Kolect Art Website Terms and Conditions
1.1 Please read the following terms and conditions (Terms) to understand your rights and obligations when accessing our Website, content, products, and services (Services). These Terms operate between you and us.
1.2 By browsing, accessing or using the Services, or clicking “Join Now”, “Join Kolect”, “Sign Up” “Sign In” or similar, you agree to be bound by these Terms. If you do not accept these Terms, you must immediately cease using the Services.
1.3 We reserve the right to amend these Terms from time to time. Amendments will be effective as soon as such changes are published. Your continued use of the Services constitutes agreement by you to be bound by these Terms as amended. You should regularly review these Terms. Where there is inconsistency between the content in these Terms and other content displayed as part of the Services, the content in these Terms will prevail.
1.4 These Terms constitute the entire agreement between you and us with respect to their subject matter and supersede all prior agreements and understandings between you and us in connection with the Services.
2. Your Account
2.1 You may access some areas of our Services without registering your details with us. However, to use the Website, you must provide us with some of your personal information and have the option to register an account (Account). When you register an Account on the Website, you become a Member. If you have chosen not to register for our Services, you may access certain features of the Services as a Visitor.
2.3 You agree to keep your Account information accurate and complete. You will not be able to use the Website if you provide invalid, expired or incorrect information, or are in arrears with your payment for Services (where applicable).
2.4 You acknowledge and agree that you are responsible for any activity that occurs through your Account and you will not sell, transfer, license or assign your Account to anyone else. You agree that you will not create an account for another person, and will not possess more than one Account, unless permitted by us in writing.
3. Subscription Fees
3.1 Sellers must pay the fee stated in our “Subscription Plan” document (if any) or otherwise notified to you and you authorise us to deduct any relevant fee from any Account you hold with us. We reserve the right to change our fees and charges and to institute new charges at any time, upon notice to you, which may be sent by email or posted on the Website. Your use of the Services following such notification constitutes your acceptance of any new or increased charges.
3.2 Each Member on a paid subscription plan must maintain a linked and valid PayPal account (or other approved method from time to time) through which payments for the Website subscriptions can be made, and must ensure the details of that account are kept up to date.
3.3 You may cancel your Account at any time; however, there are no refunds for cancellation. We reserve the right to suspend or terminate your Account at any time and for any reason, and you understand and agree that you shall receive no refund or exchange for any Services, any license or subscription fees for any portion of the Services, any content or data associated with your Account, or for anything else.
4. Licence for the Services
Subject to your acceptance of these Terms, we grant you a limited, non-exclusive, non-assignable, non-transferable licence to access and use the Services.
5. Listing and licensing an Artwork
5.1 You understand that the Services provide a platform for the marketing and promotion of a market for Artwork between Buyers and Sellers, and that any arrangement for the licensing of an Artwork though the Services involves entering into a Licence Agreement.
5.2 To upload an Artwork to the Services, the Seller must on each occasion of uploading an Artwork warrant and represent that:
(a) the Artwork has not been licensed to any other entity;
(b) the Artwork is not unlawful in any way (including that it is not offensive, defamatory, obscene, unlawful, misleading, deceptive, vulgar, harmful, threatening, abusive, harassing or ethnically objectionable);
(c) hosting your Artwork for sale will not cause any liability to us or our related corporate entities, directors, staff or contractors;
(d) the Artwork does not infringe or violate the rights of any person or entity; and
(e) under a Licence Agreement, the Seller will:
(1) grant the Buyer an exclusive, unrestricted licence to use and exploit the Artwork for any purpose, in any media, throughout the world; and
(2) waive any moral rights connected with the Artwork; and
(3) provide the warranties set out above to the Buyer.
5.3 The Seller hereby agrees to indemnify us for any loss or damage howsoever arising, including legal costs on a full indemnity basis, for any breach, or alleged breach of the warranties and representations set out at clause 5.2 above.
5.4 You acknowledge that notwithstanding any other provision of these Terms, or of a Licence Agreement, participating Members and visitors or we may publish Artwork available on the Website in other forums to facilitate the marketing and offer of Artworks to the general public, including sharing a listing on third party operated social media networks. You acknowledge and agree that as a result, screenshots or other duplications of Artwork may exist in the public domain and perpetuate beyond the time that any one Artwork is licensed through the Website.
