Last Updated: 17 July 2020
IMPORTANT: YOU ACKNOWLEDGE THAT SWYSH IS A PLATFORM THAT GIVES USERS AN OPPORTUNITY TO INTERACT WITH STARS IN A FRIENDLY AND ENTERTAINING MANNER. SWYSH WILL NOT TOLERATE ANTI-SOCIAL OR INAPPROPRIATE BEHAVIOUR AND WILL TAKE APPROPRIATE ACTION IF AN OFFENSIVE REQUEST IS RECEIVED. YOU ACKNOWLEDGE AND AGREE THAT ANY VIDEO PURCHASED BY YOU WILL NOT BE USED FOR COMMERCIAL OR PROMOTIONAL PURPOSES WITHOUT THE PRIOR WRITTEN CONSENT OF SWYSH.
1. Welcome to Swysh
a. This Agreement is a contract between you (“You” or “Your”) and Swysh Pty Limited ACN 635 852 274 (“Swysh”, “We”, “Us” or “Our”), and each a "party". The User Terms apply to Your use of Our Products as a User. Any use by You of the Website as a Star will be governed by the Star Terms.
c. If You do not want to be bound by this Agreement, You must not use the Products or submit a Request.
2. Changes to Terms
a. We may amend these User Terms from time to time such as if We introduce a new Product, change functionality or as required by law. We will post the amended User Terms on our Website. Each time You purchase a Video, You will be asked to agree to the latest User Terms. Please read this Agreement carefully each time You agree to the User Terms.
b. If you do not accept an amendment made to these User Terms by Us, you cannot continue to use Our Products as a User.
c. Swysh will not change any terms and conditions for an existing purchase of a Video without obtaining Your consent. The User Terms that will apply to a purchase of a Video will be the User Terms in place at the time the purchase was made, and any additional terms where You have provided further consent(s)
3. Your Consumer Rights
a. As a consumer, You have certain rights under consumer protection legislation (“Consumer Rights”). These Consumer Rights include statutory guarantees under the Australian Consumer Law that goods will be acceptable quality, match their description and be fit for any purpose made known to the consumer, and that services will be provided with due care and skill and be reasonably fit for any specified purpose. When a statutory guarantee is breached, consumers are entitled to a range of remedies including, in some cases, damages for reasonably foreseeable losses.
b. Nothing in this agreement is intended to exclude, restrict or modify any of Your Consumer Rights, including by limiting Our liability or imposing liability on You in a manner which would be considered unfair under the relevant consumer protection laws.
4. Third Party Services
5. No warranty
a. We do not give any express warranty or guarantee as to the suitability, reliability or availability of Our Products or of the content on our Website.
b. Subject to Your Consumer Rights, We do not give any implied warranties or guarantees.
c. Except as required by law, We do not guarantee continuous, uninterrupted or secure access to Our products and We make no representations or warranties regarding the completion of the Video or the time taken for a Star to complete a Video.
d. If You are provided with Swysh account details, You are responsible for maintaining the security of these details. We will not take responsibility for unauthorised access and/or use of Your Swysh account unless we have failed to take reasonable steps to prevent such unauthorised access or use. If You detect any unauthorised access or use of Your Swysh account, please contact us immediately.
6. Swysh Videos
a. Swysh Products allow You the opportunity to submit a Request for a Video from a Star that is featured on Swysh in exchange for payment. The Request may be for You or as a gift for someone else.
b. You acknowledge and agree that Swysh may change the Website at any time, with or without notice to You, including the addition or removal of Stars, or temporarily listing Stars as unavailable.
c. Swysh will use commercially reasonable efforts to ensure that a Star broadly follows Your instructions in the Request, including using the correct names and mentioning the purpose of the Request. However, the message instructions in Your Request will only act as a guide for the Star when producing the content of the Video and You acknowledge that Videos are intended to be unscripted and original. EACH STAR HAS SOLE DISCRETION WHEN PRODUCING A VIDEO. For example, Video details such as the location, content, duration, tone and whether other participants feature will be determined by the Star. This means that a Star may not exactly follow all instructions in Your Request.
d. If a Request is accepted by a Star and the Video is produced (subject to Swysh approval), Swysh will deliver the Video to You via a link to a website to view and/or download the Video. The link will remain available for at least a period of thirty (30) days, after which You may contact Swysh to obtain access to the Video. Alternately, Swysh may (at its discretion) send the Video as a file to You directly via SMS or email. You acknowledge that You cannot select the delivery method for Your Video. PLEASE NOTE, VIDEOS MAY BE MADE PUBLICLY AVAILABLE (see clause 10 for more details).
