Terms & Conditions of Use

WEBSITE TERMS AND CONDITIONS OF USE

These terms and conditions of use (‘Terms’) govern the use of the website located at http://www.iprospect.com/ (the ‘Website’).  The Website is provided by iProspect Pty Ltd,  26 Hickson Road, Millers Point, Sydney, Australia.

In these Terms, an individual visitor to the Website is referred to as ‘you’ and iProspect is referred to as ‘iProspect’, ‘us’ or ‘we’.

By proceeding to use the Website, you agree to be bound by these Terms, in their current form and as they may be amended by iProspect from time to time.  If you do not accept these Terms, you must discontinue your use of the Website immediately.

CHANGES TO THESE TERMS AND THE WEBSITE

We may revise these Terms of use at any time by amending this page. Please check this page from time to time to take notice of any changes we made, as they are binding on you.

We may update the Website from time to time, and may change the content at any time. However, please note that any of the content on the Website may be out of date at any given time, and we are under no obligation to update it. We do not guarantee that the Website, or any content on it, will be free from errors or omissions.

INFORMATION PUBLISHED ON THE WEBSITE

We take reasonable precautions to ensure that information published on the Website is accurate but we do not guarantee its accuracy.  You should take appropriate steps to verify information displayed on the Website before relying on it.  Downloading material from the Website is done at your own risk and any materials provided via the Website are provided on a "as is" basis. 

VIRUSES

We do not guarantee that the Website will be secure or free from bugs or viruses.

You are responsible for configuring your information technology, computer programmes and platform in order to access the Website. You should use your own virus protection software.

You must not misuse the Website by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful. You must not attempt to gain unauthorised access to the Website, the server on which the Website is stored or any server, computer or database connected to our Website. You must not attack our Website via a denial-of-service attack or a distributed denial-of service attack. By breaching this provision, you would commit a criminal offence under the Computer Misuse Act 1990 and the Criminal Code Act 1995 (Cth). We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use the Website will cease immediately.

LIABILITY

We provide the Website without warranty of any kind. We make no representations, warranties or guarantees, whether express or implied, that the content on our Website is accurate, complete or up-to-date.

 Nothing in these Terms excludes or limits our liability for death or personal injury arising from our negligence, or our fraud or fraudulent misrepresentation, or any other liability that cannot be excluded or limited by English law.

We will not be liable to any user for any loss or damage, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, even if foreseeable, arising under or in connection with: use of, or inability to use, our site; or use of or reliance on any content displayed on our site. If you are a business user, please note that in particular, we will not be liable for loss of profits, sales, business, or revenue; business interruption; loss of anticipated savings; loss of business opportunity, goodwill or reputation.  We will not be liable for any indirect or consequential loss or damage.

 We will not be liable for any loss or damage caused by a virus, distributed denial-of-service attack, or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of our Website or to your downloading of any content on it, or on any website linked to it.

 We assume no responsibility for the content of websites linked on our site. Such links should not be interpreted as endorsement by us of those linked websites. We will not be liable for any loss or damage that may arise from your use of them.

 We do not guarantee that the Website will always be available or be uninterrupted and reserve the right to suspend access to the Website without notice.

 INTELLECTUAL PROPERTY RIGHTS

We are the owner or the licensee of all intellectual property rights on our site, and in the material published on it.  Those works are protected by copyright laws and treaties around the world. All such rights are reserved.  Nothing in these Terms operates to transfer, assign or grant any of those rights to you.  You must not reproduce or use images, trademarks or names displayed on the Website other than for your personal use without written permission of the owner.

 Unless specifically prohibited by a notice published on any page, you may make a print copy of any parts of the Website that you require for your own personal use, provided that in doing so you do not remove or alter any trade mark, copyright or other proprietary notices contained in that part of the Website. Our status (and that of any identified contributors) as the authors of content on the Website must always be acknowledged. You must not use any part of the content on our Website for commercial purposes without obtaining a licence to do so from us or our licensors.

DATA AND PRIVACY

iProspect is committed to protecting your privacy.  Please see our [insert link to Privacy Policy] for details of how we treat information which you provide to us via the Website.

THIRD PARTY WEBSITES

We assume no responsibility for the content of any websites linked on our Website or websites from which you have accessed our Website. Such links should not be interpreted as endorsement by us of those linked websites. We will not be liable for any loss or damage that may arise from your use of them.

TRADE MARKS

"iProspect" is a registered trade mark of the Dentsu Aegis Network Group in Australia and New Zealand.

