2. Interpretation

In this agreement the following terms apply unless the context otherwise requires:

• 2.1. all Restrictions on Use whether expressly included or not shall be deemed to be part of this agreement. It doesn’t matter how or when communicated to you.


• 2.2. a reference to a person includes a human individual, a corporate entity and any organisation which is managed or controlled as a unit.


• 2.3. a reference to a person includes reference to that person’s successors, legal representatives, permitted assigns and any person to whom rights and obligations are transferred or pass as a result of a merger, division, reconstruction or other re-organisation involving that person.


• 2.4. in the context of permission, “may not” in connection with an action of yours, means “must not”.


• 2.5. the headings to the paragraphs are inserted for convenience only and do not affect the interpretation.


• 2.6. any agreement by any party not to do or omit to do something includes an obligation not to allow some other person to do or omit to do that same thing.


• 2.7. a reference to an act or regulation includes new law of substantially the same intent as the act or regulation referred to.


• 2.8. all money sums mentioned in this agreement are calculated net of GST, which will be charged when payment is due.


• 2.9. these terms and conditions apply to all supplies of Products by us. They prevail over any terms proposed by you.


• 2.10. this agreement is made only in the English language. If there is any conflict in meaning between the English language version of this agreement and any version or translation of this agreement in any other language, the English language version shall prevail.

3. The licence

• 3.1. You confirm that you have authority to enter into this agreement and have obtained all necessary approvals to do so.


• 3.2. In entering into this contract you have not relied on any representation or information from any source except that on Our Website.


• 3.3. If any information you give us is inaccurate, your licence is automatically terminated and no refund of money will be due to you.


• 3.4. Each Product is marked on Our Website as to whether the price is fixed or must be provided by us direct to you depending on information you give us via Our Website.


• 3.5. Subject to the terms of this agreement, we grant you the licence to use the Product.


• 3.6. This licence is limited by the Restrictions on Use and by the choices you have made which relate to time, extent, numbers, type of usage, and other matters, at the time of purchase of your licence. You agree to comply with all Restrictions on Use.


• 3.7. No express or implied licence of the Product or any other material is granted to you other than the express licence granted in this agreement.

4. Limitations and permissions

• 4.1. You must not Copy or Publish a Product except as specifically allowed in this agreement.


• 4.2. You may not allow any other person to use a Product except in the situation or context for which you have bought it.


• 4.3. You may not represent or give the impression that you are the owner or originator of any Product.


• 4.4. You may not remove any identification or reference number or other information which may be embedded in any file of a Product.


• 4.5. Every publication or appearance of a Product on a website must be protected as far as the law allows by separate, specific or general provisions against copying or publishing. We allow you to use the definition of “Copy or Publish” used in this agreement.


• 4.6. You may not use a Product:
  • 4.6.1 except for the use specified at the time of purchase;
  
  
  • 4.6.2 in a context which is pornographic;
  
  
  • 4.6.3 containing a human model in any way which might degrade that person in the eyes of a reasonable viewer;
  
  
  • 4.6.4 in part or as a whole, as a logo or otherwise to incorporate it in any intellectual property of yours;
  
  

5. The price

• 5.1. The prices payable for the Products are clearly set out on Our Website and ordering envelopes.


• 5.2. Prices are inclusive of any applicable goods and services tax or other sales tax.

6. Freedom to use

Despite the above limitations, you may copy a Product:

• 6.1. once for the purpose of system maintenance or to show or share with some other person who has a business interest in it;


• 6.2. to a contractor of yours whose contract is to work on the project or purpose for which you have bought the Product. In this case the use of the image extends only to that project or purpose. If this happens, you remain liable to us in every way for the acts and omissions of your contractor. We advise you to obtain an appropriate agreement from your contractor to protect you in this regard.

7. Release of third party rights

• 7.1. In some jurisdictions you may not use a human image without the consent of that person. That may apply to any person or only to a model. The permission is generally known as a “release”. You alone are responsible for obtaining any necessary release and for paying any fees due.


• 7.2. In any event, we give no warranty that any Product may be used without the permission or release of some person. You should exercise caution with regard to a Product containing a human person, trade mark, logo or work of art or architecture.


• 7.3. Subject to the specific rights mentioned in this paragraph, we warrant that:
  • 7.3.1 we have used our reasonable efforts to identify any person who may claim a right in a Product and have obtained any necessary release;
  
  
  • 7.3.2 we have used our reasonable efforts to obtain an indemnity on your behalf from any third person for expense and liability incurred by you as a result of his failure to obtain the release of those third party rights.
  
  
• 7.4. If we tell you that some person has claimed that we and you are infringing his right by your use of a Product, we may require you to:
  • 7.4.1 stop using the Product;
  
  
  • 7.4.2 delete or remove from your possession and control, every copy of the Product;
  
  
  • 7.4.3 ensure that every other copy of the Product which you have passed to any other party is also deleted or destroyed.
  
