1. Introduction
Posse Holdings Pty Limited ABN 131 776 531 ('Posse') operates posse.com. The services offered by Posse include any Posse-branded URL ("Posse Website") and any other features, content, software or applications offered from time to time by Posse via the Posse Website (collectively, the "Posse Services"). The Posse Services are hosted in the United States.
These terms and conditions ('Terms') govern your access to and use of the Posse Website and the Posse Services.
Capitalised terms used in these Terms have the meaning given to them in these Terms. Please refer in particular to the definitions in section 21 below.
2. Your acceptance of these Terms
2.1 By using the Posse Website and the Posse Services you:
(a) signify your agreement to and acceptance of these Terms and the Posse Policies, and
(b) agree to abide by all Applicable Laws.
2.2 Posse has the right to vary these Terms and the Posse Policies at any time. Each such variation will be effective upon posting on the Posse Website. Your continued use of the Posse Services following any such modification constitutes your agreement to be bound by and your acceptance of these Terms and the Posse Policies as varied. It is therefore important that you review these Terms and the Posse Policies regularly.
3. Eligibility
3.1 You may not register as a Fan, use the Posse Services or accept these Terms if:
(a) you are under 18 years of age and have not taken the steps outlined in section 3.2 below; or
(b) Posse has suspended or cancelled your use of the Posse Services; or
(c) you are a person barred from receiving the Posse Services under the laws of any country, including the country in which you are resident or from which you use the Posse Services.
3.2 The Posse Services are designed for people who are at least 18 years of age. If you are under 18 years of age , you must have your parents or guardian review these Terms and, if you want to become a Fan, consent to you registering as a Fan.
3.3 Your profile may be deleted and access to your account may be cancelled without warning, if Posse believes that you are under 18 years of age and you represent yourself as 18 years of age or older.
3.4 By using the Posse Services, you represent and warrant that:
(a) you are 18 years of age or older; or
(b) if you are not 18 years of age or older, your parents or guardian have reviewed these Terms and, if you have registered as a Fan, consented to you registering as a Fan.
3.5 If you are a business entity registering as a Fan, you represent and warrant that any employee, officer, representative or agent who registers your business as a Fan or subsequently uses the Posse Services is duly authorized to act on behalf of your business.
3.6 Use of the Posse Services and registration to be a Fan is void where prohibited under these Terms or any Applicable Law.
4. Provision of the Posse Services by Posse
4.1 By using the Posse Services you acknowledge and agree that:
(a) the form and nature of the Posse Services may change from time to time without prior notice to you;
(b) Posse may, either permanently or temporarily, stop providing the Posse Services or any features within the Posse Services to you or to users generally at Posse's sole discretion, without prior notice or liability to you;
(c) if Posse disables access to your account, you may be prevented from accessing the Posse Services, your account details or any files or other content which is contained in your account; and
(d) whilst Posse may not currently have set a fixed upper limit on the extent to which you use the Posse Services, including the number of Ads you use, transmissions you may send or receive through the Posse Services or the Posse Website or on the amount of storage space used for the provision of any Posse Services, such fixed upper limits may be set by Posse at any time, at Posse's discretion, without prior notice to you.
5. Use of the Posse Services by you
5.1 In using the Posse Service you agree:
(a) to use the Posse Services only for purposes that are permitted by these Terms and any Applicable Law;
(b) not to post any Prohibited Content on the Posse Website or through the Posse Services;
(c) not to engage in any Prohibited Activity when using the Posse Services;
(d) not to access (or attempt to access) any of the Posse Services by any means other than through the interface that is provided by Posse, unless you are specifically allowed to do so under the terms of a separate agreement with Posse;
(e) not to access (or attempt to access) any of the Posse Services through any automated means (including use of scripts or web crawlers);
(f) to comply with the instructions set out on the Posse Website or directions received from Posse regarding the use of the Posse Services;
(g) not to engage in any activity that interferes with or disrupts the Posse Services or the servers and networks which are connected to the Posse Services;
(h) not to reproduce, duplicate, copy, sell, trade or resell the Posse Services for any purpose, unless you are specifically allowed to do so under the terms of a separate agreement with Posse; and
(i) that you are solely responsible for (and that Posse has no responsibility to you or to any third party for):
(1) any breach of your obligations or any representation or warranty you provide under these Terms and for the consequences of any such breach (including any loss or damage which Posse or any third party may suffer); and
(2) your interactions with other users of the Posse Services, including Sellers and Fans.
