EAC Advertising Terms and Conditions
1.1 Estate Agents Co-operative Ltd (ABN 52 079 055 637) (“EAC”, “us”, “our” or “we”) accepts advertising on our properties accessible via the Internet or any other technology system whether existing now or in the future (including but not limited to any EAC owned or controlled websites, mobile sites, email marketing, person to person messaging service (e.g. IM, SMS, MMS and email) and any other form of electronic, emerging or digital communications channel owned or controlled by EAC) (“Online Property”) and any other conventional printed or media channel owned by EAC whether now or at any time in the future (including but not limited to newspapers, magazines and industry press publications) (together with the Online Property, the “EAC Property”) that is specifically referred to in an order for advertising to be placed on EAC Property in the form advised by EAC from time to time (“Advertising Order”).
1.2 EAC and the party identified in an Advertising Order as placing an order for advertising on EAC Property (“Advertiser”, “you” or “your”) agree that each time you submit an Advertising Order to us for the purposes of placing an order for advertising on EAC Property, these terms and conditions (“Terms & Conditions“) and the relevant Advertising Order together constitute an agreement (“Agreement“) between you and us. These Terms & Conditions will be attached to the first Advertising Order submitted to us by you and will apply to that and each subsequent Advertising Order made by you . Each Advertising Order submitted by you following the initial Advertising Order may be made by you simply submitting the relevant Advertising Order form in the manner required by us from time to time, as set out below.
1.3 Information about how to advertise on the EAC Property forms part of these Terms & Conditions. Please carefully read these Terms & Conditions. Each Advertising Order submitted by you is subject to these Terms & Conditions, unless these Terms & Conditions are modified by an express, contrary intention stated on the relevant Advertising Order or otherwise agreed in writing by us. If you do not agree to these Terms & Conditions, you must not submit an Advertising Order to us.
1.4 These Terms & Conditions include any terms set out in any additional forms, documents, materials or other information (“Additional Information“) supplied by us to you from time to time in respect of an Advertising Order. These Terms & Conditions will prevail to the extent of any inconsistency between any Additional Information and these Terms & Conditions.
1.5 We may revise these Terms & Conditions at any time by updating them on our website eac.com.au. Revisions will take immediate effect and may affect your ability to advertise on EAC Property. As you are bound by the most current version of these Terms & Conditions each time you advertise on EAC Property, you should periodically check these Terms & Conditions. Your advertising on EAC Property generally following the posting of any revisions to these Terms & Conditions by us constitutes acceptance of those revisions. We also reserve the right to apply any upgrade, enhancement, change or modification to the EAC Property at any time in our absolute discretion.
2. PLACING ADVERTISING ORDERS
2.1 All details regarding an Advertising Order must be set out in the manner required in the relevant Advertising Order or as otherwise advised by us in writing from time to time. Each Advertising Order must be submitted to us in the manner advised by us from time to time. Each Advertising Order is binding upon our receipt and acceptance of the Advertising Order and cannot be modified, altered or varied unless agreed by us in writing.
3. CANCELLING AND MODIFYING ORDERS
3.1 Unless otherwise advised by us in writing, if you cancel an Advertising Order (or any component of an Advertising Order) within the required time frame of us being scheduled undertake the work to which the cancellation relates as set out in clause 3.2 (or as advised by us from time to time), (including but not limited to publishing advertisement(s) or commencing campaign(s) on the EAC Property), you remain liable to pay us all amounts due to us in respect of the cancelled Advertising Order (or the cancelled component of the Advertising Order, as the case may be) including but not limited to any Charges (as defined below). You may not modify an Advertising Order (or any component of an Advertising Order) without our prior written approval. We shall consider any request to modify an Advertising Order (or any component of an Advertising Order) and decide whether to accept such request (and any terms upon which such acceptance is based) in our sole discretion on a case by case basis. Any request to modify an Advertising Order must be in the manner required by us (as advised by us from time to time).The time frames which an Advertising Order may be cancelled are as follows:
3.1.1 For real estate print publications, 7 days prior to the booking deadline;
3.1.2 For retail print publications, 10 days prior to the booking deadline;
3.1.3 For digital banners, 7 days prior to the booking deadline;
3.1.4 For any other Advertising Orders, 10 days prior to the booking deadline.
4. ADVERTISING RATES
4.1 Our advertising rates are subject to change in our sole discretion. We will use commercially reasonable efforts to notify you of all advertising rate changes at least thirty (30) days in advance of their effective date.
