Last Updated: 13 July 2020
Please read these terms and conditions carefully as they impose rules, obligations and other responsibilities on you in respect of the use of Swysh products. We encourage you to print and/or store a copy of these terms.
IMPORTANT: YOU ACKNOWLEDGE THAT SWYSH IS A SOCIAL PLATFORM THAT WANTS TO OFFER A SAFE AND POSITIVE USER EXPERIENCE. SWYSH WILL NOT TOLERATE ANTI-SOCIAL OR INAPPROPRIATE BEHAVIOUR AND WILL TAKE APPROPRIATE ACTION IF AN OFFENSIVE VIDEO IS RECORDED, WHICH MAY INCLUDE BUT NOT BE LIMTIED TO PERMANENT REMOVAL FROM THE PLATFORM.
1. Welcome to Swysh
2. Changes to Terms
a. Swysh may amend these Star Terms from time to time such as if We introduce a new product, change functionality or as required by law. If Swysh makes any change to these Star Terms, Swysh will notify You via email or via the Swysh App. Unless the change is material, the revised Star Terms will become effective 30 days after notice, when You consent to the change or when You accept a new Request, whichever is earlier. The revised Star Terms will not apply to any Requests that have already been accepted by You prior to notification by Swysh. If any changes materially affect the existing Star Terms, We will obtain Your express consent and such change will become effective when you consent to the change.
3. Our Relationship
4. Your Obligations
Swysh may publish the Marketing Materials on its Website and social media channels and publicise Your participation as a Star in press releases or otherwise. You acknowledge that any Marketing Material will be subject to approval by Swysh prior to publishing. If You wish to update the Marketing Materials, please notify Swysh in writing and Swysh will endeavour to change the Marketing Materials as soon as reasonably practicable.
g. You acknowledge that Swysh has a contractual relationship with its Charity Partners and that a portion of revenue generated from the sale of Videos may be directed to Charity Partners. You are not permitted to represent that the proceeds from the sale of a Video will be used in any manner inconsistent with the manner represented by Swysh. You may not state or otherwise represent that you are an ambassador, affiliate or representative of any kind of the Charity Partner/s.
h. If You wish to represent on the Website that You will direct all or some of the Fees towards a particular organisation or cause, You acknowledge that any such representation is subject to Swysh’s approval in its absolute discretion. If approved, and You represent on the Website, via a Video or otherwise, that all or a portion of Your Fees will be paid to a particular individual or entity (other than Charity Partners), You will be responsible for making any such payment, complying with any applicable laws and regulations that arise as a result of making such representation (including obtaining any necessary authorisations or licenses) and have the necessary permissions granted to use the third party’s name on our Website. You will comply with any reasonable request from Swysh for further documentation or information associated with such representation, such as proof of the distribution of funds.
5. Video Rules
e. If You complete a Video but the User is not satisfied with the Video, we will review the Video. If we determine that the general instructions of the User were not adequately followed, We may elect (at Our sole discretion) to either:
- Request that the Video be re-filmed and provided to the User for no extra cost; or
- Wholly or partially refund the customer (note, no payment will be made to You in these circumstances unless a partial refund is made, in which case you will receive a part payment).
f. The User may request that a Video be kept private. In such circumstances, Swysh will notify You and You must not publish such Video on any platform.
g. A Video should be created to fulfil the purpose as requested by the User, and not for any other purpose including the promotion of goods and services by You.
h. A video must be of sufficient quality (as approved by Swysh) and filmed using a smartphone or webcam.
i. You must only communicate in English in the Video.
j. Swysh will endeavour to ensure Users adhere to the User Terms, but Swysh cannot guarantee that Users will not breach these terms. Swysh does not assume any responsibility for a User’s breach of the User Terms.
k. Swysh does not guarantee the identity of any User who makes a Request.
6. Fees and Payment
a. You will nominate the Price to be paid by a User for a Video from You within a range determined by Swysh. You will be notified of the minimum and maximum Price on the Swysh Application Form. If you would like to change the Price, please notify Us in writing and We will change the published price as soon as reasonably practicable. We will notify You when such change becomes effective, which will be the time it is published on the Website.
b. We will pay You a Fee for each Completed Video made by You. This Fee will be nominated by You in Your Swysh Application Form, and will be either 25% or 50% of the Price, or as otherwise agreed in writing with Swysh. You may also opt not to receive a Fee. For the avoidance of doubt, no Fee will be payable for any declined or expired Request, or any Video that is refunded (see clause 5 for refunded Videos).
