Terms & Conditions

This document sets out the terms and conditions on which ProTrax agrees to allow you to access the ProTrax website and/or purchase ProTrax products and services. By registering as a user of the ProTrax website and/or ordering Music Content or services from ProTrax you are agreeing to these terms and conditions. You acknowledge that a legally enforceable contract exists between ProTrax and you when you agree to these terms and conditions by registering or ordering Music Content. If you do not agree to these terms and conditions, you must not register to use the ProTrax website or attempt to acquire any Music Content or services from ProTrax.

Definitions

1. In this agreement:
(a) ProTrax means (a)  ProTrax Music Production House (ABN 46 698 854 511) in Australia or New Zealand; or (b) ProTrax Productions in South Africa, both of which operate through the website protraxonline.com;
(b) you means the person registering to access the Website and/or ordering Music Content pursuant to these terms and conditions;
(c) APRA means Australasian Performing Rights Association Limited;
(d) Order means an Online or Manual Order submitted by you to ProTrax in accordance with the procedures specified by ProTrax from time to time;
(e) Music Content means the backing tracks, song lyrics and other musical and related content sold by ProTrax;
(f) CAPASSO means the Composers Authors and Publishers Association;
(g) Third Party Facilities means any facilities, platforms, products, services, applications or other resources provided by third parties which are used in the download or delivery of the Music Content or which are provided or used with the Music Content and which include (without limitation) resources by which the Music Content is downloaded or provided over the internet, hosting Music Content and facilities, facilities by which payment or other financial transactions are concluded, or the Music Content, services or software of third parties with which the Music Content are used, integrated or connected;
(h) Trade Marks means the trade mark "ProTrax" and any other trade mark used by ProTrax in relation to the Music Content;
(i) Website means the ProTrax website found at protraxonline.com (formerly protrax.co.za).

Your registration

2. Prior to being able to submit an Order and acquire Music Content from ProTrax, you must register with ProTrax via the Website.  On registering, you warrant and represent that:
(a) the information you provide to ProTrax is true, complete, accurate and up to date; 
(b) you will not provide ProTrax, with inaccurate, misleading or false information.
3. You must:
(a) ensure that your information is updated on a regular basis to ensure that it is true, complete, accurate and up to date at all times;
(b) keep your registration information, including any password or other security information, secure such that it can only be used by you;
(c) not allow any other person to use your registration;
(d) not divulge your password or other registration information to any other person save as permitted by these terms and conditions; and
(e) not make the Music Content available to any other person using your registration.
4. You must immediately notify ProTrax of any breach of security or unauthorized use of your registration. You are responsible for all use of the Website and purchase of Music Content using your registration. You will indemnify ProTrax (together with each of its employees, agents and contractors) for any loss or damage suffered as a result of any unauthorized use of your registration.
5. You acknowledge and agree that the internet protocol address (commonly referred to as an "IP address") of the computer from which you access the Website may be logged each time you access the Website such that a permanent record will be created that the Website was accessed by the computer in question.

ProTrax Music Content

6. Upon acceptance by ProTrax of an Order submitted by you and payment by you to ProTrax, ProTrax will supply the Music Content to you as described in that Order. 
7. ProTrax will use commercially reasonable efforts to make the Music Content available 24 hours a day 7 days a week subject to: (a) scheduled downtime for maintenance, upgrade and other purposes, notice of which will be given to you; (b) unavailability or downtime of the Website or the Music Content caused by circumstances beyond the reasonable control of ProTrax; (c) any reasonable limitations imposed on access to or use of the Music Content by ProTrax.

