ADVERTISER TERMS & CONDITIONS

These Terms and Conditions apply where you place promotions on the Website.

1. Promoter’s Terms and Conditions of Access to the Website

1.1 In this agreement:-

(a) “you” means jointly and severally:-

(i) the user of this website;

(ii) any person acting on your behalf; and,

(iii) any person whom you act on behalf of in respect of the Website;

(b) “intellectual property” includes rights subsisting or capable of subsisting or being obtained under intellectual property legislation, including legislation dealing with copyright, circuit layouts, designs, patents, plant varieties or trademarks, and whether in Australia or overseas, and where the context admits includes any derivative works and rights;

(c) “links” include references to Uniform Resource Locators (“URLs”);

(d) “we”, “us” or “WhatsOnOffer” means WhatsOnOffer.com.au Pty Ltd ACN 140 498 399;

(e) “promotion” includes any advertisement, coupon, representation, or offer which is provided, placed or requested to be placed by you on or in connection with the Website including any printed materials connected with such a promotion.

1.2 This Website and its related computer and telecommunication systems (referred to in these terms and conditions as the “Website”) are owned and operated by us on the World Wide Web (“WWW”).

1.3 The material on the Website (“the copyright material”) is the copyright of WhatsOnOffer, 7 Realms Pty Ltd ACN 137 240 807 and/or other copyright owners.

1.4 We grant you the entitlement to access the Website and to place promotions on and in connection with the Website on the terms and conditions set out herein and below and as specified on the other pages on the Website.

1.5 Your entitlement to access and use the Website and its related computer systems and to receive, send and reproduce any copyright material is conditional on your acceptance of the terms and conditions in their entirety save for any provisions prohibited at law. In consideration for your accessing the Website you are agreeing to be bound by these terms and conditions.

1.6 Access by you to the Website in breach of any of these terms and conditions constitutes unauthorised reproduction of the copyright material and unauthorised access to the Website and its related computer systems and may subject you to civil and criminal penalties.

1.7 You agree not to attempt to subvert any measures or steps taken to restrict the use of or access to the Website or any part thereof (including measures to authenticate your authority to place a promotion), or to cause disruption to the Website.

2. Structure of Terms and Conditions

2.1 In accordance with the terms herein and elswhere, you may access material from the Website in respect of other persons’ promotions only for your personal non-commercial use through a web browser and may utilize the Website through a web browser to place promotions for your commercial purposes as provided herein.

2.2 This agreement is the whole agreement between yourself and us in relation to the placement by you of any promotions on the Website provided that if you have entered into a separate written agreement for the placement of promotions on the Website, then to the extent of any inconsistency, those terms shall supersede those contained herein.

2.3 The terms of the Subscriber’s Terms and Conditions of Access to the Website also apply to you in relation to your use of the Website as a member or general user, (which terms are incorporated into this Agreement where they are applicable) a copy of which is available at www.whatsonoffer.com.au/terms_conditions.php.

3. Authority to place promotion and compliance with laws.

Without limiting the generality of clauses 6 and 8 herein, you hereby warrant and agree that:-

3.1 You are either the proprietor of any business in respect of which you ask us to provide a promotion (“the relevant business”) or you have the valid and sufficient legal authority of the proprietor(s) of the relevant business to do so.

3.2 You have valid and sufficient legal authority in writing from the owner or licencee of any intellectual property that is contained in or is incidental to the content of any promotion which you present to us for use in connection with the Website to enable you and us to place the promotion in compliance with all relevant laws and this agreement;

3.3 You have fully complied with and will fully comply with all conditions, limitations or restrictions which apply in respect of any intellectual property made available by you to us, including any franchise related limitations;

3.4 In relation to any material and/or information you provide to the Website that:

(a) the material and/or information is accurate and not misleading, deceptive, defamatory, likely to confuse or a malicious falsehood in relation to any product, service, person or corporation;

(b) the material is not indecent, offensive, obscene or material constituting prohibited content, potential prohibited content or MA 15+ content within the meaning of the Telecommunications Act 1997 (Cth) and any other applicable legislative or administrative instruments;