5. PAYMENT OF CHARGES
5.1 The amounts payable by you in respect of an Advertising Order (being the amounts set out in the Advertising Order) are set out in that Advertising Order or as otherwise advised by us in writing (“Charges”). We reserve the right to change the Charges each time you enter into an Agreement with us.
5.2 You must pay all Charges in the manner set out in the relevant Advertising Order or as otherwise advised by us in writing from time to time. If no manner for payment is stated, the payment must be made by direct debit or credit card. We reserve the right to charge a credit card surcharge with the current minimum surcharge being one percent (1%) for Visa and MasterCard (including GST) and one and a half percent (1.5%) for American Express (including GST), subject to increases in the surcharges that we may charge.
5.3 When you place an Advertising Order, you undertake that you are an authorised user of the card or account (as applicable) nominated on the Advertising Order form to pay the Charges, that the card or account (as applicable) details provided are current, correct and complete and that your nominated card or account (as applicable) will cover the full amount of the Charges. You must not pay, or attempt to pay, any Charges through any fraudulent or unlawful means. Upon receiving your Advertising Order, we may carry out a standard pre-authorisation check of your nominated card or account (as applicable) to verify the details provided and to ensure there are sufficient funds to fulfil the transaction. The relevant advertising may not be placed until this pre-authorisation check has been completed.
5.4 If your Advertising Order is accepted by us, you authorise us to debit the amount that is payable for the services selected on that Advertising Order from your nominated card or account (as applicable) in order to pay the Charges. You must pay all Charges in full strictly within the timeframe set out in the relevant Advertising Order or as otherwise advised by us in writing from time to time. If no timeframe for payment is stated, the payment must be received by us no later than thirty (30) days from the date of the corresponding tax invoice for the applicable Advertising Order. We allow an early payment discount of one percent (1%) to active member shareholders of EAC only, provided that we receive payment in full within fifteen (15) days from the date of the corresponding tax invoice for the applicable Advertising Order.
5.5 If you fail to pay any Charges or we are unable to successfully process your payment of any Charges within the timeframe required (as applicable), we reserve the right to charge a late payment fee calculated at a rate of ten percent (10%) per annum but no less than $10.00 per month. This amount represents a genuine and reasonable estimate of such costs and expenses associated with managing and processing late payments. We also reserve the right to withdraw credit facilities (where applicable) at any time and only provide the applicable Advertising Order on a cash-on-delivery basis thereafter. You may also be liable to pay interest on any amount outstanding at the rate of two percent (2%) over the base rate for $100,000.00 + overdrafts quoted by National Australia Bank in Sydney on the date the payment becomes due and you may also be responsible for all reasonable expenses incurred by us as a result of such late payment (including but not limited to costs incurred by us to recover any unpaid amounts). Without limiting our rights, in the event you fail to pay any Charges within the timeframe and in the manner required, we reserve the right to suspend performance of our obligations under the Agreement (including but not limited to suspending your access to all services provided by EAC) or terminate the Agreement.
6.1 Words or expressions used in this condition which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in this condition. You will pay all taxes, duties and other government charges payable or assessed in connection with the Advertising Order whether applying as at the date of the Advertising Order or in the future 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 or the income of our related parties. If GST has application to any supply made by one of the parties under an Advertising Order, then the party making that supply may, in addition to any other amount or consideration expressed as payable in that Advertising Order, recover from the other party an additional amount on account of GST, such amount to be calculated by multiplying the amount or consideration payable by that other party for the supply by the prevailing GST rate. Unless GST is expressly included, the consideration expressed to be payable under this Advertising Order for any supply made under or in connection with an Advertising Order does not include GST.
7 ADVERTISER OBLIGATIONS
7.1 You must not re-sell, assign or transfer any advertising space allocated to you in accordance with an Advertising Order at any time.
