Last updated: 13th May 2020
DAY Investments Limited (“the Provider”) provides stock-image licensing services and grants the Customer (as defined below) a licence to use the Photographic Works in accordance with the following Standard Licence Terms and Conditions.
- (a) The Parties acknowledge and agree that the Licence will apply to all Photographic Works licensed by the Provider to the Customer.
- (b) Acceptance of this Licence shall occur:
- (1) Upon payment of the Licence Fee;
- (2) By the Customer confirming acceptance of this Licence (whether in writing, verbally, or through the Site); and/or
- (3) Upon the Customer using (including copying, downloading, publicising in any form (including on the internet)) the Photographic Works or any part of the Photographic Works, whichever occurs first.
2. GRANT OF LICENCE
- (a) In consideration for the Licence Fee and subject to this Licence, the Provider grants the Customer a non-transferable and non-exclusive right, authority and licence to use, reproduce and the publish the Photographic Works:
- (1) for personal use; and
- (2) for commercial use, provided that the Photographic Works are not used for or featured on:
- (a) calendars;
- (b) postcards;
- (c) e-cards;
- (d) posters;
- (e) photobooks; or
- (f) any other publications similar to (a) – (e) above.
- (b) Should the Customer wish to use the Photographic Works for any of the commercial purposes set out in subclause (a)(ii) above, the Customer shall contact the Provider to obtain an additional licence for its intended use(s). Any additional licence granted by the Provider shall be:
- (1) Granted at the Provider’s sole discretion;
- (2) Subject to payment of an additional Licence Fee to be agreed in writing between the Parties; and
- (3) Subject to this Licence, unless otherwise agreed in writing between the Parties.
- (c) The licence granted in sub-clauses (a) and/or (b) above:
- (1) Begins from full payment of the Licence Fee; and
- (2) Continues perpetually unless terminated pursuant to clause 14 or the licence expires following an agreed term / period.
- (d) The Customer is entitled to:
- (1) Use only a portion of the Photographic Works; and/or
- (2) Manipulate, distort or make other alterations (including overprinting by text or other photographic works) to the Photographic Works.
- (e) Notwithstanding subclause (d) above, the Customer’s right to use, reproduce and publish the Photographic Works under this Licence does not include the right to remove, alter or otherwise affect general rights information, including (without limitation) any notices or metadata accompanying or part of the Photographic Works which records creator details, copyright ownership or publication status of the Photographic Works. Where the Provider has placed restrictions on access to or use of the Photographic Works, the Customer shall not defeat (or attempt to defeat) such restrictions.
- (f) Any breach of this Licence by the Customer which results in damage to the professional reputation of the Provider, entitles the Provider to compensation from the Customer for that damage in addition to any other remedies available to the Provider.
- (g) Notwithstanding any other provision in this Licence, the Provider shall be entitled to:
- (1) Use the Photographic Works in any manner, at any time and in any part of the world for:
- Advertising or otherwise promoting the Provider’ services and business, including on its websites, publications and through the use of social media; and/or
- Any other purpose within the Provider’ business activities.
- (2) Licence the Photographic Works to third parties, on terms agreed between the Provider and those third parties.
- (a) In consideration for the rights and benefits conferred to the Customer under this Licence, the Customer shall pay the Provider, in full and without set off or deduction, the Licence Fee using one of the methods / services made available on the Site from time to time (unless otherwise agreed in writing). These methods / services may include (but are not limited to) payment by:
- (1) Credit card;
- (2) Paypal; and/or
- (3) Direct credit into a bank account nominated by the Provider.
- (b) Unless otherwise agreed in writing, the Customer’s rights to use the Photographic Works granted under this Licence are subject to payment of the full Licence Fee.
- (c) All Licence Fees are in New Zealand Dollars and are exclusive of 15% GST unless otherwise specified.
