Terms of Service
The Poly Garden , owns, operates and maintains this Website, www.thepolygarden.com and the content contained therein, and asserts its copyright.
- Accessing this Website
1.1 By accessing this Website, Users agree to be bound by these Terms and Conditions of Use. If Users do not agree with any of these terms and conditions, Users are prohibited from using or accessing the Website or accessing the Services. The materials contained in this website are protected by applicable intellectual property law.
1.2 Use of parts of the Website (including those parts of the Website which are accessible to members of the public) also may be subject to disclaimers or additional terms and conditions.
1.3 The Poly Garden Store may in its sole and absolute discretion, for any reason or no reason, and without notice:
(a) alter or withdraw any functionality on the Website;
(b) withdraw or suspend access to all or any part of the Website and any account;
(c) monitor the use of the Website;
(d) subject to any applicable laws, treat any material that Users transmit or display as non-confidential and non-proprietary; and
(e) edit or remove any material that Users may have uploaded, posted, emailed or otherwise transmitted to the Website.
- Services provided by The Poly Garden Store
2.1 The Poly Garden Store operates the Website as an online platform and marketplace to facilitate communication between Users of the Website who wish to sell a Licence to use an Asset (Licensors) via a listing on the Website (Listing) and other Users who wish to buy a Licence to use an Asset (Licensees). The Poly Garden may also licence its own Assets for use by Users.
2.2 The Poly Garden Store’s Services are limited to Assets that are created by The Poly Garden Store or Users and can be validly licenced and delivered in electronic form by the Licensor.
2.3 The Poly Garden Store does not endorse, approve or induce the licensing or distribution of Assets in breach of any third party terms and conditions and does not encourage the breaching of contractual terms imposed by a third party.
- User License - Website
3.1 Permission is granted to temporarily download any of the Website materials (information or software) on the website for personal, non-commercial transitory viewing only.
3.2 This is a grant of a license, not a transfer of title, and under this license Users may not:
(a) modify or copy the materials;
(b) use the materials for any commercial purpose, or for any public display (commercial or non-commercial);
(c) attempt to decompile or reverse engineer any software contained on the website;
(d) remove any copyright or other proprietary notations from the materials; or
(e) transfer the materials to another person or "mirror" the materials on any other server.
3.3 A User’s license under this clause shall automatically terminate if that User breaches any of these Terms and Conditions of Use. In addition, The Poly Garden Store may at its discretion, terminate the licence. Upon termination of the licence, that User will have no right to view the Website or any of the content therein and that User must destroy any downloaded materials in that User’s possession or control, whether in electronic or printed format.
- Use of the Website
4.1 Users must not, in connection with the use of the Website, act in a manner which:
(a) is contrary to any law or any third party’s rights, or which may encourage a person to act in a way which is contrary to any law or any third party’s rights;
(b) may result in damage to the Website or any property or equipment of The Poly Garden Store, its directors, employees, contractors or agents;
(c) may restrict, disrupt or inhibit any other user from using or enjoying the Website;
(d) endangers the health or safety of any person;
(e) may cause an interference to any business conducted by The Poly Garden Store;
(f) upload, post, email or otherwise transmit any of the following to, or through, the Website:
(i) confidential material;
(ii) misleading or deceptive material;
(iii) material which the User does not have a right to upload, post, email or otherwise transmit, such as material which is protected by copyright, patent, trade mark, service mark, or any other proprietary right, without first obtaining express permission from the owner of the material or relevant right holder and providing with the material appropriate acknowledgement of existence of the right and the permission of the right holder; or
(iv) material which contains a virus, or other harmful or potentially harmful code;
(g) alter, damage or delete any material on the Website;
(h) hold yourself out as having any authority to act on behalf of us; or
(i) collect or store personal information about other users in a manner which is inconsistent with these Terms and Conditions of Use.
4.2 Users must obey any lawful instruction of The Poly Garden Store in using the Website.
4.3 Users consent to The Poly Garden Store’s use of transaction monitoring and fraud detection techniques to ensure the integrity of the Website.
