The StockPhoto.com Marketplace is an online platform that:
The StockPhoto.com Marketplace is operated by Stockphoto.com Pty Ltd, an Australian company with ACN 161 811 589 (StockPhoto.com, ‘we’, ‘us’ or ‘our’) from or via our website(s), including www.stockphoto.com and similar sites and subsites (Site).
Stockphoto.com reserves the right to update or amend the terms of this Marketplace Agreement at any time. You should check this page from time to time to make sure you are aware of any changes. No changes to this document shall amend or otherwise impact the terms applicable to any previous supplies to or downloads of Content from or via the Site.
These terms are in sections which apply to each aspect of the Stockphoto.com Marketplace:
Marketplace Subscription Terms — this section sets out the terms which apply between Stockphoto.com and Marketplace Subscribers, in relation to the use of the Stockphoto.com Marketplace by Marketplace Subscribers;
Download Terms — this section sets out the terms on which Marketplace Subscribers may download and use, and Stockphoto.com will supply, particular Content via the Stockphoto.com Marketplace.
Content Access Terms — this section sets out the terms which apply between Stockphoto.com and Content Providers, in relation to the Content that is made available on the Stockphoto.com Marketplace by Content Providers.
General Terms — this section relates to all uses of the Site by registered Content Providers and Marketplace Subscribers.
MARKETPLACE SUBSCRIPTION TERMS
(a) The Marketplace Subscription Terms shall be effective upon Stockphoto.com’s acceptance of your registration application (Registration Form) to become a Marketplace Subscriber on the StockPhoto.com Marketplace (Start Date).
(b) Subject to StockPhoto.com accepting your Registration Form, the Marketplace Subscription Terms shall commence on the Start Date and continue for one (1) month, (except if another subscription period is specified in your Registration Form, in which case that period shall apply) (the Subscription Period). Subject to any amendments required by StockPhoto.com, upon expiration of the initial Subscription Period these Marketplace Subscription Terms (as amended) shall be automatically renewed for successive periods equal to the Subscription Period (each a Renewed Term) unless:
(i) either party provides written notice of termination, at least 30 days before the end of any Renewed Term, in which case this Agreement shall terminate upon expiration of the Renewed Term in which the notice expires; or
(ii) otherwise terminated under these Marketplace Subscription Terms.
The Term comprises the initial Subscription Period and each subsequent Renewed Term.
(a) You must pay StockPhoto.com the Subscription Fee specified on your Registration Form for each Subscription Period, in accordance with the Payment Terms set out on the Registration Form.
(b) StockPhoto.com may change the Subscription Fees for each Renewed Term, and will advise you in writing of that change, prior to expiration of the applicable Renewed Term. Such advice may be provided at any time by posting the changes to the Site or by email to you.
(c ) Subject to the Marketplace Subscription Terms, the Subscription Fees are non-refundable — there will be no refunds or credits for any partial Subscription Period, upgrade/downgrade refunds or account cancellations. If you are not in breach of these Marketplace Subscription Terms, and StockPhoto.com elects to terminate your subscription, StockPhoto.com will refund to you any pre-paid fees relating to the portion of the Term remaining as at the effective date of termination.
(d) You must provide us with accurate billing information and keep this information up to date.
(e) Fees for each Marketplace Subscription are priced in United States Dollars.
(f) If the Marketplace Subscriber makes payments by credit card payments, the Marketplace Subscriber acknowledges that StockPhoto.com is authorised to deduct all due payments on the dates on which they are required to be made and the Marketplace Subscriber will continue to remain liable for all payments due and owing under these Marketplace Subscription Terms.
(g) Otherwise, all payments must be made within 14 days of the date of StockPhoto.com’s invoice.
(h) Fees shall be exclusive of all taxes, levies, or duties imposed by any relevant taxing authorities, unless otherwise indicated. You shall be responsible for paying all taxes, levies, or duties, excluding only taxes based solely on StockPhoto.com’s income.
(i) If a scheduled Fee payment is not made in full by its due date for any reason, you acknowledge and agree that StockPhoto.com may charge interest for late payment of all outstanding amounts, at the rate of 5% pa (or, if this exceeds the maximum rate under applicable law, the maximum rate allowed under applicable law), and/or immediately terminate access to the Service. You shall pay StockPhoto.com’s costs, including reasonable attorney’s fees, incurred in collecting overdue payments.
4. StockPhoto.com’s Responsibilities. StockPhoto.com shall subject to these Marketplace Subscription Terms:
(b) provide support described on the Site from time to time.
