Terms and Conditions

This agreement is made between viva9 Pty Ltd ABN 98 118 254 578 of Digital Village, Level 1, Building 1, 85 O’Riordan Street, Alexandria, NSW 2015, trading as viva9 and You, as a user of viva9.

The terms and conditions of this agreement are subject to periodic change at viva9 discretion. As such, each user of the Site (or "you") agrees to review this agreement periodically in the section of the Site entitled "Terms and Conditions."

Contracts for Advertising

  • If you wish to place Advertising with viva9 with any of its promotional and marketing products ("Advertising"), you must complete an Insertion Order, which is an application form for the display of an advertisement within the viva9 product range, viva9, Monster Mall and Rewards Palace. The Booking Contract is available from viva9.
  • If we notify you of our acceptance of the Booking Contract, a contract ("the Contract") will be formed between viva9 and you consisting (in order of priority to the extent that there is any inconsistency) of:
    1. Terms and Conditions of the Insertion Order; and
    2. The Insertion Order
  • Subject to these Terms, viva9 will use its reasonable endeavours to publish advertising submitted by Customers in the format submitted by the Customer and in accordance with the placement instructions of the Customer.

Obligations

By submitting Advertising and Advertising Materials for publication, the Customer warrants to viva9 that the Advertising does not breach or infringe:

  • The Trade Practices Act (Cth), Fair Trading Acts (State) and equivalent legislation;
  • State and Commonwealth anti-discrimination legislation;
  • Any copyright, trade mark or obligation of confidentiality;
  • Any law of contempt of any court, tribunal or royal commission;
  • The Privacy Act (Cth);
  • Any other law (including but not limited to any common law, statute, delegated legislation, rule and ordinance of the Commonwealth or any State or Territory).

Authority

You represent and warrant:

  • That you have the authority to act on behalf of the Customer.
  • That you are authorised to make available the entire contents and subject matter of the Advertising for publication.

Amendment of Advertising

You may amend or alter a Campaign, subject to viva9’s approval. These amendments or alterations must be authorised by a Revised Booking Contract indicating the revisions to the Campaign.

Suspension of Advertising and Termination

  • You may terminate the Contract without penalty if written notice is given to us at least 15 days prior to the agreed Campaign start date outlined in the Booking Contract. If you terminate the Contract less than 4 weeks before the agreed start date, you will be liable, at our sole discretion, for the costs falling in the 4-week period from notification of termination.
  • viva9 may terminate the Contract at any time for any reason provided that 7-day prior notice in writing is given.
  • Without limiting its other rights, we may immediately suspend the placement of an Advertisement or terminate the Contract if:
    1. You do not pay any fee due to us by the due date;
    2. You breach any part of the Contract and fail to rectify that breach within 7 days of viva9 giving notice requiring rectification;
    3. Any information supplied by you is false or misleading;
    4. You enter into bankruptcy, liquidation, administration, receivership, a composition or arrangement with your creditors, or appoint a receiver or manager over all or any part of your assets or become or are deemed to become insolvent; or
    5. You die, or if you are a partnership, are dissolved or an application to dissolve is filed, or if you are a company, are wound up or an application for winding up is filed.
  • You must pay all outstanding amounts to us within 7 days of termination of the Contract.
  • You acknowledge and agree that termination of the Contract pursuant to this clause does not relieve you of your obligations and liabilities pursuant to the Contract and we reserve our rights to enforce such obligations and liabilities in any event.
  • Merchant must give 30 days notice when cancelling an affiliate program.
  • Breach of payment – we can cancel within 7 days.

Material for Publication

You acknowledge that:

  • The Customer has checked all Advertising Material being supplied to viva9, or its representatives, for publication.
  • The Customer will notify viva9 of any errors in these materials as soon as possible prior to the commencement date of the Campaign. viva9 will endeavour to make the changes requested by the Customer.
  • viva9 is not responsible for errors or omissions in any Advertisement or Advertising Materials provided by or on behalf of you;
  • You agree to provide all Advertisements and associated materials to us, or any person nominated by us, on or before the required material deadline dates outlined on the Material Specifications and Deadline forms ("Material Specifications").
  • You agree to supply Advertisements and associated materials as outlined within the Material Specifications.

Payment and Billings

Unless a trading history has been established with viva9, the Customer agrees to pay viva9 with either:

  • Credit Card via Auto Debit system; OR
  • Deposit System where agreed funds are held in account by viva9 to be maintain against each months activities. viva9 will issue the Customer with a GST compliant invoice which reflects the previous month’s activity. By opting for Credit Card payment, you agree to give viva9 the authority to automatically charge your credit card account whenever an invoice is due. By opting for a Deposit System, you agree to keep your viva9 account up to date with adequate funds to meet the coming month’s activities. As stipulated in clause 5.c.
  • of this contract, should you fail to fulfil the payment, viva9 has the right to suspend your campaign temporarily until full payment is received. Prior to launching your campaign, full payment of the setup fee is required at least 3 business days before the campaign start date (unless otherwise agreed). Fees are payable for advertisements as set out in the Contract (Insertion Order).

Overdue Payments

Subject to 10(b), if the invoice is not paid under the Invoice Term, which is 7 days from the date of invoice (unless otherwise agreed to) we may:

  • Suspend the placement of an Advertisement; and/or
  • Charge interest on any overdue amount at an annual rate equal to 2% above the rate notified by our principal bank from time to time as its indicative lending rate on bank overdrafts over $100,000; and (iii) Demand that you pay for any costs of collecting the overdue amount, including but not limited to agency collection fees and legal fees.

Taxes

You will pay all taxes, duties and other government charges payable in connection with the Contract whether applying as at the date of the Contract or in the future including without limitation goods and services tax, other value added tax, sales tax, stamp duty and turnover tax, but excluding taxes, duties and government charges assessed on our income.

