Terms & Conditions of Use
These terms and conditions of use (“Terms”) are a binding legal agreement between you and Winboard Holdings Pty Ltd that govern your right to use the websites, applications, and other offerings from Winboard (collectively, the “Winboard Platform”). When used in these Terms, “Winboard,” “we,” “us,” or “our” refers to Winboard Holdings Pty Ltd ACN 658 734 840 with whom you are contracting.
The Winboard Platform offers the ability for asset owners and their authorised agents (“Asset Owners”) to list their available spaces (“Asset” or “Space”) for licence (“Listings”) by “Advertisers” who wish to book and advertise their (or their client’s) content on (or in) that Space (“Advertiser Content”). The period during which an Advertiser agrees to licence a space which is booked through the Platform is referred to in these Terms as the “Campaign”.
You must register an account to access and use many features of the Winboard Platform, and must keep your account information accurate. As the provider of the Winboard Platform, Winboard does not own, control, offer or manage any Listings. Winboard is not a party to the contracts entered into directly between Asset Owners and Advertisers, nor is Winboard an advertiser, advertising agency, media agency, or insurer. Winboard is not acting as an agent in any capacity for any user.
If you are an Asset Owner or Advertiser, you are responsible for understanding and complying with all laws, rules, regulations and contracts with third parties that apply to your Listing and any resultant Campaign (as applicable).
YOU ACKNOWLEDGE THAT YOUR ABILITY TO REQUEST, AND IF APPLICABLE, SOLICIT A CAMPAIGN WITH AN ADVERTISER IN CONNECTION WITH THE USE OF THE WINBOARD PLATFORM AND SERVICES DOES NOT ESTABLISH WINBOARD AS A PROVIDER OF ADVERTISING, LOGISTICS OR OTHER SERVICES.
WINBOARD IS NOT AN ADVERTISING OR MEDIA AGENCY, DOES NOT ADVERTISE FOR YOU, AND USE OF THE WINBOARD PLATFORM IS ONLY OPEN TO REGISTERED USERS OF THE WINBOARD PLATFORM AND NOT TO THE GENERAL PUBLIC.
YOU ACKNOWLEDGE THAT ASSET OWNERS ARE INDEPENDENT THIRD–PARTY PROVIDERS, AND ARE NOT ACTUAL AGENTS, APPARENT AGENTS, OSTENSIBLE AGENTS, OR EMPLOYEES OF WINBOARD IN ANY WAY.
Winboard may change these Terms from time to time. If we make changes we will provide you with notice, such as by sending you an email or updating the date at the top of these Terms. Unless we expressly state otherwise, the amended Terms will be effective immediately and your continued access to and use of the Winboard Platform will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop accessing and using the Platform.
1 LISTING ON WINBOARD
1.1 Asset Owners
As an Asset Owner, Winboard offers you the right to use the Winboard Platform to share your Spaces with our community of Advertisers - and potentially earn money doing it. It’s easy to create a Listing and you are in control of your Listing - set your price, availability, and rules for each Listing.
1.2 Contracting with Advertisers
When you accept a booking request from an Advertiser, or receive a booking confirmation through the Winboard Platform, you are entering into a contract directly with the Advertiser, and are responsible for facilitating the resultant Campaign under the terms and at the price specified in your Listing. You are also agreeing to pay applicable fees like Winboard’s service fee (and applicable taxes) for each booking. At payment, Winboard will deduct amounts you owe from your payout.
Any terms, policies or conditions that you include in any supplemental contract with Advertisers must:
(i) be consistent with these Terms and the information provided in your Listing; and
(ii) be prominently disclosed in your Listing description.
Once a booking is made and payment has completed, Winboard is not responsible for and does not provide any service through the Winboard Platform to facilitate, assist, or otherwise support the Asset Owner or the Advertiser in its delivery of the Campaign. The services offered by Winboard via the Winboard Platform do not continue beyond the point of booking and payment.
1.3 Your warranties and representations
By placing a Listing you represent and warrant to us that at all times while the Listing remains on the Platform and during any Campaign:
(i) you hold all required licences or accreditations to licence the Space made available via your Listings on the Platform;
(ii) you have authority to licence your Listings on the Platform and have the proper authorities in place required by State or Territory regulations, including any local council or town planning requirements specific to the location of your relevant Space; and
(iii) you will comply with all of your obligations set out in section 1.8 below.
