These atn Standard Advertising Terms and Conditions (Terms) apply to all advertising bookings placed by the Client with The Australia Traffic Network Pty Limited (ABN 53 078 993 736) (atn) for the distribution of Advertising on the atn Network.
1. Formation and Term of Agreement
a. The Client agrees to advertise with atn and atn agrees to broadcast the Advertising on the atn Network, on the conditions set out in these Terms.
b. The Client accepts and becomes bound by these Terms by the Client executing an Order or by emailing or writing to atn to accept a booking with atn.
c. The agreement consists of the Order and these Terms (Agreement). In the event of any conflict between an Order and these Terms, these Terms will prevail.
d. Where an Order is booked or placed by an Agency on behalf of a Client, the Agency warrants that they have the authority to bind the Client in accordance with this Agreement.
e. This Agreement commences on the date the Client accepts this Agreement in accordance with paragraph 1b and continues for the Term.
2. Advertising Approval
Where Advertising is developed by atn using Advertising Material, atn will provide the Advertising to the Client for approval. atn will use reasonable endeavours to provide the Client with at least two (2) Business Days for approvals. Approval will be deemed given at the expiry of this period if no response from the Client is received by atn. The parties acknowledge that these approval timeframes may need to be expedited from time to time due to campaign schedule.
3. Placement of Advertising Content
a. atn will use reasonable endeavours to deliver the Advertising as specified in the Order. The Client acknowledges Advertising is subject to availability.
b. Without limiting clause 3a, the Client acknowledges and agrees that:
i. atn may vary the placement of the Advertising on the atn Network at any time in its discretion;
ii. atn has the right, at its sole discretion, to refuse to place or remove any Advertising or cancel any placement of Advertising on the atn Network that it considers to be non-compliant with Applicable Laws or this Agreement in any way; and
iii. the Client cannot purchase Advertising on specific radio stations on the atn Network.
c. The Client may request a variation to the scheduling of the broadcast of the Advertising by giving atn fourteen (14) days’ written notice before the originally scheduled time. In such case, atn will use reasonable efforts to reschedule the broadcast of the Advertising.
4. Delivery of Advertising Material
a. The Client must deliver the final approved Advertising to atn at least 24 hours prior to the scheduled time for the relevant Advertising as set out in the Order, or as otherwise advised by atn in writing from time to time.
b. The Client must provide the Advertising Material and/or Advertising to atn via email or such other method of communication as agreed between the parties.
c. The Client must not deliver or make available any Advertising Material or Advertising to atn that contains viruses or any other computer codes, files or programs designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment.
d. The Client acknowledges and agrees that where the Client fails to provide the Advertising Material, Advertising or relevant approvals to atn in accordance with this Agreement, atn is not obliged to broadcast the Advertising on the atn Network.
5. Confidentiality
atn and the Client agree to keep confidential any proprietary information disclosed during the Term of this Agreement, (including the terms of this Agreement, including the Fees and charges payable by the Client) and not to use such information for any purpose other than the performance of this Agreement. This obligation of confidentiality shall survive the expiration or termination of this Agreement.
6. Termination
a. atn may terminate the Agreement by written notice if:
i. the Client fails to remedy a material breach, including without limitation a failure to make a payment when due, within fourteen (14) days of a notice from atn requiring the Client to do so; or
ii. the Client becomes insolvent, is the subject of a winding up order or scheme of arrangement, a liquidator, receiver or administrator is appointed over any part of its business or atn otherwise reasonably believes that the Client is unable to pay its debts when due.
b. Upon expiration or termination of the Agreement, subject to clause 9:
i. the Client must immediately pay all amounts owed by the Client in respect of the period up to the date of expiration or termination, including any reasonable costs incurred by atn in respect of early termination such as third-party cancellation fees and administrative costs; and
ii. atn will immediately cease providing any Advertising services, which may include cancelling the placement of Advertising on the atn Network after the date of termination, in respect of which the Client will not be entitled to any reimbursement or compensation.
