Terms and Conditions

1. Agreement Overview and Entire Contract. These terms and conditions (the “Terms”), along with the accompanying Insertion Order (the “IO”), represent the complete agreement (the “Agreement”) between the Advertiser and Lorikeet Corporation Pty Ltd and its affiliates (“Adonix”) regarding the subject matter herein, and replace any prior or concurrent proposals, contracts, or communications, whether verbal or written. These Terms take precedence over any of the Advertiser's standard terms and conditions, regardless of whether or when the Advertiser has submitted its request for proposal, order, or terms. The provision of services to the Advertiser does not signify acceptance of the Advertiser's terms and does not modify or amend these Terms. Any alteration of these Terms applies solely to the specific IO into which these Terms are incorporated. If the IO is signed by the Advertiser’s agency, references to “Advertiser” herein also include the advertisers agency.
2. Advertisement Publication.

   (a) Submission of Advertiser Content. The Advertiser will provide Adonix with the advertising content (“Advertisement(s)”) and all other materials reasonably necessary (collectively referred to as “Advertiser Content”) according to Adonix’s editorial, graphic, technical, or production criteria (the “Specifications”). Adonix will not be liable for any issues arising from the Advertiser Content or for delays or failures caused by the Advertiser's inability to fulfill these requirements. Adonix will provide a final copy of an Advertisement and obtain the Advertiser’s prior written approval before publication (“Publication”).

   (b) Approval Process. All Advertisements are subject to Adonix’s approval. According to the Terms of this Contract, Adonix may, at any time and for any reason, reject or cancel any Advertisement, without liability, even if previously accepted or acknowledged. Adonix is not obligated to make modifications to an Advertisement after the finalisation of its display on inventory, including Adonix’s digital display tops (the “Display Tops”). For Advertiser Content displayed in Australia, the Advertiser will ensure the Advertiser Content complies with the requirements of Roads and Maritime Services - New South Wales Government, or any other regulatory body authorised to approve advertisements.

   (c) Under-delivery. Adonix will monitor the display of Advertisements and will notify the Advertiser electronically or in writing as soon as possible if an under-delivery is likely. If under-delivery occurs, the Advertiser and Adonix will revise the IO in good faith, based on the actual or anticipated shortfall. In the event of under-delivery of the Guaranteed Display Amount or preemption, the Advertiser is entitled to a makegood. Adonix will measure delivery of Ads through the Adonix Dashboard (“Dashboard”). Adonix agree to give reasonable reciprocal access to relevant and non-proprietary statistics and supporting data, or if such is not available, provide weekly placement-level activity reports. If Adonix’s ad server measurements are higher than those calculated by Agency by more than 10% over the invoice period, Agency and Adonix will work together in good faith, providing reasonable technical resources and log files, to investigate and resolve such discrepancy. If the discrepancy cannot be resolved within 5 business days following the end of the relevant month, Agency will pay Adonix based on Adonix’s ad server reported data, minus a maximum of 5% downward adjustment to delivery. In the event of a discrepancy of less than 10% between Agency’s and Adonix’s ad server measurements, Adonix’s ad server measurements shall take precedence.

   (d) Over-delivery. Adonix may provide bonus ad units at its discretion, unless otherwise stated in the IO. The Advertiser will not be charged for any additional impressions or services beyond what is guaranteed in the IO.

   (e) Proof of Performance. Adonix will provide a performance report (“Performance Report”) within a reasonable time of Advertisement delivery. The Performance Report may include still images and/or video footage (“Images”). The Advertiser must not identify or attempt to reidentify individuals appearing in the Images, nor share Images with third parties without Adonix’s prior written consent in each instance.

   (f) Services Provided. Adonix’s services may be performed by Adonix’s affiliates or third-party contractors.

3. Cancellation and Termination. Unless specified in the IO as non-cancellable, the Advertiser may cancel the entire IO, or any part thereof, with 60 days' written notice to Adonix. An Advertiser can terminate an IO by providing Adonix with written notice, which will be effective 48 hours after receipt of such notice. Termination within 60 days or during an active campaign will incur a penalty of 75% of the remaining net IO cost. Termination due to a material breach of Adonix’s obligations will not incur a penalty.
4. Rights.

