Terms & Conditions
#Gifted
Terms & Conditions
INTRODUCTION
1. These Terms of Use (“Terms of Use”) govern your use of the Platform. By registering an Account and using the Platform, you agree to accept these Terms of Use.
2. The Platform is owned and operated by GIFTED HOLDINGS PTY LTD (ACN 674 334 582) (“HASHTAG GIFTED”, “us” or “we”).
3. In these Terms of Use, Clients and Creators are collectively and individually referred to as “users” or “you” as the context requires.
4. Your access to and use of the Platform is conditional upon your agreement to and acceptance of these Terms of Use. Each time you use the Platform , you agree to be bound by these Terms of Use. If you do not wish to be bound by these Terms of Use, do not use the Platform.
5. These Terms of Use apply to all transactions conducted on the Platform o, as well as to your access to, and use of, the Platform.
6. We may at any time change these Terms of Use. Changes will take immediate effect and may affect your ability to use the Platform. We may endeavour to notify you of any change prior to the date such change come into effect by email to the email address you provided when creating your Account, however it is your responsibility to check if there have been any changes to these Terms of Use each time you use the Platform. Your use of the Platform following the posting of any changes to these Terms of Use constitutes your acceptance of those changes.
REGISTERING AN ACCOUNT
7. In order to use the Platform, users must register an Account. Without limiting the registration details we may require, you acknowledge that we may require you to provide us with:
- (a) a personal or company profile;
- (b) an email address;
- (c) the details of a Valid Card and/or bank account;
- (d) verification of your address details; and(e) other personal information relevant to the matching of brand to creator including age, location, interests, preferences or demographic information
8. We reserve the right to refuse or cancel registration of an Account for any reason at our sole discretion.9. All information provided when registering an Account must be current, correct and complete. Incomplete, ineligible or incomprehensible Account registrations will not be valid. You must be logged in to your Account in the manner required each time you wish to use the Platform. You may never use another person’s Account without their permission.
10. Your Account is personal to you and you must not transfer it to others, or allow third parties to access, or use your Account, except with our express written permission. If a legal entity such as a company has created an Account, you, the legal entity, are the Account owner, and regardless of any change in any contact details, you will remain responsible for your Account as set out in these Terms. If you wish to change the Account owner, you must provide us with a written request to transfer ownership of the Account to the incoming party, which must also include the incoming party’s written consent to take over full responsibility for the Account. Third parties may never use, or access, another person’s Account, unless that third party is expressly authorised to use the Account because it acts for, or on behalf of, the Account holder, including if it is the Account holder’s personnel.
11. You are responsible for maintaining the strict confidentiality of your Account details and for controlling access to and use of your Account, and any activity, including any unauthorised activity, under your Account. You agree to immediately notify us of any unauthorised use of your Account (including any unauthorised third party access to your Account) or any other breach of security. We will not be responsible or liable for any loss or damage arising from your failure to comply with this provision.
12. You acknowledge that the information in your Account profile will be accessible on the Platform to Account holders on the Platform.
USING THE PLATFORM
13. Once an Account is registered, the Platform allows Clients to list Gifts, invite Creators to receive items and services. The Platform allows Creators to search and apply for gifts, and receive items and services.
14. On the completion of a collaboration, the Client may, dependant on their plan, receive access to creator insights, or Content, created in relation to the gifting collaboration. HASHTAG GIFTED acts only as a gateway and the Client is solely responsible for its gift, selection and suitability of creators to gift, and Content created in any Campaign.
15. You may not decompile, reverse engineer, disassemble, or convert any element of the Platform to a human perceivable form; distribute, disseminate, broadcast, circulate or republish any element of the Platform in any way (including any Content which it does not own, or have the relevant legal rights to); resell, rent, lease or lend any element of the Platform; defeat, disable or circumvent any security feature of the Platform; transfer, or allow access to, any element of the Platform to any third party (including any Content which it does not own, or have the relevant legal rights to); or authorise any third party to do any of the acts above.
16. You must not engage in crawling, scraping, caching or otherwise accessing any content (including any Content) on the Platform via automated means.
17. The Platform is designed for use by people aged 16 years and over. Users under the age of 16 years may only use the Platform with the consent of a parent or legal guardian. We reserve the right to refuse registration from individuals under 18 years of age or, in any event, to seek further information from you to verify your eligibility to use the Platform.
18. You are solely responsible for your interactions with other users of the Platform. You agree that we are not responsible for the conduct of any user.
19. You represent, warrant and agree that you will not use the Platform, including any Content, in any way that competes with the Platform or our business.
20. You agree that you will not knowingly induce or otherwise assist any user of the Platform to breach its duties and obligations under these Terms of Use (including any of its confidentiality obligations).
21. You agree that we are not responsible for, and do not endorse, any Content posted on the Platform by a user. We do not have any obligation to moderate, monitor, edit, approve or remove any Content. If your Content violates these Terms of Use or is unlawful, you bear legal responsibility for that Content.
22. Nothing in these Terms of Use is intended nor does create a partnership, agency, employment or fiduciary relationship between HASHTAG GIFTED and any user.
23. Subject to your compliance with these Terms of Use, you are granted a limited, non-exclusive, revocable and non-transferable licence to access and use the Platform solely in the manner expressly specified in these Terms of Use. Any cost associated with accessing and using the Platform generally remains your responsibility and is dependent on the service provider used. You are responsible for ensuring that your computer system or mobile device (as applicable) is compatible with the Platform and meets all relevant technical specifications necessary to obtain the benefit of the Platform.
24. The Platform may contain links to other sites not maintained by us (“Linked Sites”). We are not responsible for the content of any Linked Sites. HASHTAG GIFTED does not in any way endorse any Linked Sites and is not responsible for the quality or delivery of any products or services offered, accessed or advertised by such Linked Sites. To the extent that these Linked Sites collect personal information from you, we shall bear no responsibility or liability for the manner in which such information is used.
25. The Platform may utilise social network or share functionality and may contain social media links, applications or features (including but not limited to Facebook, Twitter and Instagram). Your use of any social media platforms is subject to the particular social media platform's prevailing terms and conditions of use. By using any social media applications or features on the Platform, you consent and agree to be bound to the particular terms and conditions of use of the social media platform. You are encouraged to review the terms and conditions of use of each social media platform before engaging or interacting with the social media links, applications or features on the Platform.
ADDITIONAL TERMS FOR CREATOR
Creator Eligibility
27. If you do not meet the minimum age requirement in paragraph 17 above, you must not use the Platform unless approved by a parent/guardian (and we reserve the right to verify your eligibility and require parent/guardian consents).You warrant that you have the legal right to collaborate on each gift and will, upon request, provide all necessary documents to HASHTAG GIFTED, or to the Client, to verify your legal right to participate in any gifting, events or experiences when required.
28. You acknowledge that Clients may require that you meet specific criteria to be eligible to apply for a particular Gift. You agree to not apply for any gift where you do not meet all of the specific criteria required by a Client.
Contact with Client
29. You may not contact, directly or indirectly, the Client outside of the Platform, or directly or indirectly, request, solicit or obtain the contact details of the Client, or direct contact to a third party supplier, agent, manager or other contact.
30. You must not use any contact details available on the Platform to organise the provision of any services off the Platform, whereby organising the provision of services includes contacting the Client outside of the Platform and/or promoting yourself to the Client outside of the Platform.
31. You acknowledge that different features, limitations and inclusions apply to different subscription packages paid for by the Clients of the Platform.
32. Once you have completed a Gift, completed Content, UGC or reviews may be used by the Client subject to their compliance with their subscription package and Terms of Use.
33. You agree that you will not pursue any actions, legal or otherwise, against us for any use of content, reviews, UGC or likeness by either HASHTAG GIFTED or a client connected via the Platform, and that this provision constitutes a bar to any such actions or proceedings.
