Terms & Conditions – Built Environment Channel
1 Contracting Parties
1.1 This Contract between BEC and the Contracting Party sets out the terms on which BEC will make the screens available to the Contracting Party for the display of Advertising Material.
1.2 If the Contracting Party is not also the Advertiser, the Contracting Party represents and warrants to BEC that it enters the Contract on its own behalf The Contracting Party fully indemnifies BEC for any loss, damage, costs and expenses in any way resulting from or connected with breach of such representation and warranty or undertaking.
2 Obligations of the Contracting Party
2.1 The Contracting Party must comply with all terms of this Contract and with any additional directions, special conditions, content guidelines and/or product specifications consistent with this Contract advised by BEC from time to time.
2.2 The Contracting Party must provide to BEC Advertising Material (1) for display of a size and specification suitable for display at the Screen specified in the Contract, (2) at an address specified by BEC at least five (5) days prior to the proposed commencement of display, and (3) must also provide sufficient spare copies to cover replacement required during the currency of the campaign. BEC will not be liable for any loss caused by delay in exhibition due to the Contracting Party’s delay in supplying Advertising Material to BEC in accordance with this clause. In the event the Contracting Party delivers the Advertising Material after the specified date, BEC may (at its discretion) delay the commencement of display or make special arrangements for the Advertising Material to be installed urgently. The Contracting Party will be responsible for all additional costs of BEC for taking such action.
3 Display of Advertisements
3.1 All Advertising Material submitted by the Contracting Party under this Contract is subject to the final approval of BEC, all relevant approval and statutory authorities and/or Site Owners and BEC can reject or remove Advertising Material at any time.
3.2 Built Environment Channel reserves the right to reject or remove any Advertising Material, whether displayed or not, which is in the reasonable opinion of BEC misleading, deceptive, offensive, false, indecent, obscene, threatening, discriminatory, harassing, in breach of any confidence, defamatory, libelous or objectionable or if the Advertising Material may violate any law, regulation, advertising standard or code of conduct or clause 9.1. Any Advertising Material determined by the Advertising Standards Bureau (or similar body) to be offensive or otherwise unacceptable for display shall be removed by BEC upon advice of such determination.
3.3 In the event that Advertising Material is rejected or removed by BEC under this clause 3 the Contracting Party will not be entitled to a reduction in the Fee payable under this Contract. BEC may consider alternative Advertising Material for display but is not obliged to do so. The Contracting Party will be responsible for any additional installation and removal charges.
3.4 The Advertising Material provided to BEC under this Contract will, upon being displayed on a Screen become and remain the property of BEC. This ownership does not include the intellectual property rights in the content of the Advertising Material. The Contracting Party grants to BEC and third parties authorised by BEC, a licence to copy, transmit or reproduce images created by or on behalf of BEC (including, but not limited to photographs or videos) of the Advertising Material to use for the promotion or reporting of BEC's business. This licence is granted without charge in all media in perpetuity. The Contracting Party hereby warrants that it has the authority and all necessary third party consents to grant this licence to BEC.
3.5 The Customer releases BEC from all liability to the extent the Advertising Material or use of the Screen under this agreement involves any fundraising or interactive payment functionality.
4 Unavailability of Site
4.1 Built Environment Channel shall make every reasonable effort to display the Advertising Material at the Site(s) set out in the Contract but, if by direction of any Location Partner, natural disaster, or for any other reason beyond BEC’s control, it is not possible to do so then BEC may perform the Contract by exhibiting the Advertising Material at the most suitable alternative sites available and by giving notice of such alternative sites to the Contracting Party within seven
(7) days after the change occurs.
4.2 Unavailability of alternative sites will not entitle the Contracting Party to terminate the Contract unless such availability extends to the whole of the Sites. Where unavailability extends to some Sites only, the Contracting Party will be entitled to a proportional reduction of the Fee during any period of unavailability extending beyond one period.
