1. These Standard Advertising Terms and Conditions
These standard advertising terms and conditions (Terms and Conditions) apply to all advertising on radio stations and websites (Advertising) owned or controlled by Australian Radio Network Pty Ltd (ABN 95 064 985 987) or its subsidiaries (ARN).
By agreeing to advertise on ARN or by placing an advertising order with any ARN representative (Advertising Order) each Client agrees to be bound by these Terms and Conditions.
These Terms and Conditions cannot be varied except in writing signed by the National Operations Director for the time being of ARN or other authorised delegate of the National Operations Director or CEO
Capitalised words in these Terms and Conditions have the meaning given to them within these Terms and Conditions or as defined in Clause 31.
2. Advertising Order
A written Advertising Order must be completed in respect of all Advertising. Unless expressly agreed by an authorised representative of ARN, it must be executed by an authorised representative of the Client and by an authorised representative of ARN.
3. What Makes Up the Agreement Between Client and ARN
The agreement between the Client and ARN in respect of Advertising will comprise the Advertising Order, these Terms and Conditions and any schedules and attachments to the Advertising Order and any booking confirmations or credit terms applicable pursuant to Clause 19 (the Agreement).
In the event of any conflict between any Advertising Order or any schedule or attachment to any Advertising Order, and these Terms and Conditions then these Terms and Conditions will prevail.
4. Who is the Client
For the purpose of these Terms and Conditions and each advertising Agreement the “Client” means;
(a) the person or company specified as the “client” in the Advertising Order; and
(b) where any Advertising or Creative Services has been booked or placed with ARN by an advertising agency (subject to Clause 23) includes that agency.
Each person that signs an Advertising Order or any part of an Agreement on behalf of a Client or that books or places Advertising with ARN warrants that they have the authority to bind the Client (including any advertising agency) in accordance with these Terms and Conditions.
5. Deadlines for Materials
All Materials to be delivered by the Client to ARN must be provided within the following deadlines:
(a) audio for commercials must be delivered to ARN in a format ready for broadcast no later than 4 pm one (1) Business Day before the scheduled broadcast;
(b) material instructions and Key Numbers must be provided no later than midday on the Business Day immediately preceding scheduled broadcast and no later than Thursday, midday for material scheduled to be broadcast on a weekend or long weekend;
(c) live scripts prepared by the Client must be submitted for approval by ARN no later than 4 pm five (5) Business Days before the scheduled broadcast;
(d) approval of live scripts either prepared by ARN or edited by ARN must be notified to ARN no later than 4 pm three (3) Business Days before the scheduled broadcast;
(e) content for online publication must be delivered to ARN in the format requested by ARN ready for publication no later than 4 pm five (5) Business Days before the scheduled publication;
(f) instructions for Creative Services must be notified to ARN no later than five (5) Business Days before the schedule broadcast;
(g) any instructions relating to Materials must be delivered in accordance with the time frames specified above with respect to those Materials.
“Material” means in these Terms and Conditions all written or audio advertising necessary to complete the Advertising Order and, if Creative Services are to be provided by ARN, will include all advertisements, advertising copy, advertising script, creative proposals, sound recordings, audio and any other material necessary or requested by ARN to enable ARN to perform the Creative Services.
In submitting any Material or in submitting any changes to Material, the Client must comply with the submission requirements and deadlines set out above or as otherwise notified to the Client by ARN.
ARN will not be obliged to accept any Material, Advertising or order for Creative Services which has not been submitted in this manner or is not otherwise in accordance with this Agreement.
