Murray River Photos

User Agreement

WARNING: PERMISSION TO USE THIS PRODUCT IS CONDITIONAL UPON YOU, THE LICENSEE, AGREEING TO THE TERMS SET OUT BELOW. DO NOT DOWNLOAD IMAGES ON YOUR COMPUTER OR OTHERWISE REPRODUCE THE IMAGES UNTIL YOU HAVE READ AND ACCEPTED ALL THE TERMS OF THIS LICENCE AND WISH TO BECOME A LICENSEE. DOWNLOADING OR OTHERWISE COPYING IMAGES FROM THIS DISK OR WEBSITE WILL BE DEEMED TO BE YOUR ACCEPTANCE OF THE FOLLOWING TERMS. IF YOU DO NOT WISH TO ACCEPT THE TERMS, RETURN THIS PACKAGE TO THE LICENSOR AND ANY LICENCE FEE YOU MAY HAVE PAID WILL BE REFUNDED TO YOU.

SMASHN DIGITAL IMAGE USER AGREEMENT
Copyright Smashn Pty Ltd

WARNING: PERMISSION TO USE THIS PRODUCT IS CONDITIONAL UPON YOU, THE LICENSEE, AGREEING TO THE TERMS SET OUT BELOW. DO NOT DOWNLOAD IMAGES ON YOUR COMPUTER OR OTHERWISE REPRODUCE THE IMAGES UNTIL YOU HAVE READ AND ACCEPTED ALL THE TERMS OF THIS LICENCE AND WISH TO BECOME A LICENSEE. DOWNLOADING OR OTHERWISE COPYING IMAGES FROM THIS WEBSITE WILL BE DEEMED TO BE YOUR ACCEPTANCE OF THE FOLLOWING TERMS. IF YOU DO NOT WISH TO ACCEPT THE TERMS SIMPLY DO NOT CONTINUE THIS ONLINE PURCHASING TRANSACTION.

1. DEFINITIONS
In this Agreement, unless the contrary intention appears:
a) Agreement means this Agreement for the licensing of the Licensed Material; 
b) Licensed Material means the digital images provided by the Licensor to the Licensee pursuant to this Agreement contained on compact disk, read only memory disks or floppy disks or any other electronic or magnetic media or downloaded from the Licensor's website;
c) Licensor means Smashn Pty Ltd (SMASHN) (ACN 107 299 123);
d) Warranty Period means a period of 30 days from delivery of the Licensed Material.

2. INTERPRETATION
In this Agreement, unless the contrary intention appears:
a) headings are for convenience only and do not affect interpretation;
b) a reference to a person includes a reference to a corporation or partnership and to a person in the capacity as a trustee; 
c) the plural shall include the singular and vice versa;
d) references to any party to this Agreement include its successors or permitted assigns; and
e) where two or more legal entities constitute the Licensee their liability shall be joint and several.

3. GRANT AND DURATION OF LICENCE
a) The Licensor hereby grants to the Licensee a personal, non-exclusive, non-transferable licence to use the Licensed Material for the purpose of promoting and marketing the Licensee's business in accordance with the terms and conditions of this Agreement.
b) This licence commences upon payment of the licence fee and is granted to the Licensee in perpetuity, but may be terminated in the circumstances specified in clause 17.

4. LICENCE FEE
a) The Licensee is not entitled to use the Licensed Material until the licence fee has been paid.

5. LICENCE CONDITIONS
a) The Licensee shall not copy, alter, modify or reproduce the Licensed Material except to the extent otherwise authorised by this Agreement.
b) Except to the extent specified to the contrary in this Agreement, the Licensor shall not be obliged to support the Licensed Material, whether by providing advice, training, error-correction or modifications, or otherwise.
c) The Licensee acknowledges that there is no transfer of title or ownership to the Licensee of the Licensed Material.
      
6. INSTALLATION
The Licensee may install the Licensed Material at its own expense and risk on a single computer under the Licensee's exclusive control.

7. COPYING
a) Subject to clause 7(b), the Licensee shall not copy or reproduce the Licensed Material by any means or in any form without the Licensor's prior written consent.
b) The Licensee may make one copy of the Licensed Material for the purpose of backup and security. The Licensee shall acknowledge such copy as the property of the Licensor. The terms of this Agreement, with the necessary modifications, apply to the said copy.
c) The Licensee shall ensure any copy of the Licensed Material made pursuant to this Agreement bears notice of the Licensor's ownership of copyright. The Licensee shall comply with any directions of the Licensor as to the form or content of such notices.
d) the Licensee may not copy any disk containing Licensed Material provided by the Licensor in its entirety, nor may it be stored on a server, nor shared by others. Reproduce the CD-ROM as is, its contents or part of its contents for commercial purposes.
      
