(a) Providing the system and services that we offer; and
(b) The normal day-to-day operations of our business.
(a) The Australian Privacy Principles set by the Australian Government for the handling of Personal Information under the Privacy Act 1988 (Cth) (Privacy Act); and
(b) The regulations and principles set by the European Union’s General Data Protection Regulation (GDPR) for the handling of Personal Data.
2.2 We handle Personal Information in our own right and also for and on behalf of our customers and users.
2.5 If, at any time, an individual provides Personal Information or other information about someone other than himself or herself, the individual warrants that they have that person’s consent to provide such information for the purpose specified.
2.6 We consider the protection of privacy of children very important. We do not knowingly collect personal data from children under the age of 16 without obtaining parental consent. If an individual is under 16 years of age, then they should not use or access the service at any time or in any manner. If we learn that Personal Information has been collected on the service from persons under 16 years of age and without verifiable parental consent, then we will take the appropriate steps to delete such information.
3.1 In the course of business, it is necessary for us to collect Personal Information. This information allows us to identify who an individual is for the purposes of our business, share Personal Information when asked of us, contact the individual in the ordinary course of business and transact with the individual. Without limitation, the type of information we may collect is:
(a) Personal Information. We may collect personal details such as an individual’s name, location, date of birth, nationality, family details and other information defined as “Personal Information” in the Privacy Act that allows us to identify who the individual is;
(b) Contact Information. We may collect information such as an individual’s email address, telephone & fax number, third-party usernames, residential, business and postal address and other information that allows us to contact the individual;
(c) Financial Information. We may collect financial information related to an individual such as any bank or credit card details used to transact with us and other information that allows us to transact with the individual and/or provide them with our services;
(d) Technical Information. We may collect the IP Addresses of users accessing our systems, the actions of users on our website and other digital information created by an individual’s use of our online systems.
(e) Statistical Information. We may collect information about an individual’s online and offline preferences, habits, movements, trends, decisions, associations, memberships, finances, purchases and other information for statistical purposes; and
(f) Information an individual sends us. We may collect any personal correspondence that an individual sends us, or that is sent to us by others about the individual’s activities.
3.3 We may also collect non-Personal Information about an individual such as information regarding their computer, network and browser. Where non-Personal Information is collected the Australian Privacy Principles and the GDPR do not apply.
4.1 Most information will be collected in association with an individual’s use of our online marketplace connecting brands with content creators (Creatively Squared), an enquiry about Creatively Squared or generally dealing with us. However, we may also receive Personal Information from sources such as advertising, an individual’s own promotions, public records, mailing lists, contractors, staff, recruitment agencies and our business partners. In particular, information is likely to be collected as follows:
(a) Registrations/Subscriptions. When an individual registers or subscribes for a service, connection or other process whereby they enter Personal Information details in order to receive or access something, including content creator registration or customer account setup;
(b) Creative Brief. When an individual provides written instructions for a campaign to be completed;
(c) Supply. When an individual supplies us with goods or services;
(d) Contact. When an individual contacts us in any way;
(e) Access. When an individual accesses us physically we may require them to provide us with details for us to permit them such access. When an individual accesses us through the internet we may collect information using cookies (if relevant – an individual can adjust their browser’s setting to accept or reject cookies) or analytical services; and/or
(f) Pixel Tags. Pixel tags enable us to send email messages in a format customers can read and they tell us whether mail has been opened.
4.2 As there are many circumstances in which we may collect information both electronically and physically, we will endeavour to ensure that an individual is always aware of when their Personal Information is being collected.
4.3 Where we obtain Personal Information without an individual’s knowledge (such as by accidental acquisition from a client), we will either delete/destroy the information, or inform the individual that we hold such information, in accordance with the Australian Privacy Principles and the GDPR.
5.1 In general, the primary principle is that we will not use any Personal Information other than for the purpose for which it was collected other than with the individual’s permission. The purpose of collection is determined by the circumstances in which the information was collected and/or submitted.
5.2 We will only process Personal Information when we can identify a lawful basis to do so. It is always our responsibility to ensure that we can demonstrate which lawful basis applies to the particular processing purpose.
5.3 The most common lawful bases relied upon are:
(a) Consent: we will only rely upon express, clear and informed consent. Any consent provided may specify and/or restrict the purpose, and can be withdrawn at any time without penalty. We will keep a record of when and how we got consent from an individual.
(b) Legitimate interests: we will only rely upon an identifiable legitimate interest where we can demonstrate that the processing of Personal Information is necessary to achieve it by balancing it against the individual’s interests, rights and freedoms. We will keep a record of our legitimate interests assessments.
5.5 If it is necessary for us to disclose an individual’s Personal Information to third parties in a manner compliant with the Australian Privacy Principles and the GDPR in the course of our business, we will inform you that we intend to do so, or have done so, as soon as practical.
5.6 We will not disclose or sell an individual’s Personal Information to unrelated third parties under any circumstances, unless the prior written consent of the individual is obtained.
