All capitalised terms not otherwise defined have the same meaning as in the General Terms & Conditions.
In the event of any conflict or inconsistency between these Advertiser Terms & Conditions and the General Terms & Conditions, these Advertiser Terms & Conditions shall take precedence to the extent of any such conflict or inconsistency.
In these Terms & Conditions ("Conditions") the words/expressions referred to below shall have the following meanings except where the context otherwise requires:
(a) "Advertisement" means an advertisement or series of advertisements for the Client and/or its products and services including (but not limited to) employee profiles, user and third party content, articles and features, advertisements in any Publication, advertisements on any Website, Banner Advertisements, and Exhibition Advertisements.
(b) "Promotion Agreement" means any contract between Prosple and the Client for advertising which is formed in accordance with clause 2.
(c) "Banner Advertisement" means a banner advertisement on any Website, including but not limited to sponsoring advertisements.
(d) "Client" means the person, firm, body corporate or other entity stated in any Order Confirmation accepted by Prosple pursuant to clause 2.2.
(e) "Event" means an event organised and conducted by Prosple for the Client to enable the Client to meet potential employees or work experience candidates or any other purpose.
(f) "Event Sponsorship" means sponsorship by the Client of an Event organised by Prosple (for example without limitation Prosple Student Challenge/ Prosple National Graduate Recruitment Awards) such sponsorship being for the purpose of promoting the Client and/or its products and services.
(g) "Exhibition" means an exhibition organised by Prosple.
(h) "Exhibition Advertisement" means an advertisement for the Client and/or its products and services which is displayed at an Exhibition or Event.
(i) "Exhibition Space" or "Event Space" means floor area taken (and any additional Promotion Services agreed between Prosple and the Client) at an Exhibition or Event.
(j) “Intellectual Property” has the same meaning as in the General Terms & Conditions.
(k) "Order Confirmation" means the completed order form sent by the Client to Prosple specifying inter alia the price and details of Advertisements, Banner Advertisements, Exhibition Space, Event Space, Exhibition Advertisement, Event, Event Sponsorship, Workplace Survey or Package requested.
(l) "Package" means any combination of Advertisements, Banner Advertisements, Exhibition Space, Event Space, Exhibition Advertisement, Events and/or Event Sponsorship and/or Workplace Survey purchased by the Client on any one occasion.
(m) "Publication" means in the case of printed Advertisements the publication published by Prosple in which the Advertisement shall appear.
(n) "Promotion Services" means any one or more of Advertisements, Banner Advertisements, Exhibition Space, Event Space, Exhibition Advertisement, Event Sponsorship, Events and Workplace Surveys, whether or not purchased in a Package, published or conducted by Prosple from time to time.
(o) "Website" means in the case of website Advertisements and Banner Advertisements, the Prosple website on which the Advertisement is to appear.
(p) "Working Day" means a day which is not a weekend or public holiday in Sydney, New South Wales.
(q) “Workplace Survey” means any survey, interview or other material collected from the Client’s employees or graduates placed with the Client with the assistance of Prosple.
2.1. The Promotion Agreement shall be formed when the Client's Order Confirmation or the Client’s Advertisement copy is received and then either acted upon by virtue of performance of all or any part of the Promotion Services by Prosple, or accepted in writing or by electronic means such as email by Prosple’s authorised representative.
2.2. The Promotion Agreement incorporates:
(a) the General Terms & Conditions;
(b) these Advertiser terms & Conditions; and
2.3. In the event that a person submits an Order Confirmation as agent on behalf of its principal, then the agent must specify the principal's name as well as its own on the Order Confirmation failing which Prosple will reject the same.
