Updated 24 October 2024
These are the terms and conditions for online advertising (‘Terms’) entered into between the Supplier (as identified in the ‘Property’ column in the Insertion Order) and the Advertiser and/or Agency (‘the Client’).
The Supplier will advertise your products and services online as set out in these Terms and the Insertion Order.
In this Agreement, ‘Supplier’ is one or more of the following entities as identified in the ‘Property’ column in the Insertion Order:
A. Data Distribution & Marketing Pty Limited (ACN 150 515 941) Authorised Representative No. 420360 of Canstar Research Pty Limited (ACN 114 422 909), AFSL and Australian Credit Licence No: 437917 (‘DDM’), identified in the IO as ‘CNS’;
B. Canstar Blue Pty Limited (ACN: 142 285 434) (‘Canstar Blue’), identified in the IO as ‘CB’; or
C. RateCity Pty Limited (ACN: 122 743 542), Authorised Representative (AR: 1309869) and Credit Representative (CRN: 559684) of Canstar Research Pty Ltd ABN 29 114 422 909, AFSL and Australian Credit Licence No: 437917 (Canstar Research) (‘RateCity’), identified in the IO as ‘RC’.
1. Agreement
1.1. To enter into an agreement with the Supplier, the Client must provide an insertion order (‘Insertion Order’ or ‘IO’) that is signed or approved by the to the Client to the Supplier.
1.2. If the Supplier notifies the Client of acceptance of the Client’s Insertion Order, an agreement will be formed (‘Agreement’) between the Client and the Supplier, comprising:
1.2.1. the Insertion Order that was signed or approved by the Client;
1.2.2. any Schedules or Annexures that are attached to the Insertion Order; and
1.2.3. these Terms.
1.3. In the event of any inconsistency, the document higher in the list in clause 1.2 above will prevail over the document lower in the list in clause 1.2.
1.4. This Agreement constitutes the entire agreement between the parties and replaces any previous discussions, communications or other documents concerning the supply of the Services.
2. Definitions
2.1. In this Agreement, the following definitions apply:
2.1.1. Advertisement’ means the Advertiser’s advertisement intended to be displayed on the Property or any information displayed on the Property which refers a User to the Advertiser in accordance with the Terms.
2.1.2. ‘Advertiser’ (also referred to as ‘the Client’) is the entity described as such in the IO, if applicable.
2.1.3. ‘Agency’ (also referred to as ‘the Client’) is the entity described as such in the IO, if applicable.
2.1.4. ‘API Materials’ means any documentation, access requirements or credentials relating to the Client’s API that the Supplier may require from the Client in order to access and use the Client’s API (if applicable). This includes but is not limited to:
(a) API documentation;
(b) API sandbox access;
(c) staging integration access;
(d) IP whitelisting;
(e) product mapping; and
(f) production environment access.
2.1.5 ‘Attribution Window’ means 90 days from the date a User is referred to the Client by the Supplier.
2.1.6. Budget Cap’ means the maximum Fees payable by the client to the Supplier pursuant to this Agreement, unless otherwise agreed by the parties in accordance with clause 15.2.
2.1.7. ‘Business Day’ means a day on which banks are open for business in Brisbane, Queensland, excluding Saturdays, Sundays and gazetted public holidays.
2.1.8. ‘Business Hours’ mean the hours between 9.00am and 5.00pm Brisbane time on any Business Day.
2.1.9. ‘Canstar Group’ means Canstar Pty Limited (‘Canstar’) (ACN 053 646 165), and its related bodies corporate as defined in section 50 of the Corporations Act 2001.
2.1.10. ‘Change of Control’ means either (i) a change of 50% or more in the ownership of an entity; or (ii) a change in the composition of the board of directors (if the entity is a company).
2.1.11. ‘Confidential Information’ means all confidential, non-public or proprietary business or technical information of a party, its related bodies corporate or its customers, provided to or learnt by the other party because of this Agreement, whether written, oral or in electronic form and whether provided to or learnt before, on or after the date of this Agreement.
2.1.12. ‘Consequential Loss’ means indirect, consequential, special, incidental and punitive loss or damage, and including without limitation, loss or revenue, loss of profit, loss of reputation, wasted expenditure, lost opportunities (including opportunities to enter into arrangements with third parties or customers) and loss or damage arising out of or relating to claims by third parties.
2.1.13. ‘Continuing Term’ is defined in clause 3.3.
2.1.14. ‘Counter Activity Tag’ means a tracking tag implemented by the Client which is assigned to a specific action or event that a User takes on the Client’s website.
2.1.15 ‘Click-to-Call’ means a telephone number displayed as a link that may form part of an Advertisement that, when clicked or the telephone number called by a User, will automate a telephone call to the number that the Client has provided for the Advertiser’s customer service centre.
2.1.16. ‘CLI’ or ‘Calling Line Identification’ means the method by which inbound calls made can be identified by their number of origin or the name of the person or organisation associated with the number.
2.1.17. ‘Client’s API’ means the application programming interface/s owned by the Client and provided to the Supplier.
2.1.18. ‘Cost Model’ means any of the following as set out in the IO or as otherwise described in the IO:
(a) ‘CPA’ or ‘Cost Per Acquisition’ means the cost that is payable each time a unique User completes the required fields of the Advertiser’s product application and submits that application to acquire or establish a new product.
(b) ‘CPAA’ or ‘Cost per Approved Application’ means the cost that is payable each time:
i) a unique User applies for a product or service; and
ii) that User’s application for such product or service is accepted by the client, the Advertiser or the issuer of the product or service, as the case may be.
(c) ‘CPC’ or ‘Cost Per Click’ means the cost that is payable each time a User clicks on the Advertisement to be taken to the Client’s Landing Page.
(d) ‘CPL’ or ‘Cost Per Lead’ means the cost that is payable each time a unique User submits to the Client or the Advertiser the personal details fields including their name and contact details on either the Client’s Widget Advertisement or a Supplier generated lead form, in relation to the product or service the subject of the Advertisement. A Lead will be invalid where: I) the name or contact details are obviously a fabrication of the true identity of the customer e.g. Mickey Mouse, Phone 5555 0000; or II) both of the following apply: the telephone number is disconnected and the email address is undeliverable.
