Terms of Use

Welcome to Uplands (www.uplands.org.au) (the Platform), an initiative of Agency Projects, Phoria and participating Aboriginal Art Centres across Australia.

We would like to acknowledge and pay respects to the Traditional Owners of the lands on which we work, and their Elders past and present, and extend that respect to all Aboriginal and Torres Strait Islander visitors to the Platform. 

Aboriginal and Torres Strait Islander visitors are warned that the Platform may contain references and images of deceased Aboriginal and Torres Strait Islander people.

PLEASE ENSURE THAT YOU READ THESE PLATFORM TERMS OF USE (“TERMS”) CAREFULLY AS THEY CONTROL THE WAY YOU CAN, AND MUST NOT, USE THE PLATFORM. THESE TERMS ALSO DESCRIBE THE PROMISES YOU MAKE TO US ABOUT YOUR USE OF THE PLATFORM.

1. Acceptance of Terms of Use
   1. The Platform is an interactive and immersive experience that virtually tours, showcases and promotes the Art Centres and their artworks and collections, as well as other Content made available.
   2. The Platform is owned and operated by Agency Projects Limited (ABN 48 637 825 668) and Phoria Pty Ltd (ACN 169 885 796) (Agency and Phoria, we, our or us).
   3. These Terms govern your access and viewing of the Platform and all associated Content. By accessing and/or using the Platform, you indicate your acceptance to be bound by these Terms and agree that you have had sufficient opportunity to read and understand them.
   4. Access and/or use of the Platform is entirely at your own risk. You must only use the Platform in accordance with these Terms and any applicable law. You should immediately cease using the Platform if you do not agree to these Terms.
   5. These Terms govern updates, upgrades and new or amended versions of the Platform, unless such versions are accompanied by new terms of use, which will govern those versions.
2. Account Registration
   1. Unless you are an Art Centre, you do not need to register an account on the Platform to view or access the pages or uploaded Content. 
   2. Art Centres are required to register an account to edit, manage and maintain their site. To register and activate an account, Art Centres must provide their email and name to us to receive access. Art Centres must ensure that this information is accurate and current. 
   3. To create an account, Art Centre representatives must:
      1. be over 18 years of age;
      2. possess the legal right and ability to enter into a legally binding agreement with us; and
      3. warrant to access and use the Platform and Content in accordance with these Terms. 
   4. Art Centres are responsible for keeping their account secure and for all use and activity carried out under that account. If you suspect or become aware of any unauthorised use of your account, you must notify us immediately and take immediate steps to re-secure your account (including by changing your password).
3. Intellectual Property Rights
   1. Unless otherwise indicated, we own or licence from third parties (including from Art Centres and our related service providers) all right, title and interest (including Intellectual Property rights) in the Platform and the Content.
   2. Your access and use of the Platform and any Content does not grant or transfer any right, title or interest to you in relation to the Platform or the Content.
   3. We do grant you a limited non-exclusive licence to access and use the Platform and view the Content for non-commercial personal purposes only in accordance with these Terms and, where applicable, as expressly authorised by us and/or our third-party licensors. All rights not expressly granted to you under these Terms are reserved.
   4. Subject to 3.3, any reproduction or redistribution of the Platform or the Content, in whole or in part, is prohibited and may result in civil and criminal penalties. In addition, you must not copy the Content to any other server, location or support, and publication, reproduction or distribution is expressly prohibited. 
   5. In the event that you are allowed to post any information or Content to the Platform, you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide licence to use any Intellectual Property in the posts. This includes, but is not limited to, the rights to copy, publish, communicate, reformat, edit, adapt or translate the information or Content for commercial or promotional purposes.
4. Indigenous Cultural and Intellectual Property (ICIP) 
   1. The Platform and Content incorporates ICIP which belongs to the relevant Aboriginal or Torres Strait Islander Traditional Owners. You acknowledge the ICIP rights of Traditional Owners in accordance with Article 31 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and agree that ownership of any such ICIP will remain at all times with the Traditional Owners of that ICIP. 
   2. You are not authorised to use, reproduce or redistribute ICIP incorporated in the Platform or Content without the free, prior and informed consent of the relevant Traditional Owners. 
   3. Where you are authorised to access or use ICIP incorporated on the Platform or Content, you agree to:
      1. respect the ICIP rights of the Traditional Owners of that ICIP, and comply with any relevant cultural protocols that Agency or the Traditional Owners notify you of;
      2. ensure that Traditional Owners continue to be acknowledged as owners of any ICIP incorporated in the Platform or Content; and
      3. not use the ICIP for any purpose other than as authorised by the relevant Traditional Owners. 
   4. The Platform and Content may also include the personal and cultural information of Aboriginal or Torres Strait Islander individuals, including artists, Elders and community members. You agree to respect all personal and cultural information by not using or distributing that information otherwise than in accordance with these Terms and never using that information in a manner that could be considered as disrespectful, derogatory, racist, defamatory or bullying.
5. Unacceptable Activity
   1. You must not do or attempt to do any act that we would deem to be inappropriate, culturally insensitive, unlawful or prohibited by any laws applicable to the Platform or Content, including but not limited to:

1. accessing or using, or allowing any other person, group or organisation to access or use, the Platform or Content outside the scope of any permission or licence granted to you by these Terms;
2. infringing any third-party rights;
3. providing false or misleading information to us, or our personnel, agents, contractors, partners, affiliates, suppliers or related service providers;
4. compromising or disclosing sensitive data or personal or confidential information (including ICIP);
5. any act that would constitute a breach of either the privacy (including uploading private or personal information without an individual’s consent) or any other of the legal rights of individuals; 
6. using the Platform to defame or libel us, our employees, agents, contractors, partners, affiliates or other individuals; 
7. inhibiting or interfering with other users’ enjoyment and use of the Platform or Content;
8. linking to the Platform or Content in a way that damages or takes advantage of our reputation, including in a way to suggest or imply that you have any kind of association or affiliation with us, or approval and endorsement from us when there is none, or in a way that is illegal or unfair; 
9. causing us to breach any law, regulation, rule, code or other legal or cultural obligation;
10. uploading or depositing files to the Platform that contain a Malicious Computer Program; 
11. interfering with, or circumventing security-related or other features of the Platform, or tampering or hacking or in some other way disrupting any computer system, service, network, website, router or other device used to host the Platform or make the Platform available; 
12. using data mining, robots, screen scraping or similar data gathering and extraction tools on the Platform or in relation to the Content; or 
13. posting or transmitting to the Platform any non-authorised material including, but not limited to, material that is or could reasonably be considered, in our opinion, likely to cause annoyance, or which is defamatory, racist, obscene, blasphemous, threatening, pornographic or otherwise or which is detrimental to or in violation of our systems or a third party’s systems or network security.
14. If we allow you to post any information or Content to the Platform, we have the right to take down this information or Content at our sole discretion and without notice.

6. No Commercial Use
   1. Subject to the licence in clause 3.3, the Platform is for your personal, non-commercial use only. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, licence, commercially exploit, create derivative works from, transfer, or sell any Content, software, products or services contained on, within, or in relation to the Platform. You may not use the Platform, or any of the Content, to further any commercial purpose, including any advertising or revenue generation activity on your own website or social media.
7. Collection Notice
   1. We collect personal information about you (including your name, address, email and phone number):
      1. to create Art Centre accounts;
      2. to provide you with access and use of the Platform;
      3. to respond to your enquiries and feedback;
      4. to provide you with details of updates, promotional material and other information relevant to the Platform; and 
      5. for purposes otherwise set out in our Privacy Policy. 
   2. We may disclose this information to third parties that help us deliver the Platform and the Content (including the Art Centres and information technology and communication suppliers) or as required by law. 
   3. Our Privacy Policy explains: (i) how we store and use, and how you may access and correct your personal information; (ii) how you can lodge a complaint regarding the handling of your personal information; and (iii) how we will handle any complaint. 
   4. By providing your personal information to us, you consent to the collection, use, storage and disclosure of that information as described in our Privacy Policy and these Terms. If you do not provide this information, we may not be able to provide our products and services to you.
   5. Subject to our Privacy Policy, if we do not disclose your personal identity in doing so, we can collect, copy, communicate, adapt and exploit data from your use of the Platform (and, for the avoidance of doubt, associated Third Party Material) and associated devices, systems, software and peripherals, to improve delivery of the Platform and our services to you.
   6. If you would like any further information about our Privacy Policy, please contact us (see the ‘Contact Us’ section below for our contact information).
8. Cookies Policy
   1. Cookies are small files placed on your web browser that collect information about your web browsing behaviour. Use of cookies allows our Platform to tailor its configuration to your needs and preferences. Cookies do not access information stored on your computer or any personal information (e.g. name, address, email address or telephone number).
   2. We use cookies to analyse trends, administer the Platform, track user movements and to gather demographic information about our user base as a whole, including to:

1. analyse Platform traffic and provide a better Platform experience for visitors;
2. improve our performance by reporting any errors that occur;
3. provide statistics about how the Platform is used; and
4. remember settings that you use for the Platform. 
5. You agree that:

1. we may store cookies on your devices; and
2. we may issue and request cookies from your device to collect both personal and non-personal information.
3. Most web browsers automatically accept cookies, but you can choose to disable cookies by changing your browser settings if you do not agree to this cookies policy. However, this may prevent you from taking full advantage of the Platform.

