Our Advertising Terms and Conditions
The Warehouse Limited, trading as MarketMedia (“us”, “we”, “our” or “MarketMedia”), will make available to you (the “Customer”) a variety of tools and services, including as may be provided through the MarketMedia Ads Manager, that enable the Customer to place advertisements on various websites, forums and platforms, and to manage and receive reporting on those advertisements.
In order to provide these tools and services, we engage with various media, data, and platform partners (“Publishers”). Pursuant to this engagement, Publishers pass contractual requirements to us and we, in turn, are required to pass those requirements on to our Customers. We note that our ability to provide the Ad Services is dependent on the ability of our Publishers to provide their services to us. As such, any suspension in the provision of services from our Publishers may result in a suspension in the Ad Services we provide.
Please read these terms and conditions (“MarketMedia Terms”) carefully before engaging in any Ad Services with MarketMedia. By using MarketMedia’s Ad Services, you agree to be bound by the MarketMedia Terms.
1. Application:
a) The Market Media Terms apply to all Ad Services provided by MarketMedia to the Customer.
b) The provision of Ad Services is also subject to:
i. any terms and conditions set out in a booking confirmation accepted by the Customer (the “Booking”);
ii. the Supplementary Terms; and
iii. any other terms and conditions or policies notified to the Customer from time to time.
c) We may change the MarketMedia Terms at any time, and changes will be posted on our website, on the MarketMedia Ads Manager platform and/or notified to you directly. By continuing to use MarketMedia, you continue to agree to the MarketMedia Terms and are bound by any changes to them.
2. Additional Terms and Conditions:
a) Rate Card: The rates for Ad Services shall be specified in the rate card provided to you by MarketMedia. All rates are expressed exclusive of GST. The rates are subject to change at MarketMedia’s discretion.
b) Credit Terms: Credit terms, if applicable, shall be agreed upon separately between the Customer and MarketMedia. This includes any Customers who pay via a wallet.
c) Placement-specific terms: Appendix A sets out specific terms and conditions that apply to various placements.
d) Publisher terms: If you publish an advertising campaign (“Campaign”) on a website, forum or platform operated by Publisher (a “Publisher Property”), you must comply with the terms and conditions applicable to the Publisher Property as amended from time to time.3. Services
a) MarketMedia will provide the Customer with a variety of tools and services related to advertising. This includes the following:
i. advertising tools and technologies;
ii. purchase of inventory on your behalf;
iii. performance of tracking and analytics;
iv. storage and serving of ads;
v. purchase of placements on Publisher Properties, in accordance with clause 2(d) of the MarketMedia Terms; and vi. any other services that we agree with you from time to time, (together, the “Ad Services”). b) You grant us, and any Publishers as necessary, all rights and permissions reasonably necessary to perform the Ad Services. You understand and agree that such rights and permissions may need to be extended to third parties we or Publishers work with in order to provide Ad Services to you.
4. Advertising Material:
a) Editorial Control: MarketMedia retains the right to exercise editorial control over the advertising material provided by the Customer (“Customer Material”) to
ensure compliance with applicable brand guidelines, laws, regulations, and codes, including to the right to edit, delete, reject or remove any content in its sole discretion.
b) Supplier of Customer Material: The responsibility for supplying Customer Material lies with the Customer. We may provide guidelines for the format and specifications of the Customer Material, which you agree to follow.
c) Responsibility for Customer Material: The Customer is solely responsible for the content and substance of any Customer Material submitted to MarketMedia and for the Customer Material’s compliance with applicable brand guidelines, advertising standards codes, laws, and regulations. MarketMedia takes no responsibility for the content, substance, or any other aspect of the Customer Materials.
d) Approval Process: Customer Material submitted by the Customer shall undergo an approval process by MarketMedia. MarketMedia reserves the right to reject
or modify the Customer Material to ensure compliance with applicable laws, regulations, codes, and editorial standards. Such approval does not represent a confirmation from MarketMedia that the Customer Material complies with applicable brand guidelines, advertising standards codes, laws and regulations. Market Media is not required to undertake a review of the content or substance of the Customer Material, and approval from MarketMedia does not imply that such a review has been undertaken.