Creator Relationship with the Client
34. As Creator, you will at all times perform your obligations and provide your services to the Client as an independent contractor and not in the capacity of an employee, partner or agent or in any other capacity. You agree that neither HASHTAG GIFTED nor the Client will be obliged to pay to you or recover from you any amount as a result of you being deemed to be an employee of either HASHTAG GIFTED or the Client, including in respect of annual leave, superannuation, withholding tax, income tax, workers compensation contributions or any similar payments or deductions. You indemnify HASHTAG GIFTED in relation to any such liabilities.
35. You agree that you (and your agents) will not negotiate separate payment terms or amounts from Clients outside the Platform. Any attempt to circumvent the Platform may result in, at our sole discretion, the removal of you from the Platform at or an immediate requirement for you to pay us the Opt-Out Fee in accordance with paragraph 76. If we remove you from the Platform, you will immediately cease to represent or describe yourself as an authorised user of the Platform.
36. If you are a member of any guild, union or industrial organisation, you warrant that have not entered into any other agreement, arrangement or understanding which would or may prevent or limit you from adhering to these Terms of Use, performing your obligations or granting the rights and benefits set forth in these Terms of Use.
37. You acknowledge that HASHTAG GIFTED provides the Platform as an online marketplace and that you are solely responsible for seeking and finding Gifts with Clients and that HASHTAG GIFTED is not your agent, representative, or manager.
38. When you agree to the terms of agreement on the Platform you are accepting the terms in the Content Licensing Agreement between HASHTAG GIFTED and the Client. You are solely responsible for ensuring that you understand the terms of your agreement with a HASHTAG GIFTED. You agree that certain Clients in accordance with their subscription plan will be able to use content you have created for advertising purposes and amplification purposes. You agree that you will not pursue any actions, legal or otherwise, against us for any use of content, reviews, UGC or likeness by either HASHTAG GIFTED or a Client connected via the Platform, and that this provision constitutes a bar to any such actions or proceedings.
ADDITIONAL TERMS FOR CLIENTS
39. Paragraphs 40-55 apply only to Clients participating in the Platform.
Payment Terms for Clients
40. You agree to pay the Subscription Fee and any other agreed fees to HASHTAG GIFTED in accordance with these Terms of Use. If it is found that you have engaged with creators outside of your subscription period to circumnavigate the platform, you agree that your card may be charged for this at the Subscription Fee applicable for the number of creators engaged. We use a payment service provider, Stripe Payments Australia Pty Ltd (Stripe), to facilitate payment of the Creator Service Fee. You expressly authorise us to provide your Valid Card and/or bank account details to Stripe and set up a direct account between you and Stripe as your representative. You acknowledge and agree that when registering your Account, you may be required to enter into a separate agreement directly with Stripe which is notified to you and you are solely responsible and liable to Stripe in connection with that agreement. All monetary transactions made through your use of the Platform are subject to any fees Stripe may charge.
41. You acknowledge that a Subscription Fee applies to paid Accounts. When registering a paid Account and providing us with the details of your Valid Card, you authorise us to charge your Valid Card the Subscription Fee at the then current monthly rate for your paid Account (as applicable). The Subscription Fee will be charged to your Valid Card in advance of each monthly subscription period.
42. You acknowledge that different features, limitations and inclusions apply to different Account packages.
43. You must cancel your subscription before it renews in order to avoid billing of the renewal subscription fee to the Payment Method you provided. Refunds cannot be claimed for any partial subscription period.
44. Payment from your Valid Card will be processed for the full amount of the Subscription Fee for your agreed plana. You authorise us to debit such an amount from your Valid Card.
45. You must have sufficient funds available on your Valid Card to pay the Subscription Fee. We reserve the right to charge credit card surcharges and a $25 administration fee if there are insufficient funds available on your Valid Card. You acknowledge that such administration fee is a genuine pre-estimate of the loss we would incur as a result of your non-payment due to having insufficient funds.
46. You must otherwise at all times pay all charges in the manner set out on the Platform or as advised by us in writing from time to time.
47. You undertake that you are an authorised user of your Valid Card; that the Valid Card details provided are current, correct and complete; and that your Valid Card will have sufficient funds to pay the full amount the Subscription Fee. You agree that you will not pursue any actions, legal or otherwise, against us in connection with the Stripe payment service, and that this provision constitutes a bar to any such actions or proceedings.
48. Terms for Gifts HASHTAG GIFTED in its sole discretion reserves the right to reject Gifts that do not comply with these Terms of Use.
49. You agree that you will not negotiate terms or payment to Creator outside the Platform. Any attempt to circumvent the Platform may result in the removal of the Client from the Platform at our sole discretion.
50. Client acknowledges that Creatorsare independent third parties and not controlled by HASHTAG GIFTED other than through this Terms of Use. The Client specifically acknowledges and agrees that Client is solely responsible (and assumes all liability and risk) in respect of the services provided by a Creator.
51. You acknowledge that HASHTAG GIFTED has not made any warranties in respect of the success of any Campaignor in respect of your business or commercial performance.
52. When you agree to the Content Licensing Agreement or any other terms of agreement on the Platform, these are related to your subscription plan. You are solely responsible for ensuring that you understand the terms of your agreement with the Creator. You agree that you will not pursue any actions, legal or otherwise, against us for any use of content, reviews, UGC or likeness by either HASHTAG GIFTED or a Creator connected via the Platform, and that this provision constitutes a bar to any such actions or proceedings.
Cancellations by Client
53. If you cancel a Gift after providing the items to the Creator, you agree to allow the Creator to keep the gift at no cost, regardless of any separate services agreement you enter into with the Creator.
THE CONTENT LICENSING AGREEMENT
54. The Platform is an online marketplace which facilitates the creation of a commercial relationship between a Creator and a Client. HASHTAG GIFTED does not enter into an agreement with a Creator in respect of any Campaign.
55. HASHTAG GIFTED enters into the Content Licensing Agreement with the Client in relation to content usage rights dependant on the subscription plan selected by the Client. Content may only be used in accordance with the subscription. Some subscription plans allow content created by Creators through HASHTAG GIFTED to be used by Clients for advertising purposes and amplification purposes. If a Client changes their subscription or cancels their subscription, the usage of content must be changed accordingly to the level of plan the Client is on at the time. If a Client upgrades to the Pro subscription, Content created by Creators prior to them subscribing to the Pro subscription must not be used for advertising purposes and amplification purposes.
INTELLECTUAL PROPERTY
56. All HASHTAG GIFTED Materials on the Platform are protected by all applicable laws including copyright and trademark laws and may not be used by you except as permitted in these Terms of Use. Nothing in these Terms of Use will be taken to constitute a transfer, assignment or grant of any ownership rights in any Intellectual Property Rights in the HASHTAG GIFTED Materials to a Client or Creator. You must not copy, communicate or exploit the HASHTAG GIFTED Materials for any purpose without the prior written consent of HASHTAG GIFTED.
57. You agree to grant to HASHTAG GIFTED (and its agents) in respect of all Content uploaded to the Platform, or created on gifting collaborations facilitated through the platform, and all images of CampaignMaterials, a royalty-free, perpetual, worldwide, irrevocable, unconditional, non-exclusive, transferable licence to use the Content and images for the purpose of marketing and promoting HASHTAG GIFTED (and its products and services) and the relevant client of the gifting in any manner. You acknowledge that HASHTAG GIFTED may reproduce such images from your official sites and platforms for such purposes.
58. You warrant that:(a) you own, or have the relevant rights to, the Intellectual Property Rights in Content you upload to the Platform and have the right to license the Content to HASHTAG GIFTED in the manner set out in these Terms of Use; and(b) any Content you upload to the Platform does not contain any representations or material which you know or suspect (or ought reasonably to have known or suspected) to be false, misleading or deceptive, or defamatory or that is in breach of any Intellectual Property Rights.
59. Subject to your compliance with these Terms of Use, we grant you a personal, non-exclusive, royalty-free, revocable, worldwide, non-transferable licence to access, view and use any Content (including any contact details or information relating to Campaigns) on the Platform, solely to obtain the benefit of the Platform, and solely for use in accordance with the Terms of Use. You must not copy or use, in whole or in part, any Content, for any purposes that are not expressly authorised under these Terms of Use, including, without limitation, circumventing the Platform to contact, or undertake transactions with, a Client or a Creator.
