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Term and conditions

PLEASE READ THESE USER TERMS AND CONDITIONS CAREFULLY BEFORE USING THE SITE AND SERVICES.

YOURSURFPHOTOS – TERMS AND CONDITIONS

  1. GENERAL
    • These Terms govern your use of our website and the services located at www.yoursurfphotos.com.au (the Site) and form a binding contractual agreement between you, the User and us, Forever Films Pty Ltd ABN 66 158 800 189 trading as YOURSURFPHOTOS (YOURSURFPHOTOS). For that reason, these Terms are important and you should read them carefully and contact us with any questions before you use the Site and the Services.
    • By completing the registration process on the Site and using the Services, or by viewing or browsing the Site, you acknowledge that you have had sufficient chance to read and understand these Terms, and that you agree to be bound by them.
    • You warrant that you are at least 18-years-old and you are legally capable of entering into binding contracts. If you are under 18-years-old, you warrant that you have obtained consent from your parent or guardian and they agree to be bound by these Terms on your behalf.
    • If you do not agree to these Terms, you may not access or otherwise use the Site and the Services offered on the Site.
  2. DEFINITIONS

In these Terms:

Commission means the amount payable by the Licensor to YOURSURFPHOTOS in consideration for use of the Services upon completion of a transaction, calculated as 20% of the Licence Fee payable by the Licensee for the licence of a particular Photo;

Content means any and all data, text, software, images, audio or video material and other content, in any medium, provided by YOURSURFPHOTOS to you;

Items means any merchandise, including any general or customized marketing materials, offered for sale or resale on the Site and Services by YOURSURFPHOTOS;

Intellectual Property means all intellectual property rights, including all copyright, patents, trade marks, design rights, trade secrets, domain names, know-how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application;

Licensee

Licence Fee means the amount payable by a Licensee to the Licensor who owns the Photo for a licence to use the Photo in accordance with these terms upon completion of a transaction, calculated in the Licensor’s sole discretion and as amended from time to time;

Photo means the photograph, image and other visual products listed as a Photo Listing on the Site;

Photo Listing means Photos that are listed by the User on the Site with the purpose of an offer to licence a Photo to other Users;

Purchase Price means the amount payable by the User to YOURSURFPHOTO in consideration of any Items selected for purchase;

Services mean the online e-commerce platform provided by YOURSURFPHOTOS to facilitate licensing of Photos between Users and YOURSURFPHOTOS through the Site. This includes Services currently offered by YOURSURFPHOTOS and any Services or products that YOURSURFPHOTOS may choose to offer in the future;

Site means www.yoursurfphotos.com.au;

Terms means these Terms and Conditions and the documents referred to in it;

User means a person who gains access to the Site and Services, whether as a registered or casual User in the capacity of a Licensor or a Licensee or a casual website browser;

User Generated Content means any and all data, text, software, images, audio or video material posted by Users in any medium produced and provided to the Site and Services by a User, including but not exclusive to the Photo Listings and any Photos;

Us, We, Our means Forever Films Pty Ltd ABN 66 158 800 189 trading as YOURSURFPHOTOS; and

You means you, the person using the site in your capacity as a User or otherwise

 

