Terms and Conditions

 

I

ADVERTISING BOOKING TERMS AND CONDITIONS

This document sets out the terms and conditions that apply to the provision of advertising services by any radio station or digital platform owned or operated by Crocmedia Pty Ltd (ABN 63 129 637 378) or any of related bodies corporate forming part of the Pacific Star Network Group of Companies (“Crocmedia”). These terms and conditions do not constitute an offer or agreement by Crocmedia to provide any advertising services. Any agreement to provide advertising services is subject to approval and signing of a Booking Agreement by Crocmedia and Client (or Agency on behalf of Client).

1 AGREEMENT

1.1 Upon approval by Crocmedia of a Booking Agreement, Crocmedia will provide the Services in accordance with the details specified in the Booking Agreement and these terms and conditions.

2 BOOKINGS

2.1 Subject to clause 2.2 and these terms and conditions, Crocmedia will broadcast or publish each Advertisement within the time period and/or within the dates specified in the Booking Agreement and further provide any goods or sevices set out in any Special Conditions in the Booking Agreement.

2.2 If, in a Booking Agreement, Client has requested an Advertisement to be broadcast within a time period or dates that are not available, Crocmedia will use its reasonable endeavours to comply with those time periods and dates, however, where those times and dates are not available, it may place that Advertisement on a wait list for a new time/date period as close as practicable to those specified in the Booking Agreement. If the new time/date period becomes available, Crocmedia may broadcast the advertisement within that new time/date period without any further approval from Client, and Client will be required to make payment for the Advertisement at the Rate for that for that new time/date period in accordance with Clause 4.

2.3 Client must provide Crocmedia with all relevant campaign information relating to each Advertisement, including but not limited to audio files (in WAV format no greater than 6MB), print files (in size and resolution as requested) creative summaries and any other information reasonably requested by Crocmedia.

2.4 Client grants to Crocmedia the right to use any trade marks provided by Client to Crocmedia in accordance with these terms and conditions.

2.5 By submitting material to Crocmedia for, or approving the content of, an Advertisement, Client represents and warrants to Crocmedia that the Advertisement complies with Clause 11.1 and that the Client has the right and authority to grant the right in Clause 2.4.

2.6 Client agrees to comply promptly with any reasonable directions of Crocmedia in relation to the preparation, production, publication and broadcast of any Advertisement (including any directions relating to the content of an Advertisement or supply of material required to be provided by Client to enable Crocmedia to broadcast or publish the Advertisement (such as scripts and audio material).

3 CONDITIONS ON ADVERTISING MATERIALS

3.1 Crocmedia will not be required to broadcast or publish an Advertisement unless the content of the Advertisement (or changes to any content) is first approved by each of Crocmedia and Client.

3.2 Crocmedia reserves the right, at any time, to cease, take down or refuse to accept any Advertisement if it considers that any part of that Advertisement is (i) offensive, defamatory, racially inflammatory or blasphemous, (ii) contrary to any law, regulation or standards, including the the Competition and Consumer Act 2010 (Cth), the Broadcasting Services Act 1992 (Cth), Commercial Radio Australia or ACMA codes, standards or guidelines or any laws governing betting-related advertising or (iii) in any way detrimental to the interests of Crocmedia.

3.3 Client must lodge Advertising material in accordance with any reasonable lodgement requirements of Crocmedia.

3.4 If Client fails to comply with any requirements in this Clause 3, Crocmedia is under no obligation to advertise that material and no refund will be provided, provided that Crocmedia will notify Client of such failure and if time permits, Client will have the opportunity to rectify such material. Client will remain liable for website or other space allocated to advertising material that is not lodged in accordance with these requirements and not rectified in a timely manner.

4 PAYMENT TERMS

4.1 Client will pay the Total Cost to Crocmedia and will be charged for the provision of Services at the Rates and prices set out in the Booking Agreement. All payments due must be paid in cleared funds via cheque, direct debit or credit card (transaction fees apply). Unless otherwise expressly set out in the Booking Agreement, all Rates and prices quoted in the Booking Agreement are inclusive of GST.

4.2 If Client has a Credit Account, it will be provided an invoice on a monthly basis via email for the value of Services provided during the preceding month and Client must pay the amount invoiced in accordance with the terms of that invoice and, in any event, no later than 30 days from the date of that invoice or, in the event the Bookings are made by an MCRL-accredited Agency, no later than 45 days from the date of that invoice.

4.3 If Client does not have a Credit Account, or the value of Services exceeds the available credit limit under the Credit Account, payments for Services must be paid in cleared funds at least 3 Business Days prior to the date on which the first Advertisement is to be published or broadcast.