60. The ownership of materials created or produced during a Campaign, and the results and proceeds of the services provided by a Creator as part of a Campaign (Campaign Materials), including all Intellectual Property Rights in such Campaign Materials, is specified by the subscription plan held by the client. It is your obligation to ensure that you understand the terms of your Content Licensing Agreement, including in respect of the ownership and usage of Campaign Materials.
CREATOR & CLIENT REPRESENTATIONS AND WARRANTIES
61. You warrant that:
- (a) all information you provide to us upon registering for an Account is true, accurate and complete and not misleading;
- (b) you have not inflated, manipulated, or otherwise misrepresented your social media accounts, metrics or other information;
- (c) you have the right and authority to create an Account and agree to these Terms of Use, including, where relevant, the authority of any Client or individual to create an Account, agree to these Terms of Use and to use the Platform on its or his or her behalf;
- (d) you are authorised to submit Content, as applicable, in the manner invited via the Platform;
- (e) you will not share any personal information of other users of the Platform with any third party;
- (f) any Content you submit to the Platform will not contain anything that;
- - (i) is illegal or contrary to any laws, applicable industry code or the requirements or directions or relevant regulators;
- - (ii) is copied or adapted either wholly or substantially from any other work or material;
- - (iii) is indecent, obscene, threatening, discriminatory, harassing, in breach of any confidence, defamatory, offensive or objectionable or contains, depicts or alludes to or promotes aggressive, unruly, antisocial, lewd or illegal behaviour or sexually suggestive imagery;
- - (iv) parodies, disparages or makes fun of HASHTAG GIFTED or its products of services or HASHTAG GIFTED generally in any way;
- - (v) solicits passwords or personal information for commercial or unlawful purposes or provides any telephone numbers, street addresses, last names, URLs or email addresses;
- - (vi) promotes an illegal or unauthorised copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protect devices, or providing pirated materials;
- - (vii) involves the transmission of junk mail, chain letters, unsolicited mass mailing or spam; or(viii) infringes the privacy rights, contract rights or other rights (including Intellectual Property Rights) of any person, corporation or entity.
GST
62. Words or expressions used in these Terms of Use that are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning as given in the Act. If GST applies to any supply made under these Terms of Use, then the party making that supply may, in addition to any other amount payable, recover from the other party an additional amount on account of GST, such amount to be calculated on the basis of the current GST rate. Unless otherwise specified, any amount payable under these Terms of Use is exclusive of GST.
63. The Client and the Creator acknowledge that:(a) HASHTAG GIFTED will not be responsible or liable in any way for any postponement, cancellation, no-show, termination or other non-performance of a Campaign, or any dispute between a Creator and Client in respect of a Campaign; and(b) we reserve the right to increase our fees or introduce new prices or charges at any time.
INDEMNIFICATION
64. You agree to indemnify, and must defend and hold harmless, HASHTAG GIFTED and its related bodies corporate, personnel, servants and agent, from and against any claims, liabilities, damages, losses and expenses (including reasonable legal fees) arising out of or in any way connected with any of the following (including as a result of your direct activities on the Platform):
- (a) your Content or access to the Platform;
- (b) your use of any Content on the Platform or created through a collaboration via the platform;
- (c) your breach of these Terms of Use (including your privacy or confidentiality obligations) or any of the warranties or covenants given or made by you;
- (d) your participation in, casting of, booking of, or provision of services for a Campaign;
- (e) your claim against a Client for any reason;
- (f) your claim against a Creator for any reason;
- (g) any claim by any third party (including any other Client or Creator) arising directly or indirectly from you breach of any of the provisions of these Terms of Use;
- (h) any claim or allegation that your Content infringes a third party’s rights, including Intellectual Property Rights;
- (i) your violation of any applicable laws, rules or regulations; and
- (j) any misrepresentation made by you.
LIMITATION OF LIABILITY
65. You agree that you use the Platform at your own risk and that HASHTAG GIFTED disclaims any and all responsibility for any damage or loss that you may suffer or incur as a result of using the Platform. To the maximum extent permitted by law (but subject to paragraph 66):
- (a) the Platform and the HASHTAG GIFTED Materials and any other features or functions associated with the Platform are provided "as is" and "as available" with all faults and without warranty;
- (b) in no circumstances will HASHTAG GIFTED be liable in any way for any Content, including but not limited to any errors or omissions in such Content or any loss or damage of any kind incurred as a result of any use of Content posted, transmitted or otherwise made available via the Platform;
- (c) we do not make any promises or assurances to you about the Platform or the HASHTAG GIFTED Materials, including without limitation that your use of the Platform will be uninterrupted or error-free;
- (d) we make no representations or warranties in relation to the accuracy or completeness of the information, advice or other content available on or via the Platform and we do not accept any liability in relation to your reliance on such information, advice or other content; and
- (e) we will not be liable for any loss or damage (including indirect or consequential loss or damage, loss of profit, loss of revenue, loss of data or loss of opportunity) however caused which may be suffered or incurred or which may arise directly or indirectly in respect of the use by you of the Platform.
66. Nothing in these Terms of Use excludes, restricts or modifies any rights that you have under existing laws or regulations and codes, including the Competition and Consumer Act 2010 (Cth) and fair trading laws. There are statutory guarantees under consumer protection laws that cannot be excluded. To the extent that any statutory guarantees apply to these Terms of Use, we limit our liability to the maximum extent permitted by law, at our election, to the supply of our services again or the payment of the cost of having our services supplied again.
NON-DISPARAGEMENT
66A. You agree that as a user of the Platform you cannot publish or cause to be published any defamatory or disparaging remarks, comments or statements concerning HASHTAG GIFTED, its personnel or the Platform to any person, or on any entity or forum.
66B. You agree that if you breach paragraph 66A HASHTAG GIFTED may be entitled to damages.
66C. You also agree that monetary damages may not be an adequate remedy for a breach of paragraph 66A. We are entitled to seek an injunction, or any other remedy available at law or in equity, at our discretion, to protect ourselves from a breach (or continuing breach) of paragraph 66A.
CONFIDENTIALITY
67. Subject to paragraph 69, you must (and must ensure that your personnel do) keep confidential, and not use or permit any unauthorised use of, all Confidential Information. This obligation will survive the termination or expiry of these Terms of Use.67A. If requested, you are required to provide the details of any disclosures of Confidential Information including to who and where information was published.
68. For the avoidance of doubt, you agree that the Content forms part of the Confidential Information, and you may not use, or disclose, any of the Content, in any way that is not permitted under these Terms of Use. You acknowledge and agree that, at times, Content, is not accessible in the public domain, and is of substantial value to users of the Platform.
69. Paragraph 67 does not apply where the disclosure is required by law or the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Terms of Use and provided that you ensure the adviser complies with the terms of paragraph 67.
70. You agree that monetary damages may not be an adequate remedy for a breach of paragraph 67. We are entitled to seek an injunction, or any other remedy available at law or in equity, at our discretion, to protect ourselves from a breach (or continuing breach) of paragraph 67.
PRIVACY
71. HASHTAG GIFTED collects, uses, holds and discloses personal information in accordance with its Privacy Policy and otherwise as set out in these Terms of Use. These Terms of Use prevail to the extent of any inconsistency.
72. In addition to the purposes of collection set out in our Privacy Policy, HASHTAG GIFTED collects personal information from you for the following purposes: to enable us to administer and provide the Platform; to connect Clients with Creator; to facilitate payments; to verify your identity; and to assist us in improving the Platform and our services. We may provide your personal information to our affiliates, commercial partners (for example, Stripe) and financial service providers (for example, a bank, a payment network, or other financial intermediary) for these purposes. You acknowledge that Stripe may use your personal information in accordance with the terms of its privacy policy. You expressly consent to Stripe’s use of your personal information.
