PicTrax Pty Ltd ACN 625 351 564
(a) Permission to use this App is conditional upon You agreeing to the terms set out below.
(c) This End User Licence Agreement is a legally binding agreement between You and Us despite it being written in plain English. You should ensure that You read it, and any other document referred to within it, carefully before installing the App.
In this Agreement:
Account means a username and password provided to the End User by PicTrax to access the Service.
Account Data means all information held about an End User and any Content they upload in using the Service.
Advertising Material means any Content, which PicTrax in its sole discretion, considers is uploaded for the purposes of promoting commercial endeavours. Advertisers can arrange sponsored Content by contacting PicTrax at https://pictrax.com/advertising/.
Agreement means the terms and conditions contained in this End User License Agreement and any annexures.
App means the application known as PicTrax.
Commencement Date means the date you install this App which indicates Your acceptance of this EULA.
Content means data, music, speech or other sounds, text, visual images (animated or otherwise) in any form, or in any combination of forms as defined in Schedule 7 of Broadcasting Services Act 1992 (Cth), including but not limited to, data files, graphics images, messages, photographs, sounds, videos, written text and any other like materials.
Customer means an End User that purchases a Sub-licence to another End User’s Content.
Documentation means the user manual, guides, frequently asked questions, tutorials and other similar material available to the user at https://pictrax.com/support/.
Device means a smart phone or tablet which is capable of operating the App.
End User means a person authorised to access and use the Service pursuant to the terms of this TOS, whether You are using the Service on behalf of an organisation with their authorisation or in Your own personal capacity.
EULA means the terms and conditions contained in this End User Licence Agreement that governs the right to use the App.
Facilities means any feature that appears in the App or forms part of the Service which enable the End User to access, upload or use the Content.
Fee means any amount of money payable for the right to access the Service or use the App.
In-App Purchases mean anything which is purchased through or via the App.
Intellectual Property means all industrial and intellectual property rights including, without limitation, patents, copyrights, right to extract information from databases, design rights, trade secrets, rights of confidence, and all forms of protection of a similar nature or having similar effect to any of them which may subsist anywhere in the world (whether or not any of them are registered and including applications and the right to make applications for registration of any of them).
Payment Terms mean any terms relating to the payment of the Price as set out on https://pictrax.com/pricing/.
Party means PicTrax and the End User.
Permitted Use means the rights obtained under the Sub-licence.
Price means the asking price for a Sub-license for individual items of Content as set out at https://pictrax.com/pricing/.
Service means the PicTrax computer systems and the Facilities contained within which enable the App.
Sub-licence means the right to use content as set out on https://pictrax.com/pricing/ at the time the Price is paid for the Content.
Sub-licensee means a Customer who has purchased a right to use Content made available for License by an End User.
Sub-licence Fee means the amount paid by PicTrax to the End User for the right to sell a Sub-licence to a Customer, as set out at https://pictrax.com/pricing/ at the time the Price is paid for the Content
We, Us and Our (and similar terms) are a reference to PicTrax Pty Ltd ACN 625 351 564;
Website means the website located at the URL https://pictrax.com/; and
You, Your, End User (and similar terms) means you, the licensed user of the App.
In this Agreement:
(a) a reference to:
(i) one (1) gender includes the others;
(ii) the singular includes the plural and the plural includes the singular;
(iii) a person includes a body corporate;
(iv) a document or instrument includes the document or instrumented as novated, altered, supplemented or replaced from time to time;
(v) a Party includes the Party’s executors, administrators, successors and permitted assigns;
(vi) a statute, regulation or provision of a statute or regulation (Statutory Provision) includes:
(vii) an amount of money is to an amount in United States dollars ($USD);
(viii) time is to Australian Eastern Standard Time; and
(ix) a Schedule refers to a Schedule contained in this Agreement;
(b) including and similar expressions are not words of limitation;
(c) where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning;
(d) headings and the table of contents are for convenience only and do not form part of this Agreement or affect its interpretation;
(e) where a day on or by which an obligation must be performed or an event must occur is not a business day, the obligation must be performed or the event must occur on or by the next business day; and
(f) a provision of this Agreement must not be construed to the disadvantage of a Party merely because that Party was responsible for the preparation of this Agreement or the inclusion of the provision in it.
