In these terms and conditions (terms), “we”, “us”, “our” and “Album Registry” refer to Album Registry Pty Ltd ACN 609 405 503, and “you”, “your” and the “Member” refer to you.
We reserve the right to amend the terms at any time, and your membership and use of the website following any amendments will represent your agreement to be bound by these terms as amended.
1.2. You agree to ensure that the information you provide to us is true and accurate at all times, and you undertake to update your registration details when they change.
1.3. We reserve the right to refuse a Member’s Application for any reason.
1.4. We reserve the right to terminate your membership at any time if you breach these terms.
2. Commencement and term
2.1. These terms commence on the date that we notify you that your Member’s Application has been approved, and continue until:
- (a) either party gives the other two (2) weeks written notice of termination; and
- (b) we terminate your membership because of your default in accordance with the terms.
3. Licence and relationships
3.1. Subject to these terms:
- (a) you are granted a non‐exclusive and non‐assignable limited licence to use the Website for the Approved Purpose;
- (b) we will perform the Services; and
- (c) you agree to promote and publicise the Website to the your customers.
3.2. These terms do not create, and must not be construed as creating, a relationship between us of:
- (a) employment;
- (b) principal and agent;
- (c) partnership; or
- (d) joint venture.
3.3. These terms do not create, and must not be construed as creating, a relationship between us and the Member’s Customers in relation to services provided by you to the Member’s Customers and you:
- (a) must enter into your own agreements with the Member’s Customers in relation to the provision of services by the you to the Members Customers (Customer Agreements);
- (b) must comply in all respects with the terms and conditions of a Customer Agreement;
- (c) must resolve any disputes between you and the Member’s Customer without our involvement;
- (d) indemnify us from and against all Claims and Liabilities (including for legal fees on an indemnity basis) arising out of or in any way related to the execution or performance or non‐performance of a Customer Agreement by you.
4. Our Services
4.1. Unless otherwise indicated, all prices and payments will be in the currency nominated by you from our pick list when you complete the registration and are exclusive of goods and services tax or any other value added tax that may be payable. You may only change the nominated currency with our prior written approval.
4.2. We will, via the Website, provide a platform for third parties to make payments (the Payments) towards the costs of the services and/or products you provide to the Member’s Customers for Registered Events and will:
- (a) collect the Payments;
- (b) within five (5) Business Days of the end of a Registered Event, make available to you via the Website, the Member details of the calculation of the Members Payment for the Registered Event together with details of the Payments received and the payees of those Payments;
- (c) pay the Member’s Payment to you on the fifteenth day of each month (unless that day falls on a weekend or public holiday in Queensland, Australia, in which case the Member’s Payment will be made on the next business day in Queensland, Australia).t.
4.3. Payments that are due and payable by us to the you will be made by us by such method as we may in our absolute discretion determine including (but not limited to) by way of electronic funds transfer, direct deposit, PayPal, cheque or any other method. You must provide us with such details as we may reasonably require in order to make payment to you.
5. Use of the Website
5.1. You may access and use that part of the Website dedicated by us for your use, including to upload content to that part of the Website. We may in our discretion from time to time set and change the content and content format that may be uploaded to the Website.
5.2. We will provide you with login details sufficient to access the features of the Website and you must keep your login details secure and confidential and must not provide your login details to any other person.
5.3. You must immediately notify us of any unauthorised access or use of your login details.
5.4. We are not liable for any loss or damage arising from your failure to keep your login details secure. If the you are not an individual person then the login details will be provided to an individual person nominated by you and you assume responsibility for that person’s compliance with this clause.
5.5. We are not obliged to: (a) provide an updating service for the Website; or (b) to advise you of any amendments or changes to the Website or the terms.
