Merchant Terms and Conditions

1. Introduction

1.1 These Terms and Conditions are in effect at all times while you are using the Shouted Website. By using the Shouted Website, you agree to these Terms and Conditions. Please read them carefully.

1.1.1 We will also refer to these terms and conditions as this ‘Agreement.’

1.2 Shouted reserves the right to change these Terms and Conditions at any time.

2. Definitions

2.1. Shouted means Shouted Pty Ltd (ACN 153 988 580).
2.2. 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’).
2.3. Drink Deal Purchaser means the Customer who has provided consideration to Shouted to purchase a Drink Deal.
2.4. Website means the Shouted website and its administrator and payment portals, and the Shouted application on mobile devices.
2.5. 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.
2.6. 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.
2.7. Person means a natural or legal person (such as a body corporate).
2.8. 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’).
2.9. 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.
2.10. Active Deal means a Drink Deal that has been approved for purchase by both Shouted and the Merchant.
2.11. Active Date means the date from which a Drink Deal becomes an Active Deal.
2.12. Pending Deal means a Drink Deal that has not been approved by Shouted or the Merchant.
2.13. Approved Deal means a Drink Deal that has been accepted by Shouted and the Merchant for publication by Shouted.
2.14. Rejected Deal means a Drink Deal that has been rejected by Shouted and/or the Merchant for publication by Shouted.
2.15. Live Deal means a Drink Deal that is available for purchase by a Customer.
2.16. Purchase Start Date means the date from which an Active Deal can be purchased.
2.17. Purchase End Date means the date that from which a Drink Deal can no longer be purchased.
2.18. Redemption Start Date means the date from which an Active Deal can be redeemed.
2.19. Redemption End Date means the date from which a Drink Deal can no longer be redeemed at a Merchant.
2.20. Deal Limit (where specified) means the maximum number of a particular Drink Deal available for purchase.
2.21. 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.
2.22. Expired Deal means a Drink Deal that can no longer be Redeemed.
2.23. Confirmation of a Drink Deal means the electronic notification sent by Shouted to the Merchant to conditionally and mutually approve a particular Drink Deal. These conditions will include the Service Fee for the Merchant to review.
2.24. Service Fee means the fee charged by Shouted to the Merchant for use of the Shouted Website and will be a percentage of the sales generated by Shouted for the Merchant.
2.25. Deal Live Date means the calendar date range within which a Drink Deal can be purchased by a Customer.
2.26. Redemption Period means the calendar date range within which a Drink Deal can be Redeemed by a Customer.
2.27. Deal Limit means the maximum number of Drink Deals that can be sold of an Active Deal.
2.28. 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.
2.29. 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.

3. Drink Deal Program

3.1. Drink Deal Information:

3.1.1. Shouted shall promote the Drink Deal per Section 3.2. The Merchant is the seller of the goods and services described in Drink Deal. The Drink Deal itself will be sent to the Customer electronically. The Customer will then redeem the Drink Deal from the Merchant.
3.1.2. The Merchant makes the Merchant Offering available pursuant to the purchase of a Drink Deal.
3.1.3. The Merchant’s obligations are pursuant to these Terms and Conditions (and any Drink Deal Terms and Conditions).
3.1.4. Shouted may offer a Merchant's Drink Deal up to the maximum quantity listed (if any) in a variety of formats: through its feature deal-of-the-day, through its various side deals, through its marketplace, or through its affiliate network. All of these formats may be offered to part or all of Shouted’s Customers, or the communities associated with Shouted’s affiliates.
3.1.5. Each Drink Deal will be subject to no restrictions other than as provided herein and in any Drink Deal Terms and Conditions. Each Drink Deal will expire on the Drink Deal Expiration Date as set out on the Confirmation. However, after the Drink Deal Expiration Date, the Merchant shall, for the amount of time required by applicable law:

(a) continue to allow unredeemed Drink Deals to be redeemed for the product or service specified on the Drink Deal;
(b) allow the Drink Deal to be redeemed to purchase goods or services from the Merchant for up to the amount the purchaser paid for the Drink Deal. The Merchant is aware and acknowledges that the law may require the Merchant to redeem Drink Deals beyond their stated expiration dates, and the Merchant agrees to do so (to the extent applicable law requires).

