Terms of Services

Internet Services Australia 1 Pty Ltd

By placing an order with Internet Services Australia 1 Pty Ltd (ABN 50 152 631 082) (“Supplier”), you acknowledge that you have read and understood these Terms, and any Booking Orders (“Agreement”) and agree to be bound by them and that you have the authority to act on behalf of any person or entity for whom you are using the Services (“Client”).

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1. Services

1.1.

To use the Services, the Client must submit a Booking Order to the Supplier for the Services and provide materials (if any) to the Supplier for use in the advertisement requested in the Booking Order (“Client’s Materials”).

1.2.

Each Booking Order is a separate offer from the Client to engage the Supplier to provide Services on the terms of this Agreement. The Supplier will send the Client a written confirmation of accepting the offer and agree to be bound by this Agreement.

1.3.

The Client warrants in relation to the Client’s Materials that:

(a)

The Client is the owner of any copyright or other intellectual property right in the material and/or the Client has all necessary licences to use any third-party copyright or other intellectual property included or reproduced or adapted in the material (including, without limitation, any moral right or performer's right, trade mark, trade indicia or slogan);

(b)

The material does not infringe any state or federal statute or regulation or compulsory or voluntary industry code of conduct, including, without limitation, the Competition and Consumer Act 2010, the Privacy Act, 1988, any act or regulation dealing with defamation, indecency, censorship, advertising standards or self-regulation;

(c)

The material shall not include any defamatory, libellous, indecent, pornographic, offensive, threatening, false or disparaging content;

(d)

The material shall not promote or encourage piracy, counterfeiting, plagiarism, unfair competition or idea misappropriation.

1.4.

The Client hereby indemnifies the Supplier and agree to keep it indemnified against any loss or damage (including legal costs on a client/own solicitor basis for any breach by you or your employees, officers or agents or Clause 1.3 hereof.

1.5.

The Supplier may, in its absolute discretion, refuse to publish any advertisement or to refuse to repeat any advertisement if any material contained in the advertisement may amount to a contravention of Clause 1.3hereof, is inconsistent with the Supplier’s editorial or advertising policy or for any other reason.

1.6.

The Client must provide the Client’s Materials at least two days prior to scheduled Live Date in the Booking Order in the format and to the quality advised by the Supplier from time to time. Failure to do so may result in the advertisement not being published or not published in accordance with the Booking Order or may affect the quality of the advertisement.

1.7.

The Client agrees that the Client is solely responsible for the quality and accuracy of Client’s Materials.

1.8.

Where the Supplier provides the Services of creating, or modifying materials for use in the advertisement requested in the Booking Order (“Supplier’s Materials”), the Client agrees that the Client is solely responsible for checking and the accuracy and/or quality of the Supplier’s Materials. If the Client fails to approve any such Supplier’s Materials within one day prior to scheduled Live Date in the Booking Order, the Client agrees that the Client is deemed to have approved such Supplier’s Materials and the Supplier will not be liable for any errors it may contain.

1.9.

Subject to any express written agreement to the contrary, the Client agrees the Supplier may change the position, or date of the advertisement or other copy where the Supplier considers it desirable for any editorial, layout or legal requirements. If this needs to be done, the Supplier will use its best efforts to place the Client’s advertisement in a suitable alternative position or date and, subject to time constraints, to notify the Client of the changes prior to publication.

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2. Charges and Payment

2.1.

The Clients agrees during the Term of this Agreement:

(a)

to pay the Supplier the Charges;

(b)

the Charges are exclusive of any taxes, that the Supplier can pass on to the Client the full amount of any taxes payable on the Charges and GST;

(c)

to pre-pay the Supplier’s invoices prior to publication unless the Supplier has agreed, in the Supplier’s absolute discretion, to provide the Client with credit;

(d).

to pay accounts on 7 days invoice for all of those Charges (including taxes) by the date specified on the invoice (“Due Date”).

(e)

to pay any legal costs the Supplier may incur in recovering payment that is overdue on a full indemnity basis.  

2.2.

If the Client disputes in good faith an amount in the invoice, the Client must notify the Supplier in writing within fourteen days setting out reasons for the dispute and the amount in dispute. Notwithstanding any dispute as to any amount of any charge, the Client must pay the undisputed amount of each invoice by the Due Date.

2.3.