(e) ‘CPM’ or ‘Cost per thousand’ means the cost that is payable for every thousand impressions of the Client’s Advertisement.
(f) ‘CPQ’ or ‘Cost per Quote’ means the cost that is payable each time a User completes the required fields either on the Client’s Widget Advertisement or on the Client’s site via a link from the Advertisement to complete a quote
(g) ‘CPCTC’ or ‘Cost per Click-to-Call’ means the cost that is payable each time a User clicks or calls the telephone number displayed on the Advertisement which triggers the Click-to-Call service.
(f)‘Fixed’ or ‘Sponsorship Cost’ model has the fixed cost and Share of Voice as specified in the IO, which is not dependent upon User activity.
(i)‘Revenue Share’ means the percentage payable to the Supplier (specified in the IO) of the total revenue (minus Stamp Duty and GST) earned by the Client when an Eligible Sale occurs .
2.1.19. ‘Eligible Sale’ means when a User applies for a product or service within the Attribution Window, that User’s application for such product or service is accepted by the Client and the application is not cancelled within the cooling off period identified within the IO (if applicable).
2.1.20. ‘End Date’ has the meaning given to it in the IO.
2.1.21. ‘Fees’ means the fees payable by the Client, calculated in accordance with the relevant Cost Model, which do not include any interest payable under clause 4 or GST.
2.1.22. ‘Feature Product Listing’ or ‘FPL’ means an Advertisement that may be displayed anywhere on the Property (if identified in an IO).
2.1.23. ‘Force Majeure Event’ means an event which occurs due to any contingency beyond a party’s reasonable control, unless the event arose as a result of the party’s failure to comply with its obligations under this Agreement.
2.1.24. ‘GST’ means the goods and services tax imposed under the GST Law.
2.1.25.‘GST Law’ means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and related Acts of the Commonwealth of Australia.
2.1.26.‘Intellectual Property Rights’ includes all present and future rights in relation to copyright, trade marks, designs, patents, trade names, business names and domain names, whether created before or after the date of this Agreement and whether existing in Australia or elsewhere.
2.1.27. ‘Initial Term’ means the period that starts on the Start Date and ends on the End Date.
2.1.28. ‘Landing Page’ means a single web page of the Advertiser that appears in response to a User clicking on an Advertisement.
2.1.29. ‘Price’ means up-to-date prices charged to consumers for any products or services issued or provided by the Client, which may be contained in an Advertisement.
2.1.30. ‘Property’ means (a) the websites and Apps owned by or operated by or on behalf of the Supplier, or (b) the websites of distribution partners of the Supplier, on which the Supplier or a member of the Canstar Group is authorised to place advertising.
2.1.31.‘Retail Product Distribution Conduct’ has the meaning prescribed in the Corporations Act 2001 (Cth).
2.1.32.‘Sales Activity Tag’ means a tracking tag implemented on the Client’s website which tracks Eligible Sales.
2.1.33. ‘Services’ means the services provided by the Supplier pursuant to this Agreement including the display of the Advertisements on the Properties and and the sourcing of Leads, as set out in the IO.
2.1.34. ‘Share of Voice’ means the percentage of time made available to the Advertiser for the Advertisement relative to other advertisers in the same ad position on the Property.
2.1.35. ‘Sponsored Product Listing’ or ‘SPL’ means an Advertisement that may be displayed anywhere on the Property (if identified in an IO).
2.1.36. ‘Start Date’ has the meaning given to it in the IO.
2.1.37. ‘Supplier’s API’ means the application programming interface/s developed and provided by the Supplier to the Client for use in accordance with the terms of this Agreement.
2.1.38. ‘Supplier Proprietary Information’ means the proprietary information of the Supplier and includes any ratings or awards associated with products, services or Clients that the Supplier or its Related Body Corporates may provide from time to time.
2.1.39. ‘Supplier Trade Mark’ means the registered and unregistered trade marks owned by any member of the Canstar Group, and includes the Canstar name, the Canstar logos, the Canstar Blue name, the Canstar Blue logos, the RateCity name and the RateCity logos.
2.1.40. ‘Term’ is defined in clause 3.1.
2.1.41. ‘User’ means a user of a Property who may interact with Advertisements.
2.1.42. ‘Widget’ means an interactive display or banner that enables a User to insert information, and obtain a dynamic response from the Client.
2.2. In this Agreement unless the context otherwise requires:
2.2.1. the singular includes the plural and vice versa;
2.2.2. a reference to ‘a party’ means a reference to a party to this Agreement;
2.2.3. a reference to any of the parties by their defined terms includes that party’s executors, administrators or permitted assigns or, if a company, its successors or permitted assigns; and
2.2.4. clause headings are for reference purposes only.
3. Term and Services
3.1. The term of this Agreement comprises the Initial Term and any Continuing Term (‘Term’).
3.2. The Initial Term of this Agreement starts on the Start Date and ends on the End Date.
3.3. Unless either party provides the other party with written notice to the contrary at least 10 Business Days prior to the end of the Initial Term, when the Initial Term ends, this Agreement will automatically renew on a month-to-month basis (‘Continuing Term’).
3.4. During the Term, the Supplier may amend any term of the Agreement including any Fees at any time by providing the Client with written notice of the amendment. The amendment will take effect on the date specified in the amendment, which will be at least 20 Business Days after the date the Client receives the written notice. If the Client does not agree to the amendment, then the Client may notify the Supplier within 20 Business Days after the date the Client receives the written notice, and the Agreement will then terminate on the date the amendment was specified to take effect.
3.5. During the Continuing Term, either party may terminate this Agreement by giving 20 Business Days written notice to the other.
