Advertising Agreement

Davela Holdings Pty Ltd (ACN 146 185 622) As Trustee For James Family Trust ABN 62 128 768 217
Website Advertising Click-Wrap Agreement

RECITALS

  1. (a) A. The Website Owner owns and operates the Website.
  2. (b) B. The Advertiser wishes to purchase advertising space on the Website.

OPERATIVE PROVISIONS

1. Definitions and interpretation
 

In this Agreement, unless the context indicates the contrary:

‘Advertising Content’ means the content of advertisements submitted by or on behalf of the Advertiser to the Website Owner in an Advertising Request including but not limited to all text, graphics, icons, photographs and URLs.

‘Confidential Information’ means all information provided by one party to the other in connection with this Agreement where such information is identified as confidential at the time of its disclosure or ought reasonably be considered confidential based on its content, nature or the manner of its disclosure, but excluding (a) information that enters the public domain or is disclosed to a party by a third party, other than through a breach of this Agreement, and (b) information developed independently by a party.

‘Fees’ means the advertising fees associated with the chosen ad plan.

‘Force Majeure Event’ means any event beyond the control of the relevant party.

‘GST’ has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth), or any other similar tax.

‘Intellectual Property Rights’ means all intellectual property rights, including all copyright, patents, trade marks, design rights, moral rights, trade secrets, domain names, know how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application.

‘Website’ means Wollongong Businesses located at www.wollongongbusinesses.com.au

Unless the context requires otherwise:
 
  1. (a) a reference to a person includes a corporation or any other legal entity;
  2. (b) the singular includes the plural and vice versa;
  3. (c) headings are for convenience and do not form part of this Agreement or otherwise affect the interpretation of this Agreement;
  4. (d) the term "includes" (or any similar term) means "includes without limitation"; and
  5. (e) a reference to any statute includes references to any subsequently amended, consolidated or re-enacted version of that statute and all delegated legislation or other statutory instruments made under it.
2. Advertising Requests
2.1 All information on the Advertising Registration Form must be complete and accurate and must comply with all laws, regulations and relevant industry codes.
2.2 Advertising Requests must not request publication or linking to content, which is illegal or may bring the Website Owner into disrepute.
2.3 The Website Owner may reject or cancel any Advertising Request at any time at its sole discretion.
2.4 By submitting Advertising Requests the Advertiser authorises the Website Owner to publish the Advertising Content on the Website.
3. Positioning and Style
3.1

The Advertiser acknowledges and agrees that the Website Owner retains complete editorial control over the Websites. The Website Owner may at its sole discretion:

  1. (a) refuse to include any Advertising Content at any time;
  2. (b) remove any Advertising Content at any time;
  3. (c) position Advertising Content as it sees fit;
  4. (d) label any Advertising Content as an "advertisement" for clarification and stipulate any other conditions to ensure that it is clear that the Advertising Content is an advertisement.
3.2 The Advertiser acknowledges and agrees the text of the advertisement is to be in the English language version. Any translation of the English version within the advertisement in other languages, must be the same interpretation as the English version.
4. GST
4.1 All amounts payable under this Agreement are expressed exclusive of GST.
4.2 In respect of any taxable supply, the Advertiser must pay to the Website Owner an additional amount equal to the prevailing GST rate, payable at the same time and in the same manner as the Fees, subject to the receipt by the Advertiser of a valid tax invoice.
5. Confidentiality
5.1 A party must not, without the prior written consent of the other, use or disclose the other party's Confidential Information unless expressly permitted by this Agreement or required to do so by law or any regulatory authority.
5.2

A party may:

  1. (a) use the Confidential Information of the other party solely for the purposes of complying with its obligations and exercising its rights under this Agreement; and
  2. (b) disclose the Confidential Information to its personnel or advisers to the extent necessary for them to know the information for purposes related to this Agreement, but only if reasonable steps are taken to ensure that the confidentiality of the information is retained.
5.3 Each party must implement and maintain effective security measures to prevent unauthorised use and disclosure of the other party's Confidential Information whilst it is in the receiving party's possession or control.
5.4 Each party must return, or at the other party's option destroy, all Confidential Information of the disclosing party in the receiving party's possession or control, on the earlier of the Website Owner's request or on termination of this Agreement for any reason.
6. Warranties
6.1

The Advertiser represents and warrants that:

  1. (a) it is fully authorised to publish, and to authorise the Website Owner to publish, all Advertising Content;
  2. (b) the Advertising Content and the publication of the Advertising Content on the Websites does not and will not, at any time, infringe any Intellectual Property Right, any right of confidence or other right of any person;
  3. (c) all Advertising Content will comply with all applicable laws, regulations and relevant industry codes;
  4. (d) the material and/or information is not the “passing off” of any product or service and does not constitute unfair competition;
  5. (e) all advertised products and services will match the advertised description and be available in the manner, at the price and for the time period advertised;
  6. (f) each website located at any URL shown or embedded in any Advertising Content is controlled and operated by or on behalf of the Advertiser, is functional and accessible and at all times operates in compliance with all applicable laws, regulations and relevant industry codes;
  7. (g) functional and accessible and at all times operates in compliance with all applicable laws, regulations and relevant industry codes.
6.2

Refund Policy

  1. (a) Each advertisement and listing will have a term of 365 days commencing from the date of its activation. The listing or advertisement will NOT be automatically renewed at the end of the term and it is the sole responsibility of The Advertiser (you) to renew your advertising via the functionality on the website prior to the end of the term. Listings and advertisements that have not been renewed and paid for prior to the end of the current term of your “live” advertising or listing may be deleted at our discretion;
  2. (b) The Advertiser acknowledges and agrees that in the event that if you chose to cancel or delete your listing or advertisement prior to the end of the term that there shall be no refund, pro rata payment or compensation paid to you by us;
  3. (c) In the event that we cancel or delete The Advertiser’s listing or advertisement for any reason described within these terms and conditions, there shall be no refund, pro rata payment or compensation paid to you by us;
  4. (d) In the event that The Advertiser has a “live” listing or advertisement within a category that we amend, and you believe that this amended category name is no longer suitable for your business and you subsequently cancel or delete this listing or advertisement as a result of the amended heading name no longer being suitable, then we shall refund to you (on a pro rata basis) the price paid of the advertisement or listing as at the date of cancellation or deletion, subject to you notifying us in writing at least 7 days prior to cancelling or deleting your listing or advertisement and outlining the reasons for the cancellation.
7. Licence to use intellectual property
7.1

By uploading any material which is intellectual property including, but not limited to, copyrighted works, trade marks and service marks (the “intellectual property”) on to the Website, the Advertiser is granting the Website Owner a perpetual, non-exclusive and payment-free licence throughout the world to:

  1. (a) reproduce, use and exploit the intellectual property, as part of the Website, to the full extent permitted by intellectual property law in any jurisdiction in which the Website is available to users; and
  2. (b) allow the Website Owner to sub-licence others the same rights granted to the Website Owner in (a) above;
  3. (c) allow the Website Owner to gather and process the information which you may provide when accessing the Website, such as your name, address, e-mail address and other personal information about you; and
  4. (d) allow the Website Owner to gather and process the information regarding the way in which you use the Website including, without limitation, information acquired through the use of “cookies” programmed during the accessing of the Website.
8. Liability
8.1 To the full extent permitted by law, the Website Owner excludes all liability in respect of loss of data, interruption of business or any consequential or incidental damages.
8.2 To the full extent permitted by law, the Website Owner excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in this Agreement.
8.3 The Website Owner's total aggregate liability for all claims relating to this Agreement is limited to the Fees payable under this Agreement.
8.4 Either party's liability for any claim relating to this Agreement will be reduced to the extent to which the other party contributed to the damage arising from the claim.
8.5

This Agreement is to be read subject to any legislation, which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions or obligations. If such legislation applies, to the extent possible, the Website Owner limits its liability in respect of any claim to, at the Website Owner's option:

  1. (e) in the case of goods:
    1. (i) the replacement of the goods or the supply of equivalent goods;
    2. (ii) the repair of the goods;
    3. (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
    4. (iv) the payment of having the goods repaired, and
  2. (f) in the case of services:
    1. (i) the supply of the services again; or
    2. (ii) the payment of the cost of having the services supplied again.
8.6 The Website Owner will not be liable for content produced on any social media site which includes the various internet-based applications that allow the creation and exchange of user-generated content. Social media enables individuals to communicate via the internet sharing information and resources.
8.7 The Website Owner will not be liable for any social media content which is placed onto social media sites by the Advertiser or the Advertiser’s customers, as social media sites can contain a significant amount of personal information, which includes but is not limited to text, audio, video, images, podcasts and other multimedia communications.
8.8 The Website Owners will not be liable for any conflicts of interest, which may arise from associations made through social media. This is when a persons personal interest could influence, or be perceived as being influenced, in the performance of their official duties and responsibilities.
9. Indemnity
9.1

