Terms of Service
Terms of Service
Please read these Terms of Service carefully because they contain important information about your legal rights, remedies and obligations.
Please see FAQs for a description of terms used throughout these Terms of Service which are not defined in this document.
Last Updated: September 2, 2021
These Terms of Service (“Terms”) constitute a legally binding agreement (“Agreement”) between you and Brandcrush Pty Ltd ACN 617 383 052, it's affiliates or agents (collectively,“Brandcrush”) governing your access and use of:
- the Brandcrush Platform and any websites used by Brandcrush to offer or deliver its services including the website brandcrush.com (collectively, Website);
- Brandcrush’s web, mobile, tablet and other smart device applications and application program interfaces (collectively, Application); and
- all services provided by Brandcrush in connection with the Website and Application (Services).
CLAUSE 17 OF THESE TERMS OF SERVICE IS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED ON AN INDIVIDUAL, NON-CLASS ACTION BASIS THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE CLAUSE 17 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT.
The access to or use of certain areas and features of the Brandcrush Platform may be subject to separate policies, standards or guidelines, or may require that you accept additional terms and conditions (“Supplemental Terms”). If there is a conflict between these Terms and terms and any Supplemental Terms, the Supplemental Terms will take precedence with respect to your access to or use of that area or feature, unless specified otherwise.
Certain Space Listings (for example, Space Listings offering Activations at organised events) may be subject to special terms and conditions (“Special Terms”) (for example, stricter cancellation policies) that override these Terms to the extent of any inconsistency. You will be notified on a Space Listing, through an email or a workflow if Special Terms exist and be prompted to read the Special Terms before signing and submitting them to the Activation Partner for approval. Certain types of Activation Partners (for example, Event Partners) may also be subject to special terms and conditions that override these Terms to the extent of any inconsistency. These additional terms and conditions may be notified to you by any means (including by email or by providing a link referring you to view an online document).
Activation Partners are solely responsible for identifying and complying with all laws and rules that apply to their Space Listings and Activations. In some jurisdictions, Activation Partners must obtain a permit or license before providing certain Activations (for example, permits and licenses associated with serving liquor, offering liquor for sale, food preparation and handling, fundraising activities, providing diagnostic or health advice and broadcasting). If you require guidance or assistance with complying with the relevant laws and rules, you should contact the applicable regulatory authorities and obtain legal advice as required.
1. Scope of the Brandcrush Platform
The Brandcrush Platform is an online marketplace and software that enables registered users (“Members”) (Members who offer services are “Activation Partners” or “Partners” (previously Activation Hosts) and the services they offer are “Activations”) to advertise Activations on the Brandcrush Platform (“Space Listings”) and to communicate and transact directly with Members who wish to book Activations (Members using Activations are “Brands”). Activations may be by way of product sampling, pop up, partnerships, sponsorships, in-location digital and print and other media activation units including in-store, in-home and on-line formats. Activations include the use by Brands of physical and digital spaces with existing foot traffic or customer reach (“Activation or Media Spaces”) and may include the provision of staff to deliver a brand or product message on behalf of the brand.
1.2 Legal relationship between Activation Partners and Brands
As the provider of the Brandcrush Platform, Brandcrush does not own, create, sell, resell, provide, control, manage, offer, deliver, or supply any Listings or Activations. Activation Partners are solely responsible for their Space Listings and Activations. When Members make or accept a booking, they are entering into a contract directly with each other. Brandcrush is not and does not become a party to, or other participant in, any contractual relationship between Members. Brandcrush is not acting as an agent in any capacity for any Member.
1.3 Responsibility for Member Content
While Brandcrush may from time to time help facilitate the resolution of disputes between Members, Brandcrush has no control over and does not guarantee:
- the existence, quality, safety, suitability, or legality of any Space Listings or Activations;
- the truth, completeness or accuracy of any Space Listing descriptions;
- Ratings, Reviews, or other Member Content (as defined in clause 7 below); or
- the performance or conduct of any Member or third party.
Brandcrush does not endorse any Member, Space Listing or Activations. Any references to a Member being “verified” (or similar language) only indicates that the Member has completed a relevant verification or identification process and nothing else. Any such description is not an endorsement, certification or guarantee by Brandcrush about any Member, including of the Member's identity or background or whether the Member is trustworthy, safe or suitable. You should always exercise due diligence and care when deciding whether to book or accept an Activation request or when communicating and interacting with other Members, whether online or in person.
Authorized Images (as defined in clause 7.6(i) below) are intended only to indicate a photographic representation of a Space Listing at the time the photograph was taken, and are therefore not an endorsement by Brandcrush of any Activation Partner or Space Listing.
1.4 Legal relationship between Brandcrush and Activation Partners
If you choose to use the Brandcrush Platform as an Activation Partner, your relationship with Brandcrush is limited to being an independent, third-party contractor, and not an employee, agent, joint venturer or partner of Brandcrush for any reason, and you act exclusively on your own behalf and for your own benefit, and not on behalf, or for the benefit, of Brandcrush. Brandcrush does not, and shall not be deemed to, direct or control you generally or in your performance under these Terms specifically, including in connection with your provision of Activations. You acknowledge and agree that you have complete discretion whether to list Activations or otherwise engage in other business or employment activities.
To promote the Brandcrush Platform and to increase the exposure of Space Listings to potential Members, Space Listings and other Member Content may be displayed on other websites, in applications, within emails, and in online and offline advertisements.
1.6 Third Party Services
The Brandcrush Platform may contain links to third party websites or resources (“Third Party Services”). Such Third Party Services may be subject to different terms and conditions and privacy practices. Brandcrush is not responsible or liable for the availability or accuracy of such Third Party Services, or the content, products, or services available from such Third Party Services. Links to such Third Party Services are not an endorsement by Brandcrush of such Third Party Services.
- Application License: Subject to your compliance with the Terms, Brandcrush grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this clause, with respect to any Application access through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the Application on a shared basis within your designated family group.
- App Stores: You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Terms is between you and Brandcrush and not with the App Store. Brandcrush, not the App Store, is solely responsible for the Brandcrush Platform, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Brandcrush Platform, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with all terms of Terms imposed by the applicable App Store when using the Brandcrush Platform or any Service, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce it.
- Accessing and Downloading the Application from iTunes. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
- You acknowledge and agree that (i) the Terms is concluded between you and Brandcrush only, and not Apple, and (ii) Brandcrush, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
- In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Brandcrush and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Brandcrush.
- You and Brandcrush acknowledge that, as between Brandcrush and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- You and Brandcrush acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Brandcrush and Apple, Brandcrush, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
- You and Brandcrush acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
- Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of Terms when using the App Store Sourced Application.
- Accessing and Downloading the Application from the Google Play Store. The following applies to any App Store Sourced Application accessed through or downloaded from the Google Play Store:
- You acknowledge and agree that (i) the Terms is concluded between you and Brandcrush only, and not Google, Inc. (“Google”), and (ii) Brandcrush, not Google, is solely responsible for the Google Play Sourced Application and content thereof. Your use of the Google Play Sourced Application must comply with the Google Play Terms of Service.
- Google is only a provider of Google Play where you obtained the Google Play Sourced Application.
- You acknowledge and agree that Google is a third-party beneficiary to the Terms as it relates to Brandcrush’s Google Play Sourced Application.
- Brandcrush, and not Google, is solely responsible for its Google Play Sourced Application;
- Google has no obligation or liability to you with respect to Brandcrush’s Google Play Sourced Application or these Terms; and
1.7 Access and availability of Brandcrush Platform
Due to the nature of the Internet, Brandcrush cannot guarantee the continuous and uninterrupted availability, availability in any particular location, and accessibility of the Brandcrush Platform. Brandcrush may restrict the availability of the Brandcrush Platform or certain areas or features thereof, if this is necessary in view of capacity limits, the security or integrity of our servers, or to carry out maintenance measures that ensure the proper or improved functioning of the Brandcrush Platform. Brandcrush may improve, enhance and modify the Brandcrush Platform and introduce new Brandcrush Services from time to time.
2 Eligibility to use Brandcrush Platform
In order to access and use the Brandcrush Platform or register as a Member, you must:
- be an entity which is registered by the applicable government authority to carry on business in the countries in which you seek to either book or carry out Activations;
- be registered for GST or equivalent sales tax in the countries where you seek to book or carry out Activations; and
- if registering as an Activation Partner, be able to provide an estimate of foot traffic, customer or audience reach (“Market Reach Estimate”) (which is verifiable having regard to past and current data) and sufficiently accurate to enable Brands to assess whether the fees proposed for an Activation represent fair value and decide whether to book a particular Activation.