e. The length of the Video will be determined by the Star and You acknowledge that there is no guarantee of the minimum or maximum length of a Video. As a guide only, Videos will tend to be approximately 20-30 seconds.
f. Swysh reserves the right to reject any Request in its sole discretion. If You have multiple Requests rejected, Swysh may refuse to provide You future access to the Products or take other appropriate action.
g. Swysh will donate a portion of all revenue generated from fulfilled and non-refunded Videos to some/all of its Charity Partners as outlined on the Website. You acknowledge that You do not select the charities or organisations that receives the donation from Swysh.
h. If a Star represents that all or part of his or her fee that is received by the Star will be given to a third party, other than a Charity Partner, any such arrangement is strictly between the Star and such third party. Swysh does not control, authorise or otherwise endorse any such representation and, to the extent permitted by law, shall have no liability for any loss that may result from such representation.
a. Swysh will issue a refund to You in limited circumstances, including:
i. when a Request is rejected by Swysh in Our discretion;
ii. when a Request is declined by a Star or is not sent to You within seven (7) days of submitting such Request (and You choose to cancel your Request);
iii. where Swysh determines that a Star did not adequately follow the instructions submitted in the Request or the Video is otherwise not of sufficient quality; or
iv. as otherwise determined by Swysh.
b. If a Star does not complete the Request within seven (7) days, We may, in our discretion, give You the option of extending such Request instead of receiving a refund. In such instances, You will remain eligible to receive a refund.
c. Once a Request is submitted, it cannot be cancelled or amended. Except as otherwise set out in this clause, and subject to your Consumer Rights, all Requests are non-refundable and Videos may not be returned or exchanged.
d. If Swysh approves a refund, Swysh will process such refund to the same payment method that was used to submit such Request.
e. In the event a chargeback is received by Swysh in relation to a Request, Swysh will cancel such Request without processing a refund and will be under no obligation to deliver a Video.
8. Eligibility and Swysh Rules
a. To be eligible to be a User of Swysh Products, You must:
i. Agree to comply with the User Terms at all times;
ii. Be an individual who is at least 18 years old or over 13 years old and accepting these User Terms with the supervision and consent of Your legal parent or guardian;
iii. Provide a valid email address and mobile telephone number;
iv. Have access to a form of payment that is accepted by Swysh; and
v. Not have previously been prohibited by Swysh from using the Products.
b. By accepting these User Terms, You represent and warrant that You are eligible to use Our Products. If you are a parent or legal guardian, you also agree that the statements made by Your child are accurate and will ensure your child's compliance with these User Terms.
c. You represent and warrant that You either (i) own all rights relating to any Request or other content or information provided by You to Swysh, or (ii) have all rights and consents necessary, including with respect to any third party that contributed to, is included in, or is referred to in any Request (or other content or information provided by You to Swysh), to grant to Swysh the rights listed in these User Terms including to collect, use, disclose or publish any personal information provided to Swysh as contemplated by these User Terms. You will not provide Swysh with a Request or submit any other content or information that is confidential, or You (or any third party including but not limited to intended recipients of the Video) otherwise do not wish to be disclosed, including to a Star or to be otherwise published as contemplated by these User Terms.
d. You agree to strictly comply with the following Swysh rules when using the Products. You must:
i. Only use the Products in a social, safe and friendly manner and not use a Video for any purpose that may be illegal, abusive, threatening, racist, derogatory, harmful, political, defamatory or may otherwise have a detrimental impact on the brand or reputation of Swysh, a Star or any other third party;
ii. Not provide Swysh with any information that is false, inaccurate or misleading (including, without limitation, in relation to Your personal details);
iii. Ensure any information about You that is provided to Swysh, including Your contact details, is true, current and complete;
iv. Not Request a Video that instructs or encourages a Star to produce a Video that is an Offensive Video;
v. Provide to us in a timely manner all documentation relating to Your identity, if requested by us;
vi. Not submit a Request if You have previously been removed or banned from using Swysh Products;
vii. Only use the Products for personal use and not use the Products for commercial or promotional purposes;
viii. Not resell Your rights in the Video, and may only sublicense Your rights in the Video to the extent necessary for You to use the Video as permitted under these User Terms;
ix. Not edit or tamper with any Videos, including editing the content produced by a Star, adding a logo or image to the Video or modifying or removing the Swysh watermark;
x. Not attempt to use a Request to solicit additional opportunities, experiences or any other commercial relationships with a Star;
xi. Not infringe the intellectual property rights of a third party or give rise to any liability to pay any third party;
xii. Not provide any Sensitive Information (as defined in the Definitions below) to Swysh and to the extent any other personal information is provided You will comply with these User Terms and the provision of such information is subject to clause 8(c);
xiii. Not use any technology (device, software or hardware) to interfere with, damage or disrupt the Swysh Products;
xiv. Not permit others to use Your Swysh account (if applicable), or allow anyone else to have or use Your account password details;
xv. Not use the Swysh Products for any unlawful, fraudulent or improper activity, including for any experimental, testing or research purposes or otherwise in a manner for which they have not been designed;
xvi. Co-operate with Swysh to investigate any unlawful, fraudulent, anti-social or other improper activity connected with Your use of the Swysh Products (or use under Your account); and
xvii. Otherwise comply with all relevant laws and regulations.