8. SUBMISSION OF ADVERTISING MATERIAL
8.1 You must submit to us any and all material and content for advertising upon the EAC Property, including without limitation, information, data, literary works (including compilations of information, text, data, scripts, interactive features, applications, files, software and computer programs), dramatic works, musical works, artistic works (including drawings, paintings, computer generated graphics, tags, designs and photographs), sound recordings, cinematograph films (including video games) and any other material of a nature or type that can be uploaded via the Internet or any other technology to the EAC Property (“Advertiser Material”) including any logo, trade mark or indicia of the Advertiser (“Advertiser Brand”), where required) in respect of each advertisement and/or campaign set out in an Advertising Order or as otherwise advised by us in writing prior to the date the relevant advertisement or campaign is scheduled to commence or publish on the EAC Property within the timeframes as follows:
8.1.1 For real estate print publications, 1 day prior to the publishing deadline;
8.1.2 For retail print publications, 2 days prior to the publishing deadline;
8.1.3 For digital banners, 7 days prior to the publishing deadline.
8.1.4 For any other Advertising Orders, 10 days prior to the publishing deadline.
8.2 Any Advertiser Material supplied to us must be in the manner and format required by us. If you fail to provide the required Advertiser Material within the timeframes referred to above or do not provide the Advertiser Material in the manner and/or format required by us, we may, in our sole discretion, refuse to publish the relevant advertisement or campaign on the EAC Property without any liability to you and you will be required to pay any Charges applicable to that advertisement/campaign. Alternatively, we may, in our sole discretion, offer to continue to fulfill the Advertising Order in the manner required, but charge you a surcharge (in addition to the Charges) for the additional work required (the amount of such surcharge to be determined and advised to you by us at the relevant time).
8.3 Notwithstanding the above, we reserve our rights under this condition 8 at all times to refuse to publish an advertisement or campaign that forms part of the Advertising Order if you fail to supply the relevant Advertiser Material in the manner or within the timeframes required. Any such rejection or refusal to publish by us will be deemed to constitute a rejection of the relevant Advertiser Material but does not constitute a breach of the Agreement or otherwise entitle you to any legal remedy. You grant to us a non-exclusive licence to use each of the Advertiser Material and the Advertiser Brand solely for the purpose, and to the extent necessary, to enable us to perform our obligations under this Agreement.
9. LINKS TO WEBSITES
9.1 You warrant and represent to us that each website represented by any website address (“URL”) shown or embedded in any advertisement (as applicable) forming part of an Advertising Order:
9.1.1 is controlled and operated by you or your independent contractor or client (in the event you are an advertising agency applying on behalf of your own client);
9.1.2 will be functional and accessible at all times;
9.1.3 will at all times operate in compliance with all applicable laws including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by-laws, rules, regulatory principles and requirements, statutory rules of an industry body, statutory mandatory codes of conduct, writs, orders, injunctions, judgments, and Australian generally accepted accounting principles (“Laws”), all industry codes of conduct or practice applicable to you or your business activities including any industry codes of conduct that are prescribed by any Laws or by virtue of the your membership of an industry body or professional association (or similar) (“Industry Codes”) and the requirements or directions of any relevant regulatory agency or any private entity that functions in a quasi-regulatory manner having any applicable jurisdiction (including the Advertising Standards Bureau, the Australian Association of National Advertisers, the Australian Communications and Media Authority, the Australian Competition and Consumer Commission, the Commonwealth Department of Broadband, Communications and the Digital Economy, the Office of the Australian Information Commissioner, the Classification Board, the Telecommunications Industry Ombudsman and any authority, agency or entity that is substituted for, or takes over the functions of, any of those organisations) (“Regulators”); and
9.1.4 is suitable in all respects including the type of subject matter to be linked to and from the EAC Property containing the relevant advertisement (or simply referred to on the EAC Property containing the relevant advertisement, as applicable).
9.2 We may test all relevant URLs, and may remove any URL included in an advertisement forming part of an Advertising Order which, in our sole discretion, fails to comply with the any of the above requirements at any time.
10. RIGHT TO REJECT ADVERTISING ORDER
10.1 We reserve the right to reject or cancel an Advertising Order (or component of an Advertising Order) at any time in our sole discretion. Any failure by us to publish any advertisement or campaign set out in an Advertising Order will be deemed to constitute a rejection of the relevant Advertising Order (or component of the Advertising Order, as applicable) but does not constitute a breach of this Agreement or otherwise entitle you to any legal remedy. You agree that we may, in our sole discretion and without notice to you, remove from any advertisement or campaign included in an Advertising Order any material, content or information (including Advertiser Material and Advertiser Brand) that we reasonably believe to be a trade mark, trade name, company name, product name or brand name belonging to or claimed by a third party, or a breach of any present or future intellectual property rights of whatever nature anywhere in the world, including, but not limited to, rights in respect of or in connection with copyright, inventions (including patents), trade marks, service marks, trade names, domain names, designs, confidential information, trade secrets and know-how and similar industrial, commercial and intellectual property rights, whether or not registered or registrable, and includes the right to apply for the registration of such rights, and whether existing in Australia or otherwise (“Intellectual Property Rights”) of a third party, Laws, Industry Codes, the requirements of any Regulator or these Terms & Conditions generally.
