Definitions

“Agency” means an agency acting on behalf of a Client in relation to the Services or payment for the

Services.

“Booking” means a request to broadcast or otherwise publish advertising material as identified in the

Broadcast Agreement.

“Broadcast Agreement” means the Broadcast Agreement between Client and the Broadcaster which

sets out the Services and is subject to and includes these Terms and Conditions.

“Broadcaster” means each company specified in the Broadcast Agreement, whether on its own behalf

or as agent for a commercial radio licensee.

“Client” means the person for whose benefit the Services are provided under the Broadcast Agreement

and includes an Agency.

“Delete and Charge” means that the Broadcaster will not publish any advertising requested in a

Booking but will nevertheless charge the Client for this advertising.

“Holdings” means the electronic holdings file containing confirmation of Bookings (including without

limitation all spot and non-spot charges) received by the Broadcaster on behalf of an Agency Client via

The WA Radio Network provided to the Agency by the Broadcaster’s chosen delivery method each

weekday evening, in the form of an electronic holdings for download into a compatible media

management systems used by the Agency.

 “Insolvent” means being unable to pay debts as and when they fall due; ceasing to carry on business, having a liquidator, receiver, receiver and manager or administrator appointed to the whole or any part of the assets of a business; making any composition or arrangement with creditors; having an order or

resolution made for the dissolution or liquidation of a business (other than for the purpose of solvent

amalgamation or reconstruction); or any similar or analogous procedure, action or event in

consequence of debt in any jurisdiction.

“Play and Charge” means that the Broadcaster will publish any advertising requested in a Booking and will charge the Client for this advertising.

“Services” means the publication, communication or broadcast of advertising material on any medium

as specified in the Broadcast Agreement.

Agreement

1. Any Booking placed by Client with the Broadcaster shall constitute an offer by Client to acquire

Services and the Broadcast Agreement attached to this document or any variation thereof

constitutes the Broadcaster’s acceptance of that offer on the terms set out in these Standard

Terms and Conditions and in the Broadcast Agreement.

Payment and Credit

2. Client will be charged for the provision of Services at the rates set out in the Broadcast Agreement.

3. If Client has a credit account with the Broadcaster, Client will be provided an invoice on a monthly

basis for the value of Services provided during the preceding month and Client must pay the

amount invoiced in accordance with the terms of that invoice and in any event, no later than 30

days from the date of that invoice. The Broadcaster may, in writing, offer extended payment terms

to Clients that are approved advertising agencies. Extended payment terms may be revoked if the

Client at any time does not comply with the terms of credit or payment terms. The Broadcaster

may charge an additional administration fee for payments made by Credit Card.

4. If Broadcaster’s invoice is not paid when due, the Broadcaster may, in its discretion and without

limiting its other rights: (a) charge interest on the unpaid amount at the rate charged by the

Commonwealth Bank Australia as its Index Rate from time to time plus 5%

until such amount is paid; (b) suspend publication or broadcast of any advertising material lodged

by Client until such time as all outstanding payments are received by the Broadcaster; (c) if the

unpaid amount exceeds 90 days, charge an administration fee of 2% per month, from date of

invoice, on the unpaid amount; (d) to the extent permitted by law, recover any expenses, costs or

disbursements including legal costs for debt recovery incurred by the Broadcaster in recovering

any outstanding monies: (e) cease to provide, or impose conditions on the provision of, credit to

the Client and require pre-payment for any subsequent Booking; and (f) not pay or deduct any

applicable agency rebate, discount or commission, and the amount of any such rebate, discount

or commission shall be immediately due and payable. The Broadcaster may use the services of

a mercantile agent for recovery of unpaid amounts and may commence legal proceedings to

recover unpaid amounts without notice.

5. The Broadcaster may at any time at its discretion and without notice alter, cancel, suspend or

impose conditions on credit facilities.

6. If Client does not have a credit account, or the value of Services exceeds the available credit limit,

payments for Services must be made at least 3 business days prior to advertisements being

published. If payment is not made in accordance with this clause, the Broadcaster will Delete and

Charge or Play and Charge (in its absolute discretion) for the Services and Client agrees that it

will be liable for such charges.

