Our terms and conditions ("Terms") are set out as follows. Please contact us here if you have any queries relating to our Terms.
User Agreement: www.Klick.UpKrowd.com
The Terms are set forth on behalf of the UpKrowd Group, which comprises:
("UpKrowd", "we", “our" or "us")
UpKrowd operates an online platform which allows users to upload photographs and other material from time to time for marketing and sale to third parties through our website at https://www.UpKrowd.com/, or any other platform we may introduce in the future ("UpKrowd Platform").
The Agreement is between UpKrowd and the user. PLEASE READ THE AGREEMENT CAREFULLY before accessing and using the UpKrowd Platform.
1.THE UPKROWD PLATFORM
1.1. The UpKrowd Platform provides a platform for users to, amongst other things, upload photographs and other material for self marketing and sale, to third party users of the UpKrowd Platforms including agencies, individuals, company and brands to search and offer to purchase for commercial use, or offer modelling, acting or other personal service roles (“Brands”) to people searching for such roles (“Talent”) and for Talent to promote themselves, their photographs and other materials (“Services”)
1.2. All information provided on the UpKrowd Platform related to the user's account is supplied by the users. UpKrowd is not responsible for the review, approval or verification of any information provided by a user prior to publication or any information asserted on the UpKrowd Platform.
1.4. The UpKrowd Platform may be reviewed and updated from time to time without notice.
2. UPKROWD ACCOUNTS
2.1. Users may create an account with UpKrowd by validly connecting to UpKrowd via Facebook or completing and submitting a registration form on the UpKrowd Platform.
3. PHOTO SHARING ACCOUNT
3.1. Users may open a photo sharing account on the UpKrowd Platform for the purposes of the promoting and selling their uploaded photos.
3.2. You may purchase a licence to use a user's photo on the UpKrowd Platform provided you sign up for an UpKrowd account and accept these Terms.
3.3 To purchase a licence to use a user's photo, a purchasing user shall:
3.4. To sell a licence to a purchasing user, the owner of a photo shall:
3.5. The owner a photo grants a licence to the purchasing user on the terms set out between the users (“Licence Agreement”).
3.6. For the avoidance of doubt, unless otherwise agreed upon in the Licence Agreement between the parties, the owner of a photo shall remain the legal and beneficial owner of the licenced photo.
3.7. Each user acknowledges and agrees that UpKrowd provides a platform for users to engage with other users but is not obligated to see to the proper completion of the Licence Agreement. However, UpKrowd may, in its absolute discretion, suspend or terminate a user's UpKrowd account for any breach of this paragraph 3.
4. BRAND ACCOUNT
4.1. Brands may create a brand account offering performance services to Talent (“Role”). Brands will be required to provide the following details to the Talent for the Role:
All Roles must include these details to be accepted by UpKrowd.
4.2. In addition to the details in paragraph 4.1, Brands may choose to specify additional terms or information about the Role. The Role must not include any provisions which conflict with the provisions of this Agreement. In the event of any inconsistency between the terms of this Agreement and the Role, the terms of this Agreement take priority.
4.3. Each Brand warrants that all details provided to the Talent for the Role are accurate and complete.
4.4. The Talent and Brand may communicate about the Role via the UpKrowd Q&A features of the UpKrowd Platform. You acknowledge and agree that all questions and answers regarding Roles are visible to all users and can also be viewed by other internet users.
4.5. Users must not disclose any personal details such as an individual's full name, street number, phone number or email address in a Role or in any other public communication on the UpKrowd Platform.
5. TALENT ACCOUNT
5.1. Talent may open an account on the UpKrowd Platform for the purposes of creating a profile to promote themselves.
6. TALENT CONTRACT
6.1. Brands will offer the Roles to Talent on the terms of the Talent Contract in Schedule 1. Brands may offer the Role to a Talent, and the Talent may accept the Role, through their UpKrowd account but is not under an obligation to do so.
6.2. On acceptance of an Offer by the Talent a binding legal contract is formed between the Talent and the Brand on the terms of the Talent Contract.
6.3. Following creation of the Talent Contract, the Role details may not be varied or amended except as agreed between the Talent and the Brand.