Your relationship with Winboard is that of an independent individual or entity and not an employee, agent, joint venturer, or partner of Winboard, except that the Winboard Platform acts as a payment collection agent as described in these Terms. Winboard does not direct or control your Campaign, and you agree that you have complete discretion whether and when to licence a Space, at what price and on what terms to offer them.
1.5 Creating and managing your Listing
The Winboard Platform provides tools that make it easy for you to set up and manage a Listing. Your Listing must include complete and accurate information about your Space, including your price, other charges and any rules or requirements that apply to Advertisers or your Listing. You are responsible for keeping your Listing information (including calendar availability) and content (like photos) up-to-date and accurate at all times. We recommend that you obtain appropriate insurance in respect of any Campaigns that may result from your Listings and suggest you carefully review policy terms and conditions including coverage details and exclusions.
1.6 Know your legal requirements
You are responsible for understanding and complying with any laws, rules, regulations, and contracts with third parties that apply to your Listing and any Campaigns. For example:
(i) some cities may have zoning or other local laws that restrict advertising;
(ii) a licence or permit may be required to advertise in certain locations;
(iii) some landlords and leases, or homeowner and community or strata title bylaws , may restrict or prohibit advertising; and
(iv) in some places, the Campaigns you desire may be prohibited altogether.
Check your local rules to learn what rules apply to the Campaigns you would like to solicit. Information we provide regarding legal requirements is for informational purposes only and you should independently confirm your obligations. You are responsible for handling and using personal data of Advertisers and others in compliance with applicable privacy laws and these Terms. If you have questions about how local laws apply you should always seek legal advice.
1.7 Your acknowledgements
You acknowledge and agree that at all times while you maintain any Listings:
(i) you are responsible and liable for your own acts and omissions and are also responsible for the acts and omissions of anyone you allow to participate in a Campaign;
(ii) you are responsible for setting your price and establishing rules and requirements for your Listing;
(iii) you must describe any and all fees and charges in your Listing description and may not collect any additional fees or charges outside the Winboard Platform;
(iv) you must not encourage Advertisers to create third-party accounts, submit reviews, provide their contact information, or take other actions outside the Winboard Platform or seek to give effect to Campaign’s without utilising the Winboard Platform;
(v) in consideration for us granting you a right to upload Listings to the Platform and the other services we provide, you grant us an irrevocable, perpetual, world-wide royalty free licence to publish, copy, licence to other persons, use and adapt for any purpose related to our websites any content you provide to us while you have a Listing or Campaign;
(vi) we may remove or amend some or all of your Listings if you are, in our reasonable opinion, in breach of your obligations under these Terms;
(vii) you are solely responsible for the content of your Listings and any errors or omissions in you Listings – our role is simply to publish your Listings;
(viii) we will seek to provide you with continuous and fault-free operation of the Platform and the other services we provide you, however we cannot guarantee this and technological failures or delays may prevent us from doing so; and
(ix) where you or your employee or agent has provided us with your contact details, we may contact you and your employees from time to time in relation to products or services offered by us and you authorise us to do so to the extent permitted by law.
1.8 Your obligations
Your obligations to us are as follows:
(i) you will only upload a Listing to the Platform yourself or via an authorised third party who has been provided with and agreed to these Terms;
(ii) you will ensure that any statement you make to us or content or material supplied by you (including content uploaded to the Platform): is not unlawful; is not provided for an improper purpose; is not misleading or deceptive or likely to mislead or deceive; does not include information that is defamatory, fraudulent, in breach of copyright or would otherwise expose us to any liability, legal proceedings or other sanction;
(iv) you will comply with all applicable laws, including without limitation, the Competition and Consumer Act 2010 (Cth) (including the Australian Consumer Law); Corporations Act 2001 (Cth), Privacy Act 1988 (Cth), fair trading legislation, real estate agent legislation, the traffic legislation in each State and Territory and regulations thereunder, including any equivalent laws in any jurisdictions in which your Assets are located outside of Australia;
(v) you will comply with any guidelines and codes issued by your local and national body for your type of organisation;
(vi) you will ensure that you and all employees will treat our employees with courtesy at all times, and will not unnecessarily contact them or otherwise cause them distress or discomfort; and
(vii) you will ensure that your username and password for accessing any service supplied by us are kept secure at all times, and are only disclosed to persons employed by you or engaged to provide services to you and who are authorised to incur charges on your behalf.
