1 Business Name: Business Address: Suburb / Postcode: Postal Address: Telephone: Fax: Main Contact: EasyVert Pty Ltd ACN Suite 260 / 51 Robina Town Centre Queensland, 4230 Tel : Fax: USE OF THE EASYVERT ADVERTISING SYSTEM & CLASSIFIED DIRECTORY Web Site: Sub Domain: mystore.easyvert.com.au Establishment & Annual License Fees: Ownership of the EasyVert website, sub domains, intellectual property, trade-marked entities and content remains that of EasyVert Pty Ltd. The company identified in the above schedule is licensed to use this material during this term and NO RIGHTS to use this material beyond this time are conferred upon the company. An EasyVert sub domain entity will be licensed for use by the Company for the duration of this agreement. The EasyVert website and sub domain name(s) are owned by EasyVert Pty Ltd. Introductory offer no set up or license fee payable for the first 12 months. An annual EasyVert license fee of $450 + GST applies after the 12 month introductory period and subsequently every 12 months thereafter. DISPLAY SCREEN DETAIL Display Operating Hours: Internet Connection: Screens must display the sub-domain content for a daily period of 8am to 6pm (ie 10 hours Mon to Friday), or during your trading hours, screen must be on for a minimum 9 hour period per day. Display periods in excess of this will greatly enhance the attractiveness of advertisers to pay for advertisements on your in-store display screens. Display Screen must be connected during trading hours to the internet sub domain to display adverts. General Terms of Service EasyVert Pty Ltd, herein after called EasyVert, will license the use of its Easyvert Advertising System to the above nominated company and then subsequently provide continuous hosting of the service throughout the duration of this agreement. EasyVert will provide an EasyVert sub-domain for use by the company and a web-based user administration facility for the company to receive advertising offers and manage their EasyVert Account. The company will also be able to use, and direct its customers to use, FREE of charge the standard EasyVert classified listing service at Premium listings can be sought for payment both on the general EasyVert home page and the company licensed sub domain page. The company acknowledges that its rights to the EasyVert Advertising System relate only to that of a licensed user for the duration of the agreement. The company also acknowledges that it enters into a sub-contractor agreement with EasyVert Pty Ltd whenever it accepts payment to display advertising material on agreed company supplied display screens. The display screens, identified above, are to remain in the locations defined, operating at least during the hours described and displaying the content of the company licensed EasyVert sub-domain for the duration of any accepted advertising agreements. Full details of such standard sub-contractor agreement are available and confirmed on-line upon the company accepting to display paid advertising. The company can accept or reject any advertising offer for display on its display screens and has 24 hours to confirm acceptance. Advertising alerts will be provided to the user account. EasyVert provides full care in providing the EasyVert Advertising system but the final display responsibility and contractual commitment to display paid services remains that of the company. If the above terms are not met and paid advertisements are not displayed damages may be claimed. Damages will be limited to no more than 200% of the company accepted advertising fees (i.e Company is Paid $5 for 1 week display, Display not active for 1 week, Damages claimed = $10). Company Name: Authorised Signatory Name: Signature: ACN/ABN: Title: Date:
2 Terms of this DEED OF AGREEMENT Unless otherwise agreed in writing, the following terms apply to all services provided by EasyVert Pty Ltd ABN Payments, Charges, Cancellation Fees & Contract Rollover 1.1 Late Payment Charges All accounts with an outstanding balance past 90 days will incur a late payment/administration charge of $20.00 per month. 1.2 Payment Recovery Expenses Any expenses incurred by EASYVERT in recovering outstanding monies shall be paid by the applicant. 1.3 Cancellation Charges This agreement is a legally binding document requesting the l of EASYVERT. This agreement may be cancelled by the applicant at anytime Cancellation during Annual Licence Period If a request to cancel is submitted during the Annual Licence Period term then the applicant is required to provide written notice and the entire agreement will then be deemed to have been cancelled with no further supply requirements of EASYVERT or payment requirements of the applicant. No refunds for unused licence periods will be paid Cancellation during Sub-Contracted Advertising Commitments If a request to cancel is submitted during the committed advertising service schedule then the applicant is required to pay a cancellation fee (2 times the sub-contracted monthly income fee) equivalent to 2 times the advertising revenue accepted and booked by the company for the ensuing 4 week period. The agreement will then be deemed to have been cancelled, with EASYVERT providing no further access to its Easyvert Advertising System. This cancellation fee can be deducted by EasyVert from outstanding fees due to the Company and will be detailed in the final Recipient Created Tax Invoice (RCTI). 