5 Relocation
5.1 BEC shall have the right to relocate the location of the Screen at its discretion at no additional cost to the Contracting Party. The Contracting Party will be informed of such relocation in writing no less than seven (7) days prior to the relocation being affected. Should the Contracting Party object to the new location, this must be in writing and received by BEC prior to the relocation taking place, after which an alternative Screen/s (if available) will be submitted for the approval of the Contracting Party which approval will not be reasonably withheld.
6 Screen Power Supply
6.1 Screens are to be turned on from 8am to 7pm as determined in BEC’s sole discretion. BEC will not be responsible for any interruption to power supply due to circumstances beyond its control and the Contracting Party will not be entitled to any abatement of the Fee during the period of any such interruption.
6.2 If the interruption to power supply is due to circumstances within BEC’s control and continues for a period of two days, BEC may give a proportional reduction of the Fee for the period in which the Screen was not turned on or at its sole discretion provide additional screen time at an alternative location in the same State to make up the missing placements.
7 Invoicing & Payment
7.1 The Contracting Party must pay to BEC the Fee in the manner set out in the Contract.
7.2 Payment due within 15 days of date of invoice issued
7.3 BEC will provide a tax invoice for the Fee, or each instalment of the Fee, in advance of the
due date for payment.
7.4 If the Contracting Party is an agency, provided that BEC receives payments due to it within the period specified on each invoice, it will be entitled to an agency commission of 10% set off against the Fee.
7.5 If any of the payments to be made to BEC under this Contract are subject to a tax, such as a goods and service tax, then such payments shall be increased by the amount of such tax and be payable at the same time as payment of the relevant invoice is required. For the purpose of calculating the amount of such increase, no reduction shall be made in respect of any input tax credits, which the Contracting Party may be entitled to claim.
7.6 Any Fee or other amount overdue under of in connection with this Contract will attract interest for so long as it is overdue at a rate equal to 2% above the Commonwealth Bank of Australia Reference Rate from time to time in effect.
7.7 If the Contracting Party requires any change to the Advertising Material during the Term, BEC can at its sole discretion agree to make the change.
8 Warranties, Indemnity and Insurance
8.1 The Contracting Party warrants that all Advertising Material submitted under this Contract complies with all relevant State and Commonwealth laws (including current competition and consumer legislation), regulations, advertising standards and any applicable codes of practice issued or endorsed by any of the outdoor industry governing bodies including without limitation the Advertising Standards Bureau, the Australian Association of National Contracting Parties and the Advertising Federation of Australia.
8.2 The Contracting Party releases BEC, and its employees, officers, agents and representatives against any claim or liability arising from or in connection with a breach of the above warranty or otherwise in connection with this Contract, including without limitation, from and against all claims and demands, arising from or out of any losses suffered or expenses incurred (including indirect and consequential) or from any damage or injury to property or persons caused or contributed to by the Contracting Party’s use of the Screen and/or the Site.
8.3 The Contracting Party indemnifies BEC and its Related Bodies Corporate against any liability whatsoever arising out of or relating to any Advertising Material, including any liability for third party intellectual property infringement and all claims or prosecutions made on or against BEC in respect of any Advertising Material provided to BEC by the Contracting Party. Such indemnity includes legal and other professional costs of infringement and defence of claims.
9 Anti-Corruption
9.1 BEC acknowledges that the Contracting Party may need to comply with relevant anti-corruption legislation that has extraterritorial application, and accordingly, the Contracting Party agrees that it will not directly or indirectly offer, give or agree to offer or give any payment, gift or other advantages to BEC which would violate any anti-corruption laws or regulations, is intended to, or does, influence or reward any person for acting in breach of an expectation of good faith, impartiality or trust, or which a reasonable person would otherwise consider to be unethical, illegal or improper.
9.2 The Contracting Party warrants that it will, to the extent required by law or to satisfy their fiduciary or other obligation to third parties, disclose and obtain their consent (if required) for the Contracting Party’s receipt of any benefits under this Agreement, including any commissions or rebates.
10 Termination
10.1 If the Contracting Party commits a breach of clause 8.1 or 9.1 of this Contract, BEC can terminate this Contract on immediate notice.