(c) the material and/or information (or the use of it) is not the “passing off” of any product or service and does not constitute unfair competition;

(d) the material and/or information (or the use of it) does not infringe any intellectual property right including, but not limited to, trade marks, service marks or business names (whether registered or unregistered), confidential information and copyright; and

3.5 You will comply with, and your use of the Website and anything in connection therewith will comply with, any relevant legislation or regulations of the Commonwealth of Australia and the State of South Australia including, but not limited to business name legislation, the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1987 (SA) and equivalent state and territory legislation and any other parliament competent to legislate in relation to the Website or any law in any country where the material and/or information is or will be available electronically to users of this Website.

3.6 You otherwise have and will maintain sufficient legal authority and capacity to enable us to provide the promotion.

3.7 You will notify us immediately if you are circumstance arises which has or is likely to alter your compliance with this clause 3.

3.8 A reference in these Terms and Conditions to providing material or information directly or indirectly and includes a reference to providing a link or URL.

4. Placement of Promotions

4.1 Your promotion must be a genuine promotion which entitles a person seeking to your goods and/or services to obtain those goods or services from you at a discount or to obtain one or more additional goods and/or services or other like benefits (“a benefit”) beyond those usually provided by you in the ordinary course of your business.

4.2 A benefit must:-

(a) involve a discount and comprise a material discount from both your ordinary rates or prices and any recommended retail price, whichever is lower (such discount also being of not less than 10% except where sub-clause (b) applies);

and/or

(b) involve one or more goods or services, with each such good or service being something of genuine value or material interest to persons within the class of person likely to view your promotion.

4.3 A benefit must furthermore:-

(a) not be generally or ordinarily available from you to members of the public;

(b) not, at the commencement of the period of the promotion, be intended by you to become a benefit generally or ordinarily available from you to members of the public at any time within 3 months of the expiry of the period of the promotion; and,

(c) otherwise not be so insignificant that it could reasonably be seen as little more than an ordinary advertisement.

4.4 The cost of and payment terms for the provision of promotions are as stated on the Website from time to time or otherwise agreed in writing.

4.5 In addition to the placement of a promotion on the Website itself, a promotion may be provided by other means as contained in the package selected by you. You acknowledge that such additional services may be dependent upon the use of the Website by the public or other material provided by you to us.

4.6 You agree that we are not required to reimburse or otherwise credit you for unused portions of any promotion package.

4.7 You agree and acknowledge that in providing promotions or information regarding promotions to the general public, WhatsOnOffer to the full extent permitted by law:-

(a) does not act as your agent, and is not engaged in any partnership of joint venture with you in relation to such promotions;

(b) does not owe any general duty of care to you or to your customers or potential customers;

(c) may, without your consent or notice to you, moderate, reject or withdraw any promotion if the content of the promotion is not in accordance with this agreement (or any policies issued by us) or is considered by us to be:-

(i) vague, uncertain or overly broad in any significant way;

(ii) potentially offensive to any class of persons;

(iii) likely to cause disruption;

(iv) likely to reflect poorly on the goodwill of our business; or

(v) otherwise inappropriate for inclusion on the Website.

(d) may also, without your consent or notice to you, withdraw any promotion if:-

(i) you breach any term of this agreement;

(ii) you lose the legal authority or capacity to enable us to provide the promotion to the general public;

(iii) we are required by law to remove the promotion or are requested to do so by any governmental authority or intellectual property owner and we consider it reasonable to comply with such request;

(iv) we consider that you do not, or will not, have the capacity to give effect to the promotion in any material respect; or,

(v) we otherwise consider it reasonably appropriate, having regard to any circumstances resulting from the promotion and the goodwill of our business, that the promotion be withdrawn.

