Terms & Conditions
1.1. Mixing Technology Pty Ltd ATF the Mix Tech Trust (Mixing Technology, we, us, our) owns and operates software tools which assist with sound design and theatre management, including the application, TheatreMix, found at https://theatremix.com/ (Software).
1.2. Mixing Technology agrees to provide You (User, you, your) access to the Software for the Permitted Use (Services) on the Terms and Conditions set out in this agreement.
1.3. Your use and access to the Services will be governed by these Mixing Technology Terms & Conditions (Terms and Conditions) and will form the agreement between you and Mixing Technology.
1.4. These Terms and Conditions will apply to your access to of the Services, even if you have not paid for them.
1.5. Mixing Technology may update these Terms and Conditions, from time to time, by giving you notice of the updates by publishing them on our website, https://theatremix.com/agreement.
1.6. All capitalised or bold terms used in this agreement have the meaning given to them in the body of this agreement or at clause 16.
3. Appointment & Grant of Licence
3.1 You will nominate the length of the term of your agreement with Mixing Technology when you sign up to use the Services (Term). Each licence has its own Start Date and continues until its expiry or termination.
3.2 Subject to you complying with these Terms and Conditions, Mixing Technology grants you a non-exclusive, non-transferable, and non-sub-licensable licence to use the Services during the Term in accordance with your Licence Package (Licence).
3.3 The Licence entitles you to install and use the Services on up to two computers.
3.4 Once installed on a computer, the Services cannot be revoked or transferred to another computer.
3.5 The Licence does not entitle you to access the source code of the Software.
3.6 Mixing Technology may assign its rights under these Terms and Conditions to third parties by giving you written notice.
4.1. You will be charged for your access to the Services, in accordance with the relevant Licence Package that you have selected (Fees).
4.2. You will receive a tax invoice for the Fees. In consideration of Mixing Technology providing access to the Services, you agree to pay the Fees to Mixing Technology, or its agent, in accordance with the payment terms set out in the tax invoice.
4.3. If you have provided Mixing Technology, or its agent, with your credit card details, you authorise that your credit card will be charged for the Fees on the due date for payment as set out in the tax invoice.
4.4. Mixing Technology may vary the Fees, from time to time, but only after the expiry of the Term. Your Fees may vary from Term to Term.
4.5. You acknowledge that Mixing Technology may engage the services of a third party payment provider to process your payment of the Fees and you agree to pay any fees charged by such third party payment provider in addition to the Fees.
4.6. You agree to pay any additional fees that may be charged if you request features or Services in addition to the inclusions in your Licence Package (Additional Services Fees). Additional Service Fees will be charged and payable as if they are the Fees.
4.7. Notwithstanding clause 14, if a dispute arises about payment of the Fees or Additional Services Fees, you agree to pay to Mixing Technology, or its agent, the undisputed amount payable. You may withhold the disputed amount of the Fees and Mixing Technology may withhold delivery of the Services (where applicable) pending the resolution of the dispute. If you refuse to pay any undisputed amount of the Fees, Mixing Technology may elect to immediately stop providing you with the Services.
4.8. You indemnify, and agree to keep indemnified, Mixing Technology and its directors, officers, employees and agents from and against any Loss or liability incurred or suffered by Mixing Technology (including reasonable legal costs and expenses on a full indemnity basis) arising from any failure by you to make payment of Fees or Additional Services Fees to Mixing Technology, in connection with your use of and access to the Services.
5.1 Unless otherwise stated, if the User is an Australian resident, all amounts payable under this agreement are expressed as exclusive of, but may be subject to, GST.
5.2 Both the User and Mixing Technology acknowledge that if GST applies to a taxable supply made under this agreement, the Party to which the taxable supply is made must pay GST on that taxable supply, in addition to any consideration (excluding GST) that is payable for that taxable supply. The User must do so at the same time and in the same way as it is required to pay the consideration for the taxable supply.
6. Acceptance and Risk
6.1 You are deemed to have accepted the Services on the Start Date.
6.2 Subject to clause 11, all risk associated with your use of the Software passes to you on the Start Date.
7.1 In accordance with clause 3.4, the Parties acknowledge and agree that once the Software is installed by the User it cannot be revoked – accordingly, once the Licence is granted, this agreement cannot be terminated by the User, nor any Fees refunded.
7.2 Mixing Technology may terminate this agreement:
(a) immediately for any reason and at any time if you are using any licences on a free, trial or demonstration basis;
(b) immediately if you use the Software or the Services for any purpose other than the Permitted Use; or
(c) on providing one (1) month's written notice to you at any time.
7.3 Upon termination of this agreement for any reason:
(a) your access to the Services will cease and you must not use the Services; and
(b) you must pay Mixing Technology any Fees or Additional Services Fees outstanding for Services delivered up to and including the date of termination regardless of whether or not it is Mixing Technology, or its agent, that provides you with a tax invoice for payment of the Fees or Additional Services Fees.