3.1.6. Upon receipt of Confirmation of a Drink Deal, and of the Service Fee nominated by Shouted the Merchant has two (2) business days to accept or reject the Drink Deal. If the Merchant does not contact Shouted they are taken to have accepted the Drink Deal after the two (2) business days have elapsed.
3.1.7. Partial redemptions: If a Customer redeems a Drink Deal for less than its face value, the Merchant will be responsible for issuing a credit or cash equal to the difference between the face value and the amount redeemed if required by law.
3.1.8. The Merchant agrees that in providing the goods/services that are the subject of the Drink Deal, it will not impose any extra or additional fees or charges that contradict the terms set forth on the face of the Drink Deal.
3.1.9. The Merchant will comply with the Drink Deal Terms and Conditions, as they are described on the Website.

3.2. Drink Deal Sale

3.2.1. The Merchant authorizes Shouted to offer, sell and distribute Drink Deals, in accordance with this Agreement and subject to the Drink Deal Terms and Conditions. The Merchant acknowledges that Shouted may terminate the publication or promotion of a Drink Deal at any time. Shouted reserves the right to increase or decrease the Deal Limit at its sole discretion.

3.3. Drink Deal Publication and Delivery

3.3.1. Drink Deals shall be published on the Website in accordance with Section 2.2. Shouted will offer the Drink Deals for sale on dates at its discretion.
3.3.2. If there is a Deal Limit applied to a Drink Deal, Shouted will use reasonable efforts to cease publishing the Drink Deal once it has received offers to buy that number of Drink Deals equal to the Deal Limit.
3.3.3. Each Drink Deal shall be available for purchase on the Purchase Start Date. A Merchant must nominate the number of days (up to a maximum of 180 days) from the date of purchase of a Drink Deal that the Drink Deal is available for redemption from the Merchant, in accordance with the terms of the Drink Deal, the Merchant Terms and Conditions and the Customer Terms and Conditions.
3.3.4. At the time the deal is purchased Shouted will electronically deliver the purchased Drink Deal to the Customer.
3.3.5. Once a Drink Deal is delivered to the Customer, the Merchant shall be solely responsible for all customer service in connection with the Drink Deal and for supplying all goods and services specified in the Drink Deal.
3.3.6. Drink Deal Terms and Conditions cannot be altered or amended by a Merchant once a Drink Deal becomes an Active Deal.
3.3.7. Active Drink Deals cannot be cancelled by a Merchant.
3.3.8. Shouted reserves the right to extend the expiry date of a Drink Deal (or part thereof) for a maximum of four (4) weeks.
3.3.9. Shouted reserves the right to take over/take ownership of an expired Drink Deal (or part thereof) from a Customer and distribute (or re-distribute) it to another Person.
3.3.10. At all times, Shouted reserves the right, but shall not be obligated, to reject, revise, or discontinue publishing any Drink Deal and to require the Merchant to edit or modify the same for any reason, including, without limitation, to conform the Drink Deal to Shouted specifications or applicable local, state, territory or federal law, statute, rule, regulation, or order (‘Laws’).

3.4. Payment

3.4.1. Shouted shall pay the Merchant in accordance with this Section.
3.4.2. Shouted will pay a Merchant fifty per cent (50%) of the total of the monies paid to Shouted by Customers who have purchased Drink Deals which can be redeemed at a Merchant, less:

(a) the bank service fee of 3.5% of the total;
(b) the Service Fee charged by Shouted; and
(c) commissions or marketing fees owed to Shouted by the Merchant (if any).
This is the ‘Deal Purchase Payment.’

