Digital Flashbacks Photography - TERMS AND CONDITIONS PLEASE READ THIS AGREEMENT CAREFULLY AS IT GOVERNS YOUR USE OF Digital Flashbacks Photography BY ACCESSING THE SITE AND USING IT’S SERVICES YOU THE CLIENT (henceforth known as “YOU”) AGREE TO THE TERMS AND CONDITIONS AS STATED BELOW. TERMS AND CONDITIONS:
1. Provision of the Services and How to Contact us. Digital Flashbacks Photography (the “Business”) in association with Netlife Australia who provides an online means of managing and selling photographs of child care and school children in the provision of group shots, individual shots, sporting shots etc (“Services”). Once taken, photographs are then uploaded to the Site by the Business and can be purchased directly by users of the Service.
The contact details for the Business are as follows: Digital Flashbacks Photography 22 Currawong Ave Normanhurst 2076 0404 295 587 or 0416 012 041
You acknowledge that you have provided the Business with accurate and complete registration information on your account sign-up form or enquiry form and that it is your responsibility to update the Business with any changes to that information by e-mailing or telephoning the Business at the email address or telephone number provided above. You must be at least 18 years of age to use the Services - please note that the Business reserves the right to require you to provide evidence to verify any aspect of your account sign-up form at any time.
You must keep your account details secure at all times and if you believe that there has been a breach of security then you must notify the Business immediately. If the Business reasonably believes that your ID is being used in any way which is not permitted under this Agreement or in contravention of any laws (or reasonably suspects the same) then the Business hereby reserves the right to immediately suspend your access rights on giving notice to you and to block access to the Site until the issue has been resolved to the satisfaction of the Business.
The Business is continually seeking to improve the Services and to ensure that all information on the Site (“Content”) is up to date. Accordingly, the Business reserves the right, and at its sole discretion, to make changes to any part of the Services or the Content at any time and without prior notice to you. We would recommend that you regularly check the Site from time to time for any updates or changes to this Agreement which shall in any event become effective on posting and your continued use of the Site will mean acceptance of those updates and/or changes.
2. Licence and limited rights to use Content The Business grants you a non-exclusive, non-transferable, non-assignable, revocable licence to use the Content subject to the terms and conditions of this Agreement. The Content and all copyright, database rights, website design, trade and service marks and logos or names, design rights, and rights relating to loss of reputation and business and all other intellectual property rights including the software used on the Site (“Intellectual Property”) in each case whether registered or not and belong to the Business (or applicable licensors) and may not be used in any way whatsoever without the prior written consent of the Business.
4. Warranties and Indemnity The Business warrants that it will use all reasonable skill and care in the provision of the Service. The Business makes no warranty that the Site is free from viruses or anything else that has contaminating and/or destructive properties. It is your responsibility to adopt appropriate back-up, firewall and other precautionary security measures. All other express or implied warranties and any representations are fully excluded from this Agreement to the extent that they can be excluded as a matter of applicable law. You warrant and represent that you are the owner or licensee of any content that you upload, record or otherwise transmit through the Services (collectively, “your Content”). You warrant and represent that you shall not publish, post, upload, record or otherwise transmit any of your Content (including your user name) that: (i) infringes any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (ii) violates any law or statute, (iii) is defamatory, unlawfully threatening or unlawfully harassing; (iv) is profane, indecent, obscene, harmful to minors or pornographic; (v) contains any viruses or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information or property of another; or (vi) is false, misleading or inaccurate. You agree not to: (1) use the Services in connection with chain letters, junk mail, pyramid schemes, spamming or any duplicative or unsolicited messages, or any use of distribution lists to any person; (2) harvest or otherwise collect information about others, including e-mail addresses; (3) knowingly interfere with or disrupt networks connected to the Services or violate the regulations, policies or procedures of such networks; (4) attempt to gain unauthorised access to the Services, other accounts, computer systems or networks connected to the Services, through password mining or any other means; or (6) use the Services for any illegal purposes. You agree to fully indemnify the Business against all claims, liabilities, costs and expenses (including but not limited to all legal fees) arising out of your use of the Services or related to any breach of this Agreement.
5. Limitation of Liability The Business shall not be liable to you whether in contract, tort (including negligence) or otherwise, for: any direct, indirect, consequential or special loss or damage; any loss of profit, loss of anticipated savings, loss of business, loss of goodwill, loss of data or other such financial or business loss or damage even if foreseeable; or any other loss or damage in an amount exceeding $100.00 (one hundred dollars) in the 12 months preceding the date on which such liability arose. Notwithstanding the provisions of this clause the Business’s liability will not be limited in the case of fraud or for death or personal injury caused by our negligence. Please note that all photographs provided by the Business are produced to the highest standards using the best quality materials and latest processing techniques. However, over time, all colour photographs will fade, particularly if left in bright sunlight and not contained behind glass. The Business cannot therefore accept any responsibility for gradual image deterioration.
