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Advertising Terms and Conditions

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Sections outline

  1. General
  2. Agreed Terms
  3. Creative Content: Intellectual property
  4. Publisher Rights and Discretions
  5. Data protection roles and responsibilities
  6. Advertiser responsibilities
  7. Pivotus responsibilities – data privacy and security
  8. Cookies, pixels and tracking technologies
  9. Third-Party Data Use
  10. Warranty
  11. Indemnity
  12. Payment

1. General

  1. These Advertising Terms and Conditions apply to every booking made with Pivotus by any means by an Advertiser for the publication in or distribution of an Advertisement with, on or in any print, broadcast 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 Advertiser.
  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/advertising-terms-and-conditions), 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:
    • these terms,
    • any terms or conditions separately agreed in writing including any Retention of Services Agreements
    • 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.
  • Advertiser Data means any personal information or other data supplied by the Advertiser, or collected by Pivotus on the Advertiser’s behalf, for the purpose of delivering the Services.
  • 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.
  • Australian Privacy Principles (APP’s): The Australian Privacy Principles (or APPs) are the cornerstone of the privacy protection framework in the Privacy Act 1988. They apply to any organisation or agency the Privacy Act covers.
  • 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 personal information and/or 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.
  • Handling personal information: means dealing with personal information in any way, including managing, collecting, holding, using or disclosing personal information.
  • 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
  • Pivotus Data means data generated by Pivotus through the delivery of the Services, including analytics outputs, aggregated insights, metadata and operational data that does not identify an individual.
  • 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 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:
    • refuse to publish or distribute any Advertisement without giving any reason (in which case, no charge to Advertiser will be incurred);
    • cancel a Campaign (in which case, no charge to Advertiser will be incurred for the unpublished portion of the Campaign); or
    • head an Advertisement ‘Advertisement’.
  2. Pivotus owes no duty to the Advertiser to review, approve or amend any Advertisement and no review, approval or amendment by Pivotus will affect the 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:
    • in breach of any law of Australia or of any state (whether civil or criminal),
    • in breach of any pre-existing publishing agreement entered into by Pivotus,
    • Defamatory,
    • in contempt of court or parliament,
    • otherwise likely to attract legal proceedings of any kind,
    • offensive.   Should Pivotus so amend the Advertisement, the agreed price shall not be reduced.

5. Data protection roles and responsibilities  

    1. Applicable Australian Privacy Laws and Guidelines:
      • the Australian Privacy Principles
      • the Privacy Act 1988 (Cth) and any subsequent amendments
      • OAIC privacy, security and tracking guidance
    2. Pivotus as Processor: Pivotus acts as a Data Processor for Advertiser Data. Pivotus will process Advertiser Data only to deliver the agreed Services, and only in accordance with the Advertiser’s written instructions.
    3. Advertiser as Controller: The Advertiser acts as the Data Controller for all Advertiser Data. The Advertiser is responsible for determining the lawful basis for collecting Advertiser Data, ensuring individuals receive appropriate privacy notices, and ensuring any required consents are obtained.
    4. Advertiser Responsibility for Collection The Advertiser is solely responsible for ensuring that Advertiser Data has been collected lawfully and in compliance with applicable privacy laws. Pivotus is not responsible for the Advertiser’s collection or handling of Advertiser Data outside the Services.
    5. Use of Third-Party Platforms and Tools Pivotus may process Advertiser Data through approved third-party platforms and tools as instructed by the Advertiser. These platforms operate as tools used to deliver the Services and are not considered recipients of Advertiser Data for the purposes of disclosure.
    6. Non-Disclosure of Advertiser Data Pivotus will not disclose or share Advertiser Data with any third party except as instructed in writing by the Advertiser or where required by law.
    7. Cross-Border Data Exposure: When providing the Service, Client data may be processed or stored outside Australia, including:
      • United States
      • European Union
      • United Kingdom
      • Singapore
      • India
      • Philippines

When our third-party providers, staff or contractors process or access data overseas, we have processes in place to review their privacy and security practices and to confirm they apply appropriate protections.

  1. Sensitive Information: The Client must not provide Client Data that is sensitive information (as defined in the Privacy Act) unless expressly agreed in writing.

6. Advertiser responsibilities

The Advertiser agrees to:

  1. Provide accurate information, instructions and timely access to systems required for Pivotus to perform the Services.
  2. Ensure all personal information shared with Pivotus is lawfully collected and adequately disclosed in the Advertiser’s privacy notices, including:
    • the use of analytics and advertising technologies
    • any transfer of data to service providers such as Pivotus
    • any overseas disclosures.
  1. Maintain an up to date APP compliant Privacy Policy that accurately reflects tracking technologies used and any cross-border disclosures.
  2. Not provide Pivotus with any sensitive information or children’s information unless:
    • explicit consent has been obtained
    • the risk has been assessed
    • Pivotus has agreed in writing to process it.
  1. Implement appropriate website privacy and consent mechanisms consistent with OAIC guidance. Please see Section 7 for more detail.
  2. Maintain access management for all Advertiser-owned systems (CRM, advertising platforms and similar).
  3. Ensure any instructions to Pivotus comply with applicable laws, platform terms and industry standards.

