DEFINITIONS 1. Unless the contrary intention appears, in these terms and conditions the following words and phrases have the following meaning: 1.1 Account means the account provided by the Designated Financial Institution into which the Social Marketer authorises Modere to pay the Social Marketer s Bonus Entitlements; 1.2 Amounts means any fees, costs, charges, taxes, imposts, levies, duties or contingent liabilities owing by the Social Marketer to Modere; 1.3 Bonus Entitlement has the same meaning given to term in the Modere Policies and Procedures; 1.4 Designated Financial Institution means the financial institution through/by which the account is provided; 1.5 Social Marketer has the same meaning given to the term in the Modere Policies and Procedures; 1.6 Social Marketer Account has the same meaning given to the term in the Modere Policies and Procedures; 1.7 Modere Independent Application and Agreement has the same meaning given to the term in the Modere Policies and Procedures; 1.8 Username means the unique email address that is registered to each Social Marketer Account pursuant to the Modere Independent Application and Agreement; 1.9 Modere means Modere Australia Pty Ltd ABN 11 065 366 458 1.10 Modere Account refers to the Social Marketer account log showing all transactions including but not limited to order invoices, renewal fees, transactions etc; 1.11 Shiftingretail account refers to an online account that provides a Social Marketer with access to information relating to the Social Marketer s business via the Shiftingretail website; 1.12 Shiftingretail website means the Modere Shiftingretail website designed and operated by Modere to assist a Social Marketer with the running of their business; 1.13 Password means the unique word created or nominated by each Social Marketer, which is known only by that Social Marketer, used to access the Social Marketer s Shiftingretail account. SECTION 1: ELECTRONIC PAYMENT OF BONUS ENTITLEMENTS ACCEPTANCE OF TERMS AND CONDITIONS 2. Section 1 of this agreement sets forth the terms and conditions that apply to and govern electronic payment of Social Marketer Bonus Entitlements with a value of greater than or equal to $5.00 to an account nominated by the Social Marketer and held with a Designated Financial Institution. 3. The Social Marketer cannot enter Account details on the Shiftingretail website or authorise Modere to pay the Social Marketer s bonus Entitlements until the Social Marketer checks the box marked I have read and agree to the Modere Bonus Payment Terms and Conditions located below the Account details. 4. By checking the box marked I have read and agree to the Modere Bonus Payment Terms and Conditions, the Social Marketer indicates that the Social Marketer has read carefully and accepts these terms and conditions, and the Social Marketer fully understands and agrees to be bound by Section 1 of these terms and conditions. 5. Upon acceptance by the Social Marketer of Section 1 of these terms and conditions, the Social Marketer authorises Modere to pay by way of electronic transfer the entirety of the Social Marketer s Bonus Entitlements with a value of greater than or equal to $5.00, less any Amounts, to the Modere Account on and subject to Section 1 of these terms and conditions. GENERAL 6. This agreement is to be read in conjunction with any other agreement entered into between the parties including, without limitation, the Social Marketer Agreement and Modere Policies and Procedures documentation as varied or amended from time to time. 7. This agreement is completely independent of any agreement between the Social Marketer and the Designated Financial Institution relating to the Account. 8. Modere strongly advises that the Social Marketer seek expert legal advice should the Social Marketer require assistance with or explanation of any of these terms and conditions. VARIATION TO THE TERMS AND CONDITIONS 9. These terms and conditions are subject to change by Modere, at its sole discretion, by posting varied ot revised terms and conditions on the Modere Shiftingretail website (presently shiftingretail.com.au). If the Social Marketer objects to the varied or revised terms and conditions the Social Marketer should notify Modere immediately. However, the Social Marketer will be deemed to have accepted the varied or revised terms and conditions by continuing to allow Modere to effect electronic payment of the Social Marketer s Bonus Entitlements to the Account after the varied or revised terms and conditions are posted on the Modere website. VARIATION OF ACCOUNT DETAILS 10. The Social Marketer must notify Modere immediately if there are any changes to any information provided by the Social Marketer to Modere in relation to the Account. 11. If there are any changes to information provided by the Social Marketer to Modere in relation to the Account, Modere reserves the right to charge a fee to the Social Marketer to update Account details.
