Terms & Conditions
Effective 01 January 2009
These Advertising Terms and Conditions are incorporated into the agreement between LearnCFDs Pty Ltd and the entity placing the request for advertising (“Client”).
The provisions of the agreement also include the terms expressed and agreed through any written correspondence and confirmation, which together with these terms shall be referred to collectively as the “Advertising Agreement”. The website LearnCFDs.com is owned, designed and maintained by LearnCFDs Pty Ltd and is referred to collectively as LearnCFDs Pty Ltd for the purposes of these terms and conditions.
LearnCFDs Pty Ltd will, subject to availability, technical limitations and these Terms and Conditions, use all reasonable endeavours to publish the Clients advertisement in the format submitted by the Client and in accordance with the Clients other instructions. The positioning or placement of the Clients advertisement will be at LearnCFDs Pty Ltd’s discretion unless specifically agreed otherwise in writing and specified in the Advertising Agreement.
Any offer by LearnCFDs Pty Ltd to publish advertisements and/or integrate content for the Client is made on these Advertising Terms and Conditions only, and the placement or other communication of an order for advertising or content integration with LearnCFDs Pty Ltd will constitute the Client’s unconditional acceptance of these Advertising Terms and Conditions.
LearnCFDs Pty Ltd reserves the right to reject or cancel any advertising at any time in its sole discretion (including at any time after the commencement date) without giving any reason.
Any failure by LearnCFDs Pty Ltd to publish any requested advertisement or to integrate any particular item of content will be deemed to constitute a rejection of the order for such advertisement and does not entitle the Client to any legal remedy.
Any written correspondence in relation to Advertising between LearnCFDs Pty Ltd and the Client shall be considered an “Advertisement Order” for the purposes of these Advertising Terms and Conditions.
CREATIVE AND DESIGN
Approved advertising creative must be received at least 5 working days prior to the campaign starting date specified in the Advertisement Order. Unless expressly provided for elsewhere:
(i) LearnCFDs Pty Ltd will have no obligation to provide any creative, design,
technical or production services to the Client; and
(ii) the nature and extent of any such services which LearnCFDs Pty Ltd may provide to the Client shall be as determined by LearnCFDs Pty Ltd in its sole discretion.
If the Client requests LearnCFDs Pty Ltd to design and produce an advertisement or item of content for integration, the Client must provide LearnCFDs Pty Ltd with all relevant material and instructions at the time of completion of the order. All relevant material must be supplied in the manner and in the format LearnCFDs Pty Ltd specifies at least 15 working days prior to the campaign starting date. LearnCFDs Pty Ltd will not be required to publish any advertisement or integrate any item of content, nor will it be liable for any form of loss, damage, liability or expense resulting from any delay or error in any publication, if the Client fails to supply LearnCFDs Pty Ltd with all relevant material in accordance with these Advertising Terms and Conditions.
If approved creative is received within less than the specified number working days prior to the proposed start date, LearnCFDs Pty Ltd does not guarantee that the campaign will be published in any less than the specified number of working days from the date that the creative is received by LearnCFDs Pty Ltd, however LearnCFDs Pty Ltd shall use commercially reasonable endeavours to commence the campaign as soon as possible.
If any creative is received by LearnCFDs Pty Ltd after the relevant date causing delay of the campaign, the publication of the advertisement will be still be considered to have commenced on the commencement date specified in the
POSITIONING & STYLE
All order provisions regarding positioning of advertisements will be treated as
requests which will be fulfilled at LearnCFDs Pty Ltd’s sole discretion. In no event shall the Advertisement or the linked content state or imply that:
(i) the Advertisement was placed by LearnCFDs Pty Ltd; or
(ii) that LearnCFDs Pty Ltd endorses the Client’s products, services, content,
statements or advice.
