Terms of Service
Last Updated: 20th November 2024
- 1. Acceptance of the terms and conditions of this Agreement
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- 1.1 Welcome to www.realcreator.co (Website). The Website is operated by Real Creator Pty Ltd (Real Creator or we, us, our).
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- 1.2 Please read these terms and conditions carefully. By clicking agree to these terms you agree to enter this Agreement with Real Creator and to be bound by these terms and conditions set out herein. We recommend you keep a copy of this Agreement for your records.
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- 1.3 Real Creator reserves the right to change any of the terms of this Agreement, acting reasonably, by providing notice to you. Any changes to this Agreement take effect from the date you enter into a new Subscription Period.
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- 2. About the Subscription Services
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- 2.1 Real Creator offers software that allows users to manage their own Media services in a cloud environment (Software). You are required to register for an account through the Website so you can access the Software (Account). Real Creator may, in its discretion, offer first-time users a demonstration Account trial in which they may use the demonstration version of the Software.
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- 2.2 As part of the Account registration process you are required to provide personal information about yourself (such as identification or contact details), including but not limited to your full name, e-mail address and phone number. You warrant that any information you give to Real Creator in the course of completing the registration process will be correct and up to date.
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- 2.3 Once you register an Account, you must purchase a subscription in order to use the Software (Subscription Services) and pay the applicable fee advertised on the Website at the time of purchase for the selected subscription (Subscription Fee). Real Creator may, in its discretion, offer first-time users a 30-day free trial in which they may use the Subscription Services without payment of the Subscription Fee.
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- 2.4 After purchasing the subscription, you will be granted access to the Subscription Services from the time you have paid the Subscription Fee until your chosen subscription period expires (Subscription Period).
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- 2.5 Real Creator will use reasonable endeavours to provide you with the Subscription Services in accordance with this Agreement. It is your responsibility to ensure that the subscription you elect to purchase is suitable for your use.
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- 2.6 You may use the Subscription Services in the course of providing your own Media services to your own clients. Real Creator is not party to any agreement between you and your own client(s). Real Creator is not liable for any loss you suffer if any of your clients makes any claim against you in respect of your own services.
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- 3. About the Production Hub Services
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- 3.1 The Software includes a platform that allows you to procure the services of third-party suppliers (Production Hub Services, and together with the Subscription Services, the Services) who supply post-production Media services.
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- 3.2 Real Creator will use reasonable endeavours to provide you with the Production Hub Services in accordance with this Agreement.
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- 3.3 You may enter into a separate agreement with the relevant third-party supplier who is to supply the post-production services (Post-Production Provider) via the Software.
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- 3.4 Real Creator does not supply the post-production services and is not liable in respect of such services (including, but not limited to, any quality issues in such services). You acknowledge and agree that Real Creator does not supervise, direct, control, or monitor Post-Production Providers in the performance of any contractual obligations they may have under a direct agreement with you and agree that:
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- (a) Real Creator is not responsible for ensuring the accuracy or legality of any content produced by the Post-Production Provider;
- (b) Real Creator is not responsible for the offering, performance, or procurement of Post-Production Provider’s services;
- (c) Real Creator does not make any representations about or guarantee any particular Post-Production Provider’s offered services; and
- (d) nothing will create an employment or joint venture relationship between Real Creator and any Post-Production Provider offering services.
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- 3.5 The Post-Production Provider will charge fees to you (Post-Production Provider Fees). Real Creator may act as the agent of the Post-Production Provider solely to collect such Post-Production Provider Fees on behalf of each Post-Production Provider at the frequency set on the Website from time to time.
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- 3.6 Real Creator will charge you a service fee of 7.5% in respect of any Post-Production Provider Fees (Production Hub Service Fees, and together with the Subscription Fees, the Fees).
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- 4. Payments
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- 4.1 You agree to pay all Fees arising under this Agreement. You further agree to pay Post-Production Provider Fees to Real Creator as agent for the relevant Post-Production Provider.
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- 4.2 You agree that any amounts that Real Creator owes you related to this Agreement may be set-off against amounts you owe Real Creator.
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- 4.3 Payments may be made using third-party applications and services not owned, operated, or otherwise controlled by Real Creator. You acknowledge and warrant that you will read and agree to be bound by the terms and conditions of the applicable third-party payment applications and services you choose to use as a payment method for the Services. You acknowledge and agree that Real Creator will not be liable for any losses or damage arising from the operations of third-party payment applications and services.
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- 4.4 Where a request for the payment of the Fees is unpaid by you for any reason, then you are liable for any interest and costs, including banking fees and charges, incurred by Real Creator. Real Creator may charge interest on unpaid Fees at a rate of 10% p.a.
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- 4.5 You agree and acknowledge that Real Creator may vary the Fees at any time, acting reasonably, by providing notice to you. Any changes to such Fees take effect from the date you enter into a new Subscription Period.
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- 4.6 Where applicable, any tax (including goods or services tax), charge, impost, or duty payable in respect of this Agreement or the supply of any goods or service made under or in respect of this Agreement and any other taxes, duties or levies will be paid by you at the then-prevailing rate.
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- 4.7 By providing Real Creator with your credit card information, you authorise Real Creator to automatically charge your credit card for all applicable Fees, on a recurring basis. The frequency of these charges will be determined by your chosen Subscription Period and your use of Post-Production Services. The payment terms for such charges shall be stated on the Software at the time of purchase. You may cancel any future automatic charges in accordance with the terms and conditions of Real Creator's third-party payment provider. You remain liable for any unpaid Fees at the time of cancellation.
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- 5. Warranties
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- 5.1 Real Creator will use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimises errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by us or by third-party providers, or because of other causes beyond our reasonable control, but we shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption.
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- 5.2 Subject to your rights under the Australian Consumer Law and to the maximum extent permitted by law:
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- (a) no further warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance or fitness for purpose of the Services provided hereunder is given or assumed by Real Creator. In particular, we do not warrant:
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- (i) that the Services will be uninterrupted or error free;
- (ii) as to the results that may be obtained from use of the Services;
- (iii) that any third-party components of the Services, will be accurate or error free or that the Services will be compatible with any application, program or software not specifically identified as compatible by us;
- (iv) that content available on, or produced by or via, the Services is accurate, complete, reliable, current, error-free or suitable for any particular purpose; or
- (v) that the Services are or will be free from viruses, worm, trojan or other malicious code. You are responsible for taking precautions in this respect
- (i) that the Services will be uninterrupted or error free;
- (b) your exclusive remedy is limited, in our absolute discretion, to:
- (i) using all reasonable endeavours to rectify any non-conformance of the Services by repair (by way of a patch, workaround, correction or otherwise) within a reasonable period of time and at our own expense; or
- (ii) a refund of the Fees paid if, in our reasonable opinion, we are unable to rectify such non-conformance.
- 5.3 You acknowledge and accept that it is your sole responsibility to ensure that:
- (a) the facilities and functions of the Services meet your requirements;
- (b) the Services are appropriate for your specific circumstance; and
- (c) the use of the Services is in compliance with the laws and regulations of your jurisdiction.
- (a) the facilities and functions of the Services meet your requirements;
- 5.4 We do not purport to provide any legal, taxation or accountancy advice by providing the Service under this Agreement.
- 5.5 We will not be liable for any failure of the Services to provide any function not described in the documentation (provided online as part of the Services) or any failure attributable to:
- (a) any modification to the Services other than by Real Creator;
- (b) accident, abuse or misapplication of Services by you;
- (c) use of the Services with other software or equipment without Real Creator’s written consent;
- (d) use of other than the latest, unaltered current release of the Services; or
- (e) use other than in accordance with this Agreement.
- 6. Refunds
- 6.1 Real Creator offers refunds in accordance with the Australian Consumer Law and on the terms set out in this Agreement. Any benefits set out in this Agreement may apply in addition to consumer's rights under the Australian Consumer Law.
- 6.2 Real Creator will only provide you with a refund of Fees in accordance with Australian Consumer Law, or in the event Real Creator is unable to continue to provide the Services or if Real Creator makes a decision, in its discretion, that it is reasonable to do so. Where this occurs, the refund will be in the proportional to the issue with the relevant Service(s).
- 7. Intellectual Property
- 7.1 Where you own the copyright over your Media and upload such Media to the Software you will remain the owner of such copyright. Nothing in this Agreement affects your copyright over your Media.