(a) Subject to Your compliance at all times with the terms of this EULA, and making any required payment to licence the App, We grant You a non-exclusive, non-transferrable licence to use the App on the terms set out in this EULA.
(b) Your acquisition of the licence to use the App, and any required Fee, may also be subject to the terms and conditions applicable to the platform on which You acquire the App, or the store through which you acquire the App.
(c) The grant of right is subject to fair use limits. PicTrax reserves the right to demand a Fee for use of the App, suspend an End User Account or terminate this Agreement where an End User’s use of the App including use of storage or processor time exceeds a level which PicTrax in its sole discretion deems excessive. In exercising its discretion PicTrax may consider factors including but not limited to, the:
(i) impact the excessive use has on other End Users;
(ii) costs associated with the excessive use; and
(iii) level of use relative to other End Users.
You may not reproduce or adapt the App except to the extent expressly permitted by ss 47B(3), 47C, 47D, 47E and 47F of the Copyright Act 1968 (Cth).
You may install and use the App on multiple devices, if allowed by the platform or app store through which You acquired the App.
In order to use the App the End User must allow their mobile device access to the:
(a) geo location services;
(b) image gallery; and
This licence is granted in perpetuity but may be terminated by Us pursuant to clause 18.
(a) We reserve the right to:
(i) alter or amend the App at any time in Our sole discretion; and
(ii) cease operation of all or any of the Facilities available through the App at any time without prior warning.
(b) We may deploy or provide patches, updates and modifications to the App that must be installed in order for You to continue to use it. We may update the App remotely and You hereby grant us Your consent to deploy and apply such patches, updates and modifications as we determine are required.
(c) Where a patch or update is required, and You do not accept it, You acknowledge that You may not be able to use the App until You install the patch or update.
You do not acquire any express or implied Intellectual Property rights, in the Service or the App beyond the right to use it as provided herein.
(a) Content that PicTrax uploads or submits to the Website is owned by PicTrax, and You do not obtain any right title or interest in such Content;
(b) in order to provide the Service and make the Content available to other users, We may transmit Your Content across various public networks, in various media, and modify or change the Content to comply with technical requirements of connecting networks or devices. You agree the license herein permits PicTrax to take such actions.
(a) access the Service in accordance with the instructions provided by Us from time to time;
(b) not copy, reproduce, translate, adapt, vary or modify the App without Our express written consent, except as expressly authorised by this EULA or Pt III Div 4A of the Copyright Act 1968 (Cth);
(c) not do anything which would infringe our copyright in the App;
(d) comply with all laws, statutes, and regulations in the jurisdiction in which You access the Service and in the jurisdiction of each state of and the Commonwealth of Australia; and
(e) consent to Us sending You electronic communications including emails, sms messages and push notifications from within the App as reasonably necessary to provide You with the service.
(a) to pay the Price for a license to use the Content You purchase; and
(b) You will only use Content You have purchased for the Permitted Use.
