Wos Agreement 20080703

Whats On Sale Pty Ltd Agreement Whats On Sale Pty Ltd (ABN: 50 128 223 352) and Company Name: _________________________________________________________________________________________________________________________ Trading Name:

Address:

____________________________________________________

ACN/ABN: ______________________________________________

__________________________________________________________________________________________________________________________

__________________________________________________________________________________________________________________________________ Ph: _________________________________ Fax: __________________ Email: ______________________________________________________________________ Website: ________________________________________________________________________________________________________________________________

PAYMENT SCHEDULE Payment in full Payment in 10 instalments via Ascot Finance (see attached form) Product

Qty

WEBSITE

Unit Price

12 MONTHS

MONTHS WEBSITE RADIO

2400

months

NO CHARGE

1 week

NO CHARGE

As per request & depending on availability

Email Newsletter & Solus Email

NO CHARGE Sub Total GST TOTAL

Balance to be paid over invoice.

instalments of _______

Total

starting on

2400 240 2640

and finishing on _______&/or within 7 days of receiving

Credit card account payment method CREDIT CARD DETAILS: (Credit card details must be supplied) Name on Card (“Card Holder”) ____ / __ __

MasterCard

Visa

Credit Card No: __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ Expiry Date __ __

Signature of Card Holder________________________________________________________________ The Participating Retailer understands that the signature provided above is deemed to be irrevocable authority for WHATS ON SALE PTY LTD to take the Advertiser Fee (set out in Section 2 above) owed to them by the Participating Retailer from the above mentioned credit card and to make enquiries where necessary as set out under the Privacy Act. __________________________________________________________________________________________________________________________

TERMS

OF THE

AGREEMENT

I accept the terms and conditions as set out in the attached form. The term of the agreement shall commence from:_________ ________________

TO:

The applying ADVERTISER has the option to seek a renewal/extension of the ADVERTISER PERIOD for a further period upon terms to be agreed provided the applying Advertiser has not been in breach of this agreement.

SIGNED for and on behalf of: (Name of Business) _________ (Signature) (Print Name) (Position) _

Signed on behalf of WHATS ON SALE PTY LTD

__

___

____________________________ ___

____________________

(Date) ______________________________________________________

______________ Whats On Sale Pty Ltd 11 Cadby St, Brighton Vic 3185 Ph: +61 3 9593 2746 Fax: +61 3 9592 5345 ABN: 50 128 223 352

(Print Name)

