In these Conditions unless the contrary intention appears: –
“Conditions Precedent” means in conditions set forth and identified in the Particulars;
“General Conditions” means these general conditions;
“The Business” means Clark Media ABN 13581465878;
“The Site” means the website(s) of Clark Media and The Targeted Media Services Network;
“The Services” means the Services provided by The Targeted Media Services Network;
“The User” means a party with either a registered account with The Targeted Media Services Network or a casual browser being a visitor to The Targeted Media Services Network;
“Advertiser” means a party who promotes their goods & services on The Site be it third party or otherwise;
“The Agreement” means this User Agreement;
“Jurisdiction” means that this agreement is subject to the jurisdiction of the State of Queensland, Australia;
“The Parties” means any group or subgroup of The Site, The Services, The Business or The User.
1.2 Any term which is defined in the Particulars has the same meaning in the Conditions;
1.3 Any disputes arising from this agreement are to be dealt with within the Jurisdiction and the Acts Interpretation Act 1954 (QLD) shall apply to this interpretation of the Contract as it applies to the interpretation of an Act of Parliament;
1.4 This User Agreement (The Agreement) governs the terms of the use by The User of The Site and The Services offered by The Targeted Media Services Network;
1.5 The User agrees to use Services according to the following terms and conditions.
2.1 The Site is provided by The Targeted Media Services Network, and the use of The Services provided therein is governed by The Agreement;
2.2 Any person accessing The Site is regarded as The User and using the Services provided therein agrees to follow and be bound by the terms and conditions contained in this Agreement;
2.3 If The User does not wish to be bound by the terms of this Agreement The User shall Immediately exit from The Site;
2.4 The Targeted Media Services Network shall retain the right to place on the site or third-party websites representative links where deemed appropriate to www.targetedmediaservices.com.au
2.5 The Site is subject to and protected by copyright under the Copyright Act 1968 (Cth) as amended and all rights are reserved by The Targeted Media Services Network;
2.6 The Targeted Media Services Network shall supply The Site and The Services to The User at such times and by such means as The Targeted Media Services Network Site from time to time decides. The Site and Services are not fault free and The Targeted Media Services Network Site makes no guarantees or warranties that the Site and Services will not be interrupted and The User shall be entitled only to the quality of service provided by The Targeted Media Services Network Site from time to time for Users generally.
2.7 The Services will be provided by The Targeted Media Services Network in a skilful and professional manner and in compliance with the reasonable expectations of The User and any applicable standards;
2.8 The Services will comply with all governmental and institutional guidelines and the responsibility in this respect shall be satisfied upon submission of the appropriate report to the governmental or institutional authority required.
2.9 The Targeted Media Services Network provides information, network and massaging facilities and while all reasonable care is used in the provision of The Site and The Services, The Targeted Media Services Network shall not have any liability whatsoever in contract, tort or otherwise to any party in respect of any loss or damage (including without limitation direct or consequential loss, economic loss or loss of other contracts) arising out of the provision of The Site and The Services, any inaccuracy or error or omission from any part of The Site or The Services or The Users inability to use The Site or The Services and information contained therein.
2.10 In the event that The Agreement constitutes a supply of services to a consumer as defined in the Corporations Act 2001 (Cth) or relevant State or Territory legislation, nothing contained in The Agreement excludes restricts or modifies any condition, warranty or other obligation where to do so would be unlawful, in such event The Targeted Media Services Network’s sole liability for breach of any such condition, warranty or other obligation, including any consequential loss which The User may sustain or incur shall be limited to in relation to services the supplying of the services again or the payment of the cost of having The Service supplied again as The Targeted Media Services Network may elect.
2.11 The Targeted Media Services Network supplies The Site and The Services on an As Is and As Available basis and gives no endorsements, representations, warranties or guarantees, whether express or implied, including but not limited to:
A. The accuracy, suitability, validity, legality and currency of information contained in the Services which have been supplied by Advertisers;
B. The suitability, ownership and title, fitness for any particular purpose, merchantability, quality and type of merchandise displayed on The Site or advertised through The Services;
C. Whether any information will be free of infection by viruses, worms, Trojan horses or any programme manifesting contaminating or destructive properties; and
D. Whether the information provided will be free of adult-related or other material that persons may find offensive.
2.12 All express or implied conditions or warranties, statutory or otherwise, in relation to The Site, The Service and information are to the extent to which it is legally permitted hereby expressly negatived and excluded from The Agreement.
