Nexus Program Terms & Conditions

 

1. Background

Welcome to the Nexus Program website ("the Website") which is owned, controlled and operated by Pacific Magazines Pty Limited, of Level 4 West, Media City, 8 Central Avenue, Eveleigh, NSW 2015 ("Pacific").

Pacific has created the Website for the purpose of authorised users accessing useful marketing information (including, for example, our sales and circulation data regarding your store) (“Marketing Collateral”), creating and sending SMS and Email marketing campaigns using the templates created by Pacific (“Campaign Templates”) to assist you in promoting traffic to your store.

Your use of and access to the Website and Marketing Collateral and Campaign Templates is conditional upon your acceptance of and compliance with these Terms of Use and the terms, conditions, notices and disclaimers contained in this document and elsewhere on the Website and Marketing Collateral and Campaign Templates, and on you complying with all applicable laws of the Commonwealth of Australia (including its states and territories).

In these Terms, “Pacific” means Pacific Magazines Pty Limited, and “You” means the newsagent business owner which has signed up to the Nexus Program.  Your rights under this agreement cannot be assigned.  If you sell or transfer your business you must give written notice to Pacific so that Pacific can enter into a new agreement with the new business owner.

These Terms begin when you set up your account and continue for 12 months (or as otherwise extended by Pacific) unless terminated in accordance with these Terms.

Pacific reserves the right to amend the Terms of Use at any time.

These Terms of Use are important and you should read them carefully.

2. Access

To use the Website and Marketing Collateral and Campaign Templates you will need to:

a. Access Website via the internet.

b. Login using username and password

At the time you activate your account you will be asked to create an account using your email address and password.

You must provide us with accurate and complete information when you activate your account. It is important that this information is entered correctly and updated if there any changes to your contact details. Pacific will use the contact details provided for correspondence with you. You must regularly check for emails from us at the email address you provided as we may send you important notices about your account, for example about planned upgrades or outages.

You must keep confidential all your identification and user information required to access your account.

Authorised users are not to provide their individual login username and password to any other person to access the Website and Marketing Collateral and Campaign Templates.

3. Availability of Website and Marketing Collateral and Campaign Templates

Pacific will try to make the Website and Marketing Collateral and Campaign Templates and Services available to you at all times but sometimes availability is affected by factors outside our control. For this reason we can't guarantee that the Website and Marketing Collateral and Campaign Templates will be available to you at all times. It may also be necessary to interrupt access occasionally in order to upgrade or maintain it.

You are responsible for paying for your personal broadband connection, including any download charges.

You acknowledge that Pacific will have no responsibility to provide you with access to the Website, Marketing Collateral nor Campaign Templates in any of the following circumstances:

(a) if there is a failure or malfunction in any device or equipment, any software or power supply outside the control of Pacific or any of its subcontractors or their agents;

(b) if an act or omission of you or your agent or representative, including the installation by or for you of software or equipment which is not compatible with the Website or Marketing Collateral and Campaign Templates, is responsible for Pacific’s inability to provide them to you;

(c) during any regular service outage window or scheduled maintenance or support window;

(d) if a requirement, direction or order from an Authority prevents or restricts Pacific or its subcontractors and agents from performing pursuant to these Terms;

(e) if there is unauthorised or illegal access by any person to any part of the computer systems used to provide the Website, Marketing Collateral or Campaign Templates, including hacking, cracking, virus dissemination and denial of service attacks; and

(f) during the period that there is a Force Majeure Event continuing.

4. Privileges and Incentives

As a member of the Program, you may from time to time be offered discounts, specials or deals on products and services supplied by Pacific and/ or its business partners.  You may take up these offers at your discretion.

Pacific may also offer incentives from time to time based on performance of members of the Program, such incentives which may be supplied by Pacific and/ or its business partners.

5. Your obligations

You:

(a) are solely responsible for the content of any data or information in Emails and SMSs which you send or receive using the Website and Marketing Collateral and Campaign Templates;

(b) must conduct your Nexus Program campaigns such that your customers do not receive Emails or SMSs from you less than 10 days apart;

(c) are solely responsible for your use of the Website and Marketing Collateral and Campaign Templates;

(d) are solely responsible for preparing and providing terms and conditions for any trade promotion you run in connection with the Program, and for obtaining trade promotion permits where required;

(e) must have a procedure in place that is capable of handling any complaints resulting from the Emails and SMSs distributed by you using the Marketing Collateral and Campaign Templates;