__________________________________________

These terms apply to all dealings between the Participating Retailer and WHATS ON SALE PTY LTD unless otherwise agreed to in writing. 1. Defined Terms: In these Terms and Conditions, certain words and phrases are given specific definition as follows: Advertiser: The person, company or entity that advertises to benefit from the Service under the terms of this agreement. Advertising Fee: The amount detailed as the fee in the advertising order form of the agreement. Participating Retailer: The retailer who advertises with the Service Provider. Participating Retailer Agreement: The Participating Retailer Agreement form to which these terms and conditions are attached, and which forms part of this agreement. Payment Date: The date described as a payment date in the order form in the advertising agreement. Product: The product, goods, or services offered by the Advertiser. Product Information: The specific information accessed by a user relating to advertising content. Product Request: A request for the Product to be purchased or for information requested by a customer to the Advertiser. Service: The service provided to the user and the Advertiser. This is the whatsonsale.com.au internet web-site operated by the Service Provider. Service Provider: Whats On Sale ACN 50 128 223 352 and its successors and nominees. 2. Service The Service Provider intends to provide the Service in accordance with these terms and conditions for members of the general public to access the Service. 3. Term of agreement This agreement is for a period as set out in the order form. The parties may agree to extend the term of this agreement for a further period. The Advertiser acknowledges that a different fee structure may be payable for any extended term of this agreement, than the fee which applied for the initial term of this agreement, at the discretion of the Service Provider. 4. Advertising Fees The Advertiser agrees that no deductions will be made from the Advertising Fee other than stated in the agreement and in particular the Advertiser cannot deduct anything that it claims the Service Provider owes, or could in the future owe, to the Advertiser. The Advertiser acknowledges that as at the date of this agreement, it is under a fixed and binding obligation to pay the Advertising Fee. Termination of this agreement by the Service Provider for what ever reason during the initial term will not entitle the Advertiser to a refund of any part of the Advertising Fee unless required by law. If the agreement is terminated by the Advertiser for any reason, the Service Provider will pay the Advertiser a refund of the Advertiser Fee on a pro-rate basis for the remaining term of the agreement. 5. Submitting Advertisements The Advertiser will submit the advertisements electronically to the Service Provider and the Service Provider will provide proofs of the advertisements to the Advertiser prior to the advertisements being advertised. It is the responsibility of the Advertiser to check any proofs and notify the Service Provider of any errors in the proofs or in any advertisement that the Service Provider advertises. 6. Obligations of Service Provider Promotion: The Service Provider will use its best endeavours to promote and further the use of the Service by the general public. The Advertiser hereby authorises the Service Provider to use the trademarks, logos or any other symbols, signs, or insignia provided to the Service Provider for that purpose in any such promotional activities. As part of any promotional activities, the Advertiser authorises the Service Provider to include reference to the Advertiser provided that any reference is made in a professional manner and approved in writing by the Advertiser. The promotion of the Service will extend to such geographic areas so as to reach those members of the general public that would be reasonably expected to make inquiries to the Advertiser having regard to the characteristics of the Service. The Service Provider makes no guarantee, warranty or representations to the frequency of the use of the Service by the general public or referrals to Advertisers by the Service Provider. Service: The Service Provider will provide the Service to the Advertiser. The Advertiser hereby authorises the Service Provider to publish advertising material through the Service. Service Provider: will provide a standard advertising database driven internet web-site. In the event, that the information page, or catalogue, site graphics &/or text become irreconcilable in dispute then either party may terminate this agreement by notice in writing to the other, but, subject to the terms of this agreement, no production money paid by the Advertiser to the Service Provider will be refundable unless required by law; and in its absolute discretion, reserves the right to terminate this agreement where the Service Provider forms the view (acting reasonably) that the Product(s) advertised are of a type or nature which is not generally in keeping with the Service intended to be provided by the Service Provider to members of the general public, or if the Product(s) advertised are not available or the advertising is of a misleading nature to the general public. In the event that the Advertiser does not have the technical knowledge or necessary equipment to facilitate the uploading of information or any other required maintenance and requires the Service Provider to perform these ongoing duties, a schedule of costing will be listed on a separate agreement. Should this service be required subsequent to the original agreement, then a further agreement with duly authorised signatories of the Service Provider and the Advertiser will be required. Statutory Requirements: The Service Provider will ensure that it maintains all necessary government and other statutory approvals in order to carry out the Service, for the term of this agreement. All advertisers must adhere to all relevant statutory requirements in terms of Trade Practices Act and ACCC advertising guidelines. The Service Provider is not responsible for any actions taken by authorities or individuals in relation to the Advertiser’s content, unless such content was not expressly approved or authorised by the Advertiser. The Advertiser agrees that all responsibility and any subsequent fines, penalties or restrictions regarding the Advertiser’s content are the sole responsibility of the Advertiser. The Service Provider will do nothing to discredit or otherwise tarnish the reputation of the Advertiser. 7. Obligations of Advertiser The Advertiser will at all times use all reasonable and necessary endeavours to:Respond to all Product Requests in a prompt, courteous and efficient manner; Provide any further information or details about the advertised Product, as may reasonably be required by the Service Provider to efficiently conduct the Service. Provide all Products competently, in a good workmanlike manner and in accordance with all government and statutory approvals (if any) regulating the provision of Products by the manufacturer. If an Advertiser is selling after market, factory seconds, or any defunct product, then this must be clearly labelled in the advertisement. In case of a dispute regarding a Product, the Advertiser may be found in breach of the terms of this agreement and good faith, and the Service Provider reserves the right to cancel the Advertiser’s account, with no refund.Do nothing to discredit or otherwise tarnish the reputation of the Service Provider or the Service; and will not offer products through the Service, the sale, use or possession of that is illegal or prohibited at law. Where the advertised product text includes reference to an external internet web-site, the Advertiser agrees not to place or be allowed to be placed on that site, any material which is not generally in keeping with the Service provided by the Service Provider or may otherwise discredit or tarnish the reputation of the Service Provider or the Service including any material the sale, use or possession of which is illegal or prohibited at law. The Advertiser acknowledges that to a significant extent, the integrity and functionality of the Service depends on the reliability and accuracy of the Products as well as other information relating to the Advertiser. Accordingly, the Advertiser will within a reasonable period of time notify the Service Provider of all material information relating to Products of the Advertiser including (but without limitation):The nature of the Product offered by the Advertiser. The Advertiser further acknowledges that they hold all necessary qualifications and permissions (if any) that are required for the provision of the Products offered by the Advertiser. The Service Provider will not in any way be responsible for any:Information provided to it by the Advertiser for inclusion in the Product Information and the Advertiser hereby warrants to the Service Provider that it holds all copyright, licences, authorities or consents required for the use of any information, trademarks, logos, signs or insignia included with the Product Information and indemnifies the Service Provider with respect to any actions, claims, suits or proceedings or costs arising as a result of the use of same through the Service; or Work or services provided by the Advertiser for a customer sourced to the Advertiser under the Service. 8. Termination of the agreement Either party may terminate the agreement on the happening of any of the following:- A party going into liquidation or insolvency (such as receivership or voluntary administration) in which case the agreement shall terminate immediately:- or A party commits a breach of any of its obligations under this agreement and fails to rectify that breach (if it is capable of remedy) within five (5) days of being notified of the breach in writing, in which case the agreement shall terminate at the expiration of the 5 days notification of the breach. Where the breach was not capable of remedy, this agreement shall terminate immediately. In addition, this agreement may be terminated by the Service Provider at its sole discretion in circumstances where (acting reasonably) it becomes apparent to the Service Provider that statutory or legal breaches have occurred. At this point, all outstanding monies owed by the Advertiser to the Service Provider, shall be due and payable immediately.

