Terms and Conditions
Gander Marketing Terms and Conditions
2. The agreement between The Client and GANDER. The agreement between the purchaser of services (herein called the 'Client') and GANDER comprises the order, whether written or verbal, these Terms and Conditions and any schedules and attachments and services orders or credit terms applicable. In the event of any conflict between any services orders or any schedule or attachment to any Orders, and these Terms and Conditions then these Terms and Conditions will prevail and the Client agrees that they will abide by the decisions of Gander in the event of adjudication being required regarding the terms and conditions.
3. The Client For the purpose of these Terms and Conditions and each services Agreement the “Client” means; (a) the person or company specified as the “client” in the Services Order; and (b) where any Services Agency or representative that has acted on behalf of the Client and has booked services or placed orders with GANDER by an services agency the Client herein does agree to be vicariously bound by their agent. Each person that signs an Services Order or any part of an Agreement on behalf of a Client or that books or places Services with GANDER warrants that they have the authority to bind the Client (including any services agency) in accordance with these Terms and Conditions.
4. Materials. 'Materials' means in these Terms and Conditions all computer files or written or audio services necessary to complete the Services Order and are to be provided by GANDER. It will include all advertisements, services copy, services script, creative proposals, sound recordings, audio and any other material necessary or requested by GANDER to enable a GANDER to perform. All Materials to be delivered by the Client to GANDER must be provided with following conditions: (a) at least three Business Days before the any scheduled work; (b) content for online publication must be delivered to GANDER in the format requested by GANDER suitable for electronic publication. In submitting any Material or in submitting any changes to Material, the Client must comply with the submission requirements and deadlines set out above or as otherwise notified to the Client by GANDER. It is agreed that GANDER will not be obliged to accept any Material, Services or order deemed to be offensive or pornographic or for any reason whatsoever.
5. Client Undertakings in Relation to Content. The Client undertakes and warrants to GANDER that no Services and no Material provided by or on behalf of the Client will: (a) breach or infringe the Competition and Consumer Act 2010 (Cth) or equivalent legislation in any State or Territory of Australia or in any other Nation, State or Country; (b) infringe copyright, trade mark or other intellectual or moral property or other rights of any person (including any legal or equitable right of confidentiality); (c) contain material that is obscene, offensive, defamatory, or otherwise unsuitable for broadcast; (d) infringe any applicable laws, regulations and services and broadcasting codes or standards; or (e) give rise to any liability on the part of GANDER, cause GANDER to be in breach of any law by virtue of broadcasting or publishing of the Services or utilising the Material, or result in a claim being made against GANDER.
6. GANDER Right to Reject Services or Material. GANDER may in its absolute discretion and at any time and without notice to the Client cancel can reject or refuse to provide services or product items without the necessity of providing any reason for such rejection or refusal at any time prior to, or after, supply of services. GANDER shall have no liability to the client in respect of any action taken pursuant to this clause.
7. Internet Publication Times. (a) All services must be booked prior to the scheduled Start Date. The client acknowledges that the contract obligation is fulfilled when the publication is broadcast and that once this is done the material is then passed over third party companies to be stored on their servers and the client acknowledges that the duration of the time that the said material remains on the third party server as described is incidental to this contract. (b) Subject to availability and these Terms and Conditions, GANDER will use reasonable endeavours to make services available at the specified times or periods set out in the terms and conditions. (c) Publication times as set out in the Agreement will be based on calendar months and all reference to the word 'month' in all publications and on the GANDER website will mean 28 days. The duration (d) The Client acknowledges and agrees that GANDER may at its discretion vary the placement and formatting of services and that from time to time and that Gander may have to perform Sever Maintenance. This may involve outages or disrupted services or such variations to service which may or may not be under the control of Gander. The client hereby agrees that any such variations to service will not in any way affect the obligation of the Client to pay the Fees nor will Gander be held liable or accountable under this contract for any claims, promises or failure to provide service by the third party computer server provider.
