Calani Eden Designs - LocalGuide Phone Book Companion

SUMMARY OF KEY TERMS AND CONDITIONS

· To secure your position on the LocalGuide Phone Book Companion for one or more sectors in your region, a deposit of $20 is required per sector, along with a signed application form, which may be submitted:

o in person to one of our friendly sales team

o faxed to 02 4017 0026

o scanned and emailed to admin@calani-eden.com.au

· All deposits are non-refundable, with the following exceptions:

o In the event that the LocalGuide cannot, or will not, be distributed to the sector(s) for which the deposit was paid, the full deposit will be refunded

o In the event that a deposit of more than $20 per sector is paid, all but $20 per sector will be refunded if the Customer decides not to appear on the LocalGuide for which the deposit was paid, so long as the Customer requests such a refund more than 30 days prior to the intended distribution date for the LocalGuide in question.

· Full payment for booked positions on the LocalGuide must be received at least 30 days prior to the intended distribution date for the LocalGuide in question. Fylesoft reserves the right to remove from the LocalGuide any listing that has not been paid in full by this time. Fylesoft furthermore reserves the right to offer the non-paying Customer’s position to another business in lieu of any Customer who has not paid in full.

FULL TERMS AND CONDITIONS

1. DEFINITIONS
1.1 “Fylesoft” means Fylesoft Pty Ltd A.B.N. 38 129 100 901 of 159 Pikes Rd, Glass House Mountains, Queensland, Australia.
1.2 “Calani Eden” means the web, graphic and print design services branch of Fylesoft.
1.3 The “Customer” means the party placing an order for the purchase of goods or services from Fylesoft.
1.4 An “Order” refers to an order for goods or services. An application form signed by the Customer constitutes an Order.
1.5 The “LocalGuide” refers to the LocalGuide Phone Book Companion stickers that are to be distributed by Fylesoft within Australia.

2. ACTING IN RELIANCE
2.1 The Customer warrants that the information provided by the Customer is true and correct. The Customer acknowledges that Fylesoft will act in reliance on this information.

2A. APPLICATION OF TERMS AND CONDITIONS
2A.1 These Terms and Conditions (“T&Cs”) apply to each and every dealing between the Fylesoft and the Customer, and the Customer agrees to adhere to these Terms and Conditions and agrees that the T&Cs will prevail over any other verbal, implied or written conditions, whether verbal, implied or written to the extent permitted by law.
2A.2 These T&Cs may be changed by Fylesoft from time to time and the then current version of the T&Cs shall be binding upon the Customer.

3. ORDERS
3.1.1 Orders are subject to acceptance in accordance with these T&Cs. Orders are subject to acceptance by Fylesoft in whole or in part at: Fylesoft, 159 Pikes Rd, Glass House Mountains, QLD 4518 Australia
3.1.2 CUSTOMER’S RESPONSIBILITY – It is the Customer’s responsibility to ensure that the information provided to Fylesoft on the application form when placing an Order is accurate to the full extent of the Customer’s knowledge. The Customer is responsible for ensuring that the wording and spelling of the desired comment for the Customer’s listing is accurate to the full extent of the Customer’s knowledge. It is the Customer’s responsibility to ensure that a $20 deposit per desired sector is paid at the time of placing an Order, and that payment is made in full at least 30 days prior to the intended distribution of the relevant LocalGuide sticker(s). It is the Customer’s responsibility to know, by asking advice of Fylesoft or otherwise, the date that any relevant LocalGuide stickers are to be distributed. It is the Customer’s responsibility to ensure that any application form submitted by fax or email is received in legible order by Fylesoft.
3.2 Fylesoft will not be responsible for any mistakes that may be attributable to insufficient or lack of written details on the Customer’s application form.
3.3 Fylesoft reserves the right to impose minimum order requirements at anytime which may be changed by Fylesoft from time to time.
3.4 The Customer will, at the time of placing an order, pay a minimum $20 deposit per desired listing sector.
3.5 If the Customer purports to cancel any order, such conduct may be treated as a repudiation of the contract. The Customer shall pay Fylesoft all loss, damage, costs and expenses incurred or suffered by Fylesoft as a result of such conduct (Minimum $20 cancellation fee regardless of circumstances will be incurred by Customer).
3.6 Orders shall not be varied unless the variation is in writing and is signed by Fylesoft.
3.7 Fylesoft or the manufacturer of the goods (“the Manufacturer”) may, without notice, change the range of goods and services or redesign or modify existing goods or services resulting in some goods becoming obsolete or unavailable and Fylesoft or the Manufacturer shall not be liable for any loss or damage suffered by the Customer or the Customer’s customers as a result. The Customer undertakes to advise any person or company to whom it sells any goods of this condition.

