Terms and conditions for advertising or sponsorship with Bean Media Group Pty Ltd
These Terms must be read and agreed to prior to booking any advertising or entering into any sponsorship agreement with Bean Media Group Pty Ltd. A signed Agreement or confirmation of order means that these Terms have been read in full and the Advertiser agrees to be bound by these terms.
These are the Terms under which Bean Media Group will supply and sell advertising space in Bean Media Group Publications and related products and services to the Advertiser. Bean Media Group’s acceptance of the Agreement is conditioned upon the Advertiser’s acceptance of these Terms and Bean Media Group being satisfied in its sole and absolute discretion that the Advertiser is not a credit risk.
1.1 In these terms, unless the context otherwise requires:
a) “Advertisement” means the material agreed between Bean Media Group and the Advertiser to be placed in the Publication in respect of which the Fee is to be paid and may include, without limitation, loose or bound inserts, tip-ons, display advertisements, column advertisements and Advertorials whether in electronic or hard-copy form.
b) “Advertising Agreement” means the document detailing the agreement or confirmation of order signed for or on behalf of the Advertiser and accepted by Bean Media Group in respect of the Advertisement, which incorporate these Terms.
c) “Advertisement Design Services” means design services provided by Bean Media Group to the Advertiser which include the design and production of a print-ready advertisement. Advertisement Design Services are provided at an additional cost (Production Charge).
d) “Advertorials” means editorial content that falls within the definition of Advertisement.
e) “Agreement” means an Advertising Agreement or a Sponsorship Agreement.
f) “Bean Media Group” means Bean Media Group Pty Ltd ACN 126 697 747 and any or all of its related entities.
g) “Deadline” means the deadline identified in the Advertising Agreement.
h) “Fee” means the amount entered in Australian dollars as the “Total (inc GST)” on the Advertising Agreement, including any applicable taxes, duties and levies.
i) “GST” has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
j) “Invoice Date” means the date on which Bean Media Group issues a tax invoice in respect of the placement of the Advertisement or Sponsorship.
k) “Publication” means the publication or publications specified as in the Agreement whether published in hard-copy, in electronic form, on the internet or in any other form by Bean Media Group.
l) “Publication Date” means the date on which the Publication is delivered to a point of sale, letterbox, mail centre is dispatched by email, posted online or otherwise made available (as the case may be).
m) “Rate Card” means the document prepared by Bean Media Group for Advertisers that sets out the standard rates and charges that apply for booking space for Advertisements in relation to a Publication.
n) “Terms” means these terms and conditions for advertising and sponsorship with Bean Media Group Pty Ltd.
1.2 In these Terms, the singular includes the plural and vice versa. A reference to “$” or dollars means Australian dollars and a reference to payment means payment in Australian dollars unless otherwise stated in the Advertising Agreement.
2. Availability of Terms on Website
2.1 Bean Media Group will use its best endeavours to ensure that these Terms are posted at www.BeanMedia.com.au/terms.html or such other website as Bean Media Group may notify the Advertiser of from time to time.
3. Payment Terms and Interest
3.1 Bean Media Group shall place the Advertisements in the Publications, and the Advertiser shall pay Bean Media Group the Fee.
3.2 The Advertiser must pay the Fee within fourteen (14) days from the Invoice Date or in accordance with the terms of the Agreement. If the Advertiser does not make payment in full within this time period, any part of the Fee not paid will increase at a rate of 0.07% per day as interest until such time as the Fee (as increased by virtue of the operation of this term), has been paid to Bean Media Group in full. All payment is to be made in Australian dollars unless otherwise stated in the Agreement. If a payment plan has been included in the Agreement, the Advertiser agrees that the maximum duration for any payment plan is 12 (twelve) months. If a discount is offered by Bean Media Group in respect of the Fee, that discount is only available for final payment for a period of 24 hours after Bean Media Group receives. After this time, any discount offered is void and the full amount becomes payable.
3.3 Where an Agreement is cancelled, expired or suspended by Bean Media Group, the Fee shall be adjusted to reflect the pro-rata value of the actual amount of space and/or the number of issues of the Publication in which the Advertisements have been published and the Advertiser agrees to pay the amended amount calculated by Bean Media Group that remains outstanding without deduction.