6. Client Undertakings in Relation to Content
The Client undertakes and warrants to ARN that no Advertising and no Material provided by or on behalf of the Client will:
(a) breach or infringe the Broadcasting Services Act 1992 (Cth), The Competition and Consumer Act 2010 (Cth) or equivalent legislation in any State or Territory of Australia;
(b) infringe copyright, trade mark or other intellectual or moral property or other rights of any person (including any legal or equitable right of confidentiality);
(c) contain material that is obscene, offensive, defamatory, or otherwise unsuitable for broadcast;
(d) infringe any applicable laws, regulations and advertising and broadcasting codes or standards; or
(e) give rise to any liability on the part of ARN, cause ARN to be in breach of any law by virtue of broadcasting or publishing of the Advertising or utilising the Material, or result in a claim being made against ARN.
7. ARN Right to Reject Advertising or Material
ARN may in its absolute discretion:
(a) at any time and without notice to the Client cancel, reject or refuse to broadcast or continue broadcasting any Advertising or Material without providing any reason for such rejection or refusal at any time prior to, or after, publication of the Advertising, provided this right will not be unreasonably exercised;
(b) refuse to accept any scripts provided by the Client for live reads which are not approved by ARN and its on-air talent.
ARN shall have no liability to the client in respect of any action taken pursuant to this Clause 7. ARN will at its sole discretion provide the Client with credit which may be used against an alternate campaign subject to availability, or a refund in respect Fees paid for Advertising not broadcast as a result of ARN exercising its discretion not to broadcast pursuant to this Clause 7.
8. Broadcast and Publication Times
(a) All Advertising times not already specified in the Advertising Order must be booked at least 7 Business Days before the scheduled Start Date specified in the Advertising Order.
(b) Subject to availability and these Terms and Conditions, ARN will use reasonable endeavours to broadcast the Advertising in any specified times or periods set out in the Advertising Order or its attachments or requested in accordance with Clause 8(a).
(c) The Client acknowledges and agrees that ARN may at its discretion vary the placement and formatting of Advertising. Such variations by ARN of any such variations by ARN will not in any way affect the obligation of the Client to pay the Fees.
(d) Without limiting the above and subject to Clause 9, if Advertising is broadcast or published outside of any times or periods or other manner identified in the Advertising Order, or is aired otherwise than in accordance with the Advertising Order then ARN may, subject to availability, offer the Client alternate placements on the following basis:
(i) to be considered for alternate placement an ad must be broadcast more than 20 minutes outside of the intended advertising timeslot; and
(ii) alternative placement will not be considered if the ad is broadcast while the scheduled show is still on air
(iii) any alternate placements will be offered on a like for like, one for one basis.
No refund will be available.
9. RadioMATRIX Application
(a) If the Client is an advertising or other media buying agency and has an agreement with DBM Systems Pty Ltd (DBM) for access to the RadioMATRIX Application for delivery of booking confirmations to Client, then this Clause 9 will apply to the pre-review of bookings data by the Client.
(b) Unless notified in writing by ARN that ARN no longer has an agreement in place with DBM in respect of the provision of bookings data, then all booking data confirmations will be provided to Client via the RadioMATRIX Application. Paper bookings data will be available on request by exception from DBM or ARN in the event of a failure of the RadioMATRIX Application.
(c) Pursuant to Client’s agreement with DBM, DBM will be obliged to provide Client each night with a file including all bookings holdings data for the Client with ARN (Holdings File). If the Holdings File is not received on any one business day, Client must notify DBM by 11.00am the same day.
(d) The Client must review each Holding File received the same day against its own records for bookings made with ARN during the immediately preceding business day. Any discrepancies arising from this review must be notified to ARN within 24 hours of receipt of the Holdings File.
(e) The Client must check the Client’s entire schedule of bookings with ARN against the Holdings File in the week prior to transmission. Any discrepancies arising from this review must be notified to ARN no later than 2 business days before the end of the week prior to transmission.
(f) The Client must review and reconcile the Client’s entire schedule of bookings with ARN for all future weeks against the Holdings File at least once per week. Any discrepancies arising from this review must be notified to ARN no later than 2 business days before the end of the week.
