Terms and conditions

1. What is On Fleek?

MGM20 Pty Ltd ACN 643 966 698 (MGM20, we, our or us) operates the On Fleek cloud-based platform, accessible via our website www.onfleekrewards.com and mobile application (if any).

Through On Fleek, the customer utilising the cloud-based platform (you, your) can purchase Products offered by Retailers. On Fleek is a service to aggregate Products and connect Retailers and buyers. We do not sell or provide any of the Products that you may purchase after being connected to that Retailer via On Fleek.

2. Acceptance of terms

2.1 Agreement

By using On Fleek, creating an account, ticking or indicating that you agree, or downloading the mobile application (if any), you agree that you are bound by these Terms and Conditions. If you do not agree, you should stop using and (if applicable) uninstall the mobile application, or do not download the application.

2.2 Use of On Fleek

As a condition of your use of On Fleek, you warrant and agree that:

(a) you are at least 18 years of age, or have your parent’s permission to use On Fleek;

(b) all information you supply to us is true, accurate, current;

(c) you will use the functionality of On Fleek only for the identification of and referral to Retailers for the purchase of Products, and for legitimate reasons only;

(d) you will not use (or attempt to use) data mining, robots, screen scraping or similar data gathering and extraction tools on the website;

(e) you will use the functionality of On Fleek only for your personal use, or that of another person for whom you are legally authorised to act, and only in accordance with these Terms and Conditions;

(f) you will inform such other person(s) about the Terms and Conditions should you purchase any Products on their behalf;

(g) you will not use On Fleek to communicate or distribute viruses or any other technologies that may harm us, the Retailer and other users;

(h) if you have an account on On Fleek, you will safeguard your Login, will supervise and be completely responsible for any use of your Login or account by you and anyone other than you;

(i) you must not link to On Fleek or any part of On Fleek in a way that damages or takes advantage of our reputation, including but not limited to in a way to suggest or imply that you have any kind of association and affiliation with us, or approval and endorsement from us that you do not have;

(j) MGM20 may collect and use de-identified statistical data for the purposes of tracking and monitoring use; and

(k) you will comply with these Terms and Conditions.

2.3 Change to terms

(a) You agree that we may update these Terms and Conditions at any time, by giving you notice in any of the ways mentioned in clause 7.

(b) After we give you such a notice, your continued use of On Fleek will signify your agreement to and acceptance of the Terms and Conditions as amended, with effect from that date.

3. On Fleek security; Suspension; Availability

3.1 Your account

To complete the registration of your account on On Fleek, you must provide accurate and up-to-date information required by MGM20, including your full name, email address, phone number, and other details as may be specified by MGM20 from time to time. You must also generate a Login.

3.2 Security

You alone are responsible for your use of On Fleek and the protection of your Login. You are also responsible for all activities that occur in connection with your Login and account. You agree to notify us immediately of any unauthorised use of your account.

3.3 Suspension

We may, without prior notice to you, suspend (in part or whole) or terminate your account or access to On Fleek if:

(a) there is a malfunction, fault, or breakdown of any equipment we use or any repairs, maintenance, or services are required;

(b) we are required to do so by law;

(c) an event of Exceptional Circumstance occurs, which affects or may affect our ability to provide On Fleek and any related services;

(d) if we determine that you:

(1) are in breach of your obligations under clause 2;

(2) have engaged in prohibited conduct under clause 4;

(3) we are notified by our Retailers or it comes to our attention that you have failed to comply with your payment obligations in clause 1; or

(4) are otherwise in breach of these Terms and Conditions, such breach has not been remedied within 5 days of our notice to you, given in any of the ways mentioned in clause 7;

(e) a person claims that On Fleek infringes their Intellectual Property Rights; or

(f) a person makes a Claim that exposes us to Liability.

A suspension for any of these reasons will not affect any right which accrues prior to, or after, suspension of our obligations under these Terms and Conditions.

3.4 Fraud; suspicious activity

(a) If we otherwise detect that your account shows signs of fraud, abuse or suspicious activity, we may take any of the following actions as we deem reasonable, such as suspending your account or notifying any affected or potentially affected Retailers associated with your account.

