Advertising Terms & Conditions
1. APPLICATIONS SUBJECT TO T&Cs: the T&Cs set out below apply to every Application for Advertising or Production Services from any Client received by TRSN.
2.1 Advertisement means without limitation:
(a) audio material broadcast by any Media radio station (Radio Advertisement);
(b) text and visual material published in any Media magazine or other print media (Print Advertisement);
(c) text, visual, audio, and audio-visual material published on any Media website, app or other internet or mobile device based media (Online Advertisement);
on behalf of a Client as an advertisement, sponsorship or promotion of any entity, activity or message and Advertise and Advertising have a corresponding meaning;
2.2 Application means any application, order, booking, ATB, authority, agreement or contract from a Client requesting, instructing, agreeing, granting authority or approval to TRSN to proceed with Advertising or Production Services based on any Rate Card, Sales Proposal, Production Quote or other quote or rate or fee schedule;
2.3 ATB, Authority to Broadcast means a form (whether paper or electronic) filled out by a Client and delivered to TRSN for the purpose of requesting and authorising Media to broadcast a Radio Advertisement or Campaign of Radio Advertisements;
2.4 Business Day means a day that is not a Saturday, a Sunday or a public holiday in the city in which the TRSN office that the Client is dealing with is located. Where there is any doubt about which city is the relevant one, then the city will be deemed to be Sydney, New South Wales.
2.5 Campaign means a repeated or themed series of Advertisements carried out with Media for a Client over a period of time;
2.6 Client means each applicant and/or advertising agency (principal and agent are jointly and severally liable under these T&Cs) who seeks to have TRSN procure Media to produce, broadcast, publish or otherwise distribute an Advertisement;
2.7 Commercial Credit Account means a credit account in favour of the Client that is subject to credit terms set by TRSN and established as a result of TRSN’S approval of a credit application submitted by the Client;
2.8 Fee means the amount payable by the Client to TRSN in consideration for Production Services, Advertisement(s) or a Campaign as the case may be and Fees has a corresponding meaning;
2.9 Media means any entity that operates or provides a radio station, publication, website, app or other form of commercial audio and/or visual service, production or communication represented by TRSN under a contract, agency, reseller or similar representative arrangement;
2.10 GST means Goods & Services Tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and all terms used in conjunction with GST in these T&Cs are those defined in that Act;
2.11 Production Content means materials, content and any Advertisement provided, supplied, designed, created, edited, made or produced by Media engaged through TRSN using Production Services;
2.12 Production Services means services provided by Media engaged through TRSN to supply, design, create, edit, make and/or produce an Advertisement or Campaign at the instruction of a Client;
2.13 Production Quote means a quote provided by TRSN to a Client for the cost of Production Services for an Advertisement or Campaign;
2.14 Rate Card means a list given to a Client by TRSN specifying the cost per Session Time, per print advertisement or per other formula for an Advertisement or Campaign upon which a Fee is based;
2.15 Sales Proposal means proposal prepared by a TRSN sales representative for a Client for Production Services and/or an Advertisement or Campaign;
2.16 Sales Schedule means a schedule of rates and fees annexed to a Sales Proposal upon which a Fee is based;
2.17 Session Times in relation to radio broadcasting means the time slots into which a 24 hour period is divided; described using the terms “Breakfast”, “Morning”, “Afternoon”, “Drive”, “Evening”, Late Evening” and “Mid Dawn” or similar, as set by each Media entity and shown on the relevant Rate Card;
2.18 T&Cs means these terms and conditions, as amended from time to time; and
2.19 TRSN means The Radio Sales Network Pty Ltd ACN 080 468 828 trading as TRSN.
3.1 Submission requirements: Media have various and differing requirements for Applications, including specifications for format, content and deadlines.
(a) It is the responsibility of the Client to ensure the requirements for submitting Applications are met. TRSN may reject any Application that does not meet Media requirements.