(g) In addition to the above reviews, bookings placed by the Client must be checked as follows:
(i) where bookings are placed more than two weeks from the first on air date the Client must check the recording of that booking on the Holdings File and report any discrepancies back to ARN within two business days of making the booking; and
(ii) where bookings are placed less than two weeks from the first on air date the Client must check the recording of that booking on the Holdings File and report any discrepancies back to ARN within 24 hours of making the booking.
(h) If ARN makes a change to a booking that has already been logged in the RadioMATRIX Application and that change is made either:
(i) more than 48 hours after the original logging or most recent change to the booking on the RadioMATRIX Application and more than two weeks prior to broadcast; or
(ii) more than 24 hours after the original logging or most recent change to the booking on the RadioMATRIX Application and within two weeks of broadcast, then ARN will alert the Clients that there has been a change and it will be the responsibility of the Client to check the Holdings data within 24 hours.
(i) Failure of the Client to undertake the above reviews and notify any bookings discrepancies to ARN within the specified timeframes will negate any obligation on ARN to credit, make good, cancel, move or otherwise recompense the Client for any spot which has been confirmed by way of the Holdings Files provided to the Client.
10. Payment of Fees
The Client must pay to ARN the Fees as follows:
(a) if the Client does not have an approved Credit Account with ARN then no later than seven (7) Business Days before the scheduled commencement date for broadcast or publication of the Client’s Advertising;
(b) if the Client does have an approved Credit Account with ARN in accordance with the specified terms of such credit account but in any event within 30 days of the end of the month during which the Advertising was broadcast, published or communicated to the public; and
(c) if the Client is an Accredited Agency as provided for in Clause 15, then within 45 days of the end of the month during which the Advertising was broadcast, published or communicated to the public.
Payment of Fees by credit card will only be accepted by prior arrangement with an authorised representative of ARN.
“Fees” means the fees specified in an Advertising Order or otherwise as calculated in accordance with ARN’s standard advertising rates and includes any agreed fees payable in respect of Creative Services.
11. Advertising Rates
The Rates for all Advertising are set out in the Advertising Order or if not set out in the Advertising Order will be based on ARN’s applicable rates for the Client as determined by ARN from time to time.
12. Cancellation or Amendment of Advertising
(a) The cancellation or Amendment by the Client of any Advertising later than 28 days prior to the scheduled Start Date will incur a cancellation fee of 100% of the Fees and any other amount that would be payable by the Client if the Advertising had been broadcast or published in accordance with the Advertising Order.
(b) If Advertising is cancelled or Amended with less than 28 days notice but more than 14 days notice from the Start Date, ARN may, at its sole discretion, by arrangement with the Client, provide the Client with a delete and charge credit equal to the amount of the cancellation fee. A delete and charge credit will not be effective until the applicable cancellation fee has been paid in full by the Client.
(c) A delete and charge credit will expire 3 months after the date the relevant Advertising was cancelled and will not entitle the Client to any refund or other payment but may be utilised on unfilled broadcast times, subject to ARN’s discretion to give higher priority to other customer’s actual or anticipated advertising orders.
13. Failure to Pay Fees
If full payment of Fees is not received by ARN on or before the date that such payment is due, or if the Client commits or is the subject of an Insolvency Event, ARN may at its sole election and discretion:
(a) cancel any credit terms provided to the Client and require immediate payment in full of all Fees;
(b) immediately and without notice, suspend the broadcast of any Advertising or suspend or cancel all Advertising orders of the Client and terminate any agreement in relation to Advertising not yet broadcast or Creative Services not yet provided;
(c) require cash pre-payment for any further Advertising or Creative Services;
(d) impose interest at the rate of 2% (two percent) above the Reserve Bank’s 90 day Bill Rate on all sums that remain unpaid until full payment is received;
(e) commence legal proceedings against the Client for recovery of any outstanding amounts;
(f) recover from the Client all costs incurred by ARN in the recovery of any amount owed by the Client including any debt recovery or legal costs on a full indemnity basis; and
(g) take any such other steps as ARN considers appropriate or necessary to recover the Fees. Client must notify ARN as soon as practicable of any change, event, fact or circumstance affecting the Client which may impact on its ability to pay the Fees.
