General Terms

Effective Date: 29 October 2018

For the purposes of the Agreement:

  • 'The Merrier' or 'us' or 'our' or 'we' refers to The Merrier Pty Limited ACN 621 069 538 and its Related Bodies Corporate (including The Merrier Payments Pty Limited ACN 628 118 641); and
  • 'you' or 'your' refers to any person using or accessing the Platform.

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.

1. Defined Terms

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).

Agreement - These terms and conditions, the Policies and the Privacy Policy as updated from time to time and: If you are a Creator – the Creator Terms; If you are a Cause – the Cause Terms; If you are a Brand – the Brand Terms; and If you are a Buyer – the Buyer Terms.

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.

Privacy Policy - The Privacy Policy available at https://www.themerrier.com/privacy-policy

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.

2. Changes to this Agreement

(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.

3. Notices

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.

4. Are you permitted to use the Platform?

(a) You may only register an Account if:

  • (i) You are 18 years of age or older and have the capacity and requisite authority to be contractually bound in accordance with this Agreement;
  • (ii) You are more than 13 years of age but not yet 18 years of age (Minor) you are only permitted to access and use the Platform through an account owned by a parent or legal guardian and only with their permission. If you are a Minor, by accessing or using the Platform, you represent and warrant that you have the permission of your parent or legal guardian to use their Account. Parents and legal guardians agree and acknowledge that The Merrier will not verify whether the Minor holds your authority as required and bears no responsibility or liability in connection with the Minor accessing and using the Platform;
  • (iii) You are a company or other legal entity, you have the authority from the company or other legal entity to create the Account and bind the company or other legal entity to this Agreement; and
  • (iv) Subject to clause 4(a)(iii), you are creating the Account on your own behalf and not on behalf of anyone else.

(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:

  • (i) Confirmation that Minors have the authority of their parents or legal guardians to use their Account (as described above) or confirmation that you have the authority to bind the company or legal entity on whose behalf you created the Account; and
  • (ii) Forms of government issued identification confirming identity and age.

(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).

5. Your Account obligations

(a) You must comply with the following obligations in relation to your Account:

  • (i) Ensure all your details (including in respect of financial details required to process payments) in connection with your Account are maintained up-to-date with any changes to those details recorded;
  • (ii) Only register one Account unless otherwise agreed in writing with The Merrier;
  • (iii) At all times maintain the confidentiality of your password and do not disclose them to any third party;
  • (iv) Immediately notify The Merrier if you know or suspect that your password or other confidential Account information has been stolen or disclosed to any unauthorised third party;
  • (v) Do not request any confidential information from another Member in relation to their Account;
  • (vi) Do not allow any third party to access your Account or transfer your rights to that Account to any third party;
  • (vii) Ensure that you sign out of your Account at the end of each session;
  • (viii) Ensure that your use of the Account does not knowingly or unknowingly cause a security risk to the Platform;
  • (ix) Do not create or register your Account using a robot or other electronic or automated means;
  • (x) Ensure all information provided in connection with the Account is accurate, complete and not deceptive or misleading in relation to your identity or any other matter; and
  • (xi) Not use your Account or the Platform in any way which will bring or has the potential to bring The Merrier (in its reasonable opinion) into disrepute.

(b) You are fully responsible and bear all liability for all activities which occur using your Account.

6. Downloading the application to use the Platform

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.

7. Availability and Use

(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:

  • (i) Restrict access, cancel, modify, suspend, terminate, deactivate or discontinue the operation of the Platform or your access to the Platform or your Account at any time. This may include undertaking any of these actions in relation to certain jurisdictions or geographical regions and not others or in relation to specific Products, Members or other activities undertaken on the Platform. Some examples of when this may occur includes operational or maintenance measures, legal or regulatory reasons, the introduction of new services or enhancements, security reasons or storage reasons;
  • (ii) Restrict access to certain aspects of the Platform subject to qualification or verification procedures, the requirement to enter into additional terms and conditions or other factors as determined by The Merrier from time to time;
  • (iii) Make updates, enhancements, modifications, improvements to the Platform and services provided in connection with it;
  • (iv) Limit the functionality of your Account or access and use of your Account and the Platform at any time, for any reason;
  • (v) Take any steps in connection with the operation of the Platform which are required to comply with laws, approvals, authorisations or the requirements of any governmental authority or to protect the security, operation or The Merrier Intellectual Property Rights including in the Platform;
  • (vi) Take any action permitted at law in relation to the Platform, the use of and access to it;
  • (vii) May request further information in respect of any alleged infringement described in a notice provided in accordance with clause 13.3;
  • (viii) May take any steps or actions taken in respect of an alleged Infringement of Intellectual Property Rights notified in accordance with clause 13.3 in the absolute discretion of The Merrier – such action may include but is not limited to: deletion of the allegedly infringing material, suspension or termination of Accounts registered by Members who display infringing material or who we suspect display infringing material;
  • (ix) Translate or arrange translations (including by software or other translation service providers) of the Platform Content but makes no warranties or representations as to the completeness, reliability, accuracy or appropriateness of the transaction;
  • (x) Upload, communicate or post The Merrier Content to the Platform; and
  • (xi) Is permitted, without the provision of any advance notice to amend, delay or delete the Member Content if it considers (in its absolute discretion) that the Member Content is or is likely to be in breach of this Agreement.

