Customer/User Terms and Conditions for iSponsor USA, Inc.
Customer Terms and Conditions for iSponsor USA, Inc.
(Effective from 9 August 2022) IT IS AGREED:
APPLICATION OF CUSTOMERS T&CS
- These Terms and Conditions (T&Cs or this ‘Agreement’)) govern the agreement between ‘us’ and ‘you’ (each as defined in section 2) as the customer (‘Customer’). These T&Cs do not apply to our agreement with Sponsors or Organizations, rather those agreements are governed by separate sets of terms and conditions.
- DEFINITIONS, ETC. Unless the context otherwise requires, the following definitions apply in these T&Cs and any other document forming part of this Agreement:
Account means your account created through our App and/or Website with us and, where the context permits, includes any third party account that we accept is an ‘Account’ for the purposes of this Agreement.
Agreement is defined in section 1.
App means a software application made available by us from time to time for use on an electronic device (such as a mobile phone, tablet or website application) which allows you to have access to information with respect to Sponsors and pursuant to which you can designate which Organizations you would like to nominate to receive Contributions, amongst other things.
Business Day means a day which is not a Sunday, Saturday, public holiday or bank holiday in Dover, Delaware, United States or in the relevant city where our principal place of business of our Related Entity is if you signed up in a country in which we have a Related Entity.
Contribution means, with respect to an Eligible Purchase, the sum that is payable to the Nominated Organization in accordance with this Agreement and the Organization Agreement, which is generally equal to the Contribution % multiplied by the Price.
Contribution % means, with respect to the Eligible Purchase, the percentage determined in accordance with the relevant Sponsor Agreement, which (when applied to the Price) will calculate the Contribution to be made with respect to the Eligible Purchase.
Electronic Direct Marketing (EDM) means electronic direct marketing initiatives (which may be commercial or non-commercial) that we undertake from time to time, which may include email, in-App or other electronic send-outs or notifications (including push notifications) to you, other users of our App and persons on our mailing/marketing lists.
Eligible Payment Method or Eligible Payment Card means any Visa, MasterCard or American Express credit or debit card in your individual name and which is eligible to become a Linked Card as determined by us and our Service Providers from time to time, which is specified by you in the App at as your ‘Linked Card’ at the time of making the Eligible Purchase.
Eligible Purchase means the relevant personal purchase of goods, services or other products by you that satisfies all of the following at the time of the purchase:
- you have a current Account with us and this Agreement has not been terminated;
- the purchase was from a Sponsor and we have a Sponsor Agreement in place that covers the purchase, and the purchase meets the requirements of any offer from the Sponsor;
- if the Sponsor is an Exclusive Sponsor, your Nominated Organization is one of the Organizations also nominated by that Exclusive Sponsor to receive contributions;
- you made payment for the purchase via an Eligible Payment Method specified in your Account at the time of the purchase.
Exclusive Sponsor means a Sponsor that has designated itself to be an ‘Exclusive Sponsor’ (and is treated as such) in accordance with the Sponsor Agreement at the time of the Eligible Purchase, which refers to a Sponsor who can chose to limit the Organizations that may receive contributions from purchases of the Sponsor’s goods, services and other products, which may be displayed under the ‘Your Exclusive Sponsors’ section in the App.
GST includes any sales tax, goods and services tax, value added tax or similar tax, wherever imposed and includes any related interest, penalties, fines or other charges.
Intellectual Property Rights means all present and future intellectual property rights of any nature, anywhere in the world, including:
- any patents, designs, trade marks (whether registered or common law trade marks), copyright or trade secrets; and
- any invention, discovery, trade secret, secret process, know how, computer software or confidential, scientific, technical or product information,
and any right to use (or otherwise exploit), or to grant the use of, or to be the registered owner or user of, any of them.
Intermediary means any other business (such as a marketing or referral business) that acts an intermediary between us and the relevant Sponsor and who may enter into agreements with us from time to time on behalf of the Sponsor or with respect to purchases from a Sponsor.
Linked Card means an Eligible Payment Card that meets the requirements of this Agreement and that you nominated pursuant to this Agreement for use in connection with participation with purchases from Organizations.
Nominated Organization means the relevant Organization you nominate to receive contributions via the App (or by another means permitted by us in writing) that is current at the time of making an Eligible Purchase (if any).
Organization means an Organization (which may be a club, charity, charitable trust, not-for-profit or any other Organization or person) who we have an agreement with (or that we otherwise make contributions to from time to time) with respect to purchases of goods, services or other products with Sponsors by customers who have our App.
Organization Agreement means our agreement(s) with the relevant Nominated Organization.
Our Policies means our standard practices that apply to the use of the App and our services, as amended from time to time.
Payment Card Network means a network participating in our App for the purposes or processing payments, which may include Visa, MasterCard and American Express or any other applicable credit card company of whom iSponsor utilizes services.
Price means the total amount paid or payable by you to a Sponsor with respect to an Eligible Purchase (inclusive of any GST the Sponsor may charge, unless we determine otherwise).
Promotion means a short-term offer, promotion or advertisement made by us to you (whether via the App or otherwise) with respect to a Sponsor or Organization that have agreed to advertise in accordance with these T&Cs. Related Entity means an entity under common ownership with or otherwise operating in furtherance of the business of iSponsor in countries other than the United States, or as may be nominated from time to time by iSponsor (each a Related Entity).