If the Client does not pay the invoice by the Due Date, the Supplier may charge an administration fee of $15 per month or part thereof or 1.5% per month on the outstanding amount of the invoice and suspend all or part of the Services pending payment of outstanding amount. Nothing in this clause affects the Supplier’s rights to terminate this agreement under Clause 7.

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3. GST

3.1.

If any taxable supply made by a party under this deed is subject to GST, the party making the supply may, in addition to the consideration for the supply, recover an additional amount on account of GST.

3.2.

The additional amount payable under this clause:

(a)

is equal to the consideration payable to the Supplier for the relevant supply multiplied by the prevailing GST rate; and

(b)

is payable at the same time and in the same manner as the consideration for the supply to which the additional amount relates.

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4. Limit on Liability

4.1.

The Supplier does not exclude or limit the application of any provision of any statute (including the Competition and Consumer Act 2010) where to do so would contravene that statute or cause any part of this Clause 4 to be void.

4.2.

Except where Clause 4.1 applies, the Supplier excludes all statutory liability, tortious liability (including but not limited to liability in negligence), conditions and warranties implied by custom, the general law or statute, liability for all direct, economic, consequential or indirect losses, expenses, damages and costs incurred by the Client, arising out of or relating to the Services, any failure to supply change to or delay in supplying the Services or out of or relating to this Agreement. The Supplier is not responsible or liable for any indirect consequential or economic damages, including, without limitation, loss of income or profit or loss of actual potential business opportunities.

4.3.

The Supplier’s liability to the Client for any breach of this Agreement is limited, at the Supplier’s option, to refunding the Charges of the Services in respect of which the breach occurred, or to providing the Services again.

4.4.

The Supplier is not liable to the Client for any delay in or any failure to provide the Services which is caused by an event beyond the Supplier’s reasonable control.

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5. Confidential Information

5.1.

Each party owns its Confidential Information.

5.2.

During and after the Term, a party must not use or disclose the other party’s Confidential Information other than:

(a)

if required to perform the Agreement;

(b)

if the other party has consented in writing; or

(c)

if required by law.

5.3.

The parties must keep each other’s Confidential Information in a secure manner.

5.4.

On demand by one party and at the end of the Term, the other party must:

(a)

deliver to the demanding party all Confidential Information in its control; and then

(b)

delete all Confidential Information held electronically in any medium in its control,

except for copies of documents that is required to retain by law.

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6. Intellectual Property

6.1.

The Client grants the Supplier a non-exclusive licence to use the Client’s Materials during the Term for the purpose of performing this Agreement.

6.2.

The parties acknowledge and agree that:

(a)

The Client will retain all right, title and interest in and/or the sole right to use the Client’s Materials;

(b)

The Supplier will retain all right, title and interest in and/or the sole right to use the Supplier’s Materials; and

(c)

No right, title or interest of any kind, whether by way of ownership or the right to use, other than expressly provided in this clause, is transferred from one party to another.

6.3.

The provisions of this Clause 6 shall survive any termination of this agreement.

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7. Termination

7.1.

A party (“Non-defaulting Party”) may terminate this Agreement at any time, by written notice to the other party (“Defaulting Party”), if

(a)

The Defaulting Party becomes insolvent; or

(b)

The Defaulting Party commits a material breach of this Agreement and fails to rectify that breach within 14 days of notice to do so.

7.2.

When this Agreement expires, or is terminated,

(a)

the Client must pay the Supplier any unpaid Charges for Services provided; and

(b)

the parties will return each other’s Confidential Information.

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8. Dispute Resolution

8.1.

Where a dispute arises between the parties in relation to the provisions of this Agreement (‘the Dispute’) then a party (‘the Complainant’) may, but is not obliged to, initiate the dispute resolution procedure contained in this clause.

8.2.

The Complainant will set out by way of written notice to the other parties in dispute the nature of the Dispute. The parties will then make every effort to resolve the Dispute by negotiation.   

8.3.

If the Dispute cannot be resolved within fourteen (14) days of one party giving notice of the Dispute to the other party, the parties shall refer the matter to Resolution Institution (ABN 69 008 651 232) for mediation. The mediation will be conducted in Sydney and in accordance with the then current Mediation Rules implemented by the Resolution Institution.

8.4.

