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Terms

The following terms and conditions ("Advertising Terms and Conditions") are deemed to be incorporated into each advertising Order accepted by 1st Screen Advertising Australia (“1st Screen”) (an "Order"):

If Advertiser will provide any gambling or gaming-related Advertising, please initial in the space provided to the left (refer to paragraph 7.1.5).

If Advertiser will provide any alcohol-related Advertising, please initial in the space provided to the left.

If Advertiser will provide any porn-related Advertising, please initial in the space provided to the left.

If Advertiser will provide any tobacco-related Advertising, please initial in the space provided to the left

 

Definitions:

1st Screen” shall mean Mobile Embrace Limited – trading as 1st Screen Advertising Australia

1st Screen Publishers” shall mean publishers operating WAP sites who have selected 1st Screen as their Mobile advertising solutions firm.

Advertising” and “Advertisements” shall mean a promotional message in any format that appears on the WAP Site for the purpose of publicising an Advertiser’s products or services, whether such format is currently in use or hereafter developed, including ad banner advertising.

CPM” shall mean cost Per 1000 Impressions.

Effective Date” shall mean the date at which this Agreement becomes effective, as indicated on the cover page of this Agreement.

Impression” shall mean each user request for the viewing of any page on a WAP Site that includes Advertising.

Mpression service" shall mean the 1st Screen service that delivers Advertising to pages on WAP Sites in the following order and manner: For users and/or pages which match the criteria selected by an Advertiser from information currently available to 1st Screen concerning users and/or pages, an Advertisement paid by the Advertiser ("Paid Advertisement") from such Advertiser will appear.

WAP Site” shall mean the WAP Site(s) of any 1st Screen Publisher.

1. Terms of Payment

The Advertiser (as defined in the order) will be invoiced upon signing the Order.

The Advertiser will be set a credit limit, at 1st Screen’s entire discretion (the “Credit Limit”). The Credit Limit will normally be nil for a new Advertiser.

Unless otherwise expressly agreed by the parties in writing, the Advertiser must ensure that payment is made to 1st Screen Advertising Australia in Australian Dollars as follows:

   

For the avoidance of doubt, the Advertiser must pay at the rates prescribed by applicable law all GST (and all similar sales tax (if applicable)) on the amounts due under this Order. All amounts paid by the Advertiser after the due date may bear interest at the rate of one percent (1%) per month (or the highest rate permitted by law, if less) above the base lending rate of Commonwealth Bank of Australia, from time to time, from the date when payment was due until the date of payment is received. In the event of any failure by the Advertiser to make payment, the Advertiser will be responsible for all expenses (including legal fees) incurred by 1st Screen in collecting the amounts due. The Advertiser warrants that it contracts with 1st Screen as principal notwithstanding that the Advertiser may be acting as an advertising agency or media buyer or in some other representative capacity.

 

2. Positioning and Licence

2.1 The Advertiser hereby grants a world-wide non-exclusive, fully paid licence to reproduce and display the advertisement (including all contents, trademarks and brand features contained therein) in accordance with the Order and these Advertising Terms and Conditions

2.2 Except as otherwise expressly provided in the Order, positioning of advertisements on any page operated by 1st Screen Publishers or elsewhere is at the sole discretion of 1st Screen, and 1st Screen will not be prohibited from also carrying advertisements for any product or business competitive to the product or business of the Advertiser.

2.3 1st Screen does not warrant the date or dates of insertion of the advertisement(s) and does not warrant that the advertisement(s) will not be displayed after the end date specified. However, 1st Screen will use reasonable efforts to comply with the Advertiser´s wishes in these regards.

2.4 The Advertiser grants to 1st Screen the express right to reproduce throughout the world screen shots of all or part of any 1st Screen property containing all or part of any of the advertising materials supplied by the Advertiser to 1st Screen on or in any promotional or advertising material or campaign promoting or advertising 1st Screen .

