// To be removed before Go Live!
This is currently in development stage. It is for testing and sample purposes only.
Any money/goods lost on this website at this stage will not be our responsibility as this is still under construction and no product is real
The below is terms and conditions using free template for default version 2
Effective: 14/10/2021
Last Updated: 14/10/2021
1. Definitions
Certain terms in these Terms start with capital letters. Unless the context provides otherwise, those words have the meaning given to them in the body of these Terms.
The following definitions apply to these Terms: ‘Artist’ means the person who provides Artworks that are offered via the Application. ‘Artwork’ means a digital image of an artwork created by an Artist and offered for use under a licence and/or sale via the Application. ‘Buyer’ means a User that is approved to access the Application and purchase using the application. ‘Content’ means all forms and formats of content, data, information and material contained, incorporated, connected to or made available on or in relation to our Application and Social Media (including from our partners, affiliates, related service providers and other third-parties), including without limitation
a. text, contact details, documents, reports, papers, articles, comments;
b. graphics, images, logos and photographs;
c. sound files and music;
d. other recordings, including video and live feed;
e. software or code;
f. Indigenous Cultural and Intellectual Property (ICIP);
g. websites, social media, applications;
h. links, posts, advertising, communications;
i. other products or services.
‘IndigoPixl Commission’ means the commission that is payable to IndigoPixl on all Sales.
‘Indigenous Cultural and Intellectual Property’ or ‘ICIP’ means Australian Aboriginal and Torres Strait Islander peoples’ rights to their heritage. Heritage comprises all objects, sites and knowledge including language, the nature or use of which has been transmitted or continues to be transmitted from generation to generation, and which is regarded as pertaining to a particular Aboriginal or Torres Strait Islander group or its territory.
‘Intellectual Property (IP)’ means copyright, patents, registered and unregistered trademarks, registered designs, trade secrets and know-how, confidential information, all rights under any legislation relating to the protection of computer programs, circuit layouts and all other intellectual property as defined by Article 2 of the ‘Convention Establishing the World Intellectual Property Organisation’ dated July 1967.
‘Licence’ means the right to use the Artwork in specific ways, as displayed in writing on the Application and agreed to by the Buyer.
‘Licence Fee’ means the price for obtaining a Licence and/or sale to a particular Artwork, including Taxes and the IndigoPixl Commission.
‘Malicious Computer Program’ means files that consist of malicious computer program, including programs that include viruses, Trojan horses, worms or any other computer programming that may damage, modify, delete, detrimentally interfere with, access without authority or expropriate any system, data or personal information; that may cause damage to the Application or Social Media, content on either, our property or the property of other individuals or organisations.
“Payment Method” means a financial mechanism that used to make payments for Licence and/or sales, such as a Cryptocurrencies, credit card, Esko, Bank Deposit, PayPal, PayID or cash payment.
‘Taxes’ means any applicable taxes, including GST, tourist or other visitor taxes that apply to the Artwork.
‘Third Party Content’ means Content, data, information, applications, services, websites and materials from, incorporating, linked or connected to third parties (including our partners, affiliates and related service providers).
‘User’ means a person
2. USING THE APPLICATION
The Application INDIGOPIXL, is owned and operated by IndigoPixl for and on behalf of FATMATT ENTERPRISES PTY LTD (ACN 126 700 383) ITF THE SERRANO-EVERITT FAMILY TRUST ABN 40 384 718 582 (IndigoPixl, we, our or us). By accessing and/or using our Application, you agree to bound by these Terms.
Use of our Application is entirely at your own risk. You must only use the Application in accordance with these Terms and any applicable law. You should immediately cease using our Application if you do not agree to these Terms.
These Terms also govern updates, upgrades and new and amended versions of the Application, unless such versions are accompanied by new terms for use, which will govern those versions.
3. PRIVACY AND COLLECTION OF PERSONAL INFORMATION
We collect personal information about you:
a. to process your orders,
b. to provide you with access and use of the Application,
c. to provide you with our products and services,
d. to respond to your enquiries and feedback,
e. to provide you with details of updates, promotional material and other information relevant to our products and services, and
f. for purposes otherwise set out in the APPs.