4. Photographic Works Format
The Customer acknowledges that:
- (a) All Photographic Works supplied by the Provider to the Customer were developed for the Provider’s purposes and without consideration of any purpose for which the Customer might use them, are made available on an “as is” basis for the Customer’s use only. The Provider makes no representations or warranties as to the sufficiency or appropriateness of the Photographic Works for any purpose for which the Customer may use them;
- (b) Unless expressly agreed between the Parties (either through the Site or otherwise in writing), the Provider is not obliged to provide copies of the Photographic Works in any particular electronic, physical or editable formats, and copies of the Photographic Works may (at the Provider’s discretion) be provided in any print, electronic or non-editable electronic form; and
- (c) The Provider is unable to offer refunds once the Photographic Works have been supplied to the Customer or otherwise downloaded from the Site.
5. Copyright and moral rights of photographic works
- (a) All rights to title in the Photographic Works are owned by the Provider or its licensors. This Licence does not convey title or grant any rights of ownership in the Photographic Works to the Customer.
- (b) Copyright in any new Photographic Works created from any manipulation, alteration, distortion or overprinting of text or other photographic works of the licensed Photographic Works shall remain with the Provider and shall be licensed to the Customer on the terms of this Licence.
6. Customer’s Obligations
- (a) Unless otherwise agreed in writing by the Parties, the Customer shall not:
- (1) Use or publish the Photographic Works, except as expressly permitted by this Licence;
- (2) Sell, assign, sublicense or otherwise transfer or deal with the Photographic Works other than in accordance with this Licence;
- (3) Permit third parties to have access to the Photographic Works in any form;
- (4) During or at any time after the expiry or termination of this Licence, question or dispute the Provider’s ownership of the Photographic Works; and /or
- (5) Cause or permit anything that may damage or endanger the Photographic Works.
- (b) The Customer shall supervise and control the use of the Photographic Works in accordance with the terms of this Licence.
7. Storage and backups
The Customer acknowledges that the Customer is responsible for the storage and backup of the Photographic Works supplied by the Provider under this Licence. While the Provider will follow its usual backup procedures for the Photographic Works, the Provider shall not be liable under any circumstances if it is unable to produce backups or future reproductions of the Photographic Works upon the request of the Customer. Where backups are available, these may be made available to the Customer for a fee.
8. ACKNOWLEDGMENT OF CUSTOMER
The Customer acknowledges that prior to the Provider granting any licence to the Customer:
- (a) The Customer has had a reasonable opportunity to or has inspected the Photographic Works;
- (b) The Customer is satisfied as to the nature and quality of the Photographic Works and as to their intended purposes and uses; and
- (c) The Customer has not in any way relied on any representation (actual or implied) by the Provider as to the suitability and/or fitness of the Photographic Works for the Customer’s intended or potential purposes and uses.
- (a) The Provider warrants and represents to the Customer that:
- (1) The Provider is the exclusive owner, or duly authorised licensee, of the Photographic Works and has the right and authority to license the Photographic Works to the Customer on the terms of this Licence; and
- (2) To the best of its knowledge, this Licence does not infringe the Intellectual Property Rights of any third party.
- (b) Except as provided in subclause (a) above, the Provider disclaims to the fullest extent permitted by law all other warranties (express or implied) including without limitation, any implied warranties of merchantability, characteristics, performance, content, satisfactory quality or fitness for a particular purpose with regard to the Photographic Works.
10. EXCLUSION OF LIABILITY
11. Limitation of liability
In the event that any exclusion, limitation or provision contained in this Licence is invalid for any reason and/or if the Provider becomes liable for any loss, damage, claim or expense of any kind, such liability is limited to the Licence Fee paid by the Customer.
The Customer shall indemnify and hold harmless the Provider in respect of any costs, losses, liabilities, claims, demands, or damages incurred or suffered by the Provider (including legal costs on a solicitor-client basis) arising out of or incidental to the Customer’s unauthorised use of the Photographic Works under this Licence or any default or breach of the Customer’s obligations under this Licence.
