1 General information about these terms and conditions
1.1 These terms and conditions, which are subject to change by us at any time without notice, apply to your use of our website, the homepage of which is accessible at:
www.stockimageswa.com.au,stockimageswa.com.au, www.corporatephotomanager.com.au,corporatephotomanger.com.au, www.photomanger.com.au,photomanager.com.au,and http://(yourname).photomanager.com.au (hereinafter “our website”, “the website”, “the site”, “this site”, “this service”, “the service” or “this website”); these terms and conditions apply to your use of our website for any purpose, including, without limitation, your use of this website to:
(a) browse photographs uploaded to our website; (b) advertise photographs for sale and/or for license to our registered customers; (c) purchase photographs from our website; or (d) manage you private, corporate or government photographic library
1.2 Each time you use this website, you agree to be bound by these terms and conditions and any changes to them we may make from time to time without notice. If you do not accept these terms and conditions, you must refrain from using the website. You are entitled to seek independent legal advice before using this website. These terms and conditions must be read in conjunction with any other applicable terms and conditions we may publish from time to time governing the use of this website.
1.3 If you find yourself unable to agree to these terms and conditions for any reason, then you must not use this website for any purpose at all, and you must immediately leave our website.
1.4 If, however, you agree to these terms and conditions wholly and unconditionally, you may access and use this website as permitted by these terms and conditions.
1.5 These terms and conditions shall override any contrary or previous terms or conditions published by us or appearing on this website.
1.6 If any part of these terms and conditions is invalid or unenforceable, the remainder of these terms and conditions shall continue in full force.
1.7 A copy of our latest terms and conditions is available at
2.1 For your convenience, we have listed below some general information about ourselves:
(a) “We”, “us” and “our” are all references to Stock Photography Pty Ltd A.C.N 138 512 848 trading as Stock Images A.B.N [48 138 512 848] and our address for service of all notices is PO Box 706, Joondalup WA 6919 Australia;
(b) References to “you”, “your” and similar are references to you as a person who accesses this website, for any purpose and includes, without limitation,authorised company representatives of our registered corporate customers;
(c) “GST” means the same as in the GST Law; any other goods and services tax, or any tax applying to a transaction in a similar way; and any additional tax, penalty tax, fine, interest or other charge under a law of such a tax; and
(d) “GST Law” means the same as “GST law” in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
2.2 In these terms and conditions:
(a) headings and underlinings are for convenience only and do not affect the interpretation of these terms and conditions;
(b) a provision of these terms and conditions will not be interpreted against a party just because that party prepared the provision;
(c) a word or expression in the singular includes the plural, and vice versa;
(d) words importing a gender include any gender;
(e) other parts of speech and grammatical forms of a word or phrase defined in these terms and conditions have acorresponding meaning;
(f) a reference to a statute includes an amendment or re-enactment to that legislation and includes subordinate legislation in force under it;
(g) a reference to a document includes an amendment or supplement to, or replacement or novation of, that document;
(h) a reference to a party to this or any other agreement includes that party's successor and permitted assigns;
(i) a reference to an agreement other than these terms and conditions includes an undertaking, agreement or legally enforceable arrangement or understanding whether or not in writing;
(j) a reference to a recital, a clause, a Schedule, or an Annexure is a reference to a recital, a clause of, a Schedule to, or an Annexure to these terms and conditions; and (k) a reference to a clause includes a reference to a subclause of these terms and conditions.
3 Purchasing photographs from our website – Stock Images WA
3.1 Our website is a forum which facilitates the sale and licensing of photographs between photographers and our customers, who are registered on our website.
3.2 Registered customers of our website may purchase exclusive, non-exclusive or full rights to relevant photographs, from us via our website. For detailed information about the fees and charges incurred in such transactions, and the methods of payment available, please see [https://www.stockimageswa.com.au/index/order_info]
3.3 The purchase of non-exclusive rights to photographs via our website means that the relevant photographs will continue to be made available for non-exclusive purchase or full purchase by other registered customers of our website. Photographs can be purchased for non-exclusive use for a non-exclusive license period of 24-months, or other period negotiated between us and the registered customer.
3.4 If exclusive rights to photographs are purchased via our website, no subsequent purchase of any rights in respect of the relevant photographs will be made available for purchase via the website during the exclusive license period (other than full rights subject to clause 3.5). Photographs can be purchased for exclusive use for an exclusive license period of 24-months, or other period negotiated between us and the registered customer. However, any rights obtained by any registered customers under non-exclusive licenses to the relevant photographs purchased from our website, prior to an exclusive licence for the same photographs being purchased, will not be affected by the exclusive license purchase. This means that the relevant photograph will only become exclusively available for use by the exclusive licensee upon the expiry of the relevant non-exclusive licence period(s).
3.5 The purchase of full rights to photographs via our website entitles the purchaser to take an assignment of all right, title and interest in the purchased photographs – subject only to the rights of any exclusive and non-exclusive licensee(s) of the relevant photographs until the expiry of the said licensees’ non-exclusive and exclusive license periods.
3.6 Customer registration can be carried out on our registration page, accessible at [https://www.stockimageswa.com.au/index/my_account].