3.4 In the event that the Advertiser breaches these Terms, the Advertiser shall pay to Bean Media Group on demand all costs and interest including without limitation all interest accrued and calculated pursuant to clause 3.2, any legal costs (assessed on a solicitor/own client basis), any debt recovery agent’s fees incurred by Bean Media Group in recovering any amounts outstanding under this Terms and any dishonour fees or bank fees incurred by Bean Media Group relating to payments made or not made by the Advertiser from time to time.. If the Advertiser’s outstanding account is passed to a third-party debt recovery agency, the Advertiser will also be liable to immediately pay any costs incurred by Bean Media Group in connection with the engagement of a debt recovery agency.
3.5 The Advertiser acknowledges that Bean Media Group has a lien over the material supplied by or on behalf of the Advertiser to Bean Media Group during such time as the Advertiser owes any sum to Bean Media Group pursuant to the Agreement.
3.6 The Advertiser acknowledges that where materials are supplied by the Advertiser to Bean Media Group without payment in full of all money payable in respect of the Advertisement, Bean Media Group has a right to register and perfect a personal property security interest over those materials.
4. Provision of Credit
4.1 In the event that Bean Media Group extends credit to the Advertiser, the Advertiser:
4.1.1 acknowledges that the Advertisements are sought for the purposes of business, not private or domestic use, and that Bean Media Group relies upon this representation if Bean Media Group agrees to publish the Advertisements on credit;
4.1.2 guarantees that the Advertiser will be able to repay all amounts owing within 14 days of the Invoice Date. Bean Media Group reserves the right to add additional fees to the outstanding monies owed by the Advertiser in respect of costs incurred from any third-party debt recovery agencies as referred in clause 3.4.
4.1.3 agrees to provide all financial information requested by Bean Media Group to assist it in deciding whether to extend credit to the Advertiser.
4.2 If the Advertiser wishes to make a claim against Bean Media Group following publication that relates to the provision of credit, the Advertiser must give Bean Media Group written notice setting out full particulars of that claim within seven (7) days of the Publication Date. If the Advertiser:
4.2.1 provides such written notice, the Advertiser agrees that Bean Media Group’s decision in respect of that claim shall be final and bind the parties;
4.2.2 fails to provide written notice within seven (7) days of the Publication Date, the Advertiser agrees that, subject to any guarantees under the Australian Consumer Law, it will have waived all rights to make a credit claim against Bean Media Group in respect of the Publication and must pay the Fee in full within the time specified in these Terms.
4.3 By signing the Agreement, the Advertiser authorises Bean Media Group to obtain information pursuant to the Privacy Act 1988 (Cth) as amended from time to time, and to make whatever other inquiries and obtain such other information that Bean Media Group deems reasonably necessary in the circumstances to determine the acceptability and continued acceptability of the Advertiser for receiving credit facilities.
4.4 Bean Media Group may in its absolute discretion, terminate the Agreement at any time if it is of the opinion that the Advertiser is a credit risk. If Bean Media Group terminates the Agreement under this clause 4.4, termination will not affect any obligations of the parties that survive termination, either express or implied.
5. Content and Control
5.1 Bean Media Group accepts no responsibility for any artwork or material provided to Bean Media Group by the Advertiser (or on its behalf). Artwork or other material is provided to Bean Media Group at the Advertiser’s risk and Bean Media Group will not be held responsible for any legal issues arising from any artwork or material provided by the Advertiser. If artwork or advertising material is provided after any artwork due date as provided for in the Agreement or Rate Card, Bean Media Group cannot guarantee that the material will be included.
5.2 In the event that the deadline for submission is not explicitly stated on the Agreement or Rate Card, it is the Advertiser’s responsibility to confirm with Bean Media Group the deadline for submission of the artwork or advertising material. If the artwork or advertising material is not furnished to Bean Media Group by the deadline, Bean Media Group may, without notice to the Advertiser, either:
5.2.1 substitute alternate material that Bean Media Group holds for the Advertiser; or
5.2.2 delete the space and charge the Advertiser for the full amount of the Fee (less any payments made by the Advertiser) for the space booked.
