1. Legally Binding
1.2.By registering as a User, accessing the Platform or using the Services, you agree that you have read and understood these terms and conditions of this agreement (“Agreement”) and you agree to be bound by them.
1.3.By accessing the Platform or using any Services, you represent that you are over 18 years of age and are otherwise capable of forming legally binding contracts, and that you agree to be legally bound and to abide by this agreement. Do not access the Platform or use the Services if you do not agree and accept the terms and conditions provided in this agreement.
1.4.If you are under 18 years of age, or are otherwise incapable of forming legally binding contracts, or do not agree with any part of this agreement, you must not access or use the Services.
1.5.The right to access the Platform and use the Services is personal to you and is not transferable to any other person or entity.
2. Right of Modification
2.1.We reserve the right, at our sole discretion, to change, modify, add to, subtract from, or otherwise amend the terms and conditions of this agreement at any time. You may be notified of any changes or modifications that we make via e-mail to the e-mail address You provide to WishSprout during the registration process or via notifications on the Platform
2.2.Except as otherwise stated below, all changes, modifications, or other amendments shall take effect no earlier than (7) days once they are posted on our platform user interface.
2.3.Continued access to the Platform and use of the Services by you constitutes your acceptance of this agreement, including any changes or modifications made by us, as described above. If you do not wish to accept the new terms of service, you must immediately cease to access the Platform and all use of the Services.
2.4.You agree to review the terms and conditions of this agreement periodically to familiarise yourself with such revisions and to review your compliance with them.
2.5.We reserve the right, exercisable at our sole discretion, to change or discontinue without prior notice some or all of the Services we provide from time to time at the Platform, or change the applicable terms and conditions for your use of such Services as set forth in this Agreement.
3. Third Party Services
3.2.It is your responsibility to ensure your compliance at all times with such Third Party Terms. If you do not agree with such Third Party Terms, you must immediately cease and forever desist from accessing the Platform or using Our Services.
3.3.Together with this Agreement, such Third Party Terms will govern your use of Our Services or any other services made available by us to you.
3.4.You agree to indemnify Us and our employees, directors, contractors, agents, and related parties (“Those Indemnified”) and keep Those Indemnified from any direct, indirect or consequential loss, cost, expense, damage or liability arising as a result of, or as a natural consequence of, or in connection with or in relation to any act or omission, whether negligent or otherwise, which constitutes a breach of any Third Party Terms applicable to your use of our Services, and whether such loss, cost, expense, damage or liability is founded in contract, tort or any other legal theory, and whether such loss, cost, expense, damage or liability is actual or contingent, present or future, quantified or unquantified.
4. Services, Online Interactions and Donations
4.1.You acknowledge that We are an intermediary providing the Platform and the Services to You and are not involved in conducting or promoting any Campaigns. We are solely a passive conduit to facilitate interactions between You and other Users of the Services (including facilitating of financial Donations from Donors to Campaign Promoters). We reserve the right, in Our sole discretion, to change some or all of Our Services at any time.
4.2.Equipment. You shall be solely responsible for obtaining and maintaining all telephone, communications, mobile communication hardware and other equipment needed for access to the Platform and use of the Services and all charges of any description arising from or relating thereto.
4.3.Limitation of the Services. These Services are to be used for personal causes and ventures only, and may not be used for fund raising for Registered Charities.
4.4.Disclaimer. We have no control over the conduct of, or any information or Content provided by, Users on Our Platform, including Campaign Promoters. The truth or accuracy of the Content, or the outcomes of any wish ventures and Campaigns, are the exclusive responsibility of the Campaign Promoter, and We expressly disclaim any liability in relation to such information or Content so provided by Campaign Promoters on Our Platform. Your decision to interact or Donate to a Campaign should be based upon the information provided by the Campaign Promoter without reliance on Us.
4.5.We do not verify, and make no guarantee or warranty with respect to any Campaign, including that any information provided by a Campaign Promoter on the Services is true and accurate.
4.6.You acknowledge that a Campaign may be deleted, terminated, or otherwise withdrawn from the Platform at the sole discretion of either the Campaign Promoter or WishSprout.
4.7.The Donor must make the final decision when donating to a Campaign as all Donations must be final and not refundable.
4.8.You are responsible for inspecting all information provided by a Campaign Promoter to determine, of your own free will and without duress, to which Campaigns you choose to Donate. Should You choose, intentionally or accidentally, to interact with a Campaign, You do so at Your own risk.
4.9.You agree that We are not liable for any loss, cost, expense, damage or liability, however occurring, as a result of, or as a natural consequence of, or otherwise in connection with, Your Donation to a Campaign, whether such loss, cost, expense, damage or liability is actual or contingent, present or future, quantified or unquantified.
4.10.User Disputes. Because We are not involved in any agreement or any form of deals or interactions made between Users, in the event that You have a dispute with any other user in connection with the Services, You release and forever discharge WishSprout or any of its affiliates, shareholders, officers, owners, directors, employees, partners or representatives from claims, demands and damages (including any direct, indirect and consequential) of every kind and nature, whether known or unknown, suspected or unsuspected, disclosed or undisclosed, actual or contingent, present or future, quantified or unquantified, arising out of or in any way connected with such disputes.
