Terms

WEBSITE ADVERTISEMENT TERMS AND CONDITIONS

These Advertising Terms and Conditions govern the business arrangements between Top Horse Pty Ltd (“Top Horse”) and the Advertiser in respect of the placing of Advertisements by the Advertiser on the Website and form a binding contractual agreement between, the Advertiser and Top Horse.

  1. DEFINITIONS AND INTERPRETATIONS

In these Terms and Conditions, unless the context indicates the contrary:

“Advertising Content” means the content of advertisements submitted by or on behalf of the Advertiser to Top Horse in an Advertising Request including but not limited to all text, graphics, icons, photographs and URLs.

“Advertising Application” means the online step by step application completed by the Advertiser for an advertising space on the Website.

“Business Days” means 9am to 5pm on any day Monday to Friday inclusive other than Christmas Day, Good Friday and other public holidays.

“Confidential Information” means all information provided by one party to the other in connection with this Agreement where such information is identified as confidential at the time of its disclosure or ought reasonably be considered confidential based on its content, nature or the manner of its disclosure, but excluding (a) information that enters the public domain or is disclosed to a party by a third party, other than through a breach of this agreement, and (b) information developed independently by a party.

“Fees” means the advertising fees as listed on the Website.  

“Force Majeure Event” means any event beyond the control of the relevant party.

“GST” has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth), or any other similar tax.

“Intellectual Property Rights” means all intellectual property rights, including all copyright, patents, trademarks, design rights, moral rights, trade secrets, domain names, know how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application.

“Website” means the Internet web site “Top Horse” located at www.tophorse.com.au   

Unless the context requires otherwise:

  1. headings are for convenience and do not form part of this Agreement or otherwise affect the interpretation of this Agreement;

  2. the term “includes” (or any similar term) means “includes without limitation”; and

  3. a reference to any statute includes references to any subsequently amended, consolidated or re-enacted version of that statute and all delegated legislation or other statutory instruments made under it.  

  1. AGREEMENT

    1. The Advertiser must complete and submit the Advertising Application for an advertising space on the Website.

    2. All information on the Advertising Application must be complete and accurate and must comply with all laws, regulations and relevant industry codes.

    3. Advertising Applications must not request publication or linking to content, which is illegal or may bring Top Horse into disrepute.

    4. Top Horse may reject or cancel any Advertising Application at any time at its sole discretion.

    5. By submitting the Advertising Application the Advertiser authorises Top Horse to publish the Advertising Content on the Website.

    6. Top Horse does not guarantee that any Advertisement will lead to a successful advertising campaign for the Advertiser and for the avoidance of doubt, Top Horse shall not be a party to, or liable in respect of, any contract which is entered into between the Advertiser and a third party.

  2. POSITIONING AND STYLE

    1. The Advertiser acknowledges and agrees that Top Horse retains complete editorial control over the Website. Top Horse may at its sole discretion:

  1. refuse to include any Advertising Content at any time;

  2. remove any Advertising Content at any time;

  3. position Advertising Content as it sees fit; and

  4. label any Advertising Content as an “advertisement” for clarification and stipulate any other conditions to ensure that it is clear that the Advertising Content is an advertisement.  

    1. Top Horse will give the Advertiser reasonable notice prior to any action taken by Top Horse pursuant to 3.1 (a) and (b). However if such action is immediate, Top Horse will give the Advertiser notice as soon as reasonably practicable thereafter.   

  1. PAYMENT

    1. Unless Top Horse agrees otherwise in writing, the price of any Advertisement (including any Advertisement being published as part of a series) will be the price according to the Advertising Fees.

    2. The Advertiser must pay Top Horse the Fees.

    3. Payment is required upon completion of the Advertising Application.

    4. Top Horse may invoice Advertisers for the fees on a monthly basis in arrears. In the event Top Horse invoices an Advertiser for the fees, the following terms apply:

  1. Each invoice is payable within 30 days of the date of the invoice.

  2. If the Advertiser has not paid an invoice in full by that date, the Advertiser must pay interest on any unpaid amount from that date until the date of payment, to be calculated on a daily basis at a rate equal to the penalty interest rate from time to time.  

    1. Payment may be made to Top Horse by credit card, debit card, cheque or money order.

    2. Payment will be deemed to have been made by the Advertiser to Top Horse at the time Top Horse is in receipt of cleared funds in Top Horse’s bank account.

    3. Unless otherwise set out in this Agreement, the Advertiser will not be entitled to any refund, credit, lien or set-off of any kind from the time the relevant fee is paid to Top Horse.

  1. GST

    1. All amounts payable under this Agreement are expressed exclusive of GST.

    2. In respect of any taxable supply, the Advertiser must pay to Top Horse an additional amount equal to the prevailing GST rate, payable at the same time and in the same manner as the Fees, subject to the receipt by the Advertiser of a valid tax invoice.

  2. CONFIDENTIALITY  

    1. A party must not, without the prior written consent of the other, use or disclose the other party’s Confidential Information unless expressly permitted by this Agreement or required to do so by law or any regulatory authority.

    2. A party may:

  1. use the Confidential Information of the other party solely for the purposes of complying with its obligations and exercising its rights under this Agreement; and

  2. disclose the Confidential Information to its personnel or advisers to the extent necessary for them to know the information for purposes related to this Agreement, but only if reasonable steps are taken to ensure that the confidentiality of the information is retained.

    1. Each party must implement and maintain effective security measures to prevent unauthorised use and disclosure of the other party’s Confidential Information whilst it is in the receiving party’s possession or control.

    2. Each party must return, or at the other party’s option destroy, all Confidential Information of the disclosing party in the receiving party’s possession or control, on the earlier of Top Horse’s request or on termination of this Agreement for any reason.

