MARKETPLACE TERMS AND CONDITIONS
The House Concerts Australia platform is owned by House Concerts Australia Pty Ltd ACN 620 752 767 as trustee for the House Concerts Trust (referred to as House Concerts Australia).
By accessing or using the House Concerts Australia platform, you agree to be bound by these Terms and Conditions (Terms). If you object to anything in, or otherwise do not agree to, these Terms you are not authorised to use the House Concerts Australia platform. You must not use the House Concerts Australia platform in any way other than in accordance with these Terms.
Platform summary - introductory service only
- The Services provide an introductory service for hosts and musicians and other artists, referred to as “Hosts” and “Artists”. The “Services” means the House Concerts Australia platform available on House Concerts Australia’s website (Site) and any mobile application that may be available from time to time.
- Artist’s Profiles are listed on the Site. Hosts can browse the Site and use the Services to book Artist performances. Host’s Profiles are listed on the Site and Artists may use the Site to browse through Hosts listed on the Site.
- The Services provide an introductory platform only. House Concerts Australia is not an employment agency or labour hire business. By accessing the Services, Users acknowledge that Artists are not employees, contractors, partners or agents of House Concerts Australia. Any agreement entered into between a Host and an Artist is solely between that Host and that Artist; House Concerts Australia is not a party to the agreement.
- These Terms form a binding legal agreement between House Concerts Australia and each person, organisation or entity using the Services (referred to as a User). By using the Services, each User agrees to comply with and be legally bound by these Terms. Please read the Terms carefully. If there are any questions, please contact House Concerts Australia using the contact details at the end of these Terms.
- The User’s use of the Services indicates that:
- the User has had sufficient opportunity to access the Terms and contact House Concerts Australia;
- the User has read, accepted and will comply with the Terms; and
- the User is 18 years or older, or if younger than 18 years, the User has the approval of his or her parent or guardian.
If this is not correct, or if the User does not agree to these Terms, the User is not permitted to use the Services.
- House Concerts Australia may amend these Terms from time to time, and will give the User 14 days’ notice of the varied Terms. Use of House Concerts Australia’s Services following any such amendments will be deemed to be confirmation that the User accepts those amendments. If a User has reasonable grounds to believe that the varied Terms will be detrimental to their rights, the User may discontinue using House Concerts Australia’s Services, without penalty.
Online Registration, Accounts and Profiles
- Artists and Hosts can create accounts (Accounts) and profiles (Profiles) on the Site. Information such as an email address and a username are required to create Accounts and Profiles. Hosts’ and Artists’ contact details may be listed on the Site, at the Host’s or Artist’s option.
- Each User agrees to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. House Concerts Australia reserves the right to suspend or terminate any User’s Account and his/her access to the Services if any information provided to House Concerts Australia proves to be inaccurate, not current or incomplete. It is the User’s responsibility to keep his or her Account details secure and each User is responsible for all activity on its Account.
- Artists can leave reviews of Hosts, similarly Hosts may leave reviews of Artists, collectively referred to as “Reviews”. Reviews will be publically available on the Site until the relevant User’s Account is cancelled by the relevant User or otherwise terminated or deleted. Each Artist and Host that posts a Review must provide true, fair and accurate information in their Review.
- If, in House Concerts Australia’s reasonable assessment, a Review is unfair, inaccurate, offensive or inappropriate, House Concerts Australia may delete the Review or ban the relevant User from using the Services. House Concerts Australia does not review every Review posted on the Site and to the fullest extent permitted by law, House Concerts Australia is not responsible for the content of any Reviews.
- The Services may include a forum, from time to time (Forum).
- For any Forum made available as part of the Services, House Concerts Australia reserves the right to remove any posts by Users which House Concerts Australia, at its sole discretion, deems to be inappropriate.
- Users acknowledge and agree that they are not permitted to post posts which contain foul language, illegal material, defamatory comments, business advertisements, spam, religious debates, comments which incite fear, and/or any form of abuse, insults or personal attacks.
- Hosts are not required to pay fees to use the Services or create Accounts and Profiles. Artists are charged a fee to be listed on the Site and to create an Account. This fee is referred to as the House Concerts Australia Fee, or the “HCA Fee”.
- Each Artist agrees to pay the HCA Fee at the time he or she creates an Account using the Services. After this initial payment of the HCA Fee, the HCA Fee is payable annually via automatic debit from the Artist’s bank account or another payment method selected by the Artist.
- House Concerts Australia may charge a dishonour fee if there are insufficient funds in the Artist’s bank account for the HCA Fee.
- Any payments between an Artist and a Host are purely matters between the relevant Artist and Host, House Concerts Australia is not involved.
