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Business Promotional Agreement

Business Promotional Agreement

In submitting a Business Promotion Registration form, whether through the www.snowsearch.com.au website, by email or on paper, you agree to be bound by the terms of this Business Promotion Agreement.  These terms are open to negotiation so if you have any concerns, please discuss them with us prior to submitting the Business Promotion Registration form. 

  1. Promotional Content

"Promotional Content​" means any material or content submitted by you or on your behalf to us for the purpose of inclusion in your Business Promotion, whether in relation to an advertisement, advertorial or other type of business promotion agreed between us and including (but not limited to) all text, graphics, icons, photographs and URLs.   You must ensure that all Promotional Content submitted is in accordance with the Promotion Specifications and is provided in a form suitable for incorporation into the website without modification by us, unless otherwise agreed. 

You must ensure that all Promotional Content complies with all laws, regulations and relevant industry codes.  Promotional Content must not include publication of or linking to any content which is illegal or may bring us or the website into disrepute.  Promotional Content must not provide information about, cause or contribute to an activity which is unlawful or causes or contributes to the infringement of the legal rights of any person.  Promotional Content must not be defamatory, disparaging, offensive, vulgar, obscene or in any other way reasonably considered inappropriate.  Promotional Content must not embarrass any person or business, provide any image or information about someone without their consent or impersonate any person or business.  You must ensure that the proposed use of all Promotional Content (including your logo and business name) in no way infringes the intellectual property, privacy, confidentiality or other rights of any other person. 

Submission of Promotional Content.  You undertake to provide us with all Promotional Content no less than 7 consecutive days prior to the commencement of the Period for Publication or as otherwise agreed between us. 

Review of Promotional Content.  We will review your Promotional Content and may accept or reject it in our absolute discretion.  Where Promotional Content is not accepted by us, we may request you to make certain alterations or amendments within a period of time.  You agree to comply with our reasonable requests and within the necessary timeframe we advise to you.  Where you disagree with our requests or are unable to meet the required timeframe, you may terminate this agreement (see heading “6. Duration and Termination” below).  We may terminate this agreement if (i) we do not view (in our absolute discretion) your Promotional Content as appropriate for inclusion on the website, (ii) we believe there is inadequate time to rectify the Promotional Content so that it is accepted by us; or (iii) we fail to accept your Promotional Content for any other reason.

Proofing.  Your submission of any Promotional Content constitutes your confirmation that all Promotional Content is accurate and in the correct format for publication.  In general, there will be no further round of proofing in addition to your original submission of Promotional Content.  You agree that we are not responsible for publication of any inaccuracies and/or errors which may later be discovered in the Promotional Content.  Where you discover inaccuracies and/or errors prior to publication we may (but are under no obligation to) agree to replace the Promotional Content with any updated and corrected Promotional Content you provide. Submission of any Promotional Content by you to us constitutes your authorization for us to publish that Promotional Content on the website.

Editorial control.  At all times, as between us and you, we retain complete editorial control of content published on the website.  We will position Promotional Content as we determine to be appropriate in the context of the website.  We may at any time and without advance notice to you, reject, remove or cancel the publication of Promotional Content in our sole discretion.  Positioning of advertorials within the website and the display of banner advertisements will be as determined by us in our discretion. We may reposition Promotional Content on the website at any time as we see fit.  We may also label any Promotional Content as an advertisement, promotion or in such other way as we see fit to clarify that it is paid promotional content and/or does not represent our own views or recommendations.

Business Promotion upgrade.  Should you wish to upgrade the type of Business Promotion you have requested, you may email or contact us to request a Business Promotion upgrade and we will approve or reject your request in our absolute discretion.  Where we accept your request, we may charge you an administration fee for processing such upgrade plus the difference between the fees ordinarily charged for the upgraded type of Business Promotion and the fees paid at the time of initially creating your Business Promotion.  Any such fees must be paid within 14 consecutive days of the relevant invoice date, failing such payment your Business Promotion may be suspended until such payment is received.

