Terms of Use

These terms govern access to and use of the Platform and Services provided by TourTracks. Clients and other users which use the Platform or any of the services agree to be bound by these terms. Use of the Platform or any of the services indicate an acceptance of these terms.

By registering to use the TourTracks platform you declare that you have the authority to act on behalf of any person or entity for whom you are using the platform. You are deemed to have agreed to these terms on behalf of any entity for whom you use the platform.

TourTracks reserves the right to amend these terms and publish these amended terms on the website from time to time. Use of the site or the services after such amendments indicates acceptance of the amended terms. You can view the current version of the Terms at https://tourtracks.co/termsofuse.

These terms were last updated on 10^th September 2019.

Definitions

In this Agreement:

Agreement means these Terms of Use.

Commencement Date means the date on which the Subscriber has subscribed to TourTracks.

Confidential Information in relation to a party means information of a confidential nature including information about its business, operations, strategy, administration, technology, affairs, clients, subscribers, employees, contractors or suppliers, but does not include any information which is in the public domain other than through a breach of confidence.

Force Majeure means an event or circumstance over which a party could not reasonably have exercised control including, but not limited to, an act of God; fire; lightning; explosions; flood; subsidence; insurrection or civil disorder or military operations; sabotage; telecommunications infrastructure or network failures; expropriation, prohibition, intervention, confiscation, embargo or restraint of property by or under the order of any government or government authority; strikes; lock-outs or other industrial disputes of any kind.

GST means a goods and services tax, or a similar value added tax, levied or imposed under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Harmful Code means any computer code that is harmful, destructive, disabling or which assists in or enables theft, alteration, denial of service, unauthorised disclosure or destruction or corruption of data including viruses, worms, spyware, adware, keyloggers, trojans, and any new types of programmed threats that may be classified.

IP Rights means all existing and future copyright, trade mark, design, patent, semiconductor and circuit layout rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of this Agreement both in Australia and throughout the world.

Law means any applicable statute, regulation, by­law, ordinance, policy or subordinate legislation in force from time to time in any part of the world and includes the common law and equity as applicable from time to time, and any mandatory standards or industry codes of conduct.

Non-Excludable Terms has the meaning given in clause 13.1(b).

Personnel means employees, directors, agents, contractors and subcontractors (who are individuals), including employees and contractors (who are individuals) of subcontractors.

Platform means the TourTracks online eCommerce platform and the Platform Documentation.

Platform Documentation means TourTracks’ User instructions, manuals, policies, specifications and other documentation for the Platform, as updated from time to time.

Platform Provider means a third party that provides any software, hardware, services and/or intellectual property rights or access rights that are used by TourTracks to operate the Platform and make the Platform available to Subscribers.

Related Body Corporate has the meaning defined in the Corporations Act 2001 (Cth).

Services mean the services provided by TourTracks to the Subscriber under this Agreement, including as set out in clause 3.1.

Subscriber means the person who registers to use the platform, and where the context permits, includes any entity on whose behalf that person registers to use the platform.  

Subscriber Data means all data stored in, processed by or retrievable from, the Platform, and which is either uploaded by the Subscriber or generated by the Platform pursuant to a transaction processed through the Platform that involves the Subscriber.

Subscription Fees means the amounts payable by the Subscriber under this Agreement for the Services as set out in clause 11.

Subscription Period means the monthly or yearly payment commitment period agreed to be the subscriber when subscribing to the platform.

Term has the meaning given in clause 2.

User means an individual who accesses or uses the Platform using TourTracks’ account or login credentials.

1. Interpretation

Capitalised terms used in this Agreement have the meaning given to them in the Definitions. Rules of interpretation for this Agreement are contained in clause 17.10.

2. Term

The Agreement commences on the Commencement Date and continues until terminated in accordance with its terms (the “Term”).

3. TourTracks’ obligations

3.1 During the Term of this Agreement, TourTracks will provide the Subscriber with:

(a) access to and use of the TourTracks Platform

as set out in this Agreement and in accordance with the Platform Documentation.

3.2 The Subscriber acknowledges and agrees that the Platform Documentation may specify minimum technical requirements and third party service integrations that are required in order for the Subscriber to access and use the Platform. TourTracks takes no responsibility for any third party products or services that the Subscriber uses in connection with the Platform.

4. Right to access the Platform

4.1 In consideration of the payment of the Fees, TourTracks grants to the Subscriber a non-exclusive, non-transferable, non-sub-licensable, royalty-free, limited right to access and use the Platform, and to permit users to do the same, for the Subscriber’s internal business purposes in connection with delivering services to the Music Industry during the Term, and subject to the terms and conditions set out in this Agreement.