3.7 On receipt of the customer’s completed registration application, we will send to the customer notification by e-mail that the registration application has been processed. Once we have sent to the applicant that e-mail confirming we have processed the registration application, a legally binding contract will have been formed between the applicant (the individual if registering in his or her personal capacity, or the corporation or government department, where the individual is registered for and on behalf of the corporation or government department, as the case may be) and us pursuant to these terms and conditions. However, we reserve the right not to process the registration application in our absolute discretion and accordingly, we will notify the applicant as soon as reasonably practicable by email if this is the case.
3.8 Please note that while we will endeavour to send a notification of every completed or rejected registration we receive, we cannot guarantee that the notification we send will be received by every applicant, nor that, if it is received by the applicant, it is legible and uncorrupted.
3.9 Every person who submits an application for registration as a customer on our website warrants and declares that the registration details they provide are true and accurate.
3.10 Without limitation to our rights, we reserve the right to terminate customers’ registered user status or access to our website at any time if customers are found to be in breach of these terms and conditions.
3.11 Only individuals may apply to become registered customers on this website. Individuals may apply to become registered customers in their own right, or on behalf of a corporation or government department, provided they are legally entitled to do so. Where individuals apply to become registered customers on behalf of a corporation or government department, we reserve the right to require a purchase order in a form approved by us executed by or on behalf of the corporation or government department in respect of each purchase of photograph(s) made on this website. As individuals who register as customers on this website on behalf of corporations or government departments may not share their login details, each individual who purchases photographs from our website on behalf of a corporation or government department must be individually registered on our website for and on behalf of the corporation or government department. Any such individual who registers on our website on behalf of a corporation or government department must immediately notify us if their position of employment or office within the corporation or government department ceases or changes for any reason.
3.12 Subject to the Prohibited Uses listed below, photographs purchased from our website can only be used for following
(a) advertising and promotional projects, including printed materials, product packaging, presentations, film and video presentations, commercials, posters, catalogues, brochures, promotional greeting cards and postcards that are not for re-sale;
(b) applications, such as book covers, magazines, newspapers, editorials, newsletters;
(c) on–line or electronic publications, including web pages; and
(d) any other uses approved in writing by Stock Photography Pty Ltd.
3.13 Photographs purchased from our website can only be used for Permitted Uses expressly stated in clause 3.12 of this agreement. To provide greater clarity, the photographs purchased from our website cannot used for any of the following Prohibited Uses:
(a) re-sell, sublicense, lend, rent, gift, assign or otherwise transfer or distribute any photograph or rights granted by these terms and conditions;
(b) use a photograph in any application intended for re-sale or re-distribution, including without limitation, posters, tee-shirts, mugs, greeting cards; calendars and post cards.
(c) use a photograph within a design template intended for sale or re-distribution, including without limitation, web site templates, flash templates, letterhead templates and business card templates;
(d) use a photograph as part of a logo, trademark or business name;
(e) use a photograph in any way that allows a third party to extract the photograph as an electronic file;
(f) use a photograph in a manner that Stock Photography Pty ltd, or the applicable law, considers to be inappropriate, immoral, defamatory, pornographic, libelous or that would likely bring any person or property featured in the photograph into disrepute;
(g) use of a photograph in a way that is likely to be offensive or unflattering to the person or property that appears within the photograph including, without limitation, criminal activity, mental and physical health issues, social issues, sexual or implied sexual activity or preferences, substance abuse and mental or physical disability;
(h) use a photography that in any way implies a person featured within the photograph endorses any product, action, cause, business, event or any other endeavour;
(i) crop, electrically change or otherwise alter a photograph so that it changes its intended purpose;
(j) remove any copyright notices embedded in the photograph;
(k) store photograph on a network server or web server so that it can be used by others;
(l) distribute a photograph via any peer-to-peer network, mobile devices or similar file sharing network;
(m) use a photograph in any editorial content without including the following credit “Source: www.stockimageswa.com.au”; and
(n) reproduce the content more than 500,000 times in any printed form, without first obtaining an extended excess reproduction license.
3.14 Without limiting the foregoing, any photograph purchased through this website via either a non-exclusive (refer 3.3) or exclusive (refer 3.4) license may only used as part of a single campaign. An additional license fee is payable for each additional campaign the photograph is used in within the license period.
4 Photographer registration – Stock Images WA
4.1 This website allows photographers and copyright owners of photographs (hereinafter both referred to as “photographers” or “registered photographers”) who have registered as photographers on our website to obtain commissions from us when we sell and/or license photographs supplied by the registered photographers to us, to registered customers of our website.
4.2 In order for a photographer to supply us with photographs for us to advertise for license and/or sale on our website, the photographer must register on our website as a photographer.
4.3 Photographer registration can be carried out on our registration page, accessible at [https://www.stockimageswa.com.au/cb.html].
4.4 On receipt of the photographer’s completed registration application, we will send to the photographer notification by e-mail that the registration application has been processed. Once we have sent to the applicant that e-mail confirming we have processed the registration application, a legally binding contract will have been formed between the applicant (the individual if registering in his or her personal capacity, or the corporation, where the individual is registered for and on behalf of the corporation, as the case may be) and us pursuant to these terms and conditions. However, we reserve the right not to process the registration application in our absolute discretion and accordingly, we will notify the applicant as soon as reasonably practicable by email if this is the case.
