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: September 2018
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 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.
Activation Hosts are solely responsible for identifying and complying with all laws and rules that apply to their Space Listings and Activations. In some jurisdictions, Activations Hosts 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.
The Brandcrush Platform is an online marketplace that enables registered users (Members) (Members who offer services are “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 or experiential formats and include but not be limited to gift with purchase, goody bags, counter tops, fridge displays, booths or product demonstrations. Activations include the use by Brands of physical spaces with existing foot traffic (Activation Spaces) and may include the provision of staff to deliver a brand or product message on behalf of the brand.
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 Hosts 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.
While Brandcrush may from time to time help facilitate the resolution of disputes between Members, Brandcrush has no control over and does not guarantee:
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 Host or Space Listing.
If you choose to use the Brandcrush Platform as an Activation Host, 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.
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.
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.
In order to access and use the Brandcrush Platform or register as a Member, you must:
By accessing or using the Brandcrush Platform you represent and warrant that:
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.
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:
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.
You can register a Brandcrush Account using an email address, creating a password and providing certain business and contact information.
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).
Where Activations are carried out on behalf of Brands by Activation Hosts:
In order for Brandcrush to ensure space inventory is managed and Brands have a satisfactory user experience, Activation Hosts must not use any third party intermediary platform aside from the Brandcrush Platform to list physical activation spaces for booking by third parties. This clause 4.4 does not prevent Activations Hosts booking physical activation spaces through their own channels which are not in the form of an online/marketplace platform.
In addition to providing a fair and accurate Market Reach Estimate as a condition of your registration as an Activation Host, you must also provide a fair and accurate assessment of your product 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 in a particular Activation Space.
Activation Hosts offering Activations that involve the distribution of perishable products must ensure:
Activation Hosts offering Activations that involve the service of alcohol or alcohol-related products must ensure:
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.
Brandcrush may engage “mystery shoppers” or carry out other forms of random or targeted audits of Activations provided by Activation Hosts.
Subject to meeting any requirements (such as completing any verification processes) set by Brandcrush and/or the Activation Host, 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.
You must provide the Activation Host with reasonable details of your brand (including logo, brand description, social handles and trade marks) to enable the Activation Host to have an adequate representation of your brand in order to carry out the Activation.
Brands may use the “Flag this Activation Host” function on the Brandcrush Platform to notify Brandcrush of any significant issues with a particular booked Activation or Activation Host (for example, an Activation Space does not exist or is materially inconsistent with the relevant Listing). Where a Brand “flags” an Activation Host, 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.
You acknowledge and agree that the relationship between you and the Activation Host is non-exclusive and Activation Hosts 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 Hosts develop long term partnerships which may involve, for example, Brands booking out Activations Spaces for extended periods.
Upon receipt of a booking confirmation from Brandcrush, a legally binding agreement is formed between you and the applicable Activation Host, subject to any additional terms and conditions of the Activation Host that apply, including in particular any rules and restrictions specified in the Listing.
Brandcrush may charge fees and commissions to Activations Hosts (Activation Host Fees) and/or Brands (Brand Fees) (collectively, “Service Fees") in consideration for the use of the Brandcrush Platform. In relation to an Activation:
Except as otherwise specified in these Terms, Service Fees are non-refundable.
Brandcrush may change the Service Fees at any time and will provide Members adequate notice of any fee changes before they become effective.
Brandcrush may, at its sole discretion, enable Members to:
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.
Subject to your compliance with these Terms, Brandcrush grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to:
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.
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 will not post, upload, publish, submit or transmit any Member Content that:
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 Activations Hosts and Brands have adequate insurance coverage. We expect Members will have the following insurance arrangements in place as part of their ordinary business practices.
Activation Hosts must maintain throughout the term of this Agreement:
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.
The primary insured (i.e. the Activation Host 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.
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 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 Host.
Ratings and Reviews are part of an Activation Host’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.
Except for GST, Activation Hosts are solely responsible for determining their obligations to report, collect, remit or include in the Activation Fee any applicable VAT or other indirect sales taxes, income taxes or other taxes ("Taxes").
Tax regulations may require us to collect Tax information from Activation Hosts and/or to withhold Taxes from payouts to Activation Hosts. If an Activation Host 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.
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:
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:
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).
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.
Brandcrush may immediately, without notice, terminate this Agreement and/or stop providing access to the Brandcrush Platform if:
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 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.
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.
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.
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 thirty (30) days before the date they become effective. If you disagree with the revised Terms, you may terminate this Agreement.
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.
To the maximum extent permitted by law, you:
Except for Brandcrush’s obligations to pay amounts to Activation Hosts 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:
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:
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.
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.
No joint venture, partnership, employment, or agency relationship exists between you and Brandcrush or between Brands and Activation Hosts as a result of this Agreement or your use of the Brandcrush Platform.
If any provision of these Terms is held to be invalid or unenforceable, such provision will be struck and will not affect the validity and enforceability of the remaining provisions.
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