4.2 The Subscriber agrees to access and use the Platform only in accordance with the terms and conditions of this Agreement and the Platform Documentation.

4.3 The Subscriber acknowledges and agrees that:

(a) except as set out in this Agreement, the Subscriber does not have any right or entitlement to access or use the Platform, or permit others to do so;

(b) except as set out in this Agreement, TourTracks will not be obliged to support the Platform, whether by providing advice, training, error-correction, modifications, updates, new releases or enhancements or otherwise;

(c) nothing in this Agreement requires TourTracks to supply the Subscriber with any hardware or equipment, or training and support in respect of the Platform; and

(d) the Platform may be modified by TourTracks from time to time (at TourTracks’ sole discretion), and the Subscriber is at all times during the Term required to use the most recent version of the Platform that is deployed by TourTracks, and does not have the ability to opt out of receiving any upgrades, updates or new features.

5. Requirements for using the Platform

5.1 The Subscriber must:

(a) only use the Platform in accordance with the normal operating procedures and instructions as notified by TourTracks (including the Platform Documentation);

(b) ensure that it only permits its officers, and individuals employed or contracted by the Subscriber, to use the Platform;

(c) except as contemplated by clause 1(b), not authorise any other party to exercise its entitlement to access and use the Platform, or otherwise sub-license any of its rights under this Agreement;

(d) ensure that all Users of the Platform are aware of, understand, accept and comply with the Platform Documentation and this Agreement. Any breach of the Platform Documentation or this Agreement by any Users of the Platform will be deemed to be a breach of this Agreement by the Subscriber;

(e) immediately notify TourTracks if the Subscriber’s actual or intended use of the Platform exceeds the scope of any usage restrictions or parameters set out in this Agreement or the Platform Documentation;

(f) comply with any security regulations, procedures or directions which may be notified by TourTracks from time to time in respect of the access and use of the Platform;

(g) ensure that all usernames and passwords required to access the Platform are kept secure and confidential; and

(h) not access or use the Platform after the Term has ended, and must ensure that its Users do the same.

5.2 The Subscriber must ensure that the Platform is not used for any of the following:

(a) sending unsolicited emails or commercial messages to third parties;

(b) any unlawful activities; or

(c) publishing any materials (or storing any content) that is unlawful, pornographic, defamatory, abusive, insulting, threatening, obscene, inflammatory, offensive or otherwise inappropriate or objectionable.

5.3 The Subscriber is solely responsible for its use of the Platform, and for supervising, managing and controlling use of the Platform by Users. TourTracks may, but is not obliged to, monitor the use of the Platform by Users to verify the Subscriber’s compliance with this Agreement.

5.4 In connection with its use of the Platform, the Subscriber must not (and must ensure that its Users do not):

(a) disassemble, decompile, reverse-engineer, copy, translate or make derivative works of the Platform;

(b) use the Platform to transmit any content or data, or conduct any transactions, that are unlawful or infringes any third party rights;

(c) introduce any Harmful Code into the Platform or TourTracks’s computer systems or networks;.or

(d) interfere with or circumvent the security and integrity of the Platform.

5.5 TourTracks reserves the right, in its sole discretion and without liability, to restrict, suspend or terminate the Subscriber’s (or any of its users) access to part or all of the Platform:

(a) if the Subscriber (or any of its Users) are in breach of this Agreement;

(b) where permitted by the Platform Documentation;

(c) where directed to do so by TourTracks’ Platform Providers; or

(d) if continued use may result in material harm to the Platform or its Users.

5.6 The Subscriber must promptly notify TourTracks of any faults in relation to the Platform.

6. Compliance with Laws

6.1 The Subscriber:

(a) acknowledges and agrees that it is solely responsible for complying with all applicable Laws in its use of the Platform; and

(b) warrants to TourTracks that the Subscriber will (and ensure that its Users will) use the Platform only for lawful purposes and comply with all applicable Laws in its use of the Platform.

6.2 TourTracks will not be liable under any circumstances (including in negligence) for any failure of the Subscriber (or its Users) to comply with its obligations under applicable Laws in connection with its use of the Platform or this Agreement.

7. Subscriber Data

7.1 The Subscriber acknowledges that it is responsible for all Subscriber Data stored using the Platform, and that TourTracks will process the Subscriber Data through the Platform on the Subscriber’s behalf.