  1. ACCESSING THE SITE
    • You acknowledge and agree that although we will use all reasonable efforts to ensure that the Services are available, temporary interruptions of the Services available through the Site may occur. We shall not be liable to any person or entity for loss or damage incurred by such downtimes.
    • All content and services provided on or through this Site are provided “AS IS” and “AS AVAILABLE” for your use. The content is provided without warranties or conditions of any kind either express or implied, including but not limited to implied warranties and conditions of merchantability, fitness for a particular purpose or non-infringement. Your use of this Site is solely at your risk.
    • We reserve the right to withdraw or amend the Services and Content we provide on the Site without notice. We may restrict access to some parts of or the entire Site, from time to time.
  2. REGISTRATION INFORMATION AND PASSWORDS
    • You need to register to the Site in order to post a Photo Listing or obtain a licence to the Photos from the Site. Any personal data or information provided by you is processed by us in accordance with our [PRIVACY POLICY]. By registering to the Site and providing any such data or other personal information:
      • you agree that all information provided during the registration process is true and accurate and you will update this information in order to keep it current, complete and accurate; and
      • you agree to the terms of our [PRIVACY POLICY].
    • During the registration process, you will be asked to select a password for your User account. You agree to keep your password confidential at all times and must not disclose it to any third parties. You agree to be fully responsible for activities that relate to your User account or your password. If you have reason to believe that your password has been obtained by someone else without your consent, you must inform us immediately to disable your User account.
  3. SCOPE OF SERVICES
    • The Site and Services are provided for to Users for individual use, solely for internal use by you for your business, or for your own personal use.
    • The Site and Services allow for Licensors to post Photo Listings and for Licensees to browse Photo Listings and obtain licenses to Photos. YOURSURFPHOTOS only provides the Site and the Services as an e-commerce platform. The Site and Services are not designed to provide qualitative advice regarding the fitness for purpose and merchantability of any Photos. YOURSURFPHOTOS strongly advice Users to exercise caution and do their own due diligence in conducting any transactions through the Site and Services.
    • The Site and Services also allow for Users to purchase Items from YOURSURFPHOTOS through the Site and Services as an e-commerce platform. The Site and Services are not designed to provide qualitative advice regarding the fitness for purpose or merchantability of any Items. YOURSURFPHOTOS strongly advice Users to exercise caution and do their own due diligence in conducting any transactions through the Site and Services.
    • Users agree to provide all the information and materials as may reasonably be required by the Site in relation to transactions conducted on, or through, or as a result of the use of the Site. The Site has the right to suspend or terminate any User account if the User fails to provide the information and materials as required by the Site.
    • We may refuse to process a transaction for any reason or refuse to provide the Services to anyone at any time at our sole discretion. The Site or YOURSURFPHOTOS will not be liable to you or any third party by reason of such a refusal or by reason of the unwinding or suspension of any transaction after processing has commenced.
  4. TRANSACTIONS RELATING TO PHOTOS
    • A Licensee can obtain a licence to a Photo by paying the Licence Fee to the Licensor and completing a transaction on the Site using the Services. Any transactions may be paid for using a Paypal account through the Paypal third party merchant facility. YOURSURFPHOTOS is not responsible or has any control over any third party merchant facilities. Users acknowledge and agree that YOURSURFPHOTOS will not be liable for any loss or damage arising out of their use of a third party merchant facility. YOURSURFPHOTOS advises that Users should read and understand the terms and conditions of the third party merchant facilities before using them.
    • Users acknowledge and agree that some banks and financial institutions may charge you an additional fee for international transactions.
    • Users acknowledge and agree that the Commission will be deducted from the Licence Fee upon completion of the transaction, with the balance to be credited into the relevant User’s Paypal account.
    • Users acknowledge and agree that YOURSURFPHOTOS is not a party to any contract or transactions between Users. In addition to the recognition that YOURSURFPHOTOS is not a party to any contract or transaction between Users, Users hereby release YOURSURFPHOTOS (and its affiliates, officers, directors, agents, subsidiaries, joint venturers, and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute Users have with each other, whether it be at law or in equity. This includes, without limitation, any disputes regarding the performance, quality, functions, and quality of those services provided by Users and requests for refunds based on such disputes.
    • Users acknowledge and agree that the Photos displayed on the Site and Services are directed solely at Australia residents. YOURSURFPHOTOS makes no representation that any Photos sold through the Site are appropriate or available for use outside Australia. Please be advised that some Photos may not be deliverable overseas due to local law and it shall be your responsibility for any failure to deliver the Photos overseas due to local law. We will not be liable for any breach by you of any laws.
  5. LICENCE TO PHOTOS
    • By completing the transaction and paying the Licence Fee, you (as the Licensee) accept the terms of this licence and agree to be bound by the provisions under this clause 7. If you are accepting on behalf of your employer, client or other entity that is the User account holder, you represent and warrant that you have full legal authority to bind your employer, client or such other entity. If you do not have such authority or you do not accept or agree with these terms, do not accept this licence and do not download the Photos.