4.11.Covenant Regarding Your Use of Services. You agree that:
(i) all Donations contributed to Your Campaigns will be used exclusively as asserted by You in Your Campaign;
(ii) You will comply with any law, by-law, regulation or other legislative instrument when accessing the Platform or using the Services, including when pleading for funds through Your Campaigns;
(iii) You must not use the Platform to facilitate illegal transactions or allow (whether directly, or indirectly through failing to keep Your Account secure) anyone having access to Your Account to do so, including, without limitation, to use the Platform as a service bureau;
(iv)You must not discover or attempt to discover the source code or object code, or otherwise reverse engineer or attempt to reverse engineer the Platform, or do any act whatsoever which has the effect of discovering the source code or object code, or reverse engineers the Platform;
(v)You will comply with all local laws, including in relation to taxation, which may be applicable to the receipt of Donations through the platform;
(vi)You will not in any way create Campaigns or any Content on the Platform, or otherwise use the Services, which in whole or in part:
4.12.If you suspect that any User is using the Platform in contravention of this Agreement, please contact Us with the details in order for us to investigate.
4.13.No Interference. You agree that You will not use any device, robot, software, or routine to interfere or attempt to interfere with the proper working of the Platform or the Services, or any transaction being conducted on or through the Platform. You agree that You will not take any action that imposes an unreasonable or disproportionately large load on Our server infrastructure on which the Platform is being hosted.
4.14.Discretion to modify or remove Campaign. WishSprout reserves the right, but not the obligation, to monitor, modify, edit or remove any Campaign at its entire discretion if it reasonably believes that the Campaign or any Content therein is in breach of this Agreement, or is illegal or otherwise in bad taste, even if it does not specifically violate this Agreement.
4.15.Storage Space and Usage Limits. You agree that WishSprout may exercise limits to time and storage space that will be allocated to You. such limits include but not limited to the maximum period of time your data will be retained by the Platform. You expressly acknowledge and agree that WishSprout has no liability for the deletion and failure to store any data or Content uploaded by you to the Platform.
5. Fees, Payment and Currency conversion.
5.1.WishSprout deducts a 5% flat fee from each Donation made to a Campaign. Although WishSprout’s Platform user interface shows amount of Donations made by Donors to a Campaign (which may be rounded up to the nearest amount), the amount that a Campaign Promoter or its designated beneficiary receives is the amount of Donations made to a Campaign less five percent (5%) and if applicable, less an additional fee for currency conversion as referred to in 5.6.
5.2.Donors will be charged a payment processing fee atop of the Donation that they make, and because payment processing fees vary from country to country, WishSprout will only be able to advise Donors via the platform user interface the exact amount of payment processing fees prior to them confirming and proceeding with Donations.
5.3.Please note that the amounts Donated may be displayed on WishSprout's platform user interface as the amount rounded up to the nearest value. For example, if a Donor Donates $99.75, that amount will be shown on the system as $100. However, the amount that the Campaign Promotor or its designated beneficiary receives will be $94.76 ($99.75 – 5% WishSprout fee) if currency conversion fee referred to in clause 5.6 does not apply.
5.4.Notwithstanding with clause 5.3 above, please note that the amount displayed on WishSprout’s platform user interface for overseas campaigns and their Donation records may have been converted to your local currency using a currency conversion rate selected by Wishsprout. You acknowledge and agree that WishSprout’s Platform user interface may not indicate to you the origin of campaigns and that Your donation may incur currency conversion fees and any fees that apply.
5.5.You aware that currency prices fluctuate and that the amount displayed on the WishSprout’s Platform user for overseas campaigns and their Donation records may vary each time.
5.6.In the event that Donations are made to a campaign in a currency that is different from the default currency of the credit card used, donor may be charged a currency conversion fee by the credit card provider. In the event that a campaign received a Donation in a currency that is different from the Payout currency (Payout as referred to in clause 5.17.), our Payment Gateway Partner, may use their currency conversion rate under their terms to convert the Donation and deduct a currency conversion fee from the Donation prior to depositing to the financial institute designated by the Campaign promoter. Refer to our Payment Gateway Partner’s documentation at https://stripe.com/docs/payouts#multiple-bank-accounts and https://stripe.com/docs/payouts/conversions to learn about Payout currency and currency conversion fee or foreign exchange fee.
5.7.In all cases, your credit card provider may charge a transaction fees and any applicable fees in addition to WishSprout’s payment processing fees. WishSprout has no control over the fees apply by the credit card provider.
5.8.We reserve the right to change WishSprout’s fees at any time. We will notify you [seven (7) days] in advance of any new fees taking effect by publishing the change of fee on the Platform User Interface or communicate to You by email sent to the email address linked to Your account. Your continued access to the Platform and use of the Services following the change of fee will constitute your acceptance of such changes.
5.9.All fees referred to in this Agreement are exclusive of Goods and Services Tax (GST), Value Added Tax (VAT), or any other applicable sales or governmental tax.
5.10.Your use of the Services constitutes your acceptance of the fees.
5.11.Please note that all Donations are final and are not refundable, except where clause 10.8 applies.
