Effective from 01/01/19
Please read these terms and conditions of use carefully. By using this website you will be entering a legal contract in accordance with these terms and conditions.
(a) The interface called MADCAP Global Marketing (Interface) is owned and operated by MADCAP GLOBAL PRODUCTIONS Pty Ltd (ACN 73 097 111 361), which is registered in Queensland, Australia (Company).
(b) In these terms and conditions (Terms), references to the “User” are to you, the end user of the Interface (User). These Terms will also refer to other end users of the Interface. Where the word ‘user’ is not capitalised it refers to users of the Interface in general, rather than to you specifically.
The Company may amend these Terms at its sole discretion by providing the User with a period of notice that the Company determines to be reasonable. If the User chooses to unsubscribe from the Company’s mailing list, the Company will not have the ability to notify the User of changes to these Terms, and it will be the User’s responsibility to regularly check these Terms at www.madcapglobalmarketing.com/terms-of-use
(g) By continuing to use the Interface after an amendment to these Terms, the User agrees to be bound by these Terms as amended.
(h) All notices, enquiries and complaints can be communicated to the Company at firstname.lastname@example.org
(i) Your use of the Services includes the ability to enter into agreements and make transactions electronically. You acknowledge that your electronic submissions constitute your agreement to be bound by such agreements and transactions.
2 Conditions of Use of Interface
(a) The User is granted a limited and revocable license to view and use the Interface in accordance with these Terms if the User:
(i) is over the age of 13 years;
(ii) is capable of forming binding contracts;(iii) is not breaking any law by accessing and using the Interface (by reference to laws in the User’s jurisdiction and the Company’s);
(iv) uses the Interface for lawful purposes only (by reference to laws in the User’s jurisdiction and the Company’s);
(v) uses the Interface only in the way that it is designed to be used; and
(vi) does not engage in any improper, indecent, bullying, harassing or offensive conduct while using the Interface (as determined by the Company at its sole and absolute discretion).
(b) The User’s licence to use the Interface will be immediately revoked if the User breaches any of the conditions of use in this clause.
(c) Children under the age of majority should review the Terms with their parent or guardian to ensure that the child and parent or legal guardian understand them.
3 Account Registration
(a) In order to access certain parts and functionality of the Interface, including simplified purchase functionality, the User must register a membership account on the Interface (Account). Users who not have an account may be required to enter their details for every purchase they make on the Interface.
(b) Only persons age 13 years or older can create Accounts. Accounts for persons under 13 years old can be created by a parent or legal guardian or by an approved educational institution.
(c) Subject to these Terms, the Company grants to the User a limited and revocable license to register an Account while the User remains in compliance with these Terms. The Company reserves the right to revoke this licence and close the User’s account with no notice at its absolute and sole discretion.
(d) When the User registers an Account, the User undertakes to:
(i) provide information during the registration process that is accurate and complete in all respects; and
(ii) represent him or herself only, and not impersonate any other person (with or without their consent) while using the Interface;
(e) It is the User’s sole responsibility to keep their username and password secure. Users are solely responsible for the use of their Account, irrespective of who is using it, even if it is used without the their permission.
(f) The User agrees that the Company sending emails to the User to enable direct access to the User’s Account without a password as part of the Company’s password reset process. The User acknowledges and agrees that anyone with access to the email account specified in the Account details will indirectly have access to the User’s Account.
4 Product Information and Availability
(a) The User agrees and acknowledges that the Company’s provision of the Interface, of streaming samples of sound recordings, and of promotional material does not constitute advice by the Company in any way.
(b) The Company may sell digital copies of sound recordings and cinematograph films to the User for download from the Interface (Products).
(c) Products are available for consumers, and unless agreed in writing, the Company does not wholesale Products.(d) All prices on the Interface are shown in Australian Dollars (AUD) and include GST.
(e) Representations of Products for sale on the Interface do not constitute an offer to sell but an invitation to treat. Such representations do not warrant that the Product is available.
(f) The User agrees and acknowledges that there may be technical or administrative errors in the information on the Interface, including but not limited to errors with respect to product description, pricing and availability.
(g) Where a User makes an order or payment based on erroneous information, the Company may, with notice to the User, cancel the order and refund any payment made in respect of it.