c. If you nominate a Fee which is less than 50%, the remaining portion (i.e. the difference between 50% and Your Fee) will be distributed to Swysh Charity Partners in accordance with the agreement between Swysh and its Charity Partners. For example, if Your Video costs $100, and You select a 50% Fee, You will receive $50 per Completed Video. However, if you selected a 25% Fee, You will receive $25 per Completed Video and the Charity Partners will receive $25 from Swysh per Completed Video.
d. You are responsible for all fees, commission, expenses or payments of any kind to any third party that You may incur in connection with becoming a Star or filming a Video.
e. Swysh will pay You Fees on a monthly basis. Swysh will initiate payment of all Fees within 14 days of the end of the calendar month. For the avoidance of doubt, the Fees will be payable for all Completed Videos in the applicable month.
f. All payments owed to You under this Agreement will be paid by bank transfer in Australian dollars to a bank account accepted by Swysh as nominated by You in the Swysh Application Form. It is Your responsibility to ensure the bank details provided are correct.
g. If Swysh believes that any fraud, violation of law or other suspicious activity is occurring on the Website, Swysh may withhold or delay making any payment associated with such suspicious activity.
7. Tax & GST
a. Swysh does not provide any accounting or tax advice. You are solely responsible for ensuring that you are compliant with all applicable tax laws and regulations. As you may be earning income from Your Use of the Products, we recommend consulting Your accountant or tax professional for guidance on Your tax obligations.
b. You acknowledge that any donations made to Charity Partners resulting from a Completed Video will be made by Swysh and as such, Swysh (or the Charity Partners) will not provide You with a tax receipt associated with these donations.
c. You acknowledge that Swysh may be required to withhold tax of 47% in certain circumstances, such as if You do not provide an ABN. This amount will be withheld from the total Fee.
d. Unless otherwise stated, all amounts specified in these Star Terms are exclusive of GST.
e. If GST is payable as a consequence of any supply made (or deemed to be made) by one party to the other in connection with these Star Terms, the party receiving the supply must pay to the party making the supply an amount equal to the GST payable in respect of the supply (" GST Amount") in addition to the Fees or other due consideration (if any) required to be paid under any other provision of these Star Terms.
f. Notwithstanding any other provision of the Star Terms, if either party is required to reimburse or indemnify the other party for any costs, expenses or other amounts, the amount to be reimbursed or indemnified must be reduced by any part which is recoverable as an input tax credit by the party which incurred it (or a representative member of that party's GST group).
g. By accepting the Star Terms, the Parties agree to the terms of the Recipient Created Tax Invoice Agreement in Schedule 1. As such, where a Star is eligible to earn Fees, Swysh will issue a Recipient Created Tax Invoice to the Star for the applicable amount.
h. Terms used in this clause (including "supply", "consideration", "representative member", "tax invoice" and "GST group") have the same meaning as defined in the GST Law.
8. Star Content and Licenses
- Our Website may allow You to upload, submit, store, send, transmit, approve, and receive content and data, including your Videos and Marketing Materials (collectively known as “ Star Content”). When you upload, submit, store, send or approve Star Content to Swysh (including via email, SMS, Whatsapp, our Website or otherwise), You grant to us a perpetual, non-exclusive, royalty-free, fully paid, unlimited, worldwide, sublicensable, and irrevocable license to modify (limited to shortening Your Star Content and/or overlaying the Swysh logo on Your Star Content), reproduce, publicly display and to use Your Star Content for the purposes of operating, marketing or otherwise promoting the Website and/or Products. You agree that such Star Content may be published on the Swysh Website and other platforms operated by Swysh (such as social media) and may, in Swysh’s sole discretion, be used or displayed alongside content, branding or images relating to other Stars or partners of Swysh.
- You grant to User and any person named as the intended recipient of the Video by the User a perpetual, non-exclusive, royalty-free, fully paid, worldwide and sublicensable license to use, reproduce, publicly display or otherwise share (including via social media channels and other third party media websites or platforms) a Video made by You, solely in accordance with the Swysh User Terms.
- All Star Content is subject to Swysh approval, and Swysh may refuse to publish or remove any Star Content in its absolute discretion.
- If we require Your assistance, including any authorisations, to remove a Video from a third-party platform where it has been used in breach of the Swysh User Terms, You agree to co-operate with Swysh to provide reasonable assistance.
- Any Star Content is non-confidential information and must not contain any information (including personal information) which should not be made available to the public.