4. Payment
4.1. The Client must pay the Fees to the Supplier.
4.2. The Fees will be billed to the Client at the rates set out in the IO plus GST.
4.3. If the Supplier is RateCity, the Supplier’s digital billing agency, Data Distribution & Marketing Pty Limited (ACN 150 515 941) (‘DDM’), is authorised to render invoices and collect payment as agent for RateCity. If the Supplier is Canstar Blue, then Canstar Blue will render invoices on its own behalf and is also authorised to render invoices and collect payment as agent for RateCity
4.4. The Client must pay the Fees via EFT (unless otherwise notified by the Supplier) within fourteen (14) days after the date of the Supplier’s invoice. The Supplier currently invoices monthly but may, acting reasonably, alter the frequency of invoices or render an interim invoice following written notice to the Client.
4.5. The Client agrees to pay to the Supplier the Minimum Spend if set out in the IO, if applicable, regardless of actual performance under the relevant Cost Model.
4.6. If the Client does not pay the Fees by the due date, the Supplier may do any or all of the following:
4.6.1. terminate the Agreement upon written notice to the Client;
4.6.2. suspend provision of Services;
4.6.3. remove any Advertisement;
4.6.4. charge interest on the overdue amount at a rate equal to 2% above the NAB published rate for overdrafts of $100,000 and over at the relevant time, calculated on a monthly basis; and
4.6.5. recover from the Client any costs the Supplier incurs in obtaining payment of its Fees.
4.7. All payments made by the Client are non-refundable.
4.8. The Client have no right of set-off.
4.9. The Client agrees to pay all taxes, duties and other government charges payable in connection with the Agreement, including without limitation goods and services tax (see clause 5), other value added tax, sales tax and stamp duty, but excluding income tax assessed on the Supplier’s income.
5. GST
5.1. Any consideration to be paid or provided for a supply made under or in connection with this Agreement, unless specifically described in this Agreement as ‘GST inclusive’, does not include an amount on account of GST.
5.2. Despite any other provision in this Agreement, if a party (‘Good/Service Supplier’) makes a supply under or in connection with this Agreement on which GST is imposed (not being a supply the consideration for which is specifically described in this Agreement as ‘GST inclusive’):
5.2.1. the consideration payable or to be provided for that supply under this Agreement but for the application of this clause (‘GST exclusive consideration’) is increased by, and the recipient of the supply (‘Recipient’) must also pay to the Good/Service Supplier, an amount equal to the GST payable by the Good/Service Supplier on that supply; and
5.2.2. the amount by which the GST exclusive consideration is increased shall be paid to the Good/Service Supplier by the Recipient without set-off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.
5.3. If GST is levied or imposed on or in respect of any supply made under or in connection with this Agreement for which the consideration is a non-monetary payment, the Good/Service Supplier and the Recipient agree that they will each exchange tax invoices of equal amount for the consideration in relation to any such supply.
6. Advertisement
6.1. The Client must provide the Advertisement to the Supplier in accordance with the method agreed with the Supplier:
6.1.1. Pre-Delivery: Unless clause 6.1.2 applies, the Client must provide the Advertisement to the Supplier or any person nominated by the Supplier at least two (2) Business Days before the Start Date, and in accordance with this Agreement and any reasonable requirement that the Supplier notifies to the Client from time to time.
6.1.2. Real-Time Delivery via Client’s API: If the Supplier notifies the Client that the information contained in the Advertisement may be provided to the Supplier via the Client’s API, clause 6.1.1 does not apply. The Client must ensure that the Client’s API delivers complete and accurate information for the Advertisement in accordance with clause 7.
The Supplier is under no obligation to display the Advertisement until the Client complies with this clause 6.1.
6.2. The Client’s Advertisement must comply with any description and specifications contained in the Agreement and the Client must provide all associated materials to the Supplier (including any combination of text, links and images, whether in static or Widget format).
6.3. If the Client wishes to make a change to an Advertisement which is a display advertisement, the Client must obtain the Supplier’s prior written consent and a fee may be payable for the change.
6.4. If the Advertisement is a Widget, the Widget must contain a hyperlink to the Supplier’s and the Advertiser’s agreed terms of use, hosted on the Supplier’s website (e.g. for Canstar: http://www.canstar.com.au/terms-of-use/), and as updated and notified by the Supplier to the Client from time to time.
6.5. In the event that the Supplier reasonably believes that any advertising campaign is underperforming, the Supplier may in its absolute discretion, change the placement of the Advertisement from that specified in the IO provided that it is displayed within a substantially equivalent-sized advertising unit and on a reasonably equivalent Property (including any Canstar Group Property) to that specified in the IO.
6.6. The Client is responsible for the content of the Advertisement. The Supplier has no obligation to check the Advertisement. In the event that the Client notifies the Supplier in writing of any errors in the Advertisement, the Supplier will correct the error in a reasonable timeframe.
6.7. In the event that the Client requests that the Advertisement be temporarily removed or subsequently reinstated, the Supplier will do so as soon as reasonably practicable after receiving written notice from the Client. No Fee reduction will apply during this period, unless the temporary removal was requested due to an error on the part of the Supplier.
6.8. If the Client is using Click-to-Call services, the Client agrees that:
6.8.1. the Supplier procures the hosting of the Click-to-Call service from a third party (‘Click-to-Call Supplier’);
6.8.2. the Click-to-Call service is supplied through, and relies on, third party carriers and/or networks;
6.8.3. neither the Click-to-Call Supplier nor the Supplier will be held liable for any failure to provide the Click-to-Call service if the Click-to-Call service is interrupted for any reason by the carrier or network;
6.8.4. the Client must supply the Supplier with a telephone number that the Supplier will use to direct customers to you using the Click-to-Call service (‘Phone Number’);
6.8.5. during the business hours nominated by the Client in the Insertion Order the Phone Number must be answered by the interactive voice response (‘IVR’) technology that the Client has provided to the Supplier on or before entering into this agreement;
6.8.6.the Client must provide notice in writing to the Supplier of any changes proposed to be made to the Client’s IVR on or after the date of this Agreement, and such notice must be given not less than 5 Business Days before making such change and the Supplier may, in its absolute discretion, determine whether to continue with, or terminate this agreement as a result of a change to the Client’s IVR;
6.8.7. the Client must maintain the Phone Number at all times and notify the Supplier in writing of any fault with the Phone Number as soon as the Client becomes aware of the issue and, if required provide the Supplier with a replacement number within 24 hours of notification;
6.8.8. the Client will be responsible for the recording of calls that the Client requires to be recorded for training or other purposes;
6.8.9. the Supplier does not record all or any part of any call transferred to the Client Phone Number via the Click to Call service;
6.8.10. the Client will train your personnel to follow the Supplier’s Click to Call FAQ or any other document the Supplier provides to you, acting reasonably, for any call that comes through the Click-to-Call service (‘Training Documents’); and
6.8.11. the Training Documents must not be amended without the Supplier’s consent. Such consent cannot be unreasonably withheld.
