Mi9 New Zealand Limited Terms and Conditions
Last updated: 1 July 2014
Mi9 New Zealand Limited (NZ Company number 1913126) (an Mi9 group company) and the customerwish to enter int o an agreement regarding advertising, content integration and creative services we may supply to you for use on the Mi9 NZ Network.
The Agreement comprises:
(a) these Booking Terms and Conditions
(b) the terms of the Insertion Order(s);
(c) any Credit Application Form; and
(d) where you are a Preferred Agency, any special terms we have agreed.
1.2 Entire agreement of partiesThis Agreement constitutes the entire agreement between the parties and replaces any previous discussions, communications or other documents concerning the supply of the Services.
In this Agreement, the following words have these meanings, unless the context otherwise requires:
(a) Advertising Copy means all advertising, marketing or other material supplied by you (including, without limitation, text, graphics and URLs) for publication on any of our sites in the form and manner approved by us;
(b) Affiliate means any entity that Owns, is Owned by, or is commonly Owned with, us and includes all Related Bodies Corporate of such legal entities;
(c) Approved Agency means any customer who provides advertising agency services to its customers and which is recognised with us as an approved agency;
(d) Cancellation Fee means the estimated charges and costs we would have reasonably expected to have received for provision of Services but for your late cancellation including our charges for producing any Custom Materials and our Fees for publishing any Custom Materials or Advertising Copy based on the applicable Insertion Order;
(e) Confidential Information means:
(i) the terms and conditions of the Agreement; and
(ii) all information of a confidential nature disclosed or communicated by the disclosing party to the recipient including any financial and pricing data; business plans; policies; suppliers; inventions; product information and information about a party marketing and/or promotional activities but excludes any information which the recipient can establish:
(A) is or becomes generally available in the public domain otherwise than through a breach of this agreement or any obligation of confidence owed to the disclosing party;
(B) is or becomes known to the recipient from a source other than the disclosing party otherwise than through a breach of an obligation of confidentiality owed to the disclosing party;
(C) is or has been independently developed or acquired by the recipient; or
(D) is approved in writing by the disclosing party for disclosure by the recipient;
(f) Creative Services means design, production and promotional services we provide for interactive media including without limitation creating, producing and marketing Custom Materials, advertising marketing campaigns, e-direct marketing, developing and hosting integrated offerings such as competitions and associated creative services;
(g) Credit Application Form means the form provided to you by Mi9 NZ regarding your application for credit;
(h) Custom Materials means customised content and materials in any form which we have produced for any particular campaign or promotion including any banner, advertisement, copy, mini website or co-branded webpages, newsletters or e-marketing materials as set out in the Insertion Order;
(i) Fees means our fees and charges for the provision of Services as specified in the Insertion Order;
(j) Gaming Services means any products or services which provide the means for customers to play a game of chance;
(k) Indirect Losses includes losses of profits, revenue, opportunity, anticipated savings or data or any indirect or consequential loss or damage;
(l) Insertion Order means a contract which specifies details of the Services we agree to provide to you;
(m) Integration Placements means a placement of Custom Materials or Advertising Copy which is integrated across multiple entry points on our sites;
(n) Launch Date means the date at which we are scheduled to publish any Advertising Copy or make available any Custom Materials for publication as specified in the Insertion Order;
(o) Microsoft Products means the websites (including without limitation the Microsoft Owned & Operated Network), products and services owned and operated by Microsoft Corporation (or its affiliates) on which we sell advertising;
(p) Microsoft Owned & Operated Network means the websites that form part of the MSN NZ network (or any successor product/service), mobile sites, applications and other digital properties and products owned and/or operated by Microsoft Corporation (or its affiliates) or which a web user would be reasonably likely to regard as closely related to such properties and products by product, branding or some other apparent way;
(q) Mi9 NZ Network means the digital properties and products on which we sell advertising including without limitation Microsoft Products, Partner Network, mobile sites, applications, our partner sites and the network of websites that comprise the our third party network advertising business;
(r) Non-Premium Services means any Services other than Creative Services and Premium Services;
(s) Order means an order for Services described in an Insertion Order which has been accepted by us in accordance with this Agreement;
(t) OTP means an over the page advertisement which floats over a webpage;
(u) Partner Network means the third party network of websites in New Zealand (which may include partner advertising networks which will run advertising campaigns on a blind-buy basis), as constituted from time to time;
(v) Preferred Agency means an agency with whom we have agreed to offer special trading terms;
(w) Premium Services means any Services which we specify as premium services and includes the publication of any Advertising Copy or Custom Materials on the MSN NZ network (or successor product/service) home page and the publication of any OTP on the Microsoft Owned & Operated Network;
(x) Rate Card means our current standard rates and charges for the provision of Services as notified to you from time to time;
(y) Related Body Corporate has the same meaning as given to that term in the Australian Corporations Act 2001(Cth);
(z) Services means the services to be supplied by us to you as described in any Insertion Order;
(aa) User means a person who accesses a page on our sites;
(bb) Value Credit means a credit we may issue to you upon your cancellation of an Order in accordance with clause 3.3(b) of this Agreement for the supply by us of replacement services of equivalent value to the Order;
(cc) we/our/us and Mi9 NZ means Mi9 New Zealand Limited (Company No 1913126); and
(dd) you/your means the person identified as the Customer or Advertiser in the Insertion Order (and includes any advertising agency that is acting on behalf of any advertiser or client on whose behalf Services are being requested pursuant to an Insertion Order).
