1. TERMS AND CONDITIONS
The following terms and conditions apply to all agreements entered into with, and all Services provided by, Media Today Unit Trust (TheGuide.com.au) ABN 55 125 100 970 and/or The Guide Website PL (ABN: 94 120 581 679) and their related entities. By using the Services you agree to be legally bound by the terms and conditions contained in this Agreement and all Associated Agreements. You also agree to use the Services in a manner consistent with this Agreement and all Associated Agreements, as well as all applicable laws.
In the event that any inconsistency exists between the terms and conditions set out in this Agreement and those set out in any Associated Agreements, the terms and conditions set out in the Associated Agreements will prevail to the extent of the inconsistency.
In these Terms and Conditions:
“Agreement” means these Terms and Conditions, which apply to any commercial relationship entered into between you and us.
“Associated Agreements” means all agreements and forms associated with the Services, including the:
(a) Media Today Direct Debit Request and Credit Card Authority Agreement and Form;
(b) All other agreements, arrangements or commercial relationships entered into by you with us, our affiliates or related entities for provision of the Services.
“Business Day” means any day other than a Saturday or a Sunday or a public holiday common to all Australian states and territories.
“Services” mean any and all services provided by us to you under this Agreement and any Associated Agreements.
“us”, “our” and “we” means Media Today Unit Trust (TheGuide.com.au) ABN 55 125 100 970 and/or The Guide Website PL (ABN: 94 120 581 679), and includes their related entities.
“you” and “your” means the customer who signs an Agreement or any Associated Agreements.
“Fee” means the fee or fees payable by you to us for the performance of the Services, as contained in this Agreement or any Associated Agreements.
3. OUR RESPONSIBILITIES
We shall exercise reasonable skill, care and diligence in the performance of the Services in accordance with our obligations under this Agreement, and accepted industry standards.
4. YOUR RESPONSIBILITIES
4.1. Instruction and Approvals
You must provide, in a timely manner, any and all information or documentation that is reasonably required and requested by us.
You are responsible for the accuracy and factual correctness of the information and documents provided to us in relation to this Agreement and the provision of the Services. We are entitled to rely exclusively on such information and documentation and any and all other particulars as are provided by you, in providing the Services to you.
You agree to use the Services for lawful purposes only. You will not engage in conduct that, at our discretion, could be considered to be discriminatory, harmful, inconsiderate, abusive, racially or otherwise objectionable, or might reasonably result in a loss of profitability or business viability for us. We reserve the right to terminate this Agreement and any Associated Agreements where such conduct is identified. We reserve the right to refuse certain requests that may reasonably be considered as constituting or facilitating such conduct.
5. WARRANTIES AND LIABILITY
5.1. Extent of Warranties
We do not give any warranties of any kind whatsoever, nor accept any liability of any kind whatsoever, in relation to the performance or non-performance of the Services, as the case may be, except and only to the extent, if any, required by law or specifically provided for in this Agreement. If but for the existence of this Clause, any warranty would be implied by any law, statute or other means, that warranty is to the fullest extent permitted by law, hereby excluded.
5.2. Limitation of Liability and Release
To the maximum extent permitted by law, we shall not be liable to you in any way whatsoever, and you hereby irrevocably release us from and against any and all liability and responsibility whatsoever, arising in any manner whatsoever, and whether directly or indirectly, from or as a result of the provision of the Services to you by us, in respect of any of the following:
(a) Any direct, indirect, special, incidental or consequential damages;
(b) Any economic loss or other loss of turnover, profits, business or goodwill; and
(c) Any loss, claim or liability that exceeds the total of any payments made by you for the provision of the Services and Media Today may, in its absolute discretion, resupply the Services in full and final settlement of any claim; and
(d) The use by you, of any of the documents, scripts, reports, advertisements, online interactions or other communications in connection with the Services, for any purpose other than the express purpose for which they were prepared or provided by us; and
(e) The use by any person other than you, of any of the documents, scripts, reports, advertisements, online interactions or other communications provided under this Agreement.
5.3. Duration of Liability
To the maximum extent permitted by law, you (and anyone claiming through you) are not entitled to commence any action, claim or proceeding of any kind whatsoever against us or any of our employees or agents or associated entities, arising in any way out of or in any way connected with this Agreement and the provision of the Services if a period of three (3) months has expired since the completion or termination of the provision of the Services.