5.6. You warrant that:
- (a) you will complete all designated fields on the Website for each Registered Event;
- (b) all information provided by you is (or will be) true, complete and accurate;
- (c) each Registered Event is a bona fide genuine event to be conducted by the Member’s Customer;
- (d) the calculation of the Price Per Gift will be correct and accurate and will not result in any more being paid to you than the total amount provided for in the Customer Agreement for that Registered Event;
- (e) you have the written permission of the Member’s Customer to list the Registered Event on the Website and to provide the details uploaded to the Website for that Registered Event;
- (f) you will immediately update or correct any information uploaded to the Website that is or becomes inaccurate;
- (g) you will not use the Website for any purpose that is unlawful or, in our opinion, unethical or immoral;
- (h) you will only use the Website in accordance with our specifications, requirements and directions;
- (i) you will provide to us such assistance as we may require to protect our intellectual property rights;
- (j) you will not sub‐licence, assign or transfer or in any way part with your rights under these terms;
- (k) you will promptly bring to our attention any information of which you become aware which is likely to be of interest, use or benefit to us, including improvements to the Website;
- (l) you will not use the Website in a way which, in our reasonable opinion is a misuse of the Website or which may be detrimental to the Website or other users of the Website.
5.7. We may, in our absolute discretion permit you to include additional information on the Website, including (but not limited to) your corporate logo, your personal profile, details of services provided and examples of your works. If you upload additional information then, in addition to the warranties in clause 4.7 you grant to us a non‐exclusive licence to publish, display and exhibit your works.
5.8. Use of the Website may involve using software that resides on out server or in the cloud. In placing data on our server or in the cloud you agree that we are authorised to use that information for purposes consistent with the objects of our business and these terms.
5.9. You acknowledge that the Website may from time to time be inaccessible due to maintenance or circumstances beyond our control. We will attempt to minimise disruption caused by maintenance or circumstances within our control. You release us from any liability arising on any account whatsoever because of your inability to access or use the Website.
5.11. All information (other than bank account or other financial information) provided by you to us is provided on the basis that it is not confidential or commercially sensitive. We are authorised to disseminate any information provided to us by you to the general public via the Website.
5.12. We may permit advertising on the Website including on parts of the Website designated for your use. Any consideration payable for that advertising may be retained for the sole benefit of us.
6. General Obligations
6.1. You must:
- (a) actively promote the Website to the Member’s Customers however such promotion must be in accordance with our requirements as communicated to you from time to time and in accordance with our reasonable directions as given from time to time;
- (b) only make available to the public information, materials and documents about the Website or us as is supplied by us or for which we have given prior written approval to you to make available;
- (c) not arrange, authorise or carry out any advertising in relation to the Website unless the form and content of the advertising has first been approved by us;
- (d) perform all of you obligations under these terms at your own cost and expense;
- (e) provide the Member’s Customer with the information provided by us pursuant to clause 4.2(b) (being details of the calculation of the Members Payment for the Registered Event together with details of payments received for the Registered Event and the payees) immediately upon receipt of that information by you.
7. Intellectual property
7.1. You warrant that you are the sole owner of the full copyright in and all other intellectual property rights in the content that you uploads to the Website or that you hold a valid and subsisting license to use a third party’s copyright or intellectual property rights in relation to that material that permits uploading and usage of that material on the Website.
7.2. You indemnify us from and against all Claims, and Liabilities including legal fees on a full indemnity basis arising out of or in any way connected with any breach of the warranty set out in clause 7.1.
7.3. You acknowledge that as against us and you, all copyright and intellectual property rights in the Website, including in code, graphics, headings, fonts and logos and whether in their original form or as modified or upgraded from time to time (except for the material referred to in the preceding clause) is our property and the you have no rights to use any of our intellectual property (including without limitation its logo or name) unless you have obtained the express written consent of us or unless as expressly provided for in these terms.
7.4. You must not:
- (a) modify or reverse engineer the Website in any way;
- (b) modify or attempt to modify the Website, except in accordance with these terms;
- (c) copy or duplicate the Website or manufacture, develop or sell any website which is capable of providing substantially the same function as the Website nor write computer programmes suitable for use with any website providing substantially the same function as the Website;
- (d) resell, sub‐licence, rent, lease or lend the intellectual property in the Website;
- (e) create derivative works based on the Website;
- (f) use code or components of the Website to build other websites or software (except to the extent that those codes or components are publicly available).
8. Payment Process
8.1. In consideration of receiving the ability to access and use the Website you agree that any funds raised through the Website for a Registered Event will only be remitted to you following the conclusion of the Registered Event in accordance with clause 34 and will be reduced by the Administration Fee.