3.1 Provision of Services
We will provide to you with, and you agree to use, the Services on our sites in accordance with this Agreement.
3.2 Orders for Services
(a) You may request Services from us by completing an Insertion Order.
(b) We will not be obliged to supply to you the particular Services set out in the Insertion Order until both the parties have signed the Insertion Order.
(c) We may require you to submit a completed Credit Application Form and we must be satisfied with the information on the Credit Application Form and/or the results of any background checks that are carried out on you in relation to the Credit Application Form, prior to our signature of the Insertion Order.
3.3 Cancellation of Services
(a) You may cancel an Order for any Services at any time without charge provided that you give us at least thirty (30) days notice prior to the Launch Date except in the case of Orders for the Partner Network which you may cancel on notice at any time up to 24 hours prior to the Launch Date.
(b) In the event you cancel an Order for Services on less than the notice period set out in clause 3.3 (a) we may, in our discretion, issue you with a Value Credit or charge you a Cancellation Fee.
(c) All Value Credits must be used within sixty (60) days of the issue date.
(d) You further acknowledge that use by you of any Value Credit is subject to the availability of replacement services and that we may, in our discretion, restrict your use of any Value Credit for Premium Services to the purchase of Non-Premium Services of equivalent value.
(e) Regardless of the period of notice you have provided to us, if you cancel any Order for Creative Services we will charge you for any production costs and charges we have incurred as of the date of the cancellation.
(f) We may cancel an Order or part Order at any time without giving you any reasons for the cancellation. If we exercise this right we will at our option:
(i) refund to you any Fees that you already paid to us;
(ii) issue you with a Value Credit; or
(iii) reschedule the Launch Date to another date within sixty (60) days of the cancellation date;
and you agree that this is our sole liability to you in relation to that particular Order or part Order.
(g) For the avoidance of doubt,
(i) a cancellation of an order or a part Order by either party pursuant to this clause 3.3 will be deemed to be a termination of this Agreement by that party in relation to such Order to part Order; and
(ii) any term or clause which is reasonably capable of survival will survive the termination or expiry of this Agreement.
We use reasonable endeavours to deliver Services in accordance with the Order. In the event we reasonably believe that any campaign is underperforming, we may in our discretion, change the placement of Advertising Copy from that specified in the Order provided that it is displayed within a substantially equivalent-sized advertising unit and on a reasonably equivalent website environment to those specified in the Order.
4. ADVERTISING COPY
4.1 Form of Advertising Copy
(a) You will ensure all Advertising Copy complies with our advertising specifications (as may be modified by us from time-to-time) which are available on request, or such other requirements we may advise you of.
(b) Your failure to meet our advertising specifications may delay or prevent placement of the Advertising Copy on the Mi9 NZ Network, or cause its removal from the Mi9 NZ Network, and is in breach of this Agreement. Without limiting clause 4.5, you must provide us with replacement Advertising Copy within forty-eight (48) hours to the extent we may refuse to publish Advertising Copy or we remove any Advertising Copy pursuant to this Agreement.
4.2 Editorial Matter
(a) You will ensure that Advertising Copy is clearly identifiable to users as advertising material and does not contain any material which could be confused by Users with our editorial content.
(b) You acknowledge that we may label any Advertising Copy as an advertisement when we publish it.
4.3 Promotion of Competitions
You will ensure that any Advertising Copy which references any competition clearly identifies the promoter of the competition and that you have obtained all applicable permits and approvals for the conduct of the competition prior to the Launch Date.
