iMobileMedia Advertising Program Terms
iMobileMedia: Independent Mobile Media Australasia Pty. Limited ABN 81 156 647 719
Address c/o Level 5, 75 Miller Street North Sydney
These iMobileMedia Advertising Program Terms (“Terms”) are entered into as applicable, by the
Customer, being the party signing these Terms or any document that references these Terms or that accepts these Terms electronically. These Terms govern iMobileMedia’s advertising program(s) (“Program”) as further described herein and, as applicable, Customer’s participation in any such Program(s), Customer’s online management of any advertising campaigns (“Online Management”) and/or any orders, or service agreements executed by and between the parties (together the “Terms”). iMobileMedia and the Customer hereby agree and acknowledge:
- The Customer by this Terms engages the Service Provider to provide the Customer access to digital marketing services via web based online and mobile Programs which encompasses various value added Services supplied by iMobileMedia including digital advertising, affiliate marketing, third party publishers, interrelated shopping applications and the opportunity for the Customer in conjunction with its product/s suppliers to offer promotional redemption rewards through dedicated consumer Programs for Consumer Program Members (Members).
- The Program enables Customers and iMobileMedia to represent, market and merchandise the Customers products as well as promote various types of consumer offers via various Platforms to the Public and Members including rewards based around Trademark protected promotional currencies called “FuelCents” or “PinMoney” or otherwise as presented.
- The Customer by this Terms wishes to engage the Services of iMobileMedia to include the Customer in the Program and from time to time present various Offers from the Customer to Members, either online or at physical stores, or for sales of products or services of the Customer or in conjunction with other brand suppliers (“Services”).
- These Terms may be updated or amended at any time by advising the Customer on the Platform or via electronic mail (email)
Policies may be modified any time. Customer shall direct only to iMobileMedia communications regarding Customer ads on iMobileMedia or Partner Properties. iMobileMedia may modify any advertisements or Offers to comply with any Policies.
Where any Program features are identified as “Pilot,” “Beta,” or “Trial”. To the fullest extent permitted by law, these features are provided “as is” and at Customer’s option and risk. Customer shall not disclose to the public or any third party any information from these beta features, existence of non-public beta features or access to beta features.
2 The Program.
Sales Performance Twelve Month Guarantee
iMobileMedia guarantee to deliver the sales stipulated as per each selected Shop Local Community package within twelve full calendar months of commencement. In the event of any shortfall, at the end of twelve months, the Customer may elect to receive continued advertising free of charge, until the guaranteed sales performance level is achieved, or have the proportion of any costs paid for advertising refunded pro-rata, in proportion to the undelivered sales value. The terms of this guarantee require twelve month continued participation with on-time payment of accounts. The twelve month guarantee, applies to the initial minimum performance value, not including additional top up or bonus sales packages. All merchants are invited to participate, however to be eligible for the guarantee, the business must have been in operation for more than twelve months prior to commencement of the program, in commercial premises appropriate to the category, at the same address as listed. The minimum sales value in the selected package should not exceed more than one weeks’ average sales for the business over the prior twelve months. These conditions are presented only to ensure that the performance guarantee bears reasonable relationship to the prospects and capacity of the business.
The Customer is solely responsible to produce, or otherwise view and approve all:
(a) web sites, services and landing pages or Content links, and advertised services and products (collectively “Services”). Customer shall protect any Customer passwords and takes full responsibility for Customer’s own, and third party, use of any Customer accounts and;
(b) all product descriptions, offer descriptions and values, ad content, ad information, ad URLs, and published articles or posts (“Content”), as well as any ad targeting options to defined groups that may be presented (collectively “Targets”) whether generated by or for the Customer;
Ads, Offers, or Content may be placed on:
(a) any Platform provided by iMobileMedia unless opted-out by Customer;
(b) any other site, platform or property provided by a third party (“Partner”) upon which iMobileMedia places ads (“Partner Property”).
The Customer acknowledges that advertising services are provided in part as a cooperative collaboration between the Customer and other non-competing advertisers. To that end, the Customer shall authorize and accept reasonable placement of compatible advertising, Offers or Content within its Showcase posts, so as to likewise benefit from a similar placement of their own advertising, Offers or Content on other participating business Customer pages or posts.
The Customer may request certain specific advertising or content be not placed or removed from being associated with their pages or profile, or similarly not have their advertising or content represented within the pages of certain business categories or specific businesses.
Any Offer or Content is deemed approved by Customer after the Modification Period, and iMobileMedia is only liable to Customer for discrepancies if Customer can certify by contemporaneous documentary evidence that iMobileMedia posted ads or Content previously directed as being not approved by Customer.
With respect to all other advertising, Customer must provide iMobileMedia with all relevant Content by the due date set forth in that advertising Program’s applicable Offers or as otherwise communicated by iMobileMedia.
The Customer grants iMobileMedia permission to utilize any automated software program to retrieve and analyze websites or access available data associated with the Services for sales verification, or ad quality and serving purposes, unless Customer specifically opts out of the Program or any part of the Program, in a manner specified by iMobileMedia. iMobileMedia or Partners may reject or remove any ad, Content or Offer any time for any or no reason.
The Customer authorises iMobileMedia to liaise with any point of sale solutions provider engaged by the Customer for any purpose including establishing coupon or voucher promotions or implementing a OneZap barcode to be printed on the Customer’s sales receipts for the purposes of capturing and verifying an individual Program Members’ purchase transactions by matching the transaction detail contained on the Member’s sales receipt to the transaction records of the Customer.
The customer will issue any written authorisation as may be required by be required by a point of sale solutions provider to confirm the above authorisation. Any costs for initial implementation of the OneZap barcode will be the responsibility of iMobileMedia at its sole discretion.
iMobileMedia may modify the Program or these Terms at any time without liability and any use of the Program after notice that Terms have changed indicates acceptance of the Terms.
3 Cancellation or Removal.
The Customer may cancel any advertising, or request removal of any specific advertising, Offers or Content through the Customer’s online account or, if such online cancellation functionality is not available, with prior written notice to iMobileMedia, including electronic mail.
In requesting cancellation, the Customer shall advise whether all currently published advertising, Offers or Content is to cease forthwith, or as and when current prepayments are exhausted. In either case no refund of any prepaid amount will be due or provided.
In requesting removal of either their advertising, or that of a third party, the Customer shall detail specific locations including page URL’s or other detail as may be required, to reasonably identify the relevant material and effect its removal.
All digital advertising, Offers or Content so cancelled or requested for removal will cease serving as instructed, subject to iMobileMedia’s ability to withdraw published Offers, re-schedule reserved inventory or cancel advertisements already in production. Cancelled advertisements may be published despite cancellation if cancellation of those ads occurs after any applicable commitment date as set forth in advance by the Partner or iMobileMedia, in which case Customer must pay for those ads and any redeemed Offers, that may be unpaid by the time publication has concluded.
The Customer may cancel or withdraw from participation in the Shop Local Community program at any time by first providing ninety days (90 days) notice, in which event program charges will apply for the next three monthly payments. The Customer may elect to withdraw or continue any marketing or advertising services during this notice period.
iMobileMedia may cancel immediately any Order, any of its advertising Programs, or these Terms at any time without notice, in which case Customer will be responsible for any ads already run or Offers redeemed. If Services are cancelled by iMobileMedia, any prepaid funds remaining after all ads cease and Offers concluded, shall be refunded to the Customer.
iMobileMedia may modify any of its advertising Programs or Offers at any time without liability. Sections 1, 2, 3, 5, 6, 7, 8, 9 and 10 will survive any expiration or termination of this Terms.
4 Prohibited Uses; License Grant; Representations and Warranties.
Customer shall not, and shall not authorise any party to:
- Advertise anything illegal or engage in any illegal or fraudulent business practice.
- Generate fraudulent or otherwise invalid reviews, comments, impressions, inquiries, conversions, likes, clicks or other actions;
- Use any automated means of Member tracking or data extraction to access, query or otherwise collect iMobileMedia Program Member related information from any website or property beyond its own domain identity except as expressly permitted by iMobileMedia;
- Entice, coerce or incentivize any iMobileMedia or Partner Member, contractor or staff member, to leave or otherwise not use the iMobileMedia Program; or
- Contract independently with a Partner of iMobileMedia for similar Services, having first had Services supplied by that Partner through iMobileMedia.
The Customer represents and warrants that it holds or has obtained from the relevant persons unconditional and irrevocable consents permitted by applicable laws to any act or omission that would otherwise infringe such person’s moral rights and hereby grants iMobileMedia and Partners all rights (including without limitation any copyright, trademark, patent, publicity or other rights) in Content, Services needed for iMobileMedia and Partner to operate iMobileMedia’s advertising and Offer programs for Customer (including without limitation any rights needed to host, cache, route, transmit, store, copy, modify, distribute, perform, display, reformat, excerpt, analyze, and create algorithms from and derivative works of Content) in connection with this Terms (“Use”).
Customer represents and warrants that:
- All Customer information is and will be maintained by the Customer as complete, correct and current; and
- Any Use hereunder and Customer’s Content, and Services will not violate or encourage violation of any applicable laws, regulations, code of conduct, or third party rights (including, without limitation, intellectual property rights). Violation of the foregoing may result in immediate termination of this Terms or customer’s account without notice and may subject Customer to legal penalties and consequences.
5 Disclaimer and Limitation of Liability.
Except for circumstances as specified in Section 2 Program Sales Performance Guarantee;
(a) To the fullest extent permitted by law, and subject to section 5(b) iMobileMedia disclaims all warrantees, express or implied, including without limitation for non-infringement, satisfactory quality, merchantability and fitness for purpose.
To the fullest extent permitted by law, iMobileMedia disclaims all guarantees regarding positioning or volume levels or timing of: (i) sales / Offer claims, (ii) click through rates, (iii) views or any impressions, Content, or Targets on any Partner Property, iMobileMedia Property, or section thereof , (iv) clicks,(v) conversions or other results for any ads or Targets (vi) the accuracy of Partner data (e.g. reach, size of audience, demographics or other purported characteristics of audience), and (vii) the adjacency or placement of advertisements within a Program.
Except for indemnification amounts that may be payable to third parties hereunder and Customer’s breaches of Section1, to the fullest extent permitted by law and subject to section 5(a):
(a) NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES, loss of profits, revenue, interest, goodwill, loss or corruption of data or for any loss or interruption to a Customer’s business, whether in contract, tort (including negligence) or any other legal theory, even if advised, of the possibility of such damages and notwithstanding any failure of essential purpose of any limited remedy; and
(b) EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER IS LIMITED TO AMOUNTS PAID OR PAYABLE TO iMobileMedia BY CUSTOMER FOR THE AD OR OFFER GIVING RISE TO THE CLAIM. Except for payment obligations, neither party is liable for failure or delay resulting from a condition beyond the reasonable control of the party, including but not limited to acts of God, government, terrorism, natural disaster, labour conditions and power failures.
(c) Certain legislation, including the Competition and Consumer Act 2010(CTH), may imply Warranties or Conditions or impose obligations upon iMobileMedia which cannot be excluded, restricted or modified in full or to a limited extent. These Terms must be read subject to these statutory provisions. If these statutory provisions apply, to the extent to which iMobileMedia is able to do so, its liability under those provisions will be limited, at its option, to:
(i) Supply the Services again; or
(ii) The cost of having the Services supplied again.
The Customers’ Agent or Agency represents and warrants that:
- It is authorised to act on behalf of the Customer and has bound to this Terms any third party for which Customer advertises (a “Principal”),
- As between Principals and Customer, the Principal owns any rights to Program information in connection with those advertisements, and
- Customer shall not disclose Principal’s Program information to any other party without Principal’s consent.
7 Charges Fees and Expenses
- Any charges, fees or expenses that are be charged to the Customer will be set out in accordance with the Package Rate as presented or otherwise as specified in writing between the parties.
- Customer advertising or Offers on the Program will continue to be charged in advance at the Package Rate as selected by the Customer until such time as a different Package Rate is selected by the Customer or for a period of three months after the advertising is expressly cancelled and all advertisements and Offers are able to be withdrawn.
- The Customer shall pay the Charges and fees, within the terms of any invoice that may be issued by iMobileMedia and prior to the commencement of the publication of any advertisement or Offer.
- The listed charges are exclusive of any Goods and Services Tax (“GST”),
- If payment of an invoice is not made by the due date, iMobileMedia shall be entitled, without limiting any other rights it may have, to withdraw any publication of the Customer’s advertising or Offers or supply of any other services or otherwise terminate these Terms.
- The Customer or iMobileMedia may request changes to the Package or Rate during the Term of the Service in which case current advertising or Offers will be terminated as soon as possible and replaced with advertising, Offers or Services at the new rate. Any cost for changes must be approved by the Customer in writing before the iMobileMedia proceeds to carry out the Service changes. Any such invoice will be subject to 7 day payment terms.
- The Customer shall not as a result of any requested amendments to the Package Rate, or in any other circumstances, be entitled to a refund of Charges already invoiced by, or amounts paid to the Service Provider.
Customer shall be responsible for prompt payment of all charges as specified in the Package Rate at registration, for all advertising and sales Offers claimed up until such time as these Terms are expressly cancelled and all advertisements and Offers are able to be withdrawn. The customer shall pay all charges in Australian Dollars or in such other currency as agreed to in writing by the parties.
For online credit card payments made to iMobileMedia, card details are transmitted through a secure server using St George Bank PayWay, payment gateway services or via PayPal services. Card data is not hosted by iMobileMedia after processing.
Unless agreed to by the parties in writing, Customer shall pay all charges in accordance with the applicable Package Rate. Where payments are not paid in advance, late payments shall bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). The Customer is responsible for paying all taxes, government charges, and reasonable expenses including any legal fees iMobileMedia incurs collecting late amounts.
To the fullest extent permitted by law and subject to section 5(b), Customer waives all claims relating to charges unless claimed within 60 days after the charge (this does not affect Customer’s credit card issuer rights).
Charges are solely based on iMobileMedia’s measurements for the applicable Program, unless otherwise agreed in writing. To the fullest extent permitted by law, refunds are not provided. Nothing in these Terms may obligate iMobileMedia to extend credit to any party.
iMobileMedia may provide information in relation to payment details in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. iMobileMedia shall not be liable for any use or disclosure of such information by such third parties.
Customer shall indemnify and defend iMobileMedia, its Partners, agents and affiliates, from any third party claim or liability (collectively, “Liabilities”), arising out of Use, Customer’s Program use, Content and Services and breach of the Terms. Partners shall be deemed third party beneficiaries of the above Partner indemnity.
After the date of these Terms, the parties shall use all reasonable endeavours to procure that any necessary third party, at the cost of the relevant party, execute all documents and do all acts and things reasonably required by that party for the purposes of giving that party the full benefit of all the provisions of this Terms
The Terms must be construed as if both parties jointly wrote it. These Terms constitute the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any other applicable agreements, terms and conditions applicable to the subject matter hereof.
Any conflicting or additional terms contained in additional documents or oral discussions are void. Each party shall not disclose the terms or conditions of these Terms to any third party, except to its professional advisors under a strict duty of confidentiality or as necessary to comply with a government law, rule or regulation.
The Customer may grant approvals, permissions, extensions and consents by email, but any modifications by the Customer to the Terms must be made in a writing executed by both parties. Any modifications made by iMobileMedia shall be notified in writing to the Customer, in which case the absence of a response from the Customer shall be deemed tacit acceptance of the advised modification.
Any notices to iMobileMedia must be sent to Independent Mobile Media Australasia Pty. Limited Level 5, 75 Miller Street North Sydney with a copy to Legal Department, care of DC Balog and Associates, Suite 129, 267 Castlereagh St Sydney NSW 2000 via confirmed facsimile, with a copy sent via first class or air mail or overnight courier, and are deemed given upon receipt.
Notice to Customer may be effected by sending email to the email address specified in Customer’s account, or by posting a message to Customer’s account interface, and is deemed received when sent (for email) or no more than 15 days after having been posted (for messages in Customer’s account interface).
A waiver of any default is not a waiver of any subsequent default. Unenforceable provisions will be modified to reflect the parties’ intention and only to the extent necessary to make them enforceable, and remaining provisions of the Terms will remain in full effect.
Customer may not assign any of its rights hereunder and any such attempt is void.
The Customer and iMobileMedia and iMobileMedia’s Partners are not legal partners or agents, but are independent contractors. In the event that these Terms or an Advertising Program expire or is terminated, iMobileMedia shall not be obligated to return any materials to Customer.
Customer: is the merchant, business or party registering to use iMobileMedia Advertising Program and any stores or outlets operated by the Customer.
Content: All materials of whatsoever kind and nature including and not limited to documents media logos, trademarks, catalogues, photos, product images, product descriptions, barcodes, banners, display materials representations wherever published by or on behalf of the Customer, materials (whether now known or created) provided, approved and or endorsed by the Customer to iMobileMedia or created by iMobileMedia or its Partners as directed by the Customer or otherwise from publicly available materials to enable iMobileMedia to deliver the Services or Orders in accordance with these Terms.
FuelCents & PinMoney: are trademark names registered and owned by the Service Provider. They refer to the right of redemption, through a dedicated consumer platform, of promotional offers, refunds or rebate rewards by Consumer Platform Members subject to specific terms and conditions stipulated by the service provider being met.
Intellectual Property Rights: means all present and future intellectual property rights subsisting in any and all media and materials (whether now known or created in the future), conferred by statute, at common law or in equity and wherever existing including:
- All patents, trademarks, content, designs, copyright, code, rights in circuit layouts, trade marks, Confidential Information, know how, brand names, domain names, inventions, patent rights, product names, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration;
- Any application or right to apply for registration of any of these rights contained in paragraph (a);
- All renewals and extensions of the rights referred to in paragraphs (a) and (b); and
- Any corresponding proprietary rights under the laws of any jurisdiction.
Modification Period: Is a period of twenty four (24) hours after the Insertion Order is either authorised or placed by the Customer, during which the Customer must review the advertising or Offer on the Program.
Offer/s: means an offer by the Customer or iMobileMedia, for any reward or sales incentive or right of redemption associated in respect of sales of a product/s or service/s of the Customer to the public or Program Members.
Offer Period: means any specified period communicated on the Platform or in any Presentation Material as relating to a specific Offer. The Offer Period will be presented as dates including and between which Qualifying Purchases may be made. The absence of an Offer Period will indicate that the Offer may continue to be presented or communicated until reasonable notice is provided for the Offer to be removed or amended.
Offer Terms & Conditions: means any terms and conditions as presented or otherwise as legally required, to present an Offer or promotion within a State or Territory of Australia as communicated on the Program for that Offer.
Online Management: Means facilities that may be provided by iMobileMedia in addition to the Service/s that support, report and enable the provision of the Service/s.
Order: Is an order for the insertion of an Offer or registration to participate in the Program either authorised or placed by the Customer for ongoing Service/s as specified.
Package Rate: The pricing package or commission rate as communicated by iMobileMedia and selected electronically or accepted in writing by the Customer for the provision of the Service/s in accordance with this Terms.
Partners: Any third party engaged by iMobileMedia to communicate or otherwise provide the Service/s in accordance with this Terms.
Platform: means the mechanism/s represented by the Service Provider through and on which the Program operates, whether in the nature of digital publications, social platforms, websites, mobile applications or from time to time other technological interfaces, hardware or software whether embedded with or comprising other information technology or software or other applications and communications media as used from time to time to present advertising, content, products, services, offers, rewards and promotions.
Program: means the presentation of Services to the public and Consumer Program Members in the form of advertising, content, products, services, rewards and offers in conjunction with digital, online, mobile or in store promotions and marketing via the Platform;
Program Member: Any person who accesses the Program, completes the Consumer Program Member Registration process successfully and remains so registered.
Qualifying Purchase: means purchase/s of any or all products or services as specified in the Offer within the Offer Period in accordance with the Terms and Conditions
Service Provider: The Service Provider is iMobileMedia, or Independent Mobile Media Australasia Pty. Limited ACN 81 156 647 719
Services: The Customer approves and endorses advertising communications containing Customer Content, logos and other Intellectual Property and materials as supplied by the Customer or otherwise as created by iMobileMedia or its Partners, or otherwise as publically available to be used to drive traffic to the Customer’s website, ecommerce or online store, or physical store for the purpose of generating sales. Approved Program Services include: digital advertising, websites, rewards platforms, online or mobile publisher sites, games, blogs, coupon sites, email marketing, content marketing, digital marketing tools and services, cashback and loyalty offers, price comparison sites, social media, cost per acquisition (CPA), sub-affiliate networks, incentivized offers, video or software.
Targets: May be defined in demographic or other terms that describe consumers, shoppers or households for the purposes or more accurately placing Offers, advertisements or other communications.
Terms: means the Terms and Conditions as set out in this document as well as any other documented specifications that reference these Terms or are referenced by these Terms.
In these Terms unless the context otherwise requires or permits:
- where any word or phrase is given a defined meaning, then other parts of speech and grammatical forms of that word or phrase will have a corresponding meaning;
- the use of headings, underline or marginal notes are included for convenience and ease of reference only and do not affect interpretation of this Terms;
- references to a singular number include the plural and vice versa;
- references to a gender include any gender;
- references to a party will include as the context requires that party’s respective executors, administrators and successors;
- references to a successor to a party includes its successors, assigns and licensees and all further successors, assigns and licensees of the relevant party or such successors, assigns or licensees;
- references to a person includes any other entity recognised by law;
- references to this Terms include any annexures and schedules to this Terms and any other document expressly incorporated as part of this Terms;
- references to clauses, subclauses, paragraphs, annexures and schedules are references to clauses, subclauses, paragraphs, annexures and schedules in this Terms;
- references to any agreement or document are references to that agreement or document (and, where applicable, any of its provisions), as amended, novated, supplemented, varied or replaced from time to time;
- references to any legislation or legislative provision will include modifying, consolidating, or replacing legislation or legislative provisions and references to a statute will include all regulations, proclamations, ordinances and by-laws issued under that statute;
- references to proceedings include litigation, or arbitration;
- references to a breach of warranty includes that warranty not being complete, true or accurate;
- references to an obligation include any warranty or representation and references to a failure to comply with an obligation include a breach of any warranty or representation;
- references to $, AUD$, A$, Australian Dollars or dollars is a reference to the lawful tender for the time being and from time to time of the Commonwealth of Australia;
- references to $, NZ$, New Zealand Dollars or dollars is a reference to the lawful tender for the time being and from time to time of New Zealand;
- references to winding up or bankruptcy include bankruptcy, winding up, liquidation, dissolution, becoming an insolvent under administration (as defined in section 9 of the Corporations Act) and to the circumstances and events giving rise to or contributing to such condition or matters;
- references to months and years means calendar months and years;
- references to assets include any real or personal, present or future, tangible or intangible property or assets (including intellectual property) and any right, interest, revenue or benefit in, under or derived from any property or assets;
- the words ‘including’ and ‘includes’ and similar words are not words of limitation;
- every covenant, provision, representation, warranty, obligation or agreement applying to, binding or given by more than one person will bind them jointly and each of them severally;
- a requirement to do anything includes a requirement to cause that thing to be done and a requirement not to do anything includes a requirement to prevent that thing being done; and
- a provision of this Terms is not to be construed adversely against a party solely on the ground that the party or its solicitors were responsible for the preparation of this Terms or of a particular provision of this Terms.