T&Cs and Tech Specs

 

1       TERMS

1.1        Application of Terms:  These Terms apply to all Insertion Orders between Snakk Media (Snakk) and an agency or advertiser (or similar) that wishes to display Advertising Content on Snakk’s publisher network.

1.2        Amendment of Terms:  Snakk may amend these Terms at any time by updating them on Snakk’s website.  All amendments will be effective immediately upon an update being made and will apply to all Insertion Orders agreed between Snakk and the Client following the date of the amendment.  The Client is responsible for ensuring that it is familiar with the latest Terms.

2       INSERTION AND DISPLAY OF ADVERTISING CONTENT

2.1        Insertion and Display:  Snakk will use reasonable endeavours to provide the Services, insert the Advertising Content into the Available Advertising Space and Display the Advertising Content in accordance with the Insertion Order and these Terms.  Snakk does not undertake to provide the Services, insert the Advertising Content into the Available Advertising Space or Display the Advertising Content if Snakk is unable to do so for any reason, having used reasonable endeavours.

2.2        Placement of Advertising Content:  Subject to the terms of the Insertion Order, the Available Advertising Space used for the Display of the Advertising Content is at the discretion of Snakk.

2.3        Positioning of Advertising Content:  Subject to the terms of the Insertion Order, the positioning of Advertising Content on any Available Advertising Space is at the discretion of Snakk and the relevant Third Party Publisher.  Snakk cannot guarantee that Advertising Content will appear in a particular position or rank and the positioning of the Advertising Content may be varied and/or optimised at any point at the discretion of Snakk and the relevant Third Party Publisher.

2.4        Notifications:  If a Party receives a Notification in respect of the Advertising Content, Available Advertising Space or Services, it must notify the other Party in writing within 2 Business Days of receiving such Notification.  Where a Notification requires a response or action from Snakk, Snakk may take any steps reasonably necessary in order to respond or comply with a Notification.  Snakk may take any steps reasonably necessary to ensure compliance with any relevant regulatory requirements, laws or Industry Codes (as applicable).

3       PRODUCTION SERVICES

3.1        Production of Advertising Content:  If the Insertion Order requires Snakk to produce Advertising Content for Display, then:

a         Snakk must produce the Advertising Content for Display in accordance with the requirements set out in the Insertion Order; and

b         the Client must:

i          pay the Fees specified in the Insertion Order for Snakk to produce the Advertising Content for Display;

ii         comply with all instructions set out in the Insertion Order; and

iii        supply all material and provide all instructions reasonably requested by Snakk to produce the Advertising Content, in the manner, in the format, and by the date, reasonably requested by Snakk.

3.2        No obligation and liability:  Snakk will not be required to Display any Advertising Content produced by Snakk, and Snakk will not be liable to the Client for any failure to produce Advertising Content, if the Client fails to comply with its obligations under this clause 3.

3.3        Amendments:  If the Client and Snakk agree to any amendment to any Advertising Content produced by Snakk in accordance with the Insertion Order and these Terms, Snakk may charge the Client additional fees at Snakk’s then prevailing rates (to be charged monthly at time and cost).

4       CLIENT OBLIGATIONS

4.1        Tags and tracking:  Where indicated in the Insertion Order, the Client must generate unique tracking tags for each line item and for each ad-unit size.  The Client must ensure all tracking tags are generated correctly.

4.2        Decisions:  The Client must promptly make decisions (including approvals) and provide Snakk with all information and materials reasonably required to provide the Services.

5       TAG AND ADVERTISING UNIT DEADLINES

5.1        Tag and advertising unit deadlines:  The following deadlines apply:

a         For standard advertising campaigns with separate click and impression tracking; tags and advertising units must be provided by the Client to Snakk at least 48 hours prior to the Start Date. 

b         For display non-rich media across computer-based, mobile and tablet platforms; tags and advertising units must be provided by the Client to Snakk at least 72 hours prior to the Start Date.

c         For display rich media across computer-based, mobile and tablet platforms; tags and advertising units must be provided by the Client to Snakk at least 3 Business Days prior to the Start Date.

d         For video across computer-based, mobile and tablet platforms; tags and advertising units must be provided by the Client to Snakk at least 3 Business Days prior to the Start Date.

5.2        Right to delay:  Snakk may delay the Start Date if the Client fails to comply with any obligation under clause 4, if any of the deadlines in clause 5.1 are not met, or if it is reasonably necessary in order to ensure correct testing of tags has been completed before Displaying any Advertising Content.

