Terms and Conditions

BEAM PLATFORM AGREEMENT

Terms of supply between Beam and Customers

Framework agreement — self-serve and enterprise

1. Structure and formation

1.1 This Agreement comprises these Framework Terms, each Pricing Form, and the Schedules. It governs all access to and use of the Platform by the Customer. Pricing Form means the proforma invoice or pricing form issued by Beam and accepted by the Customer, whether through the Platform or otherwise.

1.2 This Agreement is formed on the earlier of the Customer accepting these terms through the Platform interface, accepting a Pricing Form, or first accessing the Platform.

1.3 Where the Customer accepts through the Platform interface, Beam must present these terms in full before acceptance, require an affirmative act of acceptance, and retain a record of the terms version accepted and the time of acceptance.

1.4 The Customer contracts as principal. Where the Customer is an agency acting for a brand, clause 4.9 applies.

2. Definitions and interpretation

In this Agreement:

Campaign means a consumer promotion configured, published or operated through the Platform.

Campaign Materials means Campaign Documents together with any material the Customer creates, uploads or publishes in connection with a Campaign.

Consumer Terms means the terms and conditions of entry for a Campaign, issued by the Promoter of Record for that Campaign.

Customer Inputs means all data, instructions, selections, parameters and content submitted by the Customer to the Platform, including prize pool values, Campaign mechanics, dates, Eligible Products and entry requirements.

Entrant means an individual who participates or attempts to participate in a Campaign.

Entrant Data means Personal Information of Entrants collected through the Platform in connection with a Campaign, including Receipt Images.

Campaign Funding Amount means the amount stated in the Pricing Form to be paid by the Customer in respect of Rewards and fulfilment for a Campaign.

Campaign Documents means the Consumer Terms and related entry documents produced for a Campaign from information supplied by the Customer.

Live Campaign means a Campaign that has been published and whose Promotion Period or claim period has commenced and not concluded.

Permit Indicator means an output of the Platform that identifies, by reference to Campaign information supplied by the Customer, jurisdictions in which a permit, licence or authority is required for a Campaign.

Operator means Beam in its capacity of performing the operational functions in clause 4.5, whether or not Beam is the Promoter of Record.

Platform means the Beam software-as-a-service platform, including all modules, APIs and documentation made available to the Customer.

Promoter of Record means, for a Campaign, the party identified as promoter under clause 4.

Receipt Image means an image or document submitted by an Entrant as proof of purchase.

Reward means a prize, gift card, cashback payment or other benefit payable to an Entrant under a Campaign.

Validation Services means the receipt validation, optical character recognition and fraud detection functionality described in clause 6.

Confidential Information means information disclosed by or on behalf of one party to the other that is marked or reasonably understood to be confidential, including the terms of this Agreement, Customer Inputs, and non-public information about a party’s business, customers, personnel, systems or finances.

Intellectual Property Rights means all present and future intellectual property rights of any kind, including copyright, patents, trade marks, designs, trade secrets, know-how, database rights and rights in confidential information, in each case whether registered or unregistered.

Loss means any loss, damage, cost, expense, liability or claim, whether direct or indirect.

Term means the term of this Agreement as determined under clause 15.1.

2.1 Headings do not affect interpretation. A reference to a statute includes any amendment or replacement. The singular includes the plural. All amounts are in Australian dollars and, unless stated otherwise, are exclusive of GST. No rule of construction operates to the disadvantage of a party because that party prepared this Agreement.

3. Platform access and licence

3.1 Beam grants the Customer a non-exclusive, non-transferable, revocable licence to access and use the Platform during the Term for the purpose of configuring, publishing and operating Campaigns.

3.2 The Customer must not, and must not permit any person to: (a) resell, sublicense or make the Platform available to a third party except as permitted by clause 4.9; (b) reverse engineer, decompile or attempt to derive the source code of the Platform; (c) use the Platform to build a competing product; (d) circumvent any usage limit or access control; or (e) use the Platform in breach of any law.

