Last Updated: 14 October 2019
Kotaku Australia, of Pedestrian Group Pty Ltd (a Nine Entertainment Co. Group company) (“we/Pedestrian“) and the customer (“you“) wish to enter into an agreement regarding advertising, content integration and creative services we may supply to you for use on the Pedestrian network of owned, operated or commercialized websites mobile sites and applications (together, the Pedestrian Network).
1.1 The Agreement
The Agreement comprises:
- These booking terms and conditions
- The terms of the Insertion Order(s);
- Any Credit Application Form; and
- Where you are a Preferred Agency, any special terms we have agreed.
1.2 Entire agreement of parties
This 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:
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;
Affiliate means any legal entity that Owns, is Owned by, or is commonly Owned with, us, and includes all Related Bodies Corporate of such legal entities;
Approved Agency means any customer who provides advertising agency services to its customers and which is registered with us as an approved agency;
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;
Confidential Information means:
- The terms and conditions of the Agreement; and
- 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’s marketing and/or promotional activities but excludes any information which the recipient can establish:
- . 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;
- 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;
- is or has been independently developed or acquired by the recipient; or
is approved in writing by the disclosing party for disclosure by the recipient;
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;
Custom Materials means customised content and materials in any form which we have produced for any particular campaign, Advertiser or promotion including any banner, advertisement, copy, mini website or co-branded webpages, native content (including videos and articles), cross-platform sponsored content, newsletters or e-marketing materials as set out in the Insertion Order (and includes any materials which are created under the applicable Order but not ultimately used in the final campaign run on the Pedestrian Network;
Fees means our fees and charges for the provision of Services as specified in the Insertion Order;
Gaming Services means any products or services which provide the means for customers to play a ‘game of chance’;
Handover Document means a document issued by Pedestrian which must be completed by customers requesting Creative Services which provides specific guidelines for Pedestrian to adhere to when producing Custom Materials for that customer such as mandatory inclusions/exclusions, key brand messages etc.;
Indirect Losses includes losses of profits, revenue, opportunity, anticipated savings or data or any indirect or consequential loss or damage;
Insertion Order means an insertion order which specifies details of the Services we agree to provide to you;
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;
Order means an order for Services described in an Insertion Order which has been accepted by us in accordance with this Agreement;
Our Sites means the websites, mobile-optimised websites sites and applications comprising the Pedestrian Network;
Own means having at least fifty per cent (50%) ownership of an entity’s voting securities.
Pedestrian Network includes the digital properties operating under the following brands (as may be updated by Pedestrian from time to time): Business Insider Australia, Kotaku Australia, Lifehacker Australia, Gizmodo Australia, Pedestrian.TV and POPSUGAR Australia.
Preferred Agency means an agency with who we have agreed to offer special trading terms;
Rate Card means our current standard rates and charges for the provision of Services as notified to you from time to time;
Related Body Corporate has the same meaning as given to that term in the Corporations Act 2001 (Cth);
Services means the services to be supplied by us to you as described in any Insertion Order;
User means a person who accesses a page on our Sites;
we/our/us means Pedestrian;
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); and
Value Credit means a credit we may issue to you upon your cancellation of an Order in accordance with clause 3.3 of this Agreement for the supply by us of replacement services of equivalent value to the Order.
3.1 Provision of Services
We will provide to you with, and you agree to use, the Services in accordance with this Agreement.
3.2 Orders for Services and Right to Refuse Services
You may request Services from us by completing an Insertion Order issued by us setting out the particulars of the Services required to be provided by us and the associated fees.
We will not be obliged to supply to you the particular Services set out in the Insertion Order until you have signed the Insertion Order. We may require you to submit a completed Credit Application Form prior to issuing you with an Insertion Order.
Neither these Terms nor any written or verbal quotation by Pedestrian represents an agreement to publish Advertising Copy or provide Services to you. An agreement will only be formed between Pedestrian and you when Pedestrian receives your signed Insertion Order.
Pedestrian reserves the right to refuse or withdraw from publication any Advertising Copy at any time that, in the opinion of Pedestrian, is illegal, defamatory, offensive, obscene and/or contrary to the business interest, goodwill and/or reputation of Pedestrian or any of its customers, Affiliates or vendors or is likely to infringe on the rights of third parties (even if the Advertising Copy has previously been published by Pedestrian).