6       CANCELLATION DEADLINES

6.1        Cancellation of display non-rich media:  The following cancellation deadlines apply in respect of display non-rich media on mobile and tablet platforms or video:

a         If cancellation is made 14 days or more before the Start Date, the Services in respect of that Advertising Content are cancelled and no Fees (except for any creative and production fees) are payable in respect of that Advertising Content.

b         If cancellation is made less than 14 days and more than 48 hours before the Start Date, the Client is to pay all Fees in respect of that Advertising Content (including any creative and production fees) as if all of the Services in respect of that Advertising Content had been provided in full (including achieving any targets for impressions, clicks, click-through rate, or similar included in the Insertion Order) and that Advertising Content is to be Displayed at such later date notified to Snakk in writing by the Client, provided that date is more than 14 days from the date of cancellation and is within 12 months of the original Start Date.

c         If cancellation is made less than 48 hours before the Start Date, the Client is to pay all Fees in respect of that Advertising Content (including any creative and production fees) as if all of the Services in respect of that Advertising Content had been provided in full (including achieving any targets for impressions, clicks, click-through rate, or similar included in the Insertion Order) and the Advertising Content will not be Displayed (unless otherwise agreed by Snakk in writing).

6.2        Cancellation of display rich media:  The following cancellation deadlines apply in respect of display rich media on mobile and tablet platforms or video:

a         If cancellation is made 30 days or more before the Start Date, the Services in respect of that Advertising Content are cancelled and no Fees (except any creative and production fees) are payable in respect of that Advertising Content.

b         If cancellation is made less than 30 days and more than 48 hours before the Start Date, the Client is to pay all Fees in respect of that Advertising Content (including any creative and production fees) as if all of the Services in respect of that Advertising Content had been provided in full (including achieving any targets for impressions, clicks, click-through rate, or similar included in the Insertion Order) and the Advertising Content is to be Displayed at such later date notified to Snakk in writing by the Client, provided that date is more than 30 days from the date of cancellation and within 12 months of the original Start Date.

c         If cancellation is made less than 48 hours before the Start Date, the Client is to pay all Fees in respect of that Advertising Content (including any creative and production fees) as if all of the Services in respect of that Advertising Content had been provided in full (including achieving any targets for impressions, clicks, click-through rate, or similar included in the Insertion Order) and the Advertising Content will not be Displayed (unless otherwise agreed by Snakk in writing).

7       REFUSAL TO DISPLAY

7.1        Cease to Display:  Snakk may in its sole discretion cease or refuse to Display any Advertising Content:

a         where Snakk needs to address technical issues relating to the Services or the Available Advertising Space;

b         if any payment of Fees is more than 15 days overdue;

c         if the Advertising Content does not, in the reasonable opinion of Snakk, comply with the requirements of the Insertion Order and these Terms (including clause 8 of these Terms);

d         if it is reasonably necessary in order for Snakk to comply with a Notification or any law, regulation or Industry Code;

e         where a Third Party refuses to Display the Content or Snakk or a Third Party Publisher considers the Advertising Content does not comply with the relevant Third Party Publisher Terms and Conditions;

f         in order to protect the business or reputation of Snakk; or

g         on any other reasonable grounds.

7.2        Payment of Fees:

a         If Snakk ceases or refuses to Display Advertising Content in accordance with clause 7.1(a), (d), (f) or (g), Snakk will not charge the Client the Fees in respect of that Advertising Content in the period when that Advertising Content was not Displayed.

b         If Snakk ceases or refuses to Display Advertising Content in accordance with clause 7.1(b), (c) or (e) the Client must pay the Fees as if the Services in respect of that Advertising Content have been provided by Snakk in full (including achieving any targets for impressions, clicks, click-through rate, or similar included in the Insertion Order).

8       ADVERTISING CONTENT REQUIREMENTS

The Client must ensure that the Advertising Content:

a         complies with the Format;

b         is not:

i          contrary to any law, regulation or Industry Code;

ii         false, misleading, deceptive or likely to mislead or deceive; or

iii        indecent, obscene, threatening, discriminatory, in breach of any obligation of confidentiality or privacy, defamatory, offensive or objectionable;

c         does not contain anything (including, without limit any virus, robot, spider, scraper or other automated means to access any computer, mobile device, website, network or system) that may potentially damage, interfere with or compromise any computer, mobile device, website, network or system;

d         is solely for lawful business purposes;

e         does not contain any competition or gaming content which would require Snakk to hold any gaming permits or licenses;

f         does not infringe the Intellectual Property Rights of any third party; and

g         does not relate to any financial matters which would require Snakk to hold any financial services licences.