    • By completing the transaction and accepting payment of the Licence Fee, you (as the Licensor) accept the terms of this licence and agree to be bound by the provisions under this clause 7. If you are accepting on behalf of your employer, client or other entity that is the User account holder, you represent and warrant that you have full legal authority to bind your employer, client or such other entity. If you do not have such authority or you do not accept or agree with these terms, do not accept this licence and do not upload any Photos or post Photo Listings.
    • Subject to the Prohibited Uses in Section 7.5 below and the termination provision in clause 16 of these Terms, the Licensor hereby grants to the Licensee a perpetual, non-exclusive, non-transferable, non-sublicensable, and worldwide right to display, use, reproduce, publish, alter, and manipulate, in an unlimited number of projects, in whole or in part, via any medium, and by whatever means, the Photo for any purpose (the Permitted Use(s)). All other rights in and to the Photos, including, without limitation, all copyright and other intellectual property rights relating to the Photos, are retained by Licensors or the supplier of the Photos, as the case may be.
    • Only the Licensee is permitted to use the Photos, although the Licensee may transfer files containing Photos or permitted derivative works to your clients, printers, or ISP for the purpose of reproduction for Permitted Uses, provided that such parties shall have no further or additional rights to use the Photos and cannot access or extract it from any file the Licensee provides. The Licensee may install and use the Photos on only one computer or other electronic device at a time. The Licensee may physically transfer the Photos and its archives from one computer or electronic device to another, in which case the Licensee may use the Photos at the new computer or electronic device instead. The Licensee may make one (1) copy of the Photo solely for back-up purposes, and the Licensee must reproduce all proprietary notices on this single back-up copy.
    • The Licensee may not:
    • use the Photos in electronic or digital template applications intended for resale or other distribution, whether on-line or not, including, without limitation, website templates, Flash templates, business card templates, electronic greeting card templates, and brochure design templates;
    • use or display the Photos on websites or other venues designed to induce or involving the sale, license or other distribution of “on demand” products, e.g. products in which Photos are selected by a third party for customization of such product on a made to order basis, including, without limitation, postcards, mugs, t-shirts, posters and other Photos (this includes custom designed websites, as well as sites such as zazzle.com and cafepress.com);
    • use the Photos in connection with any goods or services intended for resale or distribution where the primary value lies in the Photos itself including, without limitation, cards, stationary Photos, paper products, calendars, apparel Photos, posters (printed on paper, canvas or any other media) or other Photos for resale, license or other distribution for profit;
    • use any of the Photos as part of a trade-mark, design-mark, trade-name, business name, service mark, or logo;
    • incorporate the Photos in any product that results in a re-distribution or re-use of the Photos (such as electronic greeting card web sites, web templates and the like) or is otherwise made available in a manner such that a person can extract or access or reproduce the Photos as an electronic file;
    • use the Photos in a fashion that is considered by the owner User or YOURSURFPHOTOS (acting reasonably) as or under applicable law is considered pornographic, obscene, immoral, infringing, defamatory or libellous in nature, or that would be reasonably likely to bring any person or property reflected in the Photos into disrepute;
    • if any Photo featuring a model or property is used in connection with a subject that would be unflattering or unduly controversial to a reasonable person, the Licensee must accompany each such use with a statement adjacent to the Photo that indicates that:
    • the Photo is being used for illustrative purposes only; and
    • any person depicted in the Photo, if any, is a model, unless the Photo itself clearly and undisputedly reflects the model or person in such potentially sensitive subject matter in which case the Photo may be used or displayed in a manner that portrays the model or person in the same context and to the same degree depicted in the Photo itself;
    • to the extent that source code is contained within the Photo, reverse engineer, decompile, or disassemble any part of such source code;
    • remove or modify any notice of copyright, trademark or other proprietary right , or any other copyright management information or metadata, from any place where it is on or embedded in the Photo;
    • sub-license, re-sell, rent, lend, assign, gift or otherwise transfer or distribute the Photo or the rights granted under this licence;
    • install and use the Photo in more than one location at a time or post a copy of the Photo on a network server or web server for use by other users;
    • use or display the Photo in an electronic format that enables it to be downloaded or shared in any peer-to-peer or similar file sharing arrangement;
    • use Photo identified as “Editorial Use Only”, for any commercial, promotional, endorsement, advertising or merchandising use. For clarification, in this licence “Editorial Use Only” of Photo means use relating to events that are newsworthy or of general interest and expressly excludes any advertorial sections (i.e. sections or supplements featuring brand and/or product names or sections or supplements in relation to which you receive a fee from a third-party advertiser or sponsor);
    • use the Photo for editorial purposes without including the following credit adjacent to the Content or in audio/visual production credits: “© owner User’s name”;
    • either individually or in combination with others, reproduce the Photo, or an element of the Photo, in excess of 500,000 times in physical (hard-copy) prints; and
    • if the Photo is reproduced on a social media platform or other third party website:
    • the rights granted herein shall automatically be revoked in the event that the platform website seeks to exploit purported rights to the Photo contrary to the terms of this licence; and
    • in such event, upon the owner User’s or YOURSURFPHOTO’s request, you shall remove any Photo from such platform or website.
  6. TRANSACTIONS RELATING TO ITEMS
    • Any purchases for Items may be paid for using a Paypal account through the Paypal third party merchant facility. YOURSURFPHOTOS is not responsible or has any control over any third party merchant facilities. Users acknowledge and agree that YOURSURFPHOTOS will not be liable for any loss or damage arising out of their use of a third party merchant facility. YOURSURFPHOTOS advises that Users should read and understand the terms and conditions of the third party merchant facilities before using them.
    • All prices shall be shown in AUD including GST, and excluding any delivery costs.
    • Users acknowledge and agree that some banks and financial institutions may charge you an additional fee for international transactions.
    • Users acknowledge and agree Item prices do not vary according to your location; however you accept that delivery charges will vary depending on the destination.
    • Your shopping basket on the Site displays the Items you have chosen and details of postage and packaging. The delivery costs for each Item may vary according to the delivery methods available for that particular product.
    • Any delivery times quoted are in Business Days.
  • Customers acknowledge and agree that the Items offered for sale are directed solely at Australia residents. YOURSURFPHOTOS makes no representation that any Items sold through the Site are appropriate or available for use outside Australia. Customers must comply with all applicable laws and regulations of the country for which the Items are destined. Please be advised that some Items may not be deliverable overseas due to local law and it shall be your responsibility for any failure to deliver the Items overseas due to local law. We will not be liable for any breach by you of any laws.
  • All specials, promotions, clearances, offers, and discounted items advertised on the Site are available only while stocks last unless otherwise stated. Coupon codes may be used by the User in their sole discretion.
  • All Items offered for sale are subject to available stock. If a product is out of stock, YOURSURFPHOTOS will contact you to offer a substitute book of at least equal quality. If you do not accept a substitute book and your credit card has been charged for book that is out of stock, YOURSURFPHOTOS will cancel your order and issue a credit to your credit card account in the amount charged.
  • If you are not satisfied with any of the Items in your order, you must notify us within 30 days of receipt of the Items of your intention to return the Items to us. You must provide a copy of your invoice and receipt along with your notification. You must provide particulars as to why you are not satisfied with the Items in your order.
  • Return arrangements
    • You are responsible for organising return of the Items to us within this 30-day period in order for the Items to be covered under this Policy.
    • You are responsible for the postage and delivery costs of returning the Items to us and you cannot recoup such costs from YOURSURFPHOTOS, subject to clause 12.2.
    • YOURSURFPHOTOS is not responsible for returning any Items that have been lost in transit.
    • You must ensure that the Items are returned to us unwashed, unused, and in their original packaging and tags intact. If the Item does not comply with this clause, you will not be eligible for this Policy.
  • Refunds or replacements
  1. DISCLAIMER
    • This disclaimer of liability applies to any damages or injury caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft, or destruction or unauthorized access or, alteration of or use of record in connection with the use or operation of the Service, whether for breach of contract, tortious behaviour, negligence or any other cause of action.
    • We make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the Services or the Content contained on the Site for any purpose. Any reliance you place on such information is therefore strictly at your own risk. We disclaim any express or implied warranty representation or guarantee as to the effectiveness or profitability of the Services or that the operation of our Site will be uninterrupted or error-free. We are not liable for the consequences of any interruptions or error in the Site or the Services.
    • YOURSURFPHOTOS shall not be responsible for any errors or omissions contained in the translations in any Photos. All translations are provided “AS IS”. YOURSURFPHOTOS expressly disclaims all warranties of any kind with regard to the translations, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement. YOURSURFPHOTOS makes no warranty, express or implied, as to the accuracy, completeness or reliability of the translations. YOURSURFPHOTOS does not maintain and does not update or correct any information that appears in the translations. YOURSURFPHOTOS shall not be liable for any damages arising from the translations, including but not limited to direct, indirect, incidental, special, consequential or exemplary damages, whether such damages arise in contract, negligence, tort, under statute, in equity, at law or otherwise. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, in which case the above limitation may not apply to you.
  2. THIRD PARTY WEBSITES
    • The Services or any Photo Listing may link to other websites, services or resources on the Internet, and other websites, services or resources may contain links to the Services. These websites are not under our control and are not maintained by YOURSURFPHOTOS. We are not responsible for the content of those sites. We only provide links to external websites as a convenience, and the inclusion of such a link to external websites do not imply our endorsement of those websites. You acknowledge and agree that when you access other websites on the Internet, you do so at your own risk.
    • We make no representation about any other website you access through this one. Please understand other websites are independent from our sites so we do not accept responsibility for such websites.
  3. THIRD PARTY ADVERTISERS IN THE PHOTOS

