1. PREAMBLE
These Terms and Conditions (Member T&Cs) govern the agreement between us and you as the ‘Member’. These T&Cs do not apply to our agreement with Merchants or Charities, rather those agreements are governed by our separate terms and conditions.
2. DEFINITIONS
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Account means your account created through our Website/App with us and, where the context permits, includes any third party account that we accept is an ‘Account’ for the purposes of this Agreement.
Agreement is defined in clause 2.2..
Website/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 allows you to have access to information in respect of Merchants and pursuant to which you can designate which Charities you would like to nominate to receive Contributions, amongst other things.
Business Day means a day which is not a Sunday, Saturday, public holiday or bank holiday in Brisbane, Australia or in the relevant city where our principal place of business of our Related Entity is if you signed up with our Related Entity.
Contribution means, in respect of an Eligible Purchase, the sum that is payable to the Nominated Charity in accordance with this Agreement and the Charity Agreement, which is generally equal to the Contribution % multiplied by the Price.
Contribution % means, in respect of the Eligible Purchase, the percentage determined in accordance with the relevant Merchant Agreement, which (when applied to the Price) will calculate the Contribution to be made in respect of the Eligible Purchase.
Electronic Direct Marketing (EDM) means electronic direct marketing initiatives (which may be commercial or non-commercial) that we undertake from time to time, which may include email, in-App or other electronic send-outs or notifications (including push notifications) to you, other members of our Website/App and persons on our mailing/marketing lists.
Eligible Payment Method or Eligible Payment Card means any Visa, MasterCard or American Express credit or debit card in your individual name and which is eligible to become a Linked Card as determined by us and our Service Providers from time to time, which is specified by you in the Website/App at as your ‘Linked Card’ at the time of making the Eligible Purchase.
Eligible Purchase means the relevant personal purchase of goods, services or other products by you that satisfies all of the following at the time of the purchase:
(a) you have a current Account with us and this Agreement has not been terminated;
(b) the purchase was from a Merchant and we have a Merchant Agreement in place that covers the purchase, and the purchase meets the requirements of any offer from the Merchant;
(c) if the Merchant is an Exclusive Merchant, your Nominated Charity is one of the Charities also nominated by that Exclusive Merchant to receive contributions;
(d) you made payment for the purchase via an Eligible Payment Method specified in your Account at the time of the purchase.
Exclusive Merchant means a Merchant that has designated itself to be an ‘Exclusive Merchant’ (and is treated as such) in accordance with the Merchant Agreement at the time of the Eligible Purchase, which refers to a Merchant who can choose to limit the Charities that may receive contributions from purchases of the Merchant’s goods, services, and other products, which may be displayed under the ‘Your Exclusive Merchants’ section in the Website/App.
GST includes any goods and services tax, value added tax or similar tax, wherever imposed and includes any related interest, penalties, fines or other charges.
Intellectual Property Rights means all present and future intellectual property rights of any nature, anywhere in the world, including:
(a) any patents, designs, trademarks (whether registered or common law trademarks), 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 member of, any of them.
Intermediary means any other business (such as a marketing or referral business) that acts as an intermediary between us and the relevant Merchant and who may enter into agreements with us from time to time on behalf of the Merchant or in respect of purchases from a Merchant.
Linked Card means an Eligible Payment Card that meets the requirements of this agreement and that you nominated pursuant to this agreement for use in connection with participation with purchases from Charities.
Nominated Charity means the relevant Charity you nominate to receive contributions via the Website/App (or by another means permitted by us in writing) that is current at the time of making an Eligible Purchase (if any).
Charity or Group means a Charity (which may be a club, charity, charitable trust, not-for-profit or any other Charity or person) who we have an agreement with (or that we otherwise make contributions to from time to time) in respect of purchases of goods, services, or other products with Merchants by Members who have our Website/App.
Charity Agreement means our agreement(s) with the relevant Nominated Charity.
Our Policies means our standard practices that apply to the use of the App and our services, as amended from time to time.
