Terms & Conditions
Please read these Terms carefully before using our Website.
These Terms govern the use of our Website and any purchases made through our Website. If you do not agree to these Terms then you may not access our Website or use our Services.
Section 1 - Definitions
In this document:
Designer means the creator of any Work and/or the author who submits any Work for publishing on our Website;
Intellectual Property Rights means intellectual property rights at any time protected by statute or common law, including copyright, trade marks, patents and registered designs;
Loss includes, but is not limited to, costs (including, but not limited to, party to party legal costs and our legal costs), expenses, lost profits, award of damages, personal injury and property damage;
Services means any services provided by us, including but not limited to altering or amending any Work;
Terms means the terms and conditions contained in this document as amended by us and published on our Website from time to time. Any amendments will be effective as of the date of publication on the Website and your continued use of our Website will constitute your acceptance of our amended Terms;
We, us or our means Maggie Dreyer Advertising Pty Ltd trading as Brand in a Can ABN 74 002 300 816 in either our own capacity or as agent for the Designer;
Web Design Pack means an electronic file comprising a ready-made website which has been designed to include a home page with links to supplementary website pages or sections, but does not include any hosting or domain name registration services;
Website means www.brandinacan.com.au and/or www.brandinacan.co, and/or www.brandinacan.net;
Work means any graphic, image, logo, emblem, artwork, design, photograph, text or Web Design Pack which is displayed on our Website or sold or licensed to you by us on behalf of the Designer.
Section 2 - Interpretation
In these Terms, unless the context otherwise requires:
(a) a reference to writing includes email and other communication whether or not established through the Website;
(b) the singular includes the plural and vice versa;
(c) a reference to a clause or paragraph is a reference to a clause or paragraph of these Terms;
(d) a reference to a party to these Terms or any other document or arrangement includes that party's executors, administrators, successors and permitted assigns;
(e) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
(f) headings are for ease of reference only and do not affect the meaning or interpretation of these Terms; and
(g) if the date on which any act, matter or thing is to be done falls on a day which is not a Business Day, that act, matter or thing:
(i) if it involves a payment other than a payment which is due on demand must be done on the preceding Business Day; and
(ii) in all other cases, must be done on the next Business Day.
Section 3 - Agreement
3.1 You agree that your use of the Website and/or Services and any licences or purchases initiated via the Website are subject to your agreement to and compliance with these Terms, as amended from time to time.
3.2 By using our Website and/or Services you:
(a) indicate your acceptance of these Terms;
(b) agree to abide by these Terms;
(c) represent that you are at least eighteen (18) years old;
(d) acknowledge that the Work is our (or our Designer’s) intellectual property;
(e) agree that you will not print, copy, download or reproduce any of the Work unless you have:
(i) purchased full rights to that Work;
(ii) been granted a licence (and have at all times complied with the terms of that licence) to use that Work; or
(iii) been authorised by us to reproduce the Work;
(f) agree that you will not resell or redistribute any Work unless you have purchased full rights to that Work;
(g) agree to only use the Work in the industry that you have specified;
(h) agree to only use the Website where there is a genuine good faith intention to purchase Work. You agree not to use the Website to generate ideas and to use those ideas with no intention of purchasing any Work and thereby infringing upon our rights or the Designer’s rights;
(i) acknowledge that you must not use our Website, Work or Services for any illegal or unauthorised purpose, nor may you in the use of our Website, Work or Services violate any laws in any jurisdiction (including but not limited to copyright laws);
(j) agree not to transmit any worms or viruses or any code of a destructive nature;
(k) acknowledge that we may immediately terminate your use of our Website at any time; and
(l) acknowledge that any Work for which you have purchased a licence or full rights will be forwarded to you within 3 Business Days.
Section 4 - Purchase of a Licence to Use Work
4.1 You may purchase via the Website a non-exclusive licence to use selected items of Work in the industry you have selected.
4.2 Upon payment of the fee specified on our Website, we will grant you a non-exclusive licence to use the item of Work you have selected for use only in the industry you have selected. This licence is subject to the Designer’s rights and these Terms.
4.3 You agree not to alter or amend any item of Work without our written consent.
4.4 You agree that you will not trademark or protect any of the Work, unless you have purchased full rights to the Work, in accordance with clause 6 of these Terms.
4.5 You warrant that you will not infringe the legal or moral rights of the Designer or us which are afforded under Australian and international copyright or other relevant Iegislation.