    • You must acknowledge and agree that the Photos may contain advertising content from third parties. The advertising content is provided for information purposes only. No legal liability or other responsibility is accepted by or on behalf of YOURSURFPHOTOS for any errors, omissions, or statements contained in the advertising content. Where the Photos contain this advertising content, we do not by doing so endorse any information or opinions appearing in it.
    • We make no representation about any third parties by whom the advertising content provided. Please understand these third parties are independent from our sites so we do not accept responsibility for them.
  4. SPECIFIC PROHIBITION
    • No harassment, discrimination, or abuse is tolerated within the Site and Services. Any abuse complaints will be thoroughly investigated and may be reported to the individual User’s local authorities, and charges may be brought against that User both civilly and criminally. YOURSURFPHOTOS cooperates fully with law enforcement and will provide any and all records requested within the law or by court order. Furthermore, if any of the above is conducted while using contact information obtained within the Site and Services, we hold the right to restrict any User from access to our Site at any given time for such breach of Terms.
    • Users’ of this Site, agree not to do the following, but are not limited to only these conditions:
  • engage in any type of activity that negatively affects the purpose or intention of the Site and Services, including, but not limited to, actually or attempting to manipulate, corrupt or otherwise affect the outcome of the Site and Services, in whole or in part, by, among other methods mentioned or not mentioned, subscribing another person or party without their authorization or registering multiple subscriptions under the same or different names; these activities include:
  • upload, post, publish, comment, e-mail, reproduce, distribute or otherwise transmit any information that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libellous, deceptive, fraudulent, or explicit or unnecessarily graphic descriptions of accounts of and situations pertaining to sexual acts;
  • upload, post, publish, comment, e-mail, reproduce, distribute or otherwise transmit any content that victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability or harm minors in any way;
  • upload, post, publish, comment, e-mail, reproduce, distribute, or otherwise transmit any content that User does not have a right to transmit under any law or under contractual or fiduciary relationships. This includes any inside information or proprietary or confidential information;
  • upload, post, publish, comment, e-mail, reproduce, distribute, or otherwise transmit any content that infringes upon any patent, trademark, trade secret, copyright or other proprietary rights of any party; nor any unauthorized advertising or promotional materials. This includes junk mail, spam, chain letters or any other form of solicitation;
  • upload, post, publish, comment, e-mail, reproduce, distribute, or otherwise transmit any material that contains software viruses, Trojan horses, worms, or any other computer code, files or programs, designed to maliciously, whether intended to or not, interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
  • impersonate any person or entity, falsely state or otherwise misrepresent User affiliation with a person or entity; and
  • forge or manipulate packet headers in order to disguise the origin of any content transmitted to or through this Site.
  • intentionally or unintentionally violate any applicable local, state, national or international law;
  • agree that User will not harvest, collect or store information about the Users’ of this Site or the content posted by others on this Site or use such information for any purpose inconsistent with the purpose of this Site or for the purpose of transmitting or facilitating transmission of unsolicited bulk electronic mail or communications; and
  • use YOURSURFPHOTOS Promoted or Verified Badges, unless approved and provided by YOURSURFPHOTOS.
    • YOURSURFPHOTOS is not responsible for material submitted or posted by a User. YOURSURFPHOTOS is not responsible for any failure, non-failure or delay in removing such content. Users’ acknowledge and agree the content viewed, submitted or posted is at their own discretion and risk and the views expressed do not reflect the views of YOURSURFPHOTOS or its staff. YOURSURFPHOTOS does not support or endorse User Generated Content, whether or not it has been edited by YOURSURFPHOTOS and we have the right, at our sole discretion, to refuse, reject, deny or remove any content, in whole or in part, that does not comply with these Terms or any other policy we have posted or otherwise is undesirable, inappropriate or inaccurate. Users’ will remain responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of such submitted material, including any contribution we make.
    • Users agree not to share Content and User Generated Content on the Site and Services with unregistered Users.
    • Users’ agree to notify YOURSURFPHOTOS immediately of any unauthorized use of the Site and Services, its services or any other breach of security known or suspected.
  1. INTELLECTUAL PROPERTY
    • Nothing in these Terms constitutes a transfer of any Intellectual Property rights from us to you.
    • We own and retain all proprietary rights to the Site, the Services provided through the Site, Photos sold through the Site and all associated Intellectual Property rights. You are permitted to use the Services only as authorised by us. As a User, you are granted a limited, non-exclusive, revocable, non-transferable right to use the Site and Services to create, display, use, play, and download Content subject to these Terms.
