- Friday, 05 July 2013 14:17
Privacy
Please review our Niche Privacy Policy, which also governs your visit to the Niche Subscription Website. Your name and address details are retained by the Subscriptions Department at Niche Media and are used to fulfill your subscription premium, send your renewal notices and information to other Niche Media publications and events.
Refunds
No Refunds privided.
Subscriptions
The subscription will commence with the next available issue and will be mailed once payment has been received.
Special Offers
Discounts and premium (gifts) are available to residents of Australia only. Your free gift (s) will be shipped within 2-4 weeks after payment is received.
Copyright
All content included on this site – text, graphics, logos, buttons, images, downloads are the property of Niche Media.
Purchases/Transactions
You are responsible for maintaining the confidentiality of your details and adhere to accept responsibility for all activities that occur during the transaction process. If you are under 18, the involvement of a parent or guardian is required when purchasing from the Niche Media Subscriptions site. Niche Media reserves the right to refuse service, terminate transactions, remove or edit content at their discretion if deemed necessary.
Pricing
Prices displayed for products on our website represents the full retail price unless specified.
Advertising
These are the terms and conditions under which Niche will supply and sell to the Advertiser, advertising space and/or related products and services in, or in relation to Niche’s Publications.
The Advertiser will be deemed to have accepted these terms and conditions by providing an Advertising Agreement to Niche or one of Niche’s representatives. Niche’s acceptance of the Advertising Agreement is conditioned upon the Advertiser’s acceptance of these Terms and Conditions without any addition or modification and Niche being satisfied in its sole and absolute discretion that the Advertiser is not a credit risk.
- Definitions
1.1 In these Terms and Conditions, unless the context otherwise requires:
(a) “Advertisement” means the material agreed between Niche and the Advertiser to be placed in the Publication in respect of which the Fee is to be paid and may include, without limitation, loose or bound inserts, tip-ons, display advertisements, column advertisements and Advertorials whether in electronic or hard-copy form.
(b) “Advertising Agreement” means the document entitled Advertising Agreement signed for or on behalf of the Advertiser and accepted by Niche referring to these Terms and where details including those relating to the Advertisement to be inserted by or on behalf of the Advertiser in the Publication are to be set out.
(c) “Advertorials” means editorial content that falls within the definition of Advertisement.
(d) “Agreement” means the form entitled “Advertising Agreement”, incorporating these Terms by reference, as executed by the Advertiser.
(e) “GST” has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(f) “Fee” means the amount entered as the “Total (inc GST)” on the Advertising Agreement.
(g) “Niche” means Niche Group Pty Limited and/or any or all of its related entities including any or all of Niche Media Pty Ltd, Waiviata Pty Ltd and HH&M Media Pty Ltd.
(h) “Publication” means the publication or publications specified as “Publication” on the Advertising Agreement whether published in hard-copy, in electronic form, on the internet and/or in any other form.
(i) “Publication Date” means the date on which the Publication is delivered to a point of sale, letterbox or mail centre (as the case may be).
(j) “Rate Card” means the document prepared by Niche for Advertisers setting out the standard rates and charges that apply for booking space for Advertisements in relation to a Publication.
(k) “Terms” means the terms and conditions set out herein.
1.2 In these Terms, the singular includes the plural and vice versa. A reference to “$” or dollars means Australian dollars and a reference to payment means payment in Australian dollars unless otherwise stated in the Advertising Agreement.
- Availability of Terms on Website
Niche will use its best endeavours to ensure that these Terms are posted at www.niche.com.au/terms or such other website as Niche may notify the Advertiser of from time to time.
- Payment Terms and Interest
3.1 Niche shall place Advertisements as are agreed between the parties in such of its publications as set out in the Advertising Agreement, and the Advertiser shall pay Niche at such rates as are set out in the Advertising Agreement.
3.2 The Advertiser must pay the Fee in full and any other applicable taxes, duties and levies without deduction within thirty (30) days from the Publication Date (whether or not a tax invoice has been issued and whether or not formal demand for payment has been made). If the Advertiser does not make payment in full within this time or otherwise in accordance with the terms of the Agreement, any part of the Fee not paid will increase by 0.07% per day until such time as the Fee (as increased by virtue of the operation of this term), has been paid to Niche in full. All payment is to be made in Australian dollars unless otherwise stated in the Advertising Agreement.