1.9 Relationship with Advertisers
You acknowledge and agree that:
(i) your acceptance of a Campaign with an Advertiser creates a legal and direct business relationship between you and the Advertiser, to which Winboard is not a party;
(ii) any incentives, information or instructions provided directly to you by an Advertiser is offered and accepted at the discretion of you and the Advertiser only, and Winboard is not a party to such arrangements;
(iii) we are not responsible or liable for the actions or inactions of an Advertiser in relation to you, your activities, or your Assets, and that you and the Advertiser will be solely responsible for any loss suffered as a result of damage caused to your Assets or your business by an Advertiser. We recommend you obtain appropriate insurance in respect of any Campaigns that may result from your Listings and suggest you carefully review policy terms and conditions including coverage details and exclusions; and
(iv) you will have the sole responsibility for any obligations or liabilities to Advertisers or third parties that arise from one of your Listings or a Campaign to which you are a party.
2.1 Searching for Listings
You can search for an appropriate Listing using any one of a number of search fields on the Winboard Platform including criteria like the location, Asset size and type, and duration for the Campaign. You may search for multiple Assets for one broad Campaign.
When you book a Listing, you are agreeing to pay all charges for and associated with your booking including the Listing price, applicable fees like Winboard’s service fee, applicable taxes, and any other items identified during the confirmation and checkout of your booking. You are also agreeing that Winboard may charge the payment method used to book the Listing to cover Winboard’s service fee. When you receive the booking confirmation, it is your responsibility to agree the terms of that Campaign with the Asset Owner, including to seek prior approval for the Campaign artwork and design.
2.3 Payment of Campaign Fee
Your use of the Winboard Platform may result in charges to you in connection with a Campaign (payable to an Asset Owner) and for the services you receive from Winboard . Winboard will enable your payment of these amounts through the Winboard Platform. Charges will include applicable taxes where required by law.
Once you have successfully agreed the terms of a Campaign with an Asset Owner, the total amount payable for the Campaign as agreed with the Asset Owner will be deducted (using the Stripe System) at the time your Campaign is confirmed by the Asset Owner.
Winboard will collect payment of those charges from you, on the Asset Owner’s behalf as their limited payment collection agent, and payment shall be considered the same as payment made directly by you to the Asset Owner. Payment to an Asset Owner shall be considered to occur at the moment you submit payment through the Winboard Platform.
Advertisers and Asset Owners should consider section 3 (Payment) below for further information regarding the payment process and applicable terms.
2.4 Advertiser Content
You represent and warrant that:
(i) you either are the sole and exclusive owner of all Advertiser Content or you have all rights, licenses, consents and releases necessary to use the Advertiser Content;
(ii) you understand some Campaigns may not be possible in particular locations if at all, and Winboard gives no guarantee that any Listing will be suitable for a particular Campaign, or that the proposed Advertiser Content will be acceptable;
(iii) some locations may preclude advertising, and others may require particular licences; it is the responsibility of the Asset Owner and the Advertiser (and not Winboard) to ensure any such requirements are met for each particular Campaign;
(iv) the Advertiser Content will comply with the advertising code of ethics and other applicable industry standards; and
(v) neither the Advertiser Content, nor your use of such Advertiser Content in any Campaign will infringe, misappropriate or violate a third-party's intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You agree to not provide Advertiser Content that is defamatory, libellous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by Winboard in its sole discretion, whether or not such material may be protected by law.
Winboard may, but shall not be obligated to, review, monitor, and remove Advertiser Content, at Winboard's sole discretion and at any time and for any reason, without notice to you, and without any refund, if the Campaign breaches these Terms.
3.1 Campaign Fee and Winboard Service Fee
Your use of the Winboard Platform may result in charges to you for the services you receive from Winboard and/or from Asset Owners. Winboard will enable your payment of these applicable charges for services obtained through your use of the Winboard Platform. Charges will include applicable taxes where required by law.
Advertisers will be required to pay the total amount listed for a particular Campaign prior to securing the relevant Listing (“Campaign Fee”). The Campaign Fee, less Winboard’s Service Fee (and applicable taxes)) will be owed directly to Asset Owners, and Winboard will collect payment of those charges from you, on the Asset Owner’s behalf as their limited payment collection agent, and payment of the Campaign Fee shall be considered the same as payment made directly by you to the Asset Owner. Payment to an Asset Owner shall be considered to occur at the moment you submit payment through Winboard.