Service Provider means a person retained by us to act on our behalf to provide, or to assist us in providing, the App and our services, including each Payment Card Network, Fidel Limited (Fidel) and the Rakuten Card Linked Offer Network.
Sponsor means the relevant person who has an agreement with us (including via an Intermediary) to provide Marketing Services for their benefit and pursuant to which they (or an Intermediary on their behalf) have agreed to make contributions to us for payment to Organizations.
Sponsor Agreement means our agreement(s) with the relevant Sponsor (or Intermediary) who paid us the monies with respect to the Contribution.
Sponsor Fees means the fees we receive from the Sponsor (or an Intermediary) for the Marketing Services we provide to the Sponsor in accordance with the Sponsor Agreement.
we, us and our means iSponsor USA, Inc. or its Related Entity.Website means https://isponsor.co or such other website hosted by us for the purposes of these T&Cs.
United States means the United States of America, and its external territories (where relevant).
you and your means you, the person who has created an Account with us (whether via the App or otherwise) (including the person whose details are specified as the holder of the Account in the App). If there is more than one such person, it means each of them separately and every two or more of them jointly.2. Documents comprising this Agreement
3. When you are bound by this Agreement
Your access and use of the App constitutes your agreement to be bound by these T&Cs and the Agreement, which establishes a contract between you and us. If you do not agree to these T&Cs, you must not access or use the App or any of our other services. Your continued use of the App and/or Website after notice of changes to our T&C or other legal terms governing the relationship between us and you shall be deemed acceptance of such additional terms. Notwithstanding clause 2.4, we are not bound to perform any obligations imposed on us between your initial viewing of the App or Website until we have accepted permitting you to create an Account or otherwise confirm in writing that we are bound by this Agreement..
4. Onboarding & Term
This Agreement will continue until it is terminated in accordance with these T&Cs.
4.2 Conditions Precedent and Onboarding Process
(a) We are not required to grant you access to the App or our services or pay any contributions with respect to your purchases with a Sponsor unless you have satisfied the following conditions (Conditions Precedent):
(i) you have provided us with your contact details (including your name, email address, location and any other information the App indicates are mandatory information) and any other information stated in the App;
(ii) you have completed the Account creation process via the App, including you receiving a confirmation email that your Account has been created and you entering any verification or other codes sent to your email in the App to activate your Account;
(iii) you have provided details of your Eligible Payment Method in the manner provided for in the App and such details have been accepted;
(iv) if required by the App, you have specified the Organizations that you would like to receive contributions with respect of your purchases with Sponsors; and (v) if requested, you have provided us with any other information or documentation that we require in connection with your use of the App or your dealings with us.
(b) We may choose to notify you of whether you have satisfied the Conditions Precedent or not, but any failure for us to notify you that you have satisfied the Conditions Precedent should not be taken as an admission that you have satisfied the Conditions Precedent.
(c) If you have not satisfied the Conditions Precedent, then we may immediately terminate this Agreement by notice in writing or by terminating your access to the App.
5. HOW OUR BUSINESS WORKS
5.1 Which Organization will receive a Contribution
(a) The way our business and the App works is that you, as the user of the App and the one making the purchase from a participating Sponsor, have the power to determine which Organization receives the contribution with respect to your purchase from a Sponsor. You do this by specifying your Nominated Organization via the App (or in another manner acceptable to us), which at the date of these T&Cs is referred to as your ‘default’ Organization. You may update your Nominated Organization from time to time via the App.
(b) Generally, the Contribution will be paid to your Nominated Organization that you have selected at the time you make the Eligible Purchase, as that is when our systems match your payment details with the payment to the Sponsor and when our system checks the App to see who your Nominated Organization is.
(c) However, if you have recently changed your Nominated Organizations and there are delays in the processing of the payment or a failure in our systems, then there could be circumstances where the Contribution is credited to the Organization you nominated shortly prior to or after the time of the Eligible Purchase. While we endeavor to ensure this does not occur, you acknowledge that these errors may occur from time to time and that we are not liable to you with respect to any claims for such errors.
(d) If, at the time of an Eligible Purchase, you have not specified the Organization that is to receive your contributions or you have nominated us to determine which Organization is to receive contributions, then:
(i) we will determine, in our discretion and from time to time, which Organization receives the Contribution with respect to your Eligible Purchase; and
(ii) the Organization that we determine under paragraph (i) above will be considered the ‘Nominated Organization’ with respect to that Eligible Purchase and we will pay the Contribution to such Organization in accordance with our agreement with them.
(e) Notwithstanding the foregoing, if the participating Sponsor is an Exclusive Sponsor, that Exclusive Sponsor shall decide in its sole discretion who the Nominated Organization is for any given transaction with such Exclusive Sponsor. If you make a purchase with an Exclusive Sponsor and your Nominated Organization is not one of the Organizations that the Exclusive Sponsor has also nominated to receive contributions, then your purchase will not be an Eligible Purchase.
