1. Accepting These Terms
When these Terms of Service (Terms) use the terms "Nominate," "we," "us," or "our," that refers to Nominate Pty Ltd and its affiliates and subsidiaries, and each of its and their respective officers, directors, agents, partners and employees.
(a) If you use our Services, you will be referred to as "user" or "you" in these Terms and are contracting with Nominate Pty Ltd of 30 Milbong Rd, Milbong, QLD, Australia.
(b) If you are an Event Organiser, Club Administrator, or Peak Sporting Body, the Nominate Merchant Agreement and Refund Policy Requirements are also applicable to you.
(c) These Terms are a legally binding agreement between you and Nominate governing your access to and use of the services that we provide as specified on our website and in these Terms and nominated by you when you establish your account with us ("Services"). These Terms set out your rights and responsibilities when you use the Services. By using any of our Services (including browsing our website), you are agreeing to these Terms. If you do not agree to these Terms, you must not use or access the Services. If you will be using the Services on behalf of an entity (such as on behalf of your employer), you agree to these Terms on behalf of that entity and its affiliates and you represent that you have the authority to do so. In such case, "you" and "your" will refer to that entity as well as yourself.
2. Nominate Services and Role
2.1 Nominate Services
Our Services provide a means for users to enter events run by event organisers, members to join clubs, members to join peak sporting bodies, register horses, and for users to purchase tickets to attend events.
2.2 Events
Nominate is not the creator, organiser or owner of the events listed on the Services. Rather, Nominate provides its Services, which allow event organisers to manage and promote their events. The event organiser is solely responsible for ensuring that any page displaying an event on the Services (and the event itself) meet all applicable local, state, national and other laws, rules and regulations. Nominate also acts as the event organiser's limited agent solely for the purpose of using our third-party payment service providers to collect payments made by consumers onthe Services and passing such payments to the event organiser.
2.3 Fee
Nominate charges a fee for the provision of the Services and the organiser is responsible for payment of this fee. The fee we charge will be notified to you when you establish your account with us. The organiser is liable for payment of this fee regardless of whether the event goes ahead or not. Nominate may choose to waive this fee at its sole discretion. If a credit or debit card provider reverses a transaction made on a debit or credit card used to pay our fee and charges us for that amount ("Chargeback"), we reserve the right to pass that Chargeback onto you or the organiser.
2.4 Memberships and Horse Registrations
Nominate is not in any way associated with the clubs and peak sporting bodies that utilise Nominate's Services. Rather, Nominate provides its Services, which allow organisations to manage memberships, horse registrations and results. These organisations are solely responsible for ensuring that any page displaying membership information on the Services (and the membership itself) meet all applicable local, state, national and other laws, rules and regulations. Nominate also acts as the organisation limited agent solely for the purpose of using our third-party payment service providers to collect payments made by consumers on the Services and passing such payments to the organisation. Nominate charges a fee for the provision of this service and the organisation is responsible for payment of this fee.
3. Privacy and Consumer Information
We know your personal information is important to you and it is important to Nominate too. Information provided to Nominate by Users or collected by Nominate, is governed by our Privacy Policy which can be found at this link: https://nominate.com.au/Privacy.aspx
4. Termination
(a) These Terms apply to you as soon as you access the Services by any means and continue in effect until they are terminated.
(b) There may come a time where either you or Nominate decides it's best to part ways and end access to the Services in the manner described in Sections 4(c)or 4(d)below. When that happens, these Terms will generally no longer apply. However, as described in Section 4(e), certain provisions will always remain applicable to both you and Nominate and survive termination.
(c) Nominate may terminate your right to use the Services:
(i) if you breach these Terms and fail to remedy that breach within 7 days;
(ii) if you misuse or abuse the Services in such a way that causes us loss or damage or harms our reputation, or use the Services in a way not intended or permitted by Nominate;
(iii) if allowing you to access and use the Services would place us in breach or potential breach of any applicable local, state, national and other laws, rules and regulations or would expose Nominate to legal liability. In such a case, we may choose to stop offering the Services, or any particular portion of the Services, or modify or replace any aspect of the Services. We will provide you with a minimum of 14 days prior notice of our election to terminate your access to the Services or tomodify or replace the Services.You may end your access to the Services if you do not agree with the modifications or replacements we have made to the Services as notified to you. Subject to applicable consumer protection laws which cannot be excluded, you agree that Nominate will not be liable to you or any third-party as a result of its termination of your right to use or otherwise access the Services; or
(iv) you are the subject of any form of insolvency or bankruptcy event.
(d) Except to the extent you have agreed otherwise in a separate written agreement between you and Nominate, you may immediately terminate your access to the Services and the general applicability of Terms at any time by deleting your account. If you are using the Services without a registered account, you may end the application of these Terms by permanently ceasing all access to the Services. So long as you continue to access the Services, even without an account, these Terms will remain in full force and effect and govern your use of the Services. If there is a separate agreement between you and Nominate governing your use of the Services and that agreement terminates or expires, these Terms (as unmodified by such agreement) will govern your use of the Services after such termination or expiration.
