Popup term

TRAKVAN.COM – TERMS AND CONDITIONS OF USE

1. BACKGROUND

TrakVan is an independent software company domiciled in Australia which specialises in the development of web tools for musicians.
TrakVan operates through the TrakVan Website at www.trakvan.com .

TrakVan functions by permitting Content Providers (as defined herein) to upload their Content to the TrakVan Service so that access to the Content may be facilitated within an embeddable distribution device (The TrakVan Device(s)) on any website where such device embedding is permitted including but not limited to the Content Providers own website(s), their Facebook page(s) and web pages provided by TrakVan (together known as the sites).

Once uploaded to the TrakVan Service, the Content as provided by Content Providers may be accessed via the appropriate External User Device by third party Users (as defined herein) being visitors to the Sites.

The Content Providers may elect to enable the optional Buy Button on the TrakVan Device. If the Buy Button is not enabled, the TrakVan Device will do its best to prevent unauthorised access to the Content Providers source data. If the Buy Button is enabled, the TrakVan Device will act as both a preview of the Content Providers Content and as a sales portal for the Content Provider’s Content.

In the event that the Buy Button is enabled by Content Providers, the Content Providers may then sell, and the Users may then purchase the Content uploaded by the Content Provider in accordance with the terms set out below.

The sale of the Content is a direct transaction between the Content Providers and the Users and TrakVan shall have no responsibility for or liability in respect of such sale.

The proceeds of any purchases of Content by Users will be collected by TrakVan in its Paypal Account and/or Bank Account on behalf of the Content Providers and subject to the deduction of Costs by TrakVan in accordance with the terms of Schedule A herein, will be distributed between the Content Provider and TrakVan in accordance with the shares of Fees set out herein.

This Agreement sets out the Terms and Conditions by which TrakVan, the Content Providers and the Users agree to operate.

2. DEFINITIONS

In this Agreement, unless specified to the contrary:

“Agreement” means this agreement.

“Buy Button” means an electronic button on the TrakVan Device which when activated, enables the Content Provider to sell, and enables Users to purchase via the Payment Methods, the Content

“Content” means any information, image, sound, data, or coding uploaded to the TrakVan Devices and the TrakVan website by the Content Provider.

“Content Provider” means the party or parties entering into this Agreement who own and control all rights (including copyright) in and to the Content.

“Content Provider Account” means an account created by the Content Provider with TrakVan to provide TrakVan with accurate registration information for use in maintaining and paying Fees to Content Providers.

“Content Providers Pricing” means the Content Provider’s set pricing for sale of the Content as set out in Schedule A, provided always that the Content Providers Pricing is not below the Standard Pricing. Each Content Provider will provide TrakVan with all necessary information required by TrakVan with respect to Content Providers Pricing at the time of creating the Content Provider Account.

“Content Provider Revenue” means the total of all gross income from sale of the Content at the Content Provider Pricings.

“Copyright Owner” means the owner of the copyright in the Content (including but not limited to the Content Provider).

“Costs” means any costs including royalty payments payable to royalty collection agencies such as APRA/AMCOS in Australia and any other territory in which Content is sold, any Statutory Charges such as the Goods and Services Tax (GST) in Australia and any other applicable sales or withholding taxes and any credit card, Bank or other financial fees.

“Distribution Percentages” means the distribution percentages of the Fees between the Content Provider and TrakVan as set out in Schedule A.

“External User Device” means any User’s electronic device which is capable of storing and retrieving the Content, such as a computer, tablet, smart phone or similar device.

“Fee(s)” means the total amount of money as calculated from Content Provider Revenue or Standard Pricing Revenue (as applicable) and which is payable by TrakVan to Content Providers from the sale of Content herein.

“Payment Methods” means the methods of payment utilised by the User to purchase the Content from the Content Provider(s). This may include means such as Paypal, credit cards or any similar payment methods provided by TrakVan with respect to the purchase of any Content by Users.

“Pricings” means the Standard Pricing and/or the Content Providers Pricing, being denominated in Australian Dollars.

“Standard Pricing” means the minimum pricing set by TrakVan for sale of the Content as set out in Schedule A.

“Standard Pricing Revenue” means the total of all gross income from sale of the Content at the Standard Pricing.

“Term” means the period commencing on the date of this Agreement and continuing until terminated by the Content Provider as provided herein .

“Territory” means the World.

