CafeScreen Pty Ltd
These terms and conditions ("Standard Terms") are deemed incorporated by reference into any advertising schedule (the “Advertising Schedule”) submitted by the Advertiser/Sponsor or its agency noted in the Advertising Schedule (collectively, the “Client”) and shall govern the relationship between the Parties. The Advertising Schedule and the Standard Advertising Terms & Conditions shall be collectively known as the “Sales Contract”.
All Sales Contracts are subject to acceptance by CafeScreen. Rates and the Standard Terms are subject to change without notice. CafeScreen reserves the right to refuse or cancel any Sales Contract, without cause, at any time. Advertiser and its agency (if applicable) shall be jointly and severally responsible under this Sales Contract.
1. Term of Sales Contract
The term of this Sales Contract commences on the Start Date and terminates on the End Date noted in the Advertising Schedule.
2. Terms of Payment
2.1 The Sales Contract must be paid 30 days from CafeScreen’s invoice date save and except where the Client elects payment in accordance with clause 2.5
2.2 By agreeing to and or submitting a Sales Contract to CafeScreen, the Client agrees to be liable for all relevant fees and costs of such order.
2.3 Unless otherwise indicated in the relevant order and agreed by CafeScreen in writing, the Sales Contract commences on the later of the two signature dates on the Sales Contract and will continue for the term set out in the Advertising Schedule. The Client will be billed or electronically debited monthly in accordance with the Advertising Schedule.
2.4 All advertising fees not paid in accordance with this Sales Contract will accrue interest at the rate of 2% over the base rate quoted by Westpac Banking Corporation in Sydney on the date the payment becomes due. In addition to all other available rights and remedies, CafeScreen may cancel and remove any advertisement or integration content which is not paid for on a timely basis. Reinstatement after cancellation may require (at CafeScreen’s discretion) a new Sales Contract including all applicable fees.
3. Positioning
Except as otherwise expressly provided in the Sales Contract, positioning of advertisements within the CafeScreen information system will be as outlined in the Advertising Schedule.
4. Renewal
Except as expressly set forth in the Sales Contract, any renewal of CafeScreen advertising and acceptance of any additional advertising shall be at CafeScreen’s sole discretion. Pricing for any renewal period is subject to change by CafeScreen from time to time.
5. No Resale of Ad Space
The Client may not resell, assign, or transfer any of its rights hereunder. Any attempt by the Client to resell, assign or transfer such rights shall result in immediate and automatic termination of this Sales Contract, without liability to CafeScreen.
6. Provision of Advertising Materials
6.1 The Client will provide all materials for the advertisement, in accordance with CafeScreen’s “Advertisement Specification” guidelines.
6.2 All creative must be received by CafeScreen 5 working days prior to the start date for commencement of a campaign. .
6.3 All changes to advertisement must be made in writing to CafeScreen and prior to publication.
6.3 The Client grants to CafeScreen a nonexclusive, worldwide, fully paid license to use, perform, reproduce, display, transmit, and distribute the advertisement and all contents in accordance with the Sales Contract.
6.4 Where the Client uses third parties ("Third Parties") to serve the advertisement, the Client shall be responsible for such Third Parties complying with the terms of this Sales Contract.
7. Right to Reject Advertisement
All contents for advertisement provided by the Client (including those served by Third Parties) are subject to CafeScreen’s approval. CafeScreen reserves the right to reject or cancel any advertisement, Sales Contract, space reservation or position commitment, at any time for any reason whatsoever including but not limited to the belief by CafeScreen that any placement of the content may subject CafeScreen to criminal and civil liability, as well as the breaching of guidelines as set by the Advertising Federation of Australia from time to time.
8. Rate Changes
8.1 All of CafeScreen’s advertising rates are subject to change at CafeScreen’s sole discretion and. CafeScreen will use its commercially reasonable efforts to announce all advertising rate changes at least thirty (30) days in advance of their effective date.
8.2 In the event CafeScreen:-
8.2.1 makes a rate change in respect of a period (or any portion thereof) for which the Client has placed an order for advertising with CafeScreen; and
8.2.2 upon subsequent notice to CafeScreen by the Client that the Client wishes to cancel its order (or relevant portion) due to such rate change,
CafeScreen will have the option of either:-
8.2.3 allowing the Client to cancel that portion of its order affected by the rate change in which case the order will be cancelled within thirty (30) days of receipt by CafeScreen of the relevant notice from the Client, or
8.2.4 acknowledging that the lower rate will apply for the remainder of the then current term of the Sales Contract after which time, if the Sales Contract is extended or renewed, all rates will be adjusted in accordance with CafeScreen's then current advertising rates and amended thereafter as notified by CafeScreen from time to time.