4.4 Crocmedia may require Client to pay any production costs and other out of pocket expenses in relation to an Advertisement prior to incurring those costs and expenses.

4.5 If payment for Services is not received by Crocmedia when due in accordance with the invoice, Crocmedia may, in its discretion: (a) charge interest on the unpaid amount at the rate (but with interest accruing on a daily basis) of 2.0% per month above the prime rate as reported by an Australian bank selected by Crocmedia or at the maximum rate allowed by applicable laws in Australia on all overdue amounts calculated monthly from due date until such amount is paid as an administration fee; and/or (b) suspend broadcast of any advertising material lodged by Client or the Agency until such time as all outstanding payments are received by Crocmedia. Crocmedia has the discretion to charge the administration fee at any time during and

after the term of this Booking Agreement and the fee will relate to any prior payments that were in arrears under this Booking Agreement. Crocmedia may at any time at its discretion and without notice alter or suspend Client’s Credit Account.

4.6 If any payment is not made or not made in accordance with any invoice, Advertisements will not be aired/printed and Client will remain liable for any commercial airtime or space allocated. Once services for an invoice period have been rendered, (i) no refund or other claim will be maintained by Client or any Agency with respect to a paid invoice and (ii) no claim by way of set off or otherwise will be raised by Client or any Agency with respect to any unpaid invoice for any matter that may relate to the performance or otherwise by Crocmedia for any future invoice period.

4.7 Client will be liable for recovery costs incurred in the event of an overdue account being referred to an external debt collection agency due to a default in Client’s obligation to pay under these terms and conditions, including but not limited to (a) commission charged by the debt collection agency on a contingency basis, as a liquidated debt and (b) any charges reasonably made or claimed by a lawyer (in the event that the overdue account is referred to them by the debt collection agency), as a liquidated debt. The costs recoverable will be the commission percentage charged by the debt collection agency including GST, as if the agency has achieved one hundred per cent recovery of the outstanding debt. The recovery costs will applied to the account and become payable by Client from the date that the overdue account is referred to the debt collection.

4.8 Subject to Clause 4.1, if GST is, or will be, payable in respect of any supply made by Crocmedia pursuant to these terms and conditions and the amount quoted by Crocmedia is exclusive of any amount payable on account of GST, Client agrees that Crocmedia may increase the consideration payable for the supply by an amount equal to the GST liability arising on the supply, and (subject to receipt of a valid tax invoice) the amount of the GST liability will be payable at the same time as the consideration for the supply.

5 INTERRUPTIONS AND CHANGES

5.1 Client acknowledges and agrees that because of the nature of the Services, the Services may be subject to interruption from time to time.

5.2 Client may request a change to the broadcast date or time periods of an Advertisement set out in the Booking Agreement by making a request in writing to Crocmedia not less than ten (10) Business Days prior to the relevant broadcast date. The revised broadcast time or date period will be subject to availability and must be agreed by Crocmedia in its absolute discretion.

5.3 Bonus spots (if any) may be cancelled or altered at any time at the discretion of Crocmedia.

6 MARKETS

6.1 Should the geographical markets change from those specified in the Booking Agreement, these terms and conditions and the terms of the Booking Agreement are not altered or amended in any way, including the Total Cost or any component of the fees payable under the Booking Agreement. The Parties agree that if any additional geographical markets are added, the parties will in good faith disucss an increase to the total Cost based on a value per market basis.

7 TERMINATION

7.1 It will be an Event of Default for the purposes of this Clause 6 if (a) Client breaches any material term of this Agreement (including any payment obligation) and fails to rectify the same within seven (7) days of receipt of notice of the breach, (b) subject to applicable laws, Client or any Agency or related party of the Client or becomes insolvent or ceases to carry on business, (c) Client or any Agency commits a persistent breach of this Booking Agreement, (d) Client or any Agency or related party of Client is involved in any conduct that might harm Crocmedia’s name, image or reputation or (e) the Credit Account is terminated by Crocmedia as a result of any breach or default of the Credit Terms.

7.2 In any Event of Default arises then, without prejudice to any other rights or remedies it may have, Crocmedia may do any or all of the following: (a) require Client to immediately pay in full any and all monies unpaid by the Client (or any Agency or related party of Client) to Crocmedia, (b) suspend, terminate or otherwise amend in its absolute discretion the provision of credit to Client (or any Agency or related party of Client), (c) require Client (or any Agency or related party of Client) to pay in advance all amounts in respect of subsequent requests for Services and pay any collection fees, legal and other costs and outgoings incurred as a result of the Event of Default, (d) recover from Client all costs, fees and disbursements relating to any action taken by or on behalf of Crocmedia to recover monies from Client (or any Agency or related party of Client), (e) cease or refuse to provide any further Services to Client (or any Agency or related party of Client), including cancellation of the production or broadcast or publication of any Advertisement which has not been broadcast or published on or before the date of the Event of Default and (f) terminate the Booking Agreement and operation of these terms and conditions immediately by notice to Client.