4.4 Website Links
You will ensure that any URL referenced in any Advertising Copy will link Users to the intended website. We may test whether the URL is functional and may in our discretion remove any URL which does not meet with our approval.
4.5 Delivery of Advertising Copy
(a) You will supply us with Advertising Copy for our approval at least five (5) days prior to the Launch Date. You acknowledge that time is of the essence in your provision of the Advertising Copy to us.
(b) We may, in our discretion, accept late Advertising Copy for publication but if the Advertising Copy is intended to be published as a Premium Placement we may choose in our discretion to delay publication of the Order and extend the publication date and/or in the case of an OTP to publish the medium rectangle component of the OTP only and we may charge you the Fees for the OTP as set out in the applicable Order in full.
(c) If we do not receive your Advertising Copy on time we may treat this as a cancellation of the applicable Order or part thereof and we may charge you a Cancellation Fee.
4.6 Right to Publish Advertising Copy
You represent and warrant to us that you are fully authorised to publish, and that you authorise us to publish on your behalf Advertising Copy on our sites.
5. SALES MATERIAL
You acknowledge that any marketing slide packs, mock ups, presentations or marketing materials supplied to you concerning our Services are examples only and that we may in our discretion vary the placement of any Advertising Copy including Integration Placements within our sites.
6. BETTING AND GAMING
If you use our Services for the purpose of promoting or marketing any Gaming Services provided by you or any third party you will implement appropriate procedures to ensure that all Users who access such services via our sites are not domiciled in a country which prohibits access to Gaming Services. We may in our discretion have the right to audit and test the effectiveness of your procedures and you will provide us with any reasonable technical assistance we require for such audit. To the extent that you are operating any Gaming Services, you will comply with all laws and regulations that are applicable to those Gaming Services.
7. CREATIVE SERVICES
7.1 Instructions and Materials
You will supply us with any design instructions, logos, art work or materials which we will need to carry out Creative Services for you in the manner and format we specify at the time of completion of the Insertion Order.
7.2 Approval of Custom Materials
(a) We will use reasonable endeavours to supply mock ups of all Custom Materials for your approval reasonably in advance of the Launch Date.
(b) You must promptly check mock ups upon receipt and notify us of your approval or of any errors or amendments you require prior to the Launch Date. We may charge you additional fees for any amendments we estimate will take more than one business days work to complete.
(c) Subject to clause 7.2(a), if we do not receive your approval for mocks ups of the Custom Materials supplied to you at least two (2) days prior to Launch Date we may in our discretion treat this as a cancellation of the applicable Order or part thereof and we may charge you a Cancellation Fee.
8.1 Your Warranties
You warrant to us that:
(a) you have all applicable licenses and consents necessary to enter into and perform your obligations under this Agreement;
(b) if you are an advertising agency:
(i) you are fully authorised to act on behalf of any advertiser or client on whose behalf you are requesting Services and to bind such advertiser or client to this Agreement;
(ii) you agree, and you will procure the agreement of any advertiser or client on whose behalf you are requesting Services, to be, to be jointly and severally liable for all applicable responsibilities stated in this Agreement, including (without limitation) the payment obligations set out in clause 10 below; and
(iii) as at the date of this Agreement, the advertiser or client on whose behalf you are requesting Services is not in material breach of any agreement with you, nor is such advertiser or client in default with respect of any amounts owed to you;
(c) you have complied and will continue to comply with all applicable laws and regulations in performing your obligations under this Agreement;
(d) you will not breach any agreement, arrangement or understanding with a third party as a result of entering into or performing any part of this Agreement;
(e) the Advertising Copy complies with all applicable laws and regulations and industry guidelines;
(f) the Advertising Copy and any other materials that you provide to us so that we can perform the Services and our other obligations under this Agreement will not infringe the intellectual property rights of any person;
(g) the Advertising Copy will not include content, or contain a link to any content, that is illegal, obscene, violent, defamatory, pornographic, offensive or discriminatory based on considerations of race, national origin, gender, age, disability, religion, sexual orientation or expression, that facilitates or promotes the unauthorised downloading, uploading, peer-to-peer sharing or streaming of copyrighted content, or promotes any companies, products or services that are in contravention of applicable New Zealand law, codes or regulations;
(h) neither you (nor any research vendor that you engage to conduct any research or study on the Mi9 NZ Network including without limitation the Microsoft Products and/or the Partner Network) will insert any tag, code, pixel, cookie or other data tracking or collection device into the Advertising Copy without our express permission; and
(i) you will not use or redistribute to any third party without our permission any information or reports we may supply to you other than for the purpose of evaluating the performance of our Services.