LearnCFDs Pty Ltd may in its sole discretion label any advertisement as an ‘advertisement’ for clarification and may stipulate other conditions to ensure that it is clear that the advertisement is not LearnCFDs Pty Ltd editorial matter. LearnCFDs Pty Ltd may, without prior consultation or notice to the Client, amend the advertisement in any way whatsoever, if LearnCFDs Pty Ltd believes that the publication of your advertisement would be offensive, in breach of any law, in breach of any pre-existing agreement LearnCFDs Pty Ltd has with a third party or in breach of a third party’s rights. If LearnCFDs Pty Ltd amends your advertisement, this will not reduce the price agreed for publication of the advertisement unless otherwise agreed in writing.
CONTENT AND RESPONSIBILITY
The Client represents and warrants to LearnCFDs Pty Ltd that it is fully authorised to publish the entire contents and subject matter of all advertisements or integration content submitted to LearnCFDs Pty Ltd (including, without limitation, all text, icons, materials provided to LearnCFDs Pty Ltd for production purposes, URLs, and sites to which URLs are to be linked), and that all such contents and subject matter will comply with all applicable laws, regulations and relevant industry codes.
The Client agrees unconditionally to indemnify LearnCFDs Pty Ltd and hold LearnCFDs Pty Ltd harmless (including all of its directors, officers, agents employees and affiliates) from and against any and all loss, damage, liability and expense (including all reasonable legal fees) suffered or incurred by reason of any claims, proceedings or suits based on or arising out the publication of, or any act or omission in relation to, the advertisements or integration content, including but not limited to claims related to defamation, discrimination, contempt, rights of publicity and/or privacy, copyright infringement, trade mark infringement, misleading or deceptive conduct and any failure to comply with or fulfil any representations, warranties or agreements made in the relevant advertisement or on any website represented by a URL shown or embedded in the relevant advertisement or any object in such advertisement.
To the extent LearnCFDs Pty Ltd notifies the Client of reasonable complaints or
concerns including, but not limited to, complaints from a website member or other
affiliate regarding the advertising content or any other objectionable content or
materials linked thereto or associated therewith, the Client will, to the extent such
Objectionable Content is within the Client’s control, use commercially reasonable
efforts to respond in good faith to such complaints or concerns.
The Client warrants and represents to LearnCFDs Pty Ltd that each website or email address represented by any URL shown or embedded in any relevant advertisement or any object in any such advertisement or in any integration content:
(i) is controlled and operated by the Client, its independent contractors or a client of the Client (in the event the Client is an advertising agency applying on behalf of its own client);
(ii) will be functional and accessible at all times;
(iii) will at all times operate in compliance with all applicable laws, regulations and
relevant industry codes;
(iv) is suitable in all respects including subject matter to be linked to from the learnCFDs.com website containing the advertisement or integrated content;
(v) does not disparage LearnCFDs Pty Ltd or its affiliates;
(vi) does not violate any applicable law, regulation or third party right (including,
without limitation, any copyright, moral right, trade mark, patent or other proprietary right, defamation and laws prohibiting offensive content);
(vii) does not make false, misleading, deceptive or offensive statements, claims or representations.
LIMITATION OF LIABILITY; DISCLAIMER; INDEMNIFICATION
Subject to any applicable law including without limitation the Trade Practices Act
1974 (Cth), under no circumstances will:
(i) either party be liable to the other party for indirect, incidental, consequential,
special or exemplary damages (even if such party has been advised of the possibility of such damages), arising from any aspect of the advertising relationship in this Agreement or any other provision of this Agreement; and
(ii) LearnCFDs Pty Ltd will not in any event be liable to the Client under this
Agreement for more than the amount to be paid by the Client to LearnCFDs Pty Ltd as per the Agreement in which the liability accrues.
To the maximum extent permitted by law, including without limitation the Trade
Practices Act 1974 (Cth), and except as expressly set out in this Agreement, LearnCFDs Pty Ltd makes no and specifically disclaims and excludes any representations or warranties, express or implied, regarding the LearnCFDs Pty Ltd Service or any portion thereof, including any implied warranty of merchantability or fitness for a particular purpose and implied warranties arising from course of dealing or course of performance.
