Advertising Terms & Conditions
1. ADVERTISEMENTS: Foodbank New Zealand accept all Advertisements and notices from any person for publication on websites under Foodbank New Zealand’s control on the following terms and conditions ("Terms and Conditions”). These Terms and Conditions will apply to: (a) online banner and display advertising on Foodbank New Zealand websites (“Banner Advertising”); (b) online advertising on Foodbank New Zealand websites other than Banner Advertising (“Online Advertising”); and (c) all other advertising services provided to the Customer by Foodbank New Zealand in relation to Advertisements (“Other Advertising”), (together referred to as “Advertising”).
2. TERMS INCONSISTENT: The placing of an order for any Advertising by a Customer constitutes acceptance by the Customer of these Terms and Conditions and of all rates set out by Foodbank New Zealand in the relevant rate cards unless otherwise agreed in writing by Foodbank New Zealand. To the extent that any order submitted by the Customer attempts to include terms that are inconsistent with these Terms and Conditions, those terms will not apply.
3. CUSTOMER: The expression “Customer” means the advertiser and, where any Advertising has been placed with Foodbank New Zealand by an advertising agency (subject to clause 20), includes that agency.
4. ENTIRE AGREEMENT: Subject to clause 23, these Terms and Conditions (including booking confirmations and any credit terms referred to in clause 12 if applicable) set out the entire agreement between the parties in relation to any Advertising and supersedes all prior arrangements, undertakings, representations and warranties by or between the parties in relation to such Advertising.
5. SUBMISSION OF ADVERTISING: If submitting any Advertisements, the Customer must comply with the submission requirements and deadlines set out on the relevant Foodbank New Zealand website, or otherwise notified to the Customer by Foodbank New Zealand. Foodbank New Zealand will not be obliged to accept any Advertisement for publication which has not been submitted in this manner.
6. PUBLICATION: (a) Subject to these Terms and Conditions, Foodbank New Zealand will use its reasonable endeavours to publish Advertisements submitted by Customers in the format submitted by the Customer and in accordance with the placement instructions of the Customer. (b) Without limiting the above, if Foodbank New Zealand, in its sole discretion, believes that the placement instructions of the Customer for an Advertisement are inappropriate for any reason, Foodbank New Zealand may offer the Customer alternate placements. If the Customer does not accept the alternate placements, clause 9(c) will apply. Unless otherwise stated all Advertisements will be valid for a period of 12 months from date of first publication.
7. CANCELLATION: The cancellation by the Customer of any Online Advertising for which a booking has been completed in accordance with clause 5, must be in writing. Upon cancellation, the Customer agrees to pay Foodbank New Zealand the following cancellation fees: (a) if cancellation occurs 24 hours or less before the Advertisement goes live, a sum equivalent to 50% of the total booking cost; (b) if cancellation occurs at any time after the Advertisement goes live, a sum equivalent to 100% of the total booking cost.
8. CUSTOMER UNDERTAKINGS: The Customer undertakes and warrants to Foodbank New Zealand that no Advertisement will: (a) or will be likely to be misleading or deceptive or otherwise infringe the Fair Trading Act 1986; (b) infringe copyright, trade mark or other intellectual or moral property rights of any person; (c) contain material that is obscene, offensive, defamatory, or otherwise unsuitable for publication; (d) breach or infringe any laws relating to therapeutic goods, financial services, antidiscrimination, political publication, publication of court or tribunal materials, or any other legislation, regulation, rule or ordinance; or (e) give rise to any liability on Foodbank New Zealand, cause Foodbank New Zealand to be in breach of any law by virtue of publishing the Advertisement, or result in a claim being made against Foodbank New Zealand.
9. RIGHTS: Foodbank New Zealand may in its absolute discretion: (a) without notice to the Customer alter or abbreviate any Advertisement or insert the word “Advertisement” above or below any Advertisement which in Foodbank New Zealand’s opinion resembles editorial matter; (b) monitor incoming calls for training purposes; (c) at any time and without notice to the Customer cancel, reject or refuse to publish or continue publishing any Advertisement without providing any reason for such rejection or refusal at any time prior to, or after, publication of the Advertisement, provided this right will not be unreasonably exercised; (d) re-publish an Advertisement in other Foodbank New Zealand publications and media (for example Foodbank New Zealand may publish Online Advertising in its magazines, or vice versa), which subject to clause 9(e) will be without further cost to the Customer; or (e) in relation to an Advertisement submitted to Foodbank New Zealand for publication in print, also publish each listing contained in the Advertisement on Foodbank New Zealand's relevant website as Online Advertising unless the Customer advises Foodbank New Zealand at the time of submission that it does not wish to have the Advertisement published on the website. The Customer may be required to pay all related website publication charges (if any); and (f) the Customer agrees that any personal information about internet users that is obtained by Foodbank New Zealand as a result of internet users accessing Foodbank New Zealand’s content pages will only be made available to the Customer if to do so would not breach any of Foodbank New Zealand’s obligations to its customers which are set out in any other agreement.
