ADSLOT CREATE TERMS AND CONDITIONS (ADVERTISERS)
Adslot Technologies Pty Ltd ACN 123 931 804 (Adslot) operates the Adslot Create Platform, which is a web based platform that enables designers of rich media advertisement templates to list their templates online for use in creating Advertisements and enables advertisers to purchase the right to use such templates and to create advertisements using the templates.
This agreement sets out the terms and conditions on which you, as an advertiser, may access and use the Adslot Create Platform to purchase the right to use Templates to create rich media advertisements using those Templates.
In this agreement, unless the context otherwise requires:
Advertisement means a rich media advertisement created by or on behalf of the Advertiser using one or more Templates, including a banner or other display advertisement.
Adslot Account means the account for the Advertiser maintained by Adslot via the Adslot Create Platform, where the Advertiser can (amongst other things) view a record of the Templates in respect of which it has purchased Use Rights.
Adslot Create Platform means Adslot’s web-based platform which the Advertiser can access to purchase Use Rights in respect of Templates and create Advertisements using those Templates.
Advertiser means you, who proposes to use the Adslot Create Platform to create Advertisements.
Consequential Loss means Loss beyond the normal measure of damages and includes, indirect Loss, Loss of revenue, Loss of reputation, Loss of profits, Loss of actual or anticipated savings, Loss of bargain, lost opportunities, including opportunities to enter into arrangements with third parties, Loss of use, cost of capital or costs of substitute goods, facilities or services.
Completion means your completion of the creation of an Advertisement via the Adslot Create Platform.
Designer means any person who lists a Template on the Adslot Create Platform from time to time.
Force Majeure Event means the occurrence of an event or circumstances beyond Adslot’s reasonable control, including war (declared or undeclared), civil commotion, military action, or an act of sabotage, strike, lockout or industrial action, storm, tempest, fire, flood, earthquake or other natural calamity, an ongoing internet or telecommunications outage or any outage with respect to the Adslot Create Platform or any other issues which may reasonably affect the availability or access of the Adslot Create Platform.
GST has the meaning given to it by the GST Act.
GST Act means the Australian A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any subordinate legislation in respect of that Act, as amended, varied or modified from time to time.
GST-free has the meaning given to it by the GST Act.
Intellectual Property includes all patents, designs, copyright or trade marks rights or any right to apply for the registration or grant of any of the above.
Loss means any loss, liability, cost, claim, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and includes direct loss, indirect loss and Consequential Loss.
Price means the price for Use Rights payable by the Advertiser to Adslot, as specified by Adslot on the Adslot Create Platform from time to time.
Related Entity has the meaning given to it in the Corporations Act 2001 (Cth).
Tax means a tax, levy, duty, charge, deduction or withholding together with any related penalty, interest, fine or other charge.
Tax Invoice has the meaning given to it by the GST Act.
Taxable Supply has the meaning given to it by the GST Act.
Templates means any template for rich media or other advertisements accessible using the Adslot Create Platform.
Template Purchase Request means a request by an Advertiser to purchase Use Rights in respect of a Template made via the Adslot Create Platform which specifies, amongst other things, the Template Use Period and the credit card or other payment details for the payment of the Price by the Advertiser.
Template Use Period means the period for which an Advertiser purchases the right to use a Template to create an Advertisement.
Term means the term of this agreement, which commences at the time the Advertiser creates its Adslot Account and will continue until this agreement is terminated in accordance with clause 8.
Unacceptable Content means content that infringes a third party’s Intellectual Property, or is obscene, defamatory, fraudulent, offensive, misleading, deceptive, illegal or otherwise inappropriate.
Use Right means, in relation to a Template, the right to use a Template during the Template Use Period to create an Advertisement and the right to use and display the relevant components of the Template as part of that Advertisement in accordance with this agreement (including clause 6).
The meaning of general words is not limited by specific examples introduced by ‘includes’, ‘including’, ‘for example’, ‘such as’ or similar expressions.
Access to Adslot Create Platform
Provided the Advertiser complies with its obligations under this agreement, Adslot will permit the Advertiser to access the Adslot Create Platform to view available Templates, submit Template Purchase Requests and create and publish or otherwise display Advertisements using Templates in respect of which it purchases Use Rights.
Adslot will use reasonable endeavors to:
provide details on the Adslot Create Platform of the available Templates, including Template Use Periods for such Templates; and
process Template Purchase Requests made by the Advertiser in accordance with clause 3.
Template Purchase Request and acceptance
If the Advertiser wishes to purchase Use Rights for a Template, it must submit a Template Purchase Request to Adslot via the Adslot Create Platform.
