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. By accessing or using the Brandcrush Platform, you agree to comply with, and be bound by, these Terms of Service.
Please see FAQs for a description of terms used throughout these Terms of Service which are not defined in this document.
Last Updated: August 2020
These Terms of Service (Terms) constitute a legally binding agreement (Agreement) between you and Brandcrush Pty Ltd ACN 617 383 052 (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).
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. If there is a conflict between these Terms and terms and conditions applicable to a specific area or feature of the Brandcrush Platform, the latter terms and conditions 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 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 licence before providing certain Activations (for example, permits and licences 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” (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 and experiential formats. Activations include the use by Brands of physical and digital spaces with existing foot traffic or customer reach (Activation 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.
Authorised 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.
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 authorised 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.
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.
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 unauthorised use of your Brandcrush Account. You are liable for any and all activities conducted through your Brandcrush Account, unless such activities are not authorised by you and you are not otherwise negligent (such as failing to report the unauthorised use or loss of your credentials).
3.5 Authorised third parties
- Brandcrush may enable features that allow you to authorise other Members or certain third parties (including media agencies, resellers and team members) (Authorised 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 authorised 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 Authorised Third Party for payment on your behalf.
- If you appoint an Authorised 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 Authorised Third Party represent and warrant that:
- the Authorised Third Party has been duly appointed and authorised 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 this Agreement; and
- any agreement formed between you and an Authorised 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 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. For example, Activations that involve distribution of samples as a gift with purchase or provision of a dedicated staff member may be able to charge a higher Activation Fee than a passive counter top display.
- Any terms and conditions included in your Space Listing, in particular in relation to cancellations, must not conflict with these Terms.
- Pictures, animations or videos (collectively, "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 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.
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 Activation 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 Sample/Asset Delivery Date (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 Sample 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 penalties in accordance with clause 6.3.
- It is the responsibility of the Brand to ensure all samples/assets are delivered in a state which are fit for purpose and as intended for the Activation. Whilst it is not the responsibility of the Activation Partner to determine whether the samples/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 penalties in accordance with caluse 6.3.
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 licences 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
- 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
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 authorised 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.
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 Samples) to the Activation Partner at least three (3) business days (being a day which is not a Saturday or Sunday or a public holiday in the place in which the relevant act is to be done, “Business Day”) or on a date specified before the Activation Date (Sample/Asset Delivery Date).
- If you fail to deliver Activation Samples by the Sample Delivery Date, you should contact the Activation Partner via the message service and request that they accept delivery of the Activation Samples at a later date. You may also request that the Activation be moved to a later date. The Activation Partners may, but has no obligation to, accept requests for extensions to the Sample Delivery Date 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 penalties in accordance with clause 6.3.
- Unless otherwise agreed between you and the Activation Partner, you must promptly collect any unused samples after completion of an Activation.
- 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.
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 endeavours 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 email@example.com 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.
5.7 Confidential Information
Brands and agencies including Authorised 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 Activation 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 commision payable by the Activation Partner to Brandcrush (Commission) and is disclosed on the Activation booking request or set forth (a) herein, (b) online and/or (b) in a separately executed or accepted agreement between you and Brandcrush and;
- 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 and;
- Subscription Fees comprise an annual or monthly fee payable by the Brand/Activation Partners to Brandcrush in consideration of utlizing Brandcrush as a software as a service. Fees for the Subscription ("Subscription Fees") are set forth (a) herein, (b) online and/or (b) in a separately executed or accepted Subscription agreement between you and Brandcrush and;
- Other Service Fees: Brandcrush may 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. These other services may include but are not limited to; freight, management and concierge services. These fees will be disclosed either (a) at checkout (b) online and/or (b) 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
- 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.
- 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.
- for Activations carried out on behalf of Brands by Activation Partners, within 48 hours of receipt (or the next business day following expiry of this period) by Brandcrush of the Activation Report by the Activation Partner in respect of the Activation; or
- for Activations carried out by Brands, within 48 hours after completion of the Activation, or the next Business Day after expiry of this period.
- 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 3 months("Subscription Period"), and will automatically renew on a yearly basis until we terminate the Subscription, or you notify us by email to firstname.lastname@example.org of your decision to terminate your current Subscription.