4.5 Please note that while we will endeavour to send a notification of every completed or rejected registration we receive, we cannot guarantee that the notification we send will be received by every applicant, nor that, if it is received by the applicant, it is legible and uncorrupted.
4.6 Every person who submits an application for registration as a photographer on our website warrants and declares that the registration details they provide are true and accurate.
4.7 Without limitation to our rights, we reserve the right to terminate photographers’ registered user status or access to our website at any time if photographers are found to be in breach of these terms and conditions.
4.8 Only individuals may apply to become registered photographers on this website, but may do so in their own right or on behalf of a corporation, provided they are legally entitled to do so. Where individuals apply to become registered photographers on behalf of a corporation, we reserve the right to require a written consent to do so in a form approved by us executed by or on behalf of the corporation. As individuals who register as photographers on this website on behalf of corporations may not share their login details, each individual who submits photographs to our website on behalf of a corporation must be individually registered on our website for and on behalf of the corporation. Any such individual who registers on our website on behalf of a corporation must immediately notify us if their position of employment within the corporation ceases for any reason.
4.9 We will assess applications for registered photographers having regard to any and all matters we consider relevant in our absolute discretion. As part of our assessment we require applicants to submit 20 photographs to us that accurately represent the quality of the applicants’ photographs. We agree not to commercially exploit those photographs.
4.10 All applications for registration must include details of an Australian bank account in the name of the registering photographer or the organisation they are the authorised representative for and are registering on behalf of. These details include the account name, account number and BSB.
5 Photograph submission and eligibility
5.1 Photographs submitted to us for our approval are subject to approval in our absolute discretion.
5.2 In order for a registered photographer to submit a photograph to our website, the registered photographer must log into our website using his or her unique login and password, and submit his or her photographs for our approval via our upload page, accessible at [https://www.stockimageswa.com.au/cb.html]. If we approve the photograph(s) submitted to our website in accordance with this subclause 5.2, we will request that the registered photographer post to us the relevant photograph(s) in their highest quality on CD Rom. If we approve the photograph(s) posted to us, we will upload the relevant photograph(s) to our website where the photographs will be advertised for sale and/or licensing, to customers of our website.
6 Photographer warranties – Stock Images WA
6.1 Each and every time a registered photographer submits a photograph to us for our approval, the registered photographer makes the following warranties:
(a) the photograph is being submitted to our website exclusively (i.e, the photograph must not have been and must not be advertised on any other website or in any other medium, at any time);
(b) the photograph was not taken in breach of any third party’s rights;
(c) the photographer is the legal and beneficial owner of all right, title and interest in the photograph;
(d) the photograph was taken in Western Australia;
(e) it is lawful for the photographer to upload the photograph to our website in his or her jurisdiction;
(f) the photographer acknowledges that this website is not made available in connection with illegal or illicit goods or services, photographs that are prohibited by applicable laws, sale or licensing of offensive photographs (including photographs of a defamatory, racist, pornographic or obscene nature), sale of stolen photographs, sale of photographs which infringe copyright or other laws, sales of photographs which have been illegally imported or sales of photographs which would require illegal import or export in order to complete a transaction, and that the photograph is not connected with any such matters;
(g) the photograph is free from viruses, trojans and any other harmful computer code;
(h) where photographs contain images of people or persons, you represent and warrant that you have obtained a valid and binding model release from all required parties in substantially the same form as the release published by RMIT (http://mams.rmit.edu.au/y9fzpftyvnso.pdf) that will permit the uses of this photograph contemplated in the ‘Permitted Uses’ as stated in clause 3.12 of these Terms and Conditions; and
(i) where required by applicable law, you have also obtained a valid and binding release relating to any identifiable property contained in the photograph that might sensibly lead to the identity of or be required by the owner of such property to permit the uses contemplated in the ‘Permitted Uses’ as stated in clause 3.12 of these Terms and Conditions.
6.2 Registered photographers agree to indemnify us and any of our directors, officers, employees, partners, affiliates, agents or assignees against any loss, damage or other liability which we may incur directly or indirectly in respect of or arising out of any breach by a registered photographer of all or any of the warranties set out in clause 6.1.
7 Photograph advertisement – Stock Images WA
7.1 We will advertise and utilise photographic images submitted to us as follows (at our option in our absolute discretion):
(a) for use by multiple (unlimited) registered customers of our website, for 24-month periods of time;
(b) for licensing to a single registered customer of our website (exclusively) for a 24-month period of time;
(c) for sale to a single registered customer of our website;
(d) for the promotion of this website and any other subsidiaries, businesses and websites belonging to Stock Photography Pty Ltd to prospective customers and photographers: or
(e) otherwise as negotiated by us in our absolute discretion.
7.2 If a photograph is submitted to us for our approval by a registered Photographer for use by registered customers of our website, the Photographer, in submitting the photograph, makes an irrevocable, unconditional offer to us to sublicense use of the photograph or sell full and ongoing copyright to our customers, for the price and on the terms and conditions we determine in our absolute discretion.