5.7 Information is used to enable us to operate our business, especially as it relates to an individual. This may include:
(a) The provision of goods and services between an individual and us;
(b) Verifying an individual’s identity;
(c) Communicating with an individual about:
i Their relationship with us;
ii Our goods and services;
iii Our own marketing and promotions to customers and prospects;
iv Competitions, surveys and questionnaires;
(d) Investigating any complaints about or made by an individual, or if we have reason to suspect that an individual is in breach of any of our terms and conditions or that an individual is or has been otherwise engaged in any unlawful activity; and/or
(e) As required or permitted by any law (including the Privacy Act).
5.8 The individual shall have the right to object at any time to the processing of their Personal Information for direct marketing purposes, which includes profiling to the extent that it is related to such direct marketing. If we receive such a request, we will stop the processing of Personal Information for direct marketing purposes immediately without charge or penalty.
5.9 There are some circumstances in which we must disclose an individual’s information:
(a) Where we reasonably believe that an individual may be engaged in fraudulent, deceptive or unlawful activity that a governmental authority should be made aware of;
(b) As required by any law (including the Privacy Act); and/or
(c) In order to sell our business (in that we may need to transfer Personal Information to a new owner).
5.11 We may utilise third-party service providers to communicate with an individual and to store contact details about an individual. These service providers may be located outside of Australia.
6.1 An individual may opt to not have us collect and/or process their Personal Information. This may prevent us from offering them some or all of our services and may terminate their access to some or all of the services they access with or through us. They will be aware of this when:
(a) Opt In. Where relevant, the individual will have the right to choose to have information collected and/or receive information from us (for clarity, consent must involve an unambiguous positive action to opt in); or
(b) Opt Out. Where relevant, the individual will have the right to choose to exclude himself or herself from some or all collection of information and/or receiving information from us.
6.2 If an individual believes that they have received information from us that they did not opt in or out to receive, they should contact us using the details as set out in section 11 below.
7.2 We will take all reasonable precautions to protect an individual’s Personal Information from unauthorised access. This includes appropriately securing our physical facilities and electronic networks.
7.3 We use SSL encryption to store and transfer Personal Information. Despite this, the security of online transactions and the security of communications sent by electronic means or by post cannot be guaranteed. Each individual that provides information to us via the internet or by post does so at their own risk. We cannot accept responsibility for misuse or loss of, or unauthorised access to, Personal Information where the security of information is not within our control.
7.4 We are not responsible for the privacy or security practices of any third party (including third parties that we are permitted to disclose an individual’s Personal Information to in accordance with this policy or any applicable laws), unless otherwise required by the Privacy Act and the GDPR. The collection and use of an individual’s information by such third parties may be subject to separate privacy and security policies.
7.5 If an individual suspects any misuse or loss of, or unauthorised access to, their Personal Information, they should let us know immediately.
7.6 We are not liable for any loss, damage or claim arising out of another person’s use of the Personal Information where we were authorised to provide that person with the Personal Information.
7.7 Where there is a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Information, then:
(a) We will immediately establish the likelihood and severity of the resulting risk to wider rights and freedoms of natural persons;
(b) If we determine there is a risk from the security breach, then we will immediately notify the relevant supervisory authority and provide all relevant information on the particular breach, and by no later than 72 hours after having first become aware of the breach;
(c) If we determine there is a high risk from the security breach (a higher threshold than set for notifying supervisory authorities), we will immediately notify the affected individuals and provide all relevant information on the particular breach without undue delay.
7.8 We will document the facts relating to any security breach, its effects and the remedial action taken, and investigate the cause of the breach and how to prevent similar situations in the future.
8.1 Subject to the Australian Privacy Principles and the GDPR, an individual has the right to request from us the Personal Information that we have about them, and we have an obligation to provide them with such information as soon as practicable, and by no later than 28 days of receiving the written request. The individual is free to retain and reuse their Personal Information for their own purposes. We may be required to transmit the Personal Information directly to another organisation if this is technically feasible.
8.2 If an individual cannot update their own information themselves, we will correct any errors in the Personal Information we hold about an individual within 28 days of receiving written notice from them about those errors, or two months where the request for rectification is complex.
8.3 It is an individual’s responsibility to provide us with accurate and truthful Personal Information. We cannot be liable for any information that is provided to us that is incorrect.
8.4 Where a request to access Personal Information is manifestly unfounded, excessive and/or repetitive, we may refuse to respond or charge an individual a reasonable fee for our costs incurred in meeting any of their requests to disclose the Personal Information we hold about them. Where we refuse to respond to a request, we will explain why to the individual, informing them of their right to complain to the supervisory authority and to a judicial remedy without undue delay and at the latest within 28 days.
8.5 We may be required to delete or remove all Personal Information we have on an individual upon request in the following circumstances:
(a) Where the Personal Information is no longer necessary in relation to the purpose for which it was originally collected and/or processed;
(b) When the individual withdraws consent;
(c) When the individual objects to the processing and there is no overriding legitimate interest for continuing the processing;
(d) The processing of the Personal Information was otherwise in breach of the GDPR;
(e) The Personal Information has to be erased in order to comply with a legal obligation; and/or
(f) The Personal Information is in relation to a child.