5.3 Bean Media Group retains full editorial control of the Publications and may at any time in its absolute discretion alter the name, size and layout (but not the subject matter) of a Publication in which an Advertiser has placed an Advertisement without notice or incurring any liability whatsoever to the Advertiser. Should any changes be made by Bean Media Group this will not constitute grounds for cancellation of the Agreement by the Advertiser nor will it give rise to any liability in respect of Bean Media Group for any loss or damage or any claim whatsoever as a consequence of such changes. Bean Media Group is not responsible for editorial content supplied by the Advertiser (or on its behalf) or by third parties. The Advertiser is liable to pay the Fee regardless of any specific editorial content published in any editorial feature.
5.4 Bean Media Group may in its absolute discretion, reject or withdraw from publication any Advertisement it considers unsuitable for publication for any reason without incurring any penalty or liability. If an Advertisement is rejected or withdrawn under this clause 5.4, the Advertiser remains liable for the Fee. Bean Media Group reserves the right to alter the content of an Advertisement for any reason and the Advertiser agrees that it remains liable for the Fee. Bean Media Group reserves the right to change any Advertisement that it deems unsuitable for publication and the Advertiser remains liable for the Fee. If Bean Media changes an Advertisement supplied by the Advertiser, the Advertiser will receive a proof of the revised advertisement by email from Bean Media prior to publication.
5.5 The positioning of Advertisements will be at the sole discretion of Bean Media Group unless alternative arrangements have been made in writing between the parties, including the provision or any loading paid by the Advertiser to Bean Media Group. The content and control of ‘pull quotes’ that are booked to appear within editorial features are placed at the sole discretion of Bean Media Group and must be no more than 40 words maximum.
5.6 Booking of advertising space is for the actual advertising space set out in the Agreement and does not include payment for any Advertisement Design Services. Advertisement Design Services are provided for an additional fee (Production Charge). All images, logos and other content provided by the Advertiser to Bean Media Group must be supplied in a print-ready state. Any third party costs incurred by Bean Media Group will be invoiced to the Advertiser in addition to the Production Charge.
5.7 The Advertiser must not on-sell, assign, transfer or otherwise grant the use of advertising space booked or purchased by the Advertiser from Bean Media Group to any third party without the prior written consent of Bean Media Group. Such consent may be withheld by Bean Media Group’ in its absolute discretion.
5.8 If Bean Media Group submits editorial content to Google and Yahoo news, it takes no responsibility for that content being used by Google or Yahoo news. In the event that Google or Yahoo news choose not to use the editorial content, the Advertisers agrees to pay Bean Media Group the Fee. Bean Media Group cannot guarantee or quote specific readership figures.
5.9 If the Advertiser commits a breach of clause 5.6, Bean Media Group may refuse to include any and all Advertisements placed in a Publication by that Advertiser pursuant to these Terms, but the Advertiser shall remain liable for the full amount of the Fee.
6. Intellectual Property
6.1 The Advertiser acknowledges that Bean Media Group is the owner of the copyright in all Advertisements (including artwork) prepared by the employees, servants and/or agents of Bean Media Group on behalf of the Advertiser and neither the Advertiser nor any other party is entitled to publish, reproduce or otherwise, communicate to the public or otherwise exploit the rights in the Advertisements or artwork without the prior written permission of Bean Media Group.
6.2 The Advertiser unconditionally warrants to Bean Media Group that any material it provides to Bean Media Group in relation to any Advertisement will not infringe the intellectual property rights of any third party when published. The Advertiser continually indemnifies Bean Media Group against any claim, loss, damages, costs or expenses incurred directly or indirectly by Bean Media Group as a direct or indirect result of the Advertiser’s breach of this warranty.
7.1 The Advertiser shall indemnify and keep indemnified Bean Media Group from and against all claims, loss, damage and expenses whatsoever, incurred directly or indirectly by reason of any breach of the Agreement, negligence, tortious act or other wrongdoing by the Advertiser. Without limiting the foregoing, the Advertiser shall indemnify Bean Media Group from and against all claims, loss, damage and expenses incurred in connection with any Advertisement that contains or refers to any material that is defamatory, breach of copyright or other intellectual property rights, offensive, amounts to unfair competition, a violation of rights of privacy, is or is likely to be misleading or deceptive or in violation of any applicable law, regulation, statute, guideline or code of ethics, including but not limited to the Competition and Consumer Act 2010, Copyright Act 1968 (Cth), and any equivalent legislation as amended from time to time and the Australian Association of National Advertisers Code of Ethics.
