Online Banner and Display Advertising Terms and Conditions

Effective June 2008

1. These Terms and Conditions

1.1          Brand New Media Pty Ltd (ACN 100 517 860) trades as “Brand New Media” (“us, our, we”). These Terms and Conditions set out our standard terms and conditions for advertising products and services we supply to advertisers on our websites and the websites of our affiliates and related bodies corporate (as those terms are defined in the Corporations Act 2001 (Cth)).

1.2          Every advertiser and advertising agency (“you”) who submits a signed order in the required form (“Insertion Order”) for advertising on a website operated by us, agrees to these Terms and Conditions. Your Insertion Order and these Terms and Conditions form the basis of a contract between you and us for the provision of the advertising ordered by you.

2. Advertisements: Publication, Variation

2.1               We will, subject to availability, technical limitations and these Terms and Conditions, use our reasonable endeavours to publish your advertisement in the format submitted by you and in accordance with your other instructions. The positioning or placement of your advertisement will be at our discretion unless we expressly agree otherwise in writing. The size of your advertisement will be agreed in writing and specified in your Insertion Order.

2.2          We may, at our absolute discretion, refuse to publish any advertisement without giving any reason. No contract is formed between you and us until we accept your advertisement for publication and issue you with a valid tax invoice. If we do refuse to publish your advertisement, no fee will be charged to you. In the event a contract has been formed between you and us, we reserve the right to refuse or withdraw your advertisement from publication at any time, without giving reasons, even if we have previously published the same or similar advertisement.

2.3          We may, without prior consultation or notice to you, amend your advertisement in any way whatsoever, if we believe that the publication of your advertisement would be offensive, in breach of any law, in breach of any pre-existing agreement we have with a third party or in breach of a third party’s rights. If we amend your advertisement, this will not reduce the price agreed for publication of the advertisement unless otherwise agreed in writing.

2.4          We reserve the right to vary the placement or positioning of your advertisement and to change the format of your advertisement where we deem fit to do so. We will endeavour to notify you of those changes, but we will not be liable for any costs, expenses, losses or damages suffered or incurred by you arising from our failure to publish your advertisement in accordance with your request.

2.5          We may head any advertisement as “Advertisement” whenever required to do so by law or whenever we consider it appropriate, for any reason, to distinguish it from other types of content.

3. Submission of Advertisements

3.1          Standard creative must be received at least 3 working days prior to the campaign starting date specified in your Insertion Order. Rich media creative must be received at least 5 working days prior to the campaign starting date specified in your Insertion Order. If any creative is received by us after the relevant date and causes your campaign to be delayed, the publication of the advertisement will be considered to have commenced on the commencement date specified in the Insertion Order.

3.2          It is your responsibility to arrange and manage re-directs with third party ad-servers and provide such third party with the creative and lead time requirements. We will not compensate you where campaigns are affected or delayed in any way by third party ad-server redirect problems. We may, in our absolute discretion, remove any redirects from our network which are delayed in serving advertisements.

3.3          All click-through URL’s must enable the browser’s ‘back’ feature to allow users to return to our website.

3.4          If you submit advertising material to us electronically, the material must comply with our specifications as attached to the Insertion Order and contained on our website. We can reject the advertising material if it is not submitted in accordance with such specifications.

4. Advertising: Confirmation, Cancellation

4.1          You must promptly:

(a) check any proofs of advertising, if we have arranged to provide you with any; and

(b) notify us of any errors in the proofs or in any advertisement that we publish for you within 5 days of publication of an advertisement.

4.2          If notification has not been received by us by the relevant date, any proofs or publication of the advertisement (as the case may be) shall be deemed accepted by you.

4.3          We do not accept any responsibility for errors in advertising material that has been submitted electronically by you.

4.4          Cancellation of any advertisement or campaign must be received in writing from you no less than 21 days before the commencement date in your Insertion Order in order to receive a 100% refund. Any cancellations after this date will be subject to a minimum cancellation fee of 100% of the total cost of the entire campaign. Campaigns cancelled at your request after commencement will not be entitled to a refund of the unused portion of the campaign.

4.5          The Insertion Order is valid for 72 hours from the time we provide it to you. If the Insertion Order is not signed and returned to us within this time, the order may not be fulfilled.

5. Rates and Charges

5.1          The rate payable for your advertisement will be as agreed by us and specified in your Insertion Order. If we have quoted a rate to publish a specific quantity of advertising over a specific period and a lesser quantity is submitted for publication within that period, then what is published within that period shall be costed at whatever rate is necessary to generate the expenditure which would have been incurred had the full agreed volume been published.

5.2          You must pay us for the advertising services in accordance with the terms of your Insertion Order. If no due date for payment is specified in your Insertion Order, you must pay us within 30 days of the date of the invoice. We will invoice you monthly.

5.3          All rates and charges quoted are, unless expressly stated otherwise, exclusive of GST. We will issue you with a valid tax invoice and you must pay us any applicable GST in addition to the rates and charges quoted to you.

6. Default

6.1          If you fail to pay for the advertising services in accordance with your Insertion Order and these Terms and Conditions, or if you commit an act of bankruptcy, become insolvent, have a receiver or administrator or liquidator or manager appointed over any of your assets or if you resolve to wind up your company, then we may (at our absolute discretion) cancel any current advertising campaign and terminate any agreement for advertising that is yet to be published; require cash payment in advance for future advertising; charge interest at a rate of 3% per calendar month on overdue amounts; take proceedings against you to recover any overdue amount; recover from you all costs relation to any action taken against you by us to recover overdue amounts, such costs will include, without limitation, legal costs on a full indemnity basis; and exercise any other rights we have at law.

