Advertising Terms and Conditions

1. APPLICATION OF THESE TERMS

1. The Advertiser may book the publication or distribution of advertisements, production of editorial content and digital advertising through an Advertisement Insertion Order (AIO) or any other means including through third party media trading (Ad Booking).
   
2. These standard advertising terms and conditions (terms) will apply to every Ad Booking the Advertiser makes with Gumtree AU Pty Ltd (ABN 33 616 996 840 (“Gumtree”) on or in any digital property of Gumtree.
   
3. Gumtree may use as an agent the services supplied by any other entity. Where Gumtree acts as an agent in selling advertising inventory for any other entity, these terms will apply in addition to the terms imposed by the relevant publishing entity.
   
4. Where the Advertiser is an agency, and it places an Advertisement for publication under these terms and conditions, it agrees to these terms and conditions as principal and as agent for its client.
   
5. Gumtree has the right to amend these conditions at any time. Notification of amendment will be deemed to have been given to all Advertisers immediately upon publication of the amended conditions or other written notice, which shall apply to all advertising booked after the date of that publication (except where there is an express written agreement between Gumtree and Advertiser that those amendments will not apply to particular advertisements). Where an Advertiser has entered into an Advertising Expenditure Agreement and that Advertising Expenditure Agreement falls within the Financial Thresholds, the Advertiser will be entitled to terminate the Advertising Expenditure Agreement within 30 days of the publication of the amended conditions, if the amended conditions cause the Advertiser to suffer detriment. For the avoidance of doubt, this clause 1.4 does not apply to variations to advertising rates, casual rates or percentage discounts.
   
6. Every Advertisement must comply with and is subject to these terms and conditions, the relevant terms contained in insertion orders (or other written agreements between the parties including any Advertising Expenditure Agreements), additional relevant terms as published or notified by Gumtree (including as to creative requirements and technical specifications) and any relevant laws, regulations or codes of conduct. To the extent of any inconsistency between the various relevant terms, the following order of priority will be applied:
   1. these terms;
   2. any terms or conditions separately agreed in writing including without limitation in any insertion order or Advertising Expenditure Agreements; and
   3. any terms or conditions published or notified by Gumtree (including as to creative requirements and technical specifications), in order to eradicate any inconsistency.

2. PROCESS

1. Subject to clause 3, there is no binding agreement for the publication of an Advertisement until the Advertiser accepts an insertion order prepared by Gumtree, or until Gumtree accepts a booking order prepared by a third party media trading platform
   
2. Bookings which are in any way conditional will not be accepted.
   
3. The Advertiser authorises Gumtree to dispose of any materials supplied to Gumtree relating to an advertisement (including illustrations, copy, photographs, artwork, and press-ready PDF digital files) following publication of an Advertisement. Gumtree is not required to retain or return to Advertiser any such materials.

3. GUMTREE’S RIGHTS AND DISCRETIONS

1. Every Advertisement submitted for publication is subject to Gumtree’s ongoing approval. Gumtree may in its absolute discretion, despite prior actions and at any time:
   1. refuse to publish or distribute any Advertisement without giving any reason (in which case, no charge to Advertiser will be incurred);
   2. cancel a campaign (in which case, no charge to Advertiser will be incurred for the unpublished portion of the campaign);
   3. or head an Advertisement ‘Advertisement’.
      
2. Gumtree owes no duty to Advertiser to review, approve or amend any Advertisement and no review, approval or amendment by Gumtree will affect Advertiser’s responsibility for the content of the Advertisement.
   
3. Gumtree may, but is not obliged to, under pressure of deadline and without prior consultation or notice to Advertiser, amend any Advertisement in any terms whatsoever, if Gumtree perceives it to be:
   1. in breach of any law of Australia or of any state (whether civil or criminal), including any advertising laws, regulations or codes,
   2. in breach of any pre-existing publishing agreement entered into by Gumtree;
   3. defamatory;
   4. in contempt of court or parliament;
   5. otherwise likely to attract legal proceedings of any kin; or
   6. likely to be offensive to a reasonable person who may view the Advertisement.
      
4. Gumtree has the right, and the right to permit other persons, to republish any Advertisement in any electronic or digital form on any digital property of Gumtree or any third party for any purpose using any media and in any part of the world.
   
