OVERVIEW

This Pattern Library is owned and operated by Shellmade Studio Pty Ltd (“licensor”, ‘we’, ‘our’, or ‘us’).

Please read these Terms and Conditions (‘Terms’) carefully before you purchase or otherwise access our pattern library (‘Pattern Library) and our pattern designs (“Pattern Designs”). These Terms, along with our Site Terms and Conditions and our Privacy Policy (‘the Terms’), govern your access to www.shellmadestudio.com including the Pattern Library and our Pattern Designs.

By accessing the Pattern Library, you:

a.       acknowledge that you have read, and agree to comply with and be legally bound by, these Terms; and

b.       warrant that you are over 18 years of age and have the legal capacity to enter into a binding contract.

We reserve the right to modify these Terms at any time, consistent with applicable laws and principles, without notice to you. These changes will be effective as of the date we post the revised version on this Site. It is your responsibility to review these Terms prior to initial use as well as periodically throughout your use of our Pattern Library. If at any time you choose not to accept these Terms, you should discontinue your use of our Pattern Designs. By continuing to access this Pattern Library (including purchasing our Pattern Designs), you are deemed to accept any future amendments to these Terms. If you are uncertain about the Terms or anything else on our Site, please don’t hesitate to contact us before completing any purchase.

PATTERN LIBRARY

Access

You may apply to access the Pattern Library by completing the application form our Site www.shellmadestudio.com. As a condition of purchase, you agreed to be bound by our policies and procedures as set out in these Terms, including those incorporated by reference. You agree to provide accurate, current and complete information about yourself as requested or directed, and to promptly update this information to maintain its accuracy. We have the right to suspend or terminate your access to our Pattern Library if we suspect that such information is inaccurate or incomplete. We also reserve the right to deny your application for any reason.

Your access to the Pattern Library commences when your application has been accepted by us, or a date specified on our Site, and you pay the price as displayed on our Site for your preferred Pattern Design(s) and in accordance with these Terms (‘Fees’). Your access to the Pattern Library and your use of the Pattern Designs in accordance with the Licence selected, continues until terminated under these Terms.

To access the Pattern Library, you may be required to create an account. In doing so, you must provide accurate information, including your name, your business name (if applicable), address, a valid email address and contact number. You must also be at least 18 years old. You agree to update this information if and when it changes. You are solely responsible for the activity that occurs on your account, so please keep your account password secure.

Final Files

We will provide you with the necessary files to enable you to use the Pattern Design(s).  As the type of file requests may differ depending on your application of the Pattern Design, we will work with you to ensure you receive the appropriate file type.

PRICES AND PAYMENT

Prices

All prices are in the currency identified on our Site. The prices indicated on the Site may change at any time without advance notice to you. Purchases will be charged at the price in force at the time your order is validated.

We reserve the right at any time to modify or discontinue any product or service without notice at any time. We shall not be liable to you, or to a third party, for any modification, price change, suspension or discontinuance of the product or service.

Discounts

We may from time to time provide discounted products and/or services. You may only use one discount code with each purchase. We reserve the right to reject or cancel any orders where you add more than one discount code. We allow you to use discount codes strictly on the terms and conditions upon which they were issued which, amongst other things, may include terms relating to your eligibility to use them and a maximum order value. Discount codes and/or vouchers cannot be used in conjunction with any other offer or promotion.

Payment

We offer the option to pay for our products and/or services by credit card or such other method of payment as indicated on our Site. You acknowledge and agree to make timely and full payments to us for the products and/or services purchased. Where you use a credit card, you warrant that you have the necessary rights and authority to use that credit card. You authorise us to automatically charge the credit card on file for any and all payment balances owed and agree to keep all billing information current at all times. Where you fail to make payment or payment is declined for any reason, we may revoke your access to our products or services.