- 7.2 Real Creator grants you a personal, non-exclusive, non-transferable, and revocable license to permit you and your Authorised Users to access and use the Website, the Software and the Services (including the Intellectual Property contained therein) during the Term. All other rights are expressly reserved by Real Creator.
- 7.3 All rights, title, or interest in and to the Website, the Software and the Services and any information or technology that may be provided to, or accessed by, you in connection with your use of the Website, the Software or the Services is owned, and will remain owned, by the Real Creator or its licensors (Provider IP). Using the Website, the Software or the Services does not transfer any ownership or rights, title or interest in and to the Provider IP. You must not represent to anyone or in any manner whatsoever that you are the proprietor of the Software and/or the Provider IP. All Intellectual Property discovered, developed or otherwise coming into existence as a result of, for the purposes of, or in connection with, the Software or the provision of any Services will automatically vest in, and are assigned to, Real Creator, including any enhancements, improvements and modifications to the Provider IP (but, for the avoidance of doubt, this excludes the copyright in respect of any Media which you own) (collectively, Developed IP).
- 7.4 You agree that Real Creator may refer to your business name, publish your logo and/or trade mark and make reference to you as a customer of Real Creator in any communications or publications for the purposes of marketing or promoting Real Creator’s business.
- 7.5 The Website, the Software, the Services and all of the related products (including but not limited to text, graphics, logos, button icons, video images, audio clips, Website code, scripts, design elements and interactive features) of Real Creator are subject to copyright. The material on the Website is protected by copyright under the laws of Australia and through international treaties. Real Creator retains all rights, title and interest in and to the Website, the Software, all trademarks, service marks and trade names. Nothing you do on or in relation to the Website will transfer any:
- (a) business name, trading name, domain name, trademark, industrial design, patent, registered design or copyright,
- (b) a right to use or exploit a business name, trading name, domain name, trademark or industrial design, or
- (c) a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process), to you.
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- (a) business name, trading name, domain name, trademark, industrial design, patent, registered design or copyright,
- 8. Acceptable use of the Software and Services
- 8.1 You must only use the Software and the Services in compliance with all applicable laws and regulations.
- 8.2 You are responsible for maintaining the security of your account, passwords and files, and for all uses of your account. You must not permit access to your account other than to an Authorised User or Real Creator.
- 8.3 You may not use the Software or Services if:
- (a) you are not of legal age to form a binding contract with Real Creator; or
- (b) you are a person barred from receiving the Services under the laws of any country in which you are resident or from which you use the Services.
- (a) you are not of legal age to form a binding contract with Real Creator; or
- 8.4 Real Creator reserves the right to suspend, cancel, or otherwise deny access to users and accounts who use a Service:
- (a) to engage in any act that would disrupt the access, availability, and security of Real Creator and other related Third-Party services, including but not limited to:
- (i) tampering with, reverse-engineering, decompiling, or disassembling our source code (including hacking our servers);
- (ii) modifying, disabling, or compromising the performance of Real Creator or other related Third-Party services;
- (iii) overwhelming, or attempting to overwhelm our infrastructure by imposing an unreasonably large load on our systems that consume extraordinary resources;
- (iv) compromising the integrity of our system, including probing, scanning and testing the vulnerability of our system unless expressly permitted in writing by an authorised representative of Real Creator;
- (v) sub-licencing or renting Services to third parties;
- (i) tampering with, reverse-engineering, decompiling, or disassembling our source code (including hacking our servers);
- (b) for any illegal purpose, or to violate any laws, including and without limitation to data, privacy, and export control laws;
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- (c) to stalk, harass or threaten users and any member of the public;
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- (d) to misrepresent or defraud any user or member of the public through phishing, spoofing, manipulating headers or other identifiers, impersonating anyone else, or falsely implying any sponsorship or association with Real Creator or any third party;
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- (e) to access or search any part of the Service, or any other Service owned by Real Creator other than our publicly supported interface; or
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- (f) to post, upload, share, or otherwise circulate content in violation of any content policy we may adopt from time to time.
- (a) to engage in any act that would disrupt the access, availability, and security of Real Creator and other related Third-Party services, including but not limited to:
- 8.5 You must not:
- (a) modify the Software or merge any aspect of the Software with another programme, record, reverse engineer, copy, duplicate, reproduce, create derivate works from, frame, download, display, transmit or distribute any of the Software, the source code of the Software or any documents, manuals or setup instructions provided with the Software or in relation to the Services;
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- (b) licence, sell, rent, lease, transfer, assign or otherwise commercially exploit the Software or the Services;
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- (c) engage in unauthorised access to or use of data, services, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures;
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- (d) access, store, distribute or transmit:
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- (i) viruses, worm, trojan or other malicious code that corrupts, degrades or disrupts the operation of the Software;
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- (ii) material that is unlawful, unethical, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive or a contravention of the rights of any third party;
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- (iii) material that facilitates illegal activity; or
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- (iv) material that abuses or causes damage or injury to any person or property;
- (e) provide Software login details or passwords, or otherwise provide access to the Software, to any unauthorised third party and you will take all reasonable steps to prevent unauthorised access to, or use of, the Software;
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- (f) share any features of the Software that are not publicly available with any unauthorised third party;
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- (g) engage in any conduct on the Software that is in breach of this Agreement (or any agreements mentioned therein); or
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- (h) encumber or allow the creation of any mortgage, charge, lien or other security interest in respect of the Software.
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- 9. Non-circumvention
- (a) any modification to the Services other than by Real Creator;
Where Real Creator introduces you to a Post-Production Provider, you agree to communicate with any such Post-Production Provider through the Website and make payments only through the Website for six months from the date you first identify or meet your Post-Production Provider on the Website. Breach of this clause constitutes a material breach of this Agreement and may result in the termination of this Agreement and your Account.
- 10. Security and Data
- 10.1 You must have the rights to any Customer Data or other content or data that you provide to us. If you provide us with another person’s personal information, confidential information or intellectual property to the Real Creator platform, you are responsible for obtaining all consent to provide and store that data with us.
- 10.2 Subject to the terms of this Agreement, you shall retain ownership of any pre-existing rights to your Customer Data.
- 10.3 Real Creator shall have the right to collect and analyse data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Real Creator will be free (during and after the Term) to:
- (a) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and
- (b) disclose such data solely in aggregate or other de-identified form in connection with its business.
- (a) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and
- 10.4 We have no obligation to monitor any data or content uploaded to the Website. However, we reserve the right to the discretion of removing your data, suspending, or terminating your access to our Services if we consider in good faith that your data is in breach of any applicable law.
- 10.5 Nothing in these Terms prevents either party from disclosing information or data to the extent required by law. This includes, but is not limited to, subpoenas or court orders. We will take commercially reasonable efforts to notify you when required to do so.
- 11. Liability
- 11.1 Nothing in this Agreement limits or excludes any guarantees, warranties, representations, or conditions implied by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded. Subject to this clause:
- (a) all guarantees, warranties or representations which are not expressly stated in is Agreement are excluded;
- (b) Real Creator will not be liable for any special, indirect or consequential loss or damage, loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Services or this Agreement (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise; and
- (c) Real Creator’s total liability arising out of or in connection with the Website, Services or this Agreement, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the value of resupplying the Services to you.
- (a) all guarantees, warranties or representations which are not expressly stated in is Agreement are excluded;
- 11.2 Use of the Website, Software and the Services is at your own risk. None of the affiliates, directors, officers, employees, agents, contributors, and licensors of Real Creator is liable for any loss or damage you might suffer as a result of any of the following:
- (a) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third-party conduct, or theft, destruction, alteration or unauthorised access to records;
- (b) the accuracy, suitability or currency of any information on the Website, the Software, the Services, or any of its Services related products (including third-party material and advertisements on the Website);
- (c) costs incurred as a result of you using the Website, the Software, the Services or any of the products of Real Creator; and
- (d) the Services or operation in respect to links which are provided for your convenience.
- (a) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third-party conduct, or theft, destruction, alteration or unauthorised access to records;
- 11.3 You indemnify Real Creator, its affiliates, employees, and agents from and against all loss, liabilities, costs, expenses, loss, and damage (including legal fees and collection fees) (together, Loss) incurred, suffered or arising out of or in connection with:
- (a) your content and Customer Data;
- (b) your negligence; and/or
- (c) your breach of this Agreement,
- (a) your content and Customer Data;
save to the extent such Loss is contributed to by Real Creator.