1.4 Contract rollover After the agreement term has expired, and no notice for cancellation has been received then EASYVERT will continue to supply on the understanding that the above service contract has been renewed for a further 12 month period and will be confirmed online at the Company Administration Site. Cancellation of the service may still be invoked in accordance with para 1.3 above and must be advised in writing to EASYVERT. 1.5 Annual CPI Increase for The EasyVert Advertising System Licence Fee Annual fees may be increased after every 12 month period throughout the course of this agreement and will reflect increases commensurate with Australian CPI increases for that preceding 12 month period. 2. Web Site Domain, Classifieds & Hosted Server Facilities 2.1 Service Level Policy We will provide the Services in accordance with our Service Level Policy. 2.2 Continuing availability We will use every reasonable endeavor to provide continuing availability of the Web Services, Administration Site and the Hosted Server Facilities, but will not be liable for interruptions or down time of the Server. 2.3 No warranty We do not warrant that the Services or the Hosted Server will be error free, virus free, uninterrupted or free from unauthorised use or hackers. 2.4 Unscheduled maintenance You acknowledge that from time to time it may be necessary for us to perform unscheduled maintenance on the Server. 2.5 Scheduled maintenance We will notify you by of any scheduled maintenance that will require the Server to be offline for more than 30 minutes. 2.6 Passwords You must keep secure any passwords we provide to you and notify us as soon as possible of any known or suspected unauthorised use of the Services or the Server. 3. Website content and compliance 3.1 Content You must not publish on any website hosted by us any information or material which: (a) is threatening, abusive, harmful, malicious, defamatory, violent, obscene, pornographic, profane or otherwise objectionable in any way; or (b) infringes the Intellectual Property Rights of any third party. 3.2 Compliance with laws and Acceptable Use Policy You must comply with: (a) all relevant laws and regulations, including those laws and regulations relating to unsolicited commercial electronic messages and You must comply with our reasonable and lawful directions from time to time concerning the content of any website hosted or outsourced by us, and matters of technology and software. 3.4 Failure to comply If you fail to comply with any part of this clause, we may suspend the provision of the Services until such time as you are fully compliant. 4. Sub-Contracted Services 4.1 Applicability This clause 4 only applies if we provide you with Sub-Contractor Agreements to which you accept payment for advertising revenue to display in-store advertisements. 4.2 Sub-Contractor Agreement We will notify you of all offers to display paid advertising on your nominated in-store display screens. These offers will be detailed as a sub-contractor agreement between Easyvert and your Company. These will be legally binding agreements where we will pay you to display advertising available at your Easyvert Sub-Domain for a fee. You will be required to ensure your display is operational, in its agreed location and accessing content for display to the general public for the period of the advertisement booking. 4.3 Representation You represent that, to the best of your knowledge and belief, that you are able and authorized to accept and display this advertising content. We represent that we will not submit content that does not infringe the rights of someone else and that it does not violate the law in any other way such as by being defamatory, being of racist content or is threatening. 4.4 No proprietary rights You acknowledge that neither you, nor we, have any proprietary right arising from the advertising material placed by paid advertisers. 4.5 Cancellation by you If a request to cancel is submitted during the committed advertising service schedule then the applicant is required to pay a cancellation fee (2 times the sub-contracted monthly income fee) equivalent to 2 times the advertising revenue accepted and booked by the company for the ensuing 4 week period. The agreement will then be deemed to have been cancelled, with EASYVERT providing no further access to its Easyvert Advertising System. This cancellation fee can be deducted by EasyVert from outstanding fees due to the Company and will be detailed in the final Recipient Created Tax Invoice (RCTI). 4.6 Cancellation by us We may cancel your Easyvert Advertising system Licence if you breach any part of these terms. 5. Liability 5.1 Limitations on liability To the maximum extent permitted by law, we will not be liable to you or to any other person for: (a) any Claim directly or indirectly caused by any wrongful, wilful or negligent act or omission by us or any of our officers, employees, obligations of the parties, the performance, breach, rescission or termination of these terms, the entitlement of any party to damages or compensation (whether for breach of contract, tort or any other cause of action) or the amount of that entitlement (Dispute), the party claiming that a Dispute has arisen must deliver to the other party a notice containing particulars of the Dispute (Dispute Notice). Notice, or any longer period agreed in writing by the parties to the Dispute (Initial Period), each of the parties must use its reasonable endeavours and act in good faith to resolve the Dispute by discussion and negotiation 5.2 Maximum liability If we are liable to you for any reason other than a breach of a nonexcludable condition or warranty, our maximum aggregate liability for all proven losses, damages and claims arising out of these terms, including liability for breach of contract, in negligence or in tort or for any other common law or statutory action, is limited to the sum of the amounts paid by you in the first year of the agreement. 