(a) You must not:
(i) infringe PicTrax or any third party’s Intellectual Property in the Service, Content or App;
(ii) pload photos which, in PicTrax sole discretion, constitute Advertising Material;
(iii) use the Service in any way that could damage the reputation of PicTrax or the goodwill or other rights enjoyed by PicTrax;
(iv) permit any third party to obtain access to the Service using the username and password provided;
(v) reproduce, make error corrections to or otherwise modify or adapt the Intellectual Property in the Service, Documentation or create any derivative works based on the Service and Documentation;
(vi) de-compile, disassemble, decrypt, or otherwise reverse engineer the Service or permit any third Party to do so;
(vii) transfer, sublicense, rent, lease, lend, license or otherwise transfer or assign the Service;
(viii) impersonate any other person or organisation;
(ix) access (or attempt to access) Services by any means other than through the interface(s) provided by us;
(x) access (or attempt to access) Services through any automated means (including use of scripts or web crawlers);
(xi) reproduce, duplicate, or copy any part of the Services, Content or the App for any purpose, without prior written consent;
(xii) copy, modify, adapt, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Services, Content or the App or any part of the foregoing;
(xiii) attempt to circumvent any security measures designed to protect the App, Service, and its Content, or limit access to the App, Service, and its Content; or
(xiv) modify or remove any copyright or proprietary notices associated with the App or the Service.
(b) You agree not to upload Content:
(i) unless You are the owner of Copyright in the Content;
(ii) being a photograph, which:
(iii) which breaches a third party’s copyright or other Intellectual Property rights;
(iv) that is derogatory or defamatory in nature, designed to be inflammatory, sexually explicit, entices racial hatred, portrays or encourages violence or is otherwise intended to humiliate or intimidate a person or class of persons;
(v) containing geo-tagged and other file metadata from locations of or containing information which the End User does not want to be made public (including but not limited to photographs taken from their residence, school or place of work containing geo-tags);
(vi) that attempts to misrepresents or falsely entice users to a location;
(vii) that PicTrax otherwise considers, in its sole discretion, to bring PicTrax into disrepute or have a negative impact on its good name.
Subject to clause 6.2, You grant PicTrax:
(a) a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use, distribute, reproduce, modify, adapt, publish, translate, and display the Content and use it to operate the Service and the App; and
(b) the right to Sub-Licence its rights under this Agreement to third parties (each a Sub-licensee), in connection with the Permitted Use (each a Sub-licence).
(a) Any Content marked as Private will:
(i) only be visible to third parties You authorise PicTrax to display the Content to; and
(ii) will not be available to be Sub-Licenced to a Customer.
(b) You acknowledge:
(i) by uploading Content, You are allowing other third parties, including those that have not created an Account to view that Content, unless the Content is marked Private;
(ii) You are solely responsible for ensuring Content you upload to be marked private; and
(iii) the Content will be by default publicly visible unless marked otherwise.
You expressly authorise Us to remove or delete any Content that You have uploaded, if We deem it be unsuitable for any reason whatsoever.
(a) PicTrax will not sell or Sub-licence Your Content to a third party unless You use the Service to mark the Content as being available for Licensing.
(b) If You mark Your Content as being available for Licensing using the Service, PicTrax will make available to the Customer a non-exclusive, non-transferrable, non-sub-licensable and perpetual licence to download and use Your Content for the Permitted Use.
(c) If Your Content is sublicensed, PicTrax will make payment to You in accordance with clause 7.2.
PicTrax will pay the End User a Sublicense Fee payable for Content Sub-licensed by PicTrax:
(a) in accordance with the Payment Terms; and
(b) in the amount of the Sublicense Fee.
PicTrax provides support for the Service online via https://pictrax.com/support/.
(a) We take all reasonable steps to be aware of Content submitted by End Users.
(b) We commit to take steps to remove all Content as soon as practical after We are notified such Content may be a breach of copyright or other intellectual property rights, is defamatory, or otherwise claimed to be illegal.
(c) To notify Us of a claimed infringement of copyright, please send a notification to, firstname.lastname@example.org or via https://pictrax.com/report/ including the following information:
(i) the Content in which copyright is claimed;
(ii) information about the complaining party (Complainant) including for example:
(iii) an electronic or physical signature of the copyright owner, or their authorised agent, of the allegedly infringing material;
(iv) a statement that the Complainant has a good faith belief that the use of the material in the manner complained of is not authorised by the copyright owner, agent or the law; and
(v) a statement that the information in the notification is accurate and, under penalty of perjury, that the Complainant is authorised to act on behalf of the copyright owner.
