Updated: 03/05/2011

1. Recitals

1.1.      This website is owned, operated and maintained by Comparison Pty Ltd ACN 145 691 532 of 15 Ashburton Road, Glen Iris VIC 3146 (Comparison).

1.2.      This website provides retail consumers with an objective comparison of electronics, appliances and other products. By enrolling as a “Merchant” you seek to advertise your goods and services, or wish to purchase services from Comparison (Merchant). You agree to be bound by this document and the terms and conditions contained on the Comparison Site (as defined below).

1.3.      The Merchant has requested Comparison display on the Site, the Merchant's retail products and prices or Advertisements. Comparison has agreed to display the products, prices or Advertisements as set out in the relevant Insertion Order and these Terms and Conditions.

1.4.      These Terms and Conditions form part of the agreement between Comparison and a Merchant (Agreement).

2. Definitions & Interpretation of these Terms and Conditions

2.1.      The following definitions apply to these Terms and Conditions:

2.1.1.           "Advertisement" means advertising services and products developed by the Merchant and/or Comparison and includes but is not limited to links, banners, leaderboards, skyscrapers, wide skyscrapers, rectangles, medium rectangles, half pages, custom sized banners and interstitial internet based advertisements as specified in an Insertion Order.

2.1.2.           "Advertising Fee" means the fee the Merchant will pay for the purposes specified in an applicable Insertion Order. The invoice for Advertising Fee will be issued at the frequency set out in the Insertion Order.

2.1.3.           "Affiliate" means any affiliate, partner, or any other party as determined by Comparison from time to time in its absolute discretion.

2.1.4.           "Confidential Information" means information (whenever it was obtained) in relation to either party's:

2.1.4.1.      business, operations or strategies;

2.1.4.2.      customers or website users;

2.1.4.3.      intellectual or other property; or

2.1.4.4.      actual or prospective customers, suppliers or competitors.

2.1.5.           Information is not confidential if:

2.1.5.1.      it is in the public domain (including content provided by the Merchant under these Terms and Conditions), unless it came into the public domain by a breach of confidentiality;

2.1.5.2.      it is already known by the other party at the time this document is entered into; or

2.1.5.3.      it is obtained lawfully from a third party without any breach of confidentiality.

2.1.6.           "CPC Fee" means the fee the Merchant will pay Comparison based on a specific cost per click by retail consumers on the Merchant's internet website, where access to the Merchant's website is through redirection from Comparison or an Affiliate. The cost per click is specified in the Agreement. The Minimum Monthly Fee

2.1.7.           "Fees" means any Advertising Fee, CPC Fee, Minimum Monthly Cap, Setup Fee, Service Fee and Sponsorship Fee applicable and payable by the Merchant.

2.1.8.           "Insertion Order"" means the document setting out the advertising placements relating to any media booking issued by Comparison to the Merchant under these Terms and Conditions.

2.1.9.           "Intellectual Property Rights" means all present and future intellectual property or other proprietary rights, including copyright, moral rights, trade marks, designs, patents, circuit layouts, business or domain names, inventions, know-how, confidential information and trade secrets, arising anywhere in the world and whether registered or unregistered.

2.1.10.         “Minimum Monthly Cap” means the minimum CPC Fees specified in the Insertion order that the Merchant agrees to pay Comparison each month during the term of the agreement.

2.1.11.   “Maximum Monthly Cap” means the maximum CPC Fees specified in the Insertion Order that the Merchant agrees to pay Comparison per month, during the term of the agreement.

2.1.12.   "Related Site" means any website developed, owned or operated by an Affiliate, and any other website on which Comparison may choose to display content at its sole and absolute discretion.

2.1.13.   "Service Fee"" means the fee payable by the Merchant for additional services in accordance with an Insertion Order, where applicable.

2.1.14.   "Site" means any or all of the websites developed, owned, or operated by Comparison including, without limitation, www.comparison.com.au.

2.1.15.   "Sponsorship Fee" means the fee payable by the Merchant for sponsorship in accordance with an Insertion Order, where applicable.

2.1.16.   "Territory" means the territorial extent of the licence granted herein shall be Australia and its territories.