We will handle all personal information we collect in accordance with the Australia Privacy Principles (APPs) contained in Schedule 1 of the Privacy Act 1988 (Cth).
We may disclose that information to third parties that help us deliver our Application, Content, products and services (including information technology and communication suppliers, online payment suppliers, postal services, related service providers, our manufacturers and our business partners, contractors and artists) or as required by law.
By providing your personal information to us, you consent to the collection, use, storage and disclosure of that information as described in these Terms. If you do not provide this information, we may not be able to provide all of our products or services to you.
Provided that we do not disclose your personal identity in doing so, we can collect, copy, communicate, adapt and exploit data from your use of the Application (and, for the avoidance of doubt, associated Third Party Content) and associated devices, systems, software and peripherals, to improve our products and delivery of our services to you.
4. Accuracy, completeness and timeliness of information
The information on our Application is not comprehensive and is intended to provide a summary of the subject matter covered. While we use all reasonable attempts to ensure the accuracy and completeness of the information on our Application, to the extent permitted by law, including the Australian Consumer Law, we make no warranty regarding the information on our Application. You should monitor any changes to the information contained on our Application.
We may, from time to time and without notice, change or add to the Application (including the Terms) or the information, Artwork or services described in it. However, we do not undertake to keep the Application updated. We are not liable to you or anyone else if errors occur in the information on the Application or if that information is not up-to-date.
5. COPYRIGHT, ICIP RIGHTS AND MORAL RIGHTS TITLE AND COPYRIGHT
The Artist retains copyright in the Works.
You are granted permission to use the Works only as described in Items 3, 4 and 5 of the Schedule.
You are not permitted to use the Works in any ways other than as explicitly listed in the Schedule, or as otherwise agreed in writing and signed by both parties.
Except as permitted by this Agreement, you must not allow others to reproduce the Works or any part of the Works without the prior written consent of the Artist, obtained through us.
LICENCE FOR EXTERNAL USE
In consideration of the External Use Fee to be paid to us under this Agreement, we grant to you a non-exclusive licence, for the term and in the Territory, to use, reproduce, publish and communicate to the public, the Works, in connection with the agreed uses listed in Item 4 of the Schedule.
Except as permitted in Item 6 of the Schedule, you must not adapt or alter the Works or any part of the Works without the prior written consent of the Artist, obtained through us.
LICENCE FOR PRODUCTS
Where relevant, as indicated in Item 5 of the Schedule, and in consideration of the Product Fee under this Agreement, we grant you a non-exclusive licence, for the Term and in the Territory, to use, publish, reproduce, adapt, communicate to the public and incorporate the Works only in connection with the manufacture, importation and distribution of the Product/s listed in Item 5 of the Schedule.
To clarify, the licence granted in clause 3.9 includes the right to sub-licence the rights to others but only for the Purposes of manufacturing, importing and distributing the Products.
To maintain the integrity of the Work and respect the Artist’s Moral Rights, the Hirer acknowledges and agrees that it may only alter or adapt the Work(s) as may be considered reasonable in order to reproduce the Work for the approved products listed in Item 5 of the Schedule, subject to the Artist’s final approval of samples of the Products on which the Work is permitted to be reproduced. This approval will be obtained from the Artist through IndigoPixl.
The Hirer will provide adequate time for IndigoPixl to obtain the Artist’s approval of samples of Products incorporating the Artwork prior to its manufacture, printing or distribution (whichever happens first), particularly as there may be cultural issues regarding how the Artwork is shown or used.
IndigoPixl will endeavour to respond to requests for approval without undue delay. Approvals must be made in writing.
The Products are only to be created and used for non-commercial purposes.