5. Any text heavy Advertisement is subject to approval of Gumtree’s editor, which will be exercised with unfettered discretion. Any such Advertisement must be presented in a manner which clearly delineates it from the editorial content of the GCA Network or any third party website or publication including by labelling as an Advertisement in a prominent manner and using a clearly different font and format.

4. ADVERTISER REQUESTS

1. Subject to clause 4(b), the positioning, placement, format, size and/or type of any Advertisement across the GCA Network or any other digital publication is at the discretion of Gumtree. Advertising space on the GCA Network or in any other digital publication may be filled on rotation with various Advertisements from various Advertisers.
   
2. Subject to clause 4(c), if Gumtree has expressly agreed in any Insertion Order or third party booking order for specific positioning, placement, format, size and/or type of Advertisement requested by the Advertiser, Gumtree will position the Advertisement in accordance with the Advertiser’s request. If Gumtree fails to publish the Advertisement in accordance with Advertiser’s requests, then subject to clause 11(a), Gumtree’s liability is limited to refunding the particular positioning, placement, format, size and/or type of Advertisement charges.
   
3. Any bonus inventory expressly agreed in any Insertion Order, third party booking order or otherwise is not guaranteed and is at the absolute discretion of Gumtree. Advertiser acknowledges and agrees that Gumtree is not liable for failure to publish any Advertisement for any reason which is designated to bonus inventory.

5. DEADLINE & SPECIFICATIONS

1. Gumtree imposes various deadlines (including for the provision to Gumtree of creative or changes or variations to Advertisements) and specifications (including for size) in any insertion order, third party booking form or other notification to Advertiser. All deadlines and specifications must be met by Advertiser. Gumtree is under no obligation in relation to information received after relevant deadlines or not in accordance with the relevant specifications.
   
2. Gumtree accepts no responsibility for any error in circumstances where instructions or other information have or have been provided over the telephone unless Gumtree receives written confirmation of the instructions or other information before the deadline.
   
3. It is the responsibility of the Advertiser to notify Gumtree of any error immediately after it appears. Unless so notified, Gumtree accepts no responsibility for any recurring error or any Loss relating to that recurring error.
   
4. Cancellations by the Advertiser may only be made by providing 30 days written notice to the designated Gumtree sales manager. Failure to do so will relieve Gumtree of any obligation to comply with the cancellation request and, if Gumtree proceeds with the publication of the relevant Advertisement, then Gumtree will be entitled to charge the Advertiser accordingly.

6. ADVERTISEMENTS PRODUCED BY GUMTREE

1. Gumtree owns and retains all copyright and other intellectual property rights in relation to any Advertisements produced by Gumtree or any materials provided by Gumtree for use in an Advertisement.
   
2. Advertiser obtains no rights in relation to those advertisements produced by Gumtree or in relation to content from Gumtree. This clause does not in any way derogate from Advertiser’s obligations or liabilities in relation to such Advertisements.

7. ADVERTISING EXPENDITURE AGREEMENTS

1. The maximum period of any Advertising Expenditure Agreement is one year (except in exceptional circumstances). In the absence of any valid Advertising Expenditure Agreement, including if an Advertising Expenditure Agreement has expired, casual rates will be charged by Gumtree.
   
2. Gumtree reserves the right to cancel or suspend any Advertising Expenditure Agreement where:
   1. Advertiser is in material breach of the Advertising Expenditure Agreement, these terms or any another agreement with Gumtree; or
   2. Gumtree considers Advertiser becomes a credit risk; or
   3. Advertiser’s advertisements pose a reputational risk or other unacceptable risk for Gumtree; or
   4. Gumtree is no longer able to deliver the advertising services the subject of the Advertising Expenditure Agreement for any reason; or
   5. any other clause of these terms or any other agreement with Gumtree enables Gumtree to terminate or suspend an Advertising Expenditure Agreement.
      