8.6 We may refuse to delete or remove all Personal Information we have on an individual where the Personal Information was processed for the following reasons:
(a) To exercise the right of freedom of expression and information;
(b) To comply with a legal obligation for the performance of a public interest task or exercise of official authority.
(c) For public health purposes in the public interest;
(d) Archiving purposes in the public interest, scientific research historical research or statistical purposes; or
(e) The exercise or defence of legal claims.
9.1 If an individual has a complaint about our handling of their Personal Information, they should address their complaint in writing to the details below.
9.2 If we have a dispute regarding an individual’s Personal Information, we both should first attempt to resolve the issue directly between us.
9.3 An individual shall have the right to seek a judicial remedy where he or she considers that his or her rights under the GDPR have been infringed as a result of the processing of his or her Personal Information in non-compliance with the GDPR. Any proceedings should be commenced in New South Wales, Australia, where we are established.
9.4 If we become aware of any unauthorised access to an individual’s Personal Information we will inform them at the earliest practical opportunity once we have established what was accessed and how it was accessed.
10.1 From time to time, we may send an individual important notices, such as changes to our terms, conditions and policies. Where such information is materially important to the individual’s interaction with us, they may not opt out of receiving these communications.
11.1 All correspondence with regards to privacy should be addressed to:
Data Protection Officer
Creatively Squared Pty Ltd
You may contact the Data Protection Offer via email in the first instance.
Creatively Squared is an online marketplace connecting brands with content creators for the creation of visual content tailored to the individual needs of customers. Use of Creatively Squared is subject to these Terms of Service.
The following terms are used regularly throughout these Terms of Service and have a particular meaning:
(a) ABN means Australia Business Number.
(b) Account means a registered account with Creatively Squared.
(c) Booking means a Customer’s request for a Brief.
(d) Brief means a scope of work to be completed via Creatively Squared in accordance with the Creative Brief.
(e) Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Queensland, Australia.
(f) Commercial Terms means any additional terms agreed between the Company and the Customer with respect to the Customer’s licence for the use of Creatively Squared and/or Visual Content, and includes any written proposal or quotation accepted by the Customer.
(g) Company means Creatively Squared Pty Ltd ABN 53 619 491 708.
(h) Confidential Information means any written or verbal information that:
i Is deemed as confidential under these Terms of Service;
ii A party informs the other party that it considers it confidential and/or proprietary;
iii A party would reasonably consider to be confidential in the circumstances; and
iv Is personal information within the meaning of the Privacy Act and GDPR; but does not include information that a party can establish:
v Was in the public domain at the time it was given to that party;
vi Became part of the public domain, without that party’s involvement in any way, after being given to the party;
vii Was in party's possession when it was given to the party, without having been acquired (directly or indirectly) from the disclosing party; or
viii Was received from another person who had the unrestricted legal right to disclose that information free from any confidentiality obligation.
(i) Content Creator means legal person engaged by the Company who is the original creator of the Visual Content developed pursuant to a Brief.
(j) Corporations Act means the Corporations Act 2001 (Cth).
(k) Creative Brief means the Customer’s specific instructions for a Brief as provided via completion of the Questionnaire or such other manner as agreed with the Company.
(l) Creatively Squared means the Company’s digital platform for content creation services accessible from the Site.
(m) Credit means a credit to obtain Visual Content via CreativelySquared
(n) Custom Package means any non-Standard Package option.
(o) Customer means the person or entity to whom Creatively Squared and Visual Content is licenced to (which if in doubt shall be the named Account holder).
(p) Delivery Period means 14 days from the date each of the following criteria is met:
i The Brief is successfully submitted by the Customer;
ii The Brief is accepted by the Company in writing;
iii The Customer pays all relevant Fees with respect to the Brief; and
iv All information and materials (such as the Customer’s products) necessary to complete the Brief are provided by the Customer.
(q) Fee means any fees payable to the Company for use of Creatively Squared, as advertised on the Site and/or agreed in the Commercial Terms.
(r) Fixed Fee means the Fee payable to the Company in advance, as advertised on the Site and/or agreed in the Commercial Terms.
(s) GDPR means the EU General Data Protection Regulation 2016/679.
(t) GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(u) Higher Resolution means an image size of 2048 pixel or higher.
(v) Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property;
(w) Intellectual Property Rights means, for the duration of the rights in any part of the world, any Moral Rights, industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.
(x) Matching Technology means the Company’s matching algorithm used to match individual Content Creators for Briefs.
(y) Minimum Account Credit Threshold means 50 Credits, or such other number of Credits advertised on the Site or agreed between the parties in writing.
(z) Minimum Brief Credit Threshold means 30 Credits, or such other number of Credits advertised on the Site or agreed between the parties in writing.
(aa) Minimum Sales Invoice Threshold means the tax-exclusive minimum revenue necessary for the Customer to pay Fees by invoice.