When the Advertiser submits a Template Purchase Request, the Advertiser will be taken to have made an offer to purchase the relevant Use Right for the Template from Adslot at the Price. An offer made by the Advertiser to purchase Use Rights cannot be withdrawn without Adslot’s consent.
Adslot may accept the Advertiser’s offer by processing payment of the Price for the relevant Use Right.
If Adslot accepts the Advertiser’s offer it will make the Template available to the Advertiser pursuant to clause 4. If Adslot does not accept the Advertiser’s offer for any reason it will notify the Advertiser via the Adslot Create Platform.
Access to Template and Created Advertisement
If Adslot accepts the Advertiser’s offer, Adslot will make the Template available to the Advertiser via the Advertiser’s Adslot Account. The Advertiser may then use the Template during the Template Use Period to create an Advertisement.
The Advertiser acknowledges and agrees that:
the Advertiser is responsible for the creation of Advertisements and Adslot will not assist the Advertiser in creating Advertisements (other than by providing the Advertiser with access to the Adslot Create Platform and the Templates);
the Advertiser may only use the Template to create a single Advertisement; and
it is the Advertiser’s responsibility to review the Advertisement and check for any errors in, or other issues with respect to, the Advertisement before the Advertiser Completes the Advertisement.
Following the Advertiser’s Completion of the Advertisement, Adslot will (at its election) provide the Advertiser with a hyperlink to a site from which the Advertisement can be downloaded or make the Advertisement available for the Advertiser to access via its Adslot Account.
The ability to download the Advertisement or access the Advertisement via the Advertiser’s Adslot Account will be available for not less than six months. Following the expiry of such time limits, Adslot will not have any obligations to make the Advertisement available for download or provide access via the Adslot Account.
The Advertisement will be provided only in a form that cannot be edited or changed and Adslot will not have any obligation to provide editable versions of any Advertisement to the Advertiser.
The Advertiser acknowledges that Adslot may take all steps it considers necessary to prevent the Templates from being used to create Advertisements after the Template Use Period has expired or to exercise its rights under clause 7(a), which may include the incorporation of technological protection measures into the Advertisement.
The Advertiser must ensure that:
any Advertisement uploaded onto the Adslot Create Platform or created using a Template does not contain any malware, spyware or other malicious code;
any Advertisement uploaded onto the Adslot Create Platform or created using a Template does not infringe the Intellectual Property rights of any person and otherwise does not contain Unacceptable Content and/or contravene any applicable laws, regulations, codes of conduct or guidelines; and
it does not use or allow the Adslot Create Platform to be used for any purpose other than as specifically permitted under this agreement.
If Adslot accepts a Template Purchase Request it will grant the Advertiser a non-exclusive, personal, limited and revocable sub-licence to use the Template only for the purposes of:
creating an Advertisement during the applicable Template Use Period; and
using and displaying the relevant components of that Template as part of that Advertisement.
Once the applicable Template Use Period comes to an end, the sub-licence granted pursuant to clause 6(a) will come to an end and the Advertiser agrees that it must not make any further use of the Template to create Advertisements, unless it obtains written consent from Adslot.
The Advertiser acknowledges and agrees that Adslot does not have an obligation to monitor the content of any Advertisement. However, if Adslot is made aware or determines that any Advertisement contains or may contain Unacceptable Content or may contravene any applicable laws, regulations, codes of conduct or guidelines, Adslot reserves the right to require or cause the publication of that Advertisement to be suspended or ceased, without first providing notice to the Advertiser.
If Adslot (acting reasonably) determines that the facts, matters or circumstances that led to the suspension or cessation under clause 7(a) resulted from any act or omission of Adslot or a Designer, Adslot will refund to the Advertiser (without any interest) an amount which Adslot (acting reasonably) determines represents the portion of the Price paid for the Template Use Period for which the Advertiser will not be able to use the Templates. The Advertiser acknowledges that any refund by Adslot pursuant to this clause 7 will be the Advertiser’s sole and exclusive remedy in respect of the suspension or cessation.
For any other suspension or cessation, Adslot will not be liable for any Loss suffered by the Advertiser in respect of that suspension or cessation and will not have any obligations to provide the Advertiser with a refund of the Price or any part of the Price.
Either party may terminate this agreement at any time and without cause by providing no less than 30 days written notice of termination to the other party.
without limiting clause 8(a), Adslot may, by providing written notice to the Advertiser, terminate this agreement with immediate effect if the Advertiser:
fails to comply with any written notice issued by Adslot requiring the Advertiser to remedy a breach, non-observance or non-performance of its obligations under this agreement within seven days of receiving that notice from Adslot;
commits a breach of this agreement which (in Adslot’s opinion) is incapable of remedy; or
goes into liquidation, is wound up, becomes insolvent, is subject to an insolvent reorganisation, has a receiver appointed over all or any substantial part of its assets or proposes to enter into any scheme or arrangement with its creditors.
