Sponsor Terms and Conditions for iSponsor Australia Pty Ltd ABN 98 639 490 869
(Effective from 20 June 2022)
IT IS AGREED:
1. APPLICATION OF T&CS
These Terms and Conditions (T&Cs) govern the agreement between us and you as a ‘Sponsor’. These T&Cs do not apply to our agreement with Customers or Organisations, rather those agreements are governed by our separate terms and conditions.
2. DEFINITIONS ETC.
Unless the context otherwise requires, the following definitions apply in these T&Cs and any other document forming part of this Agreement:
Account Application means the document titled ‘Account Application – Sponsor’ completed by you on our standard form (or any other form accepted by us in writing) that refers to these T&Cs and has been accepted by us).
Additional Costs means any fees or charges for additional items or services provided at your request (including in respect of Promotions, additional marketing or other initiatives undertaken by us at your express request (such as where we promote your business in priority to other sponsors in our App) or reasonably required as a result of your breach of this Agreement.
Admin & Marketing Fee means, in respect of each Eligible Purchase, the sum that is equal to the Admin & Marketing Fee % multiplied by the Price, as varied pursuant to these T&Cs.
Admin & Marketing Fee % means the percentage determined in accordance with these T&Cs, which (when applied to the Price) will calculate the Admin & Marketing Fee payable by you.
Agreement is defined in clause 2.2.
App means a software application made available by us from time to time for use on an electronic device (such as a mobile phone, tablet or website application) which provides Customers with access to information in respect of Sponsors and pursuant to which Customers can designate which Organisations are to receive a Contribution from a particular Customer, among other things.
Branding means any trade marks, service marks, trade or business names, copyrights, slogans, logos, designs and other identifiers (whether registered or not) and any Intellectual Property Rights in the foregoing.
Business Day means a day which is not a Sunday, Saturday, public holiday or bank holiday in Brisbane.
Contribution means, in respect of an Eligible Purchase, the sum that is equal to the Contribution % multiplied by the Price, which we agree to pay to
the relevant Organisation in accordance with these T&Cs and the Organisation T&Cs following receipt of the Total Fee from you.
Contribution % means, in respect of an Eligible Purchase, the percentage determined as such in accordance with these T&Cs, which (when applied to the Price) will calculate the Contribution to be made in respect of each Eligible Purchase.
(a) in respect of an Eligible Purchase, the relevant person that has an account with us (including an account created via our App) and who has made
the Eligible Purchase;
(b) otherwise, any individual who has an account with us (including an account created via our App).
Electronic Direct Marketing (EDM) means electronic direct marketing initiatives that we undertake from time to time, which may include email, in-App or other electronic send-outs to Customers.
Eligible Purchase means a Customer’s purchase of goods, services or other products from you if:
(a) you are a Non-Exclusive Sponsor, in which case all purchases by Customers will be considered an ‘Eligible Purchase’; or
(b) you are an Exclusive Sponsor, but only where any one or more Organisations have been nominated by you and at the time of the purchase, one of those Organisations is also that Customer’s Nominated Organisation,
but only in respect of payments made by the Customer using a Mastercard, Visa or other payment facility that is expressly approved by us in writing.
Exclusive Sponsor means you, but only if you have designated yourself as an ‘Exclusive Sponsor’ (and are treated as such) in accordance with these T&Cs at the time of the Eligible Purchase.
GST means any tax imposed by or through the GST Law on a supply (without regard to any input tax credit) including, where relevant, any related interest, penalties, fines or other charges to the extent they relate to a supply under this Agreement.
GST Law has the same meaning as in A New Tax System (Goods and Services Tax) Act 1999 (Cth) (and any related tax imposition act).
Intellectual Property Rights means all present and future intellectual property rights of any nature, anywhere in the world, including:
(a) any patents, designs, trade marks (whether registered or common law trade marks), copyright or trade secrets; and
(b) any invention, discovery, trade secret, secret process, know how, computer software or confidential, scientific, technical or product information, and any right to use (or otherwise exploit), or to grant the use of, or to be the registered owner or user of, any of them.
Marketing Services means the marketing and related services that we will provide to you from time to time in accordance with these T&Cs.
Nominated Organisation means the Organisation that the Customer has nominated to receive Contributions via the App (or by another means
permitted by us), at the time of making an Eligible Purchase (if any).
Non-Exclusive Sponsor means you, but only if you are not an Exclusive Sponsor at the time of the Eligible Purchase.
Organisation/group means the relevant person who is to receive the Contribution in respect of an Eligible Purchase in accordance with these T&Cs, who will generally be a sporting or other club, a charity, a non-for-profit organisation or such other person accepted by us in our discretion.
Organisation T&Cs means the agreement between us and the relevant Organisation in respect of the relevant Contribution as in place from time to time, which will incorporate our standard terms and conditions and any other provisions specific to that Organisation.
