1. Acceptance of Terms & Conditions
1.1 This Platform is operated by Shouta Pty Ltd and its related entities or body corporates (“us”, “we” and “our”). Our Platform is located on the app stores and on the web via the domain https://www.shouta.co/ and http://www.biz.shouta.co.
1.3 Any time you visit the Platform or use any of the features on the Platform, you are taken to accept these Terms & Conditions.
1.5 These Terms & Conditions will prevail over any other terms or agreement between you and us.
2. Definitions and Interpretation
2.1 In these Terms & Conditions:
Account means the account of the shoutee, which is a prepaid Mastercard debit card topped up by the shouts.
Copyright Act means the Copyright Act 1968 (Cth) as amended from time to time.
GST has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth)
Maximum Value means the maximum value per shout by a User on the Platform cannot exceed $250.00.
Minimum Value means the minimum value per shout by a User on the Platform is $5.00.
Payment Provider means Merchant Warrior.
Platform means the websites located at https://www.shouta.co/ and http://www.biz.shouta.co, app and any service offered under the name “Shouta” and/or “Shouta Biz”.
Platform Fee means a fee of 7% of the total value of each shout (or as modified from time to time by notification on the Platform).
Shout means a gift of money made by a shouter to a shoutee.
Shouta Biz shout means a shout to one or more persons by either uploading a CSV file and/or manually inserting each shoutee with the shoutee’s name, mobile number and email address.
Shoutee means a person who is sent a shout by a shouter.
Shouter means a person who uses the Platform to send a shout to a shoutee.
Shouta Biz means the website version of the Platform where a shout is sent from http://www.biz.shouta.co.
Shouta Biz Account means the account of the shoutee, which is a prepaid Mastercard debit card topped up by the shouts, which Account is a personal account, or an Account created on behalf of a company.
Total Transaction Value means a total transaction value not exceeding $3,000.00 when using Shouta Biz, with the Minimum Value and Maximum Value applying per shout. The Total Transaction Value is only applicable to shouts sent for Shouta Biz.
Uploaded Content means any content whatsoever which you upload to the Platform, including but
not limited to any descriptions, reviews, usage data, feedback, comments, chats, media.
User means any person visiting or using on the Platform whatsoever, regardless of whether
registered or unregistered.
Warranties mean any warranties, conditions, terms, representations, statements and promises of whatever nature, whether express or implied.
We, we, us, our means Shouta Pty Ltd and its related entities or body corporates.
You or you mean any person, corporation or other body corporate, partnership, trust or association and any governmental agency and that person's personal representatives, successors, permitted assigns, substitutes, executors and administrators who uses or accesses the Platform, including any User.
2.2 In these Terms & Conditions, the following rules of interpretation apply unless the context requires otherwise:
headings are for reference purposes only and in no way define, limit or describe the scope or extent of any provision in these Terms & Conditions;
where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;
a reference to a document (including these Terms & Conditions) is a reference to that document (including any schedules and annexures) as amended, consolidated, supplemented, novated or replaced;
an expression importing a natural person includes any individual, corporation or other body corporate, partnership, trust or association and any governmental agency and that person's personal representatives, successors, permitted assigns, substitutes, executors and administrators;
a reference to writing includes any communication sent by post, facsimile or email;
a reference to time refers to time in Sydney, New South Wales and time is of the essence;
all monetary amounts are in Australian currency;
the word “month” means calendar month and the word “year” means 12 calendar months;
the meaning of general words is not limited by specific examples introduced by “include”, “includes”, "including", "for example", "in particular", “such as” or similar expressions;
a reference to a “party” is a reference to a party to these Terms & Conditions, and a reference to a “third party” is a reference to a person that is not a party to these Terms & Conditions;
a reference to any thing is a reference to the whole and each part of it;
a reference to a group of persons is a reference to all of them collectively and to each of them individually;
words in the singular include the plural and vice versa; and
a reference to one gender includes a reference to the other genders.