5. Customer obligations:
a) Compliance with laws: The Customer will comply with all laws, regulations, codes including the Fair Trading Act 1986, Privacy Act 2020 and AdvertisingStandards Codes. This includes in respect of the Customer Materials provided by the Customer.
b) Reasonable instructions: The Customer will follow our reasonable instructions in relation to the Ad Services. This includes rectifying any defects or errors in the Customer Material brought to their attention by MarketMedia.
c) Repute: The Customer will not act or advertise in a way that brings MarketMedia into disrepute or which, in MarketMedia’s reasonable opinion, detriments its business, reputation or services.
d) Third party consents and rights: The Customer will obtain all consents and approvals to use other parties’ rights and not misuse or breach the rights of any third party, including any rights in respect of intellectual property, or provide Customer Materials which would breach this term.
e) Malicious Code: The Customer will not, as a result of its actions or inactions, deliver malware, spyware, or any other malicious code to the MarketMedia Ads Manager or to users (i.e., any user of any website, portal, browser, device, application, or other online service) or devices through the Ad Services or on or through any Publisher Property or destination.
f) Program Security: The Customer must not knowingly breach or circumvent any program security measures implemented by MarketMedia nor use any device, software, or routine to interfere or attempt to interfere with the proper working of the Ad Services.
g) Automated/Fraudulent Impressions: The Customer must not generate automated, fraudulent, or otherwise invalid impressions, inquiries, clicks, or conversions.
h) Concealment of Conversions: The Customer must not conceal Campaign conversions or authorise any third party to do so.
i) Third Party Tracking: The Customer must not use third-party tracking for billing purposes without prior written consent from MarketMedia.
j) Inappropriate content: The Customer is responsible for ensuring that the Customer Material does not breach any applicable advertising standards codes, laws or regulations and in particular, is (or could reasonably be expected to be) obscene, offensive, pornographic, vulgar, profane, indecent or unlawful, is (or could reasonably be expected to be) defamatory of any person, racially or religiously vilifies, incites violence or hatred, or is likely to offend, insult or humiliate others based on race, religion, ethnicity, gender, age, sexual orientation or any physical or mental disability, or you know or suspect (or ought reasonably to have known or suspected) to be false, misleading or deceptive.
k) Brand alignment: MarketMedia reserves the right to refuse or remove any Customer Material that it considers to be inappropriate to display onMarketMedia channels due to brand alignment considerations.
l) Accounts: When you create an account with MarketMedia Ads Manager (“Account”), you are solely responsible for the activity that occurs on your Account (including incurred fees and charges) regardless of whether the activities were authorised or undertaken by you.
m) Security: The Customer will keep any passwords in respect of Accounts secure. MarketMedia is not responsible for any unauthorised activity on the Customer’s
Account if the Customer fails to keep its Account login information secure. If the Customer suspects or becomes aware of any unauthorised use of its Account, the Customer must notify us immediately and take immediate steps to re-secure your Account.
n) Access: Other than connecting to MarketMedia Ads Manager via HTTP requests using a web browser, or via one of our official apps, the Customer must not, or attempt to:
i. gain access to our servers;
ii. disrupt , modify or interfere with MarketMedia Ads Manager, associated services or any associated software, hardware and servers in any way;
iii. use or authorize the use of the MarketMedia Ads Manager or Ad Services for any purpose not permitted under the MarketMedia Terms;
iv. reproduce, distribute, modify, prepare derivative works of, translate, reverse engineer, reverse compile or disassemble any tag, audience tools (other than your own data), content, or service on MarketMedia Ads Manager or any other Publishers involved in the provision of Ad Services to you;
v. use MarketMedia Ads Manager in any inappropriate or unlawful way.