Purchase of Music Content

8. By placing an Order with ProTrax you agree to pay for the Music Content as described in the Order. On payment, all purchases of Music Content pursuant to the Order cannot be cancelled and amounts paid or payable are not refundable, except in the limited circumstances set out in clause 15 below or where required by law. ProTrax reserves the right not to accept an Order in its absolute discretion. 
9. Card processing fees (depending on card type and location) apply to online transactions. Card processing fees are not included or reflected in the order total upon checkout. Card processing fees will be added to the order total automatically and deducted from the user. Users outside Australia may be subject to additional fees to their bank.  A conversion fee to exchange the payment from the currency specified to a local currency may apply. A “foreign transaction” fee may be applied for transacting with a business based in another country.
10. Payments must be made as specified on the Website. Music Content will not be supplied without payment in full being received.
11. ProTrax is entitled to suspend the provision of the Music Content (or part of it) or your access to the Website where you fail to make any payment (or part of a payment) due pursuant to these terms and conditions or an Order or if you are otherwise in breach of these terms and conditions. 
12. ProTrax Productions in South Africa directly sells certain Music Content that is also available digitally through ProTrax Online. All sales of Music Content in Southern Africa are reported to CAPASSO. 
13. If you are in South Africa and don't have a credit card to make use of protraxonline.com's digital download function, and/or you require manual shipping on Compact Disc and/or delivery via email for your order, purchases should be made directly from ProTrax Productions in South Africa by contacting the South African office or by submitting the downloadable order form provided on protraxonline.com with your proof of payment via fax or email - hereinafter referred to as a 'Manual Order'. The downloadable order form on protraxonline.com is for use in Southern Africa only. Special offers, discounts, rewards and gift vouchers offered on protraxonline.com do not apply to 'Manual Orders'. Pricing for 'Manual Orders' is as set out on the downloadable order form. 
14. ProTrax Music Production House (ABN 46 698 854 511) is trading online as protraxonline.com in Australia. All Music Content sold on protraxonline.com in Australia will incur GST of 10%. An amount equal to the GST payable in respect of the supply to which the amount relates will be calculated and added upon checkout. All sales of Music Content in Australia and New Zealand are reported to APRA.
15. Prices for products offered may change at any time, and we do not provide price protection or refunds in the event of a price reduction or promotional offering. If a product becomes unavailable following a transaction but prior to download, your sole remedy is a refund, to the full extent permitted by law. If technical problems prevent or unreasonably delay the download of your product, your exclusive and sole remedy is an alternative delivery method as will be determined by ProTrax. All sales of Music Content are final and risk of loss transfers on downloading. ProTrax does not accept return of Music Content.
16. ProTrax reserves the right to remove, change or add any Music Content at any time without notice to you. ProTrax reserves the right to offer for sale any Music Content directly or indirectly produced for you.

Intellectual property

17. The Music Content sold by ProTrax consists of professional recreations or new arrangements and are not the original artists’ renditions. 
18. Details of all  Music Content sold by ProTrax are reported as follows:
(a)  in Australia and New Zealand, to APRA;
(b) in South Africa to CAPASSO.
19. ProTrax retains ownership of all intellectual property rights (including, without limitation, copyright) in relation to the arrangements forming part of the Music Content and the content of the Website. No right or license is granted to you except as expressly set out in these terms and conditions. ProTrax Music Content (specifically backing tracks) may under no circumstances be copied, altered, distributed, broadcast or sold by any other party, company or website.

Rights granted

20. Upon payment in full, ProTrax grants to you a non-exclusive, non-transferable, right to use the Music Content for personal, non-commercial purposes only.
21. The Music Content and any rights associated with the Music Content shall remain the property of ProTrax and nothing in these terms and conditions shall imply any transfer of ownership or creation of any license, right, title or interest in respect of the Music Content.