2.2 Representations and warranties
By accessing or using the Brandcrush Platform you represent and warrant that:
- you are an entity which is legally entitled to carry on business in the country where you are seeking to book or carry out Activations and have the legal capacity and authority to enter into a contract;
- if you are an individual registering on behalf of an entity, you have the authority to legally bind that entity and grant us all permissions and licenses provided in these Terms;
- you are registered for GST or equivalent sales tax in the countries where you seek to book or carry out Activations; and
- if registering as an Activation Partner, your Market Reach Estimate in respect of each Listing is sufficiently accurate and verifiable.
2.3 Further conditions
Brandcrush may make access to and use of the Brandcrush Platform, or certain areas or features of the Brandcrush Platform, subject to certain conditions or requirements, such as completing a verification process, meeting specific quality or eligibility criteria, meeting Ratings or Reviews thresholds, or a Member’s booking and cancellation history.
2.4 Member verification
Member verification without face-to-face meetings is difficult and we do not assume any responsibility for the confirmation of any Member’s identity. Notwithstanding the above, for transparency and fraud prevention purposes, and as permitted by applicable laws, we may, but have no obligation to:
- ask Members to provide an extract from a government authority (for example, ASIC certificate of incorporation) or other information or undertake additional checks designed to help verify the identities or backgrounds of Members; and
- screen Members against third party databases (for example, credit reporting bodies) or other sources and request reports from service providers.
3. Account registration
3.1 Activation Partners and Brands
You must register an account (“Brandcrush Account”) to access and use certain features of the Brandcrush Platform, such as publish a Listing, book an Activation or receive a booking for an Activation. You may not register more than one (1) Brandcrush Account unless otherwise authorized in writing by Brandcrush. You may not assign or otherwise transfer your Brandcrush Account to any third party.
3.2 Registration process
You can register a Brandcrush Account using an email address, creating a password and providing certain business and contact information. You represent that you are (i) at least eighteen (18) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Brandcrush Platform under the laws of your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Brandcrush Account.
3.3 Obligation to keep up-to-date
You must provide accurate, current and complete information during the registration process and keep your Brandcrush Account and public Brandcrush Account profile page information up-to-date at all times.
If you provide any information that is untrue, inaccurate, not current or incomplete, or Brandcrush has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Brandcrush has the right to suspend or terminate your Brandcrush Account and refuse any and all current or future use of the Brandcrush Platform (or any portion thereof).
You are responsible for maintaining the confidentiality and security of your Brandcrush Account credentials and must not disclose your credentials to any third party. You must immediately notify Brandcrush if you know or have any reason to suspect that your credentials have been lost, stolen, misappropriated, or otherwise compromised or in case of any actual or suspected unauthorized use of your Brandcrush Account. You are liable for any and all activities conducted through your Brandcrush Account, unless such activities are not authorized by you and you are not otherwise negligent (such as failing to report the unauthorized use or loss of your credentials).
3.5 Authorised third parties
- Brandcrush may enable features that allow you to authorize other Members or certain third parties (including media agencies, resellers and team members) (Authorized Third Party) to take certain actions that affect your Brandcrush Account. For example, we may allow eligible Members or certain third parties to publish Listings or book Activations on behalf of other Members. These features do not require that you share your credentials with any other person. No third party is authorized by Brandcrush to ask for your credentials, and you must not request the credentials of another Member.
- Subject to clause 6.4, you may request that Brandcrush issue an invoice for Activation Partner Fees and/or Brand Fees to an Authorized Third Party for payment on your behalf.
- If you appoint an Authorized Third Party to act as your agent in connection with the Brandcrush Platform (including to administer an Activation Partner’s Listing(s) or book Activations on behalf of Brands), you and the Authorized Third Party represent and warrant that:
- the Authorized Third Party has been duly appointed and authorized to act on your behalf in connection with the Brandcrush Platform (including to receive and remit payments);
- you remain fully responsible for the performance of your obligations under these Terms; and
- any agreement formed between you and an Authorized Third Party does not conflict with these Terms.
- Media agencies using the Brandcrush Platform acknowledge and agree that the Activation Partner Fees and/or Brand Fees is a cost of good and is non-commissionable. No agency rebated will be given.
4. Terms specific to Activation Partners
4.1 Terms that apply to all Space Listings
- When creating a Listing through the Brandcrush Platform you must:
- provide complete and accurate information about your Activation capacity (including details of your Activation Space and staff availability);
- disclose any deficiencies, restrictions and requirements that apply; and
- provide any other pertinent information requested by Brandcrush.
- You are responsible for keeping your Listing information (including availability) up-to-date at all times. Activation Partners, not Brandcrush, is solely responsible for all such Listing information and the content therein that Activation Partner creates a Listing for the Brandcrush Platform.
- You are solely responsible for setting a price (including any Taxes, if applicable) for your Activation Fee. Once a Brand requests a booking for an Activation, you must not request that the Brand pays a higher price than the Activation Fee quoted in the booking request. When setting your Activation Fee, Activation Partners must use best endeavours to charge fair and reasonable Activation Fees that reflect the value offered by a particular Activation having regard to the nature of the Activation.
- Any terms and conditions included in your Space Listing, in particular in relation to cancellations, must not conflict with these Terms unless you provide supplemental terms or special terms to the Brand.
- Pictures, animations or videos (collectively, “Space Listing Images”) used in your Space Listings must accurately reflect the quality and condition of your Activations and Activation Spaces. Brandcrush reserves the right to require that Space Listings have a minimum number of Images of a certain format, size and resolution.
- You must keep strictly confidential:
- all Activation Reports (except to the extent that you provide this information to Brandcrush in accordance with these Terms);
- prior to Activations, all materials related to Activations which identify a Brand or which a Brand may be reasonably identified, including details of any requests and correspondence made in connection with a Listing; and
- all materials relating to an Activation which would be considered by a reasonable person to be commercially sensitive or confidential in nature.
- The placement and ranking of Space Listings in search results on the Brandcrush Platform may vary and depend on a variety of factors including Member search parameters and preferences, Activation Partner requirements, price and availability, number and quality of Space Listing Images, service and cancellation history, Reviews and Ratings and type of Activation.
- When you accept or have pre-approved a booking request by a Brand, you are entering into a legally binding agreement with the Brand and are required to provide the relevant Activation to the Brand as described in your Space Listing when the booking request is made. You also agree to pay the applicable Commission to Brandcrush and any applicable Taxes.
- Brands and Activation Partners acknowledge that, in rare circumstances, the success of an activation may be adversely affected by unforeseeable and/or unavoidable circumstances, including circumstances beyond the reasonable control of Partners (for example; misplaced product; schedule changes) (Adverse Event). If an Adverse Event occurs that may have a negative impact on a [brand], Partners must use best endeavours to:
- mitigate any loss and damage to the [brand] arising from the Adverse Event; and
- arrange a “make good” campaign in consultation with the [brand].”
4.2 Activation Reports
Where Activations are carried out on behalf of Brands by Activation Partners:
- Activation Partners must submit an Activation Report in the form prescribed by Brandcrush as soon as practicable, and no later than 10 Business days after completion of an Activation. Release by Brandcrush of the Activation Fee payable in connection with the Activation is contingent on Brandcrush receiving an Activation Report which proves the Activation was completed satisfactorily (as determined by Brandcrush, acting reasonably); and
- the Activation Partner will forfeit any Activation Fee payable in relation to an Activation if an Activation Report has not been received by Brandcrush within 10 Business Days.
- You grant Brandcrush and each Brand which books an Activation, a non-exclusive, worldwide, royalty-free, irrevocable, perpetual (or for the term of the protection), sub-licensable and transferable license to any Images contained in the applicable Activation Report (“Activation Report Images”) to access, use, store, copy, modify, prepare derivative works of, distribute, publish, transmit, stream, broadcast, and otherwise exploit in any manner such Activation Report Images to, in respect of Brandcrush, promote the Brandcrush Platform on social media platforms and in respect of the Brand, to promote the Brand on social media platforms.
- You must ensure that you obtain the consent of any person who is identifiable in the Activation Report Images in accordance with the following guidelines:
- if the person is clearly identifiable and/or the Image will, or may be, the subject of an extensive or prominent marketing campaign, you must obtain the written consent and release signed by the relevant person; and
- if the person is not clearly identifiable and/or not the main subject of the Image, or the image use is restricted to social media, you must obtain verbal or implied consent of the relevant person.
