1 January 2015: These terms and conditions re currently being reviewed. If you have any questions, please contact us.
Advertising Terms & Conditions
1. Definitions & Interpretation
1.1 In these terms and conditions:
“Advertisement” means any kind of promotional or advertising material (including, but not limited to, advertorial/editorial content, and/or display advertising) that is, as the case may be: (i) to be printed in Zest Magazine a print publication and/or (ii) to be published or otherwise displayed by electronic means (including, but not limited to, digital magazine, banner, photo, business directory, inserts, button or other forms of online or electronic display advertising) via or as part of or in connection with any Online Publication;
“Advertisement Confirmation” means Zest Magazine’s written confirmation of the Buyer’s order;
“the Advertiser” means any person who promotes products or services to the general public or a section of the public, whether such person is the Buyer or not
“Advertiser Dependencies” means the Copy Deadline, together with any other obligations of the Buyer which Zest Magazine may specify in connection with the proposed publication of the Advertisement (whether included in the Advertisement Confirmation, the Rate Card, the Booking Form or otherwise) including, but not limited to, the delivery format and/or file configuration in which any copy for the Advertisement (whether for a Print Publication or an Online Publication) is to be supplied to Zest Magazine;
“the Buyer” means the person placing the order with Zest Magazine for the publication of the Advertisement (including, but not limited to, the Advertiser’s advertising agency or media buyer);
“Artwork/Copy Deadline” means, where applicable, the latest date (as shown on the Advertising Information page on our website) by which the Buyer is obliged to give Zest Magazine full instructions and copy for carrying out the Buyer’s order in accordance with and subject to these terms and conditions. For the avoidance of any doubt, Advertisements to be published in an Online Publication may not be subject to a Copy Deadline;
“Online Publication” means any website operated or controlled by Zest Magazine or other electronic medium (including, but not limited to, e-mail communications and alerts, mailchimp, issuu, facebook etc), whether connected with or related to the title of a Print Publication or otherwise;
“Print Publication” means Zest Magazine which is published quarterly
“the Rate Card” means the magazine advertising rates both for printed and digital (online) content. Which includes the cost of advertising and also technical specifications relating to the standard and quality of reproduction of any Advertisement including its setting, style, delivery format, file configuration and size and wording;
“Suspension Order” means a written notice given by the Buyer to Zest Magazine requesting that the publication of the Advertisement should be temporarily suspended (for a period no longer than six (6) months) until further notice; and
“Working Days” means *9am to 5pm any day *Monday to Friday inclusive other than Christmas Day, Good Friday, bank and other public holidays.
*Zest Magazine Hours of Operation are 9am to 4pm Tuesdays, Wednesdays and Thursdays.
1.2 Where the context so admits, words importing the one gender shall include all other genders and words importing the singular shall include the plural and vice versa. A reference to a statute, statutory provision or other legislation is a reference to it as it is in force from time to time, taking account of any amendment or re-enactment.
2. Application of these Terms and Conditions
2.1 All Advertisements accepted for publication by Zest Magazine are accepted subject to these terms and conditions which shall apply to the exclusion of all other terms and conditions (including any which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document). Any variation to these terms and conditions and any representations about the Advertisement shall have no effect unless expressly agreed in writing and signed by an authorised representative of Zest Magazine. The Booking Form shall form part of these terms and conditions.
2.2 Unless circumstances specifically dictate otherwise in connection with the publication of an Advertisement in an Online Publication, no order placed by the Buyer shall be deemed accepted by Zest Magazine until the Advertisement Confirmation is issued.
2.3 Notwithstanding any other provision of these terms and conditions, nothing herein shall require Zest Magazine to do or omit to do anything which would contravene any applicable laws or regulations.