3.3 Cancellation of Services
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 for Orders on Pedestrian Network. In the event you cancel an Order for Services within 72 hours of the Launch Date, your Order will nonetheless be billed as booked by Us and You will be charged the full Fees for the Order. No Value Credit or other compensation will be issued by Us to You or Your client.
In the event that you cancel your Order between 3-30 days prior to the Launch Date, we will bill your Order as booked and you will be liable to pay the full amount of Fees owed for your Order. We will, however, issue you with a Value Credit equivalent to the total Fees paid by you for your cancelled Order. Details of the Value Credit will be documented through a Pedestrian credit note provided by us to you.
All Value Credits issued pursuant to clause 3.3 above must be used within three (3) months of the issue date (unless agreed otherwise by us in writing) or they will be forfeited by you. You agree to alert Pedestrian to the redemption of any Value Credit by you at the time of completing a new Order for Services. You further acknowledge that use by you of any Value Credit is subject to the availability of replacement services.
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.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:
- refund to you any Fees that you already paid to us;
- issue you with a Value Credit; or
- 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.
For the avoidance of doubt, a cancellation of an Order or 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 or part Order.
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.
3.5 Right to refuse advertising
Pedestrian reserves the right to withdraw from the Sites any Advertising Copy at any time without giving reasons (even if the Advertising Copy has previously been published by Pedestrian).
3.6 No right to Re-sell Services
You agree that you will not resell any Services, including Creative Services requested by you or advertising placements purchased on our Sites, to any third party without Pedestrian’s express prior written consent.
4.1 Form of Advertising Copy
You will ensure all Advertising Copy complies with our advertising specifications (as may be modified by us from time-to-time) which are available at http://pedestriangroup.com.au/advertising#adspecs or such other requirements we may advise you of. Your failure to meet our advertising specifications may delay or prevent placement of the Advertising Copy on the Pedestrian Network, or cause its removal from the applicable Site, 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 if we refuse to publish Advertising Copy or we remove any Advertising Copy pursuant to this Agreement.
4.2 Editorial Matter
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.
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 game of skill competition or lottery promotion 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 Advertising Copy being published on the Site.
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
You will supply us with Advertising Copy for our approval at least five (5) days prior to the Launch Date or such other deadline as communicated by us to you in writing. You acknowledge that time is of the essence in your provision of the Advertising Copy to us. We may, in our sole discretion, accept late Advertising Copy for publication. Advertising Copy delivered digitally must include the Pedestrian booking identification number.
If we do not receive your Advertising Copy by Launch Date, we (at our sole discretion) may:
- treat this as a cancellation of the applicable Order or part thereof and we may charge you a Cancellation Fee; or
- charge you fees from the Launch Date on a pro rata basis based on the value of the full Order (excluding portions consisting of performance-based) for each full day that the Advertising Copy is not received.
If Advertising Copy is late (as calculated by reference to clause 4.5(a) above), we are not required to guarantee full delivery of the Order and will not issue make goods or credits for any missed activity.
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.
4.7 Advertiser Contact details
Advertising Copy containing contact details for the advertiser must contain the full name and street address of the Advertiser. Post office box and email addresses alone are insufficient.
4.8 No liability for Advertising Copy
Pedestrian will not be responsible for any loss or damage to any Advertising Copy left in its possession or control.
4.9 Errors in Advertising Copy
You must promptly check proofs of Advertising Copy (if provided to You by Pedestrian) and notify Pedestrian of any errors in the proofs or in published Advertising Copy as soon as possible. Pedestrian does not accept responsibility for any errors submitted by You or Your agent, including errors in Advertising Copy placed over the telephone.
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 within our sites.
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.
6.1 The Advertiser represents and warrants that:
- it is a non-proprietary association or licenced wagering operator with the meaning of the Betting and Racing Act 1998 (NSW);
- the correct responsible gambling messaging will be applied throughout the Advertisement;
- where any prices are indicated in the Advertisement, the Advertiser will provide a disclaimer about the date, time and zone that a price is current to;
- no promotions of odds will occur siren to siren during the broadcast, transmission or other communication of the match in play;
- in NSW, there will be no advertising relating to any fixture or match that is in progress at the time of broadcast, transmission or communication of the advertisement; and
- In NSW, SA and WA, there will be no promotion of inducements in contravention of the legal requirements in those states.