5.5 Upon claiming and downloading an image, delivered in zip format, the Buyer will be provided with an exclusive license to use the Artwork under the Licence Agreement, an exhibit graphically referencing the licensed Artwork, a copy of the “Licence Agreement” between the Buyer and Seller and the high resolution version of the Artwork uploaded by the Seller.
5.6 By using our Services you agree that:
(a) when engaging in the sale or purchase of an Artwork, you will use the Licence Agreement supplied by us;
(b) prior to entering into a Licence Agreement for the sale or purchase of an Artwork, you have read, understood and agree to be bound by the terms of the Licence Agreement;
(c) prior to entering into a Licence Agreement for the sale or purchase of an Artwork, you have taken, or have been provided with an opportunity to take and have declined to take, independent legal advice as to the nature and effect of the Licence Agreement and the warranties, representations and indemnities in the Licence Agreement and these Terms;
(d) the Licence Agreement we provide may be renegotiated between the parties and is provided “as is” and without any warranty of fitness or enforceability within the jurisdiction in which the Buyer or Seller are located; and
(e) we are not responsible for any loss or damage suffered by you as a result of your failure to enforce (or inability to enforce) a Licence Agreement, any aspect of the Service not working or malfunctioning or by you breaching any part of these Terms.
5.7 Upon the sale or purchase of an Artwork occurring, we will generate a copy of the Licence Agreement for that transaction and are deemed to have granted you a licence to use that Licence Agreement in respect of that transaction only.
6. Payments for Artwork and agency
6.1 You acknowledge and agree that where an Artwork is licensed under a Licence Agreement through the Services, a one off payment will be made between the Buyer and Seller on the terms agreed between the Buyer and Seller as part of the Licence Agreement (Licence Fees).
6.2 As part of the Services, we will collect the Licence Fees on behalf of the Seller as agent of the Seller, and remit the Licence Fee less any applicable PayPal fees and charges to the Seller. We do not charge any further fees. Where you interact with us as a Seller, you hereby appoint as your agent for the sole purpose of collecting Licence Fees on your behalf.
6.3 You are responsible for ensuring that any price you list an Artwork for on our Website is inclusive of any applicable value added or goods and services tax as may be applicable in your jurisdiction. You are solely responsible for all of your own taxes arising from your use of the Website.
7. Australian Consumer Law – Australian Users only
7.1 If you are located in Australia, our services come with guarantees that cannot be excluded under Schedule 2 to the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law).
7.2 Nothing in these Terms excludes, restricts or modifies or purports to exclude, restrict the conditions, warranties and undertakings arising under the Australian Consumer Law. Our liability for death or personal injury arising from our negligence or for any condition, warranty, right or liability implied in these Terms by law cannot be excluded.
8. Warranties and Disclaimer
8.1 The Services are provided to you strictly on an “as is” and “as available” basis. You acknowledge that:
(a) your use of the Services is at your own risk;
(b) prior to accepting these Terms you have been given a reasonable opportunity to examine and satisfy yourself regarding the Services which are the subject of these Terms;
(c) at no time prior to accepting these Terms have you relied on our skill or judgement and that it would be unreasonable for you to do so; and.
8.2 To the maximum extent permitted by law, all other warranties or conditions which are not guaranteed by law are expressly excluded, including liability for loss of expectations, loss of profits, incidental or consequential loss or damage caused by breach of any express or implied warranty or condition. In particular, we do not warrant:
(a) that your access to the Services will be free from interruptions, errors or viruses; or
(b) the accuracy, adequacy or completeness of information on the Services (nor do we undertake to keep the Services updated).
8.3 To the extent that we are in breach of any consumer guarantee or any other warranty or condition that cannot be excluded from these Terms:
(a) your sole remedy will be for us to provide the features or services that were previously provided; and
(b) our maximum liability to you is limited to the purchase price of the goods or services you purchased in your last transaction using our Services or $100, whichever is lower.
9. Limitation of Liability
9.1 To the maximum extent permitted by law, we do not accept responsibility for any loss or damage (including indirect, special or consequential loss or damage), however caused and whether or not foreseeable (whether in contract, tort, for breach of statutory duty or otherwise), even if we have previously been advised of the possibility of such loss or damage which you may directly or indirectly suffer in connection with:
(a) your use of the Services or any linked website, content, products and services (together, the linked services) (including interference with or damage to your computer or mobile devices arising in connection with any such use);
(b) the Services being interrupted or unavailable;
(c) errors or omissions from the Services;
(d) any failure or lack of any security measures by us, or any third party including in relation to the storage or transfer of data;
(e) viruses, malicious codes or other forms of interference effecting the Services, or any linked services;
(f) your use of or reliance on information contained on or accessed through the Services, or any linked services, which information may be incorrect, incomplete, inadequate or outdated;
(g) goods or services supplied pursuant to or in any way connected with the Services;
(h) unauthorised access to or use of, our servers and/or any information stored on them; or
(i) any failure or omission on our part to comply with our obligations as set out in these Terms.
