Healthily TV: Advertising Terms and Conditions

Background

1. Healthily Pty Ltd (HLY) owns, runs and operates the patient education television channel, Healthily TV, in hospitals around Australia.
2. The Advertiser is an organisation that wishes to communicate with potential customers or members viewing Healthily TV.
3. The Advertiser is the party which is listed in the Advertising Order and the Advertiser wishes to purchase from HLY advertising services in connection with Healthily TV.
4. The terms and conditions set out in this Agreement are incorporated into the Advertising Order and govern the provision of services by HLY to Advertiser.

Agreement

1. Advertising placement and refunds

1. Refunds and cancellations

1. Advertiser is eligible for a refund of 50% of the Agreed Advertising Fee in the following circumstances:

1. where Advertiser is not in breach of any term of this Agreement and Advertiser cancels an Advertising Order with written confirmation more than 7 days before the start of a Campaign the Advertising Order relates to, and
2. where Advertiser is not in breach of any term of this Agreement and HLY cancels an Advertising Order under clause 16(a).

2. HLY will not refund any amounts paid to it by Advertiser in connection with this document in the following circumstances notwithstanding the non or part provision of the Services:

1. where Advertiser has breached any provision of this Agreement
2. where HLY terminates this Agreement with cause
3. where all Content required by HLY in order to provide the Services is not provided by Advertiser by the Submission Deadline
4. where Advertiser cancels an Advertising Order less than 7 days before the start of a Campaign, and
5. where Advertiser supplies incomplete or incorrect data, Content or information, or supplies data, Content or information that does not meet HLY’s specifications as set out by HLY in advance and Advertiser acknowledges it will have no claim for any refund of any amounts paid in such circumstances.

2. Content placement

1. Notwithstanding anything to the contrary in this Agreement, HLY does not guarantee or promise any particular placement or position for any Content in connection with Healthily TV and if Content is not provided by the Submission Deadline HLY may without further recourse (or any liability) to Advertiser:
2. substitute alternate material held by HLY, or
3. not provide the Advertising and replace the allocated positioning and time slots to a third party.

2. Charges

1. Advertiser will:

1. on signing an Advertising Order pay the Initial Fee, which may be either a deposit of 25% of the Agreed Advertising Fee (for bookings further than 75 days prior to a Campaign), a deposit of 50% of the Agreed Advertising Fee (for bookings made between 75 days and 30 days prior to a Campaign), or payment of the full Agreed Advertising Fee (for bookings made within 30 days of a Campaign)
2. pay the Charges as invoiced and in accordance with this Agreement to HLY.

2. HLY will submit to Advertiser invoices in relation to the Services.
3. All sums due in connection with the Services must be paid by Advertiser within 14 days of the date of an invoice issued by HLY.
4. Advertiser may not set off, deduct or withhold payments to HLY for any reason whatsoever.
5. HLY will charge interest on any amount due and not paid in accordance with this Agreement at a rate of 5% above the Commonwealth Bank of Australia then current published variable rate and Advertiser acknowledges this interest charge is a fair and reasonable remedy for HLY in connection with non payment and is a reasonable pre-estimate of the loss HLY will suffer due to non payment.
6. In the event that the Advertiser commits a default under the Advertising Agreement, the Advertiser shall pay to HLY on demand all costs and interest including without limitation all interest accrued and calculated pursuant to clause 2 (e), legal costs (assessed on a solicitor/own client basis), all mercantile agent’s fees incurred by HLY in recovering all amounts outstanding under this Agreement and any dishonour or bank fees incurred by HLY relating to payments made by the Advertiser from time to time.

3. Term and services

1. In relation to each Advertising Order, this Agreement will commence on the Commencement Date and will continue in force until the end of the Campaign the Advertising Order relates to.
2. HLY will provide the Services to Advertiser in accordance with the terms of this Agreement.