3.2A The Platform is made available for Campaigns conducted in Australia only. The Customer must not use the Platform to configure, publish or operate a Campaign that is open to entrants outside Australia.

3.3 The Customer is responsible for the acts and omissions of its personnel and authorised users, and for maintaining the security of its account credentials.

3.4 Beam may modify the Platform from time to time. Beam must not make a modification that materially degrades the functionality relied on by a Live Campaign during that Campaign, and must give the Customer at least 30 days’ notice of any modification that materially reduces core functionality.

4. Promoter of Record and operational roles

4.1 The Promoter of Record for a Campaign is elected in the Pricing Form for that Campaign, and is either Beam or the Customer. The election applies to that Campaign only. Where no election is made, the Customer is the Promoter of Record.

4.2 Beam may be elected as Promoter of Record for any mechanic, including chance, cashback and skill. Where a Campaign involves an element of chance, permits, licences and authorities apply and are held by the Promoter of Record. Where a Campaign does not involve chance, no permit is required in any Australian jurisdiction, but the party elected as Promoter of Record carries entrant-facing responsibility for the Campaign.

4.3 Where Beam is the Promoter of Record: (a) Beam obtains and holds, in its own name, the permits, licences and authorities required for the Campaign; (b) Beam satisfies the conditions attaching to them, including regulator notification, lodgement of rules, winner publication and record retention; (c) Beam issues the Consumer Terms; and (d) Beam is identified as promoter in the Consumer Terms and in the permit particulars, with its ABN and address and each relevant permit number.

4.4 Where the Customer is the Promoter of Record: (a) the Customer obtains and holds, in its own name, any permit, licence or authority required for the Campaign; (b) the Customer satisfies the conditions attaching to them; (c) the Consumer Terms are issued by the Customer; and (d) the Customer is identified as promoter. Beam does not apply for, hold, or act as agent in respect of any permit, licence or authority for that Campaign.

4.5 For every Campaign, and irrespective of the election under clause 4.1, Beam acts as Operator and is responsible for: (a) hosting the Campaign sub-domain; (b) receiving and validating claims and entries; (c) arranging fulfilment of Rewards; and (d) communications to and from Entrants in connection with the Campaign, in each case as configured and signed off by the Customer.

4.6 Campaign creative and the Campaign sub-domain may be branded to the Customer or its brand client. Nothing in the presentation of a Campaign may state or imply that a party other than the Promoter of Record is the promoter, or otherwise mislead an Entrant as to the identity of the promoter.

4.7 Beam may decline to publish, or may suspend or cancel, a Campaign that Beam reasonably considers to be unlawful, to breach a permit condition, or to expose Beam to regulatory risk. Where Beam becomes aware of an error or non-compliance in a published Campaign, Beam will notify the Customer and seek the Customer’s approval to rectify it. Where the Customer does not respond within the time reasonably required, Beam may rectify it without approval to the extent necessary to comply with law or a permit condition.

Agencies acting for brands

4.8 The Customer is responsible in all cases for: (a) supplying accurate and complete Campaign information; (b) reviewing and signing off the Campaign Documents and Campaign configuration before publication; (c) its Campaign Materials, including advertising and creative; and (d) the Eligible Products and any representation it makes about them. Beam performs its functions in reliance on the information supplied and signed off by the Customer.

4.9 Where the Customer is an agency engaging Beam for a brand client: (a) the Customer contracts as principal and remains liable for all obligations under this Agreement; (b) the Customer warrants it has authority to bind the brand client to the Customer obligations in clause 4.8; and (c) the Pricing Form must identify the brand client and, where the Customer is the Promoter of Record, the entity that will hold any permit.

5. Campaign setup, documents and approval

Campaign Documents

5.1 The Customer submits Campaign information to the Platform. Beam applies that information to standardised compliance requirements, being the published regulatory thresholds and conditions of the jurisdictions in which the Campaign is to operate, to produce the Campaign Documents. Beam does not supply legal or regulatory advice, and no solicitor-client relationship arises between Beam and the Customer.