5. Your Responsibilities. You will:
(a) provide current, complete and accurate information to StockPhoto.com relating to you, your identity and all registration and payment details that are provided on your Registration Form or otherwise requested by Stockphoto.com, and any changes to those details during the Term;
(b) ensure that you do not allow or enable more than 1 concurrent user of the Marketplace Subscription (except if another maximum number of concurrent users is specified in your Registration Form, in which case that number shall apply);
(c ) require that your employees, contractors, agents and other personnel accessing your Subscription use it only in compliance with all requirements of these Marketplace Subscription Terms;
(d) ensure that your computing and mobile devices, computer network and communication systems (including software and Internet connectivity) are suitably configured, maintained, and operated so as to enable you to effectively use your Subscription;
(f) maintain adequate security measures to prevent unauthorized or inappropriate use of your Marketplace Subscription.
6. Availability of Content.All title, ownership rights, Intellectual Property Rights and other proprietary rights in and to third party information accessed by operation of the Marketplace Subscription (including the Content) is the property of the applicable owner or Content Provider. The Marketplace Subscription Terms do not create, transfer or grant you any rights in or to any Content offered on the StockPhoto.com Marketplace. Marketplace Subscribers may only download and use a copy of Content that is surfaced on the Stockphoto.com Marketplace by agreeing to the Download Terms with a third party Content Provider. For purposes of this Marketplace Agreement, “use” means to copy, reproduce, modify, edit, synchronize, perform, display, broadcast, publish, or otherwise make use of.
7. Summary files and Meta Data
(a) Stockphoto.com may create:
(i) sample files based upon Content provided by Content Providers to display on the Site for marketing purposes (Summary Files); and
(ii) meta data associated with Content, including for the purposes of enabling searches for appropriate Content or Summary Files (Meta Data).
(b) Stockphoto.com uses reasonable endeavours to ensure that the Summary Files are accurate and up-to-date. However, Stockphoto.com cannot and does not guarantee the accuracy, currency, suitability, reliability or completeness of the Summary Files or Meta Data, and accepts no responsibility for errors therein at any time. Without limiting any of the above, to the fullest extent permitted by applicable law, Stockphoto.com will not be liable for any loss, damage, or cost of any kind, which is caused, or contributed to, by Content, Summary Content or Meta Data which is created by a third party, including the Content Provider.
(c ) Stockphoto.com also uses reasonable endeavours to ensure that the Summary Files and the Stockphoto.com Marketplace are free from viruses, worms or other harmful codes. However, we do not guarantee that use of the Stockphoto.com Marketplace or accessing or downloading any Content or Summary Files will be free from viruses, worms or other harmful codes. The quality of Content downloaded from the Stockphoto.com Marketplace is addressed under the Download Terms .
This section sets out the terms and conditions on which Stockphoto.com agrees to supply Content to a Marketplace Subscriber and the Marketplace Subscriber agrees to download Content from Stockphoto.com via the Stockphoto.com Marketplace.
These Download Terms, which are included by reference as party of the Subscription Terms, set out the terms which apply to Marketplace Subscribers when they select and download particular Content via the Stockphoto.com Marketplace. Each capitalised word or phrase used in these Download Terms have the same meaning as defined in the Subscription Terms.
(a) The Download Terms shall be effective upon the date that a Marketplace Subscriber downloads Content (Downloaded Content) via the Stockphoto.com Marketplace ( Start Date) for use on one or more projects (including but not limited to personal arts and crafts; websites; blog posts; social media; advertisements; marketing campaigns; corporate presentations; newspapers; magazines; books; film and television productions; web and mobile applications; product packaging) (Projects) and shall continue indefinitely with respect to that Downloaded Content unless and until terminated in accordance with these Download Terms.
(b) Stockphoto.com may terminate these Download Terms and the licenses granted therein at any time by giving notice to the Marketplace Subscriber:
(i) if the Marketplace Subscriber breaches the restrictions set forth herein on the use of Downloaded Content; or
(ii) if the Marketplace Subscriber files a petition in bankruptcy, is adjudicated bankrupt, makes a general assignment for the benefit of its creditors, or is voluntarily or involuntarily dissolved.
The supply of Downloaded Content under these Download Terms and the Subscription Terms is included in the Subscription Fee.
4. Intellectual property
(a) The Downloaded Content is protected by copyright, patent and other Intellectual Property Rights in Australia and overseas. The Downloaded Content and Intellectual Property Rights therein are owned by or licensed to the Content Provider, and are supplied to you by Stockphoto.com under license from the Content Provider. Other than expressly set out in these Download Terms, no rights or title to the Downloaded Content or any Intellectual Property Rights therein will pass to a Marketplace Subscriber under these Download Terms or otherwise through use of the Stockphoto.com Marketplace.
(b) The Downloaded Content may include trade marks which are protected by law. You may not use trade marks in Australia or internationally without the prior written consent of the applicable trade mark owner, except in accordance with applicable law. The Marketplace Subscriber may remove, cover or obfuscate any trade mark from the Downloaded Content that in use might infringe third party rights.
