Ph.Art > Terms of use

Website terms & conditions

http://www.phartgallery.com
Ph.Art Gallery Pty Ltd
As at 16/10/2008

1 Terms and conditions

In these terms and conditions, "we", "us", “Ph.Art” and "our" means Ph.Art Gallery Pty Ltd.  Please read these terms and conditions carefully as they apply to your use of our web pages and website (Website) and the services offered by us on the Website as described in clause 2 (the Service) below.  By accessing and using the Website and the Service you agree to be bound by these terms and conditions, as they may be amended by us from time to time.  Pursuant to clause 10 of this document, we may revise these terms and conditions by updating this posting and the revised terms will take effect automatically when they are posted.
These terms and conditions will apply subject to anything to the contrary in an applicable membership agreement.

2 The Service and fees

1. The Website provides:
   1. an online gallery of digital photographs, which Ph.Art displays, exhibits, and offers for licence to third parties;
   2. a portal for members to upload and manage their digital photographs;
   3. a portal for customers and licensees to view digital photographs held in the various Ph.Art galleries;
   4. an online store that allows third parties to purchase physical goods bearing a duly licensed image;
   5. a portal for members to interact via the Website with other members and discuss their works;
   6. general information and advice regarding digital photography;
   7. and a portal for franchisees and prospective franchisees, providing information regarding Ph.Art’s franchise operations, access to training and promotions, and a secure communications facility with Ph.Art
      (collectively, the Service).
2. You may access our Website free of charge on the terms and conditions outlined in this document.  However, we reserve the right at any time to change or amend any fees payable by you upon becoming a member, any subsequent renewal of your membership or any other variation or amendment of the terms and conditions which cover the payment of such fees in respect of your access or use of any part of the Website and/or the Service.  A notice period of not less than 90 days will be provided to all members if any new or additional fees are to be imposed.

3 Registration

You may browse limited aspect of the Website without prior registration.  However, you may be required to register with us in order to access additional elements or areas of the Website or to make use of particular facets of the Service.  Where you are required to register with you, you will be prompted to do so by our Website.  It is a condition of us granting you access to our Website that:

1. any information you provide us with accurate, complete and up to date  and is not misleading in any material manner;
2. you agree to safeguard any user name and password which we provide to you;
3. you authorise us to assume that any person using the Website or Service with your user name and/or password is either you or is authorised to act for you;
4. where your user name and/or password is specific to you, you must not allow anyone else to use your username and/or password;
5. you agree to immediately notify us of any unauthorised use of your user name and/or password or any breach of security of which you become aware;
6. you may cancel your registration at any time by notifying us, subject to any applicable policy concerning the refund or partial refund of membership fees which may apply from time to time;
7. andwe reserve the right to discontinue or cancel your registration in our sole discretion without notice if you:
   1. do not visit the Website or use the Service for a period exceeding 24 calendar months;
   2. breach any of these terms and conditions, or a membership agreement entered into by you or any applicable law generally;
   3. orengage in conduct which we conclude will impact on our name or reputation, or will violate our rights or those of another party.

4 Licence to use the content on the Website

1. You acknowledge that the Website, the Service and all related content, including the PH.ART trade mark and associated logos and slogans, and any software, are subject to copyright and other intellectual property rights including trade mark rights (Intellectual Property Rights).  You acknowledge that all Intellectual Property Rights are owned by Ph.Art, or have been licensed to Ph.Art, and that you shall have no interest whatsoever in the Intellectual Property Rights other than as expressly granted to you in this document, an applicable membership agreement, or otherwise in writing duly signed by us.
2. Subject to the terms of any applicable membership agreement or purchase contract entered into by you. we grant you a limited, non-transferable licence to access and use the Website and the Service for purposes relating to the Ph.Art gallery and:
   1. in the case of members – for your personal, non-commercial purposes, and for commercial purposes relating to uploading and managing digital photographs for commercialisation and licensing or offering for licence that content, and including use of the Ph.Art trade mark(s) to indicate that digital photographs uploaded by you to the Website are located on the Website;
   2. in the case of customers or licensees – for the purposes of viewing, selecting, requesting and obtaining licences for digital photographs from the Website, including any consequential commercial purposes;
   3. in the case of franchisees – for the purposes of entering into or operating Ph.Art franchise activities via the Website, including commercial purposes; and
   4. in the case of any other person – for your personal, non-commercial purposes only,
   and only for these purposes.  If you wish to use the Website and the Service for any other purpose, you must first obtain the prior written consent of Ph.Art.
3. We (or our licensors) retain all right, title, and interest in and to the Website, the Service and all related content, and nothing you do on or in relation to the Website, the Service or any of the related content will transfer any Intellectual Property Rights to you or, except for the licence referred to in paragraph (b), licence you to exercise any Intellectual Property Rights unless this is expressly stated.
4. Except as provided in these terms and conditions:
   1. printing, reproducing by electronic or other means, downloading, retransmitting or otherwise copying or making available to the public the Website, the Service or any related content in whole or in part for any other purpose; or
   2. using any trade mark appearing on the Website or as part of the Service, or any substantially identical or deceptively similar trade mark;
   