5.1A No Beam personnel act, or hold themselves out as acting, in the capacity of an Australian legal practitioner in connection with the Platform or the Campaign Documents.

5.2 Campaign Documents are produced on the basis of the Campaign information as submitted. Their adequacy depends on the accuracy and completeness of that information and on matters outside Beam’s knowledge.

5.3 A Permit Indicator applies published regulatory thresholds to the prize pool value and mechanic submitted by the Customer to identify jurisdictions in which a permit, licence or authority is required.

5.3A Where a Permit Indicator identifies that a permit, licence or authority is required, the Platform will not permit the Campaign to be published until: (a) where Beam is the Promoter of Record, Beam has obtained it; or (b) where the Customer is the Promoter of Record, the Customer has entered the relevant number and confirmed that it holds it. In case (b) the Customer remains responsible for obtaining it and for the accuracy of the details entered.

Beam’s maintenance obligation

5.4 Beam must exercise due care and skill in: (a) maintaining the document content and logic used to produce Campaign Documents; (b) maintaining the regulatory threshold data underlying Permit Indicators; and (c) applying Campaign information to that content, logic and threshold data accurately.

5.5 Beam must update the regulatory threshold data underlying Permit Indicators within 20 Business Days of becoming aware of a change to a published threshold, and must notify Customers with a Live Campaign affected by the change.

Review Gate

5.6 Where Beam is the Promoter of Record and the Campaign requires a permit, licence or authority, the Customer must review and confirm the Campaign information and the Campaign Documents before Beam lodges any application or notification with a regulator. Beam relies on that confirmation in preparing and lodging the application. The Customer must not require Beam to lodge without that confirmation.

5.7 The Customer is responsible for its Campaign Materials as published, including where they incorporate Campaign Documents without amendment.

5.8 Beam may retain a record of each confirmation given under clause 5.6, including the identity of the user, the time, and the version of the Campaign Documents confirmed.

6. Validation Services

6.1 Beam provides automated receipt validation using optical character recognition and fraud detection, applied against validation rules configured by the Customer. Beam may rely on a third party sub-processor to perform all or part of that function.

6.2 The Customer acknowledges that automated validation is probabilistic and that no automated system achieves complete accuracy. Beam does not warrant that the Validation Services will correctly assess every claim.

6.3 Beam must exercise due care and skill in the design, testing and operation of the Validation Services, and must maintain accuracy at or above the threshold stated in Schedule 2.

Human review

6.4 The Platform will provide a mechanism by which an Entrant whose claim is rejected by automated validation may request review by a natural person.

6.5 Human review is performed by the party identified in the Pricing Form. Where the Pricing Form identifies Beam, Beam performs the review against validation rules approved by the Customer. The Promoter of Record for a Campaign is responsible for the final determination of any disputed claim. Beam will in all cases make the underlying Receipt Image, validation output and reason code available to the Promoter of Record.

6.6 The Promoter of Record must ensure that the Consumer Terms and the collection notice for a Campaign disclose that claims are assessed by automated means and that a review mechanism is available.

6.7 Beam may use aggregated and de-identified signals derived from Validation Services across Campaigns and Customers for the purpose of fraud detection and model improvement. Beam must not disclose Customer Confidential Information or Entrant Data to another Customer.

7. Rewards, funding and fulfilment

7.1 The Customer must pay the Campaign funding amount stated in the Pricing Form in cleared funds before a Campaign is published. Beam is not obliged to publish a Campaign, or to continue fulfilment, where that amount has not been paid.

7.2 The Campaign funding amount is paid to Beam absolutely. Beam funds Rewards as its own obligation as Promoter of Record. Beam is not required to hold the amount separately or on trust, and any interest earned on it accrues to Beam.

7.3 Beam is responsible for arranging fulfilment of Rewards and for the associated fulfilment and handling costs, which are included in the amounts stated in the Pricing Form.