(h) The Company reserves the right to do any of the following without notice:
(i) change any price; and
(ii) correct any errors,
(iii) limit quantities of Product sold.
(i) User of the Interface requires Internet access and certain software. It may require periodic updates, and may be affected by the performance of these factors. Meeting these requirements, which may change from time to time, is the User’s responsibility.
5 Delivery and Return of Goods
(a) Any automated confirmation receipt connected with an order placement or processing of a payment for an order through the Interface does not constitute acceptance of an order by the Company. If the Company declines the User’s order after a payment for the order has been processed, the Company will contact the User with the details and refund the payment in full.
(b) The User has no right to download a Product until the Company has received payment for the Product in full.
(c) The User agrees to take on the risk for the Products, such as loss or damage, when the Product download begins.
6 Customs, Duties and Taxes
(a) The User agrees to pay any customs, duties or taxes with respect to the Products that the Company delivers to locations outside of Australia, including GST. With the exception of GST, these costs will be in addition to the purchase price that the Company quotes on the Interface.
(a) The User agrees to pay all fees and charges, including GST in respect of the Products as required on demand, in full and without set-off.
(b) Unless stated otherwise, and insofar as permissible under laws, there are no refunds.
(c) Users with Accounts will be able to save payment details to expedite payment. The User understands that, if the User has opted for credit card payment, then clicking the ‘make payment button while logged in will result in the Interface charging the card registered to the User’s Account, and starting the download immediately, without any further steps.
8 Usage Rules for Products
(a) Products may include security technology that limits the User’s use of Content. Such limitations may go beyond the limitations that copyright law imposes on the Users use of Content.
(b) Whether or not Products are limited by security technology, the User agrees to the following rules (Usage Rules):
(i) the User is authorised to use Products for personal, non-commercial use only;
(ii) the User may make whatever copies of the Interface and Products as are necessary for ordinary browsing of the Interface, and download of the Products;
(iii) the User may keep a copy of Products downloaded from the Interface on no more than 5 different devices at any time; and
(iv) the user may ‘burn’ to disk copies of any Product the User has downloaded from the interface no more than 7 times.
9 Intellectual Property
(a) All title, ownership rights and intellectual property rights, including copyright, in relation to the Interface is owned or used under licence by the Company.
(b) All intellectual property rights, including copyright, in the Products are owned or used under licence by the Company.
(c) When the User purchases a Product, the Company grants the User a non-exclusive, non-transferable licence to use the Product in accordance with these Terms.
(d) The sale of a Product does not otherwise constitute a waiver, grant or limitation of any rights of the owners of the intellectual property rights in:
(i) any Content embodied in the Interface; or
(ii) any Product.
(e) Without limiting the foregoing subclause
(d), and except as provided by the Usage Rules above, the User will not do any of the following without the express written permission of the Company:
(i) reproduce, modify or adapt all or part of the Interface or any Product on it in any way;
(ii) incorporate all or part of the Interface, or any Product, in any other webpage, site, application or other digital or non-digital format;
(iii) share Products with other persons, including by way of loan;
(iv) transmit, broadcast or communicate Content embodied in the Interface or any Product; or
(v) make Products available for resale.
(f) The Interface includes registered and unregistered trade marks, including but not limited to the name MADCAP and the associated logos
(g) The User shall not copy, alter, use or otherwise deal in the Company’s trade marks without the prior written consent of the Company.
10 Gifts and Promotions
(a) The Company may issue or sell gift certificates, gift cards or promotional download or discount codes which will operate on the Interface (Gifts).
(b) Gifts will not be redeemable for cash, and Users may not exchange or resell them except with the Company’s express written permission.
(c) The Company is not responsible for lost or stolen Gifts. Risk of loss and title for Gifts transmitted electronically passes to the purchaser upon electronic transmission to the recipient.
(d) The Company reserves the right to close a User’s accounts, or to request alternative forms of payment, if a Gift is fraudulently obtained, or the User uses a Gift fraudulently on the Service.
(e) Gifts may state an expiry timeframe to take effect after the date of purchase.
11 Pre-sale of Products
(a) By pre-ordering a Product, the User authorises the Company to:
(i) automatically charge the User for the Product when it becomes available; and
(ii) initiate a download of the Product the next time the User is connected to the Interface.