10. INDEMNITY: By submitting or authorising submission of an Advertisement for publication or Advertising, the Customer indemnifies Foodbank New Zealand (and its employees, officers and agents) against any proceedings, demands, losses, costs (including legal costs on a full indemnity basis), damages and other liabilities of any nature taken, made or awarded against or incurred by Foodbank New Zealand (and/or its employees, officers and agents) in connection with the Advertisement or any Advertising.
11. NO GUARANTEE OR WARRANTIES: (a) Foodbank New Zealand does not guarantee that the Customer’s product featured in an Advertisement will be the only product of that type featured in Advertisements on any one page. Foodbank New Zealand will not be responsible or liable to the Customer in any way if the Customer’s request cannot be granted, or the product featured in the Customer’s Advertisement is not the only product of that type featured in Advertisements on any one page. (b) Online Advertising will be published via internet accessible Advertisement serving software (“Software”). Foodbank New Zealand makes no warranties of any kind, whether express or implied of the fitness of this Software for a particular purpose. Foodbank New Zealand shall not be liable for any loss, damage, or expense incurred in connection with Foodbank New Zealand’s use of the Software, including without limitation, for any technical malfunction, computer error or loss of data or other injury, damage or disruption of any kind other than as a result of Foodbank New Zealand’s gross negligence or fraud.
12. CREDIT TERMS APPLY: The Customer acknowledges that any credit provided will be on Foodbank New Zealand’s standard credit terms which may vary from time to time. New customers may be required to complete a Credit Application. Terms for payment are 7 days from date of invoice.
13. GST: Unless otherwise stated by Foodbank New Zealand, advertising rates are quoted inclusive of GST.
14. PAYMENT: The Customer must pay Foodbank New Zealand for Advertisements: (a) in accordance with the rates set out in the relevant rate cards (which may be varied at any time by Foodbank New Zealand without notice) unless otherwise agreed in writing by Foodbank New Zealand; (b) by prepayment, if so required by Foodbank New Zealand; (c) if payment is agreed by Foodbank New Zealand to be on account, on the credit terms supplied by Foodbank New Zealand to the Customer; and (e) on the basis of booked space or advertising material (whichever is larger) provided that if the actual space is reduced, Foodbank New Zealand will not be liable to the Customer for any credit for such reduction.
15. PRODUCTION SERVICES: If the Customer requires any creative, production, programming, or other services ("Production Services") from Foodbank New Zealand, the Customer must pay Foodbank New Zealand additional charges for such services, as notified in writing to the Customer by Foodbank New Zealand at the time (or shortly after) the Customer requests the Production Services. Foodbank New Zealand may charge the Customer for these Production Services on a case by case basis.
16. FAILURE TO PAY: If any payment is not received by Foodbank New Zealand on or before the date that such payment is due, or if the Customer commits an act of bankruptcy (in the case of an individual), or is unable to pay its debts as and when they fall due, enters into any arrangement with its creditors other than in the ordinary course of business, passes a resolution for administration, winding up or liquidation (other than for the purposes of re-organisation or reconstruction), has a receiver, manager, liquidator or administrator appointed to any of its property or assets or any petition is presented for its winding up (all in the case of a body corporate), Foodbank New Zealand may: (a) cancel any provision of credit to the Customer; (b) immediately and without notice, suspend or cancel all Advertising orders of the Customer and terminate any agreement in relation to Advertising not yet published; (c) require cash pre-payment for any further Advertising; (d) impose interest at the rate of 2% (two percent) above the Reserve Bank’s 90 day Bill Rate on all sums that remain unpaid until full payment is received; (c) take proceedings against the Customer for any outstanding amounts; (d) recover from the Customer all costs incurred by Foodbank New Zealand in the recovery of any amount owed by the Customer including any mercantile agency costs and legal costs on a full indemnity basis; and (e) exercise any other rights at law.