9       WARRANTIES

9.1        General warranty:  Each of Snakk and the Client warrant to the other that all Insertion Orders will be agreed to by a duly authorised representative of the warranting party.

9.2        Disclaimer:

a         To the maximum extent permitted by law, Snakk’s warranties are limited to those expressly stated in the Insertion Order and these Terms.  Any implied condition or warranty is excluded.

b         Snakk does not warrant:

i          that it will be able to provide the Services, insert the Advertising Content into the relevant Available Advertising Space or Display the Advertising Content in accordance with the Insertion Order and these Terms;

ii         the success or otherwise of any marketing or advertising campaign, promotion or advertisement; or

iii        the performance, accuracy, reliability or continued availability of the Available Advertising Space or any associated software, systems or equipment.

9.3        Business purposes:  The Client agrees and represents that it is acquiring the Services for the purposes of a business.

10     INTELLECTUAL PROPERTY

10.1     Retained Intellectual Property:  The following Intellectual Property (including any modification, enhancement or derivative work of that Intellectual Property) remains the property of the current owner, regardless of its use in the Services:

a         Intellectual Property that existed prior to the Start Date; and

b         Intellectual Property that was developed independently of the Services.

10.2     Licence:  The Client grants Snakk a royalty-free, worldwide, non-exclusive, irrevocable and perpetual licence to:

a         use any part of the Client’s Intellectual Property in connection with the provision of the Services; and

b         use any of the Client’s trade marks or brands for the purposes of Snakk’s marketing.

10.3     Ownership going forward:  All new Intellectual Property created or developed by Snakk in providing the Services (including all rights in any data, including performance data, relating to the Display of the Advertising Content) is owned by Snakk, except that all copyright in any Advertising Content created by Snakk as a result of any creative or production services is owned by the Client on payment in full of all Fees relating to those creative and production services.

11     FEES

11.1     Fees:  The Client must pay the Fees to Snakk for providing the Services.

11.2     Sales Tax:  Unless stated otherwise in the Insertion Order, all Fees are exclusive of any Sales Tax, which the Client must pay (if applicable).

11.3     Taxation gross up:  If any amount payable under this Agreement by the Client (including the Fees) is subject to any Tax, the Client will pay to Snakk such further amount as is necessary to ensure that Snakk receives and retains a net sum equal to that which it would have received and retained had the original amount not been subject to any Tax.

11.4     Invoicing:

a         Snakk will invoice the Client in accordance with the Insertion Order, or if not specified in the Insertion Order, monthly for Services provided in the previous month.

b         The Client must pay Snakk’s invoices:

i          within 30 days of the date of the invoice; and

ii         electronically in cleared funds without any set off or deduction. 

11.5     Overdue amounts:  Snakk may charge interest on overdue amounts.  Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by the Snakk’s primary trading bank as at the due date plus 2% per annum.

12     CONFIDENTIALITY AND PRIVACY

12.1     Confidentiality:  Each Party agrees that, unless it has the prior written consent of the other Party, it will:

a         keep confidential at all times the Confidential Information of the other Party; and

b         ensure that any personnel or professional advisor to whom a Party discloses the other Party’s Confidential Information are aware of, and comply with, the provisions of this clause 12.1.

12.2     Exceptions:  The obligations of confidentiality in clause 12.1 do not apply to any disclosure:

a         for the purpose of complying with an Insertion Order or these Terms or exercising a Party’s rights under an Insertion Order or these Terms;

b         required by law (including under the rules of any stock exchange);

c         of Confidential Information which:

i          is publicly available through no fault of the recipient of the Confidential Information or its personnel; or

ii         was rightfully received from a third party without restriction or without breach of an Insertion Order or these Terms; or

d         by Snakk if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that Snakk enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 12.

12.3     Privacy:  The Client must ensure that any collection, processing, use, disclosure or transfer of Personal Information by the Client or any of the Client’s third party suppliers complies with all applicable laws, rules and regulations.

13     INDEMNITY

The Client indemnifies Snakk from and against any claims, loss, damage, liability and costs (including legal costs on a solicitor and own client basis) that Snakk suffers or incurs as direct or indirect result of any Advertising Content provided by the Client or as a result of any failure by the Client to comply with any applicable law or regulation (including any privacy law or regulation).

