TERMS OF USE (INFLUENCERS/ CONTENT CREATORS)
Last Updated: 20/07/2023
The Referwo website located at https://Referwo.com/ (the Website) is owned, controlled and operated by Referwo Pty Ltd ACN 653 825 757 (we, us, our, or Referwo).
The terms and conditions set out below (Terms of Use) apply to use of the Website (Referwo Platform) by you (the User, you or your). The Referwo Platform is available for you to use conditional on your acceptance of these Terms of Use.
BY ACCESSING OR USING THE REFERWO PLATFORM, YOU AGREE TO BE LEGALLY BOUND BY THESE TERMS OF USE. IF YOU DO NOT AGREE TO THESE TERMS OF USE, YOU SHOULD STOP ACCESSING OR USING THE REFERWO PLATFORM IMMEDIATELY.
Referwo reserves the right to amend these Terms of Use at any time. Notice of any amendments will be displayed on the Referwo Platform and may be sent to Registered Users by email. Your continued use of the Referwo Platform following any change to the Terms of Use means that you accept the change and that you will be bound by the Terms of Use as varied.
By accepting these Terms of Use, you also acknowledge that you have read our Privacy Statement available at Privacy Policy and to the extent permitted by law, you consent to how we collect, handle and use your Personal Information in accordance with our Privacy Statement.
Any questions about these Terms of Use can be directed to info@referwo.com.
PLEASE CAREFULLY NOTE BEFORE READING:
- Words that are capitalised contain the meaning given to them in the definition section of these Terms of Use at clause 23.8.
- If you are a Consumer, the Referwo Platform Services come with Consumer Guarantees under the ACL.
- If you are a Consumer, nothing in these Terms of Use (including, without limitation, the disclaimers of liability contained in clause 17 and limitations of liability contained in clause 18) is intended to limit or exclude your Consumer Guarantees.
- Subject to any rights which you may have as a Consumer, your use and access of the Referwo Platform is provided on an “as is” basis and entirely at your own risk.
- Referwo provides intermediary functions and services connecting Brands and Influencers. The presence of a Brand, Influencer or a Campaign on the Referwo Platform does not indicate any endorsement by Referwo of that Brand, Influencer or Campaign.
- Referwo will deduct Platform Fees from all Commission Fees payable to Influencer under these Terms of Use.
- You are solely responsible for compliance with all laws and regulations applicable to your use of the Referwo Platform.
- There are restrictions that apply to your use of the Referwo Platform, and significant consequences if you do not comply with these restrictions.
- You may be required to indemnify Referwo for certain loss or damage that we may suffer if you breach these Terms of Use.
- If you input or upload any User Content to the Referwo Platform, you provide Referwo with a licence to use all Intellectual Property subsisting in that User Content.
- We collect, handle and use your Personal Information in accordance with our Privacy Statement.
1. The Referwo Platform
1.1 The Referwo Platform provides intermediary services for Brands to provide free samples, offer discounts and provide commissions to Influencer through affiliate links and codes relating to a Brand’s products and website.
1.2 Through its operation of the Referwo Platform, Referwo provides intermediary functions and services connecting Brands and Influencer as follows:
a. allowing Brands to register and use the Referwo Platform to create Campaigns for its products and online stores that offer free samples, discounts and commissions through affiliate links and codes to Influencer;
b. allowing Brands to upload details and information relating to a Campaign via a portal contained on the Referwo Platform;
c. allowing Influencer to apply to promote a Brand’s products and Brand’s store in a Campaign through affiliate links and codes;
d. tracking sales of products through affiliate links and codes promoted via Influencer that access the Referwo Platform;
e. allowing Brands to post reviews relating to Influencer and an Influencer to post reviews relating to a Brand; and
f. allowing Influencer to receive commissions relating to products sold through affiliate links and codes in a Campaign.
(Referwo Platform Services).
1.3 Referwo reserves the right to introduce additional functions and services on the Referwo Platform and to alter existing Referwo Platform Services at any time without notice to Registered Users.
2. Application of Terms of Use and Licence to Use Referwo Platform
2.1 By visiting, viewing, browsing, accessing, creating a User Account, or otherwise using the Referwo Platform, you accept and agree to comply with these Terms of Use.
2.2 The Terms of Use comprise this document and any other document and policy we may introduce or amend from time to time, all of which are incorporated in these Terms of Use by reference. We will give you reasonable notice of a new policy or changes to the Terms of Use by posting on our Website or notifying you in another manner. By continuing to access or use the Referwo Platform, or continuing to maintain a User Account, after we have given notice of an introduction of a policy or variation of these Terms of Use, you agree to continue to be bound by the Terms of Use as varied.