6. Compliance with obligations to Publishers
a) The Customer shall respond to any requests for information from MarketMedia as are reasonably required to assist MarketMedia and the Publishers to deliver the Ad Services and to comply with MarketMedia’s obligations to its Publishers.
b) The Customer will ensure all Customer Materials comply with the requirements of the relevant Supplementary Terms.
7. Changes to Ad Services:
a) MarketMedia and Publishers may make changes to the placement of advertisements using the Customer Material, including whether to provide additional bonus impressions. MarketMedia reserves the right at any time, without incurring any liability and without notice to the Customer to:
i. decline to commence broadcasting and/or publishing of the Customer Material;
ii. decline to continue broadcasting and/or publishing of the Customer Material
ii. terminate the Booking; or
iv. advance or delay the date and time of broadcasting and/or publishing of the Campaign,
but will use reasonable endeavours to notify the Customer prior to exercising its right under this clause.
b) MarketMedia may also reject or remove any advertisement using the Customer Material or suspend any Campaign if:
i. the advertisement or Campaign breaches clause 5 of the MarketMedia
Terms;
ii. your Account has been, or our controls identify that it may be, used for deceptive or fraudulent or illegal activity;
iii. MarketMedia believes the Customer Materials or Campaign may expose MarketMedia to liability; or
iv. for any other reason regarded as reasonable by MarketMedia.c) Customer may request to move or change a placement, subject to the requirements of the relevant Supplementary Terms.
d) Either party may cancel a Campaign by providing written notice to the other party, subject to the requirements of the relevant Supplementary Terms.
e) Change or cancellation fees or penalties, if applicable, shall be outlined in separate agreements or rate cards.
f) MarketMedia reserves the right to determine all aspects of the Ad Services, and may modify, restrict, or discontinue any services and tools offered through the Ad Services at any time without notice.
8. Cost and Payment:
a) Cost: The Customer shall be responsible for the cost of Ad Services as per the rates specified in the rate card or agreed upon separately (“Fee”).
b) Invoicing: MarketMedia will invoice the Customer in arrears of the campaign running. MarketMedia may invoice on a monthly basis for extended campaigns.
c) Payment: Following the issue of a valid tax invoice for the Fees, the Customer will pay Fees in accordance with the processes and terms as separately advised to the Customer by MarketMedia.
d) Without prejudice to MarketMedia’s other rights or remedies MarketMedia reserves the right to discontinue any broadcast and/or Campaign if payment of Fees is overdue. If MarketMedia, acting in good faith, considers that the financial position of the Customer does not justify accepting Bookings on the
terms of payment set out herein, MarketMedia may, with immediate effect, require such Customer to make full payment of Fees on account or full payment in advance of each monthly Booking as a clause of acceptance of Bookings.
e) Customer waives all claims related to the Fees, unless made within 60 days after the date charged. In the event the Customer has a query regarding an
invoice, the due date of payment for the specific item(s) under query will be delayed until the query is resolved, but the balance of the invoice remains payable in accordance with clause d) above. The Customer must inform MarketMedia in writing, with a copy to the relevant accounts receivable department (The Warehouse or Noel Leeming), of any query within fourteen
(14) business days from receipt of the invoice, noting the invoice number relevant to the query, together with full details of and justification for the query.
If the query is resolved in favour of MarketMedia, the item in query will be due immediately, and provided MarketMedia has responded in an appropriate timeframe, will also be subject to interest charges as set out above in clause
d)(iii) where payment is made after the original due date for payment.
f) All amounts payable are stated in New Zealand Dollars. All amounts are exclusive of GST unless otherwise stated.
