WHEREAS: Parties have executed an insertion order referencing this Agreement and therefore the Terms and Conditions as stipulated hereunder shall apply between Parties for the performance of that insertion order unless specifically altered by such IO.
1.1. These terms and conditions are applicable to all requests, orders, offers and agreements in which this Agreement is referenced.
1.2. These conditions shall only be deviated from by agreement in writing, subject to traffiX reserving the right to change these terms and conditions upon prior written notice of 2 (two) weeks.
1.3. Any general terms and conditions of the Party dealing with traffiX, howsoever incorporated, shall be excluded.
1.4. The Agreement shall only be binding on traffiX when signed by the authorized signatory individual(s).
"Ads" means advertisements, including the artwork, banners or graphics, provided by traffiX, including but not limited to any advertisements provided by traffiX on behalf of any third party client of traffiX, as may be further defined in an IO.
"Affiliate" means any third party under the effective control of a Party to this Agreement or under common control of a Party to this Agreement. Effective control in the foregoing sentence means the possession, directly or indirectly, of the power to direct or cause the direction of the management, policies, or actions of an entity through the exercise of ownership or voting rights;
This "Agreement" means this Purchasing Agreement for Online Media and the applicable IO and Annex;
"Campaign" means the actions of Supplier in fulfilling its obligations to traffiX under this Agreement;
"Channel(s)" means the media as referred to in the IO;
"CPA" or "Cost Per Acquisition" means the fee payable by traffiX to Supplier for each completed and valid sale of traffiX's service or product to a customer resulting from Suppliers performance of its obligations under this Agreement;
"CPC" or "Cost Per Click" means the fee payable by traffiX to Supplier for each valid customer click on traffiX's Ad resulting from Suppliers performance of its obligations under this Agreement;
"CPL" or "Cost Per Lead" means the fee payable by traffiX to Supplier for each valid customer lead provided to traffiX resulting from Suppliers performance of its obligations under this Agreement;
"CPM" or "Cost Per Mille" means the fee payable by traffiX to Supplier for each valid impression of traffiX's Ad to a potential customer resulting from Suppliers performance of its obligations under this Agreement;
"Deliverables" means the type(s) and amount(s) of results to be delivered (e.g. CPA. CPC, CPL and/or CPM) by Supplier to traffiX, as set forth in an IO.
"Effective Date" means the date stated under such heading in the IO, in absence of which it shall be the date of the last signature of the IO.
"End Date" means the date stated under such heading in the IO;
"IO" means insertion order executed between Parties referencing this Agreement.
“Intellectual Property Rights” means any patents, trade marks, service marks, registered designs (including applications for any of the foregoing), copyright in all works created under this Agreement on behalf of traffiX and eligible for copyright, including, without limitation, literary or artistic works, or software programs of which it may be the author and which were or are created, compiled, devised or brought into being during the course and scope of Suppliers work for traffiX, design rights, know-how, trade and business names and any other similar protected rights in any country;
"Party" means either the traffiX or Supplier severally and "Parties" means both the traffiX and the Supplier jointly;
"Purchaser" means the entity as referred to as such in the IO;
"Supplier" means the entity as referred to as such in the IO;
"Territory" means the (parts of) countries referred to as such in the IO;
3.1. Scope of the Agreement: From time to time Parties may negotiate IO's under which Supplier shall deliver Ad(s) to Channel(s) targeting only the Territory for the benefit of traffiX. Each IO shall specify: (a) the Deliverables; (b) the price(s) for such Deliverables; (c) the maximum amount of money to be spent (if applicable), (d) the start and end dates of the Campaign.
3.2. Ads: Supplier has no right to change, make additions to or derive from Ads as provided by traffiX.
3.3. Reporting: Unless otherwise agreed in the IO traffiX shall report the amount of Deliverables to Supplier within 14 (fourteen) days of the end of each calendar month. Such reported amounts shall be conclusive between Parties unless Supplier can provide incontestable evidence of its incorrectness.
3.4. Change procedure: Supplier shall comply with any request of traffiX to make changes to the Campaign within 48 (forty eight) hours notice thereto:
a) providing that the change requested is of a nature that it will not cause Supplier more than nominal inconvenience and expense to implement; or
b) where changes requested by traffiX will cause more than nominal inconvenience and expense Supplier will inform traffiX of this fact within 24 (twenty four) hours of such notice for change and provide traffiX with an estimate of the work, time, and cost required to implement the changes. traffiX may accept such additional cost by issuing an IO.