3. The Buyer’s Obligations
The Buyer hereby warrants, represents and undertakes to Zest Magazine that:
a) in relation to any and all Advertisements the Buyer contracts with Zest Magazine as principal notwithstanding that the Buyer may be acting directly or indirectly for the Advertiser or in any other representative capacity;
b) should the Buyer change its name, trading style, identity, address, or should any other details disclosed by the Buyer to Zest Magazine change, the Buyer must give written notice to Zest Magazine within 5 Working Days of such change(s);
c) any and all other Advertiser Dependencies will be met and, unless otherwise agreed in writing by Zest Magazine, all copy for any Advertisements will be delivered to Zest Magazine in an approved digital format and/or file configuration and, in the case of an Advertisement to be published in a Print Publication, delivered at least 21 Working Days prior to the Artwork/Copy Deadline;
d) the publication of the Advertisement by Zest Magazine (either in the Print Publication or the Online Publication or both, as the case may be) in the form originally submitted by the Buyer (or as amended pursuant to Condition 4 below) will not breach any contract with a third party or infringe any copyright, trade mark or other proprietary right of any third party or otherwise be unlawful or render Zest Magazine liable to any proceedings, claims, demands, costs or expenses or any other loss whatsoever;
e) in the case of any Advertisement submitted for publication by the Buyer which contains the name or pictorial representation, whether photographic or otherwise, of any living person or any part of the anatomy of any living person or any material by which any living person may be identified, the Buyer or the Advertiser has obtained the authority of that living person to make use of his or her name, identity, image, representation and/or copy;
f) all advertising copy submitted to Zest Magazine is legal, decent, honest and truthful, and complies with the Australian Code of Advertising, Sales Promotion and Direct Marketing and all other relevant codes under the general supervision of the Advertising Standards Authority;
g) all instructions, artwork or other material submitted to Zest Magazine by electronic means shall not contain software viruses or any other computer code, files or programs designed to interrupt, damage, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, and shall not be corrupted;
h) any information supplied in connection with the Advertisement is accurate, complete and true;
i) where the Buyer is the Advertiser’s agent, the Buyer is authorised by the Advertiser to place the Advertisement with Zest Magazine and the Buyer will indemnify Zest Magazine against any claim made by the Advertiser against Zest Magazine arising from publication of the same; and
j) the Buyer has retained sufficient quantity and quality of any artwork, film or other materials and copy relating to the Advertisement as Zest Magazine shall not be liable for the loss of or damage to any of these items submitted to Zest Magazine.
4. Advertisements: Artwork/Copy, Alterations, Accuracy, Publication, etc
4.1 Notwithstanding Condition 3 above Zest Magazine shall be entitled at any time to require the Buyer to amend any artwork, materials and copy for and relating to any Advertisement, or refuse (without notice) to publish any Advertisement for the purpose of:
a) complying with any legal or moral obligations placed on Zest Magazine or the Buyer or the Advertiser; or
b) avoiding the infringement of (i) the rights of any third party or (ii) the Australian Code of Advertising, Sales Promotion and Direct Marketing and all other relevant codes under the general supervision of the Advertising Standards Authority or (iii) any other applicable law; or
c) meeting to Zest Magazine’s reasonable satisfaction (i) the production and quality specifications stipulated on the Rate Card or (ii) any other Advertiser Dependencies.
4.2 Zest Magazine reserves the right at its discretion and without notice to the Buyer:
a) to decline to publish, or omit, alter, suspend or change the position of any Advertisement otherwise accepted for insertion, or publication. However, Zest Magazine will endeavour to comply with the reasonable and practicable wishes of the Buyer although Zest Magazine does not warrant the date of publication or insertion, the wording, or the quality of the reproduction of the Advertisement; and
b) to destroy all artwork, film, copy or other materials submitted by the Buyer and which have been in Zest Magazine’s possession unused for more than six (6) months from the date of their last use by Zest Magazine, unless specific written instructions have been received from the Buyer to the contrary.
4.3 All copyright and all other rights of a similar nature that are created or exist in material originated by Zest Magazine in connection with the publication of the Advertisement remains vested in Zest Magazine.
4.4 Advertisements: Digital (Online) Publications:
4.4.1 The Buyer shall submit copy for the Advertisement at least 48 hours prior to the intended go-live date. If the Buyer submits its copy late then Zest Magazine reserves the right to publish the Advertisement at a time of its choosing.
4.4.2 If the Buyer is supplying creative content in the form of an Advertisement that links to another website the Buyer must inform Zest Magazine in writing at least 2 Working Days prior to the intended go-live date.