(a) We may obtain information from and send information to third party software that You authorise Us to collect and disseminate through Your device or via the App;
(b) By using the App You authorise Us to obtain information from and send information to the respective third party which you have authorised.
(a) If a web interface is made available to users of the App, You authorise Us to send data to the web application that is necessary for Us to provide the services associated with the App.
(b) We will provide you with access to that web interface as required.
(a) The End User must keep all usernames and passwords to the Service strictly confidential.
(b) The End User is responsible for:
(i) all activity that occurs via the Service and the App using their Account, whether authorised or not;
(ii) ensuring the security of the user name and password; and
(iii) ensuring all Account Data is correct and accurate.
(a) Each End User is responsible for ensuring that it is the sole person entitled to use the Service and the App and that they are capable of complying with the terms contained in this Agreement.
(b) If an End User becomes aware of any unauthorised use of their Account, they must notify us immediately by email at the address for notices set out in clause 19.
(a) The App may offer Content or Facilities for use within it that are available in exchange for the payment of an amount of money.
(b) In-App Purchases that are consumed during the use of the App cannot be transferred among Devices and can only be downloaded once.
(c) You must authenticate your Account before making In-App Purchases, separate from any authentication to obtain other Content.
All In App Purchases are final and, subject to all applicable Australian laws, are non-refundable.
(a) Your details may be provided to third parties in order for the Service and App to operate effectively; and
(b) information about You may be sent between countries to other entities that PicTrax has commercial contracts with. The provision of such information will be under an implied obligation of confidence.
(a) The End User accesses the App and uses the Service at their own risk and are responsible for compliance with the laws of their jurisdiction, in addition to those contained in this Agreement.
(b) PicTrax makes the App and Service available to use, however We do not assume a duty of care to the End User. PicTrax makes no representation and provides no warranty regarding the quality, accuracy, completeness, merchantability or fitness for purpose of the Content uploaded by the End User.
(c) The End User must make their own investigations to ensure the App and Service is fit for the purpose which they would like to use it.
(a) To the fullest extent permissible by law, the App, Service and the Documentation are provided to the End User without any representations or warranties.
(b) Use of the App and Services is on an ‘as is’ basis and there is no guarantee they will be continuously available. The Service will be unavailable from time to time for reasons including but not limited to:
(i) internet bandwidth and other connectivity issues;
(ii) system maintenance; and
(iii) unforeseen outages.
(c) Nothing in this Agreement excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition implied or imposed by legislation which cannot be lawfully excluded or limited. Such legislation includes the Australian Consumer Law which contains guarantees that protect the purchasers of goods or services in certain circumstances.
(d) Subject to PicTrax’s obligations under the non-excludable provisions, and to the fullest extent permissible by law, PicTrax disclaims all warranties of any kind with respect to the Service and the Documentation, whether express, implied, statutory, or arising out of the course of performance, course of dealing or usage of trade including any warranties or merchantability, fitness for a particular purpose, satisfactory quality, accuracy or title of non-infringement.
(e) PicTrax takes steps to protect Your Content including by:
(i) assigning individual End Users their own user name and password;
(ii) using a watermark on high resolution displays to discourage the use of the images without a Sub-Licence;
(iii) preventing users of the Service from right clicking and selecting save image from standard browsers and devices; and
(iv) making End Users aware of their responsibilities including a prohibition on attempting to circumvent the security built into the Service.
(f) There is no guarantee End Users of the Service will not be able to access and reproduce Your Content. PicTrax is not liable in any way if an End User of the Service infringes Your Intellectual Property rights.
(a) You are liable for any loss or damage directly or indirectly caused by any breach of Your obligations under this Agreement.
