Optus Mobile Advertising Standard Agreement (Direct)
Optus Mobile Pty Limited (ABN 65 054 365 696) (Optus) of 1 Lyonpark Road, Macquarie Park, NSW 2113, Australia
[Company Name.] of [Company Address] (Customer)
Terms of the Agreement
This Optus Mobile Advertising Standard Agreement (Agreement) will facilitate the provision by Optus to Customer of advertising space on the Optus Portal/s.
By signing this Agreement, Customer accepts and will be subject to all of its terms.
For the purposes of clause 22 of the Agreement, the parties’ details are as follows:
|Optus Mobile Pty Limited (ABN 65 054 365 696)|
|Address:||1 Lyonpark Road, Macquarie Park NSW 2113, Australia|
|Attention:||National Sales Director, Advertising|
|[Insert] (ABN [Insert]) (Customer)|
Executed as an agreement.
|Signed for and on behalf of||Signed for and on behalf of|
|Optus Mobile Pty Limited||[Company Name]|
|by its duly authorised representative||by its duly authorised representative|
|Signature of authorised representative||Signature of authorised representative|
|Name of authorised representative||Name of authorised representative|
Optus Mobile Advertising Standard
A Optus provides telecommunications and other services to customers.
B Optus has agreed to sell certain advertising inventory on the Portal to the Customer in accordance with the terms of this Agreement.
1 Definitions and interpretation
1.1 In this Agreement:
Advertising Guidelines means the Optus Advertising Guidelines provided by Optus to the Customer, as may be amended from time to time by Optus.
Advertising Material means the advertisements Customer has booked or wishes to book on the Portal.
Agreement means this agreement, its schedules or annexures, and the contents of any Insertion Order.
Commencement Date means the date this Agreement has been signed by both parties.
Customer means the party who has entered into this Agreement with Optus.
Fee means the total GST exclusive amount payable by the Customer to Optus in relation to advertisements placed on the Inventory calculated in accordance with the rates specified in the Insertion Order.
GST has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Insertion Order means the booking order form that is signed by the Customer in relation to the Advertising Services, the format of which is attached as Schedule 1.
Inventory means advertising placement space that Optus makes available on the Portal on which Advertising Material may be published.
Optus Group means Optus and its Related Bodies Corporate.
Personnel mean employees, agents or subcontractors of Customer.
Portal means certain interfaces owned, operated or provided by Optus or an Optus Group Company, if Optus elects to make Inventory available on such interfaces. The Portal/s may include (but are not limited to) websites and applications.
Related Body Corporate has the meaning given to it in section 50 of the Corporations Act 2001.
Tax includes any tax, withholding tax, charge, rate, duty or impost imposed by any authority at any time, but does not include any GST or taxes on income or capital gains.
Term means the period described in clause 12.1, commencing on the Commencement Date.
Third Party Code means executable software other than code that solely generates motion, sound or interactivity.
Working Day means a day that it not a Saturday, Sunday or a public holiday in New South Wales.
1.2 In this Agreement, unless the context otherwise requires:
(a) words importing the singular include the plural and vice versa;
(b) a reference to a document includes all amendments or supplements to that document, or replacements or novations of it;
(c) a reference to a party to a document includes that party’s successors and remitted assigns; and
(d) a reference to $ or dollars means Australian dollars.
1.3 Headings are for convenience only and do not affect the interpretation of this Agreement.
1.4 This Agreement may not be construed adversely to a party just because that party prepared it.
1.5 If the approval or consent or exercise of a discretion by Optus is required under this Agreement, Customer must obtain the prior written approval of Optus, which may be given or withheld in Optus’ discretion.
1.6 A term or expression starting with a capital letter:
(a) which is defined in this Agreement, has the meaning given to it in this Agreement; and
(b) which is defined in the Corporations Act 2001 (Cth) or the A New Tax System (Goods and Services Tax) Act 1999 (Cth), but is not defined in this Agreement, has the same meaning as in the Corporations Act 2001 (Cth) or the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
2 Optus Advertising Guidelines
2.1 Customer agrees to comply with the Advertising Guidelines, as may be amended by Optus from time to time.
2.2 A reference to the ‘Advertiser’ in the Advertising Guidelines is a reference to the Customer as defined in this Agreement.
3 Sale of Inventory
3.1 Optus agrees to sell to Customer certain Inventory and Customer agrees to purchase and place Advertising Material on the Inventory in accordance with the terms of this Agreement.
3.2 In addition to the terms of this Agreement, the Customer agrees to comply with any special conditions that may be incorporated by Optus in the ‘Special Comments’ section of the Insertion Order.
4 Advertising Material
4.1 Customer must ensure that any Advertising Material and any other data provided by Customer to Optus pursuant to this Agreement is free of any computer program, virus or other code that is harmful, destructive, disabling or which assists in or enables theft of or alteration of data.
4.2 Optus reserves the right in its absolute discretion to refuse to accept Advertising Material for publication or cancel or reschedule the publication date of any Advertising Material.