5.2 Posse gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the Software. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Posse Services as provided by Posse, in the manner permitted by these Terms.
5.3 You may not (and you may not permit anyone else to) copy, modify, adapt, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof, unless you have been specifically told that you may do so by Posse, in writing.
5.4 Unless Posse has given you specific written permission to do so, you may not assign (or grant a sub-license of) your rights to use the Software, grant a security interest in or over your rights to use the Software, or otherwise transfer any part of your rights to use the Software.
5.5 The Software you use may automatically download and install updates from Posse from time to time. These updates are designed to improve, enhance and further develop the Posse Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit Posse to deliver these to you), as part of your use of the Posse Services.
5.6 Posse reserves the right, but has no obligation, to become involved in any way with disputes between you and other users of the Posse Services, including Sellers.
6. Your passwords and account security
6.1 When you register to become a Fan, you will be asked to choose a password for your account. You are entirely responsible for maintaining the confidentiality of passwords associated with any account you use to access the Posse Services. You agree not to use the account, username, email address or password of another Fan at any time or to disclose your password to any third party.
6.2 You will be solely responsible for the use of your password and any and all activities that occur on your account, whether or not those activities are authorised by you.
6.3 If you become aware of any unauthorised use of your password or account, you must notify Posse immediately at admin@posse.com .
7. Privacy and your personal information
7.1 For information about Posse's data protection
practices, please read Posse's privacy policy at
7.2 You agree to the use of your personal information in accordance with Posse's privacy policy.
8. Fans
8.1 You may become a Fan by registering on the Posse Website. Your registration may be cancelled if:
(a) Posse, at its sole discretion, determines that multiple accounts are held by the same individual or entity;
(b) Posse, at its sole discretion, determines that you are in breach of these Terms; or
(c) these Terms otherwise give Posse the right to cancel your registration.
8.2 You may not register as a Fan if:
(d) you are a competitor of a Seller whose Products are promoted in Ads; or
(e) you were previously a Fan and Posse cancelled your registration as a result of you posting any Prohibited Content or engaging in any Prohibited Activity (as each of those terms was defined at the relevant time) or otherwise being in breach of these Terms (as they applied at the relevant time).
8.3 In order to register as a Fan and to access and use certain Posse Services, you may be required to provide information about yourself (such as identification, contact details and PayPal account details), as part of the registration process for the Posse Services, or as part of your continued use of the Posse Services. By registering as a Fan and using the Posse Services, you represent and warrant that:
(a) all registration information you submit (including any representation or warranty you provide in the course of registering) is truthful and accurate; and
(b) you will maintain the accuracy of such information at all times whilst you continue to be registered as a Fan and use the Posse Services.
9. Ads
9.1 If you are registered as a Fan, you will be entitled to select an Ad from the Ad inventory on the Posse Website and display the Ad on:
(a) the Posse Website;
(b) your website;
(c) any social networking website of which you are a member, but only to the extent and in the manner permitted by the terms and conditions applicable to your use of that website; and
(d) any third party website or other place on the Internet where you are authorised to upload or display Content.
9.2 If you display an Ad:
(a) you must comply with any specifications and directions of Posse in relation to the display, tracking, removal and data reporting of Ads; and
(b) you must not (whether directly or indirectly), modify or attempt to modify any Ad.
9.3 You must not display an Ad:
(a) on a website that contains Content which, if it were published on the Posse Website, would constitute Prohibited Content; or
(b) in a manner which is false or misleading, including in a manner which, for example, incorrectly suggests that a recording artist referred to in the Ad is endorsing a particular product or commercial brand.
9.4 You must not directly communicate with any Seller in relation to any Ad. All such communications should be directed to Posse at admin@posse.com .
10. Commissions
10.1 If you display an Ad a Commission may be payable to you as the result of the sale of a Product to a Buyer.
10.2 The Commission payable to you will be:
(a) the Commission applicable to the relevant Product as published on the Posse Website at the time the Product is purchased by the Buyer on the Seller Website.
(b) calculated based on the information contained in Posse's systems and records. Posse will accept no other measurements or statistics, nor will they have any effect under these Terms.
10.3 Posse may vary any Commission published on the Posse Website at any time without notice to you.
10.4 Commissions earned by you as the result of the sale of a Product to a Buyer will accrue to an account held by Posse in your name. You acknowledge that Posse is not a bank or a financial institution and that the funds held by Posse or its service providers are not deposit obligations and such funds are not insured by any governmental agency .
