ReachLocal Australia Pty Limited (ABN 62 122 612 962)
These Advertising Terms and Conditions ("Terms & Conditions") shall be incorporated by reference into and made a part of any insertion order ("Insertion Order") submitted to ReachLocal Australia Pty Limited (“Company”) by the Business set forth in the Insertion Order. All Insertion Orders are subject to acceptance by Company. Company reserves the right to refuse or cancel any Insertion Order, subject to these Terms & Conditions, at any time. The Terms & Conditions, which are subject to change at any time, and the Insertion Order shall be collectively known as the "Advertising Agreement" or “Agreement”.
1. Advertising. (a) In connection with each Insertion Order, Company will establish an advertising campaign for Business in respect of the services ordered by the Business under the Insertion Order (“Campaign”) for the amounts (“Campaign Budget”) and duration set forth in the Insertion Order, subject to adjustment as set forth herein. In the case of an ongoing or perpetual agreement (“Perpetual Agreement”) the duration of the Campaign will be at least the Minimum Term stated in the Insertion Order. In the case of a fixed term agreement (“Fixed Term Agreement”) the duration of a Campaign will be the number of months stated in the Insertion Order. Business agrees and understands that Company may take up to 10 business days to review the Campaign and may require further input from Business, in which case the date that advertising, in whatever format (“Advertising” or “Ads”) are live (“Actual Start Date”) with one or more online or offline businesses that accept advertising orders (“Publishers”) may be later than the Target Start Date set forth in the Insertion Order. In addition, Business acknowledges that Publishers may take several additional days to distribute the Campaign through their network and publications. Company shall have no liability, and Business shall not be entitled to terminate this Agreement other than as set forth in Section 18, as a result of any such delays. The Company must provide the Business details of the Actual Start Date as soon as practicable.
(b) Company shall manage the Campaign for the number of months (or Cycles, as defined below) specified in the Insertion Order. “Cycles” shall refer to the amount of time required to spend each monthly unit of Campaign Media, Management & Optimisation Fees set forth in the Insertion Order which, due to the fact that Company has limited control over the amount of Advertising actually displayed by Publishers in any time period, may not be equal to a month. Accordingly, the Business acknowledges that it may actually take less or more time than a month to spend each monthly unit of Campaign Media, Management & Optimisation Fees.
(c) The term of this Advertising Agreement commences on the date that the Insertion Order is accepted by Company and terminates in accordance with the Term & Termination provisions of the Insertion Order or section 18 of these Terms & Conditions.
2. Fees. Business agrees to the pay the following fees (together the “Fees”), in the amounts set forth in the Insertion Order, in accordance with Section 3:
(a) “Campaign Media, Management & Optimisation Fees” cover: (i) Advertising placed with Publishers (“Campaign Media”); (ii) the conversion based optimisation technology service provided by the Company (“Optimisation”); (iii) the management of the Campaign by campaign professionals and (iv) reporting on the performance of the Campaign.
(b) “Tracking Technology Service Fees” cover the tracking technology, call optimisation technology and telecommunications services linked to the Campaign. Tracking Technology Services Fees are in addition to the Campaign Media, Management & Optimisation Fees and are set forth in the Insertion Order. Company reserves the right to change the amount it charges for its Tracking Technology Services Fees at any time, with any changes to be applicable (subject to section 2(f)) to upon execution of a new Insertion Order.
(c) “Campaign Set-Up Fee” refers to the Campaign Set-Up Fee as set forth in the Insertion Order.
(d) “Website Set-Up Fee” refers to the Website Set-Up Fee set forth in the Insertion Order in the event the Business orders the design of a Website or Campaign Landing Page.
(e) “Additional Products Fee” refers to the respective fees set forth in the Insertion Order for the applicable TotalBannerNow, TotalLiveChat, Web Presence Optimisation, ReachRemarketing or other additional service provided by the Company and ordered by the Business.
(f) All Fees are subject to change upon notice to Business, but Campaign Media rates are subject to change at any time. Company must use reasonable efforts to notify Business of any changes to Campaign Media rates as soon as practicable after Company becomes aware of those changes.
3. Payment Terms. (a) Payment for all Campaign Set-Up Fees shall be made at the time the Insertion Order is accepted by Company. Payment for all periodic Campaign Media, Management & Optimisation Fees, Tracking Technology Service Fees and Additional Products Fees (together the “Periodic Fees”) shall be made in advance, by charging Business’s pre-authorised credit card or bank account, which card or bank account will be automatically charged again for the next Period’s Periodic Fees at any time prior to the exhaustion of the prior Period’s Periodic Fees.