  1. Intellectual property and other rights

We do not claim ownership in your Promotional Content. You grant us, our affiliates and sublicensees, a perpetual, non-exclusive, royalty-free, irrevocable, worldwide and transferable license to use your Promotional Content in any way and permit us to sublicense and authorise any person to do the same thing, including reproducing, changing and communicating your Promotional Content to the public or using it in connection with the operation of our business. This license includes the right to display, reproduce and republish your Promotional Content, including in other formats and on other mediums, such as using it at various location within the website, in social media sites, using it in our eNewlsetters, in blog posts within the website and using it in in promotional emails.

Your Promotional Content may be used by us for any purpose, whether commercial, advertising, or otherwise, on or in connection with the website or the promotion thereof. You further acknowledge that the license you provide includes the right to delete, edit, modify, reformat, translate, excerpt, prepare derivative works of, reproduce, host, display, stream, transmit, playback, transcode, copy, feature, market, sell, distribute, and otherwise fully exploit (for the purpose of promoting and operating the website and our business) your Promotional Content.  You further license us to use your trademarks, service marks, slogans, logos, and similar proprietary rights which are included in your Promotional Content for the purpose of your Business Promotion and our business related purposes.

You represent and warrant to us that you have all necessary rights to grant this license.  You acknowledge that your name, your representative(s)’s and/or your business name may or may not be published in connection with your Promotional Content. To the extent legally permissible, you consent to any act or omission which would otherwise constitute an infringement of your moral rights and, if you provide any content in which any other person has moral rights, you must also ensure that person also consents in the same manner. 

If you believe any content on the website breaches your (or any third party’s) intellectual property or other legal rights, please contact us immediately.

  1. Fees and payment

Fees payable and invoicing.  Fees applicable are set out on the Business Promotion Registration page of the website.  Different fees may be payable depending upon the type of Business Promotion you apply for.  Any special offers we may advertise may be for a limited time or quantity. Unless otherwise indicated, all Fees are exclusive of GST which you will be charged in addition to the Fees stated.  We will send you invoices for the amounts payable and, unless otherwise indicated at the time of submitting your Business Promotion Request or within the invoice itself, all invoices must be paid in advance and prior to the Business Promotion going live.  A monthly recurring invoice will be sent for all Promotions that exceed 31 calendar days.  Invoices will be sent to the email address you provide as your best business contact when you submit the Business Promotion Request, unless you advise us of an alternative communication method for invoices.  Payments are to be made according to the Payment Method set out on the Business Promotion Registration page on the website or as otherwise advised in our invoice(s). 

Late payments.  For Business Promotions that we have agreed to go live without payment in advance, all invoices must be paid within 14 consecutive days of the date the invoice is issued. Interest will be charged at the rate of Cash Rate Target set by the Reserve Bank of Australia plus 2% on any amount remaining unpaid 14 consecutive days after the invoice is issued. In addition, we may terminate or suspend our provision of services and/or require you to pay in advance for further services and/or commence legal action where invoiced amounts remain outstanding 30 consecutive days after the date required for payment.

Third party payment system.  Where we nominate a third party payment system (such as eWay provided by Web Active Corporation Pty Ltd and/or PayPal Pty Ltd or a merchant banking facility) (“Third Party Payment System”), you authorise our Third Party Payment System provider to make a direct debit to your nominated bank account for the applicable amount as stated on the invoice or website (as relevant) and any applicable GST.  To process your payment, our Third Party Payment System provider may require you to accept their own separate terms and conditions.  The name that will appear on your bank statement in respect of such a withdrawal will be either the company name “Optimal Solutions and Services Pty Ltd” or the business name “SNOWSEARCH”.  If you do not accept full responsibility for all risks associated with using our nominated Third Party Payment System, you should contact us to arrange an alternative payment method.

  1. Website functionality and security

The website functionality is a dynamic part of our business and may change over time.  In general, changes to website functionality will happen without you receiving notice and may include the addition or removal of content and/or services.  If you are not satisfied with any changes to the website functionality, you may terminate your Business Promotion (see “6. Duration and termination” below).