(c ) You may not remove or cause to be removed any Stockphoto.com attribution from any Downloaded Content.
5. License to Downloaded Content
(a) Subject to limitations and exclusions set out in paragraph 6 below, Stockphoto.com grants to the Marketplace Subscriber a worldwide, royalty free, non-exclusive, non-transferable, non-sublicensable license to download, hold and use a single digital copy of the Downloaded Content for the Marketplace Subscriber’s own personal or internal business purposes, including the Projects.
(b) Downloaded Content that is incorporated into Projects or similar uses within 90 days of being downloaded may continue to be used in perpetuity in that Project and in any other projects, subject to the Download Terms. Any Downloaded Content not included in a project at the end of the 90 day period is not considered licensed and must be deleted. Stockphoto.com may terminate any licenses to Downloaded Content if it reasonably believes there is a violation of these Download Terms in which case the Marketplace Subscriber must immediately: cease using the Downloaded Content; delete or destroy any copies and confirm to Stockphoto.com in writing that you have complied with these requirements.
(c ) The Marketplace Subscriber must not otherwise use, reproduce, modify, publish or distribute the Content without Stockphoto.com’s prior written consent or as otherwise as allowed in these Download Terms, including (without limitation) for resale, download or distribution to the public for any purpose.
6. License Exclusions
(a) The license granted under paragraph 5 above expressly excludes the following uses of Downloaded Content by the Marketplace Subscriber, which are prohibited activities under these Download Terms:
(i) as or within a logo, trade name, trademark or service mark;
(ii) for unlawful purposes or otherwise in furtherance of unlawful matters; or
(iii) in association with materials or information which breach third party Intellectual Property Rights;
(iv) in any way that allows the third parties to obtain or redistribute a copy in any digital format, including as part of a business with the purpose of supplying or licensing content online;
(v) as part of or in the context of sensitive material, which includes but is not limited to
• Pornographic material;
• Use of the Downloaded Content in a manner that may depict any model or image in a negative light;
• AIDS, cancer, bladder, or intestinal diseases or other chronic ailments;
• Mental deficiencies, alcohol, drug or substance abuse;
• Gay, lesbian, or transgender related material; and
• Financial destitution, income loss or death.
If the Marketplace Subscriber wishes to use the Downloaded Content in the context of sensitive material the Marketplace Subscriber should contact Stockphoto.com in writing via the Stockphoto.com Marketplace to request a separate use agreement (which may or may not be supplied).
(vi) for the creation of any digital copies, other than a single backup copy; and
(vii) If and to the extent that the Marketplace Subscriber is entering into these Download Terms on behalf of or otherwise for the purposes of supplying products or services to a third party client, then the Downloaded Content must only be used for the purposes of a single client and are not transferable to another client of the agent or agency.
7. Responsibilities of Stockphoto.com
(a) Stockphoto.com does not require Content Providers to obtain written releases from the models or owners of property that are depicted in any Content. The use by the Marketplace Subscriber of Content that includes visual depictions of models or property may require authorization from the subject of the image, if a person, or the owner of the subject of the image, if a property. Neither Stockphoto.com nor its Content Providers guarantee or grant any rights or authorizations on behalf people, places, artwork, property and/or other subject matter that are depicted in any Content, which may now or at a future date, be subject to additional rights owned by the subjects of the images and/or third parties.
(b) Stockphoto.com uses reasonable endeavours to ensure, and requires all Content Providers to warrant, that Downloaded Content:
(i) is an original creation of the Content Provider or its licensor, and has not been created in a manner that constitutes an infringement of copyright;
(ii) is free from viruses, worms or other harmful codes,
(ii) includes Meta Data that is reasonably accurate and complete.
(c ) THE DOWNLOADED CONTENT IS PROVIDED ON AN ‘AS IS’ BASIS, WITHOUT ANY WARRANTY WHATSOEVER. STOCKPHOTO.COM DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. STOCKPHOTO.COM SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS, OR DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, FOR ANY CLAIMS ARISING UNDER THIS AGREEMENT, EVEN IF STOCKPHOTO.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ALL DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
8. Responsibilities of the Marketplace Subscriber
(a) You acknowledge and agree that the Stockphoto.com Marketplace is a platform that enables third party Content Providers to make their Content available for download and use by Marketplace Subscribers. StockPhoto.com does not collect, create, review, police or edit the Content or any other data supplied to the Stockphoto.com Marketplace platform from time to time. Accordingly, except as otherwise expressly stated in the Download Terms, all Downloaded Content is used at the Marketplace Subscriber’s risk. The Marketplace Subscriber accepts the risk and responsibility for its use of all Downloaded Content from the Stockphoto.com Marketplace.
