TERMS OF SERVICE
These Terms of Service (Terms) set out the terms and conditions upon which Death to Stock Limited, a New Zealand company (7603576) trading as Death to the Stock Photo or Death to Stock (we or our or us) provide access to our online service located at deathtothestockphoto.com (Service).
Please read these Terms carefully. By accessing or using the Service or any of the Content, you will be bound by these Terms.
If you do not accept these Terms, you should not access or use the Service or any of the Content.
1.
DEFINITIONS
1.1
For the purposes of these Terms, the following terms have the following meanings:
Content means any photographs, illustrations, videos, images or other visual works or content that we make available for downloading via the Service;
Content Licence means our Licence Terms and Conditions located here
Membership means a Brand Membership or Agency Membership, as those terms are defined in the Content Licence; and
you or your means the person who accesses or uses the Service or Content.
2.
YOUR RIGHT TO USE THE SERVICE
2.1
The Service is provided for the purpose of supplying users with information about our products and services, and to enable users to download or access Content. We grant to you and you accept, a non-exclusive, non-sublicensable, non-transferable licence to access and use the Service solely for such purposes.
2.2
You must be at least 18 years of age to access and use the Service and Content, or have permission from your parent or caregiver or guardian to do so. Otherwise, you may not access or use the Service or Content for any purpose.
3.
CONTENT
3.1
To download or use the Content via the Service, you must agree to be bound by our Content Licence.
3.2
In the event of any conflict or inconsistency between these Terms and the terms and conditions of the Content Licence, the terms and conditions of the Content Licence will prevail.
3.3
If we have issued you with any Membership or user credentials in connection with the Service, such as a user login, account name or password, you are responsible for keeping that information secret and secure. You must not permit any other person to use your Membership or user credentials. You must immediately notify us of any unauthorised use of your Membership or user credentials, and in such event we may take such actions as we deem reasonably necessary in order to maintain or enhance the security of the Service, including by temporarily suspending your Membership or your access to the Service or resetting any or all user passwords.
3.4
You are responsible for making sure that your Membership or user details are kept up to date and are accurate. We are not responsible for any loss, damage, cost or expense arising as a result of any failure by you to keep your Membership or user details up to date, or as a result of any inaccurate information provided by you.
3.5
We may update, remove or add to the Content available via the Service without notice to our members or other users. While we are continuing to work towards increasing the volume of Content available via the Service, we do not warrant or represent that any particular Content will be available via the Service.
4.
SERVICE USE
4.1
To use the Service, you will need compatible devices and operating systems, and internet access. It is your responsibility to ensure that your software, hardware and systems are able to operate with the Service, and meet any minimum specifications that may be notified by us to you from time to time. Please note that these minimum specifications may change over time as we make further changes and improvements to the Service, and it is your responsibility to ensure that your software, hardware and systems maintain compatibility with the Service.
4.2
If you have not purchased a Membership from us, or if your Membership has terminated, we may at any time block, limit or suspend your access to the Service and Content, and we are not obliged to state a reason for such action, nor will we be liable to you as a result of any such actions.
4.3
You must not attempt to do any of the following things:
(a)
use the Service in any unlawful manner;
(b)
damage, disable, interfere with or harm the Service, or any network or system underlying or connected to the Service, in any way whatsoever;
(c)
modify, adapt, translate, reverse engineer or decompile any part of the Service, or any software comprising or underlying the Service, or in any manner attempt to derive the source code of any such software;
(d)
use any robot, spider, site search/retrieval application, or other device or technological process to retrieve or index any portion of the Service, except as expressly authorised by us in writing; or
(e)
encourage, assist or direct any other person to do any of the things set out in paragraphs (a) to (d) above.
If you do any of these things you will be responsible for any losses, damages, costs or expenses incurred or suffered by us as a result.
4.4
You acknowledge that:
(a)
the Service and Content are of significant commercial value to us and our licensors; or
(b)
except as expressly stated in these Terms or the Content Licence, no right or licence is granted to you in relation to the Service or Content.
4.5
You must not do any of the following:
(a)
copy any of the Content except as permitted under the Content Licence;
(b)
compile or extract the Content for the purpose of making such information available to others (whether as a directory or otherwise) with a view to a profit or for a fee or other consideration, except as permitted under the Content Licence; or
(c)
Use any proprietary trade mark of us or our licensors in a manner that is reasonably considered by us or our licensors to be a misuse or appropriation of that trade mark.
5.