Unless otherwise agreed in writing, LearnCFDs Pty Ltd specifically disclaims and excludes any warranty regarding:
(i) the number of persons who will access the Client ‘s content or “click-through” the advertisement;
(ii) any benefit the Client might obtain from including the advertisement within the
LearnCFDs Pty Ltd service; and
(iii) the functionality, performance or operation of the LearnCFDs Pty Ltd service with respect to the advertisement.
The Client will indemnify, defend and hold harmless LearnCFDs Pty Ltd and the
officers, directors, agents, affiliates, distributors, franchises and employees of LearnCFDs Pty Ltd from and against all claims, actions, liabilities, losses, expenses, damages and costs (including, without limitation, reasonable legal fees) that may at any time be incurred by any of them by reason of any claims, suits or proceedings:
(i) for libel, defamation, violation of right of privacy or publicity, copyright
infringement, trade mark infringement or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with the Advertisement or the Client’s Content;
(ii) arising out of any material breach by the Client of any duty, representation or
warranty under this Agreement; or
(iii) relating to any contaminated file, virus, worm or Trojan horse originating from
the Advertisement or the Client’s Content.
LearnCFDs Pty Ltd will notify the Client of any claim, action or demand for which
indemnity is claimed. LearnCFDs Pty Ltd reserves the right to assume the exclusive defense and control of any Action. Settlement of any Action shall be subject to Financial Fusion’s prior written approval. This clause will survive the completion, expiration, termination or cancellation of this Agreement.
If any term, warranty or condition is implied into this Agreement which by law cannot be excluded, but may be limited, liability for any breach of such term, condition or warranty is limited, at the option of the party so liable, to:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again by LearnCFDs Pty Ltd.
These Advertising Terms and Conditions embody the entire agreement between the parties and supersede all prior and contemporaneous agreements, arrangements and understandings between the parties with respect to its subject matter. All existing advertising agreements between the parties (if any) are by agreement of the parties hereby terminated and of no further legal effect except for any provisions in such agreements which are expressed to survive termination or expiration.
These Advertising Terms and Conditions are governed by the laws of the State of Queensland Australia. The Client consents to the non-exclusive jurisdiction and venue of courts of Queensland for all disputes arising out of or relating to this agreement.
This agreement does not create a joint venture, partnership, employment, or agency relationship between LearnCFDs Pty Ltd and the Client.
LearnCFDs Pty Ltd will not be taken to have waived or modified any of term of the Advertising Agreement except by an express statement in a document signed by a duly authorised representative of LearnCFDs Pty Ltd.
The Client may not assign any of its rights in this Advertising Agreement without the prior express written consent of LearnCFDs Pty Ltd. This Agreement, including any of LearnCFDs Pty Ltd’s rights or obligations under it may be assigned by LearnCFDs Pty Ltd on notice to the Client, provided that the relevant assignee undertakes to perform all of LearnCFDs Pty Ltd’s obligations herein.
If any provision of these Advertising Terms and Conditions is found invalid or unenforceable pursuant to judicial decree or decision, the remaining provisions will remain valid and enforceable, and the unenforceable provisions will be taken to be modified to the extent necessary to make them enforceable.
LearnCFDs Pty Ltd may send electronic mail to the Client for any notices or notifications. All notices to LearnCFDs Pty Ltd relating to any legal claims or matters must be made in writing to:
LearnCFDs Pty Ltd, PO Box 21 428, Christchurch 8143, New Zealand.
PO Box 31 Baulkham Hills NSW 1755
LearnCFDs Pty Ltd reserves the right to vary these terms and conditions without
notice and updates and changes can be requested via LearnCFDs Pty Ltd website: www.learncfds.com