The Client named on the attached Booking Form (“Client”) places advertisements for publication with Vestis Media Limited (“FashioNZ”) on the following Terms and Conditions. The expression ‘Client’ means the advertiser and, where advertising has been placed with FashioNZ by an advertising agency, includes that agency.
1. Application of Terms
1.1 These Terms and Conditions apply to digital advertising on the fashionz.co.nz website, advertising search websites, mobile applications, and all other digital platforms under FashioNZ’s control (“Digital Advertising”).
1.2 Additional terms and policies: In addition to these Terms and Conditions, the Client
acknowledges that the supply of FashioNZ advertising will (unless agreed otherwise) be subject to:
a. FashioNZ’s current rate card terms;
b. any terms and conditions set out in the attached Booking Form;
c. any other terms and conditions or policies notified to the Client; and
d. the terms of any other agreement accepted by the Client,
(together “Additional Terms and Policies”). Additional Terms and Policies shall have priority over these Terms and Conditions to the extent of any inconsistency or conflict. To the extent that any order submitted by the Client attempts to include terms that are inconsistent with these Terms and Conditions, the Client’s terms will not apply.
2. Advertising Material
2.1 Client supplied: The Client may provide its own advertising material for publication. FashioNZ will not be responsible for any loss or damage to such material while in the possession of FashioNZ. Advertising material must be received by FashioNZ three (3) working days (being the days that are Monday to Friday inclusive, but excluding statutory holidays applicable in Auckland) prior to the scheduled publication date. The Client may be charged for any advertisement not published due to late receipt or non-receipt of advertising material by FashioNZ, and FashioNZ shall not be obliged to offer a credit or refund in respect of such.
2.2 FashioNZ supplied: Where FashioNZ supplies advertising material, the Client must provide written confirmation that it accepts the material in all respects at least one (1) working day before the agreed publication or broadcast date. If the Client does not provide such written approval within that time frame then it will be deemed to have accepted the material in all respects and FashioNZ shall not be liable to the Client in any way for any defect or matter arising out of the advertising material. In any event, the Client must notify FashioNZ immediately of any defect or matter arising out of the advertising material. If the Client does so, then FashioNZ will take reasonable steps to rectify the advertising material to the Client’s reasonable satisfaction prior to broadcast or publication. Unless otherwise agreed, advertising material supplied by FashioNZ, and all applicable intellectual property rights, remains the property of FashioNZ and may not be used in any other medium or published by any third party without the approval of FashioNZ.
3. Changes and Placement
3.1 FashioNZ rights to make changes: FashioNZ may in its sole discretion and with at least 24 hours’ notice to the Client:
a. alter or abbreviate any advertisement (provided this right will not be unreasonably exercised);
b. cancel, reject or refuse to publish or continue publishing any advertisement (provided this right will not be unreasonably exercised. Acceptable reasons for cancelling or refusing to publish an advertisement shall include, without limitation, that the advertisement breaches relevant laws or regulations, including any media accreditation terms to which FashioNZ may be subject).
3.2 Amendments: FashioNZ may require that the Client’s advertisement is corrected or amended to conform to style or for other genuine reasons. FashioNZ may also require that advertisements are amended if they are, in FashioNZ’s sole opinion, similar in any way to the editorial style of its publication.
3.3 Licence: By placing an advertisement for publication with FashioNZ, the Client grants FashioNZ a perpetual, royalty free licence to reproduce the advertisement in any media it offers to customers now or in the future.
3.2 Placement: FashioNZ will endeavour to grant the Client the environment and/or placement the Client reasonably requests for its advertisements. FashioNZ will not be responsible or liable to the Client in any way if the Client’s request cannot be granted, or if advertisements featured nearby include advertising by competitors of the Client.
4. Cost and Payment
4.1 Rates: The Client acknowledges that:
a. FashioNZ may vary its rate card rates at any time by uploading its amended rates card to its website. Amended rates will apply 30 days after such rates are uploaded to the website and FashioNZ is not obliged to contact Clients to advise of rate changes;
b. any discount that the Client may be offered from the standard rate card rates may be revoked or cancelled by FashioNZ at any time on giving notice to the Client;
c. unless otherwise stated by FashioNZ, advertising rates are quoted exclusive of GST.