NO CIRCUMVENTION
73. Users (and their respective agents) each acknowledge and agree that:
- (a) the Subscription Fee is a significant part of the remuneration which HASHTAG GIFTED receives from the Platform and the Subscription Fee is required to enable HASHTAG GIFTED to make the Platform available;
- (b) HASHTAG GIFTED only receives the Subscription Fee when Clients are signed up to the Platform; and
- (c) It is an essential term of these Terms of Use that the Client and Creator complete all engagements using the Platform and do not negotiate separate payment terms or jobs outside of the Platform.
74. Users (and their respective agents) each acknowledge and agree that, unless the Client or Creatorpays the Opt-Out Fee (see paragraph 76 below), during the Exclusivity Period the Client and Creator:
- (a) must use the Platform as the exclusive method to list, cast, apply for, book and complete and pay for any jobs or services or other engagements between the Client and Creator;
- (b) must not circumvent the payment of the Subscription Fee must not enter into any agreement, contract or other engagement or arrangement for the provision of services by the Creator for the Client outside of the Platform (whether directly or indirectly and whether individually or through any third-party intermediary);
- (c) in the case of a Client – must not submit any proposal or solicit, approach or invite any Creator identified on the Platform to perform services or work, or make payment to that Creator outside of the Platform; and
- (d) in the case of a Creator - must not accept any proposal or invitation from a Client identified on the Platform or solicit or approach any such Client to perform services or work, or receive payment from that Client outside of the Platform.
75. You agree to notify HASHTAG GIFTED immediately if a person suggests that you make or receive a payment or work together outside of the Platform, or if you are aware of a breach or potential breach of the non-circumvention conditions in paragraph 74. Please contact us at [email protected]
76. You may opt-out of the non-circumvention obligations in paragraph 74 in respect of a particular relationship between a Client and a Creator, only if you pay HASHTAG GIFTED an opt-out fee (the Opt-Out Fee), which is calculated as the greater of:
- (a) $3,500;
- or(b) the amount of all Subscription Fees that would be earned by HASHTAG GIFTED during the Exclusivity Period, calculated based on an annualized amount earned by Creator from Client during a normalized 8-week period, or during such shorter period as data is available to HASHTAG GIFTED.
77. In paragraphs 74 and 76, Exclusivity Period means for so long as the Creator or Client (as applicable) is registered on the Platform and a period of 12 months commencing on the later of:
- (a) the date a Client first contacts, meets or identifies a Creator through the Platform; or
- (b) the date that a Creator completes his or her last Campaign for a Client through the Platform, or if a Creator has not completed any Campaign for a Client through the Platform, the date that a Creator’s agreement with us under these Terms of Use is terminated.
78. If HASHTAG GIFTED determines, in its sole discretion, that you have breached your obligations in paragraphs 74 or 75, HASHTAG GIFTED may, to the maximum extent permitted by law:
- (i) charge your Valid Card the Opt-Out Fee;
- or (ii) send you an invoice for the Opt-Out Fee, which you agree to pay within 30 days;
- and/or (iii) terminate your Account; and/or; (iv) charge you for all losses and costs and reasonable expenses (including lawyers’ fees) related to investigating such breach and collecting such fees.
79. Paragraphs 73-77 apply where a Client and a Creator have been introduced or identified through the Platform, for example if a Client identifies a Creator through the Platform. If a Client and a Creator were not introduced through the Platform, for example if the Client and Creator have worked together before meeting on the Platform, then the non-circumvention conditions in paragraphs 73-77 do not apply.MONITORING, SUSPENSION AND TERMINATION 80. HASHTAG GIFTED reserves the right to monitor the Platform generally and all Account activity. If your Account shows signs of fraud, abuse or suspicious activity, we may close or freeze the Account immediately.
80A. HASHTAG GIFTED retains the right and absolute discretion to suspend or terminate your Account, and/or access to the Platform generally without notice. We may also suspend or terminate your Account, and/or access to the Platform generally without notice if we believe you have abused any privilege accorded to you as a participant on the Platform, supplied misleading information or made any misrepresentations to us in connection with the Platform, tampered with the Platform in any way, breached these Terms of Use, or engaged in any unlawful or other improper misconduct calculated to jeopardise the proper administration of the Platform.
80B. HASHTAG GIFTED retains the right to remove any Content that it considers breaches these Terms of Use.GENERAL TERMS
81. If the Platform is not capable of running as planned for any reason beyond the reasonable control of HASHTAG GIFTED, including because of war, terrorism, state of emergency or disaster (including natural disaster), infection by computer virus, bugs, tampering, unauthorised intervention, technical failures or any which corrupt or affect the administration, security, fairness, integrity or proper conduct of the Platform, HASHTAG GIFTED reserves the right, in its absolute discretion, to cancel, terminate, modify or suspend the Platform.
82. These Terms of Use are governed by and are to be construed in accordance with the laws of the State of New South Wales and the parties submit to the jurisdiction of the courts of New South Wales and any courts competent to hear appeals from those courts.
83. If you are using the Platform on behalf of a legal entity, you represent that you are authorised to enter into an agreement on behalf of that legal entity. These Terms of Use constitute the entire agreement between you and HASHTAG GIFTED and govern your use of the Platform, superseding any prior agreements between you and HASHTAG GIFTED. You will not assign any rights or obligations under these Terms of Use, in whole or in part, to any third party without the prior written consent of HASHTAG GIFTED. HASHTAG GIFTED may assign its rights or obligations hereunder at its sole discretion.
84. If any clause or part of any clause is in any way unenforceable, invalid or illegal, it is to be read down and amended so as to be enforceable, valid and legal. If this is not possible, the clause (or where possible, the offending part) is to be severed from these Terms of Use without affecting the enforceability, validity or legality of the remaining clauses (or parts of those clauses) which will continue in full force and effect.
CONTACT AND HELP DETAILS
85. You may contact us at: [email protected]
DEFINITIONS
86. The following terms have the following meanings in these Terms of Use:
“Account” means an account createdby a Client or Creator for use of the Platform;
“Client” means any person or entity, or its duly authorised agents or representatives, registered to use the Platform which requires professional or creative services of Creator for Campaigns;
Confidential Information includes information which is disclosed to a party in connection with these Terms of Use at any time, is prepared or produced under or in connection with these Terms of Use at any time, any Content, relates to a party’s business, assets or affairs; or relates to the subject matter of, the terms of and/or any transactions contemplated by these Terms of Use, whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever a party receives that information;
“Content Licensing Agreement” means the agreement between the Client and HASHTAG GIFTED for the use of Content provided by a Creator engaged through HASHTAG GIFTED;
“Content” means any content uploaded to the Platform or created through a collaboration organised through the Platform and content shared to social media by a Client or a Creator, including any posts, comments, reviews, information (including contact information), video, audio, photographs, images, illustrations, animations, data or other interactive features which may be made available on the Platform;
“Creator” means a user of the Platform who registers as a provider of professional or creative services;
“HASHTAG GIFTED Materials” means the Platform and any associated materials owned, developed or licensed by HASHTAG GIFTED and made available via the Platform;
“Intellectual Property Rights” means all present or future intellectual property rights of whatever nature anywhere in the world including, but not limited to, rights in respect of or in connection with copyright, inventions (including patents), trade marks, service marks, trade names, domain names, designs, any rights in silicon chip topography, Confidential Information and Know-How and similar industrial, commercial and intellectual property rights, whether or not registered or registrable, and includes the right to apply for the registration of such rights, and whether existing in Australia or otherwise;
“Campaign” means a campaign or a gift listed by a Client which requires the services of a Creator, as specified by a Client in a Gifting Campaign on the Platform;
“Gifting Campaign” means the profile for a Campaign listed by a Client on the Platform;
“Platform” means the Website, the the HASHTAG GIFTED mobile and tablet application and any associated HASHTAG GIFTED properties or websites;
“Subscription Fee” means a monthly subscription fee which is payable by a Client for use of the Platform in accordance with their plan;
“Valid Card” means a valid Visa, Mastercard or American Express credit card.