(e) may charge an administration fee as specified on the Website (or any separate agreement) if your promotion is moderated, rejected or withdrawn pursuant to clauses 4.7(c)(i), (ii), (iii), (iv) or 4.7(d)(i), (ii), (iii) or (iv);

(f) will endeavour to moderate and, if suitable, place your promotion on the Website within one business day of submission (or such later time as may be otherwise specified by you) but provides no guarantee that such placement will occur within that timeframe. Our business hours are 9:00am to 4:00pm EST Monday to Friday. Please ensure that your promotion is submitted early enough to accomodate moderation, otherwise your promotion may not be placed as desired;

(g) does not owe any duty of care to you in relation to moderating or rejecting any promotion;

(h) does not owe any duty of care to you in relation to withdrawing any promotion;

(i) will not be liable to you for any loss whatsoever which may arise from our moderating, rejecting or withdrawing any promotion;

(j) will, if you are in compliance with this agreement when we withdraw a promotion of yours, refund to you the proportion of the price for placing the promotion, less any relevant administration fee;

(k) will use its reasonable endeavours to remove any promotion placed by you if so requested or which we confirm is not genuine, unauthorised or is misleadingly or deceptively inaccurate, but we will not be liable to you or anyone else in connection with any delay in doing so nor are we obliged to seek confirmation of any of the aforementioned matters;

(l) will not be liable to you in relation to any maintenance or unexpected disruption to the Website and no adjustment or reimbursement shall be made to you unless such disruption exceeds 24 hours or 20% of the offer period, in which case a proportional adjustment, reimbursement or credit will be provided to you;

(m) will not be liable to you in connection with any difference in the form of the promotion sought to be placed by you and the actual form of such promotion, or any difference in the substance of any such promotion provided that we take reasonable steps to resolve any such error following notice from you; and,

(n) remains fully entitled to restructure or reorganise the Website without any liability to you.

4.8 You grant to us a worldwide royalty-free licence to use any intellectual property comprised in any promotion which is presented to us by you for use in connection with the Website to the extent necessary for us to provide the promotion during the term of the promotion in the manner requested or authorised by you and to keep and store records of any such promotion and for other incidental purposes.

4.9 You may link to your promotions on your primary website or copy and present your promotions (including our intellectual property and trademark) on your primary website but only during the period of the promotion. If you do so:-

(a) you must not imply or cause confusion as to there being any connection, or association with us other than that we are providing the promotion on your behalf;

(b) the terms and conditions of your website do not apply to us in that instance;

(c) you must remove the promotion or link immediately upon our request; and,

(d) you must not allow or suffer any material being on your website which is offensive, discriminatory, illegal or likely to harm the goodwill of our business.

5. Capacity and Conduct

5.1 You warrant that you have the reasonable capacity to give effect to all of your promotions, including the provision of any relevant goods and/or services.

5.2 You agree to use reasonable endeavours to maintain such capacity during the period of the promotion.

5.3 You further agree that should you not be able to maintain capacity during the period of the promotion, that you will, within a reasonable time, request a withdrawal by us of the promotion. You need not make such a request if:-

(a) the type of good or service is not perishable or generally time sensitive;

(b) you make a reasonable offer to any and all persons seeking to employ your promotion giving them the opportunity to do so at a later date, either on the same terms or on substantially similar terms; and,

(c) you communicate such offer to the public generally or you make the offer irrevocably and in writing to such persons.

5.4 When a person seeks to obtain goods and/or services from you in relation to your promotion you must:-

(a) not require, or imply that you require, that such person enter into any other relationship or arrangement with you or anyone else;

(b) not require, or imply that you require, unreasonable information or actions from such a person in order to confirm their eligibility for the promotion or otherwise;

(c) not claim that the promotion was not made by you or that it is otherwise invalid unless it is so invalid or unauthorised;

(d) not seek to impose unusual terms or otherwise unreasonable restrictions in relation to the promotion unless stated in the promotion itself; and,

(e) unreasonably refuse to accept a person’s attempt at employing the promotion.

6. General

6.1 The Website including its associated computer systems contain various mechanisms by which promotions may be provided or made available to you in different forms. In using these facilities and any materials produced from such mechanisms you must:-

(a) use the Website and its associated computer systems in good faith;

(b) not breach any law which is applicable to such use by you, including without limitation any laws in relation to Spam or the sending of electronic messages or intellectual property laws;

(c) not reproduce any intellectual property of us contained in the promotion except to the extent reasonably needed by you to make use of the promotion or bring it to the attention of the public.