5.12.You are liable for all payment made through Your Account, whether such payment was actually made by You. You agree to indemnify and hold harmless Those Indemnified from and against any loss, cost, expense, damage or liability arising as a result of, or as a natural consequence of, or in connection with any fraudulent payment made through Your Account, or payment made through Your credit card even if You did not authorise such payment. Neither WishSprout nor its Payment Gateway Partner insures You against any losses which may result from any payment made through Your Account, whether authorised by You or not, under any circumstances.
5.13.Payment Gateway. WishSprout or its Payment Gateway Partner reserves the right, and have the sole discretion to block or hold for investigation any payment if we reasonably believe in good faith that it is necessary to detect, prevent or deal with fraud, unauthorized transactions, any breach of this Agreement or other illegal activity. You agree that we may contact You regarding such transaction as part of Our investigations into this matter.
5.14.You indemnify, and hold harmless Those Indemnified and its Payment Gateway Partner from and against any loss, cost, expense, damage or liability arising as a result of, in connection with, or as a natural consequence of any fraudulent or unauthorised transactions made through the Platform, whether such loss, cost, expense, damage or liability is actual or contingent, present or future, quantified or unquantified.
5.15.You acknowledge and understand that the Services provided on this Platform support only Donations to personal causes and ventures only, and therefore is not tax deductible. Fundraising for Registered Charities is not supported currently and is therefore prohibited. If You discover any Campaigns that purport to raise funds for Registered Charities, please contact Us with the relevant details in order that we can investigate.
5.16.Should you want to make a Donation anonymously, click the “Donate as anonymous” checkbox during the checkout process of Your Donation, otherwise Your name will be shown publicly on the Platform with the amount of funds you Donated.
5.17.Payout to Campaign Promoter and its beneficiary. Subject to any suspensions, terminations or holds that We or Our Payment Gateway Partner may place on Your Campaign, the Services has been set such that the funds collected on Your Campaigns will be paid to Your designated financial institution weekly on a 7 day rolling basis. This means that payments are made weekly containing payments processed within the week ending 7 days prior to the date of payment. (Refer to Our payment gateway partner’s link https://stripe.com/docs/payouts for more details and other frequently asked questions with respect to payment of fund to your financial institution).
5.18.You will not hold WishSprout or any of its affiliates, shareholders, officers, owners, directors, employees, partners or representatives liable for any consequences arising from delay, non-payment, underpayment or non-delivery due to reasons beyond Our control or disruption of communication systems. For any matters pertaining to nonpayment, underpayment or non-delivery or delay please contact Us by email at [firstname.lastname@example.org]. For delay, we recommend You wait for another few days for the payment to go through. It is Your responsibility to ensure that information You provide Us to process a transfer is up to date, correct and adequate.
5.19.Notwithstanding clause 5.11 above, WishSprout and its Payment Gateway Partner reserves the right to refund a Donation made to Your Campaign when a dispute or a chargeback is filed by the credit card issuer.
5.20.Campaign Promoters’ Tax Obligation. It is Your responsibility to determine Your tax obligation in the country where Your funds are settled.
5.21.No Warranty. We do not warrant that the Services provide through our Platform will be uninterrupted or error free, nor do we guarantee that the Service will be available at all times to facilitate Donations from Donors to Campaign Promoters.
5.22.Donation via Credit Card. Please note that the security of your credit card details is of the utmost importance. WishSprout processes payment or donation you made via credit card through Our Payment Gateway Partner. WishSprout charges your credit card via a secure token generated by Our Payment Gateway Partner. The secure token of your credit card may be stored by WishSprout should you choose to optionally allow us to store it via a checkbox upon making a payment or a donation.
5.23.However, no transaction over the internet can be guaranteed to be fully secure, and accordingly, neither WishSprout nor our Payment Gateway Partner make any guarantees that the payment information transmitted using this method will not be misappropriated by third parties. Neither WishSprout nor our Payment Gateway Partner shall be liable for any loss, cost, expense, damage or liability, including, without limitation, any loss, cost, expense, damage or liability incurred as a result of negligence on the part of WishSprout or Our Payment Gateway Partner, that You may incur as a result of any transaction through our Platform. Any transaction completed using Our Services and those of our Payment Gateway Partner are done at Your own risk.
5.24.Storage of credit card information. WishSprout has an optional feature for You to store Your credit card details to Your Account on WishSprout. This feature will enable You to use a stored credit card to facilitate a faster or one click checkout during Your next transaction. If You wish to enable or disable this optional feature, simple check or uncheck the box “remember my credit cards details” during the checkout process. By default, this optional feature is disabled.
5.25.Should you check the box “remember my credit card details”, your credit card details are stored in a secure token automatically generated by Our Payment Gateway Partner, which will be stored securely in Our server.
5.26.If you are at all concerned with the security of your credit card details being stored on Stripe’s server, we recommend that you do not use this feature. Should You choose, intentionally or accidentally, to use this feature, You do so at Your own risk.
5.27.No transaction over the internet, and no internet server can be guaranteed to be fully secure, and accordingly, neither WishSprout nor our Payment Gateway Partner makes any guarantees that Your credit card details stored using this method will not be misappropriated by third parties. Neither WishSprout nor its Payment Gateway Partner shall be liable for any loss, cost, expense, damage or liability, including, without limitation, any loss, cost, expense, damage or liability incurred as a result of negligence on the part of WishSprout or its Payment Gateway Partner, that You may incur as a result of storing Your credit card details in this manner. If You agree to store your credit card information using this method, You do so at Your own risk.