(e) All provisions of these Terms that by their nature should survive termination of these Terms will survive (including, without limitation, all limitations on liability, releases, indemnification obligations, disclaimers of warranties, dispute resolution, choices of law and judicial forum and intellectual property protections and licenses).
5. Limitation of liability
5.1 Liability cap
To the fullest extent permitted by law, Nominate's liability arising out of these Terms and the Services, whether under common law, the law of contract, tort (including negligence), in equity, pursuant to statute or otherwise, will be limited to the fees paid by you to Nominate during the period you accessed the Services.
5.2 Exclusion of warranties
(a) To the fullest extent permitted by law, Nominate expressly disclaims all implied warranties and conditions, including without limitation implied warranties as to merchantability and fitness for purpose of the Services.
(b) You expressly agree that Nominate makes no warranty that:
(i) the Services (or any portion of the Services) will meet your requirements or expectations;
(ii) the Services will be uninterrupted, timely, secure, or error-free; or
(iii) the results that may be obtained from the use of the Services will be accurate or reliable.
5.3 Exclusion of consequential loss
To the fullest extent permitted by law, Nominate excludes all liability for indirect or consequential loss including without limitation the loss or corruption of software, loss of revenue, loss of profits, loss of data, failure to realise expected profits or savings and any other commercial or economic loss of any kind arising from these Terms or the Services.
5.4 Competition and Consumer Act
To the extent that any liability of Nominate under the Competition and Consumer Act 2010 (Cth) cannot be excluded, Nominate’sliability is limited to either:
(a) supplying the Services again;
(b) paying for the cost of having the Services supplied again; or
(c) refunding the fees paid by you to Nominate during the period you accessed the Services.
6. Your Acknowledgments and Assumption of Risks
(a) We strive to provide Services in the way you need them, but there are some things it is important for you to understand that we cannot promise.
(b) To the extent permitted by the Competition and Consumer Act 2010, the Services are provided on an "as is" and "as available" basis.
(c) Nominate uses commercially reasonable efforts to ensure that the Services are available without interruptions and transmissions are error-free. However, by the nature of the Internet, this cannot be guaranteed. In addition, Nominate may take some or all of the Services down for planned repair or maintenance from time to time. Nominate will use commercially reasonable efforts to notify you prior to such planned repairs or maintenance.
(d) Nominate does not assume any responsibility for the content, products, services, actions or inactions of any user or third party before, during and/or after an event. You acknowledge that Nominate has no control over and does not guarantee the quality, safety or legality of events advertised, the truth or accuracy of any users’ (including attendees’, other non-organisers’ and organisers’) content or listings, or the ability of any user (including attendees and organisers) to perform or actually complete a transaction and Nominate is not affiliated with, and has no agency or employment relationship with, any third party service provider used in conjunction with the Services, and Nominate has no responsibility for the acts or omissions of any such third party. However, Nominate wants its customers to report any such misconduct in connection with the Services by contacting us.
(e) You acknowledge that Nominate has no control over and does not guarantee the quality, safety, accuracy or legality of any event or content or information associated with an event, the truth or accuracy of any information provided by users (including the consumer's personal information shared with organisers in connection with events) or the ability of any user to perform or actually complete a transaction. Nominate has no responsibility to you for, and hereby disclaims all liability arising from, the acts or omissions of any third parties Nominate requires to provide the Services or an organiser chooses to assist with an event.
(f) You understand and agree that some events may carry inherent risk, and by participating in those events, you choose to assume those risks voluntarily. For example, some events may carry risk of illness, bodily injury, disability, or death, and you freely and wilfully assume those risks by choosing to participate in those events.
7. Indemnity
(a) You indemnify and hold harmless Nominate and promise to keep Nominate indemnified against anyloss or liability that Nominate suffers as a result of:
(i) any breach of these Terms by you or your employees, agents or contractors; or
(ii) any unauthorised use of Nominate'ssoftware or confidential information by you or your employees, agents or contractors.
(b) Your liability to indemnity Nominate under clause 7(a)will be reduced proportionally to the extent (if any) that the loss or liability suffered by Nominate was caused by the negligent act or omission of Nominate.
8. Dispute resolution
8.1 Disputes
A party must not commence court proceedings or arbitration relating to any dispute arising from these Terms or the Services ("Dispute") without first complying with this clause, except:
(a) where a party seeks urgent interlocutory relief;
(b) where the Dispute relates to compliance with this clause; or
(c) where a provision in these Terms specifies a particular dispute resolution technique.