2.4. The acceptance by Prosple of the Client's Order Confirmation does not confer the right to renew on similar terms.
3.1. The Client warrants that:
(a) any description relating to itself and its products or services in the Advertisement is true and accurate and is not likely to mislead or deceive;
(b) the Advertisement does not contravene any law or regulation and is not defamatory;
(c) it will at all times comply with all relevant advertising standards guidelines and regulations including those issued by the Advertising Standards Bureau;
(d) it will supply a copy for Advertisements prior to copy deadlines, as notified or published by Prosple;
(e) where applicable, it will attend and participate in Events where it is agreed that it will do so as part of the delivery of the Promotion Services;
(f) it has all the necessary consents, approvals and authority to licence to Prosple all Intellectual Property it, or its agents or contractors provide to Prosple for the purpose of Prosple carrying on its business;
(g) information and Intellectual Property the Client provides to Prosple does not violate or constitute the infringement of any patent, copyright, trademark, trade secret, right of privacy, right of publicity, moral rights, or other Intellectual Property right recognized by any applicable jurisdiction of any person or entity, or otherwise constitutes a breach of any agreement with any other person or entity;
(h) information the Client provides to Prosple is true, and accurate and is not misleading or deceptive in any way or particular; and
(i) where the Client is acting as agent, that it will procure compliance of clauses 3.1(a) to3.1(h) by its principal for whom Promotion Services are being procured.
3.2. If the Client breaches clause 3.1 it shall immediately rectify the breach and fully indemnify Prosple against any fines, losses, costs, damages, charges, claims, demands, expenses direct losses, loss of profits and indirect and consequential losses incurred by Prosple as a result of the Client's breach.
3.3. The Client shall be responsible for insuring all films, artwork, photographic and other advertising materials delivered to Prosple and Prosple shall not be liable to any loss or damage thereto while the same is in its possession or control.
3.4. The Client shall be responsible for collecting any films, artwork, photographic and other materials submitted to Prosple for the purposes of the Advertisement. Prosple shall accept no responsibility for any such items which are not collected by the Client.
3.5. The Client grants Prosple an irrevocable, non-exclusive, royalty-free, perpetual, and worldwide license to use content and Intellectual Property the Client provides Prosple, including, without limitation:
(a) the rights to copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, modify, alter, translate and reformat the Client’s content, and/or to incorporate it into a collective work; and
(b) the right to sublicense any or all of Prosple’s license rights to others.
3.6. For the avoidance of doubt, this means Prosple has the right to use any and all Intellectual Property and other material the Client submits (including articles, features, photographs, and audio-visual materials, ideas about Prosple products, services, publications or advertising campaigns) in any manner Prosple determines, without notice.
3.7. The Client irrevocably, voluntarily and unconditionally consents to all or any acts or omissions by Prosple, or persons authorised by Prosple, concerning any and all of the moral rights made or to be made by the Client in relation to content the Client provides Prosple which would otherwise infringe the Client’s moral rights.
4.1. All Advertisements must be submitted by the Client for the approval of Prosple prior to publication. Prosple reserves the right to refuse, omit, alter, suspend, withdraw or otherwise deal with any Advertisement at its absolute discretion and without explanation or liability to the Client. The Client acknowledges that Prosple’s approval does not include any approvals relating to the Advertisements not infringing Intellectual Property rights of any person.
4.2. Banner Advertisements run on a calendar monthly basis. All visuals and copy for Banner Advertisements must be supplied to Prosple at least 10 Working Days prior to the first day of the calendar month in which the Banner Advertisement is to first appear.
4.3. Visuals and copy shall be supplied in accordance with Prosple’s publication deadlines as published/advised on a periodic basis or, in the case of Banner Advertisements, in accordance with clause 4.2. If the Client fails to comply with this clause 4.3:
(a) Prosple shall not be under an obligation to supply proofs to the Client and reserves the right to use the copy last supplied by the Client; and
(b) Prosple shall be entitled to payment of its fee in accordance with clause 6, even if no visuals or copy have been supplied.
4.4. If the Client fails to approve and return any proof submitted by Prosple, Prosple reserves the right to print the Advertisement as prepared.
4.5. Prosple cannot accept responsibility for changes to approved copy although it will use its reasonable endeavours to make these if they are submitted prior to the final copy deadline as published/advised from time to time, provided always where changes are made pursuant to this clause 4.5 the Client shall be responsible for any additional costs thereby incurred by Prosple.
