Brown Cardigan Media | License General Terms And Conditions

License: General Terms & Conditions

These Licence General Terms and Conditions ("General Terms and Conditions") together with the Licence Terms and General Terms of Use sets out the terms on which The Offline Holdings Company Pty Ltd as trustee for The Lets Take It Offline Unit Trust trading as Brown Cardigan Media (ABN 35 790 669 160) ("Brown Cardigan Media") grants to the Licensee (defined in Licence Terms item 3) a licence so that the Licensee can exploit the Licensed Content for the Licensed Purpose. By accessing, downloading or licensing Licensed Content, Licensee accepts the terms of this Agreement.

1. Definitions and interpretation

1.1 Definitions

In this Agreement:

Copyright means:
1. any copyright under the Copyright Act 1968 (Cth);
2. any copyright under the law of a country other than Australia; and
3. rights in the nature of or analogous to the rights in (i) and (ii) under the law of Australia or any other country (including future copyright and rights in the nature of or analogous to copyright).
Moral Rights means rights of integrity, rights of attribution and other rights of an analogous nature which may now exist or which may exist in the future in respect of the Licensed Content under the Copyright Act 1968 (Cth) or under the law of a country other than Australia.[MDW Note: Moral rights are relevant to the licensing of some works and material, when the performers or authors of literary, dramatic, musical or artistic works and cinematograph films have the benefit of the protections set out in Part IX of the Copyright Act 1968.]

1.2 Interpretation

In this Agreement:

words or phrases defined in the Copyright Act 1968 (Cth), as amended, must have the same meaning if used in this Agreement unless the contrary intention is shown or the meaning is inconsistent in the context;
"related body corporate" must have the meaning as defined in the Corporations Act 2001 (Cth);
this Agreement must not be interpreted adversely to a party only because that party was responsible for preparing it;
headings are for convenience only and do not affect the interpretation of this Agreement;
references to a person or words denoting a person includes a company, statutory corporation, partnership, joint venture and association, and includes that person's legal personal representatives, executors, administrators, successors and permitted assigns;
every obligation entered into by two or more parties binds them jointly and each of them severally;
where any word or phrase is defined in this Agreement, any other grammatical form of that word or phrase will have a corresponding meaning;
"includes", "including" and similar expressions are not words of limitation;
reference to any agreement or other document annexed to or referred to in this Agreement includes any amendments to it and any documents in addition to or in substitution for it which has been approved in writing by the parties to this Agreement.

2. Licence

2.1 Grant of licence

Brown Cardigan Media grants to the Licensee a licence to exploit the Licensed Content defined in Licence Terms item 2 for the Licensed Purpose defined in Licence Terms item 3, with no right to grant sub-licences.

Brown Cardigan Media shall make the Licensed Content available to the Licensee for download upon payment of the Licence Fee described in Licence Terms item 7.

2.2 Scope of licence

The licence in clause 2.1 applies throughout the Territory defined in Licence Terms item 4 during the Term defined in Licence Terms item 5 and has the Scope of Licence scope set out in Licence Terms item 6.

2.3 Licence fee

The Licensee must pay the Licence Fee (GST inclusive) to Brown Cardigan Media as described in Licence Terms item 7 prior to accessing or downloading Licensed Content.

3. Protection of copyright by Licensee

The Licensee agrees:

If and where commercially reasonable, to ensure that all copies of the Licensed Content printed, published, made, reproduced or otherwise communicated to the public (including electronic material) by the Licensee bears the symbol © accompanied by Brown Cardigan Media's name and the year of first publication of the Licensed Content, along with any other acknowledgment of copyright Brown Cardigan Media may direct the Licensee to include from time to time. In all cases the credit shall be of such size and prominence so as to be clearly readable by the unaided eye.
To promptly advise Brown Cardigan Media of any litigation or arbitration or threat of litigation or arbitration which may involve the Licensed Content and if requested by Brown Cardigan Media, keep Brown Cardigan Media advised of the progress of any litigation or arbitration involving the Licensed Content and the Licensee must provide to Brown Cardigan Media, at the request of Brown Cardigan Media, copies of any documents or other material including legal advice relating to such litigation or arbitration.
that Brown Cardigan Media has the option of joining in with the Licensee in any litigation or arbitration and of sharing costs relating to such action relating to the Licensed Content in such proportion as may be agreed.
where no agreement exists between Brown Cardigan Media and the Licensee in relation to the costs of any litigation or arbitration related to the Licensed Content then the Licensee will be responsible for the conduct and costs of any such litigation or arbitration.