(bb) Moral Rights means:
i Moral rights pursuant to the Copyright Act 1968 (Cth);
ii Or any rights analogous to the rights set out in Article 6bis of the Berne Convention for Protection of Literary and Artistic Works 1886 (as amended from time to time).
(cc) Package Fee means the fee charged for a Standard Package, as advertised on the Site and/or agreed in the Commercial Terms.
(ee) Project means an individual Booking and associated Brief
(ff) Questionnaire means the online questionnaire used to obtain instructions for a Brief.
(gg) Single Campaign means a single Brief that is subject to a Fixed Fee.
(hh) Site means the website found at https://www.creativelysquared.com/ or such other URL used by the Company from time-to-time.
(ii) Standard Package means the Standard Package options available to the Customer as advertised on the Site and subject to a Subscription Fee.
(jj) Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(kk) Terms of Service means the terms and conditions of using Creatively Squared, as updated from time-to-time, which can be found at the Site.
(ll) Visual Content means any image and other visual content produced by Content Creators for Briefs.
(mm) Territory means the country in which the Customer is based (determined by the address specified for the Customer), and such other countries (if any) specified in the agreement as being permitted countries in which the Customer may utilise and access Creatively Squared.
1.1 The licence granted under these Terms of Service shall be ongoing until terminated in accordance with the terms of these Terms of Service and/or the Commercial Terms.
1.2 The Customer agrees:
(a) To use Creatively Squared in accordance with these Terms of Service and/or the Commercial Terms;
(b) If creating an Account, that it is authorised to establish and maintain the Account and pay for any Bookings made within the Account; and
(c) To pay the Fees in accordance with the pricing agreed in these Terms of Service and/or the Commercial Terms as and when they fall due.
1.3 The use of Creatively Squared and/or Visual Content may be further increased or restricted under any Commercial Terms agreed between the Customer and the Company.
1.4 Where there is a conflict between these Terms of Service and any Commercial Terms, the Commercial Terms shall prevail to the extent of the inconsistency.
1.5 For clarity, not all Customers shall enter into Commercial Terms with the Company.
(a) To access and use Creatively Squared, the Customer’s Account must be set up and registered via the Site, unless for a Single Campaign, in which case the Customer may access and use Creatively Squared by proceeding as a guest with a valid email address and accepting these Terms of Service.
(b) The Company may permit or deny the Customer an Account in its absolute discretion (although the Customer may generally obtain an Account by registering with Creatively Squared and accepting these Terms of Service).
(c) The Company makes no representation that the Customer will achieve particular results from using Creatively Squared, including any increase in customer sales.
(d) Customers and Content Creators agree that they will not attempt to negotiate terms or payment with each other outside of the Creatively Squared Platform. Without limiting any other rights or remedies available to Creatively Squared, any attempt to circumvent the Creatively Squared Platform may result in removal from the Creatively Squared Platform at Creatively Squared’s sole discretion.
2.2 Making a Booking
(a) The Customer may make a Booking by:
i Logging into the Customer’s Account via the platform;
ii Where a Standard Package is selected and Credits are available, submitting a Creative Brief;
iii Where Custom Package is selected and Credits are available, providing all information requested by the Company; and
iv Paying the applicable Fees.
(b) The Company may accept, vary or decline a Booking for any reason within 14 days of the Customer making a Booking.
(c) The Company will send an email confirmation with a unique order number to the Customer’s email address as provided to the Company. The confirmation email is automatic and does not constitute the Company’s acceptance of a Booking. If the Customer does not receive a confirmation email shortly after making a Booking, the Customer should follow up with the Company immediately. The Company shall not be responsible for any loss suffered by the Customer as a result of incorrectly assuming that a Booking has been accepted by the Company and the relevant services underway.
(d) The Company may request further information and/or clarification from the Customer in addition to the Creative Brief where necessary, and the Customer acknowledges that such information must be provided prior to commencing services with respect to the Booking.
2.3 Using Credits
(a) Credits shall be issued to the Customer in order to submit Creative Briefs to obtain Visual Content, which may comprise a mix of still images, motion or video content in the Customer’s discretion.
(b) The Customer must meet the Minimum Brief Credit Threshold for each Brief they submit.
(c) Credits are not redeemable as cash and may only be used to obtain Visual Content or an Extended License for any asset that has been produced for the Customer.
(d) Credits are subject to the Minimum Credit Threshold and do not expire as long as you have an active account. To maintain an active account you must add Credits by topping up your balance, or use Credits by submitting a brief in the Creatively Squared platform at least once every 12 months. The 12 month time period starts from the date of your last topup or brief submission activity. Expired Credits are non-refundable.
(e) Customers with an Account Credit Balance less than the Minimum Brief Credit Threshold shall be required to topup with additional credits, or will forfeit their remaining credit balance.
2.4 Amending Briefs
(a) The Customer acknowledges and accepts that:
i Standard Packages do not include on location shoots or the inclusion of additional props and materials requested by the Customer, and the Customer must select a Custom Package in these circumstances; and
ii Visual Content is produced in accordance with the Creative Brief and other instructions provided by the Customer, and it is the Customer’s sole responsibility to ensure that instructions provided are complete and accurate.
