TERMS & CONDITIONS
(a) The mobile application known as "Funlocka" and our website which enables use of Funlocka (www.funlocka.com) (together referred to as the Application) is owned and operated by Funlocka Pty Ltd (ACN 616 476 656) (us, we or our).
(b) By using the Application, you agree to comply with:
(iii) any other terms, policies or notices published on the Application.
(c) These Terms form a binding contractual agreement between you, the user of the Application (you), and us. These Terms do not form a contractual agreement with you and any other user of the Application.
(d) Before using the Application, you should read the Terms carefully. If you have any questions about the Terms, you can contact us by emailing email@example.com or by clicking the 'Contact' link on the Application.
(e) If you do not agree to the Terms, as amended from time to time, in whole or in part, you must not access or use the Application.
(a) The Application:
(i) allows brands, businesses, companies (Suppliers) to list unique, VIP and special experiences (Products);
(ii) allows employers, companies and others (Givers) to purchase Funlocka credit (FUNtimes) which can be used by themselves or allocated to another person (Receiver);
(iii) FUNtimes can then be used by a Receiver to redeem Products,
2.2 Buying FUNtimes and redeeming a Product
(a) A Giver can purchase FUNtimes by request from Funlocka.
(b) When a Giver purchases FUNtimes, he or she may choose to give the FUNtimes to a Receiver.
(c) The cost of the Products (Product Value) will be illustrated in FUNtimes.
(d) The Receiver will be provided with access to the Application to redeem their FUNtimes for a Product.
(e) A Receiver may elect to use an additional payment method to cover any shortfall in the number of FUNtimes necessary to redeem a Product and the number they hold.
(f) A Receiver who:
(i) is allocated FUNtimes by a Giver must use their FUNtimes within 3 years of the date they receive them; or
(ii) holds FUNtimes as at 1 July 2019 must use those FUNtimes within 3 years,
and any such FUNtimes that have not been utilised will expire, and will not be able to be redeemed for Products or credit.
2.3 Premium Membership
(a) A User may apply to be a “Premium Member” subject to completion and acceptance of their application and in consideration for the payment of an annual membership fee of $199 (inclusive of GST) (Premium Membership Fee), or such other fee as may be notified by Funlocka from time to time.
(b) A person who has successfully applied to be a Premium Member and who has paid the Premium Membership Fee will be a Premium Member for a period of 12 months from the date of payment (subject to renewal of their membership).
(c) Premium Members will have access to such additional Products as we determine from time to time. The range of Products available to Premium Members may be changed by us, at our sole discretion.
(d) Premium Members may, in addition to receiving FUNtimes, acquire FUNtimes:
(i) directly by credit card payment;
(ii) by requesting an invoice for FUNtimes that the Premium Member wishes to acquire (Invoice).
(e) Where (d) applies:
(i) each Invoices will attract an invoice fee of $20.00 (excl GST); and
(ii) FUNtimes will not be deemed to be acquired until payment for the FUNtimes (and the invoice fee) have been received by us.
(f) All other terms of these Terms apply to Premium Members in addition to any specific terms applicable to Premium Members.
2.4 Our role
(a) We act as an intermediary between Users and our role is limited to facilitating access to our Application. We are not a party to any contractual relationship between Users.
(b) Unless a Product is specifically supplied by Funlocka and explicitly listed as a Funlocka Product, you acknowledge that we are not a Product Supplier or provider, we do not organise, control or manage any Products and we do not own or hold any assets through which Products are provided.
(c) By accessing and using the Application, you agree and acknowledge that:
(i) we have no control of the conduct of Users of the Application, therefore your interactions with other Users (whether in person or online) and your provision or acquisition of Products is at your own risk;
(ii) we reserve the right, but are not obliged, to conduct background searches or criminal record checks on Users, to verify the identity of or assess the suitability of Users of the Application;
(iii) we do not guarantee the existence, availability, suitability or safety of the Products;
(iv) we do not determine your tax liability or collect or pay taxes you may be liable to pay as a result of or in connection with your use or provision of the Products;
(v) we are not responsible for any interactions or dealings between you and other Users;
(vi) we reserve the right, but are not obliged, to monitor, review, verify, edit, modify or delete material, content, data or information created, generated or transmitted by Users through the Application (User Content) and we do not control the accuracy of User Content; and
(vii) these Terms do not create an employment, agency, partnership or joint venture relationship between us and any User.
2.5 Accessing the Application
(a) The Application can be downloaded for free from the Apple App Store and the Google Play Store, on iPhones or Android Smartphones running the version of the applicable operating system supported by the Apple App Store and the Google Play Store, as applicable.