10.2 BEC shall be entitled to terminate this Contract for any other reason at any time by seven (7) days written notice to the Contracting Party. Except where the Contracting Party is breach, BEC will credit the Contracting Party with so much of the Fee as is proportionate to the period of the Term so terminated.
10.3 The Contracting Party acknowledges that this Contract will automatically terminate in the event that BEC’s agreement with the Location Partner, pursuant to which BEC is entitled to license the use of the Screen, is terminated. In such circumstances, BEC will notify the Contracting Party of such termination and may provide an alternative Screen(s) for the Contracting Party’s consideration in the place of the unavailable Screen. If the Contracting Party rejects the alternative Screen, BEC will credit the Contracting Party with so much of the Fee as is proportionate to the period of the Term so terminated. BEC will not be liable in any way in connection with any such termination beyond the extent expressly provided in this sub-clause.
11 General
11.1 BEC may assign or otherwise transfer this Contract or any of its rights or obligations under this Contract.
11.2 The Contracting Party may not assign, transfer or otherwise deal with its rights and obligations under this Contract. The Contracting Party may not sub-license the Screen or place advertisements (whether directly or indirectly) on behalf of third-party advertiser(s) (whether as an agent or otherwise).
11.3 This Contract and all information supplied by BEC to the Contracting Party in relation to BEC’s finances and affairs, advertising space(s), contracts, pricing, methods of business and any other information which is designated confidential by BEC or ought reasonably be regarded as confidential is confidential and the Contracting Party will treat it as such and will not disclose it, or any part of it, to any third party without the prior written consent BEC. The Contracting Party must not use, sell, supply or otherwise disclose this Contract, or any part of it, to any third party as part, or as a constituent of, any market analysis, research or other study of revenues generated from out-of-home advertising and/or the use and availability of any of BEC’s sites. Despite anything in this clause, BEC may disclose this Contract to a Site Owner and its Related Bodies Corporate. The Contracting Party acknowledges that the Site Owner may disclose the information in question to third parties.
11.4 This Contract sets out the entire agreement between the parties as to its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter.
11.5 The Contracting Party must comply with all terms of this Contract and with any additional directions, special conditions, content and/or product guidelines or specifications advised by BEC from time to time.
11.6 Any variation to this Contract must be made in writing and signed by the parties.
11.7 The parties agree that no promise or representation made or given by BEC, its employees, officers, agents or contractors will be recognised unless contained in this Contract.
11.8 This Contract shall not be binding on BEC until it has been accepted by signature by its duly authorised officer.
11.9 Any Notice may be given by mail, facsimile or email and sent to a mail address, fax number or email address reasonably believed by the sending party to be that of the receiving party. Where such contact details for the receiving party are set out in the Contract such contact details must be used unless the receiving party has previously informed the sending party in writing of an alternative mail address, fax number or email address.
12 Definitions
Advertiser means the Client, or the Client of the Agency specified in Contract.
Advertising Material means the Contracting Party’s advertisement(s) to be displayed on BEC’s Screen, including any other item or object to be installed or displayed, at the Screen.
Contract means together these Terms and Conditions, the Contract Cover Page, Billing Schedule, Display Details and Production Schedule and any annexures including, without limitation, the Product and Content Specifications (as amended from time to time).
Contracting Party means the party specified in the Contract as the Client/Agent.
Fee means the total advertising fee/rental for the Term specified in the Contract Cover Page and Billing Schedule.
BEC means Built Environment Channel Pty Ltd Pty Ltd (ABN55 620 741 013).
Screen means the advertising space granted in the Contract or such other advertising space which forms part of BEC’s product suite as varied from time to time as may be provided pursuant to this Contract.
Personal Information has the meaning given in the Privacy Act 1988 (Cth) and the Australian privacy principles.
Services means the costs for producing and scheduling or maintaining Advertising Material or any other costs associated with the Advertising Material (including digital advertising).
Site means the geographical location of a Screen.
Location Partner means the owner of premises or business where the BEC screen is installed.
Term means the period starting on the Contract start date and expiring on the Contract end date outlined in the Contract (both inclusive).