These Terms and Conditions apply to all Applications Forms accepted by us.
Access to and use of service
You may submit an Application Form requesting that we provide you with the Service for the Purpose.
Subject to our acceptance of the Application Form, we will provide you with access to the Website solely for the purpose of enabling you to:
promote the Products to Fans and encourage Fans to promote the Products and facilitate Sales;
communicate with Fans who elect to promote the Products and facilitate Sales, but only in the manner specified in clause 4; and
run competitions and provide other forms of incentives for Fans in relation to the promotion and sale of Products, but only in the manner specified in clause 5.
In addition to our obligations under clause 2.2, we will provide you with social networking tools and applications and other online promotional tools to enable and encourage Fans to promote the Products and facilitate Sales.
Our acceptance of the Application Form:
may be express or implied by conduct; and
is subject to us obtaining a credit report from a credit reporting agency, which you consent to.
your use of the Service, performance of your obligations under these Terms and Conditions and the rights you have granted to us under these Terms and Conditions, do not and will not violate any other agreement or legal obligation by which you are bound; and
you have the authority to enter into an agreement with us for the provision and use of the Service; and
you have the necessary authority, licenses, rights, consents, and permissions to promote and sell the Products and permit Fans to promote the Products and facilitate Sales;
acknowledge that the Service may not be free from fault or interruption; and
agree to comply with all applicable laws, including (without limitation), the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth).
We have the right to promote our relationship with you on the Website, including by using your name and logo(s) on the Website, in promotional material and on social networking applications and you grants to us a right to use your name and logo(s) for that purpose.
We reserve the right at any time and for any reason to modify, limit, suspend or discontinue the Website, in whole or in part, with or without notice, for the purpose of undertaking any maintenance, upgrading or similar processes in respect of the Website, and we will not be liable to you or any other party for any such modification, limitation, suspension or discontinuance.
Sale of products and commissions
You acknowledge and agree that:
each Sale will be effected through Retailer Websites and that we will have no obligation in respect of the fulfillment of any order resulting from a Sale or collection of any monies payable to a Retailer in respect of a Sale;
the Retailer will be solely responsible for providing all customer support regarding any Sale and we may redirect to the Retailer any associated customer inquiries; and
the Retailer will have sole control over the terms and conditions which govern any Sale, and the Retailer will have sole responsibility for dealing with breaches of such terms and conditions.
If a Customer purchases a Product through a Retailer Website:
subject to clause 3.3, we will be entitled to payment of the Commission in respect of that purchase. All Commissions are exclusive of any GST, which if payable will be payable by you, provided we have delivered a tax invoice to you. You acknowledge that:
the Commission will be calculated by us on the basis of reports generated by our sales tracking system, which will be reconciled on a regular basis against reports of Sales provided to us by Retailers; and
the Service is a pay by performance advertising service and that the Commission will be payable in full notwithstanding the cancellation of the event or the return by the Customer to the Retailer of the Product the subject of a Sale;
we will provide you with a tax invoice on a monthly basis for all Commissions payable to us and, subject to clause 3.2(e), our invoice will be payable within 14 days of the date of invoice and payment must be made into the bank account nominated in writing by us from time to time;
if a reconciliation performed in accordance with clause 3.2(a)(i) discloses that the amount of the Commission for which we have invoiced you in accordance with clause 3.2(b) has been:
overstated, we will refund the amount of any overpayment to you within 30 days of us performing the reconciliation; or
understated, we will provide you with a tax invoice for the amount of outstanding Commission and clause 3.2(b) will apply accordingly;
invoiced Commissions that are not:
disputed by you in good faith; or
adjusted by us in accordance with clause 3.2(c),
within 6 months of the date of being invoiced to you are deemed to be correct;
if specified in the Application Form, payment of the Commission will be made by us debiting the amount of the Commission payable to your credit card, details of which are specified in the Application Form, at any time following the Sale to which the Commission relates, provided that if we cannot debit the amount to your credit card for any reason, payment must be made by you in accordance with clause 3.2(d); and
the Fan who facilitated that purchase will be entitled to receive from us such part of the Commission (if any) in respect of that purchase as we may, in our sole discretion, determine.
vary the Commission; or
remove the Commission,
in respect of all or any of the Products at any time by providing us with not less than 2 Business Days’ written notice. The Commission payable to us will be the Commission that applied to a Product at the time that the Sale occurred in respect of that Product. For the purpose of this clause 3.3, a Sale will be deemed to have occurred at the time that the Customer completes the purchase of that Product on the Retailer Website.