3. Subject to clauses 7(d) and 7(e):
   1. the percentage discounts quoted in a Discount Protected Advertising Expenditure Agreement are not subject to any increase or decrease during the period of the Discount Protected Advertising Expenditure Agreement. However, the advertising rates (whether quoted or not) are subject to any increase or decrease notified by Gumtree effective from the time nominated by Gumtree, which may occur during the period of the Discount Protected Advertising Expenditure Agreement, and such varied rates will apply to all advertising booked from that nominated date (unless otherwise expressly agreed by the parties in writing); and
   2. the advertising rates applicable to a Rate Protected Advertising Expenditure Agreement at the time the agreement is entered into (whether quoted or not) are not subject to any increase or decrease during the period of the Rate Protected Advertising Expenditure Agreement.
      
4. Failure to receive or rejection on reasonable grounds of an Advertisement by Gumtree does not affect the obligations of Advertiser in relation to Advertiser’s agreed minimum spend commitment through the term of an Advertising Expenditure Agreement under that Advertising Expenditure Agreement. Where an advertisement is rejected other than on reasonable grounds or is omitted by Gumtree, Gumtree will at Advertiser’s election publish the advertisement again or reduce Advertiser’s obligations in relation to their agreed minimum spend commitment accordingly.
   
5. If at any time Advertiser is not incurring advertising expenditure in the proportion that the part of the Advertising Expenditure Agreement up to that time bears to the entire Advertising Expenditure Agreement, Gumtree reserves the right to either:
   1. adjust the percentage discount for a Discount Protected Advertising Expenditure Agreement or the advertising rates for a Rate Protected Advertising Expenditure Agreement (as applicable) to the level which would normally be allowed by Gumtree to a customer incurring advertising expenditure at that rate; or
   2. terminate that Advertising Expenditure Agreement.
      
6. At the expiry of an Advertising Expenditure Agreement, Gumtree will determine Advertiser’s actual advertising expenditure during the period of the Advertising Expenditure Agreement and:
   1. if the actual advertising expenditure is less than the Advertiser’s agreed minimum spend commitment as stipulated within the Advertising Expenditure Agreement a surcharge may be payable by Advertiser to Gumtree to reflect the percentage discount (in respect of a Discount Protected Advertising Expenditure Agreement) or the advertising rates (in respect of a Rate Protected Advertising Expenditure Agreement) which would have been provided by Gumtree to an advertising customer incurring that level of advertising expenditure; and/or
   2. where a surcharge is applicable, the percentage discount or advertising rates (as applicable) will be adjusted to the level which will be normally allowed by Gumtree to an Advertiser incurring advertising expenditure at that level.
      

8. FEES & PAYMENTS

1. All amounts due under this agreement shall be payable within 30 days of the date of invoice which shall be issued at the end of the calendar month in which the first impression or tenancy is provided, and then on a monthly basis.
   
2. The invoice(s) shall relate to the impressions or other services delivered up to the date indicated, the charges for which shall be calculated on a pro- rata basis.
   
3. Gumtree’s statistics shall be the only statistics relevant for the calculation of any amounts due under this Agreement. Gumtree shall provide evidence of the click-through rates and impressions at the Advertiser’s request.
   
4. All payments shall be made in Australian Dollars by the due date as specified in the invoice.
   
5. Gumtree may invoice Advertiser for any GST payable (if GST is payable by Gumtree in connection with the supply under this Agreement). If GST is payable in relation to a Taxable Supply, the amount payable for that Taxable Supply is the amount for that Taxable Supply specified in this Agreement plus GST. The parties must provide each other with all documentation required to claim any Input Tax Credit, set off, rebate or refund for or in relation to any GST included in any payment made under this Agreement. In this clause, the terms “GST”, “Taxable Supply” and “Input Tax Credit” have the meaning given in A New Tax System (Goods and Services Tax) Act 1999 and related tax imposition Acts of the Commonwealth of Australia.
   
6. Gumtree may refer any unpaid amounts to third party debt collectors and the Advertiser will be liable to pay the unpaid amounts as well as the costs of the debt collectors.

9. COMMERCIAL CREDIT

1. All advertising agencies are required to complete a Credit Application for Accreditation of an Advertising Agency and are then subject to the related assessment and processes.
   
2. If no credit application has been approved, upfront payment will be required for all advertising.
   
3. Where an Advertiser fails to pay an account by the due date or fails to comply with any relevant terms and conditions, Gumtree may, at its absolute discretion cancel or suspend any booked advertising or refuse to accept any further advertising of the Advertiser.
   