(b) If you have or we suspect that you have carried out any fraudulent activity, we may take necessary legal action and you may be Liable for any Loss we incur, including litigation costs and damages.

(c) If you wish to contest the suspension or deactivation of your account, please contact us.

3.5 Availability; Downtime and Limitations

(a) It is possible that some or all of On Fleek may be unavailable from time-to-time, including for Scheduled Maintenance, other maintenance or while we make improvements.

(b) If we anticipate that we may need to interrupt your use of or access to On Fleek for longer than we would normally expect, we will take reasonable steps to tell you in advance.

(c) You agree that:

(1) your access to and use of On Fleek may occasionally be limited due to maintenance;

(2) access to On Fleek is reliant upon various factors outside our control, including, without limitation, events of Exceptional Circumstance, your internet service provider, telecommunications provider or equipment used to access On Fleek;

(3) although we will use reasonable endeavours to ensure you have access to On Fleek, we are not Liable to you or any other person for any Claim or to any other extent for Loss or damage caused by such factors; and

(4) you will have no Claim against us in respect of loss of access or functionality to On Fleek referred to in this clause 5.

4. Products

(a) On Fleek does not sell specific Products supplied by Retailers on its website. Unless otherwise stated, any product information which may be displayed on our On Fleek from time to time is provided to us by our Retailers. This includes (but is not limited to) Product descriptions, inclusions or exclusions, images and Product availability. We are not responsible for such information and we rely on the accuracy of the information supplied by our Retailers, including but not limited to information regarding the quality, merchantability or fitness of such Products.

(b) To the extent permitted by law, if we become aware that the information provided or displayed by a Retailer is incorrect or incomplete, we reserve the right to but are not responsible for correcting the information.

(c) Some Retailers may impose additional terms and conditions on your purchase. If applicable, please read such terms and conditions carefully before proceeding. By proceeding, you signify your agreement to abide by those additional terms and conditions.

(d) You agree and acknowledge we are not responsible for any changes, discontinuance or withdrawal of any promotion or Product offered by a Retailer, which you have been redirected to through On Fleek.

5. Ordering and payment

5.1 Prices and currency

(a) We do not charge you any fees for you using On Fleek.

(b) Unless otherwise specified, the Purchase Price for a Product advertised by a Retailer is in Australian dollars and includes GST.

5.2 Orders and Payment

Once you have selected the Retailer from whom you wish to purchase a Product, you will be redirected to that Retailer’s website.  You are responsible for paying to the Retailer the full Purchase Price plus shipping, transport or other costs for each Product you agree to buy from a Retailer as referred through On Fleek.

5.3 Relationship

You agree and acknowledge that by choosing to purchase a Product from a Retailer and paying the Purchase Price, you are not entering into any contract with us in respect of that purchase.

6. Links to Retailer and third-party websites

For your convenience, we may provide links or references to external websites or applications, including to those of Retailers. We do not control or endorse those external websites or applications, and are not responsible or Liable for the accuracy, legality, or any other aspect of the content of such websites or for any damage or injury arising in connection with your access to or reliance on such websites.

7. Intellectual Property Rights

7.1 Our Intellectual Property

(a) The Technology is protected under Australian and international copyright and other laws governing the protection of Intellectual Property Rights.

(b) Intellectual Property Rights in images, trade marks and other content in On Fleek (other than Products) are owned by us or our licensors. You must not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, create derivative works from, translate, adapt, or edit such materials.

(c) You must not use, register or attempt to register any trade marks or domain names that are derived from, substantially identical or deceptively similar to that of MGM20 or its Related Entities (as that term is defined in the Corporations Act 2001 (Cth)).

7.2 Permission to use your posts

(a) You (or your licensors) retain ownership of the content in any posts you make with On Fleek.

(b) You grant to us a perpetual, irrevocable, worldwide, royalty-free, transferable, licensable and sub-licensable right to use, copy, modify, distribute, publish and process any content that you post on On Fleek or forums controlled by us.

(c) You give us your complete and genuine consent to our use of all or any portion of any content that you post in use of On Fleek for the purposes of allowing you to use On Fleek (and including such other ancillary purposes), even if such use would otherwise be an infringement of your moral rights (as that term is defined in the Copyright Act 1968 (Cth)).

