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Austockphoto Customer Agreement

A. RIGHTS DEFINITIONS AT POINT OF SALE

Basic Licence:

Single use, non-exclusive, royalty-free licence for the following:

Print: reproduction, distribution and communication of the image for the purposes of advertising, promotion, presentations, catalogues, brochures and promotional postcards, limit of 100,000 copies.
Digital uses: websites, in online advertising, in social media, in mobile advertising, 
mobile “apps”, software, e-cards, e-publications (e-books, e-magazines, blogs, etc.), 
and in online media.
Editorial: For use in content as a visual reference to illustrate text.
Personal non-commercial uses.
Image may be modified, cropped, resized, and combined with other works.
Print copies limited to 100,000. Online use unlimited.
No application to products for resale (hard-copies or digital).

 

Additional Licences:

Each of the following Additional Licences is available for purchase in addition to single use Basic Licence:

(a) Unlimited print copies.
(b) For use across multiple projects by a single organisation.
(c) Use of Image on packaging of goods for sale or commercial distribution, for period of two years from first usage.

Note Basic and Additional Licences subject to Terms and Conditions: including usage restrictions, disclaimers and liability caps. Your use of the Image must be ‘transformative’ – combining the Image with text and other other images to create something new. Images must not be reproduced for resale or distribution where the main value of the product lies in the Image itself, for example, mugs, t-shirts, posters, greeting cards, posters or other merchandise, or any “print on demand” service. If your intended use of an Image is not covered by the Basic or Extended Image licenses please contact our Customer Service hello@blog.austockphoto.com.au and discuss a custom licence.

 

B. GENERAL TERMS AND CONDITIONS

1. Operation of Terms

(a) This service is provided by Boheem Design Pty Ltd t/as Austockphoto, ABN 55 117 837 635 (“Austockphoto”)

(b) By purchasing a Basic Licence and (if applicable) any Additional Licences (“Licence”) to exploit an Image by means of this website blog.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 another entity, the entity is deemed to accept these Terms and Conditions and you warrant and represent that you have the full right and authority to do so. 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@blog.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;
(iii) 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);
(iv) the Image is not, to the best of Austockphoto’s knowledge subject to any claim or complaint from any third party; and
(v) 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@blog.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. (B) AUD$2000.

 

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AUSTOCKPHOTO ARTIST AGREEMENT

 

Works:

Photographs, video / audio-visual footage, and other images submitted by the Owner to Austockphoto from time to time via blog.austockphoto.com.au/login (or other URL operated by Austockphoto), and accepted by Austockphoto (at its sole discretion) for inclusion in the catalogues of images (“the Catalogue”) made available by Austockphoto to third parties (“Customers”) who may wish to purchase the right to use images.

 

Grant of Rights:
The Owner hereby grants Austockphoto the following rights as an exclusive worldwide licence:

(a) Catalogue Rights
The Right to communicate the Works to the public via any website, social media platform or other portal owned, operated, controlled or authorised by Austockphoto or to publish copies of the Works in physical form, for the purpose of promoting the Works to potential Customers.

(b) Customer Licence Rights
The Right to grant Customers non-exclusive licences, worldwide in perpetuity, to reproduce, publish, communicate to the public and otherwise exploit the Works in all media now known or yet to be invented, in accordance with the standard terms and conditions published by Austockphoto from time to time.

(c) Promotion Rights
The Right to communicate the Works to the public via any website, social media platform or other portal or to publish copies of the Works in physical form, for the purpose of promoting the Works, Catalogue, Owner and/or Austockphoto.

This Right will include the right to publish the approved name, likeness and biography of the Owner.

(d) Adaptation Rights
The Right to adapt, edit, manipulate, synchronise and other otherwise combine the Works with other works and subject matter for the purpose of exploiting the other Rights granted in this Agreement.

In particular, the Artist notes that Austockphoto may publish thumbnails or low-resolution copies of Works in the Catalogue.

 

The Owner acknowledges that he or she:

(a) may not be credited or attributed in connection with any use and exploitation of the Works under this Agreement;

(b) will not have any claim or entitlement in respect of any work or subject matter incorporating a Work that might be created by a Customer pursuant to a Customer Licence.

The Owner hereby irrevocably consents to use and exploitation of the Works under this Agreement and agrees that he/she will not make any claim that any action of Austockphoto or any Customer with respect to the Works is an infringement of any moral rights or similar rights.

Austockphoto may assign, licence or otherwise deal with its rights under this Agreement at its sole discretion.

