Sections outline

  1. General
  2. Agreed Terms
  3. Creative Content: Intellectual property
  4. Publisher Rights and Discretions
  5. Data Collection & Use  
  6. Warranty
  7. Indemnity
  8. Payment

1. General

    1. These Advertising Terms and Conditions apply to every booking made with Pivotus by any means (including through use of an insertion order, booking form or over the phone) by an Advertiser for the publication in or distribution of an Advertisement with, on or in any print or digital property.  
    2. Where an Advertiser is an agency, and places an Advertisement for publication under these Advertising Terms and Conditions, it agrees to these Advertising Terms and Conditions as principal and as agent for its client
    3. Pivotus has the right to amend these conditions at any time. Notification of amendment shall 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. 
    4. Every Advertisement must comply with and is subject to these Advertising Terms and Conditions as well as other relevant terms (as available at www.Pivotus.com.au), and additional relevant terms as published or notified by the relevant Publisher (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 in order to eradicate any inconsistency:
      1. these terms,
      2. any terms or conditions separately agreed in writing including any Retention of Services Agreements
      3. any terms or conditions published or notified by a relevant Publisher (including as to creative requirements and technical specifications) 

 

2. Agreed Terms

    • Advertisement includes any material in any form lodged for publication or other distribution as an Advertisement and content or information relating to published Advertisements
    • Advertiser means each Advertiser and or advertising agency who seeks to have Pivotus publish or otherwise distribute an Advertisement.
    • Advertising Platform: A digital platform (including a website, a mobile optimized version of a website and an application) operated by Pivotus or with which Pivotus is associated, as a means of running Advertising.
    • Audience Data: predetermined, defined audience segments accessible through advertising platforms based on any data source, including first, second or third party data.  
    • Campaign: Pre-defined period during which an Advertisement or set of Advertisements run.
    • Cookie: A small file saved on people’s computers to help store preferences and other information that’s used on web pages that they visit.
    • Creative Content: multimedia images, graphics, texts, data, links or other objects provided in order to produce an Advertisement.
    • Data Management Platform / DMP: A software platform which provides a range of features relating to data collection, storage and management.
    • Data Service Agreement: A separate document outlining specific Terms and Conditions of the handling and storage of first-party data.
    • Device Identifier / Device ID:  A distinctive number associated with a smartphone or similar handheld device, used in a similar way to Cookies in mobile app environments.
    • First-Party Data: Data which is owned or created by the Advertiser, often but not always containing PI.
    • Landing Page: The specific page on the Advertiser website which users arrive on after clicking on an Advertisement.  
    • Personal Information / PI: means, for the purpose of the Privacy Act 1988 (Cth) as amended by the Privacy Amendment (Enhancing Privacy Protection) Act 2012, information or an opinion about an identified individual, or an individual who is reasonably identifiable, whether the information or opinion is true or not and whether the information or opinion is recorded in a material form or not, regardless of whether such information is provided by the Advertiser.
    • Pivotus – Jane Fewings Media Pty Ltd t/a Pivotus
    • Retention of Services Agreement refers to a contract drawn up between Pivotus and the Advertiser facilitating ongoing engagement.
    • Third-Party Data: Data which is owned or created by another party, and accessed via direct contract with that party, or through the use of an Advertising Platform or Data Management Platform (DMP).

3. Creative Content: Intellectual property

    1. The Advertiser shall retain all its preexisting rights, titles and interests in and to any multimedia images, graphics, texts, data, links or other objects created and/or provided by the Advertiser to Pivotus needed in order to run the Campaign (collectively, the “Creative Content”). 
    2. The Advertiser hereby grants to Pivotus and its third party publishers and/or partners, during the term of the Campaign and for a period following the term of the Campaign which may be considered reasonable, a non-exclusive, transferable, worldwide, royalty-free, revocable licence to use, market, display, copy, transmit, distribute and promote the Creative Content for the purposes of the Campaign and any related purposes.
    3. In the event that Pivotus, upon request by the Advertiser, develops any Creative Content for any Campaign, the Advertiser agrees to only use such Creative for placement by Pivotus into Pivotus’ publishing network and further agrees not to use any such Creative for placement with any other publishers and/or publishing networks, unless such use has received Pivotus’s prior written approval.  

