Spotlight Cinema Advertising, its employees, agents and contractors (“SPOTLIGHT”) will take all reasonable steps to ensure that the Advertising to be screened (“Advertising”) on the screens specified in this agreement which play the SPOTLIGHT Advertising program (“SPOTLIGHT Program”) is in accordance with the Agreement entered into between SPOTLIGHT and the Client/Agency. However, the Client/Agency expressly acknowledges and accepts that booking or production errors may occur and SPOTLIGHT neither warrants nor represents that the Advertising will be without errors. The Client/Agency expressly agrees that SPOTLIGHT will not be required to correct any error in the Advertising until the commencement of the next Advertising period.
The positioning of Advertising in the SPOTLIGHT Program will be at the sole discretion of SPOTLIGHT. However, SPOTLIGHT will use its best endeavours to position the Advertising where requested by the Client/ Agency. Special placements are subject to space availability at the time of production.
If SPOTLIGHT screens Advertising containing an error or fails to play Advertising at all, and for which payment has already been made to SPOTLIGHT, SPOTLIGHT will credit the Client/Agency an amount which, in the sole opinion of SPOTLIGHT, is reasonable given the nature and magnitude of the error. Such credit will not exceed the amount paid for the Advertising. SPOTLIGHT incurs no other liability whatsoever to the Client/Agency including liability for negligence or consequential loss.
Unless otherwise agreed in writing between SPOTLIGHT and the Client/Agency, the Client/Agency agrees to pay to SPOTLIGHT the charge set out in this booking confirmation within seven days of receipt of a four weekly invoice in which the Advertising, the subject of the charge, is screened.
If the Client/Agency defaults in making any payment, it will:
(a) be liable to pay the whole amount then outstanding;
(b) pay interest at a rate of 4 per cent above the National Australia Bank Ltd 90 day bank bill rate published in the Australian Financial Review on the business day on which the default occurs upon the whole of the amount outstanding from the date of the default until payment is made in full;
(c) pay any legal costs, (on a solicitor and own client basis) incurred by SPOTLIGHT as a result of the Client/Agency’s non payment.
The Client/Agency acknowledges and agrees that the charge set out on the booking confirmation may be varied to include charges and expenses incurred by SPOTLIGHT in relation to the method of payment by the Client/Agency.
Any Advertising booked by a Client/Agency with SPOTLIGHT will be subject to all rights, conditions and requirements of this Agreement.
Any Advertising booking made with SPOTLIGHT will not be binding on SPOTLIGHT until the Client/Agency and/or product or service to be advertised has been approved by the venue operator. SPOTLIGHT reserves the right to reject or cancel any Advertising booked at any time in its absolute discretion.
The Client/Agency may cancel a booking by giving SPOTLIGHT three months written notice of its intention to do so. Such cancellation must be notified by registered post and sent to SPOTLIGHT’s registered office. In the event of cancellation SPOTLIGHT will be entitled to adjust the charges for the Advertising used to the date of the cancellation according to the charges then applied by SPOTLIGHT for the Advertising actually utilised.
The Client/Agency acknowledges and agrees that a charge for Advertising with SPOTLIGHT will be made, whether used or not, if the booking is not cancelled at least three months prior to the date on which the Advertising is to commence in the manner set out in Clause 9. The Client/Agency undertakes to make full payment for such Advertising on the terms specified in Clause 4.
A Master Copy of the Client’s/Agency’s advertisement will be required no later than 14 days prior to the date on which the Advertising is to commence.
SPOTLIGHT will take all reasonable care in the storage of Master copies left with it for storage, however no responsibility, or liability is accepted by SPOTLIGHT for that material.
All material produced in accordance with this agreement is produced exclusively for screening on SPOTLIGHT operated screens. Reproduction of this material for any purpose whatsoever is prohibited without prior written approval from SPOTLIGHT. Such reproduction may be approved in certain circumstances on payment of an additional fee to SPOTLIGHT.
The Client/Agency warrants to SPOTLIGHT that the Client/Agency is the owner of, and has the right to use, or is duly authorised by the owner to use any business name, trade mark and/or illustrations comprising or forming part of the Advertising provided by it to SPOTLIGHT and that the Client/Agency is authorised to advertise any business, product or service provided by it to SPOTLIGHT. The Client/Agency indemnifies SPOTLIGHT from all actions, claims, costs, demands, damages and liabilities whatsoever arising from the playing of Advertising on the SPOTLIGHT Program.
The Client/Agency upon submitting material to SPOTLIGHT for inclusion in the SPOTLIGHT Program warrants that the contents of the Advertising is true and correct and is in no way misleading or deceptive or likely to mislead or deceive and contains no prohibited or illegal statements. The Client/Agency indemnifies SPOTLIGHT against all liabilities, claims and proceedings whatsoever arising from the screening of Advertising on the SPOTLIGHT Program and without limiting the generality of the foregoing, indemnifies SPOTLIGHT in relation to defamation, injurious falsehood, slander, breach of copyright, infringement of trademarks or names, breach of rights or privacy and any associated legal costs. The Client/Agency warrants that the material complies with all relevant laws and that its screening will not give rise to any rights or liabilities in SPOTLIGHT, and in particular that nothing therein is capable of being misleading or deceptive or otherwise in breach of the Trade Practices Act 1974 (“Act”) (or any similar provision in State legislation). This warranty is deemed to be given by the Client/Agency with each booking of Advertising provided to SPOTLIGHT.
Notwithstanding anything herein contained, the liability of SPOTLIGHT for breach of warranty implied by Section 74 of the Act (or any identical provision in State legislation) in respect of services provided under this Agreement will, subject to the qualifications contained in Section 68A of the Act (including but not limited to the Fair Trading Act 1987 of Western Australia or any identical provisions in State legislation) be limited to a refund or credit of the charge made for Advertising to which the breach of warranty related.
This Agreement (which can only be amended in writing) constitutes the entire agreement between the parties and supersedes and replaces any written or oral communications that may have taken place prior to the signing of this Agreement.
This Agreement will be binding upon the parties, their successors and assigns.
The laws of the State of Western Australia will govern this Agreement.