- You represent and warrant that:
- You own all rights in Your Star Content and You have the right to grant the rights described in this Agreement;
- You have paid any fees or payments due in connection with any use of the Star Content by Swysh, Users or third parties as described in this Agreement;
- Your Star Content does not infringe the rights (including intellectual property and privacy) of any third party or give rise to any liability to pay any third party;
- Your Star Content and other use of our Website will not violate any applicable law;
- You will not, in the Star Content or otherwise, disparage Swysh or its products, services, affiliates, agents, representatives and/or employees;
- Your acceptance of these Star Terms does not violate any agreement that you may have with a third party;
- You will not create an Offensive Video;
- You will not publish any Video where Swysh notifies You that the User requests such Video remains private;
- You will not communicate with any User that You meet via the Website other than to deliver the Video;
- You will not sell, or attempt to sell, any content, merchandise or other goods or services to a User that you meet via the Website without the approval of Swysh;
- Your Star Content will be free from viruses;
- You will not add the logo or other brand of a third party to the Video without the approval of Swysh; and
- You will not remake any Video unless requested by Swysh to do so.
g. Other than as described in these Star Terms, You acknowledge that You have no rights or ownership in the Website (or other material created or published by Swysh) including any trademarks, branding or content that features on the Website (or other material created or published by Swysh).
a. Each party shall only use the other party’s confidential information to carry out the purposes of these Star Terms and shall protect the other party’s confidential information using the same degree of care it uses to protect its own confidential information. Swysh's confidential information includes the terms of this Agreement including any Swysh Application Form.
b. If either party becomes aware of a breach of this clause, it must:
i. give a notice to the other party as soon as it becomes aware of the breach; and
ii. promptly provide the other party with any information or assistance which it may reasonably request in order to minimise the loss or damage it may suffer as a result of the breach.
c. Each party may disclose confidential information if required or authorised by any law to disclose that confidential information.
d. The obligations of confidentiality set out in this clause will not apply to any information which is:
i. publically known;
ii. disclosed to the other party without restriction by a third party and without any breach of confidentiality by the third party; or
iii. which is developed independently by the other party without reliance on any of the confidential information under this Agreement.
10. Cancellation and Unavailability
a. You may cease being a Star available for Requests at any time by contacting Swysh at firstname.lastname@example.org. Swysh reserves the right to remove You from being a Star available for Requests for any reason at its sole discretion at any time by notifying You in writing.
b. In such instances, Swysh will, as soon as reasonably practicable, update its Website so that Users cannot submit new Requests or see You listed as a Star. Swysh may refund all Users who have submitted Requests but not yet received a Video, and You will not be entitled to a Fee for such Requests. These Star Terms will continue to apply to Videos that have already been sent to a User.
c. If You cease to be a Swysh Star, Swysh will, upon request, remove all Star Content relating to You from the Website as soon as reasonably practicable and will cease to make any new public use of Your Star Content. You acknowledge that any Videos created by You may still be publicly available and Swysh has no obligation to remove or restrict the use of any existing Videos.
d. If You would like to temporarily be listed as unavailable, please contact Swysh at email@example.com . Swysh reserves the right to temporarily list You as unavailable for any reason at its sole discretion on the Website by notifying You in writing. In such instances, We will change Your status so Users are unable to submit new Requests from You until you notify us that you are available or We reinstate Your availability. Swysh may refund all Users who have submitted Requests but not yet received a Video, and You will not be entitled to a Fee for such Requests. If You are temporarily listed as unavailable, You may still be featured on the Website as a Swysh Star.
e. In determining whether to temporarily list a Star as unavailable or remove a Star from the Website, Swysh may take a variety of factors into account including but not limited to demand from Users, content of reviews, time taken to complete Requests, the creation of Offensive Videos or other incidents or events unrelated to Swysh, such as allegations, legal proceedings, crime, suspensions, incidents involving the use of drugs or excessive alcohol, or other indiscretions that do not align with the values of Swysh or its Charity Partners.
11. Limitation of Liability and Indemnity
(i) in the case of services:
(A) the re-supply of the relevant services; or
(B) the payment of the cost of having the relevant services supplied again; and
(ii) in the case of goods:
(A) the replacement of the goods or the supply of equivalent goods;
(B) the repair of the goods;
(C) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(D) the payment of the cost of having the goods repaired.
e. To the maximum extent permitted by law, Swysh will have no liability for any:
i. errors, mistakes, or inaccuracies of content on the Website;
ii. personal injury or tangible property damage resulting from Your access or use of the Website, including while filming a Video other than to the extent caused by Swysh's negligence or wilful misconduct;
iii. any unauthorised access to or use of our servers, any personal information, or user data;
iv. any interruption to the Website (or for the Website not being available);
v. any bugs, viruses or trojan horses that may be transmitted on or through the Website or other forms of communication used by Swysh, such as email, Whatsapp and text message other than to the extent caused by Swysh's negligence or wilful misconduct; or
vi. any damages, losses, costs, expenses, or liabilities of any kind incurred as a result of the use of any Marketing Materials or publication of Your participation in the Products in accordance with this Agreement.
