Terms and Conditions - Wholesale Partners
- Bodymapp operates a Body Scanning System that allows people to get their body measurements taken via a mobile application available currently on selected iPhone models.
- Bodymapp and the Wholesale Partner (collectively, the “Parties”) desire to enter into a relationship under which the Wholesale Partner will provide Customers access to Bodymapp pursuant to these Terms and Conditions (“Terms”).
To begin the registration process, you must submit a complete and accurate application detailing, amongst other things, your entity, contact and payment details (“Wholesale Partner Application”). After receiving your Application, mPort (trading as Bodymapp) hereon known as Bodymapp, will evaluate the Application and notify you of whether it has been accepted or rejected. Bodymapp reserves the right to reject any Application for any reason, however please contact us if you have any questions regarding the process.
1.2 Verification and Inspection
Bodymapp may request additional information from you at any time.
1.3 Wholesale Partner Link
If your Application is approved and subject to the payment of the Wholesale Partner Fee, Bodymapp will provide you with a specified number of Wholesale Partner Codes which will allow you to sign up Customers to the Bodymapp Service. Wholesale Partner will be provided a limit of how many Active Codes can be used at any one point of time based on the Wholesale Partner Agreement
1.4 Wholesale Partner Website & Collateral
You will, at your own expense, maintain the Wholesale Partner Website and any other collateral required for the promotion and provision of Wholesale Partner Codes.
1.5 Wholesale Partner Code
An Wholesale Partner must only provide one Wholesale Partner Code for each Customer. Each Wholesale Partner Code is unique to one Customer.
1.6 Marketing Approval
Subject to clause 5 below, Bodymapp may at its discretion provide you with Materials or further information for inclusion on the Wholesale Partner Website or via the Wholesale Partner’s other marketing channels.
1.7 No Exclusivity
The arrangement between the Parties is not exclusive and Bodymapp may appoint other organisations who will perform similar Wholesale Partner services for Bodymapp.
Bodymapp will provide you with general statistics and data on the number of Wholesale Partner Codes redeemed, including number of Customers signed via the Wholesale Partner Codes.
3.1 Wholesale Partner Fee Payment
Wholesale Partner must (if applicable) pay Bodymapp a Wholesale Partner Fee in accordance with the Wholesale Partner Application signed. Wholesale Partner Fees are payable within 7 Business Days from the last day of the following month. Wholesale Partner Fees are payable either on a monthly or annual basis as per the Wholesale Partner Application.
3.2 Wholesale Partner Fee Calculation
The amount of a Wholesale Partner Fee will be calculated as agreed on the Wholesale Partner Application.
3.3 GST Exclusive
All payments made by you in accordance with these Terms and Conditions are exclusive of GST and any other taxes, levies, costs, charges or fees.
3.5 Tax Invoice
Bodymapp and the Wholesale Partner agree that:
(a) Bodymapp will issue a Tax Invoice for Wholesale Partner Fees owing to Bodymapp under these Terms;
(b) the Wholesale Partner acknowledges that it is registered for GST (if based in Australia) and that it will notify Bodymapp if it ceases to be registered;
(c) Bodymapp acknowledges that it is registered for GST and that it will notify the Wholesale Partner if it ceases to be registered for GST or if it ceases to satisfy any of the requirements necessary for it to be entitled to issue Recipient Created Tax Invoices in respect of supplies made by the Wholesale Partner under these Terms;
(d) Bodymapp indemnifies the Wholesale Partner for any liability for GST and penalty that may arise from an understatement by Bodymapp, on a tax invoice it issues, of the GST payable on any of the specified supplies received;
(e) the Partner indemnifies Bodymapp for any liability for GST and penalty that may arise from any breach or non-compliance with sub-clauses (b) or (c) above, or any act or omission that causes (directly or indirectly) Bodymapp to be in breach of its requirements under A New Tax System (Goods and Services Tax) Act 1999 (Cth); and
(f) Bodymapp agrees that it will provide a Tax Invoice at the same time as payments are deducted from the Wholesale Partner under this clause 3.