4. ACCEPTANCE OF ORDERS
4.1 An Order will be deemed to have been accepted by Fylesoft upon transmission of a written notice of acceptance from Fylesoft to the Customer, by means of email, fax or otherwise.
4.2 No orders may be varied or cancelled by the Customer after acceptance unless agreed to by Fylesoft, on terms and conditions set by Fylesoft.

5. PAYMENT
5.1 The goods or services must be paid for in full no later than 30 days prior to the intended distribution date of the relevant LocalGuide stickers. Fylesoft does not grant credit to its Customers.
5.2 Fylesoft reserves the right to remove from the LocalGuide any listing that has not been paid in full by this time. Fylesoft furthermore reserves the right to offer the non-paying Customer’s position to another business in lieu of any Customer who has not paid in full.
5.3 The Customer is required to pay a non-refundable deposit of $20 per desired listing sector at the time of application.
5.4 In the event that the Customer decides not to proceed with a previously booked listing, the Customer may be entitled to a refund of all moneys paid with the exception of $20 per booked listing sector, at the discretion of Fylesoft, so long as the Customer’s request for refund is made in writing to Fylesoft no later than 30 days prior to the intended distribution date of the relevant LocalGuide sticker(s).
5.5 In the event that Fylesoft decides not to proceed with the printing and distribution of LocalGuide stickers in one or more sectors, Fylesoft will issue a full refund of all moneys paid for listings in the affected sectors to the relevant Customers. Customers who have paid for both affected sectors and non-affected sectors will be refunded for moneys paid toward listings in affected sectors only.

6. PRICES AND RESALE PRICES
6.1 Fylesoft’s price lists or quotations do not constitute an offer.
6.2 Quotations are given and orders are accepted only on the basis that the prices charged will be those applicable at the date of the Order being accepted. All prices are subject to change without notice, except where such prices have been accepted in a written notice of Order acceptance to the Customer by Fylesoft.
6.3 Prices listed on flyers and other related materials may be inclusive or exclusive of GST, depending upon the evident context of the listed prices. Fylesoft takes no responsibility for, nor will Fylesoft adjust these T&Cs for, any Client who mistakes GST inclusive prices for GST exclusive prices, or who mistakes GST exclusive prices for GST inclusive prices.
6.4 All prices are subject to change without notice.
6.5 Recommended and suggested resale or retail prices wherever shown are recommended resale or retail prices only and Fylesoft has no obligation to comply with any recommendation or suggestion.
6.6 The Customer shall in addition to any monies otherwise payable hereunder pay any applicable goods and services taxes (or its equivalent) in respect of any goods and/or services purchased.

7. MODIFICATIONS
7.1 Fylesoft is not obliged to attend to any modifications or variations to the goods unless agreed in writing by Fylesoft.
7.2 If any modifications to the goods are required to comply with the regulations or laws of the State or Country in which the Customer is located and/or in which the goods are to be resold or used by the Customer, each order must include clear instructions detailing the required modifications.
7.3 The Customer must not modify the goods in any way, other than with the written consent of Fylesoft and in strict compliance with instructions supplied by Fylesoft.
7.4 Fylesoft shall not be liable for any loss or damage suffered by the Customer or any third party in relation to any business dealings related to the LocalGuide or otherwise.
7.4.1 If Fylesoft agrees to undertake any modifications or variations to the goods in accordance with a request by the Customer and if the instructions or information supplied by the Customer are incorrect, incomplete or in any way ambiguous, Fylesoft shall not be liable for any loss or damage including consequential loss or damage suffered by the Customer or any third party of or incidental to the variations or modifications not complying with the Customer’s requirements or not complying with the regulations, standards or laws to which the goods and/or the Customer are subject.