(f) While we have endeavoured to design the App such that the App will only display non-Exclusive Sponsors and Exclusive Sponsors whose chosen Organizations include your Nominated Organization (so that you know when a purchase will be an Eligible Purchase and contribution will be paid to your Nominated Organization), there may be circumstances where Exclusive Sponsors are displayed in the App and your Nominated Organization is not one of the Organizations they have selected to receive contributions (including where you have recently changed your Nominated Organization and the App has not updated to reflect that change or due to failures in our systems or recent changes to Exclusive Sponsor’s Nominated Organization(s)). To the extent the law permits, you release us, any Service Provider (including Fidel) and any Payment Card Network, from any liability for allowing Sponsors to be displayed in the App where your purchase with them does not lead to a contribution being paid to your Nominated Organization.
5.2 How the amount of the Contribution is calculated
(a) The amount of any Contribution that we may make with respect to your Eligible Purchase will be calculated in accordance with the Sponsor Agreement, which will generally be determined by multiplying the Contribution % by the Price. We will reasonably determine the precise amount of the Contribution (including by reference to what aspects of the Price include GST). For example, generally for an Eligible Purchase where the Price is $100 (including GST) and the Sponsor’s Contribution % is 6% at the time of purchase, then the Contribution will be $6.00 (plus any applicable GST). Sponsors may change their Contribution % from time to time by delivering a notice requesting such change to us.
(b) The Contribution % will generally be the % displayed in the App with respect to the relevant Sponsor (which at the date of these T&Cs is generally the ‘Sponsorship %’ displayed in the App or any replacement term used in the App). However, for the avoidance of doubt, the Contribution % does not include any discount %, rather, a ‘discount %’ relates to any discounts the Sponsor may choose to provide you for purchasing the Sponsor’s products if your purchase with them is an Eligible Purchase). We endeavour to ensure that the relevant percentage specified in the App equals the Contribution % that we are legally entitled to charge the Sponsor under the Sponsor Agreement. However, if our Sponsor Agreement provides for a different Contribution % to that displayed in the App, the Contribution % provided for in the Sponsor Agreement will determine the amount of any Contribution to be paid based on the Price.
5.3 When Contributions are paid
(a) We only pay a Contribution to the Nominated Organization if we receive payment from the Sponsor of the corresponding amount plus the other fees we charge to the relevant Sponsor. That is, we do not guarantee that the Contribution will be paid to the Nominated Organization if we are not paid by the Sponsor.
(b) We will pay the Contribution to the Nominated Organization in accordance with our agreement with the relevant Nominated Organization, which generally provide for payment to be made within 15 days of the end of the month in which we receive the corresponding payment from the Sponsor.
5.4 Purchases from Sponsors
(a) As we are merely a technology service provider, you acknowledge that the Sponsor is solely responsible for all transactions with you, including with respect to the quality and Price of any products you have purchased, processing such transactions, and managing any disputes with you (including with respect to any refunds).
(b) We are not in any way liable for any claims made by you in connection with any Eligible Purchase (or any other purchase of products from a Sponsor) or any failure on the Sponsor’s part to adhere to any agreement with you or any applicable laws (such as consumer guarantees).
(c) A purchase made by you will not be considered an ‘Eligible Purchase’ if it is not a retail purchase, and any cash withdrawal, cash advance, card check transaction, instant loan or similar transaction will not be considered an ‘Eligible Purchase’.
(d) You agree not to raise any claims against us, any Service Provider nor any Payment Card Network, nor seek to make us, any Service Provider or any Payment Card Network liable in connection with any dispute that you have with a Sponsor with respect to any purchase you have made with them.
5.5 Payment methods
(a) At the time these T&Cs were adopted, our systems may only be able to match purchases you have made with Sponsors by reference to any Visa, American Express, Mastercard, or other applicable credit card transaction details you have expressly notified us of via the relevant part of the App for that purpose (which is referred to as the ‘Eligible Payment Method’ in these T&Cs and, at the date these T&Cs were adopted, is under the ‘Linked Cards’ part of the App).
(b) If you make a purchase with a Sponsor via a means other than the Eligible Payment Method, then no contributions will be made with respect to your purchase with the Sponsor.
(c) Please note that we do not process payments with respect to Eligible Purchases (or any other purchase you make with a Sponsor); rather, any payments for the goods, services or other products of a Sponsor will be processed by (or on behalf of) the Sponsor. Despite the Sponsor facilitating payment with respect to any purchases you make with them, we require details of your Eligible Payment Methods so that we can (1) match your purchases with the Sponsor to determine whether an Eligible Purchase has occurred; (2)to link any Eligible Purchase you have made to your Nominated Organization to facilitate the payment of a Contribution to such Nominated Organization with respect to your Eligible Purchase.
(d) We will keep the details of your Eligible Payment Methods confidential and will only disclose them to the extent required to give effect to this Agreement, to our Service Providers, our Organization Agreements, Sponsor Agreements or as otherwise required by law. You may delete details of your Eligible Payment Methods via the App, but such deletion should not be taken as an agreement on our part to permanently erase such Eligible Payment Methods (unless you specifically request this in writing and we confirm same), as we may require details of your Eligible Payment Methods to verify Eligible Purchases you have made in the past or assist in resolving any dispute with you, Sponsors or Organizations. However, if you want to opt out of transaction monitoring on your cards, then please notify us in writing and we will do so where required by law or any schemes relating to transaction monitoring by which we are bound.
