Terms and Conditions

Terms and Conditions

Focal Attractions Pty Ltd will only accept bookings for the publication of advertisements on the following terms:

  1. Definitions

In these Terms and Conditions, the following words and expressions shall have the following meanings unless the context otherwise requires:

AANA Codes of Practicemeans the advertising self-regulation codes of practice prescribed and promoted by the Australian Association of National Advertisers and any codes of practice amending or superseding these codes;

“Advertisement” means the Creative delivered to Mumbrella and intended for delivery by electronic transmission across Mumbrella’ publisher media including but not limited to Mumbrella Platforms;

“Advertiser” means the advertiser specified in the Booking Order;

“Affiliate” in relation to any Party, any person, company, association or other separate legal entity which, directly or indirectly: (a) is Controlled by that Party; (b) Controls that Party; or (c) is under common Control with that Party;

“Agency” means the media buying agency (if there is one) acting on behalf of the Advertiser, as specified in the Booking Order;

“Agreement” means these Terms and Conditions and the Booking Order;

“Campaign” means the Campaign identified in the Booking Order with an Advertisement booked to be transmitted or published on Mumbrella Platforms pursuant to the terms agreed in the Booking Order;

“Campaign End Date” means the end date specified in the Booking Order for the Campaign;

“Campaign Instructions” means an instruction placed by the Client authorising Mumbrella to transmit or publish its Advertisement and stating any relevant information, including without limitation the commercial reference numbers, planned creative changes, durations, start dates, and end dates of the Campaign;

“Campaign Period” means the agreed timeframe during which a Campaign is transmitted or published;

“Campaign Start Date” means the start date specified in the Booking Order for the Campaign;

“Client” the Account Name on the Booking Order and means (a) the Agency acting on behalf of the Advertiser; (b) where there is no Agency, the Advertiser; or (c) both the Agency and the Advertiser together;

“Control” means the power of a person, company, association or other separate legal entity to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by articles of association, constitution, partnership agreement or other document regulating such person) that the affairs of another are conducted in accordance with its wishes and “Controlled” shall be construed accordingly;

“Cost” means the cost specified in an Booking Order;

“Creative” means any material and artwork intended for transmission by Mumbrella. Creative shall be deemed to have been delivered to Mumbrella only when all of Mumbrella’ technical requirements have been met and Mumbrella has received the Campaign Instructions;

“Creative Agency” means a person, firm or company carrying on the business of creating and/or producing any Creative;

“Creative Specifications” the details and specifications for how the Creative should be made available to Mumbrella;

“Deliverables” means results, reports, and other deliverable material created or produced by or on behalf of Mumbrella for the Client in association with the Advertisement;

“Devices” means any device by which a viewer is able to access the content made available by Mumbrella;

“Force Majeure” means any event beyond the reasonable control of either Mumbrella or the Advertiser or Agency, as applicable, and shall include (but not by way of limitation) strikes (other than of their own employees), lockouts, riots, sabotage, acts of war, acts of God, terrorism, hostilities, actions against the King or piracy, any law, destruction of essential equipment by fire, explosion, storm, flood, earthquake, interruption or failure of utility services, including telecommunication networks, electric power, gas or water, satellite and/or transmission failure and delay caused by failure of power supplies or transport, national and international medical crisis (including but not limited to locally, nationally, or internationally declared public health emergencies, epidemics and pandemics);

“Industry Code” means any industry code of conduct or practice that may be applicable to the Services, a party or a party’s business activities and includes any industry codes of conduct that are prescribed by any Relevant Laws or by virtue of a party’s membership of an industry body or professional association (or similar), or generally accepted industry practice.

“Booking Order” means a booking for Advertisements to be transmitted, published, made by email booking (or electronic / automated system nominated by Mumbrella from time to time), the terms of which constitute part of the Agreement between Mumbrella and the Client;

“Mumbrella Platforms” means the product, inventory and websites and the applications (including iOS and Android versions) owned or operated by Mumbrella or its Affiliates, and other platforms or channels where Mumbrella has ownership, management rights or agency rights (subject to actual release and publishing platform agreed by both parties, hereinafter referred to collectively as “Mumbrella Platforms”);

“Media” all content suppliers across which Mumbrella has agreements to run Advertisements including but not limited to Mumbrella Platforms;

“Net Cost” means the net cost (i.e. the cost less any agency commission) or the actual cost (if no agency commission applies) specified in the Booking Order;

“Notification” means any notice, request, direction or instruction sent by a Regulator to a party during or after the Term of this Agreement in respect of the Campaign or any Advertisement.

