Hells Angels Motorcycle Corporation (Australia) Pty Limited v Redbubble Ltd

to [247] of 2019 judgment 1 Mr Kovalev explains that the domain name redbubble.com is registered in the name of the first respondent. Mr Kovalev accepts that redbubble.com is an "asset" of the first respondent: T, p 214, lns 16-33. 2 Mr Kovalev says that the day-to-day management of the Redbubble website (including aspects of its design and updates) is carried out by Redbubble USA which is based in San Francisco. Redbubble USA is also responsible for marketing activities and the management of "third party fulfillers" and "shippers". 3 Mr Kovalev says that the Redbubble website is "a global online marketplace facilitating transactions between independent artists and customers looking for distinctive products". He says that independent artists are individuals who produce art and designs on their own and not as part of any organisation. He says that the aim of the Redbubble website is to provide "a forum where "independent artists" can upload their creative works and offer them for sale on a wide variety of products". He explains that when a customer places an order through the website, a product is then produced on demand by one of a network of third party fulfillers. Mr Kovalev then explains a sequence of activities. These activities are said to take place from the "Redbubble group's side of the transactions, in a completely automated fashion with no, or virtually no, human intervention on the part of the Redbubble group". 4 The activities are these. 5 The signing up of artists (and where applicable, customers); the indexing of artworks; receipt of orders; facilitation of transactions; communications with suppliers relating to transactions; and all despatch and billing, is controlled by the Redbubble group's software system. Mr Kovalev says that all of these activities are, for the most part, "completely automated", "with very little human intervention": T, p 207, lns 23-32. These software systems are described as a suite of various "bespoke applications written by Redbubble group staff and contractors". 6 These applications are executed on servers located in the United States of America. 7 The suite of programs making up the applications which execute on these servers in the United States are described by Mr Kovalev as the "Redbubble Software". That term means: applications described as Imagehaus and Magickraum which perform the imaging functions described in Mr Kovalev's evidence mentioned later in these reasons; and software called Redbubble which is an application used for the signing up of artists; indexing artworks and searching for titles and tags in relation to those artworks; receipting orders from customers; facilitating transactions; and facilitating communications with suppliers. Mr Kovalev gives evidence, mentioned later in these reasons, about all of those matters concerning the Redbubble application. 8 As to the way in which an artist might engage with the Redbubble website, Mr Kovalev gives the following evidence.

Artists 9 Third parties who wish to offer their artwork for sale on the Redbubble website must first "sign up for an account". The process for signing up for an account requires artists engaging with the website to click the "Get Started Now for Free" button on the "selling page" of the website. The artist then enters an "account name" which will feature at the end of the Uniform Resource Locator ("URL") [www].redbubble.com/people/[account name], together with the artist's email address and a password. The artist then is required to click the button "Sign Up Now!" Immediately above that button is a disclaimer statement that reads "By clicking Sign Up Now, you agree to our User Agreement". I will return to aspects of the Redbubble User Agreement later in these reasons. 10 Mr Kovalev says that artists engaging with the Redbubble website may be located anywhere in the world. 11 Only once an artist has created an account on the site and accepted the terms of the Redbubble User Agreement, is the artist able to upload an artwork to the site through the enabling functionality of the site. As to uploading an artwork, an artist must click the "Add New Work" button located at the bottom right-hand corner of the "account landing page". The artist must then click the "UPLOAD TO ALL PRODUCTS" button on the "upload page". The artist must then "browse their computer through the pop-up window on the Redbubble Website and select a high resolution image for the upload". Mr Kovalev says that the pop-up window is presented to the artist after the artist has pressed the "upload to all products" button: T, p 209, lns 1-3. Having pressed that button and having engaged the pop-up window, the words "open" appear. The pop-up window, in Mr Kovalev's example in evidence, is generated by the user's browser (internet explorer) which presents the "open" button. Once the user clicks "open", that step commences the process for uploading an image. However, Mr Kovalev accepts that "you only get to that point of the browser by going through the Redbubble [website] pages [as described earlier]": T, p 209, lns 15-28. 