13. Consumer guarantees act 1993
The Consumer Guarantees Act may apply to the licensed Photographic Works if the Customer acquired those licensed Photographic Works for personal, household or domestic use. If the Customer is licensing the Photographic Works for business purposes, the Customer’s rights are subject to this Licence only and all guarantees, warranties, rights or remedies implied by the Consumer Guarantees Act 1993, sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986, or any similar statutes, are expressly excluded to the maximum extent permitted by law.
This Licence shall immediately and automatically terminate and all rights in the Photographic Works conferred upon the Customer shall be immediately revoked if:
- (a) The Customer breaches this Licence;
- (b) The Customer takes any action or causes or induces or supports any action to call into question the validity or enforceability of this Licence or the proprietary nature of the Photographic Works;
- (c) The Customer commits an act of bankruptcy or makes any assignment or composition with its creditors;
- (d) Liquidation or bankruptcy proceedings are commenced for the Customer;
- (e) The Customer has a receiver, manager or statutory manager appointed; or
- (f) A licence upon which the Provider relies in order to grant rights to the Customer under this Licence (if any) is terminated or expires.
15. Consequences of termination
Upon termination of this Licence for any reason whatsoever:
(a) The termination of this Licence shall be without prejudice to the rights and remedies of the Provider in respect of any prior breach of this Licence by the Customer.
(b) The Customer shall:
- (1) Cease use of all Photographic Works and shall within 7 days of termination delete or deliver to the Provider all documents and items in its possession or control (including electronic data, files and records) containing or constituting the Photographic Works; and
- (2) Certify in writing that all such materials have been supplied to the Provider or deleted, and that none are held by the Customer.
The Customer shall inform the Provider in writing as soon as practicable if the Customer becomes aware of any unauthorised use or proposed unauthorised use by any Person of the Photographic Works.
17. Confidential information
- (a) Unless otherwise agreed in writing, the Parties shall, at all times keep the following information (“Confidential Information”) in whatever form (including electronic) confidential (whether disclosed before or after this Licence comes into effect):
- (1) The contents of all negotiations between the Parties (if any);
- (2) The other Party’s Intellectual Property;
- (3) Information relating to the other Party’s business; and
- (4) Information disclosed by either Party to the other on the express basis that such information is confidential, or which might reasonably be expected by either Party to be confidential in nature.
- (b) The Parties must not use any Confidential Information supplied by the other Party for any purpose other than the performance or exercise of this Licence.
- (c) Confidential Information must be returned or destroyed upon termination of this Licence or otherwise upon request of the Party that supplied the information.
- (d) The obligations in subclauses (a) to (c) above shall apply except:
- (1) As authorised in writing by the Party that supplied the information;
- (2) As reasonably required on a “need to know” basis to officers, employees, and professional advisers of the Party for the purposes of implementing the Licence, provided such Persons have agreed to keep the Confidential Information confidential;
- (3) As required by law; or
- (4) To the extent that any Confidential Information is already or becomes public knowledge, other than as a result of a breach of this Licence.
- (e) Notwithstanding any other provision in this Licence, where information or material relates exclusively to one Party, nothing in this Licence shall require that Party to maintain confidentiality in respect of that information or material.
18. Force Majeure
The Provider shall not be liable in any way whatsoever for any delay or breach of this Licence caused directly or indirectly by war, acts of God, strikes, lockouts, labour disputes, riots, government action or interference, fire, earthquake, volcanic eruption, accidents, interruption to transportation or telecommunications, or any other cause beyond the Provider’s reasonable control.
19. ENTIRE AGREEMENT
This Licence constitutes the entire agreement between the Parties and supersedes all prior representations, agreements, licences, statements and understandings, whether verbal or in writing, on the subject matter of this Licence.
- (a) The Customer may not assign any of its rights, duties or obligations under this Licence (including any licence granted to it by the Provider) without the prior written consent of the Provider, which shall be granted at the Provider’s sole discretion.
- (b) The Provider may assign or novate its rights, duties and obligations under this Licence by written notice to the Customer.
21. Survival of Licence
The covenants, conditions and provisions of this Licence capable of having effect after the termination of this Licence shall remain in full force and effect following termination of this Licence.