12. Third-Party Integrations
The Website and Software allows you to integrate and utilise Third-Party services or applications (Third-Party Integrations). While these integrations are provided to enhance your experience and the functionality of the Website and Software, Real Creator makes no representations or warranties regarding the services provided by Third-Parties. Real Creator does not control, and therefore cannot be held liable for, the performance, compatibility, legality, or any other aspect of Third-Party Integrations. The use of any Third-Party Integration is at your own risk and subject to the terms and conditions and privacy policies of the Third-Party provider. Real Creator is not responsible for any loss, damage, or other liabilities arising from your use of any Third-Party Integrations. You must review the Third-Party provider’s policies and terms before using their services with our Software.
- 13. Termination
- 13.1 This Agreement will continue to apply until terminated by either you or by Real Creator as set out below.
- 13.2 If you want to terminate this Agreement, you may do so by choosing to end your Subscription Services by giving notice via the Software, following which your Subscription Services shall terminate at the completion of your current Subscription Period. This Agreement shall then terminate at the expiry of the Account Retention Period.
- 13.3 Real Creator may terminate this Agreement upon notice to you where:
- (a) you do not renew the Subscription Services at the end of the Subscription Period;
- (b) you have materially breached this Agreement;
- (c) Real Creator is required to do so by law; or
- (d) the provision of the Website, Software or Services to you by Real Creator is no longer commercially viable.
- (a) you do not renew the Subscription Services at the end of the Subscription Period;
- 13.4 Except as otherwise required by law, if your Account is closed, then following the Account Retention Period, you will no longer have access to information or material you kept on the Website and any content stored in your Account may be deleted, for which Real Creator expressly disclaims liability. Real Creator may retain some or all of your Account information as permitted or required by applicable law.
13.5 Real Creator may shorten the Account Retention Period if it is entitled to terminate this Agreement due to your material breach of this Agreement or where it is required to do so by law.
14. Dispute Resolution
14.1 If a dispute arises out of or relates to this Agreement, the Website, the Software or the Services, either party may not commence any court proceedings in relation to the dispute, unless the following clauses below have been complied with (except where urgent interlocutory relief is sought).
14.2 A party to the Agreement claiming a dispute has arisen (Dispute), must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.
14.3 On receipt of that notice (Notice) by that other party, the parties to the Agreement must:
- (a) within 28 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation;
- (b) if for any reason whatsoever, 28 days after the date of the Notice, the Dispute has not been resolved, the parties must either agree upon a mediator or request that an appropriate mediator be appointed by the Resolution Institute, Australia;
- (c) the parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a precondition to the mediation commencing;
- (d) the parties must each pay their own costs associated with the mediation; and
- (e) the mediation will be held in Brisbane, Australia.
- (a) within 28 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation;
- 14.4 If two (2) months have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so. Following which, either party may commence court proceedings in respect of the Dispute.
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- 15. General
- 15.1 Except as otherwise permitted by this Agreement, no variation will be effective unless in writing and signed by both parties.
- 15.2 Any notices to us should be sent, in writing, to Real Creator via support@realcreator.co or such replacement email address as published on the Website from time to time. You agree we may serve notice on you by sending an email to the email address you provide when creating an Account.
- 15.3 The Agreement shall be binding to the benefit of the parties hereto and their successors and assigns.
- 15.4 If any part of this Agreement is found to be void or unenforceable by a court of competent jurisdiction, that part shall be severed and the rest of this Agreement shall remain in force.
- 15.5 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
- 15.6 This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in writing signed by both parties, except as otherwise provided in this Agreement.
- 15.7 No agency, partnership, joint venture, or employment is created as a result of this Agreement.
- 15.8 The following clauses survive termination of this Agreement: Clause 9 (Non-Circumvention), Clause 11 (Liability), Clause 14 (Dispute Resolution), Clause 15 (General).
- 15.9 This Agreement is governed by the laws of Queensland, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Website, Services or the Agreement shall be governed, interpreted and construed by, under and pursuant to the laws of Queensland, Australia without reference to conflict of law principles, notwithstanding mandatory rules.
- 15.10 In the event of any dispute arising out of or in relation to the Website, you agree that the exclusive venue for resolving any dispute shall be in the courts of Queensland, Australia.
- 16. Definitions
In this Agreement, the following words have the following meanings:
Account has the meaning given in clause 2.
Account Retention Period means the period of 30 days from the completion of your final Subscription Period.
Authorised User means the employees, temporary employees, and independent contractors of a user with a valid subscription to the Subscription Services in each case who have been added to the Account as users.
Customer Data means solely the specific categories of data that you are expressly permitted by Real Creator to input, upload, or transmit to the Software, as detailed within the Software’s user interface, documentation, or as otherwise communicated by Real Creator.
Developed IP has the meaning given in clause 7.
Dispute has the meaning given in clause 14.
Fees has the meaning given in clause 3.
Intellectual Property means any copyrights, patents, trade marks, service marks, trade names, designs, and similar industrial, commercial and intellectual property (whether registered or not and whether protected by statute or not and including formulae, recipes and know-how).
Loss has the meaning given in clause 11.
Media means photography, 360 degree and video content and any additional specific media that Real Creator advertises as being offered on the Website from time to time.
Notice has the meaning given in clause 14.
Post-Production Provider has the meaning given in clause 3.
Post-Production Provider Fees has the meaning given in clause 3.
Production Hub Services has the meaning given in clause 3.
Production Hub Service Fees has the meaning given in clause 3.
Provider IP has the meaning given in clause 7.
Real Creator, we, our or us refers to Real Creator Pty Ltd.
Services has the meaning given in clause 3.
Software has the meaning given in clause 2.
Subscription Fee has the meaning given in clause 2.
Subscription Services has the meaning given in clause 2.
Subscription Period has the meaning given in clause 2.
Term means the date you register an Account to the end of your Account Retention Period.
Third-Party includes any service provider that Real Creator engages, which may include Xero, Google Calendar, Stripe and Quick Books.
Third-Party Integrations has the meaning given in clause 12.
Website means www.realcreator.co
You, your or yours refers to the natural person or entity that enters this Agreement with Real Creator.
- 1. Acceptance of the terms and conditions of this Agreement
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- 1.1 Welcome to www.realcreator.co (Website). The Website is operated by Real Creator Pty Ltd (Real Creator or we, us, our).
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- 1.2 Please read these terms and conditions carefully. By clicking agree to these terms you agree to enter this Agreement with Real Creator and to be bound by these terms and conditions set out herein. We recommend you keep a copy of this Agreement for your records.
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- 1.3 Real Creator reserves the right to change any of the terms of this Agreement, acting reasonably, by providing notice to you. Any changes to this Agreement take effect from the date you enter into a new Subscription Period.
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- 2. About the Subscription Services
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- 2.1 Real Creator offers software that allows users to manage their own Media services in a cloud environment (Software). You are required to register for an account through the Website so you can access the Software (Account). Real Creator may, in its discretion, offer first-time users a demonstration Account trial in which they may use the demonstration version of the Software.
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- 2.2 As part of the Account registration process you are required to provide personal information about yourself (such as identification or contact details), including but not limited to your full name, e-mail address and phone number. You warrant that any information you give to Real Creator in the course of completing the registration process will be correct and up to date.
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- 2.3 Once you register an Account, you must purchase a subscription in order to use the Software (Subscription Services) and pay the applicable fee advertised on the Website at the time of purchase for the selected subscription (Subscription Fee). Real Creator may, in its discretion, offer first-time users a 30-day free trial in which they may use the Subscription Services without payment of the Subscription Fee.
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- 2.4 After purchasing the subscription, you will be granted access to the Subscription Services from the time you have paid the Subscription Fee until your chosen subscription period expires (Subscription Period).
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- 2.5 Real Creator will use reasonable endeavours to provide you with the Subscription Services in accordance with this Agreement. It is your responsibility to ensure that the subscription you elect to purchase is suitable for your use.
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- 2.6 You may use the Subscription Services in the course of providing your own Media services to your own clients. Real Creator is not party to any agreement between you and your own client(s). Real Creator is not liable for any loss you suffer if any of your clients makes any claim against you in respect of your own services.
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- 3. About the Production Hub Services
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- 3.1 The Software includes a platform that allows you to procure the services of third-party suppliers (Production Hub Services, and together with the Subscription Services, the Services) who supply post-production Media services.
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- 3.2 Real Creator will use reasonable endeavours to provide you with the Production Hub Services in accordance with this Agreement.
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- 3.3 You may enter into a separate agreement with the relevant third-party supplier who is to supply the post-production services (Post-Production Provider) via the Software.