3.4.3. Shouted will pay the Merchant the amount described in 3.4.2 every 28 days or sooner from the date a Customer purchased the Drink Deal.
3.4.4. The Service Fee charged by Shouted is a percentage of the total monies paid to Shouted by Customers who have purchased Drink Deals which can be redeemed at that Merchant.

(a) The Service Fee is subject to change.
(b) The Service Fee will be nominated by Shouted and notice will be given to the Merchant upon Confirmation of a Drink Deal becoming an Approved Deal.

(i) This confirmation will be sent electronically to the Merchant.

3.4.5. The Service Fee is twenty per cent (20%) unless and until Shouted varies the Service Fee.
3.4.6. To vary a Service Fee Shouted must inform the Merchant of the variation and nominate a different amount in writing. This will ordinarily occur via electronic communication.
3.4.7. The combined total of the Service Fee and the bank service fee is the Total Service Fee.

(a) The Total Service Fee will be displayed on the confirmation email sent to the Merchant upon the creation of the Drink Deal, and will be displayed as a percentage.

3.4.8. The balance of the total monies paid to Shouted by Customers who have purchased Drink Deals which can be redeemed at a Merchant will be forwarded to the Merchant within twenty-eight (28) calendar days of the redemption of each particular Drink Deal. This is the Deal Redemption Payment.
3.4.9. Any monies held by Shouted for a Drink Deal that is not redeemed by a Customer are retained by Shouted.
3.4.10. The Merchant authorises Shouted to generate an invoice on the Merchants behalf for monies owed by Shouted to the Merchant.

3.5. Monies Held by a Merchant Prior to the Redemption of Drink Deal

3.5.1. The Merchant acknowledges that by virtue of this Agreement they may receive funds via Shouted from its Customers that the Merchant will be holding onto until such time as the goods and/or services are delivered to the Customer.
3.5.1. The Merchant shall ensure that at all times these funds remain available to be returned to Shouted and/or its Customer if the Merchant is either unable or unwilling to perform its obligations under this Agreement.
3.5.1. Shouted shall have uncontested title and ownership on all amounts that have been paid by Shouted to the Merchant until such time as the Merchant fulfils its obligations in this Agreement and delivers all of its Merchant Offerings to Customers. Furthermore, the Merchant acknowledges that in the event of a bankruptcy proceedings, insolvency proceedings or other liquidation, any funds which are being held by the Merchant for goods or services not delivered shall be immediately returned to Shouted, and no third party shall have any right or claim to these funds which are being held by the Merchant but which solely belong to Shouted and its Customers. Should the amount of the funds referred to in clause 3.5.1 and 3.5.2 exceed $5,000 in the aggregate, or should Shouted feel it responsible to do so, Shouted reserves the right to review the Merchant's credit history prior to advancing funds.

3.6. Commission for sharing a deal to a Crowd

3.6.1. A Merchant may elect to offer Shouted or any Customer a commission to share a Drink Deal to a Venue Crowd or Personal Crowd (a ‘Commission’).
3.6.2. If a Merchant elects to offer a Commission, the Commission will be charged to that Merchant for each Drink Deal sold as a result of that Drink Deal being shared by Shouted or a Customer (as the case may be) to; a Venue Crowd or Personal Crowd that is not that Merchant’s Venue Crowd, a social media platform, or external website.
3.6.3. Commission will be deducted from the Deal Purchase Payment
3.6.4. Shouted receives fifty per cent (50%) of the monies from any Commission where that Commission is offered by a Merchant to a Customer.
3.6.5. Shouted reserves the right to revoke and/or retain Commission payments if a Customer has breached these Terms and Conditions or the Customer Terms and Conditions or the Drink Deal Terms and Conditions.
3.6.6. To avoid doubt, Shouted reserves the right to revoke and/or retain Commission payments in the event a Customer engages in unlawful, threatening, abusive, harassing, defamatory, deceptive, fraudulent, invasive of another's privacy, sexually explicit, pornographic conduct on the Shouted Website.
3.6.7. Commission will be paid within twenty eight (28) days.
3.6.8. Commission may not be paid to the Customer until the total Commission owing to that Customer exceeds ten dollars ($10.00).
3.6.9. Despite section 3.6.8 Shouted may choose to pay Commission at any time and in any amount.