(e) We currently use Fidel,the Rakuten Card Linked Offer Network (RCLON) and the Payment Card Networks (including Visa, Mastercard, and American Express) to monitor card transactions for your participation in our program and App. Your agreement to the various iSponsor Terms & Conditions (T&Cs) authorises Fidel RCLON, and/or the Payment Card Network to monitor the transactions made with your registered Linked Card at participating merchants and Sponsors to confirm Eligible Purchases. The data collected from Fidel includes your registered card identifier, merchant/Sponsor’s location, transaction date/time and amount. iSponsor is free to replace Fidel and/or RCLON with any other similar Service Provider at its sole discretion.
(f) By registering a payment card in connection with transaction monitoring (including by specifying a Linked Card via the App), you authorise us to share your payment card information with Payment Card Networks (including Visa, Mastercard and American Express) so they know you have enrolled. You authorise the Payment Card Networks to monitor transactions on your Linked Card(s) to identify Eligible Purchases in order to determine whether you have qualified for or earned an offer on your Linked Card, and for Payment Card Networks to share such transaction details with us and participating merchants/Sponsors to ascertain whether an Eligible Purchase has been made and to enable your Linked Card offer(s) and provide offers that may be of interest to you. You may opt-out of transaction monitoring on the Linked Card(s) you have registered by navigating to your settings menu in the App to remove your Linked Card(s).
(g) We may, in our sole discretion, remove any Linked Card or refuse any request of a Linked Card, if you attempt to link a card that is not an Eligible Payment Method, including but not limited to prepaid cards of any kind whether or not they are processed via Visa, Mastercard. American Express, or other applicable credit card processor.
(h) We are not under any obligation to determine the eligibility of any card prior to you making a link request pursuant to this Agreement or via the App, and we and the Service Providers shall have the right to remove any such card from eligibility at any time and for any reason permitted by law. Not all Visa, MasterCard, and American Express cards are eligible for registration as a Linked Card (including PIN-based purchases on debit cards – debit transactions should be put through as a credit and/or authorized). Visa, MasterCard, and American Express corporate cards, Visa, MasterCard, and American Express Purchasing cards, non-reloadable prepaid cards, government-administered prepaid cards (including EBT cards), healthcare (including Health Savings Account (HSA) or Flexible Spending Account (FSA) or insurance prepaid cards, Visa Buxx, and Visa-MasterCard-, and American Express- branded cards whose transactions are not processed through the Visa U.S.A. payment system, MasterCard payment system, and/or American Express payment system are not Eligible Payment Methods.
(i) Not all transactions with your registered Visa, MasterCard and American Express card are tracked by Visa, MasterCard and/or American Express. You acknowledge that Visa, MasterCard, and American Express may be unable to monitor every transaction made with your enrolled Visa, MasterCard, or American Express card, including: PIN-based purchases, purchases you initiate through identification technology that substitutes for a PIN, payments made through other payment methods (such as a digital wallet or a third party payment app, where you may choose your Visa, MasterCard, or American Express card as a funding source but you do not present your card directly to the merchant), payments of existing balances, balance transfers, or transactions that are not processed or submitted through the Visa U.S.A., MasterCard, and American Express payment systems, and that these transactions are not eligible. As such, those purchases may not be Eligible Purchases and you acknowledge and release iSponsor from any liability with regard to such transactions
(j) Please be aware that your payment card may only be enrolled in one program operated by many service providers. If you have already enrolled a payment card with a separate program operated by another entity as a service provider, you may be unable to register that card or transactions in relationship to that card may be deemed not to be Eligible Purchases.
As part of our operations, we may provide you with reports or notifications from time to time (whether via the App, by email or otherwise) advising you of matters such as the details of your Eligible Purchases and the Contributions that have been made with respect to your Eligible Purchases, the Sponsors who funded those Contributions and other matters. In this regard:
(a) despite any indications in such reports or notifications, each Contribution will be paid to the Nominated Organization in accordance with the Organization Agreement with them (so payment may not have been made at the time you receive the report or notification); and
(b) if you have any queries or concerns with any reports or notifications sent to you by us, please contact us via our Website.
5.7 The Leaderboard on the App
(a) By signing up to the App, you agree to be featured on the ‘Leaderboard’ which will be used to keep track of and display a ranking of the users of the App and the contributions made with respect to their purchases with our Sponsors. The Leaderboard rankings may be based on each Organization or otherwise.
(b) The Leaderboard will display maters such as your display name (which may vary from your legal name), the Contributions made to Organizations with respect to your Eligible Purchases and other matters determined in our discretion.
(c) You expressly consent for your name, profile picture, details of Contributions (including the amount of Contribution for each Organization and the total Contributions made on your behalf for all Organizations) to appear on the App and on the Website for marketing purposes, including by displaying such matters on the ‘Leaderboard’ on the App and our Website.
(d) For the avoidance of doubt, the Leaderboard will not display which Sponsor you made Eligible Purchases from, instead the Leaderboard will only specify the amount of the Contributions made to each Organization on your behalf or an anonymised transaction value).
(a) By creating an Account, you agree that we (or our affiliates) may send you EDMs as part of the normal business operation of your use of the App.
(b) You agree that neither us nor our affiliates are required to include an unsubscribe message/option in such EDMs within the App. EDMs transmitted by email or text may include an unsubscribe message/option as required by the US CAN-SPAM act or similar legislation. You also agree that you cannot opt-out from receiving EMDs via the App (although you can opt-out of our email messages) nor can you opt-out of messages or notifications regarding transactions relating to Eligible Purchases or Contributions. These communications are important for your experience. If we allow you to opt-out of any EMDs or other notification, you acknowledge that opting out of may impact your use of the App.