3.5. Fee changes: traffiX may alter the fee payable for the Deliverables by providing Supplier 2 (two) business days notice of the new prices. Supplier may either:
a) accept the prices; or
b) terminate the Agreement before the new prices apply; or
c) enter into negotiations with traffiX to agree on alternative pricing, providing, however, that the new prices will apply from the date stipulated by the traffiX.
3.6. Additional Terms and conditions: Supplier undertakes to comply with and be bound by the "Terms and Conditions - Channel Owners" attached as Annex A to this Agreement. Additionally Supplier undertakes to have the person or entity having control over the Channel(s) where the Ads shall be published, its publishers of advertisements comply with the "Terms and Conditions - Channel Owners".
4.1. Should traffiX reasonably believe that Supplier has violated this Agreement, has failed to fulfill its responsibilities, or has committed any fraudulent activity, traffiX shall immediately notify Supplier, in writing, thereof. If, at the conclusion of a reasonably diligent investigation, traffiX has provided satisfactory written evidence that Supplier has, in fact, engaged in fraud and/or breached this Agreement, traffiX reserves the right to withhold payment and take appropriate legal action. Supplier expressly agrees to cooperate with traffiX during the course of and in furtherance of such an investigation and to provide traffiX with any information which may assist therein, to the extent that such information is not privileged, confidential, and/or proprietary to Supplier. traffiX must notify Supplier of any alleged breach or fraudulent activity within fifteen (15) of discovering same. traffiX’s failure to so notify Supplier shall constitute a waiver of any and all claims relating to breach of this Agreement and/or fraudulent activity.
4.1. All stated fees are exclusive of VAT and/or any other sales related taxes.
4.2. Supplier may invoice traffiX on a monthly basis in arrears or, when this Agreement is terminated, at such date of rightful termination. traffiX shall pay undisputed invoices within 30 (thirty) days of receipt, to the bank account as stipulated therein.
4.4. In case parties agree that traffiX shall pay for the Deliverables in advance, and such paid fees are related to the quantity of Deliverables, then traffiX may, as necessary, issue a corrective invoice to supplier for fees unduly paid, and Supplier shall return such overpaid amount within 30 (thirty) days of invoice date.
4.5. traffiX may offer direct financial incentives to the Channel owner, which shall not be subject to deduction, commission, or adjustment by Supplier. Supplier will pass all incentives through to the recipient Channel owners promptly.
4.6. traffiX and Supplier may agree that the Channel owner receive a fixed percentage of the price paid to Supplier for the Deliverables and/or a minimum price per Deliverable.
5.1. traffiX shall defend, indemnify and hold Supplier harmless against all claims for breach of copyright, trademarks, or image rights and the losses, direct damages, costs and expenses including all reasonable legal fees claimed or incurred by Supplier directly as a result of use of material(s) provided by traffiX for publishing, provided that (i) Supplier has strictly adhered to all terms and conditions stated in this Agreement (including for the avoidance of doubt, all Additional terms and conditions as referred to in clause 3.6 hereof), and (ii) Supplier shall promptly notify the traffiX in writing of such claim, and (ii) traffiX shall be entitled to take sole control of the defense and settlement of the claim at its own cost and expense, including using attorneys or other third parties of its choice, and (iii) Supplier will cooperate with traffiX in the defense of the claim.
6.1. Parties agree that any and all information, as present now or in the future, which is or may be a trade secret or of a confidential nature (in whatever media) regarding the operations, products, finance, marketing, customers, administration, maintenance, technology, research and development, future inventions and policies of traffiX and its Affiliates, including the existence and contents of this Agreement, and all notes, memoranda, records and writings made by Supplier relating to the Campaign, shall be confidential information (together "Confidential Information"). Supplier shall treat Confidential Information with the strictest confidence and secrecy and none of the Confidential Information shall be disclosed by Supplier to any third party or used for purposes other than those of providing the Campaign to traffiX.