3.7. Customers may be eligible to receive Commissions for Drink Deals sold as a result of a Drink Deal having been shared to their Personal Crowd, social networking platform, or external website, and a Customer purchases that shared Drink Deal as a result of clicking on that shared Drink Deal.
3.8. For a Customer to be eligible for a Commission payment with respect to a shared Drink Deal, any Customer must purchase the shared Drink Deal after clicking on the shared Drink Deal link.

3.8.1. Commission will be paid only once for each different Customer who clicks through and purchases that shared Drink Deal.

3.9. License

3.9.1. The Merchant grants to Shouted a non-exclusive worldwide licence and right to use, reproduce, display, distribute and transmit the Merchant's name, logo and any trademarks (‘the Merchant Marks’) and any photographs, graphics, artwork, text and other content provided or specified by the Merchant (‘Content’) in connection with the marketing, promotion, sale or distribution of Drink Deals, in any and all media or formats in which such Drink Deals are marketed, promoted, transmitted, sold, or distributed, including but not limited to, on the Shouted Website.

4. Term and Termination

4.1. The Merchant Terms and Conditions shall continue in effect for the longer of one (1) year following the date it comes into force (the ‘Effective Date’) or the last date when a Customer of Shouted redeems a Drink Deal offered by the Merchant through Shouted.
4.2. Shouted may terminate the Merchant Terms and Conditions at any time for any reason by giving the Merchant written notice of such termination.
4.3. The expiration of the Term shall not in any way affect the Customer’s usage of the Drink Deal, or the Merchant's obligation for redemption of the Drink Deal.
4.4. Upon execution of the Merchant Terms and Conditions, the Merchant agrees that the Merchant will not promote an online offer with respect to the products or services described in these Merchant Terms and Conditions of similar or greater value for a period up to 90 days from the Effective Date, plus a minimum of 90 days following the Merchant's date of publication on the Shouted Website.
4.5. Sections 5, 6, 7, 8 and any claims for payments due to Shouted, including but not limited to Sections 2.6 hereunder shall survive any expiration or termination of these Merchant Terms and Conditions.

5. The Merchant Representations and Warranties, and Indemnification

5.1. Warranty

5.1.1. The Merchant represents and warrants throughout the period that these Merchant Terms and Conditions are in force that:

(a) the Merchant has the right, power and authority to enter into these Merchant Terms and Conditions;
(b) the Merchant is registered for GST collection purposes in all states in which the Merchant's goods and services will be provided pursuant to the terms and presentation of the Drink Deal;
(c) the Drink Deal, upon being approved by Shouted shall be available immediately for redemption by the Customer or at another time as specified in the Drink Deal’s Terms and Conditions;
(d) the Drink Deal Terms and Conditions, including any discounts or goods and services offered thereunder, comply with all, and do not and will not violate any Laws, including but not limited to, any Laws governing Drink Deals, gift cards, coupons, and/or gift certificates;
(e) the Drink Deals and any advertising or promotion of the Merchant's products and services relating thereto will not constitute defamatory, false, misleading, deceptive or unfair advertising or disparagement under any applicable Laws; and
(f) the trademarks or other intellectual property do not and will not violate any copyright, trademark, or other intellectual property right or right of privacy or publicity of any third party or any Laws.