2.2.      In the interpretation of these Terms and Conditions, unless a contrary intention appears or the context otherwise requires:

2.2.1.     words importing the singular shall be deemed to include the plural;

2.2.2.     words importing any gender shall be deemed to include all other genders;

2.2.3.     words importing persons shall be deemed to include all companies, corporations, bodies and associations incorporated or unincorporated and vice versa;

2.2.4.     any reference to any act, statute or statutory provision shall be deemed to include any act, statute or statutory provision which amends, extends, consolidates of replaces the same or which has been amended, extended, consolidated or replaces by the same and any regulations, orders, instruments or tother subordinate legislation made thereunder;

2.2.5.     reference to "clause", "sub-clause", "paragraph", "sub-paragraph", "schedule", and "annexure" are to clause, sub-clause, paragraph, sub-paragraph, schedule and annexure respectively of these Terms and Conditions; and

2.2.6.     headings are for reference only and shall not affect the interpretation of these Terms and Conditions.

3. Operation

3.1.      It is the responsibility of the Merchant to check the Site for updates to these Terms and Conditions. Any updates to the Terms and Conditions will apply from the date that the updated Terms and Conditions were placed on the Site. If the Merchant continues to use the Site it will be deemed to have accepted any updated to the Terms and Conditions.

3.2.      If the Merchant does not agree to the updated Terms and Conditions the Merchant must immediately notify Comparison that it does not agree to the updated Terms and Conditions. The Merchant may terminate the Agreement after providing notice under clause 14 and paying any applicable termination fees.

4. Products and advertising

4.1.      The Merchant may request placement of Advertisements on the Site.

4.2.      Comparison will issue an Insertion Order to the Merchant in respect of any Advertisement display requested pursuant to clause 4. The Merchant and Comparison will agree the Insertion Order.

4.3.      Once an Insertion Order is agreed, Comparison will display the Merchant's Advertisements specified in the Insertion Order, on the Site, and any other Related Sites that Comparison may decide in its absolute discretion.

4.4.      Comparison may, in its absolute discretion, refuse to display the Merchant's products or Advertisements on any or the entire Site, or any Related Sites and may remove any or all products or Advertisements without notice to the Merchant.

5. Terms of Payment and Taxes

5.1.      Comparison shall calculate the Fees according to its administration system, or a third party administration system, as determined by Comparison in its absolute discretion.

5.2.      The Merchant agrees to pay Comparison the Fees at the rate specified in the Agreement, or where applicable, an Insertion Order, based on that calculation.

5.3.      Comparison will invoice the Merchant for the applicable Fees or payments in advance due under clause 5.3.

5.4.      The Merchant must pay the Fees within 30 days of the date of each tax invoice issued by Comparison.

5.5.      Payments made after the 30 day invoice period will accrue interest at a rate of 1.5% per month (or the highest rate permitted by law, if less).

6. GST

6.1.      Terms used under clause 7 have the same meaning as those terms in A New Tax System (Goods and Services Tax) Act 1999.

6.2.      A party must pay GST on a Taxable Supply made to it under the Agreement. It must do so at the same time and in the same manner as it is required to pay the consideration for the Taxable Supply to which the GST relates.

6.3.      A party making a Taxable Supply to another party under the Agreement must issue a tax invoice in the format required by law to the other party for the Taxable Supply. The tax invoice must set out the amount of the GST payable by that other party. The tax invoice must be issued at the same time as the consideration for the Taxable Supply is due.

6.4.      Each party must do anything reasonable to assist the other party to comply with its GST obligations in relation to the Agreement.

7. Merchant Responsibilities

7.1.      The Merchant will:

7.1.1.           provide accurate retail product and pricing details to Comparison for inclusion on the Site or Related Site (including all, but not limited to, category, sub-category, product name, product description, product price, product model number, product brand, offer and product image for display on the Site, or Related Site, product manufacturer and Merchant hot link or other such items agreed between the parties and other information which a retail consumer would expect to be provided on the Site, or Related Site);

7.1.2.           automatically via its direct link (Product Feed) or in writing notify Comparison of any changes to product details or price referred to in clause 8.1(a) above.

8. Operator Responsibilities

8.1.      Comparison will:

8.1.1.           use its best endeavours to maintain consumer access to the Site;

8.1.2.           present the Merchant's Advertising within the Site agreed between the parties;

8.1.3.           provide the Merchant with access to statistical information regarding both the clicks introduced to the Merchant website via the Site or an Affiliate.

9. Confidentiality

9.1.      A party must not disclose any of another party's Confidential Information except in any of the following circumstances:

9.1.1.           the disclosure is required by law;

9.1.2.           the disclosure is necessary in connection with performing obligations under these Terms and Conditions or under another agreement between the parties;

9.1.3.           the disclosure is to an officer, employee, agent or consultant of the party, to the extent that he or she needs to know the Confidential Information;

9.1.4.           the disclosure is reasonably made to a professional legal adviser or professional auditor; and

9.1.5.           the other party consents in writing to the disclosure. The consent may be subject to the condition that the person to whom the disclosure is to be made enter into a separate confidentiality agreement with the provider.

