For the purposes of the Agreement:
The Merrier provides its services using the Platform in accordance with this Agreement which is a legal agreement between you and The Merrier to which you are bound. By your continued access to and use of the Platform, you confirm that you are legally bound to this Agreement.
If you do not agree with the terms and conditions of this Agreement, you must immediately cease using the Platform and delete your Account.
Unless this Agreement states otherwise, the following terms have the meanings set out below:
Account - An account for the Platform (if required for a Member to use the Platform).
Buyers - Buyers who, through the Platform, purchase Products from Brands and/or contribute funds to Causes.
Brand - Supplier of Products to be offered for sale through the Platform via a Creator storefront in connection with a Creator and/or a Cause.
Brand Content - Content created by or on behalf of a Brand provided to The Merrier including for example in relation to the Creator Campaigns and for the Product directory.
Brand Creator Terms - The terms agreed between the Creator and the Brand in connection with a Creator Campaign where the Creator will act as an Endorsed Creator for the Brand.
Cause - Charities, not-for- profits or causes working with Brands and/or Creators to promote and provide information regarding their Fundraising Appeals.
Cause Content - Content created by or on behalf of a Cause communicated, posted or uploaded on the Platform (for example on the Cause's profile page) or Digital Channels in connection with a Fundraising Appeal (including the commencement and end dates of the appeal, appeal milestones and target funds to be raised).
Claim - Includes a claim, notice, demand, action, proceeding, litigation, investigation, judgment, damage Loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or Member.
Consequential Loss - Any consequential or indirect loss or damage of any form including, without limitation, loss of production, loss of use, loss of sales, loss of opportunity, loss of revenue, loss of reputation, loss of profit or loss of expected profit whether or not foreseeable.
Content - Includes but is not limited to images, audio, words, video.
Creator - Social influencer endorsing Products for sale on their storefront on the Platform and supporting Causes.
Creator Campaign - A campaign in respect of which the Endorsed Creator participates in the promotion of Brand Products in accordance with this Agreement and the Brand Creator Terms.
Creator Content - Content created by or on behalf of a Creator communicated, posted or uploaded: (a) On the Creator's Digital Channels including in relation to Causes and/or Brands; or (b) On the Platform for the Creator's Platform storefront (including but not limited to images or a bio of the Creator).
Digital Channels - Social media platforms including but not limited to Instagram, Facebook and YouTube.
Endorsed Creator - A Creator endorsed by the Brand.
Fees - Payments which are made in connection with this Agreement.
Force Majeure Event - Any cause outside the reasonable control of the affected party that could not have been prevented or avoided by that party taking all reasonable steps including but not limited to: act of God, earthquake, cyclone, fire, explosion, flood, storm, war (declared or undeclared, act of refining enemy, invasion, civil insurrection or military power, sabotage or malicious damage, terrorism, embargo, restraint or damage to property by or under the order of any government or governmental authority, strikes, blockade, lockout or other industrial dispute other than an industrial dispute that only involves the party's personnel.
Fundraising Appeal - Fundraising activities of a Cause.
General Terms - These terms and conditions (excluding the Member Terms).
Harmful Code - Any virus, disabling or malicious device or code, worm, trojan, time bomb or other harmful or destructive code, but does not include any software lock or other technical mechanism that is included to manage the proper use of any software.
Intellectual Property Rights - All rights conferred by statute, common law or in equity and subsisting anywhere in the world including but not limited to copyright, trade marks (whether registered or not), circuit layout rights, patents, patent applications, moral rights, trade names, know how, registered and unregistered designs, domain names, the right to have information kept confidential information and any other rights resulting from intellectual activity which subsist or may hereafter subsist.
Loss - Includes any loss, damage, cost, charge, liability (including tax liability) or expense (including reasonable legal fees).
Members - Buyers, Brands, Creators and Causes.
Member Content - The Brand Content, Creator Content and Cause Content.
Member Terms - The Brand Terms, Creator Terms, Buyer Terms, Cause Terms or any of them.
Minor - Described in clause 4(a)(ii) of these terms and conditions.
Platform - The website and mobile applications through which The Merrier offers its services.
Platform Content - The Member Content and The Merrier Content.
Policies - Policies available at https://www.themerrier.com from time to time.
Products - Products offered for sale through the Platform.
Related Bodies Corporate - The meaning given to it in the Corporations Act 2001 (Cth).