- It is the sole responsibility of the Activation Partner to obtain, and be in the position to verify and prove that the relevant consents have been obtained, in connection with the Activation Report Images. By submitting the Activation Report Images to Brandcrush, you represent and warrant that such consents have been obtained.
In order for Brandcrush to ensure space inventory is managed and Brands have a satisfactory user experience, Activation Partners must not use any third party intermediary platform aside from the Brandcrush Platform to list activation spaces for booking by third parties. This clause 4.4 does not prevent Activations Partners booking activation spaces through their own channels which are not in the form of an online/marketplace platform.
4.5 Customer Reach Estimate
In addition to providing a fair and accurate Market Reach Estimate as a condition of your registration as an Activation Partner, you must also provide a fair and accurate assessment of your customer reach in respect of an Activation Space, as calculated having regard to the number of products/samples/messages which can be distributed to consumers/members/people per day/activation in a particular Activation Space.
4.6 Receipt of samples, materials and creative assets
- Prior to the asset delivery dates (defined in clause 5.3(i) below), you will receive an email from Brandcrush requiring you to inform us whether you have received the relevant samples, materials and creative assets required for a booked Activation. You must respond promptly and accurately to the email.
- You must use best endeavours to accommodate any request by a Brand to extend a defined asset delivery date (defined in clause 5.3(i) below) or vary the date for performance of an Activation in circumstances where there would not be any unreasonable impact on your business costs or operations. The brand reserves the right to change the activation in accordance with clause 6.3. The Activation Partner also reserves the right to apply change fees in accordance with clause 6.3.
- It is the responsibility of the Brand to ensure all activation assets are delivered in a state which are fit for purpose and as intended for the activation and by the required dates. While it is not the responsibility of the Activation Partner to determine whether the activation assets are fit for purpose, you should use best endeavours to notify the Brand of any issues if they are identified. If corrective action is required, the brand reserves the right to change the activation in accordance with clause 6.3. You also reserve the right to apply change fees in accordance with clause 6.3.
- Where an Activation is to be activated by the Activation Partner, you must deliver the relevant samples, materials and/or creative assets (“Activation assets”) to the Activation Partner by the date specified in the campaign workflows, delivery csv file or purchase orders (“asset delivery dates”).
- If brands fail to deliver Activation assets by the asset delivery dates brands should contact you via the message service and request that you accept delivery of the Activation assets at a later date. You may also request that the Activation be moved to a later date. The Activation Partner may, but has no obligation to, accept requests for extensions to the asset delivery dates and/or variations to the Activation Date. The brand reserves the right to change the activation in accordance with clause 6.3. The Activation Partner also reserves the right to apply change fees in accordance with clause 6.3.
- If you are unable to change or negotiate an extension to the asset delivery dates or a variation to the Activation Date, you will be deemed to have cancelled the Activation and Service Fees will be charged in accordance with clause 6.3.
- For activations that require delivery of Products, the brand shall notify Activation Partner of any product shortage or delay within 48 hours of the scheduled product delivery date. If the brand fails to timely fulfill the volume commitment stipulated in the booking, the Activation Partner shall not be obligated to activate with the Product. The Brand shall be liable for all incremental costs and shipping costs to replace Product or return the Product.
- For activations that require delivery of Products as activation assets, if the Product is received by the Activation Partner past the product due by date, the Product shall be deemed late. If the product is received with a due by date that does not allow for ample distribution time of the product for the activation before the due by date, the product will be deemed as late. If you are unable to change or negotiate an extension to the activation and asset delivery dates, you will be deemed to have cancelled the Activation and Service Fees will be charged in accordance with clause 6.3. If an activation date change is negotiated, you shall be liable for all incremental costs and shipping costs to replace Product or return the Product.
- As freight issues can occur, we encourage Activation Partners to work with Brands to accommodate a revised activation date if it can be accommodated with their current operations.
4.7 Food storage, handling and safety
Activation Partners offering Activations that involve the distribution of perishable products must ensure:
- the products are stored and handled in accordance with all relevant food safety laws and guidelines and as marked on packaging; and
- it holds all applicable licenses and certifications required by the relevant laws and regulations (including any food handling certification of staff members in contact with unpackaged products).
4.8 Responsible service of alcohol
Activation Partners offering Activations that involve the service of alcohol or alcohol-related products must ensure:
- alcohol or alcohol-related products are only served, distributed or promoted to those persons who meet the legal age for consumption of alcohol in the country in which the Activation is taking place; and
- it holds all applicable licenses and certifications required by the relevant laws and regulations (including any responsible service of alcohol or other certification required by staff members in contact with the products).
4.9 Franchise agreements
If you create a Space Listing in respect of an Activation Space which is a franchise location, you represent and warrant that the Space Listing and any subsequent Activation complies with the applicable franchise agreement and any other terms, conditions or rules relating to the availability or authorized use of the Activation Space and the brand representation required by the relevant franchisor.
4.10 Mystery shoppers
Brandcrush may engage “mystery shoppers” or carry out other forms of random or targeted audits of Activations provided by Activation Partners in the marketplace.
5. Terms specific to Brands
5.1 Bookings and fees
Subject to meeting any requirements (such as completing any verification processes) set by Brandcrush and/or the Activation Partner, you can book a Space Listing available on the Brandcrush Platform by following the respective booking process. All applicable fees, including the Booking Fee, Activation Fee and any applicable Taxes (collectively, “Total Fees”) will be presented to you prior to booking a Listing. You agree to pay the Total Fees for any booking requested in connection with your Brandcrush Account. Brandcrush will collect the Total Fees at the time of the booking request.
5.2 Brand information
You must provide the Activation Partner with reasonable details of your brand (including logo, brand description, social handles and trade marks) to enable the Activation Partner to have an adequate representation of your brand in order to carry out the Activation.
5.3 Delivery of samples, materials and creative assets
- Where an Activation is to be activated by the Activation Partner, you must deliver the relevant samples, materials and/or creative assets (“Activation assets”) to the Activation Partner by the date specified in the campaign workflows, delivery csv file or purchase orders (“asset delivery dates”).
- If you fail to deliver Activation assets by the asset delivery dates, you should contact the Activation Partner via the message service and request that they accept delivery of the Activation assets at a later date. You may also request that the Activation be moved to a later date. The Activation Partner may, but has no obligation to, accept requests for extensions to the asset delivery dates and/or variations to the Activation Date. The brand reserves the right to change the activation in accordance with clause 6.3. The Activation Partner also reserves the right to apply change fees in accordance with clause 6.3.
- If you are unable to change or negotiate an extension to the asset delivery dates or a variation to the Activation Date, you will be deemed to have cancelled the Activation and Service Fees will be charged in accordance with clause 6.3.
- It is your responsibility to ensure all samples/assets are delivered in a state which are fit for purpose and as intended for the activation. It is not the responsibility of the Activation Partner to determine whether the samples/assets are fit for purpose. Should corrective action be required, the brand reserves the right to change the activation in accordance with clause 6.3. The Activation Partner also reserves the right to apply change penalties in accordance with clause 6.3.
- For the avoidance of doubt, for activations that require delivery of Products as activation assets, if the Product is received by the Activation Partner past the product due by date, the Product shall be deemed late. If the product is received with a due by date that does not allow for ample distribution time of the product for the activation before the due by date, the product will be deemed as late. If you are unable to change or negotiate an extension to the activation and asset delivery dates, you will be deemed to have cancelled the Activation and Service Fees will be charged in accordance with clause 6.3. If an activation date change is negotiated, you shall be liable for all incremental costs and shipping costs to replace Product or return the Product.
5.4 Flag notification
Brands may use the “Flag this Activation Partner” function on the Brandcrush Platform to notify Brandcrush of any significant issues with a particular booked Activation or Activation Partner (for example, an Activation Space does not exist or is materially inconsistent with the relevant Listing). Where a Brand “flags” an Activation Partner, all Service Fees in connection with the booked Activation will be paused and any future bookings suspended pending investigation by Brandcrush. Brandcrush will use reasonable efforts to investigate the issue(s) and will make a determination in relation to payment of Service Fees. Brandcrush’s decisions in relation to disputes between Members will be final and binding. Brands can also email firstname.lastname@example.org to advise of any issues.