12 The website enables artists to upload images to the site in a number of different ways depending upon the device they are using. Artists can upload images from a computer, laptop, tablet or smart phone. 13 Mr Kovalev says that even though an artist may be located in Australia, the images selected by the artist for uploading to the site "may be stored outside of Australia, for example on a cloud storage service". When the artist clicks "open" and takes the step to upload the artwork, the image is uploaded to one of Redbubble's servers. Mr Kovalev says that "cloud services" allow artists to store data in third party data centres that may be located far from the artist. As to the term "cloud computing", Mr Kovalev attaches 20 pages drawn from a Wikipedia entry for "cloud computing" which he says explains the elements of that term. Thus, Mr Kovalev embraces the Wikipedia description of the elements of that term. 14 In simple terms, cloud computing is a shorthand description for a sequence of links between computers, networks of computers and servers which enable storage and access to data. Every device so linked has a unique number which identifies the device, computer, server etc. It is sufficient to simply quote this section of the Wikipedia entry embraced by Mr Kovalev: Cloud computing is a new form of Internet-based computing that provides shared computer processing resources and data to computers and other devices on demand. It is a model for enabling ubiquitous, on-demand access to a shared pool of configurable computing resources (e.g., computer networks, servers, storage, applications and services), which can be rapidly provisioned and released with minimal management effort. Basically, Cloud computing allows the users and enterprises with various capabilities to store and process their data in either privately owned cloud, or on a third-party server in order to make data accessing mechanisms much more easy and reliable. Data centres … may be located far from the user - ranging in distance from access to a city to across the world. Cloud computing relies on sharing of resources to achieve coherence and economy of scale, similar to a utility (like the electricity grid) over an electricity network. 15 Mr Kovalev gives an example of cloud computing in these terms: Example: A Sydney-based artist could upload an image of their artwork from their Cloud service. The image is stored by the Cloud service on a server located in California. 16 Mr Kovalev says that Redbubble USA does not have "any visibility over where images uploaded by Artists have been sourced from". By this I assume that Mr Kovalev means that staff of Redbubble USA do not know the source of an image uploaded by a user, wherever that user may be located in the world. 17 Mr Kovalev says that images uploaded to the Redbubble website by artists in the way he describes are automatically saved to a server operated by "Amazon Web Services" called the "S3 Service". The server, so operated, is located physically in North Virginia in the United States of America (the "AWS Server").

AWS Server 18 Mr Kovalev explains that the "Redbubble Software" (Mr Kovalev's term as earlier mentioned) consisting of the suite of programs executing on servers located in the US, causes copies of the original image stored on the AWS Server to be "displayed" on the Redbubble website in "different sizes". Mr Kovalev says that the "original image" uploaded by the artist according to the process earlier explained is "never displayed on the Redbubble website". The Redbubble Software used to create a copy of an image is source code written by employees of the respondent Redbubble and is "executed" on servers located in the United States. Mr Kovalev accepts that before an artist's "original image" is automatically saved to the AWS Server, the "process [of uploading] requires the artist to interact with the features of the Redbubble website [that is], with the buttons on the Redbubble website": T, p 210, lns 1-5. 19 Mr Kovalev accepts that if an artist engages with the Redbubble website (redbubble.com) so as to upload a work, the artist will be confronted with buttons to click (or not) located on the Redbubble website and unless the artist goes through that process (of responding to those buttons), the artist "cannot get [his or her] artwork displayed on the Redbubble website": T, p 210, lns 38-46; T, p 211, lns 1-2.