8. OWNERSHIP AND PERMITTED USE
a) The Licensed Material and the delivery media upon which the licensed Material is supplied is not sold to the Licensee who shall not acquire any right, title or interest (including without limitation copyright) in the Licensed Material or any part thereof or the delivery media upon which the Licensed Material is supplied.
b) All rights in the Licensed Material whether existing or which may come into existence which are not specifically granted to the Licensee by this Agreement are expressly reserved to the Licensor.
c) The Licensee shall not sublicense the Licensed Material to any person.
d) The Licensee may copy the Licensed Material from the media upon which it is delivered onto a hard disk controlled by a stand alone computer under the procedures advised by the Licensor. No other transfer is permitted.
e) The Licensee shall use the Licensed Material:
  i) only for the purpose of promoting and marketing the Licensee's business.
f) The Licensee, during the normal course of the Licensee's business, may: 
  i) view the Licensed Material on screen;
  ii) reproduce and publish images comprising the Licensed Material for the purposes authorised by this Agreement.
g) The Licensee shall not do or omit to do or authorise any other person to do or omit to do any act which:
  i) would or might invalidate or be inconsistent with any Intellectual Property Rights of the Licensor;
  ii) would be in breach of or otherwise inconsistent with the moral rights of the authors of the Licensed Material.
  iii) use any of the Images to promote or market a business that sells or licenses photographic images, or otherwise competes with SMASHN in any manner;
h) The Licensee shall not use the Licensed Material or any part of it as or as part of a product to be offered by wholesale or retail sale. 
i) Use of the Licensed Material within photo archives, photo databases and stock agencies is strictly prohibited. The licensing agreement does not permit the purchaser to offer free or paid downloads of the images on the Internet or any internal and external networks include online services and BBS installations.
j) the Licensed Material may not be incorporated into a derivative artwork for which a claim of new copyright may be obtained.
k) Pornographic, defamatory, or libellous use of the images is prohibited. If an image depicts or identifies a real person, a fictional character, a trademark, or any other legally protected property, you must consult your legal counsel to insure that your intended use of the image is not contrary to the rights of publicity and privacy or any other legal right of any person or entity concerned. The Licensee may not use an image that depicts or identifies a real person in connection with sensitive subject matter (e.g., sex, abortion, birth control, religious ideology, physical and mental ailments, or drugs), nor that conveys or implies endorsement of a product or service, without prior written permission from SMASHN.
l) The Licensee shall promptly inform the Licensor if the Licensee becomes aware of:
  i) any unauthorised use of the Licensed Material;
  ii) any actual, threatened, or suspected infringement of any Intellectual Property Rights of the Licensor in the Licensed Material which comes to the Licensee's notice; and
  iii) any claim by any third party coming to its notice that the Licensed Material infringes the Intellectual Property Rights of any other person. 
m) Use of the Licensed Material by the Licensee must be in compliance with all applicable laws, statutes and regulations including, but not limited to, laws and regulations relating to currency and the law of moral rights.

9. MODIFICATIONS
The Licensee shall not modify or alter the Licensed Material or merge all or any part of the Licensed Material with any other material.

10. SECURITY
a) The Licensee shall be solely responsible for the use, supervision, management and control of the Licensed Material.
b) The Licensee shall ensure that the Licensed Material is protected at all time from misuse, damage, destruction or any form of unauthorised use.

11. UPDATES AND NEW RELEASES
a) The Licensor is under no obligation under this Agreement to provide updates or new releases of the Licensed Material to the Licensee.
b) The Licensor reserves the right to discontinue the use of any photograph forming part of the Licensed Material for any reason.

12. WARRANTY
a) The Licensee acknowledges that the Licensed Material cannot be guaranteed error-free and further acknowledges that the existence of any such errors shall not constitute a breach of this Agreement.
b) The Licensor will replace any defective media at no charge, subject to notification of the said defect within the Warranty Period but not otherwise.
c) The Licensor shall have no obligations under this clause to the extent that a defect is discovered after the expiry of the Warranty Period or is caused by the Licensee or a third party, including the failure of the Licensee or a third party to correctly install or maintain the operating environment or to otherwise use the Licensed Material in accordance with specifications issued by the Licensor from time to time.

13. IMPLIED TERMS
a) Subject to clause 13(b), any condition or warranty which would otherwise be implied in this Agreement is hereby excluded. 
b) Where legislation implies in this Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty shall be deemed to be included in this Agreement. However, the liability of the Licensor for any breach of such condition or warranty shall be limited, at the option of the Licensor, to one or more of the following: 
  i) the replacement of goods to which the breach relates 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.