5.3 Server & Web Site Unavailability The liability of EASYVERT to any lack of site availability other than that identified at clause 2 for maintenance is limited solely to the pro-rated cost of the service fee charged by EASYVERT for that period of time the service was unavailable and must be advised in writing during the time of unavailability. Calculation of service loss will commence from the time
3 address-harvesting software; and (b) our Acceptable Use Policy. 3.3 Compliance with directions agents or contractors; (b) any Claim directly or indirectly caused by any wrongful, wilful or negligent act or omission by you or any of your officers, employees, agents or contractors; or (c) any indirect, incidental, special or consequential loss or damage, loss 5.6 Non excludable rights implied by statute Nothing in these terms excludes, restricts or modifies any condition, warranty, right or remedy conferred on us by the Trade Practices Act 1974 (Cth) or any other applicable law that cannot be excluded, restricted or modified by agreement. 5.7 Liability for breach of non excludable rights To the maximum extent permitted by law, our liability for a breach of a non excludable condition or warranty referred to in clause 5.4 is limited, at our option, to: (a) supplying the Services again; or (b) payment of the cost of having the Services supplied again. 5.8 Survival of clause Notwithstanding any other provision of these terms, this clause survives the expiry or termination of these terms. 6. Indemnity 6.1 Indemnity You indemnify us and must keep us indemnified against all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal costs on a full indemnity basis) that may be brought against us or which we may pay, sustain or incur as a direct or indirect result of any one or more of the following: (a) any breach or non performance of these terms by you; and (b) any wrongful, wilful or negligent act or omission by you or any of your employees, agents or contractors. 6.2 Operation Unless these terms expressly provides otherwise: (a) each indemnity in these terms survives the expiry or termination of these terms; and (b) a party may recover a payment under an indemnity in these terms before it makes the payment in respect of which the indemnity is given. 7. Termination 7.1 By notice We may, by notice to you, terminate these terms if you: (a) fail to pay any amount due and payable to us within 3 months after the due date for payment; (b) fail, within 14 days after receipt of notice, to remedy any breach of your obligations under these terms which is capable of remedy; (c) breach any of your obligations under these terms which is not capable of remedy; (d) persistently breach your obligations under these terms; or (e) go into liquidation, have a receiver or receiver and manager appointed, enter into a scheme or arrangement with creditors or suffer any other form of external administration. 7.2 Effect on termination On termination of these terms: (a) we may immediately cease providing the Services; and (b) subject to the provision of a tax invoice, all charges incurred under these terms will become immediately due and payable. 8. Dispute resolution 8.1 Delivering a dispute notice If any dispute arises between the parties relating to or arising out of these terms, including its construction, effect, the rights and During the period of 10 Business Days after delivery of the Dispute 8.2 Parties must negotiate Notice, or any longer period agreed in writing by the parties to the Dispute (Initial Period), each of the parties must use its reasonable endeavours and act in good faith to resolve the Dispute by discussion and negotiation. 8.3 Referral to third party If the parties have been unable to resolve the Dispute within the period stated in clause 8.2, then the parties must refer the Dispute to a Mediator. For the purposes of this clause 8, the Mediator is a person: (a) having appropriate qualifications and experience relevant to determining the Dispute; (b) who is agreed by the parties or, failing agreement within 5 Business Days, is nominated at the request of any party by the Institute of of receipt of notification to EASYVERT. 5.4 Web Site Data and Classified Directory Service EASYVERT is not liable for any damages in relation to price or product accuracy provided through the classified directory system at 5.5 Exclusion of implied warranties To the maximum extent permitted by law, any representation, warranty, condition or undertaking that would be implied in these terms by legislation, common law, equity, trade, custom or usage is excluded. (e) may co opt other expert assistance; (f) each party must pay its own costs of complying with this clause 8 and the costs of the Mediator and any other costs of complying with this clause 8 must be shared equally by the parties; and (g) the parties must continue performing their obligations under these terms while the Dispute is being resolved. 