7.2 The Subscriber must ensure that all Subscriber Data or other information provided to TourTracks or its Platform Providers:

(a) is accurate, complete and current;

(b) is provided promptly or otherwise within agreed timeframes;

(c) does not infringe any Laws or the IP Rights (or any other rights) of any person;

(d) is not misleading, deceptive, unlawful, fraudulent or defamatory

7.3 The Subscriber grants TourTracks a non-exclusive, worldwide, royalty-free licence (including the right to sub-licence) to use, copy, transmit, display and store the Subscriber Data to the extent:

(a) required for TourTracks to operate the Platform;

(b) necessary for TourTracks to perform its obligations, and exercise its rights, under this Agreement; and

(c) permitted or required by Law.

7.4 The Subscriber grants TourTracks an irrevocable, perpetual, worldwide, royalty-free licence (including the right to sub-licence) to store and use the Subscriber Data for the purpose of conducting Tracks activities and generating de-identified and aggregated statistical data. Subject to clause 9, TourTracks may use, copy, distribute and disclose such statistical data for any purpose.

7.5 The Subscriber acknowledges and agrees that is solely responsible for:

(a) doing all things necessary to ensure that the processing of the Subscriber Data through the Platform does not infringe any Laws or third party rights; and

(b) maintaining its own back-ups of any Subscriber Data that is stored in the Platform.

7.6 The Subscriber must maintain copies of all data inputted or imported into the Platform. TourTracks makes reasonable efforts to avoid data loss, but does not make any guarantees that there will be no loss of data.

7.7 Following termination or expiry of this Agreement, and except where required by Law, TourTracks is under no obligation to retain any Subscriber Data, and the Subscriber acknowledges that the Subscriber Data may be irrevocably deleted by TourTracks without notice to the Subscriber.

8. Intellectual Property

8.1 Nothing in this Agreement transfers ownership in, or otherwise grants any rights in, any IP rights of any party.

8.2 TourTracks and its licensors own all IP rights in, and associated with, the Platform.

8.3 As between TourTracks and the Subscriber, ownership of the Subscriber Data remains with the Subscriber.

8.4 The Subscriber agrees:

(a) not to do any act or thing which might invalidate or be detrimental to the IP rights of TourTracks and its licensors in the Platform;

(b) not to assert or represent that it has any proprietary, intellectual or moral right, title or interest in the Platform, or register or attempt to register any such rights;

(c) to bring to the immediate attention of TourTracks:

(i) any actual, suspected or threatened infringement of the IP Rights in the Platform; or

(ii) any assertion or claim that the Platform infringes the intellectual property rights of any third party,

and to provide TourTracks with reasonable assistance in such a claim.

8.5 The Subscriber agrees that TourTracks may (and may permit its Platform Providers to) publicly identify the Subscriber as users of the Platform. If requested TourTracks, the Subscriber will provide a brief profile of itself and its use of the Platform which may be used by TourTracks (or its Platform Providers) for promotional purposes.

9. Confidentiality

9.1 Each party (receiving party) must keep confidential, and not disclose, any Confidential Information of the other party (disclosing party) except:

(a) as permitted under this Agreement;

(b) where the receiving party has obtained the prior written permission of the disclosing party;

(c) to the receiving party’s Personnel, professional advisers, auditors, and insurers who have a need to know the Confidential Information and agree to keep it confidential on terms consistent with this Agreement;

(d) to the receiving party’s Related Bodies Corporate;

(e) to the receiving party’s auditors; or

(f) where the receiving party is compelled to do so by Law, provided that where possible it gives the disclosing party written notice prior to disclosure.

9.2 Each party must only use Confidential Information of the other party for the purpose for which it was disclosed in connection with this Agreement.

9.3 Except as permitted under clause 9.1, each party must not make any public statement or issue any press release concerning or relating to this Agreement or its relationship with the other party without the prior written consent of the other party.

9.4 On termination or expiry of this Agreement, on request from the disclosing party, the receiving party must return or destroy all copies of the Confidential Information of the disclosing party in its power, possession or control.

10. Records and audit rights

10.1 During the Term and for a period of 2 years after the Term, the Subscriber must:

(a) maintain current, complete and proper records relating to the performance of its obligations under this Agreement; and

(b) give TourTracks (and, if requested by TourTracks, TourTracks’ Platform Providers) access, on reasonable notice, to the Subscriber’s records relating to the Platform in electronic or paper form as TourTracks reasonably requires in order to enable TourTracks to review and audit the Fees charged to the Subscriber.

10.2 Without limiting clause 10.1, the Subscriber agrees to submit to, and provide all reasonable co-operation in relation to, any audit of the Subscriber’s compliance with this Agreement and usage of the Platform that is requested by TourTracks or its Platform Providers.