5.4. Indemnity Provided by You
You shall indemnify and hold us harmless and keep us indemnified and held harmless, from and against any and all possible liabilities, claims, costs, damages and/or losses arising, directly or indirectly, and in any way whatsoever, where such liabilities, claims, costs, damages and/or losses were caused by:
(a) A breach by you of any of your responsibilities and obligations arising from this Agreement and/or any of the Associated Agreements.
(b) Any misuse of the Services by you or any third party related to you.
(c) Any wilful, unlawful or negligent act or omission by you; or
(d) Any infringement by you of any third party’s intellectual property rights.
You authorise us to undertake any form of online communication or interaction, including social media communication or interactions that we deem necessary throughout the provision of the Services. You shall indemnify and hold us harmless and keep us indemnified and held harmless from and against any and all possible liabilities, claims, costs, damages and/or losses arising in any way, and whether directly or indirectly, out of the provision of the Services, including, without any limitation, any and all third party claims, regardless of the developer or creator of the material used for such communication or interaction.
Any indemnity given by you under this Agreement is a continuing and enduring indemnity, and will constitute an obligation of yours separate and independent from your other obligations, and will endure beyond and survive the completion or termination of this Agreement.
6. PAYMENT FOR SERVICES
6.1. Making Payment
You must pay the agreed Fee for all Services provided in accordance with the provisions set out in this Agreement and all Associated Agreements, without any set-off or deduction of any kind whatsoever. If a debit is returned by your financial institution as unpaid, certain Services may be suspended until payment has been rectified, and you will incur a failed payment Fee. You authorise us to re-process any unsuccessful payments after three (3) Business Days. Certain recurrent Fees may remain in place as per any Agreement between us and you, at our discretion.
6.2. Time for Payments
You will make payment to us, without any set-off or deduction, for any Service provided to you by us under this Agreement and all Associated Agreements, within thirty (30) days of receipt of any invoice for the provision of such Services, in the manner specified in this Agreement or the relevant Associated Agreement.
Where any payments for the provision of Services operate on a subscription basis and are accordingly made regularly, that payment by you will automatically be renewed at the end of the relevant subscription period, unless you cancel your subscription by contacting [[email protected]] thirty (30) days prior to the end of your current subscription period.
6.3. Payments for Disbursements and Other Services
You will reimburse us for all out of pocket expenses that are incurred by us in the provision of our Services, including travel expenses, and for certain other expenses incurred by us in the provision of our Services such as for the purchasing of licensed content.
6.4. Overdue Payments
If you fail to pay us the Fee for any Service agreed to by you under this Agreement or any of the Associated Agreements, we may immediately suspend performance of the Services and charge interest at a rate of 10% per annum on the outstanding amount, calculated from the due date of such payment, until the date it is actually paid in full.
Where this Agreement or any Associated Agreements between us and you involves the recurring payment of a Fee for the provision of any Services, that Fee may remain in place at our discretion notwithstanding that the Services have been suspended.
You shall indemnify us and hold us harmless, and keep us indemnified and held harmless, from and against any and all damages, claims, losses or costs, direct or indirect, suffered or incurred by us in any way, in recovering or seeking to recover any amount payable to us by you under this Agreement and/or any of the Associated Agreements.
6.5. Cancellation of Services/Payments
You acknowledge that a cancellation fee may apply where any of the Services provided under this Agreement and any Associated Agreements are cancelled by you at any time prior to the completion of the provision of those Services. You agree to pay such fee where applicable.
7. DEFAULT AND TERMINATION
7.1. Third Party Costs and Disbursements
Third parties may provide credit facilities for the billing of certain Services under this Agreement and/or the Associated Agreements. The terms of those credit facilities may require full payment of accounts rendered within specific terms of trade. Failure to meet those terms of trade may attract a late payment fee. The third party may also withdraw the credit account. Where a credit application under this Clause is rejected, you must pay us for the Services in advance, at least thirty (30) days prior to commencement of the provision of the Services.
You acknowledge that certain Services provided by us are subject to Free TV Australia / CAD approvals. We accept no liability for (and you hereby fully release us from) any claim or liability whatsoever, arising from or due to such approval being refused or denied for any reason.
7.2. Financial Default
If you are unable, at any time, to pay your debts as and when they fall due, or have appointed to your business, assets or affairs, a controller, administrator, manager, receiver, or other third party to control or administer your business, affairs or assets, or if you enter into any scheme of arrangement with creditors, we may, at our discretion, and without prejudice to any other rights we may have consequent upon the happening of any of those events, immediately terminate this Agreement and all Associated Agreements.