“Personal Information” has the meaning given in the Privacy Act 1988 (Cth) as amended from time to time;

“Regulator” means any regulatory agency or any private entity that functions in a quasi-regulatory manner, having any applicable jurisdiction and includes Ad Standards, Australian Communications and Media Authority, the Australian Competition and Consumer Commission, the Office of the Australian Information Commissioner, the Classification Board, the Telecommunications Industry Ombudsman and any authority, agency or entity that is substituted for, or takes over the functions of, any of those organisations;

“Relevant Laws” means all laws including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by-laws, rules, regulatory principles and requirements, statutory rules of an industry body, statutory mandatory codes of conduct, Industry Codes, AANA Codes of Practice, the Privacy Act 1988 (Cth), writs, orders, injunctions, judgments, and Australian generally accepted accounting principles, as amended, repealed, replaced or supplemented from time to time;

“Mumbrella” means the business name owned by Focal Attractions Pty Limited (ABN [86121918090)

“Term” means the term of the Agreement as defined in Clause 13.1 below:

“Terms and Conditions” means these general Mumbrella Terms and Conditions;

“Territory” means the territories into which Advertisements are transmitted or published;

“VOD” means video on demand; and

“Working Days” means Monday to Friday inclusive in each week except any bank or public holiday in New South Wales. Creative delivered after 5pm on a Working Day shall be deemed to have been received on the next Working Day.

  1. Scope

2.1 These Terms and Conditions shall apply to all Campaigns purchased by a Client and together with Mumbrella’ Booking Order, shall constitute the Agreement made between Mumbrella and the Client in relation to the Campaign.

2.2 By sending a signed Booking Order to Mumbrella, the Client accepts in full these Terms and Conditions. Unless the Booking Order expressly states otherwise, in the event of any conflict between these Terms and Conditions and the Booking Order, these Terms and Conditions shall prevail.

2.3 Where the Client is an Agency, the Agency warrants that:

  1. i) it contracts with Mumbrella as principal notwithstanding that it may be acting as an advertising agency or media buyer or in some other representative capacity;
  2. ii) the Agency agrees all payments made by the Agency to Mumbrella on the Advertiser(s)’ behalf will be made on the basis of sole liability; and

iii) it shall be responsible to Mumbrella for the payment of accounts, unless other arrangements are agreed in writing.

2.4 If the Client is both the Agency and the Advertiser together, where this Agreement states that the Client is obliged to perform any obligation or provide any consideration, the Agency and the Advertiser shall be jointly and severally liable and responsible to Mumbrella for such obligation or consideration.

  1. Creative Delivery

3.1 Creative must be delivered to and received by Mumbrella not less than seven (7) Working Days before the intended Campaign Start Date, unless otherwise agreed by Mumbrella. The Client shall deliver the Creative according to the Creative Specifications set out by Mumbrella from time to time along with Campaign Instructions well in advance of the first transmission or publication date of the Advertisement (but in no event later than the timeframes specified above.

3.2 If Mumbrella decides, in its sole discretion, that Creative is unsuitable or in breach of any Relevant Laws, Mumbrella shall notify the Client which must supply alternative Creative at its own cost as soon as practicable. The Creative will not be transmitted or published until acceptable Creative is delivered to Mumbrella (and the transmission or publishing date will then be at Mumbrella’s discretion).

3.3 Where acceptable Creative is not delivered at least seven (7) Working Days before the Campaign Start Date, the Client shall be liable to pay in full for the Campaign whether or not the Creative has been transmitted or published on any Mumbrella Platforms.

  1. Campaign Delivery

4.1 The Client hereby authorises Mumbrella to transmit all Creative delivered pursuant to the Agreement.

4.2 Advertisements will only be transmitted if they are approved by Mumbrella against its Creative Specifications and:

  1. i) satisfy all of Mumbrella’ technical requirements as may be notified by Mumbrella to the Client from time to time; and
  2. ii) comply with all Relevant Laws.

4.3 The Client agrees that it is fully responsible for the content of the Creative and is responsible for the actions of any person, including but not limited to any Creative Agency, in relation to the creation, clearance and delivery of Creative.

4.4 The Client agrees that it must obtain all necessary and required clearances and approvals before delivery of Creative to Mumbrella, including Industry Code pre-approvals, FreeTV ClearAds (CAD) approval and a CAD classification number where required. For the avoidance of doubt, approval by CAD or any other clearance or approval organization or authority shall not in any way prejudice Mumbrella’ right to reject any Advertisement as provided for under Clause 3 above.

4.5 Mumbrella reserves the right in its absolute discretion and without incurring any liability to decline to transmit any Advertisement provided it gives notification and brief reasoning behind such decision to the Client for so declining (which may be after the fact). The Client shall not be liable to pay for any Advertisement which Mumbrella so declines to transmit provided such Creative has been delivered on time as provided for in Clause 3 above.

4.6 All Booking Orders are accepted on the understanding that they will be paid in accordance with the payment dates as specified in Clause 8.