5.2. Indemnification

5.2.1. The Merchant agrees to defend, indemnify and hold Shouted, its affiliated and related entities, and any of their officers, directors, agents and employees, harmless from and against any claims, lawsuits, investigations, penalties, damages, losses or expenses (including but not limited to legal fees and costs) arising out of or relating to any of the following:

(a) any breach or alleged breach by the Merchant of these Merchant Terms and Conditions or the representations and warranties stated in Section 5.1;
(b) any claim for GST obligations (‘Taxes’) arising from the sale and subsequent redemption of a Drink Deal;
(c) any claim by any local, state or federal governmental entity for unredeemed Drink Deals or unredeemed cash values of Drink Deals or any other amounts under any applicable abandoned or unclaimed property or escheat law, including but not limited to any claims for penalties and interest (‘Abandoned Property Claims’); or
(d) any claim arising out of or relating to the products and services provided by the Merchant, including but not limited to, any claims for false advertising, product defects, personal injury, death, or property damages. Without limiting the foregoing, the Merchant shall pay any monies owed to any party, as well as all legal fees, related to any action against, or determinations against, Shouted related to any action to pursue Shouted for Taxes or Abandoned Property Claims.

6. Compliance with Gift Card, Gift Certificate and Abandoned Property Laws

6.1. The Merchant further agrees to comply with the Drink Deal Terms and Conditions as set forth on the Website, and to ensure that the Drink Deals comply with any and all Laws that govern gift cards, coupons, and/or gift certificates, including but not limited to, the Corporations Act 2001 (Cth) as well as any other Laws.

7. Confidentiality and Intellectual Property Rights

7.1. Confidentiality

7.1.1. The terms of these Merchant Terms and Conditions are confidential, and the Merchant agrees to not disclose the terms described herein to any party (other than its employees, parent companies, and shareholders on a need-to-know basis only after each has taken the necessary precautions of the kind generally taken with confidential information to preserve the confidentiality of the information made available to such Persons).
7.1.2. The terms contained herein are confidential between Shouted and the Merchant and not known to the general public outside of these Merchant Terms and Conditions, thus any breach of this confidentiality provision by the Merchant shall be considered a fundamental breach, and will result in irreparable and continuing damage to Shouted and in the event of such breach, Shouted will be entitled to injunctive relief and/or a decree for specific performance, and such other and further relief as may be proper (including monetary damages if appropriate).

7.2. Intellectual Property

7.2.1. The Merchant agrees and acknowledges that Shouted owns all right, title, and interest in the Shouted Website, Shouted trademarks and any other intellectual property, and any software, technology or tools used by Shouted to promote, market, sell, generate, or distribute Drink Deals (collectively the ‘Shouted IP’).
7.2.2. The Merchant shall not rent, lease, sub-licence, distribute, transfer, copy, reproduce, download, display, modify or timeshare the Shouted IP or any portion thereof, or use such Shouted IP as a component of or a base for products or services prepared for commercial sale, sub-licence, lease, access or distribution.
7.2.3. The Merchant shall not prepare any derivative work based on the Shouted IP. The Merchant shall not translate, reverse engineer, decompile or disassemble the Shouted IP.

8. Limitation of Liability

8.1. Except for indemnification obligations hereunder, in no event shall either party to these Merchant Terms and Conditions be liable or obligated to the other party or any third party in any manner for any special, incidental, exemplary, consequential, punitive, or indirect damages of any kind regardless of the form of action, whether in contract, tort, negligence, strict product liability, or otherwise, even if informed of the possibility of any such damages in advance, Shouted's sole and complete liability to the Merchant for any claims arising out of relating to these Merchant Terms and Conditions or any errors, omissions or misplacements of the Drink Deals shall be limited to the amount of opportunity fees paid hereunder.
8.2. This limitation of liability shall apply to the maximum extent permitted by applicable law and notwithstanding the failure of any limited remedy.
8.3. Any claim by a Merchant arising out of or relating to any error or omission in a Drink Deal must be made within one (1) month of first publication of the Drink Deal. Otherwise, the claim shall be deemed waived by the Merchant.