10.5 You will only be entitled to payment of a Commission once your account balance reaches $5.00. You may request payment at any time so long as the minimum request for payment is $5.00. You may view your current account Commission balance at admin@posse.com.
10.6 You acknowledge that Posse only offers payment of Commissions via PayPal. When you register as a Fan, you must provide Posse with details of your PayPal account. You must notify Posse promptly of any changes to your PayPal account details and acknowledge that Posse has no liability to you for your failure to notify Posse of any such changes.
10.7 Posse will make payment to your nominated PayPal account on a weekly basis or at such other intervals as Posse determines in its sole discretion from time to time.
10.8 If you cancel your registration as a Fan, Posse will pay any unpaid Commission payable to you within 90 ninety days after the end of the calendar month in which you cancel your registration.
10.9 Any Commission payable to you by Posse may be set off against any amount you owe Posse.
10.10 You must notify Posse of any dispute concerning payment of a Commission within 30 days of that payment being made by sending an email to admin@posse.com. If you do not notify Posse within that period you may be deemed to have waived your claim related to that disputed payment.
11. Unpaid Commissions
11.1 If Posse is unable to pay to you any Commission otherwise payable to you because:
(a) your account is deemed to be inactive because you have not logged into your account and claimed the unpaid Commission for a period or 24 months or more; or
(b) Posse has not been successful in its attempts to pay you or to receive alternate payment instructions by contacting you at the contact address you have provided to Posse,
those funds may be declared unclaimed property and Posse may, without further notice to you, pay those funds to a charitable organisation selected by Posse at its sole discretion.
11.2 Posse may deduct from any unpaid Commission referred to in section 11.1 any reasonable holding fee or administrative charge that is permissible by law in relation to such funds and the costs incurred in holding the funds as well as trying to locate and inform you.
12. Tax requirements
12.1 It is your sole responsibility to understand and abide by any federal, state, local or foreign tax laws that may apply to your Commission payments from Posse. You understand that you may be required to provide a 'tax invoice' to Posse or complete certain ATO tax information reporting forms prior to your receipt of any Commission. You further understand that Posse may be required to provide information regarding your earnings to the ATO or any other foreign government agency that requests such information concerning its citizens.
12.2 By registering as a Fan, you represent and warrant that either:
(a) the earning of any Commission by you is made in the course or furtherance of an activity done as a private recreational pursuit or hobby, or is wholly of a private or domestic nature; or
(b) the earning of any Commission by you does not fall within section 12.2(a) and you are registered for GST purposes.
12.3 If the earning of any Commission by you does not fall within section 12.2(a) and you are registered for GST purposes or do not provide Posse with an ABN, Posse will deduct from any Commission paid to you an amount equal to any tax that it is required by law to withhold from that payment as a 'no ABN withholding'. The amount that Posse is currently required to withhold is 46.5% of the total amount of the Commission payable to you.
12.4 If you are a Fan registered for GST purposes, you must:
(a) advise Posse of your GST registration at the time of registering as a Fan and provide Posse with your ABN by sending an email to accounts@posse.com; and
(b) provide Posse with a tax invoice in a form stipulated by the ATO before any Commission payment can be made to you. To satisfy this requirement, you and Posse:
(1) agree that Posse will generate a recipient created tax invoice ('RCTI') on your behalf in accordance with section 12.5;
(2) agree that you will not issue a tax invoice to Posse for Commissions earned by you; and
(3) acknowledge that there are mutual efficiencies for you and Posse in conducting business on this basis.
If you cease to be registered for GST purposes, you must notify Posse at the earliest opportunity.
12.5 Posse will provide you with a RCTI within 28 days of the Commission being paid. The RCTI will:
(a) specify the amount of the Commission due to you and the applicable GST to be charged on that Commission; and
(b) include the following statement:
'The recipient and the supplier declare that this agreement applies to supplies to which this tax invoice relates. The recipient can issue tax invoices in respect of these supplies. The supplier will not issue tax invoices in respect of these supplies. The supplier acknowledges that it is registered for GST and that it will notify the recipient if it ceases to be registered. The recipient acknowledges that it is registered for GST and that it will notify the supplier if it ceases to be registered for GST. Acceptance of this RCTI constitutes acceptance of the terms of this written agreement. Both parties to this supply agree that they are parties to an RCTI agreement. The supplier agrees to notify the recipient if the supplier does not wish to accept the proposed agreement within 21 days of receiving this document.'