“TrakVan” means TrakVan Pty Ltd ABN 47 153 794 757 a company incorporated in Australia.

“TrakVan Blog” means a blog or web log that TrakVan distributes to subscribers from time to time in order to keep subscribers informed of music industry news and publicity.

“TrakVan Device(s)” means the embeddable TrakVan Content preview and optional sales tool(s). There are multiple data preview tools available as part of the TrakVan Service(s).

“TrakVan Service(s)” mean(s) the service or services provided by TrakVan.

“TrakVan Web Pages” means web pages created by Content Providers within the TrakVan Website. Such web pages may be created by Content Providers who do not have either personal websites or Facebook pages, or where Content Providers have a preference for creating a TrakVan Web Page.

“TrakVan Website” means the TrakVan website located at URL: www.trakvan.com.

“User” means the party or parties entering into this Agreement (excluding Content Providers) as an end user and/or consumer of the Site by way of accessing the Site for the purposes of previewing and/or making purchases of the Content.

“User Account” means an account created by Users with TrakVan for the purposes of previewing and purchasing any Content.

“Warranties” means the Warranties set out in this Agreement.

3. WARRANTIES

TrakVan warrants that:

3.1 It has the power to enter into this Agreement and will fulfil all of its obligations hereunder.

The Content Provider warrants that:

3.2 He or she is a natural person over the age of 18 years (or over the age of majority in the appropriate jurisdiction) or has his or her parents or guardians permission or is a Company duly incorporated under the laws of Australia and has the power to enter into this Agreement and fulfil all obligations herein.

3.3 He or she owns and controls all rights (including copyright) in and to the Content and has all rights necessary to grant the rights to TrakVan hereunder free from any third party claims.

4. CONTENT PROVIDERS – GRANT OF RIGHTS

4.1. The Content Provider is hereby granted the rights by TrakVan to:

  • Create a Content Provider Account with TrakVan;
  • Download the TrakVan Devices from the TrakVan Website and to embed them onto the Content Provider’s Site at no cost to the Content Provider;
  • Display Content with the TrakVan Devices on the Content Provider’s Site and permit Users to access and listen to the Content;
  • Enable the optional Buy Button on the TrakVan Devices and then to sell the Content to the Users by way of digital download to the Users;

4.2 In the event that the Content Provider enables the optional Buy Button pursuant to clause 4.1(d) herein, the Content Provider shall select either the Standard Pricing for sale of the Content or set the Content Providers Pricing for sale of the Content. The pricing may be changed by the Content Provider at any time upon notice to TrakVan;

4.2.1 Upon the purchase of any Content by Users, the Content Provider shall allow Users to download and reproduce the Content on any and all Devices owned by the Users provided that any reproduction by the User shall be solely for the purposes of the User’s personal use.

4.3 The Content Provider shall be entitled to disable the Buy Button and continue to use the TrakVan Devices solely as a music player at any time during the Term.

4.4 The Content Provider may, at anytime during the Term subject to written notice to TrakVan, cancel its Content Providers Account and to receive a final payment of any Fees due from the sale of Content from Trakvan.

4.5 TrakVan reserves the right to remove from the TrakVan Website any Content which, in TrakVan’s reasonable decision, may be offensive or defamatory or which may infringe upon any third party rights. In the event that TrakVan removes any Content from the TrakVan Website, any Fees payable to the Content Provider shall be paid in accordance with clause 4.4.

5.CONTENT PROVIDERS – PAYMENT FOR SALE OF CONTENT

5.1 Where Content Providers elect to make the Content available for sale in accordance with the Standard Pricing it is agreed that they will be paid their share of the Standard Pricing Revenue from TrakVan as described in Schedule A.

5.2 Where Content Providers elect to make the Content available for sale in accordance with the Content Providers Pricings it is agreed that they will be paid their share of the Content Providers Revenue by TrakVan as described in Schedule A.

5.3 TrakVan will pay the Content Providers their share of the Fees on a calendar monthly basis within 21 days of the end of that month once the Content Providers Account balance reaches a minimum of A$100.00 (One Hundred Australian Dollars). In the event that any Content Provider Account does not exceed A$100.00, such amount shall be carried over into the next calendar month and TrakVan shall pay the Content Provider any Fees payable to the Content Provider once the Content Provider Account attains a balance of A$100.00 or more. Amounts of less that A$100.00 may be paid at TrakVan’s discretion.

