1.1. These terms (together with the applicable Cancellation Date and Advertising Material Lodgment Requirements) govern each Confirmation Advice, Proposal, supply of Services and Booking and, except as modified in accordance with these terms, constitute the entire agreement in connection with each supply of Services. All other express or implied terms, including Client’s terms, are excluded to the extent permitted by law.
1.2. No variation to these terms binds Bauer unless expressly and specifically agreed in writing by Bauer and Client.
1.3. These terms supersede any terms that have previously governed any supply of Services and prevail to the extent of any inconsistency between a written or verbal quotation and these terms.
Any written or verbal quotation provided by Bauer to Client, whether in the form of a media kit or otherwise, is a mere invitation to treat and does not constitute a contractual offer.
3. BOOKING PROCESS
3.1. If Client requests Bauer to provide Services, then:
(a) for a Publication, Bauer may issue a Confirmation Advice; and
(b) for a Digital Platform, Bauer may issue a Proposal. If Bauer issues a Proposal, Client may accept that Proposal by signing and returning it to Bauer.
3.2. Subject to clause 4.3, Client may cancel all or part of a Booking without penalty if written notice is given to Bauer before the Cancellation Date.
3.3. If Client cancels a Booking after the Cancellation Date, including a Booking accepted by Bauer after the Cancellation Date, Client must pay Bauer the full amount for that Booking.
3.4. If Bauer fails to issue a Confirmation Advice or a Proposal relating to a request for Services but provides the Services requested, these terms bind Client as if a Booking had been made.
4. CREATIVE SERVICES
4.1. Where, in connection with the provision of the Services, Bauer provides creative services (including services for interactive media campaigns) to Client, Client acknowledges that Bauer does so as agent for Client and Client:
(a) is solely responsible for; and
(b) provides the warranties set out in these terms in relation to,
any Advertising Material which is the product of such creative services, including its compliance with applicable laws, regulations and codes of conduct.
4.2. Client must provide to Bauer any text, images or logos that Client wants to include in Advertising Material being created by Bauer at Client’s cost within the timeframes notified by Bauer to Client.
4.3. If Client cancels a Booking at any time, Client remains liable for the production costs for any Advertising Material created by Bauer in connection with the Booking at the time of cancellation.
Where Bauer reasonably considers that Advertising Material on any Digital Platform is underperforming, Bauer may change the placement of that Advertising Material to a similarly sized placement on a reasonably equivalent Digital Platform to that specified in the relevant Booking.
6. RATES AND PAYMENT
6.1. The applicable rate for any Booking is the rate specified in the Confirmation Advice or Proposal (or, in the absence of a Confirmation Advice or Proposal, in the rate card for the applicable Publication or Digital Platform as of the date of the request for Services). Client must pay to Bauer the fee for a Booking prior to the Cancellation Date unless Bauer has extended credit to Client, in which case Client must pay to Bauer the fee for a Booking within 45 days of the invoice date for all agency Bookings and 30 days of the invoice date for all direct Bookings. Bauer may cancel a Booking if Bauer has not received the fee for that Booking by the applicable payment date.
6.2. Client must pay the production costs for any Advertising Material at Bauer’s standard rates from time to time where production costs are incurred on behalf of Client.
6.3. All Bauer rates or costs are exclusive of any applicable GST. Bauer will issue a tax invoice to Client in relation to any supply that is subject to GST. The amount of GST payable by Client shall be calculated by multiplying the GST exclusive sum payable for Services by the rate of GST applicable at the time of the supply. The terms “GST”, “supply” and “tax invoice” used in this paragraph has the same meaning as under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
6.4. Time of payment of invoices by Client is of the essence. Without prejudice to any other remedy, Bauer may charge interest on any overdue payments at an annual rate equal to 2% per annum above the 90 day dealers bill rate as published in the Australian Financial Review (to accrue from day to day).
7. CONDITIONS RELATING TO SERVICES
7.1. Bauer may require Client to complete a credit application before accepting a Booking or providing Services.
7.2. Bauer may refuse to accept any Advertising Material and may cancel or reschedule any Booking or refuse to provide any Services.
7.3. Client must not resell or sub-license a Booking or use a Booking other than for Advertising Material referred to in the applicable Confirmation Advice or Proposal.