Restrictions

22. The license granted to you does not automatically include the right to use the Music Content for recordings (vocal, instrumental or otherwise) or to perform the Music Content in public. If you wish to make a recording (vocal, instrumental or otherwise) involving or using any Music Content or wish to do a performance involving or using any Music Content in public, the following provisions apply:
(a) You must not use the Music Content to make recordings (vocal, instrumental or otherwise) without the prior written permission of ProTrax; ProTrax reserves the right to refuse permission to use their Music Content for recordings, or to charge a fee to grant the requested permission at their absolute discretion;
(b) In addition to obtaining the written permission from ProTrax as provided in (a), the use of the Music Content to make recordings (vocal, instrumental or otherwise) for the purpose of sale, broadcast (TV, radio, internet), duplication, communication or distribution, is subject to you obtaining the additional and independent grant of  a mechanical license to you (for the recording rights associated with the specific Music Content) to make such a recording from APRA (in Australia and New Zealand) or CAPASSO (in South Africa) or any other entity or collection agency associated with the specific Music Content;
(c) If the proposed recording is ‘for demonstration purposes only’, ‘private use’, and ‘not for sale’, and is not intended for sale or duplication, the independent grant of a license (for rights associated with the specific Music Content) to make such a recording is usually not required from APRA (in Australia and New Zealand) or CAPASSO (in South Africa); you will however still need to get the prior written permission from ProTrax to make such a recording; 
(d) If the original intended use of the recording changes at any time, and it is intended that the recording is to be sold, broadcast or communicated (TV, radio, internet), duplicated or distributed, an additional and independent grant of a license to you (for rights associated with the specific Music Content) by APRA (in Australia and New Zealand) or CAPASSO (in South Africa) or any other entity or collection agency associated with the specific Music Content is required and must be obtained by you; you also need to obtain the prior written permission of ProTrax if the intended use of the Music Content changes and is different to the use for which permission has been given by ProTrax;  ProTrax reserves the right to refuse permission to use their Music Content for different purposes, or to charge a fee to grant the requested permission at their absolute discretion;
(e) Under no circumstances may the Music Content (in its original or any altered form) be duplicated, copied, offered for sale (online, on CD, via another website), broadcast or communicated (TV, radio, internet) or distributed. 
(f) Public performance involving ProTrax Music Content (specifically backing tracks) for the purpose of private functions, competitions, contests and eisteddfods is permitted if the performances are: (1) free, not for profit; (2) not recorded for the purpose of broadcast or communication (TV, radio, internet) or sale; it remains your responsibility to ensure that any such performance is permitted as required by law and does not infringe the rights of APRA or CAPASSO or any other entity or collection agency associated with the specific Music Content;
(g) Public performance involving ProTrax Music Content (specifically backing tracks) for a fee, profit or broadcast or communication, is restricted and subject to the payment for the relevant performance and mechanical rights as required by law (APRA and CAPASSO) for public performances, by the performer and/or event organizer, venue, television broadcasters, radio stations, in-store radio stations, pubs, clubs, retailers, restaurants and all other businesses that broadcast, communicate, use or play music); it remains your responsibility to ensure that any such performance is permitted as required by law and does not infringe the rights of APRA or CAPASSO or any other entity or collection agency associated with the specific Music Content;
(h) ProTrax will be under no liability to you and liability is excluded (whether for breach of contract, negligence or otherwise) for any loss or damage suffered by you as a result of any claim against you by any copyright collection agency (including, but not limited to, APRA, AMCOS, MPA of SA, CAPASSO or SAMRO) or any other entity where you fail to obtain the necessary license or permission from the collection agency or other entity.

Additional restrictions

23. The right to use the Music Content for the following uses are also NOT granted without additional permission, fees or licenses:
(a) synchronization the Music Content with audiovisual material, including music videos, karaoke tracks or still images;
(b) reproduction of any Music Content into an advertisement or work for sale or other consideration;
(c) reproduction or communication of any Music Content as a ringtone;
(d) making of an adaptation or a parody of any Music Content;
(e) reproduction or communication of any Music Content  with words which are not approved or normally associated with the Product;
(f) reproduction or communication of any Music Content  in a graphic form;
(g) reproduction, performance in public or communication to the public of any sound recording;
(h) any other right not expressly granted pursuant to these terms.
24. You will indemnify ProTrax (together with each of its employees, agents and contractors) and keep each of them indemnified against any claim by any third party (including, without limitation, the original composer or artists or APRA or CAPASSO) against them in circumstances where your breach of the above license terms results in such a claim. 

Downloading and storage

25. Upon successful payment, you will be redirected to the download page where you will have access to the Music Content you have purchased. You must download and store your purchases within 72 hours. Upon successful download of the Music Content, your download window will automatically expire and a record of your purchase will appear in your purchase history. You will not be able to subsequently download previously-purchased Music Content once you have completed the download. It is your responsibility not to lose, destroy, or damage your downloads. ProTrax strongly suggests that you back up your downloaded files. Music Content purchased on the Website is only available for digital download and will not be emailed or supplied on compact disc subsequently.

Gift vouchers

26. Gift vouchers are for exclusive use to purchase Music Content from the Website. Gift vouchers are not redeemable for cash and cannot be returned for a cash refund, exchanged, resold or used to purchase gift vouchers. Unused gift vouchers are not transferable. ProTrax reserves the right to close accounts and request alternative forms of payment if a gift voucher is fraudulently obtained or used.

Confidentiality

27. Each party will keep confidential any confidential information belonging to the other party disclosed pursuant to this agreement. Confidential information belonging to ProTrax includes the ProTrax’s dealings with you including the content of any Order and any other information relating to the Music Content, and the business, operations or Music Content of ProTrax, other than information in the public domain or information which subsequently enters the public domain or which you can establish was known to you prior to disclosure by ProTrax (except as a result of a breach of this agreement).
28. A party to whom confidential information is disclosed (the Recipient): (a) must not disclose any of the disclosing party’s confidential information to any third party except with the prior written consent of the disclosing party; (b) must not copy or use any of the disclosing party’s confidential information for any purpose except as contemplated by this agreement; (c) must use the Recipient’s best endeavours to protect the confidentiality of any documents or computer systems containing the disclosing party’s confidential information, including the implementation of practices and procedures restricting the access to and use of any such documents or computer systems; (d) will comply with all reasonable instructions or directions given to the Recipient by the disclosing party regarding the protection of the disclosing party’s confidential information.
29. A Recipient may disclose the disclosing party’s confidential information where required by law or pursuant to an order of a competent court provided that: (a) the disclosure is limited to what is required by law; (b) in the case of a disclosure pursuant to a court order, the disclosing party is given the opportunity to object to the disclosure.