Limitation of Liability

  • To the extent allowable under the Trade Practices Act 1974 (Cth) or any other applicable law, we:
    1. Exclude all conditions and warranties implied in the Contract;
    2. Exclude consequential, special or indirect loss or damage (including but not limited to loss of opportunity, loss of revenue and loss of profits);
    3. Limit our liability for breach of any condition or warranty that we cannot exclude to the greater of (at our option):
      • re-supplying the services; or
      • paying the cost of having the services re-supplied; and
    4. Limit our liability in respect of any other claim in connection with the Contract (whether the claim is based in contract, tort including negligence) or statute to the amount paid by you to us under the Contract.
  • We will not be liable under this Agreement to the extent that liability is caused by:
    1. A failure of hardware or software of viva9
    2. Any of the acts, errors, delays or omissions set out in clause 8.
    3. Neither party shall be liable to the other for any indirect or consequential loss (including loss of actual or anticipated profits, business, revenue, goodwill, anticipated savings or data) whether arising from negligence, breach of contract or otherwise.
  • Affiliates are under no circumstances allowed to use a merchant name or URL’s in Google Ad words as per our terms and conditions. viva9 will accept NO liability where affiliates are in breach of this.

Indemnification

Customers upon and by lodging material with the Company for publication or authorising or approving of any material and in consideration of acceptance and publication of the same by the Company, jointly and severally INDEMNIFY the Company, its subsidiaries, directors, officers, employees, and agents against all liability, claims or proceedings whatsoever arising from the publication, and indemnify each of them in relation to defamation, injurious falsehood, passing off, unfair competition, breach of warranty of authority or any breach of any federal, state, territory or local statute, regulation or other law giving rise to any civil or criminal liability whatsoever and WARRANT that the material complies with all relevant federal, state, territory and local laws and regulations and that its publication will not give rise to any rights against or liabilities in INDEMNIFY the Company, its subsidiaries, directors, officers, employees, and agents and in particular that nothing therein is capable of being misleading or deceptive or otherwise in breach of the Trade Practices Act.

Offset

You will have no right of offset. We may offset monies received against any unpaid charges or fees under the Contract or other contracts with you.

Commission

If the Agency is accepted by us and registered as an Approved Agency, the Agency will be eligible to receive a commission of 10% of the value of the relevant Campaign on the condition that at all times:

  • payment for advertising is made on or before the last day of the Agency Invoice Period;
  • you comply with the terms and conditions and requirements for advertising; and
  • the Agency acknowledges that we may at any time reject the Agency’s status as an Approved Agency after which time the Agency will no longer be an Approved Agency in respect of any order it places and we will not be liable for any direct or consequential losses, damages, liabilities, costs or expenses (including legal expenses) as a result of such rejection.

General

  • No delay or failure by us to enforce any provision of the Contract will be deemed to be a waiver or create a precedent or will prejudice our rights.
  • A notice may be sent by e-mail, prepaid post or facsimile to each party’s last known address.
  • You must not assign the Contract without our prior written consent.
  • The Contract (together with any documents referred to in the Contract or provided by us at the same time as the Contract) constitutes the entire agreement between the Parties. It supersedes all prior understandings, agreements or representations.
  • News South Wales law governs the Contract. You submit to the non-exclusive jurisdiction of the New South Wales Courts.
  • If any term or part of the Contract is or may become for any reason invalid or unenforceable at law, the validity and enforceability of the remainder will not be affected.
  • Cookies are set for a period of 90 days.
  • Each merchant agrees to set up an information page with details about their own affiliate program. On this page will be a small viva9 banner and information about the benefits of signing up with viva9. This includes a link directly into our "affiliates signup form"
  • If a merchant passes through a sale in real time and later finds that the sale could not be completed due to fraudulent activities, or if the merchant is required by law to give a refund to the customer, the merchant upon proof, may request that viva9 debit the affiliates account for any commissions earned of that sale for a period of up to 60 days only.
  • viva9 reserves the right to approve edit, omit, reject, remove or change any creative or URL’s that viva9 views as not to be in line with internal policies or that may lead to litigation.
  • The Customer agrees to have an exclusive affiliate arrangement with viva9

Duration

  • These Terms shall be effective from the date on which an Application is accepted by us and shall only terminate as specifically mentioned in these Terms. i.e. this is an ongoing contract.
  • Merchants agree not to remove the image tag issued to them once it has been tested which could effect the tracking of sales or leads. viva9 has its own internal testing methods to ensure image tags remain in place. Merchants who remove the image tag will be obligated to pay AUD50 cents for every click generated while the image tag was missing.
  • The practise of conditional tagging by Merchants, (i.e.) the selective display of each respective network's 'end of transaction' pixel code is prohibited.

Refund Policy

  • Refund is not available for campaign setup fee, banner design fee, and any other promotional advertising service fees associated with advertisement on viva9.
  • viva9 also does not accept refund request because you have changed your mind to stop your advertising program. A proper notification of campaign closure is required before we can work out the refund amount.
  • You are entitled to a refund for the monthly commission fee from viva9 if:
    1. You have evidence that the transactions cannot be completed due to fraudulent activities;
    2. Our affiliates are in violation of your campaign terms and conditions;
    3. Your prepayment account balance is not entirely used up at the time of the campaign closure;
  • You agree to accept the refund amount as calculated by viva9.
  • Any commission fee paid by you are not refundable if the related transactions exceed a period of 60 days.
  • Refunds are issued back to the credit card used to make the initial payment as advised by you.
  • viva9 is under no obligation to refund you any monetary amounts that may have been lost or forfeited due to circumstances including, but not limited to, software malfunctions or inadvertent affiliate selections.