Further steps by artists 20 Mr Kovalev says that at any time after an artist has uploaded his or her artwork or image, the artist is able to select which products he or she would like to offer to consumers for sale and purchase as products to which the artwork or image might be applied, by selecting possible products from a list of available products as determined by Redbubble. The artist makes a selection by "enabling" or "disabling" products from the list of available products. An artist can also edit the way in which an artwork is applied to each product by, for example, altering the orientation of the image or selecting a background colour for the image. If an artist does not specify any products to which their artwork might be applied for sale, users will not be able to purchase a product bearing that artwork and the artwork will not "show up" in response to searches of the Redbubble website by consumer users. Mr Kovalev says that the sale of any artwork applied to any particular product is entirely at the discretion of the artist. 21 Once an artist has uploaded an artwork to the site, the artist may also select a title for the artwork; write a description of the artwork; select one or more "tags" for the artwork; and select the relevant "media category" (or categories) which accurately describes their work. The categories are photography; design and illustration; painting and mixed media; drawing; and digital art. The artist may also select a "default view" of the artwork which can either be the artwork alone or an image of the artwork as applied to any one of the available products (as an illustration); decide if the artwork is available to be viewed by the public; and specify whether the artwork contains any "mature content". 22 As to the selection of one or more "tags", tags are key words to which searches of the Redbubble website will respond. For example, if the artwork is an image of an "ocean pool", the artist might create tags for that work consisting of "ocean", "pool" and "water". 23 Once the artist has uploaded their artwork and worked through all of the things described at [215] to [219] of these reasons, the artist can make the artwork available for sale by clicking the button "Save Changes" on the "artwork landing page" and by entering their payment details. Immediately above that button is a disclaimer in these terms: When a product is sold through the website the sale is between you and the customer - Redbubble acts as your agent in this process. In order to act as your agent, we need your explicit permission. [emphasis added] 24 Just below the disclaimer, there is a "check box" next to the words: "Yes and I agree to the Redbubble User Agreement". The words "User Agreement" are hyperlinked to a full text copy of the User Agreement. Artists must agree to the Redbubble User Agreement before they can complete their profile. They cannot deselect the check box. 25 If an artist experiences technical difficulty in uploading an artwork to the Redbubble website, they can find solutions on the "Common Uploader Problems" page found in the "Help Centre" of the website. If problems persist other steps are suggested on the website. Alternatively, an artist can contact Redbubble's "Artist Experience team" by taking steps through the website by clicking particular prompts and buttons. The Artist Experience team established by Redbubble consists of four people located in the San Francisco office and one person in the Melbourne office. In engaging with an artist in addressing any such problems the Artist Experience team seeks an explanation from the artist of the problem; asks for details about the web browser used by the artist when uploading and details of firewalls; details of the artist's ISP; the method of connection; the country from which the artist is seeking to upload the artwork; and the artist's internet protocol address ("IP address"). 26 In all of these things, Redbubble's team seeks to help and facilitate the successful uploading of the work to the site.

The terms 27 As to the terms upon which artists make their work available for sale, Mr Kovalev says this. 28 The retail price charged to customers for the physical product featuring an artwork uploaded by an artist is made up of a Fulfiller Fee; a Redbubble Fee; a Creator Margin; and any relevant sales tax. The Fulfiller Fee and the Redbubble Fee are referred to in this methodology as the Base Amount. These terms are central to the pricing methodology about which Mr Kovalev gave evidence. The Creator Margin is the artist's selected margin being a percentage mark-up of the Base Amount. The website contains a default Creator Margin of 20% but artists can choose any percentage mark-up of the Base Amount in the range 0% to 100%. 29 As to the Base Amount for each product type on the website, it is made up of the Redbubble Fee and the Fulfiller Fee. Mr Kovalev says that the Redbubble Fee is a service fee that Redbubble charges for "hosting" the marketplace and "facilitating the transaction" between the artist and the buyer of the product bearing the work. The phrase "facilitating the transaction" includes putting orders through to fulfillers (and Mr Kovalev accepts that artists do not organise the fulfillers): T, p 215, lns 27-33. The Redbubble Fee includes the cost of delivery to the customer's nominated address: T, 215, lns 45-47. As to the relationship between the artist and Redbubble, Mr Kovalev does not agree that the artist provides the artwork and Redbubble provides the products and services although he does accept that the artist certainly provides the artwork and then the fulfiller manufacturers the product, and that is the product sold to the customer: T, p 216, lns 7-25. The Fulfiller Fee is the "manufacturing fee" charged by the relevant third party fulfiller whose job is to apply the artwork to the relevant product. The retail price charged to a customer is the Base Amount made up, as described, plus the Creator Margin selected by the consumer.

