Terms & Conditions
Messagespace Pty Ltd is a privately owned Australian business that supports freedom of expression in advertising but reserves the right to refuse any advertising at the sole discretion of management.
The following guidelines will assist advertisers in creating content suitable for display by Messagespace
- Advertising Order Binding When Signed
This agreement is between Messagespace Pty Ltd and the Customer described in the Contract and is binding upon acceptance.
- Advertising Agreement
In consideration of the Summary of Costs set out in this Contract by the Customer, Messagespace will display the Advertising material (“Material”) for the Term at the Site(s) described in the Contract. This agreement is for the provision of Advertising Space and if indicated in the contract of the advertising Material.
- Display Production
3.1 If it is indicated in the Contract that it is intended that Messagespace will carry out production in respect of the Material per the applicable site Display Screen Creative Specifications, Messagespace will make a proposal to the Customer regarding such production which, if accepted by the Customer, will constitute an Agreement between Messagespace to carry out such production in accordance with such proposal and any contract.
3.2 If Messagespace is engaged to provide production, the production services will be provided on Messagespace’s standard terms and conditions for supply of production services from time to time and the Customer will, if required by Messagespace, execute Messagespace’s standard production agreement in respect of such production. Messagespace may subcontract such production. Messagespace may receive and retain any commission paid to Messagespace by any third-party production company in respect of such production or may charge the Customer a fee for production comprising the third-party production fees plus a Messagespace administration fee from time to time.
3.3 If it’s specified in the Contract that the Customer will carry out its own production of Material per the applicable site Display Screen Creative Specifications, the Customer must provide Messagespace with the final digital material 5 working days before the commencement of the display period for display approval at such addresses as Messagespace may direct. Acceptance is subject to material being (in Messagespace’s opinion) suitable for display of a nature which will be approved by any authority whose approvals are required and in compliance with Messagespace’s specification from time to time.
3.4 To facilitate the efficient delivery of production services to the Customer, the Customer consents to Messagespace’s disclosure of information relating to the Customer’s production requirements to third party entities, but the Customer may withdraw that consent by written notice to Messagespace.
3.5 Unless specified and approved in writing, no replacement Material will be made during the term. Where replacements are specified, a charge additional to the Production Cost may apply.
- Invoices To Customer
4.1 The Media Charge will be invoiced by Messagespace to the Customer. This includes any applicable productions and other charges as incurred.
4.2 If the Customer is a direct Advertising Client, all invoices must be paid in full 5 working days prior to the commencement of the campaign, or in the case where the Customer is an Advertising Agency, within 30 days from the date of invoice. Where the Advertising Agency is the Customer, the Advertising Agency is liable for payment of all money due under this advertising order whether or not the Advertising Agency receives money from the Advertiser.
4.1 Messagespace will not accept advertisements that portray people or depict material in any way that discriminates against or vilifies a person or section of the community on account of race, ethnicity nationality, gender, age, sexual preference, religion, disability, mental illness or political belief.
- The Customer
5.1 Is liable for the Summary of Costs from the Campaign Start Date. If it the Customer fails to provide the Material to Messagespace within the time specified in clause 3.3, the Material may not be displayed at the Site from the Campaign Start Date. The Customer will be responsible for any delays or other losses arising from the Customer’s failure to comply with the supply lead times specified in clause 3.3 and will not be entitled to any extension of the display period or other compensation. Messagespace may impose additional installation fees in respect to Material not being delivered in compliance with this clause and may also require reimbursement of additional costs incurred including electronic storage, handling and delivery.
5.2 Will supply Messagespace with electronic copies of the Material to specification to enable Messagespace to maintain the displayed Material in good order. Messagespace will not be responsible for any failure to display the Material where such failures are caused by the Advertisers/Agency failure to comply with this clause.
5.3 Will, subject to any special conditions, pay the Media Charge when the contract is accepted by Customer and Messagespace. Messagespace will not allocate the advertising slot or schedule the campaign until the full Media Charge has been received.