7. Pivotus responsibilities – data privacy and security

  1. Pivotus will only process personal information when a specific Data Service Agreement is in place.
  2. Pivotus will handle personal information in accordance with:
    • the Australian Privacy Principles
    • the Privacy Act 1988 (Cth)
    • OAIC privacy, security and tracking guidance
    • the Pivotus Privacy Policy
  1. Pivotus will take reasonable steps to secure personal information, including:
    • role-based permissions
    • encryption in transit and at rest where supported
    • secure data transfer mechanisms
    • multi-factor authentication
    • confidentiality obligations for all personnel and subcontractors
  1. Pivotus will maintain processing records describing the types of data handled, the systems used, storage locations and retention periods.
  2. Pivotus may retain and use aggregated or de-identified data to improve services, provided there is no reasonable ability to re-identify individuals or expose Advertiser-specific information.
  3. Pivotus will perform reasonable due diligence on third-party provider platforms (for example cloud hosting, adtech resellers, analytics vendors). Pivotus will take reasonable steps to ensure those providers maintain privacy obligations substantially similar to the APPs.
  4. If Pivotus becomes aware of an actual or suspected data breach affecting personal information it holds, it will promptly investigate and, where the breach is likely to cause serious harm, notify the OAIC and affected Advertisers in line with the Notifiable Data Breaches scheme.

8. Cookies, pixels and tracking technologies

  1. As part of the Services, Pivotus may implement or review tracking technologies such as analytics tags, advertising pixels, consent tools or security controls per the Advertiser’s instructions, however the Advertiser remains responsible for all legal and compliance obligations such as consent and privacy notices.
  2. Data collected through website-based tracking may be used for audience creation and targeting, and campaign performance measurement.
  3. The Advertiser is responsible for ensuring that all of its websites, apps and digital properties comply with applicable privacy, consent and tracking requirements, including:
    • providing clear and accurate notification about the use of pixels, cookies and tracking technologies on all landing pages and across the website.  This includes a link to an APP compliant Privacy Policy which accurately reflects tracking technologies used, how data is used and disclosed, and opt-out options.
    • collecting consent where required by law or platform policy
    • ensuring no sensitive data is captured by tracking technologies without explicit consent
  1. Pivotus may decline to implement tracking technologies where it reasonably believes the configuration poses  a material risk to privacy, regulatory or security obligations.

9. Third-Party Data Use

Pivotus accesses Audience Data from a variety of sources including Advertising Platforms and specialist Data providers on behalf of Advertisers.  This 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:
    • 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
    • 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,
    • use provided data for purposes of segmenting, re-targeting, creating or supplementing user profiles or inventory profiles,
    • pass (or otherwise make available) Personal Information, or otherwise associate a Cookie, web beacon, or other mechanism with Personal Information
    • combine Audience Data with Personal Information

10. 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:
    • does not infringe the Intellectual Property Rights of any third party;
    • complies with all relevant Laws and regulations and that its Display will not give rise to any claims or liabilities to Pivotus; and
    • 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 including those by the Australian Association of National Advertisers (AANA).
    • 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.
    • complies with the Guidelines outlined within our Creative Specs 
  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 Advertiser 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:
    • complies with the Privacy Act 1988 (Cth) & the Australian Privacy Principles.
    • complies with the Do Not Call Register Act 2006 (Cth);
    • 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 Advertiser), 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
  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:
    • use such Personal Information to the extent and in the manner agreed between the Advertiser and Pivotus;
    • 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;
    • 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:
    • 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
    • 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.

11. 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 Advertiser 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:
    • defamation, libel, slander of title;
    • infringement of copyright, trademarks or other intellectual property rights
    • breach of trade practices/ competition, privacy or fair trading legislations; or
    • 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.
  4. To the maximum extent permitted by law (including the Australian Consumer Law), Pivotus’s total aggregate liability to the Advertiser for any breach of contract, negligence, or statutory duty arising out of or in connection with these terms is limited to the total fees paid by the Advertiser to Pivotus for the specific Campaign giving rise to the liability. In no event will Pivotus be liable for any indirect, consequential, or economic loss, including loss of profit, business revenue, or data. 

12. Payment

  1. The Advertiser acknowledges that once a Campaign Booking Form is signed, they are liable to pay the amounts specified including any GST, if applicable.
  2. Billing Breakdown and Calculation:
    • Unless otherwise arranged in writing, billed amounts are pro-rata of the total booked budget for the weeks the Campaign is active during a month.
    • Billing is based on Pivotus’ Buying Platforms’ reporting, which may not agree with 3rd party tracking systems or GA4.
  3. Unless otherwise specified in an Advertiser-specific Retention of Services Agreement, invoices are Payable 30 days from their issue or the end of the Campaign, whichever is later.
  4. 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.