9.2.      A party must take reasonable steps to ensure that its officers, employees, agents and consultants do not do or fail to do anything which, if the party did or failed to do it, would be a breach of these Terms and Conditions.

10. Prohibited Content and Activity

10.1.     The Merchant must not permit offending content to be placed on the Site or any Related Site. Comparison reserves the right to investigate and take appropriate legal action against any person who, in Comparison's sole discretion, breaches the requirements of this clause 11 by placing offending content on the Site or a Related Site. Comparison may, without limitation, remove offending content from the Site or a Related Site, and terminate the Agreement with the Merchant where the offending content was placed by the Merchant or its personnel. Where content is provided by the Merchant through its Product Feed, or is placed by an unauthorised third party accessing the Product Feed or the Merchant's systems, it will be deemed to have been placed by the Merchant for the purposes of this clause.

10.2.     Offending content includes, but is not limited to, content that is:

10.2.1.         offensive or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;

10.2.2.         harasses or advocates harassment of another person;

10.2.3.         exploits people in a sexual or violent manner;

10.2.4.         contains nudity, violence, or offensive subject matter or contains a link to an adult website;

10.2.5.         solicits personal information from anyone under 18;

10.2.6.         publicly posts information that poses or creates a privacy or security risk to any person;

10.2.7.         constitutes or promotes information that is known to be false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libellous;

10.2.8.         constitutes or promotes an illegal or unauthorised copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protect devices, or providing pirated music or links to pirated music files;

10.2.9.         involves the transmission of 'junk mail,' 'chain letters,' or unsolicited mass mailing, instant messaging, or 'spamming';

10.2.10.       contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page);

10.2.11.       furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying weapons, violating someone's privacy, or providing or creating computer viruses or other harmful code;

10.2.12.       solicits passwords or personal identifying information for commercial or unlawful purposes from other people;

10.2.13.       involves commercial activities and/or sales without prior written consent from Comparison such as contests, sweepstakes, barter, advertising, or pyramid scheme;

10.2.14.       includes a photograph or video of any person without that person's consent;

10.2.15.       violates the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any other person; or

10.2.16.       promotes propaganda and/or symbols of organisations which are unconstitutional or illegal in the Territory.

11. Warranties

11.1.     The Merchant represents, warrants and undertakes to Comparison that:

11.1.1.         it will not infringe any third party's Intellectual Property Rights;

11.1.2.         it will not expressly state or imply any relationship or affiliation with Comparison or endorsement by Comparison except as expressly permitted by these Terms and Conditions; and

11.1.3.         it will not do anything that has, or is likely to have (either directly or indirectly), the effect of defaming, disparaging or adversely effecting the integrity and reputation associated with Comparison, including by directly or indirectly placing or allowing the placement of offending content on the Site or a Related Site.

12. Acknowledgment and Indemnity

12.1.     The Merchant acknowledges and agrees that it is solely responsible for the information, data and other content it provides to Comparison for inclusion on the Site and Related Sites and Comparison operates on the assumption that the information it receives is accurate and current in all respects and that the Merchant has the necessary rights of or authority from any third party with a proprietary interest in the information to deal with this information and provide it to Comparison.

12.2.     The Merchant will continually indemnify Comparison against any claim or proceeding that is made, threatened or commenced, and any liability, loss, damage or expense (including reasonable legal costs on a full indemnity basis) that Comparison incurs or suffers as a result of any claims brought by or on behalf of any third party relating to:

12.2.1.         product information or content provided to Comparison by the Merchant (including for misleading or deceptive conduct or infringement of any third party's Intellectual Property Rights);

12.2.2.         any omission in information provided to Comparison by the Merchant;

12.2.3.         the content of or the information and products on the Merchant's website or websites associated with the Merchant that are linked to the Site or a Related Site; and

12.2.4.         the provision of goods or services advertised or featured on the Site, or a Related Site.

12.3.    The liability of Comparison to the Merchant for any direct, indirect, incidental, consequential (including among other things loss of revenue or profits, loss of data, third party claims or loss of good will), punitive or exemplary damages of any kind (whether based on breach of contract, tort, negligence, strict liability or otherwise) incurred by the Merchant in connection with the Agreement shall be limited to a refund of the Advertising Fee only.

