SuperAPI

Advertising Terms

Super API Advertising Terms

SuperAPI Standard Terms of Online Advertising

Updated July 2023

These are the standard terms and conditions for online advertising (‘Standard Terms’) entered into between the Supplier (as identified in the ‘Property’ column in the Insertion Order) and the Advertiser and/or Agency (‘you’).

The Supplier will advertise your products and services online as set out in these Standard Terms and the Insertion Order.

In this Agreement, ‘Supplier’ is one or more of the following properties as identified in the ‘Property’ column in the Media Booking Agreement or Insertion Order (IO):

A. SuperAPI, identified in the IO as ‘SuperAPI’;

B. SuperChoiceForm.com.au, identified in the IO as ‘SCF’; or

C. Xonboard, identified in the IO as ‘XO’.

1. Agreement

1.1. To enter into an agreement with the Supplier, you must provide an insertion order (‘Insertion Order’ or ‘IO’) that is signed or approved by you to the Supplier.

1.2. If the Supplier notifies you of acceptance of your Insertion Order, an agreement will be formed (‘Agreement’) between you and the Supplier, comprising:

1.2.1. the Insertion Order that was signed or approved by you;

1.2.2. any Schedules or Annexures that are attached to the Insertion Order; and

1.2.3. these Standard 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 the Advertiser’s link from the Property.  

2.1.2. ‘Advertiser’ (also referred to as ‘You’) is the entity described as such in the IO, if applicable.

2.1.3. ‘Agency’ (also referred to as ‘You’) is the entity described as such in the IO, if applicable.

2.1.4. ‘Budget Cap’ means the maximum Fees payable by you to the Supplier pursuant to this Agreement, unless otherwise agreed by the parties in accordance with clause 14.2.

2.1.5. ‘Business Day’ means a day on which banks are open for business in Brisbane, Queensland, excluding Saturdays, Sundays and gazetted public holidays.

2.1.6. ‘Business Hours’ mean the hours between 9.00am and 5.00pm Brisbane time on any Business Day.

2.1.7. ‘SuperAPI’ means Super Simple Super Group Pty Ltd trading as SuperAPI ("SuperAPI") (ACN 661 298 960), and its related bodies corporate as defined in section 50 of the Corporations Act 2001.

2.1.8. ‘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).

2.1.9. ‘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.

2.1.10. ‘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.

2.1.11. ‘Continuing Term’ is defined in clause 3.3.

2.1.12. ‘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 you have provided for the Advertiser’s customer service centre.

2.1.13. ‘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.

2.1.14. ‘Cost Model’ means any of the following as set out in the IO or as otherwise described in the IO:

(1) ‘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.

(2) ‘CPAA’ or ‘Cost per Approved Application’ means the cost that is payable each time:

(a) a unique User applies for a product or service; and

(b) that User’s application for such product or service is accepted by you, the Advertiser or the issuer of the product or service, as the case may be.

(3) ‘CPC’ or ‘Cost Per Click’ means the cost that is payable each time a User clicks on the Advertisement to be taken to your Landing Page.

(4) ‘CPL’ or ‘Cost Per Lead’ means the cost that is payable each time a unique User submits to you or the Advertiser the personal details fields including their name and contact details on either your 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.

(5) ‘CPM’ or ‘Cost per thousand’ means the cost that is payable for every thousand impressions of your Advertisement.

(6) ‘CPQ’ or ‘Cost per Quote’ means the cost that is payable each time a User completes the required fields either on your Widget Advertisement or on your site via a link from the Advertisement to complete a quote.

(7) ‘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.

(8) ‘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.

(9) ‘Revenue Share’, ‘Rev Share’, ‘SOR’, or ‘Share of Revenue’ represents the percentage of total revenue payable as a percentage of the value of the completed sale as specified in the IO.

(10) Marketing Qualified Lead (MQL) means a lead which has been qualified as a member “switch” event and/or member “join” event identified via agreed measures between the parties as specified in the IO.

(11) Media Booking Agreement (MBA) means the marketing agreement between You and Us which authorises us to arrange for advertising placements to be made on Our properties as specified in the IO.

(12) Service Level Agreement (SLA) means the terms of this Service Description and Service Level Agreement as specified in the IO.

2.1.15. ‘End Date’ has the meaning given to it in the IO.