(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.

8. Member acknowledgement

(a) You understand, agree and acknowledge that:

  • (i) The Merrier is a Platform service only which provides an ecosystem for its Members to inhabit, connect and interact. In providing the service of this ecosystem, The Merrier is not a broker or financial institution, charitable organisation, seller, reseller, supplier or manufacturer of Products, agent, trader or promoter of fundraising appeals, insurer for any user of the Platform;
  • (ii) The Merrier is not party to any legally binding arrangement between any Members. The Merrier is not responsible for and disclaims any liability in connection with any claims, disputes, allegations or loss arising directly or indirectly between Members or any of them;
  • (iii) Subject to the terms of this Agreement, all information and Member Content, Products or Fundraising Appeals posted on the Platform by Members is for information purposes and is not approved or verified by The Merrier;
  • (iv) The Merrier makes no representations or warranties, guarantees or certifications in relation to any matter concerning a Member, the Member Content, Products or Fundraising Appeal posted on the Platform by Members, including but not limited to suitability, reliability, compliance with laws, approvals, authorisations or the requirements of any governmental authority or that a Member is appropriately registered (if required); and
  • (v) No endorsement (direct or indirect) is given or may be implied as having been given by The Merrier in relation the Members, Member Content, Products or Fundraising Appeals.

9. Platform Fees and Payments

(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:

  • (i) The Merrier or associated third party payment service providers may verify your payment information and methods including by authorising a payment in the relevant currency. These payments will only be for nominal amounts to confirm the payment method;
  • (ii) Third party payment service providers may charge additional fees in connection with Platform transactions for which The Merrier disclaims all responsibility and liability;
  • (iii) Fees may be required to be converted to different currencies depending on where the Platform is accessed or used – the currency conversion will be undertaken by The Merrier in accordance with the currency conversion rate determined by it or by the third party payment service providers; and
  • (iv) The Merrier may round up or down payments or Fees in order to arrive at the relevant closest unit which may be commercially transacted for that particular currency.

10. Third party websites or services

(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.

11. Member Content

(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:

  • (i) You are solely responsible for the Member Content;
  • (ii) You hold or own all rights (including all necessary consents, approvals and releases) required to upload, post or communicate the Member Content and to grant the rights to the Member Content in accordance with this Agreement;
  • (iii) The use of the Member Content in connection with the Platform or as described in this Agreement does not infringe the Intellectual Property Rights or other personal, confidentiality or property rights of The Merrier or a third party;
  • (iv) You must ensure that any person who is identified in the Member Content has consented to the use of the Member Content in accordance with the terms of this Agreement;
  • (v) You do not, through your use of the Member Content, violate or conflict with the rights of The Merrier or any third party or any commitment with The Merrier or any third party;
  • (vi) Your Member Content complies with all laws, approvals, codes, guidelines authorisations or the requirements of any governmental authority;
  • (vii) Your Member Content is not - misleading or deceptive, fraudulent, defamatory, objectionable, offensive, pornographic, unlawful, racist, perverse, derogatory of any person or group on any basis (including gender, sex, sexual orientation, religion, nationality, disability, illness or disease), violent, harassing, obscene or discriminatory;
  • (viii) Your Member Content does not breach this Agreement;
  • (ix) Your Member Content does not - promote illegal activities (including terrorism, drugs, violence or hate based attacks), the trafficking or sale of ammunition, guns or other weapons or human trafficking; and
  • (x) Your Member Content is – complete, accurate, honest and reliable.