7.4 Where value on an issued Reward card remains unredeemed at the expiry of that card, and Beam recovers that value from the card issuer, Beam will pay [80]% of the amount recovered to the Customer within 30 days of recovery and may retain the balance. This clause does not apply to a Reward that was never awarded or claimed, which is dealt with under the Consumer Terms and the conditions of the relevant permit, licence or authority.

7.5 Rewards are issued as cards by a third party card issuer. Beam does not create, issue or hold any card. Beam is not liable for the insolvency, act or omission of the card issuer, or for merchant acceptance of an issued card, except to the extent caused by Beam’s own breach or negligence.

7.6 Beam contracts with the card issuer. The expiry period applying to Reward cards for a Campaign is stated in the Pricing Form.

8. Fees and payment

8.1 The Customer must pay the fees set out in the Pricing Form and Schedule 4. Fees comprise, as applicable, a subscription fee, per-Campaign fees, and transaction fees calculated by reference to claim or entry volume.

8.2 Where a Campaign exceeds the included transaction volume stated in the Pricing Form, overage is charged in the blocks and at the rates stated in Schedule 4. Beam must notify the Customer when 80% of the included volume is reached.

8.3 Invoices are payable within 15 Business Days of the invoice date. Beam may charge interest on overdue amounts at 4% per annum above the RBA cash rate, calculated daily.

8.4 All fees are exclusive of GST. Where GST is payable on a taxable supply under this Agreement, the recipient must pay an additional amount equal to the GST, subject to receiving a valid tax invoice.

8.5 Beam may vary the fees on 60 days’ written notice, effective from the start of the next subscription period. The Customer may terminate without penalty by notice given before the variation takes effect. A fee variation does not apply to a Campaign already published.

8.6 The Customer must not set off any amount against fees payable. Any interest earned on the Campaign Funding Amount while held by Beam accrues to Beam.

9. Privacy and data protection

9.1 Each party must comply with the Privacy Act 1988 (Cth) and the Australian Privacy Principles in respect of Entrant Data, whether or not that party is otherwise bound by that Act. If the Customer is a small business operator, it must elect to be treated as an organisation under s 6EA.

9.2 As between the parties, and subject to clause 9.3: (a) where Beam is the Promoter of Record, Beam determines the purposes for which Entrant Data is collected and handled for that Campaign and is the entity responsible for that handling; and (b) where the Customer is the Promoter of Record, the Customer determines those purposes and is the entity responsible, and Beam handles Entrant Data on the Customer’s behalf and in accordance with Schedule 3.

9.3 Beam handles Entrant Data for its own purposes, and is responsible for that handling in its own right, to the extent it does so for fraud detection, security, and the maintenance and improvement of the Validation Services under clause 6.7.

9.4 The Promoter of Record for a Campaign must ensure a compliant collection notice is provided to Entrants at the point of collection, disclosing the purposes of collection, that Entrant Data is disclosed to Beam (where the Customer is Promoter) or to the Customer and any Campaign partner (where Beam is Promoter), and to fulfilment providers and sub-processors, whether it is disclosed overseas and to which countries, and how an individual may access, correct or complain.

9.5 Neither party may disclose Entrant Data to an overseas recipient except as disclosed in the Pricing Form and in the collection notice issued by the Promoter of Record, and subject to APP 8.

9.6 If a party becomes aware of an actual or suspected eligible data breach affecting Entrant Data, it must notify the other party within 48 hours and provide the information reasonably required to assess the breach. The Promoter of Record leads the assessment and any notification to the Commissioner and affected individuals in respect of Campaign data, and the other party must provide reasonable assistance. Neither party may make a public statement identifying the other without prior consultation, except where required by law.

9.7 On termination, Beam must return or delete Entrant Data in accordance with Schedule 3, subject to any retention required by law or by a permit condition. Records required to be retained under a permit condition remain the Customer’s responsibility.

10. Confidentiality

10.1 Each party must keep the other’s Confidential Information confidential, use it only for the purposes of this Agreement, and disclose it only to personnel and advisers who need to know and who are bound by equivalent obligations.