Taxes - Any taxes associated with your use of the Platform of any of the transactions arising out of the Platform including but not limited to value added taxes, goods and services taxes and other sales taxes. Tax and Taxation have a similar meaning.
The Merrier Content - Any content created for or on behalf of The Merrier and posted or uploaded by The Merrier to the Platform or to its Digital Channels.
The Merrier Payments - The Merrier Payments Pty Limited ACN 628 118 641.
(a) We reserve our right in our sole discretion to change the terms of this Agreement. The updated Agreement will be made available on the Platform. We will endeavour to provide notification to you in the event any updates are made to this Agreement by emailing you to the address provided by you or by notifying you using your Account on the Platform (as determined by The Merrier).
(b) Any updates to this Agreement will be effective no less than fourteen (14) days after they are made available on the Platform (unless the changes are required to comply with any law or requirements of a governmental or regulatory authority).
(c) If you do not accept the terms of any updated Agreement, you may notify us that you terminate this Agreement. By your continued access to and use of the Platform, you confirm that you are legally bound to any updated Agreement.
The Merrier may contact you in relation to this Agreement or matters pertaining to it using your last provided email address or through your Platform inbox. You agree that such communications, provided to you electronically, satisfy any legal requirement that the communication be provided to you in writing.
(a) You may only register an Account if:
(b) The Merrier will not undertake a verification of any age or identity for the purposes of permitting you to create an Account. However, we reserve our rights to verify the information provided by you (by legally available means) or to request, in our discretion, the following information from you:
(c) The Merrier disclaims all liability in connection with any verification of Member information and does not warrant or represent that if any verification is undertaken at any time, that the verification will be complete, accurate or revealing of past or potential future issues.
(d) Your Account may be created using an email address and password or through your social media accounts (as noted on the Platform).
(a) You must comply with the following obligations in relation to your Account:
(b) You are fully responsible and bear all liability for all activities which occur using your Account.
If you download and access the Platform from an application downloaded from the Apple App Store or Google Play, you must comply with the terms and conditions associated with that download (in respect of which The Merrier is not a party). The Merrier disclaims all responsibility and liability and makes no representations or warranties as to whether you will be able to successfully download the application for the Platform onto your device and whether it will work efficiently and effectively.
(a) Without limiting any other rights The Merrier may have, for any reason and without any advance notification, The Merrier may in its absolute discretion:
(b) THE PLATFORM AND PLATFORM CONTENT IS PROVIDED ON AN 'AS IS' AND ' AS AVAILABLE' BASIS. TO THE MAXIMUM EXTENT PERMITTED AT LAW, YOUR USE OF, ACCESS TO AND RELIANCE ON THE PLATFORM (INCLUDING BUT NOT LIMITED TO PURCHASING PRODUCTS, UPLOADING, COMMUNICATING OR POSTING MEMBER CONTENT (IF ANY) OR CONTRIBUTING TO A FUNDRAISING APPEAL) IS AT YOUR SOLE RISK. YOU ACKNOWLEDGE THAT SOFTWARE, BY ITS VERY NATURE, IS AN IMPERFECT PRODUCT AND HAS FAULTS, GAPS AND OTHER ANOMALIES. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU, YOUR DATA OR BUSINESS RESULTING FROM THE USE OF THE PLATFORM.
(c) ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PLATFORM IS AT YOUR OWN DISCRETION AND RISK.
(d) THE MERRIER DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES IN RELATION TO THE AVAILABILITY OR ACCESSIBILITY OF THE PLATFORM OR THAT THE AVAILABILITY AND ACCESS TO THE PLATFORM WILL MEET ANY REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE, FAULT FREE, CONTINUOUS, ERROR OR VIRUS FREE, WILL NOT CORRUPT YOUR DATA OR WILL BE COMPATIBLE WITH ANY OTHER SYSTEMS YOU RUN.
(a) You understand, agree and acknowledge that:
(a) The Fees which will apply in consideration of your use of the Platform are set out in the Brand Terms, Buyer Terms, Cause Terms and Creator Terms (as they apply to you).
(b) No refund of Fees will be provided unless expressly provided on the Platform or in this Agreement.
(c) The Fees may the varied at any time in The Merrier's sole discretion and upon reasonable notice being given to the affected Members.