3.3 Where an Agreement is cancelled, expired or suspended by Niche the Fee, calculated in accordance with the then-current Rate Card for the Publication, shall be adjusted to reflect the pro-rata value of the actual amount of space and/or the number of issues of the Publication in which the Advertiser’s advertisements have been published and the Advertiser agrees to pay the amended amount calculated by Niche in full without deduction.
3.4 In the event that the Advertiser commits a default under this Contract, the Advertiser shall pay to Niche on demand all costs and interest including without limitation all interest accrued and calculated pursuant to clause 3.2 herein, legal costs (assessed on a solicitor/own client basis) all mercantile agent’s fees incurred by Niche in recovering all amounts outstanding under this Agreement and any dishonour or bank fees incurred by Niche relating to payments made by the Advertiser from time to time.
3.5 The Advertiser acknowledges that Niche has a lien over the material supplied by or on behalf of the Advertiser to Niche for any Advertisement during such time as the Advertiser owes any sum to Niche pursuant to the Agreement.
- Provision of Credit
4.1 In the event that Niche extends credit to the Advertiser, the Advertiser:
4.1.1 acknowledges that the Advertisements are sought for the purposes of business, not private or domestic use, and that Niche relies upon this representation in the event that Niche agrees to publish the Advertisements on credit;
4.1.2 guarantees that the Advertiser will be able to repay all amounts owing within 30 days;
4.1.3 agrees to provide all financial information requested by Niche to assist it in deciding whether to extend credit to the Advertiser.
4.2 If the Advertiser wishes to make a claim against Niche following Publication that relates to the provision of credit by Niche, the Advertiser must give Niche written notice setting out full particulars of that claim within seven (7) days of the Publication Date. If the Advertiser:4.2.1 provides such written notice, the Advertiser agrees that Niche’s decision in respect of that claim shall be final and bind the parties;
4.2.2 fails to provide such written notice, the Advertiser agrees that it will have waived all rights to make a credit claim against Niche in respect of the Publication and must pay the Fee in full within the time specified in these Terms.
4.3 By signing the Advertising Agreement, the Advertiser gives authority to Niche to obtain information pursuant to the Privacy Act 1988 (Cth) as amended from time to time, and to make whatever other inquiries and obtain such other information Niche deems reasonably necessary in the circumstances to determine the acceptability and continued acceptability of the Advertiser for receiving credit facilities, and a copy of the Advertising Agreement signed by the Advertiser shall be sufficient evidence of the Advertiser’s authority to Niche for that purpose.
4.4 Niche may, in its sole and absolute discretion, terminate the Agreement at any time if it is of the opinion that the Advertiser is a credit risk. Any such termination will not affect any obligations of the parties that survive termination, either express or implied.
- Content and Control
5.1 When material is supplied to Niche, by or on behalf of the Advertiser, Niche accepts no responsibility for that material. Niche shall not be responsible for any loss of or damage to any material provided to Niche by the Advertiser.
5.2 The deadline for submission of advertising material to the Advertiser is as specified on the Advertising Agreement or rate card for the Publication. It is the Advertiser’s responsibility to confirm the deadline for submission of advertising material whether or not such is explicitly stated on the Advertising Agreement or rate card. If such material is not furnished to Niche by the deadline, Niche may, without further reference to the Advertiser, either:
5.2.1 substitute alternate material that Niche holds for the Advertiser; or
5.2.2 delete the space and charge the Advertiser for the full amount of the Fee (less any payments made by the Advertiser) for the space booked.
5.3 Niche retains full editorial control of its publications and may at any time in its absolute discretion alter the name, size and/or layout (but not the subject matter) of a publication in which an Advertiser has placed an Advertisement without notice or incurring any liability whatsoever to the Advertiser. Should any change be made by Niche this will not constitute grounds for cancellation of the Agreement by the Advertiser nor will it give rise to Niche being liable for any loss or damage or any claim whatsoever as a consequence of such change.
