Terms & Conditions
MTP and Brandworks Image Use Licensing Agreement
A. RIGHTS DEFINITIONS AT POINT OF SALE
Single-use, non-exclusive, royalty-free licence for the following: Print: reproduction, distribution and communication of the image for the purposes of advertising, promotion, presentations, catalogues, brochures and promotional postcards, the limit of 1,000 copies. Digital uses websites, in online advertising, broadcast media, in social media, in mobile advertising, mobile “apps”, software, e-cards, e-publications (not for sale, like e-books, e-magazines, etc.), and in online media. Editorial: For use in content as a visual reference to illustrate text. Personal non-commercial uses. Not for direct financial gain. Image may not be modified and combined with other works (the combination to make a ‘new’ digital image). Print copies limited to 1,000. Online use is unlimited. No application for products for resale (hard copies or digital). Print For-Profit Extended Licences: Each of the following, Additional Licences are available for purchase in addition to single use Basic Licence:
- (a) Unlimited print copies.
- (b) For use across multiple projects by a single organisation.
- (c) Use of Image on packaging of goods for sale or commercial distribution, for a period of three years from the first usage.
- (d) Use in digital products like mobile “apps”, software, e-cards, e-publications, e-books, e-magazines for sale, for a period of three years from the first usage.
- (e) Sensitive Use License. This license allows for the use of Content in a way that would otherwise be prohibited or restricted under Sections 3(b)(ii) & (iii) This license requires the permission of the photographer and the model(s) in the Content to be licensed and must be negotiated by contacting Mel Thornberry Photography on firstname.lastname@example.org. Please allow additional time when acquiring this license. Note Basic and Extended Licenses subject to Terms and Conditions: including usage restrictions, disclaimers and liability caps. Your use of the Image must be ‘transformative’ – combining the Image with text and other images to create something new. Images must not be reproduced for resale or distribution where the main value of the product lies in the Image itself, for example, mugs, t-shirts, posters, greeting cards, posters or other merchandise, or any “print on demand” service. If your intended use of an Image is not covered by the Basic or Extended Image licenses, please contact Mel Thornberry Photography at email@example.com and discuss a custom licence.
B. GENERAL TERMS AND CONDITIONS
Operation of Terms
(a) This service is provided by Mel Thornberry Photography ABN: 636 988 456 55
(b) By purchasing a Basic Licence and (if applicable) the Extended Licences (“Licence”) to exploit an Image by means of this website www.brandworksimagery.com.au (or other URL or platform operated by Mel Thornberry Photography), you are deemed to accept these Terms and Conditions.
(c) Licence Fees may be paid for by credit card or other payment service provided for on the Website, according to the terms of the relevant financial institution.
(d) Mel Thornberry Photography may provide you with a password to enable access to the Images. This must be kept in a secure place and must not be disclosed to any third party.
(e) If you breach any material term of these terms and conditions, we may terminate our agreement with you with or without written notice you.
(f) If you are purchasing on behalf of your employer or as an agent on behalf of a third-party principal, the employer or principal is deemed to accept these Terms and Conditions and you warrant and represent that you have the full right and authority to bind that employer or principal. In the event that you do not have such authority, you agree that you will be personally liable to Mel Thornberry Photography for any breaches of these Terms and Conditions.
(g) Each licence is for use in relation to one product, publication or project only.
(h) Except as provided for in this clause, you must not sub-license or assign the rights granted to you under any Licence. Should a third party wish to exercise those rights, they may purchase a Licence on their own account. You are permitted to transfer files containing the Image or permitted derivative works to a third party (such as a printer) temporary copies for the purpose of exercising the rights granted to you under a Licence.
Grant of Rights
(a) Mel Thornberry Photography grants you a non-exclusive, perpetual, worldwide, non-transferable license to use, reproduce or display the Image in accordance with the Licence selected by you.
(b) Except for the rights expressly granted to you under a Licence, you acknowledge that you do not have any right, title or interest in or to, the Image, including any copyright and other intellectual property rights.
(c) You agree to take all commercially reasonable steps to prevent third parties from reproducing or exploiting any Image without authorisation and to notify Mel Thornberry Photography at firstname.lastname@example.org If you become aware of any unauthorised use.
(a) No image may be used in connection with:
- (i) pornography, “adult videos”, adult entertainment venues, escort services, dating services, or the like; or
- (ii) advertisement or promotion of tobacco, firearms or any unlawful or illegal activity.
(b) You must not use the image in a manner which:
- (i) is obscene, disrespectful or defamatory to any person featured in the image, or is likely to bring any person or property featured in the Image into disrepute
- (ii) falsely implies that a person suffers from any medical condition, has committed or been convicted of any offence, identifies with any sexual orientation or otherwise misrepresents the person as having or not having any attribute;
- (iii) falsely implies that the creator of the Image, or the persons or property appearing in the Image (if any) uses or personally endorses any business, product, political party, service, cause, association or other endeavors;
- (iv) (where children are depicted) may be inappropriate;
- (v) violates or infringes the copyright or other intellectual property or other rights of any person or entity;
- (vi) treats the Image in a derogatory manner; or
- (vii) which is contrary to any law or regulation.
