• 1. General Information and Definitions
• 1. The parties to this contract: these Terms of Sale ("Terms of Sale") are an agreement between you, the customer (referred to herein as "you" or "your") and Shouted Pty Ltd (ACN 153 988 580) (referred to herein as "Shouted", "we", "us" or "our").
• 1.1. These Terms of Sale apply to every Drink Deal you purchase from Shouted Pty Ltd (ACN 153 988 580).
• 1.2. A copy of these Terms of Sale: we keep a copy of the contract between us (these Terms of Sale) – and we advise you to print out these Terms of Sale as a record.
• 1.3. These Terms of Sale apply: By placing an order with Shouted you agree to be bound by these Terms of Sale
• 2. Website means the Shouted website and its administrator and payment portals, and the Shouted application on mobile devices. When you interact with the Shouted website in any way, such as creating an account or contacting customer service, you agree to Shouted’s Terms of Use and Privacy Statement. These are contracts between Shouted and you.
• 3. Your Offer means your click of the “Purchase” button during checkout. This is an offer to buy the Drink Deal sold by Shouted. By clicking “Purchase”, you explicitly acknowledge that, if your order is accepted by us, it places you under an obligation to pay for the Drink Deal. Please note that we reserve the right to reject your offer and not enter into a contract with you, in particular, in case of limited availability of the Drink Deal.
• 4. Drink Deal means an instrument, in either physical or electronic form, which entitles the holder of such Drink Deal (the ‘Drink Deal Holder’) to receive the Merchant Offering from the Merchant during the period of time stated on the Drink Deal (the ‘Redemption Period’).
• 5. Merchant Offering means the goods and/or services to be supplied and/or provided by the Merchant to the Drink Deal Holder, as specified on Shouted’s Website and on the Drink Deal.
• 6. Merchant means the person (or their representative, agent or nominee) that sells, supplies and/or provides the Merchant Offering. Shouted does not sell, supply and/or provide the Merchant Offering, it only sells and supplies the Drink Deal.
• 7. Customer means a customer of the Shouted Website or other Shouted services, who uses that Website or service for the purpose of obtaining a Drink Deal and redeeming it at a Merchant for the Merchant Offering. A Merchant may also be a Customer.
• 8. Active Deal means a Drink Deal that has been approved for purchase by both Shouted and the Merchant.
• 9. Active Date means the date from which a Drink Deal becomes an Active Deal.
• 10. Live Deal means a Drink Deal that is available for purchase by a Customer.
• 11. Purchase Start Date means the date from which an Active Deal can be purchased.
• 12. Purchase End Date means the date from which a Drink Deal can no longer be purchased.
• 13. Redemption Start Date means the date from which an Active Deal can be redeemed
• 14. Redemption End Date means the date from which a Drink Deal can no longer be redeemed at a Merchant.
• 15. Redemption Period means the calendar date range within which a Drink Deal can be Redeemed by a Customer.
• 16. Deal Limit means the maximum number of a Drink Deals that can be sold of an Active Deal.
• 17. Redeem means to present a Drink Deal to a Merchant and have it used in exchange for the Merchant Offering. A Drink Deal can only be Redeemed once or if specified, it can be Redeemed a number of times, the maximum of which being the total of individual drinks as described in the Drink Deal at the time of purchase.
• 18. Expired Deal means a Drink Deal that can no longer be Redeemed.
• 19. Venue Crowd means a group of Customers who have elected to receive notifications from a Merchant and/or Shouted on behalf of the Merchant. The Merchant is responsible for the management and moderation of the Venue Crowd and must do so with compliance to all relevant State and Federal Laws and in accordance with these Merchant Terms and Conditions.
• 20. Personal Crowd means a group of customers who have elected to receive notifications from the Customer who has created or has obtained ownership of the Personal Crowd and/or their representative and/or their nominee and/or Shouted. Those persons are responsible for the management and moderation of the Personal Crowd and must do so with compliance to all relevant State and Federal Laws and in accordance with the Customer Terms and Conditions.