6.2 Publication of each Advertisement by Pedestrian or its and related bodies corporate is approved by the Advertiser pursuant to section 33H of the Betting and Racing Act 1998 (NSW).
6.3 The Advertiser hereby indemnifies Pedestrian and its related bodies corporate and affiliates from and against any and all costs, losses and expenses it may suffer or incur and any damages, claims or proceedings arising from or in relation to the acceptance of this approval and/or the broadcasting, transmission or communication of each advertisement.
6.4 For the avoidance of doubt, the indemnity provided by the Advertiser in clause 6.3 above extends to any act, or failure to act, on the part of Pedestrian and its related bodies corporate and affiliates, including any failure by Pedestrian to apply or produce components (eg. graphical, textual, disclaimers) of the Advertisement.
 “Non-proprietary association” means a body formed for the purpose of promoting and conducting race meetings, that does not distribute profits and is registered to with a controlling body responsible for the type of racing conducted by the relevant body
 “Licensed wagering operator” means a wagering operator that holds a licence or authority (however described) under the legislation of New South Wales or any other State or Territory to carry out its wagering operations (whether in that State or Territory or elsewhere).
7.1 Instructions and Materials
You will supply us with any design instructions, logos, fonts, style guides, product imagery, art work or other 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 or when requested by us shortly thereafter.
7.2 Changes to Custom Materials during Production
You acknowledge that any materials, ideas, talent, headlines and other concepts that we pitched to you prior to commencing production of the Custom Materials were not final and are subject to change to suitable alternatives at our discretion on written notice and discussion with you.
7.3 Timeline for production of Custom Materials
Pedestrian will not commence production of Custom Materials until the Handover Document is received from you. Standard production completion time for Custom Materials is four (4) weeks from execution of the Insertion Order for written content and six (6) weeks for video content unless agreed otherwise with you.
7.4 Approval of Custom Materials
We will use reasonable endeavours to supply mock ups of all Custom Materials for your approval reasonably in advance of the Launch Date. 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 day’s work to complete.
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 (unless such delay is caused by us), we may in our discretion but acting reasonably treat this as a cancellation of the applicable Order or part thereof and we may charge you a Cancellation Fee.
7.5 IP in Custom Materials
Unless specified otherwise in the signed Insertion order, Pedestrian will own all intellectual property rights subsisting in the Custom Materials it creates for you in accordance with these Terms. Pedestrian agrees to use and licence such Custom Materials pursuant to the licence rights set out in clause 9.2 of these Terms unless varied by agreement in writing between you and Pedestrian in the applicable Insertion Order.
7.6 Retention of Custom Materials
Unless otherwise agreed with you, Pedestrian will retain copies of all Custom Materials that are published for you or your client on the Pedestrian Network in perpetuity. However Custom Materials which are produced by Pedestrian pursuant to an Order for Services but which do not get incorporated or otherwise used in the final version of your client campaign published on the Pedestrian Network will only be retained by Pedestrian for six (6) months after the campaign has concluded on the Pedestrian Network before being deleted or otherwise destroyed by Pedestrian at its discretion.
8.1 Your Warranties
You warrant to us that:
- you have all applicable licenses and consents necessary to enter into and perform your obligations under this agreement;
- 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) both you and the advertiser or client on whose behalf you are requesting Services agree 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.
- you have complied and will continue to comply with all applicable laws and regulations in performing your obligations under this Agreement;
- 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;
- the Advertising Copy complies with all applicable laws and regulations and industry guidelines;
- You will comply (and will ensure that your Client complies) with any additional terms imposed by a third party which apply to your use of the Services, as disclosed by us in the Insertion Order;
- the Advertising Copy will not infringe the intellectual property rights of any person;
- 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 Australian law, codes or regulations;
- neither you (nor any research vendor that you engage to conduct any research or study on the Pedestrian Network) will insert any tag, code, cookie, pixel or other data tracking or collection device into the Advertising Copy without our express permission;
- if Advertising contains the name or photographic or pictorial representation of any living person and/or any copy by which any living person can be identified, you have obtained the authority of that person to make use of his/her name or representation on the Advertising Copy;
- 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:
- we have the right to supply the Services to you;
- we will use reasonable care and skill in supplying the Services; and
- we will comply with all applicable laws and regulations in supplying the Services.