12. Member obligations

(a) You confirm to The Merrier, represent and warrant that, without limiting this Agreement, you will:

  • (i) Comply with all laws, approvals, codes, guidelines authorisations or the requirements of any governmental authority in connection with the use of your Account and the Platform, any transactions undertaken through or using the Platform and any associated Taxation obligations;
  • (ii) Comply with all laws, approvals, codes, guidelines authorisations or the requirements of any governmental authority in connection with the creation, communication, posting or uploading of Member Content;
  • (iii) Comply with all laws, approvals, codes, guidelines authorisations or the requirements of any governmental authority in connection with any transactions undertaken through or using the Platform, including without limitation, all applicable export and import laws and compliance with any export controls required by any governmental authority.
  • (iv) Comply with all reasonable requests of The Merrier to provide information or to take any steps reasonably required in relation to the use of the Platform and the rights and obligations in this Agreement and
  • (v) Ensure all information you provide in connection with your use of and access to the Platform is not outdated, fraudulent, inaccurate or incomplete.

(b) You confirm to The Merrier, and represent and warrant that, without limiting any other term in this Agreement, you will not:

  • (i) Breach this Agreement;
  • (ii) Introduce any Harmful Code through your use and access to the Platform or uploading, communicating or posting of Member Content;
  • (iii) Use or upload content which is misleading or deceptive, in accurate, incomplete or untrue;
  • (iv) Distribute uninvited commercial or other messages through the Platform or engage in spamming;
  • (v) Misrepresent the nature of the Platform or The Merrier being an endorser or approved of Products, Brands, Causes, Creators, campaigns or Fundraising Appeals;
  • (vi) Suggest or represent an affiliation with The Merrier or another Member which does not in fact exist;
  • (vii) Offer, as a Brand, any Product that you do not yourself own or have permission to make available through the Platform;
  • (viii) Infringe any Intellectual Property Rights or other rights of The Merrier or the Members including such that the use, communication, uploading or posting of the Member Content on the Platform is an infringement of the rights of a third party (including but not limited to Intellectual Property Rights);
  • (ix) Use the Platform for any unlawful activities including for the support, creation or distribution of terrorist or hate based material;
  • (x) Undertake any activities which may be unlawful through your use of the Platform (including in relation to the Member Content) or which are not expressly permitted by this Agreement including but not limited to undertaking acts of terror, engaging in discrimination, manufacturing or dealing in weapons, reverse engineering or seeking to reverse engineer, decompile or disassemble the Platform or associated code, circumvent or seek to circumvent any technology or security measure adopted by The Merrier;
  • (xi) Use any automated means of collecting information from the Platform (eg robots);
  • (xii) Knowingly or unknowingly by way of any act or omission bring The Merrier into disrepute or which has the potential of bringing The Merrier into disrepute;
  • (xiii) Engage in offensive, illegal or inappropriate behaviour including sexual behaviour or behaviour which is indecent, discriminatory, harassing, defamatory, offensive or in connection with your use of the Platform;
  • (xiv) Engage (except to the extent expressly permitted in this Agreement) in any of the following conduct in relation to the Intellectual Property Rights of another Member or The Merrier (including but not limited to the Platform Content) - modify, sell, distribute, lease, perform, broadcast, adapt, distribute, transfer, create a derivative work of, copy, communicate, assign, sublicense, reverse engineer; or transfer;
  • (xv) Offer any lottery, giveaway or competition on the Platform without the prior consent of The Merrier and subject to any further terms and conditions The Merrier may require including but not limited to compliance with all laws and the taking of full responsibility for the conduct of the activity;
  • (xvi) Engage in any conduct which may or does adversely impact the operation of the Platform;
  • (xvii) Use the Platform for any purpose not expressly permitted by The Merrier and this Agreement; and
  • (xviii) Breach any third party's rights.

13. Intellectual Property Rights

13.1 General

(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.

13.2 Licences

(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.

13.3 What happens if there is an infringement?

(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
Australia

admin@themerrier.com

together with the following information:

Your notification to us should provide the following information:

  1. Detailed description Intellectual Property Rights being infringed, how they are being infringed and examples/exhibits of the infringement;
  2. Description of where the infringing works are situated on the Platform;
  3. Your contact details including email, phone number and address;
  4. Your position description if you are providing the notice on behalf of a company or other legal entity;
  5. A signed notice by you that:

    • you have a good faith belief that the disputed use of the identified material is not authorised by the owner of the Intellectual Property Rights, its agent, or the law;
    • the information included in the notice is accurate and that you are the owner of the Intellectual Property Rights, or authorised to act on behalf of the owner, of the Intellectual Property Rights.

(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.

