AMENDMENT: SMD GROUP may vary these Terms and Conditions at any time in its sole discretion, provided that:
- ADVERTISEMENTS: SMD GROUP accepts all Advertisements on the following terms and conditions as display and classified advertising , online Banner or any other advertising in SMD GROUP websites (www.oobooking.com, www.oobooking.com.au, www.oobooking.co.nz)
- TERMS INCONSISTENT: The placing of an order for any Advertising by a Customer constitutes acceptance by the Customer of these Terms and Conditions and of all rates set out by SMD GROUP in the relevant rate cards unless otherwise agreed in writing by SMD GROUP. To the extent that any order submitted by the Customer attempts to include terms that are inconsistent with these Terms and Conditions, those terms will not apply.
- CUSTOMER: The expression “Customer” means the advertiser and, where any Advertising has been placed with SMD GROUP by an advertising agency (subject to clause 21), includes that agency.
- ENTIRE AGREEMENT: Subject to clause 24, these Terms and Conditions (including booking confirmations and any credit terms referred to in clause 13 if applicable) set out the entire agreement between the parties in relation to any Advertising and supersedes all prior arrangements, undertakings, representations and warranties by or between the parties in relation to such Advertising.
- SUBMISSION OF ADVERTISING: If submitting any Advertisements, the Customer must comply with the submission requirements on the relevant SMD GROUP website, or otherwise notified to the Customer by SMD GROUP. SMD GROUP will not be obliged to accept any Advertisement for publication which has not been submitted in this manner.
(a) Subject to these Terms and Conditions, SMD GROUP will use its reasonable endeavours to publish Advertisements submitted by Customers in the format submitted by the Customer and in accordance with the placement instructions of the Customer.
(b) SMD GROUP will publish classified Advertisements under the classification heading that it reasonably believes is most appropriate.
(c) Without limiting the above, if SMD GROUP, in its sole discretion, believes that the placement instructions of the Customer for an Advertisement are inappropriate for any reason, SMD GROUP may offer the Customer alternate placements. If the Customer does not accept the alternate placements, clause 10(c) will apply.
- CANCELLATION (BANNER ADVERTISING): Any cancellation by the Customer of Banner Advertising must be made at least 30 days before the publication date. SMD GROUP reserves the right to charge the Customer for Banner Advertising cancelled with less than 30 days notice.
- CANCELLATION: The cancellation by the Customer of any Advertising (other than Banner Advertising) after the booking deadline will incur a cancellation fee of 100% of the charges that would be payable by the Customer if the Advertising had been published or completed.
- CUSTOMER UNDERTAKINGS: The Customer undertakes and warrants to SMD GROUP that no Advertisement will:
(a) breach or infringe the Competition and Consumer Act 2010 (Cth);
(b) infringe copyright, trade mark or other intellectual or moral property rights of any person;
(c) contain material that is obscene, offensive, defamatory, or otherwise unsuitable for publication;
(d) breach or infringe any laws relating to therapeutic goods, financial services, anti-discrimination, political publication, publication of court or tribunal materials, or any other State or Commonwealth legislation, rule or ordinance; or
(e) give rise to any liability on SMD GROUP, cause SMD GROUP to be in breach of any law by virtue of publishing the Advertisement, or result in a claim being made against SMD GROUP.
- SMD GROUP RIGHTS: SMD GROUP may in its absolute discretion:
(a) without notice to the Customer alter or abbreviate any Advertisement or insert the word “Advertisement” above or below any Advertisement which in SMD GROUP’s opinion resembles editorial matter;
(b) monitor incoming calls for training purposes;
(c) at any time and without notice to the Customer cancel, reject or refuse to publish or continue publishing any Advertisement on the website without providing any reason for such rejection or refusal at any time prior to, or after, publication of the Advertisement on the website, provided this right will not be unreasonably exercised;
(d) re-publish an Advertisement in other SMD GROUP media (for example SMD GROUP may publish Newspaper Advertising online, or vice versa), which subject to clause 10(e) will be without further cost to the Customer; or
- INDEMNITY: By submitting or authorising submission of an Advertisement or Advertising, the Customer indemnifies SMD GROUP (and its employees, officers and agents) against any proceedings, demands, losses, costs (including legal costs on a full indemnity basis), damages and other liabilities of any nature taken, made or awarded against or incurred by SMD GROUP (and/or its employees, officers and agents) in connection with the Advertisement or any Advertising.
- NO GUARANTEE OR WARRANTIES:
(a) SMD GROUP does not guarantee that the Customer’s product featured in an Advertisement will be the only product of that type featured in Advertisements on any one page. SMD GROUP will not be responsible or liable to the Customer in any way if the Customer’s request cannot be granted, or the product featured in the Customer’s Advertisement is not the only product of that type featured in Advertisements on any one page.
(b) Online Advertising will be published via internet accessible Advertisement serving software (“Software”). SMD GROUP makes no warranties of any kind, whether express or implied of the fitness of this Software for a particular purpose. SMD GROUP shall not be liable for any loss, damage, or expense incurred in connection with SMD GROUP’s use of the Software, including without limitation, for any technical malfunction, computer error or loss of data or other injury, damage or disruption of any kind other than as a result of SMD GROUP’s gross negligence or fraud.
- CREDIT TERMS APPLY: The Customer acknowledges that any credit provided will be on SMD GROUP’s then standard credit terms which may vary from time to time.