3. In instances The User subscribes to any pay for use element of The Site:
3.1 The User will be invoiced by The Business. Payment is by cheque to “The Targeted Media Services Network Site”, credit card or bank transfer. When initiating The Services, The User will be charged the published set up fee for The Services contained in any subscription plan selected and will be charged according to the subscription plan selected by The User;
3.2 Late payments will attract a 7.5% interest component calculated daily and the suspension of any and all services at the discretion of The Targeted Media Services Network;
3.3 If The User elects to take advantage of any discounts offered for prepayment of The Service and The Agreement is terminated for any reason then any unused prepaid amounts will not be refunded by The Targeted Media Services Network.
4. The Agreement will continue for the duration of use by The User and will remain in force between The User and The Site regardless if The User continues to retain the services of The Site after any membership, subscription or other affiliation or relationship has expired.
5. The User Shall:
5.1 Compliance with Law: The User will use The Services offered by The Targeted Media Services Network Site in a manner consistent with all applicable Local, State, Federal and International laws, treaties and regulations and any violation of this provision can result in termination immediately or with 7 days notice depending on the severity of the of the violation and The Targeted Media Services Network Site shall retain the unfettered discretion in determining the severity of such a breach; including but not limited to:
A. Comply with all legal requirements including but not limited to, laws relating to the areas of copyright, intellectual property, defamation, privacy and decency;
B. Not post or transmit any unlawful, threatening, abusive, libellous, defamatory, obscene, pornographic, profane, or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offence, give rise to civil liability, or otherwise violate any local, state, national or international law;
C. Not post or transmit any information or software which contains a virus, cancelbot, Trojan horse, warn or other harmful component;
D. Not post, publish, transmit, reproduce, distribute or in any way exploit any information, software or other material obtained through the Services for commercial purposes (other than as expressly permitted by the provider of such information, software or other material);
E. Not upload, post publish, transmit, reproduce, or distribute in any way, information, software or other material obtained through The Services which is protected by copyright, or other proprietary right, or derivative works with respect thereto, without obtaining permission of the copyright owner or right holder;
F. The Site and The Business reserves all rights to demand or seek the removal of any material that may be uploaded, posted, published, reproduced, transmitted or distributed in any way or any component of the Services itself or derivative works with respect thereto. The Site and The Business reserves the right to suspend any account or service if The User or Advertiser refuses to comply with aforementioned demand or request.
5.2 User warranty: The User warrants as a condition and essential term that no literary or other works (including computer programs, diagrams, flow charts or other work) employed or created by in the provision of The Services shall infringe any copyright, obligation of confidentiality, patent or other right or property belonging to or benefiting any third party;
5.3 Shared Servers: The User understands The Services are provided on a shared server and acknowledges that their demands cannot overwhelm the server with heavy usage from highly active scripts such as CGI or chat scripts. In the event that usage of a user overwhelms the server leading to complaints from other users, it will be deemed by The Targeted Media Services Network Site to have outgrown the realm of The Agreement and as such reserves the right to withdraw without notice supply of any services until which time a suitable solution can be agreed upon.
5.4 Netiquette: The User agrees to follow generally accepted rules of “Netiquette” when sending e-mail messages or posting to newsgroups. The Site and The Business reserve the rights to terminate without further notice any account deemed to have been responsible for, or involved in, the propagation of any material regarded as hateful including but not limited to cyber bullying.
5.5 Password: The User is responsible for security of their password. The Targeted Media Services Network Site will not change passwords to any account without proof of identification which is satisfactory to The Targeted Media Services Network Site, which may include written authorisation with signature if deemed necessary;
5.6 Fit for Purpose: Will determine whether any information and Merchandise meets with their requirements by undertaking their own further research and inquiries;
5.7 Right to Use: Ensure they have the legal rights to store, reproduce or otherwise make use of information, Site and Services in the manner contemplated by The User;
5.8 Site Contamination: Isolate information, execute anti-contamination software and do all things reasonably necessary to ensure that information, if contaminated or infected, will not damage The Site systems and data;
5.9 Non-Restriction: Not restrict or inhibit any other user from using and enjoying The Site and The Services;
5.10 Corporate User: If The User is a company:
A. It shall be bound by these terms and conditions in its own right as a company;
B. The Directors of such a corporation shall personally guarantee, jointly and severally, to The Targeted Media Services Network, the performance of the company of the obligations under The Agreement and the Directors shall be liable in law or equity, for any breach or liability under The Agreement, whether caused by act or omission on the part of the company, its agents, servants or employees;
C. The Directors shall indemnify and keep indemnified The Targeted Media Services Network, its directors, servants, agents and employees against any and all claims, suits, actions and demands of any kind and howsoever arising out of or in connection with The Agreement and the supply of The Services by The Targeted Media Services Network to The User.