The Client agrees to provide to ARN all information as is reasonably requested by ARN to determine the credit worthiness of the client and its suitability and ability otherwise to meet payment of the Fees.
14. Creative Services
If the Client requires any creative, production or related services (Creative Services) from ARN, the Client must pay ARN additional charges for such services, as set out in the correspondence provided by ARN in respect of the Client’s request for the Creative Services. Creative Services will be subject to the same payment and credit terms and Client obligations as provided for in these Terms and Conditions.
15. Advertising Rebates
Where payment for Advertising has been made in full within the due date specified in these Terms and Conditions and a Client is not otherwise in breach of these Terms and Conditions or any Agreement with ARN, then the following rebates will apply:
(a) if the Client is an Accredited Agency the rebate will be up to 10% (or as otherwise agreed between ARN and the Client) on the amount paid for that Advertising; or
(b) as has been negotiated and agreed in writing directly with ARN in respect of Approved Unaccredited Agencies and Approved Booking Agents.
No rebate will be granted pursuant to this Clause 15 in respect of Advertising booked by an Accredited Agency, Approved Unaccredited Agency or Approved Booking Agent in respect of customers that:
(a) are existing Clients of ARN or have in place a current Advertising Order; or
(b) have been Clients of ARN or have advertised with ARN through an Accredited Agency, Approved Unaccredited Agency or Approved Booking Agent during the preceding 12 months, other than through the Accredited Agency, Approved Unaccredited Agency or Approved Booking Agent seeking the rebate.
16. Accredited Agency
An “Accredited Agency” for the purpose of this agreement is an agency that has been notified in writing by ARN that it meets the criteria for accreditation as determined by ARN in its sole discretion. The criteria used by ARN to determine whether an agency qualifies as an Accredited Agency, may include but will not be limited to that the agent;
(a) sells ARN air time to independent third parties and has a minimum of 5 commercial clients.
(b) satisfies such financial criteria as are specified by ARN from time to time;
(c) accepts liability for payment of all air time booked by the agent;
(d) has completed an ARN agency credit application; and
(e) has obtained their client’s written consent for the payment of agency allowances.
ARN may by notice in writing withdraw accreditation from any Accredited Agency.
Each Accredited Agency must advise ARN immediately in writing of any change to its status or circumstances which may cause it to fail the above criteria or be likely to cause it to fail the above criteria, including but not limited to any change to the ownership or control, directors or senior management, revenue or asset backing, or the existence of actual or threatened litigation or other event which may compromise its ability to pay the Fees or otherwise meet its obligations under these Terms and Conditions and any Agreement.
Each Accredited Agency shall provide to ARN such information as is reasonably requested by ARN from time to time to enable ARN to assess its continuation as an Accredited Agency.
17. Intellectual Property
The Client acknowledges that:
(a) ARN is permitted to use any Material provided by the Client to ARN for the purposes of the Agreement.
(b) All intellectual property rights, including but not limited to copyright, in any Material created, produced or written for the Client by ARN or its employees, officers or agents is the sole property of ARN (ARN Material).
(c) Prior written clearance from ARN is required for any use of any ARN Material otherwise than on ARN radio stations. Permission may be withheld.
(d) The Client must:
(i) keep confidential any ARN Material (directly or indirectly) supplied to the Client
(ii) not, without written clearance from ARN, use or exploit ARN Material except for any advertising or promotional campaign placed with ARN; and
(iii) if directed by ARN, on termination of this Agreement deliver up any ARN Material to ARN.
(e) Nothing in this Agreement gives the Client the right to use any ARN trade mark, logo or other artwork.