GENERAL

These Terms are governed by the laws of Australia and the Australian courts have exclusive jurisdiction in any dispute arising out of or in connection with your use of the Website.

To the extent that any part of these Terms is found to be invalid, unlawful or unenforceable by any court of competent jurisdiction such part shall to that extent be severed from the remaining terms all of which shall remain in full force and effect as permitted by law.

If you have any queries or complaints regarding the Website or these Terms, please contact us at Legal Department, Dentsu Aegis Network, 105 York Street, South Melbourne, Victoria, Australia 3205.

These Terms were last updated on 16 November 2015.


PROGRAMMATIC TERMS OF BUSINESS

  1.           Definitions 

In the Agreement, the following definitions are used:

Ad or Ads means any advertisement or advertisements promoting the products and/or services of Advertiser.

Ad Tag means a piece of HTML on a webpage that will contact an Ad server and request an Ad.

Advertiser means the Advertiser whose services/products are the subject of the Ads and who appoints the Agency in accordance with clause 3.

Agreement means these terms of business, together with any terms appearing in an Insertion Order except, to the extent any such terms expressly conflict, these terms of business shall prevail.

Agency means the entity identified as providing the Services to the Advertiser in the Insertion Order.

Confidential Information means information that concerns the financial and commercial terms of this Agreement or that relates to any party's business plans, intentions, operations, processes, media plans, marketing surveys, research and data, product information, know-how, trade secrets, market opportunities, business affairs and any other similar information, but excluding any information that: (i) is, or later rightfully becomes, available to the public; (ii) was in the recipient's rightful possession prior to receipt of the information from the discloser; (iii) is later disclosed to the recipient by a third party who has no obligation of confidentiality; (iv) is independently developed by the recipient without the use or benefit of the Confidential Information; or (v) is required to be disclosed by applicable law or regulation or pursuant to a court order or other legal process of competent jurisdiction.

Content means images, graphics, text, data, links or other objects supplied by or on behalf of the Advertiser for inclusion in the Ads.

Cookie means a parcel of text sent by a server to the cookie file in a user’s browser and then sent back unchanged by the user each time it accesses that server.  HTTP cookies are used for authentication, session tracking, and storing non-personally identifying information about specific users, such as site preferences or buying habits.

Data means all data (aggregated or non-aggregated), statistics, code or similar information provided by the Advertiser or generated or collected by the Agency or the Services Network in performing the Services that directly relate to the Advertiser.

Insertion Order means an insertion order or similar approval document such as a media authorisation form, media plan or other written document acceptable to the Agency which is submitted online, by email or otherwise to the Agency by the Advertiser requesting the Services. 

 

Inventory means the advertising web-space of publishers and other media owners and related data.

 

Parties means the parties to this Agreement from time to time and Party shall mean any one of them.

 

Products means certain products which may be offered in conjunction with the Services, including, but not limited to: audience data management; audience targeting across IP-enabled devices (display, mobile and video) and audience reporting and performance analysis; real-time bidding; display; video; mobile; real-time optimisation; Facebook Exchange; lead generation; CPC/CPA campaigns; native content distribution; audience analysis; search re-targeting; audience discovery; and campaign reporting/performance analysis.

 

Pixel means a snippet of code that calls for a 1x1 transparent pixel to be delivered to a webpage by a third party server to allow the third party server to record information such as the IP address of the user's computer, URL of the page, and time the page was viewed.

Services means digital media services, including delivery of certain Products and the purchase of Inventory within Ad exchanges and other media sources by the Agency via the Services Network, as more particularly set out in an Insertion Order.

Services Network means any third parties that the Agency engages or makes purchases from in relation to the display of Ads and the provision of the Services, including: publishers, media owners, audience centres, demand-side platform providers, Ad servers, data partners, brand safety providers, creative providers and/or Ad exchanges.

Services Technology Stack means the technologies utilised by the Agency and the Services Network to provide the Services which primarily enable Ads to be targeted at members of a target audience identified on the basis of the websites they visit, activity on such websites, such as their purchasing activity, together with features such as the gender and location of the audience members.

Technologies include Cookies, Ad Tags, Pixels and similar other forms of computer code.

Website means a website owned or operated by the Advertiser, including any links to such website that may be incorporated in the Ads.

Year means the twelve (12) month period following the date of the first Insertion Order and each anniversary thereof.

References to “in writing” include in written form, by email or by online acceptance.