• 21. Person means a natural or legal person (such as a body corporate).
• 22. Account means your Shouted Account.
• 23. For the purposes of this agreement, and unless otherwise stated, all monies referred to, including the Service Fee, are inclusive of Goods and Services Tax (‘GST’).
• 24. Shouted reserves the right to unilaterally amend these Terms of Sale at any time. All amendments to these Terms of Sale will be posted on-line. You will be bound only to the version of the Terms of Sale you agreed to at the time you purchase a Drink Deal.
• 2. Purchase of a Drink Deal
• 2.1. Pricing and whom you pay:
• 2.1.1. Drink Deals are sold by Shouted. Shouted will take and process your payment for your order. All prices on the Website for Drink Deals are inclusive of legally applicable taxes. Prices are set out to you prior to your purchase and at order confirmation. Our prices may change at any time, but changes will not affect your order, other than in circumstances described in Clauses 2.4 and 2.5 below.
• 2.2. Placing your order:
• 2.2.1. After you place an order by clicking the “Purchase” button and agreeing to these Terms of Sale, you will receive an email confirming receipt of your order and the details of your order.
• 2.2.2. By clicking on the "Purchase" button you submit Your Offer to Shouted to buy the Drink Deal. However, the purchase of the Drink Deal is not complete until you receive an email from Shouted confirming acceptance of Your Offer and the Drink Deal is added to your account. Shouted expressly reserves the right to reject Your Offer.
• 2.2.3. In addition, even if Shouted has accepted Your Offer, it can cancel the contract at any time if it reasonably suspects that you have committed or that you may be committing any fraud against Shouted, an affiliated third party of Shouted or a Merchant.
• 2.3. Post-purchase errors and omissions: where we have made an error or omission and you have already purchased a Drink Deal:
• 2.3.1. If the actual price of a Drink Deal is less than the stated price at the time you purchased a Drink Deal, we will charge you the lower price;
• 2.3.2. If the price of a Drink Deal is higher than the stated price, we will contact you and allow you the option to pay the correct (higher) price or cancel your order and receive a full refund.
• 2.4. Errors and omissions: occasionally there may be an error or omission related to the pricing or description of the Drink Deals we sell. We will use reasonable endeavours to correct any errors or omissions as soon as practicable after being notified or learning of them. We reserve the right to change, modify, substitute, suspend, or remove without notice any information related to Drink Deals for sale (including the Drink Deals themselves).
• 2.5. You must be of the legal drinking age in the State or Territory in which the Merchant Offering will be redeemed to purchase a Drink Deal. Before you can make a purchase, you need to register and create a Shouted account.
• 2.6. A Merchant may have its own terms and conditions applicable to the sale, supply and/or provision of the Merchant Offering. It is your responsibility to ensure that you comply with all such relevant terms and conditions.
• 3. Redemption of a Drink Deal
• 3.1. Unless expressly stated otherwise:
• 3.1.1. a Drink Deal can only be redeemed once;
• 3.1.2. a Drink Deal can only be redeemed with a Merchant and not with Shouted; and
• 3.1.3. you must follow the redemption instructions associated with a Drink Deal and any Drink Deal Terms and Conditions when you redeem a Drink Deal with a Merchant.
• 3.2. All Drink Deals sold by Shouted can only be redeemed with the Merchant stated on the Drink Deal.
• 3.3. In order to redeem a Drink Deal you must present it to a Merchant within the Redemption Period. If you do not redeem the Drink Deal within the Redemption Period, the Drink Deal expires. It cannot be redeemed anymore.
• 3.4. Unless expressly stated otherwise, the Drink Deal does not entitle the Drink Deal Holder to receive the Merchant Offering at a specific time. You are strongly recommended to contact the Merchant at an early stage. Doing so will give you the best chance of securing your preferred time for the supply and/or provision of the Merchant Offering. Shouted cannot influence the supply and/or provision of the Merchant Offering.