2.1.16. ‘Fees’ means the fees payable by you, calculated in accordance with the relevant Cost Model, which do not include any interest payable under clause 4 or GST.

2.1.17. ‘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.

2.1.18. ‘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.

2.1.19. ‘Initial Term’ means the period that starts on the Start Date and ends on the End Date.

2.1.20. ‘GST’ means the goods and services tax imposed under the GST Law.

2.1.21. ‘GST Law’ means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and related Acts of the Commonwealth of Australia.

2.1.22. ‘Landing Page’ means a single web page of the Advertiser that appears in response to a User clicking on an Advertisement.

2.1.23. ‘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 SuperAPI is authorised to place advertising.

2.1.24. Retail Product Distribution Conduct has the meaning prescribed in the Corporations Act 2001 (Cth).

2.1.25. ‘Services” means the services provided by the Supplier pursuant to this Agreement including the display of the Advertisements on the Properties and the sourcing of Leads, as set out in the IO.

2.1.26. ‘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.

2.1.27. ‘Start Date’ has the meaning given to it in the IO.

2.1.28. ‘Supplier Trade Mark’ means the registered and unregistered trade marks owned by any member of the SuperAPI, and includes the SuperAPI name, the SuperAPI logos, the SuperChoiceForm name, the SuperChoiceForm logos, the Xonboard name and the Xonboard logos.

2.1.29. ‘Term’ is defined in clause 3.1.

2.1.30. ‘User’ means a user of a Property who may interact with Advertisements.

2.1.31. ‘Widget’ means an interactive display or banner that enables a User to insert information, and obtain a dynamic response from you.

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 Contract 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 you 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 you receive the written notice.  If you do not agree to the amendment, then you may notify the Supplier within 20 Business Days after the date you receive 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 You must pay the Fees to the Supplier.

4.2. The Fees will be billed to you at the rates set out in the IO plus GST.

4.3. If the Supplier property is SuperAPI, SCF, or Xonboard,  SuperAPI will render invoices and is authorised to render invoices and collect payment as agent for property.

4.4. You must pay the Fees within fourteen days after the date of the Supplier’s invoice. The Supplier currently invoices monthly but may alter the frequency of invoices or render an interim invoice.

4.5. You agree to pay to the Supplier the Fixed Budget or Minimum Spend if set out in the IO, if applicable, regardless of actual performance under the relevant Cost Model.

4.6. If you do 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 you;

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 Macquarie Bank published rate for overdrafts of $100,000 and over at the relevant time, calculated on a monthly basis; and

4.6.5. recover from you any costs the Supplier incurs in obtaining payment of its Fees.

4.7. All payments made by you are non-refundable.

4.8. You have no right of set-off.

4.9. You agree 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. You must provide the Advertisement to the Supplier or any person nominated by the Supplier at least two Business Days before the Start Date, and in accordance with this Agreement and any reasonable requirement that the Supplier notifies to you from time to time.  The Supplier is under no obligation to display the Advertisement until you comply with this clause.

6.2. You must provide the Advertisement so that the Advertisement complies with any description and specifications contained in the IO and you must also provide all associated materials (including any combination of text, links and images, whether in static or Widget format).

6.3. If you wish to make a change to the form of Advertisement, you 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 SuperAPI: http://www.superapi.com.au/advertisingterms), and as updated and notified by the Supplier to you 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 SuperAPI Property) to that specified in the IO.

6.6. You are responsible for the content of the Advertisement.  The Supplier has no obligation to check the Advertisement.  In the event that you notify 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 you request that the Advertisement be temporarily removed or subsequently reinstated, the Supplier will do so as soon as reasonably practicable after receiving written notice from you.  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 you are using Click-to-Call services, you agree 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. you 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 you in the insertion order the Phone Number must be answered by the interactive voice response (‘IVR’) technology that you have provided to the Supplier on or before entering into this agreement;

6.8.6. you must provide notice in writing to the Supplier of any changes proposed to be made to your 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 your IVR;

6.8.7. you must maintain the Phone Number at all times and notify the Supplier in writing of any fault with the Phone Number as soon as you become aware of the issue and, if required provide the Supplier with a replacement number within 24 hours of notification;

6.8.8. you will be responsible for the recording of calls that you require 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 your Phone Number via the Click to Call service;

6.8.10. you 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

7.1. You must provide the Supplier with monthly reporting (‘Monthly Reporting Requirement’) which calculates the Fees based on the Cost Model.