4. In the case of the transfer of an advertising account from one accredited advertising agent to another accredited advertising agent during the currency of an advertising or online listing order, both advertising agents shall immediately inform Gumtree in writing. Accounts will only be transferred or accessed by agencies when Gumtree is satisfied that the client in question has provided its express written permission and when Gumtree gives its express approval for the transfer.

10. LINKED ADVERTISING EXPENDITURE AGREEMENTS TO AN ADVERTISING AGENCY

1. A linked Advertising Expenditure Agreement with related companies is only available where an Advertiser and its subsidiaries, franchises or branch offices are linked together for the purpose of an Advertising Expenditure Agreement and where subsidiaries fall within the definition of that term in the Corporations Act 2001 (Cth). Where that is the case, and subject to Gumtree’s approval which may be granted or withheld in its absolute discretion, the Advertiser is entitled to combine its advertising expenditure with those subsidiaries, franchises and branch offices and receive the relevant discount.
   
2. Where an Advertiser wishes to establish a linked order, the following must be provided to Gumtree in order to seek Gumtree’s approval for a linked order (which may be granted or withheld in its absolute discretion):
   1. a list of all subsidiaries, franchises and branch offices; and
   2. any other information that Gumtree may in its discretion require to satisfy itself that Advertiser is entitled to place a linked order.
      
3. 10.3. Direct customer Advertising Expenditure Agreements may not be linked to an advertising agency without the written approval of Gumtree.

11. LIMITATION OF LIABILITY AND INDEMNITY

1. Nothing in these terms is intended to exclude or limit any guarantees or warranties that may be available to you under the Consumer Law. Under the Consumer Law, you may be entitled to a repair or replacement service, or other similar rights in accordance with the Consumer Law from time to time.
   
2. To the maximum extent permitted by law, under no circumstances will Gumtree be liable to Advertiser for any incidental, special or consequential loss or damages, or damages for loss of data, damage to reputation, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this Agreement or any Advertisement (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)).
   
3. To the maximum extent permitted by law, under no circumstances will Gumtree be liable to Advertiser for any incidental, special or consequential loss or damages, or damages for loss of data, damage to reputation, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this Agreement or any Advertisement (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)).
   
4. If Gumtree is liable to you (whether in contract, indemnity, tort, statute or equity), you acknowledge and agree that Gumtree’s liability in aggregate for all claims by you or third parties who encounter related activities or goods through you, for loss or damage of any kind arising from or relating in any way to this Agreement or any Advertisement to:
   1. if the liability relates to an Advertisement – the amount paid for the relevant Advertisement giving rise to the liability; or
   2. if the liability does not relate directly to an Advertisement – the amount paid to Gumtree by Advertiser under any Ad Booking in the 6 months preceding the event giving rise to the liability, or $50,000 (whichever is less).
      
5. Advertiser indemnifies Gumtree in respect of all liability for any claim(s) by any  person (including any third party who encounters an Advertisement) arising from Advertiser’s:
   1. breach of any third party property rights or intellectual property rights;
   2. breach of any term of this Agreement;
   3. breach of any applicable law (including advertising laws, regulations and codes) or the Advertising Policies;
   4. personal injury or death arising from any item that is the subject of an Advertisement; or
   5. negligent, wilful, fraudulent or criminal act or omission,

except to the extent Gumtree caused or contributed to any such claims through its own wilfully reckless or negligent act or omission and Gumtree ought reasonably to be liable for a portion of the claim (in which case Gumtree’s liability is capped in accordance with clause 11(d).

12. WARRANTIES

1. Subject to clause 11(a), Gumtree makes no representation or warranty of any kind and in particular makes no representation or warranty:
   1. in relation to the continued production of the GCA Network or any other third party website or publication;
   2. in relation to the final placement, positioning, format, size, and/or type of Advertisement, or date of publication or distribution of an Advertisement;
   3. that distribution of the GCA Network or any other third party website or other publication will occur on a specific date, by a specific time, to a specific number of consumers or readers or within a specific geographic area;
   4. in relation to the number of visitors to, or the number of impressions at, the GCA Network or any other site; or
   5. that any exclusivity applies to any of part of the services.
      