3. Preconditions to use
3.1 Access to and use of this Platform is subject to you being at least 18 years old and having the legal capacity to entering into binding contracts. Accordingly, should Shouta suffer any damage or other losses as a result of a transaction entered into by a minor, we reserve the right to seek compensation for such losses from the minor’s parents or guardians. We may, in our sole discretion, refuse to offer our services including the sale of a shout via our Platform to any person or entity and we may change our eligibility criteria at any time. By using the Platform you warrant the above to us. If the above conditions are not satisfied, please cease using the Platform immediately.
3.2 The Platform’s mobile app only operates on iOS 11 and higher and Android 23 and higher. Shouta Biz is operative on the most current versions of popular web browsers. If for any reason you are unable to access Shouta Biz from the Website, we recommend updating your browser.
4.1 You will be required to be a registered member to access certain features of the Platform.
4.3 We may also require you to provide additional information in order for us to meet “Know Your Client” obligations. You must comply with any such request by us.
4.4 You are responsible for keeping your account secure and are responsible for all use and activity carried out under your account. You must not share your account credentials or give access to your account with any third party. We do not authorise anyone to use the Platform on your behalf, and we will not be liable for any loss or damage arising from any kind of unauthorised activity that takes place under your account.
4.5 When You register and activate your Shouta Biz Account for the purposes of using Shouta Biz, in addition to complying with clause 4.1 to clause 4.4 above, you will need to email firstname.lastname@example.org to obtain log in details. In order for Shouta to create a Shouta Biz Account, you will be required to provide the name of the company, the company administrator email address, the ACN and/or ABN numbers pertaining to the company, and the full name, email address and mobile number of the individual responsible for using the Platform. As soon as practicable after emailing email@example.com, you will receive an authorisation number to the email address provided. Follow the prompts from the welcome email you receive from Shouta Biz and enter that authorisation number provided to you when prompted to do so to gain access to the Platform. Note that the authorisation code is valid for two (2) minutes. We may also request additional information from you, and you must reasonably comply with any such request by us.
4.6 You must not impersonate some other individual, business or company. In case you try to present yourself as another individual or company, your account may be suspended, and legal action may be taken against you.
5. Uploaded Content
5.1 Where the Platform allows you to upload any Uploaded Content, you:
represent and warrant to us that you have all right, title, interest and authority in the Uploaded Content;
represent and warrant to us that you have the permission to use the name and likeness of each person whose image appears in any Uploaded Content in the manner contemplated by these Terms;
represent and warrant to us that the use or exploitation of Uploaded Content will not infringe the rights of any third party (including, but are not limited to, intellectual property rights and privacy rights); and
agree and undertake to us to pay all amounts which become owing to any person (whether by way of royalty or otherwise) as a result of or in connection with your submission of the Uploaded Content to or via the Platform.
It is your responsibility to back up any of Uploaded Content to your own systems.
We do not guarantee that the Platform will always be available at all times.
You agree that we can store Uploaded Content in our servers.
To the maximum extent permitted by law, you release us and indemnify us from any claim or loss in relation to Uploaded Content being stored in our servers.
6. Your conduct
6.1 In using the Platform, you must:
always act courteously and politely with us and any other User;
strictly comply with any policy displayed on the Platform;
obey all laws whatsoever (including international law), and any company policy or code of conduct or related contract which may apply in respect of your use of the Platform;
not take any action that is likely to impose upon the Platform (or our servers, or the servers of our or third-party suppliers) a disproportionately large load;
not interfere with the proper working of the Platform or any activities conducted via the Platform, including by using any automated or manual software or process to "crawl", "spider"; or engage in similar conduct in relation to the Platform;
except to the extent the Copyright Act allows you to do so, not reverse engineer or otherwise seek to obtain any source code forming part of the Platform;
not to do anything or add any Uploaded Content or any Uploaded Content belonging to the User of Shouta Biz:
that may result in you, us or any other User breaching any law, regulation, rule, code or other legal obligation;
that is or could reasonably be considered to be obscene, inappropriate, defamatory, disparaging, indecent, seditious, offensive, pornographic, threatening, abusive, liable to incite racial hatred, discriminatory, profane, in breach of confidence, in breach of privacy or harassing;
that would bring us or the Platform into disrepute;
that infringes the rights of any person;
that you know (or ought reasonably to suspect) is false, misleading, untruthful or inaccurate; or
that contains or constitutes unsolicited or unauthorised advertising (including junk mail or spam).
