Australian Penthouse

Gemkilt Publishing Services Print and Online Advertising Terms & Conditions

These terms apply to all advertising provided to any person (a ‘Customer’) by Gemkilt Publishing Services Pty Ltd ACN 117 597 243 or any of its subsidiaries (all of which are referred to as ‘Gemkilt Publishing Services’).

1. Publication of Advertising
1.1. Subject to these Terms, Gemkilt Publishing Services will use its reasonable endeavours to publish advertising submitted by Customers (‘Advertising’) in the format submitted by the Customer and in accordance with the placement instructions of the Customer. ‘Advertising’ includes images submitted for publication.
1.2. Customer grants Gemkilt Publishing Services a worldwide, royalty-free, nonexclusive, irrevocable licence to publish, and to sub-licence the publication of, the Advertising in any form and in any medium. Customer warrants that it has the right and authority to grant Gemkilt Publishing Services the licence referred to in this clause 1.2

2. Right to Refuse Advertising
2.1. Neither these Terms nor any written or verbal quotation by Gemkilt Publishing Services represent an offer to publish Advertising. A binding contract in relation to a request for Advertising will only be formed between Gemkilt Publishing Services and a Customer when Gemkilt Publishing Services accepts the Advertising in writing.
2.2. Even if a contract has been formed in accordance with the above clause, Gemkilt Publishing Services reserves the right to refuse or withdraw from publication any Advertising at any time without giving reasons (even if the Advertising has previously been published by Gemkilt Publishing Services).

3. Right to Vary Format and Placement
3.1. Gemkilt Publishing Services reserves the right;
(a) to vary the placement of Advertising within a particular print title or Internet site; and
(b) to change the format of Advertising.
3.2. Gemkilt Publishing Services will endeavour to notify the Customer of any such changes. However, except in accordance with clause 12, Gemkilt Publishing Services will not be liable for any costs, expenses, losses or damages suffered or incurred by a Customer arising from Gemkilt Publishing Services’ failure to publish Advertising in accordance with a Customer’s request.
3.3. If Gemkilt Publishing Services changes the production environment, Gemkilt Publishing Services reserves the right to shrink or enlarge the size of the print Advertising by up to 10% or modify the online Advertising without notifying the Customer and without change to the rates for that Advertising.
3.4. Gemkilt Publishing Services will publish print Advertising under the classification heading that it determines is most appropriate. Print Advertising headings are for the convenience of readers and are determined at the discretion of Gemkilt Publishing Services.

4. Submission of Advertising
4.1. Customer warrants to Gemkilt Publishing Services that the Advertising and the publication by Gemkilt Publishing Services of the Advertising does not breach or infringe:
(a) the Trade Practices Act (Commonwealth), Fair Trading Acts (State) or equivalent legislation;
(b) any copyright, trade mark, obligation of confidentiality or other personal or proprietary right;
(c) any law of defamation, obscenity or contempt of any court, tribunal or royal commission;
(d) State or Commonwealth anti-discrimination legislation;
(e) the Privacy Act (Commonwealth);
(f) the financial services provisions of the Corporations Act; or
(g) any law or applicable code (including any common law, statute, delegated legislation, rule or ordinance of the Commonwealth, or any State or Territory).
4.2. Customer warrants that in respect of Advertising that contains the name or photographic or pictorial representation of any living person and/or any copy by which any living person can be identified, the Customer has obtained the authority of that person to make use of his/her name or representation or the copy.
4.3. Customer must not submit Advertising for publication that contains contact details for the Customer unless those contact details include the full name and street address of the Customer. Post office box and email addresses alone are insufficient.
4.4. If a Customer submits Advertising that looks, in Gemkilt Publishing Services’s opinion, like editorial material, Gemkilt Publishing Services may publish the Advertising under the heading ‘Advertising’ and with a border distinguishing it from editorial.
4.5. Gemkilt Publishing Services will endeavour to take reasonable care of Advertising material in its custody and control, but will not be responsible for any loss or damage to Advertising material (even if caused by Gemkilt Publishing Services’s negligence).
4.6. All Advertising material submitted by the Customer must comply with Gemkilt Publishing Services’ specifications which are available at www.australianpenthouse.com.au. Gemkilt Publishing Services may reject the Advertising material if it is not submitted in accordance with such specifications.
4.7. Print Advertising material must be submitted prior to the “Advertising Material Deadline” for the publication. Deadline information is found at www.australianpenthouse.com.au or upon request.
4.8. Gemkilt Publishing Services reserves the right to charge the Customer for print Advertising if creative materials are not submitted in accordance with clause 4.7.
4.9. For online banner and display Advertising, the customer must submit creative materials to Gemkilt Publishing Services at 3 working days (5 working days for non-gif material) before the scheduled publication date.
4.10. Gemkilt Publishing Services reserves the right to charge the Customer for online Advertising if creative materials are not submitted in accordance with clause 4.9.