9. Refunds

9.1. The Merchant agrees that refunds for Customers will be dealt with in the following manner:

9.1.1. Where a Customer requests a refund in relation to a Drink Deal through the Website, Shouted will notify the Merchant.
9.1.2. Upon receipt of a notification in relation to a refund request from a Customer from Shouted, the Merchant has 3 calendar days to mark the issue as either ‘refund not approved’ or ‘refund approved’ on the Website.
9.1.3. If no reply is received from the Merchant within 3 days, Shouted has the right to offer the Customer a refund on the Merchant’s behalf and:

(a) deduct the funds from any monies owing to the Merchant; or
(b) if no monies are owing to the Merchant, to invoice the Merchant for the refund; or
(c) to pay for the refund without seeking any monies back from the Merchant.

9.1.4. To avoid doubt, if the Merchant elects not to approve a refund Shouted still has the right to approve a refund anyway in accordance with these Merchant Terms and Conditions.

10. Venue Crowds

10.1. A Merchant is responsible to moderate, regulate and administrate a Venue Crowd it creates.

10.1.1. Shouted reserves the right to disable, delete, rename, edit or change a Venue Crowd at any time.
10.1.2. Venue Crowd names or descriptions that are in breach of a trademark/other intellectual property laws can be changed by Shouted without notifying the Merchant.
10.1.3. All Merchants and Customers must exhibit appropriate conduct on the Shouted Website at all times and in all engagements. Unlawful, threatening, abusive, harassing, defamatory, deceptive, fraudulent, invasive of another's privacy, sexually explicit, pornographic or otherwise breaches these Merchant Terms and Conditions or the Customer Terms of Sale, or any Drink Deal Terms and Conditions.
10.1.4. Shouted reserves the right to ban, suspend or remove a Merchant or Customer at any time from a Venue Crowd. Shouted may also take legal action against any Person for any loss or damaged to Shouted.
10.1.5. Shouted, in relation to a Venue Crowd, reserves the right to:

(a) remove Customers;
(b) remove or add Merchants;
(c) add, edit or remove content at any time without notice.

10.2. Venue Crowds and marketing:

10.2.1. A Venue Crowd can only be used to market the Merchant that created the Venue Crowd. No other marketing or advertising content may be posted on/to a Venue Crowd without written permission from the Merchant and/or Shouted.
10.2.2. Any content, marketing or promotional material deemed inappropriate by Shouted may be removed at any time without notice from the Website. The Customer or Merchant responsible for posting this content may be suspended or banned from using the Shouted Website.
10.2.3. Any fraudulent, misleading, deceptive or false claims, within a Venue Crowd may result in legal action taken against the offending Customer or Merchant.

11. Other

11.1. Unless otherwise stated within these Merchant Terms and Conditions, notices to be given to either party shall be in writing and shall be delivered by electronic mail (other than a notice to Shouted for the purpose of any originating process) or by pre-paid post. Any notice Shouted sends to a Merchant will be to the address supplied to Shouted when that Merchant registered for a Shouted account on the Website. Any notice to Shouted may be sent to the registered office address of 18 Union Street, Adelaide, South Australia, 5000.
11.2. The parties are independent contractors. Nothing in this Agreement shall be construed to create a joint venture, partnership, franchise, or an agency relationship between the parties. Neither party has the authority, without the other party’s prior written approval, to bind or commit the other party in any way.
11.3. These Merchant Terms and Conditions constitute the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. This Agreement may be amended or modified only by mutual agreement of authorised representatives of the Parties in writing, unless otherwise stated in this Agreement.
11.4. The Merchant may not assign or transfer its rights or obligations under these Merchant Terms and Conditions , whether by operation of law or otherwise, without Shouted’s prior written consent.
11.5. Except as expressly set out in these Merchant Terms and Conditions, neither party makes any representations or warranties, express or implied, including without limitation any implied warranty of the merchantability, fitness for a particular purpose or non-infringement. Shouted does not warrant or guarantee that the services offered on or through the Website shall be uninterrupted or error-free, that the Drink Deals will be error-free or that any errors, omissions or misplacements in the Drink Deal will be corrected, or that Drink Deals will result in any revenue or profit for the Merchant.
11.6. These Merchant Terms and Conditions shall be governed by the laws of the State of South Australia, without giving effect to any principles that may provide for the application of the laws of another jurisdiction.