4. Interpretation and definitions

1. Interpretation

In this Agreement:

3. references to any law or regulation includes any change, consolidation, replacement, re-enactment or extension of the law or regulation
4. reference to a document is a reference to the document as from time to time supplemented or varied
5. references to clauses, and parties are to clauses and parties to this Agreement
6. headings are for reference only and do not affect the meaning of this Agreement
7. references to $ or dollars means Australian dollars
8. the plural implies the singular and vice versa.

2. Definitions

1. In this Agreement the following expressions have the meanings stated:
2. Act means the Privacy Act 1988 (Cth).
3. Advertising Order means a request made by Advertiser for advertising on HLY standard advertising order form.
4. Agreement means the agreement between HLY and Advertiser for the provision of Services as set out in this Agreement and an Advertising Order. An Advertising Order may be presented in writing or via email with confirmation by an authorised representative of the Advertiser constituting the Agreement.
5. Agreed Advertising Fee means the overall fee agreed between HLY and Advertiser for the provision of Services as set out in this Agreement and an Advertising Order.
6. Campaign means a planned series of television advertisements broadcast on Healthily TV in order to sell a product or promote a service or health promotion message.
7. Charges means the charges to be paid by Advertiser for the Services calculated in accordance with the Rate Card.
8. Claim means any claim made under or in connection with this Agreement or its subject matter, whether arising under contract, negligence or any other tort, under statute or otherwise.
9. Commencement Date means the date of the Advertising Order.
10. Confidential Information includes all written, electronic or oral information relating to the business or assets of each party and its customers, clients and suppliers; the terms or subject matter of this Agreement, and the negotiations relating to this Agreement.
11. Content means all materials provided to HLY by Advertiser in connection with the Services.
12. GST means a good and services tax, value added tax, consumption tax or services tax.
13. Intellectual Property Rights means all copyright and rights in the nature of copyright, design rights, patents, trade marks, data base rights, applications for any of the above, moral rights, know-how, domain names or any other intellectual or industrial property rights (and any licences in connection with any of the same) whether or not registered or capable of registration and whether subsisting in Australia or any other part of the world.
14. Rate Card means the then current rates for advertising services published by HLY from time to time.
15. Services means the provision of advertising and associated services specified in an Advertising Order to be provided by HLY to the Advertiser.
16. Submission Deadline means the date specified as such on an Advertising Order.

5. GST

1. The Charges and all other amounts payable under this Agreement are expressed exclusive of GST. If GST is payable as a consequence of any supply made (or deemed to be made) by one party to the other in connection with this Agreement, the party receiving the supply must pay to the party making the supply an amount equal to the GST payable in respect of the supply, in addition to the Charges or other consideration (if any) required to be paid under any other provision of this Agreement.

6. Co-operation and deadline

1. Advertiser will co-operate with HLY in all respects in connection with the provision of the Services.
2. Advertiser will submit all things (including Content) to HLY before the Submission Deadline

7. Warranties

1. Advertiser represents and warrants that:
2. It is duly incorporated in accordance with the laws of its jurisdiction, validly exists under those laws and has capacity to sue or be sued in its own name and to own its property and conduct its business as it is being conducted
3. It has capacity unconditionally to sign and deliver and comply with its obligations under this Agreement
4. It is not insolvent and by entering into this Agreement and receiving the Services it is not breaching any laws
5. HLY may use the Content in connection with Services without restriction,
6. The Content and use of the Services do not, and will not at any time, infringe any Intellectual Property Right or any other right of any person, and
7. Any information that it has given to another party in connection with this Agreement is true and accurate in all material respects and not misleading in any material respect (including by omission) as at the date of this Agreement or, if given later, when given.
8. Advertiser acknowledges that HLY has entered into this Agreement in reliance upon the representations and warranties in this clause which are ongoing.

8. IT security and data

1. Advertiser warrants that all Content and data provided to HLY is free from errors, bugs, viruses, malicious code, Trojan horses, worms and the like.
2. Advertiser warrants that all Content provided is compliant with the Act and that all required consents have been acquired, as required, to allow HLY to use all data provided by Advertiser in connection with this Agreement, and further, that HLY’s use of the Content or provision of Services to Advertiser will bring not HLY into breach of the Act.