18. Indemnity and Release
(a) To the extent permitted by law, the Client indemnifies ARN and each of its employees, officers and agents from and against any Claim arising, whether directly or indirectly, from or in connection with a breach by the Client of this Agreement. Australian Radio Network Pty Limited, or the applicable subsidiary which has entered into this Agreement, holds the benefit of this indemnity and all other rights conferred on ARN and each employee, officer or agent of ARN under this Agreement as trustee.
(b) Without limiting the forgoing, the Client forever releases ARN and each officer, employee or agent of ARN from and ARN accepts no liability for, any Claim, loss or liability arising in any way from or in connection with:
(i) the broadcast or delay or failure to broadcast Advertising or Material (including any errors in any content of any Advertising or Material);
(ii) any mistake or deficiency in any Creative Services provided to the Client by or on behalf of ARN;
(iii) any lack of sound quality or delay in transmission of any Advertising; or
(iv) any representations made by or on behalf of ARN that induced the Client to enter into this Agreement.
19. Credit Terms Apply
The Client acknowledges that it is not entitled to any credit or to make payments on account unless it has been authorised in writing by ARN. All such credit or payments on account will be subject to these Terms and Conditions and ARN’s standard credit terms which may vary from time to time.
Unless otherwise stated by ARN, advertising Rates and any other payments or other charges are quoted exclusive of GST and the Client will pay GST in addition to such amounts.
21. Liability of ARN
(a) Except as expressly provided in these Terms and Conditions, ARN excludes, to the fullest extent permitted by law, all warranties, representations and conditions whether implied by law, trade, custom or otherwise. In the event that ARN is liable to a Client for a breach of implied warranty or condition that may not be excluded, ARN’s liability will, to the extent permitted by law, be limited to any one or more of the following (at ARN’s option):
(i) in the case of the supply of goods under these Terms and Conditions (if any):
(A) the replacement of the goods or the supply of equivalent goods or the payment of the cost of replacing the goods or acquiring equivalent goods;
(B) the repair of the goods or the payment of the cost of having the goods repaired; or
(ii) in the case of the supply of services under these Terms and Conditions:
(A) the supplying of the services again; or
(B) the payment of the cost of having the services supplied again.
(b) In no circumstances will ARN or its employees, officers or agents be liable, whether in tort, contract or otherwise for any indirect loss, loss of profits, consequential loss or special or exemplary damage suffered by the Client or any other person, even if such loss or damages are foreseeable and whether or not ARN has been advised of the possibility thereof.
(c) Without limiting the application of Clause 19, The liability of ARN (including ARN’s officers, employees and agents) to the Client, or any other person, for any and all loss or damage arising in relation to any Agreement and/or Advertising or Creative Services (including from any errors or inaccuracies however caused, whether by negligence, system, software or press failure, mistake, early, late or failure to broadcast Advertising or provide Creative Services will be limited to an amount equal to the Fees paid in respect of that Agreement, Advertising or Creative Services, provided that if the Client does not advise ARN of any error within five days of broadcast of the relevant Advertising or advertisement produced as a result of the Creative Services ARN will have no liability whatsoever.
22. Expiration and Termination of Agreement
(a) Unless terminated earlier in accordance with Clause 22(b), the Agreement will expire on the latest End Date specified in the Advertising Order or the completion of the Creative Services (if applicable) and any further advertising and corresponding rates will be subject to renegotiation.
(b) ARN may terminate the Agreement by serving a notice in writing on the Client if:
(i) the Client commits a breach of these Terms and Conditions or the Agreement and fails to remedy such breach within fourteen (14) days after being served with a notice by ARN specifying the nature of the breach and requiring that it be remedied; or
(ii) the Client at any time commits or is the subject of an Insolvency Event or ceases carrying on business or threatens to cease carrying on business.