(b) Where the Customer provides incorrect instructions, or later wishes to amend the instructions provided, then the Customer should notify the Company as soon as practicable of the changes to instructions.
(c) Once a Brief is submitted and accepted by the Company, the Company cannot guarantee that any changes to the Brief will be accepted as this will be subject to the acceptance and availability of Content Creators.
(d) The Company reserves the right to charge the Customer additional fees for any changes to a Brief that has already been accepted by the Company, having regard to the services rendered by Content Creators.
2.5 Matching Content Creators
(a) The Company will use the Matching Technology to match Content Creators for accepted Briefs.
(b) Unless instructed otherwise by the Customer, the Company will engage multiple Content Creators for a Brief and rotate the pool of Content Creators engaged for the Customer’s Briefs from time-to-time.
(c) The Customer may specifically request the use of a particular Content Creator for a Brief and the Company will endeavour to engage the requested Content Creator, subject to the acceptance and availability of the Content Creator.
(d) The Customer agrees that they shall not engage a Content Creator for any services outside of Creatively Squared without the express prior written consent of the Company
(e) The Customer is responsible for shipping any required products to the Content Creators within 2 weeks of the confirmed Content Creator details being provided, unless otherwise agreed. If required products are not shipped, cancellation or Content Creator rebooking fees may apply.
(f) The Customer is responsible for arranging return of products, if required.
(g) Where Content Creators are required to purchase products, specific props or organise the return of products, additional fees may apply.
2.6 Sharing Visual Content
(a) The Visual Content for the Brief will be shared with the Customer by the end of the Delivery Period via a private digital viewing gallery, and available for direct download by the Customer.
(b) Any images will be provided in the standard resolution of 2048 pixels, however the Customer may purchase specific images at a Higher Resolution via an Extended License, subject to the payment of additional fees as advertised on the Site
(c) Any videos will be provided in the standard Online Licence resolution of 720p, however the Customer may purchase specific videos at a Higher Resolution via an Extended License, subject to the payment of additional fees as advertised on the Site
2.7 Reshooting Visual Content
Any reshooting of Visual Content for the same Brief will be subject to additional charge, unless the Company determines in its complete discretion that the Visual Content is plainly inconsistent with the applicable Creative Brief, in which case the Company agrees to have new Visual Content produced for the Customer without additional charge as soon as practicable, however the Customer will not be entitled to a refund in such circumstances.
The Company is the owner of the Intellectual Property Rights in respect of the Visual Content and, except as granted under these Terms of Service (or otherwise in writing), the Company reserves all Intellectual Property Rights in respect of the Visual Content.
3.2 Licence to Visual Content
(a) Subject to the Customer paying all relevant Fees with respect to the Visual Content, unless agreed otherwise in writing by the parties, the Company grants the Customer a limited, perpetual, non-transferable, worldwide licence to reproduce, alter, crop, adapt and use the Visual Content produced for the Customer via Creatively Squared for its own commercial purposes, in accordance with the terms and conditions of these Terms of Service (in particular clause 3.3) and, where applicable, the Commercial Terms.
(b) The Customer irrevocably acknowledges and accepts that the Moral Rights in the Visual Content shall be retained at all times by the relevant Content Creator.
(c) The Company may terminate the Customer’s licence(s) if the Customer is in breach of the terms and conditions in these Terms of Service, or in breach of any licence granted, and such breach is not remedied within 10 Business Days following written notice of that breach.
3.3 Restrictions on Licence
(a) The Customer must not deal with Visual Content in the following manner:
i Sell, license or distribute its products in such a way that permits the Customer’s end-users to extract or access any Image as a stand-alone unmodified file;
ii Incorporate into a logo, trademark or service mark;
iii Use in a pornographic, defamatory, libellous or otherwise illegal manner;
iv Falsely represent (either expressly or by implication) that the Customer retains Moral Rights in the Visual Content; and/or
v Without obtaining the prior written consent of the Company and the payment of additional Fees, upload as an unmodified standalone file to file-sharing websites or social networking websites or other third-party website that claims to acquire ownership rights in the Visual Content contrary to the terms of these Terms of Service;
vi Without obtaining the appropriate Extended Licence as per item 3.4(d), incorporate the Visual Content into print or electronic products for resale or distribution, (including templates and on-demand products) without regard to the size of the print run, manufacturing units, or impressions of such products (including individual downloads), including without limitation, screen-savers or wallpapers for mobile devices, website designs, presentation templates, electronic greeting cards, print greeting cards, business cards, t-shirts or other clothing or accessories, tote bags, mugs, magnets, calendars, posters or any other electronic or printed matter, provided that such product either combines the Visual Content with words and/or other graphics or images; or the Image is not the primary factor driving the sale of such product.
