to the disclosing party;
- is or has been independently developed or acquired by the recipient; or
- is approved in writing by the disclosing party for disclosure by the recipient;
- Creative Services means design, production and promotional services we provide for interactive media including without limitation creating, producing and marketing Custom Materials, advertising marketing campaigns, e-direct marketing, developing and hosting integrated offerings such as competitions and associated creative services;
- Custom Materials means customised content and materials in any form which we have produced for any particular campaign or promotion including any banner, advertisement, copy, mini website or co-branded webpages, newsletters or e-marketing materials as set out in the Insertion Order;
- Fees means our fees and charges for the provision of Services as specified in the Insertion Order;
- Gaming Services means any products or services which provide the means for customers to play a ‘game of chance’;
- Homes Hub means the the 'Homes' website hub managed an operated by Mi9 (currently located at < href='http:/homes.ninemsn.com.au/'>'http:/homes.ninemsn.com.au/, which incorporates certain ACP Magazines content.
- Indirect Losses includes losses of profits, revenue, opportunity, anticipated savings or data or any indirect or consequential loss or damage;
- Insertion Order means an insertion order which specifies details of the Services we agree to provide to you;
- Integration Placements means a placement of Custom Materials or Advertising Copy which is integrated across multiple entry points on our sites;
- Launch Datemeans the date at which we are scheduled to publish any Advertising Copy or make available any Custom Materials for publication as specified in the Insertion Order;
- Mi9 means ninemsn PTY Limited (ACN 077 753 461) (an Mi9 company)
- Microsoft means Microsoft Online Inc, a Nevada Corporation;
- Microsoft Media Network means Microsoft’s business through which Advertising Copy is sold and published on the Partner Network;
- ninemsn means ninemsn Pty Limited (ACN 077 753 461) (an Mi9 company);
- Mi9 Owned & Operated Network means the websites that form part of the ninemsn network of websites, our mobile-optimised websites, applications, partner websites containing the ninemsn header and footer and any other digital properties and products owned and/or operated by us, (and include Windows Live, Outlook.com, Messenger and Skype).
- ninemsn network means the Mi9 Owned & Operated Network, the Homes Hub and the ACP Websites;
- Non-Premium Services means any Services other than Creative Services and Premium Services;
- OTP means an ‘over the page’ advertisement which floats over a webpage;
- Order means an order for Services described in an Insertion Order which has been accepted by us in accordance with this Agreement;
- our sitesmeans the Mi9 Owned & Operated Network, the Partner Network, the Homes Hub and the ACP Websites;
- Ownmeans having at least fifty per cent (50%) ownership of an entity’s voting securities.
- Partner Network means Microsoft’s third party network of websites (which may include partner advertising networks which will run advertising campaign on a blind buy basis), as constituted from time to time;
- Preferred Agency means an agency with who we have agreed to offer special trading terms;
- Premium Services means any Services which we specify as premium services and includes the publication of any Advertising Copy or Custom Materials on the ninemsn network home page and the publication of any OTP on the ninemsn network;
- Rate Card means our current standard rates and charges for the provision of Services as notified to you from time to time;
- Related Body Corporate has the same meaning as given to that term in the Corporations Act 2001 (Cth);
- Services means the services to be supplied by us to you as described in any Insertion Order (including any services to be supplied by us to you in our capacity
- as the sole and exclusive operator of the Microsoft Media Network business) and;
- the agent for the UJV.)
- UJV means the unincorporated joint venture established by and between us and ACP Magazines;
- UJV Partner means each of the ACP Magazines and us;
- User means a person who accesses a page on our sites;
- we/our/us means Mi9:
- in its own capacity to the extent that the relevant services are provided in connection with the Mi9 Owned & Operted Network (subject to part 3 of this definition below); and
- in its capacity as the sole and exclusive operator of the Microsoft Media Network business in Australia and Microsoft’s limited agent with respect to advertising campaigns that are run on the Partner Network,
(severally and together); and
- in its capacity as agent to the extent that the relevant services are provided for the UJV as described in clause 12.3 of these terms
- you/your means the person identified as the “Customer” or “Advertiser” in the Insertion Order (and includes any advertising agency that is acting on behalf of any advertiser or client on whose behalf Services are being requested pursuant to an Insertion Order); and
- Value Credit means a credit we may issue to you upon your cancellation of an Order in accordance with clause 3.3(b) of this Agreement for the supply by us of replacement services of equivalent value to the Order.