(b) Company may, in certain cases, accept payment after the Advertising has been placed. In that event, Company will deliver invoices monthly, reflecting all Campaign activity during such period. Business shall pay all invoices within 14 days of delivery, and any amounts not paid when due shall bear interest at the rate of 2% above the rate quoted on the due date for payment for business overdrafts over $100,000 by Company’s principal bank, calculated from the due date of payment to the date of actual payment.
(c) In the event of any failure by Business to make payment (including any denial of the payment methods set forth in Section 3(a)), Business will be responsible for all reasonable expenses (including solicitors costs and disbursements on a full indemnity basis) incurred by Company in collecting such amounts. Company will notify Business prior to taking any debt recovery actions that will result in such further charges to Business. If GST or other tax applies or is introduced on any supply made by Company under this Agreement, then Business must pay the GST or other tax in the amount or at the prevailing rate without any deduction or set off. Company must issue a tax invoice for any supply on which GST or other tax is payable.
4. Tracking Information. (a) Business agrees that Company, in an effort to provide statistics to Business, may apply certain tracking solutions to the Business’ Campaign. Specifically, Business agrees that Company has the right, but not the obligation, to do the following for each Campaign: (i) Provision “Tracking Phone Numbers” that will be displayed to the user in lieu of the Business’ phone number and which will forward to the Business’ phone number; (ii) Substitute Business’ e-mail address(es) with e-mail form(s) in order to be able to track e-mails associated with the Campaign; (iii) Require users to provide registration information in order to print a Business’ coupon; (iv) Deploy click tracking code to track the pages that users may access as a result of the Campaign. Business agrees and understands that Company is not responsible for the original phone numbers and e-mail addresses entered by Business and which the Tracking Phone Numbers and e-mail form(s), respectively, will forward to. Furthermore, Business acknowledges that, for local Business phone numbers, Company will first try to provision a local Tracking Phone Number, but, in the event such a local Tracking Phone Number is not available, Business hereby gives Company permission to provision a toll free Tracking Phone Number instead. Business further agrees that, as part of provisioning Tracking Phone Numbers, Company has the right, but not the obligation, to turn on enhanced phone tracking features. Those features may include, but are not limited to: call review (whereby a recording of the inbound phone call is made and stored for review by Business for a period of time to be determined solely by Company); caller ID (whereby the phone number of the caller is used to look-up their name and address). In the case of call review, Business hereby agrees and understands that an initial recording may be played to callers prior to the completion of calls notifying the caller that the call may be recorded. The exact message to be played to the caller is at the sole discretion of Company or Company’s vendors.
(b) “Website” shall refer to the website that users will visit when they click on one of the Business’ Ads. Company currently provides two Website options: (i) With a “Standard Offer Page”, Company provides Business with a basic website based on information provided by Business. Business agrees that Company may restrict the ability of Business to modify or request modifications to Business’ Standard Offer Page once the Campaign is running. Business agrees that Company has the right, but not the obligation, to review and modify any and all content on the Standard Offer Page, whose content – other than any content substituted by Company pursuant to Section 4(a) – remains the sole responsibility of Business; (ii) With an “Existing Website”, Business agrees that Company will direct all users who click on Business’ Ads to a website owned and operated exclusively by Business. Business hereby gives Company permission – during the duration of the Campaign – to do one or more of the following for users visiting the Business’ website as part of the Campaign ONLY: (A) substitute Tracking Phone Numbers for the Business’ website phone numbers; (B) substitute Tracking E-Mail forms for the Business’ website e-mail addresses; (C) place click tracking code on pages (URLs) specified by Business; (D) place a frameset above the Business’ website with the Tracking Phone Numbers and Tracking E-Mail form link as well as additional pertinent Campaign information; (E) place a frameset above the Business’ website with links to the Company’s website.
(c) Business agrees that users visiting the Business’ website other than as a result of the Campaign will not see any of the above substitutions or modifications. Business agrees that Company may provide a proxied version of the Business’ website (“Proxied Site”) and that, in order to do so, Business’ website must be operational, functional, and accessible through the Internet. In addition, Business agrees that, in order for Company to provide the functionality associated with the Proxied Site, the URL visible above the Proxied Site to users clicking on the Business’ Ad will reflect the website address for the Proxied Site and NOT that of the Business’ website. Business agrees that Company is in no way responsible for the operation and functionality of the Business’ website.