5.4 Niche may, at its absolute and uncontrolled discretion, reject or withdraw from publication any advertisement it considers unsuitable for publication for any reason without incurring any penalty or liability.
5.5 The positioning of Advertisements will be at the discretion of Niche except where special arrangements have been made and the appropriate loading undertaken in which case Niche will arrange the positioning of the Advertisement requested by the Advertiser provided however that where the material for the Advertisement is provided to Niche after the material deadline as stated in the Advertising Agreement has passed, Niche may include the Advertisement in the Publication in a position at the sole and absolute discretion of Niche and the Advertiser will still be liable for the full amount set out in the Advertising Agreement including any applicable loading.
5.6 The Advertiser must not on-sell, assign, transfer or otherwise grant the use of advertising space booked or purchased by the Advertiser from Niche in a Publication to any third party without the prior written consent of Niche. Such consent may be withheld at Niche’s sole and absolute discretion.
5.7 If the Advertiser commits a breach of clause 5.6, Niche may refuse to include any and all Advertisements placed in a Publication by that Advertiser pursuant to this Agreement, but the Advertiser shall remain liable for the full amount of the Fee for the space booked in the Publication.
- Intellectual Property
6.1 The Advertiser acknowledges that Niche is the owner of the copyright in all advertisements (including artwork) prepared by the employees, servants and/or agents of Niche on behalf of the Advertiser and neither the Advertiser nor any other party is entitled to publish, reproduce or otherwise enjoy the rights in such advertisements or artwork without the prior written permission of Niche.
6.2 The Advertiser unconditionally warrants to Niche that any material it provides to Niche in relation to any Advertisement will not infringe the intellectual property rights of any third party when published. The Advertiser continually indemnifies Niche against any claim, loss, damages, costs or expenses incurred directly or indirectly by Niche as a direct or indirect result of the Advertiser’s breach of this warranty.
- Indemnity
The Advertiser shall indemnify and keep indemnified Niche from and against all claims, loss, damage and expenses whatsoever, incurred directly or indirectly by reason of any breach of the Agreement, negligence, tortious act or other wrongdoing by the Advertiser. Without limiting the foregoing, the Advertiser shall indemnify Niche from and against all claims, loss, damage and expenses incurred in connection with any Advertisement that contains or refers to any material that is defamatory, a slander of title, breach of copyright, amounts to unfair competition, a violation of rights of privacy, is or is likely to be misleading or deceptive or in violation of any applicable law, regulation, statute or guideline, including but not limited to the Trade Practices Act 1974 (Cth), Fair Trading Act 1999 (Vic), Copyright Act 1968 (Cth), and any equivalent legislation as amended from time to time.
- Termination
The Agreement may be terminated by Niche at any time if, in its absolute discretion, it considers that the Advertiser is a credit risk, the Advertiser is in breach of the Agreement or in any event on the provision of 7 days notice in writing by Niche to the Advertiser. If termination occurs, Niche is no longer required to place any Advertisement in any of its Publications and all outstanding sums owed to Niche by the Advertiser shall become due and payable immediately.
- Distribution of Publications
The Advertiser acknowledges that Niche may procure third parties to distribute its Publications or fulfil any of its obligations under this Agreement. In relation to the publications known as “Welcome To”, the Advertiser further acknowledges and agrees that where the Publication which is the subject of the Agreement is distributed by a third party contracted by or on behalf of Niche, a written audit report from that third party confirming the extent (including the quantity and manner) of the distribution of the Publication in question shall be accepted by the Advertiser as conclusive evidence of the extent of that Publication’s distribution.
- Limitation of Liability
10.1 Niche’s liabilities or obligations, under or pursuant to this Agreement are expressly limited to the provision of space for Advertisements in its Publications. In any event, Niche’s liability to the Advertiser, if any, shall not exceed the total of the amounts paid to Niche relating to the service or product giving rise to the liability
10.2 While every endeavour will be made to ensure the insertion of Advertisements in accordance with the Advertiser’s instructions, no guarantee or warranty will be given or implied, nor any liability accepted for any loss or damage occasioned by any omission, mistake, error or misplacement of any Advertisement by Niche and without limiting the foregoing, Niche shall not be liable for any special, incidental, or consequential damages of any kind, or for loss of profits, loss of opportunity, loss of business or goodwill or interruption of business arising out of or in connection with this Agreement however arising or wheresoever situated from any act, error or omission by Niche in respect to any Advertisement placed or to be placed on the Advertiser’s behalf.