9.2 To the maximum extent permitted by law, you agree to indemnify and keep indemnified us and our Affiliates against any action, liability, cost, claim, loss, damage, proceeding or expense suffered or incurred directly or indirectly arising from your use of the Services, or from your violation of these Terms.
10. Your acknowledgements and warranties
10.1 In using our Services, you acknowledge and agree that:
(a) these Terms apply between you and us only;
(b) there is a risk of malicious actors seeking to interfere with our Services and that we expressly disclaim any liability for loss associated with that circumstance;
(c) there is no professional relationship (including any attorney-client or advisor-advisee relationship) between you and us;
(d) we cannot guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.
10.2 In entering into these Terms, you represent and warrant to us that:
(a) any information provided to us by you is accurate and complete;
(b) we and our Affiliates will be entitled to rely on the accuracy and completeness of any information provided by you;
(c) you have not entered into these Terms in reliance on or as a result of any statement or any conduct of any kind or on behalf of any other person;
(d) you have independently satisfied yourself in respect of all matters in connection with these Terms;
(e) entry into the Terms does not and will not violate any other agreement to which you are bound or any law, rule, regulation, order or judgment to which you are subject;
(f) you will not infringe or violate any of the Terms;
(g) you possess the legal authority to enter into these Terms and to form a binding agreement under any applicable law, to use the Services in accordance with these Terms, and to fully perform your obligations hereunder;
(h) if you use the Services on behalf of a business, corporate or charitable entity, you represent, warrant and agree:
(1) that you are duly authorised under any applicable law to represent such entity in connection with these Terms and to commit it to be bound by these Terms;
(2) make all representations and warranties herein on both your and its behalf; and
(3) personally guarantee performance by such entity;
(i) you possess the knowledge and judgment necessary to decide whether to use the Service or otherwise engage with other use of the Service;
(j) you are solely responsible for complying with applicable laws regarding use of the Services including, without limitation, the determination of whether use of our Services complies with laws applicable to you; and
(k) you have read and agree to assume the risks identified above.
11. Specific Warnings
11.1 You must ensure that your access to the Services is not illegal or prohibited by laws which apply to you in the jurisdiction in which you are located.
11.2 You must take your own precautions to ensure that the process which you employ for accessing the Services does not expose you to the risk of viruses, malicious computer code or other forms of interference emanating from the Services (or any linked services) which may damage your own computer system.
11.3 You agree that you will not rely on any information contained on the Website or the availability of such information and that any decision you make in relation to the Services will be as a result of your own independent assessment of such information.
12.1 The content of the Services (including its “look and feel”, text, graphics, images, logos, icons, photographs, editorial content, sound recordings, software and other material) is owned by us or licensed to us by third parties and protected under applicable laws.
12.2 Other than for the purposes of, and subject to the conditions prescribed under, the Copyright Act 1968 (Cth) and similar legislation which applies in the jurisdiction in which you are located, and except as expressly authorised by these Terms or in writing by us, you may not in any form or by any means:
(a) copy, adapt, reproduce, store, distribute, print, display, perform, publish or create derivative works from any part of the Services; or
(b) commercialise any information, products or services obtained from any part of the Services,
unless that use arises from a Licence Agreement entered into through the Services.
12.3 All rights not expressly granted under these Terms are expressly reserved.
13. Restrict. ed Use
13.1 The Services are provided for your personal use only and may not be resold or whitelabelled.
13.2 You warrant to us and agree that you will not use the Services for a Restricted Use.
13.3 You warrant to us and agree that you are 18 years of age or over and have full legal capacity to use the Services under the laws of Australia, and under the laws of the jurisdiction in which you reside.
13.4 If we become aware that you are under 18 years old and have used or accessed or are using or accessing the Services, we may terminate or suspend your Account without notice to you and we will have no further obligations to you. Once your Account is cancelled, it cannot be re-activated and we reserve the right to deny you access to the Services.