Consumers as users and customers 30 Mr Kovalev gives the following evidence concerning the mechanisms by which a consumer might become a customer of a product bearing an artist's artwork, through the website. 31 Customers can purchase products through the Redbubble website with or without creating an account. If a customer wishes to create an account, he or she can do so by clicking the "Sign Up For Free" button and then signing up for an account much in the same manner as artists do as earlier described. When a customer signs up, the customer must also agree to the Redbubble User Agreement. 32 When a customer performs a search on the Redbubble website, the Redbubble Software will "trawl the Redbubble Website for tags and titles that match the search terms". The Redbubble Software creates an "inverted index" which Mr Kovalev explains as operating in this way: "instead of storing information as 'artwork [that] has these keywords', it stores information as 'keyword matches [to] these artworks'". The inverted index enables "fast lookups". The "keywords" are generated from the "tags" and "titles" chosen by the artists. The description an artist provides when uploading their artwork is not used to generate results in response to keyword searches. Mr Kovalev says that Redbubble does not select or generate any of its own keywords. The Redbubble Software will only match tags or titles containing the exact word or words which are used in the search term entered by a customer. Mr Kovalev gives this example: Example: A customer searches the tag "elephant". The software will return results for all artworks that have the tag "elephant", or contain the word "elephant" in their title. 33 As the Redbubble Software matches tags or titles as determined by the customer, results are displayed in order of relevance to the search terms used. The Redbubble Software determines the "Most Relevant" works by producing a sorted list of artworks which matches the search terms. The sorted list is then "re-ranked" based on "business metrics" such as "sales, homepage feature and product compatibility". For example, if a user performs a search for "elephant T-shirts", the software will only display works if they are available for application to a T-shirt. Mr Kovalev illustrates this general principle of re-ranking in this way: Example: If two items in the initial list of results have the same score in terms of their match with the search term, but the second ranked item has had more sales than the first ranked item, the items will be re-ranked, and the second ranked item will move to first position in the results set. 34 Mr Kovalev says that customers also have the option of sorting the results by "Top Selling" which will rank the products in order of the most recent sales, or sorting by "Recent" which will rank the artworks in descending order based on the date of upload by the artist. The Redbubble Software can also generate "related searches" that might be relevant to the customer on the basis of the keyword they have selected in their search. For example, if a user enters the keyword "bulldog" in a search, the Redbubble Software will return all artworks where an artist has used the word "bulldog" in the title or as a tag, but also identify other tags used by other artists who have chosen the word "bulldog" as a tag for their artwork and list the most commonly used other keywords in order of frequency as a related search. Mr Kovalev gives the following example: High quality Bulldog inspired T-Shirts, Posters, Mugs and more by independent artists as designers from around the world. Related searches: French Bulldog, Pet, Puppy, Cute, Animal, Dogs, Frenchie, Funny, French, Pets, and Love Gifts & Merchandise. All orders are custom made and most ship worldwide within 24 hours. Search results and related search terms are automatically generated from information provided by users.

Placing an order 35 As to placing an order through the Redbubble website, Mr Kovalev says this. 36 If a customer wants to purchase a product featuring an artwork uploaded by an artist, the customer must: select an artwork/product featuring an artwork from the search results page; select the size and/or type of the product and click "Add To Cart"; click "View Cart" and confirm the quantity of the product; select their "Shipping Option" and then click "Checkout"; choose to pay by PayPal or credit card; enter the shipping address and PayPal or credit card details; and then click "Pay". Immediately above the "Pay" button is a disclaimer that reads: By clicking pay, I agree to Redbubble's User Agreement. 37 The words "User Agreement" are hyperlinked to a full copy of the User Agreement. 38 Upon clicking "Pay", the customer will be redirected to a confirmation page setting out the details of the customer's order, including an estimated delivery date. Shortly after clicking "Pay", the customer will receive a confirmation email from [aboutmyorder@redbubble.com], setting out the details of the order and providing an order tracking number. Mr Kovalev says that this is an automatically generated email sent from the AWS Server to the customer via a third party email service called Sendgrid. Just as in the case of the artists, buyers must interact with features of the Redbubble website before their order is processed (T, p 211, lns 20-23) ultimately clicking the "Pay" button feature on the Redbubble website to go through the process of buying the product to which the artwork is applied: T, p 211, lns 32-45.