Terms & Conditions
INTRODUCTION
1. These Terms of Use (“Terms of Use”) govern your use of the Platform. By registering an Account and using the Platform, you agree to accept these Terms of Use.
2. The Platform is owned and operated by GIFTED HOLDINGS PTY LTD (ACN 674 334 582) (“HASHTAG GIFTED”, “us” or “we”).
3. In these Terms of Use, Clients and Creators are collectively and individually referred to as “users” or “you” as the context requires.
4. Your access to and use of the Platform is conditional upon your agreement to and acceptance of these Terms of Use. Each time you use the Platform , you agree to be bound by these Terms of Use. If you do not wish to be bound by these Terms of Use, do not use the Platform.
5. These Terms of Use apply to all transactions conducted on the Platform o, as well as to your access to, and use of, the Platform.
6. We may at any time change these Terms of Use. Changes will take immediate effect and may affect your ability to use the Platform. We may endeavour to notify you of any change prior to the date such change come into effect by email to the email address you provided when creating your Account, however it is your responsibility to check if there have been any changes to these Terms of Use each time you use the Platform. Your use of the Platform following the posting of any changes to these Terms of Use constitutes your acceptance of those changes.
REGISTERING AN ACCOUNT
7. In order to use the Platform, users must register an Account. Without limiting the registration details we may require, you acknowledge that we may require you to provide us with:
- (a) a personal or company profile;
- (b) an email address;
- (c) the details of a Valid Card and/or bank account;
- (d) verification of your address details; and(e) other personal information relevant to the matching of brand to creator including age, location, interests, preferences or demographic information
8. We reserve the right to refuse or cancel registration of an Account for any reason at our sole discretion.9. All information provided when registering an Account must be current, correct and complete. Incomplete, ineligible or incomprehensible Account registrations will not be valid. You must be logged in to your Account in the manner required each time you wish to use the Platform. You may never use another person’s Account without their permission.
10. Your Account is personal to you and you must not transfer it to others, or allow third parties to access, or use your Account, except with our express written permission. If a legal entity such as a company has created an Account, you, the legal entity, are the Account owner, and regardless of any change in any contact details, you will remain responsible for your Account as set out in these Terms. If you wish to change the Account owner, you must provide us with a written request to transfer ownership of the Account to the incoming party, which must also include the incoming party’s written consent to take over full responsibility for the Account. Third parties may never use, or access, another person’s Account, unless that third party is expressly authorised to use the Account because it acts for, or on behalf of, the Account holder, including if it is the Account holder’s personnel.
11. You are responsible for maintaining the strict confidentiality of your Account details and for controlling access to and use of your Account, and any activity, including any unauthorised activity, under your Account. You agree to immediately notify us of any unauthorised use of your Account (including any unauthorised third party access to your Account) or any other breach of security. We will not be responsible or liable for any loss or damage arising from your failure to comply with this provision.
12. You acknowledge that the information in your Account profile will be accessible on the Platform to Account holders on the Platform.
USING THE PLATFORM
13. Once an Account is registered, the Platform allows Clients to list Gifts, invite Creators to receive items and services. The Platform allows Creators to search and apply for gifts, and receive items and services.
14. On the completion of a collaboration, the Client may, dependant on their plan, receive access to creator insights, or Content, created in relation to the gifting collaboration. HASHTAG GIFTED acts only as a gateway and the Client is solely responsible for its gift, selection and suitability of creators to gift, and Content created in any Campaign.
15. You may not decompile, reverse engineer, disassemble, or convert any element of the Platform to a human perceivable form; distribute, disseminate, broadcast, circulate or republish any element of the Platform in any way (including any Content which it does not own, or have the relevant legal rights to); resell, rent, lease or lend any element of the Platform; defeat, disable or circumvent any security feature of the Platform; transfer, or allow access to, any element of the Platform to any third party (including any Content which it does not own, or have the relevant legal rights to); or authorise any third party to do any of the acts above.
16. You must not engage in crawling, scraping, caching or otherwise accessing any content (including any Content) on the Platform via automated means.
17. The Platform is designed for use by people aged 16 years and over. Users under the age of 16 years may only use the Platform with the consent of a parent or legal guardian. We reserve the right to refuse registration from individuals under 18 years of age or, in any event, to seek further information from you to verify your eligibility to use the Platform.
18. You are solely responsible for your interactions with other users of the Platform. You agree that we are not responsible for the conduct of any user.
19. You represent, warrant and agree that you will not use the Platform, including any Content, in any way that competes with the Platform or our business.
20. You agree that you will not knowingly induce or otherwise assist any user of the Platform to breach its duties and obligations under these Terms of Use (including any of its confidentiality obligations).
21. You agree that we are not responsible for, and do not endorse, any Content posted on the Platform by a user. We do not have any obligation to moderate, monitor, edit, approve or remove any Content. If your Content violates these Terms of Use or is unlawful, you bear legal responsibility for that Content.
22. Nothing in these Terms of Use is intended nor does create a partnership, agency, employment or fiduciary relationship between HASHTAG GIFTED and any user.
23. Subject to your compliance with these Terms of Use, you are granted a limited, non-exclusive, revocable and non-transferable licence to access and use the Platform solely in the manner expressly specified in these Terms of Use. Any cost associated with accessing and using the Platform generally remains your responsibility and is dependent on the service provider used. You are responsible for ensuring that your computer system or mobile device (as applicable) is compatible with the Platform and meets all relevant technical specifications necessary to obtain the benefit of the Platform.
24. The Platform may contain links to other sites not maintained by us (“Linked Sites”). We are not responsible for the content of any Linked Sites. HASHTAG GIFTED does not in any way endorse any Linked Sites and is not responsible for the quality or delivery of any products or services offered, accessed or advertised by such Linked Sites. To the extent that these Linked Sites collect personal information from you, we shall bear no responsibility or liability for the manner in which such information is used.
25. The Platform may utilise social network or share functionality and may contain social media links, applications or features (including but not limited to Facebook, Twitter and Instagram). Your use of any social media platforms is subject to the particular social media platform's prevailing terms and conditions of use. By using any social media applications or features on the Platform, you consent and agree to be bound to the particular terms and conditions of use of the social media platform. You are encouraged to review the terms and conditions of use of each social media platform before engaging or interacting with the social media links, applications or features on the Platform.
ADDITIONAL TERMS FOR CREATOR
Creator Eligibility
27. If you do not meet the minimum age requirement in paragraph 17 above, you must not use the Platform unless approved by a parent/guardian (and we reserve the right to verify your eligibility and require parent/guardian consents).You warrant that you have the legal right to collaborate on each gift and will, upon request, provide all necessary documents to HASHTAG GIFTED, or to the Client, to verify your legal right to participate in any gifting, events or experiences when required.
28. You acknowledge that Clients may require that you meet specific criteria to be eligible to apply for a particular Gift. You agree to not apply for any gift where you do not meet all of the specific criteria required by a Client.
Contact with Client
29. You may not contact, directly or indirectly, the Client outside of the Platform, or directly or indirectly, request, solicit or obtain the contact details of the Client, or direct contact to a third party supplier, agent, manager or other contact.
30. You must not use any contact details available on the Platform to organise the provision of any services off the Platform, whereby organising the provision of services includes contacting the Client outside of the Platform and/or promoting yourself to the Client outside of the Platform.
31. You acknowledge that different features, limitations and inclusions apply to different subscription packages paid for by the Clients of the Platform.
32. Once you have completed a Gift, completed Content, UGC or reviews may be used by the Client subject to their compliance with their subscription package and Terms of Use.
33. You agree that you will not pursue any actions, legal or otherwise, against us for any use of content, reviews, UGC or likeness by either HASHTAG GIFTED or a client connected via the Platform, and that this provision constitutes a bar to any such actions or proceedings.