7. General rules applying to shouts
7.1 The Platform allows Users to gift or redeem shouts.
7.2 We reserve the right to specify limits on the amount of an individual shout, the total amount of shouts made by you in a given period of time, and/or the total amount which a shoutee may hold in their Account at any given time and/or the Total Transaction Value. Such limits and Maximum Values and Minimum Values will be set out on the Platform and are subject to change from time to time at our sole discretion. We may at our sole discretion allow you to exceed such limits provided that you comply with any additional conditions set by us, including without limitation, that you provide us with “Know Your Client” information.
7.3 shouts can only be sent to shoutee’s who hold an Australian mobile number.
7.4 While we endeavour process shouts within 10 minutes of payment, we do not guarantee any processing times for shouts. It may take time for shouts to appear on a shoutee’s Account. We will not be liable for anything in connection with a Shout’s processing times.
7.5 Any Accounts or individual shouts which are not used within 3 years may be treated as expired, and we reserve the right to retain the balance of the Account or relevant shout.
7.6 You irrevocably agree that we are entitled to do all actions that we deem necessary (at our sole discretion) in order to facilitate, oversee or supervise any shout or Account. You further agree that we may reverse any shout or terminate any Account at our sole discretion for any reason, including without limitation if we determine that you or any other relevant User are in breach of these Terms & Conditions or any applicable laws, or because of any suspected fraud or error.
8. Sending shouts
8.1 A shouter must register on the Platform in order to send any shouts.
82. You must use an Australian banking institution in order to gift a shout.
8.3 Where you act as a shouter by gifting a shout through the Platform, you agree that:
you must use our Payment Provider to pay the selected shout and you agree to all of the Terms & Conditions of the Payment Provider;
you irrevocably gift the shout (including all interest and title to it) to the shoutee effective of the moment you make the relevant payment. The shout is non-refundable otherwise than in accordance with these Terms & Conditions;
the shout will be transferred to the Account of the shoutee;
you may not cancel or reverse a shout without our consent, which is at our sole discretion and on a case by case basis; and
(e) notification of the shout will be sent to the shoutee via SMS or email depending on whether the shouter is a registered User of Shouta or Shouta Biz. If you enter an incorrect number, the shout may not be received by the shoutee. You are solely responsible for entering the correct mobile telephone number of the shoutee and we exclude any liability in relation to any errors or mistakes made by you.
8.4 Shouta may in the future, require the User to create a username and password to access your Account. You will be responsible for maintaining the security of your password for this Platform, and Shouta will not be liable for any loss or damage arising from or in connection with your failure to comply with this security obligation. We will notify you when a password is required. You agree that Shouta will be entitled to assume that any person using this Platform with your username and password is you. You will be required to notify Shouta immediately of any known or suspected unauthorised use of any password or any breach of security.
9. Redeeming a shout
9.1 Shoutees must use the link sent to them to activate their Accounts in order to redeem any shouts.
9.2 If the shoutee fails to activate their Account or redeem their shout, the shouter has the option to send the shout to another shoutee, however the shouter acknowledges and agrees that the shout is not refundable.
9.3 The Account operates as a Virtual Prepaid Mastercard debit card. A shoutee may use the balance of the Account to pay for things as the shoutee sees fit (like any other virtual Mastercard debit card), irrespective of any intention of the shouter or the ‘type’ of shout chosen by the shouter.
9.4 Where you act as a shoutee by redeeming shouts through the Platform, you agree and acknowledge that:
any purchases made by you using the Account will be deducted from the Account;
any unused balance will remain in the Account as a balance;
your Account is not a credit facility - if a purchase exceeds the Account balance, you will have to pay the difference with another payment method;
your Account is a virtual card, and no physical card will be sent to you;
You may only use the Account for purchases in Australia;
You cannot “stop payment” on any transaction after it has been completed. If you have a problem with the purchase or a dispute with the merchant, you must deal directly with the merchant;
all transactions (whether by you or someone else) are your responsibility, subject to these Terms & Conditions.