- Accounts
5.1 In order to commence licensing or purchasing a Licence, a User must first register a personal, individual account by creating a username and a password and by providing such information as may be required by The Poly Garden Store from time to time, including the User’s real name, contact telephone number, billing address, bank account details and a valid credit or debit card that we approve and accept (Account).
5.2 Account names must not be:
(a) misleading or deceptive;
(b) offensive;
(c) in violation or any law or third party rights.
5.3 The Poly Garden Store may, at its sole discretion and for any or no reason, refuse registration of, or cancel an Account.
5.4 Users are solely responsible for activity on the Account and shall be responsible for maintaining the confidentiality of the Account password. No sharing of Accounts is permitted.
5.6 Users acknowledge and agree that The Poly Garden Store does not make any representation as to the success or the likely success of the sale of a licence to use or proposed sale of a licence to use Asset, or the success or the likely success of use of an Asset.
- Asset Listings
6.1 All Assets submitted for Listing shall be in an approved format as determined by The Poly Garden Store.
6.2 The content and material related to an Asset shall not contain unauthorised third party intellectual property, or unauthorised material that is subject to other third-party proprietary rights.
6.3 The Poly Garden Store may, at its sole discretion and for any or no reason, delete, edit, modify, reformat, convert, excerpt, or translate any material or content related to an Asset Listing.
6.4 The Poly Garden Store will set the price for the licensing of each Asset submitted. Each Asset will be licensed in accordance with the End User Licence Agreement.
6.5 Users acknowledge that The Poly Garden Store may establish general practices and limits concerning use of the Services, including without limitation the maximum size of an Asset, the period of time that data or other content will be retained by The Poly Garden Store and the maximum storage space that will be allocated to an Asset or Listing.
6.6 The Poly Garden Store may at its sole discretion for any reason or no reason, terminate any Listing at any time without notice to you.
- Licensors
7.1 By submitting an Asset to The Poly Garden Store, Licensors are making a binding offer to Licence that Asset to a User Licensee who purchases the licence to use the Asset in accordance with the End User Licence Agreement for the Price.
7.2 Prior to listing Assets, Licensors should carefully consider the legal rights and obligations that may arise between the Licensor and a Licensee and under these Terms and Conditions of Use and the End User Licence Agreement from the licensing of the Assets and, if in doubt, Licensors should seek further legal advice in respect of these rights and obligations.
7.13 Licensors acknowledge and agree that The Poly Garden Store has no responsibility, duty or obligation to review the authenticity or accuracy of any Asset or Listing.
7.14 It is the Licensor’s responsibility to ensure compliance with any legal restrictions placed on the sale of Licences, whether in the Licensor’s home city, state, territory or country or in any other city, state, territory or country. The Poly Garden Store is not responsible for Licensors’ compliance with any such applicable laws. The Poly Garden Store does not accept any liability for Assets listed in breach of any terms or conditions applicable to such Assets and Licensors shall remain solely responsible to the relevant parties for any consequences of listing an Asset in breach of such terms and conditions.
7.15 Licensors agree to indemnify and hold harmless The Poly Garden Store and Licensees from and against all losses, liabilities, damages, fines, expenses and costs arising out of or in connection with a Licensor’s failure to provide full and accurate details of Assets in a Listing.
7.16 Licensors warrant to and for the benefit of The Poly Garden Store, the following:
(a) Each Asset submitted is:
(i) created by the Licensor;
(ii) fully licenseable;
(iii) free of any malicious code, data or set of instructions that intentionally or unintentionally causes harm or subverts the intended function of any software or hardware, including, but not limited to viruses, Trojan horses, worms, time bombs, cancelbots, Easter eggs or other computer programming routines that may damage, modify, delete, detrimentally interfere with, surreptitiously intercept, access without authority or expropriate any system, data or personal information.
(iii) not offered for licensing in breach of any terms and conditions applicable to that Asset.
(b) In offering a Licence for sale via the Website, Licensors are complying with all applicable laws, regulations and codes of practice including, but not limited to, consumer or other legislation which regulates the activities of the Licensor or which may be applicable to the resale of any Licence within any relevant territory, state or country; and
(c) All information Licensors provide to The Poly Garden Store when applying to become a Licensor or at any time thereafter is true and accurate in all respects.