8. PRINTING AND DISTRIBUTION
8.1 All representations by Fylesoft as to the date and/or time for distribution are made in good faith, but are not guaranteed. All representations are made in good faith, in the light of conditions and circumstances that are known to Fylesoft at the time.
8.2 Fylesoft and its directors, officers, employees and associated companies shall not be liable for late distribution or non-distribution and under no circumstances shall Fylesoft be liable for any loss, or damage, including consequential loss or damage, or delay occasioned suffered by to the Customer or its Customers arising from late or non-distribution of goods or service, whether such loss or damage is due to negligence or wilful act, misconduct or default of Fylesoft or any third party and whether or not if the same occurs in the course of the performance by Fylesoft of any contract or in circumstances which are foreseeable by Fylesoft or in circumstances which would constitute a fundamental breach of any contract or a breach of any fundamental term hereof.
8.3 Fylesoft will endeavour to ensure that all goods are distributed on days when such goods are unlikely to be rain-affected, or in the least are unlikely to be any more than minimally rain-affected.
8.4 If Fylesoft is unable to distribute part of an Order for any reason whatsoever, Fylesoft may distribute by instalments. Each instalment shall be regarded as a separate contract and any defect in, or failure to deliver an instalment shall not give the Customer the right to cancel the balance of deliveries due under the order.
8.5 Quoted numbers of households to be distributed to are, to Fylesoft’s best knowledge, accurate, however Fylesoft will not be held responsible in the event that more or less than the quoted number of households are distributed to in any one or more sectors.

9. DAMAGE OR LOSS DURING DISTRIBUTION
9.1 Fylesoft shall not be liable for any loss or damage of LocalGuide stickers suffered during distribution or otherwise.

10. TITLE AND RISK
10.1 Fylesoft reserves all legal title and ownership in relation to the LocalGuide stickers until such time as they are distributed.
10.2 LocalGuide stickers may not be sold or resold by any party other than Fylesoft.
10.3 Notwithstanding the provisions above, Fylesoft shall be entitled to maintain an action against any party who endeavours to sell or resell any one or more LocalGuide stickers, or any replications of such.
10.4 The Customer shall have no claim against Fylesoft for any damages or other monies whatsoever if Fylesoft repossesses or attempts to repossess any one or more LocalGuide stickers. The rights of Fylesoft hereunder are in addition to any other claim or rights Fylesoft has under any other term hereof or under any other contract between the parties.

11. DEFAULT
11.1 In the event the Customer is in default of any term or condition and such default has continued for a period of seven days, Fylesoft, at its election and/or at any time thereafter, shall be at liberty to cancel any or all orders yet to be completed and to recover from the Customer any or all losses, damages, costs, interest, fees, charges (including handling charges payable to Fylesoft and its suppliers) and all expenses incurred and suffered by Fylesoft as a result of the Customer’s default and the subsequent cancellation.
11.2 The Customer shall have no recourse whatsoever against Fylesoft for any loss or damaged suffered as a result of any such cancellation.

12. DEFECTS
12.1 Any claim by the Customer relating to any defect in manufacture of goods, or any shortage or other nonconformity to an order for goods or services shall be made in writing to Fylesoft at its address:
Fylesoft, 159 Pikes Rd, Glass House Mountains, QLD 4518 Australia
within 3 days of the Customer becoming aware of such.
12.2 Unless such written claim is received by Fylesoft within the specified period, the Customer shall be deemed to have accepted the condition of the goods and/or services and conformity of the goods and services to the order.
12.3 Any claim in relation to a defect in goods must be accompanied by both:
12.3.1 a specimen of the article showing the alleged defect; and
12.3.2 a sample taken from the consignment in its original packaging showing the references used for identification purposes.
12.4 Notwithstanding that a claim has been made by the Customer, the Customer shall pay for the goods and/or services pending determination of the claim by Fylesoft.