9.5 If a shoutee suspects any unauthorised or fraudulent transactions using their accounts, they should contact us immediately and we may try to facilitate a chargeback, at our sole discretion. Please be aware of clause 14.2.
10.1 This clause 10 applies in relation to shouters only. Shoutees do not have to pay us any fees.
10.2 We are entitled to charge the Platform Fee each time you send a shout.
10.3 The Platform Fee is payable at the time you send a shout, as an increased amount on top of the total amount of each shout.
10.4 The Platform Fee is strictly non-refundable unless we determine otherwise, which we may do at our sole discretion and on a case-by-case basis.
10.5 We may charge handling or administration fees for any time spent by our staff or agents, and also including reimbursements for any fees charged by other financial institutions, in instances where we have to attend to your errors or mistakes, or any instances where there are insufficient funds or details are entered incorrectly.
10.6 We reserve the right to implement a new fee, or modify an existing fee (including the Platform Fee) for certain current or future features of the Platform. If we implement a new or modified fee, we will give you advanced notice such as by posting changes on our Platform or sending you an email. You agree to pay those fees and any associated taxes for your continued use of the applicable service. Unless otherwise stated, all fees and all transactions are in Australian Dollars.
10.7 Unless otherwise expressly stated, all amounts payable through your use of this Platform are expressed to be inclusive of GST. For these purposes, the term "GST" has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
11.1 For certain campaigns, promotions or contests, additional Terms & Conditions may apply. If you want to participate in such a campaign, promotion or contest, you need to agree to the relevant Terms & Conditions applicable to that campaign, promotion or contest. In case of any inconsistency between such Terms & Conditions and these Terms & Conditions, those Terms & Conditions will prevail.
11.2 Where any discounts and/or offers are made available by Shouta from time to time, you shall be entitled to use such discounts/offers to purchase your shout in accordance with these Terms & Conditions or as otherwise directed on our Platform.
11.3 Unless otherwise stated, all Promotions apply to shouts purchased for Shouta and Shouta Biz. Shouta reserves its rights to implement Promotions for Shouta Biz, which Promotions are not applicable to Shouta and vice versa.
12. Intellectual Property Rights
12.1 Except where otherwise indicated or implied by context, we are the sole owners or licensees of all intellectual property comprised in the Platform (including all intellectual property comprised in the Platform content), and nothing in these Terms & Conditions constitutes a transfer of any intellectual property rights in or related to the Platform or Platform content.
12.2 You acknowledge and agree that the Platform and the content contained therein are protected by copyright, trademarks, service marks, patents, design registrations, and other proprietary rights and laws, and you agree to comply with and maintain all copyright notices and other restrictions on content accessed on or via the Platform.
12.3 You must not do anything which breaches or otherwise interferes with our intellectual property rights or the intellectual property rights of any of its third-party licensors. You may not distribute, reproduce, publish, alter, modify or create derivative works from the Platform content without our prior written permission or the relevant third-party licensor or exploit such contents for commercial benefit.
12.4 You acknowledge and agree that damages may not be an adequate remedy for a breach of this clause 12 and that equitable or injunctive relief may be necessary.
12.5 The Shouta Mastercard is issued by EML Payment Solutions Limited ABN 30 131 436 532 AFSL 404131 pursuant to license by Mastercard Asia/Pacific Pte. Ltd. Mastercard and the
Mastercard brand mark are registered trademarks and the circles design and Tap & go are
trademarks of Mastercard International Incorporated. Apple Store, Apple Pay and iPhone are trademarks of Apple Inc., registered in the U.S. and other countries.
13. Third party sites
13.1 The Platform may contain links to websites that are owned and operated by third parties. We have no control over these external websites, which are governed by Terms & Conditions and privacy policies independent of us.