6.2 Where the Website provides a facility for performing any obligation upon you pursuant to this agreement, you must seek to use that facility in the first instance before seeking to contact us by other means.

6.3 Except as is reasonably necessary for the ordinary use of the Website, you may not copy, modify, or inject anything into:

(a) the layout of the Website; or

(b) any computer software and code contained in the Website.

6.4 Except for the limited uses set out in this Agreement and as provided on the website, you may not use the Website, or the material connected with it, for any purpose, including

(a) the reproduction of the material in any material form;

(b) the distribution of the material in any material form;

(c) re-transmission of the material by any medium of communication;

(d) uploading and/or reposting the material to any other site on the WWW;

(e) “framing” the material on the Website with other material on any other WWW site including by way of “hotlinking” or by otherwise causing any such material to be accessed from another Website or service other than your own promotion at your own primary website.

6.5 We reserve all our intellectual property rights, including, but not limited to, copyright in material and/or services provided by it. Except as is reasonably necessary for the ordinary use of the Website and its associated computer systems, the material provided on the Website is provided for personal use only and may not be:

(a) re-sold and/or re-distributed in any material form;

(b) stored in any storage media; and/or

(c) re-transmitted in any media, without our prior written consent.

7. Access mechanisms

7.1 You must take all reasonable steps to ensure that others cannot use your account. In particular you must:-

(a) keep your password confidential at all times and you must not disclose or permit disclosure of your password other than to our employees;

(b) ensure that your password is a combination or words, symbols or numbers which is not capable of being easily guessed by any person; and,

(c) ensure that computers or other electronic devices used by you in connection with the Website are sufficiently secure.

8. Accuracy of information and change of ownership

8.1 You warrant that the personal and business information you supply to us is accurate and not misleading in any way. If you continue use of the Website after any change in your personal information, you must update your account details.

8.2 You hereby warrant that you are the account holder of any e-mail address or phone number supplied by you as being your true and correct e-mail address or phone number.

8.3 If you, being a person who is an officer, agent, contractor or employee of the relevant business, cease acting in such capacity, you must:-

(a) advise us of the change in your capacity and ensure that we have contact details for the relevant business;

(b) provide the relevant business with any means of access to the Website which you have in relation to the relevant business; and,

(c) relinquish and immediately cease using any means of access which relate to the relevant business;

and upon completion of each such obligation you will be released from any liability or obligation pursuant to this agreement other than those relating to your conduct prior to such date.

8.4 If the relevant business is sold to another person or persons, then you must ensure that the provisions of clause 8.3 is complied with in a like manner.

9. Electronic Messages and Mailing lists

9.1 Where you use any referral features of the Website or any other facilities capable of sending electronic or other communications, you hereby agree and warrant that you have the authority (express or implied) of the recipient of any such communication.

9.2 Where you provide us with mailing or other contact lists you agree and warrant in each case that:-

(a) each person on each such list has given you the authority for us (specifically or generally) to send them commercial electronic messages within the meaning of the Spam Act;

(b) the list has not been prepared in breach of any laws or agreements;

(c) that our sending such messages will not otherwise be in breach of any applicable laws;

(d) that you will immediately notify us of any requests from any person on any list that they wish to unsubscribe from the list or otherwise cease receiving messages from you or us; and,

(e) that you have and will immediately remove from such lists all persons whom have expressed to you (directly or indirectly an including by way of any unsubscribe message) that they do not wish to be on the list.

9.3 You agree to release and indemnify us in respect any and all losses (including civil and/or criminal penalties) incurred by us or our officers and employees pursuant to the Spam Act 2003 or similar legislation to the extent that we may send one or more electronic messages on your behalf believing such conduct to be lawful in reliance upon any warranty or representation by you.

9.4 You agree and consent that we may send you commercial electronic messages within the meaning of the Spam Act 2003 from or on behalf of WhatsOnOffer and third parties for the purposes of conducting the operations of the Website and to the extent permitted by law, without any obligation upon us to provide an unsubscribe facility.