5.1. Prosple shall use its best endeavours to ensure the appearance of contracted for Advertisements but does not accept liability for the non-appearance of any Advertisement. In the case of Advertisements for Publications, it is hereby agreed that Prosple’s best endeavours shall not extend to reprinting any Publication, but the Client will be offered the next available and/or relevant alternative.
5.2. Unless the parties have agreed to the position of the Advertisement in the Publication or on the Website (in which case this shall be agreed in writing by the parties) Prosple does not guarantee the position of any Advertisement in the Publication or on the Website. Where the Client has expressed a preference only as to the position of its Advertisement in the Publication or on the Website Prosple shall use its reasonable endeavours to comply with the Client's preference but shall have no liability to if the Advertisement is not published in the preferred position.
5.3. Prosple shall use its reasonable endeavours to procure attendance at Events, and shall use its best endeavours to act reasonably to all sponsors in the case of Events sponsored by a number of clients (always taking into account any difference in the level of sponsorship purchased by sponsors). Prosple will advise clients of its experience of the usual acceptance/subsequent attendance ratios, but Prosple shall not be liable for actual attendance levels being lower than those anticipated.
5.4. The Client also acknowledges that the Website and associated services Prosple provides may be liable to disruption, disconnection or other like event, being beyond the control of Prosple and that the Client must still pay for the services Prosple provides notwithstanding that such services may not have been active for the whole time they were intended to be provided.
6.1. Where the Promotion Services include Workplace Surveys & Interviews (including graduate satisfaction surveys and graduate interviews and profiles) the provisions of this clause 6 shall additionally apply.
6.2. The Client must make best efforts to invite those of its employees who have graduated in the last three years to take part in a Workplace Survey carried out by Prosple. The Workplace Survey may be completed on an anonymous basis but respondents are given the opportunity to have a copy of the synopsis/review prepared by Prosple as part of the Workplace Survey (“Report”) sent to them, in which case each individual respondent requesting a copy will need to provide his/her name and email address to Prosple for such purpose.
6.4. The Client agrees that if it collects the completed Workplace Survey from respondents on behalf of Prosple, it shall forward them all to Prosple and shall not use them for any purpose, in particular but without limitation the Client agrees not to supply the completed Workplace Survey or Report to any third party.
6.5. The Client agrees that Prosple shall own all copyright and other Intellectual Property rights in the Workplace Survey, the responses contained in the Workplace Survey and the Report and the Client shall take all steps reasonably required by Prosple to give effect to this clause 6.5. The Client acknowledges that it has no licence, implied or otherwise, to use the Intellectual Property rights comprised in and/or from the Workplace Survey or Report, other than to the extent necessary to pass such information on to Prosple. In particular but without limiting the foregoing, the Client has no right to copy or transfer any Workplace Survey, responses contained in the Workplace Survey or Report to any third party without the prior written consent of Prosple.
6.6. Prosple shall use reasonable care and skill when conducting the Workplace Survey and preparing the Report. Prosple shall provide the Client with a draft of the Report prior to publication and shall take reasonable account of any request by the Client for changes to be made to the Report, provided always that Prosple shall have ultimate editorial control over the Report. If the Client objects to the Report it may request that Prosple does not publish it but in such event the Client shall not be entitled to any refund of the fees due or already paid to Prosple.
6.7. Unless otherwise agreed, the Client must not copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, modify, alter, translate and reformat the Client's content, and/or to incorporate it into a collective work, and must not sublicense any or all of Prosple's rights to others.
7.1. The fee payable by the Client to Prosple shall be in accordance with Prosple’s published rates or as otherwise agreed in writing by the parties.
7.2. All fees are exclusive of Goods and Service Tax, but any fees for which Goods and Services Tax is payable shall be recoverable from the Client in addition to the fees.