3.4 Licensing Options
The Company offers the following different licensing options:
(a) For Online Licences, the Company grants the Customer a perpetual, royalty-free, non-transferable, worldwide licence to reproduce, alter, crop, adapt and use the Visual Content produced for the Customer via Creatively Squared for its own commercial purposes for unlimited online impressions, with such Visual Content being provided in 2048 pixel and 720p resolution for images and videos respectively
(b) For Extended Licences, which shall only be available upon request of the Customer, the Company grants the Customer a perpetual, royalty-free, nontransferable, worldwide licence to reproduce, alter, crop, adapt and use the Visual Content produced for the Customer via Creatively Squared for its own commercial purposes with unlimited online impressions and print reproductions, and use in other media including indoor and out-of-home displays such as billboards, poster ads, transit ads etc, with such Visual Content being provided in no less than 3000pixel and 1080p resolution for images and videos respectively and, upon request, with appropriate model releases.
4.1 Single Campaign
(a) Where the Customer engages the Company for a Single Campaign, a Fixed Fee shall be payable by the Customer to use Creatively Squared.
(b) The Company reserves the right to change any Fixed Fees from time-to-time without notice. Any change to Fees will apply at the next transaction of the Customer and the Customer must accept the new or changed Fees in order to further engage Creatively Squared.
4.2 Standard Package
(a) Where the Customer engages the Company for a Standard Package, the Customer must pay the Package Fee in order to use Creatively Squared.
(b) The Package Fee applies to the account type selected by the Customer in accordance with the inclusions and pricing described on the Site or otherwise agreed by the parties and shall include a specific number ofCredits.
(c) In the event that the Customer drops below the Minimum Account Credit Threshold, the Company will provide the Customer with 30 days written notice (Renewal Notice Period) that the Customer’s Account will be charged the same Package Fee as per the Customer’s previous purchase at the expiry of the Renewal Notice Period, unless the Customer notifies the Company otherwise in writing such as notice to upgrade or downgrade the Customer’s account type.
(d) The Customer may update their Account’s automatic renewal setting by contacting the Company at any time.
(e) The Customer must provide a credit card through Creatively Squared, which will be charged for the Package Fee. Without provision of a valid credit card, or other agreed payment method, the Customer agrees that it will have no right to access Creatively Squared.
(f) The Company reserves the right to introduce or change any Fees from time-to-time by giving the Customer no less than 14 days’ written notice. Any new or changed Fees will apply at the next billing period after the Customer has been given such notice.
(g) If the Customer does not accept a change to any Fees, then it can simply terminate itsAccount.
4.3 Custom Package
(a) The terms and conditions for a Customer Package will be negotiated and agreed between the Company and the Customer on a case-by-case basis.
(b) Where the Customer engages the Company for a Custom Package, the Company will provide the Customer with a tailored written proposal for acceptance by the Customer setting out all relevant Fees. The quote will be open for acceptance by the Customer until the date specified in the quote, and in default 28 days from date sent to the Customer’s email address.
4.4 Payment & Invoices
(a) Subject to the terms of this clause 4.4, payments shall be processed via the Customer’s valid credit card (Mastercard, Visa or American Express) or PayPal account
(b) The Customer may request that the Company issue an invoice any Fees, however the Company reserves the right to refuse any invoice request in its sole discretion.
(c) Unless otherwise approved in writing by the Company, the Minimum Sales Invoice Threshold must be met for the Company to issue an invoice.
(d) Where no terms of payment are stated on an invoice or otherwise agreed with the Company in writing, the default payment terms shall be 30 days from date of invoice. Extended payment terms are available at a rate of 3.0% per additional 30 days.
(e) Where the Customer is approved to pay by invoice, they must provide the Company with a purchase order or insertion order (or similar) approving the fees and charges to be included on the invoice. The Company may, in its sole discretion, accept written confirmation (including via email) approving an invoice in lieu of a purchase order or insertion order being provided.
(f) If any invoiced amount is not received by the Company by the due date or the Company is unable to successfully process your payment of any charges within the timeframe required (as applicable), the Company reserves the right to charge a late payment fee calculated at a rate of 3 percent (3.0%) per month. This amount represents a genuine and reasonable estimate of such costs and expenses associated with managing and processing late payments. The Company also reserves the right to deduct Content Credits from the Customer's account in lieu of late payment fees, withdraw credit facilities (where applicable) at any time or to remove the Customer’s access to Creatively Squared. The Customer may also be liable to pay interest on any amount outstanding at the ATO Benchmark interest rate in Australia.
Unless stated otherwise, all Fees are quoted in US dollars, however transactions may be processed in an equivalent foreign currency (such as Australian dollars or British pounds).
(a) For Customers in Australia, GST is applicable to any Fees charged by the Company.
Unless expressed otherwise, all Fees shall be deemed inclusive of GST. The Company will provide the Customer with a Tax Invoice for any payments of Fees.
(b) If Creatively Squared is required to collect indirect taxes (such as sales tax, value-added tax, withholding tax, etc.) under the laws of your state or country of residence, you shall be liable for payment of any such indirect tax. You may be required to self-assess such taxes under the applicable laws of your country or residence.