7. Reporting and Tracking
API Access, Use and Materials
7.1. This clause 7 (7.1 – 7.32 inclusive) will apply if the Client provides the Supplier with Prices and/or any other information relating to a product or service issued or distributed by the Client via the Client’s API.
7.2. The Client acknowledges that the Supplier owns all rights, title and interest in and to the Supplier’s API. If the Supplier allows the Client to use the Supplier’s API in doing so it grants to the Client a non-transferable, non-sublicensable and non-exclusive licence to access and use the Supplier’s API.
7.3. The Supplier acknowledges that the Client owns all rights, title and interest in and to the Client’s API. The Client grants to the Supplier a non-transferable, non-sub licensable and non-exclusive licence to access and use:
7.3.1. the Client’s API; and
7.3.2. any API Materials provided to the Supplier in connection with the Client’s API in accordance with the terms of this Agreement.
7.4. The Client acknowledges that any documents, specifications or other materials provided by the Supplier to the Client to assist the Client in developing the Client’s API are the Supplier’s intellectual property. The Supplier retains all Intellectual Property Rights in any such materials. The Client agrees that any such materials are Confidential Information and the Client must not disclose or use these materials for any purpose other than developing the Client’s API for the Supplier’s benefit. The Client must not modify, adapt, or create derivative works of the Supplier’s materials.
7.5. The Client must provide the Supplier with all API Materials, and support to enable the Supplier to access and use the Client’s API.
7.6. The Client will use reasonable endeavours to provide prompt technical support to the Supplier as required by the Supplier in relation to its use of the Client’s API.
7.7. Each party agrees not to:
7.7.1. modify, reverse engineer, decompile or disassemble the other party’s API;
7.7.2. provide, rent, lease, licence, transfer or grant any rights in the other party’s API, in full or in part, to or for the benefit of any third party, other than in accordance with this Agreement;
7.7.3. remove, alter or obscure any identification, copyright, trademark or other proprietary notices, labels or marks on or in the other party’s API or the API Materials.
7.8. The Supplier may choose to display the Client’s product information (including Prices) obtained via the Client’s API (‘Product Information’) on the Property at its discretion. The Supplier cannot change, alter, amend or vary the Product Information obtained via the Client API before displaying the Product Information on the Property.
7.9. The Supplier will notify the Client which information or data points are required by the Supplier in order to be able to display the Client’s Product Information on the Property. If the Client’s API does not provide the requisite Product Information, the Supplier may not display the Client’s product on the Property.
7.10. If the Supplier amends the information or data points required via the Client’s API, the Supplier must provide reasonable notice to the Client and the Client must make the additional information or data points available via the Client’s API as soon as reasonably practicable.
7.11. Product Information may be displayed by the Supplier in conjunction with information from the Supplier’s database or other Supplier Proprietary Information, to be determined at the Supplier’s discretion.
7.12. The Supplier may choose to display products with Prices on its Property alongside products that do not include Prices.
API Performance Requirements
7.13. Service Levels: The Client’s API must meet the following minimum service level requirements:
| Service level | Service level requirement |
| Availability. Availability refers to the percentage of time that the Client’s API is operational and accessible. | 99.99% uptime per day. |
| Response time. The response time is measured from the time the request arrives at the Supplier’s API endpoint until the response has been fully processed and returned to the Supplier. | 10 seconds or less, unless otherwise advised by the Supplier in writing. |
Error rates. Error rates refers to the percentage of requests that result in errors or failures. The service level requirement does not apply to errors or failures that the Supplier identifies as having occurred as a result of:
|
99.99% error free. |
| Call limits. The call limit is the limit on the amount of times the Supplier can access the Client’s API in a 24 hour period. | Unlimited. |
| Response structure. The Client must ensure that the Client’s API uses consistent response structures for both success and error scenarios. | Consistent format for error and success responses.
Use appropriate HTTP status codes: 2xx for successful requests 3xx for redirection (if applicable) 4xx for client errors 5xx for server errors |
7.14. API Performance Monitoring: The Client must provide the Supplier with the necessary tools or data to monitor the Client’s API’s performance and ensure compliance with the service level requirements.
7.15. The Client must provide the Supplier with postback reporting on the Client’s API enabling the Supplier to receive continuous reports on API usage, including but not limited to the number of API calls, response times, and error rates.
API Changes and Notifications
7.16. The Supplier acknowledges that the Client may modify its API. The Client must notify the Supplier of any planned or unplanned changes to the Client’s API, including but not limited to changes in functionality, structure, documentation or availability.
7.17. The Client agrees to provide notice to the Supplier of any planned change at least 20 Business Days prior to making the change to the Client’s API, and to provide notice as soon as reasonably practicable in the event of an unplanned change.
API Data Quality and Accuracy
7.18. The Client will ensure that the Product Information returned by the API will at all times be accurate, complete and up-to-date. 7.19. The Client will ensure that any Prices or other information (as applicable) provided by the Client’s API are valid for at least 30 days from the date of the API request.
7.20. The Product Information returned via the Client’s API must be consistent with and map to the User requirements provided by the Supplier to the Client.
