TERMS OF USE

Last updated 1st March, 2021.

Agreement to Terms
The following Terms of Use (“TOU”) is a legal agreement between you, whether personally or on behalf of an entity (“you”) and Motion Sick Club (“we,” “us” and “our”), concerning your access to and use of the www.motionsick.club website as well as any other media form, media channel, mobile website or mobile application related, linked, or otherwise connected thereto (collectively, the “Site”). You agree that by accessing the Site, you have read, understood, and agreed to be bound by all of these TOU. The TOU governs your use of the Content (as defined below) licensed by you and any customer support or services provided by us in connection with such Content. Your use of the Content is subject to these TOU and all applicable laws, rules and regulations.

Please read these TOU carefully and contact us with any questions. We reserve the right, in our sole discretion, to make changes or modifications to these TOU at any time and for any reason. We will alert you about any changes by updating the “Last updated” date of these TOU, and you waive any right to receive specific notice of each such change. It is your responsibility to periodically review these TOU to stay informed of updates. You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes in any revised TOU by your continued use of the Site after the date such revised TOU are posted.

1. Definitions

“Content” means the particular media (e.g. image files, video files, audio files, templates, project files, data files, etc.) that you license through any Websites, along with any related materials, modifications and updates, if any, provided to you by us.
“End Product” means a work created by you into which the Content is to be incorporated pursuant to the license granted in these TOU. Examples of End Products include websites, games, presentations, online videos, corporate videos, films, television shows and advertisements.
“License Fee” means the fee set forth on the order page.
“Website” means www.motionsick.club or our other websites.

2. License

Subject to payment of the License Fee and your compliance with these TOU, we grant you a non-exclusive, perpetual, worldwide, non-transferable license to use, reproduce, modify (except as expressly prohibited herein), distribute and display the Content solely as incorporated into End Products, subject to the limitations set forth herein. Subject to these TOU, including but not limited to the restrictions set forth in Section 5.

3. License Ownership

Content. As between you and us, we retain all rights, title and interest in and to the Content and any derivatives or modifications thereof, in whole or in part. You do not acquire any right, title or interest in any Content by virtue of the permitted uses allowed under these TOU, and you shall not claim ownership of the Content as incorporated in the End Product through content identification systems (e.g., through applying “ContentID” or similar systems to the Content). Any unauthorised reproduction or other use of the Content may infringe our or third parties’ copyrights, trademarks, privacy or other rights.
End Product. You retain all rights, title and interest in and to the End Product other than the Content incorporated therein.

4. Employer or Client Use

You may purchase a license to the Content pursuant to these TOU on behalf of your employer or clients, provided that you represent and warrant that you have the authority to bind your employer or clients to these TOU. You are solely responsible and liable for use of the Content by your employer or clients. These TOU grant you the right to use the same Content for the benefit of other clients in other End Products, subject to the restrictions set forth in Section 5.

5. License Restrictions
You may not:

Sell, redistribute, transfer, sublicense, give away or otherwise assign the Content or your rights granted hereunder to any other party;
Resell the Content by itself or as part of a package except solely as embodied in your End Product;
Resell the Content (or otherwise make it available) in any manner that would enable a third part to download, extract or access the Content as a stand-alone file, either alone or bundled with other content, regardless of any modification you make to the Content (for example, you may not modify Content and distribute as part of a VJ loop pack, or stylise or recolour Content and present it as your own product);
Resell the Content (or otherwise make it available) as part of a competing product such as stock content or digital products;
Take any action in connection with the Content that infringes the intellectual property or other rights of any person or entity;
Incorporate the Content into a trademark, logo or service mark or otherwise claim trademark or service mark rights in the Content, either alone or as incorporated in the End Product;
Use the Content in a pornographic, obscene, defamatory or unlawful manner; or
Use the Content in an application allowing an end user to customise a digital or physical product to their specific needs, such as an “on demand,” “made to order” or “build it yourself” application (for example, online video or animation rendering services, slideshow apps and e-card generals) unless you purchase a separate license for each final product incorporating the Content that is created using the application.

6. Products

We make every effort to display as accurately as possible the colours, features, specifications, and details of the products available on the Site. However, we do not guarantee that the colours, features, specifications, and details of the products will be accurate, complete, reliable, current, or free of other errors, and your electronic display may not accurately reflect the actual colours and details of the products. All products are subject to availability, and we cannot guarantee that items will be in stock. We reserve the right to discontinue any products at any time for any reason. Prices for all products are subject to change.

7. Your Warranties and Representations

You warrant and represent that (a) you have the right and authority to enter into these TOU, either individually or on behalf of your employer or client, as applicable, and (b) neither the End Product nor your use of the Content shall violate any law or infringe upon any common law or statutory rights of any third-party, including without limitation contractual rights, copyrights, intellectual property rights and privacy rights.