You may, at any time on reasonable prior notice to us and at your cost, audit our records for the purpose of verifying the amount of Commissions paid or payable to us, provided that:
during the period of 12 months commencing from the date of our acceptance of the Application Form you may only undertake one audit;
during each subsequent 12 month period you may undertake no more than the number of audits determined as follows:
if the total amount of Commissions paid to us in the preceding 12 month period is less than $5,000 (excluding GST) – one; and
if the total amount of Commissions paid to us in the preceding 12 month period is not less than $5,000 (excluding GST) – two; and
you must take all such steps as may reasonably be required to minimise the impact of the audit on our business.
We will provide you (and your internal and external auditors), with access to all such records and other information as reasonably required by you to enable you to undertake the audit.
You acknowledge that any information provided to you or your internal and external auditors in accordance with clause 3.4 constitutes our confidential information. You must not (and must ensure that your internal and external auditors do not) disclose that information to any third party (other than those of your or your external auditors’ directors, officers, employees, contractors, agents and advisors who have a need to know that information and who are bound by obligations of confidentiality), without our written consent, unless legally compelled to do so, and then only after providing notice to us of the making of that order.
You must implement and maintain a process for resolving any disputes with Fans, Customers or other third parties arising out of:
the promotion or sale of any Product; or
2. any competition you run or any form of incentive you provide in accordance with clause 5,
and take all such steps as may reasonably be required for the purpose of resolving any such disputes in good faith and in a timely manner. If we believe, acting reasonably, that you are not resolving a dispute in accordance with this clause then we may, by notice to you:
suspend the Service until such time as the dispute is resolved; and/or
elect to become actively involved in the resolution of the dispute, in which case you will provide us with all such information and assistance and permit us to take all such other actions as may reasonably be required for that purpose.
Communication with Fans
We will provide you with the following for the purpose of enabling you to communicate with Fans who elect to promote the Products and facilitate Sales:
the Website’s internal messaging system;
each Fan’s Website user name; and
access to reporting systems that will enable you to view the level of activity of each Fan in relation to the promotion and sale of the Products.
You acknowledge and agree that:
you will not issue more than one Communication per week to each Fan;
Fans will only be requested to promote the Products and facilitate Sales in the manner specified in the Application Form or otherwise agreed in writing by us and you;
you will at all times communicate with Fans in a professional manner;
you will be clear and truthful when communicating with Fans;
you will not, and will not permit, assist or encourage any person, directly or indirectly, to:
request, require or incentivize a Fan to "opt-in" to share their personal information, including email address, first and last name, phone number or mail address;
send any Communication to a Fan relating to a particular Product without the Fan’s opt-in for each Communication relating to that Product;
incentivize a Fan to send a Communication to earn prizes, points, virtual money, a ranking, or any benefit within or outside the Website, other than as permitted by clause 5;
make Content or functionality accessed by a Fan through the Service contingent upon sending a Communication to another Fan or any other third party; or
force, mislead or attempt to pressure the Fan into any Communication, including without limitation, through the use of confusing user interface, small or hidden "Skip" links, or repetitive or excessive prompts or other attempts to encourage the same action;
you will not, and will not assist any person, directly or indirectly, to encourage or assist any Fan to do or attempt to do anything that would constitute a breach of the terms applicable to a Fan’s use of the Website, including, without limitation, engaging in any activitity that would constitute a breach of the Spam Act 2003 (Cth).
Competitions and other incentives for Fans
You may, for the purpose of encouraging Fans to promote the Products and facilitate Sales, conduct competitions for and provide other forms of incentives to Fans.
By conducting any such competition or providing any such incentive you:
represent and warrant to us that you have the necessary authority, licenses, rights, consents and permissions to run that competition or provide that incentive; and
acknowledge and agree that you will be solely responsible for administering the competition or incentive, including (without limitation), determining the terms and conditions applicable to any such competition or incentive, corresponding with Fans in relation to the competition or incentive, selecting the winner of the competition or determining the eligibility for receipt of the incentive and delivering any prizes or incentives.
You may, in connection with the Purpose, submit Content for publication on the Website, subject to the following:
you must provide to us:
all Content that you wish to have published on the Website for the purpose of enabling Fans to promote the Products and facilitate Sales; and
all such other information and material as we may reasonably require for the purpose of performing our obligations under these Terms and Conditions,
in the form and format and by the method specified in writing by us;
you retain sole responsibility and accept sole liability for your Content and the consequences of the publication of your Content on the Website;
you represent and warrant to us at all times whilst using the Service that you own or have the necessary licenses, rights, consents, and permissions to:
enable us to publish your Content on the Website for the purposes or in the manner contemplated by these Terms and Conditions; and
grant the licences under clause 6.2; and
you retain all of your intellectual property rights in your Content.