2.3 By accessing the Referwo Platform and creating a User Account, you warrant that you have legal capacity to agree to and be bound by these Terms of Use.
2.4 Subject to, and provided you comply with, the terms of these Terms of Use, Referwo agrees to grant you a limited, personal, non-exclusive, non-transferable, conditional and revocable licence to view, access and use the Referwo Platform.
2.5 The Referwo Platform is not intended for individuals under the age of 18 years old.
2.6 We may terminate the licence provided to you under clause 2.4 when you breach these Terms of Use or for any other reason (in our absolute discretion).
3. User Account
3.1 To access the Referwo Platform, you must register a user account (User Account). If you do not have a User Account, you will not be able to access all functionality of the Referwo Platform.
3.2 You can register a User Account by providing us with a username, password, email address, date of birth, credit card details, demographic location, details of followers (for example, follower count, location, gender and age range)] and such other details as we reasonably require from time to time. When registering a User Account you may link your User Account with certain third-party social networking services (Third Party Accounts) such as Instagram, Twitter, Youtube and Linkedin. If you link a User Account with a Third Party Account, you warrant that you are entitled to disclose your Third-Party Account information to us and that we will access, make available, use and store on the Referwo Platform any content that you have provided to us through that Third Party Account.
3.3 You must create a unique password to obtain access to your User Account (Password). You are solely responsible for maintaining the confidentiality of your Password and undertake not to allow the security of your User Account to be compromised through misuse of your Password. You must immediately notify Referwo of any suspected misuse of your Password.
3.4 Without limiting any other rights which Referwo may have to communicate with you, you agree that Referwo may send e-mails to the nominated e-mail address for your User Account for notification purposes regarding the Referwo Platform (including in relation to any updates to these Terms of Use and Privacy Statement).
3.5 Referwo maintains the right (in its absolute discretion and without prior notice) to refuse to register, terminate or suspend any User Account, and to remove access to, or suspend the use of, any specific functions associated with any User Account (such as Campaign functions).
3.6 You agree to not transfer your User Account to any other person, or allow access to your User Account by another person unless expressly authorised by Referwo or these Terms of Use.
4. Personal legal responsibility
4.1 Every Influencer with a User Account is bound personally by the Terms of Use. If an Influencer has an agent, agency, management or any other third party assisting with the operation of a User Account (or operates it on the Influencer’s behalf), this does not affect the personal legal responsibility of an Influencer. Influencers must notify Referwo where an agent, agency or management is accessing their User Account.
5. Brand Campaigns
5.1 To use the Referwo Platform as an Influencer, you must register a User Account.
5.2 Influencers may offer to provide their services for a Campaign by applying to participate in a Campaign through the Referwo Platform. A Campaign will specify campaign details, product information and descriptions, whether free samples and discounts are offered, affiliate links and codes and commission offered and any other information provided by a Brand (Campaign Materials).
5.3 To apply to participate in a Campaign, an Influencer must provide Referwo with the information contained above at clause 3.2 in addition to any other material requested by Referwo or a Brand for a Campaign from time to time (Influencer Materials).
5.4 A Brand may approve or refuse a request from an Influencer to participate in a Campaign in its absolute discretion.
5.5 Subject to an Influencer’s compliance with these Terms of Use, and the continued approval of a Brand to the Influencer’s participation, Campaign Materials referred to in a Campaign will be made available to an Influencer.
5.6 Referwo is not responsible for any Campaign Materials created, uploaded or submitted to, or otherwise appearing via the Referwo Platform. We do not endorse, support, represent or guarantee the accuracy, completeness or reliability of Campaign Materials appearing on the Referwo Platform.
5.7 Referwo may deactivate any Campaign at the request of a Brand, or its own absolute discretion.
5.8 Influencers must remove any Campaign Materials that appear on its social media channels immediately on request from Referwo or a Brand.
5.9 By using the Referwo Platform as an Influencer, you agree you are solely responsible for all Influencer Materials, you provide to Referwo or which otherwise relates to the Campaign, delivery of all products to Influencer relating to a Campaign and that you will comply with all Applicable Laws when offering, promoting and advertising the Campaign via the Referwo Platform.