(a) Where we display Promotions to you, the Sponsor or Organization to whom the Promotion relates is solely responsible for the fulfilment and the defining of any Promotions offered to you. We are not liable for any offers or other matters relating to a Promotion.
(b) You acknowledge and agree that at the time these T&Cs are adopted, the App has limited functionality and therefore any Promotions displayed in the App that relate to in-store or other discounts may not function as displayed or intended., the Sponsor must and is solely responsible for the fulfillment and defining of the Promotions made to you.
(c) Where unclear, you must seek the Sponsor’s written confirmation that it will honour any discounts displayed in the App prior to making any purchase with them, as we do not guarantee that any discounts will be honoured by the Sponsor.
(d) We may remove Promotions from the App or our other marketing channels once the agreed period for any Promotions expires or if we receive complaints from Customers or others with respect to the Promotions.
(e) We may create promotional codes that may be redeemed for features or benefits related to the App and/or a Sponsor or Organization’s products, subject to any additional terms that are established on a per promotional code basis (Promo Codes). You agree that Promo Codes:
(i) must be used in good faith for the intended audience and purpose, and in a lawful manner;
(ii) are not valid for cash, may expire prior to your use and may be disabled by us at any time for any reason without liability;
(iii) may not be duplicated, sold or transferred in any manner, or made available to the general public;
(iv) are only valid for redemption with the relevant Organization or Sponsor to which they relate and are always subject to any additional conditions imposed by the relevant Organization or Sponsor to which they relate; and
(v) may only be used pursuant to the specific terms that we or the relevant Sponsor or Organization establish for such Promo Code, which may be altered by us from time to time, subject to applicable law.
(f) We reserve the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event that we reasonably determine or believe that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or these T&Cs.
5.10 Reviews or Feedback and Your Content
We may permit you from time to time to make available to us through the App content or information with respect to a Sponsor or Organization. which may include feedback, reviews or other material (Your Content). By providing us with Your Content (including by submitting Your Content via the App), you:
(a) must ensure that Your Content is true, accurate and not misleading (including by way of omission) and is not otherwise defamatory, libellous, unlawful, obscene or otherwise in breach of Our Policies, as determined in our absolute discretion;
(b) grant us an irrevocable, perpetual, royalty-free, transferrable license to use, copy, modify, create derivative works of, distribute, publish, display or otherwise exploit in any manner Your Content in all formats and channels we see fit, without reference or notice to you;
(c) represent and warrant that you are the sole and exclusive owner of (or otherwise have all rights, licenses and agreements required to grant us the license to use) Your Content as contemplated by these T&Cs;
(d) represent and warrant that the provision of Your Content and any use of Your Content by us does not infringe any third party’s Intellectual Property Rights, any obligations with respect to privacy or any other laws; and
(e) acknowledge that we may remove Your Content from the App at any time and for any reason, but that we are not obliged to review or otherwise consider Your Content.
6. ACKNOWLEDGEMENTS AND OTHER OBLIGATIONS
6.1 Your Account
You acknowledge and agree at all times that:
(a) in order to use the App or receive most of our services, you must register for and maintain an active personal user Account;
(b) you must be a natural person who is at least 18 years of age to create an Account or to use the App and you may only possess one Account (unless we agree otherwise in writing);
(d) you must keep your information relating to your Account (including any Eligible Payment Methods) accurate, complete and up-to-date and any failure of you to do so may result in, among things, your purchases with a Sponsor not being Eligible Purchases and us not making contributions to your Nominated Organization; and
(e) you are responsible for all activity that occurs under your Account and you agree to maintain the security and secrecy of your Account username and password at all times.
6.2 General acknowledgements
You acknowledge and agree at all times that:
(a) the App and any of our other products or services are provided ‘as is’ and ‘as available’ and we provide no assurances or warranties that your access to the App will be uninterrupted or error free; we make no representations or warranties with respect to the services we provide or our App or Website, including but not limited to, implied warranties of merchantability and fitness for a particular purpose;
(b) the App (or any other material made available to you by us) may be made available or accessed in connection with third-party services and content (including advertising or in cases where you create an Account via these third parties, such as Google or Facebook) that we do not control, different terms or policies may apply to your use of such third party services and content and we do not endorse (nor are we liable for) any such third party services or content;
(c) further terms or conditions may apply to certain features of the App or any of our other services or products (or any part of them), such as policies for a particular Promotion, requirements for selecting the Organizations that you may want contributions to be made to and limits on Eligible Purchases, and such further terms and conditions are in addition to (and form part of) these T&Cs for the relevant purpose and will prevail over any inconsistent provisions in these T&Cs unless specified otherwise;
(d) we provide marketing and other services to Sponsors and Organizations, Sponsors may pay fees to us (in addition to an amount representing any Contribution that may be made) and those fees are generally determined as a percentage of the Price (as well as other fees being payable for additional services we offer Sponsors);
(e) some Sponsors may operate under a franchise model, whereby individual franchisees may be Sponsors whereas other franchisees in the network may not be Sponsors, so you must ensure that the relevant business that you are purchasing products from is a Sponsor for the purposes of these T&Cs prior to making any purchase that you consider is an Eligible Purchase and we shall not be held liable for any confusion or transactions related to issues with nonapplicability to particular franchisee;