6. Your Account and Information
6.1.Your Information. The term "Your Information" means collectively the following:
(i) any information or materials You provide to Us in connection with Our registration process, Your use of any Services or in email correspondence with Us;
(ii) any information or materials You provide to other users of the Platform in connection with Your use of any Services, or in any public message board, Wish venture or Campaign;
(iii) any information or materials You provide to the Donors, to WishSprout, or other third parties in connection with Your use of any Services; and
(iv) any Payment details you provide to us.
6.2.When You register an Account, You must provide Your Information to us. The information which We require may include information of a personal nature (“Personal Information”), and may include the following:
(i) email address;
(ii) user name;
(iii) Stripe identification key;
(iv) Stripe credit card token;
(v) country of residence; and
(vi) location of your mobile device (should you so authorise by allowing the Platform to access your location information on your mobile device).
6.3.Your Information may include without limitation textual information, graphic images, photographs, and audio-visual materials.
6.4.Except as may be otherwise expressly provided to the contrary in this Agreement or the Additional Agreements, You are solely responsible for Your Information, and We act at all times as a passive conduit for Your online distribution, communication, and/or publication of Your Information.
6.5.WishSprout reserves the right, but not the obligation, to monitor, modify, edit or remove any Content that You post to the Platform at its entire discretion if it reasonably believes that the Content is in breach of this Agreement, or is illegal or otherwise in bad taste, even if it does not specifically violate this Agreement.
6.6.Covenant Regarding Your Information. You warrant, and covenant that all information you provide in connection to Your use of our Services:
(i) is not false, inaccurate, or misleading;
(ii) does not infringe any third party’s copyright, patent, trademark, trade secret, or other proprietary rights or rights of publicity or privacy;
(iii) does not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination, or false advertising), or other legislative instrument;
(iv) is not defamatory, unlawfully discriminating, threatening, harassing, anti-social, obscene, hateful or promotes graphic or gratuitous violence;
(v) does not contain any computer viruses, worms, Trojan horses, time bombs, or other computer programs, scripts, or instructions that are intended to damage or detrimentally interfere with the operation of the Platform or use of the Services, or to intercept or expropriate any proprietary computer system information or other confidential data or personal information relating to or arising out of the access to the Platform or use of the Services, or any code or program that is harmful to the computer or other electronic device accessing the Platform or using the Services;
(vi) will not cause any liability for WishSprout under any law, regulation, by-law or other legislative instrument, or under any agreement WishSprout has with any service provider;
(vii) does not constitute promotional materials for commercial activities and/or sales, pyramid schemes, contests, survey or spam;
(viii) does not contain pornography and other sexual content;
(ix) will not contain Gambling and gaming activities;
(x) does not contain any hyperlinks to a non-trusted site, site that contains malware, spyware, ransomware or other computer viruses, worms, Trojan horses, time bombs, or other computer programs, scripts, or instructions that are intended to damage or detrimentally interfere with the operation of the Platform or use of the Services, or to intercept or expropriate any proprietary computer system information or other confidential data or personal information relating to or arising out of the access to the Platform or use of the Services, or any code or program that is harmful to the computer or other electronic device accessing the Platform or using the Services; advertising materials or any other site that will harm the operating system of the device in use by other Users.
6.7.You agree to indemnify and hold harmless Those Indemnified from and against any loss, cost, expense, damage or liability, whether under contract, tort, or other legal theory, arising as a result of, as a consequence of, or in connection with your breach of the above covenants, whether such loss, cost, expense, damage or liability is actual or contingent, present or future, quantified or unquantified.
6.8.Your Account. Your Account is identified by Your chosen user Identification (Your "User Name") and You are the only party authorised to use Your registered account. You may register one (1) Account. You are solely responsible for maintaining the confidentiality of Your registered account and any password(s) You have chosen or We may issue to You in connection with Your access to the Platform and use of the Services.
6.9.You agree to promptly update Your account registration information in order to keep it current, complete, and accurate.
6.10.When You choose to start a Campaign, we will ask You to provide Us Your financial institution account information where You want the funds you will be collecting through Your Campaigns to be transferred. It is your duty to ensure that the information you provide to WishSprout in order to process a transfer, including your bank account information, is accurate and up to date.
6.11.You are responsible for all uses of Your account, whether or not actually or expressly authorised by You.
6.12.You agree to immediately notify WishSprout of any unauthorized use or any other breach of security of which you have become aware. WishSprout will not be liable for any loss or damage arising from any unauthorised use of your Account.
6.13.Covenant Regarding Your Account. You agree that You will
(i) register an Account using your true identity;
(ii) not impersonate any other User of the Services;
(iii) not maintain multiple registered accounts or User Names with Us without Our express written consent. If You wish to maintain multiple accounts, You may write Us an email to email@example.com indicating Your reason for having multiple accounts.
6.14.Payment Information for Donation. You warrant, and covenant to WishSprout that the payment information you provide to Us when donating to a Campaign is true and that you are authorised to make such payment.