5. Call Recording. (a) If the Business has expressly indicated in the Insertion Order that it agrees to the provision by the Company of call recording services in respect of the delivery of the Services then the following provisions apply.
(b) Business acknowledges and agrees that such calls may include information and data about an individual (“Personal Data”).
(c) Business acknowledges that any Personal Data collected by Company hereunder is being done so at the express request of the Business.
(d) Business hereby expressly authorises Company and third party call service providers (acting as a sub-processor to Company) to collect the Personal Data as necessary and proper to effect the call recording services contemplated under the Terms and Conditions
(e) Business acknowledges that each call by Company’s sub-processor on behalf of Business will be preceded by the following recorded message: “Calls may be monitored or recorded for call tracking and quality assurance purposes.” Business acknowledges and agrees that Company makes no representations or warranties with respect to the recording and it is Business’s responsibility as data controller to ensure that adequate and appropriate information is given to customers in respect of Business’s processing of such Personal Data in accordance with Business’s obligations under applicable law.
(f) Business represents and warrants that it has all necessary rights to collect such Personal Data and that Business will use any such information collected only in strict compliance with all applicable laws in relation to call recording including (but not limited to) the Privacy Act 1988, the Telecommunications Act 1997, the Telecommunications (Consumer Protection and Service Standards) Act 1999 and the Telecommunications (Interception and Access) Act 1979. Should Business’s rights to collect such information ever be impaired, it shall immediately notify Company in writing.
(g) Business represents and warrants that it has expressly advised its employees, contractors and agents of its rights and obligations in respect of the collection of Personal Data under this Agreement.
(h) Should Business ever receive a complaint from a consumer, governmental agency or quasi-governmental agency for matters arising out of the call recording service, it shall immediately notify the Company in writing.
(i) If Company, in its sole discretion, determines that providing call recording services on behalf of Business is potentially unlawful, Company may cease providing such services on immediate written notice to Business. Such termination shall not constitute a breach of these Terms and Conditions.
6. Display Advertising. (a) If the Business has expressly indicated in the Insertion Order that it agrees to the provision by the Company of display advertising services (“Display Services”) then the following provisions apply.
7. Credits and Rebates. Business may be offered financial credits to be applied to future Campaigns (“Campaign Credits”) in the following instances:
(a) If the actual dollar amount of Campaign Media, Management & Optimisation Fees utilised at the end of a Campaign is less than the amount paid in advance by Business, then Business may be allocated a Campaign Credit in the amount of such difference, in Company’s discretion.
(b) One or more Publishers may issue rebates to Company, in the form of cash, credits or discounts, for promotional purposes, per negotiated agreements with the Company, due to irregularities in Publishers’ systems or otherwise. Company may, in its sole discretion, allocate Campaign Credits to affected Businesses, in whatever form Company deems appropriate. Business acknowledges that Company is not obligated to offer any such credits, rebates, etc. to Business and that if Company does offer any such rebates, credits, etc., that Business shall not be entitled to any more than its pro rata shares, based on all Campaign Media placed by Company for all of its advertisers with such Publisher(s) during the relevant period(s).
(c) The terms and conditions applicable to any such Campaign Credits shall be communicated to Business at the time such Campaign Credits are issued.
8. Cancellation. Once an Insertion Order has been accepted by Company, Business will be responsible for full payment of all Fees related to the Campaign. If Business cancels or terminates the Campaign for any reason (other than as a consequence of Company’s material breach of this Agreement), all Fees for the remainder of the Minimum Term in the case of a Perpetual Agreement or the scheduled term in the case of a Fixed Term Agreement shall be immediately due and payable, and all pre-paid Fees shall be forfeited.
9. Advertising Information. (a) Business shall provide Company with true, accurate and current information for all Ads placed with Publishers. Business will provide all materials for the Advertising in accordance with Company’s policies in effect from time to time, including without limitation the manner of transmission to Company and the lead-time prior to publication of the Advertising. Business agrees that Company has the right but not the obligation to make modifications to Ads prior to their delivery to Publisher and further understands that, once Ads are delivered to Publisher, Business may be limited in its ability to make further modifications to said Ads. For clarity, it is not the Company’s responsibility to ensure that the Advertising content provided by the Business is true and accurate and complies with applicable laws. Business hereby grants to Company and its subcontractors a non-exclusive, worldwide, fully paid license to use, perform, reproduce, display, transmit and distribute the Ads and any derivative works based thereon created by Company for the purpose of performing its obligations under this Agreement.