(b) To access the Application:
(i) you need a mobile device that supports the Application, the costs for which are your sole responsibility; and
(ii) you must create an account (Application Account).
(iii) Recipients can only create an account once invited by a Giver.
(c) To create an Application Account, you must:
(i) be at least 18 years old, or if you are between 15 and 18 years old, you must have consent from a parent or guardian;
(ii) have a Facebook account (Facebook Account) and connect your Facebook Account to your Application Account, or have an email account registered in your personal name;
(iii) complete to our satisfaction the required verification process, as determined by us in our sole discretion, which may include providing us with a form of government identification, screening your information against information held by third party owned or controlled databases and/or obtaining reports from public records;
(iv) possess the legal right and ability to enter into a legally binding agreement; and
(v) provide complete and accurate answers to all the criteria for completion in the pre-account sections of the Application.
(e) When you create your Application Account using an email address, you must nominate a username and password. You are responsible for maintaining the confidentiality and integrity of your Application Account and for all use and activity carried out on your Application Account. If you believe there has been unauthorised access to your Application Account, please contact us.
(f) The information you provide us to create your Application Account must be accurate, complete and up to date. You must update this information to ensure it remains up to date.
(g) If the information you provide to us does not confirm that you are at least 18 years of age, you will be deemed to be under 18 years of age and you will not be shown, or have access to, any material, content or Products that include alcohol or that may only be marketed or provided to a person who is at least 18 years of age.
2.6 User obligations
In addition to any other obligations under these Terms, in accessing and using the Application, you must:
(a) access and use the Application for your personal, non-commercial use only;
(b) comply with all rules of common law, principles of equity, international law or any federal, state, local laws, statutes, rules, regulations, proclamations, ordinances or by-laws and other subordinate legislation of any country anywhere in the world (collectively, Law);
(c) be respectful and courteous towards other Users;
(d) not interfere with the privacy of, harass, intimidate, act violently or inappropriate towards or be discriminatory against another User;
(e) not infringe any intellectual property rights or any other contractual or proprietary rights of another person;
(f) not do any act, engage in any practice or omit to do any act or engage in any practice that:
(i) is or could reasonably be considered obscene, illegal, offensive, inappropriate, defamatory, indecent, threatening or objectionable in any way;
(ii) would cause us to breach or to be taken to breach a Law;
(iii) would bring us into disrepute; or
(iv) interferes with the integrity or supply of the Application to all Users.
2.7 User Content
(a) You are solely responsible for User Content:
(i) you post, publish or otherwise transmit through the Application; and
(ii) you obtain through accessing the Application.
(b) User Content you create, generate or transmit in your use and access of the Application must:
(i) be accurate and complete;
(ii) not infringe any third party intellectual property rights or any other contractual or proprietary rights of a third party;
(iii) not infringe any Law; and
(iv) not be inappropriate, defamatory, offensive, abusive, indecent or disparaging.
(c) You grant us a royalty free, worldwide, perpetual, irrevocable, non-exclusive, transferable, assignable, sub-licensable licence to use, reproduce, modify, copy, store and exploit your User Content for our business or commercial purposes.
3. Intellectual property rights
(a) We own or are the licensee of all rights, title and interest (including copyright, designs, patents, trademarks and other intellectual property rights) in the Application and in or to the material (including all text, graphics, logos and software) made available to you in providing the Application (together, the Application Content).
(b) Your use and access of the Application does not grant or transfer any rights, title or interest to you in relation to the Application Content.
(c) You must not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, commercially exploit, create derivative works from, transfer, or sell any Application Content or any other material in whatever form contained within the Application.
4. Third party links
(a) The Application may contain links to websites, materials or resources operated and owned by third parties and not under our control. Those links are provided for convenience only and may not be current or maintained.
(a) We will take reasonable steps to ensure the provision of the Application is secure. However, we cannot guarantee that your access to the Application will be secure at all times.
(b) You acknowledge and agree that you are solely responsible for:
(i) the security, confidentiality and integrity of all information or data uploaded, downloaded or otherwise communicated while accessing the Application, including all your User Content;
(ii) keeping all passwords and usernames secure and confidential; and
(iii) protecting any device you use to access the Application from all security breaches and viruses (or any similar damaging components).
6. Privacy and Data Collection
(a) In consideration for us providing you the Application, you agree to us collecting personal information about you.
(b) The personal information we may collect about you includes:
(i) your name, contact details, age, gender or date of birth;
(ii) device information, IP address and standard web log on information;
(iii) your financial information;
(iv) information relating to your preferences and opinions;
(v) your photographs; and
(vi) your geolocation.