Creator Relationship with the Client
34. As Creator, you will at all times perform your obligations and provide your services to the Client as an independent contractor and not in the capacity of an employee, partner or agent or in any other capacity. You agree that neither HASHTAG GIFTED nor the Client will be obliged to pay to you or recover from you any amount as a result of you being deemed to be an employee of either HASHTAG GIFTED or the Client, including in respect of annual leave, superannuation, withholding tax, income tax, workers compensation contributions or any similar payments or deductions. You indemnify HASHTAG GIFTED in relation to any such liabilities.
35. You agree that you (and your agents) will not negotiate separate payment terms or amounts from Clients outside the Platform. Any attempt to circumvent the Platform may result in, at our sole discretion, the removal of you from the Platform at or an immediate requirement for you to pay us the Opt-Out Fee in accordance with paragraph 76. If we remove you from the Platform, you will immediately cease to represent or describe yourself as an authorised user of the Platform.
36. If you are a member of any guild, union or industrial organisation, you warrant that have not entered into any other agreement, arrangement or understanding which would or may prevent or limit you from adhering to these Terms of Use, performing your obligations or granting the rights and benefits set forth in these Terms of Use.
37. You acknowledge that HASHTAG GIFTED provides the Platform as an online marketplace and that you are solely responsible for seeking and finding Gifts with Clients and that HASHTAG GIFTED is not your agent, representative, or manager.
38. When you agree to the terms of agreement on the Platform you are accepting the terms in the Content Licensing Agreement between HASHTAG GIFTED and the Client. You are solely responsible for ensuring that you understand the terms of your agreement with a HASHTAG GIFTED. You agree that certain Clients in accordance with their subscription plan will be able to use content you have created for advertising purposes and amplification purposes. You agree that you will not pursue any actions, legal or otherwise, against us for any use of content, reviews, UGC or likeness by either HASHTAG GIFTED or a Client connected via the Platform, and that this provision constitutes a bar to any such actions or proceedings.
ADDITIONAL TERMS FOR CLIENTS
39. Paragraphs 40-55 apply only to Clients participating in the Platform.
Payment Terms for Clients
40. You agree to pay the Subscription Fee and any other agreed fees to HASHTAG GIFTED in accordance with these Terms of Use. If it is found that you have engaged with creators outside of your subscription period to circumnavigate the platform, you agree that your card may be charged for this at the Subscription Fee applicable for the number of creators engaged. We use a payment service provider, Stripe Payments Australia Pty Ltd (Stripe), to facilitate payment of the Creator Service Fee. You expressly authorise us to provide your Valid Card and/or bank account details to Stripe and set up a direct account between you and Stripe as your representative. You acknowledge and agree that when registering your Account, you may be required to enter into a separate agreement directly with Stripe which is notified to you and you are solely responsible and liable to Stripe in connection with that agreement. All monetary transactions made through your use of the Platform are subject to any fees Stripe may charge.
41. You acknowledge that a Subscription Fee applies to paid Accounts. When registering a paid Account and providing us with the details of your Valid Card, you authorise us to charge your Valid Card the Subscription Fee at the then current monthly rate for your paid Account (as applicable). The Subscription Fee will be charged to your Valid Card in advance of each monthly subscription period.
42. You acknowledge that different features, limitations and inclusions apply to different Account packages.
43. You must cancel your subscription before it renews in order to avoid billing of the renewal subscription fee to the Payment Method you provided. Refunds cannot be claimed for any partial subscription period.
44. Payment from your Valid Card will be processed for the full amount of the Subscription Fee for your agreed plana. You authorise us to debit such an amount from your Valid Card.
45. You must have sufficient funds available on your Valid Card to pay the Subscription Fee. We reserve the right to charge credit card surcharges and a $25 administration fee if there are insufficient funds available on your Valid Card. You acknowledge that such administration fee is a genuine pre-estimate of the loss we would incur as a result of your non-payment due to having insufficient funds.
46. You must otherwise at all times pay all charges in the manner set out on the Platform or as advised by us in writing from time to time.
47. You undertake that you are an authorised user of your Valid Card; that the Valid Card details provided are current, correct and complete; and that your Valid Card will have sufficient funds to pay the full amount the Subscription Fee. You agree that you will not pursue any actions, legal or otherwise, against us in connection with the Stripe payment service, and that this provision constitutes a bar to any such actions or proceedings.
48. Terms for Gifts HASHTAG GIFTED in its sole discretion reserves the right to reject Gifts that do not comply with these Terms of Use.
49. You agree that you will not negotiate terms or payment to Creator outside the Platform. Any attempt to circumvent the Platform may result in the removal of the Client from the Platform at our sole discretion.
50. Client acknowledges that Creatorsare independent third parties and not controlled by HASHTAG GIFTED other than through this Terms of Use. The Client specifically acknowledges and agrees that Client is solely responsible (and assumes all liability and risk) in respect of the services provided by a Creator.
51. You acknowledge that HASHTAG GIFTED has not made any warranties in respect of the success of any Campaignor in respect of your business or commercial performance.
52. When you agree to the Content Licensing Agreement or any other terms of agreement on the Platform, these are related to your subscription plan. You are solely responsible for ensuring that you understand the terms of your agreement with the Creator. You agree that you will not pursue any actions, legal or otherwise, against us for any use of content, reviews, UGC or likeness by either HASHTAG GIFTED or a Creator connected via the Platform, and that this provision constitutes a bar to any such actions or proceedings.
Cancellations by Client
53. If you cancel a Gift after providing the items to the Creator, you agree to allow the Creator to keep the gift at no cost, regardless of any separate services agreement you enter into with the Creator.
THE CONTENT LICENSING AGREEMENT
54. The Platform is an online marketplace which facilitates the creation of a commercial relationship between a Creator and a Client. HASHTAG GIFTED does not enter into an agreement with a Creator in respect of any Campaign.
55. HASHTAG GIFTED enters into the Content Licensing Agreement with the Client in relation to content usage rights dependant on the subscription plan selected by the Client. Content may only be used in accordance with the subscription. Some subscription plans allow content created by Creators through HASHTAG GIFTED to be used by Clients for advertising purposes and amplification purposes. If a Client changes their subscription or cancels their subscription, the usage of content must be changed accordingly to the level of plan the Client is on at the time. If a Client upgrades to the Pro subscription, Content created by Creators prior to them subscribing to the Pro subscription must not be used for advertising purposes and amplification purposes.
INTELLECTUAL PROPERTY
56. All HASHTAG GIFTED Materials on the Platform are protected by all applicable laws including copyright and trademark laws and may not be used by you except as permitted in these Terms of Use. Nothing in these Terms of Use will be taken to constitute a transfer, assignment or grant of any ownership rights in any Intellectual Property Rights in the HASHTAG GIFTED Materials to a Client or Creator. You must not copy, communicate or exploit the HASHTAG GIFTED Materials for any purpose without the prior written consent of HASHTAG GIFTED.
57. You agree to grant to HASHTAG GIFTED (and its agents) in respect of all Content uploaded to the Platform, or created on gifting collaborations facilitated through the platform, and all images of CampaignMaterials, a royalty-free, perpetual, worldwide, irrevocable, unconditional, non-exclusive, transferable licence to use the Content and images for the purpose of marketing and promoting HASHTAG GIFTED (and its products and services) and the relevant client of the gifting in any manner. You acknowledge that HASHTAG GIFTED may reproduce such images from your official sites and platforms for such purposes.
58. You warrant that:(a) you own, or have the relevant rights to, the Intellectual Property Rights in Content you upload to the Platform and have the right to license the Content to HASHTAG GIFTED in the manner set out in these Terms of Use; and(b) any Content you upload to the Platform does not contain any representations or material which you know or suspect (or ought reasonably to have known or suspected) to be false, misleading or deceptive, or defamatory or that is in breach of any Intellectual Property Rights.
59. Subject to your compliance with these Terms of Use, we grant you a personal, non-exclusive, royalty-free, revocable, worldwide, non-transferable licence to access, view and use any Content (including any contact details or information relating to Campaigns) on the Platform, solely to obtain the benefit of the Platform, and solely for use in accordance with the Terms of Use. You must not copy or use, in whole or in part, any Content, for any purposes that are not expressly authorised under these Terms of Use, including, without limitation, circumventing the Platform to contact, or undertake transactions with, a Client or a Creator.