6.2. The restrictions in sub-clause 6.1 above do not apply to Confidential Information:
a) that is, or has, after disclosure to Supplier, entered into the public domain otherwise than as a result of a breach of confidentiality of Supplier; or
b) that is properly and lawfully in the possession of Supplier prior to the time that it was disclosed by or acquired from, and was not acquired in any way directly or indirectly from, traffiX and/or its Affiliates or any of its or their respective directors, officers, employees or advisers (as evidenced by the written records or such person or persons) and provided that such information is not known to be subject to any other duty of confidentiality owed to or by traffiX and/or its Affiliates; or
c) the disclosure of which is required by law or the rules of any applicable regulatory organization provided that, in such case, disclosure shall only be made to the extent reasonably necessary to comply with relevant law or rule and traffiX shall be informed of the requirement such that traffiX may apply for an injunction to prevent its disclosure; or
d) that traffiX has authorized the Supplier in writing that the Confidential Information may be made public by Supplier.
6.3. The provisions of this clause 6 shall survive the termination of this Agreement and remain in force in perpetuity.
LIABILITIES & INDEMNIFICATION
7.1. Supplier assumes full responsibility for the performance and good working of the Campaign. In the event of a breakdown of the service offering, Supplier will take all reasonable steps to bring the equipment and Campaign back into working.
7.2. Except in the case of intend, willful misconduct or non compliance with any of the terms of the Annex to this Agreement of Supplier, Supplier shall not be liable for any indirect, consequential, incidental or special damage, cost, loss or expense of any nature suffered by traffiX in the performance of the Campaign.
7.3. traffiX shall not be liable for any direct, indirect, consequential, incidental or special damage, cost, loss or expense of any nature suffered by Supplier in the execution of this Agreement to the maximum extend allowed by the law. Notwithstanding the foregoing, traffiX's liability for any and all claim arising under this Agreement shall in aggregate not exceed the fees paid under this Agreement in the preceding 12 (twelve) months.
REPRESENTATIONS AND WARRANTIES
8.1. Supplier hereby represents and warrants to traffiX that: (i) Supplier has the power and authority to enter into and perform its obligations according to the terms of this Agreement; (ii) Supplier has no restrictions that would impair its ability to perform its obligations and grant all rights contemplated by this Agreement; (iii) Supplier has not and will not enter into any agreement that is inconsistent with its obligations hereunder; (iv) in providing its obligations under this agreement it will attain standards of care and skill as high as any currently available in the same industry as that of the Supplier and that all Suppliers' personnel, agents and sub-contractors will have the experience and qualification appropriate for any tasks they perform hereunder; and (v) Supplier will act in accordance with all relevant laws and binding codes of conduct applicable to the Campaign.
8.2. Without limiting the generality of the foregoing, for Campaigns using (e-mail) database marketing as Channel, Supplier represents and warrants that all personal data has been collected and processed in accordance with any applicable Privacy Acts, laws and regulations and that all data subjects have given their explicit consent as defined in EU Directive 95/46 and EU Directive 2002/58 for receiving communication for commercial purposes in accordance with the provisions of this Agreement and the IO(s) and agrees to defend, indemnify and hold traffiX harmless from any liability, claims, damages, fines, penalties, costs, demands and expenses (including costs of defense, settlement and reasonable legal fees) arising from or related to any violation in this respect.
8.3.traffiX hereby represents and warrant to Supplier that traffiX: (i) has the power and authority to enter into and perform its obligations according to the terms of this Agreement; and (ii) has no restrictions that would impair its ability to perform its obligations contemplated by this Agreement.
8.4. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE FOREGOING REPRESENTATIONS AND WARRANTIES ARE THE ONLY REPRESENTATIONS AND WARRANTIES GIVEN BY EITHER PARTY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED BY STATUTE OR OTHERWISE, ARE SPECIFICALLY EXCLUDED BY THE PARTIES TO THE EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE.
TERM & TERMINATION
9.1. Term: This Agreement will commence at the Effective Date and continue in full force and effect until the End Date in absence of which the Agreement shall terminate 6 (six) months after the Effective Date without any additional notice thereto being required, and unless terminated earlier in accordance with this Agreement.
9.2. Termination for Convenience: traffiX may terminate this Agreement for convenience on providing Supplier with 30 days prior written notice.
9.3. Termination of a Campaign: traffiX may terminate or suspend any Campaign upon providing to Supplier notice in accordance with the Agreed Out period specified in the IO.
9.4. Termination for Cause: Each Party may terminate this Agreement with immediately effect by written notice to the other Party where the other Party is in breach of a material term of this Agreement, has been served with a notice to remedy this breach, and has not affected a remedy to this breach within 14 (fourteen) days.