Our Policies mean our standard practices that apply to the use of the App and our services, as amended from time to time.
Price means the total amount paid or payable by a Customer to you with respect to the Eligible Purchase (inclusive of any GST you charge).
Processing Fee means, in respect of each payment to be made by you to us pursuant to this Agreement, the sum payable to us in accordance with these T&Cs that is intended to cover the fees charged to us by our payment processing provider from time to time (which at the date of these T&Cs is Stripe Payments Australia Pty Ltd) for processing the relevant payment plus any applicable GST.
Promotion means a short-term offer that is created and fulfilled by you that is intended to stimulate customer demand through the App (such as discounts and special offers) that we have agreed to advertise in accordance with these T&Cs.
Promotion T&Cs means any specific terms and conditions applicable to the relevant Promotion (if any), as notified to us and accepted and advertised by us via the App in accordance with these T&Cs.
Total Fee means the total amount payable by you to us in respect of each Eligible Purchase, comprising the Admin & Marketing Fee, the Contribution and the Processing Fee.
You and your means the person named in the Account Application as the ‘Sponsor’ and includes the person we are contracting with under this Agreement if that is a different person. If there is more than one such person, it means each of them separately and every two or more of them jointly.
We, us and our means iSponsor Australia Pty Ltd ABN 98 639 490 869.
Website means https://isponsorapp.com/ or such other website hosted by us for the purposes of these T&Cs.
2.2 Documents comprising this Agreement
(a) This Agreement consists of the following documents:
(i) the Account Application, including any special terms that apply to you; and
(ii) these T&Cs.
(b) To the extent the law permits, no other terms or conditions (including those contained in any document submitted by you) will form part of this Agreement nor create any enforceable rights against us.
(c) If there is any conflict between the documents that make up this Agreement, then the documents will rank in the order they are listed in clause Error! Reference source not found. (unless the relevant provision in the document expressly provides to the contrary).
2.3 When you are bound by this Agreement
You will be bound by this Agreement on the earlier of the following:
(a) when you or your representative submits an Account Application (or any other documents forming part of this Agreement) to us; or
(b) when, at your request, we complete an Account Application for you or input your details into our App or our systems.
However, we are not bound by this Agreement until we accept your Account Application in writing or otherwise confirm in writing that we are bound by this Agreement in writing. If we start acting under this Agreement without you providing a duly completed and signed Account Application, you will still be obliged to perform your obligations under this Agreement and will promptly sign and complete an Account Application on request.
3. ONBOARDING & TERM
This Agreement will continue until it is terminated in accordance with these T&Cs.
3.2 Conditions Precedent
We are not required to provide (and you are not entitled to) any Marketing Services or access to our systems unless you have satisfied the following conditions (Conditions Precedent) and we have confirmed you have done so in writing:
(a) you have completed an Account Application or otherwise accepted an Account Application prepared by us;
(b) the parties have agreed the initial Contribution % and the Admin & Marketing %;
(c) the parties have agreed whether you are an Exclusive Sponsor or Non-Exclusive Sponsor;
(d) if you are an Exclusive Sponsor, you have notified us in writing of the Organisations that may receive Contributions;
(e) you have provided all documents and other information requested by us for your onboarding, including providing documents to verify your identity in accordance with Our Policies and any applicable laws;
(f) you have provided us with your logo (or similar images or branding) and a brief description of your business for inclusion in the App and for publication on our Website (noting it your responsibility to ensure that such information is accurate and that you have authority to use such information);
(g) you have provided us with a completed and signed direct debit agreement on a form we approve to authorise us to debit the monies payable to us in accordance with this Agreement (including any Contribution); and
(h) we have approved you for inclusion in the App in writing.
If you have not satisfied the Conditions Precedent within 60 days of the date an Account Application is completed, then we may immediately terminate this Agreement by notice in writing. If we start providing the Marketing Services or provide you with access to our systems and you have not satisfied the Conditions Precedent, then we can still terminate this Agreement under this clause.
4. OUR SERVICES
4.1 Marketing Services
(a) Once you have satisfied all the Conditions Precedent, we will provide certain Marketing Services to you and will pay Contributions to Organisations in respect of each Total Fee we receive, in accordance with these T&Cs.
(b) The Marketing Services will comprise the following:
(i) lead generation services by advertising your business and your Contribution % to Customers via the App;
(ii) EDMs to Customers and users of the App from time to time;
(iii) ad hoc consulting services for marketing initiatives, such as advice on brand promotion and how you can increase your sales via the App, as agreed with us from time to time; and
(iv) any other services expressly described in the Account Application.
(c) As part of our Marketing Services, we will display your business on our App in accordance with these T&Cs. We may also promote your business in other ways, such as on our Website, social media channels and on blogs.