4. Obligations of the Licensee

During the Term the Licensee must not:

Use Licensed Content other than as expressly provided by the Licensed Purpose;
Resell, redistribute, provide access to, share or transfer any Licensed Content except as specifically provided for in this Agreement.
Use Licensed Content in a manner that infringes any third party's intellectual property, or would give rise to a claim of misleading and deceptive conduct in trade or commerce.
Use any Licensed Content (in whole or in part) as a trademark, logo, or other badge of origin.
Falsely represent or imply that Licensed Content was created by Licensee or an entity other than the copyright holder(s) of that Licensed Content.
Portray any person depicted in Licensed Content in a way that a reasonable person would find offensive, including but not limited to depicting any person depicted in Licensed Content:
1. in connection with pornography, "adult videos" or related goods, services or premises;
2. in connection with the advertisement or promotion of alcohol or tobacco products;
3. in connection to the promotion, advertisement or endorsement of any political party or candidate, or in connection with any political policy; as suffering from a physical or mental illness; or
4. engaging in immoral, unlawful or criminal activities.
Use any Licensed Content in a pornographic, defamatory, or deceptive context, or in a manner that could be considered libelous, obscene, or illegal. Unless expressly permitted by the Licensed Purpose, modify Licensed Content designated in a manner that changes the context of what is depicted.
During the Term the Licensee must provide Brown Cardigan Media with the reports related to the use of the Licensed Content as described in Licence Terms item 8 (if applicable).
Licensee agrees to take all reasonable steps to prevent third parties from reproducing, repurposing or exploiting any Licensed Content ("Third Party Unauthorised Use"). If Licensee becomes aware of any Third Party Unauthorised Use of any Licensed Content Licensee must notify Brown Cardigan Media as soon as commercially practicable.
Upon notice from Brown Cardigan Media or if Licensee becomes aware that any Licensed Content is subject to a threatened or actual claim of infringement, violation of another right, or any other claim for which Brown Cardigan Media may be liable, or if Brown Cardigan Media removes any Licensed Content due to perceived business risk as determined in Brown Cardigan Media's reasonable discretion and gives Licensee notice of such removal, Licensee shall remove the Licensed Content from its systems and storage devices (electronic or physical) and, if possible, cease any future use of the removed Licensed Content at Licensee's own expense. Brown Cardigan Media shall provide you with comparable Licensed Content (which comparability will be determined by Brown Cardigan Media in its reasonable commercial judgment) free of charge, but subject to the terms and conditions of this Agreement.
Any use of Licensed Content in a manner not expressly permitted by this Agreement or in breach of a term of this Agreement constitutes copyright infringement, and will entitle Brown Cardigan Media to exercise all rights and remedies available under Australian and/or international law. Brown Cardigan Media reserves the right to initiate or compel the takedown of Licensed Content at any time at its sole discretion, deemed by Brown Cardigan Media to be unauthorised or infringing on any of its rights, without notice or refund to the Licensee.

5. Limitation on assignment

The Licensee must not assign all or any of its rights given to it under this Agreement without the prior written consent of Brown Cardigan Media, which consent Brown Cardigan Media may grant or not in its absolute discretion.

Brown Cardigan Media may, at its discretion, assign all or any of its rights under this Agreement.

6. Brown Cardigan Media's Warranties

Brown Cardigan Media warrants that:

there are no existing or threatened claims or litigation which would adversely affect or impair the exploitation of the copyright in the Licensed Content in the Territory during the Term; and
Brown Cardigan Media gives the Additional Warranties as set out in Licence Terms item 9.

Unless specifically set out in Licence Terms item 9, Brown Cardigan Media does not grant any right or make any warranty with regard to the use of names, people, trademarks, logos, registered, unregistered or copyrighted audio, designs, works of art depicted or contained in the Licensed Content. The Licensee undertakes that before the Licensee exploits the Licensed Content for the Licensed Purpose, the Licensee must obtain and pay for all releases and consents that are necessary to enable the exploitation of the Licensed Content, which may include:

in the underlying literary works, scripts and other dramatic works adapted for use in the Licensed Content;
in the musical works and sound recordings synchronised with the Licensed Content;
in releases related to the moral rights of the author or authors of the Licensed Content; and
in releases related to the performers' protections of persons appearing in the Licensed Content.

7. Licensee's Warranties

The Licensee warrants that:

all rights, title and interest in the Licensed Content are retained by Brown Cardigan Media subject to the grant of licence in clause 2. the Delivery Materials must be stored in a secure location;
the Delivery Materials, or any part of the Delivery Materials, must not be copied or duplicated for any purpose other than for the Licensed Purpose; and the Licensee must not by any act or omission:
prejudice the copyright in the Licensed Content or deal with the Licensed Content so that any third party may obtain a lien or any other right or claim that is incompatible with the rights of Brown Cardigan Media; and
infringe the moral rights of the author or authors of the Licensed Content.

8. Liability and Indemnity

Brown Cardigan Media hereby agrees to defend, indemnify and hold the Licensee and any related body corporate and personnel harmless from and against any and all claims, liabilities, judgments, penalties, and taxes, civil and criminal, and all costs, expenses (including, without limitation, reasonable legal fees) arising out of or relating to any breach or alleged breach of any agreement or warranty by Brown Cardigan Media.

The Licensee hereby agrees to defend, indemnify and hold Brown Cardigan Media and any related body corporate and personnel harmless from and against any and all claims, liabilities, judgments, penalties, and taxes, civil and criminal, and all costs, expenses (including, without limitation, reasonable legal fees) arising out of or relating to:

its use of any Licensed Content outside the scope of this agreement;
any breach or alleged breach of any agreement or warranty by the Licensee; and
its failure to obtain any required release for its use of Licensed Content.

