1.  ABOUT THIS AGREEMENT

1.1     These Advertising Terms and Conditions (Terms), together with the applicable Insertion Order and the current Advertising Specifications and Rate Card published by 4×4 Australia, form the agreement (Agreement) between the Advertiser and 4×4 Media Pty Ltd [ABN 59677373536], the publisher of 4×4 Australia and provider of advertising and content services trading as 4×4 Media (we, us, our).

1.2     All advertising and content services we supply are subject to these Terms, our Advertising Specifications, our Rate Card and the relevant Insertion Order.

1.3     If there is any inconsistency between these Terms and an Insertion Order that we have accepted in writing, the Insertion Order prevails to the extent of the inconsistency.

1.4     If we supply advertising or content services that are not set out in an Insertion Order, these Terms still apply to those services.

1.5     By submitting an Insertion Order, supplying Advertising Material, or instructing us to proceed with any booking, the Advertiser agrees to be bound by these Terms.

2.  DEFINITIONS AND INTERPRETATION

In this Agreement:

Advertiser: the person or entity named as the advertiser in the Insertion Order, and includes any advertiser on whose behalf the services are provided and any agency or media company arranging the services for a client.

Advertising Material: all creative supplied for or used in an Advertisement, including text, copy, artwork, graphics, images, video, audio, logos, trade marks, landing-page and click-through URLs, tracking tags, data feeds and any associated content.

Advertisement or Ad: any advertising placement we agree to publish or deliver, across print, digital, email (eDM), native, video, social or any other channel set out in the Insertion Order, and includes any bonus or added-value placement.

Advertising Specifications: the technical and material requirements for each advertising product (including formats, dimensions, file types and supply deadlines), as updated by us from time to time.

Business Day: a day other than a Saturday, Sunday or public holiday in New South Wales, Australia.

Custom Content: any content, creative or materials we produce for the Advertiser, including branded or sponsored articles, video, B-roll, image packs, social assets, eDM creative and other custom production set out in the Insertion Order.

Editorial: the independent journalistic and editorial content of 4×4 Australia, across all platforms, that is created and controlled by the 4×4 Australia editorial team.

Fees: the fees and charges payable for the services, as set out in the Insertion Order or, where not specified, in our current Rate Card.

Force Majeure: an event beyond a party’s reasonable control and without its fault or negligence.

Insertion Order: an order for advertising or content services, in the form we require, that we have accepted, setting out the agreed services, placements, dates and Fees.

Intellectual Property Rights: all intellectual property rights anywhere in the world, whether registered or not, including copyright, trade marks, designs, patents, know-how and confidential information, and the goodwill associated with them.

Publication Date: the agreed start or insertion date for an Advertisement set out in the Insertion Order.

Rate Card: our current standard rates and charges for advertising and content services, as notified or published from time to time.

Sponsored Content: Custom Content published within or alongside 4×4 Australia that is paid for by, or produced in collaboration with, the Advertiser, and which is identified as advertising, sponsored or branded content.

2.1     In these Terms, “includes” and “including” mean “including but not limited to”; headings are for convenience only and do not affect interpretation; and a reference to a party includes its successors and permitted assigns. Where the Advertiser is more than one person, each is bound jointly and severally.

3.  BOOKINGS AND INSERTION ORDERS

3.1     To place an Advertisement, the Advertiser must submit an Insertion Order and supply all Advertising Material in accordance with these Terms and our Advertising Specifications.

3.2     A booking is only confirmed once we have accepted the Insertion Order in writing. We are not obliged to publish any Advertisement until the Insertion Order is accepted.

3.3     If an Advertisement is published without a fully completed or accepted Insertion Order, the Advertiser is liable to pay the Fees set out in the Insertion Order or our current Rate Card, whichever is higher.

3.4     Dates and placements are allocated on a first-come, first-served basis. We will use reasonable endeavours to meet requested dates but do not guarantee any specific date, position or placement unless expressly agreed in the Insertion Order.

3.5     Conditional or contingent orders are not accepted unless we agree in writing.

4.  ADVERTISER’S OBLIGATIONS

4.1     The Advertiser must:

(a)   supply all required Advertising Material by the deadlines and in the formats set out in our Advertising Specifications;

(b)   ensure all Advertising Material complies with these Terms, our Advertising Specifications and all applicable laws, codes and industry standards (including the AANA Code of Ethics and the Australian Consumer Law);

(c)   ensure all Advertising Material is free of viruses or any code that could damage or interfere with our systems or platforms;

(d)   hold, and warrant that it holds, all rights, licences and consents necessary for the Advertising Material, including any third-party content, images, music, trade marks and personal information used in it; and

(e)   warrant that it has the authority and capacity to enter into this Agreement and to authorise us to publish the Advertising Material.