13. Sellers and Seller Websites
13.1 The Posse Services (including Ads), may include hyperlinks to Seller Websites that are not owned or controlled by Posse. You acknowledge and agree that:
(a) Posse assumes no responsibility for the Content, policies, or practices of any Seller Website. Accordingly, Posse encourages you to be aware when you leave the Posse Website and to read the terms and conditions and policies of any Seller Website that you visit as a result of using the Posse Services; and
(b) Posse is not responsible for:
(1) the availability of any Seller Website;
(2) the availability for purchase of any Product referred to in an Ad;
(3) the completeness, accuracy or existence of the Content published on any Seller Website;
(4) any loss or damage which may be incurred by you, a Buyer or any other third party as a result of any reliance placed by you, the Buyer or the third party on the completeness, accuracy or existence of the Content published on any Seller Website.
13.2 The Seller is solely responsible for:
(a) the terms and conditions which govern the sale of any Product advertised in an Ad. You may access the Seller's conditions of sale by clicking through the relevant Ad;
(b) dealing with any breaches of the Seller's conditions of sale;
(c) the sale and delivery to a Buyer of any Product advertised in an Ad;
(d) the collection of any monies payable to the Seller by a Buyer in respect of the sale of that Product;
(e) providing any customer support in respect of any Product purchased by a Buyer; and
(f) resolving any complaint or dispute regarding any Product purchased by a Buyer.
13.3 You must not, without the Seller's and Posse's prior written consent:
(a) resell or offer for resale (including via on-line auction websites), any Product on terms other than those specified by the Seller, including at a price that includes a premium; or
(b) in connection with your promotion of any Product (including the display of any Ad), provide or offer to provide to any Buyer any incentive or other inducement in order to encourage a Buyer to purchase a Product other that an incentive or inducement offered by the Seller on the Seller Website.
13.4 Posse will be entitled to payment of a commission by the Seller from each sale of a Product to a Buyer. The Seller will pay that commission to Posse under a separate legal agreement between Posse and the Seller.
14. Communications from third parties and competitions
14.1 The Posse Services may include functionality that enables third parties promoting or selling Products through the Posse Services to:
(a) communicate directly with Fans regarding those Products; and
(b) conduct competitions and provide other forms of incentives to Fans to encourage Fans to promote and facilitate the sale of those Products to Buyers.
14.2 By registering as a Fan you consent to:
(a) Posse providing those third parties with:
(1) your Posse Website user name for the purpose of enabling those third parties to communicate with you regarding those Products; and
(2) access to reporting systems that will enable those third parties to view your level of activity in relation to the promotion and sale of those Products through your use of the Posse Services; and
(b) receiving communications from those third parties regarding those Products.
14.3 If you participate in any competition conducted by or seek to receive any incentive being provided by those third parties as contemplated in section 14.1(b), you do so on the basis that those third parties will be solely responsible for administering the competition or incentive, including (without limitation):
(a) determining the terms and conditions applicable to any such competition or incentive;
(b) corresponding with you in relation to the competition or incentive;
(c) selecting the winner of the competition; and
(d) determining the eligibility for receipt of the incentive and delivering any prizes or incentives.
15. Content and proprietary rights
15.1 Posse gives to you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to access and use the Content presented to or otherwise available for use by you as part of the Posse Service solely for the purpose of promoting and facilitating the purchase of Products by Buyers and such other purposes provided for or contemplated in these Terms.
15.2 Content presented to or otherwise available for use by you as part of the Posse Services, including but not limited to Ads and other sponsored Content within the Posse Services, may be protected by intellectual property rights which are owned by Posse or the third party who provided that Content to Posse. You may only use that Content for the purposes and in the manner permitted by these Terms and may not modify, adapt, rent, lease, loan, sell, distribute or create derivative works based on that Content (either in whole or in part), unless you are specifically allowed to do so under the terms of a separate agreement with Posse or the third party who provided that Content to Posse.
15.3 All Third Party Content which you may have access to as part of, or through your use of, the Posse Services is the sole responsibility of the person from which such content originated and Posse does not represent or warrant and is not responsible for ensuring the completeness and accuracy of that Third Party Content.
15.4 By using the Posse Services you may be exposed to Content that you may find offensive, indecent or objectionable and that, in this respect, you use the Posse Services at your own risk.