7.3 We pay each registered photographer a 30% commission (or a commission agreed upon by negotiation), based on the fees we generate from the licensing and/or sale of the registered photographer’s photographs to our customers. We pay this commission on a monthly basis, into the relevant registered photographers’ nominated Australian bank account. In cases where a photograph has been purchased by a user who pays us on 30-day terms, we will pay the photographer at the end of the next month after the month in which we have received payment from the relevant registered customer.
8 Corporate Photo Management Service
8.1 The “Photo Manager” service is a subscription service that allows register customers to search, catalogue and retrieve their images.
8.2. Subject to these Terms and Conditions, we agree to provide the Photo Manager service to you, and hereby grant to you a non-transferable, non-sublicensable, non-exclusive, limited right and license to access and use the Service as a User who has been authorized by a specific customer (the “Customer”) to use the Service pursuant to a completed and fully paid order form and subscription agreement (the “Customer Subscription”) for so long as such Customer Subscription remains in good standing and fully paid. Your use of and access to the Service will at all times be subject to the terms of such Customer Subscription.
8.3 Charges for the Customer Subscription must be paid in advance and we reserve the right to suspend access to the Service if:
(a) your subscription remains unpaid seven days beyond the invoice due date, and
(b) cancel the any subscription that is still unpaid 30 days beyond the invoice due date.
8.4. By agreeing to the Customer Subscription you will
(a) unless otherwise set out on the Customer Subscription, only use the Service as a secondary archive for “Content”, which includes any trade names, trade-marks, domain names or works of authorship, including without limitation text, posts, messages, audiovisual material, documentation, multimedia elements, photos, videos, music, sounds, images, designs, illustrations, presentations, documents, files, data, templates, listings, logos, marks, tags, code, software, their selection and arrangement, and other resources, information and materials,
(b) be responsible for full compliance with these Terms and Conditions, as well as the accuracy, quality, integrity and legality of any Content posted, uploaded, transmitted or otherwise made available by you using the Service, where such Content belongs to, or was developed, created or otherwise acquired or provided (except from us) by you or the Customer (collectively, the “Customer Content”), and of the means by which you acquire Customer Content,
(c) ensure that you adequately store all Customer Content hosted with the Service in your own primary archive separate to the Service,
(d) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and notify us promptly of any threatened or actual unauthorized access or use,
(e) use the Service only in accordance with all applicable laws, including local, provincial, state, national and foreign laws, treaties and regulations as well as court or governmental agency orders (the “Applicable Laws”), including all privacy laws and laws regarding the infringement of Intellectual Property Rights, and
8.5. At all times, you will not, and will not permit any other person to, directly or indirectly,
(a) share your User Account with any other person, and without restricting the generality of the foregoing, you will not make the Service available to anyone, or permit anyone to access the Service, through your User Account or otherwise, nor will you license, sublicense, sell, resell, publish, republish, transfer, assign, distribute, rent, lease, time-share, copy or otherwise commercially exploit the Service in any way,
(b) access the Service except through the Customer Portal and subject to further restrictions as disclosed in writing from time to time by us,
(c) use the Service in any manner that (i) contravenes, facilitates the violation of, or violates any Intellectual Property Rights of any person, (ii) contravenes, facilitates the violation of, or violates any Applicable Laws, or (iii) extracts, gathers, collects, or stores or uses personal information in violation of Applicable Laws with respect to privacy of personal information,
(d) alter, modify, reverse engineer, decompile, or disassemble, translate or otherwise attempt to extract the source code from the Service or any part thereof,
(e) create derivative works of the Service, or access the Service in order to (i) build a competitive product or service,
(ii) copy any features, functions or Content (except for Customer Content) in connection with the Service, or (iii) access any Customer Content for which you do not have permission from the Customer to access,
(f) disable or circumvent any access control or related process or procedure established with respect to the Service, or attempt to gain unauthorized access to the Service,
(g) except as expressly permitted, remove any copyright or other proprietary notices on or in the Service or any part thereof,
(h) introduce into the Service, or reproduce, distribute or otherwise transmit, (i) any viruses, cancelbots, worms, time bombs, Trojan horses and other harmful, disruptive or other surreptitious or malicious components, code, files, scripts, agents programs (“Malicious Code”), or (ii) defamatory, infringing, indecent or unlawful Content, or any other software, materials or information, or
(i) impersonate or falsely represent association with any person, including our representatives, without the prior express, written permission of such person.
8.6 You agree that we may, without notice or liability, but always subject to Applicable Laws, (a) disclose to any person any information or materials associated with your User Account, (b) monitor use of the Service, or (c) monitor, review and retain such Customer Content, material or information, if we believe in good faith that such activity is reasonably necessary to provide the Service to our customers, ensure adherence to or enforce these Terms and Conditions, comply with any laws or regulations, respond to any allegation of illegal conduct or claimed violation of third party rights, or protect ourselves or others. If we receive a complaint relating to your use of the Service, you acknowledge and agree that we may, in our sole and absolute discretion and without notice or liability, (x) investigate the complaint, (y) restrict, suspend or terminate your User Account or the Service involved, or (z) remove any Customer Content, information or materials from the Service or from our possession or control. Nothing in the foregoing imparts upon us any obligation to actually monitor, review, or remove any Customer Content or information.