4.1 Comply with Laws
4.2 Operative Wholesale Partner Codes
The Wholesale Partner agrees to take full responsibility for ensuring the proper and continuing safekeeping of Wholesale Partner Codes. In the event that Wholesale Partner Codes are used, the Wholesale Partner Codes will be counted towards the Wholesale Partner Active Codes quota as per the Application.
The Wholesale Partner agrees not to make any representations, promises, warranties or other statements about Bodymapp, its Group Companies, or the Bodymapp Website, products, Services, or policies other than those expressly approved in writing by Bodymapp. The Wholesale Partner must not offer or give any impression to users of the Wholesale Partner Website that the Wholesale Partner is itself performing the Service or any similar services. Under no circumstances shall the Wholesale Partner Website in any way copy, resemble, or mirror the look and feel of the Bodymapp Website or give the impression that the Wholesale Partner Website is the Bodymapp Website or any part of the Bodymapp Website, including without limitation framing the Bodymapp Website in any manner.
(a) Placement of Vouchers: Wholesale Partner must not make the Wholesale Partner Codes public to the general public.
(b) Promotional Activities. You may create, publish, or distribute any advertising, marketing materials or other public communication as long as it is in line with the Marketing Materials provided by Bodymapp. In promoting Bodymapp, you agree that you will not make any representations, promises, warranties or other statements about Bodymapp or the Bodymapp Website, products, services or policies other than those expressly approved in writing by Bodymapp.
(c) Social Media. You may promote Bodymapp on social media platforms, including, but not limited to, Twitter, Facebook and Instagram (“Social Media Platforms”) only in accordance with the following guidelines:
ii. You may not run any paid advertisements on Facebook or any other Social Media Platform that utilise Bodymapp trademarks, logos or branding unless it is part of the Bodymapp Marketing Materials.
iii. You may not create a social media account in the name of Bodymapp that includes Bodymapp’s trade mark, page name, branding and/or user name.
(a) Paid Search Advertising. You must not bid on, register or purchase any keywords, search terms, AdWords, Pay-per-Click words, domain names or other identifiers that include any Protected Keywords or any misspellings or variations thereof for use in any search engine, portal, sponsored advertising service or other search service including but not limited to Google, MSN or Yahoo. “Protected Keywords” include but are not limited to Bodymapp, Bodymapp body scanner, Bodymapp, mPod.
(b) Misrepresentations. You must at all times represent yourself and the Wholesale Partner Website(s) as independent from Bodymapp and not engage in any acts or omissions that could reasonably cause confusion among end-users as to our relationship with you or any third party, including but not limited to the following:
i. mispresenting or embellishing the relationship between you and Bodymapp by stating or implying that you are formally associated with Bodymapp;
ii. offering, suggesting or giving any impression that you yourself are performing the Service offered by Bodymapp; or
iii. identifying any Wholesale Partner Website(s) as an “official site” of Bodymapp or belonging to Bodymapp or its Group Companies.
(a) Each Party (“Indemnifying Party”) indemnifies the other Party against all loss or damage of any kind that it may sustain or incur, including solicitor and own client costs, as a result, whether directly or indirectly, of any:
i. breach by the other Party of these Terms;
ii. act or omission by any of the other Party’s employees, agents or advisers which, if done or omitted to be done by the other Party, would be a breach of the other Party’s obligations under these Terms; and
iii. claim made against the other Party by a third party as the result of any representation made, or action taken or not taken, pursuant to these Terms by that Party.
(b) Notwithstanding any other provision of these Terms, in no event shall the Indemnifying Party be liable to the other Party for indirect, special, incidental, punitive or consequential loss or damage of any nature, including without limitation loss of use, loss of revenue, loss of profit, loss of income, loss of market share, loss of opportunity or loss of goodwill, whether arising in contract, tort (including negligence) or other legal theory, even if the possibility of such loss or damage is known at the time of acceptance of these Terms.
These Terms commence on the Commencement Date on the Application and continue until terminated in accordance with clause 9 below.