8. Application of Retailer policies

(a) Products purchased from a Retailer are subject to that Retailer’s policies and terms and conditions, including but not limited to returns, change of mind, cancellation, exchange and shipping.

(b) You acknowledge and agree we are not agents of any Retailer appearing on On Fleek and that the operations of Retailers are independent of On Fleek and are not under our control.

9. Reward

9.1 Entitlement to Reward Points

(a) If you do not return the Product to the Retailer from whom the Product was purchased, on or before the greater of:

(1) the expiration of that Retailer’s specified returns period; or

(2) 30 days,

then you may be entitled to receive Reward Points.

(b) The value of the Reward Points will be a percentage of the Purchase Price (as specified by MGM20 in its sole discretion), unless otherwise advised by MGM20 from time to time.

(c) Upon making a purchase of a Product through one of our Retailers, you will be asked to select your preferred redemption of Reward Points in one of the forms outlined in clause 2.

(d) Your Reward points will become available in your account once your purchase has satisfied the requirements of clause 1(a), and not before. You will be able to redeem the Reward Points on your account only once per Product purchased.

9.2 Claiming Reward Points

(a) At the time of your purchase you will be asked to nominate to redeem your Reward Points with On Fleek for the value calculated in accordance with clause 1(b) through one of:

(1) nominating to fund an environmentally beneficial project supported by us, including but not limited to the planting of trees for the purposes of carbon sequestration;

(2) claiming a voucher or discount code from a Retailer via On Fleek, which may be used for subsequent purchases from that Retailer. The Retailer from who you claim the voucher or discount code may or may not be the same Retailer from whom your original Product was purchased; or

(3) another option which MGM20 may make available and specify in writing from time to time.

(b) MGM20 may at any time, including after you have selected your preferred redemption but before the redemption occurs, opt to:

(1) provide further detail in writing of the Reward Points, including but not limited to information regarding the value of the Reward Points or the type of environmentally beneficial project to which your Reward Points will contribute;

(2) suspend or discontinue the supply of an Reward Points option.

(c) Reward Points which are redeemed via voucher or discount codes cannot be converted to or exchanged for money and are only redeemable for future purchases made from Retailers via On Fleek in accordance with clause 2.

(d) Once you select a Retailer with whom you wish to claim a voucher, you will not be able to reverse or change that selection.

9.3 Application of Australian Consumer Law

For the avoidance of doubt, nothing in this clause excludes or prevents you from exercising your Australian Consumer Law rights to a remedy from a Retailer, including for repair, replacement or refund.

10. Customer Service

10.1 Help with your purchase

(a) If you need assistance or have a complaint about On Fleek, please contact us by email at contact@onfleekrewards.com and we will do our best to settle it promptly and fairly.

(b) If your complaint is in relation to a Product, you should make a complaint directly to the Retailer from whom the purchase was made, and we may direct any such complaint received to the Retailer involved who may handle your complaint.

11. Disclaimer and limitation of our liability

11.1 Disclaimers

(a) You acknowledge and agree that On Fleek contains general information and may include material from many different sources. We make no representation and do not warrant that the information provided is complete, accurate or current.

(b) You agree that we provide On Fleek only, and we are not responsible or Liable to you or any third party for the actions or inactions of the Retailer or another member in relation to you or your use of On Fleek.

(c) Neither we nor any of our directors, employees, contractors or other representatives will be Liable for any Loss, damage or personal injury whatsoever which may arise out of or in connection with your use of On Fleek, to the extent permitted by law.

(d) You acknowledge and agree On Fleek makes no warranties as to the accuracy of the carbon emissions calculator (or equivalent provided on its site) with regard to the Environmental Reward or generally, and is intended as a guide only as to the carbon emissions generated in the purchase and shipping of Products.

11.2 Implied terms

(a) To the full extent permitted by law, any term which would otherwise be implied into these Terms and Conditions is excluded. However nothing in these Terms and Conditions excludes a compulsory consumer guarantee which applies under the Australian Consumer Law and which cannot be excluded, restricted or modified and as applicable to the Retailer and any Product.