Fulfilling an order 39 Mr Kovalev says that the mechanism by which a customer's order is fulfilled, is this. 40 Customer payments are processed by third party payment processors on servers that are not owned or otherwise used by the Redbubble group. Upon confirmation of a customer payment, a job is created on the AWS Server which generates what Mr Kovalev calls the "digital assets" required to fulfil the customer's order. The digital assets include the customer's address; the order number; the product type and style; the quantity ordered; the shipping method; and a "content file" containing "a copy of the image file for the artwork uploaded by the Artist, or a URL link to that file". Mr Kovalev says that the Redbubble Software sends "a special URL" to third party fulfillers which the fulfiller uses to download the "digital assets". For a small number of fulfillers, the digital asset files are sent by the Redbubble Software to the fulfillers "FTP server". The term "FTP" stands for "File Transfer Protocol" which is a standard network protocol used for the transfer of computer files from a server to a client. 41 No company within the Redbubble group manufactures, warehouses, despatches, receives or distributes any physical products ordered using the process just described. Third party fulfillers receive orders placed by customers through the Redbubble website. They are responsible for the production and delivery of products to customers. The customer's address might be anywhere in the world. There are, presently, 15 third party fulfillers filling orders placed through the Redbubble website and those fulfillers are located in: the United States of America; United Kingdom; Australia; Belgium; Hong Kong; and the Netherlands. 42 When a third party fulfiller is notified of a new order, the third party fulfiller will proceed to manufacture the ordered product. This involves printing the relevant artwork onto the product or otherwise producing or manufacturing the product. The third party fulfiller is automatically chosen by the Redbubble Software based on the product type and the customer's nominated delivery address. Once the product has been manufactured, the software used by the third party fulfiller will send an "API request" to the Redbubble Software when the order is ready for shipment. The term "API" stands for "Application Programming Interface" and is a set of "protocols and tools for building software and applications". An API request is a request to a "resource" on a server which is "exposed via an API". Mr Kovalev gives this example: Example: When an individual downloads an application to their smart phone, enters their registration details on the application and presses "Register", this is usually executed via an API request. 43 When the Redbubble Software receives the API request, it will automatically generate an email containing order details as well as the shipping details. This email is then sent to the customer via Sendgrid. Once the customer receives the final product, the transaction is then regarded as "concluded". 44 The process of fulfilling an order commences on the Redbubble website by the customer completing a purchase by clicking the "Pay" button on the website. When that button is clicked, either an image of the artist's work is sent to the fulfiller or a link to the image, stored on the AWS Server, is sent to the fulfiller enabling access to the image: T, p 212, lns 13-23. The mechanism is put this way by Mr Kovalev: software running on the Redbubble server, that is, on the AWS Server, causes the image or a link to the image to be sent to the fulfiller and that result is brought about by software commands executing on the Redbubble website which tell the software executing on the AWS Server to now send an image or a link: T, p 212, lns 25-37. He says that clicking the button "Pay" activates "the rest of the chain": T, p 217, lns 6-7. As to the process or mechanism by which an artist's original image is automatically stored on the AWS Server, Mr Kovalev says that software operating on the Redbubble website (upon the relevant commands or clicks) "initiates a process" of engaging with software on the AWS Server so as to save, automatically, the images to the AWS Server. A "copy" of the original image is displayed on the website: T, p 217, lns 23-45. That copy is made possible by the Redbubble software executed on servers in the United States: T, p 218, lns 9, 20-36. However, Mr Kovalev also says that the image (which is a copy of the original image), displayed on the Redbubble website, is "stored" on a "back end server" for the website "as is the case with any image on a website", and storage on that "back end server" is part of the Amazon Web Services provided in the United States: T, p 220, lns 21-33.