10.3 If any audit establishes that the Subscriber has been undercharged, the Subscriber shall pay the sum undercharged within 14 days together with the costs of the audit incurred by TourTracks.

11. Subscription fees

11.1 Access to the TourTracks platform is billed in advance on either a monthly or annual basis and those fees are non-refundable. There are no refunds or credits for partial months or years of service, or refunds for days or months unused with an open account.

11.2 All fees are inclusive of Australian GST (if required) but exclusive of all other taxes, levies or duities imposed by taxing authorities. The subscriber is responsible for all such taxes, levies or duties.

11.3 Unless the subscriber notifies TourTracks before the end of the subscription period that the subscriber wants to cancel, the subscription will automatically renew for another subscription period of the same length as the previous subscription period.

12. Warranties and indemnities

12.1 Each party represents and warrants to each other party that:

(a) it has capacity unconditionally to execute and deliver and comply with its obligations under this Agreement;

(b) it has taken all necessary action to authorise the unconditional execution and delivery of, and the compliance with its obligations under, this Agreement;

(c) this Agreement constitutes its valid and legally binding obligations and is enforceable against it by any other party in accordance with its terms; and

(d) its unconditional execution and delivery of, and compliance with its obligations under, this Agreement, do not contravene:

(i) any Law to which it is subject; or

(ii) its constituent documents, any Agreement or instrument to which it is a party or any obligation to any other person.

12.2 The Subscriber indemnifies TourTracks, its Related Bodies Corporate and each of their officers, employees and agents (those indemnified) from and against any claim, action, demand, loss, fine or payment which any of those indemnified pays, suffers, incurs or is liable for arising out of or in connection with:

(a) any breach of this Agreement by the Subscriber;

(b) any wilful or negligent act or omission of the Subscriber or its Personnel in connection with this Agreement; or

(c) any claim or allegation against those indemnified that the receipt or use of the Subscriber Data, or any materials provided to TourTracks by the Subscriber in connection with this Agreement, infringes third party rights (including IP Rights) or any Laws.

13. Exclusions and limitations of liability

13.1 All implied terms, conditions, guarantees and warranties which otherwise might apply to or arise out of this Agreement are excluded other than:

(a) those set out in the terms of this Agreement; and

(b) any term, condition, guarantee or warranty which cannot lawfully be excluded or modified by Agreement including those under the Competition and Consumer Act 2010 (Cth) (Non-Excludable Terms).

13.2 To the fullest extent permitted by Law (and subject to any Non-Excludable Terms), TourTracks disclaims any representation or warranty that:

(a) the Platform will perform error-free or uninterrupted;

(b) the Platform will provide any functions not expressly stated by TourTracks in this Agreement; or

(c) the Subscriber Data or third party content stored in, or processed through, the Platform will be secure or not otherwise lost or damaged.

13.3 If a party is liable for a breach of a Non-Excludable Term, where it is permissible to limit liability for such Non-excludable Term, that party’s liability is limited (at its option, acting reasonably) to:

(a) in relation to goods, replacing or repairing the goods, or paying the costs of replacing or repairing the goods; or

(b) in relation to services, the re-supply of services or the payment of the cost of having the services resupplied.

13.4 To the fullest extent permitted by Law, and unless otherwise expressly stated in this Agreement, TourTracks excludes all liability arising under or in connection with this Agreement (whether arising out of breach of contract, negligence or any other tort, under statute or otherwise) for any loss of profit, revenue, data, contracts, goodwill or business, or any interruption to the business of the Subscriber, or any consequential, indirect, special, punitive or incidental damages.

13.5 With the exception of any liability that TourTracks may have under a Non-Excludable Term, TourTracks’ maximum aggregate liability under or in connection with this Agreement (however arising, including in negligence) is limited to the Fees paid by the Subscriber during the Term.

13.6 The Subscriber acknowledges and agrees that the Platform is provided to the Subscriber by TourTracks, and that TourTracks’ Platform Providers will have no liability to the Subscriber or its Personnel under or in connection with this Agreement or the Platform.

14. Termination

14.1 TourTracks can terminate this Agreement with immediate effect by notice in writing to the Subscriber where:

(a) the Subscriber ceases business, or threatens to do so;

(b) the Subscriber breaches a term of this Agreement which is capable of remedy, but does not remedy the breach within 14 calendar days of notice in writing issued by TourTracks, identifying the breach and requesting remedy;

(c) the Subscriber breaches a term of this Agreement and that breach is incapable of remedy;

(d) TourTracks ceases to have the necessary rights from its Platform Providers to provide the Platform to the Subscriber; or

(e) an Insolvency Event occurs in respect of the Subscriber, or is reasonably likely to occur.