4.6 You acknowledge that:
(a) We may keep any item of Work which you have licensed and may licence or sell that item of Work to other users of the Website; and
(b) We make no representations that you will at any time be able to purchase full rights to any item of Work.
4.7 You acknowledge that Brand in a Can does not undertake any searches or other verification processes in respect of the Work.
4.8 You acknowledge that Brand in a Can makes no representation as to the ability to register any proposed business name included in any Work, or any website domain name included in any Web Design Pack. You acknowledge that you must arrange all website hosting services for any Web Design Pack you purchase.
Section 5 - Revisions
5.1 If you require revisions of the Work (for example, altering images or amending your business name or other details), you may request us to make revisions to the Work upon purchase of a licence to use that Work. We may, at our discretion, decide whether or not we will perform such revisions and will inform you of any additional fee for such revisions. We will not commence any revision work that requires additional payment without your consent.
5.2 You acknowledge that you must not make any alterations or amendments to any item of Work, in accordance with clause 4.3 of these Terms.
Section 6 - Purchase of the Work
6.1 You may request to purchase full rights to any item of Work by contacting us via the Website.
6.2 In the event that the Work was created by a Designer other than us, the Website will display the Designer of the Work. If we are acting on behalf of the Designer in any sale of full rights to the Work, we will facilitate this sale as the Designer’s agent.
6.3 If we agree that any item of Work may be purchased, you acknowledge and agree that:
(a) whilst we and our Designers take care to create new and exciting images for our Website, some items of Work may display characteristics similar to other intellectual property and it may not be possible for you to trade mark and/or register your rights to that Work; and
(b) neither us nor the Designer make any representations or give any warranties that you or anyone else who purchases the Work will have all the rights necessary to use or exploit, trademark or protect that Work, in any manner whatsoever.
6.4 By selecting to purchase full rights to any Work you acknowledge Brand in a Can may be acting as an agent for the Designer and in that case you are entering into an agreement with the Designer for the purchase of that Work.
6.5 We will forward the Designer’s contact details to you within seven (7) days if requested to do so in writing.
6.6 You agree to immediately notify us in writing in the event that you have any concerns or claims regarding the Work (regardless of whether you have also notified the Designer in writing).
Section 7 - Contact Information
7.1 You agree to provide us with up to date contact information including your full name, postal address, telephone number and email address.
7.2 We can be contacted via our Website.
7.3 If requested, the Designer can be contacted in accordance with clause 6.5.
Section 8 - Term
8.1 This agreement commences on the date on which you first use the Website and continues until it is terminated by you or us in accordance with this Agreement. You acknowledge that we may terminate your access to the Website at any time.
8.2 We may terminate your licence to use any items of Work upon providing you with at least 90 days notice, however, if you are in breach of these Terms, or we become aware that the Intellectual Property Rights or any other rights relating to the items of Work you have licensed have been violated then we may immediately terminate your licence to use those specific items of Work (including, but not limited to circumstances where the Designer’s right to the Work has been compromised, or where legal proceedings are contemplated or commenced against us or the Designer in relation to that Work).
Section 9 - Intellectual Property Rights
9.1 You acknowledge and agree that all right title and interest in and to our Website and Services (including in respect of the software and technology underlying our Website, and any know-how, trade marks or service marks of ours) (our “Rights”) are vested in us or in our licensors, suppliers or Designers.
9.2 Nothing in these Terms shall be construed as granting any right title or interest in or to any of our Rights or any other Intellectual Property Rights owned or controlled by us, or the Designer.
9.3 Unless specifically agreed in writing between us and you, all Intellectual Property Rights in any Work on or purchased through our Website remain our property or that of the Designer.
Section 10 - Third Party Links
Our Website may include materials from third parties or links to third parties’ websites who are not affiliated with us. You acknowledge that we are not responsible for examining or evaluating the content or accuracy of this material and that we are not liable for any harm or damages related to the purchase or use of any goods or services from any third party.
Section 11 - Exclusions and limitation of liability
11.1 You expressly agree that use of the Website, Work and Services is at your own risk. To the full extent allowed by law, our liability for breach of any term implied into these Terms by any law is excluded.
11.2 All information, specifications and samples provided by us in relation to the Work are approximations only and, subject to any guarantees under the Australian Consumer Law, small deviations or slight variations from them which do not substantially affect your use of the Work or Services will not entitle you to reject the Work upon delivery, or to make any claim in respect of them.