(f) must ensure that all equipment and software it connects to, installs or has installed or uses in conjunction with the Website and Marketing Collateral and Campaign Templates is technically compatible with the Website and Marketing Collateral and Campaign Templates and is otherwise consistent with any standard operating environment prescribed by Pacific, from time to time, in relation to the Website and Marketing Collateral and Campaign Templates;

(g) must keep secure any passwords used to gain access to, or receive the benefit of the Website and Marketing Collateral and Campaign Templates;

(h) must not alter, tamper, reverse engineer, repair or attempt to repair the Website and Marketing Collateral and Campaign Templates or cause, or allow a third party to do any of these acts;

(i) are solely responsible for selecting, supplying and maintaining your own facilities and equipment.

6. Warranties

6.1 You warrant that:

(a) products and services you promote in the Emails and SMSs have all the attributes stated in the Emails and SMSs, and are able to perform the functions as stated;

(b) products and services you promote in the Emails and SMSs will be able to live up to the reasonable expectations of the purchaser;

(c) the Emails and SMSs are not misleading or deceptive;

(d) the Emails and SMSs do not contain false representations;

(e) all claims made about the products or services are true;


6.2 You warrant that:

(a) you are not an undischarged bankrupt; and

(b) you are able to pay all debts as they fall due; and

(c) you hold sufficient stock of products promoted in the Emails and SMSs to meet consumer demand; and

(d) you are able to carry out any services mentioned in the Emails and SMSs.


6.3 You warrant that to the best of your knowledge, the Emails and SMSs:

(a) do not contravene:

i) any existing copyright, trademark or other intellectual property law;

ii) any Consumer Legislation or any similar State Legislation;

(iii) the Therapeutic Goods Act 1989 (Cth) or Therapeutic Goods Advertising Code;

(iv) the ANAA’s Advertisers Code of Ethics;

(v) the Financial Services Reform Act 2001 (Cth);

(vi) the National Co-ordinating Committee on Therapeutic Goods of Australia (NCCTG) “Cosmetic Claims Guidelines”;

(vii) the Slimming Advertising Code (as set out in the Weight Management Code of Practice);

(viii) any other relevant Statute, Regulation or law .

(b) do not breach an obligation of confidence or the rights of any third party;

(c) do not infringe intellectual property rights of any third party;

(d) do not contain any material which is:

i) defamatory;

ii) indecent;

iii) obscene;

iv) in contempt of any Court, Tribunal or Royal Commission.

7. Databases and Privacy

Your Database

(a) Pacific acknowledges that you maintain a database of names and personal information collected by you independently of your involvement in the Nexus Program (“Your Database”).

(b) You may use the Campaign Templates to send, via Pacific, Emails and SMSs to Your Database at your discretion. You acknowledge that such Emails and SMSs will at the same time be sent to Pacific’s Database (as referred to in clause 7(e) below).

(c) Pacific acknowledges that you own Your Database however you agree that Pacific may access Your Database for the purpose of:

(1) sending Emails and SMSs on your behalf as requested by you;

(2) Pacific sending Emails and SMSs promoting Pacific’s products and services and those of its Program Partners, business partners and related bodies corporate; and

(3) Pacific providing access to Program Partners for the purpose of the Program Partners sending Emails and SMSs promoting their products and services and those of their business partners and related bodies corporate.

(d) You warrant that the provision of access to the personal information in Your Database and Pacific’s use of Your Database pursuant these Terms (including the sending of Emails in its own right and also on your behalf) will not infringe any Privacy Laws and you indemnify Pacific with respect to any loss or claim against Pacific or its related bodies corporate that its use of Your Database is in breach of any Privacy Laws.


Pacific’s Database

(e) You acknowledge that Pacific maintains a database of names and personal information collected by Pacific (“Pacific’s Database”) and that Pacific owns Pacific’s Database.

(f) You may use the Campaign Templates and access Pacific’s Database for the purpose of you sending, via Pacific, Emails and SMSs to Pacific’s Database, provided:

(i) You comply with all your obligations in these Terms in relation to the distribution of such Emails and SMSs; and

(ii) You comply with Privacy Laws which relate to the use of personal information contained in Pacific’s Database and which relate to the distribution of Emails and SMSs to the people to whom such Emails and SMSs are addressed (including but not limited to providing a functional unsubscribe facility as formulated by Pacific in the Campaign Templates.