8.7 We do not claim ownership of, and except as expressly set out in these Terms and Conditions, assume no responsibility with respect to, any Customer Content. All right, title and interest (including Intellectual Property Rights) in and to Customer Content, will at all times be fully vested in you, the Customer, or other users, as applicable, except as follows:
(a) By transmitting, storing, displaying, processing or otherwise using Customer Content in any way with respect to the Service, you will be deemed to have
represented and warranted to us that you have all rights, titles and interests (including all Intellectual Property Rights) in and to such Customer Content for its use with the Service and for the license granted to us below,
ii. granted to us a royalty-free, worldwide, transferable, sub-licensable, irrevocable license to use, copy, distribute, transmit, display, edit, delete, modify, publish and translate Customer Content solely to the extent reasonably required for (A) the proper transmission, storage, display or other usage or performance thereof in connection with the Service and (B) the performance of our obligations, and
(b) We reserve the right to perform statistical analysis of access to and use of the Service and Customer Content, including network traffic and access requests, for the purposes of measuring the effectiveness of the Service, optimizing performance, and ensuring compliance with these Terms and Conditions.
8.8 The primary form of support you will be provided with is via email. Email support will be managed in a timely manner in order of urgency then in time order of emails received.
8.9 As part of your subscription you will be provided with reasonable access to your Customer Content. We reserve the right to charge an additional fee(s) for excessive upload and download traffic, which shall by determined at our absolute discretion.
9.1 WE DO NOT REPRESENT OR WARRANT THAT ALL DEFECTS WILL BE CORRECTED OR THAT THE SERVICE WILL RUN ERROR FREE OR UNINTERRUPTED, AND THE SERVICE IS PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS.
9.2 TO THE EXTENT PERMITTED BY LAW, WE DO NOT ACCEPT RESPONSIBILITY FOR ANY LOSS OR DAMAGE, HOWEVER CAUSED (INCLUDING, WITHOUT LIMITATION, WHETHER THAT LOSS OR DAMAGE IS ACTUAL, SPECIAL OR CONSEQUENTIAL OR IS A RESULT OF NEGLIGENCE), WHICH YOU MAY DIRECTLY OR INDIRECTLY SUFFER IN CONNECTION WITH YOUR USE OF THIS WEBSITE OR ANY LINKED WEBSITE WHETHER OR NOT THAT LOSS OR DAMAGE WAS FORESEEABLE OR DISCLOSED, NOR DO WE ACCEPT ANY RESPONSIBILITY FOR ANY SUCH LOSS ARISING OUT OF YOUR USE OF OR RELIANCE ON INFORMATION CONTAINED ON OR ACCESSED THROUGH THIS WEBSITE (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS OR SAVINGS, OR BUSINESS INTERRUPTION).
9.3 TO THE EXTENT PERMITTED BY LAW WE OFFER NO WARRANTIES IN RELATION TO GOODS OR SERVICES SOLD OR LISTED ON THIS WEBSITE. WE ALSO OFFER NO WARRANTY IN RELATION TO THE AVAILABILITY OF THE WEBSITE OR THAT REGISTERED USERS OF OUR WEBSITE WILL ACT LAWFULLY OR IN ACCORDANCE WITH THESE TERMS AND CONDITIONS.
9.4 YOU ACKNOWLEDGE THAT TO THE EXTENT PERMITTED BY LAW, WE MAKE NO REPRESENTATION AS TO THE OWNERSHIP OF TITLE IN ANY PHOTOGRAPHS, THEIR LEGALITY, OR AS TO THE ABILITY OF EITHER A REGISTERD PHOTOGRAPHER OR A CUSTOMER OF THIS WEBSITE TO COMPLETE A TRANSACTION.
9.5 TO THE EXTENT PERMITTED BY LAW, ANY CONDITION OR WARRANTY WHICH WOULD OTHERWISE BE IMPLIED INTO THESE TERMS AND CONDITIONS IS HEREBY EXCLUDED. WHERE LEGISLATION IMPLIES ANY CONDITION OR WARRANTY, AND THAT LEGISLATION PROHIBITS US FROM EXCLUDING OR MODIFYING THE APPLICATION OF, OR OUR LIABILITY UNDER, ANY SUCH CONDITION OR WARRANTY, THAT CONDITION OR WARRANTY WILL BE DEEMED INCLUDED BUT OUR LIABILITY WILL BE LIMITED FOR A BREACH OF THAT CONDITION OR WARRANTY TO ONE OF THE FOLLOWING: (A) IF THE BREACH RELATES TO GOODS, (I) THE REPLACEMENT OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS, (II) THE REPAIR OF SUCH GOODS, (III) THE PAYMENT OF THE COST OF REPLACING THE GOODS OR OF ACQUIRING EQUIVALENT GOODS OR (IV) THE PAYMENT OF THE COST OF HAVING THE GOODS REPAIRED; AND (B) IF THE BREACH RELATES TO SERVICES, (I) THE SUPPLYING OF THE SERVICES AGAIN OR (II) THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.