(b) In any event, responsibility for initiating the download of a Product when it becomes available lies with the User.
12 Comments, Reviews and Ratings
(a) A comment, review and ratings system may be available on the site.
(b) The User agrees that any comments, reviews or feedback that they make will be fair, accurate and genuinely held by the User.
(c) The Company reserves the right to remove any comments, feedback or ratings at the Company’s sole discretion.
13 Data Retention
(a) The Company may store any material or information that the User uploads to or otherwise enters onto the Interface (Data).
(b) The Company makes no warranties or guarantees, implied or express, in respect of the retention of or continued accessibility of any Data.
(c) The User agrees that the Company is not liable for any loss or damage that may occur by any loss, corruption or any other inaccessibility in respect of any Data.
(d) The Company may store the Data “offsite”. The Data storage location will not affect the laws that govern any agreement arising under these Terms.
(e) Subject to these Terms, the User owns the Data the User provides to the Company, and may request its deletion at any time. The Company will take reasonable steps to comply with such a deletion request, but may be unable to delete Content if the User has shared it with others and they have not deleted it, or it was copied or stored by other users.
(f) The businesses that the Company contracts with to host and operate the Interface are committed to protecting the confidentiality of Data, however, the User agrees and acknowledges that those businesses reserve the right to access, view and review any of the User’s Data:
(i) if a government agency or regulatory body specifically requests them to do so;
(ii) when performing routine backup and restore operations, virus scan and virus removal, spam and content filtering; or
(iii) when such access, view or review is urgent and necessary to protect personal safety, perform troubleshooting, restore systems operation in the event of a server failure, remove illegal or offending (eg pornographic, violating policies, etc) Content or prevent a server failure, service outage or other damage.
14 Third Party Websites and Advertising
(a) The Interface may contain hyperlinks, images, banners, information and advertising from third party businesses, people and websites (Third Parties). The User consents to receiving this information as part of the User’s use of the Interface. The Company is not responsible for any information transmitted by Third Parties nor is the Company responsible for the accuracy of any advertisements.
(b) The inclusion of any Third Party link does not imply any endorsement or recommendation of a linked website by the Company or its affiliates, directors or employees. Those websites are not under the control of the Company, and the Company is not responsible for the contents of any linked website. This Interface provides those Third Party links to the User for the User’s convenience only.
(c) The Company is not liable:
(i) for any reliance the User places upon the information or statements conveyed by Third Parties; or
(ii) for any loss in relation to the User’s dealings with Third Parties.
(d) The User’s following any link to any Third Party website, or decision to accept any Third Party offer, is entirely at the User’s own risk.
15 Interface Availability
(a) By using the Interface the User agrees that the Company accepts no responsibility for the Interface or any part of it being unavailable, and the Company makes no warranties or guarantees, implied or express, as to the ongoing availability of the Interface or any part of it.
(b) The User agrees that the Company is not liable for any loss or damage that the User or any other person incurs by not being able to access the Interface or any part of it.
(c) The Company may change, update or otherwise amend the Interface or any part of it at the Company’s sole and absolute discretion without any notice to the User, including when such changes result in the Interface being offline.
16 Complaints about the Interface
(a) If the User has a complaint in connection with the Interface for which the User considers that the Company is liable (Complaint), the User must report it to the Company within 10 days of the circumstances giving rise to the Complaint first occurring. The Company may or may not, at its sole discretion, investigate the User’s complaint, depending on the nature of the complaint.
(b) If the User is not satisfied with the Company’s action in relation to a Complaint, the User must formally notify the Company of the User’s complaint with a written notice (Complaint Notice), which includes, or is accompanied by, full and detailed particulars of the Complaint.
(c) Within 10 days after a Complaint Notice is given, a representative of the Company will respond to the Complaint Notice in writing (Company Response).
(d) In accordance with this section, and to the fullest extent available under the law, the User agrees not to bring any court or tribunal proceedings against the Company in respect of any Complaint unless the User complies with the requirements of this clause (this obligation but subject always to any rights the User may have under the Competition and Consumer Act 2010 (Cth) or any equivalent legislation).