6.15.You acknowledge that we are not liable for any loss, cost, expense, damage or liability which You may incur as a result of providing us incorrect payment information, even where such loss, cost, expense, damage or liability is reasonably foreseeable or notified to Us prior to such loss, cost, expense, damage or liability occurring.
6.16.Licence to use Information. To enable Us to use Your Information and any material that You post, and so that We are not violating any rights You might have in Your Information, You hereby grant Us and our affiliates (including other users) a non-exclusive, perpetual, worldwide, irrevocable, royalty-free, sub-licensable (through multiple tiers), transferrable right to use, reproduce, adapt, modify, and publish Your Information and otherwise use Your Information in connection with the operation of the Services, in any media now known or developed later.
6.18.Unless otherwise authorised or consented, you agree not to harvest or perform any form of data extraction, including e-mail addresses which may be accessible through Our Platform at the discretion of the Donor or Campaign Promoter or disclosed to you by WishSprout.
6.21.Deactivation of Your Account. You may deactivate your Account at any time by notifying us in writing via email to firstname.lastname@example.org. You may be required to complete and return an account deactivation form prior to your Account being deactivated.
6.22.Please allow up to fourteen (14) days for deactivation to occur.
7. Usage and Intellectual Property
7.1.Copyright. All materials incorporated in or accessible through the Platform, including, without limitation, text, photographs, images, graphics, illustrations, trademarks, service marks, logos, button icons, audio clips, video clips, software, and other content, and the compilation, collection, arrangement, and assembly thereof (including the look and feel of the Platform), are protected by applicable national and international trademark and copyright laws, and are owned, controlled by or licensed to WishSprout, or by the other Users of such materials or their licensors. Copying, reproduction, modification, sale, distribution, extraction, re-utilization, transmission, publication, downloading, display, posting, performance, or other exploitation thereof by any means or medium without the prior written permission of the copyright owner is strictly prohibited.
7.2.Limited Licence. Subject to Your compliance with the terms and conditions of this Agreement and Third Party Terms incorporated herein, We grant You a limited, personal, non-exclusive, non-transferable, non-sub-licensable, and revocable licence to install the Platform and consume the content posted on the Platform for the purpose of enabling you to use the Service in the manner permitted by this Agreement and for no other purpose whatsoever.
7.3.You may not copy, modify, distribute, sell, or lease any content provided in the Platform or in connection with the Services. You agree that You may not in any way exploit or commercially use any of the Content, in whole or in part, except as expressly permitted in this Agreement or in an Additional Agreement between You and WishSprout. You acknowledge that You do not acquire any ownership rights by accessing or downloading copyrighted materials.
7.4.Trade marks. The name “WishSprout”, and logo, is a trade mark of WishSprout Pty Ltd. All other trade marks, service marks, product names, company names, or logos appearing on the Platform are the property of their respective owners and are protected by Australian and international trade mark laws. You may not use or reproduce any trade mark, or do any act, matter or thing which constitutes an infringement of trade mark rights, without the prior written consent of the trade mark owner.
7.5.Uploading or Posting Content. You will not upload, post, or otherwise make available through the Platform any material protected by copyright, trademark, or other intellectual property, industrial property or proprietary right without the express permission of the owner of the such rights.
7.6.You warrant that You own, or has the requisite licences (including the right to sub-licence to us in accordance with clause 6.14 above) with respect to any material that You post on the Platform, and that You are the owner or are otherwise authorised in writing to use, reproduce, modify, adapt or publish the same.
7.7.In the event that Your Information is alleged to infringe upon the intellectual property, industrial property or other proprietary rights of any third party, the burden of proving otherwise rests with You. You agree to indemnify Those Indemnified and keep Those Indemnified from harm against any loss, cost, expense, damage or liability which may arise as a result of, or as a natural consequence of, or in connection with the posting of Your Information on the Platform, whether such loss, cost, expense, damage or liability is actual or contingent, present or future, quantified or unquantified.
7.8.You are solely liable for any loss or damage resulting from any infringement of the rights of any third party, including, without limitation, intellectual property, industrial property and other proprietary rights, or any other harm resulting from Your Content on Our Platform. By submitting materials to the Platform, You hereby warrant that You are the owner of such materials, or where You do not own the materials, the owner of such materials has expressly granted WishSprout a royalty-free, licence fee free, irrevocable, non-exclusive, transferrable and sub-licensable and license to use, store, reproduce, modify, adapt, publish, translate, publicly display and distribute such materials (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or hereafter developed for the full term of the intellectual property, industrial property or other proprietary rights that may exist in such Content. You also permit any other user of the Services to access, view, store, or reproduce such Content for that user’s personal use.
8.1.You agree that WishSprout has no obligation to monitor the use of the Services. However, WishSprout reserves the right to review and investigate any form of user activity, Content and/or materials posted on the Platform.
8.2.We reserve the right to take any action against any User in relation to any activity that, in Our opinion, violates any of part of this Agreement, or is otherwise in bad faith, without giving notice to that User (including, without limitation issuing warnings, suspending or terminating Services, denying access to the Platform and/or removing any materials posted on the Platform, and/or temporarily suspending an Account pending an investigation).
8.3.WishSprout or its Payment Gateway Partner reserves the right to block or hold for investigation any payment if we reasonably believe in good faith that it is necessary to detect, prevent or deal with fraud, unauthorized transactions, any breach of this Agreement or other illegal activity.