API and Data Security
7.21. The Client will use reasonable endeavours to ensure that the Client’s API will be free from known security vulnerabilities (or security vulnerabilities that reasonably ought to be known), will be maintained in a secure state throughout the term of this Agreement, and will not interfere with the operation of the Supplier’s website.
7.22. The Client indemnifies the Supplier, each member of the Canstar Group, and their officers, employees and agents against any and all claims, losses, damages and expenditure, however caused (including by way of negligence) suffered by or against the Supplier or any member of the Canstar Group arising out of any security issue directly caused by the Client’s API.
7.23. The Client’s API must be encrypted in-flight with Transport Layer Security (TLS) (HTTPS).
7.24. The Client must provide any information that the Supplier reasonably requests in relation to how the Client manages and stores any data provided to it by the Supplier.
7.25. The Client must use reasonable endeavours to provide any details requested by the Supplier in relation to the Client’s API, including in relation to how the Client secures its API.
Non-compliance with this clause
7.26. If the Client does not comply with this clause, the Supplier may cease using the Client’s API to display Product Information, and may immediately terminate the Agreement. Any Product Information or other information that the Supplier displays on the Property is displayed at its full discretion.
Conversion Reporting if Product Information provided via API
7.27. The Client must implement a minimum of two tracking tags on the Client’s website to enable the Supplier to track conversions. This includes:
7.27.1. A Counter Activity Tag placed on the Client’s landing page to count successful visits from the Supplier’s website to the Client’s website.
7.27.2. A Sales Activity Tag fired on completion of a successful sale.(together, the ‘Tags’).
7.28. Upon the Supplier’s reasonable request, the Client must cooperate with the Supplier to provide any information required by the Supplier in order to validate the operation of the Tags.
7.29. The Client must provide the Supplier with the conversion reporting which includes:
7.29.1. a timestamp of the Eligible Sale, including the date of sale, travel start and return date;
7.29.2. unique identifier (where applicable) used in the url handoff from the Supplier;
7.29.3. parameters of the purchased policy or product (including any specific parameters specified in the IO);
7.29.4. the Supplier Fee relating to that User;
7.29.5. device information (i.e. browser User Agent or similar); and
7.29.6. the Supplier source (which may be: Canstar website, Canstar app, Canstar Blue website, and/or RateCity website)(together ‘Conversion Reporting’).
7.30.Conversion Reporting in relation to the conversion status of a User identified by a unique identifier must be made available by the Client to the Supplier (in a format which is acceptable to the Supplier and is agreed in writing by the parties) by either:
7.30.1. an API endpoint provided by the Client in real time; or
7.30.2. real time postback to a http endpoint provided by the Supplier; or
7.30.3. in a CSV file to a nominated Supplier email address/es at a minimum monthly frequency; and
7.30.4. a data feed provided by the Client via secure file transfer protocol (SFTP) on a daily basis.
7.31. If unique identifiers are passed between the Supplier and the Client via the Client’s API and a handoff url, the Client’s Conversion Reporting must use the same unique identifier.
7.32. If Conversion Reporting is made available by the Client via postback, the Conversion Reporting must be provided to the Supplier in a standardised JSON or XML format.
8. Reporting and Tracking
8.1. The Client must provide the Supplier with monthly reporting (‘Monthly Reporting Requirement’), within 10 Business Days of the end of each month, which calculates the Fees based on the Cost Model.
8.2. The Monthly Reporting Requirement must be completed by the Client and provided in the format specified by the Supplier.
8.3. The Supplier may conduct an audit of the Client’s records relating to the Monthly Reporting Requirement to verify the calculation of Fees, Leads and any other matter arising under or relating to this Agreement. The Supplier must give at least 10 Business Days’ notice of a request to conduct any audit, and the Client must comply with this request. The Supplier may engage a third party to assist the Supplier to conduct the audit. The Client must cooperate with the Supplier and any third party in respect to the conduct of the audit. The Client only needs to supply the data relating to the calculation of the Monthly Reporting Requirement. If the audit reveals any underpayment, the Client must pay the Supplier the amount of the underpayment, interest (calculated in accordance with this Agreement), and the cost of the audit. This audit right will continue for a period of twelve months following expiry or termination of this Agreement.
8.4. If required by the Supplier, the Client must:
8.4.1. insert tracking tags on the Client’s website or designated URLs, as applicable in order to accurately calculate the Fees (if applicable to the Cost Model); a
8.4.2. ensure that the Client’s privacy policy and relevant site terms and conditions authorise the use of those tags using the following or substantially similar words: “We may use third-parties to serve ads on our website. These companies may employ cookies and action tags (also known as single pixel gifs or web beacons) to measure advertising effectiveness. Any information that these third parties collect via cookies and action tags is recorded on an anonymous basis.” and
8.4.3. include in the Client’s privacy policy a link to the following URL, containing opt-out information: http://www.networkadvertising.org/choices/.
8.5. The Client agrees that the Supplier may insert its own pixel tracker or similar into the Client’s Advertisement in order to monitor the Monthly Reporting Requirement.
8.6. Notwithstanding anything contained in this clause, for the Click-to-Call service, monthly reporting will be provided by the Supplier to the Client (‘Monthly Reporting Requirement’) which calculates the Fees based on the Cost Model. The Monthly Reporting Requirement will be provided in a format determined by the Supplier.
8.7. Clause 8.3 will not apply to the Click-to-Call service.
8.8. In the event of any discrepancy between the CPC data captured as part of the Monthly Reporting Requirement and the Supplier’s CPC data, the Supplier’s CPC data will prevail. The parties will cooperate to reconcile any differences in the reporting data.