8. Payment of Fees. The Client must pay to GANDER the Fees as follows: (a) if the Client does not have an approved Credit Account with GANDER then prior to any scheduled commencement date of supply of services. (b) if the Client does have an approved Credit Account with GANDER in accordance with the specified terms of such credit account but in any event within 30 days of the end of the month during which the Services was broadcast, published or communicated to the public; and (c) if the Client is an Accredited Agency then within 30 days of the end of the month during which the Services was broadcast, published or communicated to the public. Payment of Fees by other than credit card can be accepted by prior arrangement with an authorised representative of GANDER . “Fees” means the fees specified in an Services Order or otherwise as calculated in accordance with GANDER ’s standard services rates.
9. Services Rates. The Rates for any extra services, which could include items such as web authoring or training, will be based on the applicable rates of GANDER for the Client as determined by GANDER from time to time. In the case of cancellation or amendment of services the following applies: (a) The cancellation or Amendment by the Client of any Services later than 7 days prior to the scheduled start date will incur a cancellation fee of 100%. (b) If Services is cancelled or Amended with less than 7 days notice but more than 14 days notice from the Start Date, GANDER may, at its sole discretion, by arrangement with the Client, provide the Client with a delete and charge credit equal to the amount of the cancellation fee. A delete and charge credit will not be effective until the applicable cancellation fee has been paid in full by the Client. (c) A delete and charge credit will expire 3 months after the date the relevant Services was cancelled and will not entitle the Client to any refund or other payment but may be utilised on unfilled broadcast times, subject to GANDER ’s discretion to give higher priority to other customer’s actual or anticipated services orders. If the full payment of Fees is not received by GANDER on or before the date that such payment is due, or if the Client commits or is the subject of an insolvency event, GANDER may at its sole election and discretion: (a) cancel any credit terms provided to the Client and require immediate payment in full of all Fees; (b) immediately and without notice, suspend the broadcast of any Services or suspend or cancel all Services orders of the Client and terminate any agreement in relation to Services not yet broadcast or Gander not yet provided; (c) require cash pre-payment for any further Services; (d) impose interest at the rate of 2% (two percent) above the Reserve Bank of Australia’s 90 day Bill Rate on all sums that remain unpaid until full payment is received; (e) commence legal proceedings against the Client for recovery of any outstanding amounts; (f) recover from the Client all costs incurred by in the recovery of any amount owed by the Client including any debt recovery or legal costs on a full indemnity basis. The client agrees that any communications in respect of non-payment of fees may be made and that GANDER is within its rights to communicate and enquire as to the likelihood that payment might be affected in the future. The client agrees to indemnify GANDER and their agents and representatives against any adverse publicity or loss of reputation they may incur and any costs of legal actions and judgements that may occur if carried out by the Client or an agent of the Client. (g) take any such other steps as GANDER considers appropriate or necessary to recover the Fees. Client must notify GANDER as soon as practicable of any change, event, fact or circumstance affecting the Client which may impact on its ability to pay the Fees. The Client agrees to provide to GANDER all information as is reasonably requested by GANDER to determine the credit worthiness of the client and its suitability and ability otherwise to meet payment of the Fees.
10. Services Rebates. Where payment for Services has been made in full within the due date specified in these Terms and Conditions and a Client is not otherwise in breach of these Terms and Conditions or any Agreement with GANDER, then the following rebates will apply: (a) if the Client is an Accredited Agency the rebate will be 15% (or as otherwise agreed between GANDER and the Client) on the amount paid for that Services; or (b) as has been negotiated and agreed in writing directly with GANDER in respect of Approved Unaccredited Agencies and Approved Booking Agents. No rebate will be granted pursuant to this Clause in respect of Services booked by an Accredited Agency, Approved Unaccredited Agency or Approved Booking Agent in respect of customers that: (a) are existing Clients of GANDER or have in place a current Services Order; or (b) have been Clients of GANDER or have advertised with GANDER through an Accredited Agency, Approved Unaccredited Agency or Approved Booking Agent during the preceding 12 months, other than through the Accredited Agency, Approved Unaccredited Agency or Approved Booking Agent seeking the rebate.