10.2 Clause 10.1 does not apply to information that is public other than through breach, was lawfully known before disclosure, is independently developed, or is required to be disclosed by law or a regulator, provided the disclosing party gives prior notice where lawful and practicable.

10.3 Beam may identify the Customer as a customer, and use the Customer’s name and logo for that purpose, only with the Customer’s prior written consent, which may be withdrawn on 30 days’ notice.

10.4 Each party acknowledges that damages may not be an adequate remedy for breach of this clause 10 or of clause 11, and that the other party may seek an injunction or other equitable relief restraining further breach, in addition to any other remedy, without the necessity of showing actual damage and without security being required.

11. Intellectual property

11.1 Beam owns all Intellectual Property Rights in the Platform, the document content and logic, the Permit Indicator rules and threshold data, the Validation Services and all improvements to them.

11.2 The Customer owns all Intellectual Property Rights in Customer Inputs and in its brands, trade marks and creative materials.

11.3 Beam grants the Customer a perpetual, non-exclusive, royalty-free licence to use, reproduce and adapt Campaign Documents produced for its Campaigns, including after termination.

11.4 The Customer grants Beam a non-exclusive licence to use Customer Inputs and Customer marks solely to provide the Platform and fulfil Campaigns during the Term.

12. Warranties

12.1 Each party warrants that it has authority to enter into this Agreement and that doing so does not breach any other obligation.

12.2 Beam warrants that it will provide the Platform with due care and skill and substantially in accordance with Schedule 2.

12.3 The Customer warrants that: (a) the Campaign information it supplies is accurate and complete; (b) it has reviewed and signed off the Campaign Documents and Campaign configuration in accordance with clauses 4.8 and 5.6; (c) its Campaign Materials comply with all applicable laws including the Australian Consumer Law; and (d) it has obtained all consents required for Beam to handle Entrant Data as contemplated.

12.4 Except as expressly stated and to the extent permitted by law, all other warranties are excluded. Nothing in this Agreement excludes, restricts or modifies any consumer guarantee or other right or remedy under the Australian Consumer Law that cannot lawfully be excluded.

12.5 Beam must maintain, with a reputable insurer, professional indemnity insurance and cyber liability insurance for not less than the amounts stated in the Pricing Form, and must provide a certificate of currency on reasonable request.

13. Liability

13.1 Nothing in this clause limits liability that cannot be limited at law, including under the consumer guarantees in the Australian Consumer Law. Where liability for breach of a consumer guarantee may be limited under s 64A, Beam’s liability is limited at its election to resupplying the services or paying the cost of having them resupplied.

13.2 Subject to clauses 13.1 and 13.4, each party’s aggregate liability under or in connection with this Agreement is limited to the greater of the fees paid and payable by the Customer in the 12 months preceding the first event giving rise to liability, and $50,000.

13.3 Subject to clause 13.1, neither party is liable for indirect or consequential loss, or for loss of profit, revenue, goodwill, anticipated savings or data, however arising.

13.4 Clauses 13.2 and 13.3 do not apply to: (a) the Customer’s obligation to pay amounts due under this Agreement; (b) either party’s breach of clause 10; (c) either party’s liability under clause 14; or (d) fraud, wilful misconduct or personal injury.

13.5 Each party must take reasonable steps to mitigate its loss. Liability is reduced to the extent the loss was caused or contributed to by the other party.

13.6 Beam holds the benefit of clauses 13.1 to 13.4 for itself and as agent and trustee for each of its officers, employees, contractors and related bodies corporate, each of whom may enforce those clauses. The Customer holds the equivalent benefit on the same basis.

14. Indemnities

14.1 The Customer indemnifies Beam against Loss arising from: (a) the Campaign information supplied by the Customer being inaccurate, incomplete or out of date; (b) the Customer’s Campaign Materials, including advertising and creative; (c) any representation the Customer makes about an Eligible Product; (d) where the Customer is the Promoter of Record, any variation by the Customer of the Consumer Terms it issued or breach of a permit condition it holds; (e) where Beam is the Promoter of Record, any act or omission of the Customer causing Beam to breach a permit condition or the Consumer Terms; and (f) breach of clause 12.3.