9. Intellectual property and reputation

1. All Intellectual Property Rights in Healthily TV and any content created in connection with Campaigns are owned by HLY and no third party (including Advertiser) may re-produce or use such content without HLY’s express and written consent.
2. HLY reserves all rights to deliver Healthily TV and the Services in any way it sees fit and Advertiser acknowledges that HLY has total control over the content, look, feel and playlists.
3. Advertiser will promptly give notice to HLY of any suspected infringement of HLY’s rights in connection with Healthily TV and any Campaign.
4. Advertiser will not do anything, or omit to do anything that in any way brings HLY (and its officers, employees and agents), or any Campaign into disrepute or into breach of any law.

10. Public announcements and promotion

1. Advertiser will not make any announcements or disclosures in relation to this Agreement or the Services, including press releases or other communications to the public, without the prior written consent of HLY, which can be provided or withheld in its absolute and unfettered discretion.

11. Liability

1. Subject to and without limiting clauses 11 (2), (3) and (4) below, the total aggregate liability of HLY for a Claim or Claims under or in connection with this Agreement arising from all matters occurring in connection with a Campaign is limited to 50% of the Charges paid by Advertiser to HLY in connection with that Campaign.
2. The law implies various terms, conditions, guarantees and warranties which may apply to HLY supplying goods or services to Advertiser. HLY excludes all of those terms, conditions, guarantees and warranties, and any other term condition, guarantee and warranty that might have otherwise have been implied by custom or otherwise, to the full extent permitted by law.
3. Provisions of the Competition and Consumer Act (Cth) 2010 in some cases either cannot be excluded, restricted or modified, or can only be restricted or modified to a limited extent. If any such provisions do apply, then to the extent permitted by law HLY’s liability under those provisions is limited;

1. in relation to goods is limited to replacement of the goods or the supply of equivalent goods, or repair of the goods, or payment of the cost of replacing the goods or of acquiring equivalent goods, or payment of the cost of having the goods repaired; and
2. in relation to services is limited to the supplying of the services again, or the payment of the cost of having the services supplied again.

4. To the extent permitted by law, HLY will be liable to Advertiser in respect of any Claim (whether such claim is made under an indemnity or otherwise) or on any other basis for any loss of profit, goodwill or business, loss of or damage to data, loss of opportunity, increased financing costs, any failure to realise anticipated savings or for any consequential, indirect, special, punitive, remote or incidental damages.

12. Confidentiality

1. Each party will keep the other party’s Confidential Information confidential, not disclose any Confidential Information to a third party, other than as will of necessity acquire it as a consequence of the performance of that party™s obligations under this Agreement, and use Confidential Information only in connection with the proper performance of this Agreement.
2. Clause 12(1) will not apply to any Confidential Information to the extent that it comes within the public domain other than through breach of clause 12(1), is required or requested to be divulged by any authority with competent jurisdiction to which either party is subject, wherever situated, is known to the receiving party before the disclosure to it, or is disclosed with the other party™s prior written approval to the disclosure.

13. No reliance

1. HLY relies on the statements set out in this clause 13 as essential conditions of this Agreement. Advertiser has not relied on any representation made or implied by HLY or arising out of or implied by its conduct save for as expressly set out in this Agreement. To the extent that HLY has made or implied, or by conduct given rise to or implied, any representation that is not expressly stated in these conditions, Advertiser is not proceeding in reliance on the representation. HLY makes no promise, representation or otherwise in relation to any benefit Advertiser may obtain by entering into this Agreement save as set out herein and HLY guarantees in no way any increased sales, transactions, revenue, goodwill or profit or any other benefit that may flow from Advertiser having entered into this Agreement.

14. Indemnity

1. Advertiser will indemnify HLY from and against all Claims, demands, actions, costs, expenses, liabilities and damages or losses (including all interest, penalties and legal and other professional costs and expenses) incurred by HLY and its officer, employees or agents as a result of any claim or action by any third party in connection with the Services and as a result of the negligence of or breach by or malpractice and fraud on behalf of Advertiser.