15.5 You are solely responsible for (and acknowledge that to the extent permitted by law, Posse has no responsibility to you or to any third party for), any Content that you create, transmit or display while using the Posse Services and for the consequences of your actions (including any loss or damage which Posse or any third party may suffer) by doing so.
15.6 Posse assumes no responsibility for monitoring the Posse Services for any Prohibited Content or Prohibited Activity. If at any time Posse chooses, in its sole discretion, to monitor the Posse Services, Posse nonetheless assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the user submitting any such Content.
15.7 You acknowledge and agree that Posse (or Posse's licensors) own all legal right, title and interest in and to the Posse Services, including any intellectual property rights which subsist in the Posse Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You further acknowledge that the Posse Services may contain information which is confidential information of Posse and that you must not disclose such information to any third party without Posse's prior written consent, except to the extent that such disclosure is required by law.
15.8 Unless you have agreed otherwise in writing with Posse, nothing in these Terms gives you a right to use any of Posse's trade names, trademarks, service marks, logos, domain names, and other distinctive brand features unless they are incorporated in the Content and used without modification or adaptation as part of that Content.
15.9 Other than the limited license specified in section 15.1, you acknowledge and agree that you obtain no right, title or interest from Posse (or its licensors) under these Terms in or to any Content presented to or otherwise available for use by you as part of the Posse Service, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
15.10 Unless you have been expressly authorised to do so in writing by Posse, you agree that in using the Posse Services, you will not use any trade mark, service mark, trade name or logo of any company or organisation in a way that is likely or intended to cause confusion about the owner or authorised user of such marks, names or logos.
16. Prohibited Content and Prohibited Activities
16.1 The following are examples of the kind of Content that you may not post on the Posse Website or through your use of the Posse Services. Posse reserves the right to investigate and take appropriate legal action against you if you breach this provision, including without limitation, removing the offending Content from the Posse Services, cancelling your registration as a Fan and terminating your access to the Posse Services. "Prohibited Content" includes, but is not limited to, Content that, in the sole discretion of Posse:
(a) constitutes or promotes information or other material that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
(b) constitutes or promotes an illegal or unauthorised copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protect devices, or providing pirated music or links to pirated music files;
(c) is patently offensive and promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
(d) harasses or advocates harassment of another person;
(e) exploits people in a sexual or violent manner;
(f) contains nudity, excessive violence, or offensive subject matter or contains a link to an adult website;
(g) solicits personal information from anyone under 18;
(h) publicly posts information that poses or creates a privacy or security risk to any person;
(i) involves the transmission of "junk mail," "chain letters," or unsolicited mass mailing, instant messaging, "spimming," or "spamming";
(j) contains restricted or password only access pages or hidden pages or images;
(k) furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses;
(l) solicits passwords or personal identifying information for commercial or unlawful purposes from other users;
(m) involves commercial activities or sales without prior written consent from Posse such as contests, sweepstakes, barter, advertising, or pyramid schemes;
(n) includes a photograph or video of another person that you have posted without that person's consent;
(o) for band, comedy, filmmaker and other profiles, uses sexually suggestive imagery or any other unfair, misleading or deceptive Content;
(p) violates the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person; or
(q) promotes propaganda or symbols of organisations which are illegal in your country.
16.2 The following are examples of the kind of activity that is illegal or prohibited on the Posse Website and through your use of the Posse Services. Posse reserves the right to investigate and take appropriate legal action against you if you breach this provision, including without limitation, reporting you to law enforcement authorities, cancelling your registration as a Fan and terminating your access to the Posse Services. "Prohibited Activity" includes, but is not limited to:
(a) other than when displaying Ads as an Fan, advertising to, or soliciting any user of the Posse Services to buy or sell any products or services through the Posse Services;
(b) transmitting any chain letters or junk email through the Posse Services;
(c) sending unsolicited bulk email, instant messages or other unauthorised commercial communications of any kind through the Posse Services;
(d) circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person in circumventing or modifying any security technology or Software that is part of the Posse Services;
(e) activity that involves the use of viruses, bots, worms, or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware, or otherwise permit the unauthorised use of or access to a computer or a computer network;
(f) covering or obscuring the banner advertisements on any Posse page or in relation to any Posse Services used in any place in any media via HTML/CSS or any other means;
(g) any automated use of the system, including but not limited to, using scripts to send comments or messages;
(h) interfering with, disrupting, or creating an undue burden on the Posse Services or the networks or services connected to the Posse Services;
(i) impersonating or attempting to impersonate or encouraging or assisting any other person to impersonate another user, person or entity;
(j) using the account, username, or password of another user at any time or disclosing your password to any third party or permitting any third party to access your account;
(k) uploading, embedding, posting, emailing, transmitting or otherwise making available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity;
(l) selling or otherwise transferring your profile;
(m) using or attempting to use or encouraging or assisting any other person in using any information obtained from the Posse Services in order to harass, abuse, or harm another person or entity;
(n) displaying an unauthorised commercial advertisement on or associated with the Content in any place, or accepting payment or anything of value from a third person in exchange for your performing any commercial activity through the unauthorised or impermissible use of the Posse Services on behalf of that person; or
(o) using the Posse Services in a manner inconsistent with or otherwise in breach of any Applicable Laws.