Redbubble's relationship with fulfillers 45 As to the relationship between Redbubble and the third party fulfillers, Mr Kovalev says this. 46 Third party fulfillers issue invoices to Redbubble USA on a monthly basis. Those invoices relate to the entire month's volume of products manufactured by that fulfiller. The Fulfiller Fee charged by third party fulfillers varies depending upon the types of products provided. The Fulfiller Fee is comprised of: a product cost (which is described as a "blank" product cost of the relevant item pre-printing); printing costs; fulfilment costs (including packaging); and the margin set by the third party fulfiller. Redbubble USA arranges for "tags, stickers and other promotional material" to be provided to third party fulfillers to "deliver with shipments to customers". Mr Kovalev describes these tags, stickers and other promotional material as the "packaging materials". Mr Kovalev says that Redbubble USA does not manufacture the packaging materials or deliver the packaging materials to third party fulfillers. The packaging materials are manufactured by packaging companies in China and the United States of America and are delivered directly by those manufacturers to the third party fulfillers in large batches. Nevertheless, these "packaging materials" are attached to the products as an essential element of the business model, at the direction of Redbubble. The packaging materials, typically, are those illustrated at Annexure VK-22 of Mr Kovalev's affidavit of 28 July 2017 and they are set out below.

Confidential statistics 47 Mr Kovalev also gives evidence of statistics as at 26 July 2017 relating to the number of artworks displayed on the Redbubble website; the number of artists who have accounts on the Redbubble website; the approximate number of new artworks uploaded each day; the approximate number of orders placed by customers each day; the approximate number of new artists who sign up to the Redbubble website each day; and the number of sales made to date by the top selling artist. All of this information is described as confidential. Accordingly, the relevant statistics are set out in a redacted schedule to these reasons. It is not necessary to publish an un-redacted version of the Schedule to the parties because they already have the information available to them.

The Redbubble User Agreement 48 It now necessary to note the following provisions from the User Agreement. Introduction … To make this online destination for creativity available, it is essential all Redbubble users respect the intellectual property rights of others, including copyright and trademarks. You must only upload content you have created yourself and have permission to use and authorize others to use. If you are a customer or browser, please respect the copyright and trademarks of all the works you see or buy on Redbubble. Respecting other people's intellectual property is an essential principle of Redbubble's community. … Our service Redbubble provides a range of services (the "Redbubble service") which, amongst other things, enable you to publish, sell, discuss and purchase art; interact with other members; and receive the benefits of Redbubble's facilitation of product fulfilment, including payment processing, customer services, third party product manufacturing. In addition, Redbubble will arrange for the deliver[y] of the physical product to your customer. … Any [artist's] content that you upload into the portfolio section of your account is described as your "art". Your art may be viewed by all users of the website once you elect to publish it. You may order a physical product based on your own art or you may offer your art for sale as part of the sale of a physical product. If you or a customer decide to place an order, then Redbubble will forward your instructions to third parties who will manufacture and ship the physical product in the form specified by you or the customer ("the product"). Members You can become a registered member ("member") of the website by setting up a password protected account. You will be required to select a username and password when registering to become a member. You must become a member before placing any content on the website, including writing any comments in forums or reviews. In its sole discretion, Redbubble may refuse any username that it decides is inappropriate and/or refuse any person from becoming a member. Putting content on the Redbubble site You keep the copyright in any content you submit or upload to the website. In order to receive the Redbubble services you grant Redbubble a non-exclusive royalty free licence to use and archive the content in accordance with or as reasonably contemplated by this agreement. When you submit or upload content on the website you represent and warrant that: • you own all copyright in the content, or if you are not the owner, that you have permission to use the content, and that you have all of the rights required to display, reproduce and sell the content; • the content you upload will not infringe the intellectual property rights or other rights of any person or entity, including copyright, moral rights, trade mark, patent or rights of privacy or publicity; • your use of the website will comply with all applicable law, rules and regulations; • the content does not contain material that defames or vilifies any person, people, races, religion or religious group and is not obscene, or pornographic, indecent, harassing, threatening, harmful, invasive of privacy or publicity rights, abusive, inflammatory or otherwise objectionable; • the content does not include malicious code, including but not limited to viruses, trojan horses [and a range of synonyms for those things], or other computer programming routines that may damage [and other synonyms] any system, program, data or personal information; and • the content is not misleading and