11.3 You acknowledge that we give no warranty in relation to the Website, Work or Services provided or supplied.
11.4 Under no circumstances are we or any of our suppliers or Designers liable or responsible in any way to you or any other person for any Loss or other claims (including consequential damages and loss of profits or loss of revenues), as a result, direct or indirect of any defect, deficiency or discrepancy in the Website, Work or Services including in their form, content and timeliness of deliveries, failure of performance, error, omission, defect, including, without limitation, for and in relation to any of the following:
(a) any Works or Services supplied to you;
(b) any delay in supply of any Work or Services; or
(c) any failure to supply any Work or Services.
11.5 Any advice, recommendation, information, assistance or service given by us in relation to the Website, Work and/or Services is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given, but is provided without any warranty or accuracy, appropriateness or reliability. We do not accept any liability or responsibility for any Loss suffered as a result of your reliance on such advice, recommendation, information, assistance or service.
11.6 To the fullest extent permissible at law, we are not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide the Website, Work or Services, or otherwise arising out of the provision of the Website, Work or Services, whether based on these Terms, negligence, strict liability or otherwise, even if we have been advised of the possibility of damages.
11.7 You acknowledge that the Website, Work and/or Services are not for personal, domestic or household purposes.
11.8 The Australian Consumer Law may give you certain guarantees. Where liability for breach of any such guarantee can be limited, our liability (if any) arising from any breach of those guarantees is limited with respect to the supply of Work, to the replacement or repair of the Work or the costs of resupply or replacement of the Work or with respect to Services to the supply of Services again or cost of re-supplying the Services again.
Section 12 - Indemnity
You agree to indemnify and keep us indemnified (including our Designers, servants and agents) in respect of any claim or demand made or action commenced by any person (including, but not limited to you) against us or, for which we are liable, in connection with any Loss arising from or incidental to the provision of the Website, Work or Services, or the subject matter of these Terms including, but not limited to any legal costs incurred by us in relation to meeting any claim or demand or any party/party legal costs for which we are liable in connection with any such claim or demand. This provision remains in force after the termination of these Terms.
Section 13 - General
To the maximum extent permissible by law, you waive all rights under the Privacy Act 1988 (Cth) and consent to the collection, storage and provision of information by us to third parties. Such information may be used for our own statistical or marketing purposes, among other uses.
13.2 No Waiver
No right under our Terms will be waived except as expressly agreed in writing and signed by us. We will not waive a right if we grant an extension or forbearance to you. A waiver by us of any matter does not prejudice our rights in respect of any subsequent or other matter. Any non-exercise or partial exercise of, or any delay in exercising any right or remedy does not constitute a waiver of that right or remedy.
13.3 Independent Legal Advice
You acknowledge that you have had adequate opportunity to obtain independent legal advice as to the meaning and effect of our Terms before they were accepted.
13.4 Entire Agreement
Any previous correspondence, negotiations or representations between us do not bind either us or you and neither we nor you can rely on them.
We may delegate or sub-contract the performance of any obligation in our absolute discretion.
If (but for this clause) a provision of these Terms would be illegal, void, unenforceable or contravene any law, these Terms are to be varied so as to give effect to the intention of the Terms or severed without affecting the enforceability of the other provisions and failing that, the offending provision is to be interpreted as if the provision was omitted.
13.7 Disputes and arbitration
(a) If a dispute arises out of or relates to the Work, Services or these Terms, or the breach, termination, validity or subject matter thereof, or as to any related claim in restitution or at law, in equity or pursuant to any statute, the parties to the agreement and the dispute expressly agree to endeavour to settle the dispute by mediation administered by the Australian Commercial Disputes Centre (ACDC) before having recourse to arbitration or litigation.
(b) The mediation will be conducted in accordance with the ACDC Guidelines for Commercial Mediation which are operating at the time the matter is referred to ACDC.
(c) The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved.
(d) The terms of the Guidelines are hereby deemed incorporated into these Terms.
(e) This clause shall survive termination of these Terms.
13.8 Governing law and jurisdiction
These Terms and the transactions contemplated by them are governed by the law of New South Wales, Australia. We each irrevocably submit to the jurisdiction of the courts of New South Wales, Australia and all courts called to hear appeals from the courts of New South Wales in respect of the Terms or its subject matter.