7.3. Prosple shall be entitled to invoice the Client immediately following Prosple’s acceptance of the Client's Order Confirmation or the Client’s Advertisement Copy as the case may be
7.4. The Client shall pay Prosple within 30 days of the date of Prosple’s invoice. The fees shall be payable in full and the Client shall not be entitled to make any deduction or exercise any right or set-off counterclaim or contribution howsoever arising. The time of payment of the fees shall be of the essence of the Promotion Agreement.
7.5. Prosple reserves the right to request and receive full payment prior to acceptance of an Order Confirmation if, in the opinion of Prosple, the credit-worthiness of the Client is not satisfactory or the Client has not paid previous invoices within Prosple’s usual payment terms. Furthermore, if at any time in the opinion of Prosple the credit-worthiness of the Client shall have deteriorated prior to performance by Prosple of any Promotion Services Prosple may require full or partial payment of the fees prior to such supply, or the provision of security for payment for the Client in a form acceptable to Prosple.
7.6. If the Client fails to make any payment on the due date then without prejudice to any other right or remedy available to Prosple, Prosple shall (at its option) be entitled to:
(a) treat the Promotion Agreement as repudiated by the Client and cancel publication of any Advertisement or cease the Promotion Services (as the case may be), claim damages from the Client and charge the Client interest both before as well as after any judgment on the amount unpaid at the rate of 4% per annum above the base rate from time to time of the Commonwealth Bank of Australia from the date payment is due until payment is made; or
(b) affirm the Promotion Agreement, claim damages from the Client and charge the Client interest in accordance with clause 7.6(a).
7.7. Where the Client pays a subscription for an agreed number of Banner Advertisements or advertisements on any Website during an agreed period of time ("Subscription Period") and the Client fails to take up the agreed number during the Subscription Period:
(a) the Client shall not be entitled to a refund of the fees in respect of the Advertisements which has failed to take up during the Subscription Period; and
(b) the Client shall not be entitled to carry forward Advertisements which has failed to take up during one Subscription Period into a subsequent Subscription Period.
7.8. In addition to other rights Prosple has, the Client indemnifies and must keep indemnified Prosple for any costs of enforcement or recovery relating to the payment of fees the Client owes Prosple (including legal fees).
The Client may not cancel an Order Confirmation which has been accepted by Prosple.
9.1. The content and terms of this Promotion Agreement shall be confidential as between the parties and there shall be no breach of that confidence by either party.
9.2. Save as provided in clause 9.1, each party agrees and undertakes that it will keep confidential and will not use for its own purposes nor without the prior written consent of the other party disclose to any third party all information of a confidential nature, (including but not limited to trade secrets and information of commercial value) which may become known to such party from the other unless such information is public knowledge (other than by breach of this clause 9) or is required to be disclosed by a court of competent jurisdiction. Breach of this clause 9.2 shall not be subject to the terms of clause 10 (Limitation of Liability).
9.3. The obligations in this clause 9continue:
(a) for matters in the nature of a trade secret, for an unlimited period of time; and
(b) for all other matters comprised in the confidential information, the latest date to which it would be reasonable to protect the interests of the party which owns the information, but in any event not less than 24 months after this Promotion Agreement terminates or otherwise expires (whichever is the later).
10.1. Except for liability in relation to breach of any implied condition, warranty or guarantee, including under the Competition and Consumer Act 2010 (Cth), the exclusion of which from a contract would contravene any statute or cause any part of this Agreement to be void, or as otherwise provided in this Promotion Agreement, all conditions, warranties and representations expressed or implied by statute, common law or otherwise in relation to Prosple’s obligations hereunder are hereby excluded.
10.2. Without prejudice to any other terms in this Promotion Agreement the aggregate liability of Prosple shall not in any circumstances (except in respect of death or personal injury caused by Prosple’s negligence) exceed the total sum payable by the Client to Prosple under this Promotion Agreement. Where Prosple fails to provide a service, its total liability to the Client shall be limited to a refund of the fees paid or payable by the Client for the service or the cost of resupply of that service (the choice of which is at Prosple’s discretion). Where the service not so performed has been ordered as part of a Package, Prosple shall reasonably determine the proportion of the total payment relating to the unpublished/unperformed service its total liability to the Client in respect of the unpublished/unperformed service shall be limited to such proportion.