9. Agency Commission:
9.1 Digital Signage & WiFi.
If accepted by CafeScreen and registered as an Approved Agency, The Client will be eligible to receive a commission up to a maximum of ten percent (10%) of the value of the relevant advertising broadcast ON THE CONDITION THAT at all times payment for advertising is made on or before forty-five (45) days after the end of the relevant month in which the advertising was broadcast with time being of the essence in respect of punctual payment.
9.2 Experiential Activity.
If accepted by CafeScreen and registered as an Approved Agency, The Client will be eligible to receive a commission up to a maximum of five percent (%) of the value of the relevant advertising ON THE CONDITION THAT at all times payment for advertising is made on or before forty-five (45) days after the end of the relevant month in which the advertising was broadcast with time being of the essence in respect of punctual payment.
10. GST
The Client will pay all taxes, duties and other government charges payable or assessed in connection with this Sales Contract whether applying as at the date of this Sales Contract or in the future including without limitation goods and services tax, other value added tax, sales or use taxes, stamp duty and turnover tax, but excluding taxes, duties and government charges assessed on the income of CafeScreen or its related parties.
11. No Warranty
CafeScreen makes no warranty, express or implied, with respect to any matter, including without limitation advertising and other services, and expressly disclaims the warranties or conditions of non-infringement, merchantability, and fitness for any particular purpose.
12. Australian Consumer Warranties
If this Sales Contract constitutes a supply of goods or services to a consumer as defined in the Trade Practices Act 1974 or relevant legislation in force in Australian States or Territories ("the Acts") nothing contained in this Sales Contract excludes, restricts or modifies any condition, warranty, right or remedy pursuant to which the Acts are applicable or is conferred on the Client where to do so is unlawful, in which event CafeScreen’s liability (or the liability of any of its affiliates) for any breach of this Sales Contract, including any liability for consequential loss which the Client may suffer or incur will be limited as CafeScreen may elect in its sole discretion, in the case of services supplied or offered by CafeScreen, to either:-
12.1 the supplying of the services again; or
12.2 the payment of the cost of having the services supplied again or,
12.3 in the case of goods supplied or offered by CafeScreen:-
12.3.1 the replacement of the goods or the supply of equivalent goods,
12.3.2 the repair of such goods,
12.3.3 the payment of the cost of replacing the goods or acquiring equivalent goods, or
12.3.4 the payment of the cost of having the goods repaired.
13. Limitations of Liability
13.1 In the event that:-
13.1.1 CafeScreen fails to publish an advertisement in accordance with the Schedule or
13.1.2 in the event that CafeScreen fails to deliver the number of impressions specified in the Advertising Schedule (if any) by the End Date, or
13.1.3 in the event of any other failure, technical or otherwise of such advertisement to appear as provided in the Sales Contract,
the sole liability of CafeScreen and exclusive remedy of the Client shall be limited to, (at CafeScreen’s sole discretion), placement of the advertisement at a later time in a comparable position, or extension of the End Date specified in the Advertising Schedule until the total impressions are delivered.
13.2 In no event shall CafeScreen be liable for any act or omission, or any event directly or indirectly resulting from any act or omission of Third Parties (if any).
13.3 In no event shall CafeScreen be liable under this Sales Contract for any consequential, special, lost profits, indirect or other damages, whether based in contract, Tort or otherwise, even if CafeScreen has been advised of the possibility of such damages and notwithstanding any failure of essential purpose of any limited remedy. CafeScreen’s aggregate liability under this Sales Contract for any claim is limited to the amount received by CafeScreen from advertiser for the Sales Contract giving rise to the claim.
13.4 Without limiting the foregoing, CafeScreen shall have no liability for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown, or any other condition affecting production or delivery in any manner beyond the control of CafeScreen.
13.5 The Client acknowledges that CafeScreen has entered into this Sales Contract in reliance upon the limitations of liability set forth herein and that the same is an essential basis of the bargain between the parties.
14. Client’s Warranties and Indemnity
14.1 The Client represents and warrants to CafeScreen and Third Parties (if any), that it holds all necessary rights to permit the use of the advertisement by CafeScreen for the purpose of this Sales Contract and that the use, reproduction, distribution, transmission or display of advertisement, any data regarding users and any material to which users can link, or any products or services made available to users, through the advertisement will not:-
14.1.1 violate any criminal laws or any rights of any third parties, or
14.1.2 contain any material that is unlawful or otherwise objectionable, including without limitation any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law.