- Each Artist and Host agrees that any legal remedy or liability that he or she may seek to obtain for actions or omissions of another Host or Artist, or other third party, will be limited to a claim against the relevant Host, Artist or other third, who caused harm to him or her. House Concerts Australia encourages Hosts and Artists to communicate directly with the relevant Host, Artist or third party to resolve any disputes.
- House Concerts Australia welcomes feedback from its Users. House Concerts Australia seeks to resolve concerns quickly and effectively. If any User has any feedback or questions about the Services, please contact any member of the staff.
- If there are any complaints from a User, House Concerts Australia will aim to respond and provide a suitable solution within 45 days. If a User is not satisfied with House Concerts Australia’s response, the User and House Concerts Australia agree to the following dispute resolution procedure:
- The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The User and House Concerts Australia agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting).
- If a resolution cannot be agreed upon at the Initial Meeting, either the User or House Concerts Australia may refer the matter to a mediator. If the User and House Concerts Australia cannot agree on who the mediator should be, the complainant will ask the Law Society of Victoria to appoint a mediator. The mediator will decide the time and place for mediation. Each party to the dispute must attend the mediation in good faith, to seek to resolve the dispute.
- Any attempts made by a party to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of either party under these Terms, by law or in equity.
Refunds and Cancellation of Registration
- Any Host or Artist that wishes to cancel or delete his or her Account and Profile may do so by contacting House Concerts Australia using the contact details provided at the bottom of these Terms.
- House Concerts Australia will provide a refund of the HCA Fee if an Artist contacts House Concerts Australia within 21 days of registering for an Account to request a refund. Artists must contact House Concerts Australia in writing, including via email, to request a refund.
- Please note that any refund of any payment of an Artist by a Host is solely a matter between the relevant Host and Artist.
- All logos, slogans, content, designs, drawings, graphics, images, appearance, videos, ideas, databases, codes, documents, domain names, confidential information, copyright, registered or unregistered trade marks, trade names, patent, know-how, trade secrets and any other intellectual or industrial property whether such rights are capable of being registered or not (collectively Intellectual Property), including but not limited to copyright which subsists in all creative and literary works displayed via the Services is owned, controlled or licensed to House Concerts Australia (or its affiliates and/or third party licensors as applicable).
- The User agrees that, as between the User and House Concerts Australia, House Concerts Australia owns or holds the relevant licence to all Intellectual Property rights in the Services, and that nothing in these Terms constitutes a transfer of any Intellectual Property. The Intellectual Property and Services are protected by copyright, trademark, patent, trade secret, international treaties, laws and other proprietary whether such rights are capable of being registered or not, and also may have security components that protect digital information only as authorised by House Concerts Australia or the owner of the content.
- Some Intellectual Property used in connection with the Services are the trademarks of their respective owners (collectively Third Party Marks).
- House Concerts Australia’s Intellectual Property and Third Party Marks may not be copied, imitated or used, in whole or in part, without the prior written permission of House Concerts Australia or the applicable trademark holder or Intellectual Property owner.
- Users of the Site do not obtain any interest or licence in the Intellectual Property or Third Party Marks without the prior written permission of House Concerts Australia or the applicable Intellectual Property owner. Users may not do anything which interferes with or breaches the Intellectual Property rights.
- Subject to these Terms, House Concerts Australia grants the User a personal, non-exclusive, non-transferable, limited and revocable licence to use the Services for its own personal and/or non-commercial use only on a computer or mobile device owned or controlled by the User as permitted in accordance with these Terms (User Licence), and not to use the Services in any other way or for any other purpose, apart from local fair dealing legislation in accordance with the Copyright Act 1968 (Cth). All other uses are prohibited without House Concerts Australia’s prior written consent.
- The right to use the Services is licensed to the User and not being sold to the User. A User has no rights in the Services other than to use it in accordance with these Terms.
- These Terms and the User Licence governs any updates to, or supplements or replacements for the Services, unless separate Terms accompany such updates, supplements or replacements, in which case the separate Terms will apply.
Prohibited activities on the Site
- Each User should report to House Concerts Australia, any activities or requests of Users which are, or which the User reasonably believes to be:
- illegal; or
- likely to have a negative effect on the reputation of House Concerts Australia, the Services and/or a User.
- Each User represents and warrants that any content that it provides and Profile that it posts:
- will not breach any agreements it has entered into with any third parties;
- will be in compliance with all applicable laws, tax requirements, and rules and regulations that may apply to any User in its local area and country; and
- will not conflict with the rights of third parties.
- For the avoidance of doubt, House Concerts Australia assumes no responsibility for a User’s compliance with any applicable laws, rules and regulations, including but not limited to zoning or planning laws, liquor licensing laws or rules set out by the Australasian Performing Right Association.
- House Concerts Australia reserves the right, at any time and without prior notice, to remove or disable access to any Account and/or Profile for any reason, including Accounts and/or Profiles that House Concerts Australia, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Services.
- The User will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services, or Intellectual Property.