(a) These Terms may be terminated with or without cause by either Party providing 90 days’ written notice to the other Party, provided such notice is not effective sooner than the first anniversary of the Commencement Date.
(b) Either Party may (without prejudice to its other rights) terminate these Terms with immediate effect by notice in writing to the other Party if:
i. the other Party breaches these Terms and (in the case of a breach capable of being remedied) shall have failed, within 10 Business Days after the receipt of a request in writing, to remedy the breach (such request to contain a warning of the intention to terminate); or
ii. the other Party shall have a receiver or administrative receiver appointed over it or over any part of its undertaking or assets or shall pass a resolution for winding up (except for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if it shall enter into any voluntary arrangement with its creditors or shall become subject to an administration order or shall cease to carry on business, or anything analogous in any other jurisdiction in which it is located.
9.2 Termination consequences
Customer must pay any Wholesale Partner Fees to Bodymapp for the Term of the Agreement irrespective of whether the Codes have been used or not. Any termination of these Terms (for whatever reason) shall not affect any accrued rights or liabilities of either Party nor shall it affect the coming into force or the continuance in force of any provision of these Terms which is expressly or by implication intended to come into or continue in force on or after such termination.
(a) Each Party (“Recipient”) must, subject to clause 10(b):
i. keep confidential all Confidential Information of the other Party (“Discloser”) of which it becomes aware under or in relation to these Terms, and the Recipient and its personnel must continue to keep confidential all Confidential Information of the Discloser after termination or expiry of these Terms;
ii. use the other Party’s Confidential Information solely in accordance with, and for the purposes of these Terms;
iii. only disclose Confidential Information to its personnel who have a need to know that Confidential Information (and only to the extent that each has a need to know) in order to carry out their duties in connection with these Terms, and who have agreed to keep the Confidential Information confidential;
iv. at all times provide suitably secure storage for the other Party’s Confidential Information and must clearly mark this information as confidential;
v. treat that information with at least the same degree of care as it treats its own Confidential Information; and
vi. comply with any reasonable directions of the Discloser in respect of such Confidential Information, including any specific request made by the Discloser as to whether the Recipient may use and/or disclose that information.
(b) Clause 10(b) does not apply to the extent that:
i. a Recipient is required by law or under the rules of the relevant stock exchange to disclose the Discloser’s Confidential Information except that the Recipient must provide prompt written notice of the required disclosure to the Discloser before disclosure of that Confidential Information, to enable the Discloser to seek a protective order or otherwise prevent or contest such disclosure and notify the Party to whom the disclosure is made that the information is Confidential Information of the Discloser;
ii. the Discloser’s Confidential Information is public knowledge (and has not become public knowledge as a result of Recipient’s breach of confidentiality); and
iii. the Discloser’s Confidential Information was independently created by the Recipient (and the Recipient has evidence in writing that the information falls within this exception).
(c) This clause 10 survives termination or expiry of these Terms.
Each Party represents and warrants that:
(a) it has the skill, knowledge and judgement of best industry practices to perform the obligations under these Terms;
(b) it owns or has the right to use all intellectual property (including trademarks and logos) that it authorises the other Party to use, reproduce and display in connection with carrying out its obligations under these Terms;
(c) the negotiation, entry into and performance of these Terms does not violate, conflict with, interfere with, result in a breach of, or constitute a default under any other agreement to which it is a Party or by which it is bound or any applicable law;
(d) it possesses any license or authorization necessary in any jurisdiction to transact the business that is the subject matter of these Terms; and
(e) it is authorised to enter into these Terms, to carry out its obligations hereunder and to grant the rights herein granted.
12.1 Intellectual Property Ownership
Notwithstanding clause 12.2 below, nothing in these Terms will be deemed to grant or assign to either Party any ownership rights, license rights or interest of any kind in the other Party’s products, services or technology or in the other Party’s intellectual property including, without limitation, the names, logos, trademarks, service marks, copyrights and proprietary technology, including, any intellectual property currently used or which may be developed and used in the future.