(c) We collect your personal information:
(i) to provide you and other Users optimal use of the Application;
(ii) to send you promotional and marketing information relating to our products and services and those of our partners (if you have authorised us to do so);
(iii) to provide interest and trend data to the Giver who has invited you;
(iv) for purposes reasonably necessary to our usual functions and activities, including planning, service development and research purposes; and
(d) When you have asked us to do so, we will disclose your personal information to other Users of the Application.
(e) We may also disclose your personal information to:
(i) our employees and related entities;
(ii) our business partners;
(iii) our contractors;
(iv) any third parties authorised by you; and
(v) government, regulatory authorities and any tribunal or court, if required or authorised by Law, or otherwise with your consent.
(f) We may also disclose your personal information to third parties located outside of Australia, including to organisations located in the United States.
(g) You can choose not to provide us with your personal information. However, if you do not provide us this information we cannot grant you access to the Application.
(i) how we store and use your personal information;
(ii) our overseas disclosures;
(iii) how you may access and correct your personal information;
(iv) how you can lodge a complaint regarding the handling of your personal information; and
(v) how we will handle complaints.
To the fullest extent permitted by all Laws, you acknowledge and agree that:
(a) we do not control, endorse and are not responsible for any User Content or Reviews;
(b) we retain complete control over the Application and may alter, amend or cease the operation of the Application in our sole discretion;
(c) we make no warranty or representation that any result or objective can or will be achieved or attained by accessing the Application;
(d) we make no warranty or representation that the Application will be fit for purpose, continuous, uninterrupted, accurate, fault-free, virus-free, secure or accessible at all times; and
(e) we may remove any content, material and/or information, including Reviews or User Content, without giving any explanation or justification for removing the material and/or information.
8. Exclusion and limitation of liability
(a) To the fullest extent permitted by Law, we are not liable to you or to anyone else for any direct or indirect loss or damage, including consequential loss, loss of data, reputation, goodwill and opportunity, arising out of or in connection with:
(i) personal injury or property damage;
(ii) your use or inability to use the Application;
(iii) your use of third party services (including, without limitation, Facebook and Stripe) through the Application;
(iv) the Application's User Content;
(v) the conduct of other Users of the Application; and
(vi) unauthorised creation, access or use of your personal information, Application Account or your User Content,
(vii) even if we have been advised of the possibility of such loss.
(b) To the fullest extent permitted by Law, we exclude all representations, warranties or terms (whether express or implied) other than those set out in these Terms.
(c) Pursuant to s64A of the Australian Consumer Law, this clause applies in respect of services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption. Our liability for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by ss51 to 53 of the Australian Consumer Law) is limited at our option to:
(i) the supply of the services again; or
(ii) the payment of the direct cost of having the services supplied again.
(d) Nothing in these Terms is intended to limit or exclude your consumer guarantees under the Australian Consumer Law.
(a) You must indemnify and keep indemnified us, our directors, employees, contractors and agents, Related Bodies Corporate and Related Entities as defined in the Corporations Act 2001 (Cth) (together, Indemnified Persons) from and against any loss (including reasonable legal costs and expenses) or liability incurred by any of the Indemnified Persons from any claim, demand, suit, action or proceeding by any person against any of the Indemnified Persons where such loss or liability arose directly or indirectly out of or in connection with:
(i) any breach of these Terms by you; or
(ii) breach of any right of a third party,
(b) except to the extent that the loss or liability is caused or contributed to by the act or omission of any of the Indemnified Persons.
(a) We reserve the right to cease operating the Application, without notice and for any reason. We may terminate our relationship with you without notice and with immediate effect if you, in any way, breach these Terms.
(b) On termination of these Terms:
(i) access to your Application Account will expire or cease; and
(ii) you will not have any access to User Content through the Application; and
(iii) we will remove your Application Account and its related information from the Application.
(c) We are not liable for any costs, losses or damages of any kind arising as a consequence of terminating your access to the Application.
11. Changes to the Terms
(a) We may, from time to time, amend the Terms in whole or part, in our sole discretion and without notice to you except as provided in this clause. Any changes to the Terms will be effective immediately upon the posting of the revised Terms on the Website, and you will be deemed to have agreed to such changes by continuing to use the Application.
(b) Depending on the nature of the change, we may announce the change on the Website home page or by email. However, in any event, by continuing to use the Application following any changes, you will be deemed to have agreed to such changes.
(a) If any part of these Terms is void, unlawful or unenforceable, then that part will be ineffective to the extent it is void, unlawful or unenforceable, without affecting the validity and enforceability of any remaining provisions.
(a) This Agreement is governed by the law in force in New South Wales, Australia.