5. Advertising Publishing & Performance
5.1. Gemkilt Publishing Services will measure online display and banner Advertising (including impressions delivered and clicks achieved) through its own ad-serving systems. Results from Customer or third party ad-servers will not be accepted for the purposes of Gemkilt Publishing Services’ billing and assessment of Advertising
5.2. Subject to clause 12, Gemkilt Publishing Services is not liable for any loss,damages or liabilities arising from a failure of the internet or any telecommunications structure.
5.3. Customer acknowledges that Gemkilt Publishing Services may at its discretion include additional features or inclusions such as third party advertisements within online classified Advertising.

6. Errors
6.1. The Customer must promptly
(a) check proofs of Advertising, if these are provided to the Customer by Gemkilt Publishing Services and
(b) notify Gemkilt Publishing Services of any errors in the proofs or any published Advertising.
6.2. Gemkilt Publishing Services does not accept responsibility for any errors in Advertising placed over the telephone.
6.3. Gemkilt Publishing Services does not accept responsibility for any errors in Advertising material received from third parties.
6.4. If a Customer wishes to make a claim on Gemkilt Publishing Services for credit, re-publication or any other remedy in respect of Advertising, the Customer must send the claim in writing to Gemkilt Publishing Services no later than 7 days after the date of the tax invoice.
6.5. Gemkilt Publishing Services will only investigate complaints during normal office hours (9am to 5pm, Monday to Friday excluding public holidays).
7. Advertising Rates and GST
7.1. The Customer must pay for Advertising with the rates in Gemkilt Publishing Services’ Ratecard, unless otherwise agreed, at the casual or basic rate.. Ratecard rates
(a) may be varied at any time by Gemkilt Publishing Services without notice.
(b) are exclusive of taxes, duties or GST (‘Taxes’) unless the Ratecard specifies that GST or other Taxes are included.
7.2. Unless otherwise agreed at the time we accept your material, accredited advertising agencies that are approved by us will receive a standard 10% agency discount off the Rate Card prices. No discount will be given in respect of material that is for the direct benefit of the agency.
7.3. All amounts shown on our Ratecards are in Australian Dollars unless specified otherwise.

8. Cancellations
8.1. If you wish to stop publication of Advertising or if you request work we are doing for you to stop after you have instructed us to proceed with the work, you must request our consent in writing and
(a) for print Advertising, the customer must cancel Advertising in writing prior to “Booking Deadline” date. Covers cannot be cancelled, and
(b) for online Advertising, the Customer must cancel online Advertising in writing at least 30 days before the publication date
8.2. If we do consent you must pay us:
(a) in our absolute discretion, a cancellation fee of up to 100% of the Advertising booking or of the work being done.

9. Credit
9.1. Gemkilt Publishing Services may grant, deny or withdraw credit to a Customer at any time in its discretion.
9.2. The Customer must ensure that its Customer account number is available only to those of its employees authorised to use it. The Customer acknowledges that it will be liable for all Advertising requested with the quotation of the Customer’s account number.
9.3. For the purpose of obtaining or providing a credit check/reference, you authorise us to make enquiries and to use, exchange and disclose to any credit provider or credit reporting agency, any or all information we know or obtain concerning your credit worthiness.

10. Payment
10.1. All amounts shown on our tax invoices are in Australian Dollars unless specified otherwise.
10.2. The customer must pay in Australian Dollars.
10.3. The Customer must pay for Advertising
(a) by prepayment, if so required by Gemkilt Publishing Services; and
(b) within 30 days after the date of the invoice if a commercial account has been established with Gemkilt Publishing Services
10.4. The Customer must pay:
(a) for Advertising in accordance with the size of the Advertising material lodged by the Customer, or the Advertising space ordered by the Customer, whichever is greater; If Customer fails to provide the copy or material for space that is booked, Customer will still be charged unless a cancellation is approved by Gemkilt Publishing Services.
(b) the full price for Advertising even if Gemkilt Publishing Services has exercised its right to vary the format or placement of the Advertising and even if there is an error or omission in the Advertising (unless the error or omission was the fault of Gemkilt Publishing Services).