60. The ownership of materials created or produced during a Campaign, and the results and proceeds of the services provided by a Creator as part of a Campaign (Campaign Materials), including all Intellectual Property Rights in such Campaign Materials, is specified by the subscription plan held by the client. It is your obligation to ensure that you understand the terms of your Content Licensing Agreement, including in respect of the ownership and usage of Campaign Materials.
CREATOR & CLIENT REPRESENTATIONS AND WARRANTIES
61. You warrant that:
- (a) all information you provide to us upon registering for an Account is true, accurate and complete and not misleading;
- (b) you have not inflated, manipulated, or otherwise misrepresented your social media accounts, metrics or other information;
- (c) you have the right and authority to create an Account and agree to these Terms of Use, including, where relevant, the authority of any Client or individual to create an Account, agree to these Terms of Use and to use the Platform on its or his or her behalf;
- (d) you are authorised to submit Content, as applicable, in the manner invited via the Platform;
- (e) you will not share any personal information of other users of the Platform with any third party;
- (f) any Content you submit to the Platform will not contain anything that;
- - (i) is illegal or contrary to any laws, applicable industry code or the requirements or directions or relevant regulators;
- - (ii) is copied or adapted either wholly or substantially from any other work or material;
- - (iii) is indecent, obscene, threatening, discriminatory, harassing, in breach of any confidence, defamatory, offensive or objectionable or contains, depicts or alludes to or promotes aggressive, unruly, antisocial, lewd or illegal behaviour or sexually suggestive imagery;
- - (iv) parodies, disparages or makes fun of HASHTAG GIFTED or its products of services or HASHTAG GIFTED generally in any way;
- - (v) solicits passwords or personal information for commercial or unlawful purposes or provides any telephone numbers, street addresses, last names, URLs or email addresses;
- - (vi) promotes an illegal or unauthorised copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protect devices, or providing pirated materials;
- - (vii) involves the transmission of junk mail, chain letters, unsolicited mass mailing or spam; or(viii) infringes the privacy rights, contract rights or other rights (including Intellectual Property Rights) of any person, corporation or entity.
GST
62. Words or expressions used in these Terms of Use that are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning as given in the Act. If GST applies to any supply made under these Terms of Use, then the party making that supply may, in addition to any other amount payable, recover from the other party an additional amount on account of GST, such amount to be calculated on the basis of the current GST rate. Unless otherwise specified, any amount payable under these Terms of Use is exclusive of GST.
63. The Client and the Creator acknowledge that:(a) HASHTAG GIFTED will not be responsible or liable in any way for any postponement, cancellation, no-show, termination or other non-performance of a Campaign, or any dispute between a Creator and Client in respect of a Campaign; and(b) we reserve the right to increase our fees or introduce new prices or charges at any time.
INDEMNIFICATION
64. You agree to indemnify, and must defend and hold harmless, HASHTAG GIFTED and its related bodies corporate, personnel, servants and agent, from and against any claims, liabilities, damages, losses and expenses (including reasonable legal fees) arising out of or in any way connected with any of the following (including as a result of your direct activities on the Platform):
- (a) your Content or access to the Platform;
- (b) your use of any Content on the Platform or created through a collaboration via the platform;
- (c) your breach of these Terms of Use (including your privacy or confidentiality obligations) or any of the warranties or covenants given or made by you;
- (d) your participation in, casting of, booking of, or provision of services for a Campaign;
- (e) your claim against a Client for any reason;
- (f) your claim against a Creator for any reason;
- (g) any claim by any third party (including any other Client or Creator) arising directly or indirectly from you breach of any of the provisions of these Terms of Use;
- (h) any claim or allegation that your Content infringes a third party’s rights, including Intellectual Property Rights;
- (i) your violation of any applicable laws, rules or regulations; and
- (j) any misrepresentation made by you.
LIMITATION OF LIABILITY
65. You agree that you use the Platform at your own risk and that HASHTAG GIFTED disclaims any and all responsibility for any damage or loss that you may suffer or incur as a result of using the Platform. To the maximum extent permitted by law (but subject to paragraph 66):
- (a) the Platform and the HASHTAG GIFTED Materials and any other features or functions associated with the Platform are provided "as is" and "as available" with all faults and without warranty;
- (b) in no circumstances will HASHTAG GIFTED be liable in any way for any Content, including but not limited to any errors or omissions in such Content or any loss or damage of any kind incurred as a result of any use of Content posted, transmitted or otherwise made available via the Platform;
- (c) we do not make any promises or assurances to you about the Platform or the HASHTAG GIFTED Materials, including without limitation that your use of the Platform will be uninterrupted or error-free;
- (d) we make no representations or warranties in relation to the accuracy or completeness of the information, advice or other content available on or via the Platform and we do not accept any liability in relation to your reliance on such information, advice or other content; and
- (e) we will not be liable for any loss or damage (including indirect or consequential loss or damage, loss of profit, loss of revenue, loss of data or loss of opportunity) however caused which may be suffered or incurred or which may arise directly or indirectly in respect of the use by you of the Platform.
66. Nothing in these Terms of Use excludes, restricts or modifies any rights that you have under existing laws or regulations and codes, including the Competition and Consumer Act 2010 (Cth) and fair trading laws. There are statutory guarantees under consumer protection laws that cannot be excluded. To the extent that any statutory guarantees apply to these Terms of Use, we limit our liability to the maximum extent permitted by law, at our election, to the supply of our services again or the payment of the cost of having our services supplied again.
NON-DISPARAGEMENT
66A. You agree that as a user of the Platform you cannot publish or cause to be published any defamatory or disparaging remarks, comments or statements concerning HASHTAG GIFTED, its personnel or the Platform to any person, or on any entity or forum.
66B. You agree that if you breach paragraph 66A HASHTAG GIFTED may be entitled to damages.
66C. You also agree that monetary damages may not be an adequate remedy for a breach of paragraph 66A. We are entitled to seek an injunction, or any other remedy available at law or in equity, at our discretion, to protect ourselves from a breach (or continuing breach) of paragraph 66A.
CONFIDENTIALITY
67. Subject to paragraph 69, you must (and must ensure that your personnel do) keep confidential, and not use or permit any unauthorised use of, all Confidential Information. This obligation will survive the termination or expiry of these Terms of Use.67A. If requested, you are required to provide the details of any disclosures of Confidential Information including to who and where information was published.
68. For the avoidance of doubt, you agree that the Content forms part of the Confidential Information, and you may not use, or disclose, any of the Content, in any way that is not permitted under these Terms of Use. You acknowledge and agree that, at times, Content, is not accessible in the public domain, and is of substantial value to users of the Platform.
69. Paragraph 67 does not apply where the disclosure is required by law or the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Terms of Use and provided that you ensure the adviser complies with the terms of paragraph 67.
70. You agree that monetary damages may not be an adequate remedy for a breach of paragraph 67. We are entitled to seek an injunction, or any other remedy available at law or in equity, at our discretion, to protect ourselves from a breach (or continuing breach) of paragraph 67.
PRIVACY
71. HASHTAG GIFTED collects, uses, holds and discloses personal information in accordance with its Privacy Policy and otherwise as set out in these Terms of Use. These Terms of Use prevail to the extent of any inconsistency.
72. In addition to the purposes of collection set out in our Privacy Policy, HASHTAG GIFTED collects personal information from you for the following purposes: to enable us to administer and provide the Platform; to connect Clients with Creator; to facilitate payments; to verify your identity; and to assist us in improving the Platform and our services. We may provide your personal information to our affiliates, commercial partners (for example, Stripe) and financial service providers (for example, a bank, a payment network, or other financial intermediary) for these purposes. You acknowledge that Stripe may use your personal information in accordance with the terms of its privacy policy. You expressly consent to Stripe’s use of your personal information.