- GST: Unless otherwise stated by SMD GROUP, advertising rates are quoted exclusive of GST and the Customer will pay GST in addition to such rates.
- PAYMENT: The Customer must pay SMD GROUP for Advertisements:
(a) in accordance with the rates set out in the relevant rate cards (which may be varied at any time by SMD GROUP without notice) unless otherwise agreed in writing by SMD GROUP;
(b) by prepayment, if so required by SMD GROUP;
(c) if payment is agreed by SMD GROUP to be on account, on the credit terms supplied by SMD GROUP to the Customer; and
- PRODUCTION SERVICES: If the Customer requires any creative, production, programming, or other services ("Production Services") from SMD GROUP, the Customer must pay SMD GROUP additional charges for such services, as notified in writing to the Customer by SMD GROUP at the time (or shortly after) the Customer requests the Production Services. SMD GROUP may charge the Customer for these Production Services on a case by case basis.
- FAILURE TO PAY: If any payment is not received by SMD GROUP on or before the date that such payment is due, or if the Customer commits an act of bankruptcy (in the case of an individual), or is unable to pay its debts as and when they fall due, enters into any arrangement with its creditors other than in the ordinary course of business, passes a resolution for administration, winding up or liquidation (other than for the purposes of re-organisation or reconstruction), has a receiver, manager, liquidator or administrator appointed to any of its property or assets or any petition is presented for its winding up (all in the case of a body corporate), SMD GROUP may:
(a) cancel any provision of credit to the Customer;
(b) immediately and without notice, suspend or cancel all Advertising orders of the Customer and terminate any agreement in relation to Advertising not yet published;
(c) require cash pre-payment for any further Advertising;
(d) impose interest at the rate of 2% (two percent) above the Reserve Bank’s 90 day Bill Rate on all sums that remain unpaid until full payment is received;
(e) take proceedings against the Customer for any outstanding amounts;
(f) recover from the Customer all costs incurred by SMD GROUP in the recovery of any amount owed by the Customer including any mercantile agency costs and legal costs on a full indemnity basis; and
(g) exercise any other rights at law.
(a) Except as expressly provided in these Terms and Conditions, SMD GROUP excludes, to the fullest extent permitted by law, all warranties, representations and conditions whether implied by law, trade, custom or otherwise.
(b) In no circumstances will SMD GROUP (its employees, officers or agents) be liable, whether in tort, contract or otherwise for any indirect loss, loss of profits, consequential loss or special or exemplary damage suffered by the Customer or any other person, even if such loss or damages are foreseeable and whether or not SMD GROUP had been advised of the possibility thereof.
(c) The liability of SMD GROUP (including SMD GROUP’s officers, employees and agents) to the Customer, or any other person, for any and all loss or damage arising in relation to these Terms and Conditions and/or Advertisements (including from any errors or inaccuracies however caused, whether by negligence, system, software or press failure, mistake, mis-classifications, early, late or non-insertion of Advertisements, or loss or delay in the delivery of replies) will be limited to an amount equal to the cost of the space of the relevant Advertisement, provided that if the Customer does not advise SMD GROUP of any error within five days of publication of the Advertisement SMD GROUP will have no liability whatsoever.
(d) SMD GROUP will not be liable to the Customer or any other person for any loss of whatever kind suffered as a result of Other Advertising, or an Advertisement not being available on the websites where such loss arises from any cause beyond its control. Any loss suffered as a result of any partial or total breakdown of SMD GROUP's operation or network, any technical malfunction, computer error or loss of data will be deemed to be an event beyond SMD GROUP's control. Should such an event occur, SMD GROUP will take responsibility to resurrect sites and links, and the Customer has the right to cancel the particular contract for the affected advertising at no penalty if such an occurrence results in the site being down for more than 7 working days (working days being Monday to Friday inclusive, but excluding statutory holidays). In addition, SMD GROUP will not be liable to the Customer for any error or inaccuracy in Advertisements placed by telephone.
- RETURN OF ADVERTISING MATERIAL: SMD GROUP will endeavour to take reasonable care of Advertising Material in its custody and control, but will not be responsible for any loss or damage to Advertising Material (even if caused by SMD GROUP's (its employees’, officers’ or agents’) negligence).
- NO WAIVER: If at any time SMD GROUP does not enforce any of these terms and conditions or grants the Customer time or other indulgence, SMD GROUP shall not be construed as having waived that term or condition or its right to later enforce that or any other term or condition.
- ASSIGNMENT: The Customer may not:
(a) assign any of its rights under any agreement or any part of an agreement to which these Terms & Conditions apply (including the rights to advertising space allocated in accordance with such an agreement) to any third party;
- GOVERNING LAW: These Terms and Conditions are governed by, and construed in accordance with the law in force in NSW. The parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction in NSW, and any court that may hear appeals from any of those courts, for any proceedings in connection with these Terms and Conditions.
- SEVERABILITY: If any provision of these Terms and Conditions is held illegal or unenforceable, then such illegality or unenforceability shall not affect the remaining provisions of these Terms and Conditions which shall remain in full force and effect.
- ADDITIONAL TERMS: In addition to these Terms and Conditions the Customer acknowledges that all advertising, including the conditions of payment and changes to or cancellation of such Advertising, will be in accordance with and subject to any specific conditions notified to the Customer or generally published by SMD GROUP from time to time, including on the relevant SMD GROUP website.
(a) if the Customer does not agree with a variation the Customer may cease placing orders with SMD GROUP.