(b) The Marketplace Subscriber is solely and entirely responsible for any and all breaches of third party rights, including rights of privacy, rights of publicity, Intellectual Property Rights, or any other applicable law, that arise from the use, publication or other public dissemination of any Downloaded Content in any form or media. In particular, (without limitation) it is the Marketplace Subscriber’s responsibility to:
(i) obtain any required authorizations from any person that is the subject of an image, or from the owner of any property that is the subject of the image; and
(ii) ensure that any third party trade marks that appear in any image either: (A) are used in a manner that do not infringe the rights of the owner of any Intellectual Property Rights in that trade mark; or (B) are only used with the permission of the applicable trade mark owner. The Marketplace Subscriber may remove, cover or obfuscate any trade mark from the Downloaded Content that in use might infringe third party rights.
(c ) The Marketplace Subscriber must not assign or sublicense any of the rights or obligations under these Download Terms to any third party for any purpose or at any time. Any such attempted assignment, whether by operation of law or otherwise, shall be void.
(d) The Marketplace Subscriber hereby releases, holds harmless and indemnifies Stockphoto.com from and against all liabilities and reasonable expenses (including but not limited to attorney fees) judgments, fines, or penalties that Stockphoto.com incurs as a result of any third party claim made against the Marketplace Subscriber or any third party arising from any use, publication, reproduction or other public dissemination of all or part of the Downloaded Content in any form or media by or on behalf of the Marketplace Subscriber.
9. Credits and attributions
You must not falsely represent that you are the original creator of a work that is made up entirely or substantially derived from the Downloaded Content.
CONTENT ACCESS TERMS
(a) The Content Access Terms shall be effective upon the date that Stockphoto.com accepts your registration application (Registration Form) to become a Content Provider on the Stockphoto.com Marketplace (Start Date).
(b) Subject to StockPhoto.com accepting your Registration Form, the Content Access Terms shall commence on the Start Date and continue for as long as you have one or more folders or other directories on an eligible third party cloud-based service (Folders) linked to the Stockphoto.com Marketplace, or until terminated in accordance with the Content Access Terms (Term).
(a) In consideration of the supply of Content to the Stockphoto.com Marketplace under the Content Access Terms, Stockphoto.com will pay you a cash royalty each time your Content is downloaded by a Marketplace Subscriber via the Stockphoto.com Marketplace (in the amounts calculated under, and at the times set out in, our compensation policy), and will enter you into the Stockphoto.com Marketplace Download Leaderboard(s). As your position on the Download Leaderboard(s) changes, you may become eligible for non-cash prizes in accordance with the Stockphoto.com Marketplace compensation policy (as amended from time to time). Your position on the Download Leaderboard (s) is determined by the number of times your Content is downloaded by Marketplace Subscribers under , in the manner set out in our compensation policy.
(b) Subject to paragraph (c ) below, any payments to which you become entitled under paragraph (a) above will be issued to your nominated bank account on a rolling monthly basis. Payments are automatic and do not need to be requested. Payments will only be made once the accumulated payment amount exceeds $20 for electronic payments (other minimum payment limits may apply to other payment methods, as advised by Stockphoto.com on a case by case basis) (Payment Threshold). If during any month, your accumulated payments are less than applicable Payment Threshold, the accumulated amounts will be rolled over into the next month. If your registration as a Content Provider is terminated prior to your accrued payments reaching the applicable Payment Threshold, you thereby forfeit such amounts to Stockphoto.com. If your registration as a Content Provider is terminated for a material breach of the Content Access Terms, in addition to its other rights at law or in equity, Stockphoto.com shall have the right to retain any accrued amounts otherwise payable to you hereunder to offset against any liabilities arising from your breach.
(c ) If your registration as a Content Provider is terminated, records of your accrued downloads will be held for 3 months. If you have not re-registered as a Content Provider within this time, records of your accrued downloads will be permanently deleted.
(d) If Stockphoto.com makes an overpayment of compensation to you for any reason, Stockphoto.com shall have the right to deduct the amount of such overpayment from your accrued compensation entitlements or to demand the immediate repayment of such overpaid amounts.
(e) If you receive any cash payments through an online payment processing service (e.g., Paypal) you may not share your online payment processing service account with any other person. Stockphoto.com’s obligation to make payment to you under these Content Access Terms shall be fulfilled by making payment to the online payment processing service designated by you.
(f) If GST is payable in respect of any supply made by you under these Content Access Terms, then it will be paid in addition to the accrued compensation, subject to provision of a valid tax invoice by you.