4.3 Optus may, but has no obligation to, review the content of any Advertising Material prior to publication.
4.4 Optus may in its sole discretion:
(a) determine the appropriate placement, order, rotation and manner of presentation of any Advertising Material; and
(b) place the word “advertisement” above and/or below any Advertising Material that, in Optus’ opinion, resembles editorial matter.
4.5 Customer acknowledges that Optus cannot guarantee that any Advertising Material will not be placed next to advertisements for similar products or services to those represented in the Advertising Material.
4.6 Optus may at any time suspend the publication of Advertising Material without notice or liability to Customer if Optus reasonably considers that the Advertising Material does not comply with this Agreement in any respect.
4.7 Optus may use any third parties to perform any of its obligations under this Agreement without informing Customer or obtaining Customer’s consent.
4.8 Customer may elect in writing to pause or cancel all or part of Advertising Material that it has booked on the Portal under a particular Insertion Order. If this occurs, Optus may charge the Customer a minimum of 70% of the full amount due under the relevant Insertion Order, regardless of the volume of Advertising Material actually published under that Insertion Order. The Customer agrees to pay any such Fees due under this clause in accordance with clause 6.
4.9 Subject to clause 4.8, any Insertion Order that is paused or cancelled by the Customer under clause 4.8 will automatically terminate at the end of the month in which it is paused or cancelled, unless other arrangements are agreed with Optus in writing.
5 Use of Information and Advertising Content
5.1 Customer will not include any Third Party Code in any Advertising Material to be published on the Portal.
5.2 Where Advertising Material includes a link that does not function, Optus may remove the Advertising Material and will not be liable for any loss or damage arising from such removal.
5.3 Notwithstanding any removal of advertising material by Optus pursuant to clause 5.2, Customer remains liable to pay for the Advertising Material booked pursuant to an Insertion Order.
5.4 Customer must not directly or indirectly make any media release, public announcement or public disclosure relating in any way to this Agreement without the approval of Optus except where required by law or a stock exchange.
5.5 Optus may use statistics or other information about Inventory or the Advertising Material provided by Customer and other information provided by Customer for the purpose of marketing, promoting or advertising Optus, its products and services or third parties and their products and services.
6.1 Customer must pay Optus the Fees within 14 days from the date of receiving an invoice from Optus pursuant to clause 6.2.
6.2 Optus will invoice Customer for the Fees and all other amounts payable by Customer to Optus on a calendar month basis.
7.1 Unless the contrary intention appears, words or expressions used in this clause 7 which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) or the Australian Competition and Consumer Act 2010 (Cth) have the same meaning.
7.2 Unless the contrary intention appears, the amounts payable are exclusive of GST. If any GST is payable by one party, that party may increase the amount by, or charge an additional amount equal to, the GST provided that the party first issues a Tax Invoice to the other party. The additional amount on account of GST is payable at the same time as the amount giving rise to the GST.
7.3 If an amount payable by one party to the other is calculated as a percentage of, or by reference to, the GST-inclusive market value of a supply, the amount payable will be calculated on the GST inclusive market value of the supply discounted for the amount of GST (if any) payable on the supply.
7.4 If Customer is required by law to deduct or withhold Taxes from a payment to Optus, then Customer may make those deductions or withholdings (or both). However, Customer will give Optus a receipt for each payment and will increase its payment to Optus by the amount necessary to ensure Optus receives the full amount which it would have received if no deduction or withholding had been made.
7.5 If clause 7.4 applies, then Optus will, on request by Customer, apply for any credit or rebate to which it may be entitled in connection with the deduction or withheld Tax. Optus will refund to Customer any credit or rebate received, up to the amount of the increase made by Customer under clause 7.4.
7.6 If one party (“GST Intermediary”) makes supplies or acquisitions under this Agreement as an agent of the other party (“GST Principal”) to third parties:
(a) the GST Intermediary acknowledges that it will be treated, for the purposes of the GST law, as making the supplies to, or acquisitions from, the third parties and the GST Principal will be treated as making corresponding supplies to and acquisitions from the GST Intermediary;
(b) the GST Intermediary will issue a tax invoice and adjustment note (if required) to the third party using the GST Intermediary’s name, ABN and business letterhead and the GST Principal will not issue any tax invoice or adjustment note relating to these supplies;
(c) if the GST Intermediary sells through a sub-agent, the GST Agent will procure that the sub-agent issue a tax invoice and adjustment note (if required) using its own name, its ABN and its business letterhead; and
(d) if the GST Intermediary or the GST Principal cease to be registered for GST, this sub-clause will cease to have effect.
8.1 Customer represents and warrants that:
(a) It has the right and authority to enter into this Agreement;
(b) It has all rights, licences, authorisations, consents, approvals and permits required to perform its obligations under this Agreement and grant Optus the rights granted under this Agreement; and
(c) Optus’s use of Advertising Material in accordance with this Agreement will not at any time infringe any intellectual property right, moral right or any other right of any other person.