Payment Card Network means a network participating in our Website/App for the purposes of processing payments, which may include Visa, MasterCard, and American Express.
Price means the total amount paid or payable by you to a Merchant with respect to an Eligible Purchase (inclusive of any GST the Merchant may charge, unless we determine otherwise).
Promotion means a short-term offer, promotion, or advertisement made by us to you (whether via the Website/App or otherwise) in respect of a Merchant or Charity that have agreed to advertise in accordance with these T&Cs.
Service Provider means a person retained by us to act on our behalf to provide, or to assist us in providing, the Website/App and our services, including each Payment Card Network and Fidel Limited (Fidel).
Merchant means the relevant business that has an agreement with us (including via an Intermediary) to provide Marketing Services for their benefit and pursuant to which they (or an Intermediary on their behalf) have agreed to make contributions to us for payment to Charities.
Merchant Agreement means our agreement(s) with the relevant Merchant (or Intermediary) who paid us the monies in respect of the Contribution.
Merchant Fees means the fees we receive from the Merchant (or an Intermediary) for the Marketing Services we provide to the Merchant in accordance with the Merchant Agreement.
We, us and our means P4P or its related entity nominated from time to time (each a Related Entity).
Website means https://communityrewards.shop or such other website hosted by us for the purposes of these T&Cs.
United States means the United States of America, and its external territories (where relevant).
you and your means you, the person who has created an Account with us (whether via the Website/App or otherwise) (including the person whose details are specified as the holder of the Account in the Website/App). If there is more than one such person, it means each of them separately and every two or more of them jointly.
1.2 Documents comprising this Agreement
This Agreement consists of any additional terms of use contained in the Website/App and these T&Cs. 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.
1.3 When you are bound by this Agreement
You will be bound by this Agreement as soon as you sign up to create an Account with us to view or use the Website/App. Your access and use of the Website/App constitutes your agreement to be bound by these T&Cs and the Agreement, which establishes a contract between you and us. If you do not agree to these T&Cs, you must not access or use the Website/App or any of our other services. Notwithstanding clause 2.4, we are not bound to perform any obligations imposed on us under this Agreement until we accept your Account in writing or otherwise confirm in writing that we are bound by this Agreement. If we start acting under these T&Cs without you agreeing to these T&Cs, you will still be obliged to perform your obligations under these T&Cs.
2. ONBOARDING & TERM
2.1 Term
This Agreement will continue until it is terminated in accordance with these T&Cs.
2.2 Conditions Precedent and Onboarding Process
(a) We are not required to grant you access to the Website/App or our services or pay any contributions in respect of your purchases with a Merchant unless you have satisfied the following conditions (Conditions Precedent):
(i) You have provided us with your contact details (including your name, email address, location and any other information the Website/App indicates are mandatory information) and any other information stated in the Website/App;
(ii) You have completed the account creation process via the Website/App, including receiving a confirmation email that your Account has been created and entering any verification or other codes sent to your email in the Website/App to activate your Account;
(iii) You have provided details of your Eligible Payment Method in the manner provided for in the Website/App;
(iv) If required by the Website/App, you have specified the Charities that you would like to receive contributions with respect to your purchases with Merchants; and
(v) If requested, you have provided us with any other information or documentation that we require in connection with your use of the Website/App or your dealings with us.
(b) We may choose to notify you of whether you have satisfied the Conditions Precedent or not, but any failure for us to notify you that you have satisfied the Conditions Precedent should not be taken as an admission that you have satisfied the Conditions Precedent.
(c) If you have not satisfied the Conditions Precedent within 60 days of the date you have downloaded the Website/App, then we may immediately terminate this Agreement by notice in writing.
3. HOW OUR BUSINESS WORKS
3.1 Which Charity will receive a Contribution
(a) The way our business works is that you, as the one making the purchase, have the power to determine which Charity receives the contribution in respect of your purchase from a Merchant. You do this by specifying your Nominated Charity via the Website/App (or in another manner acceptable to us), which at the date of these T&Cs is referred to as your ‘default’ Charity. You may update your Nominated Charity from time to time via the Website/App.