14.2 Beam indemnifies the Customer against Loss arising from: (a) any claim that the Platform infringes the Intellectual Property Rights of a third party; (b) Beam’s breach of clause 9 or clause 10; and (c) any regulatory penalty or Entrant claim arising from Beam’s conduct of a Campaign, other than to the extent it arises from a matter in clause 14.1.

14.3 An indemnity is conditional on the indemnified party giving prompt notice, not admitting liability, allowing the indemnifying party to control the defence of a third party claim, and providing reasonable assistance at the indemnifying party’s cost.

14.4 An indemnity is reduced to the extent the Loss was caused by the indemnified party’s own breach, negligence or wilful misconduct.

15. Term, suspension and termination

15.1 This Agreement commences on formation and continues for the initial term stated in the Pricing Form, and then renews for successive periods of equal length unless either party gives notice of non-renewal at least 30 days before the end of the current period.

15.2 Beam must notify the Customer of an upcoming automatic renewal, and of the fees applying on renewal, at least 45 days before the renewal date.

15.3 Either party may terminate for material breach if the breach is not remedied within 20 Business Days of notice, or immediately on an insolvency event affecting the other party.

15.4 The Customer may terminate for convenience on 30 days’ notice. Beam may terminate for convenience on 90 days’ notice.

Suspension

15.5 Beam may suspend access to the Platform where the Customer fails to pay an undisputed invoice within 10 Business Days of written notice, or where suspension is necessary to address a security threat or to comply with law.

15.6 Beam must not suspend or terminate in a manner that prevents a Live Campaign from being completed, including the determination of winners, the fulfilment of Rewards already accrued, and the retention of records required by a permit condition, provided the Campaign Funding Amount for that Campaign has been paid. Beam may suspend the creation of new Campaigns.

Consequences

15.7 On termination: (a) the licence in clause 3.1 ends, subject to clause 15.6; (b) accrued fees become payable; (c) clause 7.4 applies to unredeemed Reward value; (d) each party returns or destroys the other’s Confidential Information; and (e) Beam makes Campaign records available for export in a machine-readable format for 90 days, and must not delete records the Customer is required to retain under a permit condition before that period expires.

15.8 Clauses 2, 4, 9, 10, 11, 12.5, 13, 14, 15.7, 15.8 and 16 survive termination.

16. General

16.1 Beam may vary these Framework Terms on 60 days’ written notice. If a variation materially and adversely affects the Customer, the Customer may terminate without penalty by notice given before the variation takes effect, and the variation does not apply to a Campaign already published.

16.2 Neither party is liable for failure to perform caused by an event beyond its reasonable control, provided it notifies the other party and uses reasonable endeavours to resume performance. This clause does not excuse an obligation to pay.

16.3 The Customer must not assign without Beam’s consent, not to be unreasonably withheld. Beam may assign to a related body corporate or in connection with a sale of its business, on notice.

16.4 Notices must be in writing and sent to the addresses in the Pricing Form or, for Customers accepting through the Platform, to the account email address.

16.5 This Agreement is governed by the laws of Victoria, Australia. The parties submit to the non-exclusive jurisdiction of the courts of that State.

16.6 If a provision is invalid or unenforceable it is severed to the extent necessary and the remainder continues.

16.7 This Agreement is the entire agreement between the parties on its subject matter.

16.8 Beam may subcontract performance of any part of the Platform or the Validation Services but remains liable for the acts and omissions of its subcontractors as if they were its own. Sub-processors handling Entrant Data are additionally subject to Schedule 3.

16.9 Before commencing proceedings, other than for urgent interlocutory relief or to recover an undisputed debt, a party must give written notice of the dispute and the parties must confer in good faith, escalating to a senior representative of each party, for 15 Business Days.