To the fullest extent permitted by law, Brown Cardigan Media or any employee, agent, officer or director will not be liable for any loss suffered by any Licensee or other person arising out of or in connection with a contribution, whether direct or indirect, including loss of revenue, loss of use or value of any data or equipment including software, wasted management, operation or other time (whether any of the foregoing are direct, indirect or consequential), loss of profits, loss of business or anticipated savings, loss of use, loss of goodwill, and whether caused by tort (including negligence), breach of contract or otherwise, except in respect of any liability for death or personal injury or any other liability which cannot be excluded or limited under applicable law.

To the extent that our liability for breach of any implied warranty or condition cannot be excluded at law, our liability will be limited, at our option, to: (a) in the case of services supplied or offered by us: (i) the re-supply of those services; or (ii) the payment of the cost of having those services re-supplied; and (b) in the case of goods supplied or offered by us: (i) the replacement of the goods or the supply of equivalent goods; (ii) the repair of the goods; (iii) the payment of the cost of having the goods replaced; or (iv) the payment of the cost of having the goods repaired.

9. GST and Withholding Tax

If goods and services tax (GST) is payable in respect of payments made by the Licensee to Brown Cardigan Media under this Agreement, the amounts payable must be increased by the amount of the GST, provided that:

Brown Cardigan Media is registered for the purposes of GST; and
Brown Cardigan Media must provide the Licensee with an invoice that complies with the form of "tax invoice" specified in the regulations to A New Tax System (Goods and Services Tax) Act 1999 (Cth).]

10. Termination

Brown Cardigan Media may terminate this Agreement immediately without written notice if the Licensee fails to pay any amount due under this Agreement in full on the due date, defaults in performance or is in breach of any other material term of this Agreement. Brown Cardigan Media may terminate this Agreement by written notice if an insolvency event occurs in relation to the Licensee, with an insolvency event occurring if:

the Licensee ceases to, or is unable to, pay its creditors (or any class of them) in the ordinary course of business, or announces its intention to do so;
a receiver, receiver and manager, administrator, liquidator or similar officer is appointed to the Licensee or any of its assets;
the Licensee enters into, or resolves to enter into, a scheme of arrangement, compromise or composition with any class of creditors;
a resolution is passed or an application to a court is taken for the winding up, dissolution, official management or administration of the Licensee; and anything having a substantially similar effect to any of the events specified above happens under the law applicable to this Agreement.

11. Consequences of Termination

In the event of termination under clause 10, all rights of the Licensee granted under this Agreement terminates:

Immediately as described in clauses 10(a); or
immediately following an insolvency event described in clause 10(b),
and the Licensee must immediately cease to print, publish, make, produce, communicate to the public or use in any manner whatsoever the Licensed Content and must deliver up to Brown Cardigan Media all copies of the Licensed Content in the possession, custody or control of the Licensee. Any termination of this Agreement under clause 10 is without prejudice to the rights of the party terminating to seek and obtain damages for any breach of this Agreement by the other party.

In the event of termination under clause 10, and without prejudice to the rights of the party terminating, any further use or exploitation of the Licensed Content by the Licensee constitutes copyright infringement, entitling Brown Cardigan Media to exercise all rights and remedies available to it under copyright laws around the world.

12. Notices

All notices required pursuant to this Agreement must be in writing in English. All notices required to be sent to Brown Cardigan Media under this agreement should be sent via email to [email protected]. Licensee will be sent notices via email to the email set out in its account with Brown Cardigan Media.

In relation to email, receipt is deemed to be acknowledged by the recipient by a delivery receipt notification generated by the recipient's email system after sending of the email containing the notice or to which the notice is attached. Emailing notices must constitute sufficient and effective delivery when delivered to the recipient's email account, whether or not the specific electronic communication is accessed or read.

13. General provisions

13.1 Jurisdiction

This Agreement is subject to the laws of the state of New South Wales, Australiaor territory listed in item Licence Terms item 10. The courts of the New South Wales, Australia state or territory listed in Licence Terms item 10 have exclusive jurisdiction over any disputes arising in respect of this Agreement.

13.2 No partnership or agency relationship

Nothing contained in this Agreement must be deemed to constitute partnership between the parties. Nothing contained in this Agreement must deem either party to be the agent of the other party. Neither party must engage in any conduct or make any representation which may suggest to any person it is for any purposes, the agent of the other party.

13.3 Entire agreement

This Agreement sets out the entire agreement between the parties with respect to the Licensed Content. It replaces all previous communications, representations, inducements, undertakings, agreements and arrangements between the parties in respect of its subject matter. This Agreement may not be modified except by written agreement signed by each party.

13.4 No waiver

Failure to exercise, or any delay in exercising, any right, power or remedy by a party does not operate as a waiver. A single or partial exercise of any right, power or remedy does not preclude any further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.

13.5 Severance

If a clause is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this Agreement.