TES Australia Advertising Terms and Conditions
Please note, these Terms and Conditions shall be deemed to have been accepted by the Advertiser at the time the Advertiser places an order for an Advertisement to be published. Once accepted, these Terms and Conditions constitute legal, valid and binding obligations on the Advertiser.
STANDARD TERMS AND CONDITIONS FOR THE PUBLICATION OF ADVERTISEMENTS BY TSL EDUCATION AUSTRALIA PTY LIMITED (“TES AUSTRALIA”)
1. Definitions and interpretation
1.1. In these Terms and Conditions the following words shall bear the meanings assigned to them below:
Means the party who places with TES Australia the order for the insertion of the Advertisement, whether such person is the employer for the role advertised or that person’s advertising agency or media buyer;
Means any of the following advertisements which the Advertiser has ordered to be published on a Website:
- Featured Employer Advertisement;
- Featured Job Advertisement; and
- Standard Job Listing
in each case as further defined in the Technical Specifications at Schedule 1 (together with any other types of advertisements offered for publication by TES Australia on the Website from time to time).
· Confidential Information
The commercial terms relating to this Agreement, other than those that are publically available, and all information in whatever form disclosed by one party to the other in connection with this Agreement which is marked as confidential or by its very nature should be treated as being confidential;
Means the visual proof that specifies the Advertiser’s precise requirements for the published Advertisement;
· Force Majeure Event
Means any event or circumstance which is beyond the reasonable control of the affected party, including, but not limited to, flood, subsidence, terrorist act, fire or war, failure or shortage of power supplies, acts of government and industrial action of any kind;
· Insert Date
Means the date on which the Advertisement is published on a Website;
· Publication Period
Means the period during which an Advertisement will appear on a Website (as set out at Schedule 2).
· Usage Statistics
Means the number of responses received by the Advertiser in relation to an Advertisement calculated, by way of example, in reference to the number of candidates who respond to an Advertisement and/or the number of times an Advertisement is viewed; and
Means any website owned or controlled by TES Australia.
1.2. In these Terms and Conditions:
(a) a person includes a natural person, a corporate or unincorporated body and that person’s legal and personal representatives, successors and permitted assigns;
(b) the attached Schedules are automatically deemed to form part of these Terms and Conditions. Accordingly any reference to these Terms and Conditions shall include the Schedules;
(c) the singular shall include the plural and vice versa;
(d) a reference to any gender shall include the reference to the other gender and the neuter; and
(e) all headings are included for the purpose of convenience only and shall not govern the interpretation of the content of these Terms and Conditions.
2. Nature of the Agreement
2.1. These Terms and Conditions will apply to any Advertisement which TES Australia accepts for publication on the Website.
2.2. As specified more particularly in clause 4, the acceptance of an order for an Advertisement to be published is entirely at TES Australia’s discretion.
2.3. These Terms and Conditions may be updated from time to time by TES Australia without notice to the Advertiser. The updated Terms and Conditions will be published on the Website and TES Australia will indicate clearly the date that the Terms and Conditions were last updated. The continued use of TES Australia’s advertising services following any amendment constitutes the Advertiser’s acceptance of the amended Terms and Conditions. It is the responsibility of the Advertiser to regularly check the Website to determine if there have been any changes to these Terms and Conditions and to review such changes.