3.1 Provision of Services
We will provide to you with, and you agree to use, the Services in accordance with this Agreement.
3.2 Orders for Services
- You may request Services from us by completing an Insertion Order.
- We will not be obliged to supply to you the particular Services set out in the Insertion Order until you have signed the Insertion Order.
- We may require you to submit a completed Credit Application Form prior to our signature of the Insertion Order.
3.3 Cancellation of Services
- You may cancel an Order for any Services at any time without charge provided that you give us at least thirty (30) days’ notice prior to the Launch Date except in the case of Orders for the Partner Network which you may cancel on notice at any time up to 24 hours prior to the Launch Date.
- In the event you cancel an Order for Services on less than the notice period set out in clause 3.3 (a) we may, in our discretion, issue you with a Value Credit or charge you a Cancellation Fee.
- All Value Credits must be used within sixty (60) days of the issue date.
- You further acknowledge that use by you of any Value Credit is subject to the availability of replacement services and that we may, in our discretion, restrict your use of any Value Credit for Premium Services to the purchase of Non-Premium Services of equivalent value.
- Regardless of the period of notice you have provided to us, if you cancel any Order for Creative Services we will charge you for any production costs and charges we have incurred as of the date of the cancellation.
- We may cancel an Order or part Order at any time without giving you any reasons for the cancellation. If we exercise this right we will at our option:
- refund to you any Fees that you already paid to us;
- issue you with a Value Credit; or
- reschedule the Launch Date to another date within sixty (60) days of the cancellation date;
and you agree that this is our sole liability to you in relation to that particular Order or part Order.
- For the avoidance of doubt, a cancellation of an Order or part Order by either party pursuant to this clause 3.3 will be deemed to be a termination of this Agreement by that party in relation to such Order or part Order.
We use reasonable endeavours to deliver Services in accordance with the Order. In the event we reasonably believe that any campaign is underperforming, we may in our discretion change the placement of Advertising Copy from that specified in the Order provided that it is displayed within a substantially equivalent-sized advertising unit and on a reasonably equivalent website environment to those specified in the Order.
- ADVERTISING COPY
4.1 Form of Advertising Copy
- You will ensure all Advertising Copy complies with our advertising specifications (as may be modified by us from time-to-time) which are available on request or such other requirements we may advise you of.
- Your failure to meet our advertising specifications may delay or prevent placement of the Advertising Copy on the Mi9 Owned & Operated Network, the Partner Network, the Homes Hub and/or the ACP Websites, or cause its removal from the Mi9 Owned & Operated Network, the Partner Network, the Homes Hub and/or the ACP Websites and is in breach of this Agreement. Without limiting clause 4.5, you must provide us with replacement Advertising Copy within forty-eight (48) hours to the extent we may refuse to publish Advertising Copy or we remove any Advertising Copy pursuant to this Agreement.
4.2 Editorial Matter
- You will ensure that Advertising Copy is clearly identifiable to users as advertising material and does not contain any material which could be confused by Users with our editorial content.
- You acknowledge that we may label any Advertising Copy as an advertisement when we publish it.
4.3 Promotion of Competitions
You will ensure that any Advertising Copy which references any game of skill competition or lottery promotion clearly identifies the promoter of the competition and that you have obtained all applicable permits and approvals for the conduct of the competition prior to the Launch Date.
4.4 Website Links
You will ensure that any URL referenced in any Advertising Copy will link Users to the intended website. We may test whether the URL is functional and may in our discretion remove any URL which does not meet with our approval.
4.5 Delivery of Advertising Copy
- You will supply us with Advertising Copy for our approval at least five (5) days prior to the Launch Date. You acknowledge that time is of the essence in your provision of the Advertising Copy to us.
- We may, in our discretion, accept late Advertising Copy for publication but if the Advertising Copy is intended to be published as a Premium Placement we may choose in our discretion to delay publication of the Order and extend the publication date and/or in the case of an OTP to publish the medium rectangle component of the OTP only and we may charge you the Fees for the OTP as set out in the applicable Order in full.
- If we do not receive your Advertising Copy on time we may treat this as a cancellation of the applicable Order or part thereof and we may charge you a Cancellation Fee.