11. Accredited Agency. An “Accredited Agency” for the purpose of this agreement is an agency that has been notified in writing by GANDER that it meets the criteria for accreditation as determined by GANDER in its sole discretion. The criteria used by GANDER to determine whether an agency qualifies as an Accredited Agency, may include but will not be limited to that the agent; (a) sells GANDER air time to independent third parties and has a minimum of 5 commercial clients. (b) satisfies such financial criteria as are specified by GANDER from time to time; (c) accepts liability for payment of all air time booked by the agent; (d) has completed an GANDER agency credit application; and (e) has obtained their client’s written consent for the payment of agency allowances. GANDER may by notice in writing withdraw accreditation from any Accredited Agency. Each Accredited Agency must advise GANDER immediately in writing of any change to its status or circumstances which may cause it to fail the above criteria or be likely to cause it to fail the above criteria, including but not limited to any change to the ownership or control, directors or senior management, revenue or asset backing, or the existence of actual or threatened litigation or other event which may compromise its ability to pay the Fees or otherwise meet its obligations under these Terms and Conditions and any Agreement. Each Accredited Agency shall provide to GANDER such information as is reasonably requested by GANDER from time to time to enable GANDER to assess its continuation as an Accredited Agency.
12. Intellectual Property The Client acknowledges that: (a) GANDER is permitted to use any Material provided by the Client to GANDER for the purposes of the Agreement. (b) All intellectual property rights, including but not limited to copyright, in any Material created, produced or written for the Client by GANDER or its employees, officers or agents is the sole property of GANDER (GANDER Material). (c) Prior written clearance from GANDER is required for any use of any GANDER Material otherwise than on GANDER radio stations. Permission may be withheld. (d) The Client must: (i) keep confidential any GANDER Material (directly or indirectly) supplied to the Client (ii) not, without written clearance from GANDER , use or exploit GANDER Material except for any services or promotional campaign placed with GANDER ; and (iii) if directed by GANDER , on termination of this Agreement deliver up any GANDER Material to GANDER . (e) Nothing in this Agreement gives the Client the right to use any GANDER trade mark, logo or other artwork.
13. Indemnity and Release (a) To the extent permitted by law, the Client indemnifies GANDER and each of its employees, officers and agents from and against any Claim arising, whether directly or indirectly, from or in connection with a breach by the Client of this Agreement. Gander or Clear Fountain Pty Limited, or the applicable subsidiary which has entered into this Agreement, holds the benefit of this indemnity and all other rights conferred on GANDER and each employee, officer or agent of GANDER under this Agreement as trustee. (b) Without limiting the forgoing, the Client forever releases GANDER and each officer, employee or agent of GANDER from and GANDER accepts no liability for, any Claim, loss or liability arising in any way from or in connection with: (i) the broadcast or delay or failure to broadcast Services or Material (including any errors in any content of any Services or Material); (ii) any mistake or deficiency in any services provided to the Client by or on behalf of GANDER ; or (iii) The cancellation or de-registering of any social media account or website; (iv) any lack of sound quality or delay in transmission of any Services.
14. Credit Terms. The Client acknowledges that it is not entitled to any credit or to make payments on account unless it has been authorised in writing by GANDER . All such credit or payments on account will be subject to these Terms and Conditions and GANDER ’s standard credit terms which may vary from time to time. GST, VAT and Sales Tax Unless otherwise stated by GANDER , services Rates and any other payments or other charges are quoted exclusive tax and the Client will pay any such tax in addition to such amounts.
15. Liability of GANDER. (a) Except as expressly provided in these Terms and Conditions, GANDER excludes, to the fullest extent permitted by law, all warranties, representations and conditions whether implied by law, trade, custom or otherwise. In the event that GANDER is liable to a Client for a breach of implied warranty or condition that may not be excluded, GANDER ’s liability will, to the extent permitted by law, be limited to any one or more of the following (at GANDER ’s option): (i) in the case of the supply of goods under these Terms and Conditions (if any): (A) the replacement of the goods or the supply of equivalent goods or the payment of the cost of replacing the goods or acquiring equivalent goods; (B) the repair of the goods or the payment of the cost of having the goods repaired; or (ii) in the case of the supply of services under these Terms and Conditions: (a) the supplying of the services again; or (B) the payment of the cost of having the services supplied again. (b) In no circumstances will GANDER or 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 Client or any other person, even if such loss or damages are foreseeable and whether or not GANDER has been advised of the possibility thereof. (c) Without limiting the application of this agreement, the liability of GANDER (including GANDER ’s officers, employees and agents) to the Client, or any other person, for any and all loss or damage arising in relation to any agreement and/or Services (including from any errors or inaccuracies however caused, whether by negligence, system, software or press failure, mistake, early, late or failure to broadcast Services or provide agreed to services, will be limited to an amount equal to the Fees paid in respect of that Agreement, Services or Gander, provided that if the Client does not advise GANDER of any error within five days of broadcast of the relevant Services or advertisement produced as a result of the Client's purchase order the GANDER will have no liability whatsoever.
