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EASY PEASY ART SCHOOL Agreement

ART WORKS reproduction licence and WEBSITE subscription Terms and CONDITIONs

THIS IS AN AGREEMENT BETWEEN:

Easy Peasy Art School ABN 48 458 175 207 of  www.easypeasyartschool.com.au (Licensee)

AND

You, by using the Easy Peasy Art School services you are indicating your acceptance of this Easy Peasy Art School Visual Arts Agreement, The Easy Peasy Art School Website Terms of Use and the Easy Peasy Art School Privacy Policy and agree to be legally bound by them. (Artist/Author/Owner) This Agreement governs the Artist of the Artworks which are uploaded to the Website, the Users who download the copyrights contained in the images, and the Subscribers who download the lesson plans from the Website. DEFINITIONS and INTERPRETATION Definitions In this Agreement the following words have the following meanings, unless the context otherwise requires: ‘Artist/Author/Owner’ means any the person(s) who uploads and/or makes images available from the website.  ‘Artwork’ means any image, work or Artworks displayed on the Website or uploaded to the website by 3rd parties. ‘Commencement Date’ means the date on which you agree to the Easy Peasy Art School set of terms and conditions indicated above in the Recitals. ‘Confidential Information’ means all information provided by one party to the other in connection with this Agreement where such information is identified as confidential at the time of its disclosure or ought reasonably be considered confidential based on its content, nature or the manner of its disclosure, but excluding:
  • information that enters the public domain or is disclosed to a party by a third party, other than through a breach of this Agreement, and
  • information developed independently by a party.
‘Documentation’ means any and all proprietary documentation made available to you by Easy Peasy Art School including any documentation available online. ‘Fees’ means cost of the Easy Peasy Art School subscription services. ‘Force Majeure Event’ means any event beyond the control of the relevant party. ‘GST’ has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth), or any other similar tax. ‘Intellectual Property Rights’ means all intellectual property rights, including all copyright, patents, trade marks, design rights, trade secrets, domain names, know how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application. ‘Licensee/Author’ means the Easy Peasy Art School.            ‘Lesson Plans’ means the lesson plans downloaded from the Website which are the copyrights of the Easy Peasy Art School. ‘Meanings’ Unless the context requires otherwise:
  • a reference to a person includes a corporation or any other legal entity;
  • the singular includes the plural and vice versa;
  • headings are for convenience and do not form part of this Agreement or otherwise affect the interpretation of this Agreement;
  • the term "includes" (or any similar term) means "includes without limitation"; and
  • a reference to any statute includes references to any subsequently amended, consolidated or re-enacted version of that statute and all delegated legislation or other statutory instruments made under it.
           ‘Moral rights’ means the author of an artwork has moral rights in relation to that work, even if the author is not the Artist/Author/Owner of the copyright in the work. Moral rights arise automatically and have a legal meaning. There are three types of moral rights: ‘Right of attribution’: this is the right of an author to be identified and named as the author of his/her work; ‘Right against false attribution’: this is the right of an author to prevent others to be identified and named as the author of his/her work; and ‘Right of integrity’: this is the right of an author to ensure that his/her work is not subjected to derogatory treatment. The Copyright Act defines "derogatory treatment" as any act in relation to the work that is in any manner harmful to the author's honour or reputation.  ‘Services’ means the Easy Peasy Art School and any documentation provided to supply the art school services. ‘Subscriber’ means the person who pays the fee to access the content contained on the website. User’ means the person or body who pays subscription fees to download the lesson plans from the Website. ‘Website’ means the Easy Peasy Art School website located at www.easypeasyartschool.com.au  

THE PARTIES AGREE AS FOLLOWS:

1.           Licence

  • In consideration of the Artworks to be uploaded to the Website under this agreement, the Artist/Author/Owner gives the Licensee a non- exclusive licence to reproduce, publish and communicate to the public, the Artworks uploaded to the Easy Peasy Art School website.
  • The licence granted under clause 1 applies:
    1. throughout the world (Territory);
    2. in relation to the uploaded artworks publication and in promotional materials for Publication;
    3. from the date of this agreement under clause 1.
    4. for the purpose of uploading the Artwork onto the Licensee’s website (Website) for viewing (but not downloading) by users of the Website in connection with the Licence.
  • The Licensee may reproduce the artworks as follows:

Display on the Website, Facebook, Instagram, Twitter, Tumbler, Pinterest or any social media link

  • The Licensee acknowledges that the Artist/Author/Owner owns and will continue to own all rights and interests in the Artworks, including the copyright in the Artworks.
  • The Artist/Author/Owner acknowledges and agrees that the Licensee may display, distribute and supply the Art Works in the Territory.