4. StockPhoto.com’s Responsibilities. StockPhoto.com will subject to these Content Access Terms use all reasonable endeavours to:
(a) enable Marketplace Subscribers to download Content from your Folder(s) via the Stockphoto.com Marketplace on and subject to the Download Terms between Stockphoto.com and the applicable Marketplace Subscriber; and
(b) provide support described on the Site from time to time.
(c ) in its sole discretion create: (i) sample files based upon Content in your Folders to display on the Site for marketing purposes (Summary Files); and (b) meta data associated with Content (Meta Data).
5. Your Responsibilities. You must
(a) provide current, complete and accurate information to StockPhoto.com relating to you, your identity and all registration and payment details that are provided on your registration application, and any changes to those details during the Term;
(b) ensure that you do not allow or enable more than 1 concurrent user of the Folder(s);
(c ) require that your employees, contractors, agents and other personnel accessing your registration to the Stockphoto.com Marketplace, Content and Folder(s) use them only in compliance with all requirements of these Content Access Terms;
(d) ensure that your Folders, computing and mobile devices, computer network and communication systems (including software and Internet connectivity) are suitably configured, maintained, and operated so as to enable you to effectively use your registration to the Stockphoto.com Marketplace;
(e) keep secure and confidential the username(s), password(s) and any other information provided to you or by you for the purpose of accessing the Content Provider registration ( Login Information). Unless expressly permitted by these Content Access Terms, or otherwise authorized by StockPhoto.com in writing, you must not share your Login Information with any third party. Any service provided on an as-required basis using your Login Information will be deemed to be made on your behalf and at your own risk; and
(f) maintain adequate security measures to prevent unauthorized or inappropriate use of your Stockphoto.com Marketplace registration.
(g) not use the Stockphoto.com Marketplace as a means of transferring your Content to a single end user or to a small number of end users ;
(h) not download your own Content as a Marketplace Subscriber.
6. Access to Content.
(a) The Content Provider will provide Stockphoto.com and its Marketplace Subscribers with access to their Content by:
(i) linking at least one folder on an eligible third party cloud-based service ( Folder) to the Stockphoto.com Marketplace in accordance with Stockphoto.com’s instructions; and
(ii) uploading Content to those one or more Folders.
(a) With respect to all Content stored in your Folder(s), you grant to Stockphoto.com:
(ii) a worldwide, non-exclusive right and license to prepare derivative works incorporating the whole or part of your Content (such as Summary Files or watermarked thumbnails of images), and publicly display and sublicense those derivative works on the Site for the purposes of displaying and marketing the related Content on the Stockphoto.com Marketplace;
(iii) permission to create, add, modify or remove information related to your Content in order to manage such Content, including by creating Meta Data associated with that Content; and
(iv) a worldwide, non-exclusive right to use your name and Content and Summary Files in connection with Stockphoto.com’s marketing and promotional activities without the payment of any compensation to you.
(collectively, Access Licenses).
(b) Stockphoto.com, in its sole discretion, may refrain from any or all activities described in paragraph 6(a) without any liability to you.
8. Ownership of Content. The copyrights and all other Intellectual Property Rights in all Content in your Folder(s) from time to time remain with the copyright owner, and nothing in these Content Access Terms shall be construed as a transfer of copyright to Stockphoto.com or any other entity.
9. Summary files and Meta Data
(a) Stockphoto.com uses reasonable endeavours to ensure that Summary Files are available on the Stockphoto.com Marketplace for all Content available in your Folder(s), and that Meta Data associated with Content in your Folder(s) and created by Stockphoto.com is accurate and up-to-date. However, Stockphoto.com cannot and does not guarantee the accuracy, currency, suitability, reliability or completeness of the Summary Content or Meta Data, and we accept no responsibility for errors in the Meta Data at any time.
(b) We may enable the Content Provider the ability to amend the Meta Data associated with each Content item. Without limiting any of the above, to the fullest extent permitted by applicable law, we will not be liable for any loss, damage, or cost of any kind, which is caused, or contributed to, by Meta Data which is created by a third party, including the Content Provider. You warrant at all times that the Meta Data that is associated with your Content, and that you have an opportunity to review or amend, is reasonably accurate and complete.
10. Warranties. Upon adding any Content to your Folder(s) you warrant that with respect to all such Content:
(a) it an original work of the Content Provider or its licensor, and has not been created, obtained or supplied in a manner that constitutes an infringement of copyright;
(b) you own or have all necessary rights, licenses or permissions to grant the Access Licenses to Stockphoto.com under these Content Access Terms and to offer and (if applicable) grant the rights in Content to Marketplace Subscribers under the Download Terms;
(c ) you have obtained the waiver of any authorship rights or moral rights that you or any third party would otherwise have under the applicable laws of any jurisdiction to the extent such rights conflict with the Access Licenses or the Download Terms.