By submitting your Content to us for publication on the Website, you grant to us:
a worldwide, non-exclusive, royalty-free, sub-licenseable and transferable license to use, reproduce, distribute, display, publish, make available online or electronically transmit, and perform the Content in connection with the Service and our business, including without limitation for promoting and redistributing part or all of the Service in any media formats and through any media channels; and
a right to grant each Fan a non-exclusive license to access and use your Content published on the Website for the purpose of promoting the Products and facilitating Sales.
Content you submit to us for publication on the Website must not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant the licenses granted under these Terms and Conditions.
We expressly disclaim any and all liability in connection with your Content, including its publication on the Website and its use by us or any Fan for the purposes and in the manner contemplated by these Terms and Conditions.
We may at any time, without liability or notice to you, remove, alter or disable access to all or any of your Content published on the Website if:
you breach these Terms and Conditions (including any representation or warranty provided by you under these Terms and Conditions);
the Content relates to the promotion or sale of events, music, merchandise or products other than the Products;
we consider that your Content is or is likely to be in breach of these Terms and Conditions, any law or regulation, infringes or is likely to infringe the rights of any third party or is offensive, indecent, or otherwise inappropriate, regardless of whether such Content or its dissemination is unlawful. This includes (but is not limited to), obscene material and fraudulent or misleading or deceptive statements;
required to do so by any law, regulation or regulatory body; or
required to do so to ensure compliance with a notification from a copyright owner or their agent.
Terms, Termination and Consequences
We will continue to provide you with access to the Service for the Purpose until such time as either:
we terminate your access to the Service in accordance with clause 7.2; or
you notify us in writing that you wish to cease using the Service, in which case we will cease providing you with access to the Service 30 days from the date of your notice; or
we notify you in writing that we will cease providing you with access to the Service, in which case such access will cease 30 days from the date of our notice.
We may terminate your access to the Service with immediate effect on giving written notice to you if you:
breach these Terms and Conditions and fail to rectify the breach within 14 days of having received a notice from us requesting you do so; or
you are subject to an Insolvency Event.
On you ceasing to use or have access to the Service in accordance with clauses 7.1 or 7.2;
we will delete or purge from our systems any and all of your Content; and
subject to receipt of a tax invoice from us, you must immediately pay to us any unpaid Commissions payable in respect of Sales that occurred up to the date on which you ceased to use or have access to the Service.
You ceasing to use or have access to the Service for any reason will not prejudice the rights of either party that have accrued up until the date on which you cease to use or have access to the Service and all clauses which are either expressly or by implication intended to survive either of those events will continue to apply after you cease to use or have access to the Service.
Disclaimer, Limitation of Liability and Indemnity
Your use of the Service, the publication of Content on the Website, the promotion of Products by Fans and Sales will be at your sole risk. To the extent permitted by law, we and our Representatives expressly disclaim:
any and all liability in connection with:
your use of the Service, including any interruption or cessation of access to the Service;
the promotion or sale of the Products;
the running of any competition on the Website or the provision of any other form of incentive to Fans; or
your Content, including its publication on the Website; and
any warranties, express or implied, relating to the Service or your use of the Service.
If we are liable to you in relation to the Service or these Terms and Conditions, our liability is limited to a sum equal to the total amount of Commissions paid to us.
To the extent permitted by law, we are not liable to you (or any party claiming through you), in tort, contract or otherwise for any:
loss of profits, opportunity, revenue, data, goodwill, business or anticipated savings, pure economic loss or expectation loss; or
any indirect, consequential, special, punitive or exemplary loss or damage,
even if such loss or damage was reasonably foreseeable.
You are liable to us (including our Representatives), for and indemnify us and our Representatives against any loss, damage, claim, proceeding and cost (including all legal costs on an indemnity basis), including as a result of a claim by a Fan or any other third party against us or our Representatives, arising out of:
your access to and use of the Service;
the use of your Content by us or any Fan for the purposes and in the manner contemplated by these Terms and Conditions;
your breach of these Terms and Conditions (including any representation or warranty provided by you under these Terms and Conditions);
your violation of any third party rights; or
any claim that your Content caused damage to a third party (except to the extent that any such claim arises out of the use of your Content by us or any Fan other than for the purposes or in the manner contemplated by these Terms and Conditions).
This indemnity will continue if you cease to use the Service.
Modification of Terms
We may, in our sole discretion, vary these Terms and Conditions at any time, and you agree to be bound by such variations. Although we may attempt to notify you when variations are made to these Terms and Conditions, you should periodically review the most up-to-date version at http://www.futurefans.com.au/-p/terms/manager.