7.4. Bauer makes no warranties in relation to proximity of Advertising Material in a Publication or on a Digital Platform relative to Advertising Material relating to competing products or services.
7.5. Client consents to Bauer reformatting any Advertising Material for inclusion on a Digital Platform or otherwise in a digital or other derivative version of a Publication and warrants that doing so will not infringe any person’s rights.
7.6. Client must not insert any data tracking or collection device (including any tag, code, cookie or pixel) into Advertising Material for a Digital Platform without Bauer’s permission.
8. ADVERTISING MATERIAL LODGEMENT
8.1. Client must lodge Advertising Material:
(a) for a Publication, in a manner that complies with the Advertising Material Lodgment Requirements; and
(b) for a Digital Platform, by such time and in such form as notified by Bauer.
8.2. For Publications, Bauer only accepts digital advertising files via digital advertising delivery services that comply with Bauer’s technical specifications and that appropriately interface with Bauer’s advertising bookings system, including Quickcut, Bauer Ads (selected Publications only) and Adsend.
8.3. If Advertising Material is not lodged as required by Bauer, Bauer may, in its sole discretion:
(a) use Advertising Material previously provided by Client;
(b) cancel the Booking;
(c) for a Digital Platform, reduce the number of impressions on a prorated daily estimate based on the total impressions set out in the Proposal; or
(d) for a Digital Platform, extend the campaign end date set out in the Proposal,
and, in all circumstances set out above, Bauer remains entitled to the full payment for the Booking.
8.4. Bauer may place the word "advertisement", “advertorial”, “promotion”, “#ad”, “#spon” or similar wording within or adjacent to any Advertising Material which, in Bauer’s opinion, resembles editorial material.
9.1. Client warrants to Bauer that Advertising Material lodged with Bauer (whether or not Bauer provided creative services in relation to that Advertising Material):
(a) complies with all laws, statutes, regulations, codes of practice and any standards applicable to publication of the Advertising Material and determined by any relevant regulatory agency or industry self-regulatory body;
(b) complies with any standard, guideline or requirement specified by Bauer and notified to Client from time to time;
(c) does not infringe copyright, trademark, obligations of confidentiality or other legal rights of any person;
(d) is not false or misleading and is true in substance and in fact;
(e) without limiting the above, does not infringe the Competition and Consumer Act 2010 (Cth) or the Fair Trading Act 1986 (NZ) or the Therapeutic Goods ACT 1989 (Cth), the Therapeutic Goods Regulations, the Therapeutic Goods Advertising Code or similar laws, regulations and codes operating in Australia or New Zealand; and
(f) does not contain anything which may give rise to any cause of action by a third party against Bauer, including material that is defamatory or obscene or that otherwise causes injury or damage to any person.
9.2. Client warrants to Bauer that, in respect of each Booking, Client is acting in its own right, as principal, and not as agent for, or otherwise on behalf of, any other party in relation to Client’s dealings with Bauer.
Client indemnifies Bauer, its officers, employees, agents and affiliates (and their employees and agents) against any action, claim, loss, expense or cost, suffered or incurred, whether directly or indirectly, by Bauer, its officers, employees, agents and affiliates (and their employees and agents) as a result of any breach by Client of these terms (including the warranties set out in these terms) or otherwise (including in connection with recovering any amounts owed to Bauer by Client) arising from publication of Advertising Material, cancellation of or failure to publish any Advertising Material or otherwise in connection with provision of the Services.
11.1. Bauer (and its officers, employees, agents and affiliates) is not liable under these terms or otherwise in law for any indirect, special, economic or consequential loss or damage suffered or incurred by Client (or any other person) or loss of revenue, profit, goodwill, data or opportunity or loss of anticipated saving, whether caused by negligence or otherwise and whether or not Bauer was aware or should have been aware of the possibility of such damage.
11.2. To the extent permitted by law, all representations, conditions and warranties, whether based in statute, common law or otherwise, are excluded. Liability of Bauer for any breach of a term, whether implied by law or otherwise, is limited, at Bauer's option, to the supply of the Service (or part thereof) again or the payment for the cost of having the Services (or part thereof) supplied again.