(d) If we see an opportunity to market your business, we may contact you to discuss particular marketing initiatives. We will discuss the scope of the initiatives with you and whether an Additional Cost is payable for the initiatives. If you instruct us to undertake any additional marketing initiatives and we have advised you that there is an Additional Cost for doing so, then we will undertake those initiatives and you will be obliged to pay the Additional Cost.
(a) We may agree in writing to display Promotions to Customers or authorise you to use features in the App that allow you to display Promotions through
our App. Promotions may include short term specials or discounts that you would like to offer Customers.
(b) You acknowledge that at the time these T&Cs were adopted, the App has limited functionality for Promotions (particularly for in-store discounts), and we may not be able to implement your requested Promotions.
(c) If we agree in writing to a particular Promotion or if the App allows you to advertise Promotions through features in the App, you must(and you alone are responsible for) the fulfilment and the defining of any Promotions offered by you to Customers and any Promotions must be consistent with all applicable laws and Our Policies (if any). You are also responsible for any Additional Costs in connection with the Promotions, which may be notified to you via the App or by us in writing.
5.1 Which Organisations receive the Contributions
(a) The way our business and the App works is that the Customer is the person who has the power to determine which Organisation receives the Contribution in respect of the Eligible Purchase. The Customer does this by specifying their Nominated Organisation via the App (or in another manner acceptable to us).
(b) The Customer may update their Nominated Organisation from time to time, including immediately prior to an Eligible Purchase. Accordingly, there is no guarantee that your preferred Organisation will receive the Contribution in respect of an Eligible Purchase.
(c) Generally, the Contribution will be paid to the Customer’s Nominated Organisation at the time the payment for the Eligible Purchase is processed, as that is when our systems match the Customer’s payment details with the payment to you and when our system checks the App to see who the Customer’s Nominated Organisation is.
(d) If you are an Exclusive Sponsor, you will be obliged to pay the Total Fee where the Customer’s Nominated Organisation is one of the Organisations you have also nominated to receive contributions.
(e) If you are an Exclusive Sponsor, the Organisations you nominate may be amended by giving us 7 days’ written notice advising us of your intention to vary your chosen Organisations. We will then notify you in writing once the change of preference has been recorded and applied within the App, as any change to your chosen Organisations will only take effect once our App is updated (as that is the point that the Customer may become aware of the changes).
(f) However, if the Customer has recently changed their Nominated Organisation and there are delays in the processing of the payment or a failure in our systems, then there could be circumstances where the Contribution is credited to the Organisation that the Customer nominated shortly prior to or after the time of the Eligible Purchase, and you acknowledge that these errors may occur from time to time and that we are not liable to you in respect of any claims such errors.
(g) If, at the time of an Eligible Purchase, the Customer has not specified the Organisation that is to receive contributions or has nominated us to determine which Organisation is to receive contributions, then:
(i) we will determine, in our discretion and from time to time, which Organisation receives the contribution in respect of that Customer’s Eligible Purchase, which may depend on any commitments we have made to the public or Customers in respect of a period; and
(ii) the Organisation that we determine under paragraph (i) above will be considered the ‘Nominated Organisation’ in respect of that Eligible Purchase for the purposes of this Agreement and we will pay the contribution to them in accordance with our agreement with them.
5.2 Contributions and Contribution %
(a) The amount of any Contribution payable by us in respect of an Eligible Purchase will be calculated by multiplying the Price by the Contribution % in
effect at the time of the Eligible Purchase.
(b) For example, for an Eligible Purchase where the Price is $100 (including GST) and your Contribution % is 6% at the time, then the Contribution will be $6.00 (plus any applicable GST). The Contribution is included in the Total Fee payable to us.
(c) Unless the functionality of the App allows and we expressly agree in writing, your Contribution % must be the same for all potential Contributions that may be made in connection with this Agreement.
(d) The initial Contribution % will be the percentage provided for in your Account Application that has been accepted by us.
(e) If you wish to change your Contribution %, you must provide us with not less than 7 days’ notice in writing and we will use our best endeavours to update your Contribution % displayed in the App within that timeframe. However, your Contribution % will only be varied for the purposes of this Agreement once your amended Contribution % is displayed for Customers in the App, as we cannot mislead Customers as to the amount to be paid to the Nominated Organisation from Eligible Purchases.
(f) Your Contribution % must be not less than 4%, unless we expressly agree otherwise in writing.
5.3 Our commitment to pay the Contribution
(a) In respect of each Eligible Purchase where you have paid the Total Fee to us, we will pay the Contribution in respect of each such Eligible Purchase to the Nominated Organisation (which, for the avoidance of doubt, will be the Organisation that we determine in the circumstances provided for in clause 5.1(g), if applicable).
(b) We generally pay the Contributions within 30 days of the end of the month in which we receive payment of the relevant Total Fee from you, unless our agreement with the Nominated Organisation provides to the contrary.