9.5 Notwithstanding the above, communications sent by us may contain unsubscribe facilities with a view to notifying the person authorising the sending of the message of your desire to opt out of such messages. If those facilities are not addressed directly to the relevant person, then we shall use reasonable endeavours to forward such messages to that person.

9.6 If you do opt-out from any communications, then we may in our discretion cancel your membership if we consider that it is not practicable or convenient (having regard to the nature of the Website and any future developments of the Website) for your account to remain without that method of communication being available.

10. Cancellation of membership

10.1 The Website and the business of WhatsOnOffer is subject to ongoing change and development and WhatsOnOffer therefore makes no representation or guarantee that the Website shall remain in operation indefinitely.

10.2 In addition to that above, you acknowledge that we may cancel your account with us at any time if required by law or if we have any grounds whatsoever to suspect that you have or will breach the terms of this agreement. We are not required to reinstate your account if no such breach is proven.

11. Links to other Websites.

11.1 The Website contains links to sites on the WWW owned and operated by third parties and which are not under the control of WhatsOnOffer.

11.2 In relation to the other sites on the WWW, which are linked to the Website, WhatsOnOffer:

(a) provides the links to other sites as a convenience to you and the existence of a link to other sites does not imply any endorsement by WhatsOnOffer of the linked site; and

(b) is not responsible for the material contained on those linked sites.

12. Disclaimer.

12.1 WhatsonOffer is making the Website available for others to publish information without assuming a duty of care to users. WhatsOnOffer is not in the business of providing professional advice and gives no warranty, guarantee or representation about the accuracy, reliability or timeliness or otherwise, of the information contained on the Website and/or linked sites on the WWW.

12.2 We may in our absolute discretion comply with any notices regarding the removal of any potential infringements of intellectual property and/or any requests for information from law enforcement and administrative authorities.

12.3 To the full extent permitted by law and except as otherwise specified in this agreement, WhatsOnOffer disclaims any and all warranties, express or implied, regarding:

(a) the accuracy, reliability, timeliness or otherwise of any information contained or referred to on the Website and/or of any linked sites; and

(b) merchantability or fitness for any particular purpose for any service or product contained or referred to on the Website and/or on any linked sites.

12.4 WhatsOnOffer will not be liable under any circumstances for any loss of profits or any damages of any kind recognised by law (even if it has been advised of the possibility of such loss of profits or damages) which are the consequence of you:

(a) acting, or failing to act, on any information contained on or referred to on the Website and/or any of the linked Websites; and

(b) using or acquiring, or your inability to use or acquire, any service or product contained or referred to on the Website and/or any linked sites; or,

(c) as the consequence of the misuse by persons of your promotion.

12.5 WhatsOnOffer does not warrant, guarantee or make any representation that:

(a) the Website, or the server that makes the site available on the WWW, are free of software viruses or other malware;

(b) the functions contained in any software contained on the Website will operate uninterrupted or are error-free; or that,

(c) errors and defects in the Website will be corrected except as provided in clause 4.7(l).

12.6 WhatsOnOffer is not liable to you for:

(a) errors or omissions in the Website, or linked sites on the WWW;

(b) delays to, interruptions of or cessation of the services provided in the Website, or linked sites; and

(c) defamatory, offensive or illegal conduct of any user of the Website,

whether caused through negligence of WhatsOnOffer, its employees or independent contractors, or through any other cause.

(d) You agree to accept the full cost of any necessary repair, correction and maintenance of any of your computer software or hardware, which may be necessary as a consequence of your breach of this agreement.

13. Limitation of liability.

13.1 To the full extent permitted by law WhatsOnOffer’s liability for any implied warranty or condition is limited, at the choice of WhatsOnOffer, to one or more of the following:

(a) If the breach of an implied warranty or condition relates to services:

(i) the supply of the services again; or,

(ii) the payment of the cost of having the services supplied again.