6.4. The parties to a Talent Contract agree that UpKrowd may provide their contact details to the other party to the Talent Contract.
6.5.. When you enter into a Talent Contract using the UpKrowd Platform you create a legally binding contract with another user. If you do not comply with your obligations to another user under a Talent Contract, you may become liable to that other user. If another user breaches any obligation to you, you are responsible for enforcing any rights that you may have against that user.
7.1. Users agree that they will not approach or offer Talent any modelling, acting or other performance roles outside of the UpKrowd Platform and will not attempt to approach talent found on the UpKrowd Platform via other media or communications routes.
7.2. Talent agrees that they will only accept Roles from Brands for which an Offer has been made using the UpKrowd Platform. Talent will use the UpKrowd Platform to accept Offers and will not use any other media or communications route to accept Offers for Roles.
8. BUSINESS PARTNERS
8.1. UpKrowd may, from time to time, enter into agreements with business partners seeking to engage Talent in contests.
8.2. Such contests will require the provision of Services which are not rewarded by a payment of a price but are rewarded by prizes which are contingent on the Talent's success in the contest (“Prize Contracts").
8.3. When an offer is made to Talent by a business partner for a Prize Contract, the offer must indicate:
8.4. Talent who accept Prize Contracts acknowledge and agree that UpKrowd and or the business partner acquire that Talent's performance services, including resulting images and video, for no monetary fee.
8.5. Business partners may require offers made to Talent for Prize Contracts to be selected by UpKrowd. UpKrowd may use any selection process it deems fit to make this selection and makes no warranty as to the fairness of the selection process nor that it will promote any or all Talent to the business partners.
8.6. Before a business partner enters into a Prize Contract with Talent, it may require the Talent to enter into additional terms for the engagement ("Business Partner Contract") before the Talent can provide performance services introduced by a business partner.
8.7. Where Talent accepts a Prize Contract the Talent must provide the Services to the Business Partner in accordance with the applicable terms of this Agreement and any applicable Business Partner Contract. In the event of inconsistency between this Agreement and the Business Partner Contract, the Business Partner Contract will prevail to the extent of any inconsistency.
9. PAYMENT, REFUNDS AND CREDITS
9.1. A service fee of twenty per cent (20%) of the total price paid for the formation of a Licence Agreement or Talent Contract shall be payable to UpKrowd (“Service Fee").
9.2. The Service Fee is non-refundable and cannot be cancelled.
9.3. The Payment will be held by the Escrow Account and will be automatically released 5 days after the contracts have been fulfilled and paid as follows:
9.4. Notwithstanding clause 9.3, the Remuneration will not be released to the where a dispute arises between the contracting parties.
9.5. UpKrowd may from time to time change the Service Fee and the terms applying to payment of the Service Fee. UpKrowd will notify you of any changes under this clause by message to your UpKrowd account. Changes to the Service Fee are effective fourteen (14) days after notification to your UpKrowd account.
9.6. If the parties mutually agree to terminate a contract, or if one party fails to fulfil its obligations under the contract, UpKrowd may, in its absolute discretion, refund any payments made to the entitled parties.
9.7. If, for any reason, the Remuneration cannot be transferred to the Talent or the Payment cannot be refunded to the Brand under clause 7.6, the Escrow Account will hold the Payment for up to three months from the date the Payment was made. Following this 3 months Payment will be automatically converted into UpKrowd credit and credited to whichever of the Talent or the Brand, to whom it was to be transferred.
9.8. UpKrowd credit:
8. ESCROW ACCOUNT
8.1. UpKrowd has engaged PromisePay Pty Ltd (ACN 167 436 722) (“PromisePay") to provide payment services and act as a payment facilitator and escrow agent in respect of any payments between users (“Escrow Account").
8.3. You agree and authorise UpKrowd to share any information and payment instructions with the Escrow Account and vice versa for the purposes of the Services.
9. THIRD PARTY SERVICES
9.2. Third Party Services are offered to you pursuant to the terms and conditions of the third party. Third Party Services may be promoted on the UpKrowd Platform as a convenience to our users who may find the Third Party Services of interest or of use.