6. Influencer obligations in Campaigns
6.1 For any Campaign an Influencer participates in, it must:
a. post Campaign Materials on its social media channels in accordance with requirements in a Campaign and any reasonable instructions issued by a Brand;
b. provide services to a professional standard, in a timely and competent manner with the degree of skill, care and diligence expected of an Influencer experienced in providing the same or similar services;
c. comply with all Applicable Laws and any relevant codes (including, the ACL, TGA Code, AIMCO and AANA).
d. not make an adverse statement regarding Referwo or the Brand, or do anything which may which brings us Referwo or a Brand into contempt, disrepute or scandal, or otherwise damage the reputation of Referwo or a Brand.
7. Subscription
7.1 To access additional features and functions of the Referwo Platform, Influencers must sign up for a Subscription.
7.2 A Subscription will activate at the date of sign up (Activation Date) and Influencers will be able to access the Referwo Platform unless or until a Subscription is cancelled, terminated or suspended in accordance with these Terms of Use.
7.3 Influencers must not transfer a Subscription or User Account to any other person or allow access to a User Account by another person unless we allow this in writing.
8. Free Account
8.1 We also offer a free account, during which you will not be charged for your access to the Referwo Platform, but will not have access to some additional features and functions (Free Account Period).
8.2 During any Free Account Period, an Influencer will receive any Commission Fees in accordance with clause 10.4
9. Subscription Fees
9.1 Subject to any Free Account Period, your paid Subscription will commence on the Activation Date.
9.2 You will be charged a monthly fee on the Activation Date in advance for the following month and will continue to be charged a monthly fee on each anniversary of the Activation Date (Subscription Fees) until your Subscription is cancelled, terminated, or suspended in accordance with these Terms of Use.
9.3 You can view:
9.3.1 the Activation Date for your Subscription in the account settings>billing and plans contained in your User Account via the Referwo Platform; and
9.3.2 the monthly fees, Platform Fees, list of Referwo Platform Services and level of access and restrictions associated with your Subscription at account settings>billing and plans>change plan.
9.4 We may from time to time and in our discretion, vary the price of a Subscription.
9.5 We will give you a minimum of 30 days notice before a variation to the price by sending an email to your nominated email account.
9.6 You may cancel your Subscription at any time by providing us with 7 days written notice after which your Subscription will terminate at the end of the next monthly cycle in accordance with clause 9.2.
9.7 We reserve the right in our sole discretion to, without prior notice to you, terminate, suspend or refuse to register any User Account or Subscription if you breach these Terms of Use, for operational purposes relating to the business or for any other reason.
10. Commission Sales and Commission Fees
10.1 A Commission Sale occurs when a Brand’s product is purchased via an affiliate link or discount code created by the Referwo Platform and displayed on an Influencer’s social media channels.
10.2 Any product purchased by an affiliate link or discount code uploaded by an Influencer from a third party website (for example, an external brand) is not a Commission Sale for the purposes of these Terms of Use.
10.3 Referwo tracks and monitors Commission Sales using the Referwo Platform.
10.4 Influencers will receive a percentage commission for each Commission Sale in accordance with the details contained in a Campaign (Commission Fees).
10.5 Commission Fees are payable to Influencers, subject to:
10.5.1 Receipt of payment from a Brand to Referwo in respect of the Commission Sale; and
10.5.2 Influencers complying with these Terms of Use.
10.6 Influencers will be paid any Commission Fees approved by a Brand less any Platform Fees that apply to an Influencer’s Subscription or Free Account Period.
10.7 Each 7 days during a Brand’s Subscription, Referwo will:
10.7.1 Notify a Brand of the amount of Commission Fees payable for the previous 7 day period; and
10.7.2 deduct Commission Fees from a Brand’s nominated bank account details or preferred payment method in clause 11.
10.8 Following the notification at clause 10.7.1, a Brand must approve the Commission Fees via the Referwo Platform within 30 days.
10.9 A Brand may only withhold approval of Commission Fees (by notifying Referwo) on the basis of a Commission Sale being fraudulent, or a refund being made by a purchaser of a product. Any dispute between a Brand and Influencer relating to approval of Commission Fees is between a Brand and the Influencer.
10.10 If notification of approval or notification of withholding approval of Commission Fees is not received by Referwo within 30 days of a notification by Referwo under clause 10.7.1, Referwo will release to an Influencer’s User Account the Commission Fees (less any Platform Fees payable from the Influencer to Referwo) within 7 days.
10.11 Influencers may withdraw amounts due under clause 10.10 from their User Account, subject to:
10.11.1 a minimum withdrawal amount of $30AUD; and
10.11.2 Withdrawing amounts due no more than 4 times each month.
10.12 A Brand has no right to dispute Commission Fees if notification of approval or notification of withholding approval of Commission Fees is not received by Referwo within 30 days of a notification by Referwo under clause 10.7.1.