11. COMPLIANCE WITH NOTIFICATIONS
11.1 If we receive any notice, request, direction or instruction sent by a Regulator to us (“Notification”) in respect of an advertisement or campaign published on or in the EAC Property in accordance with an Advertising Order and the Notification requires a response or action from us, we may, without any liability to you, take any steps necessary in order to respond or comply with a Notification (to the extent we are legally authorised and obliged to do so) to ensure compliance with any relevant Regulator requirements and/or Laws (as applicable) and we may take these steps at any time and without further notice to you.
12. POSITIONING AND STYLE
12.1 Except as otherwise expressly provided in an Advertising Order, positioning of advertisements on the EAC Property is in our sole discretion and we make no warranty or representation to you that any advertisement(s) or campaign(s) included in an Advertising Order will be placed in any specific section or area of the EAC Property. If an Advertising Order relates to an advertisement that simulates our editorial matter in appearance or style, or that is not readily identifiable as an advertisement, we may, in our sole discretion, label any advertisement as an “advertisement” for clarification and may stipulate other conditions to ensure that it is clear that the advertisement is not our editorial matter.
13. OPERATION OF EAC PROPERTY
13.1 Where an Advertising Order relates to publishing an advertisement or a campaign on any Online Property, we make no representations or warranties to you regarding the functionality and performance of that Online Property (including but not limited to the “up time” of any Online Property), that the relevant Online Property will be fault or error free during the period of time that any advertisement(s) or campaign(s) included in the Advertising Order will be posted on that Online Property or that any errors or interruptions will be rectified within any particular time period. Where an Advertising Order relates to publishing an advertisement or a campaign on any EAC Property that is to be distributed by physical “home delivery” (including but not limited to newspapers, magazines and industry press publications), we make no representations or warranties to you that the relevant EAC Property will be delivered to all residences that subscribe to or are otherwise within the circulation footprint of the relevant EAC Property and/or that all copies of the relevant EAC Property will be delivered to residences that subscribe to or are otherwise within the circulation footprint of the relevant EAC Property on the day that the EAC Property is due to be delivered.
14. ADVERTISEMENTS FOR COMPETITIONS AND PROMOTIONS
14.1 If an Advertising Order relates to a competition or promotion being published by you (or your client if you are an advertising agency), you:
14.1.1 acknowledge and agree that we are not the promoter;
14.1.2 will ensure that the relevant advertisement and/or campaign does not imply that we are the promoter;
14.1.3 will ensure that the correct identity of the promoter is set out in the relevant advertisement and/or on the website represented by the hyperlink embedded in the relevant advertisement (where applicable); and
14.1.4 will ensure that all applicable permits have been obtained, and all applicable regulations and advertising requirements governing the conduct of the relevant competition/promotion have been complied with.
15. USAGE STATISTICS
15.1 We make no guarantees with respect to usage statistics or levels of impressions (as applicable) for any advertisement or campaign included in an Advertising Order (unless otherwise specified in that Advertising Order). You acknowledge and agree that if the Advertising Order states that we must fulfill certain delivery obligations, the delivery statistics provided by us are to be considered the official, definitive measurements of such obligations. Notwithstanding any other provision in these Terms & Conditions, if the Advertising Order specifically states that we must deliver a certain number of “page views” in respect of an advertisement or campaign being published on Online Property and we fail to achieve the stated obligation, we may, in our sole discretion, elect to either provide you with a pro rata refund of the Charges relating to that advertisement or campaign (which represents the undelivered “page views”) or place or publish (as applicable) the relevant advertisement or campaign (as applicable) at a later time in a comparable position (on terms agreed between you and us at the relevant time) or extend the period of time that advertisement or campaign was intended to be published on the Online Property until the required total of “page views” are achieved.