(c) For the avoidance of doubt, if you do not pay us all amounts shown on an invoice duly issued by us under this Agreement (including where you do not pay the Total Fee in full for all Eligible Purchases the subject of the invoice or you withhold a payment due to our alleged breach of this Agreement or any other claim), then we may withhold the payment of any Contributions to be made by us in respect of Eligible Purchases with your business (not just those the subject of the dispute) until the dispute is resolved. One of the reasons we may have to do so is because our agreements with Organisations generally provide that we only pay Contributions to them once we have received payment in full from you and we may not know which Organisations to pay the Contributions to (or whether we have received payment in full from you) until any dispute is resolved.
6. OUR FEES
6.1 Initial fees and variation of fees
(a) The initial Admin & Marketing Fee will be set out in your Account Application that has been accepted by us.
(b) We may charge you a Processing Fee in respect of each payment made to us by you pursuant to this Agreement. As at the date of these T&Cs, the Processing Fee will be the sum equal to 1% of the Admin & Marketing Fee, plus 1% of the Contribution, plus $0.50 plus any applicable GST on the Processing Fee.
(c) We may increase the Admin & Marketing Fee % and/or the Processing Fee by providing not less than 30 days’ notice to you.
(d) Otherwise, the Admin & Marketing Fee % and the Processing Fee can only be varied by agreement in writing by the parties, in which case the fees will be varied in respect of all Eligible Purchases made 7 days after the date of our written agreement (unless we expressly agree to implement the changes earlier).
(e) Despite anything in this Agreement to the contrary, you agree that we may impose a minimum amount as the Admin & Marketing Fee or Processing Fee for each Eligible Purchase by providing not less than 30 days’ notice in writing to you. We may have to do this for various reasons, including where there is a low Price for your products and the Admin & Marketing Fee % or the Processing Fee does not cover our transaction and other costs in providing our services and arranging the payment of Contributions to Organisations.
(f) If you receive a notice of us imposing a minimum Admin & Marketing Fee or Processing Fee (including an increase in the Admin & Marketing Fee % or Processing Fee under clause 6.1(b)) and you do not agree to the changes, then you may terminate this Agreement in accordance with these T&Cs.
(g) You acknowledge that the Processing Fee may not directly reflect the fees charged to us by our payment processing provider for the relevant transaction at the relevant time (and the fees we are charged may be more or less than the Processing Fee).
(a) As part of our services and payment arrangements, we will provide reports to you from time to time advising you of matters such as the Eligible
Purchases, the Contributions, the Total Fees, any Additional Costs due for the reporting period (each such report will be a Transaction Report).
(b) We may provide other reports to you from time to time at our discretion, which may include reports regarding lead generation, the number of
Customers who interact with your business via the App and results from other marketing initiatives (each such report will be a Marketing Report).
(c) You acknowledge that you will not be notified at the time an Eligible Purchase occurs that you are liable to pay the Total Fee to us, rather you will
only be notified after the Eligible Purchase has been made when we send you a Transaction Report (or otherwise in our discretion).
(a) You must pay us the Total Fee, any Additional Costs and all other monies payable pursuant to this Agreement within the time provided for in this Agreement.
(b) We will issue you invoices from time to time in respect of the Total Fees and any Additional Costs. We will generally issue you invoices based on the Transaction Reports we provide you, but we may issue invoices separately to the Transaction Reports (including where you have asked us to undertake a Promotion and there is an Additional Cost payable in respect of that Promotion).
(c) You are required to pay us all amounts stated on an invoice issued under this Agreement, including any amounts in respect of the Total Fee and any Additional Costs. All invoices issued by us are payable within 14 days of the date of the invoice.
(d) If you do not pay any monies owing to us when due, then you will pay us interest on the overdue monies at the rate of 8% per annum, which will be calculated on daily balances and will compound monthly until paid.
(e) You will review each Transaction Report and invoice issued by us and notify us in writing of any disputes in relation to them within 7 days of receipt. Otherwise, the matters stated in the Transaction Report (including our calculation of the Total Fees the subject of the Transaction Report) and the invoice will be binding on you to the extent the law allows. If you notify us in writing of a genuine dispute in relation to a Transaction Report or invoice within 7 days of receipt, then:
(i) you will pay the undisputed part of the invoice (if any) and use best endeavours to resolve any disputed part of the invoice or Transaction Report as soon as possible; and
(ii) if the resolution of the dispute determines that you are required to pay the disputed amount, you will pay that amount upon resolution of that dispute. For the avoidance of doubt, nothing in this Agreement releases you from any obligation to pay, nor prevents us from recovering monies owing to us, in connection with this Agreement that is due and payable to us while the parties are attempting to resolve a dispute.