Buy out fee (assignment of copyright)

If you would like us to assign ownership in the Pattern Design you must email us at michelle@shellmadestudio.com with your request and we will consider such a request and confirm the cost of assignment.  You will be responsible for all costs associated with any assignment should we agree to assign our copyright (including any reasonable legal costs).

INTELLECTUAL PROPERTY RIGHTS

Ownership of Site Content

The Site, products and services contain Intellectual Property Rights owned by us and / or by third-parties that license the content to us (“Third-Party Licensed Intellectual Property”), including, without limitation, trademarks, copyrights, proprietary information, designs, patents and other intellectual property rights, as well as the business name, logo, images, all designs, text, videos, audio files, graphics, other files, and software.  Your use of the Site, the services and access to any content does not grant or transfer any rights, title or interest to you in relation to this Site, the services or the content.  Any rights not expressly granted under these Terms are reserved by us.

No Commercial Use

Except as set out in these Terms, you may not modify, publish, transmit, participate in the transfer or sale of, create derivative works from, distribute, display, reproduce or perform, or in any way exploit in any format whatsoever the Site, the services or the Pattern Designs, our Intellectual Property and Third-Party Licensed Intellectual Property in whole or in part without our prior written consent. We reserve the right to immediately remove your access to our Site, products and services, Pattern Designs, without refund, if you are found to be violating these Terms. 

Ownership of Pattern Designs

Regardless of the type of licence (as set out in Schedule 1 below), you acknowledge and agree that we retain ownership of all Intellectual Property Rights (including moral rights being the right to be recognised as the creator or author of the work and the right to control how the work is used and modified and any other rights that may be granted to us under law as the author and creator) in our Pattern Designs; to the extent that what you produce whether digital or physical which contains our Intellectual Property (“Licensed Product”), you are granted (after full payment of all Fees) a licence to use our Intellectual Property for the purposes set out in these Terms (“Agreed Purpose”), you will not provide access to the Licensed Product to any third parties outside of the Agreed Purpose.

In relation to your use of the Intellectual Property Rights in the Pattern Designs and otherwise in connection with these Terms you acknowledge and agree, you must not (and you must ensure your employees and contractors do not) commit any breach of our Intellectual Property Rights.

You acknowledge that the unauthorised use of our intellectual property rights can cause irreparable harm, and that injunctive relief may be necessary to prevent ongoing or future harm.

You must notify us immediately and in writing, providing full details, if you become aware of any:

a.       actual, suspected or threatened infringement of our Intellectual Property Rights in the Pattern Designs;

b.       any claim that the images infringe the rights of any third party; or 

c.        anything else that may adversely affect the Intellectual Property Rights in the Pattern Designs.

In the event of any action described immediately above, we may:

·         seek the opinion of a legal advisor as to the possible success of any actions; and

·         institute and prosecute an action against entity infringing on our Intellectual Property Rights in our sole and absolute discretion.

Whilst we will control any dispute or litigation process, you acknowledge and agree to provide us with appropriate support and cooperation in relation to any matter including but not limited to timely unfettered access to relevant records / copies of materials and executing of legal documentation as reasonably requested (such as an affidavit or statutory declaration).

By purchasing from our Site, you agree and acknowledge that we may reproduce images of your Licensed Product, together with reference and credit to you (including your name and or trade mark) for the Licensed Product creation, on websites, social media and any other media for recognition or professional advancement purposes.

Attribution Requirements

You agree and acknowledge that by purchasing our Pattern Designs, you will include the following acknowledgement of ownership and credit, anywhere you use the Pattern Designs (including but not limited to websites printed materials (where the appropriate licence has been acquired) social media, or any other editorial or advertising purposes.

For Example:

Credit: Artwork designed by Shellmade Studio @Shellmadesudio #shellmadestudio and reproduced with permission / authorisation. 

LICENSING

See Schedule 1 which sets out the licence we provide subject to the Pattern Design selected.