8.1 You agree not to:
(a) use the Software or its content for any purpose, other than the Permitted Use;
(b) resell, resupply, or repackage the Software;
(c) use another person's name, account, identity, or password without Mixing Technology's written consent, or use the Services while impersonating another person or allow any other person or third-party to use your name, account, identity or password without Mixing Technology's written consent, or any other person or third-party to use the Services whilst impersonating another person;
(d) access, monitor or copy any content or information of the Software using any robot, spider, scraper or other automated means or any manual process for any purpose without Mixing Technology's express written permission;
(e) "frame", "mirror" or otherwise incorporate any part of the Software into any other website or software without Mixing Technology's prior written consent; or
(f) attempt to modify, translate, adapt, edit, decompile, disassemble, or reverse engineer the Software or its source code.
8.2 You agree that you will not use the Services in any way:
(a) to infringe the Intellectual Property Rights of any person;
(b) which is unlawful, or which would constitute, encourage, promote, or provide instructions for the conduct of an illegal act or omission, any criminal activity, or violate the rights of any person;
(c) which contains the private and/or personal information of any person, without their informed consent; and/or
(d) which contains viruses, malware or any other malicious software or data.
8.3 You acknowledge and agree that Mixing Technology has no responsibility or liability for any Infringing Use while using the Services, or for any Loss or damage suffered by you or any other person or third-party, as a result of using the Services.
8.4 You agree to indemnify Mixing Technology and keep Mixing Technology indemnified, as well as Mixing Technology's agents, employees, and officers, against all Loss which Mixing Technology, its agents, employees, and officers, suffer or incur, as a result of:
(a) your Infringing Use of the Services or any breach of this agreement; or
(b) any legal proceedings or any claim made against Mixing Technology by a third-party, which arises directly from your Infringing Use of the Services or any breach of this agreement.
9. Access Identification
9.1 You acknowledge that you are required to create usernames, passwords or other identification or authentication information in order to access the Services (Access Identification). You also acknowledge and agree that each licence requires a unique Access Identification to be assigned to it. You acknowledge and agree that Access Identification is personal and unique to a single User and up to two computers per licence, and that Access Identification must not be used by more than one operator of the Services.
9.2 You agree to ensure that you keep all Access Identification safe and secure and protect it from unauthorised access, use or copying. You agree to notify us immediately if the safety or security of Access Information is compromised or breached.
9.3 Mixing Technology may suspend the access of any User of the Services if Mixing Technology has reason to suspect that the safety or security of the Access Information is breached, until the breach is rectified and any reasonably necessary back up, protection and/or security assurance testing is completed.
10. Maintenance, Support, Upgrades and Fixes
10.1 If Mixing Technology upgrades the Software (Upgrade), you will be given access to the Upgrade, during the Term only. Mixing Technology will provide you with support for your use of the Upgrade via email. You agree and understand that charges may apply for any additional support.
10.2 Except for the warranty services set out in clause 12 and the services set out in this clause 10, Mixing Technology will not provide any other maintenance or support services in respect of the Services or the Software under this agreement. If you require additional maintenance or support, Mixing Technology will enter into a separate software support agreement with you.
10.3 Mixing Technology may conduct maintenance and repair of the Services at any time and will aim to do so at times that cause minimum impact to you.
10.4 Mixing Technology, at its sole discretion, reserves the right to modify or change Licences, prior to installation. Once the Software is installed by the User, Mixing Technology will not be able to modify or change a Licence.
11. Intellectual Property Rights
11.1 You acknowledge and agree that the Licence is a licence to use the Services only and that nothing in the Licence will be deemed to convey any title or ownership of the Services or Software to you. All Intellectual Property Rights in the Software and the Services are owned or licensed by us and are protected by Australian laws, other applicable laws, and international treaty provisions. Except for the rights to use the Software and the Services granted to you under the Licence, Mixing Technology retains all rights in the Software and the Services the Software remains Mixing Technology's exclusive property.
11.2 You also acknowledge that:
(a) TheatreMix, and the TheatreMix logo, are trademarks or pending trademarks of Mixing Technology, regardless of registration status; and
(b) you are not granted any rights to use, remove, or sub-license the use of the trademarks under the Licence or at all.
11.3 You acknowledge and agree that the Software is confidential to and valuable property of Mixing Technology. By entering into this agreement, you undertake to treat as confidential and keep secret all information including ideas and concepts contained in or embodied in the Software or the Services.
11.4 The obligations as to confidentiality will remain in force and effect despite termination or expiry of the Licence or this agreement.
12. Limited Warranty
12.1 To the fullest extent permitted by law and subject to the Consumer Guarantees contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth), Mixing Technology makes no further warranties, either express or implied, about the Services. The Services are provided "as is".
12.2 No agent or employee of Mixing Technology is authorised to make any modification or addition to the above warranty.
12.3 You warrant to Mixing Technology at the date of this agreement, and at each time you access the Services, that you:
(a) have the authority to bind any body corporate that you represent in relation to your entry into this agreement and have obtained all necessary approvals in order to create legally binding relations with Mixing Technology on behalf of any relevant body corporate;
(b) are able to pay your debts as and when they fall due; and
(c) comply with all applicable laws in relation to your use of the Services.
13. Limitation of Liability
13.1 You acknowledge and agree that in entering into this agreement, you have relied on your own skill and judgment in selecting the Services and in your use and the results you intend to obtain from them.