14. Limitation of Liability

(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:

  • (i) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO YOUR ACCOUNT OR THE PLATFORM;
  • (ii) THE USE OF ANY THIRD PARTY PAYMENT SERVICES OR APPLICATIONS IN CONNECTION WITH THE PLATFORM OR THE TRANSACTIONS ARISING FROM ITS USE;
  • (iii) LEGALITY, ACCURACY, SUITABILITY OR ANY MEMBER CONTENT, FUNDRAISING APPEAL OR PRODUCT;
  • (iv) ANY CLAIMS, DISPUTES, ALLEGATIONS OR LOSS ARISING DIRECTLY OR INDIRECTLY BETWEEN MEMBERS OR ANY OF THEM;
  • (v) THE USE OF, ACCESS TO AND TRANSACTIONS UNDERTAKEN USING THE PLATFORM SERVICE;
  • (vi) CURRENCY CONVERSION OR CURRENCY ROUNDING IN CONNECTION WITH PAYMENTS OR FEES ASSOCIATED WITH THE USE OF OR ACCESS TO THE PLATFORM;
  • (vii) OUR DISCONTINUATION OF THE PLATFORM OR CHANGES TO THE SERVICE OFFERED BY THE PLATFORM;
  • (viii) ANY DOWNTIME OF THE PLATFORM FOR ANY REASON INCLUDING BUT NOT LIMITED TO AS A RESULT OF POWER OUTAGES, SYSTEM FAILURE OR OTHER INTERRUPTIONS;
  • (ix) INTERACTIONS, COMMUNICATIONS OR TRANSACTIONS ENTERED INTO BETWEEN THE MEMBERS OR ANY OF THEM;
  • (x) COMPUTER VIRUSES OR ANY HARMFUL CODE; OR
  • (xi) ANY UNAUTHORISED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, CORRUPTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR DATA OR INFORMATION.

(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:

  • (i) As a result of your rights under the Competition and Consumer Act 2010 (Cth); or
  • (ii) In the case of a warranty or liability that the law says we cannot exclude,

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:

  • (i) All Member Content is borne by the relevant Member creating and/or posting and uploading that Member Content;
  • (ii) The supply of Products including compliance with all Product warranties, replacement and repair of Products and compliance with consumer guarantees is borne by the Brands;
  • (iii) The conduct, outcomes and compliance with the Fundraising Appeals is borne by the Causes;
  • (iv) The purchase of Products (except in relation to consumer guarantees which are unable to be excluded by the Brand) and/or making of contributions to Causes is borne by the Buyer; and
  • (v) Their conduct of campaigns and endorsement of Brands and selection and affiliation with Causes is borne by the Creator.

15. Warranties and representations

(a) In addition to any other warranties or representations in this Agreement, you make the following warranties and representations:

  • (i) You meet the requirements set out in this Agreement including in respect of the criteria to be satisfied to enter into this Agreement (age, authority and capacity);
  • (ii) You are the sole owner of the Member Content (including Intellectual Property Rights) or you have the rights to grant the licences to the Member Content as set out in this Agreement and all permissions, releases, licences or consents necessary for the use of that Member Content on the Platform have been obtained;
  • (iii) The Member Content does not infringe the rights of any third parties (including Intellectual Property Rights); and
  • (iv) You have not entered into any agreement or arrangement with any third party contrary to the obligations in this Agreement.

(b) DESPITE ANY OTHER TERM IN THIS AGREEMENT, YOU AGREE AND ACKNOWLEDGE THAT THE MERRIER DOES NOT WARRANT OR REPRESENT:

  • (i) THE COMPLIANCE WITH LAWS, APPROVALS, CODES, GUIDELINES AUTHORISATIONS OR THE REQUIREMENTS OF ANY GOVERNMENTAL AUTHORITY OF ANY MEMBER, THE MEMBER CONTENT, CONDUCT OF ACTIVITIES ON OR THROUGH THE PLATFORM INCLUDING FUNDRAISING APPEALS, AND CAMPAIGNS;
  • (ii) THE COMPLETENESS, TRUTHFULNESS, OWNERSHIP, ACCURACY OR AVAILABILITY OF THE INFORMATION OR DATA OBTAINED FROM USE OF ANY ACCESS TO THE PLATFORM;
  • (iii) THAT YOU WILL BE ABLE TO ACCESS THE PLATFORM AT ALL TIMES OR THAT YOUR USE OF THE PLATFORM WILL NOT CORRUPT YOUR DATA OR MEMBER CONTENT;
  • (iv) THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE USE OF THE PLATFORM;
  • (v) THE PLATFORM WILL BE COMPATIBLE WITH ANY OTHER SYSTEMS YOU RUN;
  • (vi) THAT THE INTELLECTUAL PROPERTY RIGHTS IN THE PLATFORM ARE VALID AND DO NOT INFRINGE THE RIGHTS OF ANY THIRD PARTIES;
  • (vii) THAT YOUR ACCESS TO THE PLATFORM WILL BE CONTINUOUS, WITHOUT INTERRUPTION AND FAULT FREE; AND
  • (viii) THAT THE PLATFORM WILL MEET ANY USER'S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE, ERROR OR VIRUS FREE.