4.7 Mumbrella reserves the right in its absolute discretion to reject or restrict any repeat transmission of the same Advertisement provided it gives notification and the brief reasoning behind such decision to the Client.

4.8 Mumbrella reserves the right at its absolute discretion to refuse Advertisements advertising more than one (1) product.

4.9 Mumbrella will use reasonable endeavours to adhere to the Campaign Instructions but shall not be liable for any failure to comply with the Campaign Instructions provided Mumbrella subsequently delivers against the Campaign. Mumbrella also reserves the right not to transmit the Advertisement if the applicable Booking Order and Campaign Instructions are not received by Mumbrella ten (10) Working Days before the Campaign Start Date or such earlier date that Mumbrella may agree.

4.10 Mumbrella shall not be held responsible for any addition to, changes in or deletions from any Creative required or delays resulting therefrom.

4.11 No protection is given by Mumbrella to the Client against the proximity of transmission or publishing of Advertisements featuring competitive products unless an exclusive option has been requested and agreed to by Mumbrella (additional charges apply).

  1. Campaign Period

5.1 Mumbrella shall endeavour to achieve an even delivery  of the Campaign over the Campaign Period. Notwithstanding the above, the Campaign may in any event be delivered at any time between the Campaign Start Date and the Campaign End Date. Other than as expressly agreed in the Booking Order, Mumbrella cannot guarantee that the Campaign will be delivered around any particular content or at any specific time or date.

5.2 In the event that a Campaign Start Date or a Campaign End Date is changed, at the Client’s request, from that which is specified in the Booking Order, the Client acknowledges that the Advertisement may be transmitted or published at a time which falls outside of the Campaign Period.

5.3 Without prejudice to Clause 5.1, Mumbrella shall incur no liability for any failure to transmit or publish all or any part of any Advertisement or for any failure to adhere to the Campaign Instructions provided Mumbrella subsequently delivers against the Campaign.

  1. Cancellation or Postponement

6.1. Subject to the provisions of Clause 8, any Booking Order may be cancelled or postponed by either party provided that notice in writing of cancellation or postponement is received and acknowledged by Mumbrella or the Client as the case may be not less than four (4) weeks before the first Campaign Start Date or such earlier date that Mumbrella may agree. Cancellation or postponement requests by a Client for campaigns within four (4) weeks before the Campaign Start Date shall be considered by Mumbrella and may be accepted at Mumbrella’ absolute discretion subject to the following cancellation charges that apply to the entire Campaign:

  1. i) Within two (2) – four (4) weeks before Campaign Start Date: 50% of the value of Booking Order at the time of cancellation; and
  2. ii) Within fourteen (14) days before Campaign Start Date: 100% of the value of Booking Order at the time of cancellation.

6.2. Unless an Booking Order is cancelled in accordance with Clause 6.1, a Client who fails to deliver any Creative in accordance with Clause 3 will remain liable to pay for the Campaign in full whether or not the Campaign is delivered. Mumbrella reserves the right, but not the obligation, to retain all Net Cost for any postponed Campaign and to rebook the Campaign during a mutually agreed period.

  • Mumbrella may in its sole discretion cease to display or transmit or publish any Advertisement: i) as a result of a third party owner of advertising space declining or otherwise ceasing upon reasonable grounds to display the Advertisement; ii) if necessary for Mumbrella to comply with a Notification; or iii) if the Client is in breach or likely to be in breach of any obligation or warranty contained in this Agreement. If Mumbrella ceases to display the Advertisement for any of the reasons stated in this Clause, then the Client must pay for the Campaign in full.
  • If, during the Term of this Agreement or any time thereafter, a party receives a Notification in respect of the Campaign or Advertisement, it must notify the other party in writing within 2 business day of receiving such Notification. The Client acknowledges and agrees that: where a Notification requires a response or action from Mumbrella, Mumbrella may, without any liability to the Client, take any steps necessary in order to respond to or comply with a Notification (to the extent Mumbrella is legally authorised and obliged to do so) to ensure compliance with any relevant Regulator requirements and/or laws (as applicable) and that Mumbrella may take these steps at any time and without further notice to Client.
  • If the advertisement position or resource changes due to the adjustment, revision, technical or website maintenance of Mumbrella Platforms or any other circumstance beyond Mumbrella’s reasonable control, with no liability to Mumbrella and its Affiliates, Mumbrella shall inform the Client at least 5 days in advance and negotiate with the Client on such adjustment. If Advertisements cannot be released as agreed schedule due to the adjustment, both parties shall decide on the form, position, and release time of the supplementary publication through mutual negotiation in good faith.
  1. Reporting & Impressions

7.1 The Client acknowledges that delivery statistics provided by Mumbrella are the official, definitive measurements of Mumbrella’ performance on delivery obligations, if any, provided in the Agreement.