(f) we may have agreements with intermediaries and intermediaries may receive fees or commissions from Sponsors;
(g) if a Sponsor is an Exclusive Sponsor, the Nominated Organization will only receive a Contribution where the Exclusive Sponsor has nominated it as one of the Organizations that it will make contributions to and where you have also nominated an Organization as a Nominated Organization at the time payment for the Eligible Purchase is processed by our systems, Services Providers and Payment Networks; and
(h) you must act in good faith with respect to the use of the App and your dealings with us and you will cooperate with us (including providing all information and documents we reasonably require) to verify you are doing so, and to confirm your identity and details of any Eligible Purchase or Contribution;
(i) we may restrict your access to the App or any of our other services or products (or any part of them) immediately and without notice, including but not limited to where we suspect that you have breached or are likely to breach these T&Cs,Our Policies, or any applicable law or regulation; where we need to do so in order to prevent harm that may arise from such access; or where it is necessary to do so in order for us to comply with any Sponsor Agreement, Organization Agreement or applicable law or regulation;
(j) you must ensure that all information you have provided to us (including via the App or otherwise) is complete, accurate, up to date and not misleading (including by way of omission) and promptly notify us if any such information is inaccurate, incomplete, out of date or misleading (and acknowledge and agree we may rely on you in this regard);
(k) if we restrict your access to the App or any of our other services or products (or any part of them), then we may treat purchases you make during any period of such restriction as not being considered Eligible Purchases for the purposes of this agreement;
(l) we are not a charity or not-for-profit, rather we are business that provides Marketing Services to Sponsors and facilitate contributions to Organizations with respect to certain purchases made with those Sponsors by those who use our App;
(m) despite anything in the App to the contrary (including allowing you select your Organizations or displaying Sponsors), we are not fundraising or seeking monies for any particular charitable cause or community purpose (however described);
(n) functions and other matters relating to the App may change from time to time in our absolute discretion, and it is your responsibility to ensure that you update any information contained in the App (including your Eligible Payment Methods and chosen Organizations) in response to such changes;
(o) if you dispute a purchase with a Sponsor (including where you charge-back a payment made on a credit card) or otherwise take any action to return, revoke or reverse such purchase, then we may not pay the contribution with respect to your purchase to your Nominated Organization (as the Sponsor may not pay us the monies with respect to the contribution);
(p) you will comply with Our Policies in effect from time to time and this Agreement, and we may update Our Policies by displaying the changes on our website, by notice to you, or via the App;
(q) we do not hold any monies received from Sponsors on trust, rather the relationship between us, the Sponsors, the Organizations and you is purely that of independent contractors and debtor/creditor;
(r) you are responsible for obtaining access to the App and all networking and hardware matters relating to such access, that you may be liable for fees or charges from your service provider if you access the App from a wireless or network device and that we do not guarantee that the App will be accessible on all hardware; and
(s) you may be liable for fees and charges with respect to your chosen Eligible Payment Method (including interest or transaction fees to your Payment Card Network as well as yearly or fixed fees) and we have no liability with respect to such matters, and you are not entitled to make any claim against us in connection with the above matters, to the extent the law allows.
You represent and warrant to us, throughout the term of this Agreement (including during any onboarding or Account creation process), that:
(a) you have full power and authority to enter into this Agreement and perform all your obligations under it;
(b) all information provided to us in connection with this Agreement and your onboarding is true, correct, up-to-date and not misleading (including by way of omission);
(c) you are not relying on us making a Contribution to your Nominated Organization when making the decision to make an Eligible Purchase; and
(d) you are duly authorized to provide us with the details of any Eligible Payment Methods you have included in the App, each of the Eligible Payment Methods are held by you personally (and are not of another person) and the Eligible Payment Methods are current and valid.
6.4 Intellectual Property Rights
You acknowledge and agree at all times that:
(a) any use of the App by you or persons on your behalf must be strictly for non-commercial use, unless we have agreed otherwise in a separate written agreement;
(b) the App, all our services and content remain owned by us (or our licensors) and you obtain no rights in the App or any other services or content of us, any Sponsor or any Organization, rather by complying with these T&Cs and in accordance with these T&Cs you receive a limited, non-exclusive, non-sublicensable, non-transferrable and revocable license to access and use the App on your personal device solely for the purposes contemplated by these T&Cs (and any other rights are expressly reserved by us);
(c) you may not use any Intellectual Property Rights displayed in the App (including any Sponsor’s trade mark) nor may you remove any notices relating to Intellectual Property Rights displayed in the App;
(d) you must not seek to reproduce, reverse engineer, decompile, modify, prepare derivate works based upon, distribute, license, sell, transfer, publicly display or perform or otherwise broadcast any part of the App or any of our other products or services (including any materials displayed therein); in the event you do, you agree that any resultant intellectual property related thereto belongs to us; and
(e) you must not cause or launch any programs or scripts for the purposes of scraping, indexing, surveying, data mining or any similar matters with respect to the App or any of our services, nor may you attempt to gain unauthorized access to or impair any aspect of the App or its related systems or networks.