4.2 Payment: The Client will be invoiced on the 1st of each calendar month for advertising supplied to it during that month. Payment is due 30 days from invoice date.
4.3 Unpaid invoices: If any invoice remains unpaid after the due date FashioNZ may without notice refuse to publish any further advertisements for and/or make any further supply to the Client and suspend or cancel any or all of the Client’s orders until payment is received. The Client will be liable for all costs of recovery, commissions and collection fees relating to collection of such payment at market rates.
5. Liability, Warranties and Indemnities
5.1 Client warranties: The Client warrants to FashioNZ that no advertisement will:
a. give rise to any claims or liabilities against FashioNZ;
b. infringe copyright, trade mark or other intellectual or industrial property rights of any person (whether in New Zealand or another jurisdiction);
c. contain material that is obscene, offensive, defamatory, indecent, illegal or otherwise unsuitable for publication;
d. in the case of digital advertising, contain cookies, tracking tags or other tracking devices unless FashioNZ has provided its prior written consent, or allow for data leakage or the on-selling of retargeted audiences;
e. be, or be likely to be, misleading or deceptive or otherwise infringe the Fair Trading Act 1986 or any other statute, regulation, bylaw or rule of law; or
f. breach any right of privacy or confidentiality.
The Client also warrants that its advertisements comply in every way with the Advertising Code of Practice issued by the Advertising Standards Authority Inc. and with every other code or industry standard relating to advertising in New Zealand.
5.2 Client indemnity: By submitting or authorising submission of an advertisement for publication, the Client indemnifies FashioNZ (and its employees and agents) against any proceedings, demands, losses, costs (including legal costs on a solicitor-client basis), damages (including indirect, consequential loss and special damages) and other liabilities incurred by FashioNZ (and/or its employees and agents) in connection with the advertisement.
5.3 Trade advertising: If the Client requests advertisement services for business purposes, the Consumer Guarantees Act 1993 will not apply and is expressly excluded. Nothing in these Terms and Conditions will affect the Client’s rights as a consumer under the Consumer Guarantees Act 1993 or the Fair Trading Act 1986.
5.4 FashioNZ Warranties and Representations: Except as expressly provided in these Terms and Conditions, FashioNZ excludes, to the fullest extent permitted by law, all warranties, representations and conditions whether implied by law, trade, custom or otherwise. The Client acknowledges that it has not relied on any representation made by or on behalf of FashioNZ in connection with the advertising.
5.5 FashioNZ Liability: In no circumstances will FashioNZ (and/or its employees, representatives or agents) be liable, whether in tort, contract or otherwise for any direct or indirect loss, loss of profits, consequential loss or special damage suffered by the Client or any other person. If FashioNZ (or FashioNZ’s officers, representatives, employees and/or agents) is found to be liable in any way to the Client, its liability to the Client, or any other person, for any and all loss or damage arising in relation to these Terms and Conditions and/or advertisements (including from any errors, omissions, non-publication or inaccuracies however caused, including without limitation by negligence, system or press failure, mistake, misclassifications, early, late or non-insertion of advertisements, or loss or delay in the delivery of replies) will be limited to an amount equal to the cost of the space of the relevant advertisement, provided that if the Client does not advise FashioNZ of any error within five (5) working days of publication of the advertisement FashioNZ will have no liability whatsoever.
5.6 No liability for non-publication: FashioNZ will not be liable to the Client or any other person for any loss of whatever kind suffered as a result of an advertisement not being published where such event arises from the exercise of any discretion by FashioNZ under these Terms and Conditions or any cause beyond its control. Any loss suffered as a result of any partial or total breakdown of FashioNZ’s operation or network will be deemed to be an event beyond FashioNZ’s control. Should such an event occur, FashioNZ will take all steps reasonably necessary to resurrect its operation and network, and the Client has the right to cancel the particular booking for the affected advertising at no penalty if such an occurrence results in the relevant FashioNZ publication not being published for more than seven (7) working days.
6.1 By signing the FashioNZ Booking Form, the Client acknowledges that it commits to a minimum 12 month period, and 12 monthly payments, from the date the Booking Form is signed. After the initial 12 month period, this agreement will roll over on a monthly basis.
