MemberBuy Merchant Terms and Conditions
General Terms and Conditions
Document Version 2.0
Effective Date: 1 July 2022
1. Overview of the agreement
This agreement together with the Merchant Registration Form and any attachment containing a reference to this agreement is between Memberbuy Australia Pty Ltd ACN 637 288 978 (“Memberbuy”, “we” or “us”) and the entity or person (“you”, “your” “partner” or “merchant”) who signs up for the provision of Memberbuy platform which consists of a mobile application known as “Memberbuy”, Memberbuy mobile payment services (know as MemberPay), Memberbuy Reward System that leverages our platform-wide digital voucher system known as “M-Voucher”, mobile ordering in-venue or pick-up and any other services that may be offered to you by us, our affiliates including any third-party services providers approved by us to provide their services via the Memberbuy platform.
This agreement supersedes all previous agreements between you and us, but only to the extent that doing so does not override your obligations with respect to confidentiality, exclusivity, outstanding and unredeemed benefits issued through the Memberbuy platform prior to this agreement, any other obligations that survive the termination of any prior agreements and other laws and regulations that apply to you. By accessing any of our services, you agree to be bound by the terms and conditions of this agreement, and any third-party service provider's terms and conditions. If you do not accept these terms and conditions, you must immediately cease using our relevant services.
The stores will be activated on the Commencement Date stated in the Merchant Registration Form or when the store goes live on the Memberbuy app (whichever is later). If a significant delay of activation is caused by you, we reserve the right to terminate this agreement and the provisions of Clause 9 shall apply.
3. Fees and charges
In order to access the Memberbuy platform and use one of our services, you agreed to be charged with Memberbuy Platform fees for every transaction processed via the Memberbuy platform. All transactions made via the Memberbuy platform are subject to standard credit card fees or banking processing fees charged by the relevant third-party payment processing company. The selling price on the Memberbuy App are all GST included.
4. Benefits and incentives for exclusivity
In the case of benefits and incentives that we offered you, you agree that those benefits and incentives are subject to you working with us on an exclusive basis – specifically you undertake that (a) you will not enter into any agreement with any third party service provider who provides a platform for mobile payment, customer loyalty, incentive-based marketing, deals or discounts and related services, without our approval, and (b) it shall not launch or promote a product or service that is deemed to be competing with us, without our approval.
5. Fraudulent or Illegal activities
You must use our services for lawful purposes only. By all means, if we suspect that you are involved in any fraudulent activities or any activity which we deem illegal or inappropriate, we reserve the right to terminate this agreement. By signing this agreement you warrant that the bank details nominated above belong to an account associated with the business, and that you will abide by all applicable anti-money laundering and counter-terrorism regulations. It is your own responsibility to ensure proper steps are taken to eliminate risks of illegal activities.
6. Anti-spam law
7. Limitation of liabilities
Memberbuy services are provided to you strictly on an “as is” and “as available” basis. You acknowledge that (a) your use of our services is at your own risk, (b) prior to accepting this agreement you have been given a reasonable opportunity to examine and satisfy yourself regarding our relevant services which are the subject of this agreement; and (c) at no time prior to accepting this agreement have you relied on our skill or judgment and that it would be unreasonable for you to do so. You should also recognise that our relevant services may be subject to technical malfunction or errors from time to time and you will not hold us responsible for any loss or damage (whether direct or consequential) you may suffer as a result. To the extent permitted by law, all other terms, conditions and warranties expressed or implied other than those stated in this agreement are expressly excluded.
8. Australian consumer law
Notwithstanding anything in this agreement, you must comply with all applicable laws including the Australian Consumer Law and must ensure that you or your staff are not engaged in any misleading or deceptive conduct when dealing with customers. If a customer notices us of any misleading or deceptive conduct by you or your staff or you disallow customers to use our service whilst your listing is active on our platform and without informing us or seeking approval from us, we may redirect the complaint to the relevant government consumer protection agencies for further investigation. If a customer makes a claim against us in relation to the goods or services you provided to the customer, you are solely responsible and liable for those claims and you agree to compensate and reimburse us accordingly. For more information, please visit https://consumerlaw.gov.au.
9. Termination of agreement, and our rights thereafter
If you are in breach of this agreement, we may (a) restrict your access to our services (b) withhold all or part of the payments due to you as a security, (c) suspend any further payments to you until the breach is remedied, and (d) if the breach cannot be remedied, at our discretion, terminate this agreement entirely.
At the time of termination, if we have paid your supplier for goods and services already supplied to you, then you acknowledge that we have a lien over any goods or services for which we have paid. All credit that is outstanding (i.e. unredeemed vouchers which we may have purchased from you) become due and payable to us immediately in cash.
You further agree to indemnify and compensate us for the loss, damages, costs or expenses including but not limited to (a) compensation to dissatisfied customers, (b) wages and commission paid to our sales and support staff for listing your business on our platform, (c) marketing expenses incurred by us specific to your business which we may suffer and incur as a result of your breach, (d) any un-used products that had been purchased by our customers but not yet redeemed. We reserve the right to set off the payments due to you against such loss.
10. Store closure and assignment of rights
In the event of a venue closure, the liability for the benefits and incentives owed/unredeemed will be transferred to remaining venues of the relevant groups that are operating, whether under the same trading name or otherwise, or other venues owned in whole or part by the directors of the merchant.
If your business is sold, the obligations and interests of the parties under this agreement shall ensure to our benefit, and our representatives, successors and assigns, and be binding upon you, your representatives, successors and assigns.
You acknowledge that the terms of our services specified in the Merchant Registration Form and the content of this agreement in general are sensitive and confidential and must not be disclosed to anyone without our written permission, except if the disclosure is required by law.
12. Verbal instructions binding
You agree that a verbal instruction, agreement or confirmation by any one or more of you pursuant to this agreement is binding on you. This includes any instruction, agreement or confirmation by any one or more of you (including any director of you) over the telephone. You consent to us recording any such conversation (including over the telephone) and using that recording as proof of your verbal instruction, agreement or confirmation.
Any failure or delay by us in exercising our rights under this agreement does not operate as a waiver and the single or partial exercise of any right by us does not prevent any further exercise by us of that right or any other right.
14. Voucher Packages
You may use the Memberbuy platform to sell your store voucher (Shop Voucher) in bulk on the Memberbuy app with a reasonably enticing and agreed bonus voucher. When you first sign up to the Memberbuy platform, you are required to set the tiers prices of relevant voucher package as specified in the Merchant Registration Form if you agreed to use Shop Voucher function. Any discount, bonus or other forms of incentives offered by you to encourage the sale of your voucher package are borne by you. You may change the prices and also the structure of the voucher packages but not until at least 20 days have elapsed since the last price change, unless we make an exception.
You are also required to pre-setup a Shop Reward Percentage in the Merchant Registration Form. The percentage you have setup is then use for our MemberPay reward for Memberbuy App users.
The money received from the sale of the voucher package shall be transferred to you pro-rata in conjunction with the voucher package amount being redeemed and according to the payout terms specified.