- The User is solely responsible for compliance with any and all laws, rules, regulations, including but not limited to tax obligations or property zoning laws that may apply to his or her use of the Services.
- The User must not post, upload, publish, submit or transmit any content that:
- infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy;
- is fraudulent, false, misleading or deceptive;
- denigrates House Concerts Australia, the Services or an Artist or a Host;
- violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
- is defamatory, obscene, pornographic, vulgar, offensive, promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;
- is violent or threatening or promotes violence or actions that are threatening to any other person; or
- promotes illegal or harmful activities or substances.
- In connection with the User’s use of the Services, the User may not and agrees that it will not:
- use the Services for any commercial or other purposes that are not expressly permitted by these Terms;
- post any Review or upload any content (including but not limited to User Content) that is offensive, contains nudity or inappropriate language, contains racial or religious ranting or discrimination or defames another User, Profile;
- submit any false or misleading information;
- as an Artist, offer any performances that he or she does not genuinely intend to provide;
- as a Host, make any booking for an Artist that he or she does not genuinely intend to arrange, or contact an Artist without genuine intentions;
- violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, zoning restrictions and tax regulations;
- copy, store or otherwise access any information contained on the Site or content for purposes not expressly permitted by these Terms;
- infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights;
- use the Services to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
- use the Services in connection with the distribution of unsolicited commercial email, i.e. spam or advertisements;
- stalk or harass any other user of the Services or collect or store any personally identifiable information about any other user other than for purposes of transacting as a User on the Site;
- use, display, mirror or frame the Site, or any individual element within the Services, House Concerts Australia’s name, any House Concerts Australia trademark, logo or other Intellectual Property, or the layout and design of any page or form contained on a page, without House Concerts Australia’s express written consent; or
- advocate, encourage, or assist any third party in doing any of the above.
- Users are permitted to post, upload, publish, submit or transmit relevant information and content (User Content). By making available any User Content or any Intellectual Property on or through the Services, the User grants to House Concerts Australia a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free licence to use the User Content and Intellectual Property, with the right to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, or otherwise exploit such User Content and Intellectual Property on, through, or by means of the Services.
- The User agrees that it is solely responsible for all User Content and Intellectual Property that it makes available through the Services. The User represents and warrants that:
- it is either the sole and exclusive owner of all User Content and Intellectual Property that it makes available through the Services, or that it has all rights, licences, consents and releases that are necessary to grant to House Concerts Australia the rights in such User Content or Intellectual Property, as contemplated under these Terms; and
- neither the User Content nor the posting, uploading, publication, submission or transmittal of the User Content or House Concerts Australia’s use of the User Content (or any portion thereof) on, through or by means of the Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other Intellectual Property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
- House Concerts Australia may at its sole discretion remove any User Content that is offensive or in breach of these Terms.
- House Concerts Australia does not guarantee that Hosts will contact an Artist, or that Hosts will be able to find suitable or desirable Artists. House Concerts Australia does not guarantee that an Artist will receive bookings via the Site. House Concerts Australia does not perform background checks on Hosts or Artists and Hosts and Artists confirm the identity of any Artist or Host they are interacting with.
- To the fullest extent allowable under applicable law, House Concerts Australia disclaims all warranties, representations and conditions, whether express or implied, including any warranties, representations and conditions that the Services are merchantable, of satisfactory quality, reliable, accurate, complete, suitable or fit for a particular purpose or need, non-infringing or free of defects or errors.
- Both Artists and Hosts should arrange their own insurance, if applicable.
- House Concerts Australia does not provide advice on relevant property zoning laws and their possible applications to events and gigs held in homes. Hosts are solely responsible for checking their compliance with local planning or zoning laws, when hosting Artists.
- For the avoidance of doubt, House Concerts Australia is not responsible for any duties, fees, taxation, visa or immigration matters associated under these Terms. House Concerts Australia advises that all Users using the Services should seek advice in relation to these matters.
- House Concerts Australia excludes all express and implied conditions and warranties, except for any of the User’s statutory rights, to the fullest extent permitted by law, including but not limited to:
- House Concerts Australia expressly disclaims any implied or express guarantees, warranties, representations or conditions of any kind, which are not stated in these Terms;
- House Concerts Australia does not warrant that the Services, content on the Site (including pictures, videos, sound clips, resumes, links etc.), or the User’s access to the Services will be error free, that any defects will be corrected or that the Site or the server which stores and transmits material to the User is free of viruses or any other harmful components; and
- House Concerts Australia will not be liable for any loss, damage, costs or expense whether direct, indirect, incidental, special, consequential and/or incidental, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal, bodily injury, death or emotional distress, loss of revenue, production, opportunity, access to markets, goodwill, reputation, use or any indirect, remote, abnormal or unforeseeable loss, or any loss or damage relating to business interruption, loss of programs or other data on the User’s information systems or costs of replacement goods, or otherwise, suffered by the User or claims made against the User, arising out of or in connection with the Services, content on the Site, any Profile or the Terms, even if House Concerts Australia was expressly advised of the likelihood of such loss or damage.