7.2. The Monthly Reporting Requirement must be completed by you and provided in the format specified by the Supplier.

7.3. The Supplier may conduct an audit of your 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 you must comply with this request.  The Supplier may engage a third party to assist the Supplier to conduct the audit.  You must cooperate with the Supplier and any third party in respect to the conduct of the audit.  You only need to supply the data relating to the calculation of the Monthly Reporting Requirement.  If the audit reveals any underpayment, you 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.

7.4. If required by the Supplier, you must:

7.4.1. insert tracking tags on your website or designated URLs, as applicable in order to accurately calculate the Fees (if applicable to the Cost Model); and

7.4.2. ensure that your 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

7.5. You agree that the Supplier may insert its own pixel tracker or similar into your Advertisement in order to monitor the Monthly Reporting Requirement.

7.6. Notwithstanding anything contained in this clause, for the Click-to-Call service, monthly reporting will be provided by the Supplier to you (‘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.

7.7. Clause 7.3 will not apply to the Click-to-Call service.

8. Your Obligations

8.1. You must not provide an Advertisement which:

8.1.1. is contrary to law, contrary to common community standards or is not in good taste;

8.1.2. displays any Supplier Trade Mark or any other SuperAPI representation, unless you are authorised under a SuperAPI trademark licence agreement permitting you to use the Supplier Trade Mark in the Advertisement or unless clause 11.3 applies;

8.1.3. defames any person;

8.1.4. contains any negligent misstatement, is misleading or deceptive, or is likely to mislead or deceive;

8.1.5. infringes the intellectual property rights of any person;

8.1.6. is contrary to any Australian advertising code, including the advertising codes administered by Ad Standards;

8.1.7. 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;

8.1.8. in the Supplier’s reasonable opinion, breaches or is likely to breach any law, regulation or ASIC regulatory guide; or

8.1.9. links to or frames a website that includes material specified in clauses 8.1.1 to 8.1.8 inclusive.

8.2. The Supplier may without prior consultation or notice to you, remove any Advertisement if the Supplier reasonably believes the publication of the Advertisement would be in breach of clause 8.1.  If the Supplier removes the Advertisement under this clause, you will be liable for the full amount of the Supplier’s Fees payable under this Agreement.

8.3. You represent and warrant to the Supplier that:

8.3.1. You are authorised to make each Advertisement, its content and subject matter available on the Property.

8.3.2. If required by law to do so, you hold an Australian Financial Services Licence and/or an Australian Credit License (as applicable) or that you hold an authorization under one of those, and that you operate your business and deal with Users in accordance with the conditions of such license or authorisation.

8.3.3. All Advertisements you lodge for publication with the Supplier comply with relevant 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 SuperAPI, including their officers, employees or agents.

8.3.4. Unless expressly required or permitted by this Agreement, neither you (nor any research vendor that you engage 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.

8.3.5. You must not use or copy any information or reports that the Supplier may supply to you, other than with the Supplier’s express written permission or for the purpose of evaluating the performance of the Services.  You must not provide such information or reports to any third party, other than with the Supplier’s express written permission.

9. Our Obligations

9.1. During the term of this Agreement, the Supplier will use reasonable commercial endeavours to perform the Services in accordance with the IO.

9.2. The Supplier may publish other advertisements, including advertisements of your competitors.  The Supplier may rotate advertisements and select which advertisements to display at any given time.  Your 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.

9.3. SuperAPI 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. If applicable, SuperAPI will conduct all of their distribution activities under their own respective Australian Financial Services Licence/Australian Credit Licence and are not authorised by you under your licence. By entering into this Agreement you authorise SuperAPI to distribute your products.

10. Exclusion of Warranties

10.1. The Supplier makes no representation or warranty to you, to the Advertiser, to the Agent, or to any other person, unless implied by law or expressly set out in this Agreement.

10.2. The Supplier makes no representation or warranty to you, to the Advertiser, to the Agent, or to any other person, in relation to the number of visitors to the Property or the number of impressions at your website or other designated URL unless expressly set out in writing in the IO.

10.3. 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 your Widget, or such other delivery metric.

11. Intellectual Property

11.1. You retain all copyright and intellectual property in the Advertisement.  You grant the Supplier a license to display the Advertisement, transmit the Advertisement to the public, copy the Advertisement and otherwise use the Advertisement as required by this Agreement.