(b) Generally, the Contribution will be paid to your Nominated Charity that you have selected at the time you make the Eligible Purchase, as that is when our systems match your payment details with the payment to the Merchant and when our system checks the Website/App to see who your Nominated Charity is.
(c) However, if you have recently changed your Nominated Charities 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 Charity you nominated shortly prior to or after the time of the Eligible Purchase. While we will use our best endeavours to ensure this does not occur, you acknowledge that these errors may occur from time to time and that we are not liable to you in respect of any claims for such errors.
(d) If, at the time of an Eligible Purchase, you have not specified the Charity that is to receive your contributions or you have nominated us to determine which Charity is to receive contributions, then:
(i) we will determine, in our discretion and from time to time, which Charity receives the Contribution in respect of your Eligible Purchase, which may depend on any statements we have made to the public or you in respect of a period (but we are not bound by any such statements to the extent the law permits); and
(ii) The Charity that we determine under paragraph (i) above will be considered the ‘Nominated Charity 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.
(e) Despite the above, we allow Merchants to decide whether they are an Exclusive Merchant (which refers to a Merchant who gets to choose the Charities that it wants contributions to be paid to), so if you make a purchase with an Exclusive Merchant and your Nominated Charity is not one of the Charities that the Exclusive Merchant has also nominated to receive contributions, then your purchase will not be an Eligible Purchase.
(f) While we have endeavoured to design the Website/App on the basis that the Website/App will only display non-Exclusive Merchants and Exclusive Merchants whose chosen Charities include your Nominated Charity (so that you know when a purchase will be an Eligible Purchase and contribution will be paid to your Nominated Charity), there may be circumstances where Exclusive Merchants are displayed in the Website/App and your Nominated Charity is not one of the Charities they have selected to receive contributions (including where you have recently changed your Nominated Charity and the Website/App has not updated to reflect that change or due to failures in our systems). To the extent the law permits, you release us, any Service Provider (including Fidel) and any Payment Card Network, from any liability for allowing Merchants to be displayed in the Website/App where your purchase with them does not lead to a contribution being paid to your Nominated Charity.
3.2 How the amount of the Contribution is calculated
(a) The amount of any Contribution that we may make in respect of your Eligible Purchase will be calculated in accordance with the Merchant Agreement, which will generally be determined by multiplying the Contribution % to the Price.
(b) The Contribution % will generally be the % displayed in the Website/App in respect of the relevant Merchant (which at the date of these T&Cs is generally the percentage displayed in the Website/App or any replacement term used in the Website/App). However, for the avoidance of doubt, the Contribution % does not include any discount %, rather that % relates to any discounts the Merchant may choose to provide you for purchasing the Merchant’s products if your purchase with them is an Eligible Purchase). We endeavour to ensure that the relevant percentage specified in the Website/App equals the Contribution % that we are legally entitled to charge the Merchant under the Merchant Agreement. However, if our Merchant Agreement provides for a different Contribution % to that displayed in the Website/App, the Contribution % provided for in the Merchant Agreement will determine the amount of any Contribution to be paid based on the Price.
3.3 When Contributions are paid
(a) We only pay a Contribution to the Nominated Charity if we receive payment from the Merchant of the corresponding amount plus the other fees we charge to the relevant Merchant. That is, we do not guarantee that the Contribution will be paid to the Nominated Charity if we are not paid by the Merchant.
(b) We will pay the Contribution to the Nominated Charity in accordance with our agreement with the relevant Nominated Charity, which generally provides for payment to be made within 15 days of the end of the month in which we receive the corresponding payment from the Merchant.
3.4 Purchases from Merchants
(a) As we are merely a technology service provider, you acknowledge that the Merchant is solely responsible for all transactions with you, including in respect of the quality and Price of any products you have purchased and managing any disputes with you (including in respect of any refunds).
(b) We are not in any way liable for any claims made by you in connection with any Eligible Purchase (or any other purchase of products from a Merchant) or any failure on the Merchant’s part to adhere to any agreement with you or any applicable laws (such as consumer guarantees).