5.4 Will ensure the Material complies with all laws and regulations affecting it and not limiting the generality of this clause, the Customer will ensure the material complies with the provisions of the Competition and Consumer Act 2010 (Australian Consumer Law) any similar state legislation, any requirements of the Local Government Act, Regulatory Body, Councils and any similar legislation from time to time enacted. The Customer hereby indemnifies Messagespace and any Site owner or occupier from and against, in respect of all actions, claims, damages and costs brought against, or incurred by Messagespace and any Site owner or occupier which in any way arise out of or in connection with the Material, or its content.
- Display Material And Right To Move/ Relocate
6.1 Messagespace will retain the Material in good order throughout the Term. If the Customer becomes aware that the Material has not been displayed or has been changed without both parties’ approval the Customer must notify Messagespace in writing of these circumstances as soon as practicable.
6.2 Messagespace will make every reasonable effort to display the Material in accordance with the requirements of the Customer but will also be entitled to;
6.2.1 refuse to display Material it considers unsuitable (either physically or in content)
6.3 Messagespace may terminate this agreement without penalty if the right of Messagespace to display the Material at the Site is terminated by the Site owner or occupier or by any Government, Regulatory Body, Council, or other authority of Council provided that in such event Messagespace will refund any Media Charge paid in advance to the Customer on a “pro-rata” basis.
6.4 Messagespace may terminate this Agreement without penalty if the Site is damaged or destroyed.
6.5 Messagespace may dispose of all Material after the end of the term without liability to the Customer. The Customer may, prior to that date, collect all Material at its own expense.
- Messagespace Not Liable For Any Delay
7.1 Messagespace is not liable for any failure or delay in the performance of this agreement where such failure or delay arises out of an act beyond the reasonable control of Messagespace.
If for any reason beyond the reasonable control of Messagespace;
7.2 it is unable to secure or retain tenure of the Site, Messagespace may terminate this agreement on 14 days’ notice to the Customer and neither party will have any further obligation to the other relevant to that Site.
7.3 Subject to notification by the Customer pursuant to clause 3, where an advertising display delay is caused by Messagespace, then the Customer will be entitled to either a pro rata abatement of charges or to an Advertising Space credit against future displays.
7.4 If the delay is in connection with display of the Material, Messagespace will use reasonable endeavours to ensure that the Material is displayed as close as possible to the Commencement Date however the Customer acknowledges that the Material could be displayed or removed a couple of days before or after the Commencement Date or the Expiry date.
7.5 Messagespace will not be responsible for any interruption to the power supply to any display screen due to circumstances beyond its reasonable control and the Customer will not be entitled to any abatement of the Media Charge during the period of any such interruption.
- Limitation of Liability
Unless prohibited by law, the liability of Messagespace for a breach of any condition or warranty in this agreement (other than those implied pursuant to sections 51 to 53 of the Australian Consumer Law) is limited to the supplying of the services again or the payment of having the services supplied again.
- Indemnity by The Customer
The Customer indemnifies and will keep Messagespace indemnified against:
9.1 Any claim, action, demand, damage, cost, proceeding, loss or other liability whatsoever, including (but not limited to) any claim, action or liability involving intellectual property, made on or against Messagespace arising directly or indirectly from or in connection with the production, display or removal or relocation of the Material and any claim, action or liability arising directly or indirectly as a consequence of a breach of this Advertising Order; and
9.2 Any claim, action, demand, damage, cost, proceeding, loss or other liability whatsoever made against or suffered by Messagespace as a consequence of any failure by the Customer (including Advertising Agency when it is the Customer) to pay all monies, costs or expenses howsoever payable under this Advertising Order; or
9.3 Any loss resulting from the Customer’s failure to perform its obligations under this Advertising Order should this Advertising Order become unenforceable.
- No Assignment
The Customer may not without the prior written consent of Messagespace assign its rights or obligations under this Advertising Order. Messagespace may assign its rights or obligations under this Advertising Order by giving written notice to the Customer.
11.1 The Customer may not cancel an accepted Advertising Order prior to the expiration of the Term without the written consent of Messagespace which may be granted or withheld in its absolute discretion.