2.           Term of agreement

  • This agreement begins on the date the Artwork is uploaded, a subscription payment is made to the website (Date of agreement) and/or a User or 3rd party view the website and continues unless terminated under clause 1.

3.           Ownership of rights in the Artworks

  • Copyright - Ownership
    1. The Licensee/Author acknowledges that copyright in the Works which are uploaded to the Website or any part of the Works is and remains the property of the Artist/Author/Owner and that the Works must only be used or dealt with by the Licensee as provided in this Agreement.
    2. The User must ensure that all copies of the Works printed, published, made, reproduced, or otherwise communicated to the public or for educational purposes (including electronic material) by the Artist/Author/Owner or Licensee/Author bears the symbol © accompanied by the Artist/Author/Owner name, and the year of first publication of the Work.
    3. The Artist/Author/Owner must ensure that the Works are original works created by the Author and not subjected to any copying which is prejudicial to the honour or reputation of the Author and do not infringe the moral rights of the author.
  • Copyright in all Artworks uploaded and displayed on the Website shall be retained by the Owners/Authors. Authors moral rights will be retained by the author.
  • Subject to the Artist/Author/Owner prior written consent, the Licensee may novate, assign, sub-licence, sub-contract, encumber or otherwise deal with any of the Licensee’s rights or obligations under this agreement.
  • The Artist/Author/Owner will unconditionally indemnify and keep indemnified the Licensee against all losses, liabilities, costs and expenses (including reasonable legal expenses as between solicitor and client) that the Artist/Author/Owner incurs as a result of or in relation to the acts, omissions or negligence of any of the Licensee’s Sub-licensees.

4.           Attribution and alterations

  • The Licensee must identify the Artist/Author/Owner in the Publication and in all promotional materials that reproduce the Artworks as the creator of the Artworks as follows:
© Artists Name, Date.
  • Except as expressly permitted under clause 1, and without limiting any moral rights that the Artist/Author/Owner may have under the Copyright Act 1968 (Cth), the Licensee must not alter the Artworks without obtaining the Artist/Author/Owners prior written consent.
  • If the Artworks is or contains any Australian Aboriginal or Torres Strait Islander Cultural or Intellectual Property (ICIP), the Licensee must:
    1. comply with any restrictions on using and dealing with the ICIP in the Artworks about which the Artist/Author/Owner notifies the Licensee immediately;
  • Nothing in this agreement transfers or excludes any applicable cultural rights in favour of Australian Indigenous people that may be implemented under Australian law.

5.           Image of Artwork requirements

  • The Artist/Author/Owner must:
    1. upload an image of the Artwork suitable for reproduction to the Licensee;
    2. provide the image in the jpeg format up to 5MB.

6.           Images for Publication

  • The Licensee must upload to the Website at least one image of the Artist/Author/Owners Artwork.
  • If the Artist/Author/Owner is not satisfied with the quality or any other aspect of the proof provided by the Licensee under clause 1, the Artist/Author/Owner may request reasonable changes to the reproduction of the Artworks in the Publication or promotional material. Clause 6.1 applies in relation to any changes to the Publication or promotional material requested under this clause.

