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PicTrax terms of service

1. Terms of Service

PicTrax Pty Ltd ACN 625 351 564 (PicTrax, We, Our, Us and other similar terms) Licences the right to use the Service to the End User (End User, You, Your and other similar terms) on the terms and conditions contained in this Terms of Service (TOS).

By using this website and its features, functions and facilities, You warrant:

(a) You have had the opportunity to read and fully understand the terms and conditions contained in this TOS;

(b) You will use the Service on the terms and conditions contained herein;

(c) You are over the age of eighteen (18) or You are over the age of thirteen (13) and have obtained Your parent or guardians express consent for them to enter into this Agreement on Your behalf and for them to be bound by the terms and conditions contained herein; and

(d) You have the authority to enter into this TOS.

 

2. Definitions and interpretation

2.1 Defined terms

In this TOS:

Agreement means the terms and conditions contained in this Terms of Service.

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.

Commencement Date means the date that you first started to use this website and its feature and functions and facilities to signal Your acceptance of this Agreement.

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 Content.

Documentation means the user manual, guides, frequently asked questions, tutorials and other similar material available to the user at https://pictrax.com/frequently-asked-questions/, https://pictrax.com/tutorials/ and https://pictrax.com/support.

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.

Facilities means any feature that appears on the Website that enables End User to access, upload or use the Content.

Fee means the amount of money payable for the right to access the Service as selected by the End User from the Website.

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/.

Renewal Term means the period set out at https://pictrax.com/pricing/.

Service means the PicTrax Website and the Facilities contained within.

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

Term means the period of one (1) month.

Website means the website located at the URL https://pictrax.com/.

2.2 Interpretation

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:

I. that Statutory Provision as amended or re-enacted from time to time; and

II. a statute, regulation or provision enacted in replacement of that Statutory Provision;

(vii) an amount of money is to an amount in American dollars ($USD) unless stated otherwise;

(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.

3. Terms of use

3.1 Commencement, Term and Renewal

(a) This TOS commences on the Commencement Date and continues for the Term unless terminated earlier according to the provisions contained herein.

(b) The Term automatically renews for the Renewal Term unless:

(i) the End User closes their Account; or

(ii) PicTrax notifies the End User the TOS will terminate at the end of the Term or Renewal Term whichever the case may be.

3.2 Grant of rights

(a) PicTrax grants the End User a non-exclusive, non-transferrable right to access and use the Service.

(b) PicTrax reserves the right to;

(i) alter or amend the Service at any time in its sole discretion; and

(ii) cease operation of all or any part of the Service at any time without prior warning.

(c) The grant of right is subject to fair use limits. PicTrax reserves the right to demand a Fee for use of the Service, suspend an End User Account or terminate this Agreement where an End User’s use of the Service 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.

3.3 Ownership of the Service

The End User does not acquire any express or implied Intellectual Property rights, in the Service beyond the right to use it for the Term as provided herein.

3.4 Ownership of Content

You acknowledge that:

(i) Content that PicTrax upload or submit to the Website is owned by PicTrax, and You do not obtain any right title or interest in such Content;

(ii) 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. The End Users agree that the license herein permits PicTrax to take such actions.

4. Content Licence

4.1 Grant of licence

(a) Subject to clause 4.2, the End User grants PicTrax:

(i) 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

(ii) 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).

4.2 Private Content

(a) Any Content marked as Private will:

(i) only be visible to third parties the End User authorises 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.

4.3 Moderation of Content

You expressly authorise Us to remove or delete any Content that You have uploaded, if We deem it be unsuitable for any reason whatsoever.

5. PicTrax Obligations

5.1 Content

(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 Purpose.

(c) If Your Content is sub-licensed, PicTrax will make payment to You in accordance with clause 5.2.

5.2 Sub-license payment

PicTrax will pay the End User a Sub-license Fee payable for Content Sub-licensed by PicTrax:

(a) in accordance with the Payment Terms; and

(b) in the amount of the Sub-license Fee.

5.3 Support

PicTrax provides support for the Service online via https://pictrax.com/support/.

6. End User obligation

6.1 General obligations

(a) You agree to access the Service in accordance with the instructions provided by Us from time to time.

(b) For the Service to operate, You must use the recommended browser types as described on our Website.

(c) You undertake to 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.

6.2 In purchasing Content

You agree:

(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 Purpose.

7. Prohibitions on use

7.1 Prohibited acts

(a) You must not:

(i) infringe PicTrax or any third party’s Intellectual Property in the Service or the Content;

(ii) use the Service in any way that could damage the reputation of PicTrax or the goodwill or other rights enjoyed by PicTrax;

(iii) permit any third party to obtain access to the Service using the username and password provided;

(iv) 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;

(v) de-compile, disassemble, decrypt, or otherwise reverse engineer the Service or permit any third Party to do so;

(vi) transfer, sublicense, rent, lease, lend, license or otherwise transfer or assign the Service;

(vii) impersonate any other person or organisation;

(viii) access (or attempt to access) Services by any means other than through the interface(s) provided by us

(ix) access (or attempt to access) Services through any automated means (including use of scripts or web crawlers);

(x) reproduce, duplicate, or copy any part of the Services or any Content for any purpose, without prior written consent;

(xi) copy, modify, adapt, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Services or Content or any part of the foregoing;

(xii) attempt to circumvent any security measures designed to protect the Service, and its Content, or limit access to the Service, and its Content; or

(xiii) modify or remove any copyright or proprietary notices associated with the Service.