4.6 Right to Publish Advertising Copy
You represent and warrant to us that you are fully authorised to publish, and that you authorise us to publish on your behalf, Advertising Copy on our sites.
- SALES MATERIAL
You acknowledge that any marketing slide packs, mock ups, presentations or marketing materials supplied to you concerning our Services are examples only and that we may in our discretion vary the placement of any Advertising Copy including Integration Placements within our sites.
- BETTING AND GAMING
If you use our Services for the purpose of promoting or marketing any Gaming Services provided by you or any third party you will implement appropriate procedures to ensure that all Users who access such services via our sites are not domiciled in a country which prohibits access to Gaming Services. We may in our discretion have the right to audit and test the effectiveness of your procedures and you will provide us with any reasonable technical assistance we require for such audit.
- CREATIVE SERVICES
7.1 Instructions and Materials
You will supply us with any design instructions, logos, art work or materials which we will need to carry out Creative Services for you in the manner and format we specify at the time of completion of the Insertion Order.
7.2 Approval of Custom Content
- We will use reasonable endeavours to supply mock ups of all Custom Materials for your approval reasonably in advance of the Launch Date.
- You must promptly check mock ups upon receipt and notify us of your approval or of any errors or amendments you require prior to the Launch Date. We may charge you additional fees for any amendments’ we estimate will take more than one business day’s work to complete.
- Subject to clause 7.2(a), if we do not receive your approval for mocks ups of the Custom Materials supplied to you at least two (2) days prior to Launch Date we may in our discretion treat this as a cancellation of the applicable Order or part thereof and we may charge you a Cancellation Fee.
8.1 Your Warranties
You warrant to us that:
- you have all applicable licenses and consents necessary to enter into and perform your obligations under this agreement;
- if you are an advertising agency:
- you are fully authorised to act on behalf of any advertiser or client on whose behalf you are requesting Services and to bind such advertiser or client to this Agreement;
- both you and the advertiser or client on whose behalf you are requesting Services agree to be jointly and severally liable for all applicable responsibilities stated in this Agreement, including (without limitation) the payment obligations set out in clause 10 below; and
- as at the date of this Agreement, the advertiser or client on whose behalf you are requesting Services is not in material breach of any agreement with you, nor is such advertiser or client in default with respect of any amounts owed to you.
- you have complied and will continue to comply with all applicable laws and regulations in performing your obligations under this Agreement;
- you will not breach any agreement, arrangement or understanding with a third party as a result of entering into or performing any part of this Agreement;
- the Advertising Copy complies with all applicable laws and regulations and industry guidelines;
- the Advertising Copy will not infringe the intellectual property rights of any person;
- the Advertising Copy will not include content, or contain a link to any content, that is illegal, obscene, violent, defamatory, pornographic, offensive or discriminatory based on considerations of race, national origin, gender, age, disability, religion, sexual orientation or expression, that facilitates or promotes the unauthorised downloading, uploading, peer-to-peer sharing or streaming of copyrighted content, or promotes any companies, products or services that are in contravention of applicable Australian law, codes or regulations;
- neither you (nor any research vendor that you engage to conduct any research or study on the Mi9 Owned & Operated Network, the Partner Network, the Homes Hub and/or the ACP Websites) will insert any tag, code, cookie, pixel or other data tracking or collection device into the Advertising Copy without our express permission;
- you will not use or redistribute to any third party without our permission any information or reports we may supply to you other than for the purpose of evaluating the performance of our Services.
8.2 Our Warranties
We warrant to you that:
- we have the right to supply the Services to you;
- we will use reasonable care and skill in supplying the Services; and
- we will comply with all applicable laws and regulations in supplying the Services.
8.3 Exclusion of Warranties
We exclude all implied conditions and warranties from this Agreement except any conditions or warranties (such as those implied by the Competition and Consumer Act 2010 (Cth)) which cannot by law be excluded.
- INTELLECTUAL PROPERTY
9.1 Ownership of IP
- Unless otherwise agreed in the Insertion Order, we or our licensors own the intellectual property in the Custom Materials, our trade marks and any other material developed or provided by us under this Agreement.
- You and your licensors own the intellectual property in any Advertising Copy, your trade marks and any other material you provide to us under this Agreement.
- Except as authorised by this Agreement, the parties agree not to:
- reproduce the other party’s intellectual property; or
- sub-license, on-supply or further syndicate the other party’s intellectual property on any website other than our sites.