8.2 Customer acknowledges that Optus has been induced to enter into this Agreement by the warranties in this clause 8 and has fully relied upon the truth and accuracy of such warranties.
9.1 Customer indemnifies Optus in relation to any loss, damage, costs or expenses that may be suffered or incurred by Optus as a result of:
(a) a breach by Customer of any term of this Agreement;
(b) any wilful, unlawful or negligent act or omission by Customer or its Personnel; and
(c) any content or materials incorporated in or referred or linked to in any Advertising Material.
10 Limitation of liability
10.1 Subject to clause 10.2, to the extent permitted by law, neither party is liable for, and no measure of damages will under any special circumstances include special, indirect, incidental, consequential or punitive damage or economic loss, loss of profits, loss of revenue, loss of bargain, loss of goodwill, loss of anticipated savings or loss of use of products or equipment.
10.2 The maximum aggregate liability of Optus for any and all claims arising out of its relationship with the Customer including from or in relation to this Agreement is limited to either re-supply of the services or payment of the cost of having the services supplied again, at the option of Optus.
10.3 The limitations of liability in clause 10.1 do not apply to the liability of Customer under the indemnities in clause 9.
11.1 For so long as it as any obligations in relation to this Agreement, Customer must take out and maintain the following insurance policies:
(a) Workers’ compensation insurance as required by law;
(b) Product liability insurance of not less than $5,000,000 per event; and
(c) Professional indemnity insurance of not less than $5,000,000 per event.
11.2 Customer must provide Optus with evidence of the insurance policies referred to in clause 11.1 on request.
12 Term and termination
12.1 This Agreement commences on the Commencement Date and continues for an initial period of 12 months (Initial Term), unless terminated in accordance with its terms. At the end of the Initial Term, the Agreement will automatically renew for additional 6 month periods, until it is terminated in accordance with its terms.
Rights of termination
12.2 Either party my terminate this Agreement without cause in their absolute discretion at any time by providing 90 day’s written notice to the other.
12.3 Either party may terminate this Agreement at any time by giving written notice to the other party where the other party breaches a material term of this Agreement (Defaulting Party), and that breach is not remedied within 10 Working Days of the Defaulting Party receiving a notice which requests that the breach be remedied.
12.4 Either party may terminate this Agreement immediately by notice in writing where:
(a) the other party ceases to carry on or substantially changes the nature of its business;
(b) any step is taken to enter into any scheme of arrangement between the other party and its creditors;
(c) any step is taken by a mortgagee to enter into possession or dispose of the whole or any part of the other party’s assets or business; or
(d) any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or other like person of the whole or any part of the other party’s assets or business; or
12.5 In addition, Optus may terminate this Agreement at any time by giving written notice to Customer:
(a) where any link contained in any Advertising Material fails to operate. Optus may also immediately remove any such Advertising Material; or
(b) there is a material change in the direct or indirect ownership or control of the Customer.
Consequences of termination
12.6 On expiry or termination of this Agreement:
(a) Customer must within 30 days pay Optus all Fees and all other amounts due to Optus under this Agreement;
(b) Customer must not retain copies of any Confidential Information in any form; and
(c) Customer’s obligations under clauses 6, 7, 8, 9, this clause 12.6 and 16 of this Agreement continue.
12.7 Termination or expiry of this Agreement will not affect any accrued rights or remedies the parties may have.
13 Assignment and novation
Customer may not assign or novate or attempt to assign or novate this Agreement or any right or obligation under this Agreement, without Optus’ prior written consent. Optus may assign this Agreement to a Related Body Corporate without notice.
14 Force Majeure
Optus will not be responsible for any delay or failure to comply with its obligations under this Agreement if such delay or failure is caused by circumstances beyond its reasonable control.
15 Entire agreement
This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all such prior agreement and any representations between them.
16 Governing law
This Agreement is governed by the laws in force in New South Wales, Australia and the parties agree to submit to the exclusive jurisdiction of the courts of New South Wales, Australia and courts entitled to hear appeals from those courts.
17.1 Each party notifying, giving notice, seeking consent or making a request under this Agreement must notify in writing and any such notice may be hand delivered, sent by pre-paid post or email, to the address or email address (as applicable) specified on the first page of this Agreement.
17.2 A notice, consent or request given, sought or made under this Agreement will be deemed received:
(a) if hand delivered, on the date of delivery;
(b) if sent by pre-paid post, 3 days after the date of posting;
(c) if sent by email, on the day the email is sent (as long as the sender has not received a delivery failure message in relation to that email).
No variation of this Agreement will be of any force or effect unless in writing signed by an authorised representative of each party.
The failure of either party at any time to insist on performance of any provision of this Agreement is not a waiver of its right at any later time to insist on performance of that or any other provision of this Agreement.
20 Further assurances
Each party must, at its own expense, do everything reasonable necessary to give full effect to this Agreement.
Part or all of any clause of this Agreement that is illegal or unenforceable and does not go to the essence of this Agreement will be severed from this Agreement and will not affect the continued operation of the remaining provisions of this Agreement.