2. Subject to clause 11(a), the Advertiser acknowledges that the production or distribution of the GCA Network may be suspended or ceased at any time for any reason.
   
3. Subject to clause 11(a) and clause 11(e), Gumtree is not liable to Advertiser for any direct or indirect Loss of any nature including where arising from the failure of Gumtree, whether negligent or otherwise, to publish an Advertisement or from the failure of Gumtree to publish an Advertisement in the form prescribed or from publication of the Advertisement with errors or omissions or in any way relating to the distribution or lack of distribution of the GCA Network or any other third party website or relevant publication.
   
4. Subject to clause 11(a), where any of the circumstances set out in clause 11(d) arise:
   1. Advertiser shall incur no cost where the Advertisement has not been published at all or where the error or failure has arisen solely due to the negligence of Gumtree or any of its employees, or agents; and
   2. in all other circumstances, and subject to the other applicable terms, the agreed rate shall be reduced according to circumstances. In no circumstances will Gumtree’s liability be greater than:
      1. in relation to the failure to provide any placement, position, format, size and/or type of Advertisement or other benefit in relation to which a specific loading charge was paid by the Advertiser, the amount of that loading charge; or
      2. otherwise, republication of the relevant advertisement, or payment of the cost of republishing the relevant advertisement, at Gumtree’s discretion.
5. Subject to clause 11(a), Gumtree’s liability for a breach of a term or guarantee implied by law is limited at Gumtree’s discretion, to the supply of the service again or payment for the cost of having the service supplied again.
   
6. Subject to clause 11(a), Gumtree has no responsibility or liability to Advertiser in relation to:
   1. Gumtree exercising its rights under these terms; or
   2. any failure of telecommunications services or systems which affect the receipt by Gumtree of any material, a notice or communication of any kind or the publication of an advertisement or campaign.
      
7. Advertiser warrants that it will only use the advertising space which it acquires to advertise its own brands, goods or services and may not sell or otherwise deal with that advertising space. Where Advertiser is an advertising agency the space may only be used by the client for which the space was initially acquired or booked.
   
8. Advertiser warrants that the advertisement complies with all relevant laws and regulations and that its publication in accordance with these terms will not give rise to any claims against or liabilities of Gumtree, its directors, employees or agents. Without limiting the generality of the above, Advertisers and or advertising agencies warrant that neither the Advertisement nor its publication breaches or will breach the Competition and Consumer Act 2010, Privacy Act 1988, Copyright Act 1968, Fair Trading Act 1985 or defamation, or infringes the rights of any person.

13. PRIVACY STATEMENT

1. Gumtree collects personal information about Advertiser, including for example Advertiser’s name and contact details which Advertiser provides when registering or using Gumtree’s services as well as information from data houses, social media services, Gumtree’s affiliates and other entities Advertiser deals or interacts with for example by using the services of the affiliates and entities.
   
2. Gumtree collects and uses that information to provide Advertiser with Gumtree’s goods and services, to promote and improve Gumtree’s goods and services, to provide Advertiser with targeted advertising based on Advertiser’s online activities, for the purposes described in Gumtree’s Privacy Policy and for any other purposes that Gumtree describes at the time of collection.
   
3. Gumtree may disclose Advertiser’s information to Gumtree’s related companies, including those located outside Australia. Gumtree may contact Advertiser for those purposes (including by email and SMS) at any time.
   
4. Gumtree may also disclose Advertiser’s information to Gumtree’s service and content providers, including those located outside Australia.
   
5. The policy also explains that if Advertiser does not provide Gumtree with information Gumtree has requested from Advertiser, Gumtree may not be able to provide Advertiser with the goods and services Advertiser requires.
   
6. Further information about how Gumtree handles personal information, how Advertiser can complain about a breach of the Australian Privacy Principles, how Gumtree will deal with a complaint of that nature, how Advertiser can access or seek correction of its personal information and Gumtree’s contact details can be found in our Privacy Policies.

14. PERSONAL INFORMATION

1. All GCA Network data is the property of Gumtree. All personal information collected by Gumtree under this Agreement is subject to the Gumtree’s Privacy Policy, found on GCA Network, and Gumtree is bound by the Privacy Act 1988.
   