10.13. Influencer Discount Codes usage are subject to:
10.13.1 Permitted Use of Discount Codes Influencers are authorised to share their discount codes on their social media accounts, blogs, and other approved channels. These codes are meant to be shared directly with the influencer’s audience in a manner that aligns with the company’s promotional guidelines.
10.13.2 Unauthorised Sharing Discount codes should not be shared on public coupon websites, forums, or any other unauthorised platforms. If a discount code is found to be publicly shared on such platforms, the company reserves the right to take immediate action.
10.13.3 Code Modification and Reissuance In the event that a discount code is discovered on public coupon websites, forums, or any other unauthorised platforms. The company has the authority to deactivate the existing code. A new, private code will then be issued directly to the influencer for continued use.
10.13.4 Influencer Responsibilities Influencers are responsible for ensuring their discount codes are shared only in approved channels, such as their social media accounts or blogs. Any violation of these guidelines may result in the suspension of discount code privileges
11. Agency relationship
11.1 All transactions between Brands and Influencers relating to a Campaign, Commission Sales and Commission Fees are contracts between Brands and Influencers.
11.2 Influencers acknowledge and agree that Referwo:
11.2.1 facilitates transactions between Brands and Influencers by tracking and monitoring Commission Sales on behalf of Brands;
11.2.2 pays Commission Fees to Influencers as authorised agent for a Brand; and
11.2.3 is not a party to any contract between Brands and Influencers relating to Commission Sales and Commission Fees or any other contract between Brands and Influencers.
12. Payment Processing
12.1 When creating a User Account an Influencer must, via the Referwo Platform, provide the Influencer’s nominated bank account details or select their preferred payment method designated in their User Account, and pre-authorise Referwo to deduct the Subscription Fees in full immediately from the Influencer’s nominated credit card or bank account.
12.2 You acknowledge and agree that Referwo uses the Payment Provider to provide payment processing services to Users in relation to the Referwo Platform (Payment Processing Services). If you use any Payment Processing Services in relation to the Referwo Platform, you agree to be bound by the Payment Provider’s terms and conditions, which include but are not limited to, Stripe, and such other relevant agreements from time to time. You agree to provide Referwo accurate and complete information about you when requested (including but not limited to your payment methods), and you authorize Referwo to share any such information with the Payment Provider as well as transaction information related to your use of the Payment Processing Services. Referwo is not responsible for the performance of any third party credit card processing or third party payment services.
12.3 An Influencer is responsible and liable for payment of all taxes (including reporting, collecting and remittance) payable under Applicable Law associated with Subscription Fees and Commission Fees.
12.4 An Influencer must provide any information regarding the Influencer’s GST registration and ABN details on request.
12.5 Where an Influencer provides the information in clause 12.4, the Influencer warrants to Referwo:
12.5.1 All information provided is up to date, accurate and correct;
12.5.2 The Influencer will notify Referwo immediately if there are any changes to details provided to Referwo under clause 12.4.
12.6 The Influencer indemnifies Referwo for all Loss suffered by Referwo as a result of a breach of clause 12.4 and clause 12.5 (including any penalties and interest).
13. Privacy
13.1 When operating the Referwo Platform, Referwo will collect, handle and use your Personal Information in accordance with our Privacy Statement – see Privacy Policy.
13.2 By using the Referwo Platform including registered a User Account, you acknowledge that you have read our Privacy Statement and consent to our collection, use and disclosure of your personal information in accordance with our Privacy Statement.
14. User Conduct
14.1 Your access to, and use of, the Referwo Platform is subject to all conditions specified in these Terms of Use. If you breach any such conditions, we will be entitled to take any reasonable action, including terminating your User Account or taking legal action against you, in our sole discretion.
14.2 You must comply, and are solely responsible for complying, with Applicable Laws that apply to your use of the Referwo Platform. Subject to any law to the contrary, we do not otherwise guarantee or warrant that your proposed or actual use of the Referwo Platform, complies with Applicable Laws that may apply to your activities on the Referwo Platform.