 

3. Usage Statistics

Notwithstanding the provisions of the Order, the Advertiser acknowledges that 1st Screen has not made any guarantees with respect to usage statistics or levels of impressions for any advertisement. 1st Screen provides the Advertiser with estimated usage statistics only as a courtesy to the Advertiser and 1st Screen will not be held liable for any claims relating to any usage statistics however supplied.

The Advertiser acknowledges that delivery statistics provided by 1st Screen are the official, definitive measurements of 1st Screen performance on any delivery obligations provided in the Order. No other measurements or usage statistics (including those of the Advertiser or a third party ad server) will be accepted by 1st Screen or have bearing on this Agreement. If required, Advertiser shall, at their own expense, be allowed a bi-annual review of the 1st Screen’s logs that support the delivery statistics.

 

4. Renewal

Except as expressly set out in the Order, any renewal of the Order and acceptance of any additional advertising order will be at 1st Screen´s sole discretion. The rates applicable to such renewal period (if any) are subject to change by 1st Screen from time to time in its absolute discretion.

 

5. No Assignment or Resale of Ad Space

The Advertiser may not resell, assign or transfer any of its rights hereunder, and any attempt to resell, assign or transfer such rights will entitle 1st Screen to terminate this contract immediately, without liability on the part of 1st Screen.

 

6. Limitation of Liability

6.1 If 1st Screen fails to publish any advertisement or deliver the number of impressions as provided in the Order (or in the event of any other failure, technical or otherwise, of such advertisement to appear as provided in the Order), 1st Screen´s liability will be limited (at the option of 1st Screen) to either: (a) publishing the advertisement (or a replacement advertisement if provided by the Advertiser) as soon as is reasonably practicable in the period following the period during which the advertisement was scheduled to run and for such time as is necessary to generate a number of substitute impressions equal to the shortfall, or (b) refund to the Advertiser that proportion of the amounts paid which relate to those advertisements and/or impressions which were not provided or, if the relevant amounts were not paid by the Advertiser, agree that such amounts will not be due or payable.

6.2 Other than as set out above, 1st Screen shall not be liable for any unavailability or inoperability of the mobile internet, WAP gateway, internet, technical malfunction, technical delay, computer error, corruption or loss of information. In no event will 1st Screen be responsible for any indirect, consequential, special or economic loss of any kind including without limitation loss of profits, business, contracts, revenues, goodwill, production and anticipated savings arising from any failure to publish in a timely manner or at all any advertisement in accordance with the Order.

6.3 Without limiting the foregoing, 1st Screen will 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, labour or material shortage, transportation interruption of any kind, work slowdown or any other condition beyond the control of 1st Screen affecting production or delivery in any manner.

6.4 1st Screen does not limit or exclude liability for death or personal injury caused by its negligence.

6.5 Each of the provisions of this clause 6 are to be construed separately and independently of the other, and if any provision of this clause 6 (or any other clause herein) is found by any court or other judicial body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision will not affect the other provisions of this clause 6 (or any other clause herein) which will remain in full force and effect.

 

7. Advertiser’s Representations; Indemnification

7.1 The Advertiser warrants and represents to 1st Screen that:

7.1.1 It has the right to publish all of the contents of the advertisements, and can grant to 1st Screen such right, and that such publication will not: (a) infringe any rights of any third party including, without limitation, intellectual property rights and rights of privacy, and (b) violate any applicable law or regulation.

7.1.2 The advertisements do not contain anything which is defamatory, obscene, false or misleading.

7.1.3 It has complied with the codes of practice issued by the ACCC and compliance with the Trade Practices Act 1974 in respect of electronic and online advertising and all other relevant industry codes of practice.