11. Failure to Pay and other Breach
11.1. If a Customer breaches these terms and conditions or fails to pay for Advertising in accordance with clause 10 or if a Customer suffers an Insolvency Event as defined in clause 11.2, Gemkilt Publishing Services may (in its discretion and without limitation);
(a) cancel any provision of credit to the Customer
(b) require cash pre-payment for further Advertising
(c) charge interest on all overdue amounts at the rate 2% above the Westpac Banking Corporation Overdraft Base Rate
(d) take proceedings against the Customer for any outstanding amounts
(e) recover from the Customer all costs relating to any action taken by Gemkilt Publishing Services to recover amounts owing for Advertising, including without limitation any mercantile agency costs and legal costs on a full indemnity basis
(f) cease publication of any further Advertising on behalf of the Customer and terminate any agreement in relation to Advertising not yet published; and
(g) exercise any other rights at law.
11.2. A Customer suffers an ‘Insolvency Event’ if:
(a) the Customer is a natural person and the Customer commits an act of bankruptcy
(b) the Customer is a body corporate and the Customer:
(i) cannot pay its debts as and when they fall due;
(ii) enters an arrangement with creditors other than in the ordinary course of business;
(iii) passes a resolution for administration, wind up or liquidation (other than for the purposes of re-organisation or reconstruction);
(iv) has a receiver, manager, liquidator or administrator is appointed to any of its property or assets; or
(v) has had a petition presented for the winding up of the Customer.
11.3. A written statement of debt duly signed by an authorised employee of Gemkilt Publishing Services shall be prima facie evidence and proof of the amount owed by the Customer to Gemkilt Publishing Services.

12. Liability
12.1. The Customer acknowledges that it has not relied on any advice given or representation made by or on behalf of Gemkilt Publishing Services in connection with the Advertising.
12.2. Gemkilt Publishing Services excludes all implied conditions and warranties from these Terms, except any condition or warranty (such as conditions and warranties implied by the Trade Practices Act and equivalent State acts) which cannot by law be excluded (‘Non-excludable Condition’).
12.3. Gemkilt Publishing Services limits its liability:
(a) for breach of any Non-Excludable Condition (to the extent that liability for such breach can by law be limited); and
(b) for any other error or omission in published Advertising caused by Gemkilt Publishing Services, at Gemkilt Publishing Services’ option, to re-supply of the Advertising affected by the breach, or payment of the cost of re-supply.
12.4. Subject to clauses 12.2 and 12.3, Gemkilt Publishing Services excludes all other liability to the Customer for any costs, expenses, losses and damages suffered or incurred by the Customer in connection with these Terms and any Advertising published by Gemkilt Publishing Services, whether that liability arises in contract, tort (including by Gemkilt Publishing Services’s negligence) or under statute. Without limitation, Gemkilt Publishing Services will in no circumstances be liable for any indirect or consequential losses, including loss of profits, loss of revenue and loss of business opportunity.
12.5. The Customer indemnifies Gemkilt Publishing Services and its officers, employees, contractors and agents (the ‘Indemnified’) against any costs, expenses, losses, damages and liability suffered or incurred by the Indemnified arising from the Customer’s breach of these Terms and any negligent or unlawful act or omission of the Customer in connection with the Advertising.

13. Privacy
13.1. Gemkilt Publishing Services collects a Customer’s personal information to provide the Advertising to the Customer and for invoicing purposes. Gemkilt Publishing Services may disclose this personal information to its related companies, to credit reporting agencies and other third parties as part of provision of the Advertising. Where a Customer has an overdue account, Gemkilt Publishing Services may disclose personal information to debt collection agencies to recover the amount due.
13.2. More information about our privacy statement is accessible at www.australianpenthouse.com.au.

14. General
14.1. These Terms represent the entire agreement of the Customer and Gemkilt Publishing Services in relation to Advertising and cannot be varied except in writing by an authorised officer of Gemkilt Publishing Services. No purchase order or other document issued by the Customer will vary these terms.
14.2. Gemkilt Publishing Services will not be liable for any delay or failure to publish Advertising caused by a factors outside Gemkilt Publishing Services’ reasonable control (including but not limited to any Act of God, war, breakdown of plant, industrial dispute, electricity failure, governmental or legal restraint).
14.3. Gemkilt Publishing Services may service any notice or court documents on a Customer by forwarding them by pre-paid post or facsimile to the last known address of the Customer.

By downloading the Australian Penthouse RSS Feed (‘AP RSS’) from this website (‘Penthouse’), you agree to be bound by the terms set out below (the “Standard Licence Terms”). These Standard Licence Terms may be updated by Penthouse from time to time. Please review these Standard Licence Terms each time you download a Penthouse Feed.

Your download and/or use of a Penthouse Feed indicates your agreement to these Standard Licence Terms.