 

Reserved Rights:

Exclusive Works:
The Owner is entitled to exercise the following rights in the Exclusive Works:

(a) display the Works on Owner’s website and any website, social media platform for the purpose of promoting the Owner, and securing further engagements; and

(b) sell, or offer for sale, hardcopy photographic prints of the Works (but not, for the avoidance of doubt, electronic, digital or soft copies of the Works, which right is reserved exclusively to Austockphoto).

The Owner hereby undertakes that he/she will not, and will not grant any third party the right to, during Term otherwise exploit, display or publish the Works by any other means or in any media without the prior written approval of Austockphoto.

The Owner will contact Austockphoto to seek written consent if he or she wishes to do anything with the Works, which is not provided for in this section. Where a third party wishes to exploit rights in the Works, the Owner will refer them to the Austockphoto website.

Except as granted to Austockphoto in this Agreement, copyright in the Works is reserved to the Owner.

 

Non-Exclusive Works:
The Owner is entitled to exercise the following rights in the Non-Exclusive Works:

(a) display the Works on Owner’s website and any website, social media platform for the purpose of promoting the Owner, and securing further engagements; and

(b) sell, or offer for sale, hardcopy photographic prints of the Works as well as electronic, digital or soft copies of the Works.

Except as granted to Austockphoto in this Agreement, copyright in the Works is reserved to the Owner.

 

Licence Fee:
As full consideration for the grant of Rights by the Owner under this Agreement, Austockphoto will pay the Owner 50% of the gross Exclusive licence fees and 25% of the gross Non-Exclusive fees, paid by Customers and actually received by Austockphoto, less only:

(a) bank, credit card and other transaction charges; and

(b) Goods and Services Tax or any other sales or value added tax incurred in connection with any licence granted.
Austockphoto will make statements available to the Owner at least monthly in arrears, where Licence Fees in excess of AUD$20 are payable to the Owner. Any payment then due to the Owner will accompany the statement. Licence Fees below $20 will carried forward to the next accounting period.

If GST is payable in respect of any supply made by the Licensor under this agreement, then it will be paid in addition to the Fee, subject to provision of a valid tax invoice by the Licensor.

 

Taxation & GST:

It is the responsibility of each photographer to check their GST reporting obligations with their respective accountant/tax adviser. Austockphoto is not liable for providing any GST advice to a photographer.

 

Limitation of Liability:
The Owner agrees that the liability of Austockphoto under this Agreement in respect of any Work, is limited to an amount equal to the Licence Fee paid or payable to the Owner in connection with use of that Work under this Agreement.

 

Term:
This agreement commences on the initial acceptance of a Work by Austockphoto, and will continue until terminated by either party with 30 days’ notice to the other.

Austockphoto may withdraw any Work(s) from the Catalogues at its discretion, and without notice to the Owner. The Owner may request Austockphoto withdraw Work(s) from the Catalogues and the work will be removed within 7 days.

Upon withdrawal of a Work or termination of the Term, Austockphoto will use best endeavours to remove all Works from the Catalogue and to cease exercise of the Promotion Rights.

 

Surviving Rights:
The Owner acknowledges that notwithstanding any termination or expiry of this Agreement or withdrawal of any Work from the Catalogue:

(a) any Customer Rights licence granted during the Term will survive for its full duration;

(b) Austockphoto will retain the exclusive Customer Licence Rights for a further 90 day period for any image that has been exclusively licensed to us.

(c) the warranties and indemnities given by the Owner will remain in effect.

 

Warranty:
The Owner warrants that:

(a) he or she owns all rights, including copyright, in the Works;

(b) he or she has the full power and authority to enter into this Agreement and there are no restrictions that prevent the Owner from granting the rights under this Agreement;

(c) he or she has obtained all necessary licences or permissions in relation to any models, locations, or copyright works and subject matter that may be featured or incorporated into the Works, and is not in any way violating the rights of any third party by granting the Rights under this Agreement;

(d) submitted Works are free of any digital rights management, electrontic security or copyright control mechanisms, and are not infected by any virus or malicious software; and

(e) no fees, residuals or royalties will be payable by Austockphoto to any third party in respect of the exploitation of the Works, except as expressly provided for in this Agreement.

and the Owner indemnifies Austockphoto against all claims, losses, liabilities, damages and costs (including legal costs) arising out of any breach of these warranties.

The Owner will notify Austockphoto immediately in the event if they become aware of any breach (or potential breach) of the above warranties.

The Owner indemnifies Austockphoto (and it’s licensees) against all claims, losses, liabilities, damages and costs (including legal costs) arising out of any breach of these warranties.

 

General:
The parties enter into this Agreement as independent contractors and nothing in this Agreement will be construed to create a relationship of employer and employee, partnership, or joint venture.

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 and provide written notice to you.

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.


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