Privacy

30. By registering to use the Website and/or purchase Music Content, you consent to ProTrax collecting, keeping and using your personal information. Your personal information will be kept and used by ProTrax in accordance with its privacy policy set out in Clause 41.

Warranties

31. ProTrax warrants that:
(a) the Music Content will substantially conform to the description of the Music Content specified by ProTrax on the Website; and
(b) the Music Content will be of acceptable quality. 
32. ProTrax does not warrant that the Music Content will be provided error free or will be available at all times.
33. Except to the extent that any law or statute prohibits the exclusion of any condition, guarantee, warranty, right or remedy, all other conditions, guarantees, warranties, rights or remedies are excluded.

Liability

34. In this section headed 'Liability', all references to ProTrax are a reference to ProTrax together with each of its employees, agents and contractors.
35. You must take your own precautions to ensure that the processes which you employ for accessing the Website and receiving the Music Content do not expose you to the risk of viruses, malicious computer code or other forms of interference which may damage your own computer system. For the removal of doubt, ProTrax does not accept responsibility for any interference or damage to your own computer system which arises in connection with your use of the Website, receipt of the Music Content or any linked website.
36. To the maximum extent permitted by law, ProTrax’s liability and your sole remedy for breach of any express warranty, or guarantee, warranty, right or remedy implied or conferred by law, is limited to, at ProTrax’s option, one or more of: (a) supplying the Music Content again; or (b) payment of the cost of having the Music Content supplied again. 
37. Except as expressly provided elsewhere in this agreement or where liability cannot be excluded by operation of law, ProTrax will be under no liability to you and liability is excluded (whether for breach of contract, negligence or otherwise) in respect of any loss or damage which may be suffered or incurred by you in relation to the supply or availability or your use of the Music Content or the Website.
38. ProTrax will be under no liability to you and liability is excluded (whether for breach of contract, negligence or otherwise) for any special, incidental, indirect, or consequential damages whatsoever (including, without limitation, damages for loss of revenue, business or profits, loss resulting from business interruption, loss of business information, loss resulting from any claim by any third party or any other pecuniary loss) arising out of the supply or availability or your use of the Music Content or the Website.
39. You acknowledge that ProTrax relies on Third Party Facilities to deliver the Music Content and that such Third Party Facilities may fail or malfunction or not be available through no fault of ProTrax. To the maximum extent permitted by law, ProTrax will be under no liability to you and liability is excluded (whether for breach of contract, negligence or otherwise) in respect of any loss or damage which may be suffered or incurred by you which is caused, or contributed to, by a defect, fault or failure of any Third Party Facilities or if Third Party Facilities are not available.
40. ProTrax will be under no liability to you and liability is excluded (whether for breach of contract, negligence or otherwise) for Music Content which you find to be offensive, indecent or objectionable.

Security

41. ProTrax will adopt and implement measures to protect the integrity and security of the Music Content and your personal information, such measures being of the sort and standard reasonably to be expected of a provider of Music Content of the sort provided by ProTrax. You acknowledge that the integrity or security of information held by ProTrax may be compromised even where such measures are adopted and implemented or where there is a failure of the owners or operators of Third Party Facilities to protect the integrity and security of data provided by you. Subject to any law or statute which prohibits the exclusion or limitation of any guarantee, condition, warranty, right or remedy, ProTrax will be under no liability to you and liability is excluded (whether for breach of contract, negligence or otherwise) in respect of any loss or damage which may be suffered or incurred by you or any third party as a result of any breach of security which results in unauthorised access to the Music Content or your personal information.