(c) A purchase made by you will not be considered an ‘Eligible Purchase’ if it is not a retail purchase, and any cash withdrawal, cash advance, card check transaction, instant loan or similar transaction will not be considered an ‘Eligible Purchase’.
(d) You agree not to raise any claims against us, any Service Provider nor any Payment Card Network, nor seek to make us, any Service Provider or any Payment Card Network liable in connection with any dispute that you have with a Merchant in respect of any purchase you have made with them.
3.5 Payment methods
(a) At the time these T&Cs were adopted, our systems may only be able to match purchases you have made with Merchants by reference to any Visa or Mastercard details you have expressly notified to us via the relevant part of the Website/App for that purpose (which is referred to as the ‘Eligible Payment Method’ in these T&Cs and, at the date these T&Cs were adopted, is under the ‘Linked Cards’ part of the Website/App).
(b) If you make a purchase with a Merchant via a means other than the Eligible Payment Method, then no contributions will be made in respect of your purchase with the Merchant. That is because we can only match your purchases with the Eligible Payment Method of our Merchants where you have made the purchase with the approved Eligible Payment Method advised to us via the Website/App at the time of the purchase.
(c) Please note that we do not process payments in respect of Eligible Purchases (or any other purchase you make with a Merchant), rather any payments for the goods, services or other products of a Merchant will be processed by (or on behalf of) the Merchant. Despite the Merchant facilitating payment in respect of any purchases you make with them, we require details of your Eligible Payment Methods so that we can match your purchases with the Merchant to determine whether an Eligible Purchase has occurred and to link any Eligible Purchase you have made to your Nominated Cause to facilitate the payment of a Contribution to them in respect of your Eligible Purchase.
(d) We will keep the details of your Eligible Payment Methods confidential and will only disclose them to the extent required to give effect to this Agreement, to our Service Providers, our Cause Agreements, Merchant Agreements or as otherwise required by law. You may delete details of your Eligible Payment Methods via the Website/App, but such deletion should not be taken as an agreement on our part to permanently erase such Eligible Payment Methods (unless you specifically request this in writing and we confirm same), as we may require details of your Eligible Payment Methods to verify Eligible Purchases you have made in the past or assist in resolving any dispute with you, Merchants or Causes. However, if you want to opt out of transaction monitoring on your cards, then please notify us in writing and we will do so where required by law or any schemes relating to transaction monitoring by which we are bound.
(e) We currently use Fidel and the Payment Card Networks (including Visa, Mastercard, and American Express) to monitor card transactions for your participation in our program and Website/App. Your agreement to the various P4P Terms & Conditions (T&Cs) authorises Fidel and the Payment Card Network to monitor the transactions made with your registered Linked Card at participating merchants and Merchants to confirm Eligible Purchases. The data collected from Fidel includes your registered card identifier, merchant/Merchant’s location, transaction date/time and amount.
(f) By registering a payment card in connection with transaction monitoring (including by specifying a Linked Card via the Website/App), you authorise us to share your payment card information with Payment Card Networks (including Visa, Mastercard and American Express) so they know you have enrolled. You authorise the Payment Card Networks to monitor transactions on your Linked Card(s) to identify Eligible Purchases in order to determine whether you have qualified for or earned an offer on your Linked Card, and for Payment Card Networks to share such transaction details with us and participating merchants/Merchants to ascertain whether an Eligible Purchase has been made and to enable your Linked Card offer(s) and provide offers that may be of interest to you. You may opt-out of transaction monitoring on the Linked Card(s) you have registered by navigating to your settings menu to remove your Linked Card(s).
(g) We may in our sole discretion, remove any Linked Card or refuse any request of a Linked Card, if you attempt to link a card that falls outside the Eligible Payment Method, including but not limited to prepaid cards of any kind.