(b) If any law implies or imposes terms into these Terms and Conditions which cannot be lawfully excluded, such terms will apply, save that our liability for breach of any such term will be limited in accordance with the remainder of this clause 11.

11.3 Consequential loss

To the maximum extent permitted by law, in no event will we be Liable to you (whether in contract, tort, statute or otherwise) for any Consequential Loss howsoever arising, even if we have been advised of or should have known of the possibility of such damages.

11.4 Limitation of liability

(a) Despite anything else in these Terms and Conditions, to the extent we are held Liable in connection with these Terms and Conditions (whether in contract, tort, statute or otherwise), then our cumulative Liability in the aggregate (to the fullest extent permitted by law) will be capped at AUD$100.

(b) The parties acknowledge and agree that the foregoing provisions represent a reasonable allocation of risk and that the parties would not enter into this agreement absent such provisions.

12. Termination

12.1 Termination for convenience

MGM20 may terminate the Agreement for any reason upon giving you 14 days prior written notice.

12.2 Termination for cause

MGM20 may terminate the Agreement immediately by written notice to you upon the occurrence of one of the following events:

(a) you are in breach of the Agreement and you have failed to remedy that breach within 30 days of a written notice to it from MGM20, specifying the breach and requiring it to be remedied;

(b) you are in breach of the Agreement and that breach is not capable of remedy; or

(c) an event of Exceptional Circumstances continues for 120 days from the date on which it commenced.

12.3 No prejudice of rights

Termination shall not prejudice or affect any right or action which shall have accrued or shall thereafter accrue to either party.

12.4 Consequences of Termination

Upon termination of this agreement, MGM20 will deactivate your On Fleek account.  You will no longer able to access On Fleek or redeem any existing Environmental Reward or Cash Reward under clause 9.

12.5 Survival

The following clauses survive termination of this agreement: clause 6 (Links to Retailer and third party websites), clause 7  (Intellectual Property Rights), clause 8 (Application of Retailer policies), clause 11 (Disclaimer and limitation of our liability) and this clause 12.5

13. General

13.1 No assignment

You must not assign, transfer or novate all or any part of its rights or obligations under or relating to this agreement or grant, declare, create or dispose of any right or interest in it, without the prior written consent of MGM20.

13.2 Performance

In connection with our performance of our obligations and exercise of our rights under these terms, we may (in our absolute discretion) have our obligations performed or rights exercised on our behalf by any of our affiliates and their respective agents, contractors, distributors, and service providers.

13.3 Jurisdiction

These terms will be governed by and construed in accordance with the laws of Queensland, Australia and the parties submit to the non-exclusive jurisdiction of the Courts of Queensland, Australia.

13.4 Severability

If a provision of these Terms and Conditions is ruled by a court to be illegal, invalid, unenforceable or void or in conflict with any law, it will not affect the validity or enforceability of the remaining provisions.

13.5 Waiver

The waiver or failure to require the performance of any provision herein will not be deemed to constitute a waiver of a later breach of the same or any other provision herein, and no such waiver will be effective unless in writing.

13.6 Whole agreement

This agreement is the entire agreement and understanding between the parties relating to the subject matter of these Terms and Conditions.

13.7 Notices

(a) You can give us notice under this agreement by email at <insert email address>.

(b) We can give you notice under these Terms and Conditions in a variety of ways, such as:

(1) a banner notice, post or push message on On Fleek;

(2) by email at the address you provide in your account; or

(3) any other means including text message, telephone or mail (as appropriate).

(c) You agree to keep your contact information up-to-date in your account on On Fleek, and understand that we will have no way of notifying you if your contact information is not current.

14. Definitions and interpretation

14.1 Definitions

Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Claim means, in relation to a person, any action, allegation, claim, demand, judgment, liability, proceeding, remedy, right of action or right of set-off made against the person concerned however it arises whether:

(a) it is present, unascertained, immediate, future or contingent;

(b) it is based in contract, tort, statute or otherwise; or

(c) it involves a third party or a party to this agreement.