13. CANCELLATIONS
13.1 Fylesoft reserves the right to cancel any Order at any time. In the event of such a cancellation by Fylesoft, the relevant customer will be provided with a written explanation of the reason for Order cancellation, as well as a full refund of moneys paid toward the order, unless the Order cancellation is due in any part to the non-payment of owed moneys by the Customer.
13.2 In the event that the Customer intends to cancel an Order, the customer must inform Fylesoft in writing of this intention. In this event, the Customer may at Fylesoft’s discretion be refunded all moneys paid with the exception of $20 per affected sector. In the event, however, that such a cancellation is requested within 30 days of the intended distribution date, the Customer will not be refunded any moneys paid toward the Order.

14. LIMITATION OF LIABILITY
14.1 Subject to any express written warranty otherwise given by Fylesoft, and subject to any statutory warranties express or implied which by law cannot be excluded, all warranties conditions and representations, whether express or implied are expressly excluded. Where a warranty or conditions is implied by law, Fylesoft’s liability is to the extent that same can be so limited, is limited to one of the following at Fylesoft’s discretion in the case of goods and/or services:
14.1.1 Replacement of goods or supply of equivalent goods or supply of the service again;
14.1.2 Repair of goods;
14.1.3 Payment of costs of replacing the goods or acquiring equivalent goods; or
14.1.4 Payment of the cost of having the goods repaired or supplying the services again.
14.2 Fylesoft and its directors, officers and, employees and associated companies, shall have no liability (including liability in negligence) to any person for any loss or damage, consequential or otherwise, howsoever suffered or incurred by any such person of and incidental to the goods sold by Fylesoft to the Customer, and without limiting the generality thereof, any loss or damage consequential or otherwise suffered or incurred by any such person caused by or caused directly or indirectly from any late or non-distribution, any failure, defect or deficiency of whatsoever nature or kind incidental to the goods or services, or associated with delayed and non-distribution and whether or not the same occurs in the course of the performance by Fylesoft of any contract or in circumstances which are foreseeable by Fylesoft or in circumstances which would constitute a fundamental breach of any contract or a breach of any fundamental term hereof.
14.3 The Customer and its directors hereby indemnifies and keeps indemnified Fylesoft and its directors, officers, and employees and associated companies (to the extent permissible by law) in respect of any loss or damage consequential or otherwise howsoever suffered or incurred by any person or incidental to any occurrence referred to in the previous paragraph.
14.4 Fylesoft shall not be liable for failure to observe or perform in accordance with these T&Cs for any reason or cause which was not within its control, including without limitation, war, insurrection, riot, civil commotion, strikes, lock outs, labour or industrial disputes, acts of God, acts of Governments, flood, storm, tempest, power shortages or power failure, inability to obtain sufficient labour, raw materials, fuel or utilities.

15. CUSTOMER’S DETAILS
15.1 The Customer shall ensure that details provided to Fylesoft are accurate and legible.
15.2 In the event that the Customer wishes to inform Fylesoft of a change of address details, contact details, name details or other details then the Customer must do so in a written format, and provide such to Fylesoft via fax on 02 4017 0026, email via admin@calani-eden.com.au or post at 159 Pikes Rd, Glass House Mountains, QLD 4518 Australia, no later than 30 days prior to the intended distribution date of the relevant LocalGuide stickers.
15.3 It is the Customer’s responsibility to ensure that Fylesoft has up-to-date information on the Customer. Fylesoft will not be held responsible for the printing and/or distribution of inaccurate information.

16. NOTICES
16.1 Any notice, demand or other communication given or made under these T&Cs must be in writing:
16.1.1 Made by an authorised officer of the sender and delivered to the intended recipient by prepaid post, hand or fax to the address or fax number last notified by the intended recipient to the sender, signed by an authorised officer,
16.1.2 If given or made by the Customer, signed by the Customer or an authorised officer, and
16.1.3 Delivered to the intended recipient by prepaid post, hand or fax to the address or fax number last notified by the intended recipient to the sender,
16.2 Such notices will be taken to have been given or made:
16.2.1 In the case of delivery by post, three days after the date of posting;
16.2.2 In the case of delivery by hand, when delivered, and
16.2.3 In the case of delivery by fax, on receipt by the sender of a transmission control report from the despatching machine showing the relevant number of pages and the correct destination fax machine number or name of recipient and indicating that the transmission has been made without error.
16.3 Any notice, demand or other communication may also be given or made in accordance with any method, procedure or requirement permitted under any applicable law.

