OCEAN WEBSITE DESIGN PTY LTD
ACN 166 598 910 (the “Business”)
A trustee of the Fletcher Family Trust ABN 95 150 947 931

Address 12/6 Waterway Court, Churchlands Perth WA 6018

TERMS OF TRADING AND CONDITIONS OF PAYMENT

(a) The Business acts as a booking agent for various customers (the “Customers”) to arrange for the designing, printing and/or distribution of door to door flyers, leaflets and/or catalogues (the “material”) using certain sub-contractors (the “sub-contractors”) to carry out such door to door distribution of the material.

(b) All material either delivered by the Customer to the Business for distribution on behalf of the Customer or designed and printed by the Business for distribution on behalf of the Customer shall be distributed and/or designed printed and distributed by the Business on behalf of the Customer subject to the following terms and conditions (“Terms and Conditions”) and these Terms and Conditions shall prevail to the exclusion of all other terms and conditions whether expressed or implied, except only for such terms as are implied by or under any Act of Parliament or by or under any regulation and cannot be excluded.

1. Price

Prices shall be calculated in accordance with the current and applicable pricing at the date of invoice for the services.

2. Terms of Payment

2.1 Prepayment is required on all orders placed by the Customer. The Business shall not be obliged to arrange for the distribution of the material until payment has been made in full for the amount detailed in the invoice supplied by the Business to the Customer (the “invoice price”).

2.2 The Business shall be entitled to charge the Customer interest on any amount owing beyond thirty (30) days at the rate of 10% per annum.

2.3 All payments made by cheque or electronic transfer are received by the Business conditional upon the cheque or electronic transfer being honoured and be deemed paid when cleared by the Bank.

3. Delivery

The material will be dispatched to the sub-contractors by the Business’s chosen transport agent or chosen method of delivery. Risk in the material will at all times be that of the Customer who shall have no claims of whatsoever nature and howsoever arising against the Business in the event that the material is damaged or destroyed during the process of delivery to the sub-contractors.

4. Returns

The Customer shall be obliged to notify the Business in writing within seven (7) days of receipt of any proof in respect to material designed and to be printed by the Business for distribution on behalf of the Customer of any concerns with regard to the layout of or errors in the material, failing which the Customer will be deemed to have accepted such material as designed for printing by the Business on behalf of the Customer.

5. Cancellation by Business

5.1 The Business reserves the right to cancel this contract or any order at the sole discretion of the Business without giving any reasons therefor.

5.2 If the Business cancels this contract as contemplated in Clause 5.1 above, any prepaid monies will be immediately refunded by the Business to the Customer and the Customer will have no claims against the Business or its proprietors and/or directors (as the case may be) of whatsoever nature or howsoever arising out of such cancellation and the Customer, its proprietors and/or directors (as the case may be) hereby jointly and severally release and indemnify the Business and its proprietors jointly and severally against any such claims.

6. Default

If the Customer defaults in any payment then the Business may:

6.1 require payment be made forthwith of all amounts owing by the Customer to the Business, whether or not such amounts are then due;

6.2 suspend further deliveries to the sub-contractors until all amounts owing, including collection fees, interest and legal costs, have been paid.

7. Cancellation By Customer

The Business shall be entitled to require that the Customer pay all costs, expenses and damages (Including consequential damages) incurred and/or suffered by the Business as a consequence of the cancellation, variation or suspension of the order by the Customer.

8. Limitation of Liability

8.1.1 Any claim for damages of whatsoever nature and howsoever arising against the Business and/or its proprietors, employees, sub-contractors or agents relative to the door to door delivery of the material, shall be limited, to the refund by the Business to the Customer of the share of the invoice price received by the Business in acting as booking agent for the distribution of the material concerned.

8.1.2 The Customer and its proprietors and/or directors (as the case may be) hereby jointly and severally release and indemnify the Business and/or its proprietors,members, employees, subcontractors or agents jointly and severally against any such claims in excess of the Business’s share of the invoice price referred to in 8.1.1 above.

8.2.1 The Business shall not be liable for any delay in delivery arising from any cause, including negligence on its part or failure by the nominated sub-contractors of the Business to deliver all of the material and on time.

8.2.2 The Customer acknowledges that the Business is dependent on sub-contractors for the delivery of such material and that in certain instances it is not possible to distribute each and every flyer, leaflet and/or catalogue to each and every household within the designated area for the distribution of such material.

8.2.3 In no event shall the Business be responsible for any loss of profits, penalties, expenditure or damages (including consequential damages) incurred or suffered by the Customer arising out of any delay in delivery and/or short delivery.