 

4. Publisher Rights and Discretions

    1.  Every Advertisement submitted for publication is subject to Advertising Platform and/or Publisher’s approval, which is independent of any approval given by Pivotus. In addition to Platform and Publisher requirements, Pivotus may at its absolute discretion 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); or
      3. head an Advertisement ‘Advertisement’.
    2. Pivotus owes no duty to Advertiser to review, approve or amend any Advertisement and no review, approval or amendment by Pivotus will affect Advertiser’s responsibility for the content of the Advertisement.
    3. Pivotus 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 Pivotus perceives it to be:
      1. in breach of any law of Australia or of any state (whether civil or criminal),
      2. in breach of any pre-existing publishing agreement entered into by Pivotus,
      3. Defamatory,
      4. in contempt of court or parliament,
      5. otherwise likely to attract legal proceedings of any kind, 
      6. offensive.   Should Pivotus so amend the Advertisement, the agreed price shall not be reduced.

 

5. Data Collection & Use  

    1. General Data Terms & Conditions:
      1. The Advertiser acknowledges that, except as otherwise agreed by the parties in writing, Pivotus will host the Campaign and provide any related tracking solution, which solution shall be, and serve as, the exclusive tracking solution for monitoring the performance of the CampaignPivotus shall have the right to place tracking pixels on the Advertiser’s website and App as may be required to measure web page’s activity, track and/or measure user responses to the Campaign(s) and provide estimated live statistics for Pivotus’s affiliates and publishers. If the Advertiser wishes to use an alternative tracking system, full technical specifications of any such proposed tracking system and its delivery methods must be provided to, and approved in writing by, Pivotus before any advertising or ad-serving will be provided. Regardless of the tracking solution used, any data collected by and through the tracking solution will be jointly owned by the parties. The Client must not remove or otherwise modify the tracking pixels at any time during the Campaign without the prior written approval of Pivotus
      2. The existence of tracking tags on the Advertiser’s website such as those required to run a Campaign with Pivotus must be disclosed to users of the website by way of a Cookie Policy Statement or Device Identifier Statement for App-based campaigns (which may form part of the Privacy Policy).  Any and all Campaign Landing Pages on the Advertiser Website must also link to your Privacy Policy, which must contain:
        1.  An appropriate description of how the Advertiser is using remarketing or similar audiences to advertise online.
        2. A message about how third-party vendors, (for example Google), show the Advertiser’s ads on sites across the Internet.
        3. A message about how third-party vendors use Cookies and/or device identifiers to serve ads based on a user’s past visits to the Advertiser’s website or use of the Advertiser’s app.
        4. Information about how the Advertiser’s visitors can opt out of a third-party vendor’s use of Cookies by visiting the Network Advertising Initiative opt-out page or control the use of device identifiers by using their device’s settings.
      3. The Advertiser acknowledges and agrees that
        1. It uses Data at it’s own risk and,
        2. To the extent permitted by law, Pivotus excludes all warranties, express or implied, including without limitation warranties of merchantability, fitness for a particular use, safety or quality, in relation to the Data.  Pivotus makes no representation and provides no warranty that the use of the Data by the Advertiser will not infringe any intellectual property rights of any other person.
        3. The Advertiser is responsible for all liability arising out of or in connection with its use of Data, including its use of any Advertising Platform in order to serve advertising using Data.