(b) All contents of Ads are subject to Company’s approval. Company reserves the right to reject or cancel any Ad, agreement, URL link, or Publisher position commitment, at any time, for any reason whatsoever (including belief by Company that any placement thereof may subject Company to criminal or civil liability). Business will receive a credit to be applied towards future Insertion Orders if Company exercises its rights under this clause. This right to refuse a listing does not constitute endorsement of any Ad that is accepted by Company, nor does it constitute a warranty that Company will continue to run an Ad once accepted. Company has no obligation to inspect Ads or to reject Ads that it inspects for any reason.
(c) Company reserves the right to modify Ads, including the associated keywords, target geographies and Publishers, consistent with Business’ objectives, at any time, even while a Campaign is active.
(d) Business agrees that Company, while it will take all reasonable efforts to promote the various products and services that the Business has selected to promote, makes no guarantee – financial or otherwise – that all such products and services will be advertised, particularly if advertising all such products and services would result in exceeding the Campaign Media, Management & Optimisation Fees in the Insertion Order.
(e) Business may select certain individual words or word phrases (“Keywords”) to be used in the Campaign. Business agrees that Company, while it will take all reasonable efforts to promote these Keywords at the Publishers, makes no guarantee – financial or otherwise – that all Keywords will be advertised, particularly if advertising all Keywords would result in exceeding the Campaign Media, Management & Optimisation Fees. Company is permitted to choose Keywords but is under no obligation to disclose such Keywords to Business. If Business intentionally or unintentionally includes the names of its competitors or trademarked terms (“Competitor Keywords”), Business does so at its own risk and accepts all liability associated with such action. Without limiting the above, Company may, but is not obliged to, at any time and in its sole discretion, remove Competitor Keywords.
(f) Business agrees that the rules for displaying Ads when certain Keywords are entered by a user at a Publisher are controlled by the Publisher and as such, Business agrees that Company makes no guarantee – financial or otherwise – about when or where Ads will be displayed when certain Keywords are entered by a user at a Publisher.
(g) Business agrees that, while Company will use its best efforts to place Ads in the target geographies specified by Business, Company is not ultimately responsible for the display of Business’ Ads and, as such, cannot guarantee that the Business’ Ads will only or primarily be displayed to people in the target geographies. Business acknowledges that Publishers may use varying means to detect where people are located when determining whether to display an Ad, including, but not limited to: (i) IP targeting; (ii) user registration information; and (iii) explicit geographic search queries made by the user.
(h) Positioning of Ads within the directory contained on the Company’s website (the “Company Directory”) or on any page of Company’s website is at the sole discretion of Company. The Business acknowledges that positioning of Ads on Publisher sites is at the sole discretion of Publisher.
(i) Business may not resell, assign or transfer any of its rights hereunder. Any attempt by Business to resell, assign or transfer such rights shall result in immediate and automatic termination of this Agreement, without liability to Company.
(j) Company shall determine, in its sole discretion, which Publishers to use in connection with any Campaign. Business acknowledges that Company does not produce, operate or transmit the Internet sites or services on which Ads may appear and that Company acts only as a sales representative or reseller of advertising inventory or listing services for the operators of such Internet sites or services.
(k) Company makes no representations, warranties or guarantees of any kind as to the level of sales, purchases, clicks, sales leads or other performance that Business can expect from the Advertising and services provided by the Company under this Agreement.
(l) Business understands that Company is under no obligation and may not be able to provide any samples of Ads in the context of any Publisher’s website.
(d) Company may, if it deems necessary in its absolute discretion, also insert in or otherwise make visible from the Proxied Site, a link to the Company’s Notice of Marketing Practices.
11. Business's Representations. (a) Business represents and warrants to Company that (i) all Advertising provided by the Business to the Company will be free from all computer viruses and all other damaging components, including (but not limited to) trojan horses, trap doors, back doors, easter eggs, worms, time bombs, cancelbots and all computer programming routines that may potentially damage, interfere with, intercept, or expropriate any system data or personal information; and (ii) Business holds all necessary rights (including the right to use all information, names, trademarks and search terms it provides or includes in its Ads) to permit the use of the Advertising by Company for the purposes contemplated under this Agreement including, without limitation, any URLs, websites and content utilized in connection with Campaign Tracking.