7.3 Default and Termination
Unless stated otherwise in an Associated Agreement, this Agreement may only be terminated by mutual agreement between us and you.
You must arrange a suitable alternative payment method if any 7.3. payment arrangements are cancelled either by you or by your financial
7.4. Terminating Payments
If you terminate this Agreement for any reason or if we terminate the Agreement as a result of a default by you, then you shall immediately pay all outstanding invoices owed to us and any third party suppliers, including any existing or subsequent invoices for all costs and expenses reasonably incurred by us in connection with any Services provided by us, and you agree that upon such termination, we shall have no liability or responsibility to you of any kind whatsoever, and howsoever arising, and that we will not refund any amounts that you have already paid, to the fullest extent permitted by law.
8. OTHER PROVISIONS
This Agreement and any Associated Agreements between us and you are confidential, and shall not be disclosed to any person or entity who is not a part of this Agreement or Associated Agreements unless such disclosure is specifically required by law.
8.2. Intellectual Property and Copyright
You hereby agree and acknowledge that you do not and will not acquire any intellectual property rights of any kind whatsoever in, to and over any materials used or created for the purposes of this Agreement or any Associated Agreements between us and you, and that all such intellectual property rights shall be and remain vested in us.
You warrant that you are legally entitled to use any and all material that you supply to us in contemplation of the provision of all Services that we may provide to you under this Agreement and all Associated Agreements, including, without any limitation whatsoever, the entitlement to any intellectual property rights in and to all of the material that you may supply to us.
You shall indemnify and hold us harmless and keep us indemnified and held harmless from and against any and all possible liabilities, claims, costs, damages and/or losses arising in any way, and whether directly or indirectly, out of the provision by you to us and the use by us, of any and all material that you supply to us in contemplation of the provision of the Services, including, without any limitation, any and all third party claims for breach of copyright or any other intellectual property rights in and to all such material.
8.3. Procedures for Resolution of Disputes
If a dispute or difference arises between us and you out of or in connection with this Agreement, either party may deliver by certified mail to the other party a notice in writing adequately identifying and providing details of the dispute, and the parties shall:
(a) First, meet within seven (7) days of receipt of the notice, to negotiate, in good faith, resolution of the dispute; and
(b) Secondly, if the parties fail to resolve the dispute or difference within seven (7) days of that meeting, they shall attend a mediation administered in accordance with the Institute of Arbitrators Australian Rules for the Conduct of Commercial Arbitrations.
(c) Finally, if the dispute is not resolved at the mediation then the dispute shall be submitted to arbitration in accordance with and subject to The Institute of Arbitrators Australian Rules for the Conduct of Commercial Arbitrations.
Nothing in this Clause shall prevent us from instituting legal action at any time to recover moneys owed to us by you.
This Agreement is subject to and shall be interpreted in accordance with the laws applicable in the State of Western Australia. The parties hereby submit to the exclusive jurisdiction of the Courts in that State.
You are understood and deemed to have accepted, and the parties are understood and deemed to have entered into, this Agreement at the earlier of such time as:
(a) You request or direct us to carry out any part of the Services; or
(b) You sign and return to us a copy of this Agreement or a signed copy of any relevant Associated Agreement.
This Agreement may only be amended by written agreement of the Parties.
We may assign any or all of our rights and obligations under this Agreement and/or any applicable Associated Agreement, without your written consent. You may not assign any part of this Agreement or your rights and obligations hereunder without our written consent. This prohibition will apply equally to any relevant Associated Agreement.
8.8 Entire Agreement
(a) This Agreement contains the whole agreement between the parties in respect of the subject matter of the Agreement and it supersedes and replaces any prior written or oral agreements, representations or understandings between the parties relating to such subject matter.
(b) You confirm that you have not entered into this Agreement on the basis of any representation or warranty that is not expressly incorporated into this Agreement, and that in entering into this Agreement, you have done so of your own free will and volition, and having made your own enquiries.
(a) No failure or delay by us in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same, nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
(b) The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
8.10 Agency, Partnership etc
(a) This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this Agreement.
(b) Neither party shall have, nor represent that it has, any authority to make any commitments on the other party’s behalf.
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, that provision shall, but only to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and such severance shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement or any other provision in it.
A notice or other communication connected with this Agreement has no legal effect unless it is in writing. In addition to any other method of service provided by law, the notice may be sent by pre-paid post or email to the address provided by you in any Associated Agreement.