8 DISBURSEMENTS

8.1 Any disbursements associated with the Booking Agreement will be quoted separately and approved in advance by Client, not to be unreasonably withheld. Any commercial production in excess of that specified in the Booking Agreement will be charged at $500 for the first commercial and $300 for each subsequent commercial during the term of the Booking Agreement.

9 AGENCY

9.1 Client will be liable as principle debtor for payment of all amounts invoiced by Crocmedia, provided that in the event the Agency enters into this Booking Agreement as an agent for Client, the Agency will remain principally liable for all payments for Services rendered pursuant to this Booking Agreement and shall be deemed to have full authority in all matters connected with the entering into and performance of this Booking Agreement with Crocmedia.

10 INTELLECTUAL PROPERTY

10.1 The copyright and other intellectual property rights created by the provision of Services (including any material created, developed or produced by Crocmedia for or in relation to an Advertisement, including scripts, copy writing, creative material) will be and will remain the property of Crocmedia. and Client will have no rights in or in respect of that material and must not deal or allow any other person or entity to deal in any way with that material without the prior written consent of Crocmedia.

11 CONTENT OBLIGATIONS

11.1 Client is responsible for the content of all Advertisements. Accordingly, Client must procure and ensure that

(a) all necessary consents, authorisations and approvals required to prepare, produce, publish and broadcast the Advertisement have been obtained;

(b) the preparation, production, publication and broadcast of the Advertisement does not breach or infringe any rights of any other person or breach any law; and

(c) all Advertisements and other information provided to Crocmedia or by or on behalf of Client (a) complies with all laws, statutes, regulations, codes of practice and any standards determined by any relevant regulatory agency or industry self-regulatory body applicable to the Services, (b) complies with any standard or requirement specified by Crocmedia and notified to Client from time to time, (c) does not infringe copyright, trademark or other intellectual or other legal rights of any person, (d) is not false or misleading and is true in substance and in fact, (e) does not infringe the Competition and Consumer Act 2010 (Cth), the Broadcasting Services Act 1992 (Cth), any Commercial Radio Australia or ACMA codes, standards or guidelines or any laws governing betting-related advertising and (f) does not contain anything that may give rise to any cause of action by a third party against Crocmedia, including without limitation material which is misleading and deceptive or defamatory or obscene or which infringes any right of privacy or personality or which otherwise causes injury or damages to a person.

11.2 Client further warrants that it has the right make the Bookings under the Booking Agreement in addition to the warranties provided above.

12 INDEMNITIES AND LIABILITY

12.1 Client unconditionally and irrevocably indemnifies Crocmedia and any member of the Pacific Star Network Group of Companies and their respective directors, officers, employees and agents against any action, liability, proceeding, demand, damages, costs (including legal costs on a full indemnity basis), claim, loss or expense however arising or incurred (or agreed to be paid by way of settlement or compromise) whether directly or indirectly in connection with display, publication or broadcast or any matter or thing relating to or in connection with any Advertising or other materials lodged with Crocmedia by or on behalf of Client or any breach by Client of the warranties above or of any of these terms and conditions, unless caused by the gross negligence, fraud or wilful misconduct of Crocmedia.

12.2 Without limiting Clause 12.1, to the extent permitted by law:

(a) Crocmedia will not be responsible or liable for the sound quality of the broadcast or publication of any Advertisement broadcast or failure to broadcast or publish any Advertisement because of cancellation, technical failure, broadcasts required by law or emergency announcements or any cause beyond Crocmedia’s reasonable control; and

(b) Crocmedia excludes and will not be liable for any warranties and representations in relation to or in connection with goods or services (including the Services) provided pursuant to these terms and conditions. For the avoidance of doubt, Client acknowledges and agrees that Crocmedia makes

no representations or warranties as to the quality, fitness for purpose, results, performance, effectiveness, profitability, usefulness, reliability, timeliness or accuracy of any Advertisement or the provision of Services by Crocmedia.

12.3 Where the law prohibits the exclusion of liability for an implied term, the term is included in these terms and conditions, however to the extent permitted by law, Crocmedia’s liability for any individual breach of that term will be limited to the supply of the services again or paying the cost of doing so.

