These Advertising Terms and Conditions (Terms) and the Advertising Display Order attached to, accompanying or referencing them (Order), form an agreement (Agreement) between the advertiser identified in the Order (Advertiser) and Gawk Outdoor ACN 623 929 215 (Gawk) for the display of material (Advertising Material) , on property owned or controlled by Gawk (each a Site).
1. Gawk agrees to Rent the Panel(s) to the Advertiser for the display of the Advertising Material on the terms of these Terms and any Order.
2. These Terms, the Order contain the whole of the agreement between the Advertiser and Gawk.
3. These Terms will apply to the current Order and each subsequent Order.
4. Any variation to the Terms and each Order must be accepted in writing by both parties.
5. Campaigns. Gawk agrees to display the Advertiser’s Material on the Panel(s) in the manner and for the period described in the Order (each a Campaign).
6. The Advertiser cannot assign its rights to use a Panel under these Terms without the prior written consent of Gawk.
7. Gawk may assign its rights under these Terms to any third-party with rights to display advertising at the Site without the Advertiser’s consent.
8. Advertising Material. The Advertiser must provide to Gawk the Advertising Material for use in the Campaign:
a. of a size, shape, resolution and specification suitable for display at the Site(s) specified in the Order;
b. at least three (3) Business Days for a Digital Panel, or 10 Business days for a Static Panel (as the case may be) prior to the proposed start date of the Campaign; and
c. any additional copies to cover any replacement required during the term of the Campaign.
9. The Advertiser must ensure all Advertising Material submitted under this Agreement complies with all relevant State and Commonwealth laws (including current competition and consumer legislation), regulations, advertising standards and any applicable codes of practice issued or endorsed by any of the outdoor industry governing bodies including without limitation Ad Standards, the Outdoor Media Association of Australia, the Australian Association of National Advertisers and the Advertising Federation of Australia.
10. Gawk may reject any Advertising Material submitted to it by the Advertiser, and/or remove any Advertising Material already being displayed that:
a. is misleading, defamatory, libellous, offensive or objectionable, in the opinion of Gawk;
b. breaches the intellectual property rights of a third-party;
c. does not comply with clause 9; or
d. does not comply with the terms of any agreement that Gawk has with the Site Owner.
11. The parties also agree that any Advertising Material determined by the Advertising Standards Board (or similar body) to be offensive or otherwise unacceptable for display shall be removed by Gawk upon advice of such determination. In that event, the Advertiser shall not be entitled to a reduction in the monies otherwise payable under this Agreement, but may submit an alternative Material for display.
a. Gawk may print the Advertising Material for use in a Campaign, if specified in an Order;
b. The Advertiser is responsible for ensuring that artwork to be printed as Advertising Material will meet all requirements for Advertising Material as set out in these Terms.
c. The Advertiser must ensure that the artwork to be printed meets the specifications advised by Gawk, including (without limitation) file format, resolution and image dimensions.
d. Notwithstanding the Advertiser’s responsibilities in relation to the content of Advertising Material under these Terms, Gawk will ensure all printed Advertising Material is of sufficient quality for use in a Campaign.
a. Gawk will ensure that the Advertising Material is displayed without defect.
b. Gawk will not be liable for any delays in displaying the Advertising Materials caused by the Advertiser, including a failure to comply with clause 8.
c. Gawk will install the Advertising Material in a Panel no later than the latter of:
i. three (3) Business Days after receipt for installation on a Digital Panel;
ii. ten (10) Business days after receipt for installation on a Static Panel; or
iii. 5 days after the start date of the Campaign.
d. Where a delay in installation is caused by the Advertiser, and where Gawk has complied with the timelines in clause 13(c), the Advertiser will be entitled to additional time at the end of the campaign in proportion to the number of days where the commencement of the Campaign was delayed.
e. Where a delay in installation is caused solely by Gawk, and where Gawk did not meet the timelines in clause 13(c), the Advertiser shall be entitled to either extend the Campaign by the equivalent length to the delay, or a pro-rated abatement of the Rent, at the Advertiser’s election.
f. On termination the Advertising Material may remain in place until new advertising material is installed. If the Advertiser requires the creative material to be removed, a removal fee will apply.
14. Digital Panels
a. Share of Voice is calculated as the percentage of time that the Advertising Material appears on a Digital Panel during the operating hours of the Site (i.e. the hours during which the Digital Panel will be viewable by the public).
b. In the event that the Advertising Material is unable to be displayed on a Digital Screen for more than 2 hours during operating hours of a single week, then the Advertiser shall be entitled to either a pro-rated credit for the amount of time that the Advertising Material was not displayed. This credit can be applied either to the Rent, or a future campaign.
c. Gawk does not guarantee that the Advertising Material will not appear alongside a competitor’s advertisement on a Digital Panel. Gawk will not be liable in the event Advertising Material appears along side a competitor’s advertisement on a Digital Panel.