• 3.5. If you do redeem the Drink Deal for goods and/or services other than the Merchant Offering, you will not be entitled to a credit, cash refund or new Drink Deal for the difference between the value of the Merchant Offering and the recommended retail price (RRP) of the goods and/or services supplied and/or provided by the Merchant to you.
• 3.6. On behalf of the Merchant, Shouted may collect service fees or other costs associated with the purchase and/or redemption of a Drink Deal. All such fees or costs (if any) will be communicated to you before you purchase the Drink Deal.
• 3.7. In the event that a Merchant cannot supply and/or provide the Merchant Offering as described for unforeseen reasons, Shouted will notify you as soon as possible. Shouted or the Merchant will offer you a new Drink Deal with comparable benefits (if available) or Shouted will offer you the repayment of the purchase price of the Drink Deal or issue you a Shouted credit to your account.
• 4. Use of a Drink Deal
• 4.1. Any purchase of a Drink Deal is for your non-commercial, personal use only (although you may give (i.e., Shout) the Drink Deal (in part or in whole, provided that the part is no less than one drink) to another Person for their non-commercial, personal use).
• 4.1.1. The commercial trade of a Drink Deal is prohibited.
• 4.1.2. The reproduction of a Drink Deal is prohibited.
• 4.2. Your Drink Deal is solely your responsibility. Neither Shouted nor a Merchant are responsible for lost or stolen Drink Deals or for retrieving Drink Deal reference numbers or Drink Deal security/identification codes or your Shouted account details on the Website.
• 4.3. You promise not to provide false data including false names, addresses and/or contact or payment details; or engage in any unlawful activity in connection with the purchase or use of a Drink Deal (or part thereof), the Website, or allow anyone else to do so.
• 4.4. Any attempt to redeem a Drink Deal contrary to these Terms of Sale may render a Drink Deal void at Shouted’s discretion or at the discretion of a Merchant.
• 4.5. You must have a working smartphone (or similar other mobile device) with internet access, to present the Drink Deal to the Merchant at the time of redemption in order to claim the Merchant Offering.
• 5. Cancellation (and exceptions), Refunds and Problems
• 5.1. We may cancel:
• 5.2. Your cancellation rights:
• 5.3. If Shouted agrees to cancel and/or refund your purchase of a Drink Deal in accordance with this Section 5, Shouted will refund your payment made to Shouted in relation to that Drink Deal within 30 calendar days from the day on which Shouted informed you of the decision to accept your refund or cancellation request.
• 5.4. If you attempt to redeem your Drink Deal, but the Merchant has not properly provided you with the Merchant Offering, or if you have a complaint regarding the provision of the Merchant Offering, you must take action against the Merchant directly. This is because the Merchant, and not Shouted, is responsible for the supply and/or provision of the Merchant Offering. Shouted only sells and supplies the Drink Deal.
• 5.4.1. If you and the Merchant cannot agree on how to resolve the complaint, Shouted may, upon your request, try to help resolve the issue between you and the Merchant. Email any such request to ask@shouted.io. In your email, please include:
• (a) your deal ID;
• (a) an overview of your complaint or issue;
• (a) your desired outcome;
• (a) the Merchants written response to your complaint.
• 5.5. All refunds will be refunded to you via your original method of payment. If your original method of payment has been cancelled, expired or has otherwise changed, you must inform the customer support team immediately in writing by emailing ask@shouted.io. If you fail to do this and you are refunded to your original method of payment, you may need to coordinate with your bank or your payment services provider to obtain your refund. Shouted may not provide more than one refund per deal.
• 5.6. You have 7 days from the date you receive the refund to reject it. If you do not reject the refund during these 7 days, the refund shall be deemed full and final settlement of any and all claims you may have against Shouted related to, arising out of, or connected to that Drink Deal.