14. LIABILITY OF LICENSOR
a) The Licensor shall be under no liability to the Licensee, whether in contract, tort or otherwise, in respect of any loss or damage (including consequential loss or damage which shall include loss of data, production, interest, revenues, profits, business, contracts, anticipated profits, goodwill or business opportunities) which may be suffered or incurred or which may arise directly or indirectly in respect of goods or services supplied pursuant to this Agreement even if the loss or damage was reasonably foreseeable or the Licensor has been advised of the possibility that such loss or damage can occur or in respect of a failure or omission on the part of the Licensor to comply with its obligations under this Agreement.
b) Subject to clause 14(c), the Licensee warrants that it has not relied on any representations made by the Licensor that have not been stated expressly in this Agreement, or upon descriptions, illustrations or specifications contained in any document including catalogues or publicity material produced by the Licensor.
c) The Licensee acknowledges that to the extent the Licensor has made any representations that is not otherwise expressly stated in this Agreement, the Licensee has been provided with an opportunity to independently verify the accuracy of that representation.
d) The Licensee shall at all times indemnify and hold harmless the Licensor and its officers, employees and agents (those indemnified) from and against any loss (including reasonable costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused by:
  i) a breach by the Licensee of its obligations under this Agreement; or
  ii) any wilful, unlawful or negligent act or omission of the Licensee. 
e) The Licensor's aggregate liability to the Licensee shall be limited to an amount equal to 150% of the fees paid by the Licensee for the right to use the Licensed Material, irrespective of whether the Licensee's claim is based on breach of contract, negligence or otherwise.
f) The parties acknowledge that these limitations and exclusions of liability are reasonable in the context of the arrangements taken as a whole.
g) The Licensor shall not be liable for any claim made more than two (2) years after accrual of the cause of action in question.
h) The Licensee shall accept sole responsibility for and the Licensor shall not be liable for the use of the Licensed Material by the Licensee its agents and employees and the Licensee shall hold the Licensor harmless and fully indemnified against any claims, costs, damages, loss and liabilities arising out of any such use or inability to use.

15. TERMINATION
a) Without limiting the generality of any other clause in this Agreement, the Licensor may terminate this Agreement immediately by notice if:
  i) the Licensee is in breach of any term of this Agreement;
  ii) the Licensee for any reason destroys or disposes of or loses custody of the Licensed Material;
  iii) the Licensee becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration;
  iv) the Licensee, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;
  v) the Licensee, being a natural person, dies; or
  vi) the Licensee ceases or threatens to cease conducting its business in the normal manner.
b) If notice is given to the Licensee pursuant to clause 15(a), the Licensor may, in addition to terminating the Agreement:
  i) repossess any copies of the Licensed Material in the possession, custody or control of the Licensee;
  ii) retain any moneys paid;
  iii) charge a reasonable sum for work performed in respect of which work no sum has been previously charged;
  iv) be regarded as discharged from any further obligations under this Agreement; and 
  v) pursue any additional or alternative remedies provided by law. 
c) In the event of the expiration or termination of this Agreement the Licensee will:
  i) cease to use the Licensed Material and remove it from any computers on which it has been installed; and
  ii) within 14 days return to the Licensor (postage paid) the Licensed Material together with any copies of the whole or part thereof and the delivery media upon which the Licensed Material is supplied.

16. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.

17. ASSIGNMENT AND NOVATION
The benefit of this Agreement shall not be assigned by the Licensee without the Licensor's written consent. The Licensor may consent to the assignment or novation of this Agreement by the Licensee subject to such conditions as it chooses to impose.

18. WAIVER
a) No right under this Agreement shall be deemed to be waived except by notice in writing signed by each Party
b) A waiver made by the Licensor pursuant to clause 18(a) will not prejudice its rights in respect of any subsequent breach of the Agreement by the Licensee.
c) Subject to clause 18(a), any failure by the Licensor to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by the Licensor to the Licensee, will not be construed as a waiver of the Licensor's rights under this Agreement.

19. VARIATION
The provisions under this Agreement shall not be varied except by agreement in writing signed by the Parties.

20. LICENSOR'S RIGHTS
Any express statement of a right of the Licensor under this Agreement is without prejudice to any other right of the Licensor expressly stated in this Agreement or existing at law.

21. SURVIVAL OF AGREEMENT
a) Subject to any provision to the contrary, this Agreement shall ensure to the benefit of and be binding upon the parties and their successors, trustees, permitted assigns or receivers but shall not enure to the benefit of any other persons.
b) The covenants, conditions and provisions of this Agreement that are capable of having effect after the expiration of the Agreement shall remain in full force and effect following the expiration of the Agreement. 
            
22. SEVERABILITY
If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, the Agreement shall remain otherwise in full force apart from such provisions which shall be deemed deleted.

23. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws in force in the State of South Australia and the parties agree by their execution of this Agreement to irrevocably submit to the non-exclusive jurisdiction of the Courts of the State of South Australia in respect of all matters arising under or in connection with this Agreement.

Effective from July 2010

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User Agreement

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