12.2 License of Rights
Bodymapp hereby grants Wholesale Partner a revocable, non- transferable, non-sublicensable, non-assignable, non- exclusive license to use the Bodymapp trademarks, logos, and service marks for the sole purpose of carrying out its obligations under and in accordance with these Terms.
13.1 Waiver and Severability
The waiver by either Party of any default or breach of these Terms shall not constitute a waiver of any other subsequent default or breach. If any provision of these Terms is prohibited, invalid or unenforceable in any jurisdiction, that provision will, as to that jurisdiction, be ineffective to the extent of the prohibition, invalidity or unenforceability without invalidating the remaining provisions of these Terms or affecting the validity or enforceability of that provision in any other jurisdiction.
13.2 Acceptance and Modification
Please read these Terms carefully. By accepting these Terms, this signifies that you have read, understood and agreed to be bound by the Terms. We may modify the terms contained in these Terms at any time by either posting a change notice or revised agreement on the Bodymapp.com site or by sending notice of such modification to you by email to the email address provided by you on your Application. If you do not agree to any changes, you must notify us immediately.
13.4 Unauthorised or Illegal Use
If we reasonably suspect that your Application has been used for, or is going to be used for, an unauthorised, illegal or criminal purpose, you give us express authorisation to share information about you, your Application and any of your referrals with law enforcement authorities.
13.5 Disclosures and Notices
Any notice sent to Bodymapp shall be addressed to the attention of Legal Counsel.
You agree that Bodymapp can provide disclosures and notices required by law and other information about your Application to you electronically by posting it on the Bodymapp Website or by emailing it to the email address listed in your Application. You also agree that electronic disclosures and notices have the same meaning and effect as if we had provided you with paper copies. Such disclosures and notices are considered received by you within 24 hours of the time posted to the Bodymapp Website or within 24 hours of the time emailed to you unless we receive notice that the email was not delivered.
Bodymapp has implemented technical and organisational measures designed to secure information about you from accidental loss and from unauthorised access, use, alteration or disclosure. However, we cannot guarantee that unauthorised third parties will never be able to defeat those measures or use information about you for improper purposes. You acknowledge that you provide information about you at your own risk.
13.7 Limitation of Liability
Bodymapp’s total aggregate liability for damages of any kind arising from any claim in connection to these Terms shall be limited to the Wholesale Partner Fees paid to Bodymapp hereunder within the last 12 months.
13.8 Force Majeure
Neither Party shall be liable by reason of any failure of delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such Party, which may include, without limitation, denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, or labour conditions (“Force Majeure Event”). Upon a Force Majeure event, the non-performing Party will be excused from any further performance of obligations affected by the Force Majeure Event for so long as the event continues, and such Party continues to use reasonable efforts to resume performance. If a delay by either Party arising directly out of a Force Majeure Event continues for more than 30 Business Days, the other Party may, at its discretion, terminate these Terms by giving 10 Business Days’ notice to the delaying Party.
13.9 Dispute Resolution
A Party may notify the other Party in writing that a dispute has arisen. The Parties will, in the first instance, attempt to resolve the dispute, controversy, claim or allegation of breach by entering into good faith negotiations. If the Parties fail to resolve the dispute within a reasonable time, each Party shall nominate a senior officer or officers of its management to meet at any mutually agreed location to resolve the dispute. This clause does not prevent either Party from seeking urgent injunctive or urgent declaratory relief.
13.10 Governing Law and Jurisdiction
These Terms are governed by the law in force in New South Wales and the parties submit to the exclusive jurisdiction of the courts of New South Wales and all courts competent to hear appeals from the courts of New South Wales in respect of all proceedings arising in connection with these Terms.
These Terms shall be binding upon and inure to the benefit of the successors and permitted assigns of the Parties; however, no assignment shall be valid without prior written consent of both Parties (which consent shall not be unreasonably withheld). Upon such assignment, the other Party shall remain responsible for the proper performance of its obligations hereunder. Notwithstanding the above, any change in control of a Party resulting from a merger, consolidation, share transfer or asset sale will be deemed an assignment or transfer for the purposes of these Terms that requires the other Party’s notice.