12.4 To the extent permitted by law, neither Crocmedia nor any member of the Pacific Star Network Group of Companies nor their respective directors, officers, employees or agents have any liability to Client or any Agency whether in contract, tort or otherwise for any loss, cost or damage (including without limitation for or in respect of any consequential, special or indirect liability, loss, damage, cost, charge or expense, loss of profits or data) of any kind arising from its provision of Services or the display, broadcast or publication of any Advertising provided by or on behalf of Client to Crocmedia. Further, Crocmedia gives no warranty or representation about the impact of Advertising on the business of Client.

13 NON-COMPETE

13.1 Advertising timeslots during, before and after any Advertisements or programming incuding any Advertisements, including stand alone advetisements and in-programming commercial branding (the “Timeslots”) do not fall within the scope of these terms and conditions or the Booking Agreement and are not within the control of Crocmedia. Crocmedia cannot prevent or influence what is aired during the Timeslots and cannot provide any assurance as to the nature of advertising or branding within the Timeslots, or the nature of the businesses being promoted during the Timeslots, other than to the extent expressly set out in the Booking Agreement.

14 CONFIDENTIAL INFORMATION

14.1 Each party agrees to keep the other party’s information confidential (except where disclosure is permitted by the other party or required by law) and take whatever measures are reasonably necessary to preserve such confidentiality.

15 GOVERNING LAW

15.1 This Booking Agreement will be governed by the laws in force in Victoria and each party submits to the jurisdiction of courts exercising judgment in that State.

16 FORCE MAJEURE

16.1 If Crocmedia is prevented or delayed in the performance of any of its obligations (including provision of any of the Services) by a force majeure event being an event beyond its reasonable control, it shall be excused from the performance or the punctual performance as the case may be for so long as such event shall continue and the parties’ obligations under this Booking Agreement solely with respect to matters arising after that force majeure event, from the time of that force majeure event, will be suspended until the force majeure event ceases/subsides.

17 ENTIRE AGREEMENT

17.1 These terms and conditions (including the Booking Agreement) constitute the entire agreement between Crocmedia and the Client in relation to the provision of the

Services. Client expressly warrants and agrees that it has not relied upon any previous agreements, understandings, negotiations and any terms implied by trade custom, practice, course of dealing or otherwise by law in entering into these terms and conditions. These terms and conditions entirely supersede all previous agreements, understandings, negotiations and any terms implied by trade custom, practice, course of dealing or otherwise by law in relation to the Services or the subject matter of the Booking Agreement.

18 TRANSFER

18.1 Crocmedia, acting reasonably and in its legitimate interests, may at any time assign, transfer, sell, mortgage, charge, pledge or otherwise deal with all or any part of its rights and obligations under the Booking Agreement in its absolute discretion without the need to obtain the consent of Client. Client may not (and must not attempt to) assign, transfer, sell, mortgage, charge, pledge or otherwise deal with all or any part of its rights and obligations under the Booking Agreement or these terms and conditions.

19 DEFINITIONS

19.1 In these terms and conditions, the following definitions apply unless otherwise defined in the Booking agreement or the contrary intention appears or the context requires otherwise:

(a) “Advertisement” means each advertisement to be broadcast or published by Crocmedia (regardless of media format), specified in the Booking Agreement (whether produced by Crocmedia or any other person).

(b) “Agency” means the entity (if any) listed in the Booking Agreement as representing the Client for its media spend and that has provided Crocmedia with evidence that it has full accreditation provided by the Media Credit Reference Limited (“MCRL”).

(c) “Booking” means a request to acquire space on Crocmedia’s website or radio station or print or TV media for Client’s Advertising material, each as identified in the Booking Agreement.

(d) “Booking Agreement” means the agreement by and between Crocmedia and Client (or Agency on behalf of client) for the supply of the Services by Crocmedia to client (or Agency on behalf of Client).

(e) “Business Day” means a day that is not a Saturday or Sunday or a public holiday in Melbourne, Victoria.

(f) “Client” means the party contracting with Crocmedia for the provision of Services and listed as such in this Booking Agreement. References to the Client include any Agency listed in the Booking Agreement and lodging Advertising material and placing any Bookings on behalf of Client.

(g) “Credit Account” means an agreement between Crocmedia and Client pursuant to which Crocmedia agrees to provide credit to Client in connection with the purchase of advertising services.

(h) “Credit Terms” means the terms and conditions forming part of the Credit Account.

(i) “GST” has the same meaning as in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(j) “Rate” means, in relation to an Advertisement, the rate payable for the broadcast or publication of the Advertisement, as specified in the Booking Agreement.

(k) “Services” means the services to be provided by Crocmedia in relation to the Advertisements specified in the Booking Agreement.

(l) “Total Cost” means the aggregate amount payable for the Services as specified in the Booking Agreement (and includes Rates as well as any production, additional track, supply of script or voice, live read or other costs specified therein).