Consequential Loss means any of the following: loss of revenue; loss of profits; loss of opportunity to make profits; loss of business; loss of business opportunity; loss of use or amenity, or loss of anticipated savings; special, exemplary or punitive damages; and any loss which does not directly and naturally flow in the normal course of events from the occurrence of the event giving rise to the liability for such loss, whether or not such loss was in the contemplation of the parties at the time of entry into this agreement, including any of the above types of loss arising from an interruption to a business or activity.

Exceptional Circumstance means a circumstance beyond the reasonable control of the parties which results in a party being unable to observe or perform on time an obligation under this agreement.  Such circumstances include:

(a) adverse changes in government regulations;

(b) any disaster or act of God, lightning strikes, atmospheric disturbances, earthquakes, floods, storms, explosions, fires and any natural disaster;

(c) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution, cyber attacks, viruses or malware, data loss as a result of the actions of a third party;

(d) strikes or industrial disputes;

(e) materials or labour shortage; and

(f) acts or omissions of any third party network providers (such as internet, telephony or power provider).

GST has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Intellectual Property Rights means all current and future registered and unregistered rights in respect of copyright, circuit layouts, designs, trade marks, know-how, confidential information, patents, inventions, plant breeder’s rights and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.

Liability means any liability, debt or obligation, whether actual, contingent or prospective, present or future, qualified or unqualified or incurred jointly or severally with any other person.

Login means your personal username and password (or other credentials) for accessing your On Fleek account.

Loss means any loss (including Consequential Loss), claims, actions, liabilities, damages, expenses, diminution in value or deficiency of any kind whether direct, indirect, consequential or otherwise.

On Fleek means the cloud-based platform accessible through the website www.onfleekrewards.com and mobile application (if any), and any related MGM20 service or tool.

Product means any product offered for sale or purchase by a Retailer which the customer may access via On Fleek.

Purchase Price means any price that you agree to pay to the Retailer to receive a Product.

Retailer means third party supplier of Products.

Reward Points are points accrued on your account for a Product purchase, which may be redeemable for value in accordance with clause 9.

Scheduled Maintenance means preventative or emergency maintenance in relation to any hardware, software, platform or communications network used, or relied upon, to provide On Fleek.

Technology means all Intellectual Property Rights created, owned or licensed by MGM20 or its licensors, including in the software, algorithms and know-how used by us (or comprised in On Fleek) and any ancillary services, tools, interfaces, application programming interfaces, extranets, computer software and any other MGM20 technology, and any products which may be developed from them.

Terms and Conditions means these terms and conditions between you and MGM20 for use of On Fleek.

14.2 Interpretation

(a) Unless the contrary intention appears, a reference in this agreement to:

(1) this agreement or another document includes any variation or replacement of it despite any change in the identity of the parties;

(2) one gender includes the others;

(3) the singular includes the plural and the plural includes the singular;

(4) a person, partnership, corporation, trust, association, joint venture, unincorporated body, government body or other entity includes any other of them;

(5) an item, recital, clause, subclause, paragraph, schedule or attachment is to an item, recital, clause, subclause, paragraph of, or schedule or attachment to, this agreement and a reference to this agreement includes any schedule or attachment;

(6) a party includes the party’s executors, administrators, successors, substitutes (including a person who becomes a party by novation) and permitted assigns;

(7) any statute, ordinance, code or other law includes regulations and other instruments under any of them and consolidations, amendments, re-enactments or replacements of any of them;

(8) money is to Australian dollars, unless otherwise stated; and

(9) a time is a reference to Brisbane time unless otherwise specified.

(b) The words include, including, such as, for example and similar expressions are not to be construed as words of limitation.

(c) Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.

(d) Headings and any table of contents or index are for convenience only and do not affect the interpretation of this agreement.

(e) A provision of this agreement must not be construed to the disadvantage of a party merely because that party or its advisers were responsible for the preparation of this agreement or the inclusion of the provision in this agreement.

14.3 Parties

(a) If a party consists of more than one person, this agreement binds each of them separately and any two or more of them jointly.

(b) An agreement, covenant, obligation, representation or warranty in favour of two or more persons is for the benefit of them jointly and each of them separately.

(c) An agreement, covenant, obligation, representation or warranty on the part of two or more persons binds them jointly and each of them separately.

Terms and conditions prepared by HopgoodGanim Lawyers.