(d) it is of reasonable quality and accuracy and accords with all descriptions and Meta Data relating to that Content which are provided by you;
(e) it is free of any digital rights management, electronic security or copyright control mechanisms, and is not infected by any virus or malicious software;
(f) it is free from viruses, worms or other harmful codes;
(h) you have not been denied any release or have been otherwise prohibited from using any particular model and/or property in any Downloaded Content for any purpose, and have no reason to believe that any reasonable release request would be denied by the applicable person or property owner.
This paragraph 11 (Warranty) survives termination or expiry of this agreement, together with any other term which by its nature is intended to do so.
(a) The Content Provider hereby agrees to indemnify Stockphoto.com from and against all liabilities and reasonable expenses (including but not limited to attorney fees) judgments, fines, or penalties that Stockphoto.com incurs as a result of:
(i) any claim made against Stockphoto.com by a third party that any or all of your Content infringes the Intellectual Property Rights of that third party; and
(ii) all claims arising out of any breach of your warranties set out in these Content Access Terms.
(b) You will notify Stockphoto.com immediately in the event you become aware of any breach (or potential breach) of third party Intellectual Property Rights or your warranties set out in these Content Access Terms, and will immediately remove any Content from the applicable Folder that is the subject of those claims.
This paragraph (Indemnity) survives termination or expiry of this agreement, together with any other term which by its nature is intended to do so.
1. Intellectual Property. StockPhoto.com, and/or its affiliates and licensors, own all Intellectual Property Rights in and to the StockPhoto.com Marketplace. Intellectual Property Rights in or arising from any suggestions, ideas, enhancement requests, feedback, recommendations, templates, widgets, libraries, or other software or information you provide to or jointly develop with StockPhoto.com that relate to the Marketplace Subscription shall belong solely, and are hereby assigned, to StockPhoto.com. This Agreement does not grant you any right to use the StockPhoto.com name, the StockPhoto.com logo, or the product names associated with the Subscription or the StockPhoto.com Marketplace.
For the purpose of this Marketplace Agreement ‘Intellectual Property Rights’ includes any and all intellectual property rights throughout the world, including: (a) any patent, copyright (including future copyright), trade mark (whether registered or unregistered), software, design, circuit layout right, trade, business or company name or other proprietary right, or any right to register such rights; and (b) all present and future rights in an invention, discovery, trade secret, know-how, concept, idea, data or formula and rights in information, including any serendipitous discoveries, granted by law or equity from time to time under the law of any jurisdiction.
2. Modification, Reverse Engineering, and Derivative Works. You shall not, and you shall not permit any agent or third party to:
(a) copy any documentation, product data sheets, rules, and similar materials StockPhoto.com provides to you in connection with the Stockphoto.com Marketplace other than for using the Stockphoto.com Marketplace in compliance with the applicable agreements;
(b) subject to applicable law, decompile, disassemble, or otherwise reverse engineer the Stockphoto.com Marketplace or determine any source code, algorithms, methods, or techniques used or embodied in the Stockphoto.com Marketplace;
(c ) access the Stockphoto.com Marketplace for the purpose of monitoring its availability, performance, or functionality or for benchmarking, reverse engineering, or other competitive purpose;
(d) embed the Stockphoto.com Marketplace in any other application;
(e) modify, translate, or otherwise create derivative works based upon the Stockphoto.com Marketplace or copy ideas, features, functions, or graphics of the Stockphoto.com Marketplace for use in another product or service; or
(f) remove or alter any copyright, trademark, or other proprietary notices, legends, symbols, or labels appearing in connection with the Stockphoto.com Marketplace.
3. Certain Excluded Uses. You may not access the Stockphoto.com Marketplace, and StockPhoto.com may terminate all applicable agreements between you and Stockphoto.com immediately upon written notice, if you now or hereafter during the Term, compete or plan to compete in the business of operating a commercial online or cloud based stock photo licensing business. In addition, you shall not:
(a) interfere with or disrupt the integrity or performance of the Stockphoto.com Marketplace;
(b) gain or attempt to gain unauthorized access to the Stockphoto.com Marketplace or its related systems or networks for any reason whatsoever.
5.1. Stockphoto.com Marketplace is a platform only. You acknowledge and agree that the Stockphoto.com Marketplace is a platform that enables third party Content Providers to make their Content available for download by Marketplace Subscribers. StockPhoto.com does not itself collect or create the Content in relation to which it provides the Stockphoto.com Marketplace platform.
The Stockphoto.com Marketplace is in part based on information provided by Content Providers, Marketplace Subscribers and other users of the Stockphoto.com Marketplace, and is not necessarily complete or accurate. You acknowledge and agree that provision of the Stockphoto.com Marketplace platform is subject to, and dependent upon, adequate delivery of products and services by the applicable third party providers and you.