SAFEGUARDING ACCOUNTS AGAINST UNAUTHORISED ACCESS 12. The Social Marketer accept sole responsibility for the confidentiality and security of the Social Marketer s Username and Password and the use thereof in relation to the Account. FEES, COSTS AND CHARGES 13. Except where otherwise specified, Modere reserves the right to recover from the Social Marketer any Amounts incurred by Modere as a result of Modere paying the Social Marketer s Bonus Entitlements to the Account. The Social Marketer authorises Modere to deduct monies from the Social Marketer s Bonus Entitlements to pay such Amounts. ACCOUNT DETAILS 14. The Social Marketer must ensure that the Account details are correct and complete. The Social Marketer is responsible for ensuring that the Account is valid and active and that the name provided for the Account holder is complete and correct. Modere accepts no responsibility, liability, damages or loss, for erroneous payments made by Modere as a result of incorrect or incomplete Account details. LIMITATION OF LIABILITY AND DISCLAIMER 15. Modere does not represent or warrant: 15.1 that the operation of the Shiftingretail website will be uninterrupted or error free; 15.2 that the shiftingretail website is free from technical faults, computer viruses or other harmful or malicious codes; or 15.3 the reliability, accuracy or completeness of any information contained on the Shiftingretail website or that any or all aspects of the Shiftingretail website will be secure, available and operational at all times. 16. Although Modere has implemented certain security procedure intended to guard against unauthorized access to information and data, Modere does not warrant that unauthorized access to information and data could not occur. 17. Modere, its officers, employees, agents, contractors and affiliates shall not be liable in any way to the Social Marketer or anyone else for any loss or damage, however arising, out of or in connection with the Social Marketer s access and use of the Shiftingretail website or the electronic payment of the Social Marketer s Bonus Entitlements to the Account. 18. Modere, its officers, employees, agents, contractors and affiliates assume no responsibility for any loss of funds (including the Social Marketer s Bonus Entitlements), delays in processing or any other damage resulting from software limitations or incompatibility, interruptions in the telecommunications and internet service providers, or any other errors or interruptions in the Designated Financial Institution website and/or the Shiftingretail website, and the Social Marketer hereby releases Modere, its officers, employees, agents, contractors and affiliates from all and any liability in that regard. 19. The Social Marketer agrees to indemnify Modere, if officers, employees, agents, contractors and affiliates from and against all claims, actions, liabilities, demands, losses, expenses, damages and costs, including legal costs on a solicitor/client basis incurred by them or any of them, arising out of the Social Marketer s use of the Shiftingretail website, payment and attempted payment of the Social Marketer s Bonus Entitlements to the Account and/or any breach of these terms and conditions. 20. Modere shall make all reasonable efforts to ensure that the Social Marketer s request for electronic payment of Bonus Entitlements to the Account is processed in a timely manner. However, Modere makes no representations or warranties regarding the amount of time to complete processing and the Social Marketer agrees that Modere will not be liable to the Social Marketer or any other person for any actual or consequential loss or damage arising from any delay in or attributable to processing the Social Marketer s request for and payment to the Social Marketer s Bonus Entitlements to the Account. 21. To the maximum extent permitted by law, every condition, warranty, term, provision, representation or undertaking (express, implied, written, oral, collateral, statutory or otherwise that applies or might apply to this arrangement) is excluded. 22. To the maximum extent permitted by law, the Social Marketer agrees not to make, and releases any right it may have to make, against Modere any claim based on Part IVA or V (including sections 51A, 52 or 53) of the Trade Practices Act 1974 (Cth), or on any corresponding provision of any State or Territory legislation, or on a similar provision under any applicable law, for any act or omission of Modere, or for any statement or representation about any of those things. PAYMENT EFFECTED 23. Payment of the Social Marketer s Bonus Entitlements to the Account shall be effected and deemed to have been effected by Modere if: 23.1 Payment of the Social Marketer s Bonus Entitlements or any part thereof is credited to the Account; or 23.2 Notwithstanding the absence of a credit of the Social Marketer s Bonus Entitlements (or any part thereof) to the Account, Modere has acted in accordance with the Social Marketer s instructions in relation to Modere dispatching the funds automatically via electronic transfer from the Modere bonuses bank account AND in each such case Modere shall have effected performance and discharged its liability to the Social Marketer for and in relation to payment of the Social Marketer s Bonus Entitlements to the Account.