7.           Representations and warranties

  • The Artist/Author/Owner represents and warrants that they:
    1. are the sole author of the Artwork, which is original;
    2. own or has been granted all rights and interests in the Artwork necessary to grant the licence granted to the Licensee under this agreement; and
    3. have the power and capacity to enter into this agreement and to perform the obligations under this agreement.
  • The Artist/Author/Owner will unconditionally indemnify and keep indemnified the Licensee against all losses, liabilities, costs and expenses (including reasonable legal expenses as between solicitor and client) that the Licensee incurs as a result of or in relation to a breach of any of the Artist/Author/Owners representations or warranties under clause 1.
  • The Licensee represents and warrants that they:
    1. has the power and capacity to enter into this agreement and to perform the Licensee’s obligations under this agreement;
    2. will diligently reproduce, publish and communicate the Artwork on the Website;
    3. will promptly notify the Artist/Author/Owner of any claim or suit arising out of or in relation to the Licensee’s use of the Artwork in relation to the Publications as authorised by this agreement, or involving any infringement of rights in the Publications, and the Licensee will defend any such claim at the Licensee’s expense.

8.           Payments

  • Users of the Website must pay the Licensee the subscription fees associated with payment for Lesson Plans, which are downloaded from the Website.

9.           Goods and Services Tax

  • The parties agree that all amounts payable under this agreement are exclusive of Goods and Services Tax (GST).
  • If a party is liable to pay GST in respect of any good or service supplied under this agreement, that party will invoice the other party for the GST amount payable for the good or service and will ensure that the invoice is a GST compliant invoice.
  • The party who receives the GST compliant invoice must pay the amount of GST invoiced at the same time as the amount payable under this agreement.

10.        Name and likeness

  • The Licensee may use and authorise others to use the Artist/Author/Owner name, approved likeness provided the Licensee obtains the Artist/Author/Owner prior written consent to any such use.

11.        Termination

  • The Artist/Author/Owner may terminate this agreement immediately by notice in writing to the Licensee if the Licensee:
    1. goes beyond the scope of the licence granted in clause 1; or
    2. becomes insolvent, is declared bankrupt, has a liquidator appointed or goes into administration, voluntary or otherwise, or ceases to carry on business or threatens to do so.
  • On termination or expiry of this agreement, the Licensee:
    1. loses all the rights granted under this agreement.

12.        Disputes

  • If a dispute or disagreement (Dispute) arises between the parties in connection with this agreement:
    1. one party must notify the other party in writing about the Dispute (Notice of Dispute); and
    2. no party may start any litigation or arbitration in relation to the Dispute until the parties have complied with this clause.
  • The parties should meet within 14 calendar days after receipt of the Notice of Dispute and hold good faith discussions to attempt to resolve the Dispute.
  • If the Dispute is not resolved within 28 calendar days after receipt of the Notice of Dispute, the parties agree to submit the Dispute to mediation
according to the Arts Law Centre Mediation guidelines current at that time (Guidelines). These Guidelines located at http://www.artslaw.com.au/Artworkss/uploads/Mediation%20Guidelines_2012.pdf and are part of this agreement.
  • If the parties are not able to agree to a mediator, the Arts Law Centre must appoint a mediator.
  • The parties must continue to perform their respective obligations under this agreement despite the existence of a Dispute.
  • Nothing in this clause 12 will impact on either party’s rights to terminate under clause 11 of this agreement.

13.        General

  • The parties acknowledge that they are independent contractors and that nothing in this agreement creates any relationship of partnership or employment between the parties.
  • Subject to clause 1, neither party may assign, subcontract, novate or otherwise divest this agreement or any of the rights or obligations under this agreement without the other party’s prior written consent. This consent must not be unreasonably withheld.
  • Subject to clause 4, this agreement is the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to this subject matter is replaced by this agreement and has no further effect.
  • This agreement may only be modified by a written amendment signed by the parties.
  • Invalidity of any clause of this agreement will not affect the validity of any other clause except to the extent made necessary by the invalidity.
  • This Agreement, the Easy Peasy Art School Website Terms of Use and the Easy Peasy Art School Privacy Policy embodies the entire agreement between the parties and supersedes any prior agreement or understanding between the parties.
  • This Agreement is governed by the law in force in New South Wales. The parties submit to the non-exclusive jurisdiction in New South Wales and any court that may hear appeals from any of those courts, for any proceedings in connection with this agreement.
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