Whats On Sale Pty Ltd 11 Cadby St, Brighton Vic 3185 Ph: +61 3 9593 2746 Fax: +61 3 9592 5345 ABN: 50 128 223 352

9. Accuracy of Information The Service Provider will take all reasonable steps to ensure that the details about the Advertiser and its business and services are accurate and in accordance with information provided by the Advertiser. The Service Provider takes no responsibility and is not to be held liable in any way for any loss or damage which the Advertiser may sustain as a consequence of incorrect information being provided. Upon receipt of notice from the Advertiser of incorrect information or unavailability of stock advertised relating to the advertisers business or products, the Service Provider hereby undertakes to forthwith rectify the inaccuracy. 10. Indemnity If any party makes any claim on Service Provider which relates in any way to any conduct of Advertiser or any part of Products and/or services provided by the Advertiser (whether approved products and/or services or not) or of performance and whether in breach of these terms or otherwise, the Advertiser fully indemnifies the Service Provider for any costs, expenses, damages or losses arising directly or indirectly as a result (except consequential loss or damage or loss of profits), including any actual legal fees incurred by Service Provider. The Service Provider will indemnify the Advertiser from and against all loss and damage arising out of or in connection with a breach of this agreement by Service Provider or any wilful, unlawful or negligent act or omission of the Service Provider. 11. Limitation of liability Subject to any relevant law, the maximum liability of the Service Provider to the Advertiser whether as a result of negligence or any conduct or omission of the Service Provider or otherwise, will be limited to the equivalent of the cost of the ADVERTISER FEE paid by applying Advertiser for the ADVERTISER PERIOD in which the occurrence giving rise to the claim occurred. The Advertiser acknowledges that the Service Provider is dependent on third party suppliers to provide certain services and therefore may not be able to provide such services in some circumstances, whether due to force majeure, legal restrictions, complications with suppliers or otherwise. To ensure compliance with applicable laws, rules and/or guidelines of suppliers and accuracy and relevance of the content of any service, the Service Provider reserves the right to update, amend or cancel any service, including (without limitation) any marketing and branding campaign(s). The Advertiser agrees to accept any reasonable alternative offered by the Service Provider. If the Service Provider does not or cannot offer any reasonable alternative, the applying Advertiser will accept a pro-rata refund of the ADVERTISER FEE paid for the effected period and Product as full and final settlement of any claim upon or entitlement against the Service Provider and will not permit any claim to be made through or in applying the Advertiser’s name by subrogation or otherwise. If disputed, the pro-rata refund is to be assessed by an independent Chartered Accountant whose decision will bind both parties. From time to time unforeseen circumstances may occur where the website is not operational due to factors within and beyond the Service Provider’s control. In the event of a time period of site outage, the Advertiser agrees that this is an “act of god”, and will not hold the Service Provider liable for lost time and/or any lost sales as a result. 9. Entire agreement & severance These Terms and Conditions and the Order Form represent the entire agreement and understanding between the Service Provider and the Advertiser and supersede all prior understandings, agreements or representations. It is acknowledged that the parties have not relied on any other written or oral representation, arrangement, understanding or agreement not expressly set out in this agreement. If a court or tribunal decides that any clause or part of a clause of this agreement is illegal or void the remainder of this agreement will be interpreted as if that clause or that part of the clause was not included in this agreement. Any part of these terms is capable of severance without affecting any other. 10. Governing Law The terms of this agreement shall be governed and construed in accordance with the laws from time to time of the state wherein the Service Provider executes the agreement and each party submits to the non-exclusive jurisdiction of the courts of that state. 