(b) Business further represents and warrants that the use, reproduction, distribution, transmission or display of the Ads, any data regarding users, and any material to which users can link, or any products or services made available to users, through the Ads will not (i) violate any criminal laws or any rights of any third parties or (ii) 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.
(c) The requirement for Business to indemnify Company under this clause is subject to the following: (i) Business is liable only for any breach (however described) of this Agreement that causes foreseeable substantial loss to Company; (ii) Business is not liable for any costs, expenses, loss or charges that are not reasonably foreseeable or that are not a direct result of Business’ breach (however described) of this Agreement; (iii) if Company has contributed to any loss or damage, Business’ liability is reduced to the extent of Company’s contribution.
12. Business Indemnification. (a) Business agrees to indemnify, defend and hold Company harmless from and against any and all liability, loss, damages, claims or causes of action, including reasonable legal costs and disbursements arising out of or related to: (i) the breach (or alleged breach) of any of representations and warranties contained in Sections 5(f), 5(g), 6(c),10(b) and 11, or any third party claim arising out of or in connection with use of or access to the Advertising or any material to which users can link, or any products or services made available to users, through the Advertising or to which the Advertising relates; (ii) Business’ use of Competitive Keywords; or (iii) any other act, omission or misrepresentation by Business. (b) Business agrees to indemnify and hold Company, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable legal costs and disbursements, made by any third party due to or arising out of content which the Business submits, posts, transmits or makes available through the online or offline services provided by Company (collectively, the “Service”), or Business’ use of the Service, connection to the Service, violation of this Agreement, or violation of any rights of others.
13. Agency. Business further represents and warrants that, in the event it is purchasing advertising on behalf of another business, it has been authorized by each such business to act as its agent in all respects relating to the Service and this Agreement, including, without limitation, the making of any elections or giving of any consents. Without limiting the generality of the foregoing, Business agrees on behalf of each such business that such business has been made aware of these Terms and Conditions and shall be bound by all of the terms and conditions of this Agreement. Business and each such business shall be jointly and severally responsible under this Agreement.
14. Referrals. Business acknowledges that Company may obtain customers (including the Business) through referrals from third parties and that Company reserves the right to incentivise such third parties.
15. Subcontracting. Company may, without the consent of the Business, subcontract to any party the performance of all or any of the Company’s obligations under this Agreement provided that the Company remains primarily liable for the performance of those obligations.
16. Confidentiality. Subject to the Business being able to disclose the contents or existence of this Agreement to its subcontractors, Business shall not disclose the contents or existence of this Agreement to any third party (other than its employees and representatives who are made aware of and agree to this restriction) without Company’s prior written consent. Company shall be permitted to identify Business as a Company client and may use Business’s name in connection with Company’s marketing materials. Subject to the prior approval of each party, Company may elect to issue a joint press release announcing the Business’s marketing partnership with Company, which approval shall not be unreasonably withheld.
17. Data. Business acknowledges and agrees that Personal Data and other personal information may be stored by the Company in the United States of America and other overseas locations for storage purposes.
18. Termination. For Perpetual Agreements, this Agreement operates for at least the Minimum Term stated in the Insertion Order and is terminable by the Business only in accordance with the Term & Termination provisions of the Insertion Order or as a consequence of Company’s material breach of this Agreement. For Fixed Term Agreements, this Agreement is terminable by the Business only as a consequence of Company’s material breach of this Agreement. Company may terminate this Agreement and access to the Service, with or without cause of any type or nature on 14 days prior notice. Termination of this Agreement includes (a) removal of access to all offerings within the Service, (b) deletion of passwords and all related information, files and content associated with or inside the account (or any part thereof), and (c) barring further use of the Service. Except as expressly provided in this Agreement, Company shall not be liable to Business or any third party for any termination of this Agreement or access to the Service. All provisions of this Agreement that by their sense or nature should survive termination of this Agreement (including, without limitation, all limits of liability, indemnity obligations, and confidentiality obligations) shall so survive. Without limiting the generality of the foregoing, in the event of any termination, Business shall remain liable for any amount due for Advertising delivered by Company prior to the date of termination.