8. Indemnification

You agree to defend, indemnify, and hold us harmless, including our subsidiaries, affiliates, and all of our respective officers, agents, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of: (1) use of the Site; (2) breach of these TOU; (3) any breach of your representations and warranties set forth in these TOU; (4) your violation of the rights of a third party, including but not limited to intellectual property rights; or (5) any overt harmful act toward any other user of the Site with whom you connected via the Site. Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defence and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defence of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.

9. Disclaimer

The Site and Content is provided “AS-IS.” To the maximum extent permitted by law, we disclaim all warranties, express or implied, including the implied warranties of non-infringement, merchantability, and fitness for a particular purpose. We make no commitments about the Content. We further disclaim any warranty that (a) the Content will meet your requirements or will be constantly available, uninterrupted, timely, secure, or error-free; (b) the results obtained from the use of the Content will be effective, accurate, or reliable; (c) the quality of the Content will meet your expectations; or (d) any errors or defects in the Content will be corrected. We specifically disclaim all liability for any actions resulting from your use of the Content. You may use and access the Site and Content at your own discretion and risk.

10. Limitation of Liability

In no event will we or our directors, employees, or agents be liable to you or any third party for any direct, indirect, consequential, exemplary, incidental, special, or punitive damages, including lost profit, lost revenue, loss of data, or other damages arising from your use of the Site or Content, even if we have been advised of the possibility of such damages. Notwithstanding anything to the contrary contained herein, our liability to you for any cause whatsoever and regardless of the form of the action, will at all times be limited to the amount paid, if any, by you to us during the three (3) month period prior to any cause of action arising.

11. Reservation

If we reasonably believe that your use of the Content may be subject to a third-party claim or if the use of the Content is otherwise in violation of these TOU, then we may instruct you to cease all use, reproduction, modification, display, distribution and possession of the Content, and you must promptly comply with such instructions. We may, at any time, (a) discontinue the licensing of the Content; and (b) deny the downloading of the Content. We reserve all rights not expressly granted in these TOU.

12. Termination

We may terminate these TOU or your right to use the Content upon notice to you in the event of your breach of these TOU, in which case you must cease all use, reproduction, modification, display, distribution and possession of the Content, including the End Product incorporating the Content.

13. Governing Law and Dispute Resolution

These TOU, and your relationship with us under these TOU, shall be governed by the laws of the State of Western Australia without regard to its conflict or choice of laws provisions.

14. Payments and Purchases

We reserve the right to correct any errors or mistakes in pricing, even if we have already requested or received payment.
We reserve the right to refuse any order placed through the Site. We may, in our sole discretion, limit or cancel quantities purchased per person, per household, or per order. These restrictions may include orders placed by or under the same customer account, the same payment method, and/or orders that use the same billing or shipping address. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers, or distributors.

15. Returns/Refunds Policy

All sales are final and no refund will be issued.

16. Corrections

There may be information on the Site that contains typographical errors, inaccuracies, or omissions that may relate to the Product and Content, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Site at any time, without prior notice.

17. Notices

You may send notices to us at the following address: PO Box 311, Bull Creek, Western Australia, 6149, AUSTRALIA. We may notify you by email, postal mail or other legally accepted means.

18. Severability

If any provision in these TOU is invalid or unenforceable or contrary to applicable law, such provision shall be construed, limited, or altered, as necessary, to eliminate the invalidity or unenforceability or the conflict with applicable law, and all other provisions of the TOU shall remain in effect.

19. Assignment

Except as otherwise set forth herein, you may not assign, sublicense, or transfer these TOU or any rights or obligations hereunder without our prior written consent. Any such attempted assignment, sublicense, or transfer will be null and void and we, in our sole discretion, shall have the right to immediately terminate these TOU. We may transfer our rights under these TOU to a third party.

20. User Data

We will maintain certain data that you transmit to the Site for the purpose of managing the performance of the Site, as well as data relating to your use of the Site. Although we perform regular routine backups of data, you are solely responsible for all data that you transmit or that relates to any activity you have undertaken using the Site. You agree that we shall have no liability to you for any loss or corruption of any such data, and you hereby waive any right of action against us arising from any such loss or corruption of such data.

21. Electronic Communications, Transactions, and Signatures

Visiting the Site, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Site, satisfy any legal requirement that such communication be in writing. You hereby agree to the use of the electronic signatures, contracts, orders, and other records, and to electronic delivery of notices, policies, and records of transactions initiated or completed by us or via the Site. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.

22. Entire Agreement

These TOU sets forth the entire understanding and agreement between the parties relating to its subject matter. Any waiver of or promise not to enforce any right under these TOU shall not be enforceable unless evidenced by a writing signed by the party making said waiver or promise.

For questions regarding these TOU or to inquire about licensing partnerships, please contact us at edwin@motionsick.club