• 6. Responsibility for the Merchant Offering
• 6.1. The Merchant, and not Shouted, is:
• 6.1.1. the seller, supplier and/or provider of the Merchant Offering;
• 6.1.2. the party who enters into a contract with you the Customer at the time that the Drink Deal is redeemed; and
• 6.1.3. solely responsible for providing the you the Customer with the Merchant Offering and for the Merchant Offering itself.
• 6.2. Nothing in this Agreement shall be construed to represent that there is a joint venture, partnership, franchise, or an agency relationship between the Shouted and the Merchant of any kind.
• 6.3. We aren’t the manufacturer: we are not the manufacturer of the Merchant Offering. While we work to ensure that the Drink Deals correctly describe the Merchant Offering, are of satisfactory quality and are fit for use, the Merchant Offering at the point of redemption may vary slightly from such product information on the website. We encourage you to read all information presented on labels, warnings and directions which accompany the Merchant Offering before use.
• 6.4. Accuracy of descriptions: we have taken reasonable steps to display as accurately as possible the colours and other detailing of the Merchant Offering. However, the actual colours and detailing you see on the website will depend on the equipment you use to view the Merchant Offering. We cannot guarantee that the display of any colour or other detailing on your television, mobile device, computer monitor or other device will exactly reflect the colour or detailing of the Merchant Offering upon redemption at a Merchant.
• 7. Responsibility for the Merchant Offering
• 7.1. Shouted’ Standards of Services and Liability
• 7.1.1. it will exercise reasonable care and skill in performing its obligations under these Terms of Sale;
• 7.1.2. the Drink Deals are of satisfactory quality and fit for their purpose;
• 7.1.3. it shall not contravene the requirements of fairness or professional diligence in what it does.
• 7.2. Shouted is always liable for: (a) death and personal injury caused by Shouted’ negligence/gross negligence; (b) fraud or fraudulent misrepresentation made by itself; or (c) any implied contractual terms that cannot be excluded or limited under applicable law. You are obliged to take adequate measures to avert and reduce damages.
• 7.3. Other than as set out in Clause 7.2 above, Shouted is not liable for any other losses or damages you may suffer, including any indirect or consequential losses.
• 7.4. Shouted does not promise the completeness, fitness for purpose or legality of the Merchant Offering. Shouted is not liable for the quality, safety, usability or any other aspect of the Merchant Offering.
• 7.5. Shouted is not liable for any breach of an obligation under these Terms of Sale where it is hindered or prevented from carrying out its obligations by any cause outside of its reasonable control.
• 7.6. Other than the liability arising under Clause 7.2, which is unlimited, Shouted’ total liability to you will in no circumstances exceed the amount of the purchase price of the Drink Deal.
• 7.7. In particular categories of loss that we are not responsible for include (but are not limited to): since we only sell Drink Deals for domestic and private use, we shall not be liable for:
• 7.7.1. loss of revenue;
• 7.7.2. loss of actual or anticipated profits;
• 7.7.3. loss of business; and
• 7.7.4. indirect or consequential loss (and for the avoidance of doubt, we understand the words “consequential loss” to mean “consequential losses whether those losses are foreseeable, known, foreseen or otherwise”).
• 7.8. In certain countries, applicable law does not allow some or all of the exclusions and/or limitations set out in this Section 7. If these laws apply to you, some or all of the above exclusions and/or limitations may not apply to you and you may have additional rights.
• 7.9. This Section 7 takes precedence over all other Sections and sets forth our entire Liability to the extent permitted by law.
• 7.10. “Liability” means liability in or for any cause of action whatsoever (including breach of contract, tort, misrepresentation, restitution or any other cause of action whatsoever) relating to or arising under or in connection with these Terms of Sale (including liability expressly provided for under these Terms of Sale or arising by reason of the invalidity or unenforceability of any term of these Terms of Sale).