14.3 You agree not to:
a. Use the Referwo Platform for any purpose that is illegal, unlawful or prohibited by these Terms of Use;
b. Interfere or attempt to interfere with, or obtain or attempt to obtain unauthorised access to, the proper working of the Referwo Platform or any Content, including (without limitation) through:
1. hacking or use of automated devices, scripts or bots;
2. destructive transmission of viruses, malware or any code or other conduct of a disruptive or destructive nature;
3. reverse engineering, circumventing, damaging, disassembling, attempting to discover the source code; or
4. other illegitimate means;
c. Contact Registered Users for the purpose of sending unsolicited offers, advertisements, spam, junk e-mails;
d. Contact Registered Users for the purpose defaming, abusing, threatening or defrauding Users;
e. Impersonate any entity or falsely claim an affiliation with any person or entity;
f. Scrape or otherwise obtain any data from the Referwo Platform for any purpose or use any Content to spam third parties; or
g. Contribute or distribute any User Content via the Referwo Platform that infringes Applicable Laws or any other legislation or regulations of any applicable jurisdiction (including without limitation the jurisdiction in which you are using the Referwo Platform). You agree that any legal consequences arising from a claim or action for infringement of any such legislation or regulation based on contributing or distributing User Content via the Referwo Platform are your sole responsibility and you are wholly liable for such claims or actions.
14.4 You agree that your User Content does not contain any:
a. Offensive, defamatory, obscene, blasphemous, hateful, violent, bullying, discriminatory or threatening language, or content that creates a risk of personal injury or property damage or makes any threat to people or public safety;
b. Illegal, false, fraudulent, misleading or deceptive conduct, including but not limited to blackmail, extortion, financial or personal scams and attempts to impersonate others;
c. Content that infringes the personal or proprietary rights of others, including but not limited to Intellectual Property rights and rights to privacy; or
d. Spam, publicity or promotion of commercial activities or commercial content not specifically authorised by us with our prior written consent.
14.5 You are solely responsible for any uploading or sharing of User Content on the Referwo Platform in accordance with clause 15. By contributing User Content to the Referwo Platform, you must not infringe the rights (including Intellectual Property rights) of any other User or third party or act in a way that constitutes a breach of any agreement you may have with any person. Subject to clause 17, we are not responsible or liable for any User Content that is uploaded to, shared via, displayed on or transmitted via the Referwo Platform that does not comply with these Terms of Use.
15. Uploading User Content and Comments
15.1 You may share or upload Content (including Campaign Materials) to the Referwo Platform only if all of the following conditions are met:
a. You are the owner of all Intellectual Property rights in the Content (Content IP) and can license the use of the Content IP to Referwo in accordance with clause 16.4;
b. If you are not the owner of the Content IP, you have all necessary licenses, permissions and consents to upload the Content containing Content IP to the Referwo Platform and license the use of the Content IP to Referwo in accordance with clause 16.4; and
c. If the Content contains any Intellectual Property owned by a third party (Third Party Content IP) in conjunction with the Content IP, you have all necessary licenses, permissions and consents to upload the Content containing Third Party Content IP to the Referwo Platform and license the use of the Third Party Content IP to Referwo in accordance with clause 16.4.
15.2 Referwo retains the right (without providing any notice to you) to remove, block, edit or monitor the User Content, at Referwo’s sole discretion.
16. Intellectual Property
16.1 The Intellectual Property subsisting in all aspects of the Referwo Platform including text, graphics, artwork, logos, software, trade marks, designs, copyright, compilations, algorithms, source code, video recordings and audio recordings, as well as the structure, layout, user interface and “look and feel” of the Referwo Platform, but excluding User Content (Referwo Platform IP), is exclusively owned and controlled by Referwo or its third party licensors or licensees, protected by Australian and international law governing intellectual property rights. The Referwo Platform IP remains Referwo’s exclusive property throughout the world in perpetuity.
16.2 You are not permitted to save, download, reproduce, display, copy, alter, conceal, adapt, perform, transmit, broadcast, sell, license or otherwise exploit any Referwo Platform IP unless you have express prior written authorisation from Referwo. Any unauthorised use of Referwo Platform IP by Users is strictly prohibited.
16.3 Subject to the rights granted to Referwo under clause 16.4, you will retain exclusive ownership and control of any Intellectual Property subsisting in any User Content which you share via, or submit or upload to, the Referwo Platform.
16.4 Notwithstanding clause 16.3, you grant to Referwo a perpetual, non-exclusive, fully paid, royalty-free, transferable, sub-licensable, non-revocable, unlimited, worldwide licence to reproduce, exploit, use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute any User Content which you share via, or submit or upload to, the Referwo Platform, in any and all media, at Referwo’s sole discretion.