NO COMMERCIAL USE UNLESS AGREED PRIOR
The Hirer agrees that Work(s) will not be used, published, reproduced and communicated for any other purposes not stipulated in this Agreement. In particular, any commercial use is prohibited without the prior written consent of the Artist through IndigoPixl and negotiating additional fees with the Artist, through IndigoPixl, for that use.
SUB-LICENCING
The licences granted by IndigoPixl under clauses 3.5 and 3.7 are only to you, as the Hirer. You may only sub-licence the rights granted under these clauses to the people or entities listed in Item 7 of the Schedule, for the agreed uses listed in the Schedule.
You agree that any sub-licence made by you to the people or entities listed in Item 7 must be on the same terms and conditions of this Agreement.
MORAL RIGHTS
You acknowledge the existence of the Artist’s Moral Rights in the Works and agree to attribute the Artist as the creator of the Works, during the Term.
During the Term, you must attribute the Artist as the creator of the Works, and IndigoPixl as the licensor and manager of the Works, using the information provided in Item 14 of the Schedule, or otherwise in accordance with any digital label or copyright notice we provide you. This attribution must be displayed in a prominent part in any display, publication or other use of the Works.
If you Publish any photographs or film which contain the Works, or part of the Works, you must include a notice in accordance with the requirements contained in Item 14 of the Schedule.
ACCOMPANYING STORY
IndigoPixl grants to the Hirer the right to reproduce the Accompanying Story in Item 15 of the Schedule to accompany the Work where the Work is permitted to be used, published, reproduced and communicated under clause 3 of this Agreement.
You must attribute the Artist as the creator of the Accompanying Story in all materials that reproduce the Accompanying Story, where it is reasonably practicable to do so.
You agree not to make any substantial changes to the Accompanying Story without the prior written consent of IndigoPixl on behalf of the Artist.
Nothing in this agreement affects copyright ownership of the Accompanying Story, which is owned by the Artist.
INDIGENOUS CULTURAL AND INTELLECTUAL PROPERTY RIGHTS
You acknowledge and respect cultural protocols of Indigenous people which may apply to the Works.
If the Works incorporate ICIP, we will inform you and you must (and ensure that your employees, staff, contractors, sub-licensees, representatives must):
a. Comply with any restrictions on using and dealing with any ICIP about which we notify you;
b. Ensure that relevant Traditional Owners or Custodians are attributed as owners or custodians of the ICIP, in a form agreed to by the parties;
c. Not use the ICIP for any other purpose other than as part of the Works and the purpose in which the Works was hired to you for display under the terms of this Agreement.
d. You agree that in the event of the death of the Artist while this Agreement is in place, this Agreement will continue for the Term, however with respect to the ICIP rights contained in the Works, we will discuss ongoing use of the artist’s name, likeness and biography in connection with the Works with that artist’s next-of-kin and you must comply with any restrictions or directions required by us in order to respect ICIP rights.
SECRET AND SACRED MATERIAL
IndigoPixl works closely with the Artist to ensure that all Works are suitable for public display and do not contain secret or sacred knowledge and is suitable to be shared and made available to the public. However, IndigoPixl may later be advised (e.g. by Elders or other authorised members of the Artist’s community) that the Work is not suitable for public display or use.
You agree that where a Work contains secret or sacred knowledge, the Director may immediately recall a Work upon giving notice.
You agree to work cooperatively with us where a Work has been made publicly available prior to being recalled under clause 4.5, including by following the processes outlined in clause 5.2.
INDIGENOUS DATA SOVEREIGNTY
You agree and acknowledge the right of Indigenous peoples to sovereignty over their ICIP in digital forms and data.
You agree to:
a. Establish and maintain appropriate safeguards to prevent loss of, damage to, and unauthorised access to or use or disclosure of, the Works and associated data;
b. In relation to storage and safe-keeping of the works, including long term storage where relevant, comply with your own data security policies and standards, and have due regard to good information security practices and procedures; and
c. Notify IndigoPixl within 24 hours if you, your employees, contractors, sub-licensees or other relevant persons become aware of any security breach involving the Works, including data breaches whether malicious or caused by human error, and outline the steps you will take to immediately address such breach or occurrence;
d. You agree that your obligations under clause 4.7 and 4.8 extend to your employees, contractors, sub-licensees and agents, and that you assume responsibility for their compliance with the requirements of clause 4.7 and 4.8.