8.1 The Agreement may be terminated by Bean Media Group at any time if, in its absolute discretion, it considers that the Advertiser is a credit risk, the Advertiser is in breach of the Agreement or in any event on the provision of seven days notice in writing by Bean Media Group to the Advertiser. If termination occurs, Bean Media Group is no longer required to place any Advertisement in any of its Publications and all outstanding sums owed to Bean Media Group by the Advertiser shall become due and payable immediately. Should the Advertiser wish to cancel a booking under an Advertising Agreement within 14 days from a confirmation of order a cancellation fee equal to 75% of the Fee is payable. Cancellations must be in writing on a formal letterhead from the Advertiser. If the Advertiser wishes to cancel a booking under an Advertising Agreement more than 14 days after a confirmation of order, it will incur the full Fee.
9. Distribution of Publications
9.1 The Advertiser acknowledges that Bean Media Group may procure third parties to distribute its Publications or fulfill any of its obligations under the Agreement. The Advertiser acknowledges and agrees that where a Publication is distributed by a third party on behalf of Bean Media Group, a written audit report from that third party confirming the extent (including the quantity and manner) of the distribution of the Publication in question shall be accepted by the Advertiser as conclusive evidence of the extent of that Publication’s distribution.
10. Limitation of Liability
10.1 The Advertiser expressly agrees that use of Bean Media Group services is at the Advertiser’s risk. To the full extent permissible at law, Bean Media Group’s liability for breach of any term implied into these terms by any law is excluded.
10.2 To the fullest extent permissible at law Bean Media Group’s liabilities and obligations, under or pursuant to these Terms are expressly limited to the provision of space for Advertisements in its Publications. In any event, Bean Media Group Pty Ltd’s liability to the Advertiser, if any, shall not exceed the total of the amounts paid by the Advertiser to Bean Media Group relating to the service or product giving rise to the liability.
10.3 While every endeavour will be made to ensure the insertion of Advertisements in accordance with the Advertiser’s instructions, to the fullest extent permissible at law no guarantee or warranty will be given or implied, nor any liability accepted for any loss or damage occasioned by any omission, mistake, error or misplacement of any Advertisement by Bean Media Group and without limiting the foregoing, Bean Media Group shall not be liable for any special, incidental, or consequential damages of any kind, or for loss of profits, loss of opportunity, loss of business or goodwill or interruption of business arising out of or in connection with these Terms or the Advertising Agreement however arising or wheresoever situated from any act, error or omission by Bean Media Group in respect to any Advertisement placed or to be placed on the Advertiser’s behalf.
10.4 Nothing in this clause 10 affects the Advertisers rights for any alleged failure of a guarantee under the Australian Consumer Law
11. No Warranty as to Advertising Response
11.1 Bean Media Group makes no representation or warranty, express or implied, as to the efficacy or suitability of any Advertisement placed in a Publication by or on behalf of the Advertiser, nor to the effectiveness, or outcome of, or response to such Advertisement, and the Advertiser’s liability to pay the Fee shall not be dependent in any way upon such efficacy, outcome of or response to the Advertisement.
12.1 Entire Agreement
The Agreement is the entire agreement between Bean Media Group and the Advertiser in respect of its subject matter and all conditions, warranties and terms implied by custom, general law or statute that are not expressly set out in the Agreement are excluded to the maximum extent permitted by law.
Bean Media Group may assign any of its rights or obligations under the Agreement to any third party at any time without notice to the Advertiser. The Advertiser may not assign any of its obligations under the Agreement without the prior written consent of Bean Media Group. The Advertiser must notify Bean Media Group in writing within 7 days of any change of ownership of the Advertiser and fully indemnifies Bean Media Group against any loss or damage suffered by Bean Media Group as a result of the Advertiser’s failure to notify Bean Media Group of such change.