8.3 Exclusion of Warranties
We exclude all implied conditions and warranties from this Agreement except any conditions or warranties (such as those implied by the Competition and Consumer Act 2010 (Cth)) which cannot by law be excluded.
9.1 Ownership of IP
Unless otherwise agreed in the Insertion Order, we or our licensors own the intellectual property in the Custom Materials, our trademarks and any other material developed or provided by us under this Agreement. You and your licensors own the intellectual property in any Advertising Copy, your trademarks and any other material you provide to us under this Agreement.
Except as authorised by this Agreement, the parties agree not to:
- reproduce the other party’s intellectual property; or
- sub-license, on-supply or further syndicate the other party’s intellectual property on any website other than our sites.
9.2 Licence of Intellectual Property
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. 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.
Pedestrian will only publish, use or otherwise share the Custom Materials created for you on the Pedestrian Network and in promotional materials produced by Pedestrian unless agreed otherwise in writing with you. You may publish links to the Custom Materials on your owned and operated digital and social channels, however you agree that you may not distribute, publish or otherwise exploit the Custom Materials in any way unless expressly agreed in writing by Pedestrian (with the specifics of such licence agreement including permitted distribution platforms, formats, dates and fees (if applicable) to be agreed between the parties at the time of executing the Insertion Order.)
10.1 Rates and Fees
You will pay the Fees as 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 unless we agree and specify other rates with you in the Insertion Order.
10.2 Changes to Rates
We may change our Rate Card from time to time without notice.
- Cost and Charges
We may charge you additional costs we incur in the provision of Services including (without limitation):
- the cost of obtaining any necessary licenses for any competitions which form part of Creative Services;
- 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;
- 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 the Australian and New Zealand Banking Group.
10.4 GST and Taxes
You are responsible for computing and paying all taxes, duties and other government fees or charges payable or assessed in connection with this Agreement including (without limitation) 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.
We will invoice you monthly for fees and costs due under this Agreement (calculated and payable on Services booked under the applicable Insertion Order.) You will pay the amounts invoiced within thirty (30) days of the date of the invoice (or in the timeframe as otherwise specified in the invoice).
10.6 Credit and your Account
Pedestrian may grant, deny or withdraw credit to you at any time in its discretion.
10.7 Measurement of Advertising
We will measure advertising (including impressions delivered and clicks achieved) through our advertising tracking systems. Results from third party ad-servers will not be accepted for the purposes of billing and assessment of advertising performance.
11.1 Commission Payments
Where you are an Approved Agency you will be entitled to receive a commission equal to ten per cent (10%) of the total amount of your monthly invoiced Fees. Our payment of any commission is conditional upon the following:
- you must fully disclose to your clients the amount of commission you receive from us;
- you must fully comply with this Agreement; and
- your payment in full of invoices within forty-five (45) days.
11.2 Status as an Approved Agency
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. We may revoke your status as an Approved Agency at any time upon written notice without giving any reason.
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.
12.1 Each party must:
- take all action reasonably necessary to maintain the confidentiality of the other party’s Confidential Information; and
- not disclose the other party’s Confidential Information to any person except as permitted under clauses 13(b) and (c) below.
- A party (“recipient”) may disclose the Confidential Information of the other party:
- 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
- which is required or authorised to be disclosed by any law.
12.2 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.
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 or exercise of IP rights under clause 9.
13.2 Limitation of Liability
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. 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.
13.3 No responsibility for Advertising Copy
We are not liable for any aspect of the Advertising Copy including any products or services referred to in the Advertising Copy. 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.
14.1 Applicable law
This Agreement is governed by the laws of New South Wales, Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New South Wales, Australia.
A notice must be in writing to the address of the addressee as stated in the Insertion Order.
14.3 Public statements
You may not issue any press release or make 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 Pedestrian Network in press releases without obtaining your consent.
14.4 No Agency
This Agreement will not create a joint venture, legal partnership, employment or agency relationship between you and us.
Neither party may transfer or assign this Agreement without the other party’s prior written consent (not to be unreasonably withheld).
14.6 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.
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 sensitive financial, medical or sexual data.
You agree to store and use all personal information which we may provide to you in accordance with the requirements of the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth).