This agreement is between Mass Media Limited (Mass Media) and the Advertiser.
Mass Media owns and operates the internet presence, http://www.gymnation.co.nz, referred to hereinafter as Gymnation.
1. Mass Media agrees to allocate advertising space, and the Advertiser agrees to advertise its products or services on Gymnation’s pages under the terms and conditions set out in this Agreement.
TERMS AND CONDITIONS
2. Advertising Content: The Advertiser warrants and undertakes to Mass Media that no statement, representation or information contained in the Advertisement -
(a) is or is likely to be misleading or deceptive or to otherwise infringe the Fair Trading Act 1986; or
(b) is at all defamatory, in breach of copyright, trademark, third party's contractual or tortious rights or other intellectual or industrial property right of any third party or Mass Media; or
(c) is otherwise in breach of, or is promoting a product that is in breach of, any provision of any statute, regulation, rule or law.
The Advertiser acknowledges that Mass Media relies on the warranties set out in this clause (#2) in accepting Advertisements for publication. The Advertiser hereby agrees to indemnify Mass Media, its employees, servants, and agents against all losses or costs (legal or otherwise), liabilities, claims or proceedings whatsoever arising as a result of any breach of these warranties.
3. Limitation of Liability: Mass Media will use best endeavours to ensure the Advertisements accurately reflect the approved material provided by the Advertiser. Mass Media will not however be responsible for any errors in the content, or the incorrect appearance, of any published Advertisements. Mass Media's maximum liability under any claim will not exceed the fees paid by the Advertiser for the Advertisement. Mass Media will correct any notified errors, for which they are responsible, as an immediate action priority and will be done so with maximum haste at no cost to the advertiser.
Mass Media will guarantee that any links will be created as supplied by the advertiser, subject to Mass Media’s technical specifications. Mass Media will give priority commitment to allocating resources to the resolution or restoration of any link or material issues relating to the applicable site for which we are responsible.
4. Right to refuse: Mass Media may at any time and without notice to the Advertiser cancel, reject or refuse to continue publishing any Advertisement without providing any reason for such rejection or refusal at any time prior to, or after, publication of the Advertisement. This right will not be unreasonably exercised.
5. Consumer Guarantees Act: The guarantees contained in the Consumer Guarantees Act 1993 are expressly excluded where the Advertiser acquires or holds itself out as acquiring goods or services from Mass Media for the purposes of a business. The provisions of that act do not apply to the goods or services provided under this Agreement or under any other written Agreement the Advertiser may have with Mass Media.
6. Privacy Act: The Advertiser agrees that any personal information about Internet users that is obtained by Mass Media as a result of Internet users accessing Gymnation's content pages will only be made available to the Advertiser at Mass Media’s sole discretion, and only if to do so would not breach any of Gymnation's obligations to its users which are set out in any other Agreement.
7. Force Majeure: Mass Media will not be liable to the Advertiser or any other person for any loss of whatever kind suffered as a result of the Advertisement not being available for publication where such event arises from any cause beyond its control. Any loss suffered as a result of any partial or total breakdown of Gymnation’s operation or network will be deemed to be an event beyond Mass Media’s control. Should such an event occur, Mass Media will take responsibility to resurrect site and links, and the Advertiser has the right to cancel the contract at no penalty if such an occurrence results in the site being down for more than 48 hours.
8. The Advertiser must -
(a) make a booking application by providing Mass Media with all necessary details of the advertising campaign, including the campaign’s name or order number, commencement date, and duration. Approval of this application by Mass Media will serve as confirmation to the Advertiser of the booking of the Advertisement;
(b) deliver to Mass Media the Advertisement intended for display on Gymnation by the Final Date for Creative, this being 7 days before the booking commences (unless by prior written arrangement). The advertisement so received is taken to be the final copy, and no changes may be made, except at the discretion of Mass Media;
(c) ensure that every Advertisement complies both with the terms of this Agreement and Gymnation’s technical specifications;
9. Due Date: Payment is due prior to the campaign's commencement, unless other negotiations are approved in writing by Mass Media.
10. Late Payment: If payment of any invoice is not received by Mass Media on or before the Due Date, Mass Media may:
(a) Immediately and without notice, suspend or cancel all advertising orders of the Advertiser for this particular program as well as other advertising booked through any Mass Media company; and
(b) Impose interest at the rate of 2% per month on all sums that remain unpaid until full payment is received.
11. Cancellation of Advertisement: Any cancellation by the Advertiser of any Advertisement, for which a Booking Application Form has been accepted by Mass Media, must be in writing. Upon cancellation, the Advertiser agrees to pay Mass Media the following charges ("Cancellation Fees").
(a) if cancellation occurs after sending the Booking Application Form to Mass Media but prior to the Final Date for Creative, a sum equivalent to 20% of the total charges payable by the Advertiser for the Advertisement had publication taken place.
(b) If cancellation occurs after Final Date for Creative but before the publication date, a sum equivalent to 75% of the charges payable by the Advertiser for the Advertisement had publication taken place.
(c) If cancellation is made in writing with 30 days' notice, then the existing booking can be aborted with the understanding that any residual funds committed to the original booking will be made good through a future campaign with Gymnation.
12. Taxes and GST: Any government or industry taxes, and/or levies payable for Advertisements must be borne by the Advertiser. The charges set out are exclusive of GST, and this must be borne by the Advertiser.
13. Exclusivity: Unless otherwise specified, Mass Media makes no warranty of exclusivity in the services it provides to the Advertiser. For the avoidance of doubt, this means that Gymnation has the right to also display advertising and other content from other businesses, including competitors of the Advertiser, simultaneously to the Advertiser’s own campaign.
14. Editorial Independence: The Advertiser acknowledges that Mass Media retains complete editorial freedom for Gymnation, and the Advertiser has no influence on any content beyond the scope of the Advertiser’s own Advertisements.
15. Archiving: While Mass Media may keep a copy of past advertisements on file for its own records, any archiving responsibility lies solely with the Advertiser.
16. Production Services: If the Advertiser requires any of creative, production, programming, or other services ("Production Services") from Mass Media, there will be additional charges for such services. Before commencing such service, Mass Media will require written confirmation of the Advertiser’s acceptance of the charges. Mass Media will charge the Advertiser for these production services on a case by case basis.
17. Governing Law: This Agreement is governed by, and construed in accordance with the laws of New Zealand. The parties submit to the exclusive jurisdiction of the Law of New Zealand in respect of any dispute arising from this Agreement.
18. Severability: If any provision of this Agreement is held illegal or unenforceable, then such illegality or unenforceability shall not affect the remaining provisions of this Agreement which shall remain in full force and effect as if such provision held to be illegal or unenforceable had not been included in this Agreement.
19. Variations: Any variation to this Agreement must be in writing and signed by both parties before the variation comes into effect.