a. The purchase price of a Video will be unique to each Star and will be represented on the Star’s profile page on the Website when You submit Your Request. Please note, the price of a Video from a particular Star may change from time to time.
b. All prices on the Website will be shown including goods & services tax.
c. In order to submit a Request, You must use a valid payment method (as accepted by Swysh from time to time) with sufficient funds available.
d. All prices on the Website are quoted in Australian Dollars.
e. If You are eligible to receive a refund, Swysh will process such refund within a reasonable time. Please note, there may be delays in receiving Your refund based on processing times of banks and other third parties.
f. You acknowledge that any donations made to Charity Partners resulting from a purchased Video will be a donation made by Swysh and as such, Swysh (or the Charity Partners) will not provide You with a tax receipt associated with these donations.
10. Ownership of content and licenses
a. You acknowledge and agree that each Video is owned by the Star who created it.
b. After You purchase a Video, and Swysh delivers such Video to You, the Star grants to You (and any person named as the intended recipient of the Video) 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) the Video, solely in accordance with these User Terms. This license is strictly solely for Your own or the recipient's personal use and not commercial or promotional purposes. You and/ or the recipient may not resell Your and/ or their rights in the Video and may only sublicense Your and/ or their rights in the Video to the extent necessary for You or them to use the Video as permitted under these User Terms. You acknowledge that any breach of the license granted may result in harm or damage to the Star and/or Swysh. You acknowledge that the Star may enforce the terms of this license directly and/or Swysh can enforce the terms of the license as trustee for the Star.
c. Our Website allows You to submit Requests and other information to Swysh, including reviews, reaction videos or other data relating to You or a third party. When You submit, upload or send to Swysh any data, You grant to us a perpetual, non-exclusive, royalty-free, fully paid, unlimited, worldwide, sublicensable and irrevocable license to modify, reproduce, publicly display and otherwise use such data for the purposes of operating, marketing or otherwise promoting the Website and/or Products.
d. Swysh is under no obligation to publish a Video and may refuse to publish any Video in its absolute discretion.
e. If You notify Swysh that You do not want a Video purchased by You to be published, Swysh will not publish such Video and will use reasonable efforts to ensure the Video is not published by the Star who created it or any other third party.
f. 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.
g. Our Products, software, data, trademarks, logos and all content on our Website are the exclusive property of Swysh. You must not copy, imitate, modify, alter, amend or use (without our prior written consent) any URLs representing our Website, or any of our content, logos, graphics, icons or other content published on our Website or in our printed media.
a. You may stop using our Products at any time. If You have a Swysh account, You may close Your account at any time by notifying us at firstname.lastname@example.org.
b. Swysh may terminate your account at any time if Swysh no longer proposes to offer the Products. If you have made a Request and not received a Video in such circumstances, Swysh will either procure the Video for you or provide a refund of any moneys paid.
c. Swysh reserves the right to suspend or terminate Your access to Swysh Products if Swysh reasonably suspects that You have breached a term of this Agreement, Swysh may remove Your access to a Video and/or terminate the license granted under clause 10(b).