7.2 The Client acknowledges that impressions shall be measured using Mumbrella’ nominated ad server(s) or other third party technologies (in place from time to time). If set out in a Booking Order as a requirement of Mumbrella, Reporting shall be provided in written form (including, for purposes hereof, electronic distribution of a spreadsheet such as Microsoft Excel, slides such as Microsoft PowerPoint, or other documentation) and on a weekly basis; or through an online reporting portal.

7.3 Mumbrella shall endeavour to supply the target number of impressions indicated in the Booking Order (if any) (except where acceptable Creative is delivered late). However, the Client acknowledges that Mumbrella makes no guarantees with respect to any target audiences/segments, usage statistics, publisher platform or levels of impressions for any Campaign.

7.4 Mumbrella will retain all Net Cost  relating to a Campaign whether delivered in full or otherwise and any unused expenditure shall be applied against subsequent Campaigns.

7.5 If relevant to a given Campaign as stated on the Booking Order, where Mumbrella delivers 95% or more of the target number of impressions in the Booking Order (if any) and the unused budget amounts to one thousand dollars ($1,000) or less of the Net Cost, the Campaign will be deemed delivered in full.

7.6 With no liability to Mumbrella and its Affiliates, for CPM business models, if, after expiry of the Campaign Period, the actual impressions are lower than that specified in the Booking Order (if any), the Campaign Period shall be extended automatically until the impressions are fulfilled.

  1. Payment

8.1 Unless otherwise expressly agreed by the parties in writing, for each Campaign the Client will be invoiced at the time a Booking Order is made  and the Client must ensure that payment is made to Mumbrella in Australian Dollars within five (5) days after the date of the invoice.

  • The Client must pay the Net Cost and together with GST at the relevant rates prescribed by law.
  • Words or expressions used in this Clause 8 which are defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in this Clause. Any consideration to be paid or provided for a supply made under this Agreement, unless specifically expressed to include GST, does not include an amount on account of a party’s GST liabilities with respect to that supply. If a party (GST Supplier) makes a supply under this Agreement on which GST is imposed: the consideration payable or to be provided for that supply but for the application of this Clause (GST exclusive consideration) is increased by, and the recipient of the supply (Recipient) must also pay to the GST Supplier, an amount equal to the GST payable by the GST Supplier on or for that supply; and the amount by which the GST exclusive consideration is increased must be paid to the GST Supplier by the Recipient at the same time as the GST exclusive consideration is payable or to be provided

8.3 The Client understands that once the Agreement is entered into, there shall be no refunds or suspension of payments, other than at the sole discretion of Mumbrella.

8.4 In the event the Client fails to pay an invoice by the due date, Mumbrella reserves the right without prejudice to all its other rights:

  1. i) to accept no further Booking Orders from the Client;
  2. ii) to treat any amount due to Mumbrella as a simple debt recoverable immediately; and/or

iii) to charge interest on all monies outstanding beyond the date for payment at a rate of two percent (2%) over the prevailing pre-judgment interest rate prescribed by the Supreme Court of New South Wales from time to time in force, and the Client will be responsible for all expenses (including legal fees on an indemnity basis) incurred by Mumbrella in collecting the amounts due.

8.5 The existence of a query relating to any individual item in an invoice will only affect the due date of payment of that individual item. The Client must contact: ap@divcom.net.au with respect to any invoice queries in writing with any query within seven (7) Working Days from receipt of the invoice. Any such query must note the invoice to which it refers together with full details of the query. No invoice may be brought into dispute by the Client after this time.

8.6 All Booking Orders are accepted on the understanding that they will be paid for at the rates agreed and in accordance with this Clause 8. Mumbrella’ advertising rates are subject to change in their sole discretion and, Mumbrella will use commercially reasonable efforts to notify the Client of all advertising rate changes at least thirty (30) days in advance of their effective date.

8.7 All payment accounts for Campaigns shall be made in full and it shall not be open to the Client to make any deduction, retention or to claim any rights of set off or to make any counterclaim in any proceedings brought by Mumbrella.

8.8 Media Agencies using Mumbrella acknowledge and agree Mumbrella is a cost of good and is non-commissionable. No agency rebates or commissions will be given.

  1. Licence & Rights

9.1 Without prejudice to any rights Mumbrella may have at law, the Client hereby grants to Mumbrella a worldwide, non-exclusive, royalty-free licence to reproduce and display the Creative (including all contents, trade marks and brand features contained therein) across any and all Media. The Client acknowledges that it will ensure such Creative is cleared for transmission and/ or access by viewers across all Media in the manner facilitated by Mumbrella from time to time.