The Advertiser indemnifies and holds the Website Owner its agents, affiliates, subsidiaries, directors, officers, employees, consultants and contractors (collectively "Indemnified Persons") harmless from and against any and all costs, claims, losses, damages, liability and expense (including all reasonable legal fees) which may be made or brought against or suffered or incurred, directly or indirectly by the Indemnified Persons in connection with:

  1. (a) any breach of this Agreement by the Advertiser;
  2. (b) any act of fraud or wilful misconduct by or on behalf or the Advertiser; or
  3. (c) the publication of, or any act or omission in relation to, the Advertising Content or any website represented by a URL included or embedded in the Advertising Content.
10. Changes to Website and Formats
10.1 The Advertiser acknowledges and agrees that the Website Owner has the right at any time and for any reason to redesign, alter, or modify the structure, navigation, features, “look and feel” and specifications of this website including adding or deleting categories, the names of any of the categories, adding or deleting suburbs, regions or changing the boundaries to which this website currently applies or any pages on which an advertisement or listing may be displayed or linked to, or from.
10.2

The Advertiser accepts and agrees that you may not modify or copy:

  1. (a) the layout of the website, or
  2. (b) any computer software and or code contained in the website.
  3. (c) any portion or part of this website

The Advertiser accepts and agrees that you will not and are not authorised with respect to this website to:

  1. (a) reproduce or alter any of the information or material;
  2. (b) distribute any of the information or material in any form;
  3. (c) unload and or repost any material to any other site on the internet.

Not withstanding the above restrictions on use of the material on the website, The Advertiser may download material from the website for your personal non commercial use provided you do not remove any copyright and trademark notices contained on the material.

11. Advertising Rules
11.1 The Website Owner offers for sale various types of advertising packages. Advertisements and listings will have a life of 365 days from the time of its activation unless otherwise stated. Advertisements and listings may include but are not limited to the following:
11.2

Scrolling Billboard Ads:

These ads are positioned in such a way that they are the top adverts of the category that they are placed within. There is a limited inventory of 6 x Scrolling Billboard Ads per category. The format of these ads will be: 2 x billboards set side by side, each containing a maximum of 3 x at the top left hand side and 3 x at the top right hand side of the category for laptop, PC and tablet usage. This format will merge to become 1 x 6 centrally positioned billboard for smart phone usage.

11.3

Priority A Ads:

These ads are positioned beneath the scrolling billboard adverts within the chosen category and above all Priority B Ads. These adverts are positioned according to the order by which the advertisements are uploaded to the website on a first come first served basis according to a time and date order.

For example, the first Priority A advert uploaded (according to time and date) will be listed as the first advert within the Priority A adverts in the category. The second advert to be uploaded (according to it’s time and date uploaded) in the same category will appear as the second advert on the list and so on. If Priority A advert is deleted or cancelled for any reason (whether by you or us) the time and date priority of this advert will be lost and cannot and will not be re-instated. All new Priority A Adverts will receive a new time and date priority. For a list of included features please refer to the advertise with us tab on the website.

11.4

Priority B Ads:

All of these ads are positioned beneath the Priority A adverts within the chosen category and above all of the Standard Listings and Free listings (which are alphabetically placed together). These adverts are positioned according to the order by which the advertisements are uploaded to the website on a first come first served basis according to a time and date order.

For example, the first Priority B advert uploaded (according to time and date) will be listed as the first advert within the Priority B adverts in the category. The second advert to be uploaded (according to it’s time and date uploaded) in the same category will appear as the second advert on the list and so on. If a Priority B advert is deleted or cancelled for any reason (whether by you or us) the time and date priority of this advert will be lost and cannot and will not be re-instated. All new Priority B adverts will receive a new time and date priority. For a list of included features please refer to the advertise with us tab on the website.

11.5

Standard Listings:

These listings are positioned within the category beneath the Priority B Adverts and are positioned alphabetically together with the Free Listings. For a list of included features please refer to the advertise with us tab on the website.

11.6

Free Listings:

These listings are positioned within the category beneath the Priority B Adverts and are positioned alphabetically together with the Standard Listings. For a list of included features please refer to the advertise with us tab on the website.