7. Fees and Payment
a. In consideration of the services provided by atn under this Agreement, the Client must pay the Fees to atn in accordance with the following:
i. if the Client is an Approved Agency, then within forty-five (45) days after the end of the month during which the Advertising was broadcast on the atn Network;
ii. if the Client (other than an Approved Agency) has an approved credit account with atn, then within thirty (30) days after the end of the month during which the Advertising was broadcast on the atn Network; or
iii. if the Client (Agency or otherwise) does not have an approved credit account with atn, then no later than five (5) days before the scheduled broadcast of the Advertising on the atn Network.
b. Unless otherwise stated by atn, Fees and any other payments or other charges are quoted exclusive of GST and the Client will pay GST in addition to such amounts.
c. The Client must pay the Fees by the due date specified above, unless otherwise specified in the Order.
d. In the event the Client fails to pay the Fees when they are due, without prejudice to any other rights or remedies of atn, atn may at its sole election and discretion:
i. cancel any credit terms provided to the Client and require immediate payment in full of all Fees;
ii. immediately and without notice, suspend the broadcast of any Advertising or suspend or cancel all Orders of the Client;
iii. charge a collections administration fee on the overdue amounts at the rate equal to 2% per annum above the corporate overdraft rate of the Commonwealth Bank of Australia; and
iv. take any such other steps as atn considers appropriate or necessary to recover the Fees.
e. Nothing in the Agreement entitles the Client to any credit or to make payments on account, unless it has been expressly authorised in writing by atn after the Client has completed a credit application form and received written approval from atn. Any authorised credit or payments on account will be subject to this Agreement and atn’s credit terms which may vary from time to time.
8. Cancellations
If the Client wishes to cancel an Order or the broadcast of Advertising on the atn Network (or any part), the Client must advise atn in writing at least twenty-eight (28) days prior to the originally scheduled time, in which case the Client will not be charged Fees in respect of the cancelled portion.
9. Makegoods
a. Subject to a Force Majeure Event, the Client’s sole remedy in respect of a failure of atn to broadcast Advertising as contemplated by this Agreement, is a Makegood.
b. atn is not required to deliver a Makegood where the failure arises due to a Force Majeure Event.
c. atn will use reasonable endeavours to deliver the Makegood on a like-for-like basis, subject to atn’s discretion.
d. The Client acknowledges and agrees that atn will not provide refunds or credits instead of a Makegood, unless authorised by the CEO of atn in writing.
10. Agencies
Where an Order is booked or placed by an Agency on behalf of an advertising client, the Agency represents and warrants that it has the power, authority and all necessary rights to enter into and grant the rights under the Agreement on behalf of and agent for its advertising client, and to bind its advertising client in accordance with this Agreement. The Agency and its advertising client for which an Order is booked or placed, will be jointly and severally liable under this Agreement, and atn shall have the right to enforce the terms of the Agreement against the Agency and/or its advertising client, however, such advertising client shall not have any rights to enforce the terms of the Agreement against atn.
11. Intellectual Property
a. The Client licenses atn to use the Advertising Material and/or Advertising to deliver the services contemplated under this Agreement.
b. The Client acknowledges and agrees that:
i. all rights, title, interest (including intellectual property rights) in and to any atn Materials, not specifically granted to the Client in writing, vest with and are the sole property of atn;
ii. it must not use any atn Materials for any purpose other than to exercise its rights or perform its obligations under the Agreement; and
iii. the Client may only use atn Materials with the prior written consent of atn.c. For the avoidance of doubt, the Client may not re-sell, sub-license or sub-contract any atn Materials.
d. Nothing in this Agreement gives the Client any rights to use the atn trademark, logo or other artwork.