9.6 YOU ACKNOWLEDGE THAT AS YOU CONTROL YOUR USER ACCOUNT, WE SHALL HAVE NO RESPONSIBILITY FOR ANY ACCESS OR USE OF CUSTOMER CONTENT EXCEPT AS EXPRESSLY SET OUT IN THESE TERMS AND CONDITIONS.
10 Exception to disclaimer
10.1 THESE TERMS AND CONDITIONS DO NOT ATTEMPT OR PURPORT TO EXCLUDE LIABILITY ARISING UNDER STATUTE IF, AND TO THE EXTENT, SUCH LIABILITY CANNOT BE LAWFULLY EXCLUDED.
11 Liability and indemnity
11.1 YOU AGREE THAT TO THE EXTENT PERMITTED BY LAW WE WILL BE UNDER NO LIABILITY TO YOU IN RESPECT OF ANY LOSS OR DAMAGE (INCLUDING INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGE) WHICH MAY BE SUFFERED OR INCURRED BY YOU OR WHICH MAY ARISE DIRECTLY OR INDIRECTLY IN RESPECT OF GOODS OR SERVICES SUPPLIED OR NOT SUPPLIED OR IN RESPECT OF A FAILURE OR OMISSION ON THE PART OF ANY PARTY TO A TRANSACTION TO COMPLETE A TRANSACTION.
11.2 YOU RELEASE AND INDEMNIFY US AGAINST ALL ACTIONS, CLAIMS AND DEMANDS (INCLUDING THE COST OF DEFENDING OR SETTLING ANY ACTION, CLAIM OR DEMAND) WHICH MAY BE INSTITUTED AGAINST US ARISING OUT OF A FAILURE BY ANY PARTY TO A TRANSACTION TO COMPLETE A SALE OR SATISFY THE REQUIREMENTS OF A SALE, OR TO COMPLY WITH THESE TERMS AND CONDITIONS.
11.3 YOU ALSO RELEASE AND INDEMNIFY US AGAINST ALL ACTIONS, CLAIMS AND DEMANDS (INCLUDING THE COSTS OF DEFENDING OR SETTLING ANY ACTION, CLAIM OR DEMAND) WHICH MAY BE INSTITUTED AGAINST US ARISING OUT OF ANY ACT OR OMISSION ON YOUR PART, INCLUDING BUT NOT LIMITED TO A FAILURE BY YOU TO COMPLY WITH YOUR OBLIGATIONS UNDER THESE TERMS AND CONDITIONS, OR FOR BREACH OF ANY LAW, OR FOR BREACHING THE RIGHTS OF ANY PERSON OR ENTITY.
12 Further warnings
12.1 You must ensure that your access to this website is not illegal or prohibited by laws which apply to you.
12.2 The Service may be accessed directly through the graphical interface created by us and customized for the Customer (the “Customer Portal”) made available by us from time to time in respect of the Service whereby access to the Service is made available on an “as-is” and “as available” basis. You acknowledge and agree that (a) access to the Service is User-based, (b) in order to access the Service, you have been given an account with credentials for accessing the Service as a User who is authorized by the Customer to use the Service, such credentials including a login name and password (the “User Account”), (c) your User Account is assigned to you as a designated, named individual only, and (d) that your User Account may not be shared or used by or with any other person.
12.3. Your access to the Service requires a valid User Account, and you are responsible for the maintenance, confidentiality and security of all passwords related to your User Account, and any and all activities that occur under your User Account (whether with or without your permission). You will notify us as soon as practicable after you obtain or receives knowledge of (a) any unauthorized use of your User Account or password related to your User Account, or (b) any other breach of security with respect to your User Account. You will provide true, current, accurate and complete information as prompted by the User Account-creation process or as otherwise requested by us from time to time and will promptly update such information when any changes occur so as to keep such information held by us true, current, complete and accurate.
12.4 You must take your own precautions to ensure that the process which you employ for accessing this website does not expose you to risk of viruses or other form of interference which may damage your computer system. For the removal of doubt, we do not accept responsibility for any interference or damage to your computer system which arises in connection with your accessing of this website or any linked website.
12.5 Whilst we have no reason to believe that any information contained on this website is inaccurate, to the extent possible by law, we do not warrant the accuracy, adequacy or completeness of such information, nor do we undertake to keep this website updated. To the extent possible by law, we do not accept responsibility for loss suffered as a result of reliance by you upon the accuracy or currency of information contained on this website.
12.6 You acknowledge that we do not represent registered photographers or our registered customers. Unless expressly stated to the contrary, we do not endorse the photographs listed on this website. We accept no responsibility for the nature of the photographs. If you are a registered customer of our website and you believe a photograph is illegal for any reason, including but not limited to due to breach of your intellectual property rights, we will provide you with the contact details of the registered photographer who uploaded the relevant photograph. You agree not to make any claim against us in relation to any breach of intellectual property rights in any photograph you license or purchase from us. However, in respect of any photographs on or supplied via our website, for which it is alleged or claimed by any third party that the supply of the photograph is in breach of any person’s intellectual property, you agree (if you are or were a registered customer) of our website, to cease all use of the photograph; and we agree to (a) cease all further licensing or sale of the photograph; (b) temporarily delist the photograph from our website; and (c) notify all licensees and purchasers of the photograph of the allegation or claim, pending resolution of the allegation or claim.