(b) To the full extent permitted by law, We exclude all liability for all claims, expenses, loss, damage and costs made against or incurred by You directly or indirectly arising out of or in connection with Your use of the App or Your inability to use the App, including in respect of economic loss, loss of access to the Content, interruption of business or any consequential or incidental damages.
(c) Our total liability to You for breach of contract under this Agreement, for tort (including negligence), or for any other cause is limited to an amount equal to the total aggregate Fee that You paid for the app and any amount paid to access the Service for the one (1) month period immediately preceding the day upon which our liability arose.
(d) These Terms are to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied terms, representations, warranties, conditions, guarantees or obligations. If such legislation applies, to the extent possible, We limit our liability in respect of any breach of a term, condition or warranty implied under any law which cannot be excluded to, at our option:
(i) the supply of the App or Service again; or
(ii) the payment of the cost of having the App or Service supplied again.
(a) You indemnify PicTrax for any loss or damage We suffer as a result of Your breach of this EULA (including the warranties You give us under these Terms), or any wilful misconduct, unlawful acts or negligence in Your use or misuse of the App and Service.
(b) You indemnify, defend and hold harmless PicTrax in respect of all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal fees on a full indemnity basis), in connection with any of the following:
(i) Your breach of this EULA;
(ii) any Content You create or disseminate using the App;
(iii) Your negligent acts or omissions;
(iv) Your actual or alleged breach of any law, legislation, regulation, by-law or code of conduct; or
(v) any claims brought by or on behalf of a third party relating to any act or omission by You, including infringement of a third party’s Intellectual Property Rights.
This clause 17 applies if You have obtained the App through the Google Play platform (Google Play™). In the event of a conflict between a provision of this clause 17 and any other provision of this EULA, the provision of this clause will prevail.
You and We acknowledge that this EULA is between You and Us, and not with Google, and We, not Google, are responsible for the App and the Content of the App.
You and We acknowledge that, in the event of any third party claim that the App or Your possession and use of the App infringes the third party’s intellectual property rights, We, not Google, will be solely responsible for the investigation, defence, settlement and discharge of any such intellectual property infringement claim
You and We acknowledge that We, not Google, are responsible for addressing any claims of You or any third party relating to the App or the end-user’s possession and/or use of that App, including, but not limited to:
(a) product liability claims;
(b) any claim that the App fails to conform to any applicable legal or regulatory requirement; and
(c) claims arising under consumer protection or similar legislation.
We are solely responsible for maintenance and support services for the App, if required by applicable law. You and We acknowledge that Google has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
We and not Google are responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed by this EULA.
You are entitled to seek a refund of the price paid for Your licence to use this App from Google within forty-eight (48) hours of your purchase.
(a) You are entitled to unlimited reinstalls of the App (Reinstall Right).
(b) Notwithstanding clause 17.8(a), in the event that the App is removed from Google Play due to an allegation of:
(i) Intellectual Property infringement;
(iii) violation, or the actual violation of a third party’s right of publicity and privacy; or
(iv) the App does not comply with law, or any determination that the App does not comply with the law,
Your Reinstall Right will not apply.
(c) You acknowledge and agree if You are unable to exercise your Reinstall Right pursuant to clause 17.8(b), to the fullest extent permissible by law, We have no liability to You.
PicTrax, in its sole discretion, may suspend an Account at any time if:
(a) You breach a term of this EULA;
(b) You have not accessed the account and no transaction has occurred on the account for a period of greater than 12 months;
(c) You have used the App or Service to engage in any conduct which is illegal, fraudulent, harassing or abusive;
(d) pursuant to clause 3.1(c), Your use of the App or Service exceeds fair use limits; or
(e) You have otherwise engaged in conduct which We reasonably determine to be inappropriate or unacceptable.