1. Licence

1.1 Subject to the terms of this Agreement Penthouse grants you a non-transferable, non-sublicensable, royalty free non-exclusive licence to display on your website (“Site”) the headlines, active links or other source identifiers and other information or materials that you specifically select to receive from the Penthouse via the Penthouse Feed (“PENTHOUSE Content”).

1.2 All title, ownership rights and intellectual property rights in and to the Penthouse Feed shall remain the property of the Penthouse.

1.3 Nothing in these Standard Licence Terms grants you any right to use the Penthouse trade mark on your site elsewhere.

2. Use of Penthouse Content
2.1 You may not use the feed or display any Penthouse Content on any Site that is a web site that is excluded by the Penthouse (scroll down for the list of excluded Websites as may be amended by Penthouse from time to time).

2.2 YOU MUST ENSURE THAT ALL PENTHOUSE CONTENT ON YOUR SITE HAS AN ACCREDITATION TO THE PENTHOUSE IN ACCORDANCE WITH THE PENTHOUSE ACCREDITATION GUIDELINES FROM TIME TO TIME (SCROLL DOWN FOR THE PENTHOUSE ACCREDITATION GUIDELINES AS MAY BE AMENDED BY THE PENTHOUSE FROM TIME TO TIME).

2.3 YOU MAY NOT DIRECTLY OR INDIRECTLY CHARGE USERS SPECIFICALLY FOR ACCESSING PENTHOUSE CONTENT OR OTHERWISE COMMERCIALISE SUCH CONTENT, NOR ATTEMPT TO RE-SELL THE PENTHOUSE CONTENT IN ANY WAY.

2.4 You may not directly or indirectly change, edit, add to or produce summaries of the Penthouse Content or any content on the Penthouse website nor place any full-story Penthouse content in an HTML frame-set.

2.5 You may not directly or indirectly suggest any endorsement or approval by the Penthouse of your Site or any non-PENTHOUSE entity, product or contentor any views expressed within your site or service.

2.6 You acknowledge that the PENTHOUSE has absolute editorial control over all Penthouse Content and you accept that the PENTHOUSE is editorially independent and that the editorial integrity of the PENTHOUSE Content is the sole responsibility of the Penthouse.

2.7 Should you receive any enquiries which relate to the Penthouse or the Penthouse Content you should promptly refer such enquiries to producer@horwitz.com.au

3. Warrenty & Liability

3.1 You warrant to the Penthouse that:

(i) you have fully complied with, and shall continue to comply full with, applicable laws and regulations;
(ii) the Site shall contain no material which is libellous, defamatory, pornographic, obscene or which brings the Penthouse into disrepute, or which is in breach of any third party intellectual property rights; and
(iii) users of the Site shall be required to comply with terms that are equivalent to the Standard Licence Terms in relation to their use of the Penthouse Content.

3.2 The Penthouse Feed is made available by the Penthouse on an “as is” and “as available” basis and the PENTHOUSE gives no warranty of any kind in relation to the Penthouse Feed, the PENTHOUSE Content, or any content on the PENTHOUSE website. The Penthouse disclaims all implied warranties, including but not limited to the implied warranties of satisfactory quality, fitness for a particular purpose, non-infringement, compatibility, and accuracy regarding the Penthouse Content, the Penthouse Feed and the Penthouse website and any content thereon.

3.3 TO THE MAXIMUM EXTENT PERMITTED BY LAW THE PENTHOUSE EXCLUDES ALL LIABILITY TO YOU FOR ANY LOSS OR DAMAGE HOWSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY LIABILITY ARISING IN RELATION TO THE PENTHOUSE FEED, THE PENTHOUSE CONTENT OR ANY CONTENT ON THE PENTHOUSE WEBSITE, ANY VIRUS OR OTHER CONTAMINATION OR ANY UNAVAILABILITY OF PENTHOUSE CONTENT.

3.4 Each provision of the Clause 3 operates separately in itself and survives independently of the others.

4. Indemnity

4.1 You hereby agree to indemnify, hold harmless and defend the Penthouse in respect of all damages, costs and expenses, including reasonable legal fees and litigation expenses, arising out of or as a result of any breach of the Standard Licence Terms or otherwise in connection with your use of the Penthouse Feed (including Penthouse Content).

5. Termination

5.1 You may terminate this Agreement and the licence granted herein at any time by destroying or removing all copies of the Penthouse Feed (including Penthouse Content) from your Site, all hard drives, networks and other storage media.