9. Liability, Warranties, Indemnities, and Insurance:
a) For the avoidance of doubt, this liability section does not exclude any rights or remedies that may be available under the Consumer Guarantees Act 1993
(“CGA”) for “consumers” as defined by those laws in respect of goods and services. With that said, if you are “in trade” within the meaning of the CGA, and acquiring services for “in trade” purposes, you acknowledge and agree:i. that the CGA and sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 will not apply to you; and
ii. that it is fair and reasonable for the parties to contract out of the applicable sections of each of those Acts.
b) Notwithstanding our right to supervise activity on the Publisher sites, we have no obligation to monitor interactivity or content uploaded to MarketMedia Ads Manager directly by you.
c) Liability:
i. In no circumstances will MarketMedia (or its employees or agents) be liable, whether in tort, contract or otherwise for any indirect, incidental, consequential loss, loss of profits, loss of business, loss of goodwill, punitive, special or exemplary damages, suffered by the Customer or any other person, whether or not such damages are foreseeable or a party has been advised of the possibility thereof arising from or in connection with MarketMedia Ad Manager.
ii. MarketMedia shall not be liable for any damages, losses, or expenses incurred by the Customer arising from the provision of Ad Services,
unless caused by MarketMedia’s negligence or wilful misconduct, and in any event will be limited to an amount equal to the Fees for the relevant Ad Services.
iii. The Customer understands and agrees that it is solely responsible for its supplied Customer Materials.
iv. MarketMedia Ads Manager is provided on an “as is” and “as available” basis, without any representations, warranties, covenants, or obligations of any kind. We may make changes to the MarketMedia Ads Manager at any time without notice.
d) Warranties: Except as expressly provided in the MarketMedia Terms, MarketMedia excludes, to the fullest extent permitted by law, all warranties, representations and conditions whether implied by law, trade, custom or otherwise, and in particular, MarketMedia makes no warranties or representations regarding the performance or results of Ad Services. The Customer warrants to MarketMedia that no Campaign or Customer Material will:
(i) give rise to any claims or liabilities against MarketMedia, or any
brands within The Warehouse Group;
(ii) infringe or misappropriate copyright, trade mark or other intellectual or industrial property rights of any person;
(iii) contain material that is obscene, offensive, defamatory, illegal or otherwise unsuitable for publication;
(iv) in the case of digital advertising, contain cookies, tracking tags or other tracking device unless MarketMedia has provided its prior
written consent, or allow for data leakage or the re-use or on- selling of retargeted audiences;
(v) be, or be likely to be, misleading or deceptive or otherwise infringe the Fair Trading Act 1986 or any other statute, regulation, code or
rule of law; or(vi) breach the provisions of the Advertising Standards Authority, the Broadcasting Standards Authority and any other applicable codes; and
(vii) breach of the Privacy Act 2020.
e) Where the Customer is an Agency, the Agency warrants that:
(viii) it contracts with MarketMedia as principal notwithstanding that it may be acting as an agent or media buyer or in some other
representative capacity;
(ix) it is authorised to represent and bind the advertiser(s) named in the Booking;
(x) the advertiser(s) agree to be jointly and severally bound by the MarketMedia Terms; and
(xi) it undertakes to indemnify MarketMedia against any loss arising from any claim by the advertiser in respect of the Agency’s or advertisers breach of these terms and conditions.
f) Indemnities: In no circumstances shall MarketMedia be liable for:
i. any error in the Customer Material whatsoever or through the incorrect presentation or codes for the Customer Material or otherwise (unless caused by MarketMedia) and the Customer hereby indemnifies MarketMedia in respect of any claim, loss, damage or otherwise arising out of any error or omission in the Customer Material, or its use of the Ad Services in contravention of the MarketMedia Terms;
ii. the content or substance of any Customer Material submitted by the Customer to MarketMedia and the Customer hereby indemnifies MarketMedia in respect of any claim, loss or damage or otherwise arising out of the content, substance or other aspect of the Customer Material; or
iii. any loss suffered by MarketMedia as a result of any claim by a Publisher, where such breach is caused by a breach of the MarketMedia Terms by the Customer, or otherwise as a result of the Customer Materials.
g) Insurance: The Customer shall maintain general liability insurance with coverage limits adequate to fully indemnify MarketMedia from any applicable third-party actions or claims as a result of the Customer’ breach of the MarketMedia Terms.