(f) You will provide us (or our payment provider) on request with a direct debit service agreement, direct debit request or similar document that authorises monies to be debited from your account or card (together a DDR) in respect of any amount payable to us pursuant to this Agreement, in such form as we may reasonably require from time to time. Any invoiced amount will be debited from your account on the due date of the invoice (or such earlier time provided for in the DDR). You must not cancel a DDR without our prior written consent, unless the law allows you to do so without our consent. If you cancel a DDR or we are no longer able to debit your card or account in accordance with any DDR that you have previously provided, then you will be in breach of this Agreement.
(g) We reserve the right, in our discretion, to seek reimbursement from you if we discover a payment processing error and we may do so by invoicing you separately for that amount, debiting your card on file or your bank account pursuant to any DDR or any other lawful means.
(a) In these T&Cs references to GST also include references to any other indirect transaction taxes or consumption taxes, including any value added
tax, goods and services tax, sales tax or similar tax, wherever imposed.
(b) If a party makes a supply to another party under, or in connection with, this Agreement, then (unless the consideration is expressly stated to be inclusive of GST) the consideration for that supply is GST exclusive. The Total Fee and the Additional Costs (and any component of them) are exclusive of GST, unless we agree otherwise in writing.
(c) In addition to paying consideration for a supply (unless the consideration is GST inclusive) the person making the payment must:
(i) pay to the supplier an amount equal to any GST for which the supplier is liable on that supply, without deduction or set-off of any other amount; and
(ii) make that payment as and when the consideration must be paid or provided.
(d) The recipient need not pay GST unless the recipient has received a tax invoice (or an adjustment note) for that supply.
(e) If a party provides payment for a claim or a right to claim under or in connection with this Agreement (for example, for a breach of any warranty or for reimbursement of any expense) that gives rise to a liability for GST, the provider must pay, and indemnify the claimant against, the amount of that GST (except any amount for GST for which that party is entitled to an input tax credit).
7. ACKNOWLEDGEMENTS & OTHER OBLIGATIONS
You acknowledge and agree that:
(a) any person who signed an Account Application on your behalf and any ‘Representative’ stated in your Account Application is duly authorised to bind you in respect of all matters that may arise in connection with this Agreement;
(b) at the date these T&Cs are adopted, the App has limited functionality and you (as a Sponsor) may not have access to the App. However, if the App is updated to grant you access, then you must comply with all terms and conditions stated in the App and must ensure that only your authorised personnel access the App on your behalf;
(c) we may notify Organisations and Customers of the Contributions made by you, including by positing such notices via the App, when we notify the Organisations of the contributions we have made to them and otherwise;
(d) if our App allows for Customers to review your business, we may share such reviews and information via our App or with Organisations who may receive your Contributions and we are not publishers of any such Customer feedback nor can you make a claim against us in respect of any feedback;
(e) our Marketing Services are of a general nature only and we are not obliged to provide specific services for your business,unless you have requested us to do so and you have paid the required Additional Costs;
(f) we are not obliged to promote your business, whether in priority to any other business or otherwise, and we may cease promoting your business if you breach this Agreement or Our Policies;
(g) we may remove Promotions from the App or our other marketing channels once the agreed period for any Promotions expire or if we receive complaints from Customers or others in respect of the Promotions;
(h) we may remove material displayed in the App in respect of you or your products if we determine that any of the material is inaccurate, misleading or contrary to Our Policies, or where you do not pay the Total Fee to use when due;
(i) we may update Our Policies by displaying the changes on our website, by notice to you or via the App;
(j) if you are an Exclusive Sponsor, then:
(i) you must nominate not less than one Organisation that is eligible to receive Contributions from Eligible Purchases (unless we agree otherwise in writing);
(ii) you agree that your business will only be available in the App to Customers whose Nominated Organisation is one of the Organisations that you have nominated;
(k) we are not obliged to display your business on the App at all times (including in circumstances where the App is not functioning or where you have not provided us with the information we require in order to fulfil our obligations under this Agreement or our obligations to Organisations or Customers);
(l) we do not hold any monies (whether Contributions for an Organisation or otherwise) on trust, rather the relationship you will have with us (and our relationship with the Organisations) is purely that of independent contractors and debtor/creditor;
(m) we do not make any guarantee in relation to the results from any Marketing Services (including that our Marketing Services will increase your sales), the number of Customers using the App, the geographic locations from which Customers will see your business in the App or any similar matters;
(n) you are not required to act on our advice provided to you in respect of any marketing matters and we do not guarantee that our advice will increase demand for your products,
and you are not entitled to withhold any payments to, or make any claim against, us in connection with the above matters, to the extent the law allows.