9. Accuracy, completeness and timeliness of the Platform
   1. The Platform and Content are provided ‘as is’ and ‘as available’, and you exercise your own skill, judgement and care with respect to your use or reliance on them. Neither the Platform nor the Content is intended to be comprehensive. 
   2. While we use all reasonable attempts to ensure the accuracy and completeness of the Platform and the Content, without limiting Clause 13, we make no warranty and disclaim all responsibility that:
      1. the Platform or the Content will be complete, accurate or up-to-date;
      2. the Platform or the Content is of a merchantable quality or fit for a particular purpose;
      3. access to the Platform or Content will be uninterrupted or error-free or free from Malicious Computer Program; or
      4. the Platform or the Content will be secure.
   3. We are not liable to you or anyone else if errors, interference or damage to your computer systems occurs in connection with your access and use of the Platform, the Content or linked websites or materials. You must take your own precautions to ensure that whatever you select, access or use on or from the Platform is free of Malicious Computer Program.
   4. You acknowledge and agree that:
      1. We retain complete control over the Platform and the Content, and may alter, amend or cease the operation of the Platform or the Content, or remove, modify or add to the Platform or the Content, at any time without notice in our sole discretion; and
      2. The Platform may not operate on a continuous basis and may be unavailable from time to time (including for maintenance or upgrade purposes).
   5. We may, from time to time and without notice, change or add to the Platform or Content (including these Terms). You should monitor any changes to the Platform and check these Terms periodically for changes.
10. Third Party Material
    1. The Platform does contain, incorporate, connect to or make available Third Party Material. Third Party Material is provided for convenience and may not be current or maintained.
    2. We are not responsible for, do not endorse or make any representation about, nor do we evaluate or examine Third Party Material, whether for usefulness for purpose, accuracy, completeness, legal compliance, availability or otherwise. Your use and access of Third Party Material is at your own risk. 
    3. We may remove, suspend access to, change or otherwise deal with Third Party Material at any time, for any period and to any extent, without notice to you and without any liability or obligation to you. The owners or controllers of Third Party Material may do the same.
11. Linked sites 
    1. The Platform does contain links to websites or social media sites operated by third parties. Those links are provided for convenience and may not be current or maintained. Unless expressly stated otherwise, we do not endorse and are not responsible for the content on those linked websites or social media sites and have no control over or rights in those linked websites or social media sites.
12. Limitation of Liability
    1. To the maximum extent permitted by law, in no event will we (including us, our affiliates, third-party suppliers, or related service providers, or any officer, director, employee, sub-contractor, agent, body corporate or successor) be liable for any direct or indirect loss, liability, costs, damages, charges or expenses – irrespective of the manner in which it occurs – which may be suffered as a result of: 

1. your use of the Platform or Content; 
2. the unavailability, inaccessibility or interruption of usage of the Platform or Content;
3. the Platform or Content being incorrect, incomplete or not up-to-date;
4. the Platform or Content being provided to you free-of-charge;
5. any delay or failure in performance beyond our reasonable control; 
6. loss of data; or
7. Content or services not being sufficient for your purposes or not meeting your individual requirements.

2. To the maximum extent permitted by law, we are not responsible for any indirect, incidental, special, exemplary or consequential liability whatsoever, whether arising in contract, tort (including negligence) or otherwise arising out of the provision or use of the Platform or the Content.
3. Notwithstanding anything else in these Terms, if any of the exclusions or limitations set out above are declared illegal or void, then to the extent permitted by law, our liability for breach of a warranty implied into these Terms by the Australian Consumer Law (or otherwise) is limited, at our discretion, to either supplying, replacing or repairing the Platform, in respect of the breach.
4. Nothing contained in these Terms excludes, restricts or modifies any condition, warranty, right or remedy implied or imposed by statute or regulation if it cannot lawfully be excluded, restricted or modified.
5. Indemnity
   1. You agree to indemnify and hold us, our partners, affiliates, third-party suppliers, licensors, related service providers and any officer, employee, contractor, agent, body corporate or successor, harmless from and against any and all actions, suits, claims, demands, liabilities, costs, expenses, loss and damages (actual, special or consequential) of every kind and nature, known and unknown, including reasonable legal fees on a full indemnity basis, incurred, suffered, due to or arising out of or in connection with:

1. your use of the Platform or the Content;
2. your breach of these Terms; or
3. your breach of any law or the rights of a third party in connection with your access or use of the Platform or Content.