8.3 The provisions of clauses 8.1.1. 8.1.2, 8.2.1, 8.2.2 and 8.2.3 herein may be pleaded by the Business, its proprietors, members, employees, sub-contractors or agents in bar to any such claims as may be made against either one or more of them jointly or severally by the Customer.

9. General

9.1 Save in the event that the material has been prepared by the Business the Customer shall furnish the material to the Business giving sufficient time and supplying sufficient quantities to enable the Business to carry out the distribution of the material.

9.2 The Customer warrants that the material shall not contain any offensive defamatory obscene or illegal material nor infringe the copyright of any person.

9.3 The Customer shall ensure that the material supplied shall be of the correct size and appropriate for method of distribution. All stock is to be bundled in uniform lots of no more than 500 and to be double strapped. If the bundles are boxed then the boxes are to weigh no more than 10kg. The Customer acknowledges that Incorrectly packaged stock may incur a handling fee or be rejected.

9.4 The Customer warrants that they own or are authorised by the owner of the material to enter into the distribution arrangement with the Business.

9.5 The Customer and its proprietors and/or directors (as the case may be) hereby jointly and severally release and indemnify the Business and/or its proprietors, members, employees, sub-contractors or agents jointly and severally against any claims arising out of the breach by the Customer of the warranties referred to in clauses 9.2 and 9.4 above.

10. Guarantee and Indemnity

In consideration of the Business at the request of the Director/Directors of the Customer agreeing to supply and continue to supply material and services to the Customer and forbearing to sue for any monies now or in the future owing to the Business by the Customer the Director/Directors (herein jointly and severally referred to as the “Guarantors”) hereby jointly and severally guarantee to the Business the due and punctual payment by the Customer of all monies owing or remaining unpaid to the Business by the Customer, as follows:-

10.1 The Guarantors undertake to pay to the Business upon demand and without any deduction or set-off all moneys owing at the time of such demand or at any time remaining unpaid by the Customer including without limitation all legal costs for recovery of the guaranteed moneys, either from the Customer or from the Guarantors and the Business may take recovery proceedings against the Guarantors before proceeding against the Customer.

10.2 This Guarantee shall be a continuing Guarantee to the Business for the whole of the Customer’s indebtedness or liability to the Business from time to time howsoever and whenever arising. This Guarantee will not be affected, nor will the Guarantor’s liability hereunder be diminished or discharged in whole or in part by:

10.2.1 the Business obtaining judgement against the Customer;

10.2.2 the Business granting any time or other indulgence, compounding or compromising with or releasing the Customer or any Guarantor;

10.2.3 any change in the identity or proprietorship of the Customer;

10.2.4 the Business taking or failing to take or enforcing or failing to enforce or holding any other security for the Customer’s indebtedness or abandoning, releasing, varying, surrendering, or in any way dealing with any security now or at any time in the future held in respect of the Business’s indebtedness;

10.2.5 any lack of legal capacity on the part of the Customer or of any Guarantor or any change which might occur in such capacity or the death, bankruptcy or liquidation of the Customer or the Guarantors;

10.2.6 any failure to notify the Guarantors of any dealings between the Business and the Customer, including any increase or change in, for example, the amount of credit allowed to the Customer from time to time or of any present or future delinquency or failure or inability to pay on the part of the Customer;

10.2.7 any payment or by any statement of account or by any other matter or thing until payment in full of all monies due by the Customer is received.

11 The Guarantors hereby indemnify the Business from any loss the Business may suffer by reason of the Customer becoming bankrupt or going into liquidation. The said indemnity shall include any amount which might be paid to the Business by the Customer but required to be repaid to the trustee in bankruptcy or liquidator of the Customer.

12 The Director/Directors confirm that the Director/Directors have obtained the Director/Directors solicitor’s advice and understand the purpose and effect of the Guarantee and the Director/Directors obligations under this Guarantee.

13. Confidentiality

The Customer shall not be entitled to use or disclose any Confidential Information disclosed to the Customer by the Business without the Business’s express written consent in writing having been first had and received.

14. Assignment

These terms and conditions of sale may be assigned by the Business without the consent of the Customer and the Customer acknowledges and agrees to be bound to any assignee under these terms and conditions of sale.

15. Trustee Liable

The Trustee of any trust agrees that the Trustee shall be liable in their own capacity and as Trustee of such trust to the Business under these terms and conditions of sale.

16. Governing Law

The applicable law governing these terms and conditions of sale shall be that of the State of Western Australia.