You represent and warrant to us, throughout the term of this Agreement and during any onboarding process, that:
(a) you have full power and authority to enter into this Agreement and perform all your obligations under it;
(b) you and your business are validly established and have all required authorisations, consents, licences and approvals to conduct your business; and
(c) if you are an individual, you are over 18 years old and if you are a body corporate then you are validly existing and in good standing under the laws of your incorporation;
(d) all information provided to us in connection with this Agreement your onboarding is true and correct; and
(e) you own or have the right to provide all Branding, marketing and other material that is provided to us in connection with this Agreement.
7.3 Obligations in respect of Customers
(a) As we are merely a technology service provider and a business who provides marketing services, you are solely responsible for all transactions with Customers (and other customers of your business), including ensuring that all products purchased by customers are supplied in accordance with all applicable laws, managing any customer disputes (including in respect of any refunds) and ensuring that all information provided to us for inclusion in the App is accurate, up to date and not misleading (including by way of omission).
(b) We are not in any way liable for any claims made by Customers in connection with any Eligible Purchase (or any other purchase of products from you) or any failure on your part to comply with this Agreement.
(c) In the event that you refund monies to a Customer or a Customer raising a dispute in respect of an Eligible Purchase, you acknowledge and agree that the Total Fee in respect of any Eligible Purchase is not refundable if already paid, as we have already provided you with the Marketing Services and we may have already paid the Contribution in respect of that Eligible Purchase to the Nominated Organisation. If you have refunded a Customer in respect of an Eligible Purchase, you must notify us promptly (and in any event before the timeframe permitted for disputing a Transaction Report).
(d) As we need to ensure that the information we are publishing to Customers is correct and not misleading (including any representations we make via the App that Contributions will be made on your behalf to the Customer’s Nominated Organisation), you must pay the Total Fee to us in respect of each Eligible Purchase and must otherwise ensure that any breach of this Agreement by you does not cause us to breach obligations we may owe to our customers or any Organisations that we conduct business with.
7.4 Your other obligations
At all times, you undertake to ensure that you (and your officers, employees, contractors and agents, where relevant) will:
(a) comply with Our Policies in effect from time to time and this Agreement;
(b) conduct your business in accordance with all applicable laws (including any laws in respect of fundraising for charities and any privacy laws), in accordance with the requirements of any agreement we have in place with an Organisation and any agreement you may have in place directly with an Organisation (if any);
(c) notify us in writing when, or as soon as reasonably possible after, there is a change in ownership or control of you or your business, and you must give us reasonable assistance (including providing all documents we reasonably request) to enable us to make all necessary changes to this Agreement with you in light of any such change;
(d) ensure that any card details or bank account information that you provide to us is accurate and remains up to date, as well as ensuring there are always sufficient funds in your account or available on your card for the purposes of debiting any payments due to us under this Agreement; and
(e) not provide us with any information or material, whether for inclusion in the App or otherwise, that infringes any third party’s Intellectual Property Rights, confidential information or that is otherwise unlawful or inconsistent with Our Policies.
7.5 Accuracy of information
You must ensure that all information you have provided to us (including any information we have included about you in the App and our other marketing channels) is complete, accurate, up to date and not misleading (including by way of omission) and promptly notify us if any such information is inaccurate, incomplete, out of date or misleading. We rely on you in this regard.
7.6 Allocation of risk
(a) The Australian Consumer Law may give you certain guarantees. Where such guarantees apply to our products and services and liability for breach of any such guarantee can be limited, our liability (if any) arising from any breach of those guarantees is limited with respect to the supply of goods, to the replacement or repair of the goods or the costs of resupply or replacement of the goods or with respect to services to the supply of services again or cost of re-supplying the services again.
(b) To the extent the law permits, you indemnify, hold harmless and defend (at our option) us and our officers, employees, contractors and agents from and against any and all claims, liabilities, losses, costs, charges or expenses (including legal fees on an indemnity basis) that may be incurred or otherwise arise in connection with your breach of this Agreement (including any warranties), your breach of any applicable laws or your negligence.
(c) To the extent the law permits, in no event will we be liable for any claim for any indirect, exemplary, special or consequential damages or for any loss of business, data profits (including any damages for loss of business), even if we have been notified of the possibility of same.
8. CONFIDENTIALITY, PRIVACY AND INTELLECTUAL PROPERTY
In respect of the confidential or proprietary information of a party, the other party will:
(a) only use the confidential information for the purposes of giving effect to this Agreement and the arrangements contemplated by it;
(b) ensure that the confidential information is protected from unauthorised access or disclosure and that any person receiving the confidential information from the party ensures the confidentiality of the confidential information;
(c) not disclose confidential information of another party except to the extent the disclosure:
(i) is required by law, court order or rules of a stock exchange;
(ii) is made to that party’s legal or professional advisers who are bound by obligations of confidence;
(iii) is consented to in writing by the other party; and
(d) upon request of the other party, return or destroy the confidential information and all copies of it, except where that party needs to retain the information for the purposes of complying with (or enforcing) its obligations under this Agreement or at law.