Where you purchase and download our Pattern Designs, you are granted a non-transferable, licence in accordance with these Terms. You may not assign or transfer the Pattern Designs to any other person without our express written consent. We reserve the right to refuse to provide any Pattern Designs, our other products and/or services to you at any time for any reason.

You acknowledge and agree that you have no right to modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, sell, create derivative works of, enhance or in any way exploit any of our Pattern Designs in any manner whatsoever except as authorised by us or otherwise in accordance with the Licence you have selected at time of purchase.

What can I use the Licence for?

The use of the Pattern Designs is subject to the licence you have selected at time of purchased.  Please ensure that you read through the license Terms to ensure you understand what use applies to your licence and what restrictions apply (see What restrictions apply to my licence?  For information on restrictions). 

For the purposes of these Terms, “use” means to modify, copy, publish, transmit, edit, broadcast, participate in the transfer or sale of, create derivative works from, distribute, display, reproduce or perform, or in any way exploit in any format whatsoever or otherwise make use of.

Commercial Licences (royalty free)

You can use the Pattern Designs for commercial purposes as set out in Schedule 1 below. 

What restrictions apply to my licence?

We have set out below what restrictions apply.  Irrespective of licence, you must not use the Pattern Designs for any libellous, abusive (including promoting violence or hatred), any obscene material or otherwise in an unlawful manner including breach of any applicable laws, codes or standards. 

You cannot:

·         falsely attribute yourself as the original creator of the end product where the end product is substantially made up of the licensed Pattern Designs;

·         use the licensed Pattern Designs to incorporate into any trade mark or logo (including design mark, business name, service mark).  Under no circumstances you register our Pattern Designs in; or

·         allow others to be able to download, extract, or redistribute any  Pattern Designs made available other than as allowed under your applicable licence.

Commercial Licence

If there are no specific terms agreed for your licence, the following restrictions will apply:

Non-Transferability: The licence is non-transferable and cannot be assigned, sub-licensed, or otherwise transferred to any third party without the licensor's prior written consent.

Non-Exclusive after license term ends (2 years):  Unless expressly specified in Schedule 1, the licence is non-exclusive, and we retain the right to license the same Pattern Designs to other parties for the same or similar purposes.

No Modification: The licensee may not modify, alter, or create derivative works based on the licensed artwork without the licensor's prior written consent.

No Unauthorised Use: The licensee may not use the licensed artwork for any unlawful purpose or in any way that may be considered offensive, defamatory, or otherwise objectionable.

No Ownership: The licensee does not acquire any ownership or intellectual property rights in the licensed artwork, and all such rights remain with the licensor.

Limited Term: The licence is valid for a limited term as per the Licence selected in Schedule 1, and the licensee must cease all use of the licensed artwork upon the expiration of the term.  If you do not renew in accordance with the renewal process set out below, you are no longer permitted to use the Pattern Design.

How many users allowed?

The rights we have granted to you are non-transferable and non-sublicensable, which means you cannot transfer or sublicence any rights we grant you.  The number of users permitted to use the licensed Pattern Designs is 1.

Commercial Licences – 1 user

Renewal of Licence

Where a term is specified (Initial Term), at the end of the Initial Term, the licensee may have the option to renew the license for an additional term by following these steps:

1.       The licensee must provide written notice of their intent to renew to the licensor at least thirty 30 days prior to the end of the current term.

2.       Upon receipt of the notice, the licensor will provide the licensee with the renewal fee amount and any updated terms and conditions, if applicable.

3.       If the licensee wishes to proceed with the renewal, they must pay the renewal fee in full within 14 days of receipt of the renewal fee amount.

4.       Once the renewal fee is received, the licensor will receive confirmation of the new term.  Any renewed licence period will be subject to these Terms.

The renewal fee for the license shall be as notified in writing or as otherwise advertised on our Site and shall be based on factors such as the type and scope of the license, the duration of the license term, and the current market rates for similar licenses. The licensor reserves the right to refuse renewal of the license at their discretion.