12.7 We do not act as agent for either our registered photographers or customers. We are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these terms and conditions.
12.8 You acknowledge that your failure to comply with these terms and conditions entitles us to terminate your registered user status. We may determine at our discretion whether such a failure has occurred.
12.9 You acknowledge that from time to time we may be required, without notice, to temporarily suspend Service, to provide such things as (but not limited to), software updates, server and hosting works and general site maintenance.
13.1 Copyright in this website (including without limitation text, graphics, logos, icons, sound recordings, source code and object code and all software and photographs) is owned or licensed to us. Other than for the purposes of, and subject to the conditions prescribed under, the Copyright Act 1968 (Cth), and except as expressly authorised by these terms and conditions, you may not in any form or by any means:
(a) adapt, reproduce, store, distribute, print, display, perform, publish or create derivative works from any part of this website; or
(b) commercialise any information, products or services obtained from any part of this website other than where expressly agreed to the contrary by us in writing (other than photographs which you acquire a licence to or purchase in accordance with these terms and conditions – In particular please refer to the Permitted Uses listed under clauses 3.12 and Prohibited Uses listed under clause 3.13.
13.2 In consideration of agreeing to your use of this website, you acknowledge that the ownership in all and any intellectual property rights in this website belongs to us or third parties, subject to and except as expressly authorised by these terms and conditions. Accordingly, any part of this website (and its source and object code) may not be used, transferred, copied or reproduced in whole or in part in any manner other than for the purposes of utilising this website as reasonably contemplated in these terms and conditions.
Furthermore, you acknowledge and agree that nothing in these Terms and Conditions constitutes a sale of, or conveys to you any ownership right, title or interest in or to, the Service or any software owned or licensed by us, and all Intellectual Property Rights therein, where “Intellectual Property Rights” means any and all (i) proprietary rights provided under patent law, copyright law, trade-mark law, design patent or industrial design law, semi-conductor chip, trade secret law or mask work law, or any other applicable statutory provision or otherwise arising at law or in equity anywhere in the world, that may provide a right in Content (as defined below), software, source code, object code, marks, ideas, formulae, algorithms, concepts, methodologies, techniques, inventions, or know-how, or the expression or use thereof, (ii) applications, registrations, licenses, sublicenses, agreements, or any other evidence of a right in any of the foregoing, and (iii) past, present, and future causes of action, rights of recovery, and claims for damage, accounting for profits, royalties, or other relief relating, referring, or pertaining to any of the foregoing. All right, title and interest (including all Intellectual Property Rights) in and to the Service is and will at all times be fully vested in us except as otherwise expressly set out in these Terms and Conditions.
14.1 Except where otherwise specified, any word or device to which is attached the ™ or ® symbol is a registered trade mark.
14.2 You must not use any of our trade marks:
(a) in or as the whole or part of your own trade marks;
(b) in connection with activities, products or services which are not ours;
(c) in a manner which may be confusing, misleading or deceptive;
(d) in a manner that disparages us or our information, products or services (including this website); or
(e) in any other manner, without our prior written consent.
15 Hyperlinking and linked websites
15.1 This website may contain links to other websites (“linked websites”). Those links are provided for convenience only and may not remain current or be maintained.
15.2 We are not responsible for the content or privacy practices associated with linked websites.
15.3 Our links with linked websites should not be construed as an endorsement, approval or recommendation by us of the owners or operators of those linked websites, or of any information, graphics, materials, products or services referred to or contained on those linked websites, unless and to the extent stipulated to the contrary. Furthermore, we do not make any warranties, representations or undertakings about the content of any other website which may be referred to or accessed by hypertext link with this website.
15.4 You may not link this website to any other website without our prior written consent.
16 Security of information
16.1 Unfortunately, no data transmission over the Internet can be guaranteed as totally secure. Whilst we strive to protect such information, we do not warrant and cannot ensure the security of any information which you transmit to us. Accordingly, any information which you transmit to us is transmitted at your own risk. Nevertheless, once we receive your transmission, we will take reasonable steps to preserve the security of such information. Once you log into our website, we encrypt data using 128-bit encryption before transmitting data over the Internet to you from our website.
17 Model Release – Stock Images WA
17.1 Where photographs contain images of people or persons registered photographers must hold a valid and binding model release from all required parties that will permit the uses of this photograph contemplated in the ‘Permitted Uses’ as stated in clause 3.12 of these Terms and Conditions.
17.2 Upon receipt of a request by us, a registered photographer must supply any model release held for a photograph to us within 14 days.
18 Termination of these terms and conditions
18.1 Access to this website and these terms and conditions may be terminated at any time by us without notice. The accrued rights of the parties shall survive termination.
18.2 Without limiting our rights, you understand that if we reasonably suspect, discover or are notified you are utilising this website for fraudulent or illegal purposes or in breach of these terms and conditions, we may terminate your access to this website and these terms and conditions without warning.
18.3 These terms and conditions remain effective until terminated.
18.5 We may also terminate or suspend your access to the membership sections of our website for inactivity, as determined by us in our absolute discretion.
18.6 Upon termination for any reason, you must pay all and any monies due and owing to us, and your continued use of any photographs licensed will remain subject to these terms and conditions and survive termination in all respects.