    • Our Intellectual Property must not be used in connection with a product or service that is not affiliated with us or in any way brings us in disrepute.
    • You must not modify the physical or digital copies of any Content you print off or download in any way, and you must not use any illustrations, photographs, video or audio, or any graphics separately from any accompanying text.
    • Any opinions, advice, statements, services, offers, or other information or content expressed or made available by Users are those of the respective author(s) or distributor(s) and not of YOURSURFPHOTOS.
  2. USER GENERATED CONTENT
    • You must not add any User Generated Content to the Site and Services:
  • unless you hold all necessary rights, licences and consents to do so;
  • that would cause you or us to breach any law, regulation, rule, code or other legal obligation;
  • that is or could reasonably be considered to be obscene, inappropriate, defamatory, disparaging, indecent, seditious, offensive, pornographic, threatening, abusive, liable to incite racial hatred, discriminatory, blasphemous, in breach of confidence or in breach of privacy;
  • that is unsolicited, undisclosed or unauthorized advertising;
  • that are software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
  • that would bring us, or the Site and Services, into disrepute; or
  • that infringes the Intellectual Property or other rights of any person.
    • You agree to keep all records necessary to establish that your User Generated Content does not violate any of the requirements under clause 13.1 and make such records available upon our reasonable request.
    • You retain ownership of your Intellectual Property and proprietary rights in any User Generated Content. These Terms do not prevent you front granting non-exclusive rights to use your User Generated Content to others.
    • We are under no obligation to regularly monitor the accuracy or reliability of User Generated Content appearing on the Site or using the Site and Services. We reserve the right to modify or remove any User Generated Content at any time.
    • You hereby grant YOURSURFPHOTOS a royalty-free, perpetual license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, play and exercise all Intellectual Property rights without limitation with respect to User Generated Content worldwide or to incorporate User Generated Content in other works in any media now known or later developed for the full term of rights that may exist in User Generated Content.
  1. FAIR USE
    • You must not:
  • modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, sublicense, transfer, assign, rent, sell or otherwise convey any information, software, products or services obtained from the Services without the prior written consent from YOURSURFPHOTOS; or
  • disassemble, decompile or otherwise reverse engineer all or any portion of the Site, Services or Content; or
  • impose or attempt to impose an unreasonable or disproportionately large load, as determined by YOURSURFPHOTOS in its sole discretion, on the Site’s and Services’ infrastructure; or
  • interfere or attempt to interfere with the normal course and process of the Services; or
  • bypass any computer systems or secured networks connected to the Services; or
  • use manual or automated software, devices, or other processes to harvest or scrape any Content from the Site and Services; or
  • do any other act that may constitute an improper use of the Site and Services, as determined by YOURSURFPHOTOS in its sole discretion.
  1. LIMITATION OF LIABILITY AND INDEMNITY
    • You agree that we shall not be liable for any damages suffered as a result of using the Services, copying, distributing, or downloading Content from the Site.
    • In no event shall we be liable for any indirect, punitive, special, incidental or consequential damage (including loss of business, revenue, profits, use, privacy, data, goodwill or other economic advantage) however it arises, whether for breach of contract or in tort, even if it has been previously advised of the possibility of such damage.
    • We do not endorse the any Photos or Photo Listings, and expressly disclaim any and all liability in connection with them. In no event shall we be liable for any claims by a third party in tort or contract, or pursuant to the Competition and Consumer Act 2010 (Cth) including, but not limited, to any misleading statements made and/or incorporated into any Photos or Photo Listings created using the Services. It is your sole responsibility to ensure the accuracy of the data inputted.
    • You have sole responsibility for adequate security protection and backup of data and/or equipment used in connection with your usage of the Site and Services and will not make a claim against for lost data, re-run time, inaccurate instruction, work delays or lost profits resulting from the use of the Site and Services. You must not assign or otherwise dispose of User account to any other person.
    • Without limiting the foregoing, in no event will our aggregate liability to you exceed, in total, the amounts paid by you to us.
    • As a condition of your access to and use of the Site, you agree to indemnify YOURSURFPHOTOS and its successors and assigns for all damages, costs, expenses and other liabilities, including but not limited to legal fees and expenses, relating to any claim arising out of or related to:
  • your access to and use of the Site and Services; or
  • your breach of these Terms and any applicable law or the rights of another person or party.

