TERMS & CONDITIONS
UPROOT TERMS AND CONDITIONS
1. UPROOT is a brand owned by Abigail Nurse. The brand is also the subject of trade mark registrations or applications in Australia, and may now or in the future also be the subject of trade mark registrations or applications overseas.
2. These Terms and Conditions are entered into between Abigail Nurse, trading as UPROOT (UPROOT), and you, being the person who wishes to access or use Digital Brushes or Materials marketed under or in association with the brand UPROOT from time to time (UPROOT Products).
3. UPROOT reserves the right, in its sole discretion, to change, modify, add or remove any clauses within these Terms and Conditions, at any time. It is your responsibility to check these Terms and Conditions periodically for changes. Your continued access to, or use of, any UPROOT Products constitutes your acceptance of, and agreement to, the Terms and Conditions as changed from time to time.
4. UPROOT and you enter into these Terms and Conditions immediately upon your accessing, or making use of, any UPROOT Products.
1. Digital Brush means a software code that encodes a virtual brush, comprising a grain pattern and a stamp image, adapted for use with a Procreate Application, marketed under or in association with the brand UPROOT, or any copies of such software code, whether made pursuant to these Terms and Conditions or otherwise.
2. Intellectual Property means all existing and future intellectual or industrial property rights, in all jurisdictions and of whatever nature (whether or not registrable) including:
trade marks, trade mark applications and registrations, service marks, brand names, business names, designs, certification marks, trade dress, slogans, symbols, logos, trade names and corporate names, together with the goodwill associated therewith, domain names and social media accounts;
copyrights, published and unpublished works of authorship, and Moral Rights, including all rights in the Digital Brushes any grain pattern of any Digital Brush, and any stamp image of any Digital Brush, and Materials, including program code, artworks, prints, designs, sketches, drawings, samples (in whatever form or format), and videos; and
all other intellectual property as defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation 1967 as amended from time to time.
3. Licensee means a person who is granted a license under these Terms and Conditions, being you upon accessing or using any of the UPROOT Products.
4. Materials means any images, artworks, logos, designs, insignia, marks, pictures, text, messages, tools, software, technology, products, files, information, data, promotional materials, audio-visual works, multimedia works, and any other items or expressions marketed under or in association with the brand UPROOT.
5. Moral Rights means rights of integrity, rights of attribution and other rights of an analogous nature which may now exist or which may exist in the future in respect of the Digital Brushes, and Materials under the Copyright Act 1968 (Cth) or under the equivalent law of a country other than Australia.
6. Procreate Application means sketch or painting software applications marketed by Savage Interactive Pty Ltd (ABN 39 142 265 969) from time to time under or in association with the brand Procreate®.
7. Permitted Purpose means the use of Digital Brushes by the Licensee solely for drawing, illustrating, or designing any image, artwork, logo, design, insignia, mark, picture, text, message, not including any of the Materials or any replication, or substantial reproduction, of any of the Materials. Any use of Digital Brushes for any other purpose whatsoever is expressly prohibited.
8. In these Terms and Conditions:
a reference to a person includes a reference to an individual, a corporation, body corporate, association partnership or other entity having personality recognised by law;
a reference to the singular includes the plural and vice versa (unless the context otherwise requires);
where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
where a list of items is concluded by a general word or phrase, that general word or phrase is not to be read as being limited to items similar to those in the list;
where one or more examples are given of items covered by a general word or phrase, that is not to be read as limiting the meaning of that general word or phrase to those examples or similar items;
the word “including” is to be read as if the words “but not limited to” were inserted immediately after it;
a reference to a group of persons or things includes any two or more of them jointly and each of them individually (i.e. severally); and
the headings in these Terms and Conditions are for convenience only and do not affect interpretation.
9. All prices listed for all UPROOT Products are in Australian Dollars (AUD) and inclusive of GST.
3. Grant of License for each Digital Brush
1. You will only have a licence to access or use a Digital Brush when you pay for such licence at the price indicated, using the payment facilities made available to you by UPROOT. Each Digital Brush that you access or use is subject to its own license, even if the payment that you make entitles you to access or use more than one Digital Brush. Where the price indicated for a particular Digital Brush is $0.00, you will have a licence to access that Digital Brush when you carry out the purchasing process as set out in these Terms and Conditions.
2. Subject to your paying the price indicated, or $0.00 where that is the value at which the Digital Brush is advertised, including in circumstances where a Digital Brush is provided via “giveaway”, “promotional event”, or otherwise at a $0.00 charge, UPROOT grants to you a perpetual, revocable, non-transferable, non-exclusive, worldwide license, with no right to grant sub-licenses, to access and use each Digital Brush for the Permitted Purpose (but for no other purpose whatsoever).
3. UPROOT does not process any payments, even $0.00 payments, and takes no responsibility for any payment processing. Payment for the Digital Brushes is processed via the company or companies trading under the name PayPal® (PayPal). PayPal may have and require you to review and agree to terms and conditions which are in no way associated with UPROOT. UPROOT does not hold or have access to any passwords or payment, banking, credit card, or debit card information that you may provide to PayPal, or which PayPal may hold in relation to an account which you have with it.