REFUNDS

Due to the nature of our Pattern Designs and the ability you have to preview the actual Pattern Designs on our Site prior to purchase, any orders received and processed by us for the Pattern Designs available to be purchased online, have a strict NO REFUND/RETURN/EXCHANGE POLICY as this will be considered a ‘change of mind’. If you have purchased the wrong Pattern Designs and you have contacted us immediately AND prior to the Pattern Designs being sent to you, we will send the correct Pattern Designs to you.  No refund will be provided for not liking the Pattern Designs or for incorrect Pattern Designs that have already been sent.  Where a Pattern Design is sent in error by us, we will send the correct Pattern Design at no extra cost.  This does not affect any consumer rights you may have under applicable consumer law legislation.

INTERNATIONAL USERS

We provide our Services from our offices within Australia.  If you accessing our Site from a location outside of Australia, you are responsible for compliance with your local laws including those relating to any taxes that may apply to your purchase of our Pattern Designs and/or our Services.  You agree that you will not use the Pattern Designs accessed through our Services in any country or territory in any manner that would be in breach of any applicable laws, regulations or other restrictions.

INSURANCE

Each party is responsible for maintaining applicable insurances.

COMPLAINTS (DISPUTE RESOLUTION)

We are committed to your enjoyment of and satisfaction with the Pattern Designs. Should you have any concerns or be dissatisfied in any way, please contact us via email at michelle@shellmadestudio.com and include:

a.       your name;

b.       the email address you used place your order;

c.        details of your concern or complaint;

d.       details of what you would like us to do to resolve the matter; and

e.       copies of any relevant correspondence.

We will acknowledge your complaint within 3 business days and aim to resolve it within 14 business days. If we are unable to do so, we will provide an explanation accordingly.

You agree not to engage in any behaviour, in public or in private, that is negative or derogatory towards us, and we agree to the same. This includes (but is not limited to) communications with third parties or posting on social media.

Where the parties are unable to resolve a dispute or claim in accordance with the steps set out above, then any dispute or claim arising out of or relating to these Terms, or the breach, termination, enforcement, interpretation, or validity of these Terms, shall be resolved by mediation and/or arbitration.

Mediation: In the event of a dispute, the parties agree to first attempt to resolve the dispute through mediation. The parties will jointly select a mediator, who will be neutral and independent. If the parties are unable to agree on a mediator, they will request a list of mediators from a mutually agreed-upon mediation service and select a mediator from the list.

This mediation clause will survive the termination or expiration of these Terms.

The costs of the mediation shall be borne equally by the parties, unless otherwise agreed upon by the parties.  Each party will be responsible for their own legal fees and expenses incurred in connection with the mediation.

Notwithstanding the provisions dealing with mediation above, if you infringe our Intellectual Property Rights, we reserve the right to immediately terminate your access to the to our Pattern Designs library and you must immediately cease using our Pattern Designs including any Licenced Product and we reserve the right to pursue legal remedies including an accounting of profits should you use our Pattern Designs outside the scope of the licence you have purchased.  You will be liable for all costs (including reasonable legal costs) incurred due to your breach of our Intellectual Property Rights.

TESTIMONIALS

On our Site, we may present real-life examples of and insights into other customers’ and/or clients’ experiences with our products and/or services for illustration purposes only. Any results presented demonstrate to users what can be possible, but are not intended to represent or guarantee that any current or future users of our programs, courses, products and/or services will achieve the same or similar results.

Where you have provided testimonials (in any format), you acknowledge that we may use these along with reference to you on our Site and social media channels, or any other avenue, for promotional and other purposes at our discretion.

TERM AND TERMINATION

These Terms will be in effect for the entire duration of the chosen License Period, including any renewal terms. Unless explicitly stated otherwise, these Terms will remain in effect until terminated.

We may terminate the Licence with immediate effect if you do not comply with these Terms for example if you do not pay the applicable licence fees or you otherwise breach any obligation under these Terms.