 2.            Services

The Agency and the Services Network leverage the Services Technology Stack in order to offer programmatic buying and real time bidding of display, video and mobile media and, when they become internet enabled, other media channels.  This Agreement applies to the provision of the Services.

3.             Appointment

Advertiser appoints the Agency to provide, using the Services Network and Services Technology Stack, the Services. This Agreement shall bind the Advertiser upon the execution of an Insertion Order and, by executing an Insertion Order, the Advertiser confirms that it has accepted this Agreement.  This Agreement applies to the exclusion of all other terms and conditions governing the provision of the Services, including any other agreements between Agency and the Advertiser. 

4.             Provision of the Services

The Advertiser and the entities within the Services Network are separate and distinct legal entities and trade as legal principal as a matter of law. Following submission of an Insertion Order, the Advertiser shall supply the Agency or Services Network, or procure the supply to the Agency or the Services Network of, the Content necessary to provide the Services detailed in such Insertion Order for inclusion in the Ads. In case of delay by Advertiser in providing such Content, the Agency shall not have any liability to the extent that it is unable to deliver the Services by the agreed dates.

The Agency has implemented measures and has engaged third parties with expertise in brand safety.  Such brand safety measures seek to prevent the display of Ads on websites that are of a pornographic, defamatory, obscene or illegal nature.  However, the Ads are displayed on websites as determined by the Services Technology Stack operated by third parties.  Consequently, the display of Ads is not ultimately within the control of the Agency and, as such, the Agency cannot guarantee that such brand safety measures are successful in every instance.

The Agency will promptly take steps to remove any Ads that are displayed on websites in a manner that does not comply with the brand safety measures described above, upon becoming aware of such display.

The Products are procured from third parties and so the Agency can only warrant that the Products will be provided using reasonable skill and care.

 

The Agency will not be held responsible for any delays or errors with the proper implementation of Technologies associated with a particular Advertiser campaign.

The Agency makes no warranties of any kind with respect to the Services, the Services Technology Stack or the Services Network or any data supplied thereby, whether express or implied, including any implied warranties as to merchantability, non-infringement, non-interruption, accuracy or fitness for a particular purpose.

5.             Invoicing and Payment

The Advertiser shall pay the Agency the amounts appearing in an Insertion Order. 

All amounts are due to the Agency by the 25th day following the month of the Ads appearing. 

The Agency shall also be entitled to separately invoice for: (i) all related out-of-pocket costs, administrative fees, or expenses incurred by the Agency in performing the Services; (ii) interest at the rate of 2% per annum above the base lending rate of the Agency’s principal lending bank from the due date until the date of payment in full; (iii) any costs incurred by the Agency in recovering debts owed by the Advertiser; and (iv) any administrative compliance fee because of an act or omission of the Advertiser to supply Ads or Content in accordance with the Agency’s reasonable instructions. 

 

6.             Intellectual Property and Data

No Party shall acquire any intellectual property rights of the other in connection with the provision of the Services and each Party remains the sole owner of any and all intellectual property rights it owned or used prior to the execution of this Agreement.

The Advertiser shall retain ownership of all Data.  The Agency shall have a worldwide, royalty free, non-exclusive, transferable licence to use and otherwise process Data in order to provide, operate, maintain and enhance the Services, the Services Technology Stack and any Products or programs connected to the provision of the Services including, without limitation, the right to disclose Data with entities of the Services Network and, where necessary, to sub-licence the same rights to media owners and sub-contractors strictly in connection with the performance of the Services.  The licence granted under this provision to the Agency is granted on the following conditions: (i) Data collected specifically in respect of the Advertiser will not be used for the benefit of another advertiser; and/or (ii) following termination or expiry of the Agreement, the Agency shall have the right, for a period of 6 months from such termination or expiry, to use the Data for the purposes of internal reporting (including the compilation of statistics), evaluating the Services, and improving the Services Technology Stack, and to disclose the Data if required by applicable law or regulation or pursuant to a court order or other legal process. The Data will not be shared or pooled with the data of other advertisers

The Advertiser grants the Agency a worldwide, royalty-free, non-exclusive transferable licence to use and reproduce any intellectual property rights in and to the Content (including, for the avoidance of doubt, any of the Advertiser’s trade and service marks) and to distribute or, in the case of trade or service marks, reproduce the same within the Services Network for the purposes of providing the Services. 

