TERMS OF SERVICE
Media Blender Pty Ltd (ACN 150 042 167) (“us”, “we”, “our”, “Media Blender“) provides services for the digital conversion and distribution of various print publications (such as magazines), including by way of software development (“Services”). The Services are promoted and available to purchase on our website, located at www.mediablender.net (“Website”).
The terms and conditions set out below in this agreement (“Agreement”) apply to our provision of the Services to all users (referred to as “you” in this Agreement). This Agreement is subject to change, please check for updates regularly.
Please read this Agreement carefully before signing up to Media Blender by submitting the Registration Form (defined below). If you do not agree with the terms of this Agreement, you should not use our Services or submit the Registration Form.
TERMS AND CONDITIONS
1. Application and Variation of Agreement
1.1 In order to access the functionality of the Website and to request Services, you must complete the registration sign up form on the Website (“Registration Form”).
1.2 By submitting the Registration Form and checking “I accept” in relation to this Agreement, you accept and agree to be bound by the terms and conditions of this Agreement (“Commencement Date”).
1.3 We reserve the right to amend this Agreement at any time during the Term. We will notify you of any amendments through the Website and your User Account (as defined below). Your continued use of our Services following notification of such amendments to the Agreement, or checking “I accept” in relation to such amendments to the Agreement as prompted on the Website, will constitute acceptance by you of those amendments.
2. User Account & Term
2.1 Upon submitting the Registration Form, we will provide you with a user account for accessing a “members only” dashboard area of the Website (“Dashboard”) where you are able to request provision of the Services (“User Account”).
2.2 You will be required to create a unique password to obtain access to your User Account (“Password”). You are responsible for maintaining the confidentiality of your Password and undertake not to allow the security of your User Account to be compromised through misuse of your Password. In the event of your User Account being compromised, please notify us immediately.
2.3 If you require a third party to have secondary access to your User Account, please contact us to arrange creation of a separate user account which will be linked to your User Account (each a “Secondary User Account”). The Secondary User Account will be able to access the Dashboard where provision of the Services can be requested on your behalf. You will be solely responsible and liable for the actions or omissions of any third party controlling the Secondary User Account.
2.4 The term of this Agreement is from the Commencement Date until your User Account (and any Secondary User Account) has been terminated (“Term”).
3. Conversion Process
3.1 To engage us to provide Services in relation to converting a specific edition of a print publication (each a “Publication Edition”) into the Digital Publications (as defined below), you must complete a request form on the Website (“Request Form”). You will need to be logged into your User Account or any Secondary User Account to access the Request Form. The contents of the Request Form once submitted through the User Account or Secondary User Account will form part of the terms of this Agreement.
3.2 As part of completing the Request Form, you must upload a copy of a “print ready” version of the Publication Edition for digital conversion in PDF format (“PDF Publication”) using the functionality provided in the Request Form.
3.3 The PDF Publication must:
a. meet the technical requirements for digital conversion as outlined in the Dashboard (“Technical Requirements”); and
b. not contain any content which is (determined at our sole discretion) obscene, blasphemous, hateful, violent, defamatory, political propaganda, hateful, illegal, false, fraudulent, discriminatory, threatening, inappropriate, creates a risk of personal injury or property damage, amounts to misleading and deceptive conduct, infringes the personal or proprietary rights of others (including but not limited to intellectual property rights and any rights to privacy), or makes any threat to people or public safety (“Content Requirements”).
If the PDF Publication does not meet the Technical Requirements, we reserve the right to reject the Request Form submission and ask you to re-submit the PDF Publication in compliance with the Technical Requirements. If the PDF Publication does not meet the Content Requirements, we reserve the right to reject the Request Form submissions and ask you to re-submit the PDF Publication in compliance with the Content Requirements, or remove the relevant offending content from the PDF Publication so that it complies with the Content Requirements in our sole discretion.
3.4 Once the PDF Publication has been submitted through the Request Form in accordance with the Technical Requirements, we will create the following digitally-readable formats of the Publication Edition:
a. Two downloadable software applications for the Apple iOS operating system, one suitable for Apple tablet devices and the other for Apple smartphone devices (“iOS Apps”);
b. Two downloadable software applications for the Android operating system, one suitable for Android tablet devices and the other for Android smartphone devices (“Android Apps”);
c. Website-readable format hosted on our dedicated server (“Web Edition”);
(collectively, the “Digital Publications”).
3.5 It is generally not possible for us to alter the PDF Publication at your request after it is submitted through the Request Form. As such, please ensure the PDF Publication includes the content that you would like to appear in the Digital Publications.
4. Apple App Store and Google Play Store
4.1 As part of our Services, we are required to submit the iOS Apps to the “Apple App Store”, and the Android Apps to the “Google Play Store”.
4.2 The Apple App Store and Google Play Store have their own strict set of guidelines for submission of new applications that must be met in order for them to become available for download, including (without limitation) guidelines in relation to title registration, and graphics, logos and metadata appearing within the applications (“App Guidelines”). Our ability to satisfy the App Guidelines will partly depend on the PDF Publication being in full compliance with the Technical Requirements. Without limiting clause 4.6, we will not be responsible or liable for any delays incurred in having the iOS Apps and Android Apps available to download on the App App Store and Google Play Store respectively due to your failure to have the PDF Publication meet the Technical Requirements.