   (a) License Grant. The Advertiser grants Adonix a non-exclusive license to display, transmit, and distribute the Advertisements and Advertiser Content, including any third-party rights contained therein, on the Display Tops in connection with the Advertising Display. Adonix and applicable third parties may make technical modifications (including resizing) to conform the Advertiser Content to the Specifications. The Advertiser grants Adonix the right to use the Advertiser’s name and/or logo in marketing materials to identify the Advertiser as a client of Adonix. The Advertiser also grants Adonix the right to use images of the Advertiser Content displayed on Adonix inventory and/or Ad Metrics (as defined below) for marketing and promotional purposes. For campaigns in Australia, if the Advertiser requires that Advertiser Content be removed, Adonix reserves the right to insert content advertising Adonix or its affiliates for the remainder of the campaign at the Advertiser’s cost.

   (b) Ad Metrics. Adonix grants the Advertiser a non-exclusive, non-sublicensable, non-transferable, royalty-free, revocable license to access all data related to the performance of the Advertisements, including any reports, case studies, results, or information derived from such data (the “Ad Metrics”), solely for the Advertiser’s internal purposes. All goodwill associated with the Ad Metrics will inure to Adonix.

   (c) Ownership. Despite any other provision herein, (i) the Advertiser retains all intellectual property rights in and to the Advertiser Content, and (ii) all intellectual property rights in or to the Display Tops, software and technology related to them, the content contained therein (including, without limitation, the Ad Metrics), Adonix’s Confidential Information, any other information provided by Adonix, and any customised content, including graphics or other media (collectively, “Adonix IP”), are and will remain the exclusive property of Adonix or its licensors. The Advertiser will not take any action that jeopardizes Adonix’s or its licensors’ proprietary rights or attempt to acquire any rights in the Adonix IP. All rights not expressly granted to the Advertiser are reserved by Adonix and its licensors.

5. Payment Terms.

   (a) Adonix will send the initial invoice upon completion of the first month’s delivery or within thirty (30) days of IO completion, whichever is earlier. Invoices will be sent to the Client's billing address as set forth in the IO. All invoices (excluding corrections of previously provided invoices) under the IO will be sent within ninety (90) days of Advertisement delivery. Adonix will invoice the Advertiser on a monthly basis, based on actual delivery, a flat-fee, or prorated distribution over the IO term, as specified in the IO.

   (b) Except for taxes on Adonix’s income, the Advertiser is solely responsible for any taxes that may become due under this Agreement.

   (c) The Advertiser and its agency are jointly responsible for all amounts due by the invoice date and remain liable until Adonix receives full payment. Payment by the Advertiser to its agency does not constitute payment to Adonix.

   (d) Adonix may assess interest at the rate of 1.5% per month (or the highest rate allowed by law, if less) on any overdue balance. The Advertiser is responsible for all reasonable expenses (including attorney’s fees) incurred by Adonix in collecting overdue payments.

   (e) The Advertiser will make payment 15 days from receipt of a valid invoice, or as specified in the payment schedule in the IO.

   (f) The arrangement and payment of Agency Commissions and Rebates (“Incentives”) will be agreed upon in a separate Incentive Agreement (“IA”). Unless specifically agreed otherwise in the IA, in the event of any conflict between these Terms and the IA, the IA terms will prevail.

6. Confidentiality.

   (a) Definition of Confidential Information. “Confidential Information” refers to all proprietary information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) that (i) is designated as confidential at the time of disclosure, (ii) is marked as “Confidential” and/or “Proprietary” when disclosed in writing, or (iii) should reasonably be understood as confidential given the nature of the information and circumstances of disclosure, including, without limitation, this Agreement, Advertising Display, business and marketing plans, technology, product designs, and business processes. Confidential Information does not include any information that: (1) becomes publicly known without breach of an obligation, (2) was known to the Receiving Party before disclosure, (3) is developed independently without reference to the Disclosing Party’s information, (4) is obtained from a third party without breach of an obligation, or (5) is in Ad Metrics.

   (b) Use and Disclosure of Confidential Information. The Receiving Party will not use or disclose any Confidential Information outside the scope of this Agreement, except with the Disclosing Party’s written consent, and will use the same degree of care to protect Confidential Information as it does to protect its own information, but not less than reasonable care. The Receiving Party may disclose Confidential Information to employees and contractors who need to know such information for the purposes of fulfilling the Receiving Party’s obligations under this Agreement if those employees and contractors agree to terms substantially similar to those in this Agreement.

   (c) Legal Disclosure. If required by law to disclose Confidential Information, the Receiving Party will provide the Disclosing Party with prior notice (if legally permitted) and reasonable assistance, at the Disclosing Party’s request and expense, if the Disclosing Party wishes to contest the disclosure.