(h) We are not under any obligation to determine the eligibility of any card prior to you making a link request pursuant to this agreement or via the Website/App, and we and the Service Providers shall have the right to remove any such card from eligibility at any time and for any reason. Not all Visa, MasterCard, and American Express cards are eligible for registration as a Linked Card (including PIN based purchases on debit cards. Debit transactions should be put through as a credit and/or authorised). Visa, MasterCard, and American Express corporate cards, Visa, MasterCard, and American Express purchasing cards, non-reloadable prepaid cards, government-administered prepaid cards (including EBT cards), healthcare (including Health Savings Account (HSA) or Flexible Spending Account (FSA) or insurance prepaid cards, Visa Buxx, and Visa-, MasterCard-, and American Express- branded cards whose transactions are not processed through the Visa payment system, MasterCard payment system, and/or American Express payment system are not Eligible Payment Methods.
3.6 Reporting
As part of our operations, we may provide you with reports or notifications from time to time (whether via the Website/App, by email or otherwise) advising you of matters such as the details of your Eligible Purchases and the Contributions that have been made in respect of your Eligible Purchases, the Merchants who funded those Contributions and other matters. In this regard:
(a) Despite any indications in such reports or notifications, each Contribution will be paid to the Nominated Charity in accordance with the Charity Agreement with them (so payment may not have been made at the time you receive the report or notification); and
(b) If you have any queries or concerns with any reports or notifications sent to you by us, please contact us via our Website.
3.8 EDMs
(a) By creating an Account, you agree that we (or our affiliates) may send you EDMs as part of the normal business operation of your use of the Website/App.
(b) You agree that neither us nor our affiliates are required to include an unsubscribe message/option in such EDMs. You also agree that you cannot opt-out from receiving EMDs via the Website/App (although you can opt-out of our email messages (nor can you opt-out of messages or notifications regarding transactions relating to Eligible Purchases or Contributions. These communications are important for your experience. If we allow you to opt-out of any EMDs or other notification, you acknowledge that opting out of may impact your use of the Website/App.
3.9 Promotions
(a) Where we display Promotions to you, the Merchant or Charity to whom the Promotion relates is solely responsible for the fulfilment and the defining of any Promotions offered to you. We are not liable for any offers or other matters relating to a Promotion.
(b) You acknowledge and agree that at the time these T&Cs are adopted, the Website/App has limited functionality and therefore any Promotions displayed in the Website/App that relate to in-store or other discounts may not function as displayed or intended, the Merchant must and is solely responsible for the fulfilment and defining of the Promotions made to you.
(c) Where unclear, you must seek the Merchant’s written confirmation that it will honour any discounts displayed in the Website/App prior to making any purchase with them, as we do not guarantee that any discounts will be honoured by the Merchant.
(d) We may remove Promotions from the Website/App or our other marketing channels once the agreed period for any Promotions expire or if we receive complaints from Members or others in respect of the Promotions.
(e) We may create promotional codes that may be redeemed for features or benefits related to the Website/App and/or a Merchant or Charity’s products, subject to any additional terms that are established on a per promotional code basis (Promo Codes). You agree that Promo Codes:
(i) must be used for the intended audience and purpose, and in a lawful manner;
(ii) are not valid for cash, may expire prior to your use and may be disabled by us at any time for any reason without liability;
(iii) may not be duplicated, sold or transferred in any manner, or made available to the general public;
(iv) are only valid for redemption with the relevant Charity or Merchant to which they relate and are always subject to any additional conditions imposed by the relevant Charity or Merchant to which they relate; and
(v) may only be used pursuant to the specific terms that we or the relevant Merchant or Cause establish for such Promo Code.
(f) We reserve the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other member in the event that we reasonably determine or believe that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or these T&Cs.