13.2 You acknowledge and agree that when you access a third-party website available via a link
contained on the Platform:
we are not liable for the content, accuracy, lawfulness, appropriateness, or any other aspect of that third-party website; and
you acknowledge and agree that to the full extent permitted by applicable law, we will not be liable for any loss or damage suffered by you or any other person as a result of or in connection with your access or use of any third-party website available via a link on the Platform.
14. Limitation of liability
14.1 To the maximum extent permitted by law, we exclude all Warranties whatsoever unless expressly stated, including but not limited to in relation to any other User of the Platform or any goods or services offered by us.
14.2 You acknowledge that when you use the Platform or the Account in any way, you do so entirely at your own risk and relying on your own enquiries and judgement. All risk of loss and title in the shout passes to the shoutee immediately upon the electronic transmission to the shoutee or to us, whichever is earlier. We exclude any liability arising in connection with you losing access to your Account or any unauthorised access to your Account. You are solely responsible for maintaining the security of your Account. Likewise, a shouter is solely responsible and liable for any activity on their registered account, and the security of their registered account.
14.3 Any shout is a gift from a shouter to a shoutee and we are not liable or responsible in any way besides facilitating the transfer of the shout.
14.4 In the event that any User’s computer system is hacked, Shouta Biz is in no way liable for any theft or loss incurred and will not refund any unauthorised transactions which occurred on the Platform.
14.5 To the extent that any law restricts our right to exclude Warranties under these Terms & Conditions, these Terms & Conditions must be read subject to those provisions and nothing in these Terms & Conditions is intended to alter or restrict the operation of such provisions. If those statutory provisions apply, notwithstanding any other provision of these Terms & Conditions, to the extent that we are entitled to do so, we limit our liability pursuant to such provisions:
in the case of goods:
the replacement of the goods or the supply of equivalent goods;
(ii) the payment of the cost of replacing the goods or of acquiring equivalent goods; and
in the case of services:
the supply of the services again; or
the payment of the cost of having the services supplied again.
14.6 Our liability arising in connection with these Terms & Conditions or the Platform is limited as follows:
we exclude all liability for consequential, special, indirect or remote loss, including loss of opportunity or business;
our total maximum total liability arising in connection with these Terms & Conditions is capped to the total amount of any Platform Fee relevant to the particular matter;
our liability is excluded to the extent that you contributed to the liability;
we exclude all liability for anything you have been aware of for longer than six months and you have not commenced a claim; and
our liability is subject to your duty to mitigate your loss.
14.7 We provide the Platform on an “as is” and on an “as available” basis without any Warranties as to continuous, uninterrupted or secure access to the Platform, that its servers are free of computer viruses, bugs or other harmful components, that defects will be corrected, or that you will not have a disruption or other difficulties in using the Platform.
14.8 In the event that we terminate the Platform or your access to the Platform pursuant to these Terms & Conditions, you release us from all liability, loss or claims suffered by you as result of or arising out of such termination.
14.9 All subclauses of this clause 14 are cumulative to one another.
15 Copyright claims
15.1 If you believe that our Platform contains any material that infringes upon any copyright that you hold or control, or that users are directed through a link on this Platform to a third party website that you believe is infringing upon any copyright that you hold or control, you may send a notification of such alleged infringement to us in writing. Such notification should identify the works that are allegedly being infringed upon and the allegedly infringing material and give particulars of the alleged infringement.
15.2 In response to such a notification, we will give a written notice of a claim of copyright infringement to the provider of the allegedly infringing material. If the provider of that material does not respond to us in writing denying the alleged infringement within 14 days after receipt of that notice, we will remove or block the allegedly infringing material as soon as is reasonably practicable. If the provider of that material responds to us in writing denying the alleged infringement, we will, as soon as is reasonably practicable, send a copy of that response to the original notifying party. If the original notifying party does not, within a further 14 days, file an action seeking a court order against the provider of the allegedly infringing material, we may restore any removed or blocked material at our discretion. If the original notifying party files such a legal action, we will remove or block the allegedly infringing material pending resolution of that legal action.