5.11 Assignment: The rights granted to The User under The Agreement and The Services supplied is personal to The User and is not to be assigned or transferred to any third party without the express prior consent in writing of The Targeted Media Services Network.
6. The User shall not knowingly or unknowingly submit to The Targeted Media Services Network Site for publication through The Service any of the following material, including pictures, links, or any other content:
6.1 Any material which violates or infringes any copyright, trademark, trade secret, patent, statutory, common law or other proprietary rights of others; or
6.2 Any material that is libellous or slanderous; or
6.3 Any material which is or contains anything obscene or pornographic; or
6.4 Distribution lists to be used via unsolicited electronic mail or other mass electronic mailings including but not limited to:
A. Mass-newsgroup postings, SPAM and unsolicited e-mail sent from The Site’s host server, or any other service on the Internet, which contains The Site’s domain name or any other domain name and The Targeted Media Services Network Site; or
B. Any material, virus, Trojan horse or other programme which is designed to damage, destroy or harm in any way both hardware and / or software of the computer and electronic operating systems of The Targeted Media Services Network Site or any third party.
6.5 Any violation of the above conditions or failure or refusal by The User within seven (7) days to remove any material or content referred to above on request by The Targeted Media Services Network may result in termination of The User’s account and The Targeted Media Services Network Site has the unfettered discretion in determining what constitutes unacceptable material or content.
6.6 The User acknowledges and is aware that The Targeted Media Services Network Site does not screen in advance The User’s material submitted to The Targeted Media Services Network Site for publication. The Targeted Media Services Network Site publication of material submitted by The User does not create any express or implied approval by The Targeted Media Services Network Site of such material, nor does it indicate that such material complies with the terms of The Agreement.
7. The User agrees that:
7.1 The entire copyright throughout the world in all writing, including programs, art works and other copyright work created by The Targeted Media Services Network, whether or not in normal business hours, shall be retained by Clark Media ABN 13581465878 trading as The Targeted Media Services Network;
7.2 The Targeted Media Services Network shall subject to paragraph 6.3 maintain the confidentiality of all confidential information of or relating to The User and shall at the request of The User require The Targeted Media Services Network to execute an assignment in favour of The User of the copyright and other intellectual property rights in any written material, art works, inventions, discoveries and novel designs created by The Targeted Media Services Network in the course of the provision of Services.
7.3 Due to the public nature of the Internet, all material submitted or e-mail sent by The User to or through the Services will be considered publicly accessible and The Targeted Media Services Network makes no warranties as to the confidentiality, secrecy or privacy of any information so submitted or sent whether or not The User expressly informs The Targeted Media Services Network Site whether or not it can be reasonably inferred such information is confidential or private.
7.4 All information, trademarks, service marks and registered trademarks or other form of intellectual property supplied to The Site or The Business by persons wishing to advertise (“the Advertisers”) on The Site and displayed or appearing on The Site are presumed to be and presumed to remain the property of the Advertisers unless otherwise negotiated.
8. The parties agree that that no partnership, joint venture, agency or employee / employer relationship is intended by The Agreement and any implication as to any such relationship is hereby negatively expressed.
9. The User acknowledges that Advertisers may impose additional terms and conditions governing the provision of their information to The Site and The Services and that any such terms and conditions may include a disclaimer absolving such Advertisers from liability regarding information and services provided on The Site.
10. The Targeted Media Services Network:
10.1 Does not represent or warrant to The User that The User will receive continual and uninterrupted Services provided by The Site. In no event shall The Targeted Media Services Network be liable to The User for any damages resulting from or related to any failure or delay of The Site to provide Services under The Agreement if such delays or failures are due to strikes, riots, fire, inclement weather, acts of God, theft or vandalism or other causes beyond The Targeted Media Services Network’s control, as defined by standard practices in the industry. Such failure or delay shall not constitute a default under The Agreement.
10.2 Neither The Targeted Media Services Network, its directors, servants, agents or employees shall be in any way liable for any loss or damage of any nature whatsoever suffered, whether arising directly or indirectly, by The User or any person related to or dealing with The User out of, in connection with or reasonably incidental to the provision of The Services by The Site to The User.