NO CIRCUMVENTION
73. Users (and their respective agents) each acknowledge and agree that:
- (a) the Subscription Fee is a significant part of the remuneration which HASHTAG GIFTED receives from the Platform and the Subscription Fee is required to enable HASHTAG GIFTED to make the Platform available;
- (b) HASHTAG GIFTED only receives the Subscription Fee when Clients are signed up to the Platform; and
- (c) It is an essential term of these Terms of Use that the Client and Creator complete all engagements using the Platform and do not negotiate separate payment terms or jobs outside of the Platform.
74. Users (and their respective agents) each acknowledge and agree that, unless the Client or Creatorpays the Opt-Out Fee (see paragraph 76 below), during the Exclusivity Period the Client and Creator:
- (a) must use the Platform as the exclusive method to list, cast, apply for, book and complete and pay for any jobs or services or other engagements between the Client and Creator;
- (b) must not circumvent the payment of the Subscription Fee must not enter into any agreement, contract or other engagement or arrangement for the provision of services by the Creator for the Client outside of the Platform (whether directly or indirectly and whether individually or through any third-party intermediary);
- (c) in the case of a Client – must not submit any proposal or solicit, approach or invite any Creator identified on the Platform to perform services or work, or make payment to that Creator outside of the Platform; and
- (d) in the case of a Creator - must not accept any proposal or invitation from a Client identified on the Platform or solicit or approach any such Client to perform services or work, or receive payment from that Client outside of the Platform.
75. You agree to notify HASHTAG GIFTED immediately if a person suggests that you make or receive a payment or work together outside of the Platform, or if you are aware of a breach or potential breach of the non-circumvention conditions in paragraph 74. Please contact us at [email protected]
76. You may opt-out of the non-circumvention obligations in paragraph 74 in respect of a particular relationship between a Client and a Creator, only if you pay HASHTAG GIFTED an opt-out fee (the Opt-Out Fee), which is calculated as the greater of:
- (a) $3,500;
- or(b) the amount of all Subscription Fees that would be earned by HASHTAG GIFTED during the Exclusivity Period, calculated based on an annualized amount earned by Creator from Client during a normalized 8-week period, or during such shorter period as data is available to HASHTAG GIFTED.
77. In paragraphs 74 and 76, Exclusivity Period means for so long as the Creator or Client (as applicable) is registered on the Platform and a period of 12 months commencing on the later of:
- (a) the date a Client first contacts, meets or identifies a Creator through the Platform; or
- (b) the date that a Creator completes his or her last Campaign for a Client through the Platform, or if a Creator has not completed any Campaign for a Client through the Platform, the date that a Creator’s agreement with us under these Terms of Use is terminated.
78. If HASHTAG GIFTED determines, in its sole discretion, that you have breached your obligations in paragraphs 74 or 75, HASHTAG GIFTED may, to the maximum extent permitted by law:
- (i) charge your Valid Card the Opt-Out Fee;
- or (ii) send you an invoice for the Opt-Out Fee, which you agree to pay within 30 days;
- and/or (iii) terminate your Account; and/or; (iv) charge you for all losses and costs and reasonable expenses (including lawyers’ fees) related to investigating such breach and collecting such fees.
79. Paragraphs 73-77 apply where a Client and a Creator have been introduced or identified through the Platform, for example if a Client identifies a Creator through the Platform. If a Client and a Creator were not introduced through the Platform, for example if the Client and Creator have worked together before meeting on the Platform, then the non-circumvention conditions in paragraphs 73-77 do not apply.MONITORING, SUSPENSION AND TERMINATION 80. HASHTAG GIFTED reserves the right to monitor the Platform generally and all Account activity. If your Account shows signs of fraud, abuse or suspicious activity, we may close or freeze the Account immediately.
80A. HASHTAG GIFTED retains the right and absolute discretion to suspend or terminate your Account, and/or access to the Platform generally without notice. We may also suspend or terminate your Account, and/or access to the Platform generally without notice if we believe you have abused any privilege accorded to you as a participant on the Platform, supplied misleading information or made any misrepresentations to us in connection with the Platform, tampered with the Platform in any way, breached these Terms of Use, or engaged in any unlawful or other improper misconduct calculated to jeopardise the proper administration of the Platform.
80B. HASHTAG GIFTED retains the right to remove any Content that it considers breaches these Terms of Use.GENERAL TERMS
81. If the Platform is not capable of running as planned for any reason beyond the reasonable control of HASHTAG GIFTED, including because of war, terrorism, state of emergency or disaster (including natural disaster), infection by computer virus, bugs, tampering, unauthorised intervention, technical failures or any which corrupt or affect the administration, security, fairness, integrity or proper conduct of the Platform, HASHTAG GIFTED reserves the right, in its absolute discretion, to cancel, terminate, modify or suspend the Platform.
82. These Terms of Use are governed by and are to be construed in accordance with the laws of the State of New South Wales and the parties submit to the jurisdiction of the courts of New South Wales and any courts competent to hear appeals from those courts.
83. If you are using the Platform on behalf of a legal entity, you represent that you are authorised to enter into an agreement on behalf of that legal entity. These Terms of Use constitute the entire agreement between you and HASHTAG GIFTED and govern your use of the Platform, superseding any prior agreements between you and HASHTAG GIFTED. You will not assign any rights or obligations under these Terms of Use, in whole or in part, to any third party without the prior written consent of HASHTAG GIFTED. HASHTAG GIFTED may assign its rights or obligations hereunder at its sole discretion.
84. If any clause or part of any clause is in any way unenforceable, invalid or illegal, it is to be read down and amended so as to be enforceable, valid and legal. If this is not possible, the clause (or where possible, the offending part) is to be severed from these Terms of Use without affecting the enforceability, validity or legality of the remaining clauses (or parts of those clauses) which will continue in full force and effect.
CONTACT AND HELP DETAILS
85. You may contact us at: [email protected]
DEFINITIONS
86. The following terms have the following meanings in these Terms of Use:
“Account” means an account createdby a Client or Creator for use of the Platform;
“Client” means any person or entity, or its duly authorised agents or representatives, registered to use the Platform which requires professional or creative services of Creator for Campaigns;
Confidential Information includes information which is disclosed to a party in connection with these Terms of Use at any time, is prepared or produced under or in connection with these Terms of Use at any time, any Content, relates to a party’s business, assets or affairs; or relates to the subject matter of, the terms of and/or any transactions contemplated by these Terms of Use, whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever a party receives that information;
“Content Licensing Agreement” means the agreement between the Client and HASHTAG GIFTED for the use of Content provided by a Creator engaged through HASHTAG GIFTED;
“Content” means any content uploaded to the Platform or created through a collaboration organised through the Platform and content shared to social media by a Client or a Creator, including any posts, comments, reviews, information (including contact information), video, audio, photographs, images, illustrations, animations, data or other interactive features which may be made available on the Platform;
“Creator” means a user of the Platform who registers as a provider of professional or creative services;
“HASHTAG GIFTED Materials” means the Platform and any associated materials owned, developed or licensed by HASHTAG GIFTED and made available via the Platform;
“Intellectual Property Rights” means all present or future intellectual property rights of whatever nature anywhere in the world including, but not limited to, rights in respect of or in connection with copyright, inventions (including patents), trade marks, service marks, trade names, domain names, designs, any rights in silicon chip topography, Confidential Information and Know-How and similar industrial, commercial and intellectual property rights, whether or not registered or registrable, and includes the right to apply for the registration of such rights, and whether existing in Australia or otherwise;
“Campaign” means a campaign or a gift listed by a Client which requires the services of a Creator, as specified by a Client in a Gifting Campaign on the Platform;
“Gifting Campaign” means the profile for a Campaign listed by a Client on the Platform;
“Platform” means the Website, the the HASHTAG GIFTED mobile and tablet application and any associated HASHTAG GIFTED properties or websites;
“Subscription Fee” means a monthly subscription fee which is payable by a Client for use of the Platform in accordance with their plan;
“Valid Card” means a valid Visa, Mastercard or American Express credit card.