      4. Privacy:  If the Advertiser is provided with, or has access to, Personal Information the Advertiser must:
        1. Comply with the Privacy Act, and
        2. Notify Pivotus in writing immediately after becoming aware of an actual or suspected data breach and comply with any directions issued by Pivotus in connection with the data breach.
      5. The Advertiser agrees to comply with any additional instructions, prohibitions or limitations issued by Pivotus in relation to the use of Audience Data.
    2. First-Party Data Collection – PI: Advertisers can gather information, including Personal Information (PI), directly entered by users into rich media ads or on landing pages. In doing so, the Advertiser accepts the following specific Terms:
      1. PI may not under any circumstances be correlated or combined with the DSP Cookie or the Cookie from any advertising network or publisher. 
      2. User data must be collected, used, processed and stored in accordance with applicable laws and regulations, including but not limited to, the Privacy Act 1988 (Cth) and the European Union General Data Protection Regulation (the “GDPR”)  This includes users’ personal data and the use of Cookies and tracking.
      3. If Advertisers include any fields that collect personal information in the ad, the ad must contain a link to the Advertiser’s privacy policy that includes language that identifies and outlines the particular service they are using. This includes ‘tell a friend’ or data capture services and the collection and use of the data related to these services. 
      4. Advertisers must state the purpose for the information being collected. 
      5. All pages within a client’s domain that collect PI must be secure ie. https:// 
      6. A user must initiate the input option for PI data and explicitly submit any Update data by their own voluntary choice. 
      7. Advertisers cannot deceive users into providing personal information without users’ knowledge, under false pretence, or to companies who resell, trade, barter or otherwise misuse that personal information.
    3. Third-Party Data Use: Pivotus accesses Audience Data from a variety of sources including Advertising Platforms and specialist Data providers on behalf of AdvertisersThis data is not generated, guaranteed or owned by Pivotus.   In utilising  Audience Data in order to target audiences using Advertising Platforms the Advertiser accepts the following specific Terms:
      1. Pivotus does not warrant the accuracy or completeness of Data utilised in the running of advertising Campaigns
      2. The Advertiser must not, and must not ask Pivotus to:
        1. Copy, reproduce or re-purpose any branded or third-party data, including but not limited to that of providers such as flybuys, TEGA and others
        2. Use provided data to re-identify any individual to whom that information relates, whether from that information itself or by combination with any other information that might be or become available to the Advertiser,
        3. Use provided data for purposes of segmenting, re-targeting, creating or supplementing user profiles or inventory profiles,
        4. Pass (or otherwise make available) Personal Information, or otherwise associate a Cookie, web beacon, or other mechanism with Personal Information
        5. Combine Audience Data with Personal Information
    4. Data Privacy Obligations: Pivotus will not handle any First Party Data, other than as strictly required for the performance of the service and in accordance with advertiser’s written instructions by way of a separate Data Service Agreement.  Where Pivotus handles any advertiser’s First Party Data in the course of providing the services under such an agreement, Pivotus shall: 
      1. Comply with the Privacy Legislation with respect to the handling First Party Data
      2. Ensure that the handling of advertiser’s First Party Data is consistent with the advertiser’s privacy policy as updated from time to time
      3. Not disclose any First Party Data to, or authorise or permit the handling of any First Party Data by, any other person without the prior written consent of the advertiser