8.4.We also reserve the right to investigate the credit card that You used to pay for a Donation as We deem appropriate, including, without limitation, to taking steps to ensure that the named credit card holder has authorised the transaction through Our Platform.
8.5.Fraudulent conduct is a violation of the Agreement. We will cooperate with any bank, financial institution, credit card provider or credit card processor, and with governmental, legislative or judicial or other authority of competent jurisdiction (“Authority”) in their investigations of any alleged fraudulent conduct on this site if so requested by an Authority. Your Information may be passed onto such authorities without notice to you in the course of complying with the requests of such Authorities.
8.6.You agree to comply with all applicable laws and regulations, and any orders or directions of any Authority with respect to Your access to the Platform and use of the Services.
9.1.Third party websites. The Platform may contain links to third party websites on the internet that are owned and operated by third parties. These links may be provided by Us or by other Users of the Platform as a convenience to You. We take no responsibility whatsoever for the availability of any third party websites to which the links are posted.
9.2.You acknowledge that WishSprout is not responsible for the availability of, or the Content, advertising, products, or other materials located on or of the linked third party websites. Under no circumstances will We be held responsible or liable, directly or indirectly, for any loss or damage including that is caused or alleged to have been caused to You in connection with Your use of any third party websites, including but not limited to:
(i) virus and malware that any third parties website may have installed on the operating system of the device You access to the Platform or use of the Services;
(ii) Your reliance on, any Content, goods, or services available thereof. If You decide to access linked third party websites, You do so at Your own risk and in accordance with the prevailing terms and conditions of such third party websites.
10. Breach and Termination
10.1.WishSprout reserves the right to immediately issue a warming, terminate or suspend Your Account and/or restrict your access to the Platform (or any part thereof) without notice to you when:
(i) required by applicable laws;
(ii) You violate these terms and conditions or any of the Additional Agreements incorporated herein by reference; or
(iii) deemed necessary at our sole discretion.
10.2.If we determine in our sole discretion that it is reasonable to give you an advance notice, We will notify You 24 hours prior to such termination, suspension and/or restriction.
10.3.If we terminate Your Account, You will no longer have access to the Services. Registering a different Account in order to circumvent Our termination of Your Account constitutes a breach of this Agreement, for which We reserve the right to immediately terminate all Your Accounts.
10.4.Notwithstanding such termination, You agree that the clauses in this Agreement which expressly or by its nature survives termination shall remain in full force and effect, notwithstanding such termination.
10.5.WishSprout reserves the right to terminate provision of the Services at any time by refusing to allow new users to register or use of any service. If We do so, We will post a notice on the Platform or to email linked to user accounts giving Users 30 days’ notice of such termination. However, WishSprout undertakes that any unsettled funds collected prior to such termination will be transferred to the Promotor or its nominated beneficiary in a schedule determined by WishSprout or its Payment Gateway Partner. You also agree that WishSprout has no obligation to store or return any copies to you of any content or materials you posted on the Platform following such termination and You will not be able to retrieve such content or materials thereof.
10.6.You also agree that WishSprout reserves the right at any time to put a hold on a Campaign for investigation should we have reason to believe, at our sole discretion, that the Campaign Promoter has violated these terms and conditions, provided false information, or when required under court order or applicable laws.
10.7.You acknowledge and agree that when a Campaign is put on hold, it is unable to receive any further Donations, and any unsettled funds the Campaign has collected will not be released and transferred to your designated financial institution until investigation is completed, after which, depending on the outcomes of the investigation, Your Campaign may be allowed to continue, or may be terminated.
10.8.In case Your Campaign is terminated by us following the investigation, the unsettled funds collected on the Campaign you raised will be refunded to the respective Donors. We may apply a cost for refund, which will be payable by the Campaign Promoter.
10.9.Further, You agree that WishSprout will not be liable to You for any termination, suspension, restriction on Your account or Campaign.
11.1.You agree to indemnify, defend, and hold harmless Those Indemnified from and against any liabilities, losses, claims, damages, expenses, costs, any kind of injury (including fatality) and expenses (including legal fees) arising out of or relating to any use (including violation of these terms and conditions) or unauthorised access to the Platform or use of the Service under Your Account by any person.
11.2.WishSprout reserves the right, but not the obligation, to assume the exclusive defence and control of any matter subject to indemnification by You, and in such case, You agree to cooperate with WishSprout and its legal representatives in the defence of such claim, at Your expense.
12. Suspension of or Modifications to Services
12.1.WishSprout shall not be liable to You or to any third party for any of the direct or indirect consequences of any modification, malfunction, or suspension of or interruption to the Services (or any part thereof) including but not limited to the availability of any feature, database, or Content. We will provide you notice of any such changes in the Services.