10. Licence to use Customer Materials:
a) Customer grants MarketMedia and Publishers a worldwide, non-exclusive, royalty-free, and sublicensable right and licence to use the Customer Materials for the purposes of providing the Ad Services. The Customer waives any moral rights in such issue.
b) The Customer acknowledges and agrees that its advertisements and intellectual property may be incidentally captured in photographs and/or recordings taken by or on behalf of MarketMedia for promotional, archival, historical, and reference purposes. The Customer hereby approves suchpromotional uses, provided that MarketMedia agrees to remove any such material upon the Customer’s reasonable written request.
c) The Customer acknowledges that it has no ownership of or rights in relation to the platform or other intellectual property used to provide the Ad Services separately licenced by MarketMedia from its Publishers.
11. Non-Disclosure, Data Usage, and Ownership, and Privacy:
a) Non-Disclosure: Both the Customer and MarketMedia agree to keep confidential any proprietary or commercially sensitive information of the other party disclosed during the provision of the Ad Services. This includes, but is not limited to, trade secrets, business strategies and financial information. All reporting data provided to the Customer is solely for the internal use of the Customer. The parties shall not disclose confidential information to any third party other than to its advisors that are bound by equivalent confidentiality obligations, without the prior written consent of the other party, except as required by applicable laws or regulations.
b) Data Collection: Consistent with the Warehouse Group’s Privacy Statement (available at https://help.thewarehouse.co.nz/Help/s/article/Group-Privacy-Statement), MarketMedia may collect, use and store data related to the Customer and Ad Services, such as impression data, click-through rates, and Campaign conversions (“Advertising Data”) in connection with the Ad Services and its operations. The parties agree that MarketMedia may use this data for reporting, analysis, and optimisation of the Campaigns.
c) Use of MarketMedia and Publisher Audience Data: MarketMedia may offer Customers access to audience data provided by MarketMedia to plan and manage Campaigns exclusively through the Ad Services (“Audience Data”). Publishers may also offer personalisation options, subject to their own terms and conditions. The Customer may use the Audience Data solely for the purpose of managing Campaigns through the Market Media Ads Manager and shall not attempt to extract or recreate the data underlying the Audience Data or assemble similar data or audience segments (directly or indirectly through a third party).
d) Provision of Customer Data: Customer may use its own first-party audience data in conjunction with Ad Services. Where a customer provides MarketMedia with access to a database or list of audience information containing account holder and personal information (as defined by the Privacy Act 2020). By way of example, this includes but is not limited to names, IP addresses, etc.
e) Customer warranty: The Customer warrants that it complies with the Privacy Act 2020 whenever it provides data containing personal information. It further warrants that it has obtained all consents for MarketMedia and Publishers to collect, use, share and store that information for the Ad Services.
f) Ownership of Data: All data collected by MarketMedia during the provision of the Ad Services, including but not limited to Audience and Advertising and Customer usage data, shall remain the property of MarketMedia. The Customer shall have limited rights to access and use such data solely for the purpose of evaluating the performance of the Campaigns. For the avoidanceof doubt, data supplied by the Customer for its Campaigns is not captured by this clause.
g) Privacy: The parties agree to comply with all applicable privacy laws and regulations, including but not limited to the Privacy Act 2020. A party will notify the other party in writing immediately after becoming aware of an actual or suspected data breach with implications for the other party, and comply with any reasonable directions issued by other in connection with the data breach.
12. General: We reserve the right to determine all aspects of the Ad Services, and may modify, restrict, or discontinue any services and tools offered through the Ad Services at any time without notice.
a) Force Majeure:
i. Neither party is liable for failure or delay in performing its obligations under the MarketMedia Terms because of causes beyond its reasonable control, including acts of God, pandemic, epidemic,government orders, terrorism, war, riots, fire, earthquake, flood or degradation or failure of third party networks or communications infrastructure (“Force Majeure Event”).
ii. In the event that a Force Majeure Event persists for a period of more than 60 days, MarketMedia may suspend the provision of Ad Services to the Customer and may terminate any existing Bookings.