9.2 Where the Client provides the material for the Creative, all intellectual property rights in such material provided by the Client and the Client’s trade marks (excluding the Mumbrella trade marks) shall remain the property of the Client.

9.3 Where Mumbrella creates the material for the Creative, all legal and beneficial interest in any intellectual property rights relating to the materials, video, audio, graphics, text, data or software provided by or on behalf of Mumbrella for the purposes of the Agreement (however excluding the Client’s trade marks) and all templates, formats, documents, drawings and all other items produced, developed, utilised or supported by or on behalf of Mumbrella remain the property of Mumbrella. For the avoidance of doubt, where Mumbrella pays a third party to develop any Creative, it shall be deemed to be supplied by or on behalf of Mumbrella for the purposes of the Agreement.

9.4 Client grants Mumbrella and its Affiliates a non-exclusive licence to use, modify and copy any intellectual property provided to Mumbrella or its Affiliates for the purposes of performing their respective obligations under this Agreement, including the promotion of Mumbrella and its business.

9.5 Any Campaign specific performance data contained in the Deliverables or arising out of the Campaign shall be the property of the Client. Client grants Mumbrella a perpetual, irrevocable and non-exclusive licence to use such materials contained in the Deliverables or arising out of the Campaign globally for its own internal business purposes in connection with its services. To the extent that any data contained in such Deliverables or arising out of the Campaign is the property of Mumbrella or its licensors, Mumbrella grants the Client a perpetual, irrevocable and non-exclusive licence to use such materials contained in the Deliverables in the Territory for its own internal business purposes in connection with the Deliverables.

  1. Warranties

10.1 The Client warrants and represents to Mumbrella for the duration of the Term and after expiry of the Campaign that:

  1. i) it will be responsible for obtaining and paying for all necessary licences and consents for the transmission of the Creative across all Media throughout the Territory;
  2. ii) it holds all necessary rights to permit the use, reproduction, display, transmission and distribution of the Creative in the manner specified and can grant to Mumbrella such rights (which, for the avoidance of doubt, in the event that any Creative contains a sound recording (the “Recording”), shall include but not be limited to all consents and permissions from (a) the owners of the copyright in such Recording; (b) the copyright owners of the musical and/or literary composition(s) reproduced on the Recording; and (c) any guild or union, for which the Client shall pay all re-use payments, royalties and other sums required for such consents and permissions);

iii) where the Client has provided the material for the Creative, it has obtained all intellectual property rights and other third party rights, and all appropriate consents, clearances, licences and waivers for the Creative (including without limitation all rights in the Recording and the musical and/or literary compositions and performance rights);

  1. iv) that the transmission of the Creative will not infringe any intellectual property right or other third party right;

v) the Creative does not contain anything which is: illegal; contrary to any Relevant Laws; contrary to any applicable AANA Codes of Practice; contrary to any Industry Code, false, misleading or deceptive or likely to mislead or deceive; indecent, obscene, threatening, discriminatory, harassing, in breach of any confidence, defamatory, libellous, offensive or objectionable;


  1. vi) it has complied and the Creative complies with all Relevant Laws; and

vii)where the Creative or any other materials provided to Mumbrella are in the form of the Buyer’s or a third party’s (e.g. carriers or list providers) database or list of customers containing personal information, the Creative complies with the Do Not call Register Act 2006, the Spam Act 2003 and the Privacy Act 1988 and the Australian Privacy Principles.

The above warranties shall survive termination of this Agreement.

10.2 The Client acknowledges and agrees that:

  1. i) the Deliverables are not intended to be used as the sole basis for any business decision, and may be based upon data which is provided by third parties;
  2. ii) the Deliverables are sold as is; and

iii) the Deliverables may also involve data and information, and therefore Mumbrella and its Affiliates will not be liable for: (a) any inaccuracy, incompleteness or other error relating to any material, data or information provided to Mumbrella by any third party (including any subcontractor); or (b) any failure of the Deliverables to achieve any particular result for the Client.

10.3 The Client further acknowledges and agrees that:

  1. i) the Client will not use any automated means, including agents, robots, scripts, or spiders to access, monitor, scrape or copy any Mumbrella or third party publisher websites, applications or systems or any data therein, except using automated means expressly made available by Mumbrella or authorised by Mumbrella in advance in writing (e.g., third-party tools approved by Mumbrella);
  2. ii) it will not interfere or attempt to interfere with the proper working of any Mumbrella website, application or system;

iii) it will not provide any Creative that might cause damage to computers, download a software application, change user settings, or create a series of multiple, sequential, stand-alone advertisements (including by pop-up window or pop-under window); and

  1. iv) nothing in this Agreement grants to the Client any right of access to or audit over Mumbrella’ business or costs and the Client must not grant any such rights to any third party. Under no circumstances will access ever be granted to Mumbrella’ servers or IT systems.
  2. Indemnity