13. Disclaimer of Warranties and Limitation of Liability

13.1.    Subject only to clause 14.2 below:

13.1.1.         the Merchant acknowledges and accepts the risk that any communication to or from the Site may be intercepted, used or modified by third parties;

13.1.2.         Comparison does not warrant that access to or use of the Site or a Related Site will be uninterrupted or error free or that the Site or Related Sites or any material on or accessible through the Site or Related Sites is free from errors or viruses, worms, trojan horses, time bomb, cancelbot or other harmful components; and

13.1.3.         Comparison may change any of the material on the Site or Related Sites at any time without notice, however if this affects the Merchants advertising, advertising of similar value will be offered or a refund of the associated Advertising Fee will be given

13.2.    Where the laws of any country or state in which these Terms and Conditions are effective implies into these Terms and Conditions any term, condition or warranty, and those laws avoid or prohibit provisions in a contract excluding or modifying them, then the term, condition or warranty shall be deemed to be included in these Terms and Conditions provided that the liability of Comparison, its officers, directors, employees, agents and related bodies corporate for a breach of any such term, condition or warranty, including any economic or consequential loss which the Merchant may sustain shall be limited, at the option of Comparison to:

13.2.1.         in the case of services, the supply of the services again, or the payment of having the services resupplied; and

13.2.2.         in the case of goods, the replacement or repair of the goods, the supply of equivalent goods, or the payment of the cost of replacing or repairing the goods or acquiring equivalent goods.

14. Term and Termination

14.1.     Either party may terminate the Agreement by giving the other party 14 days written notice.

14.2.     Where a different term is agreed in an Insertion Order the parties may terminate in accordance with clause 14.1. If the Merchant terminates an Insertion Order and this Agreement prior to the end of the term set out in the Insertion Order, the full Advertising Fee set out in the Insertion Order will be payable in accordance with clause 14.3.

14.3.    The Merchant must settle any outstanding Fees (including Minimum Monthly Fee, CPC Fee, Setup Fee, Service Fee, Advertising Fee, Sponsorship Fee, unpaid tax invoice and final tax invoice) to Comparison within 30 days of the date of termination.  Payments made after this period will accrue interest at a rate of 1.5% per month, pro rata (or the highest rate permitted by law, if less).

14.4.    Either party may, upon giving written notice to the other party, terminate the Agreement if the other party goes into liquidation (save for the purpose of reconstruction or amalgamation) or if a receiver or administrator is appointed in respect of the whole or part of its assets or it makes an assignment for the benefit of or composition with its creditors generally or threatens to do any of these things.

14.5.    Upon completion of the term agreed in an Insertion order, if the Merchant continues to provide a Product Feed to Comparison, then the Merchant is deemed to have agreed to an ongoing term. Either party may terminate the Agreement as per clause 14.1.

15. Miscellaneous

15.1.     Independent Contractors. The parties are independent contractors. Neither party is, or has the right to act as, an agent, representative or partner of the other party. The Agreement must not be construed to create an association, agency, joint venture or partnership between the parties.

15.2.     Waivers. A right created by the Agreement can only be waived if the waiver is in writing, signed by the party entitled to that right. Delay by a party in exercising a right does not amount to a waiver, and a written waiver will not operate as a subsequent waiver of the same right or of any other right of that party.

15.3.     Assignment. The Merchant may not assign or sub-licence its rights or obligations under the Agreement without the prior written consent of Comparison. Any assignment or sub-licence without the prior written consent of Comparison shall be null and void. The Agreement may be assigned by Comparison without any consent.

15.4.     Enforceability. If a clause or part of a clause is unenforceable, voidable, invalid or illegal, it must be read down so as to be enforceable, valid and legal. If this is not possible, the clause (or the offending part) is taken to be severed from the Agreement without affecting the enforceability, validity or legality of the remaining clauses.

15.5.     Disputes. In the event of a dispute between the parties arising in connection with the Agreement, each party must nominate an officer of equivalent seniority who must meet in good faith to resolve the dispute. If they cannot resolve the dispute within 14 days, the Merchant's CEO and an officer of equivalent seniority from Comparison must meet in good faith to resolve the dispute. If the dispute is not resolved within a further 14 days, either party may take any action it deems appropriate.

15.6.     Governing Law. The Agreement is governed by the law of New South Wales, Australia. The parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction there without regard to the principles of conflicts of law

15.7.    Marketing. Subject to Comparison’s obligations in relation to the Confidential Information of the Customer, the Merchant consents and agrees to Comparison doing any of the following for the purpose of promoting the Services to third parties: (a) name Merchant as a customer of Comparison; (b) use of Merchant’s logo; and (c) use the Merchant Data in a broad, aggregated and de-identified manner such that it does not reveal the identity of Merchant, or individual users of the Service, provided that such action is not in contravention of any law or regulation.