We also take a fee for providing the Platform (“Service Fee”) in effect from time to time. Currently the Service Fee is an amount of 10% (ten per cent) of the total Campaign Fee, excluding GST or other service charges. Winboard’s Service Fee will be automatically deducted from the Campaign Fee before it is remitted to the Asset Owner. By using the Platform you are deemed to have accepted, read and complied with the requirement to pay the Service Fee.
3.2 Stripe System
Winboard uses Stripe, Inc (“Stripe”) to process payments made through the Platform. Any credit card details and bank account details you provide are maintained by Stripe and are not accessible by Winboard.
Payment processing services for the Asset Owner on the Winboard Platform are provided by Stripe, and are subject to the Stripe Connected Account Agreement [http://stripe.com/au/connect-account/legal], which includes the Stripe Terms of Service [http://stripe.com/au/legal] (collectively, the “Stripe Services Agreement”). By agreeing to these Terms or continuing to use the Winboard Platform, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Winboard enabling payment processing services through Stripe, you agree to provide Winboard accurate and complete information about you and your business, and you authorise Winboard to share it and transaction information related to your use of the payment processing services provided by Stripe. Users should refer to Stripe’s Terms of Service [http://stripe.com/au/legal/] for information about how financial information is collected and maintained, and as to the system used by Stripe to process payments (“Stripe System”).
Winboard accepts no responsibility for any issues that are encountered by users of the Winboard Platform in connection with their payments facilitated through the Stripe System.
We are provided with a token by Stripe which we use to collect payment from you in respect of any Campaign, in accordance with these Terms.
3.3 Advertiser acknowledgements
Advertisers acknowledge that:
(vi) once you have successfully agreed the terms of a Campaign with an Asset Owner, the total amount payable for the Campaign as agreed with the Asset Owner will be deducted (using the Stripe System) at the time your Campaign is confirmed by the Asset Owner.
(vii) it is your sole responsibility to ensure that you have sufficient funds available and you indemnify us for any loss or damage we suffer as a result of you not having sufficient funds available;
(viii) payment will be processed though the Stripe System;
(ix) we will retain our Service Fee (plus any applicable GST or equivalent service taxes), once the Charges have been processed through the Stripe System; and
(x) our Service Fee is a fee payable to Winboard to secure the relevant booking and provide the Winboard Platform, and is not refundable in any circumstances other than as contemplated in these Terms.
3.4 Asset Owner acknowledgements
Asset Owners acknowledge that once an Advertiser has been charged the Campaign Fee:
(i) the Advertisers payment will be processed through the Stripe System;
(ii) the Service Fee payable to Winboard will be automatically deducted from the Campaign Fee and retained by Winboard; and
(xi) our Service Fee is a fee payable to Winboard to secure the relevant booking and provide the Winboard Platform, and is not refundable in any circumstances other than as contemplated in these Terms.
As between you and Winboard, Winboard reserves the right to establish or adjust its Service Fee and other Charges for any or all services obtained through the use of the Winboard Platform at any time. Winboard will provide Asset Owners 14 days written notice prior to changing its service fees or other Charges.
Depending on the laws of the jurisdiction where the Asset Owner or Advertiser resides, the Charges may be subject to (or may include) GST or any other equivalent service or indirect taxes that are applicable. Winboard may be required to collect and remit taxes (inclusive of GST, sales taxes, or other equivalent taxes) on the Charges. Where required, Winboard will provide the Advertiser with an invoice stating the amount of taxes charged on such Charges. If the Advertiser is entitled to an exemption from indirect taxes or their equivalent on the Charges, it must provide Winboard with required documentation and support for such exemption.
You may not:
(i) remove any copyright, trademark or other proprietary notices from any portion of the Winboard Platform or the services provided herein (“Services”);
(ii) reproduce, modify, prepare derivative works based upon, distribute, licence, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by Winboard;
(iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law;
(iv) link to, mirror or frame any portion of the Services;
(v) cause or launch any programs or scripts for the purpose of unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or
(vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.
The Winboard Platform and Services and all rights therein are and shall remain Winboard’s property. Neither these Terms nor your use of the Services convey or grant to you any rights in or related to the Services except for the limited licence granted above.
You agree that you will not use Winboard’s trademarks, service marks, or trade dress or any similar names, marks, or trade dress ("Winboard’s Marks"), aside from use incidental to your use of the Services, without express, written permission from Winboard. This prohibition on using Winboard's Marks includes, but is not limited to, use in domain names, websites, and social media accounts.