8.2 Notice of dispute
(a) A party claiming that a Dispute has arisen must give written notice of the details of the Dispute to the other party or parties in dispute.
(b) Each party that has given or received notice of the Dispute under this clause must promptly:
(i) designate as its representative in negotiations relating to the Dispute a person with authority to settle the Dispute; and
(ii) use its best endeavours to resolve the Dispute.
8.3 Resolution
If within 20 business days of receipt of a notice of Dispute under clause 8.2 the parties to the Dispute do not either resolve the Dispute or agree as to:
(a) a dispute resolution technique (for example, expert determination) and procedures to be adopted;
(b) the timetable for all steps in those procedures; and
(c) the selection and compensation of the independent person required for such technique,
then the parties must promptly seek to resolve the Dispute through mediationin accordance with the ACICA Mediation Rules published by the Australian Centre for International Commercial Arbitration. The mediation will take place in Brisbane and be administered by the Australian Centre for International Commercial Arbitration. If the Dispute is not resolved within 20 business days of the commencement of mediation, any party may commence court proceedings in relation to thatDispute.
9. License to the Nominate Services
(a) We grant you a limited, non-exclusive, non-transferable, non-sublicensable (except to sub-Users registered via the Services), revocable right to use our Services solely to:
(i) browse the Services and search for, view, register for an event listed on the Services; and/or
(ii) create event registration and other webpages to promote, market, manage, track, and collect sales proceeds for an event; and/or
(iii) manage memberships and horse registrations.
(b) Your use of the Services must be in compliance with these Terms and in compliance with all applicable local, state, national and other laws, rules and regulations. In addition, by using any search functionality or address auto-population tools, you are bound by the Google Maps/Google Earth Additional Terms of Service (including the Google Privacy Policy).
(c) Without limitations on other restrictions, limitations and prohibitions that we impose (in these Terms or elsewhere), you agree that you will not directly or indirectly:
(i) copy, modify, reproduce, translate, localise, port or otherwise create derivatives of any part of the Services;
(ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organisation of all or any part of the Services;
(iii) rent, lease, resell, distribute, use the Services for other commercial purposes not contemplated or otherwise exploit the Services in any unauthorised manner;
(iv) remove or alter any proprietary notices on the Services;
(v) engage in any activity that interferes with or disrupts the Services; or
(vi) without our prior written consent, conduct any form of penetration testing by means of cyberattack on our computer systems to test the security of those systems.
(d) You agree that all Site Content may be protected by copyrights, trademarks, service marks, trade secrets or other intellectual property and other proprietary rights and laws. Nominate may own the Site Content or portions of the Site Content may be made available to Nominate through arrangements with third parties. Site Content included in or made available through the Services is the exclusive property of Nominate and is protected by copyright laws. You agree to use the Site Content only for purposes that are permitted by these Terms and any applicable local, state, national or other law, rule or regulation. Any rights not expressly granted herein are reserved. In this clause, "Site Content" means any and all material, data, brands, logos, trade marks (both registered and unregistered), graphics and information displayed on, or embedded in, our websiteby Nominate or its employees, agents or contractors.
10. Scraping or Commercial Use of Site Content is Prohibited
The Site Content is not intended for your commercial use. You have no right to use, and agree not to use, any Site Content for your own commercial purposes. You have no right to, and agree not to scrape, crawl, or employ any automated means to extract data from the Site(s).
11. Your Account with Nominate
We may require you to create an account to access certain features or functions of the Services. You agree to follow certain rules when you create an account with Nominate or user the Services, including the following:
(a) You must be at least 18 years of age, to use the Services. If you are 13 or older, you may only use the Services under the supervisions of a parent or legal guardian who manages your use and/or account. However, if you are under 13, please do not provide us with any information about yourself.
(b) You agree to provide true, accurate, current and complete information about yourself, or if you are using the Services on behalf of an entity, the entity (the "Registration Data"). You also agree to update this Registration Data if it changes.
(c) If there is a dispute between two or more persons or entities as to account ownership, Nominate will be the sole arbiter of that dispute and Nominate decision (which may include termination or suspension of the account) will be final and binding on those parties.:
(d) If you are using the Services on behalf of a company or other entity, you represent and warrant that you have the authority to legally bind that entity and grant Nominate all permissions and licenses provided in these Terms.
(e) You agree to immediately notify Nominate of any unauthorised use of your password or account or any other breach of security. You are responsible for (and we will hold you responsible for) any activities that occur under your account.
12. Your Content
(a) Nominate does not make any claim to any information, data or graphics that you post or display on our website for the purpose equestrian events or member management ("Your Content"). You are solely responsible for Your Content. You hereby grant Nominate a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable, sublicensable right and license to access, use, reproduce, transmit, adapt, modify, perform, display, distribute, translate, publish and create derivative works based on Your Content, in whole or in part, in any media, for the purpose of operating the Services (including Nominate promotional and marketing services, which may include without limitation, promotion of your event on a third party website), and you hereby waive any and all moral right to use the name you submit with Your Content. Notwithstanding the foregoing, Nominate does not claim, and you do not transfer, any ownership rights in any of Your Content and nothing in these Terms will restrict any rights that you may have to use and exploit Your Content outside of the Services.