b) If any part of the MarketMedia Terms is found to be void, unlawful or unenforceable then that part will be deemed to be severable from the balance of the MarketMedia Terms and the severed part will not affect the validity and enforceability of any remaining provisions.
c) If MarketMedia does not exercise or enforce any right or provision under the MarketMedia Terms, it will not constitute a waiver of such right or provision. Any waiver of any provision under the MarketMedia Terms will only be effective if it is in writing and signed by MarketMedia. Headings are for convenience only and do not affect the interpretation of the MarketMedia Terms.
d) The MarketMedia Terms are governed by, and are to be interpreted in accordance with, the laws of New Zealand and the parties submit to the exclusive jurisdiction of the courts of New Zealand.
e) A Party must not start court proceedings (except proceedings seeking interlocutory relief) unless it has first attempted to resolve any dispute by negotiations using the following escalation procedure:
(i) Either party can initiate the dispute resolution process by giving written notice to the other party with details of the dispute (“Dispute Notice”). The parties will work together in good faith to resolve any dispute or difference arising between them in connection with this Agreement and may escalate the matter to senior managers within their organisation where necessary in order to seek a resolution;
(ii) If the parties cannot resolve the dispute by negotiation within 20 Business Days after delivery of the Dispute Notice (or such extension of time as the parties may agree), the dispute will be submitted to mediation in New Zealand in accordance with theprovisions of the Resolution Institute standard Mediation Agreement (NZ version) (“Mediation”).
(iii) The Mediation will be conducted by a mediator and at a fee agreed by the parties. If the parties fail to reach such an agreement within 10 Business Days of submission to Mediation, the mediator will be selected and the mediator’s fee will be determined, by the Chair for the time being of Resolution Institute and the parties will each be responsible for half of the mediator’s fee and for their own costs for the Mediation.
(iv) Arbitration: If the parties cannot resolve the dispute within 20 Business Days after commencement of Mediation, the dispute will, at the election of either party (by written notice to the other party) be determined by arbitration in New Zealand by a single arbitrator under the Arbitration Act 1996.
(v) Interlocutory relief: Nothing in this Agreement will prevent either party, at any time, from seeking any urgent interlocutory relief from a court of competent jurisdiction in relation to any matter that arises under this Agreement.
(vi) No failure or delay on our part to exercise any right or remedy under the MarketMedia Terms will be construed or operate as a waiver of such right or remedy. No single or partial exercise of any right or remedy by us precludes the further exercise of such right or remedy. By engaging in the provision of Ad Services with MarketMedia, you acknowledge that you have read, understood, and agreed to the MarketMedia Terms.
APPENDIX A – SUPPLEMENTARY TERMS
In-store screens Supplementary Terms
oOh!media’s terms apply to all advertising placements on MarketMedia’s in-store screens and across the oOh!media network: https://oohmedianz.com/terms-of-use/#:~:text=We%20accept%20no%20responsibility%20for,claims%20and%20demands%20brought%20or
The Trade Desk Supplementary Terms
The Trade Desk’s terms of service apply to all advertising placements booked via The Trade Desk, including display, out of home, BVOD, and digital audio:
https://www.thetradedesk.com/assets/global/documents/The-Current-Terms-of-Service.pdf
Pinterest Supplementary Terms
Pinterest’s policies apply to all advertising via Pinterest and Pinterest websites and services:
https://business.pinterest.com/en-au/business-terms-of-service/
Google / Youtube Supplementary Terms
Google’s policies apply to all advertising via Google and Google websites and services (this
includes Youtube): https://support.google.com/adspolicy/answer/6008942?hl=en
Facebook Supplementary Terms
Facebook’s policies apply to all advertising via Facebook and Facebook websites and services
(this includes Instagram): https://www.facebook.com/policies_center/
TikTok
TikTok’s policies apply to all advertising via TikTok: https://ads.tiktok.com/help/article/tiktok-
advertising-policies-ad-creatives-landing-page?lang=en