16.1 In the event that you wish to extend the advertisement(s) or campaign(s) included in an Advertising Order, we may accept or reject such a request from you in our sole discretion. If we agree to accept such a request from you, you shall pay us such further Charges as are agreed between you and us at the relevant time.
17.1 The Agreement shall commence on the date of the relevant Advertising Order and shall continue for the term set out in that Advertising Order. We may terminate an Advertising Order (or any component of an Advertising Order) and this Agreement immediately upon written notice to you if you breach this Agreement, any of the warranties or indemnities given by you in these Terms & Conditions or if you fail to pay any Charges in the manner required. You will be required to pay all amounts outstanding at the effective date of any termination or expiration of an Advertising Order and this Agreement (including all Charges outstanding at the effective date of any termination or expiration and any applicable early termination charges and/or reasonable costs incurred by us in collecting the outstanding amounts). Termination or expiration of an Advertising Order or this Agreement will not affect your payment obligations or any other accrued rights or liabilities of either party or any provision of this Agreement that is expressly or by implication intended to continue in force after termination or expiration, including but not limited to the warranties and indemnities provided by you under these Terms & Conditions, which will survive and remain in full force and effect in respect of the performance of all of your relevant obligations.
18. ADVERTISER WARRANTIES
18.1 You warrant and represent that:
18.1.1 you have full power and authority to complete and submit an Advertising Order and perform and observe all of the terms and provisions set out in this Agreement;
18.1.2 if your employee or any other person is placing an Advertising Order on your behalf, that such employee or other person has full legal authority to complete and submit an Advertising Order.
18.1.3 each Advertising Order has been duly executed and submitted by you and constitutes a legal and binding agreement between you and us;
18.1.4 our use of any Advertiser Material or the Advertiser Brand in accordance with this Agreement will not infringe the rights (including Intellectual Property Rights) of any third party; and
18.1.5 the Advertiser Material or the Advertiser Brand will not contain:
188.8.131.52 any information or subject matter that is illegal or contrary to any Laws, contrary to any applicable advertising self-regulation codes of practice prescribed and promoted by the Australian Association of National Advertisers and any codes of practice amending or superseding these codes (“AANA Codes of Practice”), contrary to any applicable Industry Code, contrary to the codes administered by the Advertising Standards Bureau, contrary to the requirements or directions of relevant Regulators, indecent, obscene, threatening, discriminatory, harassing, in breach of any confidence, defamatory, libellous, offensive or objectionable;
184.108.40.206 any viruses, Trojans, or other malicious code;
220.127.116.11 false, misleading or deceptive or likely to mislead or deceive;
18.104.22.168 any misrepresentations or suggestion that any entity has the approval or sponsorship of any other entity which it does not have; or
22.214.171.124 any content that relates to financial matters and would require us to hold any particular financial services licence
19. ADVERTISER INDEMNITIES
19.1 You agree to indemnify, and must defend and hold harmless, EAC and our related corporations, including our personnel, servants and agents, from and against all loss, damage, liability, charge, expense or cost (including all reasonable legal and other professional costs on a full indemnity basis) of any nature or kind (“Losses”) arising from:
19.1.1 your breach of any provision of this Agreement, including any Advertiser warranties in condition 18 of these Terms & Conditions;
19.1.2 any third party claim arising directly or indirectly from a breach by you of any of your obligations under any Advertising Order and this Agreement;
19.1.3 any negligent, wilful, fraudulent, dishonest or otherwise wrongful act or omission by you or any of your personnel;
19.1.4 any breach by you of any applicable Laws, AANA Codes of Practice or Industry Codes or the requirements or directions of relevant Regulators;
19.1.5 any claim by any third party (including individuals, legal entities and governmental departments or agencies) arising directly or indirectly as a result of us fulfilling our obligations in accordance with an Advertising Order and this Agreement;
19.1.6 the death of, or personal injury to, any person, to the extent caused by any act or omission of any of your members or personnel;
19.1.7 any damage to, or loss or destruction of, any real or tangible personal property, to the extent caused by any act or omission of any of your members or personnel;
19.1.8 any breach by you of your confidentiality obligations; or
19.1.9 any claim or allegation that the Advertiser Material or the Advertiser Brand infringes a third party’s Intellectual Property Rights or constitutes an unlawful disclosure or misuse or misappropriation of another parties trade secret or confidential information.