deceptive and does not offer or disseminate fraudulent goods, services, schemes or promotions. Redbubble reserves the right to review and if in its sole discretion deemed necessary, remove any content from the website and/or cancel your account, because that content breaches your agreement with us and/or any applicable laws or otherwise. You agree to indemnify Redbubble in respect of any direct or indirect damage caused due to your breach of one or more of these warranties. Offering your art for sale on a physical product Any member may offer their art for sale on a physical product on the website by appointing Redbubble to facilitate the transaction on the terms set out in the Services Agreement in Appendix A. By agreeing to the terms of this user agreement you expressly agree to the terms of the Services Agreement in Appendix A, which will apply from the date on which you offer your first art for sale on a physical product and your continued use of the website will constitute ongoing agreement to the terms therein as updated from time to time. Intellectual Property Rights and license By submitting listings to Redbubble, you grant Redbubble a non-exclusive, worldwide, royalty free, sublicense able and transferable license to use, reproduce, distribute, prepare derivative works of and display the content of such listings in connection with Redbubble's (and its successors' and affiliates') services and business in facilitating the sale of your product, including without limitation for promoting and redistributing part or all of the Redbubble site (and derivative works thereof) in any media formats through any media channels. You also hereby grant each user of the Redbubble site a non-exclusive license to access your content through the site, and to use, reproduce, distribute, and display such content as permitted through the functionality of the site and under this User Agreement. The above licenses terminate within a commercially reasonable time after you remove or delete your listings from the Redbubble site. … Indemnity You agree to indemnify, defend and hold us, our officers, directors, employees, agents and representatives harmless, as well as, all third parties [undertaking all fulfilling activities] … harmless, from and against any and all claims, damages, losses, liabilities … or other expenses that arise directly or indirectly out of or from: your breach of any clause of this agreement; any allegation that any materials that you submit to us or transmit to the website infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; and/or your activities in connection with the website. [emphasis added] 49 Appendix A to the Services Agreement contains these provisions which should be noted: You wish to use Redbubble's services to facilitate marketing and sale of your art on a physical product and to arrange for manufacture of the physical product (your product) once an order has been made through [.redbubble.com] ("the website"). Redbubble will provide these services on the terms set out in this Services Agreement. Additionally, Redbubble will provide for delivery of such products to the customer. 1. Services 1.1 Redbubble, acting as independent contractor under your instructions will market to and obtain orders from customers for the purchase of your products over the website and on instruction from you, Redbubble will arrange for third parties to fulfil those orders by facilitating payment for and manufacture of your products ("Services"). Redbubble will then arrange for the delivery of your products as per the customer's instructions. … 2. License and standing instructions 2.1 You grant Redbubble a non-exclusive royalty free license to use your intellectual property relating to your products for the purpose of enabling us to carry out the Services. 2.2 You hereby instruct Redbubble to facilitate the sale of your product which includes payment, processing and arranging for manufacturing your product(s) in respect of the orders placed by the customers via the website and Redbubble will facilitate such payment, and manufacturing in accordance with reasonable business practices unless you otherwise instruct prior to the placement of that order by a customer. … 3. Sale of your products 3.1 The retail price charged to customers who purchase your product is made up of the manufacturing fee charged by the third party manufacturer, Redbubble's fee for hosting the marketplace and facilitating the transaction (the manufacturing fee and Redbubble's fee are referred to collectively and inclusive of tax, as the "base amount"), your creator margin ("your margin"), and any relevant sales tax (such as Sales Tax, GST, VAT, etc) that Redbubble and/or you (as the case may be) are liable to account for to the appropriate tax authorities. Shipping charges will also be added to the retail price. When making each individual work available for sale you are able to select any percentage markup you wish, greater than or equal to zero, above the base amount but below the automated upper limit set by Redbubble (subject to change from time to time). The percentage markup selected by you on the website for each of your products is used to calculate the dollar value of your margin for each sale. 6. Indemnity 6.1 You hereby indemnify and will Redbubble indemnified from and against all claims [synonyms] … of any nature whatsoever … arising from … any breach or non-performance of your obligations under this Services Agreement or arising out of your wilful act, neglect or default in the performance of such obligations. [emphasis added] 50 As to Mr Kovalev's evidence, I generally accept his evidence concerning the functionality of the Redbubble website again subject to the observations later in these reasons from [405] concerning the proper characterisation of Redbubble's engaged role in the transactional features of the activities enabled by and through the website.