We may terminate this EULA and your access to the Service without notice if:
(a) We no longer have the right to provide the App or Service to the End User for any reason whatsoever;
(b) You breach a material term of this EULA which is not capable of being remedied or is not remedied within fourteen (14) days of Us first notifying You of such breach;
(c) We cease to provide the Service;
(d) pursuant to clause 3.1(c), Your use of the Service exceeds fair use limits;
(e) You become the subject of any bankruptcy or insolvency proceedings;
(f) You seek a refund of any Fee paid to acquire the App;
(g) PicTrax is notified, after having made reasonable inquiries, that the End User:
(i) is reverse engineering or otherwise creating derivative works based on the Intellectual Property contained in the App or the Service;
(ii) is attempting to circumvent any technological protection measure which limits the End User’s ability to utilise multiple copies of the Service or infringe the Intellectual Property rights of PicTrax or other End Users;
(iii) the End User Trial, where it is made available, has expired and the End User has not paid the Fee, or
(h) for any other reason after the Account remains suspended for a period of greater than one (1) calendar month.
Where a Fee is required:
(a) the payment of the Fee is an essential term of this EULA; and
(b) PicTrax may terminate this EULA by providing the End User with seven (7) days’ notice after the expiry of the if the End User does not pay the Fee.
(a) On termination of this EULA for whatever reason, the End User:
(i) must stop using the App and Service within seven (7) days;
(ii) must permanently delete all copies of the App;
(iii) must return or destroy all copies of any Documentation; and
(iv) agrees that the balance of any prepaid Fee is forfeited.
(b) At PicTrax’ sole discretion, after this EULA is terminated, the Account Data may be deleted and become irretrievable by the End User.
(a) For all correspondence including Notices in relation to this EULA please contact Us as follows:
PicTrax Pty Ltd ACN 625 351 564
Collie Crescent Ormeau Hills, QLD, 4208
Telephone: +61 (0)423 914 017
Nominated email: email@example.com
(b) If required, We will contact You via the contact details We have in our records. If We have multiple contact details for You, We will use the most recent contact details to provide notices to You.
(c) Any requirement to notify a Party pursuant to these terms and conditions is deemed satisfied if the notice is sent to the PicTrax nominated email at clause 19(a) above or the email address recorded in the End User’s Account.
(a) Access to the Site outside the Jurisdiction – No representation or warranty is made that the Content complies with the laws of any country outside of Australia. If the End User accesses the App or Service from outside Australia, You do so at Your own risk.
(b) Assignment – PicTrax may assign any of its rights and obligations under this EULA by notifying the End User of such an assignment. The End User may not assign its rights under this EULA without the prior written consent of PicTrax, which may be granted or withheld in PicTrax complete discretion and, if granted, may be subject to conditions.
(c) Entire agreement – This document contains the entire agreement between the Parties in connection with its subject matter and supersedes all previous agreements and understandings except as otherwise provided herein.
(d) Further assurances – This clause ensures that if a Party is required to do anything further to comply with its obligations under this EULA, it is bound to do so.
(e) Governing law and jurisdiction – The laws of Queensland and Australia govern this EULA. The Parties submit to the non-exclusive jurisdiction of the Supreme Court of Queensland and the Federal Court of Australia.
(f) No merger – The rights and or obligations of the Parties under this EULA do not merge on completion of any transaction contemplated by this EULA.
(g) No partnership – This EULA does not create or evidence a partnership, joint venture or a fiduciary relationship or the relationship of principal and agent between the Parties.
(h) Severance – If anything in this EULA is unenforceable, illegal or void then it is severed and the rest of this EULA remains in full force and effect.
(i) Survival – Any clause which is expressed to survive, or which by its nature is intended to survive termination of this EULA, survives termination.
(j) Warranties regarding capacity – Each Party represents to each other that as at the date of this EULA:
(i) it has taken all necessary action to authorise its entry into and performance of this EULA;
(ii) it has the power to enter into and perform its obligations under this EULA; and
(iii) its obligations under this EULA are valid and binding and enforceable against it in accordance with its terms.