4.7 Cancellations and Refunds
(a) Subject to (b) below, no refunds of Fees are offered other than as required by law, unless determined otherwise in the Company’s complete discretion.
(b) Unless agreed otherwise in writing, the Company provides refunds in the following manner:
i Where the Customer cancels a Brief after making a Booking (including due to an erroneous or incomplete Booking), but before the Brief has been actioned by Content Creators, the Company will reimburse any Credits used to make the Booking; or
ii Where the Company declines a Booking as per 2.2(b), the Company will reimburse any Credits used to make the Booking
4.8 Late Payment
(a) If the Customer does not pay the full Fees as required, the Company may suspend the Customer’s access to their Account.
(b) If Fees are not brought out of arrears within 28 days of becoming overdue, the Company may terminate the Customer's Account without notice and end these Terms of Service.
(c) The User agrees that the Company shall not be responsible or liable in any way for interruptions to the availability of Creatively Squared in the event of (b).
5.1 Licence to Use Creatively Squared
(a) By accepting the terms and conditions of this Agreement, the Customer is granted a limited, non-exclusive and revocable licence to access and use Creatively Squared for the duration of and in accordance with these Terms of Service.
(b) For clarity, where a multi-seat licence is granted to the Customer, then this shall authorise that number of the Customer’s team members to access Creatively Squared on the terms agreed between the Customer and the Company from time-to-time.
(a) The Customer agrees and accepts that Creatively Squared is:
i Hosted by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to the servers operated by the Company and is not available ‘locally’ from the Customer’s systems; and
ii Managed and supported by the Company from the servers operated by the Company and that no ‘back-end’ access to Creatively Squared is available to the Customer unless expressly agreed in writing.
(b) As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter Creatively Squared.
5.3 Modification of Terms
(a) The terms of these Terms of Service may be updated by the Company from time to time.
(b) Where the Company modifies the terms, it will provide the Customer with written notice, and the Customer will be required to accept the modified terms in order to continue using Creatively Squared.
(a) The Company shall provide support services in the manner advertised on the Site and/or notified in writing to the Customer from time-to-time, having regard to the Customer’s account type.
(b) The Company reserves the right to require the payment of reasonable fees for non-standard support requests above the level of support agreed with the Customer prior to the provision of such support.
(a) The Customer is encouraged to provide feedback to the Company with respect to their experience with Creatively Squared and the performance of Content Creators. Any feedback will be taken into account by the Company for the purposes of improving the Customer’s experience in the future.
(b) If the Customer has a complaint with respect to a particular Brief and/or Content Creator, they should address their complaint in writing to firstname.lastname@example.org, or to their Account Manager
5.6 Use & Availability
(a) The Customer agrees that it shall only use Creatively Squared for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.
(b) The Customer is solely responsible for the security of its username and password for access to Creatively Squared. The Customer shall notify the Company as soon as it becomes aware of any unauthorised access of its Account.
(c) The Customer agrees that the Company shall provide access to Creatively Squared to the best of its abilities, however:
i Access to Creatively Squared may be prevented by issues outside of its control; and
ii It accepts no responsibility for ongoing access to Creatively Squared.
(a) Security. The Company takes the security of Creatively Squared and the privacy of its customers very seriously. The Customer agrees that the Customer shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.
5.9 Intellectual Property
(a) Trade marks. The Company has moral, registered and unregistered rights in its trade marks and the Customer shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
(b) Proprietary Information. The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the Customer agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The Customer warrants that it shall not infringe on any third-party rights through the use of Creatively Squared.
(c) Creatively Squared. The Customer agrees and accepts that Creatively Squared is the Intellectual Property of the Company and the Customer further warrants that by using Creatively Squared the Customer will not:
i Copy Creatively Squared or the services that it provides for the Customer’s own commercial purposes; and
ii Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in Creatively Squared or any documentation associated with it.
5.10 Third Party Dependencies
The Customer agrees and acknowledges that Creatively Squared has third party dependencies which may affect its availability, including (without limitation) internet service providers and hosting services, and that the Company has no means of controlling the availability of such dependencies and shall not be liable for any interruptions to such.
(a) Each party acknowledges and agrees that:
i the Confidential Information is secret, confidential and valuable to the disclosing party (Discloser);
ii it owes an obligation of confidence to the Discloser concerning the Confidential Information;
iii it must not disclose the Confidential Information to a third party except as permitted in these Terms of Service;
iv all Intellectual Property rights remain vested in the Discloser, but disclosure of Confidential Information does not in any way transfer or assign any rights or interests in the Intellectual Property to the receiving party; and
v any breach or threatened breach by the receiving party of an obligation under these Terms of Service may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently, the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.
(b) A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:
i any actual, suspected, likely or threatened breach by it of any obligations it has in relation to the Confidential Information.
ii any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or
iii any actual, suspected, likely or threatened theft, loss, damage, or unauthorized access, use or disclosure of or to any Confidential Information.