15. Payment Terms
a. The Advertiser must make payment in accordance with the terms set out in the Order.
b. Any Goods and Services Tax (GST) will be charged in addition to the Rent identified in the Order, unless the price states that it has been provided on a GST inclusive basis.
c. Where the Advertiser has provided their Account details, the Advertiser authorises Gawk to Direct Debit the Rent, Printing Fees, Installation Fees and GST payable from that Account on the due date for payment.
d. The Rent will be charged at the price identified in the Order.
e. Gawk may terminate this Agreement on 7 days notice for non-payment, following which Gawk may remove the Advertising Material from the Panel.
f. On termination the Advertiser must pay:
i. Rent for the period that their Advertising Material has been displayed, but not been paid for; and
ii. Any unpaid Printing Fees and Installation Fees. In default this shall be $1,350 for a Super 8 or $1,800 for a Supersite.
16. Late Payment. In the event that the Advertiser fails to pay the Fees on the due dates for payment, Gawk may charge the Advertiser interest calculated at the rate of 2.5% per month, on the balance of the outstanding Rent, Printing Fees and Installation Fees. If there is an Agency collecting a commission on the Campaign, the agency commission is contingent on the invoice being paid by the due date. If the invoice is not paid by the due date, the agency commission is voided and the invoice is due in full.
17. A delay in, or inability to complete performance of this Agreement resulting from any cause beyond the control of Gawk, its agents or contractors shall not constitute grounds for cancellation and GAWK shall not be liable for any loss or damage suffered by the Advertiser.
18. Gawk may cancel an Order in the event that it is required to remove any structure, illumination, display or advertisement from the Site by lawful direction of the Site Owner, or any government or statutory authority.
19. In the event of a cancellation in accordance with clause 18, GAWK is not liable for any claims or prosecutions made on or against Gawk by the Advertiser.
20. Warranty. The Advertiser warrants that:
a. It has the authority to enter this Agreement and will be responsible for all Rent, fees and obligations under the Agreement;
b. The exhibition of the Advertising Material will not contravene any statute, legislation, regulation, rule or requirement of any lawful authority, or any public or private right;
c. The Advertising Material complies with requirements of any relevant code of conduct, including in respect of alcohol related advertising subject to the Alcohol Beverages Advertising Code, in respect of which the Advertiser has obtained an approval under the Alcohol Advertising Pre Vetting System administered by Australian Associated Brewers and Distilled Spirits Industry Council of Australia. The Advertiser must on request provide evidence of compliance and approval;
d. The Advertiser has all necessary intellectual property rights in the Advertising Material.
a. The Advertiser indemnifies Gawk against any liability whatsoever arising out of or relating to any Advertising Material or its display, including all claims or prosecutions made on or against Gawk in respect of advertisements, artwork or material provided by the Advertiser. Such indemnity includes legal and other professional costs of investigation and defence of claims.
b. The Advertiser indemnifies and shall keep Gawk indemnified against any claims how so ever arising, whether directly or indirectly as a consequence of a breach of the warranties in clause 20.
a. If the Advertiser commits a breach of clauses 14 and 20 of this Agreement, Gawk can terminate this Agreement on immediate notice.
b. The Advertiser acknowledges that this Agreement will automatically terminate in the event that Gawk’s agreement with the Site Owner is terminated. In such circumstances, Gawk will notify the Advertiser of such termination and may provide an alternative Site for the Advertiser’s consideration in the place of the unavailable Site. If the Advertiser rejects the alternative Site, Gawk will credit the Advertiser with so much of the Fee as is proportionate to the period of the Term so terminated for the affected Site. GAWK will not be liable in any way in connection with any such termination beyond the extent expressly provided in this subclause.
c. For the avoidance of doubt, the Advertiser acknowledges it has no contractual right to cancel or terminate this Agreement for convenience.
23. Governing law and jurisdiction . The laws of the State of Victoria in Australia govern this Agreement. Each party irrevocably submits to the non-exclusive jurisdiction of the Courts in Melbourne, Victoria in Australia and the Federal Court of Australia sitting in Victoria.
Account means the bank account from which you authorise us to arrange for funds to be debited.
Advertiser means the person or entity described in the Order.
Advertising Material means the contracting parties advertisement to be displayed on GAWK’s advertising panel, including any printed material, other item or object to be installed or displayed at the Site.
Business Day means any day other than a Saturday, Sunday or Public Holiday in Melbourne, Victoria.
Digital Panel means an electronic screen on which the Advertising Material will be displayed amongst the advertising material of other advertisers.
Direct Debit means a particular transaction where a debit is made to your Account.
Installation Fee means the installation fee set out in the Order.
Order means an Advertising Display Order signed by Advertiser.
Panel means a Digital Panel or Static Panel.
Printing Fee means any printing fee set out in an Order.
Rent means the rent identified in an Order.
Share of Voice means the percentage of time that a Digital Panel that will display the Advertiser’s Advertising Material during the hours of operation, as described in the Order.
Site means the site or location where the Panels identified in an Order will be located.
Site Owner. Means the owner of the Site.
Static Panel means a physical panel on which Advertising Material will be displayed, and excludes Digital Panels.
Term means the period or term identified in the Order and any extension or renewal of that term.