MISCELLANEOUS
17.1 These T&Cs shall be governed by and interpreted in accordance with the laws of Queensland and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of that jurisdiction and any appeal courts from them.
17.2 The Customer acknowledges and agrees that Fylesoft may assign all of its rights, benefits and interests under this Agreement to any other entity as nominated by Fylesoft. Any such assignment by Fylesoft shall not prejudice or affect the rights, claims or interests of the Customer or Fylesoft which have accrued up to the date of assignment.
17.3 The Customer shall notify Fylesoft in writing in the event(s) that:
17.3.1 any one or more of these T&Cs, or any part thereof, is ambiguous or difficult to understand;
17.3.2 the Customer has reason to believe that a legal claim may arise against Fylesoft for any reason
17.4 The Customer shall not assign, transfer or novate its rights and obligations under this Agreement, without the prior written consent of Fylesoft, in Fylesoft’s absolute discretion.
17.5 If any provision of these T&Cs is, for any reason, wholly or partly held to be illegal, void, invalid or unenforceable by a court of law or other competent authority, that provision shall be severed in the relevant jurisdiction and all other provisions of the T&Cs shall continue in full force and effect.
17.6 No failure to exercise, nor any delay in exercising, any right, power or remedy by Fylesoft operates as a waiver. A single or partial exercise by Fylesoft of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on Fylesoft unless in writing and signed by Fylesoft. Fylesoft’ rights, powers and remedies under these T&Cs are in addition to, and do not exclude or limit, any right, power or remedy provided by law or equity or by any other agreement or instrument.
17.7 The Customer consents to the use of any Personal Information of its employees, officers or agents, for the purposes set out in Fylesoft’ Privacy Policy including but not limited to the Customer’s or its director’s credit history.
17.8 Fylesoft shall not under any circumstances be responsible to the Customer for any failure to comply with its obligations under this Agreement pursuant to any order that is accepted, which failure is caused by an act of God, acts of any Government, war or other hostility, national or international disaster, the elements, fire, explosion, power failure, equipment failure, strikes or lockout, inability to obtain necessary supplies and the like and other force majeure occurrences.

Privacy Policy Statement

This Privacy Policy Statement sets out our policy, and that of our related entities and our franchisees with respect to the way in which we obtain, use and disclose information about you, including through our websites and hard copy forms. We adopt and are bound by the National Privacy Principles set out in Schedule 3 of the Privacy Amendment (Private Sector) Act2000 (“the Act”).

We understand and appreciate that you are concerned about privacy, particularly in relation to the use and disclosure of your Personal Information. We are committed to providing a high level of privacy in relation to all Personal Information that is collected by us.

By continuing to request our services, you consent to the practices described in this Statement. You can also consent by visiting our website and participating in an on-line inquiry.

What Personal Information do we collect from you?

For the purposes of this Statement, “Personal Information” is information from which your identity is apparent or can be reasonably ascertained.

The types of Personal Information may differ depending on whether you are or may become a customer, a franchisee, an employee, or a customer or employee of a franchisee.

Generally, we will collect your name, address, mobile and telephone numbers, facsimile number and e-mail address, credit card and/or bank account details. In some cases, we may require information about your occupation and your employer.

Personal Information is also collected when you provide us with your business card, job application or franchise application or any other documentation containing such Personal Information, including when, as a customer, you complete an order form.

Personal Information also includes information we collect in the course providing services to you and communications between you and us, including on the phone when you telephone us or when we telephone you directly. We may also obtain Personal Information about you through the yellow or white pages or other directories and on the internet, including your own website (if relevant).

If you do not provide us with such Personal Information, we may be unable to carry out the services or provide the goods requested by you. Without such Personal Information, we may be unable to process your job.

What happens when you access our website?

Through our website, we can only obtain such information if you send an e-mail message and/or complete an on-line inquiry.

When you look at our website, we may make a record of your visit. The following information may be logged for statistical purposes: -

Your Internet protocol (IP) address;
The date and time of your visit to the site;
The pages you have accessed and documents downloaded; and
The type of browser you were using.

Such information is used for internal use only, for example, monitoring the number of visitors and page views on our website.

How do we use your Personal Information and who will we give it to?