   is expressly prohibited, unless prior written consent is obtained from us, which may be refused in our absolute discretion and without giving reasons.  You may contact us at admin@phartgallery.com if you wish to request such consent.
5. Subject to applicable law, we may revoke the permission referred to in paragraph(s) (b) and (d)at any time and may suspend or deny, in our sole discretion, your access to all or any portion of the Website or the Service without notice.

5 Use of the Service and User Content

1. The Website and the Service may contain material or content (including digital photographs) uploaded, posted, emailed or otherwise electronically transmitted (Posted) by users of the Website, including you (User Content).  We reserve the right, without notice to you, to:
   1. access or examine any User Content;
   2. at our discretion, move, remove or disable access to User Content which we consider, in our sole opinion, to breach any law or these terms and conditions or to be otherwise unacceptable; and
   3. edit any User Content (including the entry or amendment of any related metadata).
2. You acknowledge that we may remove any User Content Posted by you at our sole discretion and that we have no responsibility or liability for the deletion or failure to store any communications or content Posted on the Website or through the Service.
3. If you use the Website or the Service, you are solely responsible for any User Content Posted by you.  In using the Website or Service, you must not:
   1. violate any applicable laws;
   2. impersonate any person;
   3. Post any User Content that:
      1. infringes the intellectual property rights of any third party or Post User Content that you do not have the legal right to Post;
      2. is unlawful, harmful, threatening, abusive, misleading, invasive of another's privacy, harassing, defamatory, slanderous, vulgar, obscene, hateful, racist, embarrassing or otherwise objectionable to any other person or entity;
      3. contains any unsanctioned advertising, promotional materials, or any other forms of unsanctioned solicitation, including without limitation junk mail, spam, chain letters, or any unsolicited mass distribution of email; or
      4. contains a survey, contest, or pyramid scheme;
   4. stalk, harass or otherwise harm other users;
   5. distribute viruses, corrupted files, or any other similar software or programs that may damage the operation of any computer hardware or software;
   6. collect or store personal data about other users of the Website or the Service; or
   7. engage in any other conduct that inhibits any other person from using or enjoying the Website or the Service.
4. You must not under any circumstances resell, or offer or purport to sell, the Service, or access to the Website, to any other party.
5. All contributors of User Content to the Ph.Art website have told Ph.Art that all such User Content has been cleared where required.

6 Your representations and warranties

You represent and warrant that:

1. all User Content that you Post is true, accurate and not confidential to or owned by any other person;
2. you will not use the Website or the Service for any purpose that is unlawful or prohibited by these terms and conditions; and
3. all User Content Posted by you is owned by you and our use of such User Content does not infringe or violate the intellectual property rights or any other rights of anyone else.  You licence us to use, modify, adapt, publish, display, sublicense, create derivative works from and incorporate in other works any User Content Posted by you, at any time in the future in any form and for any purpose and warrant that you have the right to grant this licence.

7 Indemnity

You agree to defend, indemnify and hold harmless us, our officers, directors, employees, agents, subcontractors, licensors, and suppliers, from and against all claims, actions, demands, liabilities and settlements, including, without limitation, reasonable legal and accounting fees, arising in connection with your use of the Website or the Service or resulting from, or alleged to result from, your use of the Website or the Services, a breach of your representations and warranties in clause 6 (Your representation and warranties), or your violation of any of these terms and conditions.