3.10 Reviews or feedback and Your Content
We may permit you from time to time to make available to us through the Website/App content or information in respect of a Merchant or Charity. which may include feedback, reviews or other material (Your Content). By providing us with Your Content (including by submitting Your Content via the Website/App), you:
(a) must ensure that Your Content is true, accurate and not misleading (including by way of omission) and is not otherwise defamatory, libellous, unlawful, obscene or otherwise in breach of Our Policies, as determined in our absolute discretion;
(b) grant us an irrevocable, perpetual, royalty-free, transferrable licence to use, copy, modify, create derivative works of, distribute, publish, display or otherwise exploit in any manner Your Content in all formats and channels we see fit, without reference or notice to you;
(c) represent and warrant that you are the sole and exclusive owner of (or otherwise have all rights, licences and agreements required to grant us the licence to use) Your Content as contemplated by these T&Cs;
(d) represent and warrant that the provision of Your Content and any use of Your Content by us does not infringe any third party’s Intellectual Property Rights, any obligations in respect of privacy or any other laws; and
(e) acknowledge that we may remove Your Content from the Website/App at any time and for any reason, but that we are not obliged to review or otherwise consider Your Content.
4. ACKNOWLEDGEMENTS AND OTHER OBLIGATIONS
4.1 Your Account
You acknowledge and agree at all times that:
(a) in order to use the Website/App or receive most of our services, you must register for and maintain an active personal member Account;
(b) you must be a natural person who is at least 18 years of age to create an Account or to use the Website/App and you may only possess one Account (unless we agree otherwise in writing);
(c) upon creating an Account, you agree to be bound by this Agreement and you expressly consent to us handling your personal information in accordance with our privacy policy and applicable laws;
(d) you must keep your information relating to your Account (including any Eligible Payment Methods) accurate, complete and up-to-date and any failure of you to do so may result in, among things, your purchases with a Merchant not being Eligible Purchases and us not making contributions to your Nominated Charity; and
(e) you are responsible for all activity that occurs under your Account and you agree to maintain the security and secrecy of your Account username and password at all times.
4.2 General acknowledgements
You acknowledge and agree at all times that:
(a) the Website/App and any of our other products or services are provided ‘as is’ and ‘as available’ and we provide no assurances that your access to the Website/App will be uninterrupted or error free;
(b) the Website/App (or any other material made available to you by us) may be made available or accessed in connection with third party services and content (including advertising or where you create an Account via these third parties, such as Google or Facebook) that we do not control, different terms or policies may apply to your use of such third party services and content and we do not endorse (nor are we liable for) any such third party services or content;
(c) further terms or conditions may apply to certain features of the Website/App or any of our other services or products (or any part of them), such as policies for a particular Promotion, requirements for selecting the Charities that you may want contributions to be made to and limits on Eligible Purchases, and such further terms and conditions are in addition to (and form part of) these T&Cs for the relevant purpose and will prevail over any inconsistent provisions in these T&Cs unless specified otherwise;
(d) we provide marketing and other services to Merchants and Charities, Merchants may pay fees to us (in addition to an amount representing any Contribution that may be made) and those fees are generally determined as a percentage of the Price (as well as other fees being payable for additional services we offer Merchants);
(e) some Merchants may operate under a franchise model, whereby individual franchisees may be Merchants whereas other franchisees in the network may not be Merchants, so you must ensure that the relevant business that you are purchasing products from is a Merchant for the purposes of these T&Cs prior to making any purchase that you consider is an Eligible Purchase;
(f) we may have agreements with Intermediaries and Intermediaries may receive fees or commissions from Merchants;
(g) if a Merchant is an Exclusive Merchant, the Nominated Charity will only receive a Contribution where the Exclusive Merchant has nominated it as one of the Charities that it will make contributions to and where you have also nominated an Charity as a Nominated Charity at the time payment for the Eligible Purchase is processed by our systems, Services Providers and Payment Networks; and
(h) you must act in good faith in respect of the use of the Website/App and your dealings with us and you will cooperate with us(including providing all information and documents we reasonably require) in order to ensure you are doing so and as we may otherwise require to verify your identity and details of any Eligible Purchase or Contribution;