9.2 Licence of Intellectual Property
- You grant us a limited, non-exclusive and non-transferable licence to reproduce and communicate to the public the Advertising Copy on our sites in accordance with the Agreement.
- You grant us a limited non-exclusive right to copy, adapt, modify and otherwise use any logos or other design materials you supply to use for the purposes of supplying you with Creative Services.
10.1 Rates and Fees
You will pay the Fees. If no Fees are specified in the Insertion Order, the charges for our Services will be as set out in our current Rate Card at the time of our acceptance of the Order.
10.2 Changes to Rates
We may change our Rate Card from time to time without notice.
10.3 Cost and Charges
We may charge you additional costs we incur in the provision of Services including (without limitation):
- the cost of obtaining any necessary licenses for any competitions which form part of Creative Services;
- any additional costs we incur in providing any talent, photography, filming, special effects of other special services which you request be supplied as part of the for the Creative Services;
- late payment charges for any overdue invoice which will be calculated monthly on the overdue amount at two per cent (2%) above the base rate of Westpac Banking Corporation.
10.4 GST and Taxes
You are responsible for computing and paying all taxes, duties and other government fees or charges payable or assessed in connection with this Agreement including (without limitation) goods and services tax, other value added tax, sales or use taxes, stamp duty and turnover tax, but excluding taxes, duties and government charges assessed on our income.
- We will invoice you monthly for fees and costs due under this Agreement;
- You will pay the amounts invoiced within forty-five (45) days of the date of the invoice.
- You may, if agreed with us, make payment by electronic debit to our nominated account any additional costs we incur in providing any talent, photography, filming, special effects of other special services which you request be supplied as part of the for the Creative Services;
10.6 Measurement of Advertising
We will measure advertising (including impressions delivered and clicks achieved) through our advertising tracking systems. Results from third party ad-servers will not be accepted for the purposes of billing and assessment of advertising performance.
- APPROVED AGENCIES
11.1 Commission Payments
- Where you are an Approved Agency you will be entitled to receive a commission equal to ten per cent (10%) of the total amount of your monthly invoiced Fees.
- Our payment of any commission is conditional upon the following:
- you must fully disclose to your clients the amount of commission you receive from us;
- you must fully comply with this Agreement;
- no more than fifty per cent (50%) of the Fees we invoice in any month will be attributable to Services supplied to you on behalf of a single client; and
- your payment in full of invoices within thirty (30) days.
11.2 Status as an Approved Agency
- You must supply us with any information we may reasonable request in support of your application to be registered as an Approved Agency including solvency statements, balance sheet and profit and loss statements and details of any insurance policies you hold.
- We may revoke your status as an Approved Agency at any time upon written notice without giving any reason.
You warrant to us that you have disclosed to your clients all benefits you may receive from us as a result of you being an Approved Agency.
- THIRD PARTY PARTNER NETWORK
12.1 ninemsn as Microsoft’s Disclosed Agent
Microsoft has appointed us as the sole and exclusive operator of the Microsoft Media Network business in Australia and as its limited agent with respect to advertising campaigns that are run on the Partner Network.
12.2 Terms Applying to Partner Network Campaigns
In the case of advertising campaigns run on the Partner Network the terms set out in this clause 12.2 will apply in addition to the terms set out in the remainder of this Agreement. To the extent there is any inconsistency between the terms of this clause 12.2 and any other term of this Agreement, the terms of this clause 12.2 shall prevail:
- All advertising campaigns will be run over the Partner Network as constituted at the time each campaign runs
- You acknowledge that the Partner Network may be subject to change at any time.
- The Partner Network may include partner advertising networks which will run your campaign on a blind buy basis. You acknowledge that these networks do not supply any details of the websites included in these networks and that we cannot provide you with any data or information relating to these websites or the conduct or performance of the campaign on these networks.
- We may grant you access to the Microsoft Media Network service website (the “MMN Service Site”). You may use available features of the MMN Service Site to manage your account. If the MMN Service Site is unavailable, you may deliver to us any proposed changes on a Microsoft-approved ‘Order Change Form’ (the “Written Change Request”). You may only submit one (1) Written Change Request per week during the term of an advertising campaign and/or Insertion Order. The Written Change Request and Electronic Change Request are effective upon your receipt of electronic mail confirmation from Microsoft. You are responsible for ensuring that your e-mail address and any other contact information you provide to us is updated and correct. You will protect any passwords associated you’re your account(s) and take full responsibility for any use of the account(s) under your password.