You acknowledge and agree that the relationship between you and the Activation Partner is non-exclusive and Activation Partners may carry out Activations or otherwise promote brands which are similar to, or compete with, your brand. However, opportunities for effective or limited exclusivity exist where Brands and Activation Partners develop long term partnerships which may involve, for example, Brands booking out Activation Spaces for extended periods.
5.6 Legal agreement
Upon receipt of a booking confirmation from Brandcrush, a legally binding agreement is formed between you and the applicable Activation Partner, subject to any additional terms and conditions of the Activation Partner that apply, including in particular any rules and restrictions specified in the Listing. Any agreements created between a Brand and an Activation Partner are not binding on Brandcrush. We are not liable for, or obligated to enforce, any agreements between a Brand and an Activation Partner. You will not consider Brandcrush, nor will Brandcrush be construed as, a party to such transactions, whether or not Brandcrush receives some form of remuneration in connection with the transaction, and Brandcrush will not be liable for any costs or damages arising out of or related to such transaction.
5.7 Confidential Information
Brands and agencies including Authorized Third Parties (as defined in clause 3.5), must keep strictly confidential:
- All information relating to the Activation Partner’s 3PL providers, distribution and warehousing, manufacturing, third party providers and contractors that may be disclosed during the execution of the Activation
- Prior to Activations, all materials related to Activations which identify an Activation Partner or which an Activation Partner may be reasonably identified, including details of any requests and correspondence made in connection with a Listing; and
- all materials relating to an Activation which would be considered by a reasonable person to be commercially sensitive or confidential in nature.
- All information in relation to proposals, pricing and reach
- All sensitive campaign and product launch information
- Any other sensitive information pertaining to the Activation Partners’s operations that is not generally known to the public outside of the Brandcrush platform.
6. Service & Subscription Fees
6.1 Fee types
Brandcrush may charge service & subscription fees and commissions to Activations Partners (“Activation Partner Fees”) and/or Brands (“Brand Fees”) (collectively, “Service Fees”) in consideration for the use of the Brandcrush Platform.
- Activation Partner Fees comprise a commission payable by the Activation Partner to Brandcrush (“Commission”) and is disclosed on the Activation booking request or as otherwise set forth herein, online and/or in a separately executed or accepted agreement between you and Brandcrush
- Brand Fees comprise a fee payable by the Brand to Brandcrush (Booking Fee) and the fee payable to the Activation Partner for the Activation (Activation Fee) and are disclosed at checkout when the Brand makes a booking request.
- Subscription Fees comprise an annual or monthly fee payable by the Brand/Activation Partners to Brandcrush in consideration of utilizing Brandcrush as a software as a service. Fees for the Subscription (“Subscription Fees”) are set forth herein, online and/or in a separately executed or accepted agreement between you and Brandcrush
- Brandcrush may also from time to time provide certain services to Activation Partners or Brands for an additional fee that would support Activation Partners and Brands with their activations (“Other Service Fees”). These other services may include but are not limited to freight, management and concierge services. These fees will be disclosed either at checkout, online and/or in a separately executed or accepted agreement between you and Brandcrush.
Except as otherwise specified in these Terms, Service Fees are non-refundable.
6.2 Timing of payments
- Brand Fees are payable via EFT and ACH transfers and credit card payments via third party payment gateway Stripe.
- Payment terms and payment methods are communicated at the point of booking and via auto generated invoices.
- For credit card payments; The Brand Fees will be processed at the time that you make a request to book an Activation (“Activation Request”). Brandcrush will hold payment for a maximum of five (5) Business Days while your Activation Request is pending. The Booking Fee will be released to Brandcrush on acceptance of an Activation Request by the Activation Partner.
- For brands approved for invoice payment: The Brand Fees will be issued in an invoice and payment will be required to the nominated bank account on or before the due date.
- Brandcrush reserves the right to issue, deny or revoke credit terms from brands at any time, and without prior notice.
- Enterprise Activation Partners may opt to manage their own invoicing and collections process. In this case, payment terms and payment methods are communicated at the point of booking.
- Unless Brandcrush becomes aware of an issue in relation to an Activation (including where an issue has been “flagged” by a Brand in accordance with clause 5.4), the Activation Fee will be released to the Activation Partner to its nominated Bank account:
- Payments will be made in the same currency as the activation fees charged. For Payments made or transferred to a bank account which is not in the same currency as the activation fees, currency conversion and transfer fees will be deducted from the payment amount;
- Payments that relate to marketplace bookings will be made within 10 business days of a completed activation, unless otherwise stated in a separately executed agreement.
- Payments that relate to private media site bookings, will be made within 30 days from activation completed date unless otherwise stated in a separately executed agreement.
- The Activation completion date for Activations carried out on behalf of Brands by Activation Partners is the date the Activation Report is completed
- Where Activations are carried out on behalf of Brands by Activation Partners, an activation is deemed to be completed when a valid proof of activation report has been submitted.
- Where Activations are carried out by the brand, an activation is deemed to be completed when at the activation end date.
- Where Activations are carried out on behalf of Brands by Activation Partners, the Activation Partner will forfeit any right to payment of the Activation Fee in relation to an Activation if an Activation Report has not been received by Brandcrush within 10 Business Days.
- Subscription fees:
- Unless otherwise communicated to you at the time of sign up via a separately executed agreement or notification, each Subscription cycle is one-year in length, with a minimum cancellation period of 12 months or as stated on a (“Subscription Period”), and will automatically renew on a yearly basis until we terminate the Subscription, or you notify us by email to email@example.com of your decision to terminate your current Subscription; provided, however, that billing for subscription plans can only be cancelled after a minimum of twelve consecutive monthly payments (subscription cancellation period). Where there is a supplemental subscription agreement, If there is a conflict between these Terms and any Supplemental Terms, the Supplemental Terms will take precedence.
- Unless otherwise stated, fees must be paid in advance of each billing period. Your Subscription starts on the date that you sign up for a Subscription and submit payment.
- Billing frequency can occur on a monthly or annual basis.
- For monthly billing, billing occurs on the same day each month, based on the date that you started your subscription cycle (“Subscription Date”). Payments are due for any month on the same or closest date to the day you made your first monthly payment (the “Pay Date”). If any part of a month is included in the Term, then payment is required for the full month.
- If your Subscription begins on a date that does not occur every billing cycle (e.g., the 31st), you will be billed on the last day of every month. We reserve the right to change the timing of our billing.
- You acknowledge that the amount billed to you each year (the subscription period) may vary due to promotional offers and/or adding or changing your Subscription plan, and you authorize Brandcrush to charge you for these varying amounts as necessary.
- Direct Debit Authorization: Brandcrush is authorized to direct debit subscription payment from the nominated card or bank account during the course of subscription period. It is the responsibility of the Activation Partner to ensure sufficient funds are available at the beginning of each billing period.
- Subscription fees are non-refundable and non-transferable except for as expressly provided in these Terms of Service.
- If you fail to pay any charges or we are unable to successfully process your payment of any charges within the timeframe required (as applicable), we reserve the right to charge a late payment fee calculated at a rate of ten percent (10%) per annum but no less than $10.00 per month. This amount represents a genuine and reasonable estimate of such costs and expenses associated with managing and processing late payments. We also reserve the right to withdraw credit facilities (where applicable) at any time or to remove your access to the Brandcrush Platform. You may also be liable to pay interest on any amount outstanding at the applicable national interest rate on the date the payment becomes due and you may also be responsible for all reasonable expenses incurred by us as a result of such late payment (including but not limited to costs incurred by us to recover any unpaid amounts). Without limiting our rights, in the event you fail to pay any charges within the timeframe and in the manner required, we reserve the right to suspend or terminate your access to the Brandcrush Platform or to suspend or terminate any current campaigns.
6.3 Changes, cancellations and refunds
- Brands are entitled to make changes to an Activation. Change fees may apply, and the change fees will be added to the Activation Fee.
- No change penalties apply for changes made at least thirty (30) days prior to the first day of the applicable Activation Date
- A 10% change fee will apply for changes made between fifteen (15) days and twenty nine (29) days prior to the applicable Activation Date
- A 20% change fee will apply for changes made less than fifteen (15) days prior to the applicable Activation Date. The change fee will be added to the Activation Fee
- The Activation Partner reserves the right to waive these fees if they are not disruptive to their operations.
- Service Fees payable by a Brand that cancels an Activation are non-refundable if the Activation is cancelled less than fifteen (15) days prior to the first day of the booked Activation (Activation Date).