This indemnification section survives the expiration of your registration, and applies to claims arising both before and after the registration ends.

  1. TERMINATION
    • You agree that we may, at any time and at our sole discretion, with or without cause or any notice to you, terminate your access to the Site and Services, and/or your registration, or suspend or block your access to the Site and Services.
    • We may terminate or suspend your access to the Site if there is a failing to make any required payments or fees. If you subsequently want your account to be reinstated, you must pay all monies due and owing to us including any applicable costs or charges. You may then have to open a new account as all your data may have been deleted, archived, or lost.
    • We shall not be liable to you or any third party for any claims or damages arising out of any termination or suspension or any other actions taken by us in connection therewith.
    • If applicable law requires us to provide notice of termination or cancellation, we may give prior or subsequent notice by posting it on the Site or by sending a communication to any address (email or otherwise) that we have for you in our records.
  2. NOTICE
    • By using the Site, you accept that communication with us will be mainly electronic. We will contact you by email or provide you with information by posting notices on the Site.
    • You acknowledge that all contracts, notices, information and other communication we may provide electronically comply with any legal requirements that such documents are in writing.
    • Notice will be deemed received and properly served immediately when posted on the Site, 24 hours after an email is sent, or 3 days after the date of posting any letter. As proof of service, it is sufficient that:
  • For letters, the letter was properly addressed, stamped and placed in the post; and
  • For emails, the email was sent to the specified email address.
  1. NO WAIVER
    • If we fail, at any time, to insist upon strict performance of your obligations under these Terms, or if we fail to exercise any of the rights and remedies we are entitled to under these Terms, this will not constitute a waiver of such rights or remedies and it will not relieve you from compliance with your obligations.
    • If we waive a default, it does not constitute a waiver of any subsequent defaults.
    • No waiver is effective unless it is expressly stated by us to be a waiver and is communicated to you in writing as per clause 17.
  2. FORCE MAJEURE