12. Representations and Warranties
a. The Client represents, warrants and covenants to atn that:
i. it has the necessary right, power and authority to enter into, grant the rights in and perform its obligations under the Agreement, and where the Client is an Agency, to bind the advertising client;
ii. it holds the necessary rights in and to the Advertising Material and/or Advertising (including musical works) created by or for, or provided by the Client, and the broadcast of the Advertising on the atn Network will not infringe the copyright, trademark or other intellectual property right or moral right or other rights of any person;
iii. it has all third-party authorisations, licences, consents, approvals or permissions necessary or desirable for it to perform its obligations under the Agreement and for the Advertising Material and/or Advertising to be broadcast on the atn Network, without any further steps or payments to be made by atn; and
iv. the Advertising Material and/or Advertising:
A. does not contain any material that is obscene, offensive, racist, unlawful, discriminatory, defamatory, objectionable or otherwise unsuitable for broadcast; and
B. complies with all Applicable Laws and any written guidelines that atn provides the Client from time to time.
b. atn represents, warrants and covenants to the Client that:i. it has the necessary right, power and authority to enter into and perform its obligations under the Agreement; and
ii. it has all third-party authorisations, licences, consents, approvals or permissions necessary or desirable for it to perform its obligations under the Agreement.
13. Indemnity
To the extent permitted by law, the Client indemnifies atn, its related bodies corporate and its and their respective directors, officers, employees, consultants and agents from and against any and all Claims arising, whether directly or indirectly, from or in connection with a breach by the Client of its representations, warranties or obligations under the Agreement.
14. Liability of atn
a. Except as expressly provided in this Agreement, atn excludes, to the fullest extent permitted by law, all warranties, representations and conditions whether implied by law, trade, custom or otherwise. In the event atn is liable to a Client for a breach of implied warranty or condition that may not be excluded, atn’s liability will, to the extent permitted by law, be limited to any one or more of the following (at atn’s option):
i. the supplying of the Advertising services again; or
ii. the payment of the cost of having the Advertising services supplied again. b. In no circumstances will atn, its related bodies corporate and/or its and their respective directors, officers, employees, consultants or agents be liable, whether in tort, contract or otherwise for any indirect loss, loss of profits, consequential loss or special or exemplary damage suffered by the Client or any other person, even if such loss or damages are foreseeable and whether or not atn has been advised of the possibility thereof.
c. For the avoidance of doubt, atn owes no duty to the Client to review, or amend any Advertising or Advertising Material for compliance with this Agreement and no review or amendment by atn will affect the Client’s liability for the content of the Advertising or Advertising Material.
15. Force Majeure
If atn is unable, wholly or in part, to perform an obligation under the Agreement because of a Force Majeure Event, the relevant obligation is suspended to the extent that, and for as long as, it is affected by the Force Majeure Event and atn will not be liable for any loss or damage suffered by the Client as a result of such Force Majeure Event.
16. Notices
a. A notice or other communication relating to the Agreement must be in writing sent by pre-paid mail (air courier if overseas) or electronic means to the address or email address of the recipient party set out below, or to such other address or email address as that party may from time to time notify the other party for the purposes of the Agreement.
b. Such notice or other communication will be deemed duly given on the third Business Day it is sent by pre-paid mail (or fifth Business Day if by air courier) and on the next Business Day if sent by email provided no transmission error message is received.
c. The addresses of the parties are as follows:
atn The Australia Traffic Network Pty Limited Level 17 201 Miller Street North Sydney, NSW 2060 Email vic.lorusso@atnmedia.com.au Phone: 02 9955 3500 Person to Contact: Vic Lorusso
Copy to: General Counsel, GTN Limited Level 17 201 Miller Street North Sydney NSW 2060 Email: general.counsel@globaltrafficnet.com
Client As specified in the Order.
17. General
a. Nothing in this Agreement shall be taken as giving rise to a relationship of employment, agency, joint venture or partnership between the parties.
b. This Agreement contains the entire understanding between the parties concerning the subject matter of the Agreement and supersedes all prior agreements, understandings and communications on the subject matter.
c. Any waiver by either party of compliance with any provision of this Agreement by the other party shall not operate or be construed as a waiver of any other provision of this Agreement, or of any subsequent breach by such party of a provision of this Agreement.
d. atn may assign, novate or otherwise deal with any of its rights or obligations under the Agreement without any prior notice or consent of the Client.
e. The Client may not assign, novate or otherwise deal with any of its rights or obligations under the Agreement without the prior written consent of atn.
f. The Client may not exercise any rights of set-off or counterclaim in relation to any amount(s) payable by it under the Agreement.
g. If any term or provision of this Agreement is held by a court to be illegal, invalid or unenforceable under the applicable law, that term or provision will be severed from this Agreement and the remaining terms and conditions will be unaffected.
h. This Agreement is governed by, and construed in accordance with, the laws of New South Wales and the parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction in New South Wales.