- A Brand may be entitled to a full or partial refund of the Service Fees payable by the Brand in relation to an Activation cancelled by the Brand in accordance with the following terms:
- the Brand will receive a refund of 100% of the Service Fees if the cancellation is made at least thirty (30) days prior to the first day of the applicable Activation Date; and
- the Brand will receive a refund of 40% of the Service Fees (comprising 50% of the Activation Fee, the Booking Fee will remain payable to Brandcrush) if cancellation is made between fifteen (15) days and twenty nine (29) days prior to the applicable Activation Date.
- A Brand will be entitled to a full refund of the Service Fees payable by the Brand in relation to an Activation in the following circumstances:
- the Activation is cancelled by the Activation Partner; or
- no Activation Report is received from the Activation Partner by Brandcrush in relation to the Activation.
- An Activation Partner will be entitled to full or partial payment of the Activation Fee payable by the Brand if a Brand cancels an Activation in the following circumstances:
- 50% of the Activation Fee will be payable where the cancellation is made between fifteen (15) days and twenty nine (29) days prior to the applicable Activation Date; and
- 100% of the Activation Fee will be payable where the cancellation is made less than fifteen (15) days prior to the applicable Activation Date.
- Certain types of Activation Partners may also be subject to special terms and conditions that override these Terms to the extent of any inconsistency. These additional terms and conditions may be notified to you by any means (including by email or by providing a link referring you to view an online document).
- Subscription Fees: During your subscription term, subscription plans can only be cancelled after a minimum of twelve consecutive monthly payments (“Cancellation Period”). No early termination or refunds are available for subscriptions paid on an annual billing period. For annual billing, the Subscription Term will end on the expiration date and the subscription cannot be cancelled early. We do not provide refunds if you decide to stop using the Brandcrush subscription during your Subscription Term or Cancellation Period. Where there is a supplemental subscription agreement, If there is a conflict between these Terms and any Supplemental Terms, the Supplemental Terms will take precedence.
6.4 Payment by credit card
If you are paying by credit card, you authorize us or Stripe to charge your credit card or bank account for all fees payable during the Subscription Term and/or for a booking.
You will keep your contact information, billing information and credit card information (where applicable) up to date. Changes may be made on your Brandcrush Account. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in these Terms.
6.5 Payment by invoice
- Invoice payments are only available to approved brands and agency partners. To request approval, please email firstname.lastname@example.org.
- Unless otherwise notified by Brandcrush in writing, invoices must be paid in full on or prior to a date which is thirty (30) days after the invoice is issued by Brandcrush. Any terms of credit offered by Brandcrush may be varied by Brandcrush in its sole discretion by notifying you in writing.
- Where Brandcrush approves a Member or Authorized Third Party (defined in clause 3.5(i) below) to pay by invoice, the Member or Authorized Third Party irrevocable authorizes Brandcrush to make such inquiries as deemed necessary to investigate the credit worthiness of the Member or Authorized Third Party’s (as the case may be).
6.6 Fee updates
Brandcrush may change the Service Fees at any time and will provide Members adequate notice of any fee changes before they become effective.
Subscription fees will remain fixed during the Subscription Term. Outside of the Subscription Term, we reserve the right to adjust pricing for the Subscription Services at any time upon fourteen (14) days prior notice. Unless we expressly communicated otherwise, any price change to your membership will take effect on your next billing cycle. You must agree to the change in fees to continue to use the Services. To withdraw your consent, you will need to cancel your account by notifying us at email@example.com.
7.1 Member and Brandcrush content
Brandcrush may, at its sole discretion, enable Members to:
- create, upload, post, send, receive and store content, such as text, photos, audio, video, or other materials and information on or through the Brandcrush Platform (“Member Content”); and
- access and view Member Content and any content that Brandcrush itself makes available on or through the Brandcrush Platform, including proprietary Brandcrush content and any content licensed or authorized for use by or through Brandcrush from a third party (“Brandcrush Content”).
You acknowledge that Brandcrush has no obligation to pre-screen content (including, but not limited to, Member Content), although Brandcrush reserves the right in its sole discretion to pre-screen, refuse or remove any content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Member Content. In the event that Brandcrush pre-screens, refuses or removes any content, you acknowledge that Brandcrush will do so for Brandcrush’s benefit, not yours. Without limiting the foregoing, Brandcrush shall have the right to remove any content that violates the Terms or is otherwise objectionable.
7.2 Intellectual property rights
The Brandcrush Platform, Brandcrush Content, and Member Content may in its entirety or in part be protected by copyright, trademark, and/or other laws of United States of America, Australia and other countries. You acknowledge and agree that the Brandcrush Platform and Brandcrush Content, including all associated intellectual property rights, are the exclusive property of Brandcrush and/or its licensors or authorizing third parties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Brandcrush Platform, Brandcrush Content or Member Content. All trademarks, service marks, logos, trade names, and any other source identifiers of Brandcrush used on or in connection with the Brandcrush Platform and Brandcrush Content are trademarks or registered trademarks of Brandcrush in the United States of America, Australia and/or in other countries. Trademarks, service marks, logos, trade names and any other proprietary designations of third parties used on or in connection with the Brandcrush Platform, Brandcrush Content, and/or Member Content are used for identification purposes only and may be the property of their respective owners.
You will not use, copy, adapt, modify, prepare derivative works of, distribute, license, sell, rent, lease, transfer, assign, reproduce, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Brandcrush Platform, Brandcrush Content or Member Content, except to the extent you are the legal owner of certain Member Content or as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Brandcrush or its licensors, except for the licenses and rights expressly granted in these Terms or which may be agreed to in writing by you, Brandcrush and the legal owner of the applicable Member Content.
7.4 Member licence grant
By creating, uploading, posting, sending, receiving, storing, or otherwise making available any Member Content on or through the Brandcrush Platform, you grant to Brandcrush a non-exclusive, worldwide, royalty-free, irrevocable, perpetual (or for the term of the protection), sub-licensable and transferable license to such Member Content to access, use, store, copy, modify, prepare derivative works of, distribute, publish, transmit, stream, broadcast, and otherwise exploit in any manner such Member Content to provide and/or promote the Brandcrush Platform, in any media or platform. Unless you provide specific consent, Brandcrush does not claim any ownership rights in any Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use or exploit your Member Content.
7.5 Authorised Images
- Brandcrush may offer Activation Partners the option of having professional photographers take photographs of their Activations or Activation Spaces, which are made available by the photographer to Activation Partners to include in their Space Listings (“Authorized Images”). You are responsible for ensuring that your Activation Space and Activations are accurately represented in the Authorized Images and you will stop using the Authorized Images on or through the Brandcrush Platform if they no longer accurately represent your Space Listing, if you stop hosting the Activation featured, or if your Brandcrush Account is terminated or suspended for any reason.
- You acknowledge and agree that Brandcrush has the right to use any Authorized Images for advertising, marketing and/or any other business purposes in any media or platform, whether in relation to your Listing or otherwise, without further notice or compensation to you. Where Brandcrush is not the exclusive owner of Authorized Images, by using such Authorized Images on or through the Brandcrush Platform, you grant to Brandcrush an exclusive, worldwide, royalty-free, irrevocable, perpetual (or for the term of the protection), sub-licensable and transferable license to use such Authorized Images for advertising, marketing and/or any other business purposes in any media or platform, whether in relation to your Listing or otherwise, without further notice or compensation to you. Brandcrush in turn grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to use Authorized Images outside of the Brandcrush Platform solely on your social media channels in connection with your legitimate business activities.
7.6 Member content representations
You are solely responsible for all Member Content that you make available on or through the Brandcrush Platform. Accordingly, you represent and warrant that:
- you either are the sole and exclusive owner of all Member Content that you make available on or through the Brandcrush Platform or you have all rights, licenses, consents and releases that are necessary to grant to Brandcrush the rights in and to such Member Content, as contemplated under these Terms; and
- neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or Brandcrush's use of the Member Content (or any portion thereof) will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Brandcrush may, but is not obligated to, monitor or review Member Content at any time. Without limiting the foregoing, Brandcrush shall have the right, in its sole discretion, to remove any Member Content for any reason (or no reason), including if such Member Content violates the Terms or any applicable law. Although Brandcrush does not generally monitor user activity occurring in connection with Member Content, if Brandcrush becomes aware of any possible violations by you of any provision of the Terms, Brandcrush reserves the right to investigate such violations, and Brandcrush may, at its sole discretion, immediately terminate your license to use Services, or change, alter or remove Member Content, in whole or in part, without prior notice to you.