5.2. Limitation of liability. To the fullest extent permitted by applicable law, StockPhoto.com will not be liable for any loss, damage, or cost of any kind, which is caused, or contributed to, by data, content, files, images, materials, actions, omissions or services that is supplied by Content Providers, Marketplace Subscribers or any entity other than Stockphoto.com and its related companies and agents, except to the extent caused by the misconduct or negligence of StockPhoto.com.
5.3. Disclaimers. Without limiting the generality of the foregoing, you may not use the Stockphoto.com Marketplace for any activity or use that will infringe any third party rights of any kind. In particular: (a) Content Providers must not submit any Content to the Stockphoto.com Marketplace if the creation of that Content, or the use of the Content by Stockphoto.com, or the downloading of the Content by a Marketplace Subscriber, or any other use of that Content on or via the Stockphoto.com Marketplace is reasonably likely to breach any applicable laws or infringe any third party rights, including Intellectual Property Rights; and (b) Marketplace Subscribers must not use any Content that is downloaded via or using the Stockphoto.com Marketplace in any way that breaches any applicable laws or infringes any third party rights, including Intellectual Property Rights.
5.4. Right to Modify. From time to time StockPhoto.com may without notice to you make changes to the Stockphoto.com Marketplace as StockPhoto.com decides in its sole discretion are required to maintain and/or improve the quality of its products or services, or which result from changes to data or services provided by third parties.
5.5. No other warranties. StockPhoto.com does not warrant (a) that the Stockphoto.com Marketplace will be uninterrupted or error-free; or (b) that StockPhoto.com’s commercially reasonable efforts will be adequate to correct any defects in the Services.
6. Third party terms. StockPhoto.com engages third party providers to provide its products and services, including the Stockphoto.com Marketplace. You shall comply with all requirements and restrictions that such third party providers may impose on you directly, or indirectly by imposition on StockPhoto.com, in relation to their respective products and/or services, whether applicable at the time of, or subsequent to, the Start Date. Third party providers and their terms of supply may change from time to time during the applicable Term.
7. Your indemnity. You shall indemnify and hold StockPhoto.com and StockPhoto.com’s licensors, and their respective parent companies and affiliates, and their respective officers, directors, employees, attorneys, and agents, harmless from all liabilities and expense (including attorney fees and costs) arising out of or in connection with a claim arising from your breach of the applicable terms of this Marketplace Agreement or any terms imposed by StockPhoto.com’s third party suppliers.
8. Liability Exclusions
8.1 No exclusion of Applicable Law
Nothing in this Agreement excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition which:
(a) is implied or imposed by the Australian Consumer Law (in respect of Users in Australia) or other applicable law (in Australia and any other applicable jurisdiction); and
(b) cannot be lawfully excluded or limited.
If the Australian Consumer Law applies to you, you may be entitled to a replacement or refund for a major failure of our service and compensation for any other reasonably foreseeable loss or damage. You may also be entitled to have the goods repaired or replaced if goods fail to be of acceptable quality and the failure does not amount to a major failure.
8.2 Liability cap
Subject to Applicable Law, and excluding the indemnity set out in paragraph 7 of these General Terms, the liability of StockPhoto.com arising out of or in connection with the Stockphoto.com Marketplace, including for:
(a) any breach of this Agreement;
(b) any act or omission (including any negligent act or omission) of StockPhoto.com arising out of or in any way in connection with the performance or non-performance of this Agreement;
(c ) any loss, damage or injury resulting from your access to or use of the Stockphoto.com Marketplace; or
(d) the termination of this Agreement (whether as a result of breach, repudiation or otherwise),
to the extent that it is not expressly excluded, is limited to the fees or other compensation paid to or from StockPhoto.com in respect of your use of the Stockphoto.com Marketplace.
8.3 No liability for consequential losses
(a) Despite any other clause in this document, and subject to Applicable Law, neither party will be liable to the other for, nor will any indemnity by either party under this document extend to, any Consequential Loss suffered by or claimed against the other Party, including for:
(i) any breach of this document by a party;
(ii) any act or omission (including any negligent act or omission) of a party arising out of or in any way in connection with the performance or non-performance of this document; or
(iii) the termination of this document (whether as a result of breach, repudiation or otherwise) by a party.
(b) For the purposes of this document, Consequential Loss means:
(i) any special, indirect or consequential loss or damage;
(ii) any economic loss in respect of any claim in tort;
(iii) any loss of profits, loss of production, loss of revenue, loss of use, loss of contracts, loss of opportunity, loss of goodwill or wasted overheads whatsoever; and
(iv) any loss arising out of any claim by a third party.