6.2 Subject to the minimum term stipulated at clause 6.1, the Client may cancel this agreement on the provision of no less than three (3) months written notice to FashioNZ.
6.3 Any cancellations made by a Client must be notified via email to FashioNZ Accounts at [email protected]
6.4 Upon providing notice of cancellation and if cancellation occurs within five (5) working days before the publication date, the Client agrees that FashionNZ may, at its discretion, charge a ‘cancellation fee’. Such cancellation fee will amount to the sum equivalent to 50% of the charges payable by the Client for all advertisements scheduled to commence from the date of cancellation until 30 days after that cancellation date. The Client acknowledges that the cancellation fee is a genuine pre-estimate of the loss FashioNZ will suffer as a result of the cancellation.
6.5 FashioNZ may cancel this agreement at its sole discretion at any time after the initial 12 month period with one (1) month’s notice to the Client.
7.1 No waiver: If at any time FashioNZ does not enforce any of these Terms and Conditions or grants the Client time or other indulgence, FashioNZ shall not be construed as having waived that term or condition or its right to later enforce that or any other term or condition.
7.2 Assignment: The Client may not:
a. assign this contract or any part of it (including advertising space allocated to it) to any third party; or
b. place advertisements (whether directly or indirectly) on behalf of third party advertiser(s) (whether as an agent or otherwise), except on terms previously agreed with FashioNZ. Advertisements are placed by a Client on behalf of a third party advertiser where, for example (but without limitation), the advertisement promotes or otherwise notifies readers as to the goods or services of a third party other than the Client.
However, FashioNZ may assign this contract for any reason without notice to the Client.
7.3 Confidentiality: The Client acknowledges the confidential nature of any potentially commercially sensitive information (whether or not marked as “confidential”) disclosed by one party to the other in accordance with these Terms and Conditions (‘Confidential Information’). The Client accordingly undertakes to keep the Confidential Information confidential and not disclose any of the Confidential Information without the prior written consent of FashioNZ. The Client will ensure that its employees, agents, representatives and advisers observe the terms of this clause. The Client indemnifies FashioNZ against all losses, damages, costs or expenses which FashioNZ may incur as a result of any unauthorised disclosure of the Confidential Information. This obligation of confidentiality will continue in full force until all of the Confidential Information has entered the public domain (notwithstanding that the Client shall be liable to FashioNZ for damages if Confidential Information enters into the public domain as a result of a direct or indirect act or omission by the Client or any employee, representative or agent of the Client) and will survive termination of these Terms and Conditions.
7.4 Privacy: FashioNZ collects, uses and stores personal information in accordance with its
7.5 Entire agreement: These Terms and Conditions and any applicable Additional Terms and Policies set out the entire agreement between the parties in relation to FashioNZ advertising and supersede all prior arrangements, undertakings, representations and warranties by or between the parties in relation to such advertising.
7.6 Governing law: These Terms and Conditions are governed by, and construed in accordance with the laws of New Zealand. The parties submit to the exclusive jurisdiction of the Courts of New Zealand in respect of any dispute arising from these Terms and Conditions.
7.7 Severability: If any provision of these Terms and Conditions is held illegal or unenforceable, then such illegality or unenforceability shall not affect the remaining provisions of these Terms and Conditions which shall remain in full force and effect, and any illegal or unenforceable term shall be modified to the minimum extent necessary to render such term legal and enforceable.
7.8 Amendment to Terms and Conditions: FashioNZ may vary these Terms and Conditions at any time in its sole discretion, provided that:
a. the Client will be notified of such amendments in writing to the last email address provided by the Client to FashioNZ or alternatively by a notice published on fashionz.co.nz/terms-and-conditions/; (or fashionz.co.nz/advertising-terms-and-conditions/)
b. such amended terms will not affect prior agreed advertising orders (but will affect further advertising orders under any space order arrangements);
c. amended Terms and Conditions will be effective 30 days after the Client receives notice of such amendments or the notice is published by FashioNZ at the website address listed at clause 7.8a; and
d. if the Client does not agree with a variation the Client may cease placing orders with FashioNZ.
© Vestis Media Limited, November 2016