(d) You agree and acknowledge that:
(a) The Merrier has no control over and bears no liability in relation to any third party websites, services or resources linked or accessible from the Platform (including but not limited to those used in connection with the payment of Fees) (Additional Services). The Merrier does not endorse any such third-party websites services, or resources and is not responsible for the accuracy, content, security, accessibility, legality, reliability, appropriateness or availability.
(b) No representation or warranty is provided by The Merrier in connection with the Additional Services. If you access the Additional Services (or are required to do so in connection with the use of and access to the Platform), it is at your sole risk and you may be required to agree to additional terms and conditions provided by that third-party in respect of which The Merrier is not a party and is in no way responsible or liable.
(c) The Merrier bears no responsibility or liability directly or indirectly in connection with your use, reliance or access to any third party websites, services or resources.
(a) If Members are permitted to upload, post and communicate their Member Content to or through the Platform, Members do so in accordance with the terms of this Agreement.
(b) In relation to the Member Content uploaded, posted or communicated by you to or through the Platform or Digital Channels in connection with The Merrier, without limiting this Agreement, you warrant and represent that:
(a) You confirm to The Merrier, represent and warrant that, without limiting this Agreement, you will:
(b) You confirm to The Merrier, and represent and warrant that, without limiting any other term in this Agreement, you will not:
(a) The Merrier and its licensors (to the extent applicable) is and remains the exclusive owner of all Intellectual Property Rights in the Platform (including all updates, enhancements, modifications thereto) and The Merrier Content.
(b) Except to the extent specifically stated in this Agreement, no licences or rights are granted to you in relation to the Intellectual Property Rights owned or licensed by The Merrier. Any goodwill generated by the use of The Merrier Intellectual Property Rights shall be for the exclusive benefit of The Merrier.
(c) To the extent that any Member becomes an owner of any updates, enhancements or modifications to the Intellectual Property Rights in the Platform, it hereby assigns those rights to The Merrier absolutely as and from their date of creation. The Member will sign any documents reasonable required by The Merrier in order to perfect or confirm this assignment.
(d) Subject to any agreement to the contrary with The Merrier you retain all ownership rights (to the extent you hold them) in the Member Content.
(a) You are granted a licence to use the Platform from The Merrier. The licence is granted on the following terms – for the term of this Agreement (subject to your continuing compliance with the terms of this Agreement), non-exclusive, revocable, non-transferable with no right to sub-licence.
(b) Subject to any rights existing at law and the rights granted in this Agreement, you must not in the absence of prior written consent from The Merrier – seek to commercialise or exploit any works or other material obtained from the Platform or use any of our trade marks or logos.
(c) During the term of this Agreement and after termination, you grant The Merrier a licence to use, adapt, modify, translate, adapt, copy, distribute, perform, publish, transmit, broadcast, stream, access, create derivative works from, commercialise and exploit the Member Content for the purpose of providing, operating, remarketing or promoting The Merrier, the Platform and its services. The licence is granted on the following terms –, non-exclusive, worldwide, royalty-free, paid up, irrevocable, perpetual, sub-licensable, transferable, surviving the term of this Agreement.
(a) If you believe there is content on the Platform which is an infringement of your Intellectual Property Rights, you should notify us of your claim by using the procedure below. We will investigate the claim and take whatever action, we determine in relation to the work or content the subject of the claim
Notification to the provided at the following address:
The Merrier Pty Ltd
Unit 45, 1 Porter Street
Byron Bay 2481
together with the following information:
Your notification to us should provide the following information:
A signed notice by you that:
(b) In the sole discretion of The Merrier if a Court determines (after all appeal avenues) that the Platform, The Merrier Content or associated Intellectual Property Rights of The Merrier are infringing the rights of a third party, The Merrier may, but is not obliged to (a) refund any prepaid fees or (b) make the changes necessary (in its reasonable opinion) so that the relevant aspects are no longer infringing. Other than the remedies detailed in this clause, The Merrier will bear no further responsibility or liability in connection with the matters described in this clause.