14.2 The Client agrees to indemnify, defend and hold CafeScreen and Third Parties (if any) harmless from and against any and all liability, loss, damages, claims or causes of action, including reasonable legal fees and expenses, arising out of or related to:-
14.2.1 breach of any of the foregoing representations and warranties, or
14.2.2 any third-party claim howsoever arising from use of or access to the advertisement under this Sales Contract or any material to which users can link, or any products or services made available to users, through the advertisement under this Sales Contract.
14.3 The Client warrants that any photos, flash files, jpegs, mpegs, graphics, text, etc. furnished by it are either their own or their use has been authorized by the owner.
14.4 The Client expressly releases CafeScreen, their members, officers, employees, successors, personal representatives and any other organization transmitting, publishing or exhibiting said material from any claims, actions, demands and liability howsoever arising out of or in any way whatsoever connected with the above uses.
15. Cancellations
All orders are binding on the Client and cannot be cancelled after thirty (30) days prior to first scheduled publication.
16. Confidentiality
16.1 “Confidential Information” shall mean:-
16.1.1 advertisements, prior to publication;
16.1.2 the Sales Contract and any CafeScreen statistics that shall be deemed CafeScreen Confidential Information; and/or
16.1.3 any information designated in writing, or identified orally at time of disclosure, by the disclosing party as "confidential" or “proprietary.”
16.2 The Client acknowledges, warrants and undertakes that any and all commercial terms offered to them in respect of any documentation comprising this Sales Contract is Confidential Information and shall not be disclosed to any third party without the prior written consent of CafeScreen. In the event that the Client breaches their confidentiality obligations to CafeScreen, CafeScreen reserves the right to cancel this Sales Contract forthwith, and to pursue the Client for all equitable relief including damages.
16.2 During the term of this Sales Contract, and for a period of two years following any End Date, neither party will use or disclose any Confidential Information of the other party except as specifically contemplated by this Sales Contract. The foregoing restriction does not apply to information that:-
16.2.1 has been independently developed by the receiving party without access to the other party's Confidential Information;
16.2.2 has become publicly known through no breach of this Section by the receiving party;
16.2.3 has been rightfully received from a third party authorized to make such disclosure;
16.2.4 has been approved for release in writing by the disclosing party; or
16.2.5 is required to be disclosed by a competent legal or governmental authority.
17. Termination
17.1 CafeScreen may terminate the Sales Contract any time on 30 days' notice to the Client. The Client will be responsible for paying all amounts outstanding at the effective date of any termination or expiration of the Sales Contract.
17.2 In the event of a material breach by the Client, CafeScreen may terminate this Sales Contract immediately without notice or cure period without liability to CafeScreen.
17.3 In the event of any termination, the Client shall remain liable for any amount due under a Sales Contract for advertisement delivered by CafeScreen and such obligation to pay shall survive any termination of this Sales Contract. If the parties contemplate any provision to survive any termination or expiration of this Sales Contract, such provision shall survive such termination or expiration. At the request of the disclosing party, the receiving party shall return all of the disclosing party's Confidential Information to the disclosing party.
18. Miscellaneous
18.1 No term or condition other than those set out in the Sales Contract relating to advertisement scheduling and pricing shall be binding on CafeScreen without a written agreement that is signed by duly authorized representatives of both parties.
18.2 This Sales Contract constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior agreements and communications, whether oral or written, between the parties relating to the subject matter and all past courses of dealing or industry custom.
18.3 This Sales Contract shall be governed by and construed in accordance with the laws of the State of Victoria, without giving effect to principles of conflicts of law. Only a written agreement that is executed by a duly authorized representative of each party may amend this Sales Contract.
18.4 Any notices under this Sales Contract shall be sent to the addresses set forth in the Advertising Schedule (or in a separate writing) by e-mail, fax or nationally recognized express delivery service and deemed given upon receipt.
18.5 The waiver of any breach or default of this Sales Contract will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.
18.6 If any provision contained in this Sales Contract is determined to be invalid, illegal, or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the parties, and the remaining provisions of this Sales Contract will remain in full force and effect.
18.7 Any creative produced by CafeScreen on behalf of a client is for exclusive use on the CafeScreen network. Swf and source files are available on request but will incur a fee.