6.5 Allocation of risk; Limitation of Liability; Release.
(a) You acknowledge and agree to disclaim any and all express or implied warranties or guarantees you may have or may allege to have with regard to all goods and services of iSponsor, to the extent permitted by law. Where such warranties and/or guarantees apply to our products and services and liability for breach of any such guarantee can be limited, our liability (if any) arising from any breach of those guarantees is limited (1) with respect to the supply of goods, to the replacement or repair of the goods or the costs of resupply or replacement of the goods; and (2) with respect to services, to the supply of services again or cost of re-supplying the services again. You acknowledge that your acceptance of the disclaimers, waivers and restrictions in this clause 6.5 are a material inducement for us to enter into this Agreement, and that, absent your agreement to this clause 6.5, we would not enter into this Agreement with you.
(b) To the extent the law permits, you indemnify, hold harmless and defend (at our option) us, our Service Providers, the Payment Card Networks and their respective officers, employees, contractors and agents from and against any and all claims, liabilities, losses, costs, charges or expenses (including costs and legal fees on an indemnity or other basis) or other damages (including but not limited to any special, indirect, consequential or punitive damages, lost profits, lost revenues or other incidental damages even if we have been notified of the possibility of same) (‘Losses’) that may be incurred or otherwise arise in connection with any dispute that arises with iSponsor, a Sponsor regarding a purchase you have made with them, your breach of this Agreement (including any warranties or your obligation to comply with any third party terms), or your breach of any applicable laws or your negligence. Your liability under this indemnity will be reduced proportionately to the extent that our negligence caused or contributed to the relevant claim, liability, loss, cost, charge or expense.
(c) You acknowledge and agree that, to the fullest extent permitted under applicable law, in no event shall iSponsor and/or its affiliates, licensors and suppliers (including Payment Card Networks and payment processors) be liable to you personally for any Losses arising out of this Agreement or your use, inability to use, or the results of use of the App, Website, or any product or service of iSponsor applicable hereunder. iSponsor expressly disclaims all warranties, express, implied, statutory or otherwise, including without limitation, warranties of merchantability, fitness for any particular purpose, and non-infringement. iSponsor and its affiliates, licensors and suppliers (including Payment Card Networks and payment processors) do not warrant the data, content, analytics, features or information provided through the iSponsor App or Website or anywhere else, including without limitation transaction data or Customer submissions or other data provided by Customers, Sponsors, Organizations or other users, to be uninterrupted, accurate, useful, or free of errors, viruses, or other harmful components.
(d) You further understand and agree that we are not responsible or liable for your illegal, unauthorized, or improper use of information transmitted, monitored, stored or received using the App or our Website.
(e) In no event will iSponsor and/or its affiliates’, contractors’, employees’, agents’, or third party partners’ or suppliers’ (including Payment Card Networks’ and payment processors’) total liability to you for all damages, losses, and causes of action arising out of or relating to these terms or your use of any iSponsor service (whether in contract, tort including negligence, warranty, or otherwise) exceed the Contributions that have been paid or have accrued pursuant to this Agreement in the prior twelve (12) month period as a result of Eligible Transactions.
7.1 Method for termination
(a) Either party may terminate this Agreement:
(i) for any reason by providing the other party with 30 days’ written notice;
(ii) if the other party is in breach of this Agreement and such breach is incapable of remedy or is not remedied within 14 days of receipt of written notice requiring the breach to be remedied.
(b) If you are in breach of this Agreement, we may restrict or suspend your access to the App and our systems.
(c) For the avoidance of doubt, deletion of the App or your Account does not amount to termination of this Agreement or refusal to abide by any modification to terms or provisions herein.
7.2 Consequences of termination
(a) The termination of this Agreement does not prejudice any of your obligations or our rights that expressly or impliedly survive termination of this Agreement (including our rights with respect to Intellectual Property Rights) or any liability arising with respect to any past breach.
(b) If this Agreement is terminated, then your right to access the App immediately creases and we will continue to pay any Contributions with respect to your Eligible Purchases made prior to the termination of this Agreement in accordance with this Agreement, the Sponsor Agreement and the Organization Agreement.
8. GENERAL PROVISIONS
8.1 Disputes and Complaints
If a dispute arises between the parties, the parties will endeavour to resolve the dispute in good faith. To notify us of a dispute, you must send us a complaint through to the “Contact Us” tab on the Website or through the Help Centre in the App (if the functionality of the App allows you to do so).
Any notice, demand, termination procedure or other communication relating to this Agreement may be either sent by email or post, or be personally served or left at the relevant party’s address for service, which, in our case, is the address specified in these T&Cs and in your case, is the address provided to us when created your Account or sign-up questionnaire via the App or Website. We may provide notices via those methods or via the App or any portal on our Website. Any reference in this Agreement to you providing ‘notice’ means a written notice.
(a) Your personal and confidential information will not be disclosed except to the extent the disclosure:
(i) is required by law, court order or rules of a stock exchange;
(ii) is made to your legal or professional advisers who are bound by obligations of confidence (with such party’s consent in writing); or
(iii) is consented to us in writing by you.
(b) For the avoidance of doubt, nothing in this clause restricts us from marketing you or your Nominated Organization in the App or in connection with our marketing services provided to Sponsors, nor does it prevent us from publicising any affiliation with you (if we choose to do so).
(c) In the event of a legal dispute, any proceedings, including documents and briefs submitted by either party, correspondence from a mediator, and correspondence, order and awards issued by an arbitrator, will remain strictly confidential and shall not be disclosed to any third party without the express written consent from us .