   (d) Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information in breach of these confidentiality obligations, the Disclosing Party will have the right, in addition to any other remedy available, to seek injunctive relief, as the parties acknowledge that any other remedy is inadequate.

7. Disclaimer of Warranties. Except as explicitly stated, Adonix provides all ad placements “as is” and “as available,” and hereby expressly disclaims all warranties, express or implied, including, without limitation, warranties of merchantability, fitness for a particular purpose, non-infringement, and implied warranties arising from course of dealing or performance. Adonix does not guarantee uninterrupted ad placement, any number of leads, or any specific performance measure. Accepting an Advertisement for display does not imply endorsement of the product or service by Adonix.
8. Indemnification.

   (a) Advertiser Indemnification. The Advertiser agrees to indemnify, defend, and hold harmless Adonix and its licensors, and their respective employees, officers, directors, and affiliates, from any claims, actions, suits, damages, liabilities, costs, and expenses (including reasonable attorney’s fees) arising from (i) any Advertisements or Advertiser Content, including any claim that the Advertisements infringe any trademark, copyright, or right of privacy or publicity, (ii) the Advertiser’s breach of this Agreement, (iii) any service or product provided to any third party resulting from the Advertisement, (iv) the Advertiser’s failure to comply with laws, or (v) the Advertiser’s gross negligence, willful misconduct, or fraud.

   (b) Adonix Indemnification. Adonix agrees to indemnify, defend, and hold harmless the Advertiser from any claims, actions, suits, damages, liabilities, costs, and expenses (including reasonable attorney’s fees) arising from (i) Adonix’s failure to comply with applicable law, or (ii) Adonix’s gross negligence, willful misconduct, or fraud.

   (c) Procedures. An indemnified party must (i) provide the indemnifying party with prompt notice of any claim, (ii) grant control of the defense and settlement, and (iii) provide reasonable assistance. The indemnified party may participate at its own expense. No settlement involving a remedy other than payment may be entered without the indemnified party’s consent, which will not be unreasonably withheld.

9. Limitation of Liability. Except for third-party claims under the Advertiser’s indemnification obligations, neither party will be liable for any indirect, incidental, consequential, or special damages, including loss of data, business, profits, or goodwill. Each party’s total aggregate liability will not exceed the net amount paid or payable to Adonix under this Agreement.
10. Feedback. The Advertiser is under no obligation to provide any feedback, suggestions, or recommendations about Adonix’s services (“Feedback”). The Advertiser assigns to Adonix all rights, including intellectual property rights, in any Feedback, and any derivative works thereof. If such assignment cannot be made, the Advertiser grants Adonix a royalty-free, worldwide, perpetual license to use or incorporate any Feedback into its services.
11. Miscellaneous.

    (a) Independent Contractors. The parties are independent contractors, and this Agreement does not create an employment, agency, partnership, or joint venture relationship.

    (b) Governing Law and Jurisdiction. This Agreement and any disputes arising from it will be governed by the laws of New South Wales, Australia. Legal actions will be brought exclusively in the state courts in Sydney, NSW, and each party consents to the jurisdiction.

    (c) Notices. All notices must be in writing and will be considered given upon receipt. Notices to the Advertiser will be sent to the address in the IO. Notices to Adonix will be sent to: Lorikeet Corporation Pty Ltd. Attention: Adonix Executive 3/55 Pyrmont Bridge Rd, Pyrmont NSW 2009 [email protected]

    (d) Assignment. The Advertiser may not assign this Agreement without Adonix’s written consent. This Agreement binds and benefits the parties and their successors and assigns.

    (e) Third Party Beneficiaries. This Agreement is solely between Adonix and the Advertiser and does not create any rights or obligations for third parties.

    (f) Force Majeure. Neither party is in breach of this Agreement for failures beyond their control, including acts of God, transportation delays, and governmental actions.

    (g) Headings. Section headings are for convenience only and do not affect interpretation.

    (h) Amendments and Waiver. No amendment or waiver is effective unless in writing and signed by both parties. Failure to enforce rights is not a waiver.

    (i) Severability. If any provision is invalid, the remaining provisions remain in effect.

    (j) Counterparts. This Agreement may be signed in counterparts, each considered an original but all forming one instrument.

    (k) Third-party Sales. For any “additional agreements” between third-party sales partners and advertisers, Adonix is not bound by the terms of the additional agreements and sales partners hold the liability for all terms and conditions. It is the third-party sales partner responsibility to make any advertisers aware of the Adonix Terms and Conditions before executing an IO.