9. Client Obligations
9.1. The Client must not provide an Advertisement which:
9.1.1. is contrary to law, contrary to common community standards or is not in good taste;
9.1.2. displays any Supplier Trade Mark or any other Canstar, Canstar Blue or RateCity representation, unless the Client is authorised under a Canstar Group trademark licence agreement permitting the Client to use the Supplier Trade Mark in the Advertisement or unless clause 12.3 applies;;
9.1.3. defames any person;
9.1.4. contains any negligent misstatement, is misleading or deceptive, or is likely to mislead or deceive;
9.1.5. infringes the Intellectual Property Rights of any person;
9.1.6. is contrary to any Australian advertising code, including the advertising codes administered by Ad Standards;
9.1.7. is rated (or in the opinion of the Supplier or the relevant website owner would be rated) RC, X or R, or is unclassified, by the Classification Board under the Classification (Publications, Films and Computer Games) Act 1995;
9.1.8. in the Supplier’s reasonable opinion, breaches or is likely to breach any law, regulation or ASIC regulatory guide; or
9.1.9. links to or frames a website that includes material specified in clauses 9.1.1 to 9.1.8 inclusive.
9.2. The Supplier may without prior consultation or notice to the Client, remove any Advertisement if the Supplier reasonably believes the publication of the Advertisement would be in breach of clause 9.1. If the Supplier removes the Advertisement under this clause, the Client will be liable for the full amount of the Supplier’s Fees payable under this Agreement.
9.3. The Client represents and warrant to the Supplier that:
9.3.1. The Client is authorised to make each Advertisement, its content and subject matter available on the Property.
9.3.2. If required by law to do so, the Client holds an Australian Financial Services Licence and/or an Australian Credit License (as applicable) or that the Client holds an authorisation under one of those, and that the Client operates the Client’s business and deals with Users in accordance with the conditions of such licence or authorisation.
9.3.3. All Advertisements the Client lodges for publication with the Supplier comply with applicable laws and regulations including the Privacy Act 1988 (Cth) (‘Privacy Act’), any relevant guidelines issued by the Australian Securities Investment Commission, Australian Communication and Media Authority, and Communications Alliance Limited, whether voluntary or not, and publication of the Advertisement will not give rise to any claims or liabilities against the Supplier or any member of the Canstar Group, including their officers, employees or agents.
9.3.4. Unless expressly required or permitted by this Agreement, neither the Client (nor any research vendor that the Client engages to conduct any research or study) will insert any tag, code, cookie, pixel or other data tracking or collection device into the Advertisement without the Supplier’s express written permission.
9.3.5. The Client must not use or copy any information or reports that the Supplier may supply to the Client, other than with the Supplier’s express written permission or for the purpose of evaluating the performance of the Services. The Client must not provide such information or reports to any third party, other than with the Supplier’s express written permission.
9.3.6. The Client has obtained any and all authorisations, approvals, memberships applicable to the Client as required by law.
9.4. If the Supplier is using the Client’s API to display Product Information on the Property, the Client represents and warrants to the Supplier that:
9.4.1. the Client’s API will return Product Information that is at all times accurate, complete and current subject to the validity period outlined in clause 7.19.
9.4.2. the Client’s API will adhere to the service levels outlined in clause 7.13.
9.4.3. the API will not interfere with the operation of the Supplier’s website.
9.4.4. the API will be encrypted in accordance with the standard set out in clause 7.23.
10. Our Obligations
10.1. During the term of this Agreement, the Supplier will use reasonable commercial endeavours to perform the Services in accordance with the Agreement.
10.2. The Supplier may publish other advertisements, including advertisements of the Client’s competitors. The Supplier may rotate advertisements and select which advertisements to display at any given time. The Client’s advertisement may not be displayed at all times during the Term, and may be displayed in a more or less prominent position than other advertisements.
10.3. Canstar Pty Limited and RateCity Pty Limited may engage in Retail Product Distribution Conduct in relation to the Advertiser’s financial products and will distribute the Advertiser’s financial products in accordance with applicable laws. Canstar and/or RateCity conduct all of their distribution activities under their own respective Australian Financial Services Licence/Australian Credit Licence and are not authorised by the Client under its licence. By entering into this Agreement the Client authorises Canstar (through its agent DDM) and/or RateCity (as applicable) to distribute the Client’s products, and will upon request ensure that the Supplier has access to current Target Market Determination for each of the Client’s products.
11. Exclusion of Warranties
11.1. The Supplier makes no representation or warranty to the Client, whether an Advertiser or Agent, or to any other person, unless implied by law or expressly set out in this Agreement.
11.2. The Supplier makes no representation or warranty to to the Client, whether an Advertiser or Agent, or to any other person, in relation to the number of visitors to the Property or the number of impressions at the Client’s website or other designated URL unless expressly set out in writing in the IO.
11.3. Unless expressly specified in the IO, the Supplier does not guarantee any minimum number of deliveries or loading of an Advertisement on a webpage, or use of the Client’s Widget, or such other delivery metric.
12. Intellectual Property
12.1. The Client retains all copyright and intellectual property in the Client information in the Advertisement. The Client grants the Supplier a licence to display the Advertisement, transmit the Advertisement to the public, copy the Advertisement and otherwise use the Advertisement as required by this Agreement.
12.2. The Client represents that the Client has authority to grant the licence set out above
12.3. The Client has no right to use, and the Client agrees not to use, any Supplier Trade Mark on its website or in any advertising or promotions, unless the Client is authorised under a Canstar Group trademark licence agreement permitting the Client to use the Supplier Trade Mark in the Advertisement or the Supplier has given the Client written permission to do so. Any permission is subject to the following conditions, with which the Client agrees to comply:
12.3.1.The Client may only use the Supplier Trade Mark that is approved for use in the form as supplied by the Supplier to the Client for the particular purpose as approved in writing by the Supplier.
12.3.2.The Client must not claim or imply that the Client is a Canstar, Canstar Blue or RateCity award winner, or that the Supplier endorses, recommends or approves the Client or the Client’s products.
12.3.3. The Supplier Trade Mark must have a working back-link to the relevant Supplier website
12.3.4.The Client may only use the Supplier Trade Mark for the lesser of the Term or the period of the written approval. After this period ends, the Client must remove the Supplier Trade Mark from the Client’s website or advertising, unless permitted to use it by another written agreement with Supplier.
12.3.5. The webpage or advertising copy where the Supplier Trade Mark is used must be submitted to and approved in writing by the Supplier before use.
