GoTransit Standard Terms & Conditions
1. DEFINITIONS
1.1. Reference to the Advertiser includes the advertising agency and person or entity on behalf of which the agency acts unless the context requires otherwise.
1.2. An advertising agency is an agent acting on behalf of the Advertiser for whom the services are to be provided.
1.3. The services are the advertising and associated services provided by GoTransit.
1.4. The term refers to the term of this agreement being the period of time during which the services are to be provided by GoTransit.
1.5. The copy refers to the advertisement and/or material provided by the Advertiser and in respect of which GoTransit is to provide the services.
1.6. Reference to loss and damage includes Indirect, Special or Consequential loss and/or damage including i) any loss of income profit or business; ii) any loss of good will or reputation; iii) any loss of value of intellectual property.
1.7. Major failure is as defined under the Competition and Consumer Act 2010.
1.8. GST refers to Goods and Services tax under the A New Tax System (Goods and Services Tax) Act 1999 (“GST Act”) and terms used herein have the meanings contained within the GST Act.
2. GENERAL
2.1. An order has been placed when the parties have both signed the document entitled “Advertising Agreement Form” (“the order”).
2.2. These terms and conditions together with the order and credit application form (if any) constitute the agreement between GoTransit and the Advertiser (“the agreement”).
2.3. The order is deemed to incorporate these terms and conditions and may not be varied unless expressly agreed to by the parties in writing.
2.4. The agreement is binding on the Advertiser, and the Advertiser’s assignees, executors, trustees and where applicable, any liquidator, receiver or administrator.
2.5. In these terms and conditions, the singular shall include the plural, the masculine shall include feminine and neuter and words importing persons shall apply to corporations.
2.6. Where more than one legal entity completes the order both are the Advertiser and each shall be liable jointly and severally.
2.7. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired and the offending provision shall be deemed severed from these terms and conditions.
2.8. GoTransit may license or sub-contract all or any part of its rights and obligations without the Advertiser’s consent but GoTransit acknowledges that it remains at all times liable to the Advertiser for the order in accordance with the terms and conditions herein.
2.9. The failure by the parties to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect a parties’ right to subsequently enforce that provision.
2.10. All prices are based on taxes and statutory charges current at the time of the order. Should these vary during the period from the date of the order to the date of the invoice, the difference will become the responsibility of the Advertiser and the Advertiser will be invoiced for the extra charge.
2.11. For any order placed by an advertising agency, the advertising agency warrants to GoTransit that it has the requisite written authority of the Advertiser to enter into this agreement.
3. PRICE
3.1. GST will be charged by GoTransit for the services at the applicable rate.
3.2. The Price comprises the advertising fee and the production fee charged to the Advertiser for the services.
3.3. GoTransit reserves the right to change the price in the event of a variation to the order.
3.4. The Price shall be either:
3.4.1. The price of the services as described in the order; or
3.4.2. In the event of a variation to the order, as detailed on the amended order & subsequent invoice(s) provided by GoTransit to the Advertiser.
3.5. GoTransit may require the Advertiser to pay a deposit of up to fifty per centum (50%) of the price to be paid in advance of the services being provided.
4. PROVISION OF THE SERVICES
4.1. GoTransit does not warrant delivery of the service at the specific date requested by the Advertiser and/or as detailed on the order. GoTransit will not be liable for any loss and damage incurred by the Advertiser as a result of any delay in providing the services.
4.2. Subject to otherwise complying with its obligations under the agreement, GoTransit shall exercise its independent discretion as to its most appropriate and effective manner of providing the services and of satisfying the Advertiser’s expectations of the services.
4.3. The term of the agreement may be extended (by way of a variation in writing between the parties) not less than 60 days prior to the expiry of the term. In this event, GoTransit may require any copy to be replaced prior to the commencement of any further/extended term at the cost of the Advertiser. Nothing in this clause is to be construed as giving the Advertiser the right to renewal or for an optional term.
4.4. GoTransit will endeavour to avoid advertising of similar nature being placed on the same allocation, however a guarantee of category exclusivity is not given.