Compliance

42. You must comply with any law, legislation, regulation or code of practice applicable to the Music Content and their use. To the maximum extent permitted by law, ProTrax shall not be responsible or liable for any breach of any applicable law, legislation, regulation or code of practice by you in relation to the use of the Music Content. 
43. You must not use the Website or access any information using the Website for any illegal purpose including (without limitation): (a) sending or making unlawful, harassing, defamatory, libelous, tortuous, abusive, threatening, or obscene communications of any kind; (b) posting, publishing or disseminating material that infringes or violates any third party's proprietary or intellectual property rights; (c) posting, publishing or disseminating material that could constitute a criminal offence, give rise to civil liability or otherwise violate any applicable law or regulation; (d) posting, publishing or disseminating objectionable material, including without limitation, content that contains blatant bigotry, racism, or hatred, or that promotes illegal activities or physical harm against anyone; or (e) posting, publishing or disseminating spam, chain letters, junk mail or any other type of unsolicited mass e-mail to people or entities who have not agreed to be part of such mailings.
44. You agree that, in using the Website you must: 
(a) only use the Music Content in the manner specified by ProTrax from time to time; 
(b) not disrupt or interfere with another subscriber's use or enjoyment of the Website;
(c) not use or attempt to use another person's account, personal information, service or system;
(d) not attempt to obtain unauthorized access to or disrupt or interfere with the security of, or otherwise abuse, the Music Content or the Website, the Website system resources or accounts, or any servers or networks connected to the Website or which are used in the provision of the Music Content by ProTrax;
(e) not systematically extract, collect or harvest, through electronic means or otherwise, any data or data field or other content, on the Website;
(f) not disrupt the normal operations of the Music Content or the Website; 
(g) not post any material which contains viruses or other computer codes, files or programs which are designed to limit or destroy the functionality of other computer software or hardware; and
(h) comply with all applicable laws and regulations related to privacy and data collection.

Termination of access

45. ProTrax may terminate your account with ProTrax with immediate effect by giving notice to you if: (a) you are in breach of these terms and conditions and the breach is not capable of being remedied; (b) you are in breach of these terms and conditions and, in the case of a breach which is capable of being remedied, you fail to remedy the breach within 30 days of receipt of written notice of the breach; (c) you fail to pay any amount due to ProTrax within 21 days of receiving a written demand for payment; or (e) ProTrax ceases to provide the Music Content.

General

46. If any provision or part of a provision of these terms and conditions is held to be illegal, unenforceable or otherwise invalid, that provision or part will be deemed to be severed from these terms and conditions and the remainder of the agreement between ProTrax and you will continue in effect.
47. You will indemnify ProTrax (together with each of its related bodies corporate, directors, officers, employees, agents and contractors) and keep each of them indemnified against any loss or damage suffered by ProTrax arising out of any breach of this agreement by you including (without limitation) any loss or damage arising out of any claim by any third party against ProTrax.
48. These terms and conditions are governed by and construed in accordance with the laws of Western Australia. The parties consent to the exclusive jurisdiction of the courts of Western Australia. 
49. ProTrax reserves the right to amend or vary these terms and conditions from time to time.  Amendments or variations to these terms and conditions will be effective immediately upon ProTrax posting a notice on the Website.  Your continued use and acceptance of the Music Content following the posting of such a notice will represent an agreement by you to be bound by the terms and conditions as amended and such amended terms and conditions will apply to any future use of the Website and the supply of the Music Content.
50. All dates and times are determined by reference to the date and time in Western Australia.
51. To the maximum extent permitted by law, ProTrax will not be liable for and all liability is excluded in relation to or arising from any event which is beyond the reasonable control of ProTrax including (without limitation) any Act of God, loss of power or internet connectivity, act of terrorism, criminal act or third party conduct.
52. These terms and conditions and any applicable Order (Online Order or Manual Order) constitute the entire agreement between the parties in respect of the supply of the Music Content. This agreement supersedes all prior representations, warranties, agreements, understandings, negotiations and discussions whether oral or written, express or implied, collateral or otherwise, by or between the parties pertaining to the subject matter of this agreement.
53. Any notice to be given by a party pursuant to this agreement must be in writing and may be given: (a) by email which will be deemed to have been received by the recipient on the date on which it was sent unless a notice is received by the sender stating that the email was not able to be delivered or the recipient can establish that the email was not received; or (b) by fax which will be deemed to have been received on the date on which it was sent provided that the sender can produce a transmission report confirming that the fax was sent . Where a notice is sent or received on a day which is not a business day in Western Australia, it will be deemed to have been sent and received on the next business day in Western Australia.
54. This agreement is personal to you and must not be assigned by you except with the prior written consent of ProTrax. ProTrax may assign the benefit of this agreement to a third party.
55. For communication with ProTrax, please write by post to ProTrax Music Production House, South Fremantle LPO, P.O. Box 717, South Fremantle, Western Australia, 6162 or by email to info@protraxonline.com.