12.3.6.The Client must not claim to be the Supplier’s “partner” or use the terms “partner” or “partnership” on the webpage or advertising when referring to the Supplier.
12.3.7.The Client may only use a tagline in association with the Supplier Trade Mark that has been approved by the Supplier.
12.3.8. The Client’s use of the Supplier Trade Mark must not be misleading.
12.3.9. The Supplier Trade Mark must be no smaller or larger than any trademarks of competitors of the Supplier that the Client uses.
12.3.10. In addition to the above, the Client must comply with all brand guidelines and any directions as to use of the Supplier Trade Mark as provided to the Client by the Supplier from time to time.
12.3.11. All goodwill in the Supplier Trade Mark and its use ensures to the Supplier.
13. Limitation of Liability
13.1. Without limiting any of the provisions of this Agreement or any other rights of the Supplier, the Client indemnifies the Supplier, each member of the Canstar Group, and their officers, employees and agents to a maximum extent of $850,000 against any and all claims, losses, damages and expenditure, however caused (including by way of negligence) suffered by or against the Supplier or any member of the Canstar Group arising out of, or related to:
13.1.1. the Client’s Advertisement, including any related infringement by the Client of the Supplier’s or a third party’s Intellectual Property Rights, defamation, misleading or deceptive conduct or false advertising claims;
13.1.2. any third party claims arising from or directly related to the Client’s Advertisement; and
13.1.3. failure by the Client to comply with any applicable law.
13.2. To the full extent allowable, the Supplier:
13.2.1. excludes all conditions and warranties implied into the Agreement;
13.2.2. limits its liability for breach of any condition or warranty that the Supplier cannot exclude, to the greater of (at the Supplier’s election): (i) re-supplying the services; or (ii) paying the cost of having the service re-supplied; and
13.2.3. limits its liability in respect of any other claim in connection with this Agreement (whether based in Agreement, tort (including negligence) or statute) to the amount of fees paid by the Client under the Agreement or $100,000, whichever is the greater.
13.3. Despite anything to the contrary, to the maximum extent permitted by law:
13.3.1. neither party will be liable for Consequential Loss; and
13.3.2. a party’s liability for any liability under this Agreement will be reduced proportionately to the extent the relevant liability was caused or contributed to by the acts or omissions of the other party (or any of its Personnel), including any failure by that other party to mitigate its loss.
3.4. The limitations in clauses 13.1 and 13.2.3 do not apply to:
3.4.1. death, personal injury or damage to physical property;
3.4.2. fraud or wilful misconduct.
13.5. If the Client notices an issue with the display (or lack of display) of the Client’s Advertisement, the Client must notify the Supplier as soon as possible. If the Client does not notify the Supplier of such an issue, the Supplier will not be liable to the Client for any losses, costs, expenses or damages suffered or incurred by the Client arising from the Supplier’s failure to publish an Advertisement in accordance with the Client’s request.
13.6. Transmission of data over the internet may be subject to corruption, error, interruption and delay. The Supplier will not be liable to the Client for or relating to:
13.6.1. any failure of the server hosting the Advertisement or the Property; or
13.6.2. any failure by the Supplier to supply Services under the Agreement due to any of the following:
(a) a Force Majeure Event;
(b) hacking, denial of service attacks, viruses or other defects, or unauthorised or illegal use of or interference with the internet-based services used to display the Advertisements;
(c) a failure or malfunction in relation to equipment, software or power supply at the Client’s premises or not owned by the Supplier;
(d) an action by the Client, the Client’s employees, contractors and agents;
(e) an action by a third party, including where the Advertisement is hosted by a third party;
(f) a failure or malfunction of the Client’s API;
(g)a failure or malfunction of an internet connection whether at the Client’s or the Supplier’s site;
(h) a failure or malfunction at a cloud service provider; or
(i) scheduled maintenance by the Supplier.
13.7. This clause survives termination or expiry of this Agreement.
14. Termination
14.1. The Supplier may terminate the Agreement under clause 4.6 and 7.23. The Supplier may also terminate this agreement immediately by giving the Client notice in writing, if any of the following occurs:
14.1.1. the Supplier is unable for any reason to place the Advertisements as required by the Agreement;
14.1.2. the Client does not pay the Fees when due in breach of this Agreement; the Client otherwise breaches the Agreement and fails to rectify the breach after the Supplier has given the Client forteen (14) Business Days’ notice requiring rectification;
14.1.3. the Client becomes or initiates proceedings towards doing any of the following; becoming insolvent, appointing a receiver or manager over its assets, entering into bankruptcy, administration, liquidation, receivership or composition with creditors;
14.1.4. the Client sues or threaten to sue any member of the Canstar Group;
14.1.5. The Client undergoes a Change of Control without the Supplier’s prior written consent.
14.2. The Client may terminate the Agreement if the any of the following occurs:
14.2.1. the Supplier breaches the Agreement in a material respect and fails to rectify the breach after the Client has given the Supplier forteen (14) Business Days’ notice requiring rectification;
14.2.2. the Supplier becomes or initiates proceedings towards doing any of the following; becoming insolvent, appointing a receiver or manager over its assets, entering into bankruptcy, administration, liquidation, receivership or composition with creditors;
14.2.3. the Supplier is unable for any reason to place the Advertisements as required by the Agreement and the Supplier has not terminated the Agreement itself under clause 14.1.1.
14.3. The Agreement may also be terminated during the Continuing Term as set out in clauses 3.4 and 3.5.
14.4. Termination of this Agreement for any reason does not relieve the parties of obligations and liabilities arising prior to the date of termination.
14.5. This clause sets out the sole grounds of termination of this Agreement.
15. General
15.1. Subject to clause 15.2, this Agreement can only be varied in writing signed by both parties.
15.2. Budget Caps may be varied by email agreement between the parties.
15.3. This Agreement is governed by the laws of Queensland, Australia. Each party submits to the jurisdiction of the courts of Queensland.