(b) If the breach of an implied warranty or condition relates to goods:

(i) the replacement of the goods or the supply of equivalent goods;

(ii) the repair of such goods; or,

(iii) the payment of the cost of replacing the goods or acquiring equivalent goods, or having the goods repaired.

14. Privacy Policy and use of information gathered.

14.1 WhatsOnOffer and/or people authorised by it may gather and process the information:

(a) which you may provide when accessing the Website, such as your name, address, e-mail address and other personal information about you;

(b) which we may obtain from other sources and databases; and

(c) regarding the way in which you use the Website or any promotions including, without limitation, information acquired through the use of “cookies” programmed during the accessing of the Website,

for the purposes of conducting the activities of WhatsOnOffer and its affiliated and related bodies.

14.2 If you do not provide the information required in any membership forms or elsewhere in the Website, then we may not be able to provide you with promotions or other services and may need to refuse or cancel your membership.

14.3 WhatsOnOffer may also use your information:-

(a) for the purpose of providing information to you about the activities of WhatsOnOffer and its affiliated and related bodies;

(b) for the purpose of providing information to you about any special promotions which may be made by third parties in relation to WhatsOnOffer and its activities;

(c) but will not sell or distribute the information referred to paragraph 14.1 to third parties except with your consent.

15. Termination of access.

15.1 WhatsOnOffer may terminate access to the Website at any time without giving any explanation or justification for the termination of access, and WhatsOnOffer has no liability to you for any costs, losses or damages of any kind arising as a consequence of terminating access to the Website.

16. Alteration of Terms and Conditions of Access and Use.

16.1 WhatsOnOffer reserves the right to change these terms and conditions:

(a) with or without further notice to you; and

(b) without giving you any explanation or justification for such change.

16.2 You hereby agree and warrant that you will review the terms and conditions on a regular basis or will otherwise ensure that you are familiar with the terms and conditions as issued from time to time.

17. Relevant jurisdiction.

17.1 If any part of this Agreement is found to be void, unlawful, or unenforceable then that part will be deemed to be severable from the balance of this Agreement and the severed part will not affect the validity and enforceability of any remaining provisions.

17.2 This Agreement will be governed by and interpreted in accordance with the law of the State of South Australia or the Commonwealth of Australia (as applicable), without giving effect to any principles of conflicts of laws.

17.3 You agree to the jurisdiction of the courts of South Australia to determine any dispute arising out of this Agreement.

18. Removal of information.

18.1 In relation to any material and/or information included on the Website, WhatsOnOffer may remove any material and/or information, including but not limited to links to other sites on the WWW, at any time without giving any explanation or justification for removing the material and/or information.

18.2 Subject to clause 4.7(j), WhatsOnOffer makes no representation as to whether it will remove any material from the Website, including material uploaded in breach of the Terms and Conditions except as required by law, and is not otherwise obliged to remove any said material.

19. No Waiver.

19.1 A waiver of any provision of the Agreement must be in writing. No delay by any party in exercising any right or power pursuant to the Agreement will operate as a waiver of that right or power nor will any single or partial exercise of any right or power preclude any other or further exercise of that right or power.

20. Limit of liability.

20.1 WhatsOnOffer and its respective officers, employees and agents have no liability for any costs, losses or damages of any kind, which you may incur, arising whether directly or indirectly. This applies in relation to or in connection with any material and/or information supplied in respect of advertising on this Website; and as a consequence of removing any material and/or information from this Website.

20.2 Where “you” include more than one person, you agree, to the full extent permitted by law, to exclude any laws relating to the apportionment of liability in respect of any liability caused by you and to be each be fully liable for any loss caused by any of you.

21. Indemnity.

21.1 You will at all times indemnify and keep indemnified WhatsOnOffer and its respective officers, employees and agents (referred to as “those indemnified”) from and against any loss (including reasonable legal costs and expenses) or liability incurred by any of those indemnified arising from any claim, demand, suit, action or proceeding by any person against any of those indemnified where such loss or liability arose out of, in connection with or in respect of any breach of this Agreement by you (including any warranties); or publication of or distribution of the material and/or information supplied by you.