INTELLECTUAL PROPERETY RIGHTS
Unless otherwise indicated, we own, license or have express written permission from third parties all rights, title and interest (including copyright, designs, patents, trademarks and other intellectual property rights) in our Application, and in all of the material (including all text, graphics, logos, audio and software) made available on our Application (Content).
Your use of our Application, and use of and access to any Content, does not grant or transfer any rights, title or interest to you in relation to our Application or the Content.
However, we do grant you a licence and/or sale to access the Application and view the Content on the terms and conditions set out in these Terms and, where applicable, as expressly authorised by us and/or our third-party licensors.
You:
a. Acknowledge that the Content held on the Application is protected by intellectual property rights (including copyright) and will comply with those rights, including the Moral Rights of the creator;
b. Will acknowledge, reference or attribute the relevant creator and copyright owner and traditional owner/ICIP custodian, as relevant, in any use of the Content, as required or notified by IndigoPixl;
c. Will not change, alter or adapt the Content, or circulate material that has been changed, altered or adapted, beyond the scope of the End User Licence;
d. Will not use the Content for commercial purposes under any circumstances without first seeking written permission from the copyright owner and/or traditional owner/ICIP custodian;
e. Will not apply legal terms or technological measures to the Content that legally restrict others from doing anything that the licence and/or sale permits;
f. Recognise that the Content is provided without any warranty regarding its quality, accuracy, completeness, currency, relevance or suitability for any particular purposes and that you use the Content at your own risk (see Disclaimer below);
g. Respect any cultural notices or restrictions regarding the access and use of the Content.
Your access and use of the Application and Content does not grant or transfer any right, title or interest, including Intellectual Property nor ICIP unless otherwise agreed to by the artist.
Any reproduction or redistribution of our Application or the Content, in whole or in part, is prohibited and may result in civil and criminal penalties. In addition, you must not copy the Content to any other server, location or support for publication, reproduction or distribution is expressly prohibited.
All other use, copying or reproduction of our Application, the Content or any part of it is prohibited, except to the extent permitted by law. However, you are permitted to make one copy of Application pages for the purpose of viewing the Content for your own personal use.
INDIGENOUS CULTURAL AND INTELLECTUAL PROPERTIES (ICIP)
Our Application and Content may incorporate ICIP, which belongs to the Aboriginal or Torres Strait Islander Traditional Owners or custodians of that ICIP. You agree that ownership of any such ICIP will remain at all times with the Traditional Owners or custodians of that ICIP.
In any access or use of the Application or Content incorporating ICIP, you agree to:
a. respect the ICIP rights of the Traditional Owners or custodians of that ICIP, and comply with any relevant cultural protocols of IndigoPixl;
b. ensure that Traditional Owners or Custodians continue to be acknowledged as owners of any ICIP incorporated in the Application or Content;
c. not use the ICIP for any purpose without the prior written consent of the Traditional Owners or custodians of that ICIP.
IndigoPixl follows values from industry art codes and encourages you to deal sensitively and respectfully with the Artworks viewed on or purchased through the Application.
LINKED SITES
Our Application may contain links to websites or social media operated by third parties. Those links are provided for convenience and may not remain current or be maintained. Unless expressly stated otherwise, we do not endorse and are not responsible for the content on those linked websites or social media and have no control over or rights in those linked websites or social media.
UNACCEPTABLE ACTIVITY ON THE APPLICATION
You must not do or attempt to do any act in relation to the Application or Content on the Application that IndigoPixl would deem to be inappropriate, culturally insensitive, is unlawful, or which is prohibited by any applicable laws.
