TERMS & CONDITIONS

IDENTITY MARKETING | POSTCODEBOOK.COM.AU

STANDARD TERMS AND CONDITIONS

THE FOLLOWING TERMS AND CONDITIONS FORM THE BASIS FOR EVERY CONTRACT CONCLUDED WITH POSTCODEBOOK AND THE ACCEPTANCE BY A CUSTOMER OF ANY PRODUCT/ SERVICES SHALL COMPRISE ACCEPTANCE OF THESE TERMS.

1 definitions

In this document (Terms and Conditions):

(a) Australian Consumer Law means the Australian Consumer Law applying to the State and includes the Competition and Consumer Act 2010 (Cth));

(b) Collection Costs means all costs incurred in the recovery of monies owing by the Customer to Identity Marketing | Postcodebook or in otherwise enforcing Identity Marketing | Postcodebook’s rights against the Customer under the Contract (including legal and debt collection costs on a full indemnity basis) and includes default interest hereunder;

(c) Contract means the contract formed between Identity Marketing | Postcodebook and the Customer by an Order accepted by an Order Acknowledgment;

(d) Customer means the person placing the Order with Identity Marketing | Postcodebook;

(e) Due Date for Payment means the date when a payment to Identity Marketing | Postcodebook is due which, if not otherwise specified, is immediately on demand;

(f) Intellectual Property means all industrial and intellectual property rights and confidential information owned by Identity Marketing | Postcodebook from time to time including but without limiting the generality of the foregoing, rights to, or arising from, patents, designs, trade marks, copyrights, designs, rights to or arising from circuit or semi conductor designs, computer programmes, trade secrets, confidential information, valuable technology, inventions and the right to apply for the grant of any form of industrial or intellectual property rights;

(g) Order is defined in Clause 3(a);

(h) Order Acknowledgment is defined in Clause 3(b);

(i) Party means Identity Marketing | Postcodebook or the Customer as the context requires;

(j) Product means any Product, products, services or materials (including consumables and ancillary Product or parts required for Postcodebook’s services) and to be supplied by Identity Marketing | Postcodebook;

(k) Schedule means the schedule to these Terms and Conditions;

(l) Scope of Work means the scope of work (if any) as advised by Identity Marketing | Postcodebook to the Customer;

(m) Special Conditions means those specified in the Schedule;

(n) State means state specified in the Schedule and the Commonwealth of Australia as the context requires;

(o) Postcodebook means Identity Marketing Pty Ltd ABN 55 160 417 256 trading as Postcode Book;

(p) Territory means the territory and territories in which the Customer carries on business;

(q) Transaction Tax includes any Product and services tax, value added tax and sales tax as well as any identified or new transaction taxes that come into existence after the effective date of these Terms and Conditions,

and, unless otherwise stated, an expression used or defined in the Corporations Act 2001(Cth) has the same meaning in the Terms and Conditions.

2 Product

Identity Marketing | Postcodebook agrees to provide, and the Customer agrees to purchase, the Product on the terms of these Terms and Conditions.

3 Orders, Order Acknowledgments and Contract

(a) An order or an offer to purchase Product (each, an Order) may be made by the Customer in writing or verbally.

(b) An Order is accepted when the Customer receives from Postcodebook an acknowledgement of that Order (Order Acknowledgment) in writing or if writing is not received, acknowledgment verbally or delivery, whichever first occurs.

(c) When an Order is accepted by an Order Acknowledgment, the Contract will be wholly documented by (in descending order of precedence) any specific term(s) agreed in writing (including the Scope of Work), the Order Acknowledgment and these Terms and Conditions.

(d) Previous dealings between Postcodebook and the Customer shall not have any effect on the Contract.

(e) Trade custom and/or trade usage is superseded by the Contract and shall not be applicable in the interpretation of the Contract.

(f) A Contract constitutes the entire agreement between Identity Marketing | Postcodebook and the Customer with respect to the Product supplied under the Contract, all prior negotiations, proposals and correspondence are superseded by that Contract and these Terms and Conditions will in all circumstances prevail over the Customer’s terms and conditions of purchase (if any).

4 Prices

(a) Unless otherwise agreed in writing, the price charged for the Product shall be:

(i) exclusive of any Transaction Tax; and

(ii) as per the price determined by Identity Marketing | Postcodebook at the date of delivery. Any price indications or price lists issued or released by Identity Marketing | Postcodebook from time to time are subject to alteration in accordance with the price determined by Identity Marketing | Postcodebook as at that date of delivery.

(b) Where a Transaction Tax applies to any supply made under these Terms and Conditions, Identity Marketing | Postcodebook may recover from the Customer an additional amount on account of that Transaction Tax.

(c) Identity Marketing | Postcodebook may recover Collection Costs from the Customer without notice or provision of any evidence thereof to the Customer and such amounts shall without notice form part of, and be due and payable at the same time and in the same manner as, the price charged for the Product.

(d) Notwithstanding any provision in the Contract, Identity Marketing | Postcodebook may increase the price of Product after an Order Acknowledgment and prior to delivery of the Product if the price increase results from an increase in the price of any inputs which comprise part of the Product.

(e) The Parties acknowledge and agree that any anticipated prices, fees or amounts stated by Identity Marketing | Postcodebook to the Customer for the Product during the term of the Contract are estimates only and not quotes (unless explicitly stated otherwise by Identity Marketing | Postcodebook). Where the Product relate to the provision of services, Identity Marketing | Postcodebook’s prices are function of time spent to complete the Order. These prices may be affected by factors beyond Identity Marketing | Postcodebook’s control and therefore cannot be ascertained or taken into account at the commencement of the Contract.

5 Payment

(a) Payment for the Product must be made in full (without any set off except as made by Identity Marketing | Postcodebook) and received by Postcodebook by the Due Date for Payment unless otherwise identified by Identity Marketing | Postcodebook on any statement of account or invoice.

(b) Payment is only received by Identity Marketing | Postcodebook when it receives cash or when the proceeds of other methods of payment are credited and cleared to Identity Marketing | Postcodebook’s bank account.

(c) If the Customer has provided its credit card details to Identity Marketing | Postcodebook, the Customer unconditionally authorises Postcodebook to debit the Customer’s credit card without notice for the amount of payment of the Product.

6 Default

(a) The Customer will be in default if:

(i) the Customer fails to perform in whole or in part any of its obligations under, or is in breach in whole or in part of any of, the Terms and Conditions;

(ii) payment for the Product has not been received by Identity Marketing | Postcodebook by the Due Date for Payment;

(iii) the Customer being an individual commits an act of bankruptcy, dies or becomes permanently incapacitated or becomes an insolvent under administration;

(iv) the Customer being a body corporate becomes insolvent, an externally-administered body corporate or has an application for winding up filed against it;

(v) Identity Marketing | Postcodebook forms the opinion that the Customer’s credit worthiness or credit standing alters from that indicated in its Application.

(b) If the Customer defaults, in addition to any other rights at law Identity Marketing | Postcodebook may have, Identity Marketing | Postcodebook may take one or more of the following actions:

(i) treat the whole of the Contract and any other contract with the Customer as repudiated and sue for breach of contract; and/or

(ii) refuse to supply any Product to the Customer; and/or

(iii) claim the return of any Product in the Customer’s possession where title has not passed to the Customer. (Identity Marketing | Postcodebook, for that purpose, may without notice enter any premises occupied by the Customer where those Product are held and remove those Product); and/or

(iv) without notice to the Customer suspend or withdraw any credit facility Identity Marketing | Postcodebook has provided to the Customer entirely, or exclude one or more Contracts from the benefit of the credit facility, or vary the Period of Credit for one or more Contracts, or vary the Credit Limit; and/or

(v) without notice to the Customer, claim the Deposit (if any) and for this purpose the Customer hereby releases and forfeits such Deposit to Identity Marketing | Postcodebook absolutely; and/or

(vi) without notice to the Customer, require the Customer to pay default interest to Identity Marketing | Postcodebook pursuant to Clause 13; and/or

(vii) without notice to the Customer require the immediate payment by the Customer of all monies owing by the Customer to Postcodebook under any Contract or on any account.

(c) Termination of a Contract shall not affect rights and remedies accrued or accruing to a Party prior to the termination.

7 Intellectual Property – Customer

(a) The Customer warrants to Identity Marketing | Postcodebook that all documents (including sales data for use in the Product) (the Documents) provided by the Customer are accurate and that Identity Marketing | Postcodebook is entitled to use all such documents for the purposes of the Contract and that such use does not infringe any third party’s intellectual property rights.

(b) The Customer irrevocably grants to Identity Marketing | Postcodebook a licence to use all trade marks, logos, images, photographs, descriptive text and other text (the Material) in order to provide the Product.

(c) The Customer warrants and represents to Identity Marketing | Postcodebook that the Customer has the ability to grant the licence in Clause 7(b).

(d) The Customer indemnifies Identity Marketing | Postcodebook against all claims and all losses and damages incurred by Identity Marketing | Postcodebook as a result of: (1) the use of the Documents or the Material by Identity Marketing | Postcode book for the purposes of or in the course of the supply of the Product breaching a third party’s intellectual property rights and (2) a breach of the warranty in Clause 7(c).

(e) If the Customer receives any confidential information from Identity Marketing | Postcodebook the Customer may not use or disclose such information unless it receives the prior written consent of Identity Marketing | Postcodebook, such information enters the public domain (other than as a result of a breach of this paragraph) or the use or disclosure is required by law.

8 Intellectual Property – ownership

(a) The Customer acknowledges that all of the Intellectual Property used in or in relation to the Product are the property of Identity Marketing | Postcodebook and the Customer will take all such steps as are practicable to ensure that the Intellectual Property vests in and remains vested in Identity Marketing | Postcodebook in the jurisdiction of the Customer.

(b) The Customer shall not:

(i) take register or assert any ownership or proprietary right in any Intellectual Property (or any concept similar thereto); or

(ii) without the prior written consent of Identity Marketing | Postcodebook permit any trademark, symbol, brand or other intellectual property of the Customer to be combined or associated with any Intellectual Property,

either during the life of this Contract or upon its termination.

(c) Where it is or becomes advisable for an application to be made for the registration of any trade mark in the jurisdiction of the Customer, the Customer will render all reasonable assistance to Identity Marketing | Postcodebook to facilitate registration. Should it be desirable that any such application should be made in the name of the Customer, application shall be made by the Customer at the expense of the Customer and any registration so obtained shall be promptly assigned at no cost to Postcodebook together with any goodwill associated with the Product in the Territory gained by the Customer.

(d) Identity Marketing | Postcodebook grants a licence to the Customer in respect of Identity Marketing | Postcodebook’s Intellectual Property in the Product for the limited purpose of printing and distributing copies of the Product. That licence does not extend to modifying the Product in any way.

(e) In any catalogue, price list or similar publication issued by the Customer in which any reference is made to the Product and to the Intellectual Property relating thereto, there shall be included in legible type a statement informing the reader of the ownership of Identity Marketing | Postcodebook in the Intellectual Property, the form of which shall be approved by Identity Marketing | Postcodebook.

(f) If the Customer becomes aware of any infringement or potential infringement of the rights of Identity Marketing | Postcodebook in Intellectual Property in the Territory the Customer will promptly inform Identity Marketing | Postcodebook and render any assistance Identity Marketing | Postcodebook reasonably requests to challenge such actual or potential infringement.

9 Force Majeure

Identity Marketing | Postcodebook is not liable for failure to perform the Contract to the extent and for so long as its performance is prevented or delayed because of:

(a) circumstances outside Identity Marketing | Postcodebook’s control;

(b) failure of Identity Marketing | Postcodebook’s machinery; or

(c) failure of a supplier to Identity Marketing | Postcodebook.

10 Representations and Fitness for Purpose

(a) Except as expressly provided to the contrary in the Contract, all representations, warranties, terms and conditions in relation to the Product (whether implied or otherwise) are hereby excluded to the maximum extent permitted by law.

(b) The Customer agrees that if it is aware (or should be aware) that the Product, the subject of an Order, are for a particular purpose (including, but not limited to, use as a component part of another product) or are required to possess special or uniform characteristics, the Customer will clearly specify that purpose or those characteristics in any such Order.

11 Limitation of Liability

(a) Subject to Clause 10(a), Identity Marketing | Postcodebook’s liability to the Customer (and any party claiming through the Customer against Postcodebook) for any claim for loss or damages (including legal expenses) made in connection with the Contract for contract, tort (including negligence), under statute, in equity or otherwise shall be as follows:

(i) if the Customer is a consumer (as defined in the Australian Consumer Law) and:

(A) Identity Marketing | Postcodebook is in breach of a guarantee in the Australian Consumer Law (other than a guarantee in section 51, 52 or 53 of Schedule 2 of the Australian Consumer Law) in connection with the supply of goods (other than goods of a kind ordinarily acquired for personal, domestic or household use or consumption), Identity Marketing | Postcodebook may (in its absolute discretion):

(1) replace those goods;

(2) supply equivalent goods;

(3) repair those goods;

(4) pay the cost of replacing those goods;

(5) pay the cost of acquiring equivalent goods; or

(6) pay the cost of having those goods repaired,

and Identity Marketing | Postcodebook’s liability is limited to that extent;

(B) Identity Marketing | Postcodebook is in breach of a the guarantee in the Australian Consumer Law in connection with the supply of services (other than services of a kind ordinarily acquired for personal, domestic or household use or consumption) Identity Marketing | Postcodebook may (in its absolute discretion):

(1) supply those services again; or

(2) pay the cost of having those services supplied again,

and Identity Marketing | Postcodebook’s liability is limited to that extent.

(ii) if Identity Marketing | Postcodebook is in breach of a Contract (other than a breach referred to in Clause 11(a)(i)), Postcodebook’s liability is strictly limited to:

(A) for goods, products or materials – the cost of replacement of the defective goods, products or material as soon as reasonably practicable, or the supply of equivalent goods, products or material, or the repair of the defective Product or the repayment (or allowance) of the invoice price of the defective Product at the option of Identity Marketing | Postcodebook;

(B) for services – to the provision of the services again or payment of the cost of having the relevant services provided again at the option of Identity Marketing | Postcodebook;

(iii) Identity Marketing | Postcodebook’s liability for breach of a Contract does not extend beyond the defective goods to any other goods that are part of an Order or otherwise;

(iv) where loss or damage is not covered by Clauses 11(a)(i) or 11(a)(ii), Identity Marketing | Postcodebook is not liable to the Customer under statute, in equity or in tort (including negligence or otherwise) for any loss or damage to person or property arising from or caused in any way by the Product (except to the extent that Identity Marketing | Postcodebook’s conduct is deliberate, is illegal, is fraudulent or constitutes a criminal offence);

(v) subject to Clauses 11(a)(i) and 11(a)(ii), Identity Marketing | Postcodebook shall not be liable for any indirect, special or consequential loss resulting from or caused in any way by Identity Marketing | Postcodebook, its officers, employees or agents arising out of or in connection with the supply of the Product;

(vi) indirect, special or consequential loss or damage includes:

(A) any loss of income, profit or business;

(B) any loss of goodwill or reputation;

(C) any loss of value of intellectual property.

(b) Any claim under Clause 11(a)(ii) by the Customer in respect of defective goods and/or damaged goods must be made in writing within 14 days of the delivery of the Product.

12 indemnity

The Customer indemnifies Identity Marketing | Postcodebook against any action, claim, proceeding, demand, damages, loss, liability, cost or expense (including Collection Costs and other costs on a solicitor/ client basis) which Identity Marketing | Postcodebook may suffer or incur arising out of or connected with the Terms and Conditions, any Contract or the Product.

13 default interest

Any amounts due to Identity Marketing | Postcodebook and unpaid or any other payments made by Identity Marketing | Postcodebook in default of payment by the Customer under a Contract shall be regarded as cash advances made on the due date or the date of payment by Identity Marketing | Postcodebook respectively, repayable on demand and shall, until repayment to Identity Marketing | Postcodebook, bear interest calculated on the daily balances of such advances at a rate equal to 12% per annum calculated daily and paid on written demand or as instructed by Identity Marketing | Postcodebook.

14 NO PARTNERSHIP, AGENCY OR TRUSTEESHIP
Nothing in this Agreement or in the execution or performance of its terms shall constitute any Party the partner or agent of any other Party and no trusteeship shall be implied as between any of the Parties.

15 Waiver

Identity Marketing | Postcodebook waives a right under a Contract only by written notice that it waives that right. A waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given.

16 Severance

If a provision of a Contract would, but for this Clause, be unenforceable:

(a) the provision must be read down to the extent necessary to avoid that result;

(b) if the provision cannot be read down to that extent, it must be severed without altering the validity and enforceability of the remainder of the Contract.

17 Variation

(a) Identity Marketing | Postcodebook may vary the Terms and Conditions without notice to the Customer.

(b) If Identity Marketing | Postcodebook varies the Terms and Conditions, Identity Marketing | Postcodebook will publish the same on its website at http://www.idmarketingagency.com.au and the Customer agrees to have received notice of the same on and from the date of such publication. Unless the Customer notifies Identity Marketing | Postcodebook that it objects, Identity Marketing | Postcodebook will treat its continued engagement for the Contract as the Customer’s acceptance of the new Terms and Conditions.

18 survival

Clauses 1, 7, 8, 10, 11, 12, 13, 18, 22, 23 and 24 survive the termination or expiry of the Contract.

19 Set Off

Identity Marketing | Postcodebook may at any time apply and set off any money that the Customer may owe Identity Marketing | Postcodebook towards the satisfaction of any sum of money that Identity Marketing | Postcodebook owes the Customer. The Customer may not set off any amounts.

20 Costs

The Customer must pay to Identity Marketing | Postcodebook, and indemnify Identity Marketing | Postcodebook for, all costs and expenses incurred by Identity Marketing | Postcodebook in connection with the Contract including legal expenses (on a solicitor-client basis), stamp duty and Collection Costs incurred in the recovery of monies owing by the Customer to Postcodebook or in otherwise enforcing Identity Marketing | Postcodebook’s rights against the Customer under the Contract.

21 assignment

(a) Identity Marketing | Postcodebook may assign to any person this document and any Contract.

(b) The Customer shall not assign, transfer, encumber or declare trusts in respect of this document or any Contract.

22 Applicable Law

This document is governed by the law of the State and the courts of that State have non-exclusive jurisdiction in connection with this document.

23 privacy statement and consent

Identity Marketing | Postcodebook collects the Customer’s information in order to determine whether to supply Product to the Customer and in, ordering Product from Identity Marketing | Postcodebook, the Customer agrees that Identity Marketing | Postcodebook may:

(a) use the personal information about the Customer which the Customer or others have provided at any time to Identity Marketing | Postcodebook in order to manage Identity Marketing | Postcodebook’s relationship with the Customer and, where required, to comply with legislative and regulatory requirements; and

(b) disclose that information to Identity Marketing | Postcodebook’s related bodies corporate, regulatory and law enforcement bodies, debt collection agencies, any organisation proposing to fund the acquisition of, or acquire, any interest in any obligation the Customer may owe Identity Marketing | Postcodebook, and to any person to the extent necessary, in Identity Marketing | Postcodebook’s view, to carry out any instruction the Customer give to Identity Marketing | Postcodebook or to enforce any rights of Identity Marketing | Postcodebook against the Customer.

The Customer acknowledges that, subject to the provisions of the Privacy Act 1988 (Cth), the Customer may access the information whichIdentity Marketing | Postcodebook holds about the Customer at any time by writing to Identity Marketing | Postcodebook.

24 Special Conditions

The Parties agree that the Special Conditions (if any) specified in the Schedule comprise part of the Terms and Conditions and, to the extent of any inconsistency with the foregoing provisions, shall prevail.

25 Unfair Contract Terms

To the extent that these Terms and Conditions are a consumer contract (within the meaning of the Australian Consumer Law) and a standard form contract (within the meaning of the Australian Consumer Law), any term of these Terms and Conditions which would be void because the term is unfair:

(a) must be read down to the extent necessary to avoid that result; and

(b) if the provision cannot be read down to that extent, it must be severed without altering the validity and enforceability of the remainder of the Contract.