(b) The parties submit to the exclusive jurisdiction of the courts of New South Wales, Australia.
14.1 Supplier's Warranties
(a) use all reasonable endeavours to ensure that all information relevant to the Products is accurate and complete;
(b) adhere to the requirements of a confirmed redemption by a Receiver;
(c) provide Receivers all details relevant to the Product at a reasonable time before a Product or voucher may expire (including but not limited to event or experience dates);
(d) not do any act, engage in any practice or omit to do any act or engage in any practice that would or could reasonably impair a Receiver's ability to redeem a Product or voucher;
(e) provide Funlocka and Users with any of their own up to date specific terms which relate to a particular Product or Products (Supplier's Terms);
(f) maintain appropriate public liability insurance for all risks associated with its business and Products; and
(g) comply with all Laws of the State or Territory in which Products are acquired.
14.2 Supplier's Terms
The Suppliers must ensure that the Supplier's Terms reflect the warranties contained at clause 14.1(a)-(d) and apply as warranties granted by Suppliers in favour of Users.
14.3 Product Fees
(a) The Supplier acknowledges that:
(i) Funlocka will hold all funds received from Givers or, where applicable, Premium Members, in exchange for FUNtimes;
(ii) No funds will be transferred to the Suppliers with respect to the Product Value of that Supplier's Products until the Products have been redeemed and the earlier of:
(A) 5 business days after the date the event/experience is due to occur or if it has an expiry date, that date (Product Date); or
(B) 5 business days after the Product has been used by the Receiver.
(a) If a Supplier offers a discount or other voucher for a Product, the Supplier must:
(i) upload the Supplier's voucher terms and conditions to the "Terms" when the Product is uploaded to the Application (Voucher Terms);
(ii) validate any voucher validly presented to the Supplier for redemption by a Receiver.
(b) The Supplier warrants that any vouchers uploaded to the Application will comply with all applicable Laws on the use of gift cards and vouchers including, without limitation, Fair Trading Act 1987 (NSW) and any corresponding legislation in other States and Territories and the Corporations Act 2001 (Cth) and Australian Consumer Law.
14.5 Cancellations and refunds
(a) The Supplier's Terms will apply with respect to all cancellation and refunds.
(b) If the Supplier's Terms do not contain terms which govern cancellations and/or refunds or are silent on certain terms the following will apply or supplement the Supplier's Terms:
(i) If a Receiver attempts to return a Product less than 5 business days before the Product Date, the Receiver will receive a refund of 50% the FUNtimes used to redeem that Product. The funds which reflect 50% of the Product Value held by Funlocka will be paid to the Supplier.
(ii) If a Receiver attempts to return a Product less than 24 hours before the Product Date, the Receiver will not receive a refund of the FUNtimes used to redeem that Product. The funds which reflect the Product Value held by Funlocka will be paid to the Supplier.
(iii) If a Supplier cancels a Product, the Receiver will be refunded the FUNtimes used to redeem that Product.
(iv) If a Supplier changes a Product Date, the Receiver may, request a refund of the FUNtimes used to redeem that Product.
(c) If any event listed in this clause occurs, we reserve the right to do any one or more of the following:
(i) publish an automated review, available to other Users, on the Supplier’s profile indicating the Supplier cancelled a Product; and/or
(ii) impose a cancellation fee.
(d) All refunds and/or payments payable under this clause will be processed by Funlocka and paid to the Supplier or Receiver (as applicable). The timing of such refunds and/or payments will depend on Funlocka’s processing times. For more information, please contact Funlocka.
(e) Any refunds handled and processed by us will be done in accordance with the Australian Consumer Law:
(i) refunds are made in our discretion subject to any guarantees that cannot be excluded under the Australian Consumer Law; and
(ii) except as required by the Australian Consumer Law, or expressly set out above, we will only facilitate a refund if we are unable to facilitate the replacement of the Product from a Supplier or, if we determine, in our absolute discretion, it is reasonable to do so.
Givers and, where applicable, Premium Members, who purchase FUNtimes:
(a) acknowledge that the Supplier may have their own Supplier's Terms for a Product or Products and/or Voucher Terms;
(b) acknowledge that they have read and fully understood the Supplier's Terms and Voucher Terms;
(c) agree to the Supplier's Terms, including, but not limited to, terms relating to:
(i) amendments to the Products;
(ii) availability of the Products;
(iii) changes relating to the Products; and
(iv) termination of the Product.