24. Modere shall not be held liable in any way to the Social Marketer or any third party for any loss or damage, however arising, out of or in connection with the payment of the Social Marketer s Bonus Entitlements to the Account or acting in accordance with the Social Marketer s instructions in relation to effecting or attempting to effect payment of the Social Marketer s Bonus Entitlements to the Account. 25. The Social Marketer agrees to indemnify Modere against any loss that the Social Marketer might suffer as a result of the Social Marketer s Bonus Entitlements being paid to the Account or any attempt by Modere at paying the Social Marketer s Bonus Entitlements to the Account. AUSTRALIAN ACCOUNTS 26. The Account must be an account in Australia. Details relating to offshore accounts will not be accepted by Modere and electronic payment of Bonus Entitlements will not be made of offshore accounts. TERMINATION 27. Modere may terminate this arrangement immediately by written notice if the Social Marketer commits a breach of any of these terms and Conditions. 28. Either party may terminate this arrangement with seven (7) day s prior written notice to the other party. 29. After termination, the Social Marketer will remain responsible for all outstanding fees and charges and for all liabilities incurred by either party prior to the date Modere received the Social Marketer s notice of cancellation. 30. Any monies, including the Social Marketer s Bonus Entitlements, owing to the Social Marketer at the time Modere receives notice of the Social Marketer s cancellation will be paid to the Social Marketer, less any outstanding Amounts. NON-WAIVER 31. Any non-enforcement by Modere of any of its rights under this arrangement will not constitute a waiver of those rights. Furthermore, any waiver by Modere of any of its rights under this arrangement will not constitute a waiver on any subsequent occasion. JURISDICTION 32. This arrangement is governed by and construed under the laws of South Australia. SECTION2: SOCIAL MARKETER S MODERE ACCOUNT 32.A Section 2 of this agreement is not operative, except in respect of Bonus Entitlements with a value of less than $5.00, until otherwise notified by Modere by posting varied or revised terms and conditions on the Modere website (presently shiftingretail.com.au). 32.B Section 2 of this agreement is automatically operative in respect of Bonus Entitlements with a value of less than $5.00 ACCEPTANCE OF TERMS AND CONDITIONS 33. Section 2 of this agreement sets forth the terms and conditions that apply to and govern the allocation of Bonus Entitlements to a Social Marketer s Modere Account to pay for Modere product purchases by a Social Marketer. 34. Except in respect of Bonus Entitlements with a value of less than $5.00, the Social Marketer cannot authorise Modere to allocate the Social Marketer s Bonus Entitlements to the Social Marketer s Modere Account until the Social Marketer checks the box marked I have read and agree to the Modere Bonus Payment Terms and Conditions located below the Account details. 35. By checking the box marked I have read and agree to the Modere Bonus Payment Terms and Conditions, the Social Marketer indicates that the Social Marketer has read carefully and accepts these terms and conditions, and the Social Marketer fully understands and agrees to be bound by Section 2 of these terms and conditions. 36. Upon acceptance by the Social Marketer of Section 2 of these terms and conditions, the Social Marketer authorises Modere to allocate the entirety of the Social Marketer s Bonus Entitlements, less any Amounts, to the Social Marketer s Modere Account on the subject to Section 2 of these terms and conditions. GENERAL 37. This agreement is to be read in conjunction with any other agreement entered into between the parties including, without limitation, the Modere Independent Application and Agreement and Modere Policies & Procedures manual documentation as varied or amended from time to time. 38. Modere strongly advises that the Social Marketer seek expert legal advice should the Social Marketer require assistance with or explanation of any of these terms and conditions. VARIATION TO TERMS AND CONDITIONS 39. These terms and conditions are subject to change by Modere, as