16.3 The following provisions will apply where Posse, in its sole discretion, determines that you have engaged in any Prohibited Activity that constitutes a breach of the Spam Act 2003 (Cth):
(a) on the first occasion that Posse determines that you have engaged in any such Prohibited Activity, you will be issued with a warning from Posse;
(b) on the second occasion that Posse determines that you have engaged in any such Prohibited Activity, Posse will have the right to suspend your account for a period of 7 days ; and
(c) on the third occasion that Posse determines that you have engaged in any such Prohibited Activity, Posse will have the right to terminate your access to the Posse Services .
16.4 If you become aware of any user of the Posse Services posting any Prohibited Content or engaging in any Prohibited Activity, you may report the incident to Posse by filling out an incident report at admin@posse.com .
17. Ending your relationship with Posse
17.1 These Terms will continue to apply until either you cease using or Posse cancels your access to the Posse Services.
17.2 If you want to cease using the Posse Services, you may do so:
(a) without notifying Posse; or
(b) closing your account by notice to Posse. Your notice should be sent to admin@posse.com .
17.3 Posse may at any time, cancel your access to the Posse Services if:
(a) you have breached any provision of these Terms or have acted in a manner which clearly shows that you do not intend to, or are unable to comply with the provisions of these Terms;
(b) Posse is unable to verify or authenticate any information you provide to Posse;
(c) Posse is required to do so by law (for example, where the provision of the Posse Services to you is, or becomes, unlawful);
(d) the partner with whom Posse offered the Posse Services to you has terminated its relationship with Posse or ceased to offer the Posse Services to you;
(e) Posse is transitioning to no longer providing the Posse Services to users in the country in which you are resident or from which you use the Posse Services; or
(f) the provision of the Posse Services to you by Posse is, in Posse's opinion, no longer commercially viable.
17.4 Nothing in this section 17 will affect Posse's rights regarding the provision of Posse Services under section 4 of these Terms.
17.5 When you cease using or Posse cancels your access to the Posse Services, all of the legal rights, obligations and liabilities that you and Posse have benefited from, been subject to, which have accrued over time whilst you have been using the Posse Services or which are expressed to continue indefinitely, will be unaffected by this cessation or cancellation.
18. Exclusion of Warranties
18.1 Nothing in these Terms will exclude or limit Posse's warranties or liability for losses which may not be lawfully excluded or limited by applicable law. Some jurisdictions do not allow the exclusion of certain warranties or conditions or the limitation or exclusion of liability for loss or damage caused by negligence, breach of contract or breach of implied terms, or incidental or consequential damages. Accordingly, only the limitations which are lawful in your jurisdiction will apply to you and Posse's liability will be limited to the maximum extent permitted by law.
18.2 You acknowledge and agree that:
(a) your use of the Posse Services is at your own risk and that the Posse Services are provided 'As Is' and 'As Available';
(b) Posse, its subsidiaries, affiliates and licensors do not represent or warrant to you that:
(1) your use of the Posse Services will meet your requirements;
(2) your use of the Posse Services will be uninterrupted or free from error;
(3) any information obtained by you as a result of your use of the Posse Services will be complete, accurate or reliable; or
(4) defects in the operation or functionality of any Software will be corrected;
(c) except in the case of Software, any Content downloaded or otherwise obtained by you through your use of the Posse Services is done at your own discretion and risk and you will be solely responsible for any damage to your computer system or other device or loss of data that results from the download of any such material; and
(d) to the extent permitted by law, no advice or information, whether oral or written, obtained by you from Posse or through the Posse Services will create any warranty or representation not expressly stated in these Terms.