11. Assignment The Service Provider may deal with or assign any or all of its interests or benefits under this agreement at any time without the consent of the Advertiser. The Advertiser may not do any of these actions without the prior written consent of the Service Provider. If a party does not exercise any rights arising as a result of any breach of these terms, this shall not be a waiver of any rights relating to any subsequent or other breach. Whole agreement: The Participating Retailer agrees that this application contains the whole agreement between the Participating Retailer and WHATS ON SALE PTY LTD. CREDIT CARDS AND LOYALTY PROGRAM WHATS ON SALE PTY LTD may in the future offer a credit card and rewards program. Advertisers will be entitled to participate in this by way of a WHATS ON SALE PTY LTD branded credit card. This card will be linked to the WHATS ON SALE PTY LTD rewards program designed to offer the card users credits to spend with WHATS ON SALE PTY LTD Advertisers exclusively. All card holders details will be hosted by WHATS ON SALE PTY LTD and marketing to the Advertisers branded cards will be through the WHATS ON SALE PTY LTD platform. Any additional charges will be set out on a separate agreement at the time of the introduction of the card and will be kept to a minimum. ACCESS TO Network for uploading of Sale advertisements Advertisers have access to the network through an advertiser login. Advertisers can upload any relevant sales they have by way of the templates provided in the site. All categories are input at WHATS ON SALE PTY LTD discretion and requests for new categories can be made to WHATS ON SALE PTY LTD. WHATS ON SALE PTY LTD will review each request to ensure it is in the interests of users as well as Advertisers to make the category available. Advertisers will receive a login and password that is to be kept securely by the Advertiser. Access is granted 24 hours 7 days a week. In the event of a lost or stolen password, the Advertiser agrees to notify immediately WHATS ON SALE PTY LTD for a reissue. All advertisements on the site are deemed to be placed by the Advertisers, and as such all published advertisements will be the responsibility of the Advertisers. All advertisements must meet the standards as set out in Other Terms and Conditions schedule above. The products and terms of this agreement are set out as below. WHATS ON SALE PTY LTD. will provide the website www.whatsonsale.com.au as well as other domains in its portfolio of products for Participating Retailers to use for advertising purposes. These websites are to be used by retailers for the provisioning of advertisements to communicate sales in advertising formats. WHATS ON SALE PTY LTD will provide various methods of advertising to promote this website including main stream media, online media as well as point of sale material for retailers to use. All retailers agree to use the point of sale material provided and display at the cash register, store windows and doors where it does not take away from the retailer’s own identity and/or messages. Logo &/or Intellectual Property For the period of the agreement and where deemed relevant and appropriate, WHATS ON SALE PTY LTD agrees to provide the Participating Retailer with the right to use its logo for, but not limited to, materials such as decal stickers, shop frontage, advertising enhancement. The Participating Retailer agrees to display prominently the WHATS ON SALE PTY LTD logo at the business premises by way of a decal sticker to be provided at the discretion of the WHATS ON SALE PTY LTD as well as any posters and Point of Sale merchandise provided. Any use of WHATS ON SALE PTY LTD logo &/or other intellectual property in public media must conform to WHATS ON SALE PTY LTD graphic layout standard(s) and have prior approval in writing from an authorised WHATS ON SALE PTY LTD officer. Additional Services Permission Based Marketing. WHATS ON SALE PTY LTD will compile data base lists and profiles of registered users that the Advertiser will have access. These lists will be only available to be used on the WHATS ON SALE PTY LTD site and will remain the property of WHATS ON SALE PTY LTD. No campaign lists are to be used by the retailer for direct contact unless permission is obtained from WHATS ON SALE PTY LTD and profile holder. WHATS ON SALE PTY LTD will provide the tools for Participating Retailers to request lists based on profiles and request contact to be made through WHATS ON SALE PTY LTD direct contact campaigns. DIRECT OFFERINGS. WHATS ON SALE PTY LTD will allow Participating Retailers to have access to its users data base mail group for the provision of segmented offers to the registered user based on demographic and profile questionnaire. VIP lists

Whats On Sale Pty Ltd 11 Cadby St, Brighton Vic 3185 Ph: +61 3 9593 2746 Fax: +61 3 9592 5345 ABN: 50 128 223 352

WHATS ON SALE PTY LTD will have the provision for Advertisers to create and host a VIP list that provides the Advertisers with access without WHATS ON SALE PTY LTD’s permission. The VIP list will remain the property of the Advertiser. WHATS ON SALE PTY LTD may charge hosting and software charges for the VIP List.

Whats On Sale Pty Ltd 11 Cadby St, Brighton Vic 3185 Ph: +61 3 9593 2746 Fax: +61 3 9592 5345 ABN: 50 128 223 352