11.2 Messagespace may terminate this Advertising Order and remove or cease copy by serving a written notice to that effect on the Customer if;
(a) the Customer fails to supply information within the required timeframe
(b) any requisite authority approval is not obtained by the Customer
(c) the Customer fails to make a payment within the timeframes per Clause 4.2
(d) the Customer fails to rectify any other breach of this Advertising Order
11.3 Messagespace may terminate this Agreement forthwith by notice in writing in the event of liquidation, receivership, appointment of an official manager or becoming insolvent under administration (as defined in the Corporations law) of the Customer or the non-payment of the Media Charge as required.
All information supplied by Messagespace to the Customer in relation to Messagespace’s finances and affairs, media locations, contracts, pricing or any other information which is designated confidential by Messagespace or ought reasonably to be regarded as confidential is confidential to Messagespace, and the Customer must maintain and ensure that it’s officers, employees, contractors and consultants maintain strict confidentiality in respect of such information.
The Customer acknowledges that the initial Advertising Order has been negotiated exclusive of any GST or similar tax. If GST applies to this Agreement because it is a taxable supply or for any other reason, the Customer must pay to Messagespace an additional amount on account of GST calculated by multiplying the consideration payable under this agreement by the prevailing GST rate.
- Entire Agreement
14.1 This agreement is the entire agreement and understanding between the parties on everything connected with the subject matter of this agreement; and
14.2 Supersedes any prior agreement or understanding on anything connected with that subject matter; and
14.3 Each party has entered into this agreement without relying on any representation by any other party or any person purporting to represent that party.
- Non-Cancellation by The Customer
Subject to the relevant termination rights set out in clauses 6 and 11, this agreement is not subject to cancellation and the Customer remains liable for payment for the Summary of Costs from the Commencement Date regardless of whether the material is ready for display by the supply lead times specified in clause 3.
- Agreement Continuance
If this Agreement continues on after the Term without further written agreement for a fixed term, it will be deemed to be continued on a fortnightly basis with either party being entitled to terminate the agreement at any time by giving 14 days-notice in writing to the other party and otherwise on the terms set out herein so far as applicable.
- Governing Law And Jurisdiction
The Law of South Australia governs this agreement. The parties submit to the non-exclusive jurisdiction of the courts of South Australia and of the Commonwealth of Australia.
- Advertiser means the advertiser referred to in the Advertising Order;
- Advertising Agency means the advertising agency referred to in the Advertising Order;
- Advertising Order means this Advertising Order including any applicable Advertising Order Schedules;
- “Messagespace” means Messagespace Pty Ltd ABN 23 156 580 111;
- Advertising Order Schedules means any schedules or components included in and forming part of the Advertising Order;
- Business Day means a week day on which banks are open in Adelaide;
- Material means the advertising material to be displayed on the Advertising Space, including any digital data files (in the format required by Messagespace) to enable digital images to be displayed on the digital Advertising Space;
- Customer means, where this Advertising Order is placed by an Advertising Client, the Advertising Client, and, where this Advertising Order is placed by an Advertising Agency, the Advertising Agency;
- Expiry date means the “Expiry date” specified on the Advertising Order;
- Contract means together these Standard Terms and Conditions, the Advertising Order, Advertising Order Schedules and any Display Screen Creative Specifications;
- Display Screen Creative Specifications means the applicable creative media specifications determined for each specific Advertising Space;
- Intellectual Property means any intellectual or industrial property, including a patent, trademark or service mark, copyright, registered design, trade secret, confidential information or licence or other right to use or to grant the use of any of the foregoing or to be the registered proprietor or user of any of the foregoing;
- Advertising Space means the digital advertising sign(s) situated at the location described in the Advertising Order or at such other location as notified by Messagespace;
- Media Charge means the charges as described in the Advertising Order under the heading Summary of Costs;
- Term means the time between the campaign start date and campaign end date;
- Special Conditions means the Special Conditions (if any) described in the Advertising Order;
- Commencement Date means the “Commencement Date” specified in the Advertising Order;
- Site Owner means the owner of the Advertising Space and /or any other person having the right to lease or licence the Advertising Space and or sites to third parties.