8.7 Other proceedings A party may not commence court proceedings in respect of a Dispute unless it has complied with this clause 8 and until the procedures in this clause 8 have been followed in full, except where: (a) the party seeks injunctive relief in relation to a Dispute from an appropriate court where failure to obtain such relief would cause irreparable damage to the party concerned; or (b) following those procedures would mean that a limitation period for a cause of action relevant to the issues in dispute will expire. 9. General 9.1 Notices Any notice or other communication to or by a party under these terms: (a) may be given by personal service, post, facsimile or ; (b) must be in writing, legible and in English addressed to the last known address of the addressee; (c) in the case of a corporation, must be signed by an officer or authorised representative of the sender or in accordance with section 127 of the Corporations Act; and (d) is deemed to be given by the sender and received by the addressee: (i) if delivered in person, when delivered to the addressee; (ii) if posted, 2 Business Days (or 6, if addressed outside Australia) after the date of posting to the addressee whether delivered or not; (iii) if sent by facsimile transmission, on the date and time shown on the transmission report by the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety and in legible form to the facsimile number of the addressee notified for the purposes of this clause; or (iv) if sent by , on the date and time at which the was sent, but if the delivery or receipt is on a day which is not a Business Day or is after 4.00 pm (addressee's time), it is deemed to have been received at 9.00 am on the next Business Day. 9.2 No assignment You cannot assign or otherwise transfer the benefit of these terms without our prior written consent. 9.3 Obligations of confidentiality Each party (Receiving Party) receiving, possessing or otherwise acquiring Confidential Information of any other party (Disclosing Party) acknowledges that the Disclosing Party's Confidential Information is the property of and confidential to or a trade secret of the Disclosing Party. Subject to clause 9.4, the Receiving Party must: (a) keep the Disclosing Party's Confidential Information confidential and not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the prior written approval of the Disclosing Party; (b) take all reasonable steps to secure and keep secure all Disclosing Party's Confidential Information coming into its possession or control; and (c) not memorise, use, modify, reverse engineer or make copies, notes or records of the Disclosing Party's Confidential Information for any purpose other than in connection with the performance by the Receiving Party of its obligations under these terms. 9.4 Exceptions to obligations of confidentiality The obligations of confidentiality under clause 9.3 do not apply to any information that: (a) is generally available to the public (other than by reason of a breach of these terms); or (b) is required to be disclosed by any applicable law. 9.5 Severability Any provision of these terms which is invalid in any jurisdiction must, in
4 Arbitrators and Mediators Australia in accordance with its Mediation and Conciliation Rules; and (c) who does not act, or whose firm does not act, for any party. 8.4 Role of Mediator The role of the Mediator is to assist in negotiating a resolution of the Dispute. The Mediator may not make a decision that is binding unless the parties otherwise agree in writing. 8.5 Powers of Mediator If a Mediator is appointed under clause 8.3, the Mediator: (a) may determine the time, place and procedures (which will be as informal as is consistent with the proper conduct of the matter) for the mediation, having regard to the nature of the Dispute and the provisions of these terms; (b) may communicate privately with the parties or with their lawyers; (c) may allow the appearance of lawyers on behalf of the parties; (d) may accept written submissions from a party in relation to the Dispute, provided a copy of the submission is also given to all other parties; 9.7 Governing law and jurisdiction These terms are governed by and must be construed in accordance with the laws in force in Queensland. The parties submit to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters arising out of or relating to these terms, its performance or subject matter. 10. Definitions and interpretation 10.1 Definitions In these terms: auda means the Australian Domain Name Administrator; Acceptable Use Policy means the acceptable use policy published on our Website from time to time; Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in New South Wales; Claim means any demand, claim, proceeding or cause of action made or brought and any costs (including costs on a solicitor client basis) incurred, damages or liability suffered or orders made in respect of the demand, claim, proceeding or cause of action; Confidential Information means: (a) these terms; (b) information that at the time of disclosure by either you or us is identified by either you or us as being confidential; and (c) all other information belonging or relating to either you or us, or any related entity of yours or ours, that is not generally available to the public at the time of disclosure other than by reason of a