4.3 If we have not previously created iOS Apps or Android Apps in respect of a Publication, there is an approval process which we must follow with the Apple App Store and Google Play Store for satisfying the App Guidelines. It typically takes 7 to 14 days for Apple or Google to give their approval (provided the iOS Apps and Android Apps meet the App Guidelines upon submission) before the iOS Apps and Android Apps will be available to download on the Apple App Store and Google Play Store respectively. You acknowledge and agree that the timeframe given in this clause is an estimate only and subject to change.
4.4 If the iOS Apps and/or Android Apps fail to satisfy the App Guidelines, we will be notified of this and work with you to alter the iOS Apps and/or Android Apps as necessary so that they meet the App Guidelines, and re-submit to the Apple App Store and Google Play Store after which the process in clause 4.3 will restart.
4.5 Once any iOS Apps are available to download on the Apple App Store, and any Android Apps are available to download on the Google Play Store, in respect of a completed conversion of a Publication Edition, then subject to clause 4.2 above, any subsequent iOS Apps and Android Apps created by us in respect of a different Publication Edition for the same Publication Title (as defined below) can be made available to download on the Apple App Store and Google Play Store within 24 – 48 hours of your submitting the relevant PDF Publication for conversion.
4.6 We will not be responsible or liable to you for any loss or damage that you or a third party may suffer as a result of any delays due to the Apple App Store or Google Play Store delaying or extending their approval process for the iOS Apps or Android Apps in any way, because of any failure by you and/or us to meet the App Guidelines, or for any other reason outside of our control.
4.7 After we have successfully submitted the iOS Apps to the Apple App Store, the Android Apps to the Google Play Store, and supplied you with a URL to the Web Edition, you agree that we have successfully provided you with the Digital Publications for a Publication Edition.
5. Services Packages and Fees
5.1 We offer to provide our Services to you under various pricing plans (each a “Service Package”). Further information about each Service Package and associated pricing (“Service Fees”) can be found on our Website. To purchase a Service Package, you must pay the relevant Service Fee.
5.2 Upon creation of your User Account, we will offer you a free trial of our Services, whereby you will not be required to pay for Service Fees for the trial period (a “Free Trial Package”). If you elect to use the Free Trial Package, then at the conclusion of the Free Trial Package, you will be required to purchase a Service Package to continue using our Services. You are also able to purchase a Service Package at any time prior to the conclusion of the Free Trial Package as there is no obligation to use the Free Trial Package.
5.3 If you have purchased a Service Package which caters for the conversion of multiple Publication Editions into the Digital Publications, we will follow the process outlined in clauses 3 and 4 above for each Publication Edition in line with the terms of your Service Package, provided all Publication Editions relate to the same print publication title (“Publication Title”). If you require the conversion of a Publication Edition which is for a different Publication Title compared to the Publication Title for any earlier conversion of a Publication Edition we have carried out under the terms of your Service Package, you will be required to purchase a separate Service Package.
5.4 The term of your Service Package will commence once you have purchased the Service Package and end once all Publication Editions for a Publication Title have been converted into the Digital Publications, or end once the maximum time period allowed for conversion of the Publication Editions catered for in your Service Package has elapsed, whichever occurs earliest (“Service Package Term”).
5.5 You are free to submit a Publication Edition for conversion into the Digital Publications at any time during the Service Package Term. However, we will only produce the Digital Publications for the number of Publication Editions catered for in your Service Package during the Service Package Term, and across a single Publication Title only. If you require conversion of a Publication Edition in excess of number of Publication Editions for conversion catered for in your Service Package, you will be required to purchase a new Service Package.
5.6 As part of selecting to purchase any of the Service Packages (except for any available Free Trial Package), you will be asked to provide your credit card details for payment of the Services Fees. The Services Fees as applicable your selected Service Package will be charged to your credit card upfront.
5.7 For each instance where you are charged Services Fees under this Agreement, we will send you a receipt of payment by e-mail to the e-mail address nominated in your User Account.
6. Additional Services
6.1 In the event that you require us to provide any Services which are additional to those contemplated in clauses 3 and 4 above, such as incorporating a playable video in the Digital Publications (“Additional Services”), you must provide your request in writing to us. We reserve the right to reject any request for Additional Services or charge additionally for providing the Additional Services, in which case we will notify you in writing and seek your prior approval on applicable fees before providing the relevant Additional Services.
6.2 For information about the Additional Services that we offer and our associated fees, please visit our Website.
7. Client Feedback
7.1 To assist us to carry out the Services and produce the Digital Publications in an efficient manner, you agree to promptly and thoroughly provide us with any content, information and other materials as requested by us.