• 8. Shouted’ Site
• 8.1. Shouted’ Site (the "Site") means the Internet website, mobile applications, electronic communications or services, or any location at which you can purchase a Drink Deal from Shouted. The Site on which Shouted markets the Drink Deals is owned by Shouted Pty Ltd. You can find more information about the terms of use of the Site, which are expressly incorporated into these Terms of Sale.
• 9. Miscellaneous
• 9.1. If you breach these Terms of Sale and Shouted takes no action against you this does not mean that Shouted has waived its rights and remedies with regard to your breach. Shouted may still take action or exercise its rights and remedies for that action, or any other situation, where you breach your obligations under these Terms of Sale. No delay by us in taking action in the event of your breach shall in any way release, discharge or otherwise affect your liability under these Terms of Sale.
• 9.2. Unless otherwise stated within these Terms of Sale, notices to be given to either party shall be in writing and shall be delivered by electronic mail (other than if you are sending a notice to Shouted for the purpose of legal process) or by pre-paid post. Any notice Shouted sends to you will be to the address you supplied to Shouted when you registered for your Shouted account. You can send any notice to Shouted at the registered office address as set out in Clause 1.2.
• 9.3. Assignment: you may not assign or delegate or otherwise transfer all or any of your rights or obligations under these Terms of Sale without our prior written approval. We will not refuse this approval without good reason. We shall have the right to assign or otherwise delegate all or any of our rights or obligations under these Terms of Sale to any person.
• 9.4. No partnership/agency: nothing in these Terms of Sale shall be construed to create a joint venture, partnership or agency relationship between you and us and neither party shall have the right or authority to incur any liability, debt or cost, or enter into any contracts or other arrangements in the name of or on behalf of the other.
• 9.5. Events beyond our reasonable control: we shall not be liable for any breach of our obligations under this Agreement where we are hindered or prevented from carrying out our obligations by any cause outside our reasonable control Where there has been an event outside our reasonable control which has affected our ability to perform our obligations under these Terms of Sale, our obligations will be extended for the duration of the event and we will notify you of this as soon as reasonably possible.
• 9.6. Our reliance: we intend to rely upon only the written terms set out in these Terms of Sale in respect of the Sale of Drink Deals, and the terms of the Drink Deal itself, and not any representations made elsewhere.
• 9.7. If any provision of these Terms of Sale should be held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of these Terms of Sale are not affected. Where capable, the validity and enforceability of the remaining provisions of these Terms of Sale shall not be affected. Such invalid or unenforceable provision shall be replaced by a valid and enforceable provision which most closely achieves the economic effect contemplated by the invalid or unenforceable provision.
• 9.8. No Third party rights: all provisions of these Terms of Sale apply equally to and are for the benefit of Shouted, its subsidiaries, any holding companies of Shouted, its (or their) affiliates and its (or their) third party content providers and licensors and each shall have the right to assert and enforce such provisions directly or on its own behalf (save that these Terms of Sale may be varied or rescinded without the consent of those parties). Subject to the previous sentence, no term of these Terms of Sale is otherwise enforceable by any person who is not a party to it.
• 9.9. Survival: in any event, the provisions of Clauses 1, 2, 6, 8, 9, and 10 of these Terms of Sale, together with those provisions that either are expressed to survive its expiry or termination or from their nature or context it is contemplated that they are to survive such termination, shall survive termination of the Agreement.
• 9.10. Governing law and dispute resolution: we will do our best to resolve any disputes about these Terms of Sale. If you wish to bring a legal claim against us, these Terms of Sale (and all non-contractual relationships between you and us) shall be governed by and construed in accordance with South Australian law and both parties hereby submit to the jurisdiction of the competent courts of South Australia. Exclusive venue for any dispute shall be the courts of South Australia.
• 10. Updates
• 10.1. These Terms of Sale were last updated on 20 December 2017.