5. PAYMENT AND DEFAULT PROVISIONS
5.1. Credit terms will only be granted at the discretion of GoTransit, who may request completion by the Advertiser of a credit application form.
5.2. Advertisers must pay the price in full by way of monthly instalments calculated pro rata for the duration of the term if full payment in advance is not remitted on receipt of invoice where requested. The invoice rendered will be payable on the due date stipulated on the invoice.
5.3. GoTransit will render an invoice each month requesting payment of the instalment amount in arrears. The invoices rendered to the Advertiser will be payable on the due date stipulated on the invoice.
5.3.1. In the event the Advertiser is an advertising agency, within forty-five (45) days from the end of the calendar month in which the invoice was rendered; or
5.3.2. In all other cases within fifteen (15) days from the end of the calendar month in which the invoice was rendered.
5.4. Any payments made by the Advertiser by credit card will incur a credit card processing surcharge of 1.5% for Visa and Mastercard or 2.75% for American Express and other cards.
5.5. The “default date” is the day after the due date for payment of any invoice rendered by GoTransit to the Advertiser in accordance with the agreement.
5.6. The “outstanding balance” is the outstanding invoice amount, less any payments made by the Advertiser prior to the default date in respect of an invoice together with any applicable cancellation charge.
5.7. If GoTransit does not receive the outstanding balance on or before the default date the Advertiser acknowledges and agrees that:
5.7.1. The Advertiser will be liable for interest on the outstanding balance at the rate of twelve per centum (12%) per annum to be calculated daily.
5.7.2. In the event where GoTransit refers the outstanding balance to a lawyer for issuing proceedings against the Advertiser, the Advertiser shall also pay the legal costs, charges and disbursements incurred by GoTransit on the indemnity basis.
6. RISK AND LIABILITY
For the order
6.1. The Advertiser warrants that when placing the orders that there is sufficient information and specifications to enable GoTransit to execute the Order. GoTransit takes no responsibility if the specifications provided by the Advertiser are wrong or inaccurate and the Advertiser will be liable in that event for the expenses incurred by GoTransit for any work required to rectify the order.
6.2. The Advertiser acknowledges that GoTransit shall not be liable for and the Advertiser releases GoTransit from any loss and damage incurred as a result of delay or failure to observe any of these terms and conditions due to an event of force majeure, being any cause or circumstance beyond GoTransit’s reasonable control.
6.3. Subject to GoTransit’s warranty for defective services, GoTransit’s liability for any loss and damage in associated with, arising from or in connection with the Services may not exceed the price of the order.
6.4. Subject to GoTransit’s warranty for the copy, GoTransit takes no responsibility for any copy destroyed, damaged or vandalised whilst on display. At its sole discretion GoTransit may offer to repair or replace the copy at its cost or on payment by the Advertiser of a further production fee.
For the content of the copy
6.5. The Advertiser is responsible for ensuring the copy and the display of the copy is compliant with any applicable laws, standards, codes, regulations or rules for advertising to the public and the Advertiser warrants that:
6.5.1. The Copy does not constitute a breach of or infringement of any applicable laws, standards, codes, regulations or rules of any government, quasi-government or statutory or regulatory authority, or public or private right of an individual, including (without limitation) any intellectual property right; and
6.5.2. It has obtained all necessary permits, licenses and approvals required for the display of the Copy and the Copy will not be offensive, defamatory or inappropriate to display to the general public.
6.6. The Advertiser indemnifies and will keep indemnified GoTransit against:
6.6.1. Any breach by the Advertiser of its warranty as to fitness of any advertising, including but not limited to the cost of removing any offending advertising and reproducing and replacing offending advertising;
6.6.2. Any order for payment of monies, fines, costs and expense (including without limitation any legal costs on the indemnity basis) incurred by GoTransit and arising directly or indirectly from or in connection a claim made by:
6.6.2.1. A third party; alleging a breach of that third parties’ private rights, including (without limitation) any intellectual property right, defamation or other civil suit associated with the display to the public of the advertising;
6.6.2.2. A government, quasi-government or statutory or regulatory authority alleging a breach of inter alia any applicable laws, standards, codes, regulations or rules with which the advertising must comply.