13.2 You acknowledge that the Services are inherently complex and may not be completely free of errors. Mixing Technology does not warrant to you that the functions contained in the Services will meet your requirements or that the operation of the Services will be uninterrupted or error free or that all errors will be corrected.
13.3 To the extent lawfully permitted:
(a) Mixing Technology will not be liable to you whether in contract, tort or otherwise for indirect, special, incidental, economic, cover or consequential Losses or damages including without limitation for loss of profits, business, goodwill, data arising in connection with this agreement; and
(b) Mixing Technology's liability will not exceed the Fees paid by you under this agreement during the last 12 months.
13.4 Where the Consumer Guarantees contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) apply to the supply of the Services, Mixing Technology limits its liability under the Consumer Guarantees, at its discretion, to:
(a) the replacement of the Services or the supply of equivalent software;
(b) the repair of the Services;
(c) the payment of the cost of having the Services replaced or of acquiring equivalent software and manuals; or
(d) a payment of the cost of having the Services repaired.
13.5 Mixing Technology is not responsible in any way for any Loss or damage caused because of your use of any hardware that Mixing Technology may elect to provide You. Mixing Technology is not liable to replace any hardware it has provided to you in the event of damage, error, or failure.
13.6 Mixing Technology is not responsible in any way for any claims, Loss, damage, fees, agreements, covenants, or liabilities incurred or suffered by Mixing Technology in association with your use of the Services. Any such Licensed assets that you use with the Software is solely your responsibility and you indemnify Mixing Technology and its directors, officers, employees, and agents from and against any Loss or liability incurred or suffered including any third-party claims arising from or in connection with your use of licenced assets with the Software.
14.1 Nothing in this agreement creates any partnership, joint venture, employment or similar relationship between you and us.
14.2 If any provision of this agreement is invalid, the Parties agree that the invalidity will not affect the validity of the remaining portions of the agreement.
14.3 This agreement will be governed by the laws of the Victoria, Australia and you irrevocably submit to the jurisdiction of the Courts of that jurisdiction.
14.4 The Parties acknowledge that they will act in good faith and use their best efforts to resolve any dispute or difference between them arising out of or in respect of this agreement or any matter to be determined under or in connection with this agreement (Dispute) in a spirit of mutual goodwill and understanding.
14.5 Without limiting clauses 4.7 or 14.4, the Parties must use their best efforts to attend a face-to-face meeting (including by way of video conference) within 10 business days to seek to resolve any Dispute on request in writing by any Party.
14.6 If any Dispute is unable to be resolved by the Parties under clauses 14.4 and 14.5 within 30 days after a Party first brings the Dispute to the attention of the other Party, we agree to instruct the President of the Law Institute of Victoria to nominate an independent mediator to resolve the dispute by mediation and the Parties must participate in the mediation in good faith. The costs of the mediator are to be borne equally by the Parties in dispute.
14.7 Except in the case of an urgent application for injunctive relief, neither party may institute legal proceedings in relation to the subject matter of a Dispute until the above mediation has taken place.
14.8 The Parties must continue to perform their obligations under this agreement despite the existence of a Dispute or any steps being taken under this clause 14.
15. Free Trial Terms and Conditions
15.1 If you participate in Mixing Technology's free trial licence (Free Trial) you agree to be bound by Mixing Technology's Terms and Conditions in their entirety provided that in the event of a conflict or inconsistency, the Free Trial Terms and Conditions in this clause 15 will apply.
15.2 The Free Trial shall last for a period of one (1) week, per feature (Free Trial Period).
15.3 During each Free Trial Period you will be entitled to use the selected feature of the Software on one computer only.
15.4 Following the Free Trial Period, Mixing Technology may contact you offering you to purchase the Services for the applicable Fees.
15.5 You are under no obligation to purchase the Services following the Free Trial Period.
15.6 Mixing Technology reserves the right to remove or cancel the Free Trial Period at any time in its sole discretion without any prior notice to you.
15.7 Mixing Technology reserves the right to modify or change the features of the Free Trial at any time in its sole discretion without any prior notice to you.
15.8 To the extent permitted by law, you agree and acknowledge that Mixing Technology has no obligation to retain any Personal Information or data provided by you in granting you a licence for a free trial.
The meanings of the terms used in this document are set out below.
Fees means collectively the Licence Package Fee and any Additional Services Fees as defined in the agreement.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
GST means goods and services tax, or similar value added tax levied or imposed in Australia under the GST Act or otherwise on a supply.
Intellectual Property Rights means any intellectual property right whether registered or unregistered and including, without limitation, any patent, design right, invention, copyright, trademark, moral right, right to use any image, voice, or likeness or other right whether arising under statute or at common law.
Licence Package means the package selected by a User regarding the features and duration of the licence, for the corresponding fees.
Loss means any loss including any liability, cost, expense (including legal costs on a full indemnity basis), claim, proceeding, action, demand, or damage.
Parties means Mixing Technology and the User.
Permitted Use means to use the Software to assist the mixing of sound for live performances in venues.
Start Date means the commencing date of a Licence as selected as the start date by the User on subscription.