You agree to comply with all reasonable security procedures which we may require.  If you suspect or know of any unauthorised use of the website, you should contact us immediately.

  1. Confidentiality

Confidential information” means all information that we provide to each other in connection with this agreement which is identified as being confidential at the time of disclosure or ought to reasonably be considered confidential based on its content, nature or the manner of its disclosure.  Confidential information does not include information which is already in the public domain, which is disclosed by someone else (without a breach of confidence) or which is developed independently by either you or us.  You and we each agree to not use or disclose each other’s confidential information except as expressly permitted by the other party or as required by law.  We will each use the other party’s confidential information solely for the purpose of each of our respective rights and obligations under this agreement and may disclose such information to our professional advisors only to the extent reasonably necessary for purposes related to this agreement and under similar restraints on disclosure and use.  We will each implement reasonable security measures to prevent unauthorised use and disclosure of any confidential information we hold about each other. At each other’s request, we will each return or destroy (as so requested) the other party’s confidential information which is in our possession or control, except to the extent (i) we may be required by law and (ii) it is reasonable for the purposes of business records, to retain records of our dealings with each other.

  1. Duration and termination

Commencement and initial term. This agreement commences on the date you submit a Business Promotion Registration and continues until the end of the Period of Publication (unless extended by mutual agreement or terminated in advance in accordance with this agreement). 

Termination. This agreement may be terminated by either you or us providing 30 consecutive days advance written notice (without reason).  This agreement may also be terminated by either you or us providing, (a) notice with immediate effect to the other party if it is in breach of this agreement and where a written notice has previously been provided to that party requiring it to rectify a breach and that party has not rectified that breach within 7 consecutive days of being requested to do so; or (b) notice with immediate effect if the other party is insolvent.

We reserve the right to immediately and without prior notice to you terminate this agreement, your Business Promotion, restrict functionality available to you and/or refuse service to you (i) if we believe you are in breach of any law or the legal rights of any person, (ii) if we believe you are using the website in an inappropriate way or outside its intended purposes or (iii) if required by business or technical reasons. 

Payment.  Upon termination all Fees and charges (including any outstanding in respect of services provided but not yet invoiced) become immediately payable. You will be charged Fees up to the point of termination and where you are charged Fees in arrears, you will be charged on a pro rata basis.

Refunds.  Refunds are not available if you simply change your mind about running your Business Promotion.  Refunds (whether in whole or in part) are only available: (i) on a pro-rata basis if we cancel publication of your Promotional Content during the agreed Period for Publication (other than due to your breach of this agreement, the occurrence of an insolvency event or because we cease to provide the type of business promotion services which relate to your Business Promotion); or (ii) as required by law.

Survival.  Any rights, obligations and liabilities (including any fees for our services) which have accrued at the point of termination will continue beyond and survive termination. The following terms (and any terms required to give effect to those terms) survive termination of this agreement: all warnings and disclaimers by us, the limitation of our liability, all indemnities, all provisions under the headings “2. Intellectual property and other rights” and any other obligations that, by their nature, survive termination. Any content you have previously provided may or may not (in our discretion) be removed from the website following termination of this agreement.

  1. Consumer guarantees

All disclaimers in this Business Promotion Agreement and all limitations on our liability to you are subject to all applicable laws which prohibit or restrict the exclusion or modification of implied warranties and/or limitations on our liability, including (without limitation) any consumer guarantees mandated by the Australian Consumer Law (“ACL”).  If our products or services we supply are covered by the ACL and fail to meet the consumer guarantees, you may be entitled to:

  1. for any major failure, a refund and compensation for your losses or damages which were reasonable foreseeable; or

  2. for a non-major failure to have the products or services re-supplied.

  1. DISCLAIMERS

To the maximum extent permitted by law, we exclude all representations, warranties or terms (whether express or implied) other than those expressly set out in this agreement and those which by law cannot be excluded.  In addition, we draw your attention to the following points - these are risks which you accept in engaging our services and in relation to which you release us from any liability.  