6. Consent You acknowledge and agree that the educational institution (“School”) to which the photographed subject (“Subject”) attends is solely responsible for obtaining the consent of the Subject and/or consent from the Subject’s parents/guardians. It is not our responsibility to ensure that each Subject has the required consent in order for their photograph or image to be used on the Site. Schools must send all parents/guardians a consent form to receive written consent or to allow them to express their objections if they do not wish the Subject to be photographed. If You are a parent or guardian of the Subject, You agree to hereby provide your consent to and confirm that the Subject’s image may be used in the provision of the Services (which may include group shots) and which may include purchase by other users of the Site. Generally, and as a user of the Site, You hereby confirm the following:
a) You agree to only purchase photographs or images that you have a genuine reason to purchase such as (but not limited to) the Subject being a relation of yours or for the purposes of a gift – we may, in our sole discretion ask You questions to determine Your connection to the Subject and if we are not satisfied with Your answers we can refuse to allow You to use the Service. We may, if we consider it appropriate, contact the relevant authorities and provide whatever personal or other identifying information we may hold on You;
b) You agree that we are under no obligation to store photographs of a Subject for any pre-determined length of time and that can archive them or destroy them whenever we consider it appropriate;
c) You agree that You have no propriety interest in any photographs and/or images generated by the Business and all intellectual property rights in the same are wholly owned by the Business and You disclaim all rights you may have in the same both for yourself and on behalf of the Subject; and
d) You agree that all photographs and/or images You purchase through provision of the Services may be used for marketing purposes by the Business from time-to-time. If you do not want this to occur prior written consent is provided by You to the Business.
7. Payment and Refund Policy The prices for the Services will be as stated on the Site and will include GST and exclude delivery and taxes which will be added to the total amount charged to You. Please note that the final figure shown when you shop and pay using our secure online facility will include all taxes and shipping fees in AUD. Prices are liable to change at any time but you will not be affected if your order has already been placed and you have received such confirmation. All orders placed after the “discounted packages” date will be delivered to your school or home address (or the address provided by you). The Business does not impose “fines” but will impose a charge of $15.00 per order to cover the cost of shipping. As the goods provided are personal to you and have no re-sale value we regret that we cannot cancel or provide refunds once your order has been placed in production. However, we do understand that mistakes do happen and if you consider that your order is not correct then please contact us and we will try and assist you. 8. Notices All notices shall be given to the Business via e-mail or by post to the Business’s address as set out under clause 1 of this Agreement, or to you at the e-mail or postal address you provide in your registration information. 9. Third Party Links The Site may contain links to other websites and resources however the Business is not responsible and shall not be held liable for the availability or content of these resources. No endorsement or approval of any such third party websites, their advice, opinions, information, products or services is expressed or implied by any information on our Site and it is entirely your decision and responsibility to use their services and/or products. 10. Termination and Renewals The Business operates the Site on a fair and reasonable basis and this Agreement and your access to the Service may be immediately terminated by the Business if (in the sole opinion of the Business) you are in breach of this Agreement or are behaving in a way that the Business considers inappropriate or in a way likely (in the sole opinion of the Business) to harm the reputation of the Business. 11. Dispute Resolution Should there be a dispute between you and the Business that cannot be resolved directly within reasonable time period then it is hereby agreed that on the written request of any party it can be referred to an independent mediator, the identity of whom shall be agreed between the parties. In the event the mediator cannot be agreed by the parties within 14 days of one party’s written request to appoint a mediator. The costs of the mediation shall be shared equally and the place of conduct of the mediation shall be Perth, Western Australia. In the event that within a period of 60 days of the appointment of a mediator, the mediator is unable to resolve the dispute, the parties may submit the matter to the exclusive jurisdiction of the Australian Courts. 12. General No failure or delay on the part of the Business relating to the exercise of any right, power, privilege or remedy provided under this Agreement shall operate as a waiver of such right, power, privilege or remedy or as a waiver of any proceeding or succeeding breach by the other party to this Agreement. Please note that the Business does not have an obligation to monitor all activities on the Site but reserves the right to do so and to keep and disclose whatever information we consider necessary to the relevant authorities should it prove necessary, and to remove any information (to include but not be limited to commentary) the Business deems to be inappropriate.
Due to the nature of the Services it may be possible that a price may be incorrectly listed on the Site due to technological or human error and you are advised that neither the Business nor the seller is under any obligation to provide any goods or services at an incorrect price even after receipt of an order or any other notification of the same. The Business shall be under no liability to you in respect of anything, which notwithstanding this provision may constitute a breach of this Agreement arising by reason of force majeure which includes (inter alia) an Act of God and failure of any third party.
This Agreement contains the full and complete understanding between the parties and supersedes and replaces all prior arrangements, terms, representations and understandings whether written or oral relating to the subject matter of this Agreement and neither you nor the Business shall be bound by any variation or addition to this Agreement unless agreed in writing and signed by duly authorised representatives from both sides. In the event of any inconsistency between the terms of this Agreement, the Site, and/or any other third party terms and conditions the terms of this Agreement shall prevail. This Agreement and any disputes arising hereunder shall be governed by and construed in accordance with the laws of the Australia and be subject to the exclusive jurisdiction of the Australian courts.