2. Each party undertakes that it will not at any time hereafter use or disclose to any person, except to its professional representatives or as may be required by law or any legal or regulatory authority, the terms and conditions of this Agreement or any confidential information concerning the business or affairs of the other party which may have come to its knowledge, including the data from the GCA Network.
   
3. Neither party shall use any such confidential information except for the performance of this Agreement or make any announcement relating to this Agreement without the prior written approval of the other party.

15. TERM AND TERMINATION

1. This Agreement will commence on the date it is signed by the Advertiser and continue on a rolling monthly basis unless terminated.
   
2. Either party may terminate this Agreement without cause with 30 days’ written notice to the other party.
   
3. If a party considers that the other party is in breach of this Agreement, it must give the other party 10 business days’ notice in writing to rectify the issue. If the other party does not rectify the issue, or the issue cannot be rectified, the first party may immediately terminate this agreement.
   
4. Upon termination of this Agreement:
   1. Gumtree will perform all Ad Bookings up to the termination date; and
   2. the Advertiser will pay all amounts due in accordance with clause 8 up to the termination date.

16. JURISDICTION

These terms and conditions are governed by the laws of New South Wales, and each party submits to the exclusive jurisdiction of New South Wales.

17. DEFINITIONS

1. Advertisement includes any material in any form lodged by Advertiser or any agent of Advertiser for publication or other distribution as an advertisement (including as a published advertorial).
2. Advertiser means each advertiser and or advertising agency who seeks to have Gumtree publish or otherwise distribute an advertisement.
3. Advertising Expenditure Agreement means both a Discount Protected Advertising Expenditure Agreement and a Rate Protected Advertising Expenditure Agreement.
4. GCA Network means the websites www.carsguide.com.au, www.autotrader.com.au, www.gumtree.com.au and any associated mobile applications.
5. Discount Protected Advertising Expenditure Agreement is a written agreement (in soft or hard copy form), which is signed or, in the case of a soft copy, otherwise agreed to in a mutually acceptable form, by or on behalf of both the Advertiser and Gumtree, detailing:
   • the percentage discount from the casual rates from time to time,
   • any applicable adjustments to standard loadings,
   • any applicable positional agreements, and
   • the agreed minimum spend commitment by the Advertiser which is the basis for the benefits to be provided by Gumtree as described in (i)-(iii) above, which is to apply between Gumtree and that Advertiser for the term specified in the agreement (which is not to exceed 12 months other than in exceptional circumstances).
6. Financial Thresholds in relation to an Advertising Expenditure Agreement, means either of the following:
   • where the term of the Advertising Expenditure Agreement is 12 months or less, the agreed minimum spend commitment is $300,000 or less; or
   • where the term of the Advertising Expenditure Agreement is more than 12 months, the agreed minimum spend commitment is $1,000,000 or less.
7. Loss means direct and indirect loss of any nature. Indirect Loss includes the following: loss of profit, loss of business opportunity, loss of goodwill and payment of liquidated sums or damages under any other agreement.
8. Privacy Policies means:
   • Gumtree –https://help.gumtree.com.au/articles/en_US/KB_Article/Gumtree-Privacy-Policy-AU?vgroup1=PKB&c=PKB%3APolicies&vcategory2=General_Policies&s=
   • Carsguide – https://www.carsguide.com.au/privacy-policy
   • Autotrader – https://www.autotrader.com.au/privacy-policy
9. Rate Protected Advertising Expenditure Agreement is a written agreement (in soft or hard copy form), which is signed or, in the case of a soft copy, otherwise agreed to in a mutually acceptable form, by or on behalf of both the Advertiser and Gumtree, detailing:
   • the percentage discounts from the casual rates in effect at the time the agreement is entered into; and/or
   • the fixed advertising rates;any applicable adjustments to standard loadings;any applicable positional agreements; and
   • the agreed minimum spend commitment by the Advertiser which is the basis for the benefits to be provided by Gumtree as described in (i) –(iii) above, which is to apply between Gumtree and that Advertiser for the term specified in the agreement (which is not to exceed 12 months other than in exceptional circumstances).
10. Related Body Corporate has the meaning given to that term in the Corporations Act 2001 (Cth).