  1. Information you disclose. Disclosure of any information in your Business Promotion is at your own risk. Always use caution when giving out any information about yourself or your business, especially with respect to information which can be used to personally identify you. 

  2. You may not be satisfied with your Business Promotion.  There are many factors which may impact on our ability to meet your requirements and we cannot guarantee that you will be satisfied with the results, whether in relation to your Business Promotion or other aspects of the website.  The content, services and layout of the website may not always meet with your satisfaction.

  3. General business risks.  You acknowledge that there are certain risks inherent in your business activities as a Snow Related Business and that you accept full responsibility for such risks, including any risks related to your advertising or listing in a directory service.  We are in no way involved in or responsible for any loss or harm which may arise due to your actions or inactions, the actions or inactions of others or, generally, due to the nature of your business and it is up to you to take such measures to protect yourself and your business as are prudent for your type of business.  Any advice, suggestions or opinions we offer are simply based on general experience in providing the website and should not be construed as professional advice on how to run your business or on any aspect of your business.

  4. Technical aspects.  The website is provided “as is” and will not be available on a continuous basis.  Technical aspects of the website may be unreliable and we make no representation about the suitability, reliability, security, availability, timeliness or accuracy of any website functionality, the business promotion service, information, software, products, services and related graphics contained on the website. The website may contain inaccuracies, errors or be otherwise unreliable.  The content available and services offered over the website will change from time to time and without notice to you.

  5. Suspension of service.  For business, technical and other reasons, the website (and its various components) will not operate on a continuous basis and may be unavailable from time to time, such as for maintenance purposes.  Operation of the website and your access to certain website functionality may also be temporarily or permanently suspended for various reasons and at our discretion.  Suspensions may apply to you individually or to all (or any group of) website users.

  6. Results to be achieved.  The results to be achieved from using our products and services are influenced by various factors including many of which are outside of our control, such as the information and content you provide or fail to provide, your responses, limitations and failures in the technical aspects of the website and technology used to provide the website.  We cannot guarantee and make no recommendations as to the results which may be achieved through using our website and your Business Promotion.  It is for you to monitor the efficacy of your Business Promotion to increase your customer base and to determine for your business circumstances whether or not the continued use of your Business Promotion will achieve the results you desire.  We make no guarantees or representations as to the number or type of customers you may receive through your Business Promotion on the website.

  7. Third Party Payment System.  The security of any payments made using our Third Party Payment System is dependent upon the security procedures of that payment system provider and we in no way guarantee or make any recommendations as to the security or reliability of their systems.  Any use of our Third Party Payment System is entirely at your risk and you agree that we are in no way responsible for any inadequacy in the security measures, failures in the security of the payment systems, loss or theft of your personal payment information or otherwise.  If you are not comfortable accepting these risks you should contact us to arrange an alternative payment method.

  1. OUR LIABILITY TO YOU

To the maximum extent permitted by law:

  1. our total aggregate liability for all claims relating to this agreement is limited to the Fees payable under this agreement or, where no amount has been charged, to $10 (AUD);

  2. we exclude all liability in respect of any special, indirect or consequential loss or damage;

  3. without limiting the preceding points, we exclude all liability for any business loss and, in particular, we exclude all liability for loss of data, interruption of business and loss of profits; and

  4. where any legislation prohibits or restricts the exclusion or modification of any implied warranties, conditions, guarantees or obligations, then, to the extent possible, we limit our liability (at our option): (i) in the case of goods, to their replacement (with equivalent goods), repair or payment for the cost of their repair or replacement; or (ii) in the case of services, to their re-supply or payment for the cost of their re-supply.

To the extent that any provision purporting to limit our liability is held to be unenforceable, then our liability is limited to the maximum extent permitted by law.  You also agree to waive any claim which you may otherwise have against any of our third party suppliers. 