11.3. Bauer is not liable for any delay or failure to perform the Services that is due to any act of God, unlawful act against public order or authority, breakdown of plant, industrial dispute, government or legal restraint or any other event not within the reasonable control of Bauer.
12.1. Bauer may cancel, alter or suspend any credit terms (if applicable) when, in Bauer’s opinion, the financial condition of Client or the status of Client’s account requires it and Client agrees to pay on demand all sums owing in connection with any credit facility if the credit facility is suspended or cancelled.
12.2. If Bauer grants any credit facility to Client, Client agrees that a demand purporting to be signed on behalf of Bauer identifying unpaid amounts is conclusive evidence that such amounts are payable and unpaid.
12.3. At the time at which it makes any request for Services, Client warrants that it is solvent and able to pay all of its debts as and when they fall due and Client must inform Bauer of any facts which might reasonably affect any decision to provide the Services and/or grant credit.
13. BH WEBSITE AND TT WEBSITE – PRODUCT TRIALS
13.1 This clause 13 relates only to the conduct of trials (Product Trials) of Client’s product (Product) in connection with the BH Website and the TT Website.
13.2 Where the Services include conducting a Product Trial, Bauer will recruit participants in the Product Trial (Trial Team) from eligible members of the BH Website and/or the TT Website, distribute samples of the Product to the Trial Team (Samples), collect, moderate and publish the Trial Team’s reviews and provide Client with a post-Product Trial summary.
13.3 Risk in the Samples remains with Client at all times.
13.4 Client warrants that:
(a) the Product is safe and does not contain any harmful, illegal or noxious materials;
(b) Client has obtained all rights and licenses that are necessary for Client to provide the Samples to Bauer and for Bauer to conduct the Product Trial;
(c) the Product complies with all laws and applicable industry codes and does not breach any provision of the Competition and Consumer Act 2010 (Cth) or other consumer protection legislation;
(d) the Samples will, in their formulation, application and expected results, be consistent with the Product as generally distributed to the public; and
(e) the Samples will be properly packaged, labelled and intact.
13.5 Client must:
(a) notify Bauer of any special handling and usage requirements for the Samples; and
(b) deliver the Samples in accordance with Bauer’s requirements, including as to delivery address, delivery deadlines and, without limiting clause 13.4(e), form of packaging.
13.6 Bauer may suspend or terminate the Product Trial if it considers that any of the warranties in clause 13.4 are false or if it considers that the continued conduct of the Product Trial may harm its reputation or the reputation of any of its brands.
13.7 Bauer makes no representation or warranty as to:
(a) the number of reviews of the Product that will be obtained during the course of the Product Trial; and
(b) the content of any such reviews being positive.
13.8 Client acknowledges that the reviews of the Product that will be obtained during the course of the Product Trial are prepared by third parties who are independent of Bauer and not subject to its editorial control or direction. Client releases Bauer from any liability in connection with the content of those reviews.
14. BH WEBSITE, BD WEBSITE AND TT WEBSITE – MEMBERSHIP AND SYNDICATION
14.1. This clause 14 relates only to membership of the BH Website and BD Website and the syndication of content from the BH Website, BD Website and TT Website.
14.2. Bauer offers Clients the opportunity to acquire an annual membership to the BD Website and the BH Website at a cost determined by Bauer from time to time. A client who acquires such membership (Member) is entitled to certain benefits as notified to it by Bauer, including the benefit set out in clause 14.5. If a Member intends to not renew its annual membership, it must notify Bauer of that intention no later than 30 days prior to the expiry of the then-current annual period. If a Member does not so notify Bauer, its membership will continue for a further annual period.
14.3. For native or sponsored content created by Bauer on behalf of Client for the BH Website, BD Website or TT Website (Sponsored Content) Bauer grants Client, subject to clause 14.7, a royalty-free, non-transferable and non-sublicensable licence to publish the Sponsored Content on websites and social media channels owned or operated by Client.
14.4. For the avoidance of doubt, for editorial content created by Bauer, including editorial content referring to Client’s products (Editorial Content) Bauer grants no rights to Client.