19. Limitation of Liability. (a) If Company is negligent in its supply of the Service and Company’s negligence causes personal injury, death or damage to Business’ property, Company will be liable for its negligence. (b) Certain laws imply terms and conditions into contracts for the supply of goods or services that cannot be excluded (for example, that services must be provided with due care and skill and fit for any specified purpose) (“Non-Excludable Condition”). In the event that a term, condition or warranty is implied into this Agreement and Company breaches that Non-Excludable Condition, the Company is liable for that breach. (c) Where Company is permitted to limit its liability for a breach of a Non-Excludable Condition, Company’s liability will be limited (at its option) to resupplying the services to Business or paying Business the cost of having the services supplied to it. The limitation and exclusion in this clause does not apply if it would be unconscionable or not fair and reasonable for Company to limit its liability in such a manner. (d) In the event that Company fails to publish an Ad in accordance with this Agreement, or in the event that Company fails to spend, on behalf of the Business, the full Campaign Media, Management & Optimisation Fees, or in the event of any other failure, technical or otherwise, of such Advertising, the sole liability of Company and exclusive remedy of Business shall be limited to the issuance of a Campaign Credit not to exceed the total Campaign Media, Management & Optimisation Fees spent. (e) Subject to Sections 19(a) and (b), BUSINESS EXPRESSLY UNDERSTANDS AND AGREES THAT COMPANY SHALL NOT BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), REGARDLESS OF THE CAUSE OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AND TO THE FULL EXTENT PERMITTED BY LAW, COMPANY SHALL HAVE NO LIABILITY FOR DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE OR THIS AGREEMENT. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT ARISING OUT OF OR IN CONNECTION WITH ANY CAMPAIGN, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT ACTUALLY RECEIVED BY COMPANY FROM BUSINESS FOR SUCH CAMPAIGN.
(f) Without limiting the foregoing, Company 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, labour 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 Company.
(g) Company makes no representations or guarantees with respect to usage, visit, or cost per visit statistics for any Ads and does not enter into this Agreement in reliance on such statistics. Business acknowledges that any such statistics provided by Company shall be conclusive and binding on Business for all purposes of this Agreement and not subject to review or challenge by Business for any reason.
(h) Business acknowledges that Company has entered into this Agreement in reliance upon the limitations of liability set forth herein and that the same is an essential basis of the bargain between the parties.
20. General. (a) Business acknowledges that no Company personnel are authorized to make any modifications to these Terms and Conditions or to make any estimates that Business may rely on and that Business is not relying upon any such modifications or estimates or any representations, warranties or guarantees other than as expressly stated herein.
(b) This Agreement and the relationship between Business and Company shall be governed by the laws of the State of New South Wales Any action by either party hereto arising out of or in connection with this Agreement or the Service shall be brought in a court of competent jurisdiction located in the State of New South Wales.
(c) Nothing in this Agreement gives rise to or is intended to give rise to a relationship between the Company and the Business of employee and employer, principal and agent or partnership.
(d) This Agreement may not be amended, supplemented or modified orally, but only by an agreement in writing signed by each of the parties hereto. In the event any provision of this Agreement is found to be void and unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall nevertheless be binding upon the parties with the same effect as though the void or unenforceable part had been severed and deleted.
(e) This Agreement may not be transferred, assigned, pledged or hypothecated by any party hereto, other than by operation of law. Any such purported transfer, assignment, pledge, or hypothecation (other than by operation of law) shall be void and of no force and effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and permitted assigns.
(f) The headings contained in this Agreement are for purposes of convenience only and shall not affect the meaning or interpretation of this Agreement. The provisions of this Agreement shall be construed according to their fair meaning and neither for nor against any party hereto irrespective of which party caused such provisions to be drafted.
(g) In the event that Company’s website has any terms (including without limitation in any “click through” agreements) that are inconsistent with the provisions of this Agreement, this Agreement shall take precedence; provided, that any such agreements shall otherwise control with respect to any actions or activities outside of the domain of this Agreement.
(h) For the purposes of this Agreement “GST” means goods and services tax as that term is defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and related tax imposition Acts of the Commonwealth of Australia.
(i) Company may amend, modify or otherwise update this Agreement at any time by giving at least 7 days notice and Company must use its reasonable efforts to notify Business of those changes. Company may give such notice by posting the updated Agreement on its website and using its reasonable efforts to draw them to the Business’ attention. Business’ continued use of the Services constitutes an agreement by Business that it accepts any subsequent modification of this Agreement.
Last updated: Thursday, 16th May 2013