12.2.The Platform including any functionalities included in or provided as part of the Services is provided on an “as is” and “as available” basis, and WishSprout expressly disclaims any warranties and conditions of any kind, whether express or implied, including but not limited to the warranties of performance, accuracy, or non-infringement. Without limiting the foregoing, WishSprout and its affliates do not warrant that the Platform or Services will meet your requirements or be uninterrupted, timely, available at all time, secure or error free; nor does WishSprout make any warranty as to the outcomes obtained from use of the Platform, Services or the Campaign. You acknowledge that there are risks inherent in internet connectivity that could result in the loss of your privacy, Confidential Information and property. You release WishSprout from liability for loss of your data. WishSprout makes no guarantee that your data will be backed up, or otherwise recoverable in the event of such loss, but may, at its discretion endeavour to use its available resources to recover your data.
12.3.WishSprout expressly disclaims any warranties that any information or Content provided by Users and their respective representatives with respect to their use of Services true, reliable, complete and accurate. It is your responsibility to evaluate the accuracy, completeness or usefulness of any information, opinion, advice or other Content available through the Platform.
12.4.WishSprout expressly disclaims any warranties that Donations received by respective Campaign Promoters or its beneficiary will be used in accordance with any applicable laws or with any assertions made by the Campaign Promoters on their Campaigns.
12.5.Although the Platform may be accessible worldwide, WishSprout reserves the right to limit certain parts of the Services to any person or geographic area in Our sole discretion.
13. Dispute Resolution
13.1.You may not commence any action or proceeding against WishSprout or its shareholders, officers, owners, directors, employees, agents, partners or representatives in any court, or initiate any arbitration proceeding, unless You have first complied with the procedures herein.
13.2.If You claim that a dispute (“Dispute”) has arisen, You must give notice in writing (“Notice of Dispute”) to us (by email sent to email@example.com) specifying the Dispute.
13.3.During the fourteen (14) day period after the receipt of a Notice of Dispute, or if the Parties agree to a longer period, that longer period, each Party must use their best endeavours to resolve the Dispute by negotiation in good faith.
13.4.If the Dispute is not resolved within the time frame specified in clause 13.3 above, then the Dispute must be referred to mediation by the Law Society of Western Australia by a mediator agreed to by both Parties, or where the Parties do not agree on a mediator, a mediator appointed by the chair of the Law Society Panel of Mediators and Arbitrators.
13.5.Each Party must use their best endeavours to resolve the Dispute via mediation until:
(i) the resolution of the Dispute; or
(ii) a determination by the mediator that the Dispute is unlikely to be resolved through mediation.
13.6.Where clause 13.5(ii) applies, the Dispute must be referred to binding arbitration by an arbitrator agreed to by the Parties, or where the Parties do not agree, an arbitrator appointed by the Law Society of Western Australia Panel of Mediators and Arbitrators.
13.7.Where clause 13.6 applies, the Parties agree that the decision of the arbitrator is final and binding.
13.8.Each Party must bear their own costs in relation to the resolution of the Dispute, including any legal fees.
13.9.The costs of the mediation and arbitration shall be borne equally by the Parties.
13.10.Nothing in this clause 13 denies either Party the right to seek urgent interlocutory relief (including an injunction) from an appropriate court in relation to any Dispute arising under this Agreement.
14. Limitation of Liability
14.1.You expressly acknowledge and agree that WishSprout, its affiliates, or any of its shareholders, officers, owners, directors, employees, partners or representatives shall not be liable for any loss, cost, expense or liability, including any direct, indirect, incidental, special, consequential, exemplary damages, including but not limited to damages for loss of profits, goodwill, loss of data, injury or fatality (even if such loss, damage, expense or liability is as a result of negligence on the part of WishSprout, or is reasonably foreseeable, or WishSprout has had prior notification of the possibility of such damages) arising from:
(i) any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction or unauthorised access to, alteration of, inability to access, or use of any record, whether for breach of contract, negligence, tort, or under any other cause of action;
(ii) your reliance on information obtained through either the Content or the Platform, including but not limited to any comment, opinions, suggestions, ideas, material and any other Content as provided by the Users;
(iii) any delay, non-payment, under payment and non-delivery of payment to your designated financial institution;
(iv) any Force Majeure Event; or
(v) any other matter in connection to Your use of the Services.
14.2.Our liability to a Campaign Promoter in any circumstance is limited to the following:
(i) subject to any terminations, suspensions, holds or chargebacks that We or Our Payment Gateway Partner may place on Donations made to Your Campaign, and subject to the audit of both Our records and Our Payment Gateway Partner’s records of the funds you actually raised through Your Campaigns, the outstanding balance payable to You from Us based on the total amount of Donations payable to You, less our fees or any chargebacks as detailed in clause 5 above.
14.3.Donors acknowledge and agree that WishSprout does not have any liability to Donors, including, without limitation, any liability with respect to misdirected or misappropriated funds, or fraud. Any Donation made to a Campaign is done so at the Donor’s risk.
14.4.Because it is not possible to monitor the Services to the full extent. WishSprout or its affiliates, or any of its shareholders, officers, directors, employees or agents disclaim all liability for any defamatory, offensive or illegal conduct of other users or that the Donations will be used as asserted by the Campaign Promoters. Please use the “Report” function on the Platform to report to Us any suspicious activity so that we can investigate further.
15.1.Governing Law. All disputes, claims or controversies arising out of this Agreement shall be governed by and construed in accordance with the laws of the State or Territory of Australia. Each of the parties irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the State of Western Australia (“State Court”), and any court having jurisdiction to hear appeals from such courts.