 

6. Warranty

    1. The Advertiser represents, warrants and undertakes that the Advertising Content, including provided text and images for assimilation into an Advertisement, and the Landing page:
      1. does not infringe the Intellectual Property Rights of any third party;
      2. complies with all relevant Laws and regulations and that its Display will not give rise to any claims or liabilities to Pivotus; and
      3. Advertising material must not infringe the Competition and Consumer Act 2010 (Cth) or the Fair Trading Act 1986 (NZ) or the Therapeutic Goods ACT 1989 (Cth), the Therapeutic Goods Regulations, the Therapeutic Goods Advertising Code or similar laws, regulations and codes operating in Australia or New Zealand.
      4. Does not breach any other laws relating to defamation, consumer protection, gaming and lotteries, and sale of goods legislation of the states and territories or infringes the rights of any person.
      5. Complies with the Guidelines outlined within our Creative Specs [LINK]
    2. The 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.
    3. Where an Advertiser provides Pivotus with access to a database or list of customers containing account holder and Personal Information (including but not limited to names, addresses, email addresses, mobile numbers, fixed line numbers) to whom emails, SMS, MMS or other forms of electronic messages will be sent using any part of or as a result of the Campaign, the Advertiser warrants that it:
      1. complies with the Do Not Call Register Act 2006 (Cth);
      2. complies with the Spam Act 2003 (Cth), including that all the account holders consent to the receipt of communication from the Advertiser (or the Advertiser’s own client), the communication sent will clearly and accurately identify the Advertiser as the organisation who authorised the sending of the communication, and the communication contains a clear and conspicuous functional unsubscribe facility and a statement that advises the recipient that the recipient may use the unsubscribe facility to send an unsubscribe message to the Advertiser; and
      3. complies with the Privacy Act 1988 (Cth) and the European Union General Data Protection Regulation (the “GDPR”).
    4. Pivotus represents, warrants and undertakes that, in relation to any Personal Information (including its use, disclosure, collection, handling or storage) provided to Pivotus by the Advertiser, it will: 
      1. use such Personal Information to the extent and in the manner agreed between the Advertiser and Pivotus
      2. comply with all privacy laws, including the Privacy Act 1988 (Cth), as amended by the Privacy Amendment (Enhancing Privacy Protection) Act 2012, Part 13 of the Telecommunications Act 1997 (Cth) and any applicable State or Territory privacy legislation; 
      3. take all steps to protect all Personal Information in its possession or control against misuse and loss and from unauthorised access, modification or disclosure.
    5. Pivotus further represents, warrants and undertakes that: 
      1. its Personnel who collect, use, disclose, store or handle Personal Information are aware of Pivotus’ obligations under these Advertising Advertising Terms and Conditions in relation to such activities or practices; and 
      2. it must immediately notify the Advertiser if Pivotus becomes aware of a breach or possible breach of its obligations in relation to the collection, use, disclosure, storage or handling of Personal Information under these Advertising Advertising Terms and Conditions.

 

7. Indemnity

    1. Data Usage: The Advertiser will indemnify, defend, and hold Pivotus and its directors, employees and agents harmless from and against any losses, costs or expenses and any damages, claims or proceedings that may be made against Pivotus in connection with use of Data.
    2. Publication: The Advertiser indemnifies Pivotus its directors, employees and agents against all claims, demands, proceedings, costs (including solicitors and own client costs), expenses, damages awards, judgments and any other liability whatsoever arising wholly or partially, directly or indirectly, from or in connection with the publication of the Advertisement. In particular and without limitation, the Advertiser indemnifies Pivotus its directors, employees and agents against any claims arising from allegations that the Advertisement contains material which constitutes:
      1. defamation, libel, slander of title;
      2. infringement of copyright, trademarks or other intellectual property rights
      3. breach of trade practices/ competition, privacy or fair trading legislations; or
      4. violation of rights of privacy or confidential information.
    3. The Advertiser also indemnifies Pivotus against any claim or fine imposed by any Regulator arising directly or indirectly from any Advertising Campaign initiated and approved by the Advertiser.

 

8. Payment

    1. The Advertiser acknowledges that once a Campaign Insertion Order (IO) is signed, they are liable to pay the amounts specified including any GST, if applicable.
    2. Cancellation and early Campaign stoppage:
      1. A flat fee of $500 will be charged for Campaigns which do not commence but are cancelled less than 5 days before the scheduled start, and/or after the provision of advertising creative, unless otherwise agreed in writing.
      2. For Campaigns which commence but end prior to the agreed end date at the Advertiser’s direction, the Advertiser will be billed based on actual media delivered.  If actual delivery is equal to the full booking value, then the full amount will be invoiced.
    3. Billing Breakdown and Calculation:
      1. Unless otherwise arranged in writing, Advertisers are invoiced pro-rata of the total Campaign budget for the days the Campaign is active during a month.  
      2. Billing is based on Pivotus’s Buying Platforms’ reporting, which may not agree with 3rd party tracking systems.
    4. Invoices are Payable 30 days from their issue or the end of the Campaign, whichever is later.
    5. Any discounts on invoices will become null and void unless payment is received by the due date and the full amount will be due and payable. 
    6. Any amounts which are overdue for more than 60 days will be referred to a collection agency for recovery and all associated recovery costs, including reasonably incurred legal costs, will be billed to, recoverable from, and payable by, the Advertiser.