8 Use of the Site is at your own risk

1. You use the Website and Service at your risk.  You must evaluate and bear all risks associated with the use of any material or content, including reliance on the accuracy, completeness or usefulness of any material or content.  In particular:
   1. we endeavour to provide a convenient and functional Website and Service, but we do not guarantee that that your requirements will be met or that any content will be uninterrupted, error free or that the Website or Service or the server that operates them, or any software used in or forming part of the Website or the Service, are free of viruses, bugs or other harmful components;
   2. while we may attempt to keep information on the Website or the Service current and accurate, we do not make any warranties or representations about the currency and accuracy of any information on the Website or the Service; and
   3. the use of any third party software used in or forming part of the Website or the Service may be governed by additional terms and conditions to these terms and conditions.   
2. If your use of the Website or the Service results in the need for servicing or replacing property, material, equipment or data (including User Content and digital photographs), we will not be responsible for such costs. 
3. Without limiting the above provisions, to the extent permitted by law, everything on the Website and in relation to the Service is provided to you “as is” and “as available” without warranty or condition of any kind, either expressed or implied, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose, or non-infringement.  We exclude all representations and warranties to the fullest extent permissible under applicable law.

9 Limitation of liability

1. To the maximum extent permitted by law:
   1. we have no liability to you, whether for breach of these terms, in negligence, in any other tort, in equity or for any other common law or statutory cause of action arising in relation to these terms, the Website, the Service or any related content;
   2. we will not be liable for any direct, incidental, consequential or indirect damages, loss or corruption of data (including loss of any digital photographs uploaded by you to the Website), loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from your access to, or use of, or inability to use the Website, the Service or any content, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not we know of the possibility of such damage; and
   3. our liability for breach of any implied warranty or condition which cannot be excluded is limited at our option to the following:
      1. in the case of goods: (A) the replacement of the goods or the supply of equivalent goods; (B) the repair of such goods; (C) the payment of the cost of replacing the goods or acquiring equivalent goods; or (D) the payment of the cost of having the goods repaired; and
      2. in the case of services: (A) the supply of the services again; or (B) the payment of the cost of having services supplied again.
2. Subject to our obligations under any implied conditions and warranties referred to in paragraph (a)(iii), our maximum aggregate liability for all claims under or relating to these terms and conditions or their subject matter, whether in contract, tort (including without limitation negligence), in equity, under statute, under an indemnity or on any other basis, is limited to A$100 .  In calculating our aggregate liability under this clause, the parties must include any amounts paid or the value of any goods or services replaced, repaired or supplied by us for a breach of the implied conditions and warranties referred to in paragraph (a)(iii).

10 Variation of the Website and Services

You acknowledge that we may, in our sole discretion and without notice, vary, modify or discontinue, temporarily or permanently, any or all of the Website or the Service and you agree that we are not liable to you or any third party for such variation, modification or discontinuance.  It is intended that members will receive notification of new releases and major modifications to the operation of the site as and when they occur from time to time.

11 Links and advertisements

We have not reviewed any of the sites linked to the Website and are not responsible for the content or accuracy of any off-site pages or any other sites linked to the Website (including without limitation sites linked through advertisements or promotions).  The inclusion of any link does not imply that we endorse the linked site, and you use the links at your own risk.  These terms and conditions and the Ph.Art Privacy Policy at (link to Privacy page) do not govern any of the sites linked to this Website, and you should review the terms and conditions and policies of the sites linked to this Website as appropriate.  Your correspondence or dealings with, or participation in promotions of, advertisers on the Website are solely between you and such advertisers unless expressly specified by us in writing.

12 Privacy policy

In using the Website and the Service, you may give us personal information in which you have certain rights.  By using the Website, you grant us consent to collect and use your personal information in accordance with our privacy policy (link to Privacy page) and you acknowledge that you have reviewed our privacy policy and that its terms form part of these terms and conditions.

13 General

1. If any part of these terms and conditions is held to be unenforceable, the unenforceable part is to be given effect to the greatest extent possible and the remainder will remain in full force and effect.   
2. These terms and conditions are governed by the laws of New South Wales, Australia, and you irrevocably submit to the exclusive jurisdiction of the courts of New South Wales, Australia and waive any right to claim that the courts exercising jurisdiction there constitute an inconvenient forum.
3. These terms and conditions (and any additional agreements located on the Website and entered into on their terms) constitute the entire agreement between us and you in relation to the Website and your use of the Services and supersede all other (prior or contemporaneous) communications or displays whether electronic, oral, or written, between us and you in relation to the Website and the Services. 
4. Your use of the Service is conducted electronically and you agree that we may communicate with you electronically for all aspects of your use of the Service, including sending you electronic notices or emails.  Further, you note that any reference found on this Website to ‘written notice’ shall include the provision of such notice by email.
5. The provisions of these terms and conditions which by their nature survive termination or expiry of these terms and conditions will survive cancellation of your registration or termination or expiry of these terms and conditions.