8.2 Our Warranties
We warrant to you that:
(a) we have the right to supply the Services to you;
(b) we will use reasonable care and skill in supplying the Services; and
(c) we will comply with all applicable laws and regulations in supplying the Services.
8.3 Exclusion of Warranties
To the maximum extent permitted by law, we exclude all implied conditions and warranties from this Agreement except any conditions or warranties which cannot by law be excluded. You acknowledge and agree that you are acquiring the Services and entering into this Agreement for the purposes of a business and that the Consumer Guarantees Act 1993 does not apply to the supply of the Services or this Agreement.
9. INTELLECTUAL PROPERTY
9.1 Ownership of IP
(a) Unless otherwise agreed in the Insertion Order, we or our licensors own the intellectual property in the Custom Materials, our trade marks and any other material developed or provided by us under this Agreement.
(b) You and your licensors own the intellectual property in any Advertising Copy, your trade marks and any other material you provide to us under this Agreement.
(c) Except as authorised by this Agreement, the parties agree not to:(i) reproduce the other partys intellectual property; or(ii) sub-licence, on-supply or further syndicate the other partys intellectual property on any website other than our sites.
9.2 Licence of Intellectual Property
(a) You grant us a limited, non-exclusive and non-transferable licence to reproduce and communicate to the public the Advertising Copy on our sites in accordance with the Agreement.
(b) You grant us a limited non-exclusive right to copy, adapt, modify and otherwise use any logos or other design materials you supply to use for the purposes of supplying you with Creative Services.
10.1 Rates and Fees
You will pay the Fees. If no Fees are specified in the Insertion Order, the charges for our Services will be as set out in our current Rate Card at the time of our acceptance of the Order.
10.2 Changes to Rates
We may change our Rate Card from time to time without notice.
10.3 Cost and Charges
We may charge you additional costs we incur in the provision of Services including (without limitation):
(a) the cost of obtaining any necessary licenses for any competitions which form part of Creative Services;
(b) any additional costs we incur in providing any talent, photography, filming, special effects of other special services which you request be supplied as part of the for the Creative Services;
(c) late payment charges for any overdue invoice which will be calculated monthly on the overdue amount at two per cent (2%) above the base rate of Westpac Banking Corporation.
10.4 GST and Taxes
You will pay all taxes, duties and other government charges payable or assessed in connection with this Agreement including (without limitation) any applicable goods and services tax, other value added tax, sales or use taxes, stamp duty and turnover tax, but excluding taxes, duties and government charges assessed on our income.
(a) We will invoice you monthly for fees and costs due under this Agreement.
(b) You will pay the amounts invoiced by the 20th day of the month following the month appearing on the invoice.
(c) You may, if agreed with us, make payment by electronic debit to our nominated account any additional costs we incur in providing any talent, photography, filming, special effects of other special services which you request be supplied as part of the for the Creative Services.
10.6 Measurement of Advertising
We will measure advertising (including impressions delivered and clicks achieved) through our advertising systems. Results from third party ad-servers will not be accepted for the purposes of billing and assessment of advertising performance.
11. APPROVED AGENCIES
11.1 Commission Payments
(a) Where you are an Approved Agency you will be entitled to receive an agency commission calculated on the total amount of your monthly invoiced Fees. The agency commission percentage applicable to you will be determined in our sole discretion and we will provide you with 30 days notice of any change to the agency commission.
(b) Our payment of any commission is conditional upon the following:
(i) you must fully disclose to your clients the amount of commission you receive from us;
(ii) you must fully comply with this Agreement;
(iii) your payment of invoices in full by the 20th day of the month following the month appearing on the invoice.
11.2 Status as an Approved Agency
(a) You must supply us with any information we may reasonable request in support of your application to be registered as an Approved Agency including solvency statements, balance sheet and profit and loss statements and details of any insurance policies you hold.
(b) We may revoke your status as an Approved Agency at any time upon written notice without giving any reason.
You are responsible for disclosing to your clients all benefits you may receive from us as a result of you being an Approved Agency. You warrant to us that you have disclosed to your clients all benefits you may receive from us as a result of you being an Approved Agency.
12. SPECIFIC TERMS APPLYING TO THE PARTNER NETWORK
In the case of advertising campaigns run on the Partner Network the terms set out in this clause 12 will apply in addition to the other terms set out in the remainder of this Agreement. To the extent there is any inconsistency between the terms of this clause 12 and any other term of this Agreement, the terms of this clause 12 shall prevail:
(a) All advertising campaigns will be run over the Partner Network as constituted at the time each campaign runs.