14     LIABILITY

14.1     Maximum liability:  The maximum aggregate liability of Snakk under or in connection with any Insertion Order or these Terms, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not exceed the Fees paid by the Client to Snakk for Services provided in the previous 12 months.

14.2     Unrecoverable loss:  Except for the Client’s liability to pay the Fees, neither Party is liable to the other for any loss of profit, data, savings, business, revenue, and/or goodwill, or other indirect, consequential or incidental loss or damage arising under or in connection with any Insertion Order or these Terms.

14.3     Unlimited liability: 

a         Clauses 14.1 and 14.2 do not apply to limit Snakk’s liability for:

i          personal injury or death; or

ii         fraud or wilful misconduct.

b         Clause 14.2 does not apply to limit the Client’s liability for:

i          those matters stated in clause 14.3a;

ii         any breach of clause 12; or

iii        any amount payable in accordance with clause 13.

14.4     No liability:  Snakk will not be responsible, liable, or held to be in breach of any Insertion Order or these Terms, for:

a         any failure to provide the Services, insert the Advertising Content into the Available Advertising Space or Display the Advertising Content (provided Snakk has used reasonable endeavours to do so);

b         the appearance of the Advertising Content adjacent to any other advertising or any other material;

c         any failure to correctly render the Advertising Content on any Available Advertising Space;

d         any Third Party Publisher declining or otherwise failing for any reason to Display Advertising Content; or

e         any actions taken by Snakk in order to comply with a Notification.

14.5     No liability for the other’s failure:  Neither Party will be responsible, liable, or held to be in breach of any Insertion Order or these Terms for any failure to perform its obligations under any Insertion Order or these Terms or otherwise, to the extent that such failure is attributable to the other Party failing to comply with its obligations under any Insertion Order or these Terms, or to the negligence or misconduct of the other Party or its personnel.

15     TERMINATION

15.1     No fault termination:  Snakk may terminate any Services relating to an Insertion Order on no less than 2 Business Days’ prior written notice to the Client.

15.2     Other termination rights:  Either Party may, by notice to the other Party, immediately terminate the Services if the other Party:

a         breaches any material provision of the Insertion Order or these Terms and the breach is not:

i          remedied within 10 days of the receipt of the notice from the first Party requiring it to remedy the breach; or

ii         capable of being remedied;

b         has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of external administration, or ceases to continue business for any reason; or

c         is unable to perform a material obligation under the Insertion Order or these Terms for 30 days or more due to Force Majeure.

15.3     Consequences of termination:

a         Termination of the Services does not affect each Party’s rights and obligations accrued before the termination date.

b         The Client must pay for Services provided before the termination date.

15.4     Obligations continuing:  Clauses which, by their nature are intended to survive expiry or termination, including clauses 10, 12, 13, 14 and 15, continue in force.

16     DISPUTES

16.1     Good faith negotiations:  Before taking any Court action, a Party must use their best efforts to resolve any dispute under, or in connection with, an Insertion Order or these Terms through good faith negotiations.

16.2     Obligations continue:  Each Party must, to the extent possible, continue to perform its obligations under any Insertion Order or these Terms even if there is a dispute.

16.3     Right to seek relief:  This clause 16 does not affect either Party’s right to seek urgent interlocutory and/or injunctive relief.

17     GENERAL PROVISIONS

17.1     Priority:  In the event of any conflict between these Terms and any Insertion Order, these Terms will prevail, unless specifically stated otherwise in the relevant Insertion Order.

17.2     Force Majeure:  Neither Party is liable to the other for any failure to perform its obligations under an Insertion Order or these Terms to the extent caused by Force Majeure, provided that the affected Party:

a         immediately notifies the other Party and provides full information about the Force Majeure;

b         uses reasonable endeavours to overcome the Force Majeure; and

c         continues to perform its obligations as far as practicable.

17.3     Waiver:  To waive a right under an Insertion Order or these Terms, that waiver must be in writing and signed by the waiving Party.

17.4     Independent contractor:  Snakk is an independent contractor of the Client.  No other relationship (e.g. joint venture, agency, trust or partnership) exists under any Insertion Order or these Terms.

17.5     Notices:  A notice given by a Party under any Insertion Order or these Terms must be delivered via email to an email address notified by the other Party for this purpose. 

17.6     Severability:  Any illegality, unenforceability or invalidity of a provision of any Insertion Order or these Terms does not affect the legality, enforceability or validity of the remaining provisions of any Insertion Order or these Terms.