(i) we may restrict your access to the Website/App or any of our other services or products (or any part of them) immediately and without notice, including where we suspect that you have (or are likely to) breach these T&Cs or Our Policies, where we need to do so in order to prevent harm that may arise from such access or where it is necessary to do so in order for us to comply with any Merchant Agreement, Charity Agreement or applicable law;
(j) you must ensure that all information you have provided to us (including via the Website/App or otherwise) 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 (as we rely on you in this regard);
(k) if we restrict your access to the Website/App or any of our other services or products (or any part of them), then we may treat purchases you make during any period of such restriction as not being considered Eligible Purchases for the purposes of this Agreement;
(l) we are not a charity or not-for-profit, rather we are business that provides Marketing Services to Merchants and facilitate contributions to Charities in respect of certain purchases made with those Merchants by those who use our Website/App;
(m) despite anything in the Website/App to the contrary (including allowing you select your Charities or displaying Merchants), we are not fundraising or seeking monies for any particular charitable charity or community purpose (however described);
(n) functions and other matters relating to the Website/App may change from time to time in our absolute discretion, and it is your responsibility to ensure that you update any information contained in the Website/App (including your Eligible Payment Methods and chosen Charities) in response to such changes;
(o) if you dispute a purchase with a Merchant (including where you charge-back a payment made on a credit card), then we may not pay the contribution in respect of your purchase to your Nominated charity (as the Merchant may not pay us the monies in respect of the contribution);
(p) you will comply with Our Policies in effect from time to time and this Agreement, and we may update Our Policies by displaying the changes on our website, by notice to you or via the Website/App;
(q) we do not hold any monies received from Merchants on trust, rather the relationship between us, the Merchants, the Charities and you is purely that of independent contractors and debtor/creditor;
(r) you are responsible for obtaining access to the Website/App and all networking and hardware matters relating to such access, that you may be liable for fees or charges from your service provider if you access the Website/App from a wireless or network device and that we do not guarantee that the Website/App will be accessible on all hardware; and
(s) you may be liable for fees and charges in respect of your chosen Eligible Payment Method (including interest or transaction fees to your Payment Card Network as well as yearly or fixed fees) and we have no liability in respect of such matters, and you are not entitled to make any claim against us in connection with the above matters, to the extent the law allows.
4.3 Warranties
You represent and warrant to us, throughout the term of this Agreement (including during any onboarding or Account creation process), that:
(a) you have full power and authority to enter into this Agreement and perform all your obligations under it;
(b) all information provided to us in connection with this Agreement and your onboarding is true, correct, up-to-date and not misleading (including by way of omission);
(c) you are not relying on us making a Contribution to your Nominated Charity when making the decision to make an Eligible Purchase; and
(d) you are duly authorised to provide us with the details of any Eligible Payment Methods you have included in the Website/App, each of the Eligible Payment Methods are held by you personally (and are not of another person) and the Eligible Payment Methods are current and valid.
4.4 Intellectual Property Rights
You acknowledge and agree at all times that:
(a) any use of the Website/App by you or persons on your behalf must be strictly for non-commercial useunless we have agreed otherwise in a separate written agreement;
(b) the Website/App, all our services and content remain owned by us (or our licensors) and you obtain no rights in the Website/App or any other services or content of us, any Merchant or any Charity, rather by complying with these T&Cs and in accordance with these T&Cs you receive a limited, non-exclusive, non-sublicensable, non-transferrable and revocable licence to access and use the Website/App on your personal device solely for the purposes contemplated by these T&Cs (and any other rights are expressly reserved by us);
(c) you may not use any Intellectual Property Rights displayed in the Website/App (including any Merchant’s trademark) nor may you remove any notices relating to Intellectual Property Rights displayed in the Website/App;
(d) you must not seek to reproduce, reverse engineer, decompile, modify, prepare derivate works based upon, distribute, licence, sell, transfer, publicly display or perform or otherwise broadcast any part of the Website/App or any of our other products or services (including any materials displayed therein); and
(e) you must not charity or launch any programs or scripts for the purposes of scraping, indexing, surveying, datamining or any similar matters in respect of the Website/App or any of our services, nor may you attempt to gain unauthorised access to or impair any aspect of the Website/App or its related systems or networks.