8. Intellectual Property
8.1 You agree the following:
a. For the purpose of this clause, “Intellectual Property” or “IP” means all items of intellectual property including without limitation copyright, trade marks, designs and patents (and includes all future rights).
b. Subject to clauses 8.1.c – 8.1.f below and payment of our Services Fees in full in respect of a Publication Edition, we hereby provide you with a non-exclusive, worldwide, royalty-free licence to use the Intellectual Property rights subsisting in the Digital Publications for that Publication Edition to you.
c. In the event that we use or incorporate any IP that we own into the Digital Publications or any IP that we do not own but are entitled to sub-licence to you into the Digital Publications, we hereby provide you with permission to use that IP pursuant on a non-exclusive, worldwide, royalty-free basis.
d. You grant us a non-exclusive right to use any of your own IP that you provide to us for the purpose of performing our Services under this Agreement (including without limitation your IP rights in any PDF Publication submitted to us under this Agreement). You confirm and warrant that you have all necessary rights to allow us to use your IP in relation to this Agreement.
e. We may, upon notice to you, incorporate IP that we do not own and are not entitled to sub-licence to you (such as stock images and licensed materials) into the Digital Publications (“Other IP”). Your rights to use Other IP are subject to the terms imposed by the relevant owner (“Other IP Licenses”). You are responsible for maintaining all applicable Other IP Licenses.
f. You may request for us to incorporate IP owned by third parties into the Digital Publications (“Client Third Party IP”), including without limitation any Client Third Party IP appearing in the PDF Publication. You agree that your rights to use Client Third Party IP is subject to the terms imposed by the relevant third party. You warrant that we have all necessary rights to use Client Third Party IP in relation to performing the Services and otherwise complying with our obligations under this Agreement, and that our use of any Client Third Party IP will not infringe the IP rights of third parties.
8.2 You agree that we may include a credit (“Media Blender” or “Produced by Media Blender”, which may also include a hyperlink to the Website) in each of the Digital Publications produced under this Agreement.
8.3 For each Publication Edition, you agree that we may have the right to publish and communicate the Digital Publications as part of our portfolio, show-reel, website, social media, creative pitches or for any other self-promotional or demonstrative purpose.
10. Sub-Contractors & Exclusivity
10.1 We are permitted to engage appropriately skilled independent sub-contractors without seeking your permission (“Sub-Contractors”) to assist us to perform the Services.
10.2 This Agreement is a non-exclusive agreement in that it does not restrict you from engaging other third party providers to provide the Services during the Term, and does not restrict us from providing Services to other clients or agencies during the Term.
11. Cancellation and Termination
11.1 A Service Package may be cancelled by provision of 7 days written notice from a party to the other party at any time during the Service Package Term. In this event, we will refund all Services Fees not yet accrued for any ongoing Service Package (at the date in which cancellation takes effect) to you.
11.2 This Agreement may be terminated, and your User Account (and any Secondary User Account) deleted, in the following ways:
a. By provision of 7 days written notice from a party to the other party during the Term. In this event, and where applicable, we will refund all Services Fees not yet accrued for any ongoing Service Package (at the date in which termination takes effect) to you; and
b. By a party, if the other party breaches a material term of this Agreement and does not rectify the breach within 7 days of receiving a written notice from the other party. If we terminate for breach of a material term of this Agreement by you, we will not refund any Services Fees to you. If you terminate for breach of a material term of this Agreement by us, and where applicable, we will refund all Services Fees not yet accrued for any ongoing Service Package (at the date in which termination takes effect) to you.
12. Warranties and Indemnities
12.1 To the extent permitted by law, our liability for breaching any term of this Agreement is limited to one or more of the following at our option:
a. For goods, the replacement of the goods or the supply of equivalent goods, the repair of such goods, the payment of the cost of replacing the goods or acquiring equivalent goods, or the payment of the cost of having the goods repaired; and
b. For services, the supply of the services again, or the payment of the cost of having services supplied again.
12.2 You agree to indemnify us from any direct, identifiable and reasonable loss, damage, claim or expense that we may suffer by reason of or relating to your breaching clauses 5 or 8 of this Agreement.
12.3 Nothing in this Agreement is intended to limit or exclude your consumer guarantees under the Australian Consumer Law.
13.1 Neither party will be liable for a delay or failure to perform an obligation under this Agreement if such delay or failure is due to a circumstance or event beyond the reasonable control of a party, including without limitation acts of god, war, famine, flood, lightning, cyclones, terrorist acts, sabotage, cyber attacks, security breaches and malicious damage.
13.2 This Agreement will be governed by and construed in accordance with the laws of Victoria, Australia. The parties submit to the exclusive jurisdiction of the courts of Victoria, Australia, and if applicable, the Federal Court of Australia and Federal Circuit Court of Australia.
13.3 If we are involved in a sale, merger or other restructuring, we may need to assign or licence our rights under this Agreement to a third party, which we will have the right to do so at our sole discretion and will inform you where this occurs. We will also have the right to assign or licence our rights under this Agreement in other circumstances with your written consent. You may assign your rights under this agreement to a third party with our prior written consent.
13.4 If any provision of this Agreement is determined to be unlawful, void or for any reason unenforceable, then that provision will be deemed to be severed from this Agreement and will not affect the validity and enforceability of any remaining provisions.
13.5 This Agreement is not to be construed to the disadvantage of a party because that party was responsible for the drafting of a particular clause or term.