16. Expiration and Termination of Agreement (a) Unless terminated earlier in accordance with this agreement, the Agreement will expire on the latest End Date specified in the purchase order or the completion of the services and any further services and corresponding rates will be subject to renegotiation. (b) GANDER may terminate the Agreement by serving a notice in writing on the Client if: (i) the Client commits a breach of these Terms and Conditions or the Agreement and fails to remedy such breach within fourteen (14) days after being served with a notice by GANDER specifying the nature of the breach and requiring that it be remedied; or (ii) the Client at any time commits or is the subject of an Insolvency Event or ceases carrying on business or threatens to cease carrying on business. (c) Termination of this Agreement by GANDER does not affect any other rights of GANDER under law or equity including the right to recover payment of all Fees that would have been payable under the contract had it not been terminated. In the event of termination of the Agreement, GANDER shall invoice for any Fees or other amounts outstanding under the Agreement. All outstanding Fees will become payable on the date specified in the invoice.
17. No Waiver. If at any time GANDER does not enforce any of these terms and conditions or grants the Client time or other indulgence, GANDER shall not be construed as having waived that term or condition or its right to later enforce that or any other term or condition.
18. Assignment The Client may not: (a) assign to any third party any of its rights under any agreement or any part of an agreement to which these Terms and Conditions apply or any right in respect of services space allocated in accordance with such an agreement ; or (b) place Services or commission GANDER whether directly or indirectly on behalf of third party advertiser(s) whether as an agent or otherwise, except on terms previously agreed in writing with GANDER. Services are placed or Gander will be considered to have been ordered by a Client on behalf of a third party advertiser where, for example (but without limitation), the Services promotes or otherwise notifies listeners as to the goods or services of the third party advertiser rather than the Client.
19. Entire Agreement The Agreement sets out the entire agreement between the parties in relation to the services and supersedes all prior arrangements, undertakings, representations and warranties by or between the parties in relation to such Services. 23. Governing Law This Agreement is governed by the law in force in New South Wales and the parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction in New South Wales.
20. Force Majeure. If GANDER is prevented from or delayed in complying with an obligation under this Agreement by an event beyond its reasonable control, including but not limited to a telecommunications failure, terrorist attack, war, national emergency, inclement weather, fire, flood, earthquake, natural disaster, change in legislation or shortage or destruction of equipment or materials, performance by GANDER of the obligation will be suspended for the period of the delay and GANDER will not be liable for any loss or damage suffered by the Client arising from or relating to such delay.
21. Severability. If any provision of these Terms and Conditions or the Agreement is held illegal or unenforceable, then such illegality or unenforceability shall not affect the remaining provisions of these Terms and Conditions or Agreement which shall remain in full force and effect.
23. Amendment: GANDER may vary these Terms and Conditions at any time in its sole discretion, provided that: (a) such amended terms will not affect prior agreed purchase orders; and (b) if the Client does not agree with a variation the Client may cease placing orders with GANDER .
24. Definitions. In these Terms and Conditions: (a) Accredited Agency means an agency accredited in accordance with this agreement; (b) Purchase Order means an services order placed by a Client with GANDER. An approved Booking Agent means an services booking agent approved in writing by GANDER for the purposes of these Terms and Conditions; (c) Approved Unaccredited Agency means an services agent approved in writing by GANDER for the purposes of these Terms and Conditions that is not an Accredited Agency; (d) GANDER means Clear Fountain Pty Ltd trading as Nite School®, a registered trade mark. Australian Business Number (ABN): 17 131 065 051 and its owned or controlled subsidiaries; (e) Claim means any and all 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 GANDER and/or its employees, officers and agents including, without limitation, as a result of claims by third parties; (f) Services means creative or production services provided by GANDER to the Client; (g) Insolvency Event means an act of bankruptcy (in the case of an individual), or if the Client 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); (h) Third party computer servers would be companies such as Twitter or Facebook; (i) Terms and Conditions means these terms and conditions as amended from time to time.