14.2 No Fault termination

If the subscriber wishes to terminate this Agreement they need to notify TourTracks. There are no refunds or credits for partial months or years of service, or refunds for days or months unused with an open account.

14.3 The Subscriber can terminate this Agreement with immediate effect by notice in writing to TourTracks where:

(a) TourTracks ceases business, or threatens to do so;

(b) TourTracks materially breaches a term of this Agreement but does not remedy the breach within 14 calendar days of notice in writing issued by the Subscriber, identifying the breach and requesting remedy; or

(c) an Insolvency Event occurs in respect of TourTracks, or is reasonably likely to occur.

15. Consequences of termination

15.1 Immediately upon expiration or termination of this Agreement for any reason, TourTracks may use remote or other means to limit or disable the Subscriber’s access to, or use of, the Platform.

15.2 Without limiting clause 7.7 TourTracks is under no obligation to continue to store or provide the Subscriber with access to any Subscriber Data, reports or other material stored in or generated by the Platform.

15.3 Any termination of this Agreement shall not affect any accrued rights or liabilities of any party, nor shall it affect any provision of this Agreement which is expressly or by implication intended to continue in force after such termination.

16. Force Majeure

16.1 TourTracks will be relieved from performance of its obligations under this Agreement to the extent that it is unable to perform those obligations due to a Force Majeure Event.

16.2 If a Force Majeure Event persists for a period of more than 10 days, TourTracks may terminate this Agreement (without liability) by giving written notice to the Subscriber.

16.3 For the avoidance of doubt, this clause 17 does not apply to the Subscriber’s obligations under this Agreement to pay amounts that are due and payable to TourTracks.

17. General

17.1 Survival

Clauses 5.1(h), 6.2, 7.2, 7.3, 7.4, 7.7, 8, 9, 10, 11, 12, 13, 15 and 17, and any other provisions of this Agreement which, by their nature, are continuing, survive the termination or expiration of this Agreement.

17.2 Relationship

The parties are independent contractors and nothing in this Agreement gives rise to any relationship of agency, partnership, employment or otherwise.

17.3 Entire Agreement

This Agreement constitutes the entire Agreement between the parties in connection with its subject matter and supersedes all previous Agreements or understandings between the parties in connection with the relevant subject matter.

17.4 Severability

If any provision of this Agreement is prohibited, invalid or unenforceable in any jurisdiction, that provision will, as to that jurisdiction, be ineffective to the extent of the prohibition, invalidity or unenforceability without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of that provision in any other jurisdiction.

17.5 Assignment and subcontracting

(a) TourTracks may assign, novate or transfer any of its rights and obligations under this Agreement at any time. The Subscriber must not assign, novate, transfer or subcontract any of its rights under this Agreement without the prior written consent of TourTracks.

(b) TourTracks may subcontract any of its obligations under this Agreement to any person.

17.6 Waiver

No waiver of a right or remedy under this Agreement is effective unless it is in writing and signed by the party granting it. A single or partial exercise or waiver by a party of a right relating to this Agreement does not prevent any other exercise of that right or the exercise of any other right.

17.7 Rights cumulative

Except as expressly stated otherwise in this Agreement, the rights of a party under this Agreement are cumulative and are in addition to any other rights of that party.

17.8 Variation

No variation of this Agreement is effective unless made in writing and signed by each party.

17.9 Governing law

This Agreement is governed by the Laws of Victoria, Australia and each party submits to the exclusive jurisdiction of the courts of Victoria, Australia and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.

17.10 Interpretation

In this Agreement the following rules of interpretation apply unless the contrary intention appears:

(a) headings are for convenience only and do not affect the interpretation of this Agreement;

(b) the singular includes the plural and vice versa;

(c) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;

(d) the words ‘such as’, ‘including’, ‘particularly’ and similar expressions are not used as, nor are intended to be, interpreted as words of limitation;

(e) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or any part of it; and

(f) a reference to:

(i) a person includes a natural person, partnership, joint venture, government agency, association, corporation or other body corporate;

(ii) a party includes its successors, permitted assigns and permitted persons substituted by novation;

(iii) a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by-law, judgment, rule of common law or equity and is a reference to that law as amended, consolidated or replaced;

(iv) writing includes any mode of representing or reproducing words in tangible and permanently visible form, and includes email transmissions;

(v) a right includes a benefit, remedy, discretion or power;

(vi) time is to local time in Victoria, Australia; and

(vii) a monetary amount is in Australian dollars.