4. UPROOT will be provided with the email address which you provide to PayPal for payment processing purposes. Digital Brushes will be sent as a link to that email address only. It is the responsibility of the Licensee to ensure they have access to emails sent to that email address in order to receive Digital Brushes. Forwarding of an email containing a link to a Digital Brush to an email address owned or operated by third party, or to which anyone other than the Licensee has access, is strictly prohibited and constitutes a breach of any license granted within these Terms and Conditions.
5. The purchasing process is as follows:
the Licensee adds any number of Digital Brushes to cart using the “Add to cart” button on a Digital Brush;
the Licensee then navigates to the “View Cart” button once prepared to finalise the order;
at this point, if the Licensee has a promotional code and wishes to obtain the benefit of that promotional code, Licensee must add the promotional code via the “Enter a promo code” button. Only a single promotional code may be used at any given time. Such promotional codes include coupons and promotions as may be offered by UPROOT;
thereafter, the Licensee must click on the “Check out with PayPal” button, at which point, the Licensee will be prompted to review and accept these Terms and Conditions;
only after confirming agreement with the Terms and Conditions will the Licensee be able to use again the “Check out with PayPal” button at which time the Licensee is directed to PayPal site to complete the transaction in accordance with PayPal’s terms and conditions made from time to time;
After completing the PayPal process as required by PayPal, Licensee should be provided a receipt, and order number; and
The Licensee will be sent an email with a download link. Following the link will allow the Licensee to download each Digital Brush associated with the license purchased. The download link in the email will expire after 30-days. It is the sole responsibility of the Licensee to download a copy of any Digital Brush for which a license has been purchased, prior to the download link expiring. No refund is available in the event that the download link has not been accessed prior to its expiry.
6. The Licensee agrees to not hold UPROOT responsible or liable for non-receipt of access to the Digital Brushes.
7. The Licensee agrees and accepts that once an order for Digital Brushes has been submitted to UPROOT, that order cannot be cancelled by the Licensee.
8. The Licensee must not, and must not permit, or engage in a common design with, any person to, use the Digital Brushes for any purpose other than for the Permitted Purpose. The Licensee is liable for any use of the Digital Brushes that is not consistent with the licence granted to the Licensee in accordance with these Terms and Conditions.
9. The Licensee has no right to improve, develop, alter or change the Digital Brushes in any way; nor is Licensee permitted to reproduce or re-engineer the Digital Brushes.
10. The Licensee is expressly prohibited from redistributing or creating any copies of the Digital Brushes, except as set out herein clause 3.11.
11. The Licensee is permitted to a copy of the Digital Brush, only for the express purpose of creating, and maintaining, a personal back-up that can only be used by Licensee for the Permitted Purpose. A back-up must:
not be provided, or distributed, to any other party;
not remove any proprietary notice language in the Digital Brush; and
make no modifications to any Digital Brush.
12. UPROOT remains the owner of any and all Intellectual Property in the Digital Brushes. UPROOT does not intend to, and does not transfer or divest itself of any Intellectual Property through granting any license relating to the Digital Brushes.
13. Licenses are intended to be granted to end-user customers only. UPROOT reserves the right to refuse or cancel an order if it is suspected, in UPROOT’s absolute discretion, to be for a purpose other than for the Permitted Purpose.
14. Where there is an issue relating to pricing, the description of a particular Digital Brush, or typographical error, UPROOT reserves the right to cancel any transaction in its absolute discretion. In circumstances where UPROOT has cancelled your transaction and your credit card has been charged, UPROOT will refund an amount equal to the amount of the order.
15. The Licensee acknowledges that it has no right, title or interest in the Digital Brushes, except as set out in these Terms and Conditions.
4. No warranties and guarantees provided by UPROOT
1. Except as expressly provided in these Terms and Conditions, no part of the UPROOT Products, may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, decoded, translated, transmitted or distributed in any way to any other person other than the Licensee, and the Licensee may not use any part of the UPROOT PRODUCTS for any purpose other than for the Permitted Purpose.
2. UPROOT strives to ensure that the UPROOT Products are described as accurately as possible. However, UPROOT provides no warranty as to the accuracy of any description, and reserves its right to correct any error or omission of which it becomes aware.
3. UPROOT provides no guarantee that any Material can be reproduced using only the Digital Brushes, or that the Materials displayed are otherwise made available on a website owned or controlled by UPROOT are reflective of, or portray, the capability of any Digital Brush. Materials uploaded to the website from time to time are provided for illustrative purposes only.
4. UPROOT grants no licence whatsoever to any party in respect of any of the Materials.
5. Privacy and Security
1. Certain features, services or offers may require you to open an account. You are solely responsible for maintaining the confidentiality of the information for your account, including your password, and for any and all activity that occurs under your account as a result of your failing to keep this information secure and confidential.
2. When provided, UPROOT does hold the following personal information:
your email address;
your IP address;
your first name;
your UPROOT account password; and
any other information you provide to UPROOT without an express prohibition on UPROOT holding such personal information.