7.7 Prohibited content
You will not post, upload, publish, submit or transmit any Member Content that:
- is fraudulent, false, misleading (directly or by omission or failure to update information) or deceptive;
- is unlawful, tortious, defamatory, libelous, obscene, pornographic, vulgar or offensive;
- violates or encourages any conduct that would violate any applicable law or regulation or would give rise to civil liability;
- promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;
- is violent or threatening or promotes violence or actions that are threatening to any other person or animal;
- violates any Brandcrush policy.
Brandcrush may, without prior notice, remove or disable access to any Member Content that Brandcrush finds to be in violation of these Terms or Brandcrush’s then-current policies or otherwise may be harmful or objectionable to Brandcrush, its Members, third parties, or property.
You agree that submission of any ideas, suggestions, documents, and/or proposals to Brandcrush through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Brandcrush has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Brandcrush a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Brandcrush Platform and/or Brandcrush’s business.
7.9 Procedure for making claims of copyright infringement
It is Brandcrush’s policy to terminate membership privileges of any Member with a Brandcrush Account who repeatedly infringes copyright upon prompt notification to Brandcrush by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on Services of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Brandcrush’s Copyright Agent for notice of claims of copyright infringement is as follows: Brandcrush Pty Ltd, Attn: Copyright Agent, L4, 80 Market St, South Melbourne, Victoria, Australia, 3042.
Given the nature of Activations and the interface with consumers and the general public, Brandcrush considers it is in all parties’ interests to ensure both Activations Partners and Brands have adequate insurance coverage. We expect Members will have the following insurance arrangements in place as part of their ordinary business practices in their respective regions of operation.
8.1 Activation Partners
Activation Partners must maintain throughout the term of this Agreement:
- commercial general liability insurance, written on an occurrence basis, on a combined single limit of AUD$10,000,000 per occurrence; and
- statutory workers' compensation insurance.
Brands must maintain through the term of this Agreement public liability insurance (incorporating product liability insurance), written on an occurrence basis, on a combined single limit of AUD$10,000,000 per occurrence. Note some Activation Partners may request a higher limit.
8.3 Coverage and certificates of currency
The primary insured (i.e. the Activation Partner or the Brand, as the case may be) must ensure that the other party to the Activation (“Secondary Insured Party”) is covered by the commercial general liability insurance or public liability insurance (as the case may be) and provide the Secondary Insured Party at least thirty (30) days' prior notice of any material amendment, cancellation or termination. Copies of the certificates of currency must be provided on request to the Secondary Insured Party.
It is the sole responsibility of the Secondary Insured Party to review the insurance arrangements of the other party for adequacy and compliance with this clause 8. In particular, Members are encouraged to read and understand and provisions relating to exclusions and deductions in connection with all insurance policies.
9. Ratings and Reviews
9.1 Brand reviews and ratings
Within a certain timeframe after receipt of an Activation Report, Brands can leave a public review and/or submit a star rating about an Activation (collectively, the “Ratings and Reviews”). Ratings and Reviews reflect the opinions of individual Members and do not reflect the opinion of Brandcrush. Ratings and Reviews are not verified by Brandcrush for accuracy and may be incorrect or misleading. You acknowledge that any opinions, statement, recommendation, ratings, offers, advice or other information presented or disseminated in any Rating or Review are those of their respective authors who are solely responsible and liable for their content.
Brands must ensure its Ratings and Reviews are fair, reasonable and accurate and must not contain any offensive or defamatory language or otherwise breach Brandcrush’s House Rules and other policies.
Brandcrush reserves the right to refuse to post or remove any material submitted or posted in any Ratings or Reviews in the event such Ratings or Reviews contain such offensive or defamatory language or otherwise breach Brandcrush’s House Rules and other policies.
Brands are prohibited from manipulating the Ratings and Reviews system in any manner, such as instructing a third party to write a positive or negative Review about an Activation Partner. Because we expect Members to maintain a high level of integrity with respect to Ratings and Reviews posted through the Brandcrush Platform, you agree: (i) to base any Rating or Review you post only on your first-hand experience with an Activation Partner; (ii) you will not provide a rating or review for an Activation Partner if you have an employment relationship or other affiliation with such Activation Partner; (iii) you will not submit a Rating or Review in exchange for payment or other benefits from any individual or entity; and (iv) your Review will comply with the terms of these Terms of Service. If Brandcrush determines, in our sole discretion, that any Rating or Review could diminish the integrity of the Ratings and Reviews, we may exclude such content without notice.
9.4 Public profile
Ratings and Reviews are part of an Activation Partner’s public profile and may appear throughout the Brandcrush Platform (for example, a Listing page) together with other relevant information such as number of bookings, number of cancellations, average response time and other information.
10.1 GST, VAT and other Local Taxes
- Expressions set out in italics in this clause 10.1 bear the same meaning as those expressions in the A New Tax System (Goods and Services Tax) Act 1999, Value Added Tax Act 1994 (Cth).
- All Service Fees are tax exclusive, unless otherwise expressly stated. Tax, if applicable, will be added as separate line items to the amount payable by the Member.
- To the extent that a party makes a taxable supply under or in connection with these Terms, except where express provision is made to the contrary, the consideration payable by a party under or in connection with these terms and conditions represents the value of the taxable supply for which payment is to be made and on which tax is to be calculated.
- If a party makes a taxable supply under or in connection with these Terms for a consideration, which, under clause 10.1(iii) represents its value, then the party liable to pay for the taxable supply must also pay at the same time and in the same manner as the value is otherwise payable, the amount of any tax payable in respect of the taxable supply.
10.2 Activation Fees
Except for GST or VAT, Activation Partners are solely responsible for determining their obligations to report, collect, remit or include in the Activation Fee any applicable indirect sales taxes, income taxes or other taxes (“Taxes”).
10.3 Reporting and withholding
Tax regulations may require us to collect Tax information from Activation Partners and/or to withhold Taxes from payouts to Activation Partners. If an Activation Partner fails to provide us with documentation that we determine to be sufficient to alleviate our obligation (if any) to withhold Taxes from payouts to you, we reserve the right to freeze all payouts and/or withhold such amounts as required by law until the matter is resolved.
11. Prohibited Activities
11.1 Compliance with laws
You are solely responsible for compliance with any and all laws, rules, regulations, and tax obligations that may apply to your use of the Brandcrush Platform. In connection with your use of the Brandcrush Platform, you will not and will not assist, enable or encourage others to:
- misuse, misappropriate or otherwise use samples for a purpose other than as agreed in connection with an Activation (including by distributing samples to friends and family or people not situated in an Activation Space at the time of the Activation);
- not use best efforts to carry out an Activation to the highest possible standard (taking into account the nature and agreed parameters of the Activation and available resources);
- use the Brandcrush Platform to request, make or accept a booking independent of the Brandcrush Platform or to circumvent any Service Fees or for any other reason;
- breach or circumvent any applicable laws or regulations, agreements with third-parties, third-party rights, or our Terms, House Rules and other policies or standards;
- use the Brandcrush Platform, Brandcrush Content or Member Content for any commercial or other purposes that are not expressly permitted by these Terms or in a manner that falsely implies Brandcrush endorsement, partnership or otherwise misleads others as to your affiliation with Brandcrush;
- use the Brandcrush Platform in connection with the distribution of unsolicited commercial messages;
- offer, as an Activation Partner, any Activation Space that you do not yourself own or have permission to make available through the Brandcrush Platform;
- unless Brandcrush explicitly permits otherwise, book any Activation if you will not be using the Activation yourself;
- contact another Member for any purpose other than asking a question related to a your own booking, Listing, or the Member's use of the Brandcrush Platform, including, but not limited to, attempting to negotiate terms or payment between Members outside of the Brandcrush Platform, recruiting or otherwise soliciting any Member to join third-party services, applications or websites, without our prior written approval;
- request, accept or make any payment for Service Fees outside of the Brandcrush Platform or. If you do so, you acknowledge and agree that you:
- would be in breach of these Terms;
- accept all risks and responsibility for such payment; and
- hold Brandcrush harmless from any liability for such payment;
- discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or otherwise engage in any violent, harmful, abusive or disruptive behavior;
- use, display, mirror or frame the Brandcrush Platform, Brandcrush Content or Member Content, or any individual element within the Brandcrush Platform, Brandcrush's name, any Brandcrush trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page in the Brandcrush Platform, without Brandcrush's express written consent;
- dilute, tarnish or otherwise harm the Brandcrush brand in any way, including through unauthorized use of Brandcrush Content and Member Content, registering and/or using Brandcrush or derivative terms in domain names, trade names, trademarks or other source identifiers, or registering and/or using domains names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to Brandcrush domains, trademarks, taglines, promotional campaigns or Brandcrush Content and Member Content;
- use any robots, spider, crawler, scraper or other automated means or processes to access, collect data or other content from or otherwise interact with the Brandcrush Platform for any purpose;
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise attempt to circumvent any technological measure implemented by Brandcrush or any of Brandcrush's providers or any other third party to protect the Brandcrush Platform;
- attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Brandcrush Platform;
- take any action that damages or adversely affects, or could damage or adversely affect the performance or proper functioning of the Brandcrush Platform;
- export, re-export, import, or transfer the Application except as authorized by the laws of your jurisdiction, and any other applicable laws; or
- violate or infringe anyone else’s rights or otherwise cause harm to anyone.