(b) Where an Application is rejected under 3.1(a) in such a way that Media loses an opportunity to broadcast or publish other Advertising then TRSN reserves the right to charge the Client a full Fee with effect from the broadcast time or publication date.
3.2 Absolute discretion:
(a) For the avoidance of doubt TRSN is not obliged to accept any Application. Every Advertisement and Campaign is subject to the approval of TRSN, who may at its absolute discretion at any time:
(ii) change position, or postpone broadcast, publication, communication or distribution;
(iii) refuse to broadcast, publish, communicate or distribute;
(iv) cancel; or
(v) preface with “Advertisement”; any Advertisement or Campaign for any reason, provided that clause 3.2(a)(i) applies only if in the opinion of TRSN such amendment is necessary to comply with any law, regulation or direction from a government body.
(b) In the case of clauses 3.2(a)(iii) and 3.2(a)(iv), if a Client has complied with all requirements for Applications and has not breached these T&Cs then no Fee will be payable for the non-broadcast or unpublished Advertisements.
3.3 Cancellation by Client:
(a) Unless otherwise indicated in writing, the Client may cancel Advertising by giving the relevant TRSN sales representative twenty-eight (28) days’ written notice before the scheduled start date of any Advertising.
(b) If the Client fails to give twenty-eight (28) days’ written notice TRSN has the discretion to still charge the Client the Fees.
(c) If the Client cancels less than twenty-eight (28) days but more than ten (10) days prior to the scheduled broadcast or publication, TRSN may offer the Client an opportunity to reschedule the Advertisements, subject to availability, instead of exercising its rights under clause 3.3(b).
4. SCHEDULING, PLACEMENT AND FORMAT:
4.1 Advertisements subject to availability:
(a) TRSN will use reasonable endeavours to accommodate the time and placement requests set out in any Application.
(b) TRSN does not guarantee the availability of Session Times or placements and will not be liable to the Client for failure to provide the requested time or placement.
4.2 Reasonable endeavours as to format: Subject to these T&Cs, TRSN will use its reasonable endeavours to ensure Media broadcast or publish Advertisements submitted by Clients in the format submitted by the Client, but the Client acknowledges that it will not always be possible or feasible to use the format submitted by the Client.
(a) It is the responsibility of the Client to notify TRSN of any error in or in relation to an Advertisement immediately it is aired or appears. Unless so notified, TRSN accepts no responsibility for any recurring error or any loss or claim from the Client or any third party relating to that error.
(b) In the event that the Client notifies TRSN of an error as required by clause 4.3(a) and the error is not in any way directly or indirectly caused by the Client, then TRSN will provide the Client replacement Advertising at no additional Fee, in full and final compensation for the error.
5. CONTENT OF ADVERTISEMENTS:
5.1 Warranty: The Client undertakes and warrants to TRSN and Media that no Advertisement or Campaign will:
(a) breach or infringe:
(i) the Broadcasting Services Act 1992 (Cth);
(ii) any laws of defamation or privacy in any jurisdiction in which the Advertisement will be broadcast or published;
(iii) laws affecting publication of court or tribunal materials;
(iv) copyright, trade mark or other intellectual or moral property rights of any person or entity;
(v) the Competition and Consumer Act 2010 (Cth);
(vi) any laws relating to therapeutic goods, financial services, anti-discrimination, or political publication;
(vii) any laws relating to liquor, gambling or tobacco;
(viii) any ancillary regulations, standards or codes of practice to those listed above in this clause 5.1(a) or any other State or Commonwealth legislation, rule or ordinance relating to advertising in any medium;
(b) contain material that is obscene, offensive, derogatory towards any sector of society or that is otherwise unsuitable for publication; or
(c) give rise to any liability on TRSN or Media, cause TRSN or Media to be in breach of any law by virtue of producing, broadcasting or publishing the Advertisement or Campaign, or result in a claim being made against TRSN or Media.