4.5 Allocation of risk
(a) The Australian Consumer Law (or in the event a Related Entity is incorporated in another country, the consumer protection laws of that country) 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, our Service Providers, the Payment Card Networks and their respective 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 any dispute that arises with a Merchant regarding a purchase you have made with them, your breach of this Agreement (including any warranties or your obligation to comply with any third party terms), your breach of any applicable laws or your negligence. Your liability under this indemnity will be reduced proportionately to the extent that our negligence caused or contributed to the relevant claim, liability, loss, cost, charge or expense.
(c) To the extent the law permits, in no event will we, any Service Providers or Payment Card Networks 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.
5. TERMINATION
5.1 Method for termination
(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 Website/App and our systems.
(c) For the avoidance of doubt, deletion of the Website/App or your Account does not amount to termination of this Agreement.
5.2 Consequences of termination
(a) The termination of this Agreement does not prejudice any of your obligations or our rights that expressly or impliedly survive termination of this Agreement (including our rights in respect of Intellectual Property Rights) or any liability arising in respect of any past breach.
(b) If this Agreement is terminated, then your right to access the Website/App immediately creases and we will continue to pay any Contributions in respect of your Eligible Purchases made prior to the termination of this Agreement in accordance with this Agreement, the Merchant Agreement and the Charity Agreement.
6. GENERAL PROVISIONS
6.1 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 Website/App (if the functionality of the Website/App allows you to do so).
6.2 Notices
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 provided to us when created your Account or sign-up questionnaire via the Website/App. We may provide notices via those methods or via the Website/App or any portal on our website. Any reference in this Agreement to you providing ‘notice’ means a written notice.
6.3 Confidentiality
(a) Your personal and confidential information will not be disclosed except to the extent the disclosure:
(i) is required by law, court order or rules of a stock exchange;
(ii) is made to your legal or professional advisers who are bound by obligations of confidence; and
(iii) is consented to us in writing by you.
(b) For the avoidance of doubt, nothing in this clause restricts us from marketing you or your Nominated Charity in the Website/App or in connection with our marketing services provided to Merchants, nor does it prevent us from publicising any affiliation with you (if we choose to do so).
(c) In the event of a legal dispute, any proceedings, including documents and briefs submitted by either party, correspondence from a mediator, and correspondence, order and awards issued by an arbitrator, will remain strictly confidential and shall not be disclosed to any third party without the express written consent from us.
6.4 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 charities of non-performance and shall continue performance under this Agreement with the utmost despatch whenever such charities are removed or diminished. If such charities 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.
6.5 Assignment of Agreement
(a) You must not assign any of your rights or obligations under this Agreement without our prior written consent.
(b) We may assign or otherwise deal with any of our rights or obligations under this Agreement without your consent, whether such assignment is to our Related Entities or any other third party. We may, in our discretion and to the extent the law permits, elect to transfer or novate this Agreement to a Related Entity (including one based in the country in which you are located), without your consent.
6.6 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 (including by sending you a notification via the Website/App) 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.
6.7 Counterparts
Any documents forming part of this Agreement may be executed and exchanged in any number of counterparts, all of which will be taken together to constitute one and the same document.
6.8 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 of, 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.
6.9 Third Parties
Your obligations under this Agreement may confer rights for the benefit of third parties (including our officers, employees and agents, our Service Providers and Payment Card Networks) 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 provide you access to the Website/App. We may also hold those rights on trust for those persons.
6.10 Severance
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;
(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 breach of 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.
6.11 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.
6.12 Governing Law
This Agreement is governed by the laws of New South Wales and each party irrevocably submits to the non-exclusive jurisdiction of the courts of New South Wales.
6.13 Interpretation
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,
(e) and unless the context otherwise requires:
(f) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
(g) the singular includes the plural and vice versa and words importing a gender include every other gender;
(h) a reference to a clause or paragraph is a reference to a clause or paragraph of these T&Cs;
(i) 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;
(j) 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;
(k) 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
(l) 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.