13.12 Headings and Interpretation
The headings in these Terms are for the convenience of reference only and have no legal effect. In these Terms words importing the singular include the plural and vice versa and words importing gender include any other gender. The expression “person” used in these Terms shall include (without limitation) any individual, partnership, local authority, company or unincorporated association. Where the words include(s), including or in particular are used in these Terms, they are deemed to have the words without limitation following them. Where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them. Any obligation in these Terms on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
13.13 Entire Agreement
These Terms contain the entire agreement between the parties in relation to this subject matter.
Nothing in these Terms constitutes a relationship of employer and employee, principal and agent, partnership or joint venture between the Parties and neither Party shall be authorised to assume or create or attempt to assume or create, directly or indirectly, any obligation on behalf of, or in the name of the other Party.
In these Terms, unless the context otherwise requires, the following words have these meanings:
“Active Code” is a Referral code that allows a Customer to have access to a Bodymapp Plan currently
“Application” has the meaning given to that term in clause 1.1.
“Wholesale Partner Codes” means the codes supplied by Bodymapp to enable a Customer to sign up to Bodymapp plan
“Business Day” means a day that is not a Saturday, Sunday or a public holiday (including bank holidays) in New South Wales, Australia.
“Commencement Date” means the date listed on the cover page of these Terms.
“Confidential Information” means, in relation to a Party, information about that Party or its business or affairs that is by its nature confidential; is reasonably designated by that Party as confidential; or the other Party knows or ought to know is confidential, and includes:
i. the terms of these Terms;
ii. the services to be provided by either Party and any Referral Fees to be paid under or in connection with these Terms; and
iii. any data, business plans, customer strategies, marketing information, sales information, quality procedures, production techniques, new product ideas, intellectual property rights, trade secrets, formulas, processes, dealings, know-how, designs, plans, research data, or financial information.
“Customer” means either (as applicable):
i. a person who has signed up via an Wholesale Partner Code provided by Bodymapp to the Referring Party
“Indemnifying Party” has the meaning given to that phrase in clause 5(a) above.
“Group Company” means any person or entity controlling (directly or indirectly), controlled by or under common control with either Bodymapp or the Wholesale Partner and for the purposes of this definition, “control” shall mean direct or indirect beneficial ownership of 50% or more of the share capital, stock or other participating interest carrying the right to vote or to distribution of profits of such entity.
“GST” means any tax imposed on the supply of goods or services which is imposed or assessed under A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended) and all related ancillary legislation.
“Marketing Materials” means any advertising or other materials or information of any kind provided to the Wholesale Partner by Bodymapp including for publication on the Wholesale Partner Website, and shall be taken to include any trademarks, registered or unregistered, owned by Bodymapp.
“Bodymapp”, “us” or “we” means mPort Limited ABN 160 626 086 (trading as “Bodymapp”).
“Bodymapp Website” means the website operated by Bodymapp at https://www.bodymapp.com, or any other site operated by or on behalf of us or our Group Companies.
“Parties” has the meaning given to that term in Recital B, and “Party” means any one of them.
“Protected Keywords” has the meaning given to that phrase in clause 6(a) above.
“Qualifying Transaction” means a transaction occurred by a Customer which meets the following criteria:
i. the Customer used an Wholesale Partner Code provided by Bodymapp to sign up to a Bodymapp plan, irrespective of whether the Customer has completed a scan.
“Recipient Created Tax Invoices” has the meaning given to that phrase in clause 3.5(a) above.
“Wholesale Partner Fee” means the fee calculated in accordance with clause 3.2.
“Wholesale Partner”, “you” and “your” means the applicant and includes its Group Companies (if applicable).
“Wholesale Partner Link” means the link from the Wholesale Partner Website to the Bodymapp Website using the URL String.
“Wholesale Partner Website” means the website(s) operated by the Wholesale Partner.
“Service” means the body scanning service provided by Bodymapp.
“Social Media Platforms” has the meaning given to that phrase in clause 5(c) above.
“Terms” means these Terms and Conditions.