(b) The End User agrees not to upload Content:

(i) unless they are the owner of Copyright in the Content;

(ii) being a photograph, which:

I. does not include geo-tags;

II. includes inaccurate geo-tags;

III. would cause You or PicTrax to breach any law, regulation, rule, code or other legal obligation;

IV. is taken from private property;

V. contravenes any photographic restrictions, including photographs of items which in effect reproduce that item;

(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.

8. Copyright take-down procedure

(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, report@pictrax.com 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:

I. address;

II. telephone number; and

III. email address;

(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.

9. Account and password

9.1 Security of passwords

(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 using their Account, whether authorised or not;

(ii) ensuring the security of the user name and password which is used access the Service; and

(iii) ensuring all Account Data is correct and accurate.

9.2 Use of Accounts

(a) Each End User is responsible for ensuring that it is the sole person entitled to use the Service 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 15.

10. Privacy obligations

The End User acknowledges the PicTrax Privacy Policy applies to its use of the Service. Our Privacy Policy is available on the Website at https://pictrax.com/privacy-policy/.

10.1 Consent to the provision of information to third parties

The End User acknowledges:

(a) its details may be provided to third parties in order for the Service to operate effectively; and

(b) information about them 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.

11. No duty of care

(a) End Users access the Website and use 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 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) End Users must make their own investigations to ensure the Service is fit for the purpose which they would like to use it.

12. Warranty disclaimer

12.1 Disclaimer of warranties

(a) To the fullest extent permissible by law, the Service and the Documentation are provided to the End User without any representations or warranties.

(b) Use of the Services is on an ‘as is’ basis and there is no guarantee the Service will be continuously available. The Service will be unavailable from time to time for reasons including but not limited to:

(i) Insufficient internet connection

(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 expressly 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) While 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.

13. Liability

(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 Service or Your inability to use the Service, 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 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 Service again; or

(ii) the payment of the cost of having the Service supplied again; or

(iii) a pro-rata payment for the remainder of the chosen Term.

14. Indemnity

(a) You indemnify PicTrax for any loss or damage We suffer as a result of Your breach of this Agreement (including the warranties You give us under these Terms), or any wilful misconduct, unlawful acts or negligence in Your use or misuse of the 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) any breach of a provision of this TOS

(ii) Your negligent acts or omissions; or

(iii) Your use of the Service, including any third party claims made in connection with, or arising out of, Your use of the Service.

15. Termination and suspension

15.1 Suspension of Accounts

(a) PicTrax, in its sole discretion, may suspend an Account at any time if:

(i) You breach a term of this Agreement;

(ii) You have not accessed the account and no transaction has occurred on the account for a period of greater than 12 months;

(iii) You have used the Service to engaged in any conduct which is illegal, fraudulent, harassing or abusive;

(iv) pursuant to clause 3.2(d), Your use of the Service exceeds fair use limits; or

(v) You have otherwise engaged in conduct which We reasonably determine to be inappropriate or unacceptable.

15.2 Termination by PicTrax

We may terminate this TOS without notice if:

(a) We no longer have the right to provide the Service to the End User for any reason whatsoever;

(b) You breach a material term of this Agreement 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 3.2(d), Your use of the Service exceeds fair use limits;

(e) 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 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

(f) for any other reason after the Account remains suspended for a period of greater than one (1) calendar month.

15.3 Termination for non-payment

Where a Fee is required:

(a) the payment of the Fee is an essential term of this Agreement; and

(b) PicTrax may terminate this Agreement by providing the End User with seven (7) days’ notice after the expiry of the Term if the End User does not pay the Fee entitling it to use the Service for a further Term.

15.4 Actions upon termination

(a) On termination of this TOS for whatever reason, the End User:

(i) must stop using the Service within seven (7) days;

(ii) must return or destroy all copies of any Documentation;

(iii) agrees that the balance of any prepaid Fee is forfeited.

(b) At PicTrax’s sole discretion, after this TOS is terminated, the Account Data may be deleted and become irretrievable by the End User.

16. Notices

(a) For all correspondence including Notices in relation to this Agreement please contact Us as follows:

PicTrax Pty Ltd ACN 625 351 564

Telephone: +61 (0)423 914 017

Nominated email: hello@pictrax.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 16(a) above or the email address recorded in the End User’s Account.

17. Miscellaneous provisions

(a) Access to the Site outside the Jurisdiction – No representation or warranty is made that the Content on the Website complies with the laws of any country outside of Australia. If the End User access the Service from outside Australia, You do so at Your own risk.

(b) Assignment – PicTrax may assign any of its rights and obligations under this TOS by notifying the End User of such an assignment. The End User may not assign its rights under this TOS without the prior written consent of PicTrax, which may be granted or withheld in PicTrax’s 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 TOS, it is bound to do so.

(e) Governing law and jurisdiction – The laws of Queensland and Australia govern this TOS. 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 TOS do not merge on completion of any transaction contemplated by this TOS.

(g) Severance – If anything in this TOS is unenforceable, illegal or void then it is severed and the rest of this TOS remains in full force and effect.

(h) Survival – Any clause which is expressed to survive, or which by its nature is intended to survive termination of this TOS, survives termination.

(i) Warranties regarding capacity – Each Party represents to each other that as at the date of this TOS:

(i) it has taken all necessary action to authorise its entry into and performance of this TOS;

(ii) it has the power to enter into and perform its obligations under this TOS; and

(iii) its obligations under this TOS are valid and binding and enforceable against it in accordance with its terms.

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