Licence Terms
These terms, when accepted by You, constitute an agreement between The Social Kit Pty Ltd ABN 68 656 779 396 of PO Box 5141, Dalkeith, Western Australia, 6009 (Us, We, Our) and You (Agreement) governing how you can use the photographs, videos or captions (Content) you license from us via Our website.
If you are accepting these terms not in your own capacity but on behalf of a company or business (which is identified when Your Account is created) for which you are authorised to act (for example, as an employee), then “You” means that company or business, and you are binding that company or business, as applicable, to this Agreement.
Please read and review these terms carefully. By clicking the ‘I accept’ icon, You acknowledge that You have read and understood these terms and agree that they will constitute a binding agreement. If You do not agree to these terms, do not click on the ‘accept’ icon.
We may update these terms from time to time in accordance with clause 11.5 below.
Licence Terms
1. Creating an account
1.1 To license Content from Us, You must create an account by completing the “Create Your Account” process.
1.2 All information You provide during the “Create Your Account” process must be accurate, complete and up-to-date, and You must promptly update Your information as required to ensure it remains accurate, complete and up-to-date.
1.3 When You create Your account, You will select Your own username and password, which will be personal to You. You are responsible for keeping Your username and password confidential and secure, and You should not, subject to clause 4, share these details with anyone else.
1.4 Where “You” refers to a company or business, You may share Your username and password with authorised representatives of the company or business. You agree to require each of Your authorised representatives to comply with this Agreement and You agree that You remain responsible and liable for all acts and omissions of Your authorised representatives in connection with the Content and this Agreement.
1.5 We will assume that all activity with Your account that takes place using Your username and password is undertaken by You, and You will be responsible for all such activity. If You believe Your account may be subject to unauthorised access or use, You must notify Us immediately.
1.6 We may refuse to allow any person to create an account, or We may cancel or suspend any existing account, if We suspect that the account may be subject to unauthorised access or use. We reserve the right to contact You at any time if we know of or suspect any fraudulent or dishonest activity in relation to Your account.
2. Access
2.1. We offer 2 types of access to Our Content:
(a) monthly access: which means that You will pay the associated subscription fee monthly in advance; and
(b) annual access: which means that You will pay the associated subscription fee annually in advance.
2.2. When You create Your account, You be able to elect whether You want monthly or annual access. The subscription fee for Your chosen subscription term will be payable in advance and, subject to clauses 5.3 and 10.3(b), will not be refundable.
2.3. Your account will be activated, and You will be granted access to Our Content, once We have received payment of Your first subscription fee.
2.4. Subject to the terms of this Agreement, if You have purchased:
(a) monthly access, You will be granted access to Our Content for successive 1 month periods (with the first 1 month period commencing on the date We provide access to Our service to You) unless either of us gives notice to the other before the expiry of the then month that it doesn’t want the subscription to renew; or
(b) annual access, You will be granted access to Our Content for successive 12 month periods (with the first 12 month period commencing on the date We provide access to Our service to You) unless either of us gives notice to the other before the expiry of the then year that it doesn’t want the subscription to renew.
2.5. We will remind You prior to each renewal of Your right to cancel Your subscription under clause 2.4.
3. Licence
3.1. Each month of Your subscription, You will be entitled to license a maximum of:
(a) 45 photographs, videos or graphics; and
(b) 45 captions,
of Licensed Content subject to the terms of this clause 3.
3.2. Any Content You select and license in accordance with clause 3.1 will be referred to as Licensed Content in this Agreement, which You may use in accordance with the terms of this Agreement.
3.3. We grant You a licence to reproduce and display Licensed Content in all forms of digital media for Your own business purposes (including to promote Your business) subject to You complying with the terms of this Agreement (Approved Purpose). (Examples of the uses withing the Approved Purpose include use of the Licensed Content on Your website, on social media, in online and mobile applications, providing that You are promoting Your business).
3.4. Your rights under clause 3.3 are:
(a) perpetual (which means You can use the Licensed Content forever provided You don’t breach the terms of this Agreement);
(b) non-exclusive (which means We can allow others to use the Licensed Content and also use it Ourselves); and
(c) personal to You (which means You can’t let anyone else use the Licensed Content, You can’t use it on behalf of anyone else, nor can You assign Your rights to anyone else).
3.5. Your rights under clause 3.3 do not include, and You must not:
(a) use, reproduce or display the Licensed Content on any non-digital media;
(b) resell, redistribute, provide access to, share or transfer the Licensed Content;
(c) commercialise the Licensed Content, or otherwise use it for any purpose other than the Approved Purpose;
(d) misrepresent that You, or anyone else, created any of the Licensed Content;
(e) use the Licensed Content in a pornographic, defamatory, deceptive, obscene or unlawful way; or
(f) remove or modify any metadata embedded in the Licensed Content.
4. Ownership of the Content and credits
4.1. All Content (including the Licensed Content) is owned by Us, or the artists or creators who supply the Content to Us. Nothing in this Agreement gives You any ownership rights in the copyright in any of the Content.
4.2. You acknowledge and agree that all rights, title and interest in and to the Content not expressly granted in this Agreement are reserved by Us.
4.3. You do not have to include an artist’s or creator’s credit for the Content.
5. Modifications, suspensions and discontinuation of Our service
5.1. We may modify or update Our service at any time.
5.2. We may suspend the operation of Our service at any time without notice, including for the purposes of routine maintenance.
5.3. We may discontinue Our service at any time. Where We do so, We will give You at least 1 month’s notice. We will refund to You any subscription fees You have paid in advance for the remainder of the unused term.
6. Subscription fees and payment
6.1. You must pay Us for the associated subscription fees, if You have elected to have:
(a) monthly access, monthly in advance; or
(b) annual access, annually in advance.