17. Consumer Guarantees and Disclaimers
17.1 Where you acquire our Referwo Platform Services as a Consumer, we provide our Referwo Platform Services to you in accordance with any Consumer Guarantees under the ACL. Nothing in these Terms of Use overrides, excludes, limits or otherwise restricts any Consumer Guarantees applicable to you under the ACL, to the extent that they do, this clause 17.1 prevails.
17.2 Where you do not acquire our Referwo Platform Services as a Consumer, or clause 17.1 does not apply, then to the extent permitted by law:
a. We do not guarantee or warrant that the Referwo Platform Services will be suitable or fit for any particular purpose, including the purpose for which the Referwo Platform Services are ordinarily provided;
b. We do not guarantee or warrant that access to and use of the Referwo Platform will be uninterrupted and fault-free at all times;
c. We do not provide any guarantee or warranty that you may view, access or use the User Content via the Referwo Platform without infringing the Intellectual Property rights of a third party or for any incomplete, inaccurate, incorrect or out-of-date information in User Content on the Referwo Platform; and
d. We otherwise exclude any term, condition or warranty that may otherwise be implied into these Terms of Use or otherwise relating to our Referwo Platform Services.
17.3 In addition to clause 16.2, and subject at all times to clause 16.1, you acknowledge and agree that:
a. Referwo provides intermediary functions and services connecting Brands and Influencers and does not provide any guarantee or warranty relating to the Brand or Influencer’s services provided via the Referwo Platform;
b. Referwo does not recommend or endorse any particular Brand or Influencer (including through the use of Reviews uploaded by Brands) and does not provide any advice regarding the legitimacy and transparency of any Influencer and you must exercise your own due diligence on all Influencers before approving Influencers;
c. Influencers are not employed or sub-contracted by Referwo or any associate or employee or director or agent of Referwo to offer their services to Influencers;
d. All services provided by Influencers are provided by Influencers and not Referwo; and
e. Referwo is not responsible for any conduct of any Registered User which occurs outside the Referwo Platform.
17.4 The Referwo Platform may integrate with or host hyperlinks to third party web services, or host third party information or content within the Referwo Platform. All third party content hosted on the Referwo Platform is the responsibility of its author, and Referwo does not endorse or represent the views or opinions contained in that third party content. Referwo is not responsible for any material contained on third party web services that is hosted on the Referwo Platform in any way, and any dealings between you and third parties is your sole responsibility.
18. Liability
18.1 If you are a Consumer, our liability to you for any Loss or Claim suffered as a result of us failing to comply with any Consumer Guarantees in relation to the Referwo Platform Services during the relevant period (Affected Period) is limited at our election to the resupply of the Referwo Platform Services for a period equivalent to the period of the breach, or payment of the cost of resupply of the Referwo Platform Services equivalent to Affected Period.
18.2 Subject to clause 18.1 and any liability we may have to you under clause 18.1, and to the extent permitted by law, Referwo and its Representatives exclude, and you release Referwo and its Representatives from, all liability (whether arising under these Terms of Use, tort, negligence, statute or in any other way) for all Loss and Clams of any kind whatsoever directly or indirectly sustained by you in relation to any of the following matters (Referwo Platform Matters):
a. Your use of, or inability to use, the Referwo Platform;
b. A failure by a Registered User, to comply with these Terms of Use;
c. Any failure by Referwo, its Payment Provider, or other third parties to provide any information, service, feature or functionality via the Referwo Platform;
d. Any unauthorised submission of information to the Referwo Platform;
e. Statements or conduct of any third party using the Referwo Platform;
f. Use of third-party services in conjunction with the Referwo Platform by you;
g. Any communication or interaction between Users via the Referwo Platform, whether online or offline;
h. A failure by another User you interact or deal with via the Referwo Platform to comply with these Terms of Use;
i. Any User Content that is uploaded, submitted, or otherwise appears, via the Referwo Platform;
j. Where any User fails to comply with any Applicable Laws when using the Referwo Platform;
k. Where you fail to comply with any Applicable Laws or the Privacy Act when dealing with Personal Information in connection with the Referwo Platform; and
l. Anything outside the reasonable control of Referwo including without limitation natural disasters, pandemics, acts of God, equipment or infrastructure failure, civil riots, war (include cyber attacks), strikes, data breaches, viruses or malicious code.
18.3 To the extent that any limitations of liability contained in these Terms of Use are ineffective or if any warranties are implied by law that cannot be excluded, then to the maximum extent permitted by law, our total aggregate liability to you is capped at the total monies you have paid (subject to deductions for refunds received) to any User or otherwise via the Referwo Platform in the 12 month period prior to the limitation being ineffective or warranty not being able to be excluded.