14. Breach and Termination
    1. These Terms automatically terminate if we cease to operate the Platform.
    2. We reserve the right to rescind, suspend or terminate your access and use of the Platform or the Content at any time without notice, and we will not be responsible for any loss, cost, damage or liability that may arise as a result.
    3. In addition to our right to terminate in clause and 14.2, we may suspend or terminate your access to the Platform and the Content immediately where you fail to comply with any material term of these Terms, or where we reasonably suspect (on reasonable grounds) that you are misusing the Platform.  
    4. Upon termination of these Terms, you must immediately cease using the Platform.
15. General
    1. Amendment: We reserve the right to make changes to the Platform, the Content and these Terms at any time without notice. All amendments will be posted on the Platform. Your continued access and use of the Platform and the Content following posting of changes will be deemed to constitute acceptance of these new changes and any new Terms.
    2. No waiver: No waiver by us of any default of yours under these Terms will operate or be construed as a waiver by us of any future defaults, whether of a like or different character. No granting of time or other forbearance or indulgence by us to you will in any way release, discharge or otherwise affect your liability under these Terms.
    3. Third party rights: All provisions of these Terms apply equally to and are for the benefit of us, the Art Centres, our partners, affiliates, third-party suppliers, related service providers, licensors, and our and their officers, employees, contractors, agents, body corporates or successors, and each will have the right to assert and enforce such provisions directly or on its own behalf (save that these Terms may be varied or rescinded without the consent of those parties). 
    4. Severability: If any provision of these Terms is held to be unlawful, invalid or unenforceable, that provision will be deemed severed and where capable the validity and enforceability of the remaining provisions of these Terms will not be affected.
    5. Governing law: Your use of the Platform, Content and these Terms are governed by the law of Victoria, and you submit to the non-exclusive jurisdiction of the courts exercising jurisdiction in Victoria.
16. Contact Us
    1. You can contact us via the Platform or contact:

Agency Projects Limited 

info@agencyprojects.org

Or

Phoria

hello@phoria.com.au

17. Definitions
    1. Certain words in these Terms begin with capital letters. Unless the context provides otherwise, those words have the meaning given to them here, or in the body of these Terms.
    2. The following definitions apply to these Terms:

Content means all forms and formats of content, data, information and material contained, incorporated, connected to or made available on or in relation to the Platform (including from our partners, affiliates, related service providers and other third-parties), including without limitation:

1. artworks, objects and exhibits displayed on the Platform;
2. text, contact details, documents, reports, papers, articles, comments;
3. graphics, images, logos and photographs;
4. sound files and music;
5. digital mapping of the Art Centres;
6. other recordings, including video and live feed; 
7. software or code;
8. Indigenous Cultural and Intellectual Property (ICIP);
9. websites, social media, applications; 
10. links, posts, advertising, communications;
11. other products or services.

Indigenous Cultural and Intellectual Property or ICIP means the cultural rights of Australian Aboriginal and Torres Strait Islanders to their heritage. Heritage comprises all objects, sites, languages and knowledge, the nature or use of which has been transmitted or continues to be transmitted from generation to generation, and which is regarded as pertaining to a particular Aboriginal or Torres Strait Islander group or its territory. This heritage is a living one and includes objects, knowledge and works which may be created in the future based on that heritage. Heritage includes: 

1. literary, performing and artistic works (including artworks, songs, music, dances, stories, ceremonies, symbols, languages and designs); 
2. scientific, agricultural, technical and ecological knowledge (including cultigens, medicines and the phenotypes of flora and fauna); 
3. all items of movable cultural property; 
4. human remains and tissues; 
5. immovable cultural property (including sacred and historically significant sites and burial grounds); 
6. documentation of Aboriginal or Torres Strait Islander peoples’ heritage in archives, film, photographs, videotape or audiotape and all forms of media. 

Intellectual Property refers to the existing and future industrial and intellectual property rights, including any copyright, database, patent, design, trade mark, domain name, business or company name, know-how, trade secret, circuit layout, confidential information and any other rights of a similar nature whether registered registrable, patentable or not.  

Malicious Computer Program means files that consist of malicious computer program, including programs that include viruses, Trojan horses, worms or any other computer programming that may damage, modify, delete, detrimentally interfere with, access without authority or expropriate any system, software, data or personal information; that may cause damage to the Platform, content on the Platform, or the property of Phoria, Agency or other individuals or organisations.

Platform refers to the Indigenous Art Centre Immersive Digital Experiences Platform virtually showcasing Art Centres and their Content. 

Third Party Material means Content, data, information, applications, services, websites and materials from, incorporating, linked or connected to Art Centres and other third parties (including partners, affiliates and related service providers).

Traditional Owner means the Indigenous clan or group who have common spiritual and cultural affiliations to a particular area, being affiliations that place the clan or group under a primary spiritual and cultural responsibility for that area.