8.2. We may in our absolute discretion determine to introduce an annual subscription fee to access and use additional features of the Website, and if you elect to access these additional features the following provisions will apply: (a) you must pay the subscription fee to us by the method reasonably required by us and until that payment is made you do not have any further rights and we have no further obligations under these Terms; (b) the subscription fee will apply for the subscription term specified by us and in the absence of any specified term, 12 months. Unless you pay the then current subscription fee, at the end of the subscription term, your right to access and use the additional features will be terminated. (c) we may change subscription fees from time to time which will be effective from the commencement of the next subscription term. Any discount for special, concessionary or promotional subscription fees applies once only.
9. Release and Indemnity
9.1. If the Australian Consumer Law applies to these terms then the goods and services provided by Album Registry come with guarantees that cannot be excluded under the Australian Consumer Law. Where it is lawful to do so we limit our its liability for failure to comply with a consumer guarantee to one or more of the following:
- (a) in the case of goods: (i) the replacement of the goods or the supply if equivalent goods; (ii) the repair of the goods; (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (iv) the payment of the cost of having the goods repaired;
- (b) in the case of services: (i) the supplying of the services again; or (ii) the payment of the cost of having the services supplied again.
9.2. If the Australian Consumer Law does not apply to these terms then except for any terms, conditions or warranties implied by law which are not capable of exclusion, or as otherwise expressly provided in these terms, all conditions, warranties, terms, undertakings, duties and obligations expressed or implied by law in any way relating to goods or services (including as to merchantability, fitness or otherwise) are hereby excluded and we shall not be liable in contract, tort, negligence, breach of statutory duty or otherwise in respect of any Liability or Claim of any nature arising directly or indirectly out of provision of goods or the supply of services by us.
9.3. For clarity, we are not responsible to the extent that the Website fails to perform due to any one or more of the following: (a) unavailability of the website due to scheduled maintenance; (b) malfunction of your software; (c) malfunction of your hardware; (d) your negligence or default; (e) your failure to follow instructions given by us; (f) material changes in the operating environment not authorised by us.
9.4. You indemnify us from and against any Liability or Claim Album we sustain or incur arising directly or indirectly out of the following: (a) any neglect or default of yours to perform any of these terms or any other lawful direction of Album Registry; (b) the negligent use or misuse by the Member of the Website; (c) loss and damage occurring directly or indirectly as a result of the Member’s use of the Website.
10.1. While these terms are on foot and for a period of:
- (a) three (3) years;
- (b) two (2) years; and
- (c) one (1) year
following termination of these Terms (Restraint Periods), you must not (whether on your own account or as a member of a partnership, joint venture, corporation, beneficiary of a trust or on any other account whatsoever) and you must ensure your officers, employees and contractors do not within:
- (d) worldwide;
- (e) Australia;
- (f) the country in which the Member operates;
- (g) the state/s in which the Member operates; and
- (h) the local government area(s) in which the Member operates (Restraint Areas) be involved in a business that competes with the Website or our business.
10.2. Each covenant and restraint set out in clause 10.1 which arises as a result of a combination of Restraint Areas and Restraint Periods has effect as a separate and independent covenant and restraint although it is acknowledged that they are cumulative.
10.3. You agree that the prohibitions and restrictions set out in this clause are reasonable in the circumstances and are necessary to protect our goodwill.
10.4. If any of the several separate and independent covenants and restraints in clause 10 are or become invalid or unenforceable for any reason, then that invalidity or unenforceability will not affect the validity or enforceability of any of the other separate and independent covenants and restraints in clause 10.
10.5. The prohibitions and restrictions contained in this clause do not prohibit the holding of up to a maximum of 5% of the shares of any corporation admitted to the official list of a recognised stock exchange.
11.1. You will be in default if:
- (a) you fails to strictly comply with these terms;
- (b) if (in our reasonable opinion) there is an adverse change in your financial position;
- (c) you become bankrupt or commit an act of bankruptcy or enters into a scheme or arrangement or composition with its creditors; or
- (d) being a corporation, if an administrator, liquidator, receiver or receiver and manager is appointed or if you become incapable of managing your own affairs.
11.2. Upon default, we may in its discretion do any one or more of the following:
- (a) terminate these terms;
- (b) declare that all amounts owing us by you are immediately due and payable, whereupon such amount must be paid on demand;
- (c) sue you for damages;
- (d) withhold or suspend your access to the Website.