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- 3.4 Real Creator does not supply the post-production services and is not liable in respect of such services (including, but not limited to, any quality issues in such services). You acknowledge and agree that Real Creator does not supervise, direct, control, or monitor Post-Production Providers in the performance of any contractual obligations they may have under a direct agreement with you and agree that:
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- (a) Real Creator is not responsible for ensuring the accuracy or legality of any content produced by the Post-Production Provider;
- (b) Real Creator is not responsible for the offering, performance, or procurement of Post-Production Provider’s services;
- (c) Real Creator does not make any representations about or guarantee any particular Post-Production Provider’s offered services; and
- (d) nothing will create an employment or joint venture relationship between Real Creator and any Post-Production Provider offering services.
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- 3.5 The Post-Production Provider will charge fees to you (Post-Production Provider Fees). Real Creator may act as the agent of the Post-Production Provider solely to collect such Post-Production Provider Fees on behalf of each Post-Production Provider at the frequency set on the Website from time to time.
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- 3.6 Real Creator will charge you a service fee of 7.5% in respect of any Post-Production Provider Fees (Production Hub Service Fees, and together with the Subscription Fees, the Fees).
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- 4. Payments
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- 4.1 You agree to pay all Fees arising under this Agreement. You further agree to pay Post-Production Provider Fees to Real Creator as agent for the relevant Post-Production Provider.
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- 4.2 You agree that any amounts that Real Creator owes you related to this Agreement may be set-off against amounts you owe Real Creator.
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- 4.3 Payments may be made using third-party applications and services not owned, operated, or otherwise controlled by Real Creator. You acknowledge and warrant that you will read and agree to be bound by the terms and conditions of the applicable third-party payment applications and services you choose to use as a payment method for the Services. You acknowledge and agree that Real Creator will not be liable for any losses or damage arising from the operations of third-party payment applications and services.
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- 4.4 Where a request for the payment of the Fees is unpaid by you for any reason, then you are liable for any interest and costs, including banking fees and charges, incurred by Real Creator. Real Creator may charge interest on unpaid Fees at a rate of 10% p.a.
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- 4.5 You agree and acknowledge that Real Creator may vary the Fees at any time, acting reasonably, by providing notice to you. Any changes to such Fees take effect from the date you enter into a new Subscription Period.
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- 4.6 Where applicable, any tax (including goods or services tax), charge, impost, or duty payable in respect of this Agreement or the supply of any goods or service made under or in respect of this Agreement and any other taxes, duties or levies will be paid by you at the then-prevailing rate.
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- 5. Warranties
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- 5.1 Real Creator will use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimises errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by us or by third-party providers, or because of other causes beyond our reasonable control, but we shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption.
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- 5.2 Subject to your rights under the Australian Consumer Law and to the maximum extent permitted by law:
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- (a) no further warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance or fitness for purpose of the Services provided hereunder is given or assumed by Real Creator. In particular, we do not warrant:
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- (i) that the Services will be uninterrupted or error free;
- (ii) as to the results that may be obtained from use of the Services;
- (iii) that any third-party components of the Services, will be accurate or error free or that the Services will be compatible with any application, program or software not specifically identified as compatible by us;
- (iv) that content available on, or produced by or via, the Services is accurate, complete, reliable, current, error-free or suitable for any particular purpose; or
- (v) that the Services are or will be free from viruses, worm, trojan or other malicious code. You are responsible for taking precautions in this respect
- (i) that the Services will be uninterrupted or error free;
- (b) your exclusive remedy is limited, in our absolute discretion, to:
- (i) using all reasonable endeavours to rectify any non-conformance of the Services by repair (by way of a patch, workaround, correction or otherwise) within a reasonable period of time and at our own expense; or
- (ii) a refund of the Fees paid if, in our reasonable opinion, we are unable to rectify such non-conformance.
- 5.3 You acknowledge and accept that it is your sole responsibility to ensure that:
- (a) the facilities and functions of the Services meet your requirements;
- (b) the Services are appropriate for your specific circumstance; and
- (c) the use of the Services is in compliance with the laws and regulations of your jurisdiction.
- (a) the facilities and functions of the Services meet your requirements;
- 5.4 We do not purport to provide any legal, taxation or accountancy advice by providing the Service under this Agreement.
- 5.5 We will not be liable for any failure of the Services to provide any function not described in the documentation (provided online as part of the Services) or any failure attributable to:
- (a) any modification to the Services other than by Real Creator;
- (b) accident, abuse or misapplication of Services by you;
- (c) use of the Services with other software or equipment without Real Creator’s written consent;
- (d) use of other than the latest, unaltered current release of the Services; or
- (e) use other than in accordance with this Agreement.
- 6. Refunds
- 6.1 Real Creator offers refunds in accordance with the Australian Consumer Law and on the terms set out in this Agreement. Any benefits set out in this Agreement may apply in addition to consumer's rights under the Australian Consumer Law.
- 6.2 Real Creator will only provide you with a refund of Fees in accordance with Australian Consumer Law, or in the event Real Creator is unable to continue to provide the Services or if Real Creator makes a decision, in its discretion, that it is reasonable to do so. Where this occurs, the refund will be in the proportional to the issue with the relevant Service(s).
- 7. Intellectual Property
- 7.1 Where you own the copyright over your Media and upload such Media to the Software you will remain the owner of such copyright. Nothing in this Agreement affects your copyright over your Media.
- 7.2 Real Creator grants you a personal, non-exclusive, non-transferable, and revocable license to permit you and your Authorised Users to access and use the Website, the Software and the Services (including the Intellectual Property contained therein) during the Term. All other rights are expressly reserved by Real Creator.
- 7.3 All rights, title, or interest in and to the Website, the Software and the Services and any information or technology that may be provided to, or accessed by, you in connection with your use of the Website, the Software or the Services is owned, and will remain owned, by the Real Creator or its licensors (Provider IP). Using the Website, the Software or the Services does not transfer any ownership or rights, title or interest in and to the Provider IP. You must not represent to anyone or in any manner whatsoever that you are the proprietor of the Software and/or the Provider IP. All Intellectual Property discovered, developed or otherwise coming into existence as a result of, for the purposes of, or in connection with, the Software or the provision of any Services will automatically vest in, and are assigned to, Real Creator, including any enhancements, improvements and modifications to the Provider IP (but, for the avoidance of doubt, this excludes the copyright in respect of any Media which you own) (collectively, Developed IP).
- 7.4 You agree that Real Creator may refer to your business name, publish your logo and/or trade mark and make reference to you as a customer of Real Creator in any communications or publications for the purposes of marketing or promoting Real Creator’s business.
- 7.5 The Website, the Software, the Services and all of the related products (including but not limited to text, graphics, logos, button icons, video images, audio clips, Website code, scripts, design elements and interactive features) of Real Creator are subject to copyright. The material on the Website is protected by copyright under the laws of Australia and through international treaties. Real Creator retains all rights, title and interest in and to the Website, the Software, all trademarks, service marks and trade names. Nothing you do on or in relation to the Website will transfer any:
- (a) business name, trading name, domain name, trademark, industrial design, patent, registered design or copyright,
- (b) a right to use or exploit a business name, trading name, domain name, trademark or industrial design, or
- (c) a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process), to you.
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- (a) business name, trading name, domain name, trademark, industrial design, patent, registered design or copyright,
- 8. Acceptable use of the Software and Services
- 8.1 You must only use the Software and the Services in compliance with all applicable laws and regulations.
- 8.2 You are responsible for maintaining the security of your account, passwords and files, and for all uses of your account. You must not permit access to your account other than to an Authorised User or Real Creator.
- 8.3 You may not use the Software or Services if:
- (a) you are not of legal age to form a binding contract with Real Creator; or
- (b) you are a person barred from receiving the Services under the laws of any country in which you are resident or from which you use the Services.