16. Release and Indemnity

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).

17. The Merrier Payments

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.

18. Insurance

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.

19. No subcontracting

Neither the Cause, Brands nor Creators are permitted to subcontract their obligations under this Agreement.

20. Termination

(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:

  • (i) By giving you twenty-one (21) days notice to your last provided email address; or
  • (ii) Immediately without prior notice:

    • (A) If we determine we will no longer provide the Platform as a service (for any reason);
    • (B) In order to comply applicable laws, codes, guidelines, approvals, authorisations or requirements of any governmental authority;
    • (C) If continuing to provide the Platform would give rise to a security or other risk in our reasonable opinion;
    • (D) In order to protect the reputation, property (including Intellectual Property Rights) of The Merrier;
    • (E) If you materially breach your obligations under this Agreement which has not been remedied after receiving notice from us or continually breach any obligations under this Agreement; or
    • (F) If you fail to comply with applicable laws, codes, guidelines, approvals, authorisations in connection with your use of your Account and the Platform.

(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.

21. What is the effect of termination?

(a) Together with any other relevant terms in the Member Terms, after termination: General

  • (i) All your rights under this Agreement are terminated on the termination of this Agreement (except for those stated to survive termination, if any);
  • (ii) If The Merrier terminated your Account, you are not permitted to access the Platform through a new or third party's Account without the express prior written permission of The Merrier;
  • (iii) As and from termination you remain responsible for all fees and charges you have incurred through the date of termination, including fees and charges for in-process tasks completed after the date of termination;
  • (iv) You are not entitled to download or request the provision of any of your Member Content;
  • (v) The Merrier may pursue any additional or alternative remedies provided by law;
  • (vi) You will continue to be bound by the provisions of clauses 7(d), 8, 9, 10, 12-17 (inclusive), 21, 23-25 (inclusive);
  • (vii) Termination is without prejudice to any rights we may have as a result of breach of this Agreement by you;
  • (viii) To the extent permitted at law, The Merrier may refund any fees or payments received by it in its absolute discretion but is not required to do so; and
  • (ix) You agree and acknowledge that The Merrier will not be liable to you in connection with any Claim suffered by you on any third party as a result of termination of this Agreement.

22. Dispute Resolution

(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.

23. What do people think about the Platform etc

(a) The Members agree and acknowledge that:

  • (i) Any public reviews or ratings posted or made in respect of the Platform, activities undertaken on or in conjunction with the Platform (including Product sales, campaigns and Fundraising Appeals) and other Members will be owned by The Merrier;
  • (ii) May not be verified by The Merrier and do not reflect the opinions of The Merrier;
  • (iii) Reviews or ratings may be misleading and deceptive;
  • (iv) Must reflect the actual honest opinions of Member and must not be written or provided on behalf of a third party;
  • (v) Any review must comply with this Agreement and for that purpose shall be considered Member Content;
  • (vi) You hereby assign to The Merrier all Intellectual Property Rights worldwide in your review (as and from the date it was create) and you may not be attributed as an author of the review. The Merrier may use the review in any matter it sees fit in its absolute discretion. You must, at our reasonable request, sign all documents required to perfect or document the assignment in this clause.

24. Interpretation

24.1 General

In this Agreement:

(a) reference to:

  • (i) One gender includes the others;
  • (ii) The singular includes the plural and the plural includes the singular;
  • (iii) A person includes a body corporate;
  • (iv) A party includes the party's executors, administrators, successors and permitted assigns; a thing includes the whole and each part of it separately;
  • (v) A statute, regulation, code or other law or a provision of any of them includes:
  • (vi) Any amendment or replacement of it; and
  • (vii) Another regulation or other statutory instrument made under it, or made under it as amended or replaced.

(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.

25. Miscellaneous Provisions

25.1 Governing law

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.

25.2 Confidentiality

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.

25.3 Force Majeure

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.

25.4 Rights cumulative

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.

25.5 Inconsistency

(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.

25.6 Consents

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.

25.7 Further steps

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.

25.8 Legal costs

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

25.9 Severability

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.

25.10 Assignment

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.

25.11 Entire Understanding

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.

25.12 Relationship

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.

25.13 Waiver and exercise of rights

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.

25.14 Electronic communications

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.