10.3. Prosple shall not be liable to the Client for any indirect or consequential losses or damages (including but not limited to loss of profits) whether arising from breach of contract negligence or howsoever.
10.4. Nothing in these terms shall limit or exclude our liability for any other liability that cannot be excluded or limited by Australian law. Where such liability cannot be excluded, the Client’s remedy is limited, in the case of goods, to the resupply or cost of resupply of such goods, and in the case of services, to the resupply of such services or cost of such resupply and in all cases (goods and services) at the election of Prosple.
10.5. The Client agrees to indemnify and hold Prosple and its employees and agents harmless from and against any claims, actions or demands including without limitation, the Client’s breach of any one or more warranties or terms of this Promotion Agreement.
11.1. Notwithstanding and without prejudice to clause 7 above Prosple shall be entitled to terminate this Promotion Agreement immediately by giving written notice to the Client if the Client fails to make payment in accordance with this Promotion Agreement.
11.2. Either party is entitled to terminate this Promotion Agreement immediately in any of the following events:
(a) if the other party convenes a meeting of its creditors, becomes insolvent, is unable to pay its debts, has an administrative receiver or receiver or administrator appointed over its assets or business or is the subject of a petition presented to put it in into liquidation; or
(b) if the other party is in in breach of any material term of this Promotion Agreement, such material term being incapable of remedy or incapable of remedy within 7 days.
11.3. In any such case the party exercising the right of termination shall be entitled to charge the other party any costs, charges or expenses (direct or consequential) howsoever arising incurred by the terminating party.
11.4. Termination of this Promotion Agreement howsoever, shall not affect the accrued rights or the liabilities of either party.
12.1. The Client shall not be entitled to assign or otherwise transfer the benefit of its obligations under this Promotion Agreement without the prior written consent of Prosple.
12.2. Prosple may assign or otherwise transfer the benefit of its obligations under this Promotion Agreement by giving notice to the Client.
13.1. If either party is unable to perform its obligations by reason of matters beyond its control including but not limited to any act of terrorism, war, riot, civil commotion, compliance with any law or governmental order, fire, flood or storm, strikes, lock-outs or other industrial disputes (whether involving the workforce of the party so prevented or of any other party) delay in transit, power failure, postal delay, the party so affected will notify the other party and the parties agree to delay the performance of this Promotion Agreement for as long as may be reasonably necessary until the cause(s) giving rise to force majeure has/have ceased.
14.1. Before court or arbitration proceedings other than for urgent interlocutory relief may be commenced, the following steps must be taken to attempt to resolve any dispute that arises out of or in connection with this contract (including any dispute as to the validity, breach or termination of the contract, or as to any claim in tort, in equity or pursuant to any statute).
14.2. Notice (the notice of dispute) must be given in writing by the party claiming that a dispute has arisen to the other party (or parties) to this contract specifying the nature of the dispute.
14.3. Upon receipt of the notice of dispute, the parties must attempt to agree upon an appropriate procedure for resolving the dispute.
14.4. If within 10 business days of receipt of the notice of dispute the dispute is not resolved or an appropriate alternative dispute resolution process is not agreed, then the parties shall refer the dispute to Resolution Institute, (ACN 008 651 232; Level 2, 13-15 Bridge Street, Sydney NSW 2000; email: [email protected]; telephone: (61-2) 9251 3366, for facilitation of a mediation in accordance with Resolution Institute's Mediation Rules.
14.5. The parties must co-operate with Resolution Institute as facilitator.
14.6. If within 10 business days after referral of the dispute to Resolution Institute the parties have not agreed upon the mediator or other relevant particular the mediator and any other relevant particular will be determined in accordance with Resolution Institute’s Facilitation Rules.