- (a) you are not of legal age to form a binding contract with Real Creator; or
- 8.4 Real Creator reserves the right to suspend, cancel, or otherwise deny access to users and accounts who use a Service:
- (a) to engage in any act that would disrupt the access, availability, and security of Real Creator and other related Third-Party services, including but not limited to:
- (i) tampering with, reverse-engineering, decompiling, or disassembling our source code (including hacking our servers);
- (ii) modifying, disabling, or compromising the performance of Real Creator or other related Third-Party services;
- (iii) overwhelming, or attempting to overwhelm our infrastructure by imposing an unreasonably large load on our systems that consume extraordinary resources;
- (iv) compromising the integrity of our system, including probing, scanning and testing the vulnerability of our system unless expressly permitted in writing by an authorised representative of Real Creator;
- (v) sub-licencing or renting Services to third parties;
- (i) tampering with, reverse-engineering, decompiling, or disassembling our source code (including hacking our servers);
- (b) for any illegal purpose, or to violate any laws, including and without limitation to data, privacy, and export control laws;
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- (c) to stalk, harass or threaten users and any member of the public;
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- (d) to misrepresent or defraud any user or member of the public through phishing, spoofing, manipulating headers or other identifiers, impersonating anyone else, or falsely implying any sponsorship or association with Real Creator or any third party;
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- (e) to access or search any part of the Service, or any other Service owned by Real Creator other than our publicly supported interface; or
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- (f) to post, upload, share, or otherwise circulate content in violation of any content policy we may adopt from time to time.
- (a) to engage in any act that would disrupt the access, availability, and security of Real Creator and other related Third-Party services, including but not limited to:
- 8.5 You must not:
- (a) modify the Software or merge any aspect of the Software with another programme, record, reverse engineer, copy, duplicate, reproduce, create derivate works from, frame, download, display, transmit or distribute any of the Software, the source code of the Software or any documents, manuals or setup instructions provided with the Software or in relation to the Services;
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- (b) licence, sell, rent, lease, transfer, assign or otherwise commercially exploit the Software or the Services;
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- (c) engage in unauthorised access to or use of data, services, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures;
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- (d) access, store, distribute or transmit:
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- (i) viruses, worm, trojan or other malicious code that corrupts, degrades or disrupts the operation of the Software;
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- (ii) material that is unlawful, unethical, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive or a contravention of the rights of any third party;
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- (iii) material that facilitates illegal activity; or
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- (iv) material that abuses or causes damage or injury to any person or property;
- (e) provide Software login details or passwords, or otherwise provide access to the Software, to any unauthorised third party and you will take all reasonable steps to prevent unauthorised access to, or use of, the Software;
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- (f) share any features of the Software that are not publicly available with any unauthorised third party;
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- (g) engage in any conduct on the Software that is in breach of this Agreement (or any agreements mentioned therein); or
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- (h) encumber or allow the creation of any mortgage, charge, lien or other security interest in respect of the Software.
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- 9. Non-circumvention
- (a) any modification to the Services other than by Real Creator;
Where Real Creator introduces you to a Post-Production Provider, you agree to communicate with any such Post-Production Provider through the Website and make payments only through the Website for six months from the date you first identify or meet your Post-Production Provider on the Website. Breach of this clause constitutes a material breach of this Agreement and may result in the termination of this Agreement and your Account.
- 10. Security and Data
- 10.1 You must have the rights to any Customer Data or other content or data that you provide to us. If you provide us with another person’s personal information, confidential information or intellectual property to the Real Creator platform, you are responsible for obtaining all consent to provide and store that data with us.
- 10.2 Subject to the terms of this Agreement, you shall retain ownership of any pre-existing rights to your Customer Data.
- 10.3 Real Creator shall have the right to collect and analyse data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Real Creator will be free (during and after the Term) to:
- (a) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and
- (b) disclose such data solely in aggregate or other de-identified form in connection with its business.
- (a) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and
- 10.4 We have no obligation to monitor any data or content uploaded to the Website. However, we reserve the right to the discretion of removing your data, suspending, or terminating your access to our Services if we consider in good faith that your data is in breach of any applicable law.
- 10.5 Nothing in these Terms prevents either party from disclosing information or data to the extent required by law. This includes, but is not limited to, subpoenas or court orders. We will take commercially reasonable efforts to notify you when required to do so.
- 11. Liability
- 11.1 Nothing in this Agreement limits or excludes any guarantees, warranties, representations, or conditions implied by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded. Subject to this clause:
- (a) all guarantees, warranties or representations which are not expressly stated in is Agreement are excluded;
- (b) Real Creator will not be liable for any special, indirect or consequential loss or damage, loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Services or this Agreement (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise; and
- (c) Real Creator’s total liability arising out of or in connection with the Website, Services or this Agreement, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the value of resupplying the Services to you.
- (a) all guarantees, warranties or representations which are not expressly stated in is Agreement are excluded;
- 11.2 Use of the Website, Software and the Services is at your own risk. None of the affiliates, directors, officers, employees, agents, contributors, and licensors of Real Creator is liable for any loss or damage you might suffer as a result of any of the following:
- (a) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third-party conduct, or theft, destruction, alteration or unauthorised access to records;
- (b) the accuracy, suitability or currency of any information on the Website, the Software, the Services, or any of its Services related products (including third-party material and advertisements on the Website);
- (c) costs incurred as a result of you using the Website, the Software, the Services or any of the products of Real Creator; and
- (d) the Services or operation in respect to links which are provided for your convenience.
- (a) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third-party conduct, or theft, destruction, alteration or unauthorised access to records;
- 11.3 You indemnify Real Creator, its affiliates, employees, and agents from and against all loss, liabilities, costs, expenses, loss, and damage (including legal fees and collection fees) (together, Loss) incurred, suffered or arising out of or in connection with:
- (a) your content and Customer Data;
- (b) your negligence; and/or
- (c) your breach of this Agreement,
- (a) your content and Customer Data;
save to the extent such Loss is contributed to by Real Creator.
12. Third-Party Integrations
The Website and Software allows you to integrate and utilise Third-Party services or applications (Third-Party Integrations). While these integrations are provided to enhance your experience and the functionality of the Website and Software, Real Creator makes no representations or warranties regarding the services provided by Third-Parties. Real Creator does not control, and therefore cannot be held liable for, the performance, compatibility, legality, or any other aspect of Third-Party Integrations. The use of any Third-Party Integration is at your own risk and subject to the terms and conditions and privacy policies of the Third-Party provider. Real Creator is not responsible for any loss, damage, or other liabilities arising from your use of any Third-Party Integrations. You must review the Third-Party provider’s policies and terms before using their services with our Software.
- 13. Termination
- 13.1 This Agreement will continue to apply until terminated by either you or by Real Creator as set out below.
- 13.2 If you want to terminate this Agreement, you may do so by choosing to end your Subscription Services by giving notice via the Software, following which your Subscription Services shall terminate at the completion of your current Subscription Period. This Agreement shall then terminate at the expiry of the Account Retention Period.
- 13.3 Real Creator may terminate this Agreement upon notice to you where:
- (a) you do not renew the Subscription Services at the end of the Subscription Period;
- (b) you have materially breached this Agreement;
- (c) Real Creator is required to do so by law; or
- (d) the provision of the Website, Software or Services to you by Real Creator is no longer commercially viable.
- (a) you do not renew the Subscription Services at the end of the Subscription Period;
- 13.4 Except as otherwise required by law, if your Account is closed, then following the Account Retention Period, you will no longer have access to information or material you kept on the Website and any content stored in your Account may be deleted, for which Real Creator expressly disclaims liability. Real Creator may retain some or all of your Account information as permitted or required by applicable law.
13.5 Real Creator may shorten the Account Retention Period if it is entitled to terminate this Agreement due to your material breach of this Agreement or where it is required to do so by law.
14. Dispute Resolution
14.1 If a dispute arises out of or relates to this Agreement, the Website, the Software or the Services, either party may not commence any court proceedings in relation to the dispute, unless the following clauses below have been complied with (except where urgent interlocutory relief is sought).
14.2 A party to the Agreement claiming a dispute has arisen (Dispute), must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.
14.3 On receipt of that notice (Notice) by that other party, the parties to the Agreement must:
- (a) within 28 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation;
- (b) if for any reason whatsoever, 28 days after the date of the Notice, the Dispute has not been resolved, the parties must either agree upon a mediator or request that an appropriate mediator be appointed by the Resolution Institute, Australia;
- (c) the parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a precondition to the mediation commencing;
- (d) the parties must each pay their own costs associated with the mediation; and
- (e) the mediation will be held in Brisbane, Australia.
- (a) within 28 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation;
- 14.4 If two (2) months have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so. Following which, either party may commence court proceedings in respect of the Dispute.
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- 15. General
- 15.1 Except as otherwise permitted by this Agreement, no variation will be effective unless in writing and signed by both parties.
- 15.2 Any notices to us should be sent, in writing, to Real Creator via support@realcreator.co or such replacement email address as published on the Website from time to time. You agree we may serve notice on you by sending an email to the email address you provide when creating an Account.