SERVICE AVAILABILITY
5.1
We will use reasonable endeavours to keep the Service operational 24 hours a day, seven days a week. However, no warranty or representation is given that the Service will be uninterrupted or error-free.
5.2
We will endeavour to rectify any bugs, errors, defects or unexplained outages within the Service that we become aware of. However, no warranty or representation is given by us that any bugs, errors, defects or unexplained outages within the Service will be responded to or resolved within any particular time period, or that any resolution to a particular issue will be possible or practical from a technical or business administrative perspective.
5.3
You acknowledge that:
(a)
the operation and availability of the systems and networks used by you to access the Service, such as computer systems and the Internet, may be unpredictable and prevent use of or access to the Service; and
(b)
there may be occasions where some or all of the Service is unavailable, for example to permit maintenance, or due to unexpected or uncontrollable outages. We will use reasonable endeavours to notify users in advance of any significant planned service outages.
5.4
You must not use the Service for any purpose that requires uninterrupted availability of the Service and where interruption of the Service may cause death, personal injury, physical injury or property damage.
6.
FEES
6.1
The following terms and conditions will apply to any purchase by you of a Membership:
(a)
we will notify you of the applicable Membership fees at the time of purchase, and any changes to those Membership fees if you seek to make changes to your Membership (for example, if you decide to change your Membership type from a Brand Membership to an Agency Membership);
(b)
we may change your Membership fees at any time upon giving you at least 30 days’ prior written notice. Any such change will apply to the Membership fees payable by you after the expiry of that notice period. You may avoid paying the changed Membership fees by terminating your Membership prior to the expiry of that notice period;
(c)
all Membership fees are payable in advance. We will not activate your Membership until we have confirmed that the applicable Membership fees have been paid; and
(c)
we are not required to refund to you any Membership fees paid by you if you change your mind about the Service, if you decide that you no longer need the Service, or if you decide to change to a less expensive Membership.
6.2
If you purchase any Content under an Extended Licence (as that term is defined in the Content Licence) we will notify you of the applicable licence fees at the time of purchase. You must pay all such licence fees in advance before we will activate your Extended Licence. All such licence fees are non-refundable except in the circumstances specified in the Content Licence.
6.3
All Membership fees or other licence fees payable by you are payable in the currency specified by us at the time of purchase.
6.4
We may use third-party payment platform providers to process and collect any Membership fees or other licence fees payable by you. Those third-party payment platform providers may have their own policies and procedures that users must adhere to. We are not responsible for the acts or omissions of any third-party payment platform provider, as we have no control over their business operations or practices.
7.
DATA SECURITY AND PRIVACY
7.1
In the course of providing the Service we may collect, use, disclose, and hold personal information and other data about identifiable individuals, as well as other data about you and your business affairs, employees, users, and customers. This information will be used, disclosed and held by us in accordance with our Privacy Policy.
7.2
You acknowledge that you have read our Privacy Policyand accept its terms and conditions. You acknowledge that our Privacy Policy may be amended or reviewed from time to time and that your continued use of the Service after notification of such amendments or revisions will constitute acceptance of those amendments or revisions.
7.3
If you provide us with any personal information about any third party, then you warrant to us that you have obtained all necessary consents and authorisations from that third party to enable us to collect, use, disclose and hold such personal information in accordance with our Privacy Policy.
8.
THIRD PARTY SITES
8.1
We are not responsible for any content or information on any website that is linked to the Service (including any content or information on any website of any advertiser), as we have no control over such websites. We include such links for your convenience and you should not consider such linking as an endorsement by us of any business, product, service or information on that website.
9.
LIABILITY
9.1
YOU ACKNOWLEDGE THAT:
(a)
WE ARE NOT RESPONSIBLE FOR ANY LOSS OR CORRUPTION OF ANY DATA OR OTHER INFORMATION CONTAINED WITHIN OR CREATED USING THE SERVICE. YOU ARE RESPONSIBLE FOR ENSURING YOUR OWN BACKUP OF ANY DATA ACCESSED FROM THE SERVICE;
(b)
IN ENTERING INTO THESE TERMS, YOU DO NOT RELY ON ANY REPRESENTATION, WARRANTY, TERM OR CONDITION THAT IS NOT EXPRESSLY PROVIDED IN THESE TERMS; AND
(c)
ALL CONDITIONS, WARRANTIES OR OTHER TERMS IMPLIED BY STATUTE OR COMMON LAW ARE EXCLUDED FROM THESE CONDITIONS, TO THE FULLEST EXTENT PERMITTED BY LAW.
