Licensing Portal Terms

1 Acceptance of these Terms

1.1 Copyright Agency Ltd (ABN 53 001 228 799) (we, us or our) own or license the Visual Arts Licensing Platform software and the information it contains (Visual Arts Licensing Platform).

1.2 These terms and conditions (Terms) apply to:

(a) the individual, company, entity or organisation who is entering into a legal agreement with us to be granted access to use the Visual Arts Licensing Platform and Image Bank for the purpose of purchasing a licence to use an artistic work or purchasing an image or both; and

(b) to the Personnel of a company, entity or organisation who access or use the Visual Arts Licensing Platform (User Account)

(jointly and severally known as you or your).

1.3 You accept these Terms by checking the “I agree to the User Account Terms and Conditions” box or by using or accessing the Visual Arts Licensing Platform.

1.4 These Terms will commence on the date on which your User Account is created and will continue unless terminated in accordance with clause 8 (the Term).

1.5 By accepting these Terms, or accessing and/or using the Visual Arts Licensing Platform, you warrant to us that you have the legal capacity to enter into a legally binding agreement.

1.6 If you are entering into these Terms on behalf of your employer or a business entity, you, in your individual capacity, represent and warrant that you are authorised to act on behalf of your employer or the business entity and to bind the entity and the entity’s personnel to these Terms.

2 Use of the Visual Arts Licensing Platform

2.1 Subject to your compliance with these Terms, we grant you a non-exclusive, non-transferable, non-sublicensable, personal and revocable licence to access and use the Visual Arts Licensing Platform for the Term for the purpose described in clause 1.2(a) above (Purpose), and in the manner set out on the Visual Arts Licensing Platform (Licence).

2.2 You must not access or use the Visual Arts Licensing Platform except as permitted by these Terms and as set out on the Visual Arts Licensing Platform. Without limiting the foregoing, you must not and must not permit any other person to:

(a) use the Visual Arts Licensing Platform in any way which is in breach of any applicable Laws or which infringes any person's rights, including Intellectual Property Rights and privacy rights;

(b) use the Visual Arts Licensing Platform in any way that damages, interferes with or interrupts the supply of the Visual Arts Licensing Platform or our systems;

(c) compromise the physical and administrative security of the Visual Arts Licensing Platform, including by allowing others to access your/their account, password or authentication details;

(d) use the Visual Arts Licensing Platform to carry out security breaches or disruptions of a network;

(e) decompile, disassemble, reverse engineer, attempt to derive the source code for, modify, adapt, translate or copy the Visual Arts Licensing Platform;

(f) provide, disclose, divulge, make available to or permit use of by, any part of the Visual Arts Licensing Platform or any information obtained on it by any third party; or

(g) remove, tamper with, seek to override or otherwise interfere with any security or technological protection measure forming part of the Visual Arts Licensing Platform.

This clause 2 will survive the expiry or termination of these Terms.

3 Your warranties, acknowledgments and consents

3.1 You warrant and agree that:

(a) you have reviewed and understand these Terms;

(b) you have or will acquire all hardware, software and capabilities which are necessary to access and use the Visual Arts Licensing Platform;

(d) all information and documentation that you provide to us in connection with these Terms is true, correct and complete and you acknowledge and agree that we will rely on such information and documentation in order to provide the Visual Arts Licensing Platform; and

(e) in entering into these Terms, you have not relied upon any representation, warranty or inducement by us nor is any representation, warranty or thing made or done by us to be inferred, incorporated or implied into these Terms.