- 15.3 The Agreement shall be binding to the benefit of the parties hereto and their successors and assigns.
- 15.4 If any part of this Agreement is found to be void or unenforceable by a court of competent jurisdiction, that part shall be severed and the rest of this Agreement shall remain in force.
- 15.5 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
- 15.6 This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in writing signed by both parties, except as otherwise provided in this Agreement.
- 15.7 No agency, partnership, joint venture, or employment is created as a result of this Agreement.
- 15.8 The following clauses survive termination of this Agreement: Clause 9 (Non-Circumvention), Clause 11 (Liability), Clause 14 (Dispute Resolution), Clause 15 (General).
- 15.9 This Agreement is governed by the laws of Queensland, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Website, Services or the Agreement shall be governed, interpreted and construed by, under and pursuant to the laws of Queensland, Australia without reference to conflict of law principles, notwithstanding mandatory rules.
- 15.10 In the event of any dispute arising out of or in relation to the Website, you agree that the exclusive venue for resolving any dispute shall be in the courts of Queensland, Australia.
- 16. Definitions
In this Agreement, the following words have the following meanings:
Account has the meaning given in clause 2.
Account Retention Period means the period of 30 days from the completion of your final Subscription Period.
Authorised User means the employees, temporary employees, and independent contractors of a user with a valid subscription to the Subscription Services in each case who have been added to the Account as users.
Customer Data means solely the specific categories of data that you are expressly permitted by Real Creator to input, upload, or transmit to the Software, as detailed within the Software’s user interface, documentation, or as otherwise communicated by Real Creator.
Developed IP has the meaning given in clause 7.
Dispute has the meaning given in clause 14.
Fees has the meaning given in clause 3.
Intellectual Property means any copyrights, patents, trade marks, service marks, trade names, designs, and similar industrial, commercial and intellectual property (whether registered or not and whether protected by statute or not and including formulae, recipes and know-how).
Loss has the meaning given in clause 11.
Media means photography, 360 degree and video content and any additional specific media that Real Creator advertises as being offered on the Website from time to time.
Notice has the meaning given in clause 14.
Post-Production Provider has the meaning given in clause 3.
Post-Production Provider Fees has the meaning given in clause 3.
Production Hub Services has the meaning given in clause 3.
Production Hub Service Fees has the meaning given in clause 3.
Provider IP has the meaning given in clause 7.
Real Creator, we, our or us refers to Real Creator Pty Ltd.
Services has the meaning given in clause 3.
Software has the meaning given in clause 2.
Subscription Fee has the meaning given in clause 2.
Subscription Services has the meaning given in clause 2.
Subscription Period has the meaning given in clause 2.
Term means the date you register an Account to the end of your Account Retention Period.
Third-Party includes any service provider that Real Creator engages, which may include Xero, Google Calendar, Stripe and Quick Books.
Third-Party Integrations has the meaning given in clause 12.
Website means www.realcreator.co
You, your or yours refers to the natural person or entity that enters this Agreement with Real Creator.
- 1. Acceptance of the terms and conditions of this Agreement
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- 1.1 Welcome to www.realcreator.co (Website). The Website is operated by Real Creator Pty Ltd (Real Creator or we, us, our).
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- 1.2 Please read these terms and conditions carefully. By clicking agree to these terms you agree to enter this Agreement with Real Creator and to be bound by these terms and conditions set out herein. We recommend you keep a copy of this Agreement for your records.
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- 1.3 Real Creator reserves the right to change any of the terms of this Agreement, acting reasonably, by providing notice to you. Any changes to this Agreement take effect from the date you enter into a new Subscription Period.
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- 2. About the Subscription Services
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- 2.1 Real Creator offers software that allows users to manage their own Media services in a cloud environment (Software). You are required to register for an account through the Website so you can access the Software (Account). Real Creator may, in its discretion, offer first-time users a demonstration Account trial in which they may use the demonstration version of the Software.
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- 2.2 As part of the Account registration process you are required to provide personal information about yourself (such as identification or contact details), including but not limited to your full name, e-mail address and phone number. You warrant that any information you give to Real Creator in the course of completing the registration process will be correct and up to date.
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- 2.3 Once you register an Account, you must purchase a subscription in order to use the Software (Subscription Services) and pay the applicable fee advertised on the Website at the time of purchase for the selected subscription (Subscription Fee). Real Creator may, in its discretion, offer first-time users a 30-day free trial in which they may use the Subscription Services without payment of the Subscription Fee.
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- 2.4 After purchasing the subscription, you will be granted access to the Subscription Services from the time you have paid the Subscription Fee until your chosen subscription period expires (Subscription Period).
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- 2.5 Real Creator will use reasonable endeavours to provide you with the Subscription Services in accordance with this Agreement. It is your responsibility to ensure that the subscription you elect to purchase is suitable for your use.
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- 2.6 You may use the Subscription Services in the course of providing your own Media services to your own clients. Real Creator is not party to any agreement between you and your own client(s). Real Creator is not liable for any loss you suffer if any of your clients makes any claim against you in respect of your own services.
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- 3. About the Production Hub Services
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- 3.1 The Software includes a platform that allows you to procure the services of third-party suppliers (Production Hub Services, and together with the Subscription Services, the Services) who supply post-production Media services.
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- 3.2 Real Creator will use reasonable endeavours to provide you with the Production Hub Services in accordance with this Agreement.
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- 3.3 You may enter into a separate agreement with the relevant third-party supplier who is to supply the post-production services (Post-Production Provider) via the Software.
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- 3.4 Real Creator does not supply the post-production services and is not liable in respect of such services (including, but not limited to, any quality issues in such services). You acknowledge and agree that Real Creator does not supervise, direct, control, or monitor Post-Production Providers in the performance of any contractual obligations they may have under a direct agreement with you and agree that:
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- (a) Real Creator is not responsible for ensuring the accuracy or legality of any content produced by the Post-Production Provider;
- (b) Real Creator is not responsible for the offering, performance, or procurement of Post-Production Provider’s services;
- (c) Real Creator does not make any representations about or guarantee any particular Post-Production Provider’s offered services; and
- (d) nothing will create an employment or joint venture relationship between Real Creator and any Post-Production Provider offering services.
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- 3.5 The Post-Production Provider will charge fees to you (Post-Production Provider Fees). Real Creator may act as the agent of the Post-Production Provider solely to collect such Post-Production Provider Fees on behalf of each Post-Production Provider at the frequency set on the Website from time to time.
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- 3.6 Real Creator will charge you a service fee of 7.5% in respect of any Post-Production Provider Fees (Production Hub Service Fees, and together with the Subscription Fees, the Fees).
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- 4. Payments
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- 4.1 You agree to pay all Fees arising under this Agreement. You further agree to pay Post-Production Provider Fees to Real Creator as agent for the relevant Post-Production Provider.
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- 4.2 You agree that any amounts that Real Creator owes you related to this Agreement may be set-off against amounts you owe Real Creator.
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- 4.3 Payments may be made using third-party applications and services not owned, operated, or otherwise controlled by Real Creator. You acknowledge and warrant that you will read and agree to be bound by the terms and conditions of the applicable third-party payment applications and services you choose to use as a payment method for the Services. You acknowledge and agree that Real Creator will not be liable for any losses or damage arising from the operations of third-party payment applications and services.
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- 4.4 Where a request for the payment of the Fees is unpaid by you for any reason, then you are liable for any interest and costs, including banking fees and charges, incurred by Real Creator. Real Creator may charge interest on unpaid Fees at a rate of 10% p.a.
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- 4.5 You agree and acknowledge that Real Creator may vary the Fees at any time, acting reasonably, by providing notice to you. Any changes to such Fees take effect from the date you enter into a new Subscription Period.
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- 4.6 Where applicable, any tax (including goods or services tax), charge, impost, or duty payable in respect of this Agreement or the supply of any goods or service made under or in respect of this Agreement and any other taxes, duties or levies will be paid by you at the then-prevailing rate.
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- 5. Warranties
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- 5.1 Real Creator will use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimises errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by us or by third-party providers, or because of other causes beyond our reasonable control, but we shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption.