13.5 You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, licence, commercially exploit, create derivative works from, transfer, or sell any content, software, products or services contained within or derived from the Services without our prior written approval.
13.6 You are authorised to print one copy of any information contained in the Services for your personal, non-commercial use. You may not use the Services, or any of their content, to further any commercial purpose, including any advertising or advertising revenue generation activity on your own website.
14. Links in the Services
14.1 The Services may contain links to linked services. Those links are provided for convenience only and may not remain current or be updated by us.
14.2 We are not responsible for the content or privacy policies or practices of persons or companies associated with linked services. We will not be liable to you or any other person for any loss or cost arising in respect of use or access to linked services. When you access any linked services you do so entirely at your own risk.
14.3 Linked services should not be construed as an endorsement, approval or recommendation by us of the owners or operators of those linked services, or of any information, graphics, materials, products or services referred to or contained on those Linked Websites, unless and to the extent stipulated to the contrary.
15. Links to the Website
15.1 We do not grant you any intellectual property rights in any thing (including information and content such as Artworks, films, sound recordings, literary works and artistic works, whether in a material form or not) on or accessible via the Services (Materials).
15.2 You must not reproduce the Materials or communicate the Materials to the public (including via any form of linking) without our prior written approval, unless your use is pursuant to a Licence Agreement entered into through the Services. Any permitted use or disclosure (including reproductions and communications to the public) of any Materials by you are on the basis that:
(a) such use and disclosure is at your own risk, including the risk of being sued for intellectual property infringement or misleading or deceptive conduct;
(b) you ensure that all links to Materials are presented or able to be used in a way that makes it clear to a viewer or user of the links or linked materials that the source of the Materials is the Services;
(c) you ensure that anyone who uses or reproduces your links to the Materials does so on the same terms as a person who accesses the Materials directly from the Website;
(d) you ensure that anyone who uses or reproduces your links to the Materials is not able to circumvent the limits (including technological restrictions and as to location) applying in respect of the Materials were the Materials to be accessed or sought to be accessed directly from the Services rather than via their links;
(e) you do not link the Materials in a way that damages or takes advantage of our reputation, including in a way that suggests or implies that you have any association or affiliation with us or approval or endorsement; and
(f) you otherwise comply with our directions, including any take down or cease or desist directions.
16. Proper Use
16.1 You must only use the Services for lawful purposes. You are prohibited from doing any act that we, acting reasonably, consider to be inappropriate, or which is unlawful or prohibited by any laws applicable to the Services , including but not limited to any act which would constitute a breach of privacy, using the Services to defame or libel us, our employees or any other person.
16.2 You must not:
(a) use the Services to impersonate any other person or entity;
(b) use the Services or interact with the Services in a manner that jeopardises the security of your Account or anyone else’s (such as allowing someone else to log on as you on the Services)
(c) reverse engineer the code contained in the Services or upload files which contain viruses or malware which may cause damage to our property or the property of other individuals or post or transmit to our Services any material which we have not authorised including material which is, in our sole opinion, likely to cause annoyance, or which is racist, defamatory, obscene, threatening, pornographic or otherwise or which is detrimental to or in violation of our security protocols;
(d) damage, disrupt, interfere with or misuse the Services, including by data mining, hacking, data harvesting or scraping or using similar data gathering and extraction tools in respect of the Services;
(e) launch any automated program or script, including web crawlers, web robots, web indexers, bots, viruses or worms or any program which makes multiple server requests per second or impairs the operation and/or performance of the Services;
(f) use any device, software or routine intended to damage or interfere with the proper working of the Services or to intercept or sequester any system, data, images or other multimedia elements from the Services.
17. User Material
17.2 You consent to any act or omission which would otherwise constitute an infringement of your moral rights you may have in respect of User Material. This consent survives any termination of these Terms.
17.3 You agree that we will have no obligations with respect to any User Material, and that we and anyone we designate will be free to copy, disclose, distribute, incorporate and otherwise use any User Material and all data images, sounds, text and other things embodied in the User Material for any and all commercial and non-commercial purposes.
17.4 Any information and content (including User Material) that you share or post may be seen by other Members, Visitors or others (including off of the Services). Where we have made settings available, we will use reasonable commercial endeavours to honour the choices you make about who can see content or information.