(d) agree to the Supplier's Voucher Terms;
(e) is responsible for inputting the accurate and correct details of the Receiver they intend to gift FUNtimes to into the Application;
(f) warrants that it has the permission to input relevant information for each Receiver into the Application;
(g) acknowledges that once it purchases FUNtimes, Funlocka is not responsible in any manner for the management, distribution, control or allocation of those FUNtimes;
(h) acknowledges that once it gifts FUNtimes to a Receiver, it has no further rights in relation to those FUNtimes; and
(i) if a Receiver does not use the FUNtimes for any reason whatsoever, the Giver has no claim in respect of the unused FUNtimes.
16. Givers Fees and payments
16.1 Our fee
(a) In consideration for providing the Application, we charge Givers a fee for each Receiver whose details they input into the Application.
16.2 FUNtimes Fee
(a) Funlocka will charge Givers for the value of the FUNtimes they purchase to gift to Receivers (FUNtimes Fee).
(b) Givers must pay the FUNtimes Fee at the time a Giver confirms a FUNtimes purchase on the Application.
16.3 Payment method
(a) Unless otherwise transacted directly with Funlocka using an alternative payment process at their sole discretion, all payments through the Application are processed through the payment gateway provided by Stripe. We do not have access to or store your payment information.
(b) For the avoidance of doubt, the FUNtimes Fee is transferred directly by Stripe from the Giver's Account to Funlocka's Account, less any applicable Stripe fees, in accordance with these Terms.
(a) You agree to be bound by Stripe's terms and conditions and acknowledge we are not liable for any loss (including consequential loss), claims or damages you incur in connection with your use of Stripe's services.
(b) You must ensure the financial information you provide Stripe for the purposes of acquiring or providing Products is accurate, complete and up to date. You must update this information to ensure it remains up to date.
(a) If you fail to pay any amounts due under these Terms, then we reserve the right:
(i) to charge you a payment dishonour fee; and/or
(ii) to refer the matter to a solicitor or debt collection agency.
(b) You indemnify us on an indemnity basis for any costs or fees we incur as a result of or in connection with us exercising our rights under this clause.
17.1 Receivers Acknowledgments
Receivers who elect to redeem Products acknowledge that:
(a) Receivers should not proceed to redeem their FUNtimes for Products until they have read, understood and accepted these Terms and any Supplier Terms related to those Products;
(b) if Receivers have not already agreed to these Terms, when Receivers redeem FUNtimes for a Product and tick the box that says 'I understand and accept the Terms and Conditions', they become legally bound by these Terms;
(c) the Supplier may have their own Supplier's Terms for a Product or Products and/or Vouchers;
(d) they have read and fully understood the Supplier's Terms;
(e) the Receiver agrees to the Supplier's Terms, including, but not limited to, terms relating to:
(i) amendments to the Products;
(ii) availability of the Products;
(iii) changes relating to the Products; and
(iv) termination of the Product.
(f) the Receiver agrees to the Supplier's Voucher Terms;
(g) the Receiver must only redeem FUNtimes for Products the Receivers intend to use personally;
(h) if a Receiver does not hold sufficient FUNtimes to redeem a Product, they may choose to use Stripe to pay the outstanding balance in accordance with the Terms;
(i) FUNtimes may not be transferred under any circumstances; and
(j) no Products will be redeemed for commercial purposes including but not limited to, transfer, sale or prize giveaway.
17.2 Cancellations and refunds
(a) Subject to the Supplier Terms,
(i) if a Receiver attempts to return a Product less than 5 business days before the Product Date, the Receiver will receive a refund of 50% of the FUNtimes used to redeem that Product. The funds which reflect 50% of the Product Value held by Funlocka will be paid to the Supplier.
(ii) if a Receiver attempts to return a Product less than 24 hours before the date the event/experience is due to occur or if it has an expiry date, that date (Product Date), the Receiver will not receive a refund of the FUNtimes used to redeem that Product (Product Cost). The value of the Product Cost held by Funlocka will be paid to the Supplier.
(iii) if a Supplier cancels a Product, the Receiver will be refunded the FUNtimes used to redeem that Product, and we reserve the right to do any one or more of the following:
(A) publish an automated review, available to other Users, on the Supplier’s profile indicating the Supplier cancelled a Product; and/or
(B) impose a cancellation fee.
(b) If a Supplier changes a Product Date, the Receiver may request a refund of the FUNtimes used to redeem that Product.
(a) Some of the Products on the Application may be considered dangerous.
(b) Prior to redeeming a Product or using any Product you should be aware of the risks involved.
(c) Suppliers warrant that they maintain appropriate public liability insurance for all risks associated with its business and Products.
(d) We make no warranty or representation about their business or Products whatsoever.
(e) The responsibility rests with Receivers to make independent enquiries with the Supplier or other third parties as to the need to acquire their own insurance cover.