7.17 A Licensee will receive 50% of the Price received by the Poly Garden Store for each sale of a Licence relating to an Asset submitted by that Licensee.
- Licensees
8.1 Licensees should carefully read the full Listing details and the End User Licence Agreement for each Asset and Licence before buying a Licence.
8.2 Licensees click to buy a Licence, enter and/or confirm payment information and confirm the purchase of the Licence. Upon confirming a purchase, the Licensee is committing to a contractual obligation to buy the selected Licence for the Price, and to make such additional payments as may be required, including those imposed by The Poly Garden Store, its payment partners and the Licensee’s financial institution.
8.3 Licence Prices displayed on a Listing are exclusive of all applicable GST, and may be subject to third party transaction fees.
8.4 All payments must be made, and will be taken, in Australian dollars.
8.5 To the fullest extent permitted by law (and subject to rights under the Australian Consumer Law rights) all Licence purchases are final and no refund or exchanges will be provided by The Poly Garden Store.
8.6 Nothing in this clause 8 is intended to limit, or limits, any rights Licensees may have under the Competition and Consumer Act 2010 (Cth) (including under the Australian Consumer Law set out in Schedule 2 of that Act) or any other applicable consumer law.
8.7 Licensees may raise a dispute on the following grounds:
- The Asset does not match the information provided on the Listing;
- The Asset is invalid or is otherwise not authentic;
- The Licensee is not permitted to use the Asset on the basis of the authenticity or validity of the Asset.
8.8 Licensees shall not raise a dispute where:
- The Asset matches the information provided on the Listing;
- The Asset is valid, but cannot be used by the Licensee due to an incompatibility or limitation of the Licensee’s software or hardware;
- The Licensee is not permitted entry on some other basis apart from the authenticity or validity of the Asset;
- The Asset provided did not meet the Licensee’s expectations;
- The Licensee was subject to an additional fee or charge in relation to the Asset or the use of the Asset where the possibility of an additional fee or charge was disclosed in these Terms and Conditions of Use or the Listing.
8.9 Notices of disputes must be made to The Poly Garden Store as soon as is reasonably practicable but no later than 48 hours after the Asset has been discovered to be affected by a matter set out in 8.7.
8.10 All disputes should be raised via methods and using such forms as may be determined by The Poly Garden Store from time to time.
- Privacy
9.1 Users agree that their personal information will be collected, handled, used and stored in accordance with The Poly Garden Store’s Privacy Policy, which can be accessed at www.thepolygarden.com/terms-of-service
9.2 Without limitation to the terms of The Poly Garden Store’s Privacy Policy, users agree to the collection and storage of the following personal and sensitive information, including:
- Identifying information such as name and date of birth;
- contact information such as home address, home and mobile phone numbers
and email address;
- financial information, such as bank account and credit card details; and
- information about involvement in other programs you participate in or
memberships you may have.
9.3 The Poly Garden Store may use personal information collected from Users to provide Users with information, updates and our services. The Poly Garden Store may also make Users aware of new and additional products, services and opportunities available to Users, provided by The Poly Garden Store, our partners, service providers and customers. The Poly Garden Store may use Users’ personal information to improve our products and services and better understand Users’ needs.
9.4 The Poly Garden Store may contact Users by a variety of measures including, but not limited to telephone, email, sms or mail.
9.5 The Poly Garden Store may disclose a User’s personal information to any of our employees, officers, insurers, professional advisers, agents, suppliers, service providers customers or subcontractors insofar as reasonably necessary for the purposes set out in The Poly Garden Store’s Privacy Policy. Personal information is only supplied to a third party when it is required for the delivery of our services, or for marketing purposes.
- Tax
10.1 Users are solely responsible for obtaining their own tax advice before using the Website and Services.
10.2 Licensors are solely responsible for any tax consequences as a result of the use of the Website and the Services.
- Users’ Intellectual Property
All material and content posted or submitted by a User on the Website, including Assets are the intellectual property of that User. However, each User grants a free and irrevocable licence in perpetuity to The Poly Garden Store and its assigns and successors to use any part or the whole of any intellectual property, in any form, for any purpose it deems fit, including for advertising and marketing of the Website or any other products and services offered by The Poly Garden Store, its related bodies corporate, partners, advertisers, suppliers or contractors.
