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Austockphoto Customer Agreement

 

B. GENERAL TERMS AND CONDITIONS

1. Operation of Terms

(a) This service is provided by Austockphoto Pty Ltd, ABN 69 618 142 671
(b) By purchasing a Basic Licence and (if applicable) any Additional Licences (“Licence”) to exploit an Image by means of this website www.austockphoto.com.au (or other URL or platform operated by Austockphoto), you are deemed to accept these Terms and Conditions.
(c) Licence Fees may be paid for by credit card or other payment service provided for in the Website, according to the terms of the relevant financial institution.
(d) Austockphoto may provide you with a password to enable access to the Images. This must be kept in a secure place, and must not be disclosed to any third party.
(e) If you breach any material term of these terms and conditions, we may terminate our agreement with you with or without written notice to you.
(f) If you are purchasing on behalf of your employer or as an agent on behalf of a third party principal, the employer or principal is deemed to accept these Terms and Conditions and you warrant and represent that you have the full right and authority to bind that employer or principal. In the event that you do not have such authority, you agree that you will be personally liable to Austockphoto for any breaches of these Terms and Conditions.
(g) Each licence is for use in relation to one product, publication or project only.
(h) Except as provided for in this clause, you must not sub-licence or assign the rights granted to you under any Licence. Should a third party wish to exercise those rights, they may purchase a Licence on their own account. You are permitted to transfer files containing the Image or permitted derivative works to a third party (such as a printer) temporary copies for the purpose of exercising the rights granted to you under a Licence.

2. Grant of Rights

(a) Austockphoto grants you a non-exclusive, perpetual, worldwide, non-transferable license to use, reproduce or display the Image in accordance with the Licence selected by you.
(b) Except for the rights expressly granted to you under a Licence, you acknowledge that you do not have any right, title or interest in or to, the Image, including any copyright and other intellectual property rights.
(c) You agree to take all commercially reasonable steps to prevent third parties from reproducing or exploiting any Image without authorisation, and to notify Austockphoto (by email to hello@austockphoto.com.au) If you become aware of any unauthorised use.

3. Prohibited Uses

(a) No image may be used in connection with:
(i) pornography, “adult videos”, adult entertainment venues, escort services, dating services, or the like; or
(ii) advertisement or promotion of tobacco, firearms or any unlawful or illegal activity.
(b) You must not use the image in a manner which:
(i) is obscene, disrespectful or defamatory to any person featured in the image, or is likely to bring any person or property featured in the Image into disrepute;
(ii) falsely implies that a person suffers from any medical condition, has committed or been convicted of any offence, identifies with any sexual orientation or otherwise misrepresents the person as having or not having any attribute;
(iii) falsely implies that the creator of the Image, or the persons or property appearing in the Image (if any) uses or personally endorses any business, product, political party, service, cause, association or other endeavour;
(iv) (where children are depicted) may be inappropriate;
(v) violates or infringes the copyright or other intellectual property or other rights of any person or entity;
(vi) treats the Image in a derogatory manner; or
(vii) which is contrary to any law or regulation.
(c) Images must not be used in, or as, a trade mark, service mark, logo or other indicator of origin.
(d) Images must not be posted online in downloadable format or otherwise such as to enable an Image to be distributed or shared in any peer-to-peer or similar file sharing arrangement.

4. Credits

(a) You must not falsely represent or imply that the Image was created, or is owned by, you or any other person other than the copyright owner (as notified by Austockphoto).
(b) You must not remove any notice of copyright, watermark, trademark or other intellectual property right, or other information that may appear on, embedded in, or in connection with the Image as downloaded.
(c) If and where commercially reasonable, your use of an Image should be accompanied by a credit in the following form:
“Image(s) © [year owner], used under license from Austockphoto” If other stock content used by you is afforded credit, the Image supplied by Austockphoto must receive an equally prominent credit.

5. Warranties, Disclaimers and Liability Limitations

(a) Austockphoto warrants that:
(i) it has secured the rights from the creators of the Image, to grant you the rights specified in the Licence you have purchased; (ii) the Image does not, to the best of Austockphoto’s knowledge breach any law or regulation or infringe the rights of any third party;
(ii) the creator of the Image has provided Austockphoto with a release in respect of any person featured and identifiable in the Image (excluding Images where the depiction of the person is incidental, in the background, or does not show the person’s face);
(iii) the Image is not, to the best of Austockphoto’s knowledge subject to any claim or complaint from any third party; and
(iv) no fees, residuals or royalties will be payable by you to the creator of the Image in respect of your use of the Image, except as expressly notified to you at the time of purchase.
(b) Except as set out in clause 5(a) and subject to warranties which may not be excluded under Australian consumer law, Images are provided ‘as is’ without warranty of any kind. In particular, you acknowledge that Images may contain elements such as: trade or service marks; copyright works or subject matter; confidential information; or designs, that may require further clearance, which will be your sole responsibility to obtain.
(c) Austockphoto will endeavour to ensure that information provided in respect of each Image is current and accurate, however we do not accept liability for any loss or damage you may allege arising from any errors or omissions in this information.
(d) You will release from, and indemnify and hold Austockphoto, its officers, employees, shareholders, directors, managers, members and Image creators, harmless against any damages or liability of any kind arising from:
(i) any use of the Image other than the uses expressly permitted by your License, or any modification of the Image by you;
(ii) the combination of the Image with any other work(s); and/or
(iii) the context in which the Image has been used.
(e) You agree that, subject to requirements imposed by Australian consumer law:
(i) Austockphoto will not be liable for any general, punitive, special, indirect, consequential or incidental damages, or lost profits even if Austockphoto has been advised of the possibility of such damages, costs or losses;
(ii) Austockphoto shall be under no obligation to issue refunds under any circumstances. In the event that Austockphoto determines that you are entitled to a refund of all or part of the fees you paid, such refund shall be made using the payment method originally used by you to make your purchase; and
(iii) the liability of Austockphoto for any claim made in connection with an Image or these Terms and Conditions will be capped at the lower of: (A) such monies as Austockphoto is able to recover from the creator who supplied the Image to Austockphoto; and (B) AUD$2000.

6. Returns

Returns will only be considered based on technical issues with the file. All requests for refunds/cancellations must be made in writing to refunds@austockphoto.com.au. If the request is approved, Austockphoto will issue a refund to your credit card. If cancelled, your rights to use the content terminate, and you must delete or destroy any copies of the file.

7. Third Party Claims

Please note that for your security Austockphoto requires all photographers contributing Images to our site to warrant that they own all rights in the Images they provide, and that the Images are free from any third party claim or liability.

However in the unlikely event that an issue arises due to a contributor providing an incorrect warranty (or for any other reason) Austockphoto may need to take action to mitigate liability. This may include sending you a notice requesting you to cease or limit use of the image you have licensed from the site. In this event, you agree that you will use best endeavours to comply with any such notice provided by Austockphoto. Austockphoto will work with you to arrange for the provision of a replacement Image free of charge.

8. General

(a) These terms constitute the entire agreement between the parties, and supersede all prior agreements, understandings and representations. Austockophoto may update these terms from time to time by written notice to you.
(b) This Agreement will be governed by and construed in accordance with the laws of New South Wales and the parties submit to the exclusive jurisdiction of the courts of New South Wales.