For the avoidance of doubt, nothing in this clause restricts us from marketing you, your business or your products in the App or in connection with our Marketing Services, nor does it prevent us from publicising any affiliation with you (if we choose to do so).
(a) You will comply with all obligations of an ‘APP Entity’ (as defined in the Privacy Act 1988 (Cth) (Privacy Act) in respect of any matters arising in connection with this Agreement. You must not do anything which could cause us to breach any obligations we may owe under the Privacy Act or any other laws.
(b) We may share your contact and other information (and those of your officers, employees and agents) with third parties as reasonably necessary for the purposes of giving effect to this Agreement, your onboarding to our systems and at the request of an Organisation in respect of any Contributions made to them.
(a) You acknowledge that the App, our Policies, any materials provided to you in connection with our Marketing Services, any Transaction Report and any Marketing Report, as well as all related materials and data, will be considered our confidential information and we will retain any Intellectual Property Rights in them.
(b) You will ensure that you and your employees, agents and contractors will not copy, modify, distribute, sell or otherwise deal with any of our confidential information or Intellectual Property Rights, nor will you reverse engineer (or attempt to extract the source code or any similar material) from our App or any other materials that contain our confidential information or Intellectual Property Rights.
(c) You grant us a licence to use your Branding in accordance with this Agreement on a royalty-free, non-exclusive, non-transferrable and limited basis for the duration of this Agreement.
(d) You must only use our Branding where we have expressly consented in writing. You must only use our Branding, the App and any other material we provide to you in connection with this Agreement to receive the benefits of the Marketing Services provided under this Agreement.
(e) We are permitted to use your Branding (and any other marketing or similar material you provide to us) in connection with our Marketing Services (including by displaying your Branding in our App, in EDMs or in other marketing materials) and for any other purpose agreed by you in writing or as permitted by this Agreement.
(f) You must not try to register, use or claim ownership or any rights in our Branding or our other Intellectual Property Rights, nor may you bring any claim against us (or any of our officers, employees or agents) on the basis that our use or exploitation of your Branding in accordance with this Agreement infringes your Intellectual Property Rights or any other rights.
(g) Each party reserves the right to revoke any licence to use its Branding if the party reasonably considers that the other party’s use of the Branding is prejudicial to its business, products or reputation or where the other party’s performance of its obligations under this Agreement falls below an acceptable standard.
(a) Either party may terminate this Agreement:
(i) for any reason by providing the other party with 30 days’ written notice;
(ii) if the other party is in breach of this Agreement and such breach is incapable of remedy or is not remedied within 14 days of receipt of written notice requiring the breach to be remedied.
(b) If you are in breach of this Agreement, we may restrict or suspend your access to the App and our systems, and may cease advertising you and your business, by notice in writing.
(c) If this Agreement is terminated, then you will remain liable to pay the Total Fees in respect of any Eligible Purchases made during the notice period, and we will continue to pay over any Contributions in respect of such Eligible Purchases in accordance with this Agreement.
(d) For the avoidance of doubt, deletion of the App or the deletion of any account you have with us does not amount to termination of this Agreement.
10. GENERAL PROVISIONS
10.1 Disputes and Complaints
If a dispute arises between the parties, the parties will endeavour to resolve the dispute in good faith. To notify us of a dispute, you must send us a complaint through to the “Contact Us” tab on the Website or through the Help Centre in the App (if the functionality of the App allows you to do so).
Any notice, demand, termination procedure or other communication relating to this Agreement may be either sent by email or post, or be personally served or left at the relevant party’s address for service, which in our case is the address specified in these T&Cs and in your case is the address specified in your Account Application. We may provide notices via those methods or via the App or any portal on our website. Any reference in this Agreement to you providing ‘notice’ means a written notice.
10.3 Trust provisions
If you are the trustee of any trust (whether or not the trustee is listed in the Account Application or this Agreement), you:
(a) warrant that you have been properly appointed as the sole trustee of the trust, have not been replaced as the trustee and have properly exercised a power under the relevant trust deed to enter into this Agreement;
(b) enter into this Agreement and undertake all obligations in your personal capacity and in your capacity as trustee of any trust;
(c) warrant that you have the right to be indemnified out of the trust assets, in priority to the beneficiaries, for all liabilities that you may incur under this Agreement and undertake not to do anything that may result in the loss of its right of indemnity from the trust assets; and
(d) undertake to ensure that any new trustee (if one is appointed despite the provisions above) is bound by this Agreement or any variation of this Agreement.