22. GOVERNING LAW AND JURISDICTION
This Licence shall be construed in accordance with and governed by the laws of New Zealand and the Customer submits to the non-exclusive jurisdiction of the New Zealand courts in respect of all matters relating to the Photographic Works and this Licence.
23. Variation or Waiver
- (a) The provisions of this Licence shall not be varied except by agreement between the Parties in writing.
- (b) No right, duty or obligation in this Licence shall be deemed to be waived except by agreement between the Parties in writing.
If any provision or part of any provision of this Licence is for any reason declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable it shall not affect the legality, validity or enforceability of the other provisions or part provisions of this Licence and shall be severed from this Licence so that the remaining provisions or part provisions of this Licence remain in full force and effect.
Notices pursuant to this Licence can be delivered in person, by email or by post to:
- (a) the Customer at the Customer’s address as notified to the Provider, or the Customer’s usual email or postal address; or
- (b) The Provider at 5 Kingdon Street, Newmarket, Auckland 1023 or firstname.lastname@example.org.
Addresses for communications may be updated from to time.
26. Definitions of capitalised words
In this Licence, the following meanings apply:
(a) “Copyright” means, by virtue of the Copyright Act 1994, (or equivalent law if the Territory is outside New Zealand) the copyright subsisting in original works that are part of, or incidental to, the Photographic Works;
(b) “Customer” means the Person obtaining the benefit of the licence granted by the Provider under this Licence, and may include any Person(s) acting as an agent and/or on behalf of a company and/or trust and/or partnership;
(c) “ NZ Photos” and “the Provider” means DAY Investments Limited, a duly incorporated company having its registered office in Auckland, New Zealand;
(d) “Intellectual Property” or “Intellectual Property Rights” mean patentable material, patents, copyright, trade marks (including names, labels, get-up, logos, patterns or other identifying marks), designs, rights in software and designs, and any other right granted by operation of law which confers protection on any written or artistic work created by intellectual effort (including, without limitation, rights in graphics, text, processes, music, videos, sounds, pictures, compilations, templates, page layout, digital conversion or other materials) and all associated intangible assets created as a by-product (including, without limitation, brands, trade names, services, methods, techniques, configurations, know-how, confidential information, methods, concepts and ideas);
(e) “Licence Fee” means the amount payable by the Customer (as agreed between the Parties through the Site or otherwise in writing) in consideration for the Customer’s licence of the Photographic Works and associated rights as detailed in this Licence;
(f) “Licence” means these Standard Licence Terms and Conditions;
(g) “Parties” means the Customer and the Provider, and “Party” means one of them;
(j) “Person” includes references to any natural person, company, corporation, firm, partnership, joint venture, society, organisation or other group or association of persons (whether incorporated or not), trust, state or agency of state, statutory or regulatory body, local authority, government or governmental or semi-governmental body or agency (in each case whether or not having separate legal personality);
(k) “Photographic Works” means any or all of the photographs and other artistic works (in any format or medium) supplied by the Provider to the Customer under this Licence;
(l) “Site” means the stock-image licensing website operated by NZ Photos at https://nz.photos.
27. Rules of Interpretation
In this Licence, under the context otherwise requires:
- (a) References to any Party shall mean and include a reference to that Party, its successor, executors or personal representatives (as the case may be), and transferees;
- (b) Where more Parties than one are covenanting Parties, the covenants expressed or implied in this Licence bind the covenanting Parties jointly and each of them severally;
- (c) Any reference to legislation, statute, regulation, ruling, code, rules or ordinance includes reference to any modification, substitute for, consolidation or re-enactment of it and any regulation, order in council or other instrument from time to time made or issued under such legislation, statute, regulation, ruling, code, rules or ordinance;
- (d) Headings are for convenience only and do not affect the interpretation of this Licence except for use as cross-references; and
- (e) Any covenant not to do anything shall also constitute an obligation not to suffer, permit, cause or assist any other Person to do that thing.