3. Booking Procedure for Advertisements
3.1. Where an Advertiser makes a booking for an Advertisement, the following booking procedure will apply:
3.1.1 bookings will be accepted via email or telephone only. The necessary contact details are set out in Schedule 2;
3.1.2 details of the Advertiser must be provided with each order submitted;
3.1.3 TES Australia may, at its entire discretion, refuse to accept a generic Advertisement (that is, an Advertisement that does not relate to a specific position at a specific establishment);
3.1.4 bookings will not be accepted for Advertisements which relate to more than one vacancy; and
3.1.5 in order for TES Australia to be able to comply with its obligations to publish an Advertisement, the following information will be required as part of the Copy provided by the Advertiser at the time the order is placed:
(a) job title;
(b) school/establishment name;
(c) salary or salary range;
(d) whether the vacancy is full time or part time;
(e) whether the vacancy is to fill a temporary or permanent position;
(f) start date;
(g) interview dates;
(h) post code of the employer;
(i) location of the school/establishment;
(j) country in which the position is being advertised;
(k) whether the job is suitable for Newly Qualified Teachers;
(l) details of how candidates are to make their application (including the closing date of the application)
and TES Australia shall not be deemed to be in breach of these Terms and Conditions for failure to publish (or failure to publish in full) any Advertisement in respect of which all of the above information has not been provided.
3.2. Advertisements generally appear on the Website within 48 hours of an order for the publication of an Advertisement being accepted (see clause 4 below) but TES Australia does not make any commitments in this regard. Advertisements will remain on the Website until the end of the Publication Period or until the applicable closing date for job applications, if specified, whichever is sooner. Advertisers may request that the Advertisement be removed from the Website at any time after publication and TES Australia shall use its reasonable endeavoursto comply with this request.
3.3. The terms and conditions governing the use of the Website on which the Advertisement has been published shall apply to the Advertisement from the Insert Date. The Advertiser agrees to comply with and be bound by the terms and conditions of use when using the Website and when receiving any service provided by TES Australia via the Website.
4. Order Acceptance
4.1. The Advertiser’s order will be accepted at the time that TES Australia agrees to publish the Advertisement. TES Australia’s agreement to publish the Advertisement is given on the basis that these Terms and Conditions apply to the arrangement.
4.2. TES Australia may at its entire discretion cancel any order, decline to publish or may omit, suspend or change the position of any Advertisement accepted for publication.
4.3. TES Australia reserves the right to refuse to accept any order or Advertisement for publication which (i) refers to or advertises any publication or website similar to or in competition with the Website or any publication published by TES Australia or TSL Education, or (ii) which refers to or offers similar advertising services to those offered by TES Australia or TSL Education.
4.4. Whilst TES Australia will take all reasonable steps to ensure that the Advertisement placed by the Advertiser is positioned on the Website as requested by the Advertiser, TES Australia gives no warranty or guarantee that it will be able to position the Advertisement as requested and in any event reserves the right to change the position of the Advertisement.
4.5. TES Australia will not accept any request to amend an Advertisement after the Advertisement has been published where the amendment is in respect of the job title. Any amendment requested to the Advertisement in respect of the closing date of the application will only be accepted if the request is received (and can be processed by TES Australia) within the Publication Period.
5. Cancellation of the Advertisement by the Advertiser
5.1. If the Advertiser wishes to cancel any Advertisement or any space which it has booked with TES Australia, then it shall immediately send a “notice of cancellation” to TES Australia at the address set out at Schedule 2.
5.2. If notice of cancellation is received by TES Australia prior to the Advertisement appearing on the Website, TES Australia shall use its reasonableendeavoursto effect the cancellation but shall not be liable in the event that it is unable to cancel the publication of the Advertisement for any reason.
5.3. No notice of cancellation shall be deemed to be effective until TES Australia has sent an acknowledgement to the Advertiser of receipt of the notice of cancellation.
6. Publication of the Advertisement
6.1. TES Australia will not be liable to the Advertiser in any way for any errors in a Copy provided by the Advertiser. In addition, if the Copy provided to TES Australia by the Advertiser is insufficiently clear, illegible or inaccurate then TES Australia will not be liable to the Advertiser for any errors that may be found on publication of the Copy.
6.2. Where a Copy, artwork or other instructions are received by TES Australia which are not in a proper form or which are in a form which involves any extra production work by TES Australia in order to be published, or if TES Australia is otherwise required to perform additional production work as a result of the Advertiser’s failure to conform to TES Australia’s requirements or instructions, then TES Australia reserves the right to treat the Advertiser as having cancelled the order for publication of that Advertisement.