19. Indemnity
19.1 As a further condition of using the Referwo Platform, you must indemnify Referwo against all direct, quantifiable and reasonable Loss suffered by Referwo and its Representatives (whether based in negligence or any other tort, contract, statutory liability or otherwise) as a result of you breaching these Terms of Use, or otherwise from your use of Referwo Platform and the Referwo Platform Services.
20. Termination
20.1 We may terminate or suspend your User Account at any time, at our sole discretion and without notice to you effective immediately if we have reason to believe that you have failed to comply with these Terms of Use. For any other reason, we will give you 14 days’ prior written notice.
20.2 If we terminate your User Account, you will no longer have access to the functionality of the Referwo Platform. We will also be under no obligation to store the User Content contributed through your User Account or provide you with further access to such User Content.
20.3 Notwithstanding clauses 20.1 to 20.2:
a. Any Personal Information or non-personal statistical information collected under these Terms of Use and the Privacy Statement may continue to used or disclosed within the scope of the purposes described in the Privacy Statement; and
b. We may store any User Content on our servers at our discretion, where our rights under clause 17.4 will continue in perpetuity.
21. Jurisdiction & Choice of Law
21.1 These Terms of Use are governed by and construed in accordance with the laws of the State of Victoria, Australia without giving effect to any conflict of laws principles. Any claim, cause of action or dispute arising out of these Terms of Use will be resolved exclusively in the courts of Victoria, Australia, and where applicable, the Federal Court of Australia or Federal Circuit of Australia, and you agree to submit to the personal jurisdiction of such courts for the purpose of litigating such claims.
22. Complaints and Dispute Resolution
22.1 If a Brand and Influencer have a dispute in connection with the Referwo Platform including in relation to a Campaign, Referwo expressly disclaims any responsibility or liability in relation to such disputes. Despite this, Referwo may, but is not required to investigate, assist or involve itself in such disputes, at the specific request of a Brand or Influencer. If Referwo investigates, assists or otherwise involves itself (at its discretion):
a. a Brand or Influencer will be allocated a contact within Referwo to manage the complaint or dispute; and
b. both parties will jointly and severally indemnify Referwo against all costs and expenses incurred by Referwo in relation to its investigation, assistance or involvement of the dispute.
22.2 Any complaints about Referwo or a dispute with Referwo in relation to these Terms of Use or the Referwo Platform Services (Dispute) by a Registered User must first be dealt with in accordance with clauses 22.2 to 22.4, before commencing any court or arbitration proceedings other than for urgent interlocutory relief.
22.3 The Registered User must give Referwo written notice of the dispute adequately identifying and providing details of the Dispute (Dispute Notice). Notwithstanding the existence of a Dispute, both parties will continue to perform their obligations under these Terms of Use.
22.4 If a Dispute is not resolved by agreement within 20 business days of Referwo receiving a Dispute Notice, either party may refer the Dispute to confidential mediation to be conducted by an independent mediator appointed by agreement between the parties, or failing agreement within 30 business days of Referwo receiving the Dispute Notice, by a person appointed by the Chair of Resolution Institute, (ACN 008 651 232, Level 2, 13-15 Bridge Street, Sydney NSW 2000; telephone: 02 9251 3366, email: infoaus@resolution.institute) or the Chair’s designated representative. The Resolution Institute Mediation Rules shall apply to the mediation unless otherwise agreed. The costs of the mediator shall be borne equally between the disputing parties.
23. Miscellaneous
23.1 Unless displayed clearly otherwise, all amounts shown on the Referwo Platform are in Australian dollars and exclusive of GST. All prices are subject to change.
23.2 Referwo reserves the right to perform maintenance of the Referwo Platform (where the functionality of the Referwo Platform may not be accessible for a certain period of time) without notice to you.
23.3 If Referwo is involved in a sale, merger or other restructuring, it may need to assign its position under these Terms of Use to a third party, which it will have the right to do so at its sole discretion. Referwo will also have the right to assign its position under these Terms of Use in other circumstances with your written consent. You may assign your position under these Terms of Use to a third party with Referwo’s prior written consent.
23.4 The rights and obligations under these Terms of Use, which by their nature would reasonably continue beyond the expiration of termination of these Terms of Use, will survive the expiration of termination of these Terms of Use. Without limiting the generality of the foregoing, clauses 16, 17, 18 and 19 will survive the termination of these Terms of Use.
23.5 In the event that any one or more of the provisions contained in these Terms of Use would, for any reason, be held to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect any other provisions of these Terms of Use and these Terms of Use shall be construed as if such provisions had never been contained in these Terms of Use.