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- 5.2 Subject to your rights under the Australian Consumer Law and to the maximum extent permitted by law:
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- (a) no further warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance or fitness for purpose of the Services provided hereunder is given or assumed by Real Creator. In particular, we do not warrant:
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- (i) that the Services will be uninterrupted or error free;
- (ii) as to the results that may be obtained from use of the Services;
- (iii) that any third-party components of the Services, will be accurate or error free or that the Services will be compatible with any application, program or software not specifically identified as compatible by us;
- (iv) that content available on, or produced by or via, the Services is accurate, complete, reliable, current, error-free or suitable for any particular purpose; or
- (v) that the Services are or will be free from viruses, worm, trojan or other malicious code. You are responsible for taking precautions in this respect
- (i) that the Services will be uninterrupted or error free;
- (b) your exclusive remedy is limited, in our absolute discretion, to:
- (i) using all reasonable endeavours to rectify any non-conformance of the Services by repair (by way of a patch, workaround, correction or otherwise) within a reasonable period of time and at our own expense; or
- (ii) a refund of the Fees paid if, in our reasonable opinion, we are unable to rectify such non-conformance.
- 5.3 You acknowledge and accept that it is your sole responsibility to ensure that:
- (a) the facilities and functions of the Services meet your requirements;
- (b) the Services are appropriate for your specific circumstance; and
- (c) the use of the Services is in compliance with the laws and regulations of your jurisdiction.
- (a) the facilities and functions of the Services meet your requirements;
- 5.4 We do not purport to provide any legal, taxation or accountancy advice by providing the Service under this Agreement.
- 5.5 We will not be liable for any failure of the Services to provide any function not described in the documentation (provided online as part of the Services) or any failure attributable to:
- (a) any modification to the Services other than by Real Creator;
- (b) accident, abuse or misapplication of Services by you;
- (c) use of the Services with other software or equipment without Real Creator’s written consent;
- (d) use of other than the latest, unaltered current release of the Services; or
- (e) use other than in accordance with this Agreement.
- 6. Refunds
- 6.1 Real Creator offers refunds in accordance with the Australian Consumer Law and on the terms set out in this Agreement. Any benefits set out in this Agreement may apply in addition to consumer's rights under the Australian Consumer Law.
- 6.2 Real Creator will only provide you with a refund of Fees in accordance with Australian Consumer Law, or in the event Real Creator is unable to continue to provide the Services or if Real Creator makes a decision, in its discretion, that it is reasonable to do so. Where this occurs, the refund will be in the proportional to the issue with the relevant Service(s).
- 7. Intellectual Property
- 7.1 Where you own the copyright over your Media and upload such Media to the Software you will remain the owner of such copyright. Nothing in this Agreement affects your copyright over your Media.
- 7.2 Real Creator grants you a personal, non-exclusive, non-transferable, and revocable license to permit you and your Authorised Users to access and use the Website, the Software and the Services (including the Intellectual Property contained therein) during the Term. All other rights are expressly reserved by Real Creator.
- 7.3 All rights, title, or interest in and to the Website, the Software and the Services and any information or technology that may be provided to, or accessed by, you in connection with your use of the Website, the Software or the Services is owned, and will remain owned, by the Real Creator or its licensors (Provider IP). Using the Website, the Software or the Services does not transfer any ownership or rights, title or interest in and to the Provider IP. You must not represent to anyone or in any manner whatsoever that you are the proprietor of the Software and/or the Provider IP. All Intellectual Property discovered, developed or otherwise coming into existence as a result of, for the purposes of, or in connection with, the Software or the provision of any Services will automatically vest in, and are assigned to, Real Creator, including any enhancements, improvements and modifications to the Provider IP (but, for the avoidance of doubt, this excludes the copyright in respect of any Media which you own) (collectively, Developed IP).
- 7.4 You agree that Real Creator may refer to your business name, publish your logo and/or trade mark and make reference to you as a customer of Real Creator in any communications or publications for the purposes of marketing or promoting Real Creator’s business.
- 7.5 The Website, the Software, the Services and all of the related products (including but not limited to text, graphics, logos, button icons, video images, audio clips, Website code, scripts, design elements and interactive features) of Real Creator are subject to copyright. The material on the Website is protected by copyright under the laws of Australia and through international treaties. Real Creator retains all rights, title and interest in and to the Website, the Software, all trademarks, service marks and trade names. Nothing you do on or in relation to the Website will transfer any:
- (a) business name, trading name, domain name, trademark, industrial design, patent, registered design or copyright,
- (b) a right to use or exploit a business name, trading name, domain name, trademark or industrial design, or
- (c) a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process), to you.
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- (a) business name, trading name, domain name, trademark, industrial design, patent, registered design or copyright,
- 8. Acceptable use of the Software and Services
- 8.1 You must only use the Software and the Services in compliance with all applicable laws and regulations.
- 8.2 You are responsible for maintaining the security of your account, passwords and files, and for all uses of your account. You must not permit access to your account other than to an Authorised User or Real Creator.
- 8.3 You may not use the Software or Services if:
- (a) you are not of legal age to form a binding contract with Real Creator; or
- (b) you are a person barred from receiving the Services under the laws of any country in which you are resident or from which you use the Services.
- (a) you are not of legal age to form a binding contract with Real Creator; or
- 8.4 Real Creator reserves the right to suspend, cancel, or otherwise deny access to users and accounts who use a Service:
- (a) to engage in any act that would disrupt the access, availability, and security of Real Creator and other related Third-Party services, including but not limited to:
- (i) tampering with, reverse-engineering, decompiling, or disassembling our source code (including hacking our servers);
- (ii) modifying, disabling, or compromising the performance of Real Creator or other related Third-Party services;
- (iii) overwhelming, or attempting to overwhelm our infrastructure by imposing an unreasonably large load on our systems that consume extraordinary resources;
- (iv) compromising the integrity of our system, including probing, scanning and testing the vulnerability of our system unless expressly permitted in writing by an authorised representative of Real Creator;
- (v) sub-licencing or renting Services to third parties;
- (i) tampering with, reverse-engineering, decompiling, or disassembling our source code (including hacking our servers);
- (b) for any illegal purpose, or to violate any laws, including and without limitation to data, privacy, and export control laws;
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- (c) to stalk, harass or threaten users and any member of the public;
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- (d) to misrepresent or defraud any user or member of the public through phishing, spoofing, manipulating headers or other identifiers, impersonating anyone else, or falsely implying any sponsorship or association with Real Creator or any third party;
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- (e) to access or search any part of the Service, or any other Service owned by Real Creator other than our publicly supported interface; or
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- (f) to post, upload, share, or otherwise circulate content in violation of any content policy we may adopt from time to time.
- (a) to engage in any act that would disrupt the access, availability, and security of Real Creator and other related Third-Party services, including but not limited to:
- 8.5 You must not:
- (a) modify the Software or merge any aspect of the Software with another programme, record, reverse engineer, copy, duplicate, reproduce, create derivate works from, frame, download, display, transmit or distribute any of the Software, the source code of the Software or any documents, manuals or setup instructions provided with the Software or in relation to the Services;
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- (b) licence, sell, rent, lease, transfer, assign or otherwise commercially exploit the Software or the Services;
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- (c) engage in unauthorised access to or use of data, services, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures;
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- (d) access, store, distribute or transmit:
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- (i) viruses, worm, trojan or other malicious code that corrupts, degrades or disrupts the operation of the Software;
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- (ii) material that is unlawful, unethical, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive or a contravention of the rights of any third party;
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- (iii) material that facilitates illegal activity; or
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- (iv) material that abuses or causes damage or injury to any person or property;
- (e) provide Software login details or passwords, or otherwise provide access to the Software, to any unauthorised third party and you will take all reasonable steps to prevent unauthorised access to, or use of, the Software;
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- (f) share any features of the Software that are not publicly available with any unauthorised third party;
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- (g) engage in any conduct on the Software that is in breach of this Agreement (or any agreements mentioned therein); or
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- (h) encumber or allow the creation of any mortgage, charge, lien or other security interest in respect of the Software.
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- 9. Non-circumvention
- (a) any modification to the Services other than by Real Creator;
Where Real Creator introduces you to a Post-Production Provider, you agree to communicate with any such Post-Production Provider through the Website and make payments only through the Website for six months from the date you first identify or meet your Post-Production Provider on the Website. Breach of this clause constitutes a material breach of this Agreement and may result in the termination of this Agreement and your Account.
- 10. Security and Data
- 10.1 You must have the rights to any Customer Data or other content or data that you provide to us. If you provide us with another person’s personal information, confidential information or intellectual property to the Real Creator platform, you are responsible for obtaining all consent to provide and store that data with us.
- 10.2 Subject to the terms of this Agreement, you shall retain ownership of any pre-existing rights to your Customer Data.