You agree that in any interaction you may have with the Application or any Content on the Application (including without limitation depositing, accessing or using Content on the Application), you will not:
Access or use, or allow any other person, group or organisation to access or use Content which you are not permitted to access or use, including accessing or using any other person’s Account;
Access or use the Content outside of the scope of any permission or licence and/or sale granted to you by IndigoPixl, including on behalf of the Artist;
If you are an Artist, deposit any Content to the Application that infringes the Intellectual Property (including copyright) or Indigenous Cultural and Intellectual Property (ICIP) rights of third parties;
Infringe any other third-party rights;
Provide false or misleading information to IndigoPixl or our respective personnel, contractors, suppliers or affiliates;
Compromise or disclose sensitive data or confidential information (including ICIP);
Breach the privacy (including uploading private or personal information without an individual’s consent) or any other of the legal rights of individuals;
Behave in a manner that is or could reasonably be considered in our opinion to be annoying, obscene, inappropriate, culturally insensitive, defamatory, disparaging, indecent, seditious, offensive, pornographic, threatening, abusive, liable to incite racial hatred, discriminatory, blasphemous, in breach of confidence or in breach of privacy;
Deposit files to the Application that consist of Malicious Computer Program, including programs that include viruses, Trojan horses, worms or any other computer programming that may damage, modify, delete, detrimentally interfere with, access without authority or expropriate any system, data or personal information; that may cause damage to our property or the property of other individuals or organisations;
Interfere with or circumvent any security-related or other features of the Application, nor tamper with, hack into, or in some other way disrupt any computer system, service, network, website, router, or other device used to host the Application or make the Application available;
Attempt to, nor purport to authorise others to, copy, reproduce, adapt publish, communicate to the public, redistribute, edit, adapt, vary, decompile, reverse engineer or modify the Application or any part of it, nor seek to derive its source code; and except where you are expressly permitted in writing to do so by us;
Use data mining, robots, screen scraping or similar data gathering and extraction tools on the Application or in relation to Content;
Inhibit or interfere with other Users’ enjoyment and use of the Application;
Cause IndigoPixl to breach any law, lore, regulation, rule, code or other legal or cultural obligation;
Defame IndigoPixl or our personnel, contractors, suppliers, affiliates, members, or any other individuals, groups or organisations; or
Link to our Application in a way that damages or takes advantage of our reputation, including in a way to suggest or imply that you have any kind of association or affiliation with us where there is none, or approval or endorsement from us when there is none, or in a way that is illegal or unfair.
WARRANTIES AND DISCLAIMERS
The Application and Content is provided ‘as is’ and to the maximum extent permitted by law, including the Australian Consumer Law, we make no express or implied warranties or representations, and disclaim all responsibility, that:
the Application or the Content will be complete, accurate or up-to-date;
the Application or the Content are of a merchantable quality or fit for a particular purpose;
access to the Application or the Content will be uninterrupted or error-free or free from Malicious Computer Program; or
the Application or the Content will be secure.
We do not warrant that the Artwork will meet your individual requirements and you acknowledge that the Artwork are not made bespoke to fit any particular requirements of yours.
We reserve the right to cease offering the Application or any feature of the Application, or any Content, at any time without notice and we will not be responsible for any loss, cost, damage or liability that may arise as a result.
LIMITAIONS OF LIABILITY
We acknowledge that in Australia, goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. Nothing in these Terms purports to modify or exclude the conditions, warranties and undertakings, and other legal rights, under the Australian Competition and Consumer Act 2010 (Cth) and other laws. Any and all other warranties or conditions which are not guaranteed by the Australian Consumer Law or the Competition and Consumer Regulation 2010 are expressly excluded where permitted, including liability for incidental or consequential damages caused by breach of any express or implied warranty or condition.
To the maximum extent permitted by law, including the Australian Consumer Law, in no event will we (including us, our affiliates, our third-party suppliers, or any officer, director, employee, sub-contractor, agent, body corporate or successor) be liable for any direct or indirect loss, liability, costs, damages, charges or expenses – irrespective of the manner in which it occurs – which may be suffered as a result of:
your use of our Application, Content and/or any other information or materials contained on the Application;
the unavailability, inaccessibility or interruption of usage of the Application;
Content, information or materials contained on the Application being incorrect, incomplete or not up-to-date;
Content, information or materials provided to you free-of-charge;
any delay or failure in performance beyond the reasonable control of us; or
loss of data.