17.5 By posting, uploading or transmitting any User Material, you represent and warrant that any User Material does not and will not:
(a) breach any applicable law;
(b) contain any viruses or any other harmful program;
(c) contain any defamatory, obscene or offensive material;
(d) promote violence or discrimination;
(e) infringe the intellectual property rights of another person;
(f) breach any legal duty owed to a third party (such as a duty of confidence);
(g) promote illegal activity or breach the privacy of any other person;
(h) be threatening, abuse or invade another person’s privacy or be likely to harass, upset, embarrass or annoy any other person;
(i) give the impression that the User Material originates from us;
(j) be used to impersonate another person or to misrepresent your affiliation with another person;
(k) execute any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure); or
(l) contain any unsanctioned advertising, promotional materials, or other forms of unsanctioned solicitation, including without limitation, junk mail, spam, chain letters or any unsolicited mass distribution of email.
17.6 The prohibited acts set out in clause 17.5 are not exhaustive. There is no tolerance for objectionable content or abusive users. We reserve the right (but do not undertake, unless required by law, any obligation) to edit or remove any User Material without notice to you, in our sole discretion.
17.7 You grant us an irrevocable, perpetual, exclusive, transferable, royalty free worldwide licence to use, copy, modify and distribute any User Material (other than Artwork) in any manner we think fit (including without limitation, by reproducing, altering or communicating the User Material to the public). You also grant us the right to sublicense these rights.
17.8 All User Material contained on the Services is for information purposes only and does not constitute advice from us. User Materials reflect the opinions of users who have used the Services and any statements, advice or opinions provided by such persons are theirs alone. To the maximum extent permitted by law, including any restrictions contained in the Australian Consumer Law, we assume no responsibility or liability to any person for any User Materials, including without limitation, any errors, defamatory statements, obscenity, omissions or misrepresentations in any such User Materials.
19. Security of Information
19.1 No data transmission over the internet can be guaranteed as totally secure. Whilst we strive to protect such information, we do not warrant and cannot ensure the security of any information which you transmit to us.
19.2 Any information which you transmit to us is transmitted at your own risk. Once we receive your transmission, we will take reasonable steps to preserve the security of such information.
20. Service Access
While we endeavour to ensure the Services are available twenty four (24) hours a day, we are not under any obligation to do so, and will not be liable to you if the Services are unavailable at any time or for any period. Your access to the Services may also be restricted at our discretion.
21. Termination of Access
21.1 Your access to the Services may be terminated at any time by us without notice to you. Following termination we will have no further obligations or liabilities to you. Any exclusions of liability or other provisions contained in these Terms which by their nature survive termination of these Terms will survive any such termination.
21.2 On termination, you lose the right to access or use the Services. The following shall survive termination:
(a) Members and/or Visitors’ rights to further re-share content and information you shared through the Services; and
(b) Sections 4, 5 and 7 of these Terms.
If any provision of these Terms is held to be illegal, invalid or unenforceable, in whole or in part, under any law, such provision or part thereof will to that extent be severed and deemed not to form part of these Terms but the legality, validity and enforceability of all other provisions of these Terms will not be affected.
23. Governing Law
These Terms are governed by the laws in force in the State of New South Wales and you agree to submit to the exclusive jurisdiction of the courts of that State in respect of any dispute arising from these Terms.
In these Terms:
(a) Account has the meaning given in clause 2.1;
(b) Affiliates means any employee, contractor, subcontractor, agent, partner, shareholder, ultimate beneficial owner, director or officer of a party;
(c) Artwork means any content, including design, text, graphics, logos icons or other artwork uploaded to the Website to be advertised to Buyers
(d) Buyer means a Member using the Services to acquire an exclusive licence to an Artwork;
(e) we, us and our and similar terms are a reference to Kolect Pty Ltd (ACN 645 446 957) and our related entities;
(f) Licence Agreement means the agreement entered into between a Buyer and Seller, through which the Seller grants an exclusive licence to the Buyer to use and exploit an Artwork owned by the Seller;
(g) Member means any user of the Services that has registered an Account;
(h) Restricted Use means:
(1) Multi-level marketing businesses (MLM);
(2) Live animals;
(3) Medical equipment;
(4) Sales of money-orders or foreign currency;
(5) Up-sell merchants;
(i) Seller means a Member using the Services to grant an exclusive licence to an Artwork;
(j) Services has the meaning given in clause 1.1;
(k) Visitor means any person who accesses or otherwise uses any part of our Service without registering an Account; and
(l) Website means https://www.kolect.art/ and any other website that we may operate from time to time.