(c) Images must not be used in, or as, a trademark, service mark, logo or another indicator of origin.
(d) Images must not be posted online in a downloadable format or otherwise such as to enable an Image to be distributed or shared in any peer-to-peer or similar file sharing arrangement.
(a) You must not falsely represent or imply that the Image was created, or is owned by, you or any other person other than the copyright owner (as notified by Mel Thornberry Photography).
(b) You must not remove any notice of copyright, watermark, trademark or another intellectual property right, or other information that may appear on, embedded in, or in connection with the Image as downloaded.
(c) If and where commercially reasonable, your use of an image should be accompanied by a credit in the following form: “Image(s) © [year owner], used under license from Mel Thornberry Photography” If other stock content used by you is afforded credit, the Image supplied by Mel Thornberry Photography must receive an equally prominent credit.
Warranties, Disclaimers and Liability Limitations
(a) Mel Thornberry Photography warrants that:
- (i) it has secured the rights from the creators of the Image, to grant you the rights specified in the Licence you have purchased;
- (ii) the Image does not, to the best of Mel Thornberry Photography’s knowledge breach any law or regulation or infringe the rights of any third party;
- (iii) the creator of the Image has provided Mel Thornberry Photography with a release in respect of any person featured and identifiable in the Image (excluding Images where the depiction of the person is incidental, in the background, or does not show the person’s face);
- (iv) the Image is not, to the best of Mel Thornberry Photography’s knowledge subject to any claim or complaint from any third party; and
- (v) no fees, residuals or royalties will be payable by you to the creator of the Image in respect of your use of the Image, except as expressly notified to you at the time of purchase.
(b) Except as set out in clause 5(a) and subject to warranties which may not be excluded under Australian consumer law, Images are provided ‘as is’ without warranty of any kind. In particular, you acknowledge that Images may contain elements such as: trade or service marks; copyright works or subject matter; confidential information; or designs, that may require further clearance, which will be your sole responsibility to obtain.
(c) Mel Thornberry Photography will endeavour to ensure that information provided in respect of each Image is current and accurate, however, we do not accept liability for any loss or damage you may allege arising from any errors or omissions in this information.
(d) You will release from, and indemnify and hold Mel Thornberry Photography, its officers, employees, shareholders, directors, managers, members and Image creators, harmless against any damages or liability of any kind arising from:
- (i) any use of the Image other than the uses expressly permitted by your License, or any modification of the Image by you;
- (ii) the combination of the Image with any other work(s); and/or
- (iii) the context in which the Image has been used.
(e) You agree that, subject to requirements imposed by Australian consumer law:
- (i) Mel Thornberry Photography will not be liable for any general, punitive, special, indirect, consequential or incidental damages, or lost profits even if Mel Thornberry Photography has been advised of the possibility of such damages, costs or losses;
- (ii) Mel Thornberry Photography shall be under no obligation to issue refunds under any circumstances. In the event that Mel Thornberry Photography determines that you are entitled to a refund of all or part of the fees you paid, such refund shall be made using the payment method originally used by you to make your purchase; and
- (iii) the liability of Mel Thornberry Photography for any claim made in connection with an Image or these Terms and Conditions will be capped at the lower of:
- (A) such monies as Mel Thornberry Photography is able to recover from the creator who supplied the Image to Mel Thornberry Photography; and
- (B) AUD$2000.
Returns will only be considered based on technical issues with the file. All requests for refunds/cancellations must be made in writing to email@example.com. If the request is approved, Mel Thornberry Photography will issue a refund to your credit card. If cancelled, your rights to use the content terminate, and you must delete or destroy any copies of the file.
Please note that for your security Mel Thornberry Photography requires all photographers contributing Images to our site to warrant that they own all rights in the Images they provide and that the Images are free from any third-party claim or liability. However, in the unlikely event that an issue arises due to a contributor providing an incorrect warranty (or for any other reason), Mel Thornberry Photography may need to take action to mitigate liability. This may include sending you a notice requesting you to cease or limit the use of the image you have licensed from the site. In this event, you agree that you will use best endeavours to comply with any such notice provided by Mel Thornberry Photography. Mel Thornberry Photography will work with you to arrange for the provision of a replacement Image free of charge.
(a) These Terms constitute the entire agreement between the parties and supersede all prior agreements, understandings, and representations. Mel Thornberry Photography may update these terms from time to time by written notice to you.
(b) This Agreement will be governed by and construed in accordance with the laws of New South Wales and the parties submit to the exclusive jurisdiction of the courts of New South Wales.
Brandworks Imagery is a subsidiary of Mel Thornberry Photography and holds rights regarding Brandworks Imagery. All photographs, images and digital files remain the property of Mel Thornberry Photography. Mel Thornberry Photography retains the ownership and copyright to all images and photographs on Brandworks Imagery.