  1. Your warranties to us

You represent and warrant to us on a continuous basis for the duration of this agreement that:

  1. you operate a legitimate business related to the snow and skiing industry within Australia (“Snow Related Business”);

  2. you abide by all applicable laws and regulations, you take all care, health and safety steps as are prudent for someone operating the type of Snow Related Business which you operate, including maintaining current insurance policies, complying with all relevant health and safety standards and, in general, operating your business and provided related goods or services service in a professional manner and within industry standard;

  3. all Promotional Content is true, accurate, up to date and is in no way misleading or deceptive and, to the extent that it expresses an opinion or other type of commentary, it is reasonably formed on the basis of facts which have been and can be verified;

  4. you have taken all due skill and care in preparing and providing the Promotional Content;

  5. you are fully authorised to publish, and to authorize us to publish, all Promotional Content;

  6. the Promotional Content and the publication of the Promotional Content on the websites does not and will not, at any time, infringe any intellectual property rights,  any right of confidence or any other right of any person;

  7. all Promotional Content will comply with all applicable laws, regulations and relevant industry codes;

  8. all advertised and/or promoted products and services will match the description provided and be available in the manner, at the price and for the time period you specify in the Promotional Content; and

  9. each website located at any URL shown or embedded in any Promotional Content is controlled and operated by you or on your behalf, is functional and accessible and at all times operates in compliance with all applicable laws, regulations and relevant industry codes.

  1. INDEMNITY

You agree to at all times indemnify and hold us harmless, together with  our agents, affiliates, subsidiaries, directors, officers, employees, consultants and contractors (collectively "Indemnified Persons") from and against any claim, costs, losses, damages, liability and expense (including reasonable legal fees) arising in relation to:

  1. your breach of this agreement (including any breach of any representation or warranty to us);

  2. you or any Promotional Content not complying with all applicable laws and regulations or breaching any third party’s intellectual property or other legal right(s) or, in either case, causing us to do so;

  3. the publication or use of the Promotional Content;

  4. any website represented by a URL included or embedded in the Promotional Content; or

  5. any third party claim in relation to the Promotional Content, any goods, services or business generally referred to in or directed to by the Promotional Content.

By way of example only, this indemnity applies to (a) any claims against us that any Promotional Content is defamatory, infringes copyright or any other legal rights; and (b) any claim against us by any other person in relation to any products/services you provide.

  1. Notices

A notice under this agreement must be in writing, signed by or on behalf of the person giving it, addressed to the person to whom it is to be given and must be:

  1. delivered by hand to that person's postal address (treated as having been given and received on the day of delivery if before 5:00 pm on a business day, otherwise on the next business day); or

  2. sent by pre-paid mail or courier to that person's postal address (treated as having been given and received on the day of delivery if before 5:00 pm a business day, otherwise on the next business day); or

  3. sent by electronic mail to that person's email address as set out or submitted on the Business Promotion Request page of the website (treated as having been given and received on the day of sending if before 5:00 pm a business day, otherwise on the next business day, unless the sender receives a delivery failure notification in which case delivery is not taken to have been effective).

  1. Miscellaneous

  1. Force Majeure.  A party will not be responsible for a failure to comply with its obligations under this agreement to the extent that failure is caused by a Force Majeure Event, provided that the party keeps the other closely informed in such circumstances and uses reasonable endeavours to rectify the situation.  Without limiting any other right to terminate under this agreement, if a Force Majeure Event affects a party's performance under this agreement for more than 14 consecutive days, the other party may immediately terminate this agreement by written notice.

  2. eNewsletters.  By submitting a Business Promotion Registration, you automatically become an email subscriber and consent to us sending you our electronic newsletter and other emails related to the marketing and administration of our website and any products or services we may offer over the course of time. All promotional emails will include the option to unsubscribe from receiving further emails or you can unsubscribe from such emails by notifying us at info@snowsearch.com.au.

  3. Contact details.  You must ensure your contact (and other) details which you provide to us are kept up to date.  Upon our request, you agree to provide us with identification and other information as we may reasonably require to verify your identity, your compliance with this agreement or as may be required by any law or government agency.   We may also collect and disclose information about you in the instances set out in our Privacy Policy.  Further, we may contact you (whether via email, phone or post) to seek your feedback on your experience using the SNOWSEARCH website and/or social media platforms.