6.2. We currently use Stripe and its global affiliates (Stripe) to process payments through Our website. You acknowledge and agree that all payments will be processed by Stripe in accordance with the Stripe Services Agreement – Australia (https://stripe.com/au/legal/ssa). We reserve the right to change payment providers and We will give You notice if We do so.
6.3. We reserve the right to increase the subscription fees payable by each time Your subscription is renewed. We will notify You of any increase when We send the renewal reminder under clause 2.5. We will notify You of any increase fees either via email, through Your account, or both.
6.4. If We do not receive payment from You for Your upcoming subscription term on or before the last day of the then-current subscription term, Your subscription will not renew.
6.5. Where a party makes a taxable supply to another party under or in connection with these Terms, the recipient of the taxable supply must pay to the supplier of the taxable supply an additional amount equal to the GST payable on the supply. Terms used in this clause have the meanings given to them in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
7. Third Party Notices
7.1. If You receive a notice from a third party alleging that Your use of the Licensed Content, in accordance with the terms of this Agreement, infringes the intellectual property rights of that third party (Third Party Notice), You must:
(a) immediately notify Us of that Third Party Notice (and in any event no later than 7 days after receiving the Third Party Notice); and
(b) provide any and all reasonably requested assistance in relation to the Third Party Notice.
7.2. If We receive a Third Party Notice, or if You notify Us that You have received a Third Party Notice under clause 7.1, We reserve the right to, upon notice to You:
(a) immediately revoke or cancel Your licence under clause 3.3 for that Licensed Content (or any part of that Licensed Content); and
(b) (at Your election) refund to You a portion of the monthly subscription fee that You paid for that Licensed Content or discount the Licensed Content the subject of the notice from Your monthly allowance under clause 3.1.
7.3. Upon receiving notice from Us under clause 7.2, You must immediately:
(a) cease using and displaying the Licensed Content the subject of the notice;
(b) remove the Licensed Content the subject of the notice from Your systems, and all digital media; and
(c) if requested, confirm to Us in writing that You have complied with these requirements.
8. Privacy
8.1. We will deal with any personal information You provide to Us in accordance with Our then current Privacy Policy, the latest version of which can be found at [insert link].
8.2. If You are providing personal information to Us in relation to another person, You warrant that You have obtained all necessary consents for providing this personal information to Us for the purposes contemplated in this Agreement and Our privacy policy.
8.3. We will comply with the Privacy Act 1988 (Cth) and any other privacy law or requirement by which We are bound.
9. Liability
9.1. To the extent that the mandatory consumer guarantees imposed under the Australian Consumer Law apply to Our obligations under this Agreement, Our liability for any breach of those guarantees is limited, at Our option, to:
(a) in the case of goods, replacing or repairing the goods or supplying equivalent goods, or paying for the cost of replacing or repairing the goods or of acquiring equivalent goods; and
(b) in the case of services, resupplying the services, or paying the cost of resupplying the services.
9.2. Our maximum total aggregate liability for all loss, damage, cost or expense arising under or in relation to this Agreement, whether in contract, tort (including negligence), or otherwise, is limited in any calendar year, to the amount of subscription fees paid to Us by You in that calendar year.
9.3. To the extent permitted by law, We are not liable to You, whether in contract, tort (including negligence) or otherwise, for any indirect, incidental or consequential loss or damages, or for any damages for loss of business, loss of profits, business interruption, loss of data or for any other pecuniary or non-pecuniary loss or damage that may arise under this Agreement.
9.4. Clauses 9.2 and 9.3 do not apply to Our liability for:
(a) personal injury and death; and
(b) any unlawful or illegal acts.
9.5. A party’s liability arising under or in connection with this Agreement is reduced proportionally to the extent that the other party’s acts or omissions contributed to, or caused, the liability.
10. Termination for breach
10.1. Either You or We may, by notice to the other, terminate this Agreement immediately if the other is in serious breach of this Agreement. (This includes if You don’t pay the subscription fees on time).
10.2. If We terminate this Agreement in accordance with clause 10.1, Your access to Our service will immediately cease and You must immediately:
(d) cease using and displaying the Licensed Content;
(e) remove the Licensed Content from Your systems, and all digital media; and
(f) if requested, confirm to Us in writing that You have complied with these requirements.
10.3. If You terminate this Agreement in accordance with clause 2.2 or 10.1:
(a) Your access to Our service will immediately cease but You are entitled to continue to use any Licensed Content selected by You prior to the date of termination in accordance with the terms of this Agreement; and
(b) We will refund to You any subscription fees You have paid in advance for the remainder of the unused term.
10.4. The end of this Agreement will not affect any provision which is expressly or by implication intended to continue in force after termination or expiry.
11. Miscellaneous
11.1. All notices under this Agreement must be sent via email to Us at members@thesocialkit.com. All notices to You will be sent via email to the email address nominated in Your account. Notices sent by email will be deemed to be received at the time they are sent unless the sender receives an automated notification that the email was not delivered.
11.2. You may not assign a right under this Agreement without Our prior express written consent. We may assign Our rights and novate Our obligations under this Agreement at any time, and You consent to Us doing so. We will give You notice if We exercise Our rights under this clause.
11.3. Should any term of this Agreement be found to be invalid or unenforceable, the remaining terms will still apply.
11.4. We will not be liable for any delay or failure to perform any obligation under this Agreement where that delay or failure is the result of any cause outside Our reasonable control.
11.5. We may modify the terms of this Agreement from time to time, by notice to You, or through Our website. When We send the notice, We will specify the effective date of the modifications. The modifications will only take effect at the next renewal of this Agreement.
11.6. This Agreement is governed by the laws of Western Australia. Each party submits to the non-exclusive jurisdiction of the courts of Western Australia.
Version 3.0: 19.09.2022