Conditions on Provision of Services

7. The Broadcaster: (a) reserves the right to refuse to accept for publication or to publish or to

withdraw any advertising material for any reason; and (b) may, at its discretion and at any time,

cancel, reschedule or replace any programming or advertising breaks within or between

programming without reference to the Client.

8. Client acknowledges and agrees that: (a) scheduling of programming and advertising by the

Broadcaster is subject to unforeseen changes and the Broadcaster may reschedule

advertisements at any time in its absolute discretion; (b) Services may be subject to interruption.

and (c) it must not re-sell, sub-license or sub-contract any advertising allocated to it other than

with the consent of the Broadcaster, (d) Client may only cancel, vary or reschedule a Booking with

28 days’ written notice and the Broadcaster will Delete and Charge or Play and Charge (in its

absolute discretion) Bookings where this notice is not given, and Client agrees to be liable for such

charges: and (e) The Broadcaster does not guarantee the success of any advertising or

promotional campaign booked pursuant to the Broadcast Agreement and no recourse will be

available as against the Broadcaster or any of its employees, agents or representatives for failure

of advertising booked by Client to achieve the desired results; (f) the Broadcaster may from time

to time publish or broadcast other material or advertisements which are not beneficial to Client’s

business and custom; and (g) for Bookings made by an Agency participating in the WA Radio Network, Holdings is deemed to be the final confirmation from the Broadcaster of the Booking. It is

the Client’s sole responsibility to check Holdings and notify the Broadcaster of any errors within 2

business days of making the Booking and subsequently on a weekly basis throughout the period

of the campaign. Any errors (included misplaced, duplicated or incorrectly rated Bookings) for

spots or non-spot charges that appear in Holdings that are not queried by the Client with the Broadcaster will not attract a credit and Client will be required to make full payment for advertising

published, communicated or broadcast in accordance with Holdings. In the event the Broadcaster

adjusts a Booking prior to Broadcast in accordance with this clause 8(g), they will advise the Client

of the changes to be reflected within Holdings with sufficient time prior to the Broadcast to allow

the Client to review and agree on those changes.

9. All copyright and other intellectual property rights created by the provision of Services by the

Broadcaster shall be the property of the Broadcaster, by way of present and future assignment.

Client must lodge advertising material in accordance with this clause and any lodgement

requirements specified by the Broadcaster from time to time. If the Client fails to comply with

this clause with respect to a Booking, the Broadcaster is under no obligation to perform the

Services. Broadcaster will Delete and Charge or Play and Charge (in its absolute discretion)

for advertising material that is not lodged in accordance with this clause and Client agrees that

it will be liable for such charges. The Broadcaster’s lodgement requirements include, but are

not limited to, the following: (a) Deadline for receipt of approved audio advertisements is 12

noon the business day prior to publication or broadcast; and (b) Bonus and BTA

advertisements cannot be guaranteed a particular time or position in break.

Warranties

10. Client warrants that advertising material and other information provided to the Broadcaster by

Client: (a) complies with all laws, statutes, regulations, codes of practice and any standards

determined by any relevant regulatory agency or industry self-regulatory body applicable to

Services: (b) complies with any standard or requirement specified by the Broadcaster and

notified to the Client from time to time; (c) does not infringe copyright, trademark or other legal

rights of any person.

(d) is not false or misleading and is true in substance and in fact; (e) does not infringe the

Australian Consumer Law 2010 (Cth) or equivalent state legislation; and (f) does not contain

anything which may give rise to any cause of action by a third party against the Broadcaster,

including without limitation material which is misleading and deceptive or defamatory or obscene

or which infringes any right of privacy or personality, or which otherwise causes injury or damage

to any person. Client further warrants it is responsible for obtaining and must obtain all consents,

approvals or permissions for the publication or broadcast of all advertisements on its behalf by

Broadcaster, whether required by law or otherwise. Indemnities

11. Client indemnifies and will keep indemnified the Broadcaster against any action, claim, loss or

expense arising from the Services or any breach by Client of the warranties in clause 11 of

these Standard Terms and Conditions or other clause of the Broadcast Agreement or these

Standard Terms and Conditions.