3.2 You acknowledge and agree that:

(a) you are responsible for your use of the Visual Arts Licensing Platform;

(b) you use the Visual Arts Licensing Platform and any associated programs and files at your own risk;

(d) the provision of the Visual Arts Licensing Platform may be contingent on, or impacted by, Third Party Inputs and we do not make any warranty or representation in respect of any Third Party Inputs;

(e) the Visual Arts Licensing Platform may use third party products, facilities, services or data. We do not make any warranty or representation in respect of the third-party products, facilities, services or accuracy of the data;

(f) you are solely responsible, on and from the time of export, for any files and/or documents exported from the Visual Arts Licensing Platform;

(g) you will use any Intellectual Property Rights or images you acquire from the Visual Arts Licensing Platform in accordance with the applicable licence terms and conditions;

(h) you will abide by any applicable terms and conditions imposed by the payment provider used by the Visual Arts Licensing Platform and make payment with an Australian credit card or by such other method as authorised by us;

(i) we are not responsible for the integrity or existence of any data on the Computing Environment, network or any device controlled by you; and

(j) the Visual Arts Licensing Platform will be unavailable where required for maintenance, updates or other changes. While we aim for the Visual Arts Licensing Platform to be available at all other times, we do not warrant that the Visual Arts Licensing Platform is error-free or will be uninterrupted.

4 Intellectual Property Rights

4.1 You agree that we own all Intellectual Property Rights in Our Materials, New Materials and Improvements.

4.2 Without limitation to clause 2.2, you must not whether directly or indirectly, without our prior written consent:

(a) copy, modify, adapt, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble or decompile the Visual Arts Licensing Platform or otherwise attempt to discover any part of the source code of the Visual Arts Licensing Platform; or

(b) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Visual Arts Licensing Platform.

4.3 This clause 4 will survive the expiry or termination of these Terms.

5 Analytics

5.1 Despite anything to the contrary in these Terms, we may monitor, analyse and compile information based on and/or related to your use or the use of the Visual Arts Licensing Platform, in an aggregated and anonymised format (Analytics).

5.2 We and our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content provided in connection with the Analytics, including all Intellectual Property Rights in the foregoing.

6 Privacy

6.1 Each Party will at all times comply with legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any privacy or anti-spam Laws applicable in respect of all Personal Information collected, used, stored or otherwise dealt with under or in connection with these Terms.

6.2 All Personal Information received by us in connection with your use of the Visual Arts Licensing Platform and these Terms will be deemed to have been disclosed to us by you. Without limiting this clause 6, you may only disclose Personal Information to us if you are authorised by Law to collect the Personal Information and to use or disclose it in the manner required.

6.3 This clause 6 will survive the expiry or termination of these Terms.

7 Our Liability

7.1 Despite anything to the contrary, to the maximum extent permitted by law:

(a) we will not be liable for any Consequential Loss;

(b) a Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure to mitigate that Liability; and

(c) our aggregate liability for any Liability arising from or in connection with these Terms, including your use of the Visual Arts Licensing Platform, will be limited to $1.

7.2 To the maximum extent permitted by law, you indemnify and continue to indemnify us against all Liability we suffer or incur arising from or as a consequence of a breach of clause 4.

7.3 You acknowledge and agree that we may pursue any available equitable or other remedy against you if you breach any provision of these Terms.

7.4 We warrant that we have made best endeavours to ensure that the information which we have sourced and placed in the Visual Arts Licensing Platform is accurate and appropriate for its purpose, otherwise we exclude all express and implied warranties, representations and guarantees of any kind (whether under statute, law, equity or on any other basis) and all materials, work, goods and services (including the Visual Arts Licensing Platform) are provided to you without warranties, representations and guarantees of any kind, unless expressly stipulated in these Terms.

7.5 This clause 7 will survive the expiry or termination of these Terms.

8 Termination of these Terms

8.1 CA may terminate these Terms, including your User Account and access to the Visual Arts Licensing Platform, with 7 days' notice:

(a) where reasonably required to comply with any Law, including an order or direction issued by a court or tribunal; or

(b) where we consider, acting reasonably, that you have used the Visual Arts Licensing Platform in a way that is inconsistent with, or in breach of, these Terms.

8.2 We may at our election, either terminate or suspend (until such time as the issue is resolved), your User Account and access to the Visual Arts Licensing Platform where:

(a) we consider, acting reasonably, that you have used the Visual Arts Licensing Platform in a way that is inconsistent with or in breach of these Terms;

(b) we consider, acting reasonably, that you have failed to comply with clause 3.1(b);

(d) reasonably required to comply with any Law, including an order or direction issued by a court or tribunal.