4.4.3 If an Advertisement links to another website the Buyer is responsible for maintaining the link and for the content of the linked-to website. Zest Magazine may remove any Advertisement which contains content or links to a website which, in Zest Magazine’s discretion, is (or is likely to be) defamatory or objectionable or otherwise likely to bring Zest Magazine into disrepute. The Buyer will indemnify Zest Magazine from and against any claims or liability suffered or incurred by Zest Magazine arising in any connection from links contained in an Advertisement.
4.4.4 If Zest Magazine receives complaints about the content of an Advertisement it may, at its discretion, remove the Advertisement from display without reference or liability to the Buyer or Advertiser.
4.4.6 The provisions set out in this condition 4.4 apply in addition (save where the context expressly permits) and without prejudice to all other provisions set out in these terms and conditions.
5. Advertisements: Responsibility and Liability
5.1 The Buyer shall indemnify and keep indemnified Zest Magazine against all proceedings, claims, demands, damages, costs, expenses or any other loss whatsoever arising directly or reasonably forseeably as a result of (i) the publication of the Advertisement or (ii) any breach of the Buyer’s obligations under these terms and conditions or implied by law.
5.2 With regard to the actual or intended insertion of an Advertisement in any Print or Online Publication Zest Magazine shall not be responsible to the Buyer or liable for:
a) checking the correctness of the Advertisement in the form it is received from the Buyer;
b) any error in the Advertisement in the form it is received from the Buyer;
c) the wording, representation, placement or quality of colour or mono reproduction of the Advertisement;
d) the actual positioning or prominence of the Advertisement in the Print and/or Online Publication (as the case may be);
e) the repetition of any error in an Advertisement ordered for more than one insertion;
f) the distribution of the Print or Online Publication in a specific geographical area;
g) the failure, corruption or malfunction of any system of electronic publication, whether by means of electronic storage, display or retrieval equipment or otherwise;
h) any order given by the Buyer in the nature of a “stop order” or cancellation or transfer of the publication of the Advertisement unless it is given to Zest Magazine in writing, in the case of an Advertisement to be published in a Print Publication, at least 28 Working Days before the Copy Deadline and, in the case of an Advertisement to be published in an Online Publication, at least 72 hours prior to the intended go-live date;
i) any loss whatsoever caused by delay or failure by Zest Magazine to issue the Print or Online Publication on the due date (or such other date of release, display or publication, as the case may be), or Zest Magazine’s decision to suspend the Print and/or Online publication or cease the Print or Online Publication altogether;
j) the payment of any damages or other compensation for breach of contract because of Zest Magazine’s failure to perform any of its obligations under these terms and conditions if such failure is caused by anything beyond Zest Magazines reasonable control (that is to say as a result of force majeure) including acts or threats of terrorism, strikes, lock-outs or other industrial actions or trade disputes, pandemic, epidemic or other widespread illness whether involving Zest Magazine’s employees or those of any third party;
k) any loss whatsoever caused as a consequence of any instructions, artwork or any other material relating to the Advertisement being submitted by the Buyer in electronic form that is in breach of the warranty at Condition 3(h) above;
l) any matter of complaint, claim or query (whether in relation to the Advertisement, in which case Condition 5.3 shall apply, or Zest Magazine’s invoice related thereto) unless raised with Zest Magazine in writing within 5 Working Days following the publication of the Advertisement or at the date on which it is claimed the Advertisement was intended to appear, or the receipt by the Buyer of the invoice giving rise to it; and
m) any failure of the Advertisement to meet or generate any target response levels or page impressions.
5.3 Subject to Condition 5.2, if an Advertisement contains an error caused by Zest Magazine and this detracts materially from the Advertisement then provided the Buyer gives written notice to Zest Magazine of the error in the Advertisement (as the case may be):
a) within 5 Working Days of its publication or display in the case of a single order; or
b) before either the Copy Deadline for its next insertion or subsequent go live date (as the case may be) in the case of a series order
Zest Magazine will at its discretion either:
c) give the Buyer credit for the cost of the Advertisement containing the error; or
d) publish the Advertisement for a second time without charge to the Buyer
and to that extent such credit or re-publication (as the case may be) shall be Zest Magazine’s maximum liability to the Buyer. Such matter dealt with under this Condition 5.3 shall not affect the liability of the Buyer for payment by the due date of Zest Magazine’s charges for the Advertisement and all other Advertisements.