5.4 TrakVan will provide Content Providers with access to their statements of account through the TrakVan Website.

5.5 Content Providers shall be solely liable for any credit card transaction fees, disputed payments, refunds, Bank transaction fees, PayPal fees and bad debts as applicable.

6. USERS – PAYMENT FOR CONTENT DOWNLOADS

6.1 Users may make purchases of the Content from the Content Providers Sites subject to the creation of a User Account by the User.

6.2 Users shall provide TrakVan with accurate registration information for use in maintaining and billing fees to User Accounts.

6.3 TrakVan is not responsible for transactions between Users and Content Providers, including (but not limited to) circumstances where:

  • Content becomes unavailable following a transaction ;
  • Technical problems prevent or unreasonably delay delivery of Content upon any purchase by the User.
7. COPYRIGHT & INTELLECTUAL PROPERTY

7.1 Content Providers hereby acknowledge and will procure that all Users acknowledge that all data contained on the TrakVan Website including (without
limitation) any underlying software, trade mark, logos, design, text, images, audio, video and artwork (including the name, image, likeness and/or biographical materials) shall be owned by TrakVan in perpetuity throughout the world and shall be provided by way of non-exclusive, non-transferable and non-assignable license to the relevant Content Providers and Users for the duration of the Term.

7.2 The uploading of any Content to the TrakVan Devices and the TrakVan Website does not transfer to TrakVan any proprietary interest or copyright in such Content.

8. CONTENT PROVIDERS – EXCLUSION OF AND LIMITATION OF LIABILITY

8.1. Content Providers hereby acknowledge that the TrakVan Devices and the TrakVan Website are provided “as is” and without representations or warranties of any kind to Content Providers, whether express or implied, including without limitation as to the quality and/or fitness of the TrakVan Devices and the TrakVan Website for any particular use, accessibility or warranties that access or use of the TrakVan Devices and TrakVan Website will be uninterrupted or error-free, and that the TrakVan Devices and the TrakVan Website and/or the Content will be secure or free of viruses or other harmful material or elements, or that any of the Content will be correct, accurate, timely or complete.

8.2 Content Providers agree and warrant:

a. that all Content posted to the TrakVan Website is owned solely and exclusively by the Content Provider or uploaded with the consent and license of the Copyright Owners or any other other proprietary right owners in such Content, or is in the Public Domain;

b. that Content uploaded to the TrakVan Devices does not violate the rights of any third party including, without limitation, privacy rights, copyrights, contractual rights, etc.

c. not to post any abusive, obscene, vulgar, slanderous, hateful, threatening, sexually-oriented or any other material that may violate any laws be it of their country, the country where the TrakVan Devices or the TrakVan Website is hosted or international law.

8.3 Content Providers acknowledge TrakVan shall have the right to immediately terminate this Agreement in the event of any breach of warranties made by the Content Providers hereunder and that TrakVan shall have the right to immediately and permanently ban the Content Provider from the TrakVan Website, and demand that the Content Provider immediately disable the TrakVan Devices from the Content Provider’s Site.

9. USERS – EXCLUSION OF AND LIMITATION OF LIABILITY

9.1 Content Providers shall procure that Users as a term of sale of any Content, acknowledge that the TrakVan Devices and the TrakVan Website are provided “as is” and without representations or warranties of any kind to Users, whether express or implied, including without limitation as to the quality and/or fitness of the TrakVan Devices and the TrakVan Website for any particular use, accessibility or warranties that access or use of the TrakVan Devices and the TrakVan Website will be uninterrupted or error-free, and that the TrakVan Devices and the TrakVan Website and/or the Content will be secure or free of viruses or other harmful material or elements, or that any of the
Content will be correct, accurate, timely or complete.

9.2 TrakVan is not responsible for the Content on the TrakVan Devices and the TrakVan Website and does not take any responsibility for any Content deemed to be offensive, discriminatory or misleading to Users in any way.

9.3 Where the TrakVan Website provides links to other websites, it does so for information and convenience purposes only. TrakVan has no control over, and shall not be responsible for any such websites and/or the content thereof.

10. INDEMNITY

10.1 Each party indemnifies the other against any claim, loss, damage, suit, action, proceedings, costs or expenses (including legal costs) of any nature whatsoever made against either party or which either party may suffer or incur by reason of any breach or alleged breach of these Terms & Conditions by either party, such indemnity being
without prejudice to any other right or remedy of either party in respect of such breach.