Any Personal Information that we collect about you will be used and disclosed by us so that we can provide you with the goods and services that you have requested or otherwise to enable us to carry out our functions. If you provide information to one of our franchisees, it may be disclosed to us or one of our related entities. Your Personal Information may also be disclosed to any person or entity to which we outsource the production of goods or the provision of services.

We may use Personal Information to contact our customers and the customers of our franchisees to ask them questions about the products and service they received when dealing with us or our franchisees, and we may use your Personal Information and other data to benchmark the system.

Your Personal Information may be added to our database and/or that of our franchisees. The databases may be used for ongoing marketing and educative purposes. If we elect to retain such Personal Information, you have our commitment to your privacy. The type of marketing and educative activities that we undertake includes forwarding material to you so that you are kept updated in relation to new products and services. If at any time you do not wish to continue receiving this information, we provide an “opt-out” procedure in each communication to you.

We may use and disclose your Personal Information to third parties, including but not limited to:

By outsourcing all or part of our processes and functions to another,
To our legal representatives for the purpose of enforcing our legal rights;
To enable establishment, management and, maintenance of our website, intranet and or any databases and those of our franchisees;
From the franchisees to us, from us to our related entities and between franchisees; and
In relation to a sale of our business.

When emailing Personal Information to us, or completing an on-line inquiry, please be aware that there are risks involved in transmitting such information across the Internet. Our website contains links to other websites. We have no control over and take no responsibility for the privacy practices employed at other websites.

We have secured our website using industry standard technology. However, we cannot provide any guarantee with respect to the security of your Personal Information and we will not be liable for any breach of security or unintended loss or disclosure of information due to the website being linked to the Internet.

We do not and will not rent, sell or otherwise disclose your Personal Information to any other company or organisations, without your prior consent where that consent is required by law.

What to do if you don’t want our mail-outs?

In each e-mail or each piece of marketing material that you receive from us or our franchisees, we will endeavour to attach simple instructions on how you can immediately unsubscribe from our mailing list. In any event, you can opt out from receiving promotional material by e-mailing the relevant Privacy Officer and asking to be removed from the mailing list. Alternatively, you can fax or mail a request asking for deletion. Our contact details are set out below. There is no fee for any such deletion.

How to check or change your details?

We have a Privacy Officer. The Privacy Officer will, at your request, ensure that your Personal Information is accurate, complete and up-to-date.

If you wish to view the Personal Information held by us, please send your request by e-mail to the Privacy Officer, or by mail or fax to the contact details at the end of this Statement. A fee may apply for such access. If we deny your request for access, we will let you know why.

If you wish to amend any Personal Information because it is out of date or incorrect, or if you wish your Personal Information to be deleted from our database, please e-mail our Privacy Officer.

If any of your Personal Information changes, please contact our Privacy Officer and they will use all reasonable endeavours to ensure your Personal Information is updated.

Security

We make all reasonable endeavours to secure any Personal or Sensitive Information that we hold about you and to keep this information accurate and up-to-date. Your Personal Information is stored behind industry standard firewalls and where applicable, protected by user names and passwords. Where appropriate your Personal Information is kept within a locked storage room with restricted access.

Despite our best endeavours, there are risks involved with the use of any technology. For example, software crashes or viruses can mean that your Personal Information is not completely protected. In the event of any such inadvertent disclosure of your Personal Information, we will work with you to rectify the problem as soon as possible. You agree that we are not to be held responsible or liable for any loss that you suffer or costs that you incur as a result.

Changes to our Privacy Policy

From time to time we may decide to amend or update this Statement. When this occurs, we will post any changes on the website. We encourage you to periodically review this Statement so that you remain informed as to how we are protecting your Personal Information.

We welcome your questions and comments regarding this Statement. If you have any suggestions as to how we may improve our Privacy Statement or if you believe we have not adhered to this Statement, please contact our Privacy Officer.

Any complaints?

If you believe that your privacy has been breached, please contact our Privacy Officer.

Fylesoft Pty Ltd 159 Pikes Rd GLASS HOUSE MOUNTAINS, QLD 4518 Australia

Privacy Officer: Ben Foster Tel. No: 0410 438 032 Facsimile No: 02 4017 0026 Email: ben@fylesoft.com.au