11. The User agrees to defend, indemnify and hold The Site and The Business harmless from and against any and all claims, losses, liabilities and expenses, including solicitors’ fees on an indemnity basis, related to or arising out of The Services provided by The Site to The User under The Agreement, including but not limited to:
11.1 Without limitation claims made by third parties, including customers of The User, related to any false advertising claims, liability claims for products or services sold by The User, claims for patent, copyright or trademark infringement, claims due to disruption or malfunction of services provided hereunder, or for any content published by The User using The Services, but excluding those directly caused by the negligence of The Site.
12. The Site may, without prejudice to any other right or remedy:
12. 1 Deny The User access to all or part of The Site and/or The Services if in The Targeted Media Services Network sole discretion it believes The User has or is likely to fail to observe or perform any of the provisions of The Agreement; or
12.2 If The Targeted Media Services Network is of the opinion that The User has or may use The Site and/or The Services for any unlawful or improper purpose or in a manner that may jeopardise the security or interface in the proper operation of any part of The Site or The Services.
13. If The Targeted Media Services Network shall grant to The User any extension of time or other indulgence, the same shall not in any way affect or prejudice the rights of The Targeted Media Services Network under The Agreement except to the extent of the specific extension or indulgence.
14. All provisions of The Agreement shall be severable and no provision shall be affected by the invalidity of any other provision and in the event that some provision is construed as illegal, invalid, void or unenforceable the remaining provisions of The Agreement shall not be affected thereby and shall be interpreted and enforced as if such illegal, invalid, void or unenforceable provisions were not ever incorporated in The Agreement.
15. Each indemnity under The Agreement is a continuing indemnity and shall constitute a separate and independent obligation of the party giving the indemnity from its other obligations under The Agreement and unless a contrary intention is indicated shall survive the termination or completion of The Agreement.
16. The applicable Law for the construction or interpretation of The Agreement shall be the Law of the State of Queensland or, where applicable, the Law of the Commonwealth of Australia and The Parties agree to submit to the jurisdiction of the appropriate Court of that State or the Commonwealth.
17. The Targeted Media Services Network reserves the right to unilaterally vary the terms, fees and conditions contained in The Agreement at any time without prior notification to The User of its intention to do so. However, upon any variation The User will be issued with a notice from The Targeted Media Services Network detailing any variations made and The User will be deemed to have accepted any such variation unless written notice of termination is given to The Targeted Media Services Network within seven (7) days of receipt of such notification.
18. In the event of any partnership break-up, divorce or other legal problems affecting The User, The User understands that The Targeted Media Services Network will remain neutral and may put The Service on hold until the situation has been resolved. Under no circumstances will The Targeted Media Services Network be liable for any losses incurred by The User during any time of determination of ownership, or otherwise.
19. If a legal proceeding is commenced to enforce or obtain a declaration of rights under The Agreement, the prevailing party in such proceeding shall be entitled to recover its reasonable attorneys’ fees and costs incurred in the proceeding from the non-prevailing party, as well as any reasonable attorneys’ fees and costs that the prevailing party incurred prior to commencing the proceeding.
20. The Targeted Media Services Network maintains control and any ownership of any and all IP numbers and addresses that may be assigned to The User via The Site and reserves in its sole discretion the right to change or remove any and all IP numbers and addresses under its control.
21. If any Federal, State or Local government entity with taxing authority over The Services provided under The Agreement imposes a tax, including but not limited to a Goods and Services Tax, directly on The Services provided by The Targeted Media Services Network to The User under The Agreement, excluding any income, business and occupation, capital gain, death or inheritance, or other indirect taxes, then The Targeted Media Services Network may pass the direct amount of such cost on to The User, and The User shall promptly pay such cost.
22. In The Agreement, unless the context otherwise requires:
22.1 A reference to a person includes any other entity recognised by law and vice versa;
22.2 Words importing the singular number include the plural number and vice versa;
22.3 Words importing one gender include every gender;
22.4 Any reference to any of the parties by their defined terms includes the Executors, administrators and/or permitted assigns of that party or, being a company, the successors and/or permitted assigns of that party;
22.5 Every agreement or undertaking by more than one person in terms of this Agreement shall bind and/or ensure for the benefit of such persons jointly and each of them severally;
22.6 Headings of Clauses have been inserted for guidance only and shall not affect the construction or interpretation of any provision of This Agreement;
22.7 Where any word or phrase is given a defined meaning in this Agreement, any other part of speech or other grammatical form in respect of such word or phrase shall have a corresponding meaning;
22.8 The Targeted Media Services Network means Clark Media ABN 13581465878 trading as The Targeted Media Services Network.
23. The User acknowledges and agrees that The Agreement is the entire agreement between the parties and excludes all oral or implied representations and terms unless such terms are agreed between the parties in writing.