8.4 Force Majeure
If the performance of this Agreement (except for any obligation to pay) are prevented, restricted, interfered with or materially prejudiced by reason of circumstances beyond the reasonable control of the party obliged to perform it (including any Act of God, act of any governmental or competent authority, a pandemic or government response to a pandemic, the imposition of any new taxes, excise fees, tariffs or other mandatory charges or an increase in same, default of any kind under any contract to which we are a party), the party so affected (upon giving prompt notice to the other parties) shall be excused from performance to the extent of the prevention, restriction or interference, but the party so affected shall use its best endeavours to avoid or remove the causes of non-performance and shall continue performance under this Agreement with the utmost despatch whenever such causes are removed or diminished. If such causes are not reasonably able to be overcome, then the parties will negotiate in good faith alternative arrangements for the performance of this Agreement or its termination.
8.5 Assignment of Agreement
(a) You may not assign any of your rights or obligations under this Agreement without our prior written consent.
(b) We may assign or otherwise deal with any of our rights or obligations under this Agreement without your consent, whether such assignment is to our Related Entities or any other third party.
8.6 Variation and Waivers
(a) Any variation of or to this Agreement will not have any effect unless such variation is reduced to writing and signed off by us. However, we may update these T&Cs by providing not less than 30 days’ notice in writing to you (including by sending you a notification via the App) and the updated T&Cs will be deemed to apply from the expiry of such notice period. If you do not agree to the updated T&Cs, you may terminate this Agreement during that 30 day period and the termination will take effect on and from the expiry of that 30 day period.
(b) Any consent or approval required from us in connection with this Agreement must be in writing in order to be valid.
(c) Any failure by us to exercise any or all of our rights or powers under this Agreement at any time and for any period of time shall not constitute a waiver of any of our rights or powers arising pursuant to this Agreement.
Any documents forming part of this Agreement may be executed and exchanged in any number of counterparts, all of which will be taken together to constitute one and the same document.
8.8 Entire Agreement
To the extent the law permits, this Agreement represents the entire agreement between the parties with respect to the matters contemplated by this Agreement, and you acknowledge that you have not entered into this Agreement in reliance of, or as a result of, any promise, representation, statement, conduct or inducement of any kind relating to any matter in connection with this Agreement from us or our agents.
8.9 Third Parties
Your obligations under this Agreement may confer rights for the benefit of third parties (including our officers, employees and agents, our Service Providers and Payment Card Networks) and you will be deemed to have received notice of acceptance of the rights conferred on them (and will be prevented from denying same) when we provide you access to the App. We may also hold those rights on trust for those persons.
If any provision of this Agreement in favor of us exceeds what is permitted by law (Void Term), then the following provisions will apply:
(a) the Void Term shall be read down only to the extent required to ensure it is enforceable; and, if the unenforceability of the Void Term is not rectified by this provision;
(b) if the Void Term is unenforceable due to it imposing liability on you, then you shall only be liable to the extent that you caused or contributed to the liability;
(c) if the Void Term is unenforceable due to it releasing us from an obligation, we will still be liable to perform that obligation to the extent we either caused or contributed to the event giving rise to the obligation or breach of this Agreement or the terms implied by law that cannot legally be excluded; and
(d) if the foregoing does not cure the invalidity or unenforceability, this Agreement will not include the Void Term and the remainder of this Agreement shall continue in full force.
8.11 No Merger
Nothing in this Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any right, power or remedy that we may have against another party or any other person at any time.
8.12 Governing Law
This Agreement is governed by the laws of the State of Delaware, United States without regard to its choice-of-law provisions and each party irrevocably submits to the exclusive jurisdiction of the courts of the State of Delaware, USA to the extent permissible by law and waives any objection which it may have to the laying of venue of any such suit, action or proceeding in any of such courts.
In this Agreement:
(a) headings used in these T&Cs are for convenience only and do not affect interpretation of these T&Cs;
(b) the provisions of this Agreement must not be construed to the disadvantage of a party merely because that party or its advisers were responsible for proposing or preparing this Agreement or the inclusion of the provision in it or because that party relies on a provision of the provision to protect itself;
(c) a reference to a ‘claim’ or ‘claims’ includes all claims, actions, demands, liabilities, suits, proceedings, demands, costs, expenses or liabilities, whether present or future, fixed or ascertained and however arising;
(d) the words ‘includes’, ‘including’, ‘such as’ or ‘for example’ (or similar phrases) are not to be construed as words of limitation and do not limit what else might be included nor does the incorporation of more than one obligation in a provision limit any other obligation contained in that provision,
(e) and unless the context otherwise requires:
(i) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
(ii) the singular includes the plural and vice versa and words importing a gender include every other gender;
(iii) a reference to a clause or paragraph is a reference to a clause or paragraph of these T&Cs;
(iv) a reference to a person includes a corporation, trust, partnership, unincorporated body, government agency, or other entity whether or not it comprises a separate legal entity;
(v) a reference to a party includes a reference to the party’s executors, administrators, successors, permitted substitutes, permitted assigns and, in the case of a trustee, includes any substituted or additional trustee;
(vi) a reference to a document includes any agreement or other legally enforceable arrangement created by it (whether the document is in the form of an agreement, deed or otherwise) and includes a reference to any variation, replacement or novation of it; and
(vii) a reference to legislation or to a provision of legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it.