(a) TO THE MAXIMUM EXTENT PERMITTED AT LAW, THE MERRIER WILL NOT BE LIABLE UNDER ANY CIRCUMSTANCES (INCLUDING TO MEMBERS OR THIRD PARTIES) FOR ANY CLAIM ARISING DIRECTLY OR INDIRECTLY FROM OR IN ANY WAY CONNECT TO, THIS AGREEMENT OR THE USE OF OR ACCESS TO THE PLATFORM (INCLUDING FUNDRAISING APPEALS, CAMPAIGNS OR OTHER MEMBER CONTENT), INCLUDING BUT NOT LIMITED TO:
(b) Except as expressly provided in this Agreement and except for any condition or warranty the exclusion of which could be void or otherwise contravene the Competition and Consumer Act 2010 (Cth) or any other equivalent competition or consumer law, we disclaim all conditions, warranties, guarantees and representations, either express or implied with respect to your use of the Platform and the Platform Content, Fundraising Appeals or Products. Nothing in this Agreement purports to modify or exclude the conditions, warranties, guarantees and undertakings, and other legal rights, under the Competition and Consumer Act 2010 (Cth) and other laws which cannot be modified or excluded.
(c) Notwithstanding any other provision in this Agreement, if we are liable to you in any way, including:
our liability is limited, at our option to the re-supply of the Platform services or payment of the cost of the re-supply of the Platform services (but not including the resupply, repair or replacement of Products which will be the responsibility of the Brand).
(d) The Members agree and acknowledge that all liability and responsibility in relation to:
(a) In addition to any other warranties or representations in this Agreement, you make the following warranties and representations:
(b) DESPITE ANY OTHER TERM IN THIS AGREEMENT, YOU AGREE AND ACKNOWLEDGE THAT THE MERRIER DOES NOT WARRANT OR REPRESENT:
YOU AGREE TO RELEASE, INDEMNIFY, AND HOLD HARMLESS THE MERRIER ITS DIRECTORS OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ANY CLAIM HOWSOEVER ARISING AND IN ANY WAY (DIRECTLY OR INDIRECTLY) CONNECTED WITH THIS AGREEMENT, A CONTRIBUTION TO A CAUSE, FUNDRAISING APPEAL, THE USE OF OR ACCESS TO THE PLATFORM, YOUR ACCOUNT, ANY PRODUCTS, ANY TRANSACTIONS ARISING THROUGH OR OUT OF THE USE OF THE PLATFORM - INCLUDING BUT NOT LIMITED TO:
(a) YOUR BREACH OF THIS AGREEMENT (INCLUDING WARRANTIES AND REPRESENTATIONS) OR IMPROPER USE OF THE PLATFORM;
(b) YOUR NEGLIGENCE OR WILFUL MISCONDUCT;
(c) YOUR USE OF OR ACCESS TO THE PLATFORM AND ANY TRANSACTIONS, AGREEMENTS OR RELATIONSHIPS ARISING FROM THE PLATFORM INCLUDING AGREEMENTS BETWEEN THE MEMBERS IN CONNECTION WITH THE PLATFORM ACTIVITIES OR ANY OF THEM (FOR EXAMPLE, ACTING AS A CREATOR FOR A BRAND);
(d) ANY BREACH OF ANY CONSUMER GUARANTEES IN RELATION TO A PRODUCT INCLUDING UNDER THE COMPETITION AND CONSUMER ACT 2010 (CTH);
(e) THE COLLECTION AND REMITTANCE OF TAXES;
(f) THE COLLECTION OR REMITTANCE OF TAXES (AS REQUIRED TO COMPLY WITH LAWS) IN CONNECTION WITH THE USE OF, ACCESS TO AND TRANSACTIONS UNDERTAKEN USING THE PLATFORM SERVICE; OR
(g) YOUR BREACH OF ANY LAWS, APPROVALS, AUTHORISATIONS, CODES, GUIDELINES, REGULATIONS AND REQUIREMENTS OF A GOVERNMENT AUTHORITY OR THIRD PARTY RIGHTS (INCLUDING THE INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY).
The Members hereby authorise The Merrier Payments to collect any remit any Taxes (as required to comply with laws) in connection with the use of, access to and transactions undertaken using the Platform service. You may be required to make additional payments or other third parties if the amount of Tax remitted is not sufficient to meet your taxation obligations at law.
The Merrier recommends the Causes, Brands and Creators obtain their own insurance in connection with their use of and access or the Platform and associated transactions, agreements and interactions.
Neither the Cause, Brands nor Creators are permitted to subcontract their obligations under this Agreement.
(a) This Agreement will continue until it is terminated in accordance with its terms.
(b) The Merrier may terminate this Agreement with you by cancelling or terminating your Account:
(ii) Immediately without prior notice:
(c) The Merrier's rights of termination in this clause is in addition to any other rights of termination by The Merrier in this Agreement.