14.7. This clause will remain operative after the contract has been performed and notwithstanding its termination.
15.1. Any representations made by Prosple prior to the making of the Promotion Agreement shall not form part of the Promotion Agreement and shall be of no effect. The Promotion Agreement supersedes all prior agreements, arrangements and undertakings between Prosple and the Client relating to the subject matter hereof. No variation or addition shall be binding upon the parties unless made in writing and signed by the authorised representatives of both parties.
15.2. If any provision or part of a provision of this Promotion Agreement shall be or be found by any court of competent jurisdiction to be invalid or unenforceable such invalidity or unenforceability shall not affect the other provisions or parts of such provisions of this Promotion Agreement all of which shall remain in full force and effect.
15.3. Any notice hereunder shall be deemed to have been duly given if sent by prepaid first class registered post or by electronic mail to the party concerned at its registered office or principal place of business or such other address as may have been notified pursuant to this provision to the party giving the notice. Notices sent by first class registered post shall be deemed to have been given 7 days after despatch and notices sent by electronic mail shall be deemed to have been given on the date of despatch, unless the sender receives an automated notice of non-delivery or receipt.
15.4. Address for Notices:
(a) For Prosple notices should be sent to The Finance Director, Prosple Pty Ltd, PO BOX 256, Blackheath, NSW, 2785, Australia, or via electronic mail to: [email protected]
(b) For the Client the address to which notices should be sent shall be that on the Order Confirmation unless otherwise advised in writing by the Client.
(c) Calls made to Prosple by the Client may occasionally be recorded for training purposes. The Client consents to such recording.
15.5. If Prosple fails to insist that the Client perform any of its obligations under this Promotion Agreement, or if Prosple does not enforce its rights against the Client, or if Prosple delays in doing so, that will not mean that Prosple has waived its rights against the Client and will not mean that the Client does not have to comply with those obligations. If Prosple does waive a default by the Client, Prosple will only do so in writing, and that will not mean that Prosple will automatically waive any later default by the Client.
15.6. No agency, partnership, joint venture, employee-employer or other similar relationship is created by this Agreement. In particular, the Client has no authority to bind Prosple, its related entities or affiliates in any way whatsoever.
15.7. This Promotion Agreement, its subject matter and formation, is governed by the law of New South Wales, Australia. The Client and Prosple both agree that the Courts of that State will have exclusive jurisdiction.
15.8. Each provision of this Promotion Agreement operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
16.1. Provisions in this Promotion Agreement must not be construed against Prosple because Prosple was responsible for or put forward that provision or because that provision benefits Prosple.
16.2. In this Promotion Agreement unless the context indicates a contrary intention:
(a) headings are for convenience and do not affect interpretation;
(b) the plural shall include the singular and vice versa;
(c) a reference to any gender shall be taken to include every other gender;
(d) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(e) a reference to this Promotion Agreement includes a reference to any amendment, novation, variation, supplemental deed or replacement from time to time in existence;
(f) a reference to an agreement or document (including these terms) is to the agreement or document as amended, varied, supplemented, novated or replaced, except to the extent prohibited by these terms or that other agreement or document;
(g) a reference to writing includes any method of representing or reproducing words, figures, drawings, or symbols in a visible form;
(h) reference to any statute, or any subordinate legislation or instrument includes all statutes, subordinate legislation or instruments amending, modifying, consolidating, re-writing, re-enacting or replacing them and a reference to a statute includes all subordinate legislation and instruments made under that statute.
(i) a reference to conduct includes, an omission, statement or undertaking, whether or not in writing;
(j) a reference to an agreement includes any undertaking, deed, agreement and legally enforceable arrangement, whether or not in writing;
(k) a reference to a document includes an agreement (as so defined) in writing and any certificate, notice, instrument and document of any kind;
(l) a reference to dollars and $ is to Australian currency;
(m) the meaning of general words is not limited by specific examples introduced by including, or for example, or similar expressions; and
(n) references to agree, approve or consent are references to agreement, approval or consent (as the case may be) in writing.