(g) You acknowledge that the provision of access to Pacific’s Database is solely for the purposes contemplated by these Terms and the Nexus Program. You also acknowledge that such Emails and SMSs will at the same time be sent to Your Database (as referred to in clause 7(b) above).

(h) The personal information you provide at the time you access the Website and Marketing Collateral and Campaign Templates will be handled in accordance with our Privacy Policy which can be found via a link on the Website and Marketing Collateral and Campaign Templates.

8. Intellectual Property Rights

(a) You acknowledge that Pacific owns Intellectual Property Rights in the Website, all Content on the Website and the Marketing Collateral and Campaign Templates and nothing in these Terms transfers to you any title to or in the Intellectual Property Rights of Pacific.

(b) Subject to your compliance with these Terms, Pacific grants to you a non-exclusive, non-transferable licence to use the Website and Marketing Collateral and Campaign Templates during the period of your membership in the Nexus Progam.

(c) Your use of the Website and Marketing Collateral and Campaign Templates is limited to the User you have registered for.

(d) All Content on the Website and Marketing Collateral and Campaign Templates is protected by Australian and international copyright and trademark laws.

(e) Apart from any use permitted under the Copyright Act 1968 (Cth) you must not modify, copy, reproduce, republish, frame, upload to a third party, post, transmit or distribute this Content in any way except as expressly provided for on the Website and Marketing Collateral and Campaign Templates or expressly authorised in writing by Pacific.

(f) The reproduction, duplication, distribution (including by way of email, facsimile or other electronic means), publication, modification, copying or transmission of material from the Website and Marketing Collateral and Campaign Templates is STRICTLY PROHIBITED unless you have obtained the prior written consent of Pacific or unless it is specifically stated otherwise within the Website and Marketing Collateral and Campaign Templates. The material covered by this prohibition includes, without limitation, any text, graphics, logos, photographs, audio or video material or stills from audiovisual material available on the Website and Marketing Collateral and Campaign Templates.

(g) The Website and Marketing Collateral and Campaign Templates may from time to time contain links to other websites outside the Website and Marketing Collateral and Campaign Templates for your information and convenience. Pacific makes no warranty or representation as to the functionality of these links, the security of those sites or the reliability or accuracy of the information contained on these sites. You access any such website entirely at your own risk.

9. Fees

(a) You are not required to pay any licence fees to Pacific with respect to your use of the Website or Marketing Collateral and Campaign Templates.

(b) The distribution of Emails and SMSs using the Campaign Templates will be carried out by Pacific (using third party suppliers), and you will be required to pay:

(1) For SMSs - 9 cents per SMS;

(2) For Emails - $nil per email in the first year of your membership in the Program, moving to a reasonable charge (to be notified by Pacific) in the second year of your membership.

(c) We will invoice you monthly for such charges and you must pay such invoices within 30 days of receipt of invoice.

10. Indemnity

You indemnify and hold harmless, on an actual indemnity basis, Pacific, its officers, employees and agents, from and against all claims, costs, losses, expenses and liabilities arising in any way (including under statute, the law of tort, equity or any other theory of law whatsoever) from, out of or in connection with or in relation to:

(a) Your use of the Burst SMS Service;

(b) Your breach of these Terms;

(c) Your negligence or that of your officers, employees and agents;

(d) The content of the Emails and SMSs you distribute using the Campaign Templates;

(e) The offers made by you or any third party in the Emails and SMSs you distribute using the Campaign Templates;

(f) any product or service offered or supplied to you by a third party as part of a discount, special, deal, privilege or incentive made available to you as a member the Program.  

11. Suspension and Termination

11.1 Suspension

Pacific may limit or suspend your access to the Website and Marketing Collateral and/ or Campaign Templates at any time without notice to you if:

(a) you breach your obligations pursuant to these Terms;

(b) your use of the Website and Marketing Collateral or Campaign Templates interferes (or threatens to interfere) with the efficiency or operation of Pacific’s network or the Website and Marketing Collateral and Campaign Templates;

(c) Pacific receives a genuine complaint or complaints from a customer or any State Department of Fair Trading or the ACCC in relation to an Email or SMS distributed by you pursuant to these Terms; or

(d) Pacific reasonably believes that your conduct or distribution of Emails and SMSs is in breach of a person’s rights or is otherwise objectionable or contrary to these Terms or unlawful or contrary to any applicable industry code.