We provide the Winboard Platform and all content “as is” without warranty of any kind and we disclaim all warranties, whether express or implied. For example:
(i) we do not endorse or warrant the existence, conduct, performance, safety, quality, legality or suitability of any Asset, Advertiser, Campaign or Listing; and
(ii) we do not warrant the performance or non-interruption of the Winboard Platform.
The disclaimers in these Terms apply to the maximum extent permitted by law. If you have statutory rights or warranties we cannot disclaim, the duration of any such statutorily required rights or warranties, will be limited to the maximum extent permitted by law.
Winboard does not guarantee the quality, suitability, safety or ability of Asset Owners or Advertisers. You agree that the entire risk arising out of your use of the Services, and any service or good requested or obtained from Asset Owners or Advertisers in connection therewith, remains solely with you (as applicable), to the maximum extent permitted under applicable law.
Winboard does not control, manage or direct any Asset Owners. Asset Owners are not actual agents, apparent agents, ostensible agents, or employees of Winboard. If a dispute arises between you and or any other third party, you release Winboard from losses of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
Winboard does not control, endorse or take responsibility for any Asset Owner or Advertiser Content available on or linked to by the Listings or in connection with any Campaign.
4.4 Limitation of Liability
Winboard shall not be liable for indirect, incidental, special, exemplary, punitive, or consequential damages, including lost profits, lost data, personal injury, or property damage related to, in connection with, or otherwise resulting from any use of the Platform, Services, or as a result of any Campaign, regardless of the negligence (either active, affirmative, sole, or concurrent) of Winboard, even if Winboard has been advised of the possibility of such damages.
Winboard shall not be liable for any damages, liability or losses arising out of:
(i) your use of or reliance on the Services or your inability to access or use the Services; or
(ii) any transaction or relationship between an Advertiser and an Asset Owner, even if Winboard has been advised of the possibility of such damages.
Winboard shall not be liable for delay or failure in performance resulting from causes beyond Winboard's reasonable control. You acknowledge that Advertisers seeking Campaigns through the Winboard Platform may not be professionally licenced or permitted.
The limitations and disclaimers in this section do not purport to limit liability or alter your rights as a consumer that cannot be excluded under applicable law. Because some states or jurisdictions do not allow the exclusion of or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, Winboard’s liability shall be limited to the extent permitted by law.
You agree to indemnify and hold Winboard and its affiliates and their officers, directors, employees, and agents harmless from and against any and all actions, claims, demands, losses, liabilities, costs, damages, and expenses (including attorneys’ fees), arising out of or in connection with:
(i) your use of the Winboard Platform or Services obtained through your use of the Winboard Platform;
(ii) your breach or violation of any of these Terms;
(iii) Winboard's use of your Advertiser Content; or
(iv) your violation of the rights of any third party.
You may not assign these Terms without Winboard’s prior written approval. Winboard may assign these Terms without your consent to:
(i) a subsidiary or affiliate;
(ii) an acquirer of Winboard's equity, business or assets; or
(iii) a successor by merger.
Any purported assignment by you in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, Winboard, or any Host, as a result of these Terms or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. Winboard's failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Winboard in writing.
4.7 User Violations
(ii) you violate applicable laws, regulations, or third-party rights; or
(iii) Winboard believes it is reasonably necessary to protect Winboard, its Users, or third parties,
Winboard may, with or without prior notice:
(i) suspend or limit your access to or use of the Winboard Platform and/or your account;
(ii) suspend or remove Listings, reviews, or other content;
(iii) cancel pending or confirmed bookings; or
(iv) suspend or revoke any special status associated with your account.
4.8 Governing Law
These Terms will be interpreted in accordance with Australian Law. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded. If you are acting as an individual consumer and if mandatory statutory consumer protection regulations in your country of residence contain provisions that are more beneficial for you, such provisions shall apply irrespective of the choice of Australian law. As an individual consumer, you may bring any judicial proceedings relating to these Terms before the competent court of your place of residence or the competent court of Winboard’s place of business in Australia. If Winboard wishes to enforce any of its rights against you as a consumer, we may do so only in the courts of the jurisdiction in which you are a resident. If you are acting as a business, you agree to submit to the exclusive jurisdiction of the Australian courts.