11.7

The Advertiser agrees that you will not and are not authorised with respect to this website to:

  1. (a) reproduce or alter any of the information or material
  2. (b) distribute any of the information or material in any form
  3. (c) unload and or repost any material to any other site on the internet;
11.8 The Website Owner does not make any guarantee regarding the commercial success or the performance of the advertising material.
11.9 If any advertisement or listing is cancelled or deleted (whether by you or us) the 'days remaining' and the time and date priority of this listing will be lost and cannot and will not be replaced.
12. Removal of information
12.1 In relation to any material and/or information included on the Website, the Owner may remove any material and/or information, including but not limited to links to other sites on the internet, at any time without giving any explanation or justification for removing the material and/or information.
13. Linked Websites
13.1 This Website may include links to other websites that are not related to wollongongbusinesses.com.au
13.2 The Website Owner is not responsible for the maintenance, currency, content or privacy practices or security with regards to linked websites. Links with these websites are not an endorsement or recommendation by us of the owners of the linked websites or of any materials contained on these linked websites.
14. Payments
14.1 The Advertiser must pay the Website Owner the agreed Fees.
14.2 Prior to the uploading of The Advertiser’s advertisement or listing for display within the relevant category on this website, you must pay us the annual fee for the advertising packages you have chosen. Listings and advertisements will not be activated, or accepted until we have received confirmation that the required payment has been received by us.
14.3 Unless terminated in accordance with this agreement, each listing or advertisement will have a term of 365 days commencing from the date of the activation of your listing or advertisement. The listing or advertisement will NOT be automatically renewed at the end of the term and it is the sole responsibility of the advertiser (you) to renew your advertising via the functionality on the website prior to the end of the term. Listings and advertisements that have not been renewed and paid for prior to the end of the current term of your “live” advertising or listing may be deleted at our discretion.
14.4 The Advertiser acknowledges and agrees that in the event that you chose to cancel or delete your listing or advertisement prior to the end of the term that there shall be no refund, pro rata payment or compensation paid to you by us.
14.5 In the event that we cancel or delete The Advertiser’s listing or advertisement for any reason described within these terms and conditions, there shall be no refund, pro rata payment or compensation paid to you by us.
14.6 In the event that The Advertiser has a “live” listing or advertisement within a category that we amend the name of and you believe that this amended category name is no longer suitable for your business and you subsequently cancel or delete this listing or advertisement as a result of the amended heading name no longer being suitable, then we shall refund to you (on a pro rata basis) the price paid of the advertisement or listing as at the date of cancellation or deletion, subject to you notifying us in writing at least 7 days prior to cancelling or deleting your listing or advertisement and outlining the reasons for the cancellation.
15. Termination
15.1

A party may terminate this Agreement by written notice to the other if any of the following events has occurred in respect of the other party:

  1. (a) a material breach of this Agreement which is not remediable or if capable of remedy, where the other party fails to remedy within 14 days of written notice;
  2. (b) an insolvency event occurs, other than an internal reconstruction with notice to the other party.
16. Consequences of Termination
16.1

If this Agreement is terminated or expires for any reason, then, in addition and without prejudice to any other rights or remedies available:

  1. (a) the parties are immediately released from their obligations under the Agreement except those obligations in clauses 5 to 9 and any other obligations that, by their nature, survive termination;
  2. (b) each party retains the rights and claims it has against the other;
  3. (c) the Advertiser must immediately pay all outstanding Fees;
  4. (d) without limiting other options at law, or under these terms and conditions. The Website Owner in our sole discretion my suspend “temporarily or indefinitely” or terminate The Advertiser as a registered user of this website without notice, cancel, delete or suspend any or all advertising or listings that you have in place in this website if you:
    1. (i) breach this agreement our privacy policy or other terms and conditions governing your use of this website;
    2. (ii) we are unable to verify or authenticate any details or information that you provide to us; or
    3. (iii) we believe that your actions may cause legal liability for us, for you or for others.
  5. (e) The Advertiser agrees that we have no liability to you with respect to any costs, losses, loss of profit or any impacts of any type arising as a consequence of a suspension or termination of your status as a registered user or your access to this website or the cancellation or deletion of your advertisement/s or listing/s from this website.
17. Notices
17.1

All notices must be in writing and can be given by:

  1. (a) hand delivery during normal business hours;
  2. (b) registered post; or
  3. (c) email followed within 2 business days by one of the means listed above.
17.2

A notice is deemed to be given and received:

  1. (a) if delivered in accordance with clause 17.1(a) on the next business day after the day of delivery;
  2. (b) if sent in accordance with clause 17.1(b) within 5 clear business days after the day of posting;
  3. (c) if sent in accordance with clause 17.1(c).
18. General
18.1 Disclaimer 1 There may be errors, inaccuracies, programming bugs, glitches or computer viruses in this website or in its contents. We shall not be held liable for any such errors.
18.2 Disclaimer 2 The Website Owner is making the Website available for others to publish information without assuming a duty of care to users. The Website Owner is not in the business of providing professional advice and gives no warranty, guarantee or representation about the accuracy, reliability or timeliness or otherwise, of the information contained on the Website and/or linked sites on the internet.
18.3

To the full extent permitted by law the Website Owner disclaims any and all warranties, express or implied, regarding:

  1. (a) the accuracy, reliability, timeliness or otherwise of any information contained or referred to on the Website and/or of any linked sites; and
  2. (b) merchantability or fitness for any particular purpose for any service or product contained or referred to on the Website and/or on any linked sites.
18.4

The Website Owner will not be liable under any circumstances for any loss of profits or any damages of any kind recognised by law (even if it has been advised of the possibility of such loss of profits or damages) which are the consequence of The Advertiser:

  1. (c) acting, or failing to act, on any information contained on or referred to on the Website and/or any of the linked Websites; and
  2. (d) using or acquiring, or inability to use or acquire, any service or product contained or referred to on the Website and/or any linked sites.
18.5

Disclaimer 3 The Website Owner does not warrant guarantee or make any representation that:

  1. (a) the Website, or the server that makes the site available on the internet are free of software viruses;
  2. (b) the functions contained in any software contained on the Website will operate uninterrupted or are error-free; and
  3. (c) errors and defects in the Website will be corrected.
18.6

The Website Owner is not liable to The Advertiser for:

  1. (a) errors or omissions in the Website, or linked sites on the internet;
  2. (b) delays to, interruptions of or cessation of the services provided in the Website, or linked sites; and
  3. (c) defamatory, offensive or illegal conduct of any user of the Website,

whether caused through negligence of the Website Owner, its employees or independent contractors, or through any other cause.

18.7

The Advertiser agrees that by purchasing advertising on the website that their business may be subjected to reviews and ratings from website users:

  1. (a) Advertisers wishing to post reviews and ratings must guarantee that the proposed review and rating is generated as a result of your own personal experiences and that the reviews must not contain any false information or information that may reasonably be considered offensive or defamatory;
  2. (b) only reviews that are worded in a positive manner will be considered for acceptance. Any review may be deleted for any reason at our sole discretion;
  3. (c) Advertisers agree that you cannot review your own business or a business of a family member. Any reviews considered to be self generated or those of a family member will be deleted from the website.
18.8 The Advertiser agrees to accept the full cost of any necessary repair, correction and maintenance of any of your computer software or hardware, which may be necessary as a consequence of you accessing the Website.
18.9 The Advertiser must not assign or otherwise deal in any other way with any of its rights under this Agreement without the prior written consent of the Website Owner.
18.10 Nothing contained in this Agreement creates any relationship of partnership or agency between the parties.
18.11 If a provision of this Agreement is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
18.12 Each party must at its own expense do everything reasonably necessary to give full effect to this Agreement and the events contemplated by it.
18.13 This Agreement (including the Davela Holdings Pty Ltd (ACN 146 185 622) As Trustee For James Family Trust Website Terms of Use and the Davela Holdings Pty Ltd (ACN 146 185 622) As Trustee For James Family Trust  Privacy Policy) is the entire Agreement of the parties about its subject matter and supersedes all other representations, arrangements or agreements. Other than as expressly set out in this Agreement, no party has relied on any representation made by or on behalf of the other.
18.14 This Agreement may be amended only by a document signed by all parties.
18.15 A provision of or a right under this Agreement may not be waived or varied except in writing signed by the person to be bound.
18.16 This Agreement may be executed in counterparts, which will be taken together to constitute one document.
18.17 A party will not be responsible for a failure to comply with its obligations under this Agreement to the extent that failure is caused by a Force Majeure Event, provided that the party keeps the other closely informed in such circumstances and uses reasonable endeavours to rectify the situation.
18.18 Without limiting any other right to terminate under this Agreement, if a Force Majeure Event affects a party's performance under this Agreement for more than thirty (30) consecutive days, the other party may immediately terminate this Agreement by written notice.
18.19 All stamp duties and other government charges in relation to this Agreement must be paid by the Advertiser.
18.20 This Agreement is governed by the laws of New South Wales and each party submits to the jurisdiction of the courts of New South Wales.

We otherwise reserve all rights.