f. To the full extent permitted by law, and subject to clauses 11(a) and 11(d):
(i) Your and Our liability for all claims no matter how arising, whether in contract, tort (including negligence), or otherwise, will not exceed the lesser of $5,000 or the aggregate value of Fees that You receive during the 12 months preceding the claim giving rise to such liability. For the avoidance of doubt, this does not limit Swysh's obligations to pay You any Fees owed under these Star Terms; and
(ii) Neither party, including its related bodies corporate, will be liable to the other party for indirect, special, incidental, exemplary or consequential damages, loss, expense or costs of any kind.
g. To the full extent permitted by law, a party's liability to the other party under or in connection with this Agreement in contract (including under an indemnity), tort, negligence, strict liability in tort, under statute or otherwise is reduced to the extent, if any, to which the other party's acts or omissions cause or contribute to its own loss or damage.
h. The parties must take all reasonable steps to mitigate any loss incurred by them under this Agreement.
i. You indemnify Swysh against all liability, costs (including legal costs on an indemnity basis), expenses, loss or damage suffered or incurred by Swysh as a result of, or in connection with, any third party claim arising from a breach by You of Your obligations, and any warranties and representations made by You under this Agreement. Your obligation to indemnify Swysh pursuant to this clause is reduced to the extent that Swysh causes or contributes to any of its expenses, loss or damage.
j. This clause 11 will continue to apply notwithstanding the termination or expiration of this Agreement.
12. General Provisions
Charity Partner/s means the charities that Swysh has entered into an agreement with to become a Swysh charity partner and receive periodic donations, as represented on the Website (and may change from time to time).
Completed Video means a Video that is filmed by You and sent to a User by Swysh. A Completed Video does not include a Video where the User requests a refund which is approved by Swysh.
Fee is the amount paid by Swysh to You as outlined in clause 6.
GST means the goods and services tax as defined in the GST Law, or any other like tax imposed in Australia.
GST Law means the A New Tax System (Goods and Services Tax) Act 1999, A New Tax System (Goods and Services Administration) Act 1999, A New Tax System (Goods and Services Tax Transition) Act 1999, Taxation Administration Act 1953 and any regulations made pursuant to any of these Acts, or if any one of these Acts does not exist for any reason, any act imposing or relating to a GST and any regulation made pursuant to any such Act.
Marketing Materials means the marketing materials outlined in clause 4.
Offensive Video means a video that contains any content that is or encourages actions that are unlawful, hateful, discriminatory, defamatory, abusive, threatening, causes harm to a person or animal, racist, offensive, inappropriate, violent, infringing, nude or partially nude, pornographic, sexually suggestive, drug or alcohol related, or features any person that is under the influence of drugs or alcohol.
Price means the price of a Video made by You (inclusive of GST).
Products means the Website, app or other platforms operated by Swysh that allows Stars to connect with fans via personalised video messages or otherwise, and other associated services offered by Swysh from time to time.
Request means a purchase by a User to receive a personalised video from You.
Star or Stars means any celebrity, sports person, influencer or other individual using the Products to connect with Users, such as an athlete providing a personalised video to a fan.
Star Content means the content relating to You as outlined in clause 8.
Swysh Application Form means the form completed by the Star upon signing up to Swysh.
User or Users means individual/s using the Products to connect with a Star, such as an individual purchasing a personalised video from a celebrity.
User Terms are the terms governing use by Users which are made available on our Website.
Video means a personalised ‘selfie’ video recording made by a Star for a User.
Website means www.heyswysh.com and any other website or app operated by Swysh.
Schedule 1 – Recipient Created Tax Invoice Agreement
The purpose of this Schedule is to regulate the generation of Recipient Created Tax Invoices (“RCTIs”) by Swysh.
The Parties agree as follows:
(a) This Schedule relates to the supply by You to Swysh of services, including the provision of Star Content (“ The Supplies”);
(b) You acknowledge that Swysh relies on the information provided in Your Swysh Application Form, including Your ABN (if applicable), being true and correct;
(c) Swysh can issue tax invoices in respect of The Supplies made by You to Swysh. You will not issue tax invoices in respect of The Supplies;
(d) Unless otherwise stated, the remuneration shall be GST exclusive (if applicable) as outlined in clause 7 of the Agreement;
(e) If You notify Swysh in the Swysh Application Form that You are registered with the ATO for GST, You will notify Swysh if You cease to be registered;
(f) We acknowledge that We are registered for GST when We enter into this Agreement and that We will notify You if We cease to be registered; and
(g) You acknowledge that You have had the opportunity to seek Your own legal and tax advice prior to accepting the Star Terms and have retained a copy of this Agreement.