15.2.Each of the parties agree to waive any objection to the laying of venue of any such litigation in the State Court and agrees not to plead or claim in any State Court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the State Court.
15.3.Headings. Headings in this Agreement are for convenience only and in no way define, limit, construe or describe the scope or extent of such section.
15.4.Construction. If there is inconsistency exists between this Agreement and any Third Party Terms or Additional Agreements (being separate additional written agreements entered into between You and WishSprout), the Additional Agreements shall take precedence over this Agreement, and this Agreement, to the extent of the inconsistency, will be read down so as to eliminate such inconsistency. The Third Party Terms shall continue to have effect with respect to Your use of Third Party services which may be necessitated by Your use of Our Services.
15.5.Severability. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced.
15.6.Waiver. WishSprout’s failure to enforce any of Our right under this Agreement, or its failure to enforce strict adherence to any provision of this Agreement, will not constitute a waiver of such right or provision, or a release from the performance of the same. A waiver may only be given in writing and signed by WishSprout or its representative.
15.7.Notwithstanding any signed waiver, You remain liable to WishSprout for any loss, cost, damage, expense or liability which may later arise as a result of your failure to adhere to this Agreement.
15.8.Neither Party shall be obliged to perform any obligation under this Agreement where such failure to perform is a result of a Force Majeure Event continuing for more than twenty-eight (28) days.
15.9.Assignment. Third-Party Beneficiaries. This Agreement may be assigned, in whole or in part, without restriction to the WishSprout’s successors and assigns. This Agreement shall not benefit or create any right or cause of action in or on behalf of any person other than the parties hereto.
15.10.Notices. Except as otherwise provided herein, any notices to be given pursuant to this Agreement may be given to the e-mail address You provide to WishSprout during the registration process. In addition, We may, should You so choose via the settings on Your mobile device or via settings in Your Account, allow WishSprout to send you notifications for events via notifications to your mobile device.
15.11.Notices shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, We may give You notice by posting it electronically on the Platform and notify you of such notice. In such case, notice shall be deemed given 24 hours after notice is posted on Platform.
15.12.Survival. Clauses 3.4, 4.10, 4.11, 5.12, 5.14, 5.18, 6.6, 6.7, 6.13, 6.14, 6.15, 6.16, 7.3, 7.4, 7.5, 7.6, 7.7, 7.8, 11, 12, 13, 14, and this clause 15 shall survive any termination of this Agreement as well as any other provisions which by their terms or sense are intended to survive.
“Account” means the account that the User must register prior to using the Services, which identifies each individual User and tracks their Campaigns, Wishes and/or Donations.
“Additional Agreements” means any agreements entered into between WishSprout and You subsequent to this Agreement.
“Authority” has the meaning referred to in clause 8.5
“Campaign” refers to ventures or personal causes posted and shared by a Campaign Promoter on the Platform with the intention to raise financial contributions from other Users who use the Services. Campaign Promoter
“Content” means the content provided on the Platform by WishSprout, or that which is otherwise licensed to WishSprout to display or publish on the Services
“Dispute” has the meaning referred to in clause 13.2
“Donate” means to contribute funds to financially support a Campaign. The words “Support Now" on the Platform user interface is synonymous to Donate.
“Donation” means funds contributed to Campaign Promoter from Donors to support their Campaign.
“Donors” are individuals or entities that contribute or pledge money (or ‘Donation’) to a Campaign on the Platform without expecting to receive anything in return.
“Force Majeure Event” includes:
(i) any act of God, including any extreme weather or natural disaster;
(ii) any outbreak or escalation of hostilities, whether or not war has been declared;
(iii) any industrial dispute;
(iv) any governmental restraint; and
(v) any other act, matter or thing which is not within the reasonable control of the Parties.
“Platform” means the WishSprout mobile app platform that provides the Services as defined herein.
“Notice of Dispute” has the meaning referred to in clause 13.2.
“Payment Gateway Partner” means Stripe, or any other partner from time to time that WishSprout may use at its discretion.
“Campaign Promoter” means the user who created and promoted a wish venture or a crowdfunding Campaign on the Platform.
“Services” means the WishSprout mobile app, including content, features, and functionality provided by WishSprout through the app, which allows Users (and Campaign Promoters as defined herein) to create, share and promote a list of wishes online and, at the discretion of the Campaign Promoter, to start a fund raising campaign to fund any one or more wishes they post. Online communication channels that are available on the Services allows Users to interact with each other with respect to any Campaign, including to make any Donations for any Campaign.Campaign Promoter
“State Court” means the courts of the State of Western Australia, and any court having competent jurisdiction to hear appeals from such courts
“Third Party Terms” has the meaning referred to in clause 3.1
“Those Indemnified” has the meaning referred to in clause 3.4
“User” refers to individual or entity who play the roles of Campaign Promoter, Donor, other user using the Service or any of the combination above.
“We, Us, Our, or WishSprout” all refer to WishSprout.
“Wishes”, “Wish” are content posted on the Platform by a User that promote and describe the things or occurrences that the User wishes for.
“You” or “Your” means the person accessing the Platform under your registered account and/or Your authorised representatives and anyone You provide access under your registered account for the purpose of using the Services on the Platform.
“Your Information” has the meaning referred to in clause 6.