7.1.4.The advertisement submitted pursuant to the Order either: (a) does not constitute an investment advertisement within the meaning of the Corporations Act 2001 ("the Act") or other applicable law, or (b) has been approved by an "authorised person" within the meaning of the Act or is otherwise permitted under the Act and the Advertiser has expressly notified 1st Screen in writing of this. The Advertiser holds 1st Screen harmless against any and all expenses, damages and losses of any kind (including reasonable legal fees and costs) incurred by 1st Screen in connection with any claims actual or threatened, of any kind (including, without limitation, any claim of trademark or copyright infringement, libel, defamation, breach of confidentiality, breach of any statutory or regulatory duty, false or misleading advertising or sales practices) arising from the advertisement and /or any material (of the Advertiser or otherwise) to which users can link through the advertisement.

7.1.5 Any gambling or gaiming-related Advertising complies with all applicable Australian laws, including inter alia, restricting gambling-related advertising only to gambling operators licensed in Australia.

 

8. Provision of Advertising Materials

The Advertiser will provide all materials for the advertisement (including GIF or JPEG files), in accordance with 1st Screen´s practices and policies in effect from time to time, including (without limitation) the manner of transmission to 1st Screen, the lead-time prior to publication of the advertisement and such technical specifications as 1st Screen may require from time to time. 1st Screen will not be required to publish any advertisement that has not been received in accordance with such policies and practices and reserves the right to charge the Advertiser, at the rate specified in the Order, for inventory held by 1st Screen pending receipt of acceptable materials from the Advertiser which are past due.

 

9. Right to Reject Advertisement

All contents of advertisements are subject to 1st Screen´s approval. 1st Screen does not undertake to review the contents of any advertisements and any such review of and/or approval by 1st Screen will not be deemed to constitute an acceptance by 1st Screen that such advertisement is provided in accordance with these Advertising Terms and Conditions nor will it constitute a waiver of 1st Screen´s rights hereunder. 1st Screen reserves the right at any time in its absolute discretion to:

9.1 Reject or cancel any advertisement, Order, URL link, space reservation or position commitment; or

9.2 Remove any advertisement from any of the 1st Screen properties or any page.

 

10. Term and Termination

The term of this Agreement shall begin on the Effective Date and shall run for the period specified on the Order or for such longer period as 1st Screen determines is necessary in order to fulfil the Order.

The Advertiser cannot cancel the Order. No conditions other than those set forth in the Order or these Advertising Terms and Conditions will be binding on 1st Screen unless expressly agreed to in writing by an authorised representative of 1st Screen In the event of any inconsistency between the Order and these Advertising Terms and Conditions, these Advertising Terms and Conditions will prevail.

11. Confidentiality and Public Announcements

11.1 The provisions of the 1st Screen and all communications passing between the Advertiser and 1st Screen are confidential and must not be disclosed to any third party except: (a) by the Advertiser to its qualified accountants or legal advisers, (b) by 1st Screen to its qualified accountants or legal advisers, or (c) as otherwise agreed by the parties in writing or as otherwise required by law.

11.2 If the parties have executed a non-disclosure agreement prior to the date of this Agreement ("Non-Disclosure Agreement"), then: (a) the Non-Disclosure Agreement is hereby incorporated into this Advertising Terms and Conditions by reference whether or not it is attached to the Order, and (b) each party must comply with its obligations in the Non-Disclosure Agreement.

 

12. Miscellaneous

12.1 These Advertising Terms and Conditions, together with the Order (i) will be governed by and construed in accordance with, the laws of Australia, and the parties submit to the non-exclusive jurisdiction of the Australian courts; and (ii) constitute the complete and entire expression of the agreement between the parties, and supersede all other prior understandings, commitments, agreements and (unless made fraudulently) representations, whether written or oral between the parties. Clauses 6, 7, 11 and 12 will survive any expiry or termination of these Advertising Terms & Conditions.

12.2 Notwithstanding any other provision in these Advertising Terms & Conditions a person who is not a party to these Advertising Terms & Conditions has no right to rely upon or enforce any term of these Advertising Terms & Conditions but this does not affect any right or remedy of a third party which exists or is available apart from that Act.

Advertiser and 1st Screen hereby confirm their mutual agreement to the terms and conditions of this Agreement as of the effective date.

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