6.3. TES Australia assumes no responsibility in the event that any error in any Advertisement is repeated on the Website unless TES Australia is notified of the error as soon as reasonably practicable when the error occurs and in that case TES Australia’s only liability shall be to correct the error for subsequent Advertisements booked to appear where the relevant deadline for amendments has not expired.
6.4. TES Australia reserves the right to amend a Copy where it reasonably believes it is necessary to do so. TES Australia also reserves the right to modify the space, alter the position of the Advertisement and (where it has advised the Advertiser) to alter the Insert Date of the Advertisement. TES Australia will use its reasonableendeavoursto advise the Advertiser of such changes and the Advertiser may then cancel the Advertisement.
6.5. TES Australia may refuse or require the amendment of any artwork, materials or a Copy for or relating to an Advertisement so as to:
6.5.1. comply with the legal or moral obligations placed on TES Australia by any party;
6.5.2. avoid publishing anything which would not be, in the reasonable opinion of TES Australia, appropriate for it to publish;
6.5.3. avoid infringing any third party’s rights;
6.5.4. avoid contravening AANA Code of Ethics and all other codes and guidance issued and/or generated by the Australian Association of National Advertisers;
6.5.5. avoid contravening any legislation which might be applicable from time to time;
6.5.6. ensure that the Advertisement complies with the necessary image resolution stipulated or referred to atSchedule 1 or in any correspondence from TES Australia;
6.5.7. avoid publishing anything that is, in TES Australia’s reasonable opinion, inaccurate, misleading or objectionable.
6.6. The parties acknowledge and agree that the specific descriptions and terms set out in Schedule 1 in respect of each type of Advertisement shall apply in each instance (as applicable).
7. Obligations of the Advertiser
7.1. With respect to all materials that are provided to TES Australia by the Advertiser (including any artwork, wording or any Copy), the Advertiser hereby grants to TES Australia a royalty free, perpetual, irrevocable, non-exclusive and fully sub-licensable right and licenceto use, reproduce, modify, adapt, publish and create derivative works from, distribute and display such materials (in whole or part).
7.2. The Advertiser grants to TES Australia the express rights to reproduce screen shots of the Websites that contain all or part of any of the materials supplied by the Advertiser to TES Australia on or in any promotional or advertising material or in connection with promoting or advertising the Websites or its publications.
7.3. The Advertiser warrants that:
7.3.1 it owns or otherwise controls all of the rights to the materials referred to in clause 7.2 and is entitled to grant the rights set out in this clause 7;
7.3.2. the use by TES Australia of the materials referred to in clause 7.2 including the reproduction and/or publication of the Advertisement by TES Australia does not nor will it (i) breach any contract (ii) infringe or violate any copyright, trade mark or any other personal or proprietary right of any person and/or (iii) render TES Australia liable to any proceedings whatsoever;
7.3.3. it shall immediately notify TES Australia of any materials that do not comply with these Terms and Conditions or that may infringe the rights of a third party;
7.3.4. any information supplied by the Advertiser in connection with the Advertisement is accurate, complete, true and not misleading;
7.3.5. where any Advertisement submitted for publication contains any material by which a person is or can be identified (including but not limited to the name or picture, or pictorial representation (photographic or otherwise) of the individual) the Advertiser has obtained the authority of the individual to use such material;
7.3.6.where any Advertisement contains financial information, the contents of the Advertisement have been approved by (or the Advertiser is) an authorisedperson within the meaning of the Financial Services Act 1986 (as amended) or the Advertisement is permitted under that Act;
7.3.7. each Copy submitted to TES Australia complies with the AANA Code of Ethics and all other codes and guidance issued and/or generated by the Australian Association of National Advertisers;
7.3.8. as at the relevant Insert Date, the Advertisement complies with the requirements of all relevant legislation for the time being in force or applicable in Australia.