(b) You acknowledge that the Partner Network may be subject to change at any time.
(c) The Partner Network may include partner advertising networks which will run your campaign on a blind buy basis. You acknowledge that these networks do not supply any details of the websites included in these networks and that we cannot provide you with any data or information relating to these websites or the conduct or performance of the campaign on these networks.
(d) We make no warranty and give no guarantee about the placements for your Advertising Copy on the Partner Network, nor do we make any warranty or give any guarantee on the number of clicks, impressions or actions we will deliver during the period of an advertising campaign and/or Insertion Order. We therefore will not provide you with any make goods or bonus clicks or impressions.
(ii) notice of data collection by us, our parent company ninemsn Pty Limited and our third party DSP/SSP vendor services providers such as AppNexus and MediaMath; and
(iii) a link to www.youronlinechoices.co.nz. In no event will we be liable for any failure to make such disclosures.
(f) During each campaign period, we will either:
(i) provide you with access to an on-line reporting tool; or
(ii) issue you with a report at the end of each month which sets out the aggregate number of impressions (CPM), clicks (CPC) or actions (CPA) as relevant for that month.
13. CONFIDENTIAL INFORMATION
(a) Each party must:
(i) take all action reasonably necessary to maintain the confidentiality of the other party's Confidential Information; and
(ii) not disclose the other party's Confidential Information to any person except as permitted under clauses 13(b) and (c) below;
(b) A party (recipient) may disclose the Confidential Information of the other party:
(i) to a representative of the recipient who needs to know the Confidential Information for the purposes of this Agreement and subject to the recipient taking reasonable steps to ensure that any such representative is fully aware of the confidential nature of the Confidential Information of the disclosing party before the disclosure is made; or
(ii) which is required or authorised to be disclosed by any law but before doing so the recipient must seek the highest level of protection available, and where possible, give the other party advance notice when possible.
(c) We may disclose and make available your Confidential Information to our Affiliates on the condition that we take reasonable steps to ensure that such Affiliates are made fully aware of the confidential nature of your Confidential Information before the disclosure is made. You consent to our Affiliates contacting you in connection with their provision to you of advertising, content integration, creative services and/or other products or services to you.
14. INDEMNITY & LIABILITY
You indemnify us against all loss, damage or liability we may suffer or incur arising out of any claim made against us as a result of breach of your warranties in clause 8.1 and any act or omission by you in connection with your Advertising Copy.
14.2 Limitation of Liability
(a) Neither party is liable for any Indirect Loss incurred by them or by any other person arising out of or in connection with this Agreement, other than in connection with the indemnity you have provided under clause 14.1 or arising from your breach of 13.
(b) Our liability to you for any claims made under this Agreement (whether such liability arises in contract, tort (including negligence) or otherwise) is, to the fullest extent permitted by law, limited at our option to resupplying the Services or paying the cost of having the Services resupplied.
14.3 No responsibility for Advertising Copy
(a) We are not liable for any aspect of the Advertising Copy including any products or services referred to in the Advertising Copy.
(b) You are solely responsible for the content of all Advertising Copy and associated products and services, including any ancillary competitions and promotions.
If you wish to make a claim for a Value Credit, republication or any other remedy in respect of our Services you must send the claim to us no less than fourteen (14) days after the Launch Date, except to the extent that you are entitled to a longer period of time to make a claim at law.
15.1 Applicable law
This Agreement is governed by the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the courts of New Zealand.
A notice must be in writing to the address of the addressee as stated in the Insertion Order.
15.3 Public statements
You may not issue any press release or make any other public statement in relation to this Agreement or the relationship established by this Agreement without our prior written consent. We may, however, make informational references to your participation in the Mi9 NZ Network, Microsoft Owned & Operated Network, the Microsoft Products and/or the Partner Network in press releases without obtaining your consent.
15.4 No Agency
This Agreement will not create a joint venture, legal partnership, employment or agency relationship between you and us.
You may not transfer or assign this Agreement without our prior written consent. We may transfer or assign this Agreement without your prior written and will provide you with reasonable notice of our doing so.
15.6 Force Majeure
Neither party will be liable for its failure to perform any of its obligations under this Agreement due to any contingency beyond its reasonable control.
(a) You may not send us or our partners any personal information or data that can be used to identify or locate a natural person, or any sensitive financial, medical or sexual data.