You acknowledge that Brandcrush may, but has no obligation to, monitor the access to, or use of, the Brandcrush Platform by any Member or to review, disable access to, or edit any Member Content for purposes which include to:
- operate, secure and improve the Brandcrush Platform (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes);
- ensure Members’ compliance with these Terms;
- comply with applicable law or the order or requirement of a court, law enforcement or other administrative agency or governmental body;
- respond to Member Content that it determines is harmful or objectionable; or
- as otherwise set forth in these Terms.
Members agree to cooperate with and assist Brandcrush in good faith, and to provide Brandcrush with such information and take such actions as may be reasonably requested by Brandcrush with respect to any investigation undertaken by Brandcrush or a representative of Brandcrush regarding the use or abuse of the Brandcrush Platform.
If you feel that any Member you interact with, whether online or in person, is acting or has acted inappropriately, including but not limited to anyone who (i) engages in offensive, violent or sexually inappropriate behavior, (ii) you suspect of stealing from you, or (iii) engages in any other disturbing conduct, you should immediately report such person to the appropriate authorities and then to Brandcrush by contacting us with your police station and report number (if available). You agree that any report you make will not obligate us to take any action (beyond that required by law, if any).
12. Term, termination and suspension
The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Brandcrush Platform, unless terminated earlier in accordance with these Terms.
- Unless otherwise stated in a separately executed agreement or subscription, you may terminate this Agreement at any time by sending us an email. If you cancel your Brandcrush Account as an Activation Partner, any confirmed booking(s) will be automatically cancelled and your Brands will receive a full refund of the Activation Fees. If you cancel your Brandcrush Account as a Brand, any confirmed booking(s) will be automatically cancelled and any refund of Service Fees will be determined in accordance with clause 6.3.
- Unless otherwise communicated to you at the time of sign up via a separately executed agreement or notification; if you choose to cancel your subscription during the subscription period or any renewal period, provided that; we will not provide any refunds and you will promptly pay all unpaid and remaining fees due through to the end of the Subscription Period. We do not provide refunds if you decide to stop using the Brandcrush subscription during your Subscription Period. Payment of all fees shall become due immediately and payable on the date of termination.
- Brandcrush may terminate this Agreement for convenience at any time by giving you thirty (30) days' notice via email to your registered email address.
12.3 Termination or suspension for cause
Brandcrush may immediately, without notice, terminate this Agreement and/or stop providing access to the Brandcrush Platform if:
- you have materially breached your obligations under these Terms, our House Rules or any of our policies or standards;
- you have violated applicable laws, regulations or third party rights; or
- Brandcrush believes in good faith that such action is reasonably necessary to protect the personal safety or property of Brandcrush, its Members, or third parties (for example in the case of fraudulent behavior of a Member).
12.4 Additional measures
Brandcrush may take any step or measure in connection with your Brandcrush Account and your use of the Brandcrush Platform (including deleting or delaying Space Listings, Ratings, Reviews, or other Member Content, cancelling any pending or confirmed Activations; limiting your access to or use of the Brandcrush Platform, temporarily or permanently revoke any special status associated with your Brandcrush Account and temporarily or permanently suspend your Brandcrush Account and stop providing access to the Brandcrush Platform):
- in order to comply with applicable law, or the order or request of a court, law enforcement or other administrative agency or governmental body;
- if you have breached these Terms, our House Rules, our policies or standards, applicable laws, regulations, or third party rights;
- if you have provided inaccurate, fraudulent, outdated or incomplete information during the Brandcrush Account registration, Listing process or thereafter;
- if you and/or your Space Listings or Activations at any time fail to meet any applicable quality or eligibility criteria;
- if you have repeatedly received poor Ratings or Reviews or Brandcrush otherwise becomes aware of or has received complaints about your performance or conduct;
- if you have repeatedly cancelled confirmed bookings or failed to respond to booking requests without a valid reason; or
- Brandcrush believes in good faith that such action is reasonably necessary to protect the personal safety or property of Brandcrush, its Members, or third parties, or to prevent fraud or other illegal activity:
In case of minor breaches and where appropriate, you will be given notice of any intended measure by Brandcrush and an opportunity to resolve the issue to Brandcrush's reasonable satisfaction.
12.5 Refund of Activation Fees
If we take any of the measures described above we may refund any Activation Fees otherwise payable by Brands in full for any and all confirmed Activations that have been cancelled and you will not be entitled to any compensation for pending or confirmed bookings that are cancelled.
12.6 New accounts
When this Agreement has been terminated, you are not entitled to a restoration of your Brandcrush Account or any of your Member Content. If your access to or use of the Brandcrush Platform has been limited or your Brandcrush Account has been suspended or this Agreement has been terminated by us, you may not register a new Brandcrush Account or access and use the Brandcrush Platform through an Brandcrush Account of another Member.
If you or we terminate this Agreement, the clauses of these Terms that reasonably should survive termination of the Agreement will remain in effect.
13. Interaction with Other Members
13.1 Member responsibility
You are solely responsible for your interactions with other Members and any other parties with whom you interact; provided, however, that Brandcrush reserves the right, but has no obligation, to intercede in such disputes. You agree that Brandcrush will not be responsible for any liability incurred as the result of such interactions.
13.2 Content provided by other members
Services may contain Member Content provided by other Members. Brandcrush is not responsible for and does not control Member Content. Brandcrush has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to Member Content. You use all Member Content and interact with other Members at your own risk.
You agree to release, defend (at Brandcrush’s option), indemnify, and hold Brandcrush and its affiliates and subsidiaries, including but not limited to officers, directors, employees and agents (collectively, the “Brandcrush Parties”), harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with:
- your breach of these Terms, the House Rules or any of our policies or standards;
- your improper use of the Brandcrush Platform;
- your interaction with any Member or any participation in, or use of, any Activation including without limitation any injuries, losses or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of such interaction, participation or use; or
- your breach of any laws, regulations or third party rights.
- If you choose to use the Brandcrush Platform, Brandcrush Content or Member Content, you do so voluntarily and at your sole risk. The Brandcrush Platform, Brandcrush Content or Member Content is provided “as is”, without warranty of any kind, either express or implied.
- You agree that you have had whatever opportunity you deem necessary to investigate the Brandcrush Platform, laws, rules, or regulations that may be applicable to your Space Listings and/or Activations you are booking or carrying out and that you are not relying upon any statement of law or fact made by Brandcrush relating to a Listing or Activation.
- If we choose to conduct identity verification or background checks on any Member, to the extent permitted by applicable law, we disclaim warranties of any kind, either express or implied, that such checks will identify prior misconduct by a Member or guarantee that a Member will not engage in misconduct in the future.
- You agree that some Activations may carry inherent risk, and by participating or procuring a Member to engage in such Activations, you choose to assume those risks voluntarily.
- You acknowledge and agree that Brandcrush Parties are not liable, and you agree not to seek to hold Brandcrush Parties liable, for the conduct or omissions of third parties, including any Members, and that the risk of injury from such third parties rests entirely with you.
- You are solely responsible for all of your interactions with other users of the Brandcrush Platform. You understand that Brandcrush does not make any attempt to verify the statements of Members. Brandcrush makes no representations or warranties as to the conduct of users of the Brandcrush Platform. You agree to take reasonable precautions in all interactions with other Members.
- The foregoing disclaimers apply to the maximum extent permitted by law. You may have other statutory rights. However, the duration of statutorily required warranties, if any, shall be limited to the maximum extent permitted by law.