7.4. TES Australia may provide the Advertiser with estimated Usage Statistics as a courtesy to the Advertiser but TES Australia shall not be liable for any claims relating to any Usage Statistics that are supplied.
7.5. TES Australia makes no warranties or guarantees with respect to Usage Statistics or levels of page impressions for any Advertisement.
7.6. The Advertiser shall deal fairly and professionally with all applicants who respond to an Advertisement and in dealing with applicants shall not do anything which may bring TES Australia into disrepute.
7.7. Should the Advertiser become aware that any person is impersonating TES Australia or any TES Australia staff member or is holding itself out as being in any way associated with TES Australia’s business, the Advertiser will inform TES Australia as soon as is reasonably practicable and will provide TES Australia with any information that it holds in relation to that person.
8. Advertiser as Principal
Where the Advertiser is an advertising agency acting on behalf of its principal, the Advertiser warrants that it isauthorisedby its principal to place the Advertisement with TES Australia and the Advertiser will indemnify TES Australia against all losses, costs and expenses suffered or incurred by TES Australia as a result of any claim made by the principal against TES Australia arising from the publication of the applicable Advertisement.
9. Obligations ofTES Australia
9.1. If TES Australia fails to publish any Advertisement, then, where such omission constitutes a breach of these Terms and Conditions, the remedies available to the Advertiser in respect of such breach shall be limited to a requirement that TES Australia undertakes to publish the Advertisement or a replacement Advertisement as soon as reasonably practicable following the period during which the Advertisement should have been published.
9.2. TES Australia reserves the right, at any time, and from time to time, to modify or discontinue, temporarily or permanently, the Website (or any part thereof) with or without notice. The Advertiser agrees that TES Australia shall not be liable to the Advertiser for any modification, suspension or discontinuance of the Website and any effect that this may have on the Advertiser or third party.
9.3. TES Australia does not guarantee any response to any Advertisement or that any response will be from an individual suitable for the position advertised. It is the Advertiser’s responsibility to carry out such checks and procedures as are necessary to ensure that a candidate is suitable for the position advertised and has the required qualifications and personal characteristics.
10.1. The Advertiser hereby indemnifies and agrees that it will hold TES Australia harmless against all losses, costs and expenses (including without limitation all legal fees, damages payments and settlement payments) suffered or incurred by TES Australia as a result of:
10.1.1. any claims brought by any third party in relation to trade mark infringement, copyright infringement, design right infringement, libel, breach of confidentiality, breach of any statutory or regulatory duty, false or misleading advertising or sales practices arising from the Advertisement and/or any material to which users can link from any Advertisement;
10.1.2. any claims brought by any third party in relation to a breach of clause 7.3.7 by the Advertiser; and
10.1.3. any claims brought by a third party in relation to a breach of clause 7.3.5 by the Advertiser.
11. Limitation of Liability
11.1. Subject to clause 11.3, TES Australia shall not be liable to the Advertiser (whether such liability arises in contract, tort (including negligence) or otherwise) for:
11.1.2. any loss of profits, loss of contracts, loss of anticipated savings, loss of revenue, loss of or damage to data, loss of or damage to reputation or goodwill; or
11.1.3. any indirect or consequential loss or damages.
11.2. TES Australia’s maximum liability to the Advertiser for any loss or damage arising out of these Terms and Conditions relating to any Advertisement (including its publication or non-publication) is limited to 1,650 AUD.
11.3. Nothing in these Terms and Conditions shall limit or exclude TES Australia’s liability for (i) fraud or fraudulent misrepresentation, (ii) personal injury or death of any person caused by TES Australia’s negligence or (iii) any other liability which cannot be excluded or limited at law.
12.1. TES Australia may terminate the Agreement with immediate effect by giving notice to the Advertiser if the Advertiser is in material breach of these Terms and Conditions and (where the breach is remediable) it does not remedy such breach within 14 days of TES Australia notifying the Advertiser of such breach.
