1.1. These terms (together with the applicable Cancellation Date and Advertising Material Lodgment Requirements) govern each Confirmation Advice, Proposal, supply of Services and Booking and, except as modified in accordance with these terms, constitute the entire agreement in connection with each supply of Services. All other express or implied terms, including Client’s terms, are excluded to the extent permitted by law.
1.2. No variation to these terms binds FINANCY® unless expressly and specifically agreed in writing by FINANCY® and Client.
1.3. These terms supersede any terms that have previously governed any supply of Services and prevail to the extent of any inconsistency between a written or verbal quotation and these terms.
Any written or verbal quotation provided by FINANCY® to Client, whether in the form of a media kit or otherwise, is a mere invitation to treat and does not constitute a contractual offer.
3. BOOKING PROCESS
3.1. If Client requests FINANCY® to provide Services, then FINANCY® may issue a Proposal. If FINANCY® issues a Proposal, Client may accept that Proposal by signing and returning it to FINANCY®.
3.2. Subject to clause 4.3, Client may cancel all or part of a Booking without penalty if written notice is given to FINANCY® before the Cancellation Date.
3.3. If Client cancels a Booking after the Cancellation Date, including a Booking accepted by FINANCY® after the Cancellation Date, Client must pay FINANCY® the full amount for that Booking.
3.4. If FINANCY® fails to issue a Confirmation Advice or a Proposal relating to a request for Services but provides the Services requested, these terms bind the Client as if a Booking had been made.
4. CREATIVE SERVICES
4.1. Where, in connection with the provision of the Services, FINANCY® provides creative services to Client, Client acknowledges that FINANCY® does so as agent for Client and Client:(a) is solely responsible for; and(b) provides the warranties set out in these terms in relation to,any Advertising Material which is the product of such creative services, including its compliance with applicable laws, regulations and codes of conduct.
4.2. Any text, images or logos that Client wants to include in Advertising Material being created by FINANCY® must be provided to FINANCY® at Client’s cost within the timeframes notified by FINANCY® to Client.
4.3. If Client cancels a Booking at any time, Client remains liable for the production costs for any Advertising Material created by FINANCY® in connection with the Booking at the time of cancellation.
Where FINANCY® reasonably considers that Advertising Material on any Digital Platform is underperforming, FINANCY® may change the placement of that Advertising Material to a similarly sized placement on a reasonably equivalent Digital Platform to that specified in the relevant Booking.
6. RATES AND PAYMENT
6.1. The applicable rate for any Booking is the rate specified on financy.com.au and in the FINANCY® Media Kit. Client must pay to FINANCY® the fee for a Booking prior to the Cancellation Date unless FINANCY® has extended credit to the Client, in which case the Client must pay to FINANCY® the fee for a Booking within 14 days of the invoice date for all direct Bookings. FINANCY® may cancel a Booking if FINANCY® has not received the fee for that Booking by applicable payment date.
6.2. Client must pay any production costs at FINANCY®’s standard rates from time to time where production costs are incurred on behalf of Client.
6.3. All FINANCY® rates or costs are exclusive of any applicable GST. FINANCY® will issue a tax invoice to Client in relation to any supply that is subject to GST. The amount of GST payable by Client shall be calculated by multiplying the GST exclusive sum payable for Services by the rate of GST applicable at the time of the supply. The terms “GST”, “supply” and “tax invoice” used in this paragraph has the same meaning as under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
6.4. Time of payment of invoices by Client is of the essence. Without prejudice to any other remedy, FINANCY® may charge interest on any overdue payments at an annual rate equal to 2% per annum.
7. CONDITIONS RELATING TO SERVICES
7.1. FINANCY® may require Client to complete a credit application before accepting a Booking or providing Services.
7.2. FINANCY® may refuse to accept any Advertising Material and may cancel or reschedule any Booking or refuse to provide any Services.
7.3. Client must not resell or sub-license a Booking or use a Booking other than for Advertising Material referred to in the applicable Confirmation Advice or Proposal.
7.4. FINANCY® makes no warranties in relation to proximity of Advertising Material on a Digital Platform relative to Advertising Material relating to competing products or services.
7.5. Client consents to FINANCY® reformatting any Advertising Material for inclusion on a Digital Platform and warrants that doing so will not infringe any person’s rights.
7.6. Client must not insert any data tracking or collection device (including any tag, code, cookie or pixel) into Advertising Material for a Digital Platform without FINANCY®’s permission.
8. ADVERTISING MATERIAL LODGEMENT
8.1. Client must lodge Advertising Material by such time and in such form as notified by FINANCY®.
8.2. FINANCY® accepts digital advertising files via email. Details will be provided at time of booking.8.3. If Advertising Material is not lodged as required by FINANCY®, FINANCY® may, in its sole discretion:
(a) use Advertising Material previously provided by Client;
(b) cancel the Booking; and, in all circumstances set out above, FINANCY® remains entitled to the full payment for the Booking.
8.4. FINANCY® may place the word “advertisement”, “advertorial”, “sponsored”, “promotion” or similar wording within or adjacent to any Advertising Material which, in FINANCY®’s opinion, resembles editorial material.
8.5. FINANCY® will retain Advertising Material for no longer than 3 months from the end date of the Booking(s) in respect of which FINANCY® requires the Advertising Material to provide the Services.