(c) Termination of this Agreement by ARN does not affect any other rights of ARN under law or equity including the right to recover payment of all Fees that would have been payable under the contract had it not been terminated. In the event of termination of the Agreement, ARN shall invoice for any Fees or other amounts outstanding under the Agreement. All outstanding Fees will become payable on the date specified in the invoice.
23. No Waiver
If at any time ARN does not enforce any of these terms and conditions or grants the Client time or other indulgence, ARN shall not be construed as having waived that term or condition or its right to later enforce that or any other term or condition.
The Client may not:
(a) assign to any third party any of its rights under any agreement or any part of an agreement to which these Terms and Conditions apply or any right in respect of advertising space allocated in accordance with such an agreement ; or
(b) place Advertising or commission Creative Services whether directly or indirectly on behalf of third party advertiser(s) whether as an agent or otherwise,
except on terms previously agreed in writing with ARN. Advertising are placed or Creative Services will be considered to have been ordered by a Client on behalf of a third party advertiser where, for example (but without limitation), the Advertising promotes or otherwise notifies listeners as to the goods or services of the third party advertiser rather than the Client.
25. Entire Agreement
The Agreement sets out the entire agreement between the parties in relation to the Advertising or Creative Services and supersedes all prior arrangements, undertakings, representations and warranties by or between the parties in relation to such Advertising.
26. Governing Law
This Agreement is governed by the law in force in New South Wales and the parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction in New South Wales.
27. Force Majeure
If ARN is prevented from or delayed in complying with an obligation under this Agreement by an event beyond its reasonable control, including but not limited to a telecommunications failure, terrorist attack, war, national emergency, inclement weather, fire, flood, earthquake, natural disaster, change in legislation or shortage or destruction of equipment or materials, performance by ARN of the obligation will be suspended for the period of the delay and ARN will not be liable for any loss or damage suffered by the Client arising from or relating to such delay.
If any provision of these Terms and Conditions or the Agreement is held illegal or unenforceable, then such illegality or unenforceability shall not affect the remaining provisions of these Terms and Conditions or Agreement which shall remain in full force and effect.
ARN may vary these Terms and Conditions at any time in its sole discretion, provided that:
(c) such amended terms will not affect prior agreed Advertising Orders; and
(d) if the Client does not agree with a variation the Client may cease placing orders with ARN.
In these Terms and Conditions:
(e) Accredited Agency means an agency accredited in accordance with Clause 16;
(f) Advertising Order means an advertising order placed by a Client with ARN in accordance with Clause 1 or Clause 2;
(g) Approved Booking Agent means an advertising booking agent approved in writing by ARN for the purposes of these Terms and Conditions;
(h) Approved Unaccredited Agency means an advertising agent approved in writing by ARN for the purposes of these Terms and Conditions that is not an Accredited Agency;
(i) ARN means Australian Radio Network Pty Ltd (ABN 95 064 985 987) and its owned or controlled subsidiaries;
(j) ARN Material has the meaning specified in Clause 17;
(k) Claim means any and all proceedings, demands, losses, costs (including legal costs on a full indemnity basis), damages and other liabilities of any nature taken, made or awarded against or incurred by ARN and/or its employees, officers and agents including, without limitation, as a result of claims by third parties;
(l) Creative Services means creative or production services provided by ARN to the Client;
(m) Insolvency Event means an act of bankruptcy (in the case of an individual), or if the Client is unable to pay its debts as and when they fall due, enters into any arrangement with its creditors other than in the ordinary course of business, passes a resolution for administration, winding up or liquidation (other than for the purposes of re-organisation or reconstruction), has a receiver, manager, liquidator or administrator appointed to any of its property or assets or any petition is presented for its winding up (all in the case of a body corporate)
(n) Material has the meaning given to that expression in Clause 5;
(o) Privacy Statement means the privacy statement published in respect of each of the radio stations for ARN published at the websites identified in Schedule 1;
(p) Terms and Conditions means these terms and conditions as amended from time to time.