11.3. You acknowledge that damages may not be adequate compensation for a breach of these Terms and that we may seek injunctive relief against you.
11.4. You must pay our legal costs (on an indemnity basis) of enforcing any of our rights under these Terms.
12.1. Either you or we may terminate these Terms by giving the other two (2) weeks’ notice in writing.
12.2. If termination occurs whilst you have uncompleted Registered Event(s), then we must continue to allow those Registered Events to be on the Website until completion of those Registered Events unless termination arises from your default.
12.3. Upon termination or expiration of these Terms:
- (a) your rights to use the Website cease (except if clause 12.2 applies and only to the extent required to give effect to that clause);
- (b) you must return to us, at your cost, all advertising material, promotional aids and other materials supplied by us to you;
- (c) you must not use any name, business name, trade mark or similar the same as or similar to the Website or any part thereof;
- (d) We may take such other action as we wish to take including changing or deleting your login details.
12.4. Termination is without prejudice to any of our accrued rights in respect of breaches of these terms by you.
13. Force Majeure
If we are prevented from or restricted in carrying out its obligations on any matter our reasonable control, then we are excused from carrying out our obligations to the extent of the cause of the non‐ performance but we must use its best endeavours to avoid or remove the cause of the non‐performance as quickly as reasonably possible .
14. Dispute resolution
14.1. A party must not commence arbitration or court proceedings (except to obtain interlocutory relief) in respect of a dispute arising out of this document, its breach or termination or a claim as to its validity (dispute) until it has complied with this clause.
14.2. A party claiming that a dispute has arisen must notify each other party to this document in writing giving details of the dispute.
14.3. Within the period of seven (7) days following service of a notice under clause 14.2 we must meet (which can be by electronic means) and use their best efforts to resolve the dispute.
14.4. If the parties to the dispute are unable to resolve the dispute by discussion under clause 14.3 the parties to this document and to the dispute agree that before having recourse to arbitration or litigation they will attempt to settle the dispute by mediation:
- (a) administered by the Australian Commercial Disputes Centre (ACDC); and
- (b) conducted in accordance with the ACDC Guidelines for Commercial Mediation in operation when the dispute is referred to ACDC, which Guidelines are deemed incorporated into this document.
14.5. This clause 14 survives termination of this document.
15. Electronic Communications
15.1. You agree to receiving information from us in electronic format. You also consent to receiving information from Album Registry in relation to services that it provides or services of other parties that Album Registry may choose to forward to the Member.
16. General provisions
16.1. Each party must pay its own costs in relation to:
- (a) the negotiation, preparation, execution, performance, amendment or registration of, or any consent given or made; and
- (b) the performance of any action by that party in compliance with any liability arising, under these terms, or any agreement or document executed or effected under these Terms, unless this document provides otherwise.
16.2. If any payment made by us to you under or relating to these terms constitutes consideration for a taxable supply for the purposes of GST or any similar tax, the amount to be paid for the supply will be increased so that the net amount retained by us after payment of that GST is the same as if we were not liable to pay GST in respect of that supply. This provision is subject to any other agreement regarding the payment of GST on specific supplies, and includes payments for supplies relating to the breach or termination of, and indemnities arising from, this document.
16.3. You must promptly within the initial applicable period prescribed by law pay any duty payable in relation to the execution, performance and registration of this these terms, or any agreement or document executed or effected under these Terms.
16.4. Each party must execute any document and perform any action necessary to give full effect to this document, whether before or after performance of these Terms.
16.5. Any provision of these Terms which is invalid in any jurisdiction is invalid in that jurisdiction to that extent, without invalidating or affecting the remaining provisions of this document or the validity of that provision in any other jurisdiction.
16.6. Any failure by you to exercise any right under these terms does not operate as a waiver and the single or partial exercise of any right by you does not preclude any other or further exercise of that or any other right by you.
16.7. Our rights under these terms are cumulative and not exclusive of any rights provided by law.
16.8. We retain information in relation to you and use it only for the purpose for which it was collected or where you would reasonably expect us to use or disclose information as part of normal business activities, or when required by law. You may access your information and correct and update that information at any time by contacting us.