4.2     If the Advertiser is an agency, it warrants that it is authorised to act for and bind the client on whose behalf it books, and remains responsible for that client’s compliance with this Agreement, including payment of Fees.

4.3     Advertising space may only be used to promote the Advertiser’s own brand, goods or services (or, for an agency, those of the named client). It must not be on-sold, transferred or assigned to any third party.

5.  PROHIBITED ADVERTISING MATERIAL

5.1     The Advertiser must not supply Advertising Material that:

(a)   breaches any applicable law, code or regulation;

(b)   infringes the Intellectual Property Rights or other rights (including privacy rights) of any person;

(c)   is misleading or deceptive, or likely to mislead or deceive;

(d)   is unlawful, fraudulent, defamatory, obscene, offensive, or unsuitable for persons under 18 years of age;

(e)   may, in our reasonable opinion, bring 4×4 Australia, 4×4 Media or us into disrepute, or falsely suggest endorsement or affiliation; or

(f)    promotes a direct competitor of 4×4 Australia or 4×4 Media, where we reasonably object.

5.2     The Advertiser must not, without our prior written consent, insert tracking or data-collection technology for the purpose of re-targeting our audience off our platforms, scrape or copy our platforms or data by automated means, or interfere with the proper operation of our platforms.

5.3     We may refuse, remove, withhold or require changes to any Advertising Material at our discretion, including where it does not meet these Terms. We will tell the Advertiser if we do so.

6.  COMPETITIONS, TRADE PROMOTIONS AND REGULATED ADVERTISING

6.1     Where an Advertisement promotes a competition, prize draw, trade promotion, lottery, wager, or any offer that requires a permit, licence, approval or registration under any applicable law, the Advertiser is solely responsible for that compliance.

6.2     The Advertiser warrants that, before the Publication Date, it holds all permits, licences and approvals required in every relevant Australian jurisdiction, and that the promotion’s terms and conditions comply with all applicable trade-promotion, gaming and consumer laws.

6.3     The Advertiser must, on request and before we are required to finalise creative, supply all applicable permit numbers, a link to the promotion’s terms and conditions, and any mandatory disclosures or wording. We are not obliged to publish, and may withhold or delay publication of, any such Advertisement until these are provided, without liability and without affecting the Advertiser’s obligation to pay the Fees.

6.4     Where advertising relates to a regulated category (including but not limited to financial products, automotive finance, therapeutic goods, alcohol or motor-vehicle claims such as fuel economy, towing, safety or emissions ratings), the Advertiser warrants that all claims are accurate, substantiated and compliant with the relevant laws and codes.

7.  EDITORIAL INDEPENDANCE AND SPONSORED CONTENT

7.1     Advertising with us purchases advertising space and agreed content services only. It does not purchase, influence or guarantee any Editorial coverage, review, ranking, opinion or outcome in 4×4 Australia.

7.2     4×4 Australia retains complete and independent editorial control over its Editorial across all platforms. Editorial decisions are made independently of any commercial or advertising relationship, and we give no assurance that any product, brand or vehicle will receive Editorial coverage, or coverage of any particular nature.

7.3     Sponsored Content is commercial content. It will be clearly and prominently identified as advertising, sponsored or branded content in accordance with our policies and applicable law, so that it is distinguishable from Editorial. The Advertiser must not represent Sponsored Content as independent Editorial.

7.4     Where we produce Sponsored Content in collaboration with our editorial or production team, we retain final discretion over its presentation, labelling and placement to preserve the integrity of 4×4 Australia and to ensure legal and code compliance.

8.  PUBLICATION, PLACEMENT AND SERVICE LEVELS

8.1     Provided the Advertiser is not in breach, we will use reasonable commercial endeavours to publish the Advertisement substantially as set out in the Insertion Order.

8.2     We do not warrant continuous availability of our platforms, or any particular level of traffic, impressions, clicks, reach, opens or other metrics, unless expressly stated as a guaranteed deliverable in the Insertion Order.

8.3     Unless the Insertion Order specifies a guaranteed position, we control the format, position and placement of Advertisements and do not guarantee that an Advertisement will not appear near a competitor’s advertising or other content.

8.4     Where the Insertion Order specifies a guaranteed number of impressions or a campaign target for a digital placement, and we deliver within 10% of that number, the deliverable is treated as met. If we under-deliver by more than 10% (other than due to the Advertiser or Force Majeure), the Advertiser’s sole remedy is a make-good: additional delivery, an extension, or an equivalent placement, at our reasonable discretion.

8.5     For the purpose of billing and measuring delivery, our own measurement and reporting systems are definitive. Third-party or Advertiser figures will not be used to determine delivery or Fees.

8.6     We may mark any Advertisement as “Advertisement”, “Sponsored” or similar where we are required, or consider it appropriate, to do so.