(c ) This provision survives termination of this document.
Subject to Applicable Law, and excluding the indemnity set out in paragraph 7 of these General Terms, the Stockphoto.com Marketplace is provided “as is” without representation, warranty or condition of any kind, either express or implied, including, but not limited to, implied representations, warranties or conditions of merchantability, or fitness for a particular purpose. StockPhoto.com does not represent or warrant that the Stockphoto.com Marketplace will meet your requirements or that its use will be uninterrupted or error free. Without limitation, while we have made reasonable efforts to correctly categorize, keyword, caption and title the Content, StockPhoto.com does not warrant the accuracy of such information, or of any Meta Data provided with the Content.
9. Notices. Any notice this Agreement requires or permits a party to give to the other party shall be in writing. Each party shall ensure that the other party has a current address, fax number, telephone number, and electronic mail address at which the party will receive notice ( Contact Information). Each party shall make an ordinary, good faith effort to ensure that the intended recipient actually receives the notice. In any event, notices delivered by post shall be deemed to be received with 3 business days of posting to an address within the same country and within 7 business days to an international address, and 1 business day after the time the machine on which that facsimile or email is transmitted displays or records confirmation that transmission has been completed A party who fails to accept notice or to provide current Contact Information waives any right to complain about any failure to deliver notice to a particular address. Stockphoto.com may, but is not obliged to, enable notices and other communications between Marketplace Subscribers and Content Providers via the Stockphoto.com Marketplace.
10. Force Majeure. StockPhoto.com and StockPhoto.com’s affiliates and licensors shall not be liable for any delay or failure in the performance of obligations that arises out of causes beyond its reasonable control, including but not limited to electrical and or energy outages, Internet failures, computer failures, communications failures, acts of God or of the public enemy, fires, floods, epidemics, riots, quarantine restrictions, strikes, freight embargoes, earthquakes, and severe weather, war, governmental action, labor conditions, and acts or omissions of subcontractors or third parties. For these purposes, ‘affiliates’ includes each person or entity that directly or indirectly controls, is controlled by, or is under the common control of another person or entity.
11. Modifications. This Agreement may not be amended or otherwise modified except pursuant to a written document, signed by the parties to this Agreement, unambiguously evidencing the intent to amend or modify this Agreement.
12. Assignment. You may not assign this Agreement or your rights or obligations under this Agreement, or license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available the Stockphoto.com Marketplace or any part of the Stockphoto.com Marketplace to any person or party, whether by operation of law or otherwise, without StockPhoto.com’s prior written consent which StockPhoto.com in its sole discretion may withhold.
13. Equitable Remedies. Both parties agree that any breach of this Agreement may cause irreparable damage to the non-breaching party and that, in the event of such breach, and in addition to any remedies at law, the non-breaching party shall have the right to seek an injunction, specific performance, or other equitable relief in any court of competent jurisdiction to enforce this Agreement, without the requirement of posting a bond or undertaking or proving injury as a condition of relief.
14. Miscellaneous. This Agreement shall be governed by the laws of Western Australia, without regard to any choice or conflicts of law provisions. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Stockphoto.com Marketplace shall be subject to the exclusive jurisdiction of the courts of Western Australia. No text or information set forth on any purchase order, preprinted form, or other document that is not part of this Agreement shall add to or vary the terms of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between StockPhoto.com and you as a result of this Agreement or your use of the Stockphoto.com Marketplace. The failure of StockPhoto.com to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by StockPhoto.com in writing. This Agreement comprises the entire agreement between you and StockPhoto.com and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter hereof. To the extent of any inconsistency between a registration form and these General Terms, the terms and conditions of the registration will prevail.
15. Interpretation. In this Marketplace Agreement, headings and underlining are for convenience only and do not affect the otherwise clear interpretation of this Marketplace Agreement. Unless the context otherwise requires:
(a) words importing the singular include the plural and vice versa;
(b) a covenant or agreement on the part of two or more persons binds them jointly and severally;
(c ) a reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;
(d) a reference to a recital, clause, schedule, annexure or exhibit is to a recital, clause, schedule, annexure or exhibit of or to this Agreement;
(e) a recital, schedule, annexure, exhibit or a description of the parties forms part of this Agreement;
(f) a reference to any agreement or licence is to that agreement or licence (and, where applicable, any of its provisions) as amended, novated, supplemented or replaced from time to time;
(g) a reference to any party to this Marketplace Agreement or any other licence or arrangement includes that party’s executors, administrators, substitutes, successors and permitted assigns;
(h) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
(i) a reference to a month is to a calendar month;
(j) if an example is given of anything (including a right, obligation or concept), such as by saying it includes something else, the example does not limit the scope of that thing; and
(k) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Marketplace Agreement or any part of it.