18.3 Subject to section 18.1, Posse further expressly disclaims all warranties of any kind, whether express or implied, including, nut not limited to warranties of merchantability, fitness for a particular purpose and non-infringement.
19. Limitation of liability and indemnity
19.1 Subject to section 18.1, Posse, its subsidiaries, affiliates and licensors will not be liable to you:
(a) in tort, contract or otherwise, for any:
(1) loss of profits, opportunity, revenue, data, goodwill, business or anticipated savings, pure economic loss or expectation loss; or
(2) any indirect, consequential, special, punitive or exemplary loss or damage,
even if such loss or damage was reasonably foreseeable; or
(b) any loss or damage which may be incurred by you, including but not limited to loss or damage arising out of:
(1) any reliance placed by you upon the completeness, accuracy or existence of any Ad, or as a result of any relationship or transaction between you and any Seller;
(2) any changes that Posse makes to the Posse Services;
(3) Posse ceasing, either permanently or temporarily, to provide the Posse Services or any features within the Posse Services;
(4) the deletion or corruption of, or failure to store any content or other data maintained or transmitted by or through your use of the Posse Services;
(5) your failure to provide Posse with accurate account information; or
(6) your failure to keep your password or account details secure and confidential.
19.2 If Posse is liable to you in relation to the Posse Service or these Terms, its liability is limited to a sum equal to the total amount of Commissions paid and payable to you.
19.3 You will indemnify and hold Posse, its subsidiaries and their directors, officers, employees, contractors, agents and licensors harmless from any loss, damage, proceeding and cost (including all reasonable legal costs), arising out of claim by a third party as a result of your breach of these Terms or your violation of any Applicable Law or the rights of any third party.
20. General legal terms
20.1 These Terms constitute the whole legal agreement between you and Posse regarding your use of the Posse Services and the Posse Website and completely replace any prior agreements between you and Posse in relation to your use of the Posse Services and the Posse Website.
20.2 Posse may provide you with notices, including those regarding changes to these Terms, by email, regular mail, or postings on the Posse Website.
20.3 If Posse does not exercise or enforce any legal right or remedy which is contained in these Terms (or which Posse has the benefit of under any applicable law), this will not be taken to be a formal waiver of Posse's rights and that those rights or remedies will still be available to Posse.
20.4 If a part of these Terms is held to be void, voidable or unenforceable or an invalid part severed, the remainder of these Terms is not affected.
20.5 You agree that you are not a partner or agent of Posse and that you and Posse are independent contractors. You must not represent yourself as a partner or agent of Posse.
20.6 The laws of New South Wales govern these Terms and you and Posse irrevocably submit to the exclusive jurisdiction of the courts of New South Wales. Notwithstanding this, Posse will still be allowed to apply for an injunctive remedy or an equivalent type of urgent legal relief in any jurisdiction.
21. Definitions
ABN means Australian Business Number.
Ad means an advertisement for Products published on and available for download from the Posse Website.
Applicable Laws means all applicable laws, rules and regulations (including any laws regarding the export of data or software to and from the United States or other relevant countries).
ATO means the Australian Taxation Office.
Buyer means a person who buys a Product as a result of clicking through an Ad displayed by you in accordance with these Terms.
Commission means the commission (if any) payable to a Fan as a result of the purchase of a Product by a Buyer.
Content means material and information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) and includes any Ad.
Fan means a person or other entity that registers to become a user of the Posse Services for the purpose of promoting and facilitating the sale of Products to Buyers.
GST means any goods and services tax, value added tax or sales tax imposed on the sale or supply of goods, services and rights including but not limited to a tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and the related imposition Acts of the Commonwealth of Australia.
Posse
Policies means
Posse's privacy policy (found
at
Product means any event, music, merchandise or other product available for purchase through a Seller Website.
Prohibited Activity has the meaning given in section 9.2.
Prohibited Content has the meaning given in section 9.1.
Seller means a seller of Products.
Seller Website means a website operated by or on behalf of a Seller.
Software means any software provided to you by Posse as part of the Posse Services.
Terms means these Terms of Service.
Third Party Content means Content published on the Posse Website that is owned by a third party and licensed to Posse for the purpose of being published on the Posse Website and used in the manner contemplated by these Terms.