- The User agrees not to attempt to impose liability on, or seek any legal remedy from House Concerts Australia with respect to such actions or omissions.
Limitation of Liability
- To the extent permitted by law, House Concerts Australia’s total liability arising out of or in connection with the Services or the Terms, however arising, including under contract, tort, negligence, in equity, under statute or otherwise, is limited to House Concerts Australia re-supplying the Services to the User, or, at House Concerts Australia’s option, House Concerts Australia refunding to the User the amount it paid for the Services to which its claim relates. House Concerts Australia’s total liability to the User for all damages in connection with the Services will not exceed the price paid by the User under these Terms for the 12 months period prior to the act which gave rise to the liability, or one hundred dollars (AUD$100) if no such payments have been made.
- The limitations of damages set forth above are fundamental elements of the basis of the bargain between House Concerts Australia and the User. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to the User.
- This limitation of liability reflects the allocation of risk between the parties. The limitations specified in this section will survive and apply even if any limited remedy specified in these terms is found to have failed of its essential purpose. The limitations of liability provided in these terms inure to the benefit of House Concerts Australia.
- Each User agrees to defend and indemnify and hold House Concerts Australia (and House Concerts Australia’s parent, related bodies corporate, officers, directors, contractors, employees and agents) harmless from and against any claims, actions, suits, demands, damages, liabilities, costs or expenses (including legal costs and expenses on a full indemnity basis), including in tort, contract or negligence, arising out of or connected to the User’s use of or access to the Services; any breach by the User of these Terms; any wilful, unlawful or negligent act or omission by the User; and any violation by the User of any applicable laws or the rights of any third party.
- House Concerts Australia reserves the right to assume the exclusive defence and control of any matter otherwise subject to indemnification by the User, in which event the User will cooperate in asserting any available defences.
- This defence and indemnification obligation will survive these Terms and the User’s use of the Services. These Terms, and any rights and licences granted hereunder, may not be transferred or assigned by the User, but may be assigned by House Concerts Australia without restriction.
- Accuracy: While House Concerts Australia will endeavour to keep the information up to date and correct, House Concerts Australia makes no representations, warranties or guarantee, express or implied, about the completeness, accuracy, reliability, suitability or availability of any information, images, products, services, or related graphics contained on the Site for any particular purpose. The User hereby acknowledges that such information and materials may contain mistakes, inaccuracies or errors and House Concerts Australia expressly excludes any liability for such to the fullest extent permissible by law.
- Fraudulent Activities: Each User acknowledges and agrees that, in the event House Concerts Australia reasonably suspects that there are fraudulent activities occurring within or via the Services, House Concerts Australia reserves the right to immediately terminate any Accounts involved in such activities, contact the relevant authorities and provide all necessary information to assist in proceedings and investigations.
- Force Majeure: House Concerts Australia will not be liable for any delay or failure to perform its obligations under the Terms if such delay is due to any circumstance beyond its reasonable control.
- Notice: Any notice in connection with the Terms will be deemed to have been duly given when made in writing and delivered or sent by email or post to the party to whom such notice is intended to be given or to such other address or email address as may from time to time be notified in writing to the other party.
- Waiver: Any failure by a party to insist upon strict performance by the other of any provision in the Terms will not be taken to be a waiver of any existing or future rights in relation to the provision. No waiver by House Concerts Australia of any of the Terms shall be effective unless House Concerts Australia expressly states that it is a waiver and House Concerts Australia communicates it to the User in writing.
- Assignment: A User must not assign any rights and obligations under the Terms whether in whole or in part without House Concerts Australia’s prior written consent.
- Severability: If any of the Terms are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
- Jurisdiction and Applicable Law: Any dispute arising out of any User’s use of the Services is subject to the laws of Victoria, Australia, and subject to the exclusive jurisdiction of the Victoria courts. House Concerts Australia makes no representation that the content of the Site complies with the laws (including intellectual property laws) of any country outside Australia. If a User accesses the Site from outside Australia, he or she does so at his or her own risk and he or she is responsible for complying with the laws in the place where he/she accesses the Site.
- Entire Agreement: These Terms and any document expressly referred to in them represent the entire agreement between House Concerts Australia and each User, and supersede any prior agreement, understanding or arrangement between House Concerts Australia and each User, whether oral or in writing.
For questions and notices, please contact:
House Concerts Australia Pty Ltd ACN 620 752 767 as trustee for the House Concerts Trust
C/o ADEPT Accounting & Taxation
83 Garden Grove Drive
Mill Park VIC 3082
Last update: 2 August 2017