11.2 Termination

Pacific may terminate these Terms immediately by notice to you:

(a) if you commit a material breach of these Terms and do not remedy the breach within 30 days of receiving a notice to do so;

(b) if you experience an Insolvency Event;

(c) if a Force Majeure Event has continued for more than 30 days;

(d) Pacific cancels the Nexus Program for any reason; or

(e) for any other reason, at Pacific’s discretion.

11.3 Consequences of termination

(a) If these Terms expire or are terminated for any reason:

(1) you must destroy all Confidential Information retained in the course of your participation in the Nexus Program;

(2) your right of access to the Website will cease and all rights to use the Marketing Collateral and Campaign Templates and to distribute Emails and SMSs using the Campaign Templates will cease;

(3) you must destroy all copies and records of Pacific’s Database.

(4) all rights a party has accrued before expiry, termination or cancellation continue.

(b) If for any reason these Terms expire or terminate, clauses 6, 7, 8, 9, 10, 11, 12 and 13 continue in full force and effect.

12. Confidentiality

(a) Each party must treat as confidential information:

(1) these Terms; and

(2) all information provided by the other party under these Terms, including but not limited to distribution data, technical, operational, billing, pricing and commercial information.

(b) A party must not reproduce nor disclose the other party’s confidential information to any person except:

(1) to its employees, lawyers, accountants and sub-contractors on a ‘need‑to‑know’ basis provided those persons first agree to observe the confidentiality of the information;

(2) with the other party’s prior written consent;

(3) if required by law, any stock exchange or regulatory body, provided the receiving party first discusses this disclosure with the disclosing party and takes reasonable steps to limit disclosure and make disclosure subject to an obligation of confidence; or

(4) if it is in or comes into the public domain other than through a breach of confidence.

(c) Upon termination of these Terms each party must, upon request from the other party, either return to the other party, or destroy, and certify to the other party the destruction of, the other party’s confidential information in the first party’s possession or control.

13 Limitation of Liability

13.1 Consumer transactions

To the extent that you is deemed a ‘consumer’ for the purposes of the Consumer Legislation, Pacific’s liability to you for any Loss, whether in contract, tort (including negligence), under statue or otherwise, arising as a result of or in connection with the Website and Marketing Collateral and Campaign Templates, is limited in the aggregate to:

(a) the re-supply of the Website or Marketing Collateral or Campaign Templates (as applicable); or

(b) the payment of the cost of having the Website or Marketing Collateral or Campaign Templates (as applicable) supplied again.

13.2 Other liability

(a) To the extent that clause 13.1 does not apply, the provisions of this clause 13.2 apply.

(b) Pacific’s liability to you for any Loss, whether arising in contract, tort (including negligence), under statue or otherwise, arising as a result of or in connection with the Website and/ or Marketing Collateral or Campaign Templates, is limited to $100 in the aggregate.

(c) As far as the Law permits, Pacific is not liable for:

(1) any special, indirect, consequential, incidental or punitive damages;

(2) damages for economic loss, loss of profits, revenue, goodwill, bargain, anticipated savings, loss or corruption of data; or

(3) any loss or damage similar or analogous to the losses or damages specified in clauses 14.2(c)(1) or 14.2(c)(2)

whether in tort (including negligence), contract, statute or otherwise, whether or not such loss or damage was foreseeable and even if advised of the possibility of the loss or damage.

(d) Notwithstanding anything else in this clause 14.2, Pacific’s liability will be reduced to the extent the loss or damage is caused by you, its employees, agents or contractors, including through your use of any equipment or software not expressly approved by Pacific for use in relation to the Website and Marketing Collateral and Campaign Templates or any other act or omission of, or breach of these Terms by, you.

Disclaimers and limitation of liability

While Pacific does its best to ensure the optimal performance of the Website and Marketing Collateral and Campaign Templates, you agree that you use the Website and Marketing Collateral and Campaign Templates and rely on material contained in the Website and Marketing Collateral and Campaign Templates at your own risk.

Pacific does not warrant that the Website and Marketing Collateral and Campaign Templates is fit for any particular purpose; that the functions contained in the materials in the Website and Marketing Collateral and Campaign Templates will be uninterrupted; that defects will be corrected; that the Website and Marketing Collateral and Campaign Templates is free of viruses and other harmful components or that the Content is accurate, complete or reliable.

You acknowledge that Pacific and its parents and related parties together with their respective employees, agents, directors, officers and shareholders, are not liable for any delays, inaccuracies, failures, errors, omissions, interruptions, deletions, defects, viruses, communication line failures or for the destruction, damage or unauthorized access to your computer system or Website and Marketing Collateral and Campaign Templates.