its sole discretion, by posting varied or revised terms and conditions on the Shiftingretail website (presently shiftingretail.com.au). If the Social Marketer objects to the varied or revised terms and conditions the Social Marketer should notify Modere immediately. However, the Social Marketer will be deemed to have accepted the varied or revised terms and conditions by continuing to allow Modere to effect electronic payment of the Social Marketer s Bonus Entitlements to the Account after the varied or revised terms and conditions are posted on the Shiftingretail Website. SAFEGUARDING ACCOUNTS AGAINST UNAUTHORISED ACCESS 40. The Social Marketer accepts sole responsibility for the confidentiality and security of the Social Marketer s Username and Password and the use thereof in relation to the Social Marketer s Modere account.
FEES, COSTS AND CHARGES 41. Except where otherwise specified, Modere reserves the right to recover from the Social Marketer any Amounts incurred by Modere as a result of Modere allocating the Social Marketer s Bonus Entitlements to the Social Marketer s Modere Account. The Social Marketer authorises Modere to deduct monies from the Social Marketer s Modere Account to pay such Amounts. LIMITATION OF LIABILITY AND DISCLAIMER 42. Modere does not represent or warrant: 42.1 that the operation of the Shiftingretail website will be uninterrupted or error free 42.2 that the Shiftingretail website is free from technical faults, computer viruses or other harmful or malicious codes; 42.3 The reliability, accuracy or completeness of any information contained on the Shiftingretail website or that any or all aspects of the Shiftingretail website will be secure, available and operational at all times. 43. Although Modere has implemented certain security procedures intended to guard against unauthorised access to information and data, could not occur. 44. Modere, its officers, employees, agents, contractors and affiliates shall not be liable in any way to the Social Marketer or anyone else for any loss and damage, however arising out of or in connection with the Social Marketer s access and use of the Shiftingretail website or the allocation of the Social Marketer s Bonus Entitlements to the Social Marketer s Modere Account. 45. Modere, its officers, employees, agents, contractors and affiliates assume no responsibility for any loss of funds (including the Social Marketer s Bonus Entitlements), delays in processing or any other damage resulting from software limitations or incompatibility, interruptions in network telecommunications and internet service providers, or any other errors or interruptions in the Shiftingretail website, and the Social Marketer hereby releases Modere, its officers, employees, agents, contractors and affiliates from all and any liability in that regard. 46. The Social Marketer agrees to indemnify Modere, its officers, employees, agents, contractors and affiliates from and against all claims, actions, liabilities, demands, losses, expenses, damages and costs, including legal costs on a solicitor/client basis incurred by them or any of them, arising out of the Social Marketer s use of the Shiftingretail website, allocation and attempted allocation of the Social Marketer s Bonus Entitlements to the Social Marketer s Modere Account and/or any breach of these terms and conditions. 47. Modere shall make all reasonable efforts to ensure that the Social Marketer s request for allocation of Bonus Entitlements to the Social Marketer s Modere Account is processed in a timely manner. However, Modere makes no representations or warranties regarding the amount of time to complete processing and the Social Marketer agrees that Modere will not be liable to the Social Marketer or any other person for any actual or consequential loss or damage arising from any delay in or attributable to processing the Social Marketer s request for and allocation of the Social Marketer s Bonus Entitlements to the Social Marketer s Modere Account. 48. To the maximum extent permitted by law, every condition, warranty, term and provision, representation or undertaking (express, implied, written, oral, collateral, statutory or otherwise) is excluded by Modere. 