Nothing in this clause is to be taken as preventing any party to a Dispute from seeking urgent interlocutory relief in respect of such Dispute.

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9. General

9.1.

Relationship

The Supplier is a supplier independent of the control of the Client. The parties are not principal and agent, partners, trustee and beneficiary, or employer and employee. Neither party may:

(a)

hold out their agents, suppliers or employees as the agents, suppliers or employees of the other party;

(b)

pledge the credit of the other party;

(c)

contract on behalf of the other party.

9.2.

Assignment

A party may only assign their rights or obligations, in whole or part, under this Agreement with the written consent of the other party. This Agreement shall inure to the benefit of the respective successor and permitted assigns of either party.  

9.3.

Amendment

This Agreement may only be amended in writing signed by the parties.

9.4.

No waiver

A party may only waive a breach of this Agreement in writing signed by that party or its authorised representative. A waiver is limited to the instance referred to in the writing (or if no instance is referred to in the writing, to past breaches).

9.5.

Costs

Each party must pay their own costs of preparing this Agreement and any document required by this Agreement.

9.6.

Notice

(a)

Any notices to be given under this Agreement must be in writing and signed for and on behalf of the party giving such notice

(b)

A notice under this Agreement is only effective if it is given as follows

(I)

by hand; or

(II)

by prepaid mail; or

(III)

by email.

(IV)

to the address of the parties specified on Part A Contract Details and Special Conditions of this Agreement or otherwise specified in writing in accordance with this clause.

(c)

A notice sent for the purposes of this clause will be considered received:

(I)

if delivered by hand, before 5.00 pm, on that Business Day;

(II)

if sent by pre-paid mail, on the third Business Day after posting; or

(III)

if emailed, on the date and time recorded on the device from which the party sent the email, unless the sending party receives an automated message that the email has not been delivered,

except that a delivery by hand, mail or email received after 5:00pm (local time of the receiving party) will be deemed to be given on the next Business Day.

9.7.

Severability

If any provision of this Agreement is for any reason found by a court of competent jurisdiction to be unenforceable (such as a mistaken intent on the part of both parties, or illegal), the remainder of this Agreement shall continue in full force and effect.

9.8.

Entire agreement

This Agreement constitutes the entire agreement of the parties as to its subject matter and supersedes and cancels all prior agreements, understandings and negotiations in connection with it.

9.9.

Governing law

This Agreement is governed and construed by the laws of New South Wales. The parties irrevocably submit to the exclusive jurisdiction of the courts of New South Wales.

9.10.

Counterparts

This Agreement may be executed in any number of counterparts.  A counterpart may be an email.  Together all counterparts make up one agreement.

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10. Dictionary

10.1.

Definitions

In this agreement:

Booking Order means the advertising booking request placed by the Client with the Supplier;

Business Day means a day that is not a Saturday, Sunday or a public holiday in Sydney, Australia;

Charges mean the payment for the Services as specified in the Booking Order;

Confidential Information means any information obtained by a party, its employees, agents or sub-Suppliers in performing the Services during the Term, including:

(a)

this Agreement;

(b)

trade secrets;

(c)

technical information and technical drawings;

(d)

product and market information; and

(e)

any information marked "confidential" or which might reasonably be understood to have been disclosed to the Supplier in confidence,

but excluding:

(f)

information now or subsequently in the public domain (other than through a breach of this Agreement or breach of confidence by any other person);

(g)

information which the Supplier, its employees, agents or sub-Suppliers can prove they lawfully possessed before obtaining it during the Term;

Live Date means the date the Supplier will publish the advertisement for the Client that is specified in the Booking Order and subject to change as advised by the Supplier from time to time; and

Services mean the advertising services specified in the Booking Order.

10.2.

Interpretation

In this agreement, unless the context otherwise requires:

(a)

reference to legislation includes any amendment to it, any legislation substituted for it, and any statutory instruments issued under it and in force;

(b)

reference to a person includes a corporation, a firm and any other entity;

(c)

reference to a party includes that party's personal representatives, successors and permitted assigns;

(d)

if a party comprises more than one person, each of those persons is jointly and severally liable under this agreement;

(e)

headings do not affect interpretation;

(f)

a provision must not be construed against a party only because that party put the provision forward;

(g)

a provision must be read down to the extent necessary to be valid; if it cannot be read down to that extent, it must be severed.