17.7     Variation:  Any variation to an Insertion Order or these Terms must be in writing and signed by both Parties.

17.8     Entire agreement:  The Insertion Order and these Terms set out everything agreed by the Parties relating to the Services and supersede and cancel anything discussed, exchanged or agreed prior to the Start Date.  The Parties have not relied on any representation, warranty or agreement relating to the subject matter of the Insertion Order and these Terms that is not expressly set out in the Insertion Order or these Terms, and no such representation, warranty or agreement has any effect.

17.9     Subcontracting and assignment:  The Client may not assign, subcontract or transfer any right or obligation under an Insertion Order or these Terms without the prior written approval of Snakk.  The Client remains liable for its obligations under the Insertion Order and these Terms despite any approved assignment, subcontracting, or transfer. 

17.10   Law:  Insertion Orders and these Terms are governed by, and must be interpreted in accordance with, the laws of New South Wales, Australia.  Each Party submits to the non-exclusive jurisdiction of the Courts of New South Wales, Australia in relation to any dispute connected with any Insertion Order or these Terms.

18     INTERPRETATION

In these Terms, the following terms have the stated meaning:

Advertising Content:  the information, data or other content (including rich content, images, text, film, video clips, streaming video footage and other content) specified in the Insertion Order (or otherwise agreed between Snakk and the Client in writing) for inclusion in the Available Advertising Space.

Available Advertising Space:  the areas specified in the Insertion Order (or otherwise agreed between Snakk and the Client in writing) for the insertion of Advertising Content.

Business Day:  Monday to Friday, other than any public holiday that occurs in Sydney, Australia.

Client:  the agency or entity which is a party to the Insertion Order. 

Confidential Information:  these Terms, any Insertion Order and any information that is not public knowledge and which is obtained from the other Party in the course of, or in connection with, any Insertion Order or these Terms.  Intellectual Property owned by Snakk is Snakk’s Confidential Information.

Display:  the insertion of Advertising Content into Available Advertising Space.  Displayed has a consistent meaning.

Fees:  the fees specified in the Insertion Order (or otherwise agreed between Snakk and the Client in writing).

Force Majeure:  an event that is beyond the reasonable control of a Party, excluding an event to the extent that it could have been avoided by a Party taking reasonable steps or reasonable care.

Format:  the specifications for the Advertising Content as set out in the Insertion Order or as required by Snakk from time to time.

Industry Code:  any industry code of conduct or practice that may be applicable to the Services and includes any industry codes of conduct that are prescribed by any applicable law or by virtue of a Party’s membership of an industry body or professional association.

Insertion Order:  an order for the insertion of Advertising Content into Available Advertising Space agreed between Snakk and the Client which sets out (among other things) the Fees, Start Date, Advertising Content and Available Advertising Space.

Intellectual Property Rights:  includes copyright and all rights conferred under statute, common law or equity relating to inventions (including patents), registered or unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity.  Intellectual Property has a consistent meaning.

Notification:  any notice, request, direction or instruction sent by any regulatory agency, taxing authority or any private entity that functions in a quasi-regulatory manner, having any applicable jurisdiction, to a Party in respect of any Advertising Content, Available Advertising Space or Services.

Party: the Client or Snakk.  Parties means the Client and Snakk.

Personal Information:  information whether recorded in a material form or not, about an individual (including a customer or consumer) whose identity is apparent, or can reasonably be ascertained, from the information, regardless of whether such information is provided by the Client, Snakk or a third party.

Sales Tax:  goods and services tax, value added tax, sales tax or any equivalent tax payable under any applicable law.

Services:  the services provided by Snakk in accordance with an Insertion Order and these Terms.

Snakk:  the Snakk entity that executes the Insertion Order, being Snakk Media Pty Ltd, ABN 77144947688 or Snakk Media Pte Ltd, UEN 201418738N.

Start Date:  the start date set out in the Insertion Order (or otherwise agreed in writing between Snakk and the Client).

Tax:  any tax (including any income tax or withholding tax but excluding any Sales Tax) and includes any present or future tax, impost duty, charge, fee, withholding or levy of any nature and whatever called (including any interest, penalties, fines and charges in respect of any such tax) imposed by any competent authority in any jurisdiction.

Terms:  these terms and conditions.

Third Party Publisher:  a provider of Available Advertising Space.

Third Party Publisher Terms and Conditions:  a Third Party Publisher’s guidelines, content standards, manuals, terms and conditions, advertising charters and any other documents which govern the use of the Third Party Publisher’s Available Advertising Space.