9.  PRINT-SPECIFIC TERMS

9.1     Print Advertising Material must be supplied to our specifications by the material deadline for the relevant issue, as published in our print deadlines schedule. Print positions are not guaranteed unless a premium position is booked and confirmed in the Insertion Order.

9.2     We are not responsible for colour variation, reproduction quality or errors arising from materials supplied that do not meet our print specifications, or from the printing process within normal industry tolerances.

9.3     For a printing or insertion error caused by us that materially affects an Advertisement, the Advertiser’s sole remedy is, at our discretion, a re-run of the Advertisement in a later issue or a credit proportionate to the affected portion of the Advertisement. No refund or other remedy is available.

10.  CUSTOM CONTENT AND PRODUCTION SERVICES

10.1   Where we produce Custom Content, the scope, deliverables, revisions and Fees will be set out in the Insertion Order or a separate statement of work.

10.2   We will supply drafts or mock-ups for approval in advance of the Publication Date where practicable. The Advertiser must provide approval or consolidated amendments at least two (2) Business Days before the Publication Date. One round of minor changes is included; further or substantial changes may incur additional Fees. If approval is not received by that time, the materials are deemed approved.

10.3   Unless the Insertion Order states otherwise, we own all Intellectual Property Rights in Custom Content we create. On full payment, we grant the Advertiser a non-exclusive, royalty-free licence to use that Custom Content for the agreed purpose and term. The Advertiser must not edit, repurpose or redistribute Custom Content beyond the agreed scope without our written consent.

10.4   Underlying 4×4 Australia and 4×4 Media brand assets, mastheads, templates and editorial environments remain our property and are not licensed to the Advertiser except as needed to use the relevant placement.

11.  FAILURE TO SUPPLY ADVERTISING MATERIAL

11.1   If the Advertiser does not supply Advertising Material by the relevant deadline, we may, at our discretion: (a) treat the booking (or the affected part) as cancelled and charge the full or pro-rata Fees; (b) hold the space and charge the Fees in full; or (c) be unable to deliver the affected services, in which case the Fees remain payable.

11.2   Date-specific bookings not actioned by the relevant deadline are forfeited and cannot be carried over, and the Fees remain payable.

11.3   If Advertising Material breaches this Agreement, we may remove it immediately and treat the booking (or affected part) as cancelled, with the Fees remaining payable. We are not obliged to provide an opportunity to replace material that competes with us, breaches the law, or breaches these Terms.

12.  CHANGE REQUESTS

12.1   The Advertiser may request changes to an accepted Insertion Order in writing before the Publication Date. We will confirm whether we accept the change, any effect on Fees, and any impact on delivery.

12.2   We are not obliged to action a change until both parties agree it in writing and any additional Fees are paid.

13.  CANCELLATION

13.1   Digital, eDM, video, native, social and online placements. The Advertiser may cancel without cause on 30 days’ written notice before the Publication Date. If notice is given with less than 30 days before the Publication Date, the full Fees for that placement are payable.

13.2   Print placements. Print bookings may be cancelled without charge only if written notice is received before the booking deadline for the relevant issue (as set out in our print deadlines schedule). After that deadline, the full Fees for the booked insertion are payable, because the space and print run are committed.

13.3   Custom Content and production. If the Advertiser cancels any Custom Content or production work, the Advertiser must pay for all work performed and all costs and third-party charges committed or incurred up to the date of cancellation, in addition to any applicable cancellation fees.

13.4   Cancellation of one placement does not affect the validity of the rest of the Insertion Order.

14.  FEES AND PAYMENT

14.1   The Advertiser must pay the Fees set out in the Insertion Order. Where no Fee is specified, our current Rate Card applies. Fees are calculated on services booked, not only services delivered.

14.2   We invoice monthly (or as set out in the Insertion Order). The Advertiser must pay each invoice within 30 days of the invoice date.

14.3   Any dispute about an invoice must be raised in writing within 30 days of the invoice date. After that, the invoice is deemed accepted and payable in full.

14.4   All Fees are payable without set-off, deduction or withholding (except any withholding required by law).

14.5   If the Advertiser fails to pay on time, we may (in addition to our other rights): (a) charge interest on overdue amounts at 3% per annum above the Reserve Bank of Australia cash rate, accruing daily until paid; (b) recover our reasonable costs of recovery, including legal and collection-agency costs; and (c) suspend or withdraw the Advertisement and any further services.

14.6   Agency commissions are not payable on production or Custom Content Fees.

15.  MEASUREMENT AND REPORTING

15.1   We measure delivery and performance (including impressions, clicks, opens and viewability) using our own systems. We will use reasonable endeavours to exclude non-human traffic but do not warrant that all such traffic is excluded.