5.2 Third Party Consents: The Client is responsible for obtaining, and must obtain, all third party authorisations, consents, approvals or permissions necessary or desirable for the broadcast or publication by Media of all Advertisements.
5.3 No duty to review: TRSN owes no duty to the Client to review, approve or amend any Advertisement and no review, approval or amendment by TRSN will affect the Client’s responsibility for the content of the Advertisement.
5.4 Intellectual property in Production Content: Unless otherwise agreed:
(a) TRSN or Media as applicable owns and retains all copyright and other intellectual property rights in relation to Production Content.
(b) The Client obtains no rights in relation to Production Content or in relation to any content or materials supplied by TRSN.
(c) The Client must not use the Production Content for any purpose other than advertising through TRSN and the Production Content must otherwise be kept strictly confidential by the Client.
(d) The Client must return all Production Content held by the Client to TRSN at the end of the Campaign, unless otherwise agreed in writing.
(e) If TRSN gives written consent to the Client to continue to use Production Content, TRSN may require the Client to pay a licence fee for such use.
(f) This clause 5 does not in any way derogate from Client’s obligations or liabilities in relation to Advertisements made using Production Services.
6. RADIOMATRIX APPLICATION:
6.1 Application of clause 6:
(a) If the Client is an advertising or other media buying agency and has an agreement with DBM Systems Pty Ltd ACN 082 282 844 trading as AudioNET (AudioNET) for access to the RadioMATRIX application for delivery of booking confirmations to the Client, then this clause 6 will apply to the review of bookings data by the Client.
(b) Unless notified in writing by TRSN that TRSN no longer has an agreement in place with AudioNET in respect of the provision of bookings data, then all booking data confirmations will be provided to the Client through the RadioMATRIX application. Paper bookings data will be available on request by exception from AudioNET or TRSN in the event of a failure of the RadioMATRIX application.
6.2 Booking confirmations through RadioMATRIX: Without limiting the Client’s responsibilities in clauses 3, 4, 5:
(a) In accordance with the Client’s agreement with AudioNET, AudioNET will provide the Client each night with a file including all bookings holdings data for the Client with TRSN (Holdings File). If the Holdings File is not received on any one business day, the Client must notify AudioNET by 11.00am the same day.
(b) The Holdings File is considered the final confirmation from TRSN. It is the Client’s sole responsibility to check the Holdings File and to notify TRSN of any errors within 2 Business Days of making the booking and subsequently on weekly basis throughout the period of the campaign.
(c) Any errors (included misplaced, duplicated or incorrectly rated bookings) for spots or non-spot charges that appear in the Holdings File that are not queried by the Client with TRSN will not attract a credit and the Client will be required to make full payment for advertising published, communicated or broadcasting shown in the Holdings File.
(d) In the event TRSN adjusts a booking prior to broadcast for any reason, TRSN will advise the Client of the changes to be reflected within Holdings File with sufficient time prior to the broadcast to allow the Client to review and agree on those changes.
6.3 The Client’s responsibility to review: For the avoidance of doubt, if the Client fails to undertake any review required under clause 6.2 above and/or does not notify any bookings discrepancies to TRSN within the specified timeframes, that will negate any obligation on TRSN to credit, make good, cancel, move or otherwise recompense the Client for any spot which has been confirmed by way of the Holdings Files provided to the Client.
7.1 Time for payment: Unless TRSN has directed a Client to pay at a specific time or within a specific period, the Client must pay all Fees relating to the Advertising and/or Production Services:
(a) if the Client has a Commercial Credit Account, then 30 days from the date of the invoice issued to the Client; or
(b) if the Client does not have a Commercial Credit Account or if the Client’s Commercial Credit Account limit has been reached, then in advance, five (5) Business Days before the first day of the scheduled Advertising.