17. LIABILITY: (a) Except as expressly provided in these Terms and Conditions, Foodbank New Zealand excludes, to the fullest extent permitted by law, all warranties, representations and conditions whether implied by law, trade, custom or otherwise. Where Foodbank New Zealand is liable to a Customer for a breach of implied warranty or condition that may not be excluded, Foodbank New Zealand’s liability will, to the extent permitted by law, be limited to any one or more of the following (at Foodbank New Zealand’s option): (i) in the case of the supply of goods under these Terms and Conditions (if any),: (A) the replacement of the goods or the supply of equivalent goods or the payment of the cost of replacing the goods or acquiring equivalent goods; (B) the repair of the goods or the payment of the cost of having the goods repaired; or (ii) in the case of the supply of services under these Terms and Conditions: (A) the supplying of the services again; or (B) the payment of the cost of having the services supplied again. (b) In no circumstances will Foodbank New Zealand (its employees, officers or agents) be liable, whether in tort, contract or otherwise for any indirect loss, loss of profits, consequential loss or special or exemplary damage suffered by the Customer or any other person, even if such loss or damages are foreseeable and whether or not Foodbank New Zealand had been advised of the possibility thereof. (c) The liability of Foodbank New Zealand (including Foodbank New Zealand’s officers, employees and agents) to the Customer, or any other person, for any and all loss or damage arising in relation to these Terms and Conditions and/or Advertisements (including from any errors or inaccuracies however caused, whether by negligence, system, software or press failure, mistake, mis-classifications, early, late or noninsertion of Advertisements, or loss or delay in the delivery of replies) will be limited to an amount equal to the cost of the space of the relevant Advertisement, provided that if the Customer does not advise Foodbank New Zealand of any error within five days of publication of the Advertisement Foodbank New Zealand will have no liability whatsoever. (d) Foodbank New Zealand will not be liable to the Customer or any other person for any loss of whatever kind suffered as a result of Other Advertising, or an Advertisement not being available for publication or not published where such loss arises from any cause beyond its control. Any loss suffered as a result of any partial or total breakdown of Foodbank New Zealand's operation or network, any technical malfunction, computer error or loss of data will be deemed to be an event beyond Foodbank New Zealand's control. Should such an event occur, Foodbank New Zealand will take responsibility to resurrect sites and links, and the Customer has the right to cancel the particular contract for the affected advertising at no penalty if such an occurrence results in the site being down for more than 7 working days (working days being Monday to Friday inclusive, but excluding statutory holidays). In addition, Foodbank New Zealand will not be liable to the Customer for any error or inaccuracy in Advertisements placed by telephone. (e) The guarantees contained in the Consumer Guarantees Act 1993 are expressly excluded where the Customer acquires or holds itself out as acquiring goods or services from Foodbank New Zealand for the purposes of a business. The provisions of that Act do not apply to the goods or services provided under this Agreement or under any other written agreement the Customer may have with Foodbank New Zealand.
18. RETURN OF ADVERTISING MATERIAL: If the Customer requests the return of any material submitted to Foodbank New Zealand in relation to Advertising (“Advertising Material”), the Customer must collect Advertising Material submitted to Foodbank New Zealand immediately after publication. Foodbank New Zealand will endeavour to take reasonable care of Advertising Material in its custody and control, but will not be responsible for any loss or damage to Advertising Material (even if caused by Foodbank New Zealand's (its employees’, officers’ or agents’) negligence).
19. NO WAIVER: If at any time Foodbank New Zealand does not enforce any of these terms and conditions or grants the Customer time or other indulgence, Foodbank New Zealand shall not be construed as having waived that term or condition or its right to later enforce that or any other term or condition.
20. ASSIGNMENT: The Customer may not: (a) assign any of its rights under any agreement or any part of an agreement to which these Terms & Conditions apply (including the rights to advertising space allocated in accordance with such an agreement) to any third party; or (b) place Advertisements (whether directly or indirectly) on behalf of third party advertiser(s) (whether as an agent or otherwise), except on terms previously agreed with Foodbank New Zealand. Advertisements are placed by a Customer on behalf of a third party advertiser where, for example (but without limitation), the Advertisement promotes or otherwise notifies readers as to the goods or services of the third party advertiser rather than the Customer.
21. GOVERNING LAW: These Terms and Conditions are governed by, and construed in accordance with the law in force in New Zealand. The parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction in New Zealand, and any court that may hear appeals from any of those courts, for any proceedings in connection with these Terms and Conditions.
22. SEVERABILITY: If any provision of these Terms and Conditions is held illegal or unenforceable, then such illegality or unenforceability shall not affect the remaining provisions of these Terms and Conditions which shall remain in full force and effect.
23. ADDITIONAL TERMS: In addition to these Terms and Conditions the Customer acknowledges that all Advertising, including the conditions of payment, delivery and changes to or cancellation of such Advertising, will be in accordance with and subject to any specific conditions notified to the Customer or generally published by Foodbank New Zealand from time to time, including on the relevant Foodbank New Zealand website.
24. AMENDMENT: Foodbank New Zealand may vary these Terms and Conditions at any time in its sole discretion, provided that: (a) such amended terms will not affect prior agreed Advertising orders with a date of publication within 3 months from the date of the variation; and (b) if the Customer does not agree with a variation the Customer may cease placing orders with Foodbank New Zealand.