- No Warranty as to Advertising Response
Niche makes no representation or warranty, express or implied, as to the efficacy or suitability of any Advertisement placed in a Publication by or on behalf of the Advertiser, nor to the effectiveness, or outcome of, or response to such Advertisement, and the Advertiser’s liability to pay the Fee to Niche in full and without deduction shall not be dependent in any way upon such efficacy, outcome of or response to the Advertisement.
- General
12.1 Entire Agreement. The Agreement is the entire agreement between Niche and the Advertiser in respect of its subject matter and all conditions, warranties and terms implied by custom, general law or statute that are not expressly set out in the Agreement are excluded to the maximum extent permitted by law.
12.2 Assignment. Niche may assign any of its rights or obligations under the Agreement to any third party at any time without notice to the Advertiser. The Advertiser may not assign any of its obligations under the Agreement without the prior written consent of Niche. The Advertiser must notify Niche in writing within 7 days of any change of ownership of the Advertiser and fully indemnifies Niche against any loss or damage suffered by Niche as a result of the Advertiser’s failure to notify Niche of such change.
12.3 Force Majeure. If for any reason beyond the control of Niche (including without limitation as a result of fire, flood, blackout, industrial action, theft, sabotage or equipment breakdown) Niche cannot complete its obligations under the Agreement, Niche shall be entitled to delay performance of the Agreement or terminate the Agreement at its absolute discretion and the Advertiser shall not make any claim for loss or damages in respect of such delay or termination.
12.4 Waiver. No waiver of any right under the Agreement nor delay in enforcement or any other indulgence shall affect the rights of a party under the Agreement and all the rights and powers of that party will remain in full force and effect notwithstanding any such waiver, delay or other indulgence.
12.5 Severability. If any court of competent jurisdiction determines that any provision of the Agreement is invalid, illegal or unenforceable, the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired. The offending provision or part shall be interpreted to whatever extent possible to give effect to its stated intent.
12.6 No Merger. The obligations of the Advertiser in respect of agreements, consents, covenants and warranties contained in these Terms shall remain in full force and effect and are not extinguished upon termination of the Agreement.
12.7 No Amendment. The Agreement shall not be varied except by a document in writing signed by the parties
12.8 Governing Law and Jurisdiction. The Agreement shall be read and construed according to the law of the state of Victoria and the parties irrevocably agree that any dispute relating to the Agreement shall be determined in a court of the state of Victoria with the necessary jurisdiction.
Online Advertising Terms and Conditions
- Definitions
1.1 In these Online Advertising Terms and Conditions (“Terms & Conditions”), unless the context otherwise requires:
(a) “Advertisement” means the material agreed between Niche and the Advertiser to be displayed or otherwise featured on the Niche Website as specified in the ‘Additional Details’ section of the Advertising Agreement – Online, including, without limitation, any creative forming part or all of the material and any material forming part or all of the material available at the Resource Centre.
(b) “Advertising Agreement” means the advertising agreement signed for and on behalf of the Advertiser and accepted by Niche, comprising the Advertising Agreement – Online and these Terms & Conditions.
(c) “Advertising Agreement – Online” means the section of this Advertising Agreement titled ‘Advertising Agreement – Online’ and includes the ‘Additional Details’ section of that document.
(d) “Date end” means the date specified as the ‘Date end’ on the Advertising Agreement – Online.
(e) “Date start” means the date specified as the ‘Date start’ on the Advertising Agreement – Online.
(f) “Fee” means the amount entered as the “Total (inc GST)” on the Advertising Agreement – Online.
(g) “GST” has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(h) “Niche” means Niche Group Pty Limited and any or all of its Related Bodies Corporate (as defined in the Corporations Act 2001 (Cth)) including any or all of Niche Media Pty Ltd, Waiviata Pty Ltd and HH&M Media Pty Ltd.