In relation to third party claims, the Client agrees to indemnify and keep indemnified Mumbrella, its Affiliates, officers and employees and hold Mumbrella, its Affiliates, officers and employees harmless against any and all liabilities, costs, expenses, damages and losses of any kind (including legal fees and costs) incurred by Mumbrella, its Affiliates, officers and/or employees as a result of any claims actual or threatened, relating to

  1. i) Client’s breach of, or failure to perform any of its obligations under, the Booking Order or this Agreement;
  2. ii) Any claims relating to the Client’s Advertisements and/or their placement (where such placement was approved by Client);

iii) advertising or other materials or information supplied by Client or its representatives to Mumbrella;

  1. iv) the nature or use of any of Client’s products or services;
  2. v) any risks or restrictions brought to the attention of Client by Mumbrella where Client elects to proceed;
  3. vi) any trademark or copyright infringement;

vii) any breach of confidentiality; and

viii) breach of any Relevant Laws, arising from the Creative and/or any material (of the Client or otherwise) supplied by the Client to Mumbrella.

  1. Limitations of Liability

12.1 Mumbrella’ liability for its performance under the Agreement including without limitation any failure to provide the services specified under the Agreement or extending the term of the Campaign Period, will be limited to providing an alternative advertising opportunity, as soon as is reasonably practical, of a value equal to the shortfall using the relevant rates agreed between Mumbrella and the Client. The Client further acknowledges and agrees that Mumbrella does not accept and will not be responsible for any loss or damage (to the Buyer’s brand or reputation or otherwise) caused by: any third party media owner (for example a publisher or mobile carrier) declining or otherwise failing for any reason to display an Advertisement, or Mumbrella complying with a Notification.

12.2 This entire condition and any other limitations in the Agreement, including these Terms & Conditions, do not apply to any Consumer Guarantee under the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)) (“Australian Consumer Law”) or to any of Mumbrella’ liability for failure to comply with a Consumer Guarantee under the Australian Consumer Law. To the fullest extent permissible by law, Mumbrella’ Services are provided on an “as is” and “as available” basis without any warranties of any kind either expressed or implied. Mumbrella disclaims all warranties of merchantability, non-infringement and fitness for a particular purpose. In no event will Mumbrella, its Affiliates and related entities, servants, employees and agents, be liable to the Client for any form of loss, damage, liability or expense whatsoever arising from any act or omission by the Client (including where the Client has failed to deliver the Creative or Campaign Instructions in the manner required), a third party service provider or contractor to Mumbrella or any discrepancy, fault or malfunction of any Mumbrella  or third party telecommunications system, software, system or computer server or any other technology based platform, including but not limited to consequential, indirect, incidental, or special loss even if such loss was in the contemplation of the parties at the date of this Agreement as a probable result of a breach of this Agreement, and including any loss of profits, loss or revenue, loss of production, loss of media, business interruption, loss of contract, loss of opportunity, loss of or unauthorised access to information, loss of anticipated savings, loss of reputation, loss of goodwill, loss of data, the cost of engaging an alternative service provider and similar loss arising from any failure to publish in a timely manner or at all any Creative in accordance with the Agreement or any other breach by Mumbrella of the terms of the Agreement  and even Mumbrella has been advised of the possibility of such loss, and including in respect of any indemnity claim.

12.3 Without prejudice to the provisions of Clauses 12.1 and 12.2, in the event that Mumbrella or its Affiliates is held liable for damages or losses suffered by the Client, the maximum aggregate liability that Mumbrella shall have towards the Client in respect of any act or omission and any related series of acts or omissions, including under any indemnity claim, shall be the Net Cost actually paid to Mumbrella by the Client or on its behalf under the Agreement.

12.4    The Client acknowledges that Mumbrella has not made any warranties in respect of the success or otherwise of any Campaign or any other media, marketing communications channel, marketing or advertising campaign, promotion or advertisement.

12.5    If the Agreement constitutes a supply of goods and/or services to a Consumer then, subject to the limitation to this condition below and unless the goods and/or services are Consumer Goods or Consumer Services, Mumbrella’ liability for a breach of this Agreement, including any liability for any Losses or consequential Losses which the Client may suffer or incur because of a failure to comply with a Consumer Guarantee will be limited as Mumbrella may elect in its absolute discretion, in the case of services supplied or offered by Mumbrella, to either: (a) supplying the services again; or (b) paying the cost of having the services supplied again; or, in the case of goods supplied or offered by Mumbrella: (c) replacing the goods or supplying equivalent goods; (d) repairing the goods; (e) paying the cost of replacing the goods or acquiring equivalent goods; or (f) paying the cost of having the goods repaired. This condition does not apply if it is not Fair or Reasonable for Mumbrella to rely on it. Words or expressions used in this condition which are defined in the Australian Consumer Law have the same meaning in this condition.