You acknowledge that Pacific is not liable for any defamatory, offensive or illegal conduct or material found in connection with the Website and Marketing Collateral and Campaign Templates, including such conduct or material transmitted by any means by any other person.

You expressly acknowledge and agree that Pacific does not exert control over users of the Website and Marketing Collateral and Campaign Templates and is not liable either for their opinions or their behaviour including any information, advice, defamatory statements or offensive conduct.

14. General

(a) These Terms constitutes the entire agreement between the parties about your involvement in the Nexus Program, including the Website and Marketing Collateral and Campaign Templates, and supersedes any previous agreement or representation relating to the Website and Marketing Collateral and Campaign Template.

(b) These Terms is governed by the laws of New South Wales. Each party submits to the non exclusive jurisdiction of the courts of New South Wales and the courts of appeal from them.

(c) All notices must be in writing and sent to the addresses or fax numbers for notices specified in the front page. Notices must not be sent by email. Notices sent (1) by hand are deemed to be received when delivered; (2) by post are deemed to be received by the third Business Day after posting; or (3) by fax are deemed to be received when the sender’s fax machine issues a successful transmission report.

(d) These Terms may be varied by Pacific at any time (and Pacific will ensure new terms are posted onto the Website). Any other variations may only be by written agreement between the parties.

(e) If any clause or part of any clause is held to be invalid or unenforceable, that clause or part of a clause is to be regarded as having been deleted and these Terms otherwise remains in full force and effect.

(f) A right created by these Terms may only be waived in writing by the party giving the waiver. Failure to exercise or delay in exercising a right or remedy does not waive the right or remedy. A waiver of a breach does not waive any other breach.

(g) You warrant that it has not relied on any representations or warranties by Pacific other than those in these Terms.

(h) Your rights under this agreement cannot be assigned.  If you sell or transfer your business you must give written notice to Pacific so that Pacific can enter into a new agreement with the new business owner. 

(i) A party is not liable for performing an obligation in whole or in part, or for not performing it on time (except an obligation to pay money), due to an event beyond that party’s reasonable control (“Force Majeure Event”). If a Force Majeure Event occurs, the non-performing party must: (1) promptly give the other party notice of the event and an estimate of the non-performance and delay; (2) take all reasonable steps to overcome the effects of the event (but this does not require the settlement of industrial disputes or other claims on unreasonable terms); and (3) resume compliance as soon as practicable after the event no longer affects either party.

(j) (1) A reference to these Terms includes its parts, including schedules, as well as any amendment to or replacement of them. (2) A reference to a statute or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of them. (3) Terms used that are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the meaning given in that Act. (4) A reference to a party includes a reference to the party’s executors, administrators, successors and assigns. (5) “includes”, “including”, “for example”, “such as” and similar terms are not words of limitation.

15. Contact Us

If you have any feedback you wish to provide Pacific in relation to this Website and Marketing Collateral and Campaign Templates, you should go to the “Contact Us” link on the Website and Marketing Collateral and Campaign Templates. When you “contact us”, you will be asked to provide personal information which Pacific will handle in accordance with its Privacy Policy.

16. Definitions

In these Terms:

Authority means any court, government, semi-government authority, administrative or judicial body with the relevant legal jurisdiction over any matters affected by or concerning these Terms.

Business Day means any day other than a Saturday, Sunday or public holiday in New South Wales.

Consumer Legislation means the Trade Practices Act 1974 (Cth), the Competition and Consumer Act 2010 (Cth) or any other similar legislation.

Content includes data (including distribution data) information, text, material, graphics, software and advertisements.

Insolvency Event means the occurrence of any of the following:

1. an application is made to a court for an order, or an order is made, that a body corporate be wound up;

2. a party enters into any financial arrangement, compromise or composition with or assignment for the benefit of any of its creditors;

3. a party fails to comply with a statutory demand;

4. a party has a receiver, receiver and manager, trustee in bankruptcy, provisional liquidator, liquidator, administrator or other like person appointed to or over part or all of its assets or business; or

5. any act or event that has a substantially similar effect to any of the events specified above.


Intellectual Property Rights means all current and future registered rights in respect of copyright, designs, circuit layouts, trademarks, trade secrets, domain names, database rights, know-how and confidential information and any other intellectual property rights as defined by Article 2 of the World Intellectual Property Organisation Convention of July 1967, excluding patents.

Laws mean all legislation, mandatory industry codes, and other law, as amended from time to time.