7. WARRANTY AGAINST DEFECT
7.1. GoTransit warrants that the Advertiser’s rights and remedies in the agreement arising from a warranty against defects are in addition to other rights and remedies under any applicable law in relation to the goods and services to which the warranty relates.
7.2. GoTransit does not purport to restrict, modify or exclude any liability that cannot be excluded under the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) as may be amended from time to time.
Warranty for Services and the copy
7.3. Provided that the Advertiser reports any defect in any service provided or the copy, preferably within fourteen (14) days from the date that the defect became apparent, GoTransit will rectify or make good any defect in the services.
7.4. In respect of all claims under warranty, GoTransit reserves it right to inspect the copy alleged to be defective. To the extent permitted by law GoTransit’s liability in respect of defective services or copy that does not constitute a major failure will be limited to:
7.4.1. The repair or replacement of the copy and/or rectification or re-supply by GoTransit of the defective service; or
7.4.2. The payment of the reasonable costs of having the copy repaired or replaced and/or of having the services rectified or re-supplied; or
7.4.3. The refund of the price paid by the Advertiser in respect of the defective copy and/or service.
7.5. GoTransit shall not be liable to compensate the Advertiser for any reasonable delay in remedying any defective services or copy or in assessing the Advertiser’s claim.
7.6. The Advertiser warrants that it will use its best endeavours to assist GoTransit with identifying the nature of the defective service or copy claim.
7.7. Claims for warranty should be made in writing to GoTransit.
8. TERMINATION AND CANCELLATION
Cancellation by GoTransit
8.1. Without prejudice to the GoTransit’s other remedies at law, GoTransit shall be entitled to cancel all or any part of the order of the Advertiser which remains unfulfilled and all amounts owing to GoTransit shall, whether or not due for payment, become immediately payable in the event that:
8.1.1. The Advertiser is in default of payment of any invoice or money payable to GoTransit; or
8.1.2. The Advertiser becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
8.1.3. A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Advertiser or any asset of the Advertiser.
8.1.4. On cancellation by GoTransit pursuant to this clause 8, the Advertiser must pay to GoTransit a cancellation charge calculated as follows:
8.1.4.1. The production fee or balance thereof as outlined in the order; and
8.1.4.2. The sum equivalent to the advertising fee that would be charged to the Advertiser for the services over a period of three (3) months.
Cancellation by Advertiser
8.2. The Advertiser may cancel the order at any time prior to the services being provided by GoTransit.
8.3. In the event that the Advertiser cancels the order the Advertiser will be liable for any loss and damage incurred by GoTransit (including, but not limited to, any materials purchased and/or production costs incurred by GoTransit in connection with the order) up to the time of cancellation.
8.4. Any deposit paid by the Advertiser is non-refundable in the event of a cancellation by the Advertiser. GoTransit may retain any deposit paid in respect of the price of the order and offset such sum in satisfaction or partial satisfaction of any loss and damage suffered by GoTransit as a result of the Advertiser’s cancellation of the order.
8.5. On cancellation by the Advertiser after the commencement of the term for any reason, the Advertiser must pay to GoTransit a cancellation charge calculated in accordance with clause 8.1.4 (inclusive) above.
9. ENTIRE AGREEMENT
9.1. The agreement as defined herein constitutes the whole agreement between the Advertiser and GoTransit.
9.2. The Agreement is deemed to be made in the State of Queensland and all disputes hereunder shall be determined by the appropriate courts of Queensland.
9.3. All prior discussions and negotiations are merged within this document and GoTransit expressly waives all prior representations made by it or on its behalf that are in conflict with any clauses in the agreement in any way.
9.4. Nothing in these Terms and Conditions is intended to have the effect of contravening any applicable provisions of the Competition and Consumer Act 2010 or the Fair Trading Acts in each of the States and Territories of Australia.