12.4 Notwithstanding any other provision of the Agreement, Mumbrella does not limit or exclude liability for death or personal injury caused by its negligence or fraudulent misrepresentation.

  1. Term & Termination

13.1 The term of the Agreement shall commence when the Booking Order has been accepted by Mumbrella and the Agreement shall continue in force and effect until the Campaign End Date unless terminated earlier pursuant to this Clause 13.

13.2 Without prejudice to its other rights and remedies Mumbrella shall be entitled to terminate the Agreement in whole or in part forthwith at any time by giving notice in writing to the Client if:

  1. i) the Client fails to observe or perform any of its obligations hereunder and, where such failure is capable of remedy, does not remedy such failure within seven (7) days after being served notice to do so;
  2. ii) the Client fails to comply with its obligations to pay the Net Cost as set out in Clause 8 of these Terms and Conditions;

iii) the Client becomes insolvent, a person passes a resolution for either winding up or dissolution, an administration order is made against the Client or a receiver is appointed over, or takes possession of the assets of the Client, subject to the Corporations Act 2001;

  1. iv) the activities or conduct of the Client or activities relating to the Client’s business are of such a nature that Mumbrella reasonably considers that the continued provision of advertising and/or sponsorship services would be detrimental to the reputation of Mumbrella or otherwise damaging to the Mumbrella brand; or
  2. v) the Client undergoes a change of control (for the purposes of this paragraph “change of control” shall occur where (a) a person who is not an Affiliate of the Client gains Control of the Client; or (b) any person obtains any form of influence over the management of the Client and Mumbrella reasonably believes such influence would be harmful to Mumbrella’ business or the business of any of its Associates), and on termination of the Agreement by reason of any of the foregoing, Mumbrella shall be entitled without affecting any other rights which it may have, to charge, in addition to all other sums due under the Agreement, any costs associated with removing the Creative from any broadcast or transmission on any platform.

13.3 In the event that the Agreement is terminated for any reason then without prejudice to its rights and remedies:

  1. i) Mumbrella shall be under no obligation to transmit or publish any Advertisement or to refund any Net Cost [or other amounts paid by or on behalf of the Client to Mumbrella in respect of such Advertisement; and
  2. ii) the Client shall remain liable for any amount due under an Booking Order and such an obligation to pay shall survive the termination of the Agreement.

13.4 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect. Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.

  1. Data & Privacy

14.1 Unless otherwise agreed in writing, Client shall not transfer any ‘Personal Information’ to Mumbrella or its Affiliates pursuant to this Agreement. If at any time Mumbrella is requested to process such data pursuant to this Agreement it shall immediately notify the Client in writing of such request and the Parties will enter into good faith discussions to agree a data processing agreement based on Mumbrella’s standard data protection provisions and policies. The parties must provide all reasonable and lawful assistance to each other in the event that a party may be subject to an Eligible Data breach and comply with the requirements of the Privacy Act 1988 (Cth) in respect of the Eligible Data Breach.

14.2 Aggregate Statistics. Notwithstanding anything to the contrary set forth in the Booking Order, Client acknowledges and agrees that Mumbrella and its Affiliates may collect and retain anonymous information about users of Advertiser’s and other third party web sites and may use data derived from Client’s use and Mumbrella’ performance of the services (together, “Usage Data”):

  1. i) to compile aggregate statistics, metrics and general trend data for the enhancement and optimization of campaigns for Client and other clients and for marketing, promotional, and analytics purposes;
  2. ii) in an aggregate, anonymous database used for trending, analytics and media planning purposes for Client and other clients, provided that neither Advertiser`s users nor Advertiser will be identified to any third party in connection therewith and under no circumstances will Mumbrella provide any Client or Advertiser Confidential Information to any other party in connection with such use.;

14.3 Client agrees that certain types of Campaigns which the Client may book may be provided using the services of Mumbrella’ appointed media technology partners (“Campaign Partners”). In providing and optimising such services, Usage Data may be collected and/or used by these Campaign Partners on behalf of Mumbrella. Such Campaign Partners will be subject to confidentiality obligations in relation to the Usage Data which are no less onerous than those set out above, and may only use Usage Data in which the Client is identifiable for the purposes of and to the extent necessary to provide the relevant Campaign.

14.3 Client agrees that it will ensure that the Advertiser’s or their Affiliates’ web site(s) will feature an easy-to-understand privacy policy and, if applicable, any other privacy disclosures that are necessary to comply with all Relevant Laws (including any applicable industry self-regulations generally, and as currently adhered to by Mumbrella).