Following termination of this agreement, Adslot may, at its discretion, elect to:
permit the Advertiser to continue to use Templates to create Advertisements for the duration of any Template Use Periods which commenced prior to termination where the Advertiser purchased Use Rights in respect of the Template prior to termination; or
require that the Advertiser immediately cease all use of the Templates, provided that Adslot will refund to the Advertiser (without any interest) an amount which Adslot (acting reasonably) determines represents the portion of the Price paid for the Template Use Period for which the Advertiser will not be able to use the Templates to create Advertisements.
Intellectual property and content ownership
The parties agree that:
Adslot retains the ownership of its Intellectual Property in respect of the Adslot Create Platform;
the Designer retains the ownership of its Intellectual Property in respect of the Templates;
nothing in this agreement grants the Advertiser any ownership of or other rights in respect of the Intellectual Property in the Adslot Create Platform or the Templates (other than any Use Rights);
Adslot will own all Intellectual Property subsisting in any improved or modified versions of the Templates created by the Advertiser and the Advertiser assigns to Adslot all Intellectual Property in respect of improvements created by the Advertiser (if any) with such assignment effective immediately upon the creation of the relevant improvement; and
the Advertiser is responsible for the content in its Advertisements other than the Templates and retains ownership of its Intellectual Property in respect of that content.
Licence to use publish Advertisement
The Advertiser grants to Adslot a non-exclusive licence (with the right to sub-licence) to use, disclose, publish, exhibit, transmit, communicate, adapt, reproduce or otherwise exploit the content of the Advertisements and all of the Advertiser’s Intellectual Property in respect of such content, to the extent such a licence is necessary for Adslot to perform its obligations under this agreement.
Warranties and guarantees
The Advertiser represents and warrants to Adslot that:
it has all right, title and interest, or the authority, necessary to enter into and perform its obligations under this agreement;
the Advertisements will not infringe an Intellectual Property or otherwise contain Unacceptable Content and the use, publication and display of the Advertisements will at all times comply with all applicable laws, regulations, codes of conduct or guidelines.
The Advertiser acknowledges and agrees that Adslot does not represent or warrant to the Advertiser that:
any Templates or Use Rights will be available for purchase by the Advertiser;
the Templates will not infringe the Intellectual Property or other similar rights of a third party;
any Template Purchase Request submitted by the Advertiser will be accepted;
the Advertiser’s access to and use of the Adslot Create Platform will be uninterrupted and secure at all times; or
by using the Adslot Create Platform to create Advertisements which are published or displayed, the Advertiser will achieve any results.
Limitation of liability
To the extent permitted by law, Adslot excludes all liabilities for any Loss, however caused (including by the negligence of Adslot) suffered by an Advertiser in connection with this agreement.
Adslot is not liable for any Consequential Loss (however caused) suffered or incurred by an Advertiser in connection with this agreement. This clause applies even if Adslot knew or ought to have known that the relevant Consequential Loss would be suffered.
Any claim by the Advertiser against Adslot for Loss however caused (including by Adslot’s negligence) suffered by the Advertiser in connection with this agreement must be made within 30 days of the Advertiser becoming entitled to make the claim and any claim not made within this period is absolutely barred.
If Adslot does have any liability to the Advertiser under or in connection with this agreement, the maximum aggregate amount which the Advertiser can recover from Adslot for any and all such liability is limited to the amount of the Price paid to Adslot by the Advertiser for the Use Rights to which the liability relates to or arises in respect of.
This clause 12 does not apply to any liability which cannot lawfully be excluded or limited, including any liability Adslot may have to the Advertiser under the consumer guarantee provisions of the Australian Consumer Law.
The Advertiser must indemnify and hold Adslot harmless against all Loss which arises or is incurred by Adslot (directly or indirectly) as a result of:
any breach by the Advertiser of its warranties or obligations under this agreement; or
any third party bringing a claim against Adslot or in any way related to the content or publication or other display of any Advertisement.
This obligation to indemnify will survive the termination of this agreement.
All payments by the Advertiser under of in connection with this agreement shall be made in full, without any deduction or withholding in respect of Taxes unless the deduction or withholding is required by law.
If the Advertiser is required under any law to make a deduction or withholding in respect of Taxes from a payment to Adslot under or in connection with this agreement, the Advertiser must pay to Adslot an additional amount that ensures that, after the deduction or withholding is made, Adslot receives on the date of the payment an amount equal to the amount that Adslot would have received if the deduction or withholding had not been made.