If terminated, the licence granted to you under these Terms is immediately revoked, and you must cease using our content and/or the Pattern Designs in any capacity, including selling the Licensed Product which incorporates our Pattern Designs.  You must delete or destroy any Pattern Designs including any unsold Licensed Product and if requested confirm to us in writing that you have completed with these requirements.

The accrued rights, obligations and remedies of the parties are not affected by the termination of these Terms.

CONFIDENTIALITY

Each party agrees that, unless it has the prior written consent of the other party, it will:

a.       keep the Confidential Information of the other party confidential at all times;

b.       ensure that any person to whom Confidential Information is disclosed is aware of and complies with this clause; and

c.        where there is prior consent, inform the other party of any proposed disclosure, including the form of disclosure, within a reasonable timeframe.

These obligations of confidentiality do not apply to any disclosure that:

a.       is for the purpose of performing the Agreement or exercising a party’s rights under the Agreement;

b.       is required by Applicable Law; or

c.        relates to Confidential Information that is publicly available through no fault of the receiving party, or was rightfully received from a third party without restriction and without the breach of any obligation of confidence.

Any Confidential Information supplied to us that incorporates personal information will be dealt with in accordance with our Privacy Policy, which is available on our website.

WARRANTIES, INDEMNITIES AND LIABILITIES

Warranties

We warrant that we are the author and owner of the Intellectual Property Rights in the Pattern Designs and have the authority to license the Pattern Designs to you in accordance with these Terms.

Except as set out in these Terms, the Pattern Designs are provided on an “as is” basis, without representation, warranty or condition of any kind (either express or implied), including but not limited to the Pattern Designs being fit for any particular purpose. Further, we do not warrant or represent that the Pattern Designs will meet your requirements, or your use will be error free.

If you breach the limitations of the licence granted under these Terms, you warrant that you will account for and forward to us any profit made because of the breach.

Any express or implied warranty or condition relating to these Terms or its subject matter that are not contained in these Terms are excluded to the maximum extent permitted by law.

Nothing in these Terms excludes, restricts or modifies any condition, warranty, right or remedy implied or imposed by any law that cannot be lawfully excluded, restricted or modified.

Indemnity

To the fullest extent permitted by applicable laws, you agree to indemnify, and  hold us and our related entities, affiliates, and our and their respective officers, agents and employees harmless from any loss, liability, claim, or demand, (including reasonable legal fees on a full indemnity basis), made by any third party due to or arising out of or in connection with your use of the Pattern Designs, any information you supply to us, your use of this Site in violation of these Terms and/or arising from a breach of these Terms and/or any breach of your representations and warranties set out in these Terms or your breach of any law or the rights of a third party.

You agree to not do anything or omit to do anything that would likely damage or negatively impact, harm or bring into disrepute our reputation, brand or image or the reputation, brand or image of our business or the Pattern Designs.

We will not be responsible for any errors or defects in the Pattern Designs in situations where you have failed to properly review them prior to commencing creation of the Licensed Products. If any files sent to you by us including the Pattern Designs are defective, we will reissue them on request.

Neither party will be liable or held in breach of these Terms for any failure to perform its obligations to the extent that said failure is caused by the other party’s noncompliance, negligence, or misconduct.  We will not be liable for any loss or damage suffered by a third party in connection with these Terms.

Each party agrees to take reasonable steps to mitigate any loss, damage, or expense it may suffer or incur, arising out of anything done or not done by the other party in connection with these Terms.

 Liability

To the fullest extent permitted by applicable laws, in no event are we responsible for any losses and expenses however arising, including without limitation, any direct, indirect and/or present, unascertained, future or contingent, loss of use, loss of data, loss caused by a virus, loss of income or profit or projected profit, loss or damage to property, claims of third parties, or other losses of any kind or character arising from or in connection with your use of our Site and /or our products or services (including Pattern Designs), your inability to access our Site, interruption or outage of our Site or the fact that content on our Site (including Pattern Designs) or in our services is inaccurate, incomplete or out of date. 