  4. Proper authorisation. Where you accept this Business Promotion Agreement on behalf of a company you must ensure (and we may require confirmation) that you have proper company authorization to do so.

  5. No assignment.  You must not assign or otherwise deal in any other way with any of your rights under this agreement without our prior written consent.

  6. No partnership, agency etc. Nothing contained in this agreement creates any relationship of partnership or agency between you and us.  Neither you nor we may act, represent or hold ourselves out as having authority to act as the agent of or in any way bind or commit each other to any obligation.

  7. No involvement in disputes.  You agree that we will never be involved in any dispute between you and any website user.

  8. Confidential and entire agreement.  The terms of this agreement are confidential.  Entire agreement.  The terms of this Business Promotion Agreement and the details supplied or provided through the Business Promotion Registration page form the entire agreement as to the subject matter set out and replace all prior oral or written agreements, representations or understandings. Other than as expressly set out in this agreement, neither you nor we have relied on any representation made by each other or on each other’s behalf. All conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the maximum extent permitted by law.

  9. No Waiver.  Any failure to assert any right under this agreement does not constitute a waiver of such right. No waiver of any term of this agreement will be deemed a further or continuing waiver of that term.

  10. Severance. If any provision of this agreement is invalid or unenforceable, the relevant provision will be deemed to be removed and replaced with a valid, enforceable provision that most closely matches the intent of the original provision.  All other remaining provisions shall continue in full force and effect.

  11. Governing law.  This agreement is governed by and construed in accordance with the laws of the state of Queensland (Australia) and each party submits to the exclusive jurisdiction of the courts of Queensland. 

  1. Definitions and interpretation

In this Agreement, unless the context indicates the contrary, any capitalized terms have the meanings as set out above or, where no such definition is included, have the meaning set out in the Business Promotion Request.  In addition:

  • agreement” means the terms set out in this Business Promotion Agreement in conjunction with the Business Promotion Registration page which you complete and submit through the website or which you otherwise provide to us (whether by mail, courier or otherwise);
  • Business Promotion” means the premium advertisement, banner advertisement, eNewsletter advertisement, snow resort highlights, snow resort testimonial space, snow resort ticket specials, or any other type of business promotion contemplated by your Business Promotion Registration and the terms of this agreement;
  • Force Majeure Event” means any event beyond the control of the relevant party;
  • GST” means any applicable goods and services tax;
  • insolvent” has the meaning given in the Corporations Act 2001 (Cth) or the other party has reasonable ground to believe that party is insolvent;
  • intellectual property” means all intellectual property rights, including all copyright, patents, trademarks, design rights, trade secrets, domain names, know-how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application;
  • Business Promotion Registration” means the registration  for business promotion you submit through entering and providing your details through the Business Promotion Registration page on the website or which you otherwise provide to us (whether by mail, courier or otherwise); 
  • website” means www.snowsearch.com.au and all content residing in that domain, including the website functionality, any messaging service(s), the layout, design and underlying code and systems;
  • we”, “us” and “our” means Optimal Solutions and Services Pty Ltd ACN 600 312 703 t/as SNOWSEARCH;
  • we will each” and “each other” means you and us; and
  • you” and “your” refer to (i) you personally OR (ii) if you submitting the Business Promotion Registration Form within the scope of your employment and with due authorization by your employer, that employer and/or company (as appropriate). 

Unless the context requires otherwise: (i) a reference to a person includes a corporation or any other legal entity; (ii) the singular includes the plural and vice versa; (iii) headings are for convenience only and do not affect the interpretation of this agreement; (iv) the term "includes" (or any similar term) means "includes without limitation"; and (v) a reference to any statute includes references to any subsequently amended, consolidated or re-enacted version of that statute and all delegated legislation or other statutory instruments made under it.

Version 1.0; Updated as at [20.01.2016]

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