12.3 Force Majeure
If for any reason beyond the control of Bean Media Group (including without limitation as a result of fire, flood, blackout, industrial action, theft, sabotage or equipment breakdown) Bean Media Group cannot complete its obligations under the Agreement, Bean Media Group shall be entitled to delay performance of the Agreement or terminate the Agreement at its absolute discretion and the Advertiser shall not make any claim for loss or damages in respect of such delay or termination.
No waiver of any right under the Agreement nor delay in enforcement or any other indulgence shall affect the rights of a party under the Agreement and all the rights and powers of that party will remain in full force and effect notwithstanding any such waiver, delay or other indulgence.
If any court of competent jurisdiction determines that any provision of the Agreement is invalid, illegal or unenforceable, the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired. The offending provision or part shall be interpreted to whatever extent possible to give effect to its stated intent.
12.6 No Merger
The obligations of the Advertiser in respect of agreements, consents, covenants and warranties contained in these Terms shall remain in full force and effect and are not extinguished upon termination of the Agreement.
12.7 No Amendment
The Agreement shall not be varied except by a document in writing signed by the parties
12.8 Governing Law and Jurisdiction
The Agreement shall be read and construed according to the law of the state of New South Wales and the parties irrevocably agree that any dispute relating to the Agreement shall be determined in a court of the state of New South Wales with the necessary jurisdiction.
In addition to the Terms above, the following terms apply in circumstances where the Advertiser enters into a Sponsorship Agreement with Bean Media in respect of THE CEO Magazine’s Executive of the Year Awards (EOY Awards).
Throughout these clauses 13, 14, 15 and 16 the following words will have the meaning as defined, unless the context otherwise requires:
(a) “EOY Awards” means the event held periodically and known as THE CEO Magazine’s Executive of the Year Awards.
(b) “Sponsor” means an Advertiser who enters into a Sponsorship Agreement with, and which is accepted by, Bean Media Group in respect of the EOY Awards.
(c) “Sponsorship” means the goods and services described in the ‘sponsorship package’ of the Sponsorship Agreement.
(d) “Sponsorship Agreement” means the document detailing the agreement and ‘confirmation of order’, signed for or on behalf of the Advertiser and accepted by Bean Media Group in respect of sponsorship of an EOY Awards event, which incorporates these Terms.
(e) “Sponsorship Fee” means the payment from the Sponsor to Bean Media Group of the amount described in the Sponsorship Agreement.
Bean Media Group grants the Sponsor the Sponsorship for the EOY Awards event in consideration for the Sponsorship Fee.
13.3 Exclusive Sponsorship
Bean Media Group may provide the Sponsorship to the Sponsor on an exclusive basis in Australia in a particular industry. This exclusivity will be documented in the Sponsorship Agreement.
(a) The parties may, for the purpose of fulfilling their obligations under the Sponsorship Agreement, use and reproduce a party’s trade marks with the prior written approval of the other party. Such approval shall not be unreasonably withheld.
(b) Unless specifically stated otherwise in the Sponsorship Agreement, Bean Media Group is responsible and liable for all costs involved in supplying, facilitating, producing and enforcing the Sponsorship.
(c) If requested by the Sponsor in the Sponsorship Agreement, Bean Media Group must provide a draft of the proposed material containing the Sponsor’s trade mark to the Sponsor to allow the Sponsor to review and propose amendments to those materials before the date set for communication to the public. Any amendments requested by the Sponsor to such materials are at the Sponsor’s expense.
(d) Bean Media Group agrees to use the Sponsor’s trade marks in good faith and not purport to act on behalf of the Sponsor, accept money on behalf of the Sponsor, alter the offers approved by the Sponsor, make a promotional offer for the Sponsor or advise any person on the Sponsor’s products or services.
(e) The Sponsor agrees to use Bean Media Group’s trade marks in good faith and not purport to act on behalf of Bean Media Group, accept money on behalf of Bean Media Group, alter the offers approved by Bean Media Group, make a promotional offer for Bean Media Group or advise any person on Bean Media Group’s products or services.
(f) Each party must use reasonable endeavours to promote the other party to its clients, members and staff and provide assistance as reasonably requested by a party from time to time to achieve this goal.
(g) Nothing in the Sponsorship Agreement constitutes a grant to Bean Media Group of any goodwill or proprietary right in or in relation to the Sponsor’s trade marks. Likewise, nothing in the Sponsorship Agreement constitutes a grant to the Sponsor of any goodwill or proprietary right in or in relation to the Bean Media Group’s trade marks.