15.4. It is a condition of this Agreement that the Client agrees not to:
15.4.1. bid on any Supplier Trade Mark, or any brand name or and trade name of any member of the Canstar Group, including misspellings thereof, in Search Engine Marketing (‘SEM’) advertising or copy; or
15.4.2. use or register any Supplier Trade Mark, or any brand name or and trade name of any member of the Canstar Group, including misspellings thereof, in any display URL, domain name, subdomain, username, hashtag, trademark or business name.
15.5. The Client agrees to add ‘Canstar’, ‘Canstar Blue’ and ‘RateCity’ as negative phrase keywords in all PPC campaigns the Client runs during the Term unless agreed to in writing by the Supplier. For the avoidance of doubt, PPC campaigns and SEM advertising copy must include targeted search engine marketing campaigns, including but not limited to Google AdWords search campaigns and Bing Ads search campaigns.
15.6. The Client declares that it is not a “small business” for the purposes of section 23 of the Australian Consumer Law (contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth)). A “small business” is defined as one that employs fewer than 100 employees or has a turnover for the last income year of less than $10,000,000.
15.7. If any term of the Agreement becomes unenforceable at law, the validity and enforceability of the remainder will not be affected.
15.8. The Client is a contractor and will not represent itself as being an agent of the Supplier nor will the Client by virtue of this Agreement become an agent of the Supplier. The Supplier is not the Client’s partner, agent, employer, trustee or fiduciary.
15.9. The Client acknowledges that Canstar Pty Limited’s Financial Services and Credit Guide is available at https://www.canstar.com.au/licence-details/ and RateCity Pty Limited’s Financial Services and Credit Guide is available at https://www.ratecity.com.au/fscg.
15.10. The Client acknowledges that the Supplier has complete control over the content of the terms of use in relation to its Property (e.g. for the Canstar website: http://www.canstar.com.au/terms-of-use/) and may reference the use of the Client’s API within any terms of use.
16. Confidentiality
16.1. A party must not use the other party’s Confidential Information or disclose or publish the other party’s Confidential Information to another without prior written consent except:
16.1.1. to the extent necessary to perform or enforce this Agreement;
16.1.2. to obtain legal advice in relation to matters arising out of this Agreement;
16.1.3. as authorised or required by law, or the Australian Securities Investment Commission; or
16.1.4. to comply with the rules of any stock exchange on which either party may be listed.
16.2. Each party must return the other party’s Confidential Information upon request or termination of this Agreement, whichever is earlier.
16.3. Each party must ensure that its employees and contractors comply with those obligations of confidentiality as if they were a party to this Agreement.
16.4. This clause survives termination or expiry of this Agreement for a period of three years thereafter.
16.5. The IO is Confidential Information of the Supplier.
16.6. The following information is not Confidential Information:
16.6.1. Information which is in or becomes part of the public domain other than through breach of this Agreement or an obligation of confidence owed by one party to the other party; or
16.6.2. Which the party can prove by contemporaneous written documentation was already known to it at the time of the first disclosure by the other party; or
16.6.3. Which the party can prove by contemporaneous written documentation was independently developed without use of or access to the Confidential Information of the other party; or
16.6.4. Was learnt from a third party who was not under a duty of confidence regarding that information.
17. Dispute Resolution
17.1. Where either party considers a dispute has arisen in connection with this Agreement, the following process must be followed:
17.1.1. The party who considers that there is a dispute must first give written notice of the particulars of the dispute to the other party.
17.1.2. Within ten Business Days of receipt of such notification, a senior officer of each party with authority to settle the dispute (‘Authorised Officer’) must meet to negotiate to attempt to resolve the dispute.
17.1.3. If the Authorised Officers cannot resolve the dispute within ten Business Days of the meeting referred above, either party may refer the dispute to mediation by a mediator appointed by the President of Law Society of Qld, or the President’s nominee, on the terms of the Standard Mediation agreement approved by the Qld Law Society.
17.1.4. If the dispute is not resolved within three Business Days of the commencement of mediation, or within such other period as the parties may agree, either party may then, but not earlier, commence proceedings in any court of competent jurisdiction.
17.1.5. Nothing in this clause shall prevent a party from seeking urgent equitable relief before an appropriate court.
18. Notices
18.1. Notice will be deemed given:
18.1.1. in the case of hand delivery, upon written acknowledgement of receipt by an officer or other duly authorised employee, agent or representative of the receiving party;
18.1.2. in the case of posting, three Business Days after dispatch; or
18.1.3. immediately in the case of an email transmission, unless the sender receives an ‘undeliverable’ notice.
18.2. Provided that in all cases if a form of notice is received on a non-Business Day or outside Business Hours it will be taken to be received on the next Business Day.
18.3. Notices must not be given by fax, and if sent by fax, will have no effect.
18.4. Notices must be sent to the addresses set out in the IO, unless another address provided in writing.
19. Agency Terms
19.1. Without limiting any other provision of this Agreement, if the contracting party is an Agency, the Client represents and warrant to the Supplier the following:
19.1.1. you have written authorisation from the Advertiser to enter into this Agreement on the Advertiser’s behalf; and
19.1.2. if required by law to do so, the Advertiser holds an Australian Financial Services License and/or an Australian Credit License (together a ‘Licence’), and will comply with all conditions of such Licence and all applicable laws and regulations;
19.1.3. the content of the Advertisement has been provided by the Advertiser to the Agency for placement in accordance with this Agreement;
19.1.4. the Advertiser indemnifies the Supplier and its related bodies corporate, their officers, employees and agents against all claims, losses, damages and expenditure (including legal costs on an indemnity basis) arising out of:
(a) any breach by the Advertiser and/or its related bodies corporate of any
applicable law or regulation; and
(b) any administrative action, surveillance action or other action taken against the Supplier or one or more of its related bodies corporate, where such breach or action results from or is concerned with (in whole or part) the form or content of the Advertisement displayed on the Property in accordance with this Agreement; or information provided to Users generated on Canstar Group Products.
19.1.5. that by the Agency entering into this Agreement, the Advertiser also agrees to be bound by the terms of this Agreement including but not limited to paying the Fees to the Supplier if the Agency fails to make such payment.