  1. Confidentiality

15.1 Each party shall keep confidential all information disclosed to it by the other whether relating to the Agreement or otherwise relating to the content or operation of the Agreement (including but not limited to business affairs, operations, customers, analysis, compilations, the Deliverables, data, the Mumbrella Data and any other data provide by Mumbrella to Client in respect of the Campaign (whether provided directly to Client or via an online portal), opinion and other material pursuant to this Agreement) (the “Confidential Information”).

15.2 Each party will only disclose Confidential Information to those of its employees and officers and contractors who:

  1. i) need to know it for the purpose of exercising or performing its rights and obligations under the Agreement;
  2. ii) are informed of the confidential nature of the information divulged; and

iii) agree to act in compliance with this Agreement.

15.3 Neither party will disclose Confidential Information to any third party (other than its employees and officers in accordance with this Clause 15), except for information that is in the public domain other than by default of the recipient party and;

  1. i) is obtained by the recipient party from a bona fide third party without restriction on its right of disclosure of such information;
  2. ii) is or has already been independently generated by the recipient party;

iii) is reasonably passed on to third parties by Mumbrella for the purposes of undertaking credit and risk management; or

  1. iv) is required to be disclosed by law or the valid order of a court of competent jurisdiction, or the request or direction of any governmental or other regulatory authority or agency provided that the recipient party shall notify the disclosing party promptly of any such potential requirement (and, if possible, prior to making any such disclosure) and shall use all reasonable endeavours to seek confidential treatment of any such information.

15.4 The provisions of this Clause 15 shall expressly survive any termination, expiry or assignment of the Agreement.

  1. Disclaimer

16.1  The Client understands that regular or non-scheduled downtime maintenance is required for the normal operation of Mumbrella Platforms. If Advertisements hereunder cannot be released as scheduled due to such maintenance, the Client covenants not to hold Mumbrella and its Affiliates liable therefore; provided, however, that Mumbrella shall have the obligation to try to avoid service interruption or limit the interruption to the shortest possible time.

16.2  Based on the overall market interest and operational needs, the Client may with the approval of Mumbrella, adjust the content, layout, page design and other elements on the Mumbrella Platforms from time to time. If the release of Advertisement hereunder is affected due to the above adjustments (including the position and resource and/or release time, etc.), the Client shall give full understanding and undertake not to hold Mumbrella and its Affiliates liable therefore, provided that Mumbrella shall minimize the above impact to the minimum extent.

16.3  The Client agrees, if any Advertisement could not be published normally due to hacker attack, shielding of third party’s software or other reasons outside of the reasonable control of Mumbrella and its Affiliates, the Client shall give full understanding and not to hold Mumbrella and its Affiliates liable therefore, provided that Mumbrella shall minimize the impact above.

  1. Miscellaneous

17.1 The Client acknowledges and agrees that:

  1. i) invoices between Mumbrella and the Client relating to Media inventory or bookings may be audited for the sole purpose of confirming that the Campaign was delivered, however Mumbrella’ costs and the rates at which Mumbrella purchased inventory from Media and other third parties, and any Usage Data, will not be subject to any audit by the Client or any third party; and
  2. ii) Mumbrella will adhere to the Cost as agreed in an Booking Order for impressions and/or Media inventory, but will not pass through any other costs, discounts, commissions, bonus inventory or benefits associated with such Media inventory to the Client.

17.2 Neither party may assign, resell or transfer any of its rights or obligations under the Agreement without the prior written consent of the other party. Notwithstanding the above, Mumbrella may, in its sole discretion, assign or novate its rights or obligations to its Affiliates, provided that it provides the Client with written notice of the assignment or novation.

17.3 No waiver of any breach of the Agreement is effective unless in writing and signed by the parties to the Agreement.

17.4 This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all other prior understandings, commitments, agreements and (unless made fraudulently) representations, whether written or oral, between the parties. Further, the Client acknowledges and agrees that it has not relied upon any representation or otherwise of Mumbrella when entering into the Agreement.

17.5 Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from an event of Force Majeure. In such circumstances, the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for thirty (30) days, the party not affected may terminate this Agreement by giving seven (7) days’ written notice to the affected party. This termination will be subject to charges at Mumbrella’ discretion.

17.6 Each of the provisions of the Agreement are to be construed separately and independently of the other and, if any provision or clause of the Agreement is found by any court or other judicial body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision or clause will not affect the other provisions of the Agreement or any other clause herein which will remain in full force and effect.

17.7 The Agreement shall be governed by and construed in accordance with the laws of New South Wales without regard to its conflict of law provisions. You agree to submit to the personal and exclusive jurisdiction of the courts of New South Wales.


Get the latest media and marketing industry news (and views) direct to your inbox.

Sign up to the free Mumbrella newsletter now.



Sign up to our free daily update to get the latest in media and marketing.