  1. ADVERTISER’S WARRANTIES

    1. The advertiser represents and warrants that:

  1. It either owns or is licensed to use the Advertising Content.

  2. It is fully authorised to publish and to authorise Top Horse to publish all Advertising Content. In particular, the Advertiser warrants that it has consent from the photographer of any photograph, which forms part of an Advertisement to use such photograph in the Advertisement.

  3. The Advertising Content and the publication of the Advertising Content on the Website does not and will not, at any time, be obscene, blasphemous or defamatory, infringe any Intellectual Right, any right of confidence or other right of any person.

  4. All Advertising Content will comply with all applicable laws, regulations and relevant industry codes.

  5. All advertised products and services will match the advertised description and be available in the manner, at the price and for the time period advertised.

  6. Each website located at any URL shown or embedded in any Advertising Content is controlled and operated by or on behalf of the Advertiser, is functional and accessible and at all times operates in compliance with all applicable laws, regulations and relevant industry codes.

  7. In the case of the Advertiser changing name, trading style, identity or any other details disclosed in its application for an account with Top Horse, the Advertiser will give written notice to Top Horse within 5 Business Days thereof and complete a further account application form with those new details.

  8. The Advertiser has retained sufficient quantity and quality of any artwork, film or other materials and copy relating to the Advertisement to ensure it may replace the Advertisement if loss of any of these items should occur.   

  1. LIABILITY

    1. To the full extent permitted by law, Top Horse excludes all liability in respect of loss of data, interruption of business or any consequential or incidental damages.

    2. To the full extent permitted by the law, Top Horse excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in this Agreement.  

    3. Top Horse’s total aggregate liability for all claims relating to this Agreement is limited to the Fees payable under this Agreement.

    4. Either party’s liability for any claim relating to this Agreement will be reduced to the extent to which the other party contributed to the damage arising from the claim.

    5. This Agreement is to be read subject to any legislation, which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions or obligations. If such legislation applies, to the extent possible, Top Horse limits its liability in respect of any claim to, at Top Horse’s option:

  1. in the case of goods:

  1. the replacement of the goods or the supply of equivalent goods;

  2. the repair of goods;

  3. the payment of the cost of replacing the goods or of acquiring equivalent goods; or

  4. the payment of having the goods repaired; and

  1. in the case of services:

  1. the supply of the services again; or

  2. the payment of the cost of having the services supplied again.

  1. INDEMNITY

    1. The Advertiser indemnifies and holds Top Horse its agents, affiliates, subsidiaries, directors, officers, employees, consultants and contractors (collectively “Indemnified Persons”) harmless from and against any and all costs, claims, losses, damages, liability and expense (including all reasonable legal fees) which may be made or brought against or suffered or incurred, directly or indirectly by the Indemnified Persons in connection with:

  1. any breach of these Terms or Conditions by the Advertiser;

  2. any act of fraud or wilful misconduct by or on behalf of the Advertiser; or

  3. the publication of, or any act or omission in relation to, the Advertising Content or any website represented by a URL included or embedded in the Advertising Content.    

  1. TERMINATION

    1. A party may terminate this Agreement by written notice to the other if any of the following events has occurred in respect of the other party:

  1. a material breach of this Agreement which is not remediable or if capable of remedy, where the other party fails to remedy within 14 days of written notice;

  2. an insolvency event occurs, other than an internal reconstruction with notice to the other party.

  1. CONSEQUENCES OF TERMINATION

    1. If this Agreement is terminated or expires for any reason, then, in addition and without prejudice to any other rights or remedies available:

  1. the parties are immediately released from their obligations under this Agreement except those obligations in clauses 6 to 9 and any other obligations that, by their nature, survive termination;

  2. each party retains the rights and claims it has against the other;

  3. the Advertiser must immediately pay all outstanding Fees.

  1. GENERAL

    1. The Advertiser must not assign or otherwise deal in any other way with any of its rights under this Agreement without the prior written consent of Top Horse. Top Horse may assign or otherwise transfer this Agreement in whole or in part to any third party as a part of a change in ownership of Top Horse or a bona fide reconstruction, merger or takeover of Top Horse, without the Advertiser’s consent.

    2. Nothing contained in this Agreement creates any relationship of partnership or agency between the parties and the Advertiser will not have the right to bind Top Horse without Top Horse’s express prior written consent.

    3. If a provision of this Agreement is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.

    4. Each party must at its own expense do everything reasonably necessary to give full effect to this Agreement and the events contemplated by it.

    5. This Agreement (and any documents executed in connection with them) is the entire Agreement of the parties about its subject matter and supersedes all other representations, arrangements or agreements. Other than as expressly set out in this Agreement, no party has relied on any representation made by or on behalf of the other.

    6. This Agreement may be amended only by a document signed by all parties.

    7. A provision of or a right under this Agreement may not be waived or varied except in writing signed by the person to be bound.

    8. This Agreement may be executed in counterparts, which will be taken together to constitute one document.  

    9. A party will not be responsible for a failure to comply with its obligations under this Agreement to the extent that failure is caused by a Force Majeure Event, provided that the party keeps the other closely informed in such circumstances and uses reasonable endeavours to rectify the situation.

    10. Without limiting any other right to terminate under this Agreement, if a Force Majeure Event affects a party’s performance under this Agreement for more than 30 consecutive days, the other party may immediately terminate the Agreement by written notice.

    11. All stamp duties and other governmental charges in relation to this Agreement must be paid by the Advertiser.

    12. This Agreement is governed by the laws of Australia and each party submits to the jurisdiction of the courts of Australia.