11.2. You represent that you have authority to grant the license set out above.

11.3. You have no right to use, and you agree not to use, any Supplier Trade Mark on your website or in any advertising or promotions, unless you are authorised under a SuperAPI trademark licence agreement permitting you to use the Supplier Trade Mark in the Advertisement or the Supplier has given you written permission to do so.  Any permission is subject to the following conditions, with which you agree to comply:

11.3.1. You may only use the Supplier Trade Mark that is approved for use in the form as supplied by the Supplier to you for the particular purpose as approved in writing by the Supplier.

11.3.2. You must not claim or imply that SuperAPI, SCF, or XO, or any related entity of the Supplier endorses, recommends or approves you or your products.

11.3.3. The Supplier Trade Mark must have a working back-link to the relevant Supplier website.

11.3.4. You may only use the Supplier Trade Mark for the lesser of the Term or the period of the written approval.  After this period ends, you must remove the Supplier Trade Mark from your website or advertising, unless permitted to use it by another written agreement with Supplier.

11.3.5. 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.

11.3.6. You 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.

11.3.7. You may only use a tag line in association with the Supplier Trade Mark that has been approved by the Supplier.

11.3.8. Your use of the Supplier Trade Mark must not be misleading.

11.3.9. The Supplier Trade Mark must be no smaller or larger than any trademarks of competitors of the Supplier that you use.

11.3.10. In addition to the above, you must comply with all brand guidelines and any directions as to use of the Supplier Trade Mark as provided to you by the Supplier from time to time.

11.3.11. All goodwill in the Supplier Trade Mark and its use ensures to the Supplier.

12. Limitation of Liability

12.1. Without limiting any of the provisions of this Agreement or any other rights of the Supplier, you indemnify the Supplier, each member of the Super Simple Super Group Pty Ltd, 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 SuperAPI arising out of the breach of this Agreement or any warranty in this Agreement by you, your officers, employees, contractors or agents.

12.2. To the full extent allowable, the Supplier:

12.2.1. excludes all conditions and warranties implied into the Agreement;

12.2.2. 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;

12.2.3. excludes Consequential Loss; and

12.2.4. 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 you under the Agreement or $10,000, whichever is the greater.

12.3. If you notice an issue with the display (or lack of display) of your Advertisement, you must notify the Supplier as soon as possible. If you do not notify the Supplier of such an issue, the Supplier will not be liable to you for any losses, costs, expenses or damages suffered or incurred by you arising from the Supplier’s failure to publish an Advertisement in accordance with your request.

12.4. Transmission of data over the internet may be subject to corruption, error, interruption and delay.  The Supplier will not be liable to you for or relating to:

12.4.1. any failure of the server hosting the Advertisement or the Property; or

12.4.2. any failure by the Supplier to supply Services under the Agreement due to any of the following:

(1) a Force Majeure Event;

(2) hacking, denial of service attacks, viruses or other defects, or unauthorized or illegal use of or interference with the internet-based services used to display the Advertisements;

(3) a failure or malfunction in relation to equipment, software or power supply at your premises or not owned by the Supplier;

(4) an action by you, your employees, contractors and agents;

(5) an action by a third party, including where the Advertisement is hosted by a third party;

(6) a failure or malfunction of an internet connection whether at your or the Supplier’s site;

(7) a failure or malfunction at a cloud service provider; or

(8) scheduled maintenance by the Supplier.

12.5. The limitation of liability in clause 12.2.4 does not apply in respect of:

12.5.1. personal injury, death or damage to physical property; or

12.5.2. fraud or willful misconduct by the Supplier.

12.6. This clause survives termination or expiry of this Agreement.

13. Termination

13.1. The Supplier may terminate the Agreement under clause 4.6.  The Supplier may also terminate this agreement immediately by giving you notice in writing, if any of the following occurs:

13.1.1. the Supplier is unable for any reason to place the Advertisements as required by the Agreement;

13.1.2. you do not pay the Fees when due in breach of this Agreement;

13.1.3. you otherwise breach the Agreement and fail to rectify the breach after the Supplier has given you five Business Days’ notice requiring rectification;

13.1.4. you become or initiate proceedings towards doing any of the following; becoming insolvent, appointing a receiver or manager over your assets, entering into bankruptcy, administration, liquidation, receivership or composition with creditors;

13.1.5. you sue or threaten to sue any member of the SuperAPI;

13.1.6. You undergo a Change of Control without the Supplier’s prior written consent.

13.2. You may terminate the Agreement if the Supplier breaches the Agreement in a material respect and fails to rectify the breach after you have given the Supplier ten Business Days’ notice requiring rectification.