(i) “Niche Website” means the website or websites specified as the ‘Niche Website’ on the Advertising Agreement – Online.
(j) “Period” means the period of time beginning on the Date start and ending on the Date end.
(k) “Rate Card” means the document prepared by Niche for Advertisers setting out the standard rates and charges that apply for booking space for Advertisements in relation to a Niche Website.
(l) “Resource Centre” has the same meaning given to that term in the ‘Additional Details’ section of the Advertising Agreement – Online.
1.2 In these Terms & Conditions, the singular includes the plural and vice versa. A reference to “$” or dollars means Australian dollars and a reference to payment means payment in Australian dollars unless otherwise stated in the Advertising Agreement.
1.3 To the extent of any inconsistency between these Terms & Conditions and the Advertising Agreement – Online, these Terms & Conditions shall prevail so far as necessary to overcome the inconsistency.
- Payment Terms and Interest
2.1 During the Period, Niche shall display or otherwise feature such Advertisements as are agreed between the parties on the Niche Websites, and the Advertiser shall pay Niche at such rates as are set out in the Advertising Agreement – Online.
2.2 The Advertiser must pay the Fee in full and any other applicable taxes, duties and levies without deduction within thirty (30) days from the Publication Date (whether or not a tax invoice has been issued and whether or not formal demand for payment has been made). If the Advertiser does not make payment in full within this time or otherwise in accordance with the terms of the Agreement, any part of the Fee not paid will increase by 0.07% per day until such time as the Fee (as increased by virtue of the operation of this term), has been paid to Niche in full. All payment is to be made in Australian dollars unless otherwise stated in the Advertising Agreement – Online.
2.3 Where the Advertising Agreement is cancelled, expired or suspended by Niche the Fee, calculated in accordance with the then-current Rate Card for the, Niche Website shall be adjusted to reflect the pro-rata value of the Advertisements that were displayed or otherwise featured on the Niche Websites and the Advertiser agrees to pay the amended amount calculated by Niche in full without deduction.
2.4 In the event that the Advertiser commits a default under the Advertising Agreement, the Advertiser shall pay to Niche on demand all costs and interest including without limitation all interest accrued and calculated pursuant to clause 2.2, legal costs (assessed on a solicitor/own client basis) all mercantile agent’s fees incurred by Niche in recovering all amounts outstanding under this Agreement and any dishonour or bank fees incurred by Niche relating to payments made by the Advertiser from time to time.
2.5 The Advertiser acknowledges that Niche has a lien over the material supplied by or on behalf of the Advertiser to Niche for any Advertisement during such time as the Advertiser owes any sum to Niche pursuant to the Advertising Agreement.
- Provision of Credit
3.1 In the event that Niche extends credit to the Advertiser, the Advertiser:
3.1.1 acknowledges that the Advertisements are sought for the purposes of business, not private or domestic use, and that Niche relies upon this representation in the event that Niche agrees to publish the Advertisements on credit;
3.1.2 guarantees that the Advertiser will be able to repay all amounts owing within 30 days;
3.1.3 agrees to provide all financial information requested by Niche to assist it in deciding whether to extend credit to the Advertiser.
3.2 If the Advertiser wishes to make a claim against Niche after the Period that relates to the provision of credit by Niche, the Advertiser must give Niche written notice setting out full particulars of that claim within seven (7) days of the end of the Period. If the Advertiser:
3.2.1 provides such written notice, the Advertiser agrees that Niche’s decision in respect of that claim shall be final and bind the parties;
3.2.2 fails to provide such written notice, the Advertiser agrees that it will have waived all rights to make a credit claim against Niche in respect of the Advertising Agreement and must pay the Fee in full within the time specified in these Terms & Conditions.
3.3 By signing the Advertising Agreement, the Advertiser gives authority to Niche to obtain information pursuant to the Privacy Act 1988 (Cth) as amended from time to time, and to make whatever other inquiries and obtain such other information Niche deems reasonably necessary in the circumstances to determine the acceptability and continued acceptability of the Advertiser for receiving credit facilities, and a copy of the Advertising Agreement signed by the Advertiser shall be sufficient evidence of the Advertiser’s authority to Niche for that purpose.