- No warranties and limitation of liability
12.1 To the extent permitted by law, The Poly Garden Store excludes all representations and warranties, express or implied, other than those contained in these terms and conditions. Where The Poly Garden Store is found to be liable for breach of any warranty or condition implied by statute and which it cannot lawfully exclude (such as under the Competition and Consumer Law Act 2010 (Cth)), The Poly Garden Store’s liability is limited (to the extent permitted by law) at its option to the following:
- in the case of goods supplied or offered by it:
- to the supply of those goods again; or
(ii) to the payment of the cost of having those goods supplied again; or
(b) in the case of services supplied or offered by it:
(i) to the supply of the services again; or
(ii) to the payment of the cost of having services supplied again.
12.2 The Poly Garden Store, its related bodies corporate, its directors, and its employees accept no liability for any loss (including loss of revenue or anticipated profits, loss of goodwill, loss of business, loss of data, computer failure or malfunction), or injury or any direct, indirect, consequential, special, punitive, or other damages caused by or as a result of:
(a) a User’s use of or inability to use the Website or an Asset,
(b) any virus or other harmful, or potentially harmful, code which may be transmitted in connection with use of the Website or an Asset;
(c) any information available on or through the Website or on or through any website to which there is a link from the Website; or
(d) The Poly Garden Store’s negligence or the negligence of any of its related bodies corporate, directors, officers, shareholders, employees, provider institutions or agents.
12.3 Users indemnify The Poly Garden Store, its related bodies corporate, their officers and employees, and service providers) from and against all:
(a) liability to any third party;
(b) damage to property; and
(c) other liability, damage or loss;
insofar as the injury, damage or other liability, damage or loss is attributable to that User’s negligence, breach of these terms and conditions, or unlawful or wilful action in connection with these terms and conditions, their performance, or the failure to perform them.
- Revisions and Errata
The materials appearing on The Poly Garden Store’s website could include technical, typographical, or photographic errors. The Poly Garden Store does not warrant that any of the materials on its website are accurate, complete, or current. The Poly Garden Store may make changes to the materials contained on its website at any time without notice. The Poly Garden Store does not, however, make any commitment to update the materials.
- Links and Advertising
The Poly Garden Store has not reviewed the sites linked to or from the Website or third party advertising. All links and advertising provided are for Users’ convenience only, and The Poly Garden Store is not responsible for the content of any such linked site or advertising. The inclusion of any link or advertising does not imply endorsement by The Poly Garden Store of the site. Use of any such linked website or advertising is at the User's own risk.
- Website Terms of Use Modifications
The Poly Garden Store may revise these terms of use for its website at any time without notice. By using this Website, Users are agreeing to be bound by the then current version of these Terms and Conditions of Use.
- Governing Law
Any claim relating to these Terms and Conditions of Use or the use of the Website or Services shall be governed by the laws of the State of Victoria, Australia without regard to its conflict of law provisions, and Users agree to submit to the jurisdiction of the Courts of that State.
- Severance
If any provision of these Terms and Conditions of Use is held invalid, unenforceable, or illegal for any reason, these terms and conditions remain otherwise in full force and effect apart from such provision which will be read down to the extent of the invalidity, unenforceability or illegality, and if it is not possible to read down the provision it, will be deemed deleted.
- Definitions
Account has the meaning set out in 5.1.
Asset means any software asset created by The Poly Garden Store or a User that is available under a Licence to other Users including three dimensional representations or model assets, and textures.
Licence means a licence granted to use an Asset in accordance with The Poly Garden Store’s End User Licence Agreement as amended from time to time.
Licensor means a User that submits an Asset which it has the right to licence to The Poly Garden Store for licensing to Users who pay the Price.
Licensees means a User that acquires or seeks to acquire a licence to use an Asset.
Listing means a listing on the Website displaying the Asset and related information including the price of the licence, descriptions and links to a download of the Asset.
Price means the price set by The Poly Garden Store for the licensing of an Asset in accordance with the End User Licence Agreement.
Website means the domain http://www.thepolygarden.com and all sub-domains.
Services means
User means any person accessing the Website or Services provided by The Poly Garden Store.