Liability

12. To the extent permitted by law, the Broadcaster has no liability to Client whether in contract, tort

or otherwise for any loss, cost, claim or damage (including without limitation for or in respect of

any consequential, special or indirect liability and loss of profits, opportunity, revenue or data)

arising from: (a) the provision of the Services by the Broadcaster; (b) any action taken by the

Broadcaster in accordance with clauses 7 or 8 above; or (c) any breach of the Broadcast

Agreement.

13. To the extent permitted by law, all implied representations, conditions or warranties by the

Broadcaster, whether based in statute, common law or otherwise, are excluded.

14. Any liability of the Broadcaster not excluded by clauses 13 or 14 above is limited, at the

Broadcaster’s option, to the supply of any service again or the payment for the cost of having

any service supplied again.

Termination

15. Either party may terminate the Broadcast Agreement: (a) without penalty upon the provision of

28 days’ written notice; or (b) immediately up      on the provision of notice where the other party

has breached a material term of the Broadcast Agreement (including these Standard Terms and

Conditions); or (c) immediately upon the provision of notice if the other Party is deemed

Insolvent or ceases or threatens to cease to carry on business.

Cancellation or Amendment of Advertising

16. (a) The cancellation or amendment by the Client of any Advertising later than 28 days prior to the scheduled Start Date will incur a cancellation fee of 100% of the Fees and any other amount that would be payable by the Client if the Advertising had been broadcast or published in accordance with the Advertising Order.
(b) If Advertising is cancelled or amended with less than 28 days notice but more than 14 days notice from the Start Date, WA Radio Network may, at its sole discretion, by arrangement with the Client, provide the Client with a delete and charge credit equal to the amount of the cancellation fee. A delete and charge credit will not be effective until the applicable cancellation fee has been paid in full by the Client.
(c) A delete and charge credit will expire 3 months after the date the relevant Advertising was cancelled and will not entitle the Client to any refund or other payment but may be utilised on unfilled broadcast times, subject to WA Radio Networks discretion to give higher priority to other customer’s actual or anticipated Advertising orders.

Agency

17. Each person constituting the Client will be jointly and severally liable as principal debtor for

payment of amounts invoiced by the Broadcaster. Client warrants that it has full authority in all

matters connected with the entering into and performance of the Broadcast Agreement with the

Broadcaster.

Miscellaneous

18. The Broadcast Agreement between the Broadcaster and Client will be governed by the laws in

force in New South Wales and each party submits to the jurisdiction of courts exercising

jurisdiction in the State or Territory in which Services are provided (or where the Services are

provided in more than one State or Territory, that State or Territory selected by the Broadcaster

in its sole discretion).

19. If the Broadcaster is prevented or delayed in the performance of any of its obligations by a force

majeure event being an event beyond its control, it shall be excused from the performance or

the punctual performance for so long as such event shall continue.

20. The terms and conditions of the agreement concluded between Client and Broadcaster are set

out exhaustively in these Standard Terms and Conditions and in the attached Broadcast

Agreement or any variation thereof and comprise the entire agreement of the parties. The

Broadcast Agreement and these Standard Terms and Conditions supersede and exclude any

prior representations, negotiations, arrangements, understandings, communications or

agreements between Client and Broadcaster relating to the subject matter of the Broadcast

Agreement. The Broadcast Agreement and these Standard Terms and Conditions can only be

varied by agreement in writing by both parties, and in the case of the Broadcaster varying these

Standard Terms and Conditions, by it giving notice in writing.

21. A waiver of any right, power or remedy under the Broadcast Agreement and these Standard

Terms and Conditions must be in writing signed by the party granting it. The fact that a party

fails to do, or delays in doing, something the party is entitled to do under the Broadcast

Agreement and Standard Terms and Conditions does not amount to a waiver.

22. Each provision of this document is individually severable. If any provision is or becomes illegal,

unenforceable, void or invalid in any jurisdiction it is to either: (a) be treated as being severed

from this Agreement in the relevant jurisdiction, but the rest of this document, and the legality,

validity and enforceability of the provision in any other jurisdiction, will not be affected; or (b) be

read down to the extent necessary to make it valid and enforceable in the relevant jurisdiction.

23. The Broadcaster collects and shares the personal information of the Client and any individuals

associated with the Client in accordance with the Broadcaster’s privacy policy available on its

website (as updated from time to time).