9.2
WITHOUT LIMITING THE SCOPE OF CLAUSE 9.1 WE DO NOT GIVE ANY WARRANTY, REPRESENTATION OR UNDERTAKING IN RELATION TO THE SERVICE, INCLUDING:
(a)
ABOUT THE EFFICACY OR USEFULNESS OF THE SERVICE, OR ABOUT ANY FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY;
(b)
THAT THE SERVICE WILL BE FREE FROM BUGS, DEFECTS, ERRORS OR OUTAGES, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR SECURITY INTRUSION; OR
(c)
THAT ANY INFORMATION GENERATED OR ACCESSIBLE VIA THE SERVICE WILL BE ACCURATE OR COMPLETE.
9.3
IN NO EVENT WILL WE BE LIABLE (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR IN ANY OTHER WAY) TO YOU FOR:
(a)
LOSS OF REVENUE OR PROFIT, LOSS OF ANTICIPATED SAVINGS, LOSS OF GOODWILL OR OPPORTUNITY, LOSS OF PRODUCTION, LOSS OR CORRUPTION OF DATA OR WASTED MANAGEMENT OR STAFF TIME; OR
(b)
LOSS, DAMAGE, COST OR EXPENSE OF ANY KIND WHATSOEVER THAT IS INDIRECT, CONSEQUENTIAL, OR OF A SPECIAL NATURE,
ARISING DIRECTLY OR INDIRECTLY FROM YOUR USE OR ACCESSING OF THE SERVICE, EVEN IF WE HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGE, COST OR EXPENSE, AND EVEN IF SUCH LOSS, DAMAGE, COST OR EXPENSE WAS REASONABLY FORESEEABLE BY US.
9.4
IN NO EVENT WILL OUR TOTAL LIABILITY UNDER ANY CLAIM OF WHATEVER NATURE ARISING DIRECTLY OR INDIRECTLY FROM YOUR USE OR ACCESSING OF THE SERVICE EXCEED:
(a)
US$10.00; OR
(b)
THE MEMBERSHIP FEES OR LICENCE FEES ACTUALLY PAID BY YOU IN THE 12 MONTH PERIOD BEFORE THE DATE SUCH LIABILITY FIRST AROSE.
9.5
None of the exclusions or limitations set out in these Terms will have the effect of limiting or excluding any form of liability where such liability cannot be so limited or excluded under applicable law. Nor will they have the effect of limiting or excluding any form of liability expressly assumed by us under the Content Licence.
10.
INDEMNITY
10.1
You agree to defend, indemnify and hold harmless us and our officers, employees and agents against any and all liabilities, losses, damages, costs and expenses that may arise as a result of:
(a)
any breach by you of these Terms; or
(b)
any damage or injury to persons or property arising from your accessing or using the Service or Content in any unauthorised manner.
11.
MODIFICATIONS
11.1
We reserve the right to modify these Terms at any time. In the event of a modification, we will endeavour to notify users by email, by posting a notification of the change on the Service, or by other means. Your continued use of the Service following any such notification will be regarded by us as acceptance by you of those modifications. No other amendment or modification to these Terms will be effective unless in writing and signed by an authorised representative of us.
12.
GENERAL
12.1
We will not be liable for any failure to provide the Service or any Content due to an event of Force Majeure. For the purposes of this clause 12.1, Force Majeure includes any inability to obtain supplies or labour, industrial disputes, delays, act of God, fire, flood, storm, adverse weather conditions, pandemic, or other matters beyond our reasonable control.
12.2
You may not sell, assign, transfer, novate, charge, pledge or otherwise encumber or any of your rights or obligations under these Terms. We may assign, transfer or novate any of our rights or obligations under these Terms, without requiring your consent.
12.3
No failure or delay by either party to exercise any right or remedy under this Licence will be treated as a waiver of such right or remedy. No single or partial exercise of any right or remedy will prevent the further exercise of such right or remedy.
12.4
These Terms contain the whole of the contract and understanding between the parties relating to the matters covered by them. These Terms supersede all prior representations, agreements, statements and understandings between the parties relating to those matters, whether verbal or in writing.
12.5
New Zealand law governs the formation, validity, construction and performance of these Terms. The parties irrevocably agree that the courts of New Zealand will have non-exclusive jurisdiction to hear and determine all disputes under these Terms. The parties irrevocably waive any objections to New Zealand as the forum for proceedings on the grounds of forum non-conveniens or on any similar grounds.