14.5. For reviews submitted to the BH Website (BH Reviews) and star ratings issued by Bauer on the BH Website in relation to a product of a Member, Bauer grants the Member a royalty-free, non-transferable and non-sublicensable licence to publish one BH Review (subject to clause 14.8) and the star rating for each Member product within the annual membership on websites and social media channels owned or operated by the Member. For the avoidance of doubt, this grant of rights is personal to the Member and the Member must not permit any third-party (including, for example, Bazaarvoice) to publish a BH Review or star rating, whether on websites and social media channels owned or operated by the Member or otherwise.
14.6. For reviews submitted to the TT Website (TT Reviews) and star ratings issued by Bauer on the TT Website in relation to a product of a Client, Bauer grants Client a royalty-free, non-transferable and non-sublicensable licence to publish one TT Review (subject to clause 14.9) and the star rating for each Client product on websites and social media channels owned or operated by Client. For the avoidance of doubt, this grant of rights is personal to Client and Client must not permit any third-party (including, for example, Bazaarvoice) to publish a TT Review or star rating, whether on websites and social media channels owned or operated by Client or otherwise.
14.7. Client must, in relation to Sponsored Content:
(a) submit all material incorporating it to Bauer for Bauer’s approval prior to publishing it;
(b) use it only in the form and manner approved by Bauer; and
(c) include a credit for the BH Website, BD Website or TT Website, as applicable, in a reasonably prominent manner, on each occasion it is published.
14.8. For each BH Review, the Member must include a credit for the reviewer and the BH Website, in a reasonably prominent manner, on each occasion it is published.
14.9. For each TT Review, Client must include a credit for the reviewer and the TT Website, in a reasonably prominent manner, on each occasion it is published.
14.10. If Client wishes to use the Sponsored Content or a BH Review or TT Review in a manner not expressly provided for in these terms or to use Editorial Content, Client must first obtain Bauer’s written approval, which, if given, will be conditional on paying to Bauer the applicable syndication fee and may be subject to such other conditions as Bauer determines.
15.1. These terms and any agreement between Client and Bauer are governed by the laws of New South Wales and Client submits to the jurisdiction of courts exercising jurisdiction in that State.
15.2. These terms bind Bauer and Client and their respective successors.
15.3. The invalidity or unenforceability of any provision of these terms does not affect the validity or enforceability of the remaining provisions.
15.4. Client must not assign its rights under these terms or a Booking to any other person.
In these terms, unless the context otherwise requires:
Advertising Material means advertising material and any promotional or other material:
(a) provided to Bauer by or on behalf of Client; or
(b) created by Bauer in the course of providing creative services to Client, including inserts, onserts, band-ons and tip-ons;
Advertising Material Lodgment Requirements means the requirements for lodgment of Advertising Material for Publications with Bauer, as specified on Bauer’s Website or otherwise specified by Bauer from time to time;
Bauer means Bauer Media Pty Limited ABN 18 053 273 546 and any affiliate for which Bauer Media Pty Limited enters into a Booking;
Bauer’s Website means the website located at www.bauer-media.com.au;
BD Website means the website located at beautydirectory.com.au and, where applicable, its associated digital properties and BH Website means the website located at beautyheaven.com.au and, where applicable, its associated digital properties;
Booking means an agreement for the provision of Services between Client and Bauer made in accordance with clause 3.1;
Cancellation Date means:
(a) for a Publication, the cancellation date applicable to a Publication as specified on Bauer’s Website or otherwise specified by Bauer; and
(b) for a Digital Platform, 14 days prior to the campaign start date set out in the Proposal;
(a) any person who places a request for Services or enters into a Booking or to whom Bauer supplies Services; and
(b) if an agency places a request for Services or enters into a Booking on behalf of that agency’s client, that agency;
Confirmation Advice means a notice from Bauer to Client confirming the details of a Booking and acceptance of theBooking;
Digital Platform means a digital platform (including a website, a mobile optimized version of a website and an application) operated by Bauer or with which Bauer is associated;
Proposal means a notice from Bauer to Client confirming the details of a potential Booking and offering to provide the Services the subject of the potential Booking;
Publication means a print publication (including any digital replica version) published by Bauer or with which Bauer is associated;
Services means the provision to Client by or on behalf of Bauer of advertising opportunities, including advertorials and native or sponsored content, in a Publication or on a Digital Platform and product trial services on the BH Website; and
TT Website means the website located at trialteam.com.au and, where applicable, its associated digital properties.
Advertising Terms last updated on 1 August 2017.