(c) The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser or of a related body corporate if there is:
i any actual, suspected, likely or threatened breach of a term of these Terms of Service; or
ii any theft, loss, damage or unauthorized access, use or disclosure of or to any Confidential Information that is or was in its possession or control.
5.12 Liability & Indemnity
(a) The Customer agrees that it uses Creatively Squared at its own risk and that the Company is not responsible for the conduct or activities of the Customer, and in particular the Customer’s use of Visual Content.
(b) The Customer agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with their use of or conduct in connection with any Visual Content and/or Creatively Squared, including (and especially) any breach by the Customer of these Terms of Service.
(c) In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, personal injury, death, damage to property, loss of property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the Customer’s access to, or use of, or inability to use Creatively Squared and/or Visual Content, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, loss, personal injury or death, or business interruption of any type, whether in tort, contract or otherwise.
(d) Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:
i The re-supply of services or payment of the cost of re-supply of services;
ii The replacement or repair of goods or payment of the cost of replacement or repair.
(a) Unless agreed otherwise in the Commercial Terms, either party may terminate these Terms of Service by immediate written notice to the other party.
(b) Either party may terminate these Terms of Service by immediate written notice if the other party:
i Fails to remedy a breach of these Terms of Service within 10 Business Days of receiving written notice of that breach;
ii Commits a serious breach of these Terms of Service which cannot be remedied; and/or
iii Proposes or takes any step to enter into any scheme of arrangement with creditors; proposes to or takes any step to appoint a receiver or manager, a liquidator, an administrator or other like person; proposes to take any steps to enter bankruptcy, or is presumed insolvent for the purposes of any provision of the Corporations Act.
5.14 Effect of Termination
(a) Where the Company terminates pursuant to item 5.13(b), or the Customer terminates pursuant to item 5.13(a), then the Company shall be relieved of the obligation to provide any further services or access to Creatively Squared to the Customer from the date of termination, a 50% cancellation Fee is due immediately for previously signed contracts with unpaid Fees, the Customer relieved from its obligation to pay any further Fees outside of the existing contract and no refunds on Fees paid in advance will apply.
(b) Where the Customer terminates pursuant to item 5.13(b), or the Company terminates pursuant to item 5.13(a), then the Company shall be relieved of the obligation to provide any further services or access to Creatively Squared to the Customer from the date of termination, and the Customer relieved from its obligation to pay any further Fees, however the Customer shall be entitled to a pro-rata refund for Fees paid in advance by the Customer for the period following the effective date of termination.
(c) Termination of these Terms of Service is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of these Terms of Service up to the date of expiry or termination.
(d) All provisions of these Terms of Service which by their nature should survive termination shall survive termination, including intellectual property rights, limitation of liability, disclaimer of warranty and confidentiality.
5.15 Dispute Resolution
(a) If any dispute arises between the parties in connection with these Terms of Service (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:
i Includes or is accompanied by full and detailed particulars of the Dispute;
ii Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
(b) Within 10 Business Days after a Dispute Notice is given, a representative (with the authority to resolve the dispute) parties must meet (virtually or otherwise) and seek to resolve the Dispute.
(c) Subject to clause (d), a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
(d) Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
(e) Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.
5.16 Electronic Communication, Amendment & Assignment
(a) The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
(b) The Customer can direct notices, enquiries, complaints and so forth to the Company as set out in these Terms of Service. The Company will notify the Customer of a change of details from time-to-time.
(c) The Company will send the Customer notices and other correspondence to the details that the Customer submits to the Company, or that the Customer notifies the Company of from time-to-time. It is the Customer’s responsibility to update its contact details as they change.
(d) A consent, notice or communication under these Terms of Service is effective if it is sent as an electronic communication unless required to be physically delivered under law.
(e) Notices must be sent to the parties’ most recent known contact details.
(f) The Customer may not assign or otherwise create an interest in these Terms of Service without prior written consent of the Company.
(g) The Company may assign or otherwise create an interest in its rights under these Terms of Service by giving written notice to the Customer.
(a) Special Conditions. The parties may agree to any Special Conditions to these Terms of Service in writing.
(b) Prevalence. To the extent these Terms of Service is in conflict with, or inconsistent with, the terms of any other agreement between the Company and the Customer, any Commercial Terms, or any special conditions made under these Terms of Service, as relevant, the terms of those other agreements or special conditions shall prevail.
(c) Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in these Terms of Service.
(d) Relationship. The relationship of the parties to these Terms of Service does not form a joint venture or partnership.
(e) Waiver. No clause of these Terms of Service will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
(f) Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to these Terms of Service and the transaction facilitated by it.
(g) Governing Law. These Terms of Service are governed by the laws of Queensland, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
(h) Severability. Any clause of these Terms of Service, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of these Terms of Service.
(i) Interpretation. The following rules apply unless the context requires otherwise:
i Headings are only for convenience and do not affect interpretation.
ii The singular includes the plural and the opposite also applies.
iii If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
iv A reference to a clause refers to clauses in these Terms of Service.
v A reference to legislation is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it.
vi Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
vii A reference to a party to these Terms of Service or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives)
viii A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
ix A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.