20. OWNERSHIP OF MATERIAL
20.1 All right, title and interest in the EAC Property and all Intellectual Property Rights in any material, documents, media and property (in draft or final form) purchased, prepared, created, developed or acquired by us (including material acquired by us from a sub-contractor or third party) prior to the Advertising Order or independent of this Agreement (“EAC Material”), including the collective industry, information or know how gained and owned by EAC through the conduct of its business by its owners, employees and contractors (whether written or unwritten) including but not limited to EAC’s: systems, methods, technologies and affairs; financial approaches, strategies, directions, concepts, plans; research, development, operational, legal, marketing or accounting information, concepts plans, strategies, directions or systems; technology, inventions, discoveries, improvements, processes, formulae, techniques, understandings & insights, manuals, instructions, source & object codes for computer software; supplier information; and proprietary computer software and systems (“Know How”), will remain or be vested in us and/or our licensors and may not be used by you except as permitted in these Terms & Conditions. Nothing in these Terms & Conditions will be taken to constitute a transfer, assignment or grant of any ownership rights in the EAC Property or the EAC Material including Know How.
20.2 All right, title and interest in all Intellectual Property Rights in the Advertiser Material and Advertiser Brand will remain with you and/or your licensors and may not be used by us except as permitted in these Terms & Conditions. Nothing in these Terms & Conditions will be taken to constitute a transfer, assignment or grant of any ownership rights in the Advertiser Material or the Advertiser Brand.
21.1 Each party must not, without the prior written approval of the other party, disclose or use the other party’s confidential or secret information relating to the Party (or any associated entity or client of the party), its products, business methods, methods of operation, systems, processes, computer programs, finances, trade secrets, lists of clients and prospective clients and other confidential or secret information of the party (or any associated entity or client of the party) which by its nature or the circumstances of its disclosure could reasonably be expected to be regarded as confidential (“Confidential Information”). A party will not be in breach of this condition in circumstances where it is legally compelled to disclose the other party’s Confidential Information, the other party’s Confidential Information was in the public domain at the time it was supplied to the party, the other party’s Confidential Information became part of the public domain after its provision to the party other than through a disclosure by the party (or any person to whom the party had disclosed that information), or the other party’s Confidential Information came lawfully into the possession of the party other than as a result of a disclosure in breach of this condition. Each party must ensure that its employees and agents, and any sub-contractors engaged for the purposes of the Advertising Order do not make public, use or disclose the other party’s Confidential Information. Notwithstanding any other provision of this condition, a party may disclose these Terms & Conditions to its related companies, solicitors, auditors, insurers and accountants. This condition will survive the termination of the Advertising Order and this Agreement.
23.1 This entire condition and any other limitations in the Agreement, including these Terms & Conditions, do not apply to any Consumer Guarantee under the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)) (“Australian Consumer Law”) or to any of our liability for failure to comply with a Consumer Guarantee under the Australian Consumer Law. To the fullest extent permissible by law, advertising on the EAC Property, the EAC Property and its entire contents are provided on an “as is” and “as available” basis without any warranties of any kind either expressed or implied. We disclaim all warranties of merchantability, non-infringement and fitness for a particular purpose. In no event will we, our affiliates and related entities, servants, employees and agents, be liable to you for any form of loss, damage, liability or expense whatsoever arising from any act or omission by you (including where you have failed to deliver the Advertiser Material, Advertiser Brand or other information or documents or instructions in the manner required), a third party service provider or contractor to us or any discrepancy, fault or malfunction of any EAC Property or third party telecommunications system, software, system or computer server or any other technology based platform, including but not limited to consequential, indirect, incidental, or special damages, damages for loss of profits, business interruption, loss of or unauthorised access to information, loss of reputation, loss of goodwill, loss of data and the like, even if we have been advised of the possibility of such damages. You agree that you assume total responsibility and risk for your advertising on the EAC Property and your sole remedy against us for dissatisfaction with such advertising on the EAC Property or the content communicated in the course of, or in connection with, the Agreement is to stop advertising on the EAC Property. In no event will we, our affiliates and related entities, servants, employees and agents, be liable to you for an amount in excess of the total dollar amount actually received by us from you in accordance with the Advertising Order and this Agreement.
23.2 You acknowledge that we have not made any warranties in respect of the success or otherwise of advertising upon the EAC Property or any other media, marketing communications channel, marketing or advertising campaign, promotion or advertisement. We will use our reasonable commercial endeavours to achieve the service and deliverables as set out in the Advertising Order.