10.2 Content Providers hereby fully indemnify TrakVan against any loss or damage suffered in the event that any Content or information provided on the TrakVan Devices and the TrakVan Website is incorrect or in any way misleading.

10.3 TrakVan shall not be responsible for any loss or damage suffered by Content Providers or Users in the event that any aspect of the TrakVan Devices and the TrakVan Website does not function as intended for any reason beyond the reasonable control of TrakVan and particularly in connection with: service interruptions caused by an internet service provider; an internet connection; any fault or deficiency in computer hardware or software; any fault or deficiency in audio/visual hardware.

10.4 Should TrakVan in its sole discretion, determine that any party has breached any term of this Agreement, then nothing herein shall prevent or in any way restrict its right to pursue any of its legal and/or other remedies, including, without limitation, court action.

11. REGISTRATION, PRIVACY AND REFUNDS

11.1 Content Providers shall create a Content Provider Account and procure
that Users create a User Account with TrakVan via the registration portal on
the TrakVan Website and will be required to and provide TrakVan with certain
personal information. Content Providers agree to provide accurate registration data (including data related to Users) to TrakVan and to regularly update such data as and when necessary.

11.2 Content Providers agree and will procure that Users agree to any information they have entered being stored in the TrakVan database. While this information will not be disclosed to any third party without the prior written consent of the Content Provider or User, TrakVan shall not be held responsible for any “hacking” attempt that may lead to the data being compromised.

11.3 Content Providers agree and will procure that Users agree to subscribe to the TrakVan Blog and to receive any promotional material that TrakVan may send them from time to time.

Privacy Statement:

11.4 TrakVan is committed to protecting the privacy of Content Providers and Users, and will not use any information which it collects in the course of, or in relation to, Content Providers or Users use of the TrakVan Devices and the TrakVan Website otherwise than as disclosed herein or on the Website. TrakVan will use its best efforts ensure that any personal information of Content Providers and Users will not be disclosed to other institutions and authorities except if required by law or other regulation.

11.5 TrakVan will not store Users credit card or Paypal details on the TrakVan Website.

Refund Policy:

11.6 The sale and purchase of the Content is an arms length transaction between the Content Providers and the Users. Should a Content Provider instruct TrakVan to reimburse a User for any purchase, then TrakVan will reimburse the User from funds available from the Content Provider Account. Refunds can only take place if the Content Provider has sufficient funds available in its Content Provider Account. In the event that any funds available in the Content Provider Accounts is
insufficient for any refunds and TrakVan agrees to refund Users in the first instance, such refunded amount shall be treated as a debt and payable by Content Providers to TrakVan within fourteen (14) days notice by TrakVan to the Content Provider.

12. CHANGES AND ALTERATIONS TO TERMS & CONDITIONS

TrakVan reserves the right to alter, modify, add to or change in any way, any provision
of these terms & conditions and may, in its absolute discretion, limit or expand the TrakVan Services available via the TrakVan Website without giving prior notice to Content Providers and/or Users.

13. GOVERNING LAW AND JURISDICTION

13.1 These terms & conditions and their access and use of the TrakVan Devices and the TrakVan Website shall be governed by and construed in accordance with Laws of New South Wales Australia. By accessing and using the TrakVan Devices and the TrakVan Website, Content providers and Users accept that any dispute under these Terms & Conditions or arising out of access and/or use of the TrakVan Devices and the TrakVan Website shall be subject to the exclusive jurisdiction of the Courts of New South Wales Australia and by accessing and/or using the TrakVan Devices and the TrakVan Website, Content Providers and Users hereby submit to the jurisdiction of such Courts for such purposes.

13.2 Users and/or Content Providers are solely responsible for compliance with any applicable Laws of the Country from which they access this Website.

14. SCHEDULE A (Standard Pricing)

1. “Single” download……………………………………………..$0.99
2. “EP” (4 Track) download……………………………… …… $2.99
3. “Album” download……………………………………………. $9.99

“Content Providers Pricing” means the pricing determined by the Content Provider for each of the Single, EP and Album downloads, providing that the Content Providers Pricing is not below the Standard Pricings.

“Distribution Percentages” means for all downloads, whether as a Single, EP or Album, or whether subject to the Standard Pricing or the Content Providers Pricing, the Content Provider shall receive 60% of the Fees and TrakVan shall receive 40% of the Fees, after payment of the Costs.