If Adslot makes a Taxable Supply to the Advertiser and the payment for the supply is not expressed to be inclusive of GST, the Advertiser must pay an additional amount to Adslot equal to the GST on the supply at the same time as the payment is made.
Without limiting clause 14(c), where any supply made under or in connection with this agreement is determined to be GST-free but for any reason is or becomes a Taxable Supply, the Advertiser must pay to or reimburse Adslot upon demand an additional amount equal to the GST on the supply together with any penalty, interest and other charge that may be imposed on Adslot in respect of the GST payable.
Adslot will issue a Tax Invoice for any Taxable Supply made to the Advertiser.
If the amount of GST recovered by Adslot from the Advertiser differs from the amount of GST payable by Adslot (or its representative member) on the supply, the amount of the difference must be paid by, or refunded to, the Advertiser (as the case requires).
If the Advertiser is required under this agreement to reimburse or indemnify Adslot for any amount incurred by Adslot, the amount the Advertiser is required to pay will be reduced by the amount of any Input Tax Credit Adslot determines that it (or its representative member) is entitled to claim in respect of the GST but increased under clause 14(b) if the amount payable is consideration for a Taxable Supply.
Relationship between the parties
The Advertiser acknowledges and agrees that this agreement does not create a relationship between the parties such that Adslot is an agent, fiduciary or trustee acting on the Advertiser’s behalf.
The Advertiser acknowledges and agrees that Adslot may vary the terms of this agreement from time to time and any such variations will be effective immediately upon notification on the Adslot Create Platform. The Advertiser’s continued use of the Adslot Create Platform following the notification will represent an agreement by the Advertiser to be bound by the terms and conditions of this agreement as amended.
The Advertiser acknowledges that Adslot may, in connection with the Advertiser’s access to and use of the Adslot Create Platform, collect personal information relating to the Advertiser.
The Advertiser consents to the use by Adslot (or its Related Entities) of the Advertiser’s name, logo, image or other trade mark (or any likeness to such name, logo, image or other trade mark) for the purposes of Adslot (or its Related Entities) promoting the Adslot Create Platform, Adslot generally or Adslot’s commercial relationship with the Advertiser.
This agreement will be construed and interpreted in accordance with the laws of the State of Victoria, Australia and each party submits to the non-exclusive jurisdiction of courts exercising jurisdiction in the State of Victoria, Australia including the Federal Court of Australia.
Adslot may assign its rights or obligations under this agreement at any time by providing ten days notice of the assignment to the Advertiser. The Advertiser may not assign its rights or obligations under this agreement without the prior written consent of Adslot.
Adslot may sub-contract the performance of its obligations under this agreement to any sub-contractor Adslot considers appropriate without any requirement to notify the Advertiser or obtain the Advertiser’s consent to the sub-contracting.
This agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all previous communications, representations, inducements, undertakings, agreements or arrangements between the parties or their respective officers, employees or agents.
If Adslot is prevented, hindered or delayed from performing its obligations under this agreement by a Force Majeure Event, then as long as that situation continues, Adslot will be excused from the performance of the obligation to the extent it is so prevented, hindered or delayed, and the time for performance of the obligation will be extended accordingly.
No failure to exercise or delay in exercising any right given by or under this agreement to a party constitutes a waiver and the party may still exercise that right in the future.
If a party consists of more than one person:
an obligation of those parties is a joint obligation of all of them and a several obligation of each of them;
a right given to those parties is a right given jointly and severally to each of them, and if exercised by one of them, is deemed to be exercised jointly; and
a representation, warranty or undertaking made by those parties is made by each of them.
If any provision of this agreement is invalid or not enforceable in accordance with its terms in any jurisdiction, it is to be read down, if possible, so as to be valid and enforceable and will otherwise be capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of this agreement or affecting the validity or enforceability of that provision in any other jurisdiction.
Any notice, consent, approval, waiver or other communication in connection with this agreement may be given by a party by electronic communication to a current email address of the other party. Such messages will be deemed to be received one hour after the electronic communication is recorded as being sent by the device from which the sender sent that electronic communication, unless the sender knows or could reasonably be expected to know that an electronic communication system has failed and as a result, the electronic communication was not received.
The Advertiser acknowledges and agrees that Adslot has taken all reasonable steps to preserve the security of the Advertiser’s information it provides to Adslot and the Adslot Create Platform. However, no internet data transmission can be guaranteed as totally secure. Whilst Adslot strives to protect all data transmissions over the Internet (including the Advertiser’s information), Adslot does not warrant and cannot ensure the security of any information the Advertiser transmit to Adslot or the Adslot Create Platform. Any information the Advertiser provides to Adslot is transmitted at its own risk.
The rights and obligations of the parties under this agreement do not merge on termination of this agreement.
Version dated December 2012