(a) Users who register Accounts will have the option of joining the Company’s mailing list to receive optional promotional material. The User may unsubscribe from the mailing list at any time.
18 Exclusion of Liability
(a) The User acknowledges and agrees that:
(i) the User uses the Interface and the Products at the User’s own risk; and
(ii) the Company is not responsible for the conduct or activities of any other user of the Interface.
(b) As a consumer, there are certain rights (such as the consumer guarantees implied by the Competition and Consumer Act 2010 (Cth)), which cannot by law be excluded (Non-Excludable Conditions). This clause is subject to those Non-Excludable Conditions.
(c) The User agrees that all implied guarantees, conditions and warranties are excluded from these Terms, except any Non-Excludable Condition.
(d) Subject to the application of any applicable Non-Excludable Condition, the Company excludes all other liability to the User for any costs, expenses, losses and damages suffered or incurred directly or indirectly by the User in connection with these Terms, or the Interface, whether that liability arises in contract, tort (including by the Company’s negligence) or under statute. Subject to the application of any Non-Excludable Condition, the Company will not, under any circumstances, be liable to the User for any indirect or Consequential Loss. Consequential Loss means loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than the cost of repair), loss of opportunity or expectation loss and any other form of consequential, special, indirect, punitive or exemplary loss or damages.
(e) Apart from those that cannot be excluded, the Company excludes all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability for breach of any Non-Excludable Condition is restricted, at the Company’s option to:
(i) the re-supply of services or payment of the cost of re-supply of services; or
(ii) the replacement or repair of goods or payment of the cost of replacement or repair.
(a) By using the Interface, the User agrees to indemnify the Company and its officers, employees and agents against:
(i) all claims, demands, proceedings and other liability arising wholly or partially, directly or indirectly, from the User’s use of the Interface; and
(ii) any and all liability, loss, costs and expenses arising from or incurred in connection with unauthorised access to the User’s Account.
(b) Without limiting the generality of the above, the User agrees to indemnify the Company and its officers, employees, contractors and agents (the Indemnified) against any costs, expenses, losses, damages and liability suffered or incurred by the Indemnified arising directly or indirectly from the User’s breach of these Terms and any negligent or unlawful act or omission by the User or any other user in connection with the Interface.
(a) Either the User or the Company may end the agreement arising from these Terms immediately for any reason by giving the other party written notice.
(b) Where the agreement arising from these terms has been terminated the User must immediately cease to use the Interface.
(c) Without limiting which provisions of these Terms shall survive termination, the following provisions shall survive termination:
(i) ownership provisions;(ii) provisions about Intellectual Property;
(iii) provisions about product security and usage rules;
(iv) provisions regarding the Company’s rights to monitor and deal with Content and Data, including User Content, and comments and feedback on the Interface;
(vi) indemnities; and
(vii) exclusions and limitations of liability.
(a) The Company will send the User notices and other correspondence to the details that the User notifies the Company of from time-to-time by using the Interface It is the User’s responsibility to notify the Company of any updated contact details as they change.
(b) A consent, notice or communication under this agreement is effective if it is sent as an email.
(a) The User acknowledges that the User has not relied on any representation, warranty or statement made by any party, other than as set out in these Terms.
(b) The relationship between the User and the Company under any agreement arising from these Terms does not form a joint venture, partnership, agency, or any form of employment relationship
.(c) No clause of these Terms will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
(d) The User cannot assign, novate or otherwise transfer any of the User’s rights or obligations under any contract arising from these Terms without the Company’s prior written consent.
(e) The Company may assign, novate or otherwise transfer any of its rights or obligations under the agreement arising pursuant to these Terms to a third party without notice to, or prior consent from, the User. If the Company requires it, the User will sign any documents to give effect to an assignment, novation or transfer by the Company under this clause.
(f) The agreement arising under these Terms will be governed by the laws of the state set out in the definition of Company. The User agrees to submit to the non-exclusive jurisdiction of courts with jurisdiction in that state, and it shall be the sole forum for any proceedings.
(g) Any clause of these Terms, which is invalid or unenforceable, is ineffective to the extent of the invalidity or un-enforceability without affecting the remaining clauses of these Terms.
(h) The termination of any agreement arising from these Terms does not affect the parties’ rights in respect of periods before the termination of the agreement.