23.6 The fact that a party fails to do, or delays in doing, something the party is entitled or obligated to do under these Terms of Use, does not amount to a waiver of any obligation of, or breach of obligation by, any other party.
23.7 In these Terms of Use, except where the context otherwise requires:
a. The singular includes the plural and vice versa;
b. Words such as including or for example do not limit the meaning of the words preceding them;
c. A reference to a document includes the document as assigned, novated, altered, supplemented or replaced from time to time;
d. Parties must perform their obligations to Referwo, and we will perform our obligations, on the dates and times fixed by reference to Melbourne, Victoria.
e. A reference to any party to these Terms and Conditions, includes that party’s executors, administrators, successors and permitted assigns and substitutes;
f. A reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
g. A reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re enactments or replacements of any of them;
h. A rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Agreement or any part of it; and
i. An obligation or liability assumed by, or a right conferred on, two or more parties binds or benefits them all jointly and severally.
23.8 The following definitions apply in these Terms of Use:
ABN has the meaning given to that term in the GST Act.
ACL means the Australian Consumer Law, being Schedule 2 of the Competition and Consumer Act 2010 (Cth).
AANA means the Australian Association of National Advertisers Code of Ethics.
AIMCO means the Australian Influencer Marketing Council Code of Practice.
Applicable Laws means any and all applicable laws, statutes, regulations, instruments and by-laws and all other subordinate legislation or orders made by any authority with jurisdiction in relation to creating campaigns, offering and receiving samples, discounts and commissions on the Referwo Platform or that otherwise apply in relation to any User’s use of the Referwo Platform.
Brand means a Registered User who uses the Referwo Platform to create campaigns offering samples, discounts and commissions relating to the its products.
Campaign means a campaign that a Brand uploads and promotes on the Referwo Platform.
Claim mean any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature, whether present or future, fixed or unascertained, actual or contingent, at law, in equity, under statute or otherwise.
Commission Sale contains the meaning given to it in clause 10.
Consumer has the same meaning as set out in the ACL.
Content means all content on the Referwo Platform including without limitation text, photographs, logos, names, designs, information, Personal Information, financial information, data, drawings, URL links, video recordings and audio recordings.
Influencer means a Registered User who uses the Referwo Platform to provide services to Brands.
GST is as defined in GST Act.
GST Act means A New Tax System (Goods and Services) Act 1999 (Cth); and GST Laws means the GST Act and all related subsidiary regulations.
Intellectual Property means all intellectual property and quasi-intellectual property rights (past, present and future) conferred by law (whether registered or unregistered) including without limitation business names, trade marks, patents, designs, copyright, trade secrets, computer programs, databases, inventions, moral rights and all proprietary rights and all other intellectual property defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation (July 1967).
Loss means loss, damage, liability, charge, expense, payment or cost of any nature or kind, including all legal and other professional costs (calculated on an indemnity basis).
Payment Provider means the third party engaged by Referwo from time to time to facilitate payments on the Referwo Platform, which is, at the time of writing these Terms of Use, services known as Stripe and PayPal and/or related companies in Australia or overseas.
Personal Information means any information or opinion which can reasonably identify an individual.
Referwo Platform Services means the services listed in clause 1.2 and any subsidiary services provided by Referwo via or in relation to the Referwo Platform from time to time.
Platform Fees means that platform fees that apply to a Brand or Influencer’s User Account (in addition to any Subscription Fees).
Privacy Act means the Privacy Act 1988 (Cth) as amended from time to time.
Privacy Statement means the Privacy Statement for the Referwo Platform as amended or updated from time to time, a copy of which can be found on the following webpage: Privacy Policy
Registered User means a user who has registered an account on the Referwo Platform (including Influencers and Brands).
Representatives means Referwo’s directors, officers, contractors, employees, consultants.
Subscription has the meaning set out in this Terms of Use.
TGA Code means means Schedule 1 of the Therapeutic Goods (Advertising Code) Instrument 2021, which contains the Therapeutic Goods Advertising Code.
User Account has the meaning provided in clause 3.1.
User Content means:
j. any Content shared via, or submitted or uploaded to, the Referwo Platform by a Registered User, and includes without limitation, Campaign Materials; and
k. content appearing on an Influencer or Brands third party social media channels in relation to a Brand or Influencer’s use of the Referwo Platform including without text, photographs, logos, names, designs, information, Personal Information, financial information, data, drawings, URL links, video recordings and audio recordings.