5.4 Except to the extent specified in Condition 5.3, Zest Magazine shall not be liable for any loss or damage suffered by the Buyer (or the Advertiser) as a result of any total or partial failure of publication, distribution or availability of any Print or Online Publication in which any Advertisement is scheduled to be included, or for any error, misprint or omission in the printing of any Advertisement.
5.5 The total liability of Zest Magazine to the Buyer for any act or omission of Zest Magazine, its employees or agents relating to any Advertisement shall not exceed the amount of the full refund of any price paid to Zest Magazine for the Advertisement or the cost of a reasonably comparable further or corrective Advertisement. Without limiting the foregoing, Zest Magazine shall not be liable for any (i) loss of profits, goodwill or business or (ii) indirect or consequential loss.
6. Payment Terms
6.1 Payment for any Advertisement or any other goods or services is due in advance of publication of the Advertisement unless Zest Magazine has previously agreed in writing to open a credit account for the Buyer, and where a credit account is opened then payment of the account shall become due 20 days after the date of Zest Magazine’s invoice and the Buyer will ensure that payment is received by Zest Magazine no later than this due date.
6.2 If the Buyer:
a) fails to pay Zest Magazine’s invoice; or
b) is in breach of any obligation under these terms and conditions, Zest Magazine shall be entitled to terminate its contract with the Buyer immediately (without prejudice to any other right or remedy available to Zest Magazine whether under these terms and conditions or otherwise) and, without prejudice to Zest Magazine’s right to terminate its contract with the Buyer in such circumstances, the outstanding balance owed by the Buyer shall become due and payable immediately.
6.3 Zest Magazine shall be entitled to:
a) charge interest on any outstanding balance owed to Zest Magazine at the rate of 5% per calendar month after the date that the invoice became due for payment until the date it is paid in full);
b) charge an account and administration fee of $25 if any cheque drawn in its favour by the Buyer in purported satisfaction of any unpaid invoice is dishonoured on presentation; and
c) instruct a debt collection agency (after an invoice is unpaid for 3 months) to recover any sum due and in that case all charges incurred by Zest Magazine as a result of such instruction shall be payable by the Buyer in any event upon demand.
6.4 Zest Magazine reserves the right at its discretion and without notice to the Buyer:
(a) to charge the Buyer for any extra production and colour processing costs because of any act or omission by the Buyer to supply artwork, film, copy or other materials of sufficient quality or otherwise in accordance with the Advertiser Dependencies; and
(b) to change any matters shown on the Rate Card, including in particular (but not limited to), its scale of advertisement rates at any time.
7. Cancellation & Termination
7.1 Zest Magazine shall not be bound by any request from the Buyer to stop, cancel or suspend an Advertisement unless such request is in writing and confirmed in writing by Zest Magazine.
7.2 Magazine Advertising
Advertisements will not be refunded after deadline date.
a) notice of cancellation received 6-30 days or more before deadline date, 25% of total booking fee due
b) notice of cancellation received 2-5 days before deadline date, 50% of total booking fee due
c) notice of cancellation received 0-1 days before deadline date, 100% of total booking fee due
If the Buyer has paid sums for Advertisements in advance and is entitled to a refund, Zest Magazine shall use its reasonable endeavours to pay such refund to the Buyer within 30 Working Days of receipt of the written notice of cancellation.
7.3 Digital (Online) Advertising
a) notice of cancellation received 21 days or more before first display, 25% of total booking fee due
b) notice of cancellation received 6-20 days before first display, 50% of total booking fee due
c) notice of cancellation received 0-5 days before first display, 100% of total booking fee due
The Buyer can request in writing to stop or cancel any Digital (Online) Advertising at any time. Zest Magazine will remove this advertising within 5 business days. However, the payment will be non-refundable.
7.4 Zest Magazine shall be entitled (without prejudice to any other remedy available to it) to treat this contract as repudiated if the Buyer or the Advertiser;
a) being an individual dies or makes voluntary arrangement with his creditors or his estate becomes subject to an administration order or he becomes bankrupt;
b) being a company becomes insolvent, has a receiver appointed to manage its assets or it enters into liquidation or commences to be wound up (other than for the purpose of amalgamation or reconstruction);
c) allows an encumbrancer to take possession of any of its property or assets; or
d) is unable to pay its debts as they fall due or ceases or threatens to cease to carry on business