49. To the maximum extent permitted by law, the Social Marketer agrees not to make, and releases any right it may have to make, against Modere any claim based on Part IVA or V (including sections 51A, 52 or 53) of the Trade Practices Act 1974 (Cth), or on any corresponding provision of the State or Territory legislation, or on a similar provision under any applicable law, for any act or omission of Modere, or for any statement or representation about any of those things. PAYMENT EFFECTED 50. Allocation of the Social Marketer s Bonus Entitlements to the Social Marketer s Modere Account shall be effected and deemed to have been effected by Modere if allocation of the Social Marketer s Bonus Entitlements to the Social Marketer s Modere Account or acting in accordance with the Social Marketer s instructions in relation to effecting or attempting to effect allocation of the Social Marketer s Bonus Entitlements to the Social Marketer s Modere Account. 51. Modere should not be held liable in any way to the Social Marketer or any third party for any loss or damage, however arising, out of or in connection with the allocation of the Social Marketer s Bonus Entitlements to the Social Marketer s Modere Account or acting in accordance with the Social Marketer s instructions in relation to effecting or attempting to effect allocation of the Social Marketer s Bonus Entitlements to the Social Marketer s Modere Account. 52. The Social Marketer agrees to indemnify Modere against any loss that the Social Marketer might suffer as a result of the Social Marketer s Bonus Entitlements being allocated to the Social Marketer s Modere Account or any attempt by Modere at allocating the Social Marketer s Bonus Entitlement to the Social Marketer s Modere Account. NO INTEREST ACCRUED 53. No interest shall accrue on any balance in the Social Marketer s Modere Account. PURCHASE OF MODERE PRODUCTS 54. The Social Marketer may apply the balance of the Social Marketer s Modere Account from time to time for or towards the purchase of Modere products by the Social Marketer from Modere.
55. If the Social Marketer places an order for Modere products with a purchase price greater than the balance of the Social Marketer s Modere Account (less any Amounts), the Social Marketer must pay to Modere, by means acceptable to Modere, the amount by which the purchase price of such an order to the Social Marketer exceeds the balance of the Social Marketer s Modere Account (less any Amounts) and unless and until such payment is made Modere shall not be obliged to sell or supply products under such order. 56. Any Modere products purchased by the Social Marketer pursuant to clause 54 of these terms and conditions will not be released by Modere until all payments required pursuant to clause 55 of these terms and conditions have received in cleared funds. RUNNING ACCOUNT 57. The Modere Account constitutes a running account and any moneys allocated to and from the Social Marketer s Modere Account will be allocated on a first-in first-out basis. TERMINATION 58. Modere may terminate this arrangement immediately by written notice if the Social Marketer commits a breach of any of these terms and conditions. 59. Either party may terminate this arrangement with seven (7) day s prior written notice to the other party. 60. After termination, the Social Marketer will remain responsible for all outstanding fees and charges and for all liabilities incurred by either party prior to the date Modere received the Social Marketer s outstanding Amounts. 61. The balance (if any) of the Social Marketer s Modere Account owing to the Social Marketer fees and charges and for all liabilities incurred by either party prior to the date Modere received the Social Marketer s notice of cancellation (if at all). NON WAIVER 62. Any non-enforcement by Modere of any of its rights under this arrangement will not constitute a waiver of those rights. Furthermore, any waiver by oderef any of its rights under this arrangement will not constitute a waiver on any subsequent occasion. JURISDICTION 63. This arrangement is governed by and construed under the laws of South Australia. BONUS PAYMENT TERMS AND CONDITIONS 09/15 Modere Australia Pty Ltd. Level 1, 200 East Terrace Adelaide, SA 5000 Phone 08 8564 3660 Fax 08 8364 3664 Email info@modere.com.au ABN 11 065 366 458