7. Warranties

7.1          By submitting advertising material to us or authorising or approving the publication of advertising material by us on your behalf, you warrant that the advertising material complies with all relevant laws and regulations and that its publication will not give rise to any claims or liabilities against us, our directors, employees, agents, affiliates or related bodies corporate.

7.2          Without limiting the above, you warrant that the advertising material submitted, authorised or approved by you does not breach or infringe: the Trade Practices Act, the Fair Trading Acts of relevant States of Australia or equivalent or other sale of goods legislation; any copyright, trade mark, obligation of confidentiality or other personal or proprietary rights; any law of defamation, obscenity or contempt of any court, tribunal or royal commission; State or Commonwealth anti-discrimination legislation; the Privacy Act; or any other law (including but not limited to any common law, statute, delegated legislation, rule and ordinance of the Commonwealth or any State or Territory).

7.3          By submitting advertising material to us or authorising or approving the publication of advertising material by us on your behalf, you warrant that the advertising material does not infringe any third party intellectual property rights whatsoever and you further warrant that you have obtained all necessary consents, releases and authorizations as may be required and own or control all rights in the advertising materials.

8. Indemnity

8.1          By submitting, authorising or approving advertising material for publication by us, you indemnify us and our directors, employees, agents, affiliates and related bodies corporate against all claims, demands, proceedings and other liability arising wholly or partially, directly or indirectly, from the publication of the advertising material.

8.2          Without limiting the generality of the above, you indemnify us and our directors, employees, agents, affiliates and related bodies corporate against any costs, expenses, losses, damages, liability and claims suffered or incurred and arising from your breach of these Terms and Conditions and any negligent or unlawful act or omission by you in connection with the advertising.

9. Liability

9.1          We make no representation or warranty in relation to the number of visitors to our websites or the number of impressions at any site except for any made expressly in writing by us.

9.2          Except for any warranty or representation made expressly in writing by us, you acknowledge that you have not relied on any advice given or representation made by us or on our behalf in connection with the advertising.

9.3          We have no liability to you and you indemnify us in relation to any failure of telecommunications services or systems which affect our receipt of your advertisement or the publication of your advertisement.

9.4          We exclude all implied conditions and warranties from these Terms and Conditions, except any condition or warranty (such as those implied by the Trade Practices Act) which cannot be excluded (“non-excluded conditions”).

9.5          We limit our liability for: breach of any non-excluded condition (to the extent that liability for such breach can be limited); and any other error or omission in publishing caused by us; to (at our option) re-supply of the advertising services affected by our breach or payment of the cost of re-supply.

9.6          Subject to the above sub-clauses, we exclude all other liability to you for any costs, expenses, losses and damages suffered or incurred by you in connection with these Terms and Conditions and any advertisement published by us, whether that liability arises in contract, tort (including by our negligence) or under statute. Without limitation, we will not, in any circumstance, be liable for any indirect or consequential losses, including loss of profits, loss of revenue and loss of business opportunity.

10. Privacy

10.1        We may need to collect and hold your personal information in order to provide the advertising services to you. Your personal information will be held subject to our Privacy Policy.

10.2        Our Privacy Policy allows us to use your personal information for purposes related to your purchase of the advertising services, such as making you aware of our other products and services or notifying you of opportunities offered by our business partners.

10.3        We may disclose your personal information to our related companies, to credit reporting agencies and other third parties as part of provision of the advertising services. Where you owe us money, we may disclose your personal information to debt collection agencies to recover the amount due.

10.4        You may gain access to your personal information or obtain a copy of our Privacy Policy by contacting our Privacy Officer at This e-mail address is being protected from spambots, you need JavaScript enabled to view it or by post at Privacy Officer, Brand New Media, Level 11, 2 Elizabeth Plaza, NORTH SYDNEY NSW 2060.

11. Terms and Conditions: Amendments

11.1        We may change these Terms and Conditions at any time without notice to you. Those changes will apply to the provision of advertising services after the date the change becomes effective. You and we will be bound by the Terms and Conditions that are current as at the date of your Insertion Order. Any updated Terms and Conditions will be contained on our website.

12. General

12.1            These Terms and Conditions, together with your Insertion Order, represent the entire agreement between you and us in relation to the advertising services and cannot be varied except by agreement in writing signed by one of our authorised officers. No purchase order or document issued by you will vary these Terms and Conditions.

12.2        We will not be liable for any delay or failure to publish your advertisement that is caused by a factor outside of our reasonable control (including but not limited to any act of God, war, breakdown of plant, industrial dispute, electricity failure, governmental or legal restraint).

12.3        We may serve a notice or any court document on you by forwarding them by prepaid post or facsimile to your last known address.

12.4        If any provision of these Terms and Conditions shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and Conditions and shall not affect the validity and enforceability of any remaining provisions. 

12.5        You may not assign or otherwise transfer any of your rights or obligations under these Terms and Conditions or your Insertion Order.  We may assign, sub-licence or novate any or all of our rights, interests and obligations to any subsidiary or related body corporate. 

12.6        These Terms and Conditions are governed by the laws of the State of New South Wales. Each party submits to the non-exclusive jurisdiction of the courts of that State.