7.2 Failure to pay: Without limiting any other rights available to TRSN, in the event that the Client fails to comply with clause 7.1, TRSN may in its absolute discretion:
(a) terminate the Client’s Commercial Credit Account (if any) and immediately seek recovery of all monies owed by the Client from the Client and/or the guarantor (if any);
(b) suspend or cancel any Advertising scheduled for the Client;
(c) recover from the Client all costs relating to any action taken to recover monies from the Client; and
(d) charge interest from the date that is 15 days past the due date if the Client does not have a Commercial Credit Account, or from the date that is 45 days past the due date if the Client has a Commercial Credit Account, at the NAB overdraft rate, on all outstanding monies, compounded daily until the outstanding monies are paid in full.
(a) Unless otherwise stated, all amounts payable by the Client to TRSN for Advertising or Production Services under these T&Cs are exclusive of GST.
(b) The Client agrees to pay any GST liability to TRSN (in addition to the amounts payable for supply of Advertising or Production Services) upon receipt of a valid tax invoice from TRSN.
7.4 No Set-Off or Counterclaim: The Client agrees that it will not exercise any rights of set‐off or counterclaim in relation to any amounts payable by it under these T&Cs.
(b) TRSN may contact the Client about goods, services or promotions which may be of interest to the Client. TRSN may also share the Client’s information with other persons or entities, including but not limited to Media, who assist TRSN in providing its goods and services.
9. RELEASE AND INDEMNITY:
9.1 The Client continually releases and indemnifies TRSN and each of its directors, employees and agents against all liability, losses, costs (on a full indemnity basis), damages, expenses and claims (whether threatened or actual) by any person which arise wholly or partially, or directly or indirectly, from:
(a) any Application, the Production Services or the broadcasting or publication of any Advertisement by Media; or
(b) any representation or omission made by or on behalf of TRSN inducing the Client to purchase Production Services or Advertise with Media;
(c) in respect of Production Services and any Advertising, any issues relating to (without limitation) quality control, equipment failure, delay, force majeure, including sound quality issues, delay in transmission, failure of the world wide web or any telecommunications structure or broadcasting devices.
9.2 The Client will indemnify and keep indemnified TRSN against all claims, demands, proceedings, damages, costs, expenses (including legal expenses), losses or any other liability whatsoever arising directly or indirectly, from or in connection with a breach by the Client of any provision of these T&Cs or any of the terms conditions and policies referred to in clause 13.
10. LIMITATION OF LIABILITY:
10.1 Nothing in these T&Cs excludes, restricts or varies any rights or remedies under the Australian Consumer Law in the Competition and Consumer Act 2010 (Cth) (ACL) that cannot be excluded, restricted or modified.
10.2 Subject to clause 10.1 but otherwise to the maximum extent permitted by law, TRSN excludes all liability for any costs, expenses, losses and damages suffered or incurred by the Client or any third party in connection with any Application, Production Services or any Advertising broadcast or published by Media whether that liability arises in contract, tort (including by TRSN’S negligence) or statute. Without limitation, TRSN will not be liable for any indirect or consequential losses, including loss of profits, loss of revenue and loss of bargain or business opportunity arising out of or in connection with these T&Cs, any Application, Publication Services or any Advertising published or broadcast by Media (even if TRSN was aware of the possibility of such losses or if such losses were otherwise foreseeable).
10.3 Failing exclusion under clause 10.2, TRSN limits its liability, at its discretion, to:
(a) the re‐supply of Advertising or Production Services; or
(b) the payment of the Client’s cost of having the Advertising or Production Services supplied again.
11. NO REPRESENTATIONS:
11.1 Subject to clause 10.1 above:
(a) TRSN disclaims and excludes all warranties, representations and claims in relation to the potential benefits of the Production Services or Advertising provided to the Client;
(b) the Client acknowledges that it has not relied on any such representations; and
(c) the Client will be deemed to have made each Application with full knowledge that the Production Services or Advertising would not necessarily meet desired outcomes or objectives.