16.9. You must give written notice to us within seven (7) days of any change of your details as recorded in the Application. Changes to the Member (even if notified to us) do not relieve you of any liability to us. We may treat a notification as a new application to access and use the Website in which case we may terminate these terms and consider that Application in its discretion.
16.10. We may assign or licence any or all of our rights and obligations under these terms without requiring the your consent. You may not assign any of your rights or obligations under these Terms, unless you obtain our prior written consent, which may be given, withheld or given on conditions in our absolute discretion.
16.11. The parties submit to the non-exclusive jurisdiction of the courts of Queensland, Australia.
16.12. You warrant that you had the opportunity to read these terms and to obtain your own independent advice (including legal advice) about these terms.
16.13. These terms constitute the entire agreement between us.
17. Definitions and interpretation
17.1. In these Terms unless the context otherwise requires:
Administration Fee means the fee charged by us for services provided under these terms which fee, will be charged as:
- (a) a percentage of the Price Per Gift which percentage will be added to the amount payable by users of the Website with the intent that the net amount remitted to the you will represent the Price Per Gift and the gross amount paid by the Website user will represent the Price Per Gift plus the consideration payable to us. We may, in our discretion, determine the amount of that percentage and change it from time to time; and
- (b) a subscription amount in which case the provisions of clause 8.2 will apply
Approved Purpose means the promoting a payment platform for albums produced by you.
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Brisbane, Australia.
Claim includes any allegation, debt, cause of action, claim, notice, demand, action, proceeding, litigation, investigation, judgment, loss, cost, expense or Liability of whatever nature however arising and whether present or future, fixed or unascertained, actual or contingent, and whether arising at law, in equity, under statute or otherwise.
Customer Agreement means any agreement made in accordance with clause 3.3.
GST means any tax, levy, charge or impost implemented under the A New Tax (Goods and Services Tax) Act (GST Act) or an Act of the Parliament of the Commonwealth of Australia substantially in the form of, or which has a similar effect to, the GST Act.
Liabilities means all liabilities (whether actual, contingent or prospective), loss, damages, costs and expenses of whatever description and however and whenever arising.
Member’s Customers(s) means consumer(s) who have engaged your services to produce an album for a Registered Event.
Member’s Payment means the total amount collected for a Registered Event via the Website less the amount payable to us on account of the Administration Fee, which must not exceed the maximum amount for the services provided by you under the relevant Customer Agreement for a Registered Event.
Price Per Gift means the price determined by you for a page in an album for a Registered Event.
Registered Event means an event for which you are providing services (including the production of an album) to a Member’s Customer and where details of that event have been uploaded to the Website by you pursuant to these terms.
Services means the services set out in clause 4.
Website means the website associated with the domain name www.albumregistry.com.
In these Terms unless the context otherwise requires:
- (a) clause and subclause headings are for reference purposes only;
- (b) the singular includes the plural and vice versa;
- (c) words denoting any gender include all genders;
- (d) reference to a person includes any other entity recognised by law and vice versa;
- (e) a reference to time is a reference to time in Queensland, Australia;
- (f) where a word or phrase is defined its other grammatical forms have a corresponding meaning;
- (g) any reference to a party to this document includes its successors and permitted assigns;
- (h) any reference to any agreement or document includes that agreement or document as amended at any time;
- (i) the use of the word includes or including is not to be taken as limiting the meaning of the words preceding it;
- (j) the expression at any time includes reference to past, present and future time and the performance of any action from time to time;
- (k) an agreement, representation or warranty on the part of two or more persons binds them jointly and severally;
- (l) an agreement, representation or warranty on the part of two or more persons is for the benefit of them jointly and severally;
- (m) reference to a provision described, prefaced or qualified by the name, heading or caption of a clause, subclause, paragraph, schedule, item, annexure, exhibit or attachment in this document means a cross reference to that clause, subclause, paragraph, schedule, item, annexure, exhibit or attachment;
- (n) when a thing is required to be done or money required to be paid under this document on a day which is not a Business Day, the thing must be done and the money paid on the immediately preceding Business Day; and
- (o) reference to a statute includes all regulations and amendments to that statute and any statute passed in substitution for that statute or incorporating any of its provisions to the extent that they are incorporated.