In performing the Services, the Agency may be required to contract with external providers and/or media owners that service the Services Network and who may utilise all or some of the Technologies for media targeting purposes and may insert the same on a WebsiteAny Data received by such providers and/or media owners will be used only for performing the Services.  The Parties agree and acknowledge that the Advertiser shall be solely responsible in relation to maintaining a privacy policy that covers the Services and, in particular, but without limitation, discloses that third parties may place Technologies on the browsers of visitors to its Website(s) and may send their own Cookies to the visitors' Cookie file.  These Technologies allow the Services Technology Stack to serve Ads.  The Agency shall use reasonable endeavours to ensure that each Ad will incorporate an icon that will include information for visitors on how to opt-out of being retargeted.

It is the parties’ intention that the Data shall not include 'personal information' or 'sensitive information' as defined in the Privacy Act 1988 (Cth). The Advertiser warrants that the Data it provides will not contain ‘sensitive information’. To the extent that any Data contains personal information, each party shall comply with all obligations upon it arising under the Privacy Act 1988 (Cth) which are relevant to the subject matter and performance of its obligations under this Agreement and the Advertiser represents and warrants that it has all necessary consents for the Data to be disclosed to Agency and for it to be used and disclosed to third parties as required to provide the Services, which may involve the Data being transferred overseas. Each party shall immediately notify the other party in writing if it has failed to comply with its obligations pursuant to the Privacy Act 1988 (Cth), and if such a breach could impact on the activities and obligations of the other party.  

Additional terms in relation to the native delivery of Content

Notwithstanding the foregoing, the Advertiser hereby grants the Agency a royalty-free, sub-licensable licence for the period in which the Services are rendered for the Agency and the Services Network to amend, adapt, use or position Content and Ads or any part thereof for the purposes of promoting (including without limitation for the purposes of creating hyperlinks to) Content and Ads as part of a native advertising campaign agreed in an Insertion Order or as otherwise agreed in writing between the parties (“Licence”). The Licence shall expire upon completion of the Services. Notwithstanding the foregoing, the Advertiser acknowledges and agrees that the nature of the Services is such that it is not possible to (i) prevent subsequent sharing, copying or modification by third parties of Content placed on the internet by or on behalf of the Agency in accordance with this Agreement; or (ii) remove, takedown or expunge content from the internet once propagated, and the Agency shall have no liability for any sharing, copying or modification of Content (whether or not it has already been modified by or on behalf of the Agency in accordance with this Agreement) by third parties nor responsibility for removing or procuring the removal of Content (whether or not it has already been modified by or on behalf of the Agency in accordance with this Agreement) from the internet upon completion of the Services or termination or expiry of this Agreement.

7.             Warranties

Each Party warrants and represents to the other that it has the right, power and authority to enter into this Agreement, grant the rights, give the undertakings and perform the obligations required under this Agreement.

The Advertiser agrees and acknowledges that it will be solely responsible for the Content and the Advertiser warrants and represents that it possesses all consents, licences and other rights necessary to promote the Content and that the Content, including all Websites which promote the Content: (i) is not misleading, inaccurate, indecent, libellous or unlawful; (ii) does not violate the rights of any third party; (iii) shall not harm or adversely affect the operation of the Services Technology Stack or any webspaces of any third party, publisher or media owner in which it is displayed; (iv) complies at all times with all applicable laws, statutes or regulations, advertising and marketing codes of practice and standards in any jurisdiction in which its Ads are displayed; and (v) does not give access via hyperlinks to any website containing material that is obscene, defamatory or contrary to any applicable law or regulation.

The Advertiser shall defend, indemnify, and hold the Agency harmless from and against any proceedings, damages, costs, liabilities and expenses (including court costs and legal fees), suffered or incurred as a result of any breach of the warranty given by the Advertiser in the preceding paragraph.

8.             Confidentiality 

Each Party agrees to take commercially reasonable precautions to protect from disclosure the Confidential Information that it receives from the other.

9.             Termination and Suspension

This Agreement shall remain in effect while any Services are being rendered to Advertiser.  Notwithstanding, the Agreement may be terminated by any Party on not less than 30 days’ written notice to the other for any or no reason, or immediately where one Party is in material breach of this Agreement, which includes, without limitation, non-payment of any amounts due, or is, or is about to become insolvent, enter into an arrangement with its creditors or process having similar effect, in these circumstances the non-breaching Party may terminate this Agreement with immediate effect.