- 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.
- Billing for subscription plans can only be cancelled after a minimum of three consecutive monthly payments (subscription cancellation period).
- If your Subscription begins on a date that doesn't 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 Authorisation: Brandcrush is authorised 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 ATO Benchmark interest rate (Australia) 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
- Brand are entitled to make changes to an Activation. Change penalties may apply;
- 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 penalty will apply for changes made between fifteen (15) days and twenty nine (29) days prior to the applicable Activation Date. The change penalty will be added to the Activation Fee; and
- A 20% change penalty will apply for changes made less than fifteen (15) days prior to the applicable Activation Date. The change penalty 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.
- Subscription Fees: During your subscription term, subscription plans can only be cancelled after a minimum of three consecutive monthly payments ("subscription 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.
6.4 Payment by credit card
If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable during the Subscription Term and/or for a booking. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
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 this Agreement.
6.5 Payment by invoice
- Invoice payments are only available to approved brands and agency partners. To request approval, please email email@example.com.
- Unless otherwise notified by Brandcrush in writing, invoices must be paid in full on or prior to a date which is 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 Authorised Third Party (defined in clause 3.5(i) below) to pay by invoice, the Member or Authorised Third Party irrevocable authorises Brandcrush to make such inquiries as deemed necessary to investigate the credit worthiness of the Member or Authorised 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 firstname.lastname@example.org
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 authorised for use by or through Brandcrush from a third party (Brandcrush Content).
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 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 authorising 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 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, transfer, 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 Brandcrush licence grant
Subject to your compliance with these Terms, Brandcrush grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to:
- download and use the Application on your personal device(s); and
- access and view any Brandcrush Content and Member Content made available on or through the Brandcrush Platform and accessible to you, solely for your legitimate business purposes.
7.5 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.
7.6 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 (Authorised Images). You are responsible for ensuring that your Activation Space and Activations are accurately represented in the Authorised Images and you will stop using the Authorised 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 Authorised 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 Authorised Images, by using such Authorised 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 Authorised 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 Authorised Images outside of the Brandcrush Platform solely on your social media channels in connection with your legitimate business activities.
7.7 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.
7.8 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 defamatory, libelous, obscene, pornographic, vulgar or offensive;
- 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;
- promotes illegal or harmful activities; or
- 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.
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 Activation 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 (Review) and submit a star rating (Rating) about an Activation. Ratings or 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.
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.
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.
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 endeavours 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 ("spam");
- 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 unauthorised 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 authorised 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 initial terms of this Agreement is thirty (30) days, at the end of which it will automatically and continuously renew for subsequent thirty (30) day terms until such time when you or Brandcrush terminate the Agreement in accordance with this clause 12.
- 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. Modification of Terms
13.1 Right to modify
Brandcrush may modify these Terms at any time in accordance with this provision.
We will post the updated Terms on the Brandcrush Platform and update the “Last Updated” date at the top of these Terms. We will also provide you with notice of the modifications by email at least fifteen (15) days before the date they become effective. If you disagree with the revised Terms, you may terminate this Agreement.
13.3 Right to terminate
We will inform you about your right to terminate the Agreement in the notification email. If you do not terminate your Agreement before the date the revised Terms become effective, your continued access to or use of the Brandcrush Platform will constitute acceptance of the updated Terms.
- 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.
- 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 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 Brandcrush 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.
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 AUD$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.
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, 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.
17. Applicable Law and Jurisdiction
These Terms will be interpreted in accordance with the laws of the State of Victoria and the Commonwealth of Australia, without regard to conflict-of-law provisions. Judicial proceedings (other than small claims actions) must be brought within the non-exclusive jurisdiction of a state or federal court in Victoria, Australia, unless all parties to the dispute agree to some other location. You and we both consent to venue and personal jurisdiction in Victoria, Australia.
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.
18.4 Read down
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. Brandcrush may without restriction assign, transfer or delegate this Agreement and any rights and obligations hereunder, at its sole discretion, with at least thirty (30) days prior notice.
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 email@example.com
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: 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 experiential 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
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 your 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.