12.2. The rights and remedies expressly available to TES Australia pursuant to this clause 12 are not exhaustive and are without prejudice to all other remedies available to TES Australia from time to time.
13. Entire Agreement
13.1. These Terms and Conditions (together with and documents referred to or required to be entered into pursuant to these Terms and Conditions) set out the entire agreement between the parties and supersede all prior agreements, understandings or arrangements (both oral and written) relating to the subject matter of these Terms and Conditions.
13.2. No other provisions other than those contained in these Terms and Conditions shall be binding on the parties unless expressly agreed to in writing by anauthorisedrepresentative of TES Australia. Specifically, no advice or information provided by or on behalf of TES Australia shall create any warranty or other obligation not expressly stated in these Terms and Conditions.
13.3. These Terms and Conditions set out the full extent of TES Australia’s obligations and liabilities in respect of the publication of any Advertisement. In particular, there are no terms as to satisfactory quality, fitness for a particular purpose or of any other kind whatsoever. Any condition or other term which might otherwise be implied into or incorporated into these Terms and Conditions whether by statute, common law or otherwise, is hereby excluded to the fullest extent permissible at law.
14. Force Majeure
14.1. Where either party is affected by a Force Majeure Event, it shall not be under any liability to the other party for any failure or delay in performing its obligations under these Terms and Conditions to the extent that such failure or delay is caused by the Force Majeure Event. The affected party shall be entitled to a reasonable extension of time for performing its relevant obligations. The corresponding obligations of the other party shall also be suspended.
14.2. The affected party shall:
14.2.1. within five business days of the Force Majeure Event occurring, provide the other party with full written details of the nature and extent of the Force Majeure Event in question, including the affected party’s best estimate of the likely extent and duration of its inability to perform its obligations under these Terms and Conditions as a result of such Force Majeure Event, and, thereafter, promptly provide any further information which the other party reasonably requires;
14.2.2. use all reasonable endeavoursto avoid orminimisethe consequences of the Force Majeure Event in question and carry out its obligations and duties in such other ways as may be reasonably practicable; and
14.2.3. use all reasonable endeavoursto bring the Force Majeure Event in question to a close as soon as reasonably practicable.
15.1. No failure or delay by either party or time or indulgence given in exercising any remedy or right under or in relation to these Terms and Conditions shall operate as a waiver of the same, nor shall any single or partial exercise of any remedy or right preclude any further exercise of the same or the exercise of any other remedy or right.
15.2. No waiver by either party of any requirement of these Terms and Conditions, or of any remedy or right under these Terms and Conditions, shall have effect unless given in writing and signed by such party. No waiver of any particular breach of the provisions of these Terms and Conditions shall operate as a waiver of any repetition of such breach.
16.1. If any provision (or part of a provision) of these Terms and Conditions is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force.
16.2. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal.
The Advertiser shall not, without the prior written consent of TES Australia, assign, transfer, charge, sub-contract or deal in any other way with all or any of its rights under these Terms and Conditions.
18.1. Each party shall treat in confidence all Confidential Information and shall not:
18.1.1 save where the Advertiser is an advertising agency (in which case the details may be disclosed to the agent’s principal) disclose in whole or part any Confidential Information to any person unless such person is also bound by the terms of this clause 18; or
18.1.2 use any Confidential Information for a purpose other than for the exercise of its rights or the performance of its obligations under these Terms and Conditions.
18.2. Notwithstanding clause 18.1, either party may disclose any Confidential Information to its own personnel to the extent required for the proper performance of its obligations under these Terms and Conditions (where the relevant personnel are informed of the confidential nature of the information).
Any dispute or claim arising out of these Terms and Conditions or in connection with their subject matter shall be governed by and construed in accordance with the laws of Australia. The parties agree that the Courts of Australia shall have exclusive jurisdiction to settle any claim or dispute that arises out of or in connection with this Agreement or its subject matter.