12. Limitation of Liability and Indemnity
a. To the maximum extent permitted by law, and subject at all times to Your Consumer Rights, the Website and Products are provided by Swysh on an “as is” basis and Swysh gives no undertaking or assurance in respect of the performance of the Website and Products or its reliability, accuracy, adequacy or completeness (including whether it is error free and will be continuous, uninterrupted or secure). Any material obtained through our Products, including a Video, is done at Your own risk. Further, You acknowledge that the content, representations or views expressed in any Videos are created by Stars and are not endorsed by Swysh, and to the extent permitted by law Swysh shall have no liability for any Videos that may be inaccurate, indecent or otherwise offensive.
b. To the full extent permitted by law, and subject at all times to Your Consumer Rights and clause 12(c):
(i) Your and Our liability for all claims no matter how arising whether under these User Terms or otherwise in relation to or in connection in any way with the Website or the Products, whether in contract, tort (including negligence), under statute or otherwise, will not exceed the price of the affected Requests or Videos; and
(ii) Neither party, including Swysh's related bodies corporate, employees, or directors, will be liable to the other party for indirect, special, incidental, exemplary or consequential damages, loss, expense or costs of any kind.
c. IMPORTANT: The limitations and exclusions in clause 12(b) do not apply in relation to use of a Video in breach of the User Terms or any infringement of any rights of a third party.
d. To the full extent permitted by law, a party's liability to the other party under or in connection with this Agreement in contract, tort (including negligence), 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.
e. The parties must take all reasonable steps to mitigate any loss incurred by them under this Agreement.
f. This clause 12 will continue to apply notwithstanding the termination or expiration of this Agreement.
13. Notices and Communications
a. This Agreement and any other agreements, notices or other communications regarding Your use of the Swysh Products may be provided to You electronically.
b. You agree to receive all communications from Us in electronic form. Communications will be posted on our Website (where permitted under this Agreement) and/or sent to Your email address.
c. Any notice served under these User Terms must be in legible writing and in English. All notices sent to Swysh by email shall be sent to email@example.com and all notices sent to You shall be sent to the email address provided when making a purchase or signing up to Swysh. Alternatively, notice may be given by serving it personally, sending it by post or sending it via other electronic methods of communication using contacts details provided to Swysh (including text messages).
d. You consent to Swysh using the contact details that You have provided to Us to contact You on an ongoing basis for marketing purposes whether by email, SMS, phone or otherwise (unless You have notified us that You do not wish to receive such communication). .
e. You acknowledge that We (or any third party providing services on behalf of us) may monitor or record telephone conversations or electronic communication for quality control and training purposes. Swysh does not provide any guarantee that any such monitoring or recording will be retained or retrievable.
14. General Provisions
a. Currency – all amounts referenced in and payments made under these User Terms will be in Australian dollars.
b. Disputes – if You have a complaint, please contact Us as soon as possible by emailing firstname.lastname@example.org so We can try resolve it with You. We may request additional information from You to assist us in resolving any complaints or disputes. Swysh aims to acknowledge receipt of all complaints within 5 business days and resolve all complaints within 21 business days. If We are not able to resolve the dispute, You may pursue Your rights under relevant law.
c. Governing Law – this Agreement is governed by the laws in the State of New South Wales, Australia. Each of the parties irrevocably submits to the non-exclusive jurisdiction of the courts of the State of New South Wales, Australia.
d. Further assurances - each of the parties must do all things and execute all further documents necessary to give full effect to this Agreement.
e. Entire Agreement – these User Terms replaces any and all previous executed contracts in place between the parties relating to the use of Our Products as a User.
f. Severability - if any provision of these User Terms is held to be invalid, illegal or unenforceable, the other provisions in this Agreement shall remain in full force and effect to the fullest extent permitted by law.
g. Assignment – You may not transfer or assign any rights You may have under these User Terms without Our prior written consent, not to be unreasonably withheld. We may transfer or assign these User Terms, and any rights or obligations under these User Terms, to a third party.
h. Waiver - a failure to exercise or a delay in exercising any right, power or remedy under these User Terms does not operate as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that wavier unless made in writing.
Charity Partner/s means the charities that Swysh has agreed to partner and receive periodic donations, as represented on the Website (and may change from time to time).
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.
Products means the Website, app or other platforms operated by Swysh that allows users to purchase personalised video messages from celebrities, and other associated services offered by Swysh from time to time.
Request means a purchase by a User to receive a personalised video from a Star.
Sensitive Information means information or an opinion (that is also personal information) about an individual’s racial or ethnic origin, sexual orientation, political opinions, religious beliefs or affiliations, philosophical beliefs, membership of a political association, a professional or trade association, criminal record, and includes health information about an individual.
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 Terms are the terms governing use by Stars which are made available to Stars.
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.
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.