We are not liable to you or anyone else if interference with or damage to your computer systems occurs in connection with the use of our Application or a linked website. You must take your own precautions to ensure that whatever you select for your use from our Application is free of Malicious Computer Program that may interfere with or damage the operations of your computer systems.
To the maximum extent permitted by law, we are not responsible for any indirect, special or consequential liability to a customer or user (including legal fees) arising out of or from Content or use of the Application.
You understand that IndigoPixl does not manufacture, store, or inspect any of the items sold through our Application. We do not make any claims about the quality, safety or legality of products offered for sale by a Merchant. Any legal claim related to a product you purchase from a Merchant must be brought directly against the Merchant.
You release IndigoPixl from any claims related to products sold on our Application, including but not limited to:
products being faulty or defective;
misrepresentations about the products by the Merchant;
products not being sufficient for your purposes or not meeting your individual requirements.
INDEMNITY
You agree to indemnify and hold us, our affiliates, third-party suppliers, and any officer, director, employee, sub-contractor, agent, body corporate or successor, harmless from and against any and all claims, demands, proceedings, losses and damages (actual, special or consequential) of every kind and nature, known and unknown, including reasonable legal fees, due to or arising out of:
a. your breach of these Application Terms and Conditions; or
b. your breach of any law or the rights of a third party.
COOKIES POLICY
You agree that:
1. we may store cookies on your devices; and
2. we may issue and request cookies from your device to collect both personal and non-personal information.
You may disable cookies on your browser if you do not agree to this cookies policy.
We use cookies for the following reasons, including but not limited to:
a. improve our performance by reporting any errors that occur;
b. provide statistics about how the Application is used;
c. remember settings that you use for our Application;
d. identify and show that you are logged into the Application;
e. link to social networks like Facebook and Twitter;
f. provide more suitable ads tailored to you.
BREACH OF THESE TERMS
If you breach any of these Terms, we may take appropriate actions, including but not limited to cancelling your current and future Licence and/or sales.
GENERAL
ENTIRE AGREEMENT: these Terms embody the whole agreement of the parties relating to the subject matter of these Terms and supersedes all previous agreements in respect of your usage of our Application.
AMENDMENT: We reserve the right to make changes to the Application and these Terms at any time without notice. All amendments will be posted on our Application. Continued use of the Application will be deemed to constitute acceptance of the new Terms.
ASSIGNMENT: You may not assign or delegate or otherwise deal with all or any of your rights or obligations under these Terms. We have the right to assign or otherwise delegate all or any of our rights or obligations under these Terms to any third-party.
NO WAIVER: No waiver by us of any default of yours under these Terms will operate or be construed as a waiver by us of any future defaults, whether of a like or different character. No granting of time or other forbearance or indulgence by us to you will in any way release, discharge or otherwise affect your liability under these Terms.
NOTICES: Unless otherwise stated within these Terms, notices to be given to either party will be in writing and delivered by electronic mail at the email address you supplied to us or to use at our office.
THIRD PARTY RIGHTS: All provisions of these Terms apply equally to and are for the benefit of us, our affiliates, third-party suppliers, and our and their officers, directors, employees, sub-contractors, agents, body corporates or successors, and each will have the right to asset and enforce such provisions directly or on its own behalf (save that these Terms may be varied or rescinded without the consent of those parties).
SEVERABILITY: If any provision of these Terms is held to be unlawful, invalid or unenforceable, that provision will be deemed severed and where capable the validity and enforceability of the remaining provisions of these Terms will not be affected.
GOVERNING LAW: Your use of the Application and these Terms are governed by the law of the Victoria of Australia and you submit to the non-exclusive jurisdiction of the courts exercising jurisdiction in the Victoria.