18.7 Without limiting the foregoing, upon termination of these terms and conditions, while no further licenses will be provided in respect of any photographs you submitted to our website, all such photographs you supplied to us will be delisted from our website, notwithstanding that any license(s) provided by us in respect of the photographs prior to termination will not be affected by such termination. This clause shall not apply to photographs in respect of which all right, title and interest has been assigned to a registered customer of our website – for the avoidance of doubt, registered photographers have no claims in respect of such photographs.
19 Governing law
19.1 These terms and conditions are governed by the laws in force in Western Australia. You agree to submit to the exclusive jurisdiction of the courts of that jurisdiction.
20 Dispute resolution
20.1 Any dispute arising in connection with these terms and conditions or your use of the website which cannot be settled by negotiation between us or our representatives must be submitted to arbitration in accordance with the Rules for the Conduct of Commercial Arbitrations (or such equivalent rules) for the time being of the Institute of Arbitrators & Mediators Australia.
20.2 The Arbitration shall occur in Western Australia and during such arbitration, both of us or one of us may be legally represented.
20.3 The Arbitrator’s fee will be shared equally by us.
20.4 Other than in relation to urgent equitable relief, you may not commence court proceedings against us unless this clause 20 has been complied with. For the avoidance of doubt, court proceedings may only be commenced in Western Australia and we do not, by these terms and conditions, submit to the jurisdiction of any other courts.
21.1 We accept no liability for any failure to comply with these terms and conditions where such failure is due to circumstances beyond our reasonable control.
21.2 If we waive any rights available to us under these terms and conditions on one occasion, this does not mean that those rights will automatically be waived on any other occasion.
21.3 If any clause or part of these terms and conditions are held to be invalid, unenforceable or illegal for any reason, the remaining terms and conditions shall nevertheless continue in full force.
22 Force majeure
22.1 Force Majeure means a circumstance beyond our reasonable control which results in us being unable to observe or perform on time any of our obligations. Such circumstances shall include but shall not be limited to:
(a) acts of God, lightning strikes, earthquakes, floods, droughts, storms, tempests, mud slides, washaways, explosions, fires and any natural disaster;
(b) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; and
(c) technical failure, coding errors, failure of web servers or payment gateways or other technical glitches, errors, defects, or matters that render the website inaccessible, unusable or performing in a manner which we do not intend it to perform.
22.2 We shall not be liable for any delay or failure to perform our obligations under these terms and conditions or otherwise if such delay is due to Force Majeure.
22.3 If a delay or failure by us to perform our obligations is caused or anticipated due to Force Majeure, the performance of our obligations will be suspended.
22.4 If a delay or failure by us to perform our obligations due to Force Majeure exceeds sixty (60) days, we may immediately terminate your use of the website.
22.5 If your use of our website is terminated pursuant to subclause 4 of this clause 22, we will be under no obligation to refund moneys previously paid by you to us.
23.1 We aim to provide you with a quality service. If, however, you feel that you have cause to complain about our website, you can contact us at the address given above. We will try to do our best to solve any problems that arise. Please remember we do not get involved in disputes between users of our website.
24.1 We may collect website users' contact information (like their e-mail addresses). Unless you object, this information may be used:
(a) to send news, information about our activities and general promotional material which we believe may be useful to you;
(b) if there is any allegation of breach of intellectual property, we will supply the contact details of the registered photographer who supplied us with the relevant photographs, to the person making the allegation;
(c) to monitor who is accessing the website or using services offered on the website; and
(d) to profile the type of people accessing the website.
24.2 If you do not wish to have your personal information used in this manner or for any other specific purpose, you can e-mail us accordingly. Otherwise, you hereby consent unconditionally to use using your contact information for the above purposes.
24.3 We utilise “cookies” which enable us to monitor traffic patterns and to serve you more efficiently if you revisit the site. A cookie does not identify you personally but it does identify your computer. You can set your browser to notify you when you receive a cookie and this will provide you with an opportunity to either accept or reject it in each instance.
24.4 We will not sell or otherwise provide your personal information to a third party, or make any other use of your personal information, for any purpose which is not incidental to your use of this website.
24.5 If you request us not to use personal information in a particular manner or at all, we may terminate your access to our website and/or we will adopt all reasonable measures to observe your request but we may still use or disclose that information if:
(a) we subsequently notify you of the intended use or disclosure and you do not object to that use or disclosure; (b) we believe that the use or disclosure is reasonably necessary to assist a law enforcement agency or an agency responsible for government or public security in the performance of their functions; or (c) we are required by law to disclose the information.
24.6 We will preserve the content of any e-mail you send us if we believe we have the legal requirement to do so.
24.7 Personal information which we collect may be aggregated for analysis but in such circumstances we would ensure that individuals would remain anonymous.
24.8 All personal information which we collect (including your contact details and, if relevant, credit card details) is kept confidential to the best of our ability, unless subject to disclosure in accordance with these terms and conditions. You will appreciate, however, that we cannot guarantee the security of transmission.
24.9 You are entitled to have access to any personal information relating to you which you have previously supplied to us over this website. You are entitled to edit or delete such information unless we are required by law to retain it.