(h) Each party must comply with all laws including all Australian statutes and specifically the provisions of the Corporations Act 2001, the Competition and Consumer Act 2010, the Privacy Act 1988, the Spam Act 2003, the Do Not Call Register Act 2006, and any associated regulations and industry codes of practice.
(i) A party must not do anything (or fail to do anything) that causes the other party to breach any relevant law or policy.
(j) Except as required by law, both parties shall keep the other party’s confidential information (which may be designated by a party as confidential or be confidential information by nature), including the terms of the Sponsorship Agreement, strictly confidential. All obligations of confidentiality shall cease in connection with information once it enters the public domain.
14 Sponsorship Fee
14.1 Sponsorship Fee
The Sponsor will pay the Sponsorship Fee to Bean Media Group on acceptance of the Sponsorship Agreement by Bean Media Group. A refund may be provided, at the sole discretion of Bean Media Group, to the Sponsor if the EOY Awards event designated in the Sponsorship Agreement is cancelled.
The parties acknowledge that unless otherwise specified, all payments under or in connection with the Sponsorship Agreement have been calculated without regard to GST. If the whole or any part of a payment under or in connection with the Sponsorship Agreement is subject to GST, the Sponsor must pay Bean Media Group on demand an additional amount equal to the GST amount.
15 Warranties and Indemnity
Further to clause 11 (No Warranty as to Advertising Response) of the Terms, Bean Media Group makes no representation or warranty, express or implied, as to the effectiveness, or outcome of, or response to any Sponsorship of the EOY Awards, and the Sponsor’s liability to pay the Sponsorship Fee shall not be dependant in any way upon such effectiveness, outcome or response to the EOY Awards.
Further to clause 7 (Indemnity) of the Terms, The Sponsor shall indemnify and keep indemnified Bean Media Group from and against all claims, loss, damage and expenses whatsoever, incurred directly or indirectly by reason of any breach of the Sponsorship Agreement, negligence, tortious act or other wrongdoing by the Sponsor. Without limiting the foregoing, the Sponsor shall indemnify Bean Media Group from and against all claims, loss, damage and expenses incurred in connection with any EOY Awards event that contains or refers to any material that is defamatory, a breach of copyright or other intellectual property rights, offensive, amounts to unfair competition, a violation of privacy, or is likely to be misleading or deceptive or in violation of any applicable law, guideline or code including but not limited to the Competition and Consumer Act 2010, the Copyright Act 1968, the Australian Association of National Advertisers ‘Code of Ethics’, and any equivalent legislation or guideline as amended from time to time.
15.3 Limitation of Liability
Further to clause 10 (Limitation of Liability) of the Terms, the Sponsor expressly agrees that the Sponsorship and use of Bean Media Group’s services is at the Sponsor’s own risk. Subject to law, Bean Media Group’s liabilities and obligations under the Sponsorship Agreement are expressly limited to the Sponsorship, and shall not exceed the total Sponsorship Fee paid to Bean Media Group.
While reasonable endeavours will be made to ensure that all items of the Sponsorship will be available and performed, subject to law, no guarantee or warranty is given or implied, nor any liability accepted for any loss or damaged occasioned by any omission, mistake, error or failure to perform a Sponsorship item by Bean Media Group. Without limiting the foregoing, Bean Media Group will not be liable for any special, incidental, or consequential damage of any kind, or for loss of profits, loss of opportunity, loss of business or goodwill or interruption of business arising out of or in connection with the Sponsorship Agreement however arising or wheresoever situation from any act, error or omission by Bean Media Group in respect of any part of the Sponsorship. Nothing in this clause affects the Sponsor’s rights, if any, under the Competition and Consumer Act (2010).
16.1 Termination for material breach
The Sponsorship Agreement may be terminated immediately by either party given written notice to the other party if the other party commits a material breach of the Sponsorship Agreement which, if capable of remedy, has not been remedied within 3 days of the date on which written notice was given.
16.2 Rights upon termination
Upon termination of the Sponsorship Agreement, the Sponsor’s rights to use Bean Media Group trade marks shall immediately cease.