- 10.3 Real Creator shall have the right to collect and analyse data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Real Creator will be free (during and after the Term) to:
- (a) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and
- (b) disclose such data solely in aggregate or other de-identified form in connection with its business.
- (a) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and
- 10.4 We have no obligation to monitor any data or content uploaded to the Website. However, we reserve the right to the discretion of removing your data, suspending, or terminating your access to our Services if we consider in good faith that your data is in breach of any applicable law.
- 10.5 Nothing in these Terms prevents either party from disclosing information or data to the extent required by law. This includes, but is not limited to, subpoenas or court orders. We will take commercially reasonable efforts to notify you when required to do so.
- 11. Liability
- 11.1 Nothing in this Agreement limits or excludes any guarantees, warranties, representations, or conditions implied by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded. Subject to this clause:
- (a) all guarantees, warranties or representations which are not expressly stated in is Agreement are excluded;
- (b) Real Creator will not be liable for any special, indirect or consequential loss or damage, loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Services or this Agreement (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise; and
- (c) Real Creator’s total liability arising out of or in connection with the Website, Services or this Agreement, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the value of resupplying the Services to you.
- (a) all guarantees, warranties or representations which are not expressly stated in is Agreement are excluded;
- 11.2 Use of the Website, Software and the Services is at your own risk. None of the affiliates, directors, officers, employees, agents, contributors, and licensors of Real Creator is liable for any loss or damage you might suffer as a result of any of the following:
- (a) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third-party conduct, or theft, destruction, alteration or unauthorised access to records;
- (b) the accuracy, suitability or currency of any information on the Website, the Software, the Services, or any of its Services related products (including third-party material and advertisements on the Website);
- (c) costs incurred as a result of you using the Website, the Software, the Services or any of the products of Real Creator; and
- (d) the Services or operation in respect to links which are provided for your convenience.
- (a) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third-party conduct, or theft, destruction, alteration or unauthorised access to records;
- 11.3 You indemnify Real Creator, its affiliates, employees, and agents from and against all loss, liabilities, costs, expenses, loss, and damage (including legal fees and collection fees) (together, Loss) incurred, suffered or arising out of or in connection with:
- (a) your content and Customer Data;
- (b) your negligence; and/or
- (c) your breach of this Agreement,
- (a) your content and Customer Data;
save to the extent such Loss is contributed to by Real Creator.
12. Third-Party Integrations
The Website and Software allows you to integrate and utilise Third-Party services or applications (Third-Party Integrations). While these integrations are provided to enhance your experience and the functionality of the Website and Software, Real Creator makes no representations or warranties regarding the services provided by Third-Parties. Real Creator does not control, and therefore cannot be held liable for, the performance, compatibility, legality, or any other aspect of Third-Party Integrations. The use of any Third-Party Integration is at your own risk and subject to the terms and conditions and privacy policies of the Third-Party provider. Real Creator is not responsible for any loss, damage, or other liabilities arising from your use of any Third-Party Integrations. You must review the Third-Party provider’s policies and terms before using their services with our Software.
- 13. Termination
- 13.1 This Agreement will continue to apply until terminated by either you or by Real Creator as set out below.
- 13.2 If you want to terminate this Agreement, you may do so by choosing to end your Subscription Services by giving notice via the Software, following which your Subscription Services shall terminate at the completion of your current Subscription Period. This Agreement shall then terminate at the expiry of the Account Retention Period.
- 13.3 Real Creator may terminate this Agreement upon notice to you where:
- (a) you do not renew the Subscription Services at the end of the Subscription Period;
- (b) you have materially breached this Agreement;
- (c) Real Creator is required to do so by law; or
- (d) the provision of the Website, Software or Services to you by Real Creator is no longer commercially viable.
- (a) you do not renew the Subscription Services at the end of the Subscription Period;
- 13.4 Except as otherwise required by law, if your Account is closed, then following the Account Retention Period, you will no longer have access to information or material you kept on the Website and any content stored in your Account may be deleted, for which Real Creator expressly disclaims liability. Real Creator may retain some or all of your Account information as permitted or required by applicable law.
13.5 Real Creator may shorten the Account Retention Period if it is entitled to terminate this Agreement due to your material breach of this Agreement or where it is required to do so by law.
14. Dispute Resolution
14.1 If a dispute arises out of or relates to this Agreement, the Website, the Software or the Services, either party may not commence any court proceedings in relation to the dispute, unless the following clauses below have been complied with (except where urgent interlocutory relief is sought).
14.2 A party to the Agreement claiming a dispute has arisen (Dispute), must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.
14.3 On receipt of that notice (Notice) by that other party, the parties to the Agreement must:
- (a) within 28 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation;
- (b) if for any reason whatsoever, 28 days after the date of the Notice, the Dispute has not been resolved, the parties must either agree upon a mediator or request that an appropriate mediator be appointed by the Resolution Institute, Australia;
- (c) the parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a precondition to the mediation commencing;
- (d) the parties must each pay their own costs associated with the mediation; and
- (e) the mediation will be held in Brisbane, Australia.
- (a) within 28 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation;
- 14.4 If two (2) months have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so. Following which, either party may commence court proceedings in respect of the Dispute.
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- 15. General
- 15.1 Except as otherwise permitted by this Agreement, no variation will be effective unless in writing and signed by both parties.
- 15.2 Any notices to us should be sent, in writing, to Real Creator via support@realcreator.co or such replacement email address as published on the Website from time to time. You agree we may serve notice on you by sending an email to the email address you provide when creating an Account.
- 15.3 The Agreement shall be binding to the benefit of the parties hereto and their successors and assigns.
- 15.4 If any part of this Agreement is found to be void or unenforceable by a court of competent jurisdiction, that part shall be severed and the rest of this Agreement shall remain in force.
- 15.5 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
- 15.6 This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in writing signed by both parties, except as otherwise provided in this Agreement.
- 15.7 No agency, partnership, joint venture, or employment is created as a result of this Agreement.
- 15.8 The following clauses survive termination of this Agreement: Clause 9 (Non-Circumvention), Clause 11 (Liability), Clause 14 (Dispute Resolution), Clause 15 (General).
- 15.9 This Agreement is governed by the laws of Queensland, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Website, Services or the Agreement shall be governed, interpreted and construed by, under and pursuant to the laws of Queensland, Australia without reference to conflict of law principles, notwithstanding mandatory rules.
- 15.10 In the event of any dispute arising out of or in relation to the Website, you agree that the exclusive venue for resolving any dispute shall be in the courts of Queensland, Australia.
- 16. Definitions
In this Agreement, the following words have the following meanings:
Account has the meaning given in clause 2.
Account Retention Period means the period of 30 days from the completion of your final Subscription Period.
Authorised User means the employees, temporary employees, and independent contractors of a user with a valid subscription to the Subscription Services in each case who have been added to the Account as users.
Customer Data means solely the specific categories of data that you are expressly permitted by Real Creator to input, upload, or transmit to the Software, as detailed within the Software’s user interface, documentation, or as otherwise communicated by Real Creator.
Developed IP has the meaning given in clause 7.
Dispute has the meaning given in clause 14.
Fees has the meaning given in clause 3.
Intellectual Property means any copyrights, patents, trade marks, service marks, trade names, designs, and similar industrial, commercial and intellectual property (whether registered or not and whether protected by statute or not and including formulae, recipes and know-how).
Loss has the meaning given in clause 11.
Media means photography, 360 degree and video content and any additional specific media that Real Creator advertises as being offered on the Website from time to time.
Notice has the meaning given in clause 14.
Post-Production Provider has the meaning given in clause 3.
Post-Production Provider Fees has the meaning given in clause 3.
Production Hub Services has the meaning given in clause 3.
Production Hub Service Fees has the meaning given in clause 3.
Provider IP has the meaning given in clause 7.
Real Creator, we, our or us refers to Real Creator Pty Ltd.
Services has the meaning given in clause 3.
Software has the meaning given in clause 2.
Subscription Fee has the meaning given in clause 2.
Subscription Services has the meaning given in clause 2.
Subscription Period has the meaning given in clause 2.
Term means the date you register an Account to the end of your Account Retention Period.
Third-Party includes any service provider that Real Creator engages, which may include Xero, Google Calendar, Stripe and Quick Books.
Third-Party Integrations has the meaning given in clause 12.
Website means www.realcreator.co
You, your or yours refers to the natural person or entity that enters this Agreement with Real Creator.