15. Relationship of the parties

1. HLY is an independent contractor dealing at arm’s length and nothing in this Agreement will be deemed to constitute a partnership, joint-venture, co-ownership or any employment relationship between the parties nor will anything in this Agreement be deemed to constitute one party as the agent of the other.

16. Termination

1. HLY may terminate an Advertising Order at any time prior to a Campaign without cause.
2. HLY may terminate this Agreement immediately where any amount due to be paid to it by Advertiser is overdue.
3. If a party (Defaulting Party):

1. commits a breach of any of the terms of this Agreement which:

1. is not capable of remedy, or
2. is capable of remedy, but the Defaulting Party fails to remedy such breach within 5 days of receiving notice from the other party specifying the breach and requiring the breach to be remedied,
3. this Agreement will terminate with immediate effect upon the other party giving to the Defaulting Party notice in writing of such breach or failure.

4. Either party may terminate this Agreement with immediate effect by writing to the other party if the other party ceases or threatens to cease to trade (either in whole, or as to any part or division involved in the performance of this Agreement), or becomes insolvent, or is (or in the reasonable opinion of the other part is likely to be) unable to pay its debts as they fall due, or has a receiver, administrative receiver, administrator or manager appointed of the whole or any part of its assets or business, or makes any composition or arrangement with its creditors, or an order or resolution is made for its dissolution or liquidation (other than for the purpose of solvent amalgamation of reconstruction) or takes or suffers any similar or analogous procedure to of any of the events described at clause 16(c) to clause 16 (d) in any jurisdiction.
5. Where a party terminates this Agreement in accordance with its terms it may sue for (but not limited to) any loss or damage in any way connected to the loss of future benefit of this Agreement.

17. General

1. Termination or expiry of this Agreement (howsoever occurring) will not affect either of the parties accrued rights or liabilities or affect the coming into force or the continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after termination or expiry, including clauses 4, 7, 9, 10, 11, 12, 13, 14, 15, 17(a), 17(c), 17(f), 17(h) and 17(j).
2. If a party by reason out of their control is unable to perform or carry out any obligation under this Agreement, then that obligation is suspended for so long and to the extent that it is affected by that reason. This clause does not apply to any obligation to make a payment.
3. The parties do not intend any third party to have the right to enforce any provision of this Agreement. HLY may assign or transfer all or any of its rights under or in respect of this Agreement, including granting security interests in all or any of its rights. Advertiser may not may assign or transfer all or any of its rights under or in respect of this Agreement.
4. This Agreement contains the entire agreement between the parties about its subject matter and supersedes all prior discussions, representations, agreements and understandings between the parties in connection with the subject matter.
5. Any changes to this Agreement must be agreed by all parties in writing.
6. No failure, delay, relaxation or indulgence on the part of a party in exercising any right, power, privilege or remedy in connection with this Agreement, operates as a waiver of that right, power, privilege or remedy.
7. Except as expressly provided under this Agreement, the rights and remedies contained in this Agreement are cumulative and are not exclusive of any other rights or remedies provided by law or otherwise.
8. If any term of this Agreement is found to be illegal, invalid or unenforceable under any applicable law, such term will, to the extent it is severable from the remaining terms, be deemed omitted from this Agreement and will not affect the legality, validity or enforceability of the remaining terms.
9. Any notice given under this Agreement must be in writing, addressed to the intended recipient at the address shown in this Agreement, (or updated address as relevant).
10. This Agreement will be governed by the law of Victoria and each party agrees to submit any dispute which may arise out of, under, or in connection with this Agreement to the exclusive jurisdiction of the courts of Victoria.
11. Each party must bear its own costs including legal costs in connection with the preparation and signing of this Agreement. Advertiser must pay any stamp duty in respect of this Agreement.
12. Each person signing this Agreement on behalf of a party, warrants to the other parties that on the date of signing, that person has full authority to sign this Agreement on behalf of that party.