8.3 This clause 8 will survive the expiry or termination of these Terms.

9 General

9.1 We reserve the right at any time and from time to time to change or remove features of, and data in, the Visual Arts Licensing Platform.

9.2 Any notice given under these Terms must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 2 Business Days in the case of post, or at the time of transmission in the case of transmission by email (or, where the time of transmission is not on a Business Day, 9am on the next Business Day).

9.3 Any failure or delay by a Party in exercising a power or right (either wholly or partly) in relation to these Terms does not operate as a waiver or prevent a Party from exercising that power or right or any other power or right. A waiver must be in writing.

9.4 If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions.

9.5 We may assign, transfer, novate or otherwise deal with all or any of our rights or obligations under these Terms without your prior written consent. You may not assign, transfer or otherwise deal with all or any of your rights or obligations under these Terms without our prior written consent. Any purported dealing in breach of this clause by you is of no force or effect.

9.6 We may vary these Terms by providing you with notice of the varied terms when you log in to the Visual Arts Licensing Platform and asking you to accept those terms.

9.7 These Terms are governed by the laws of New South Wales, Australia. You irrevocably and unconditionally submit to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waive any rights to object to proceedings being brought in those courts. This clause 9.7 will survive the expiry or termination of these Terms.

10 Definitions

Capitalised words have the meaning given in text or as set out below.

Business Day means a day which is not a Saturday, Sunday or bank or public holiday in New South Wales, Australia;

Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and Systems;

Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise;

Force Majeure Event means an event which is beyond our reasonable control (including but not limited to fire, storm, flood, earthquake, explosion, accident, act of the public enemy, terrorist act, war, rebellion, insurrection, sabotage, epidemic, pandemic, Government sanctioned restrictions and orders, transportation embargo, and strike by employees of a third person whether known or unknown at the time of entering into these Terms);

Image Bank means Copyright Agency Ltd’s image bank which makes images of artistic works available for purchase for use under a licence;

Improvements means any development, modification, adaptation or improvement of Our Materials or any New Materials made by or on behalf of either Party, or in respect of which Intellectual Property Rights are acquired by, either Party during the Term;

Intellectual Property means any copyright, registered and unregistered trademarks, designs (whether or not registered or registrable), domain names, know-how, inventions, processes, trade secrets or confidential information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing;

Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property;

Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with these Terms or the provision of the Visual Arts Licensing Platform, and includes the Visual Arts Licensing for Visual Artists Act 2009 (Cth) and the Privacy Act 1988 (Cth);

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to these Terms or otherwise;

New Materials means all Intellectual Property developed, adapted, modified or created by or on behalf of us or you or any of your or our respective Personnel, in connection with the Visual Arts Licensing Platform (including any machine learning algorithms output from the Visual Arts Licensing Platform), whether before or after the date of these Terms;

Our Materials means all data, work, models, processes, technologies, strategies, materials, information, documentation and services (including our Intellectual Property and the Visual Arts Licensing Platform) generated by the Visual Arts Licensing Platform as a result of your, or your Personnel’s use of the Visual Arts Licensing Platform or that we may provide to you under these Terms, and which may contain material which is owned by or licensed to us, and is protected by Australian and international laws;

Party means a party to these Terms; Personal Information is defined in the Privacy Act 1988 (Cth) and also includes any similar term as defined in any other applicable privacy law;

Personnel means in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents;

System means all hardware, software, networks and other IT systems used by a Party from time to time, including a network; and

Third Party Claims means any allegation or claim by a third party that the Visual Arts Licensing Platform or any information available on or from it, or your use of that platform or information, contravenes any Law or their rights.

Third Party Inputs means any:

(a) third parties including customers, end users, suppliers, transportation or logistics providers or other subcontractors; or

(b) software, goods and services provided by third parties, including open source licences, which the provision of the Visual Arts Licensing Platform may be contingent on, or impacted by.