Any termination of this Agreement will not affect the Parties’ rights and obligations hereunder arising prior to the date of termination and, notwithstanding any such termination, the Advertiser will remain fully responsible and liable for all charges, expenses and fees incurred or earned prior to the date of termination.  Notwithstanding any other provision in this Agreement or any other applicable agreement, in the event any Party gives notice of termination, the Agency will not be required to place or purchase any media time and/or space for the Advertiser or the Agency, as the case may be, subsequent to the date of the notice of termination, unless the Advertiser advances the funds or pre-pays the payment for such media time and/or space. In the event that the Advertiser requests the cancellation of bookings after the cancellation deadlines, the Agency will use all reasonable endeavours to obtain acceptance of such cancellation.  However, the Agency cannot guarantee acceptance of such. Should the Advertiser require any cancellation or amendment to the booking of campaigns which result in additional costs, e.g. retrospective rate adjustments, cancellation charges or lower discounts from the media, the Advertiser will be required to reimburse the Agency for the additional costs incurred during and after the termination of this Agreement and compensate the Agency by paying a cancellation fee equivalent to the sum of any additional costs incurred by the Agency as a result of cancellation of that Insertion Order.

 

If the Advertiser fails to pay any fees or costs invoiced by the Agency within thirty (30) days following the payment due date, the Agency shall have the right to suspend performance of the Services without notice to the Advertiser, such Services not to be reinstated until the Advertiser pays all such overdue amounts.

 

10.           Limitation of Liability

 

The Agency’s aggregate liability to the Advertiser under or in connection with this Agreement (including all Insertion Orders), howsoever arising and whether caused by tort (including negligence), breach of contract, under any indemnity or otherwise, whether or not such loss or damage is foreseeable, foreseen or known will be limited to one hundred thousand Australian Dollars ($100,000) per Year. 

 

In no event shall the Agency be liable for any:

 

(i) loss of actual or anticipated income, savings or profits, loss of contracts or business, loss of goodwill or reputation (whether direct or indirect); or

(ii) for any special, indirect, or consequential loss or damage of any kind,

howsoever arising and whether caused by tort (including negligence), breach of contract, under any indemnity or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.  No Party shall be entitled to recover more than once for the same loss or losses.

The exclusions and limitation of liability set out in this section or elsewhere in this Agreement do not apply to liability arising from fraud, fraudulent misrepresentation, death or personal injury caused by negligence or anything else which cannot be excluded or limited by law.

11.           General 

Excluding payment obligations, each Party will be excused from performing obligations contained in this Agreement while such performance is prevented by an act of God, fire, flood, earthquake, transportation disruption, war, insurrection, labour dispute, or any other occurrence beyond the reasonable control of that Party.

Other than as expressly stated herein, this Agreement contains the entire agreement between the Parties relating to the Services and supersedes any previous agreements or understanding whether written or oral, in particular any agreement between the Advertiser and the Agency in respect of the Services.  Any variation to this Agreement shall have no effect unless expressly agreed and accepted in writing by an authorised representative of the Agency.

 

Each Party shall be and act as an independent contractor and not as partner or joint venturer of the other.

 

During the term of this Agreement and for six (6) months following expiry or termination, the Advertiser shall not solicit or entice away from the Agency or employ or attempt to employ any person who is, or has been, engaged by the Agency or its sub-contractors as a director, officer, employee or contractor. Where employment results from breach of this paragraph, the Advertiser shall pay the Agency, or at the Agency’s direction the relevant sub-contractor, a sum equivalent to thirty percent (30%) of the annual remuneration of the relevant director, officer, employee or contractor, with such sum recognised to be the equivalent of replacement recruitment costs. Nothing in this provision shall prohibit employment which the Advertiser can demonstrate to result from a general, public recruitment campaign that is not directly aimed at the Agency’s or its sub-contractor’s directors, officers, employees or contractors.

 

Nothing in this Agreement shall create or confer any rights or other benefits in favour of any person other than the Parties to this Agreement from time to time. The Parties to this Agreement do not require the consent of any third party to rescind or vary this Agreement at any time.

This Agreement, its substance, formation, interpretation and any disputes, actions or other claims or liabilities arising out of or in connection with it (whether contractual or non-contractual) shall be governed by and construed in accordance with the laws of the Commonwealth of Australia, without reference to conflicts of laws principles and the parties submit to the exclusive jurisdiction of the Courts of the Commonwealth of Australia. Notwithstanding the preceding, the Agency may seek injunctive or other equitable relief from any court or authority of competent jurisdiction.