5.2 Penthouse may restrict, suspend or terminate the Penthouse Feed, this Agreement, the licence granted herein or your access to the Penthouse Feed at any time without liability. You agree to destroy all copies of the Penthouse Feed (including the Penthouse Content) upon receiving notice of termination from the PENTHOUSE.

5.3 Clauses 3, 4 and 6 shall survive termination of this Agreement.

6. General

6.1 Neither party may assign, charge, sublicense or otherwise deal with its rights or obligations in this Agreement in whole or in part to any third party.

6.2 This Agreement supersedes all prior agreements, arrangements and understandings between the parties concerning its subject matter. Each of the parties acknowledges that it has not relied on any statement made by the other in the course of entering into this Agreement.

6.3 Any failure or delay by either party in exercising its rights under any provisions of this Agreement shall not be construed as a waiver of those rights at any time now or in the future.

6.4 This Agreement shall be governed by, construed and take effect in accordance with Australian law and the Australian courts shall have exclusive jurisdiction to settle any claim or dispute which may arise out of or in connection with this Agreement.

Excluded Websites

The Penthouse’s RSS feeds and any PENTHOUSE content contained in the Penthouse RSS feeds may only be displayed on websites that do not fall into any one or more of the categories listed below. A site will be deemed to fall within one of the following categories where there is a material and prominent section of the Site that falls within such category.

1. Sites that incite hatred whether based on race, religion, gender, sexuality or otherwise, or promote encourage or facilitate anti-social behaviour

2. Sites that promote, encourage or facilitate violence

3. Sites that promote, encourage or facilitate terrorism or other activities that risk Australian national security

4. Sites that discriminate against any specific social group or otherwise exploit vulnerable sections of society

5. Sites that promote, facilitate or encourage illegal activity

6. Sites which are misleading, pornographic, defamatory, or that contain illegal, or otherwise actionable content under Australian law

7. Sites which infringe individual privacy.

I warrant that I am over the age of 18 years, that the terms of this Agreement do not conflict with any existing commitment on my part, that I have the capacity to execute this agreement and that I understand its terms and conditions. By selecting the ‘ I have read and agree to the Terms and Conditions’ cehck box, I signify my irrevocable agreement to be bound by the terms and conditions of this agreement.

I agree to participate in and to appear in photographs other images arising from the the “Images” which may be published by Gemkilt Publishing Services (“Gemkilt”), its licensees or assigns, at its absolute discretion in any Media, in any country and for any purpose whatsoever including (but not limited to) illustration, promotion, advertising and trade in the published magazines of Gemkilt, its licensees or assignees (the “Publications”).

I acknowledge and agree that Gemkilt Publishing Services Australian Penthouse Website may publish or authorise the publication of the Images in any layout or format, in whole or in part, without restriction as to changes or alterations made from time to time, and accompanied by any text, graphics and/or other accompaniment it chooses without further reference to me.

I release Gemkilt Publishing Services Australian Penthouse Website, its directors, officers, employees, agents, related companies, licensees and assigns from all actions, suits, causes of actions, claims and demands whatsoever which I may have at any time in connection with the Images or arising from or relating to their use (whether by publication in any Media, format or otherwise) including (but not limited to) any liability by virtue of any blurring, distortion, alteration, context or otherwise, and any action for defamation or other tort, under contract law or any statute. This release is irrevocable and its benefit may be transferred to the licensees or assignees of Gemkilt.

If the photo submitted is for the purposes of publication in the Penthouse magazine, I warrant and agree that for a period of at least one (1) month after that Penthouse magazine goes on sale I will not appear in any publications similar to, a rival to, or otherwise competes (whether directly or indirectly) with the Penthouse magazine as published in any Media.

If the photo submitted is for the purposes of publication in the Penthouse magazine, I acknowledge and agree that Gemkilt Publishing Services Australian Penthouse Website owns, holds or otherwise controls the worldwide rights to the Images (including copyright) and may, but is not obliged to, exercise all or any of its rights in respect of the Images, including using or licensing the publication of the Images in publications other than the Publications, and using or licensing the publication of the Images in any Media or format including (but not limited to) DVD, MMS, CD-ROM and the Internet.

For the purposes of this agreement, “Media” includes but is not limited to print, electronic, or digital media or any other multimedia format that is published, displayed, transferred or transmitted in, on or through paper, the world wide web, the internet, mobile telephones, television, handheld devices, wireless or any platform by which data, digital or electronic images are published, displayed, transferred or transmitted, or any other platform that is available, or becomes available, as technology evolves over time.

Various terms and conditions apply to the Australian Penthouse website content and magazine. Please select from one of the following:

• Website
• Competitions
• Casting Call
• Your Stories
• RSS Terms
• Advertising Terms and Conditions