Our liability to you (including under indemnity) is capped to the return of all licence fees paid in the 12 months preceding the liability event and will be reduced to the extent that your acts (including modifying the Pattern Designs) or omissions contribute to or cause the liability.  This indemnity will not apply to your continuing use of that Pattern Designs following notice from us that the Pattern Designs is subject to a claim of infringement.

PRIVACY

These Terms also include our Privacy Policy which sets out how we use your personal information, which can be accessed on our website. By using this Site, you consent to the processing described in the Privacy Policy and warrant that all data provided by you is accurate.

ELECTRONIC COMMUNICATIONS AND ELECTRONIC SIGNATURES

These Terms will become binding when you agree to these Terms, including by clicking 'I consent' or 'I agree' or similar, or by purchasing the Pattern Designs.  You further acknowledge and agree that when you click on “I agree”, “I consent”, or other similarly worded click or tick options by electronic means using an electronic device such as your mobile phone, tablet, desktop, laptop or any other computer device capable of allowing you to click or tick, your agreement and/or consent will be legally binding and enforceable and will be deemed to be as effective as if you had written your signature by hand.

PATTERN DESIGN INFORMATION

Whilst we do our best to ensure that the colours of any Pattern Designs are accurately displayed and/or described,  depending on the device you use, colours may appear differently in digital or print format. This can be for a number of reasons which are outside of our reasonable control, and you accept that the exact colour of the product may differ between orders and agree that this would not constitute a breach of the Terms.

PROHIBITED USE

In addition to any other prohibitions, you must not, under any circumstances, use the Site or its content (including Pattern Designs):

·         for any unlawful purpose;

·         to solicit others to perform or participate in any unlawful acts;

·         to violate any international, federal, or state regulations, rules, laws, or local ordinances;

·         to attempt to change, remove, deface, hack or otherwise interfere with our Site or any material or content displayed on the Site;

·         to hack into any aspect of the Site, corrupt data, or cause annoyance to other users;

·         to infringe upon any other person's proprietary rights;

·         to send any unsolicited advertising or promotional material, commonly referred to as “spam”; or

·         to attempt to affect the performance or functionality of any computer facilities of or accessed through our Site.

SEVERABILITY

If any term or provision of these Terms is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of these Terms will remain in full force and effect.

VALIDITY

Whenever possible, each provision of these Terms will be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of these Terms is held invalid or unenforceable, the remainder of these Terms will nevertheless remain in full force and effect and the invalid or unenforceable provision will be replaced by a valid or enforceable provision. 

ASSIGNMENT

You cannot assign these Terms, or otherwise deal with the benefit of them or any rights under them, without our prior written consent. We reserve the right to assign or novate the Terms, or otherwise deal with the benefit of them or rights under them, without your consent.

ENTIRE AGREEMENT

These Terms (together with our Privacy Policy and disclaimers) contained on this Site, constitute the entire understanding and agreement between us and you, in relation to your use of this Site and supersede all previous communications, negotiations, and agreements, whether oral, written, or electronic, respect to this Site and your use of this Site.

GOVERNING LAW AND JURISDICTION

All Terms shall be construed in accordance with and governed in all respects by the laws of the Australian Government. In relation to any dispute, we ask that you contact us in the first instance so that both parties can, acting in good faith, resolve the dispute to our mutual satisfaction as quickly, cost effectively and efficiently as possible.  Where a dispute cannot be resolved, you agree to submit to the non-exclusive jurisdiction of the courts of Australia, New South Wales.

SCHEDULE 1:

Licence Type
Commercial - Royalty-Free

You pay a one-time fee to use the design and can use it multiple times for various projects without any additional fees.

Approved Purpose

Unlimited usage for the buyer

Term

Exclusive for 2 years

Territory

Worldwide