(b) You represent and warrant that you have all the rights, power and authority necessary to grant the foregoing license, and that all Your Content:
(i) does not infringe, violate, misappropriate or otherwise conflict with the rights of any third party;
(ii) complies with all applicable local, state, national and other laws, rules and regulations; and
(iii) does not violate these Terms.
(c) Your Content must be accurate and truthful. Nominate reserves the right to remove Your Content from the Services if Nominate believes in its sole discretion that it violates these Terms, or for any other reason. Nominate may use your name and logo (whether or not you have made it available through the Services) for the purpose of identifying you as an existing or past customer of Nominate both on the Services and in marketing, advertising and promotional materials. We likewise may preserve Your Content and account information and may also disclose Your Content and account information if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to:
(i) comply with legal process;
(ii) respond to claims that any of Your Content infringes the rights of third-parties;
(iii) enforce or administer these Terms; and/or
(iv) protect the rights, property and/or personal safety of Nominate, its users and/or the public, including fraud prevention. You understand that the technical processing and transmission of the Services, including Your Content, may involve transmissions over various networks and/or changes to conform and adapt to technical requirements of connecting networks or devices.
13. Notices
Notices to you may be sent via email or regular mail to the address in Nominate records. The Services may also provide notices of changes to these Terms or other matters by displaying notices or links to notices to you generally on the Services. If you wish to contact Nominate or deliver any notice, you can do so at: Nominate Pty Ltd, 30 Milbong Rd, Milbong, QLD Australia, or via: [email protected].
14. Modifications to the Terms or Services
(a) Nominate reserves the right to modify these Terms from time to time (collectively, "Modifications"). If we believe the Modifications are material, we will inform you about them by doing one (or more) of the following:
(i) posting the changes on our website; or
(ii) sending you an email or message about the Modifications.
(b) Modifications will be effective thirty (30) days following the date as communicated in any notice to you ("Effective Date"). You are responsible for reviewing and becoming familiar with any Modifications.
(c) If you do not agree with the Modifications, you must end your access to the Services before the Effective Date.
(d) If you continue using the Services after the Effective Date,that will constitute your acceptance of those Modifications and the updated Terms.
(e) In certain circumstances, Nominate may seek a Modification to these Terms that will only apply to you. This type of Modification must be accomplished by way of a written or electronic document signed by you and an authorised officer of Nominate. Nominate is constantly evolving our products and services to better meet the needs of our Users. Because of this, we cannot guarantee the availability of certain product features or functionality. Nominate reserves the right modify, replace or discontinue any part of the Services or the entire Service.
15. Assignment
(a) We may, without your consent or approval, freely assign these Terms and our rights and obligations under these Terms whether to an affiliate or to another entity in connection with a corporate transaction or otherwise.
(b) We will give you reasonable prior notice before assigning these Terms, including details about who we are assigning to.
16. Entire Agreement
Except as otherwise set forth herein, these Terms constitute the entire agreement between you and Nominate and govern your use of the Services, and supersede all previous written agreements between us other than any written agreement for Services between you and an authorised officer of Nominate expressly relating to a specified event or events.
17. Applicable Law and Jurisdiction
These Terms are governed by the laws of Australia. These laws will apply no matter where in the world you live. Nominate is based in Brisbane, Australia, and any legal action against Nominate related to our Services and that is not precluded by the arbitration provisions in these Terms must be filed and take place in Brisbane. Thus, for any actions not subject to arbitration, you and Nominate agree to submit to the personal jurisdiction of the federal or state courts (as applicable) located in Brisbane, Australia.
18. Third Party Websites; Linked Accounts
The Services may provide, or users may provide, links to other Internet websites or resources. Because Nominate has no control over such websites and resources, you acknowledge and agree that Nominate is not responsible for the availability of such websites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, services or other materials on or available from such websites or resources, or any damages or losses related thereto, even if such websites or resources are connected with Nominate partners or third party service providers.
19. Additional Miscellaneous Provisions
Our failure to enforce any part of these Terms will not constitute a waiver of our right to later enforce that or any other part of these Terms. No oral waiver, amendment or modification of these Terms will be effective. If any provision of these Terms is found to be unenforceable, that part will be limited to the minimum extent necessary the other provisions of these Terms remain in full force and effect. Section titles in these Terms are for convenience and have no legal or contractual effect. No independent contractor, agency, partnership, joint venture or other such relationship is created by these Terms. We may freely assign any of our rights and obligations under these Terms.