  

In the event of any such circumstances as those in the last previous sub paragraph, we will provide an alternative Product free of charge but otherwise on the same terms as set out in this agreement.

8. Defects

These provisions apply in the event that you return any Product to us for any reason:

• 8.1. you should examine each Product on receipt to check for possible defects and to satisfy yourself that it complies with your order, is of merchantable quality and in safe, clean and usable condition;


• 8.2. if you do not tell us of any defect or problem within 21 days of receipt of the Product, we shall assume that you have accepted it;


• 8.3. The Products must be returned to us as soon as any defect is discovered but not later than 21 days.


• 8.4. So far as possible, a Product should be returned:
  • 8.4.1 in its original condition;
  
  
  • 8.4.2 securely wrapped;
  
  
  • 8.4.3 at your risk and cost. Postage will be refunded at the discretion of Fotomakers WA.
  
  


• 8.5. You must tell us by email message to admin@fotomakerswa.com.au that you would like to return any Product, specifying exactly which Product and when purchased, and giving full details of the defect or other reason for return.


• 8.6. In returning a faulty Product please enclose with it a note clearly stating the fault and when it arises or arose.


• 8.7. If any defect is found, we will send a new copy to you or refund the full cost you have paid.

9. Security of your credit card

We take care to make Our Website safe for you to use.

Card payments are not processed through pages controlled by us. We use one or more online payment service providers who will encrypt your card or bank account details in a secure environment.

10. Disclaimers and limitation of liability

• 10.1. The law differs from one country to another. This paragraph applies so far as the applicable law allows.


• 10.2. All implied conditions, warranties and terms are excluded from this agreement. If in any jurisdiction an implied condition, warrant or term cannot be excluded, then this sub paragraph shall be deemed to be reduced in effect, only to the extent necessary to release that specific condition, warranty or term.


• 10.3. We make no representation or warranty that the Product will be:
  • 10.3.1 useful to you;
  
  
  • 10.3.2 of satisfactory quality;
  
  
  • 10.3.3 fit for a particular purpose;
  
  
  • 10.3.4 available or accessible, without interruption, or without error.


• 10.4. We claim no expert knowledge in any subject. We disclaim any obligation or liability to you arising directly or indirectly from information you take from Our Website.


• 10.5. You agree that in any circumstances when we may become liable to you, the limit of our liability is the amount you have paid us in the immediately preceding 12 month period for the Products concerned.


• 10.6. This paragraph (and any other paragraph which excludes or restricts our liability) applies to our directors, officers, employees, subcontractors, agents and affiliated companies as well as to us.

11. You indemnify us

You agree to indemnify us against all costs, claims and expense arising directly or indirectly from:

• 11.1. your failure to comply with the law of any country;


• 11.2. your breach of this agreement;


• 11.3. any act, neglect or default by any agent, employee, licensee or customer of yours;


• 11.4. a contractual claim arising from your use of the Products;


• 11.5. a breach of the intellectual property rights of any person.

13. Miscellaneous matters

• 13.1. We may change this agreement in any way at any time. The version applicable to your contract is the version which was posted on Our Website at the time that the contract was made.


• 13.2. Our privacy policy is strong and precise. It complies fully with the current privacy law which is at [link to privacy policy].


• 13.3. At any time if we decide in our absolute discretion that you have failed to comply with any of the terms of this agreement, we reserve the right to terminate this agreement without refunding to you any payment made.


• 13.4. So far as any time, date or period is mentioned in this agreement, time shall be of the essence.
• 13.5. If any term or provision of this agreement is at any time held by any jurisdiction to be void, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other of these terms.


• 13.6. The rights and obligations of the parties set out in this agreement shall pass to any permitted successor in title.


• 13.7. If you are in breach of any term of this agreement, we may:
  publish all text and content relating to the claimed breach, including your name and email address and all correspondence between us and our respective advisers; and you now irrevocably give your consent to such publication;


• 13.8. No failure or delay by any party to exercise any right, power or remedy will operate as a waiver of it nor indicate any intention to reduce that or any other right in the future.


• 13.9. When you visit Our Website or send messages to us by email, you are communicating with us electronically. We communicate with you by e-mail or by posting notices on Our Website. You agree that all our electronic communications satisfy any legal requirement that such communications be in writing.


• 13.10. In the event of a dispute between the parties to this agreement, then they undertake to attempt to settle the dispute by engaging in good faith with the other in a process of mediation before commencing arbitration or litigation.


• 13.11. So far as the law permits, and unless otherwise stated, this agreement does not give any right to any third party.


• 13.12. In the event of any conflict between any term of this agreement and the provisions of the constitution of a limited company or any comparable document intended to regulate any other corporate or collective body, then the terms of this agreement shall prevail.


• 13.13. This agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.
• 13.14. The validity, construction and performance of this agreement shall be governed by the laws of the State of Western Australia and you agree that any dispute arising from it shall be litigated