12. BREACH AND DEFAULT:
12.1 If the Client:
(a) commits a breach of any of these T&Cs, or any terms or conditions of any Application or any Commercial Credit Account and fails to remedy such breach within fourteen (14) days after being served with a notice by TRSN specifying the nature of the breach; or
(b) (in the case of a corporation subject to the expiration of any stay period under sections 415D, 434J, 451E and 415FA of the Corporations Act 2001 (Cth)) 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 corporation), or threatens to cease carrying on business; then
TRSN may (without limitation) exercise any of the rights contained in clause 7.2 above.
13. PRIORITY OF T&Cs:
13.1 No representations: Subject to clause 13.2 below, these T&Cs together with each Application and the terms of the Client’s Commercial Credit Account (if any) embody the entire agreement between the parties and all previous dealings, representations and arrangements are hereby excluded and deemed void.
13.3 Inconsistency: To the extent that any Application submitted by the Client attempts to include the Client’s own terms that are not expressly agreed and are inconsistent with these T&Cs, those terms will not apply.
13.4 Variation: If TRSN later agrees in writing signed by the Client and TRSN to terms or conditions for any Application that have the effect of varying or amending these T&Cs, that later written agreement will prevail over these T&Cs.
14. PERSONAL GUARANTEE AND INDEMNITY:
14.1 Application of clause 14: This clause 14 applies to, and governs:
(a) every personal guarantee and indemnity granted to TRSN by an individual person on behalf of a Client as part of an application for a Commercial Credit Account with TRSN; and
(b) any other contract or agreement with TRSN that contains a personal guarantee and indemnity and refers to these T&Cs.
14.2 Definitions: For the purposes of this clause 14:
(a) each individual person who signs a personal guarantee and indemnity with TRSN is a Guarantor;
(b) the liabilities and obligations undertaken by each Guarantor as contained in the personal guarantee and indemnity section of:
(i) the application for a Commercial Credit Account with TRSN; or
(ii) any other contract or agreement with TRSN,
together with the liabilities and obligations set out in this clause 14, are collectively termed Personal Guarantee and Indemnity; and
(c) “Client” is synonymous with “Applicant” as used in the application for a Commercial Credit Account.
14.3 More than one Guarantor: Each Guarantor is jointly and severally liable with each other Guarantor for that Client. If there is more than one Guarantor, then “Guarantor” means all guarantors collectively and each of them individually.
14.4 Guarantor has principal obligation: The Personal Guarantee and Indemnity creates a principal obligation from each Guarantor to TRSN and is in addition to any security that TRSN holds against the Client’s obligations.
14.5 Guarantee: Each Guarantor unconditionally and irrevocably hereby:
(a) guarantees the due and punctual payment by the Client to TRSN of all moneys for which the Client may now or in the future be liable to TRSN; and
(b) agrees that he or she must pay to TRSN and moneys not paid by the Client by the due date and TRSN shall at all times be at liberty to act as though the Guarantor were the principal debtor without TRSN having to take any steps against the Client.
14.6 Indemnity: As a separate and distinct obligation, the Guarantor agrees that he or she will pay to TRSN all of TRSN’s costs, fees and expenses associated with this Personal Guarantee and Indemnity and the enforcement of the Personal Guarantee and Indemnity.
14.7 Personal Guarantee and Indemnity does not expire: This Personal Guarantee and Indemnity is a continuing and irrevocable guarantee and indemnity until the Guarantor is expressly released by TRSN in writing. This Personal Guarantee and Indemnity is not discharged by any intermediate payment or settlement of accounts.
14.8 Obligations unconditional: The Guarantor’s obligations under this Personal Guarantee and Indemnity are unconditional and still enforceable:
(a) if any amount owing to TRSN by the Client is not recoverable from the Client for any reason at all;
(b) if TRSN grants any time, release or other concession to the Client or the Guarantor;
(c) in the event of death, incapacity, administration, bankruptcy or any form of insolvency of the Client or the Guarantor; and
(d) if the Guarantor ceases to be a director, officer, employee or to be involved with the Client or if the status of the Client changes at all.