breach of these terms or which either you or we know, or ought reasonably to be expected to know, is confidential; Corporations Act means the Corporations Act 2001 (Cth); Dedicated Hosting Services means the provision of a Server owned, or outsourced by us, in respect of which you have exclusive use, and includes the provision of electricity and internet connectivity; Dispute Policy means either: (a) the ICAAN Uniform Dispute Resolution Policy available at and as amended from time to time; or (b) the.au Dispute Resolution Policy available at and as amended from time to time, whichever is relevant in the particular circumstances. Domain Name means the Domain Name registered by us on your behalf; Domain Name Licence means your licence to use the Domain Name which is the subject an application made by you; Domain Name Registration Services means services related to the registration of Domain Names; Services means the provision of accounts and area on the Server allocated by us for the storage of associated data; ICAAN means the Internet Corporation for Assigned Names and Numbers; Intellectual Property Rights means all present and future intellectual and industrial property rights conferred by statute, at common law or in equity and wherever existing, including: (c) patents, designs, copyright, rights in circuit layouts, plant breeder's rights, trade marks, know how, brand names, Domain Names, inventions, product names, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration; relation to that jurisdiction: (a) be read down to the minimum extent necessary to achieve its validity, if applicable; and (b) be severed from these terms in any other case, without invalidating or affecting the remaining provisions of these terms or the validity of that provision in any other jurisdiction. 9.6 Entire understanding (a) These terms contains the entire understanding between the parties concerning the subject matter of these terms and supersedes all prior communications between the parties. (b) Each party acknowledges that, except as expressly stated in these terms, that party has not relied on any representation, warranty or undertaking of any kind made by or on behalf of the other party in relation to the subject matter of these terms. (d) any application or right to apply for registration of any of these rights; (e) any registration of any of those rights or any registration of any application referred to in paragraph (d); and all renewals and extensions of these rights; Managed Services means our management of the Domain Name, the website located at the Domain Name, the hosting of the website or any other management services we provide to you; Secure Web Page means the area on the Server allocated by us to you which allows you to collect credit card details in a means that is difficult for other people to view the page when it is loaded because it is encrypted; Server means one or more computer servers operated by us and used in connection with the provision of the Services; Service Level Policy means the service level policy published on our Website from time to time; Services means the Co-location Services, Dedicated Hosting Services, Domain Name Registration Services, Services, Managed Services, Secure Web Page Services, Shared Hosting Services and any other services we may provide to you from time to time; Shared Hosting Services means the provision of space on a Server owned or outsourced by us, in respect of which you do not have exclusive use, and includes the provision of electricity and internet connectivity; Third Party Claim means a Claim brought against us by a person not a party to these terms; Transfers (Change of Registrant) Policy means the policy of auda regarding the transfer of a Domain Name Licence to another registrant; Interpretation In this Deed, unless the context requires otherwise: (a) the singular includes the plural and vice versa; (b) a gender includes the other genders; (c) the headings are used for convenience only and do not affect the interpretation of this Deed; (d) other grammatical forms of defined words or expressions have corresponding meanings; (e) a reference to a document includes the document as modified from time to time and any document replacing it; (f) if something is to be or may be done on a day that is not a Business Day then it must be done on the next Business Day; (g) the word "person" includes a natural person and any body or entity whether incorporated or not; (h) the word "month" means calendar month and the word "year" means 12 months; (i) the words "in writing" include any communication sent by letter, facsimile transmission or or any other form of communication capable of being read by the recipient; (j) a reference to a thing includes a part of that thing; (k) a reference to all or any part of a statute, rule, regulation or ordinance (statute) includes that statute as amended, consolidated, re enacted or replaced from time to time; (l) wherever "include" or any form of that word is used, it must be construed as if it were followed by "(without being limited to)"; (m) money amounts are stated in Australian currency unless otherwise specified; and (n) a reference to any agency or body, if that agency or body ceases to exist or is reconstituted, renamed or replaced or has its powers or functions removed (defunct body), means the agency or body which performs most closely the functions of the defunct body.