(d) You may terminate this Agreement at any time by cancelling your Account using the mechanism on the Platform.
(a) Together with any other relevant terms in the Member Terms, after termination: General
(a) Before the commencement of any litigation, a dispute in connection with this Agreement should first be sought to be resolved by mediation undertaken pursuant to the ADC Guidelines for Commercial Mediation (Guidelines) in force at the date of this Agreement administered by the Australian Disputes Centre.
(b) This clause does not prevent a party seeking injunctive relief.
(c) For the avoidance of doubt, The Merrier is not legally bound by and is not a party to any contracts which are formed between Members – for example, between Brands and Creators, Buyers and Brands or Causes and Creators. All liability in this regard is disclaimed by The Merrier and the Members release and indemnify The Merrier in respect of any Claim arising from those relationships, contractual or legal arrangements.
(a) The Members agree and acknowledge that:
In this Agreement:
(a) reference to:
(b) "Including" and similar expressions are not words of limitation.
(c) Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
(d) Headings and any table of contents or index R4 convenience only and do not form part of this Agreement or affect its interpretation.
(e) A provision of this Agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Agreement or the inclusion of the provision in the Agreement.
This Agreement is made and governed by the law of Queensland, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Queensland, Australia.
The parties to this Agreement must keep its terms confidential, except to the extent they are in the public domain, come into the possession of a party from a third party (other than in breach of this Agreement) or as required by law or a requirement of a governmental authority.
Despite any other provision of this Agreement, if a party is unable to perform or is delayed in performing an obligation under this Agreement by reason of a Force Majeure Event:
(a) That obligation is suspended but only so far and for so long as it is affected by the Force Majeure Event; and
(b) The affected party will not be responsible for any loss or expense suffered or incurred by any other party as a result of, and to the extent that, the affected party is unable to perform or is delayed in performing its obligations because of the Force Majeure Event.
Except as expressly stated otherwise in this Agreement, the rights of a party under this agreement are cumulative and are in addition to any other rights of that party.
(a) To the extent there is any conflict between these terms and conditions and the Member Terms, the Member Terms prevail to the extent of the inconsistency.
(b) To the extent there is any conflict between this Agreement and the terms and conditions of any third party service provider (required to use, access or undertake transactions via the Platform), the terms and conditions of the third party service provider prevail in respect of those third party services.
Except as expressly stated otherwise in this Agreement, a party may conditionally or unconditionally give or withhold consent to be given under this Agreement and is not obliged to give reasons for doing so.
Each party must promptly do whatever any other party reasonably requires of it to give effect to this Agreement and to perform its obligations under it.
Except as expressly stated otherwise in this Agreement, each party must pay its own legal and other costs and expenses of entering into and performing its obligations under this agreement
If any provision of this Agreement is held to be invalid or unenforceable in any relevant jurisdiction, it may be severed for the purposes of that jurisdiction without affecting the enforceability of the other provisions of this Agreement.
You may not assign your interest in this Agreement and your rights and without The Merrier's prior written consent (which may be granted or withheld in its absolute discretion). The Merrier may assign this Agreement, at its sole discretion, with 30 days prior notice to the Members. Any purported dealing in breach of this clause is of no effect.
The terms and conditions of this Agreement contains the entire agreement between The Merrier and you as to the subject matter of this Agreement. All previous negotiations, understandings, representations, warranties, and commitments regarding the subject matter are merged and superseded by this Agreement and are of no effect. No oral explanation or information provided by any party to another:
(a) Affects the meaning or interpretation of this Agreement; or
(b) Constitutes any collateral agreement, warranty or understanding between any of the parties.
None of the following relationships exist between you and The Merrier: broker, financier, partner, employee, trader, agent, franchisee, insurer or joint venturer as a result of this Agreement. The relationship between the parties established by this Agreement is that of independent contractor. No party is entitled to assume or create any obligation on behalf of another party. You are not authorised to bind The Merrier in any way.
A single or partial exercise or waiver by a party of a right relating to this Agreement does not prevent any other exercise of that right or the exercise of any other right. A party is not liable for any loss, cost or expense of any other party caused or contributed to by the waiver, exercise, attempted exercise, failure to exercise or delay in the exercise of a right.
The parties confirm that they have given their prior consent pursuant to the Electronic Transactions (Queensland) Act 2001 (Qld) for the purposes of all other matters pertaining to this Agreement.