9.3. If you engage with any Third Party Services provider your agreement will be directly between you and that Third Party Services provider.
10. UPKROWD PLATFORM TOOLS
10.1. The UpKrowd Platform may include tools to assist your experience and use of the UpKrowd Platform. These tools may include mobile phone verification technology, verification of payment information, user feedback service, a "Reference" feature (allowing a User of the UpKrowd Service to request other users to post a reference on the UpKrowd Platform endorsing that user), and integration with social networking sites such as Facebook, Twitter and Linked In (“UpKrowd Tools").
10.2. UpKrowd makes no warranty or representations as to the accuracy of the UpKrowd Tools and the user acknowledges that the accuracy of the information provided by the UpKrowd Tools is dependent on the accuracy of the information supplied by users of the UpKrowd Platform.
10.3. UpKrowd reserves the right to remove, modify or update the UpKrowd Tools at any time and is not responsible for any impact that any removal or update may cause to the user or their business.
11. ELIGIBILITY TO REGISTER
11.1. An UpKrowd account may only be created in the name of an individual.
11.2. A user registering on behalf of a business entity may specify as such within the "account description" field.
11.3. To create an UpKrowd account and to use the Services you must be 18 years of age or older and able to form legally binding contracts under the applicable laws.
11.4. A user registering as Talent must have the right to work in Australia.
11.5. At its absolute discretion, UpKrowd may refuse to allow any person to register or create an account with UpKrowd or cancel or suspend any existing account.
12. USER'S WARRANTIES
12.1. Each user warrants:
13. FEEDBACK & COMPLAINTS
13.1. UpKrowd is entitled to suspend or terminate your account at any time if UpKrowd, in its sole and absolute discretion, is concerned by any feedback about you, or considers your feedback rating to be problematic for other users.
13.2. If a user wishes to complain about any comment made on the UpKrowd Platform, please use the "Report" function available from time to time on the UpKrowd Platform, or email UpKrowd using the contact information on the UpKrowd Platform.
13.3. To help us to continually improve the UpKrowd Platform and Services please contact us using the contact us feature on the UpKrowd Platform if you have a complaint about the UpKrowd Platform or Services or you are experiencing any issue using our UpKrowd Platform, Services or a Third Party Service.
14. LIMITATION OF LIABILITY
14.1.Nothing in this clause 14 operates to exclude, restrict or modify the application of any provision of the Australian Consumer Law or any other statute where the exclusion, restriction or modification of which would:
(a) Contravene that statute; or
(b) Cuase any of these conditions to be void.
14.2. UpKrowd provides a platform for provision of the Services only. You acknowledge and agree that UpKrowd has no liability for any aspect of the relationship between the Brand and Talent, including but not limited to:
(a) The appearance, performance or ability of the Talent;
(b) The accuracy or honesty of information provided by a User in relation to a Role, Profile or Services;
(c) The performance by a User of their contractual obligation in relation to a role;
(d) The adequacy of the contractual relationship formed between the Brand and the Talent; and/or
(e) any dispute between a Brand and a Talent.
14.3. All information provided on the UpKrowd Platform related to Roles, Profiles, appearance and performance is supplied by the Users. UpKrowd does not have the ability to or responsibility for reviewing, approving or verifying this information prior to publication on the UpKrowd Platform.
14.4. You expressly agree and acknowledge that UpKrowd has no responsibility and makes no warranty as to the truth or accuracy of any aspect of the information provided by Users (including all Brands and Talent), including, but not limited to:
(a) the description of the Role or any other information provided by the Brand;
(b) the quality or standard of the Talent's appearance or performance in the Role;
(c) the accuracy or otherwise of the Profile of any of the Talent; and
(d) the Brand's ability to pay for the performance requested.