10.4 Force Majeure
If the performance of this Agreement (except for any obligation to pay) are prevented, restricted, interfered with or materially prejudiced by reason of circumstances beyond the reasonable control of the party obliged to perform it (including any Act of God, act of any governmental or competent authority, a pandemic or government response to a pandemic, the imposition of any new taxes, excise fees, tariffs or other mandatory charges or an increase in same, default of any kind under any contract to which we are a party), the party so affected (upon giving prompt notice to the other parties) shall be excused from performance to the extent of the prevention, restriction or interference, but the party so affected shall use its best endeavours to avoid or remove the causes of non-performance and shall continue performance under this Agreement with the utmost despatch whenever such causes are removed or diminished. If such causes are not reasonably able to be overcome, then the parties will negotiate in good faith alternative arrangements for the performance of this Agreement or its termination.
10.5 Assignment of Agreement
You must not assign any of your rights or obligations under this Agreement without our prior written consent. We may assign or otherwise deal with any
of our rights or obligations under this Agreement without your consent.
Any documents forming part of this Agreement may be executed and exchanged in any number of counterparts, all of which taken together constitute one and the same document.
10.7 Variation and Waivers
(a) Any variation of or to this Agreement will not have any effect unless such variation is reduced to writing and signed off by us. However, we may update these T&Cs by providing not less than 30 days’ notice in writing to you and the updated T&Cs will be deemed to apply from the expiry of such notice period. If you do not agree to the updated T&Cs, you may terminate this Agreement during that 30 day period and the termination will take effect on and from the expiry of that 30 day period.
(b) Any consent or approval required from us in connection with this Agreement must be in writing in order to be valid.
(c) Any failure by us to exercise any or all of our rights or powers under this Agreement at any time and for any period of time shall not constitute a waiver of any of our rights or powers arising pursuant to this Agreement.
10.8 Entire Agreement
To the extent the law permits, this Agreement represents the entire agreement between the parties in respect of the matters contemplated by this Agreement, and you acknowledge that you have not entered into this Agreement in reliance on, or as a result of, any promise, representation, statement, conduct or inducement of any kind relating to any matter in connection with this Agreement from us or our agents.
10.9 Third Parties
Your obligations under this Agreement may confer rights for the benefit of third parties (including our officers, employees and agents) and you will be deemed to have received notice of acceptance of the rights conferred on them (and will be prevented from denying same) when we start providing the Marketing Services to you in connection with this Agreement. We also hold those rights on trust for those persons.
If any provision of this Agreement in favour of us exceeds what is permitted by law (Void Term), then the following provisions will apply:
(a) the Void Term shall be read down only to the extent required to ensure it is enforceable; and, if the unenforceability of the Void Term is not rectified by this provision;
(b) if the Void Term is unenforceable due to it imposing liability on you, then you shall only be liable to the extent that you caused or contributed to the liability (but nothing in this provision will impact our rights to receive the Total Fees under this Agreement);
(c) if the Void Term is unenforceable due to it releasing us from an obligation, we will still be liable to perform that obligation to the extent we either caused or contributed to the event giving rise to the obligation or breached this Agreement or the terms implied by law that cannot legally be excluded; and
if the foregoing does not cure the invalidity or unenforceability, this Agreement will not include the Void Term and the remainder of this Agreement shall continue in full force.
10.11 No Merger
Nothing in this Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any right, power or remedy that we may have
against another party or any other person at any time.
10.12 Governing Law
This Agreement is governed by the laws of Queensland and each party Irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland.
In this Agreement:
(a) headings used in these T&Cs are for convenience only and do not affect the interpretation of these T&Cs;
(b) the provisions of this Agreement must not be construed to the disadvantage of a party merely because that party or its advisers were responsible for proposing or preparing this Agreement or the inclusion of the provision in it or because that party relies on a provision of the provision to protect itself; a
(c) a reference to a ‘claim’ or ‘claims’ includes all claims, actions, demands, liabilities, suits, proceedings, demands, costs, expenses or liabilities, whether present or future, fixed or ascertained and however arising;
(d) the words ‘includes’, ‘including’, ‘such as’ or ‘for example’ (or similar phrases) are not to be construed as words of limitation and do not limit what else might be included nor does the incorporation of more than one obligation in a provision limit any other obligation contained in that provision,
and unless the context otherwise requires:
(e) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
(f) the singular includes the plural and vice versa and words importing a gender include every other gender;
(g) a reference to a clause or paragraph is a reference to a clause or paragraph of these T&Cs;
(h) a reference to a person includes a corporation, trust, partnership, unincorporated body, government agency, or other entity whether or not it comprises a separate legal entity;
(i) a reference to a party includes a reference to the party’s executors, administrators, successors, permitted substitutes, permitted assigns and, in the case of a trustee, includes any substituted or additional trustee;
(j) a reference to a document includes any agreement or other legally enforceable arrangement created by it (whether the document is in the form of an agreement, deed or otherwise) and includes a reference to any variation, replacement or novation of it; and
(k) a reference to legislation or to a provision of legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it.