16. Release and Indemnity
16.1 To the maximum extent permitted by law, you agree to release the Released Parties from all Loss or Claims arising out of or in any way connected with any Relevant Matter. You further waive any and all rights and benefits otherwise conferred by any statutory or non- statutory law of any jurisdiction that would purport to limit the scope of a release or waiver.
16.2 To the maximum extent permitted by law, you agree to indemnify, defend and hold harmless the Released Parties from any Loss or Claims arising out of or in any way connected with any Relevant Matter.
16.3 In this clause:
Claim means a claim, action, proceeding or demand made against a person concerned, however it arises and whether it is present or future, fixed or unascertained, actual or contingent.
Loss means a damage, loss, cost, expense or liability incurred by the person concerned however arising, including without limitation penalties, fines, and interest and including those which are prospective or contingent and those the amount of which for the time being is not ascertained or ascertainable.
Released Parties means us and our officers, directors, shareholders, agents, employees, consultants, associates, affiliates, subsidiaries, related parties, related body corporates, sponsors, and other third-party partners.
Relevant Matter means anything in connection with:
any damage to person, property, personal injury or death;
your breach of these Terms & Conditions;
any matter for which we have purported to disclaim or exclude liability for under these Terms & Conditions;
your use, misuse, or abuse of the Platform; and
your breach or failure to observe any applicable law.
17.1 You acknowledge and agree that:
we may terminate your access to the Platform at any time without giving any explanation;
we may terminate these Terms & Conditions or any Booking Agreement immediately by notice to you in writing if you are deemed to breach these Terms & Conditions or associated policies in any way, in our sole discretion; and
termination of these Terms & Conditions, a Booking Agreement or your access to the Platform does not release you from any of your obligations and liabilities that may have arisen or been incurred prior to the date of such termination.
18. Refund Policy
Shouta will be notified as soon as a shout is purchased and every transaction and purchase is duly recorded by Shouta. Shouta has a strict no refund policy and will not reimburse a shouter or a shoutee for any shout for any reason whatsoever, including but not limited to, incorrect or accidental purchases.
If for any reason there is an error with your shout purchase, or you believe a shout has not been sent or received accordingly, you are required to contact Shouta for assistance.
Once a shout has been received by a shoutee, Shouta is no longer liable to the shouter.
19.1 You must not assign, sublicense or otherwise deal in any other way with any of your rights under these Terms & Conditions.
19.2 If a provision of these Terms & Conditions is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
19.3 These Terms & Conditions are governed by the laws of New South Wales and each party submits to the exclusive jurisdiction of the courts of New South Wales and all courts of appeal from there.
19.4 Any waiver of any term on these Terms & Conditions by us can only be done in express writing. Any failure on our part to enforce a term does not constitute a waiver and we reserve the right in relation to all breaches unless expressly stated otherwise.
19.5 The contents of these Terms & Conditions constitute the entire agreement between the parties and supersede any prior negotiations, representations, understandings or arrangements made between the parties regarding the subject matter of this agreement, whether orally or in writing.
19.6 Force majeure: To the maximum extent permitted by law, and without limiting any other provision of these Terms & Conditions, Shouta excludes liability for any delay in performing any of its obligations under these Terms & Conditions where such delay is caused by circumstances beyond the reasonable control of Shouta, and Shouta shall be entitled to a reasonable extension of time for the performance of such obligations.19.7
19.7 Interruptions While we will always strive to ensure our Platform we provide are operational, there are times when there could be unexpected temporary interruptions, including by way of example, maintenance, dealing with technical issues, testing, and the addition of updates to reflect changes to the law or regulatory requirements. Shouta, reserves the right, at any time to modify or discontinue, either temporarily or permanently, any functions and features of our Platform, without any liability to you.
19.8 A provision of these Terms & Conditions which can and is intended to operate after its conclusion will remain in full force and effect – including without limitation clauses 5, 12, 14, 15, 16 and all indemnities, disclaimers and releases.
19.9 We reserve the right to change these Terms & Conditions at any time without notice. Any changes to the Terms & Conditions can be viewed at https://www.shouta.co/terms
Last updated: 05 May 2021