3.4 Niche may, in its sole and absolute discretion, terminate the Advertising Agreement at any time if it is of the opinion that the Advertiser is a credit risk. Any such termination will not affect any obligations of the parties that survive termination, either express or implied.
- Content and Control
4.1 When material is supplied to Niche, by or on behalf of the Advertiser, Niche accepts no responsibility for that material. Niche shall not be responsible for any loss of or damage to any material provided to Niche by the Advertiser.
4.2 The deadline for submission of material to the Advertiser is as specified on the Advertising Agreement – Online or Rate Card for the Niche Website. It is the Advertiser’s responsibility to confirm the deadline for submission of material whether or not such is explicitly stated on the Advertising Agreement – Online or Rate Card for the Niche Website. If such material is not furnished to Niche by the deadline, Niche may, without further reference to the Advertiser, either:
4.2.1 substitute alternate material that Niche holds for the Advertiser; or
4.2.2 delete the space and charge the Advertiser for the full amount of the Fee (less any payments made by the Advertiser) for the space booked.
4.3 Niche retains full editorial control of each Niche Website and may at any time in its absolute discretion alter the name, size and/or layout (but not the subject matter) of the Niche Website without notice or incurring any liability whatsoever to the Advertiser. Should any change be made by Niche this will not constitute grounds for cancellation of the Advertising Agreement by the Advertiser nor will it give rise to Niche being liable for any loss or damage or any claim whatsoever as a consequence of such change.
4.4 Niche may, at its absolute and uncontrolled discretion, reject or remove any material it considers unsuitable for display or to be featured on the Niche Website for any reason whatsoever without incurring any penalty or liability.
4.5 The positioning of Advertisements will be at the discretion of Niche except where special arrangements have been made and the appropriate loading undertaken in which case Niche will arrange the positioning of the Advertisement requested by the Advertiser provided however that where the material for the Advertisement is provided to Niche after the material deadline as stated in the Advertising Agreement – Online or Rate Card for the Niche Website has passed, Niche may include the Advertisement in the Publication in a position at the sole and absolute discretion of Niche and the Advertiser will still be liable for the full amount set out in the Advertising Agreement – Online including any applicable loading.
4.6 The Advertiser must not on-sell, assign, transfer or otherwise purport to grant to any third party any of the Advertiser’s rights or obligations under the Advertising Agreement without the prior written consent of Niche. Such consent may be withheld at Niche’s sole and absolute discretion.
4.7 If the Advertiser commits a breach of clause 4.6, Niche may refuse to display or feature any and all Advertisements on the Niche Website, but the Advertiser shall remain liable for the full amount of the Fee.
- Intellectual Property
5.1 The Advertiser acknowledges that Niche is the owner of the copyright in all material (including artwork) prepared by the employees, servants and/or agents of Niche on behalf of the Advertiser and neither the Advertiser nor any other party is entitled to publish, reproduce or otherwise enjoy the rights in such material or artwork without the prior written permission of Niche.
5.2 The Advertiser unconditionally warrants to Niche that any material it provides to Niche in relation to any Advertisement will not infringe the intellectual property rights of any third party when published. The Advertiser continually indemnifies Niche against any claim, loss, damages, costs or expenses incurred directly or indirectly by Niche as a direct or indirect result of the Advertiser’s breach of this warranty.
- Indemnity
The Advertiser shall indemnify and keep indemnified Niche from and against all claims, loss, damage and expenses whatsoever, incurred directly or indirectly by reason of any breach of the Advertising Agreement, negligence, tortious act or other wrongdoing by the Advertiser. Without limiting the foregoing, the Advertiser shall indemnify Niche from and against all claims, loss, damage and expenses incurred in connection with any Advertisement that contains or refers to any material that is defamatory, a slander of title, breach of copyright, amounts to unfair competition, a violation of rights of privacy, is or is likely to be misleading or deceptive or in violation of any applicable law, regulation, statute or guideline, including but not limited to the Trade Practices Act 1974 (Cth), Fair Trading Act 1999 (Vic), Copyright Act 1968 (Cth), and any equivalent legislation as amended from time to time.