9.5. Termination for Regulatory Change: traffiX may terminate this Agreement by written notice and with immediate effect and with no penalty if a governmental or regulatory change significantly impacts the ability of traffiX to provide services or materials to customers responding to Ads delivered by Supplier.
9.6. Consequences of Termination: Within 48 (forty eight) hours of termination of the Agreement Supplier shall have any and all links to Ads removed from the Channel(s). The clauses as listed hereafter shall survive the termination or expiration of this Agreement: 3.3, 4, 5, 6, 7, 9.6, 10 and 11.
10.1: Publisher agrees and acknowledges that Advertiser has proprietary relationships with other publishers, advertisers, and third parties that participate in Advertiser's Network. Publisher shall not intentionally circumvent Advertiser's relationship with such parties, or otherwise offer, make available, provide, contract for or otherwise perform, directly or indirectly, advertising, marketing or promotional services similar to the services performed by publishers in Advertiser's Network for any third party publisher, advertiser, or other third party that Publisher knows or reasonably should know has a relationship with Advertiser or participates in Advertiser's Network. The foregoing prohibition shall apply during the term of this Agreement (and any IO) and for the six (6) month period following termination or expiration of this Agreement. Notwithstanding the foregoing, to the extent that Publisher can show that any such publisher, advertiser, or other third party already obtained such services from Publisher prior to the date of this Agreement, then Publisher shall not be prohibited from continuing such relationship.
11.1. No Exclusivity. Each Party shall carry out its commitments under this Agreement in a manner that reflects favorably upon the good name and goodwill of the other Party. The Parties agree that the commitments under this Agreement are not exclusive and that either Party may enter into similar agreements with third parties, including either Party's competitors.
11.2. Agency, Partnership, and Joint Venture Excluded: Nothing in this Agreement shall create a relationship between the Parties of agency, partnership, or joint venture.
11.3. Force Majeure: Neither Party shall be held responsible or liable for any losses, direct or indirect damages, costs and/or expense arising out of any delay or failure in performance of any part of this Agreement due to any act of God, act of governmental authority, act of the public enemy or due to war, riot, flood, civil commotion, insurrection, labor difficulty, severe or adverse weather conditions, lack or shortage of electrical power, failure of performance by any third party hosting service or equipment provided or maintained by others, including general performance of the Internet itself, or any other cause beyond the reasonable control of the Party delayed.
11.4. Entire Agreement: This Agreement constitutes the entire agreement between the Parties, and merges all prior and contemporaneous communications with respect to the agreement between the Parties.
11.5. Severability/Waiver: If any provision of this Agreement proves to be or becomes invalid or unenforceable under any of the applicable laws, then such provision shall be deemed modified to the extent necessary to render such provision valid and enforceable; if the provision may not be so altered, it shall be severed and the remainder of Agreement shall remain in full force and effect. No waiver of any breach of provision of this Agreement shall constitute a waiver of any other breach or any provision hereof, and no waiver shall be effective unless made in writing signed by an authorized representative of the waiving party.
11.6. Rights of third parties: Nothing in this Agreement confers or purports to confer on a third party any benefit or any right to enforce a term of this Agreement.
11.7. Assignment and Subcontracting: No rights or obligations arising under this Agreement may be assigned, transferred, subcontracted, or otherwise disposed of without the prior written consent of the Parties. Notwithstanding the foregoing, traffiX may assign the rights and obligations arising under this Agreement to its Affiliates.
11.8. Independent contractor: traffiX's relationship with Supplier will be that of an independent contractor and Supplier shall be solely responsible for determining the method, details and means of performing the Campaign.
11.9. Notices: All notices, authorizations and requests in connection with this Agreement shall be deemed given on the day they are (i) deposited in the mail, postage prepaid, certified or registered, return receipt as requested; or (ii) sent by air express courier (e.g. DHL) charges prepaid, return receipt requested; and addressed as set forth in the IO under the heading "Notices", or in the absence thereof at the address of the party provided therein. Alternatively, regarding the scope of the Campaign, notices shall also be deemed given when sent by e-mail with a personalized acknowledgement of receipt. For avoidance of doubt, invoices addressed to traffiX shall be sent to the address as provided in clause 4.3 above.
11.10. Applicable law and dispute solution: This Agreement and any disputes pertaining to it will be governed and construed in accordance with laws of Australia and Parties submit to the jurisdiction of the courts of Australia.