All notices, consents, requests and other communications required to be given under these Terms and Conditions must be in writing and delivered or sent by mail, fax or e-mail to your address, fax number or e-mail address on the Application Form, or to us at:
Posse Holdings Pty Limited
Studio 10, 285a Crown St, Surry Hills, NSW 2010
Subject to clause 10.3 a notice, consent, request or other communication under these Terms and Conditions is, in the absence of earlier receipt, regarded as given and received:
43. if it is delivered, upon delivery at the address of the relevant party;
if it is sent by mail, on the third Business Day after the day of posting, or if to or from a place outside New South Wales, on the seventh Business Day after the day of posting;
if it is sent by fax, at the time and on the day it was successfully sent; and
if it is sent by e-mail, at the time and on the day it was successfully sent.
If a notice, consent, request or other communication under these Terms and Conditions is given and received on a day that is not a Business Day or after 5.00 pm (local time in the place of receipt), on a Business Day, it is regarded as being given and received at 9.00 am on the next Business Day.
Either party may change its address, fax number or e-mail address for service by providing not less than 7 days prior notice to the other party.
The laws of New South Wales govern these Terms and Conditions and both parties irrevocably submit to the exclusive jurisdiction of the courts of New South Wales.
These Terms and Conditions, together with the Application Form, constitute the entire agreement and understanding between you and us in relation to their subject matter. All previous negotiations and representations (express or implied) are excluded to the maximum extent permissible at law or in equity.
No waiver by a party, whether express or implied, of any provision in these Terms and Conditions or of any breach or default by the other party will constitute a continuing waiver or a waiver of any other provision of these Terms and Conditions, unless expressly so provided in writing and signed by the first party’s authorised representative.
We may at any time assign the whole or any part of our rights and obligations under these Terms and Conditions to a related body corporate or a third party without your consent. You may assign or deal with your rights or obligations under these Terms and Conditions only with our prior written consent, which we will not unreasonably withhold.
If a part of these Terms and Conditions is held to be void, voidable or unenforceable or an invalid part severed, the remainder of these Terms and Conditions are not affected.
Nothing in these Terms and Conditions is intended to create a relationship of partnership, agency or joint venture between the parties. You must not represent yourself as an agent or joint venture partner of ours or that you are engaged in partnership with us.
If we cease to provide the Service to you it will not affect the accrued rights or remedies of either party.
All clauses of these Terms and Conditions which are either expressly or by implication intended to survive after we cease to provide the Service to you will continue to apply after after we cease to provide the Service to you.
Definitions - In these Terms and Conditions, unless the context otherwise requires:
Application Form means the application form for the use of the Service, in the form prescribed by us from time to time.
Business Day means every day other than a Saturday, Sunday or statewide public holiday in New South Wales.
Commission means the amount of the commission (exclusive of any taxes) specified in the Application Form, as varied by you in accordance with clause 3.3.
Communication means a message, comment, bulletin, notification, survey or any other form of communication.
Content includes unique html URL links, banner adds, social networking applications, press releases, biographies, text, software, scripts, graphics, photos, sounds, music, videos, audiovisual combinations, interactive features and other materials.
Customer means an individual or other legal entity that visits and, if applicable, purchases a Product from a Retailer Website as a result of using links to the Retailer Website created by a Fan using your Content that is available for download from the Website.
Fan means an individual or other legal entity that signs up to become a user of the Website for the purpose of promoting the Products or any third party products (including events, music and merchandise) and who may, as a result of the sale of the Products or any third party products through a Retailer Website, be entitled to payment of a commission.
Insolvency Event means any of the following events in relation to you:
having a receiver or manager appointed over any of your assets and property;
having a liquidator appointed (whether under a creditor’s petition, voluntary liquidation or otherwise);
passing a resolution for winding-up (otherwise than for a purpose of amalgamation or reconstruction);
being placed under any form of insolvency administration;
entering into any composition or arrangement with your creditors;
becoming insolvent; or
ceasing to carry on business.
Product means any event, music, merchandise or other product that you are authorised to promote from time to time and which are available for purchase through a Retailer Website.
Purpose means the purpose specified in clause 2.2.
Representative means any of our directors, officers, employees, contractors and agents.
Retailer means the retailer of the Products.
Retailer Website means a website operated by or on behalf of a Retailer.
Sale means the sale of a Product to a Customer through the Retailer Website.
Service means the Website and services provided by us to you on, from, or through the Website.
we, our and us means Posse Holdings Pty Limited ABN 131 776 531.
Website means the website located at www.posse.com.
you and your means the party nominated in the Application Form as applying for the use of the Service for the Purpose.
Interpretation - In these Terms and Conditions:
the singular includes the plural and vice versa;
where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
a reference to a document includes any amendment, replacement or novation of it;
a reference to a party includes its successors and assigns; and
a reference to a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by-law, judgment, rule of common law or equity or a rule of an applicable stock exchange and is a reference to that law as amended, consolidated or replaced.