- Termination
The Agreement may be terminated by Niche at any time if, in its absolute discretion, it considers that the Advertiser is a credit risk, the Advertiser is in breach of the Agreement or in any event on the provision of 7 days notice in writing by Niche to the Advertiser. If termination occurs, Niche is no longer required to display or feature any Advertisement in any of its Niche Websites and all outstanding sums owed to Niche by the Advertiser shall become due and payable immediately.
- Limitation of Liability
8.1 Niche’s liabilities or obligations, under or pursuant to this Advertising Agreement are expressly limited to the display or featuring of the Advertisements on the Niche Website during the Period. In any event, Niche’s liability to the Advertiser, if any, shall not exceed the total of the amounts paid to Niche relating to the service or product giving rise to the liability.
8.2 While every endeavour will be made to ensure the display or featuring of the Advertisements on the Niche Website during the Period in accordance with the Advertiser’s instructions, no guarantee or warranty will be given or implied, nor any liability accepted for any loss or damage occasioned by any omission, mistake, error or misplacement of any Advertisement by Niche and without limiting the foregoing, Niche shall not be liable for any special, incidental, or consequential damages of any kind, or for loss of profits, loss of opportunity, loss of business or goodwill or interruption of business arising out of or in connection with the Advertising Agreement however arising or wheresoever situated from any act, error or omission by Niche in respect to any Advertisement displayed, featured or to be displayed or featured on the Advertiser’s behalf.
- No Warranty as to Advertising Response
Niche makes no representation or warranty, express or implied, as to the efficacy or suitability of any Advertisement displayed or featured on the Niche Website by or on behalf of the Advertiser, nor to the effectiveness, or outcome of, or response to such Advertisement, and the Advertiser’s liability to pay the Fee to Niche in full and without deduction shall not be dependent in any way upon such efficacy, outcome of or response to the Advertisement.
- General
10.1 Entire Agreement. The Advertising Agreement is the entire agreement between Niche and the Advertiser in respect of its subject matter and all conditions, warranties and terms implied by custom, general law or statute that are not expressly set out in the Advertising Agreement are excluded to the maximum extent permitted by law.
10.2 Assignment. Niche may assign any of its rights or obligations under the Advertising Agreement to any third party at any time without notice to the Advertiser. The Advertiser may not assign any of its obligations under the Advertising Agreement without the prior written consent of Niche. The Advertiser must notify Niche in writing within 7 days of any change of ownership of the Advertiser and fully indemnifies Niche against any loss or damage suffered by Niche as a result of the Advertiser’s failure to notify Niche of such change.
10.3 Force Majeure. If for any reason beyond the control of Niche (including without limitation as a result of fire, flood, blackout, industrial action, theft, sabotage or equipment breakdown) Niche cannot complete its obligations under the Advertising Agreement, Niche shall be entitled to delay performance of the Advertising Agreement or terminate the Advertising Agreement at its absolute discretion and the Advertiser shall not make any claim for loss or damages in respect of such delay or termination.
10.4 Waiver. No waiver of any right under the Advertising Agreement nor delay in enforcement or any other indulgence shall affect the rights of a party under the Advertising Agreement and all the rights and powers of that party will remain in full force and effect notwithstanding any such waiver, delay or other indulgence.
10.5 Severability. If any court of competent jurisdiction determines that any provision of the Advertising Agreement is invalid, illegal or unenforceable, the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired. The offending provision or part shall be interpreted to whatever extent possible to give effect to its stated intent.
10.6 No Merger. The obligations of the Advertiser in respect of agreements, consents, covenants and warranties contained in these Terms & Conditions shall remain in full force and effect and are not extinguished upon termination of the Advertising Agreement.
10.7 No Amendment. The Advertising Agreement shall not be varied except by a document in writing signed by the parties.
10.8 Governing Law and Jurisdiction. The Advertising Agreement shall be read and construed according to the law of the state of Victoria and the parties irrevocably agree that any dispute relating to the Advertising Agreement shall be determined in a court of the state of Victoria with the necessary jurisdiction.
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