18. Definitions and Interpretation
Definitions
A term (a) defined in the Corporations Act 2001 (Cth) but not in the Agreement has the meaning given to it in the Corporations Act 2001 (Cth); or (b) defined in the GST Law but not in the Agreement or the Corporations Act (Cth) has the meaning given to it in the GST Law. Unless otherwise defined in these Terms, the definitions below apply: Advertising means the spot or other sponsorship or activity on the atn Network which promotes the Client or its products or services. Advertising Material means all written, audio, digital or audio-visual material, and any other information or content, to be included in or used to create Advertising, as provided by the Client to atn under this Agreement. Agency means an advertising agency which represents advertising clients. Agreement means the Order together with these Terms. Approved Agency means an Agency accredited and approved by atn that always has a minimum of five (5) advertising clients, and no individual advertising client at any time provides more than 50% of the billings of the Agency for the prior twelve (12) months. Applicable Laws means all applicable laws, regulations and codes of conduct, including the Broadcasting Services Act 1992 (Cth), the Australian Consumer Law as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth), the Copyright Act 1968 (Cth), the Trade Marks Act 1995 (Cth), the Privacy Act 1988 (Cth), relevant defamation laws in all Australian jurisdictions and all industry codes of practice and/or standards that apply to the content of advertisements. atn Materials means all written, audio, digital or audio-visual material, and any other information or content, to be included in or used to create Advertising, as created, produced or written for the Client by atn or its employees, contractors, officers or agents. atn Network means the network of radio and television stations on which atn has the right to place Advertising. Business Day means any day that is not a Saturday, Sunday, or a public holiday in New South Wales, Australia. Claim means any and all proceedings, demands, losses, costs (including legal costs on a full indemnity basis), damages and other liabilities of any nature taken, made or awarded against or incurred by atn, its related bodies corporate and/or its and their respective directors, officers, employees, consultants and agents including, without limitation, as a result of third party claims. Client means the advertising client specified in the Order, and where an order is booked or placed by an Agency, includes that Agency. Fees mean the fees specified in the Order and payable by the Client to atn under this Agreement. Force Majeure Event means acts of God, fire, unavoidable accident, acts of war, (declared or undeclared) changes to laws, rules, regulations and orders of any Government or Government Agency, strikes, walkouts, lockouts and other disturbances, delays in transportation, floods, storms and other natural disturbances, the failure or destruction of any technical equipment, weather or flying conditions, and other matters beyond the control of, or not reasonably foreseeable to the party concerned. Government Agency means any department, agency, commission, authority, instrumentality, or other body established by or under the laws of the Commonwealth of Australia, or any State or Territory of Australia, whether governmental, semi-governmental, or local, that has a mandate to carry out functions or exercise powers in the public interest. This includes any entity, corporation, or body controlled or owned by any of the foregoing, and any government office, body, or representative acting in an official capacity. Makegood(s) means the placement of Advertising in a replacement spot at no additional charge where atn has failed to broadcast the Advertising on the atn Network. Order means the advertising booking order form or email or other written document containing confirmation of the agreed details regarding the placement of Advertising on the atn Network. Term means the term of this Agreement, as determined in accordance with clause 2 (if any), or as specified in the Order, unless terminated earlier in accordance with the terms of this Agreement. Interpretation Headings do not affect the interpretation of the Agreement. The following rules of interpretation also apply unless the contrary intention appears: (a) headings will be ignored in construing the Agreement; (b) the singular includes the plural and vice versa; (c) if a word or phrase is given a meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings; (d) references to statutes or rules include all statutes and rules amending, consolidating or replacing such statutes or rules; and (e) if the date on or by which an act must be done under the Agreement is not a Business Day, the act must be done by the next Business Day.