23.3 If the Agreement constitutes a supply of goods and/or services to a Consumer then, subject to the limitation to this condition below and unless the goods and/or services are Consumer Goods or Consumer Services, our liability for a breach of these Terms & Conditions, including any liability for any Losses or consequential Losses which you may suffer or incur because of a failure to comply with a Consumer Guarantee will be limited as we may elect in our absolute discretion, in the case of services supplied or offered by us, to either: (a) supplying the services again; or (b) paying the cost of having the services supplied again; or, in the case of goods supplied or offered by us: (c) replacing the goods or supplying equivalent goods; (d) repairing the goods; (e) paying the cost of replacing the goods or acquiring equivalent goods; or (f) paying the cost of having the goods repaired. This condition does not apply if it is not Fair or Reasonable for us to rely on it. Words or expressions used in this condition which are defined in the Australian Consumer Law have the same meaning in this condition.
24. FORCE MAJEURE
24.1 We will make reasonable efforts to keep the advertisements on the EAC Property and the EAC Property operational, however technical difficulties or maintenance may, from time to time, result in temporary interruptions. We reserve the right, at any time, to modify or temporarily suspend advertisements on the EAC Property or functions or features on the EAC Property, with or without notice, all without liability to you for any interruption, modification or suspension of the advertisements on the EAC Property, the EAC Property itself or any function or feature thereof. We will not be liable for any problems or failures caused by circumstances outside our control including but not limited to power outages, surges, data loss and failure from third party software that may occur whilst we are performing our obligations under the Agreement.
25.1 We will not be taken to have waived or modified any of term of the Agreement except by an express statement in a document signed by a duly authorised representative of EAC.
26.1 You may not assign any of its rights in the Agreement without our prior written consent. We may assign the Agreement, including our rights or obligations under it, upon written notice to you, provided that the relevant assignee undertakes to perform all of our obligations herein.
27.1 If any provision of the Agreement is found invalid or unenforceable pursuant to judicial decree or decision, the remaining provisions will remain valid and enforceable, and the unenforceable provisions will be taken to be modified to the extent necessary to make them enforceable.
28. ENTIRE AGREEMENT
28.1 This Agreement embodies the entire agreement between you and us and supersedes all prior and contemporaneous agreements, arrangements and understandings between you and us with respect to its subject matter. All existing agreements between you and us (if any) are, by agreement, hereby terminated and of no further legal effect except for any provisions in such agreements that by their nature are intended to survive termination or expiration. We agree to provide you with advertising space upon EAC Property on and subject to the terms of each Advertising Order and this Agreement. No additional Advertiser originating agreement or other Advertiser terms & conditions may be imposed on us unless agreed by us in writing and in such event, this Agreement shall prevail to the extent of any inconsistency between any terms & conditions in an Advertiser originating agreement or other Advertiser terms & conditions and this Agreement. The Agreement does not create a joint venture, partnership, employment, or agency relationship between the parties.
28.2 Any additional forms, documents, materials or other information forms part of this Agreement. New forms, documents, materials or other information may be inserted or forms, documents, materials or other information may be amended or updated from time to time in writing by agreement between the parties. Any new or amended forms, documents, materials or other information will then form part of this Agreement. The parties must comply with the terms set out in any additional forms, documents, materials or other information to this Agreement as operative terms of this Agreement. This Agreement shall prevail to the extent of any inconsistency between any term in any such additional forms, documents, materials or other information and this Agreement.
28.3 Our decision in relation to all aspects of the Agreement, the EAC Property and advertising on the EAC Property is final and no correspondence will be entered into.
29. GOVERNING LAW
29.1 The Agreement is governed by the laws of New South Wales, Australia. Each party irrevocably submits to the jurisdiction of the courts of New South Wales, Australia and the Federal Court sitting in New South Wales, Australia. We may send electronic mail to you for any notices or notifications. All notices to us relating to any legal claims or matters must be made in writing to us at our address in condition 30 of these Terms & Condition. The Agreement does not create a joint venture, partnership, employment, or agency relationship between the parties.
30. OUR CONTACT DETAILS
30.1 Please direct to us any queries you may have regarding any advertising on the EAC Property. You may contact us via:
mail: 2A 175 James Ruse Drive, Rosehill NSW 2142;
telephone: 1300 137 161; and