13.3. The agreement may also be terminated during the Continuing Term as set out in clauses 3.4 and 3.5.

13.4. Termination of this Agreement for any reason does not relieve the parties of obligations and liabilities arising prior to the date of termination.

13.5. This clause sets out the sole grounds of termination of this Agreement.

14. General

14.1. Subject to clause 14.2, this Agreement can only be varied in writing signed by both parties.

14.2. Budget Caps may be varied by email agreement between the parties.

14.3. This Agreement is governed by the laws of Queensland, Australia.  Each party submits to the jurisdiction of the courts of Queensland.

14.4. It is a condition of this Agreement that you agree not to:

14.4.1. bid on any Supplier Trade Mark, or any brand name or and trade name of any member of the SuperAPI, including misspellings thereof, in Search Engine Marketing (‘SEM’) advertising or copy; or

14.4.2. use or register any Supplier Trade Mark, or any brand name or and trade name of any member of the SuperAPI, including misspellings thereof, in any display URL, domain name, subdomain, username, hashtag, trademark or business name.

14.5. You agree to add SuperChoiceForm, SuperAPI, and Xonboard as negative phrase keywords in all PPC campaigns you run during the Term and for 3 years thereafter 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.

14.6. 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 20 employees.

14.7. If any term of the Agreement becomes unenforceable at law, the validity and enforceability of the remainder will not be affected.

14.8. You are a contractor and will not represent yourself as being an agent of the Supplier nor will you by virtue of this Agreement become an agent of the Supplier.  The Supplier is not your partner, agent, employer, trustee or fiduciary.

15. Confidentiality

15.1. 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:

15.1.1. to the extent necessary to perform or enforce this Agreement;

15.1.2. to obtain legal advice in relation to matters arising out of this Agreement;

15.1.3. as authorised or required by law, or the Australian Securities Investment Commission; or

15.1.4. to comply with the rules of any stock exchange on which either party may be listed.

15.2. Each party must return the other party’s Confidential Information upon request or termination of this Agreement, whichever is earlier.

15.3. Each party must ensure that its employees and contractors comply with those obligations of confidentiality as if they were a party to this Agreement.

15.4. This clause survives termination or expiry of this Agreement for a period of three years thereafter.

15.5. The IO is Confidential Information of the Supplier.

15.6. The following information is not Confidential Information:

15.6.1. 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

15.6.2. 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

15.6.3. 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

15.6.4. Was learnt from a third party who was not under a duty of confidence regarding that information.

16. Dispute Resolution

16.1. Where either party considers a dispute has arisen in connection with this Agreement, the following process must be followed:

16.1.1. The party who considers that there is a dispute must first give written notice of the particulars of the dispute to the other party.

16.1.2. 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.

16.1.3. 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.

16.1.4. 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.

16.1.5. Notwithstanding the existence of a dispute each party shall continue to perform its obligations under this Agreement.

16.1.6. Nothing in this clause shall prevent a party from seeking urgent equitable relief before an appropriate court.

17. Notices

17.1. Notice will be deemed given:

17.1.1. 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;

17.1.2. in the case of posting, three Business Days after dispatch; or

17.1.3. immediately in the case of an email transmission, unless the sender receives an ‘undeliverable’ notice.

17.2. 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.

17.3. Notices must not be given by fax, and if sent by fax, will have no effect.

17.4. Notices must be sent to the addresses set out in the IO, unless another address provided in writing.

18. Agency Terms

18.1. Without limiting any other provision of this Agreement, if you are an Agency, you represent and warrant to the Supplier the following:

18.1.1. you have written authorisation from the Advertiser to enter into this Agreement on the Advertiser’s behalf; and

18.1.2. 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;

18.1.3. the content of the Advertisement has been provided by the Advertiser to the Agency for placement in accordance with this Agreement;

18.1.4. 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:

(1) any breach by the Advertiser and/or its related bodies corporate of any applicable law or regulation; and

(2) 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 SuperAPI Products.

18.1.5. that by your 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.