9.1. Client warrants to FINANCY® that Advertising Material lodged with FINANCY® (whether or not FINANCY® provided creative services in relation to that Advertising Material):
(a) complies with all laws, statutes, regulations, codes of practice and any standards applicable to publication of the Advertising Material and determined by any relevant regulatory agency or industry self-regulatory body;
(b) complies with any standard, guideline or requirement specified by FINANCY® and notified to Client from time to time;
(c) does not infringe copyright, trademark, obligations of confidentiality or other legal rights of any person;
(d) is not false or misleading and is true in substance and in fact;
(e) without limiting the above, does not infringe the Competition and Consumer Act 2010 (Cth) or the Fair Trading Act 1986 (NZ) or the Therapeutic Goods ACT 1989 (Cth), the Therapeutic Goods Regulations, the Therapeutic Goods Advertising Code or similar laws, regulations and codes operating in Australia or New Zealand; and
(f) does not contain anything which may give rise to any cause of action by a third party against FINANCY®, including material which is defamatory or obscene or which otherwise causes injury or damage to any person.
9.2. Client warrants to FINANCY® that, in respect of each Booking, Client is acting in its own right, as principal, and not as agent for, or otherwise on behalf of, any other party in relation to Client’s dealings with FINANCY®.
Client indemnifies FINANCY®, its officers, employees, agents and affiliates (and their employees and agents) against any action, claim, loss, expense or cost, suffered or incurred, whether directly or indirectly, by FINANCY®, its officers, employees, agents and affiliates (and their employees and agents) as a result of any breach by Client of these terms (including the warranties set out in these terms) or otherwise (including in connection with recovering any amounts owed to FINANCY® by Client) arising from publication of Advertising Material, cancellation of or failure to publish any Advertising Material or otherwise in connection with such advertising.
11.1. FINANCY® (and its officers, employees, agents and affiliates) is not liable under these terms or otherwise in law for any indirect, special, economic or consequential loss or damage suffered or incurred by Client (or any other person) or loss of revenue, profit, goodwill, data or opportunity or loss of anticipated saving whether caused by negligence or otherwise and whether or not FINANCY® was aware or should have been aware of the possibility of such damage.
11.2. To the extent permitted by law, all representations, conditions and warranties, whether based in statute, common law or otherwise, are excluded. Liability of FINANCY® for any breach of a term, whether implied by law or otherwise, is limited, at FINANCY®’s option, to the supply of the Service (or part thereof) again or the payment for the cost of having the Services (or part thereof) supplied again.
11.3. FINANCY® is not liable for any delay or failure to perform the Services that is due to any act of God, revolution, unlawful act against public order or authority, breakdown of plant, industrial dispute, government or legal restraint or any other event not within the reasonable control of FINANCY®.
12.1. FINANCY® may cancel, alter or suspend any credit terms (if applicable) when, in FINANCY®’s opinion, the financial condition of Client or the status of Client’s account requires it and Client agrees to pay on demand all sums owing in connection with any credit facility if the credit facility is suspended or cancelled.
12.2. If FINANCY® grants any credit facility to Client, Client agrees that a demand purporting to be signed on behalf of FINANCY® identifying unpaid amounts is conclusive evidence that such amounts are payable and unpaid.
12.3. At the time at which it makes any request for Services, Client warrants that it is solvent and able to pay all of its debts as and when they fall due and Client must inform FINANCY® of any facts which might reasonably affect any decision to provide the Services and/or grant credit.
13.1. These terms and any agreement between Client and FINANCY® are governed by the laws of New South Wales and each party submits to the jurisdiction of courts exercising jurisdiction in that State.
13.2. These terms bind FINANCY® and Client and their respective successors.
13.3. The invalidity or unenforceability of any provision of these terms does not affect the validity or enforceability of the remaining provisions.
13.4. Client must not assign its rights under these terms or a Booking to any other person.
In these terms, unless the context otherwise requires:Advertising Material means advertising material and any promotional or other material:
(a) provided to FINANCY® by or on behalf of Client; or
(b) created by FINANCY® in the course of providing creative services to Client, including onserts, band-ons;
Advertising Material Lodgment Requirements means the requirements for lodgment of Advertising Material with FINANCY®, as specified on FINANCY®’s Website or otherwise specified by FINANCY® from time to time;
FINANCY® means FINANCY® 74154685986 and any affiliate for which FINANCY®enters into a Booking; Digital Platform means a digital platform (including a website, a mobile optimized version of a website and an application) operated by FINANCY® or with which FINANCY® is associated;
FINANCY®’s Website means the website located at financy.wpengine.com;
Booking means an agreement for the provision of Services between Client and FINANCY® made in accordance with clause 3.1 or clause 3.4;
Cancellation Date means 14 days prior to the campaign start date set out in the Proposal;
(a) any person who places a request for Services or enters into a Booking or to whom FINANCY® supplies Services; or
(b) if an agency places a request for Services or enters into a Booking on behalf of that agency’s client, that agency;Confirmation Advice means a notice from FINANCY® to Client confirming the details of a Booking and acceptance of the Booking;
Proposal means a notice from FINANCY® to Client confirming the details of a potential Booking and offering to provide the Services the subject of the potential Booking.
Publication means a print publication (including any digital replica version) published by FINANCY® or with which FINANCY® is associated; and
Services means the provision to Client by or on behalf of FINANCY® of advertising opportunities, including advertorials on a Digital Platform.