15.2   Where a campaign report or attribution summary is included in the Insertion Order, we will provide it within a reasonable time after the campaign ends.

16.  GST

16.1   Unless stated otherwise, all Fees are exclusive of GST. The Advertiser must pay any applicable GST in addition to the Fees on receipt of a valid tax invoice.

17.  INTELLECTUAL PROPERTY AND LICENCE

17.1   The Advertiser grants us a non-exclusive, royalty-free, worldwide licence to use, reproduce, adapt, format, display, transmit and distribute the Advertising Material as needed to perform this Agreement and to promote the relevant placements.

17.2   Intellectual Property Rights in Custom Content are dealt with under clause 10. Nothing in this Agreement transfers any of our brand, masthead or platform Intellectual Property Rights to the Advertiser.

18.  LIABILITY

18.1   To the full extent permitted by law, all warranties, conditions and guarantees not expressly set out in this Agreement are excluded.

18.2   Nothing in this Agreement excludes, restricts or modifies any consumer guarantee or right under the Australian Consumer Law that cannot lawfully be excluded. Where we are liable for breach of such a guarantee that can be limited, our liability is limited (at our option) to re-supplying the relevant services or paying the cost of having them re-supplied.

18.3   Subject to clause 18.2, our total aggregate liability to the Advertiser arising out of or in connection with this Agreement (whether in contract, tort, negligence, statute or otherwise) is limited to the total Fees paid by the Advertiser for the services to which the claim relates.

18.4   To the full extent permitted by law, neither party is liable to the other for any indirect or consequential loss, or for loss of profit, revenue, business, data, goodwill or anticipated savings.

18.5   Any liability we have is reduced proportionately to the extent the relevant loss is caused or contributed to by the Advertiser.

19.  INDEMINITY

19.1   The Advertiser indemnifies us and our related bodies corporate, and our and their officers, employees and agents, against all claims, liabilities, losses, costs and expenses (including reasonable legal costs) arising directly or indirectly from: (a) the Advertising Material; (b) any breach of this Agreement by the Advertiser; or (c) any breach of law, code or third-party right in connection with an Advertisement, including a competition or trade promotion under clause 6.

20.  CONFIDENTIALITY

20.1   The Advertiser must keep our Rate Card, pricing and the terms of any Insertion Order confidential, and must not disclose them to any third party without our consent, except as required by law.

21.  SUSPENSION AND TERMINATION

21.1   We may immediately suspend services if the Advertiser breaches this Agreement, including any failure to pay.

21.2   Either party may terminate this Agreement immediately by written notice if the other: (a) commits a breach that cannot be remedied; (b) commits a breach capable of remedy and fails to remedy it within 14 days of written notice; or (c) becomes insolvent or is unable to pay its debts as they fall due.

21.3   We may terminate this Agreement on 30 days’ written notice.

21.4   On termination or expiry: (a) we will cease providing the services; (b) the Advertiser must pay all outstanding Fees; and (c) clauses that by their nature survive (including clauses 17, 18, 19 and 20) continue. Termination does not affect accrued rights.

22.  FORCE MAJEURE

22.1   Neither party is liable for any delay or failure to perform (other than an obligation to pay money) caused by a Force Majeure event. Where we cannot deliver due to Force Majeure or the act or omission of the Advertiser or a third party, the Advertiser has no remedy in relation to that delay or failure, and the Fees remain payable for services we were ready to provide.

23.  PRIVACY

23.1   Each party will comply with the Privacy Act 1988 (Cth) and applicable privacy laws in handling personal information under this Agreement. Our privacy policy is available at [insert URL].

24.  GENERAL

24.1   Entire agreement.  These Terms, the Insertion Order, our Advertising Specifications and our Rate Card are the entire agreement between the parties for the services, and supersede any prior arrangements and any terms submitted by the Advertiser that are not set out here.

24.2   Assignment.  The Advertiser may not assign or transfer its rights or obligations without our written consent. We may assign to a related body corporate.

24.3   Subcontracting.  We may subcontract performance of any part of this Agreement.

24.4   Severability.  If any provision is invalid or unenforceable, it is severed and the rest of the Agreement continues.

24.5   Waiver.  A failure or delay in exercising a right is not a waiver of it. Any variation or waiver must be in writing.

24.6   Variation of Terms.  We may amend these Terms from time to time by publishing the updated Terms. Continued use of our services after notice of an amendment constitutes acceptance.

24.7   Notices.  Notices must be in writing and sent to the contact details in the Insertion Order, by email or post, and are deemed received in the ordinary course.

24.8   Costs.  Each party bears its own costs in connection with this Agreement.

24.9   Governing law.  This Agreement is governed by the laws of New South Wales, Australia, and the parties submit to the exclusive jurisdiction of the courts of that State.