14.5. To the extent permitted by law, each user releases UpKrowd from any claim, action, damage, loss, liability, cost or expenses which UpKrowd incurs or is liable for in connection with any loss, damage, claim or injury arising out of a user's use of the UpKrowd Platform or in connection with these Terms except to the extent caused or contributed to by UpKrowd's negligence or default
14.5. UpKrowd is not liable for any claim, loss or damage of any kind arising out of or in relation to:
(a) the Talent Contract, the Offer or the Role;
(b) the inaccuracy of any information provided by users of the website and the reliance by other users on this information;
(c) the ability or otherwise of the Talent to perform the performance services described in a Role;
(d) the accuracy of the description of the performance services described in a Role;
(e) any other information provided via or published on the UpKrowd Platform; or
(f) any transaction between you and any Third Party Services.
14.6. UpKrowd's liability to a user of the UpKrowd Platform is limited to the total amount of fees paid by that user to UpKrowd during the twelve month period prior to the occurrence of the incident from which UpKrowd's liability arose.
17. NO WARRANTY
17.1. Except for liability in relation to any Non-excludable Condition, the UpKrowd Platform is provided on an "as is" basis, and without any warranty or condition, express or implied.
17.2. To the extent permitted by law, we and our suppliers specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement to extent allowed by law.
18. MODIFICATIONS TO THE AGREEMENT
18.1. UpKrowd may modify this Agreement from time to time. UpKrowd will send notification of such modifications to your UpKrowd account.
18.2. Except as stated in this Agreement, or as otherwise notified to you, all amended terms will automatically be effective 30 days after they are initially notified to you. Your use of the UpKrowd Platform in any manner after the expiry of that 30 day period indicates your acceptance of the amended terms and confirms your agreement to be bound by the Agreement as amended.
18.3. If you do not agree with any changes to this Agreement, you must terminate your UpKrowd account and stop using the UpKrowd Platform and Services. The terms of this Agreement cannot be amended except by written agreement signed by you and UpKrowd, or unless specifically described in or authorised by this Agreement..
19. NO AGENCY
19.1. No agency, partnership, joint venture, employee-employer or other similar relationship is created by this Agreement. In particular you have no authority to bind UpKrowd, its related entities or affiliates in any way whatsoever. UpKrowd confirms that all Third Party Services that may be promoted on the UpKrowd service are provided solely by such Third Party Service providers. To the extent permitted by law, UpKrowd specifically disclaims all liability for any loss or damage incurred by you in any manner due to the performance or non performance of such Third Party Service.
20.1. Except as stated otherwise, any notices must be sent by registered ordinary post or by email to UpKrowd's contact address as displayed on the UpKrowd Platform, or to the user's contact address as provided at registration of your account. Any notice shall be deemed given:
21. MEDIATION AND DISPUTE RESOLUTION
21.1. If a dispute arises between UpKrowd and a user, the disputing party shall inform the other party directly to allow the parties to resolve the dispute.
21.2. Disputes with any Third Party Service provider must proceed pursuant to any dispute resolution process set out in the terms of service of the Third Party Service Provider.
21.3. UpKrowd may hold upon trust any payment or remuneration which is the subject of a dispute between the users in the Escrow Account, until the dispute has been resolved.
22.1. Any party to this Agreement may from time to time, without reason, terminate the UpKrowd account.
22.2. Termination of this Agreement does not affect any agreement that has been made between users.
22.3. Third Party Services are subject to Third Party Service provider terms and conditions and any agreement between you and a Third Party Service must be terminated in accordance with those terms and conditions.
22.4. Clauses 4, 5, 7, 8, 9, 12, 14, 21 and any other terms which by their nature should continue to apply, will survive any termination or expiration of this Agreement.
23.1. This Agreement shall enure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.
23.2. UpKrowd may assign, licence or transfer or novate this Agreement or any of its rights and obligations to any third party at any time by posting a notice on the UpKrowd Platform.
23.3. You may not assign your rights and obligations or appoint an agent or subcontractor to perform its obligations under this Agreement unless you have received our written consent of to the assignment or appointment.
25.1. This Agreement is governed by the laws of Victoria, Australia. You and UpKrowd submit to the exclusive jurisdiction of the courts of Victoria, Australia.
25.2. The provisions of this Agreement are severable, and if any provision of this Agreement is held to be invalid or unenforceable, such provision may be removed and the remaining provisions will be enforceable.
25.3. This Agreement sets out the entire understanding and agreement between You and UpKrowd with respect to its subject matter.