- We make no warranty and give no guarantee about the placements for your Advertising Copy on the Partner Network, nor do we make any warranty or give any guarantee on the number of clicks, impressions or actions we will deliver during the period of an advertising campaign and/or Insertion Order. We therefore will not provide you with any make goods or bonus clicks or impressions.
- During each campaign period, we will either: (i) provide you with access to an on-line reporting tool; or (ii) issue you with a report at the end of each month which sets out the aggregate number of impressions (CPM), clicks (CPC) or actions (CPA) as relevant for that month.
- Insofar as this Agreement relates to advertising campaigns that are run on the Partner Network:
- this Agreement is governed by the laws of the State of Nevada, United States of America; and
- the parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of King County, Washington, United States of America, save for any disputes or proceedings we may bring against you in connection with your breach of, or non-compliance with, clause 10 of this Agreement, in which case the parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of New South Wales, Australia.
12.3 ninemsn as UJV's Disclosed Agent
UJV has appointed us as its agent in connection with the provision of services in relation to:
(a) the display of online advertising or campaign-based integrated placements on the ACP Websites and the Homes Hub;
((b) the sale of pre-roll, mid-roll and post-roll video advertising or overlay advertising against audio-visual content that may be displayed on the ACP Websites and the Homes Hub; and
(c) Audience Extension of the Mi9 Owned & Operated Network.
- CONFIDENTIAL INFORMATION
- Each party must:
- take all action reasonably necessary to maintain the confidentiality of the other party's Confidential Information;
- not disclose the other party's Confidential Information to any person except as permitted under clauses 13(b) and (c) below;
- A party (“recipient”) may disclose the Confidential Information of the other party:
- to a representative of the recipient who needs to know the Confidential Information for the purposes of this Agreement and subject to the recipient taking reasonable steps to ensure that any such representative is fully aware of the confidential nature of the Confidential Information of the disclosing party before the disclosure is made; or
- which is required or authorised to be disclosed by any law.
- We may disclose and make available your Confidential Information to our Affiliates on the condition that we take reasonable steps to ensure that such Affiliates are made fully aware of the confidential nature of your Confidential Information before the disclosure is made. You consent to our Affiliates contacting you in connection with their provision to you of advertising, content integration, creative services and/or other products or services to you.
- INDEMNITY & LIABILITY
You indemnify us against all loss, damage or liability we may suffer or incur arising out of any claim made against us as a result of breach of your warranties in clause 8.1 and any act or omission by you in connection with your Advertising Copy.
14.2 Limitation of Liability
- Neither party is liable for any Indirect Loss incurred by them or by any other person arising out of or in connection with this Agreement.
- Our liability to you for any claims made under this Agreement (whether such liability arises in contract, tort (including negligence) or otherwise) is, to the fullest extent permitted by law, limited at our option to resupplying the Services or paying the cost of having the Services resupplied.
14.3 No responsibility for Advertising Copy
- We are not liable for any aspect of the Advertising Copy including any products or services referred to in the Advertising Copy.
- You are solely responsible for the content of all Advertising Copy and associated products and services, including any ancillary competitions and promotions.
If you wish to make a claim for a Value Credit, republication or any other remedy in respect of our Services you must send the claim to us no less than fourteen (14) days after the Launch Date.
Subject to clause 12.2(i), this Agreement is governed by the laws of New South Wales, Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New South Wales, Australia.
A notice must be in writing to the address of the addressee as stated in the Insertion Order.
15.3 Public statements
You may not issue any press release or make other public statement in relation to this Agreement or the relationship established by this Agreement without our prior written consent. We may, however, make informational references to your participation in the ninemsn Network and/or the Partner Network in press releases without obtaining your consent.
15.4 No Agency
This Agreement will not create a joint venture, legal partnership, employment or agency relationship between you and us.
Neither party may transfer or assign this Agreement without the other party’s prior written consent (not to be unreasonably withheld).
15.6 Force Majeure
Neither party will be liable for its failure to perform any of its obligations under this Agreement due to any contingency beyond its reasonable control.
- You may not send us or our partners any personal information or data that can be used to identify or locate a natural person, or sensitive financial, medical or sexual data.