14.9 Avoided payment deemed not to have occurred: In the event that any payment made by the Client to TRSN is, or becomes, avoided by any statutory provision otherwise (in other words, if TRSN has to pay the payment back to the Client or back to the Client’s receiver or liquidator, for example), the Guarantor agrees that his or her liability under this Personal Guarantee and Indemnity will not have been discharged due to that payment, and in the event of any payment being or becoming avoided then the Guarantor expressly agrees and declares that TRSN will be immediately restored to the rights, and the Guarantor will be immediately restored to the obligations, that each would have had if such payment had not been made.
14.10 Severability: The Guarantor agrees that, in the event that any provision in this Personal Guarantee and Indemnity is invalid, void, illegal or unenforceable, that provision shall be considered to be severed from the Personal Guarantee and Indemnity and the validity, existence, legality or enforceability of the remaining provisions shall not be affected, prejudiced or impaired by such severance.
14.11 Guarantor’s acknowledgement of understanding: By signing the personal guarantee and indemnity section of the application for a Commercial Credit Account with TRSN or of any other contract or agreement with TRSN, the Guarantor acknowledges that he or she:
(a) fully understands the effect of the Personal Guarantee and Indemnity;
(b) has been given full and unrestricted opportunity to seek legal advice as to the nature and effect of the Personal Guarantee and Indemnity and his or her obligations pursuant to it; and
(c) that he or she freely elected to sign it.
14.12 Jurisdiction: The Guarantor expressly submits to the exclusive jurisdiction of the Courts of any State in Australia that TRSN, in its sole and absolute discretion may select to commence proceedings in respect of any matter arising under this Personal Guarantee and Indemnity. The Guarantor acknowledges that such discretion as to jurisdiction is an essential term of this Personal Guarantee and Indemnity and is material and fundamental to TRSN’s decision to provide credit to the Client.
14.13 Guarantor is deemed to have signed a deed: By signing the personal guarantee and indemnity section of the Commercial Credit Application with TRSN or of any other contract or agreement with TRSN, in front of a witness, and by delivering the credit application to the Client to deliver to TRSN or by delivering the credit application to TRSN directly, the Guarantor is deemed to have signed the Personal Guarantee and Indemnity in the form of a deed.
15.1 Jurisdiction: These T&Cs are governed by the laws of the state or territory in which the TRSN office that the Client is dealing with is located, and each party submits to the exclusive jurisdiction of that relevant state or territory and the Courts of Appeal therefrom. Where Client is applying for a national Campaign or where there is any doubt then the relevant jurisdiction will be New South Wales.
15.2 Severability: If any provision of these T&Cs is held illegal or unenforceable, then such illegality or unenforceability shall not affect the remaining provisions of these T&Cs, which shall remain in full force and effect.
15.3 Amendment: TRSN may amend these T&Cs at any time in its sole discretion. The amendment(s) will be deemed to apply and the Client will be deemed to be notified when the amended T&Cs are published by TRSN, provided that:
(a) such amended T&Cs will not affect existing Advertising; and
(b) TRSN may agree in writing with the Client after publication of the amended T&Cs that the amendment will not apply to specific ongoing Campaigns.
15.4 Assignment: TRSN may sell, assign, declare a trust over or otherwise deal with its rights under T&Cs without being required to obtain the Client’s consent.
15.5 Confidentiality: All information supplied by TRSN to the Client in relation to finances and affairs, media locations, contracts, pricing, methods of business and any other information which is designated confidential by TRSN or ought reasonably be regarded as confidential is confidential to TRSN and the Client must maintain and ensure that its officers, employees, contractors and consultants maintain strict confidentiality in respect of such confidential information.
15.6 No waiver: If at any time TRSN does not enforce any of these T&Cs or grants the Client time or other indulgence, TRSN shall not be construed as having waived that term or condition or its right to later enforce that or any other term or condition.
Updated 1 October 2020