3. UPROOT will use your personal information only to:
provide any Digital Brushes in relation to which you have purchased a licence;
from time to time, provide promotional materials by email, unless you specifically tell UPROOT in writing, to an email address which you know will be received by UPROOT, that you do not wish to be provided with promotional materials; and
when appropriate, contact you either when requested or required in relation to orders.
4. You are not required to provide the personal information requested. However, if you chose not to do so, in many cases UPROOT will be unable to provide you with any products or services, or respond to any requests you may have.
6. Licensee’s Obligations
1. UPROOT reserves all rights in and to the UPROOT Products. Unless otherwise expressly permitted by these Terms and Conditions, the Licensee is expressly prohibited from doing, and shall not do, any of the following with any UPROOT Product, whether by itself or with, or for, any other party:
use or transmit any of them to any other website or network;
modify, translate, reverse engineer, decompile, disassemble or create derivative works based on any of them;
reproduce any of them;
distribute, license, rent, sell, lease or otherwise transfer any of them; or
remove, obscure, or alter any notice of copyright or other proprietary notices present on or in any of them.
2. You warrant that:
you will comply with all applicable laws, regulations and orders of any governmental authority in any relevant jurisdiction in your access to or use of any UPROOT Product; and
you are not located in, under the control of, or a national or resident of any country to which export of any UPROOT Products is prohibited by Australian law, regulation or order.
1. Any license granted under these Terms and Conditions shall immediately and irrevocably terminate upon:
any use of any of the UPROOT Products other than as expressly authorised herein, and without the prior written consent of UPROOT. Any such unauthorised use may also violate applicable laws, including copyright, and applicable communications regulations and laws. Unless explicitly stated herein, nothing in these Terms and Conditions shall be interpreted in any way as confer any license to any Intellectual Property rights, whether by estoppel, implication, or otherwise;
any material breach, or suspected material breach in UPROOT’s absolute and unfettered discretion, of any of the Terms and Conditions; and
written notice terminating the license provided to the Licensee by UPROOT, at UPROOT’s sole discretion.
2. Upon termination:
All rights for the Licensee to use the Digital Brushes are irrevocably and immediately terminated;
The Licensee shall immediately delete any and all copies of Digital Brushes, including backups.
3. Termination of these Terms and Conditions is without prejudice to any remedies available to UPROOT and any rights or obligations of UPROOT that accrued prior to termination and in particular, but without limitation, the right to recover damages from the Licensee.
4. All provisions of these Terms and Conditions which in order to give effect to their meaning need to survive their termination shall remain in full force and effect.
1. All right, title and interest in and to the UPROOT Products and all associated Intellectual Property, are owned by UPROOT, and no ownership of any of the foregoing items is transferred to the Licensee by virtue of these Terms and Conditions.
1. The Licensee acknowledges and agrees that UPROOT provides no warranties whatsoever in relation to the fitness for purpose of any of the UPROOT Products, or that the accessing or downloading of any of the UPROOT Products does not carry any risk that the recipient/Licensee of the UPROOT Products may also be a recipient of viruses, Trojans, worms, malware, or other malicious software or computer infections which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware, programme, data or network. Accessing or using any of the UPROOT Products is at the sole risk of the Licensee or any other person so accessing or using such UPROOT Products.
2. You indemnify and hold UPROOT harmless for all claims, actions, damages, costs and expenses, whether known or unknown, including any and all legal fees arising from, or in connection with, your use of the UPROOT Products, or from any legal fees that may be required to be spent by UPROOT in respect of enforcement or defence action.
10. Limitation of Liability
1. UPROOT shall not be liable to the Licensee for any third party infringement claims made against the Licensee arising from the Licensee’s use of any, or any part of any, UPROOT Product.
2. To the greatest extent permitted by law, UPROOT excludes any and all liability whatsoever for indirect and consequential loss, in whatever form, arising in any way, including any commercial, economic, non-economic, or any other loss of any kind arising from any use or access of any UPROOT Product by the Licensee or by any other person.
1. No failure to exercise, or delay in exercising, on the part of UPROOT, any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege hereunder preclude the further exercise of the same right or the exercise of any other right hereunder.
2. UPROOT does NOT waive any of her Moral Rights in the Digital Brushes, or Materials, including in any program code, artworks, prints, designs, sketches, drawings, samples (in whatever form or format), and videos. The Licensee represents, acknowledges and agrees that any use, alteration, modification, derivation or adaption whatsoever, or any other conduct inconsistent with UPROOT’s Moral Rights, in relation to any of the aforesaid would amount to a breach of UPROOT’s Moral Rights causing her loss and damage that would be recoverable by UPROOT as against the Licensee.
1. The invalidity of any provision or part of a provision of these Terms and Conditions will not affect the enforceability of any other part or provision of these Terms and Conditions.
13. Governing Law and Dispute Resolution
1. These Terms and Conditions shall be governed by and construed in accordance with the laws of New South Wales, Australia and the Parties agree to submit to the exclusive jurisdiction of the courts of New South Wales, Australia.