We shall be under no liability to you in respect of anything that, if not for this provision, would or might constitute a breach of these Terms, where this arises out of circumstances beyond our control, including but not limited to:

  • acts of god;
  • natural disasters;
  • sabotage;
  • accident;
  • riot;
  • shortage of supplies, equipment, and materials;
  • strikes and lockouts;
  • civil unrest;
  • computer hacking; or
  • malicious damage.
  1. SEVERABILITY

If any court decides that any of the provisions of these Terms are invalid, unlawful or unenforceable to any extent, that term will, to that extent only, be severed from the remaining terms. The rest of these Terms will continue to be valid.

  1. ENTIRE AGREEMENT
    • These Terms, and the documents expressly referred to in them, constitute the entire agreement between you and YOURSURFPHOTOS, and supersede all previous discussions, correspondence, negotiations, previous arrangements, understanding or agreement between us relating to the Services.
    • We each acknowledge that, in entering into these Terms, neither of us relies on, and subsequently will have any remedies for, any representation or warranty that is not set out in these Terms.
  2. GOVERNING LAW

These Terms is governed by the laws of the State of Victoria, Australia and each party submits to the jurisdiction of the courts of the State of Victoria, Australia.

  1. UPDATES TO THESE TERMS
    • We reserve the right, in our discretion, to correct any errors or omissions in any part of the Site and Services. We may restrict access to parts or the entire Site and Services at any time, including, but not limited to, Content, certain features and Services, hours of availability, and equipment needed for access or use, without notice or liability.
    • Any material on the Site and Services may be out of date at any given time and we are under no obligation to update such material.
    • We reserve the right, in our sole discretion, to change, modify, add or remove any part of these Terms, in whole or in part, at any time. Notification of the changes to these Terms will be posted on the Site and will be effective immediately, unless expressed otherwise.
    • It is your sole responsibility to periodically check these Terms for any changes. If you do not agree with any of the changes to these Terms, it is your sole responsibility to unsubscribe from the Site and Services. Your continued use of the Site and Services will be deemed as your acceptance thereof.
    • We may assign or sublicense any of our rights or obligations under these Terms at any time, without obtaining your consent.

Last updated on: 20th August 2015

 

 

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