To the maximum extent permitted by law, you:
- acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the Brandcrush Platform, Brand Content and Member Content, your publishing or booking of any Listing via the Brandcrush Platform, your participation in any Activation or any other interaction you have with other Members whether in person or online remains with you;
- agree to release and hold harmless Brandcrush Parties from all liabilities and claims that arise in any way from any injury, death, loss or harm that occurs to any person in connection with an Activation or in any way connected to the Brandcrush Platform;
- neither the Brandcrush Parties nor any other party involved in creating, producing, or delivering the Brandcrush Platform Brandcrush Content and Member Content will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with:
- these Terms;
- from the use of or inability to use the Brandcrush Platform, Brandcrush Content or Member Content;
- any communications, interactions or meetings with other Members or other persons with whom you communicate, interact or meet with as a result of your use of the Brandcrush Platform; or
- your publishing or booking of a Listing, including the provision or use of an Activation, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Brandcrush has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose.
THE FOREGOING SHALL NOT APPLY TO LIABILITY OF A BRANDCRUSH PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A BRANDCRUSH PARTY’S NEGLIGENCE; (B) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (C) ANY INJURY CAUSED BY A BRANDCRUSH PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
Except for Brandcrush’s obligations to pay amounts to Activation Partners pursuant to these Terms, in no event will Brandcrush’s aggregate liability arising out of or in connection with these Terms and your use of the Brandcrush Platform including, but not limited to, from your publishing or booking of any Space Listings via the Brandcrush Platform, or from the use of or inability to use the Brandcrush Platform, Brand Content or Member Content and in connection with any Activation or interactions with any other Members, exceed the following amounts:
- if you are an Activation Partner, the amounts paid by Brandcrush to you in the twelve (12) month period prior to the event giving rise to the liability or $100 if no such payments have been made; or
- if you are a Brand, the amounts you have paid or owe for bookings via the Brandcrush Platform in the twelve (12) month period prior to the event giving rise to the liability.
THE FOREGOING SHALL NOT APPLY TO LIABILITY OF A BRANDCRUSH PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A BRANDCRUSH PARTY’S NEGLIGENCE; (B) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (C) ANY INJURY CAUSED BY A BRANDCRUSH PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
16.3 Member Content
Basis of the Bargain
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BRANDCRUSH AND YOU.
17. Dispute Resolution
Please read the following arbitration agreement in this clause (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Brandcrush and limits the manner in which you can seek relief from us.
17.1 Applicability of Arbitration Agreement
You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Brandcrush, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims or seek relief in small claims court if your claims qualify; and (2) you or Brandcrush may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of these Terms or any prior version of these Terms.
17.2 Arbitration Rules and Forum
The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent: Brandcrush Pty Ltd, L4, 80 Market St, South Melbourne, Victoria, Australia. The arbitration will be conducted by JAMS established alternative dispute resolution provider or other alternative arbitral forum,. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s or alternative arbitral forum’s most current version of the Streamlined Arbitration Rules and procedures. All other disputes shall be subject to JAMS’s or alternative arbitral forum’s most current version of the Comprehensive Arbitration Rules and Procedures. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s or alternative arbitral forums filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Brandcrush will pay them for you. In addition, Brandcrush will reimburse all such JAMS’s or alternative arbitral forums filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
17.3 Authority of Arbitrator
The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Brandcrush. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Terms (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
17.4 Waiver of Jury Trial
YOU AND BRANDCRUSH HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Brandcrush are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in clause 17.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
17.5 Waiver of Class or Other Non-Individualized Relief
ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR MEMBER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR MEMBER. If a decision is issued stating that applicable law precludes enforcement of any of this clause’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of Delaware. All other disputes, claims, or requests for relief shall be arbitrated.
17.6 30-Day Right to Opt Out
You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: L4, 80 Market St, South Melbourne, Victoria, Australia, 3042 within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Brandcrush username (if any), the email address you used to set up your Brandcrush account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
Except as provided in clause 17.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
17.8 Survival of Agreement
This Arbitration Agreement will survive the termination of your relationship with Brandcrush.
Notwithstanding any provision in these Terms to the contrary, we agree that if Brandcrush makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Brandcrush at the following address: L4, 80 Market St, South Melbourne, Victoria, Australia, 3042.
18. General Provisions
18.1 Entire Agreement
Except as they may be supplemented by additional terms and conditions, policies, guidelines or standards, these Terms constitute the entire Agreement between Brandcrush and you pertaining to the subject matter hereof, and supersede any and all prior oral or written understandings or agreements between Brandcrush and you in relation to the access to and use of the Brandcrush Platform.
18.2 No joint venture or partnership
No joint venture, partnership, employment, or agency relationship exists between you and Brandcrush or between Brands and Activation Partners as a result of this Agreement or your use of the Brandcrush Platform.
18.3 Force majeure
- No party will be liable or responsible for a breach of these Terms which is caused by a force majeure event (being an act which is not within the control of the relevant party, including national emergencies, inclement weather, war and terrorism) (Force Majeure Event) if the affected party:
- is unable to perform its obligations because of the Force Majeure Event;
- promptly notifies Brandcrush and the Member(s) who may be affected by the Force Majeure Event;
- resumes performance of its obligations under these Terms as soon as reasonably practicable.
- If Brandcrush is not capable of running the Brandcrush Platform as planned for any reason including a Force Majeure Event, Brandcrush reserves the right, in its absolute discretion, to cancel, terminate, modify or suspend the Brandcrush Platform.
If any provision of these Terms is held to be invalid or unenforceable, such provision will be struck and will not affect the validity and enforceability of the remaining provisions.
18.5 No waiver
Brandcrush’s failure to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise permitted under law.
You may not assign, transfer or delegate this Agreement and your rights and obligations hereunder without Brandcrush's prior written consent.
18.7 Electronic communications
Unless specified otherwise, any notices or other communications to Members permitted or required under this Agreement, will be provided electronically and given by Brandcrush via email, Brandcrush Platform notification, or messaging service. The date of receipt of the notice will be deemed the date on which Brandcrush transmits the notice.
If you have any questions about these Terms, please email us at firstname.lastname@example.org.
18.9 Governing law and jurisdiction
THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER:
- IF YOU ARE BASED IN THE UNITED STATES, THE LAWS OF THE STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION AND WITHOUT REGARD TO THE UNITED NATIONS CONVENTION ON CONTRACTS.
- IF YOU ARE BASED OUTSIDE OF THE UNITED STATES, THE LAWS OF VICTORIA, AUSTRALIA, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
To the extent the parties are permitted under these Terms to initiate litigation in a court, both you and Brandcrush agree that all claims and disputes arising out of or relating to the Terms will be litigated in:
- If you are based in the United States, the state or federal courts located in the State of Delaware.
If you are based outside the United States, the courts and tribunals located in Victoria, Australia.
19. BRANDCRUSH - HOUSE RULES
HOUSE RULES | BRAND
BE RELEVANT: Brandcrush is here to help build loyal relationships between Activation Partners, brands and their shared audiences through meaningful and relevant moments of connection. Request to activate in spaces that are aligned to your brand.
BE ACCURATE: Your activation description needs to be representative of what is going to happen in real life. Describe your activation and append images of your products and/or display where possible so Activation Partners can ensure that the activation is the right fit for their business.
BE TIMELY: Ensure you complete all relevant workflow items including product and assets deliveries by the required dates. If you are arranging your own freight of products for an activation run by our Activation Partners, ensure product is delivered by the required delivery date as Activation Partners have agreed to a set date for your activation. Respond to any messages from the Activation Partner to ensure a successful activation.
BE CREATIVE: Every great activation starts with a creative idea and our spaces bring this idea to real life.
BE COURTEOUS: If you are activating with your brand/agency team in a space, ensure you follow their ‘house’ rules.
HOUSE RULES | ACTIVATION PARTNERS ON THE MARKETPLACE
BE AUTHENTIC: Only collaborate with brands that are a good fit for your business. Your customers/ members will only appreciate relevant and meaningful activations that enhance their experience.
BE TIMELY: Our brands are often activating these campaigns as part of a broader integrated campaign. Therefore it is important that, when you are activating for a brand, you activate on the scheduled dates and that you also complete the reports within 48 hours of the activation.
BE A GREAT AMBASSADOR: For activations executed by our Activation Partners, ensure you take the time to read the activation description and any appended documents so that you are knowledgeable on the product/services you are promoting.
BE GENUINE: We are a media activation and partnerships platform and our brands rely on the reach data that each Activation Partner provides. Please do not overrepresent your customer reach as it will create a negative experience for the brand.