MARSTA Photography | ABN: 74 125 660 652
The following are the terms and conditions upon which we, Marcel Stawiczny/MARSTA Photography, (hereinafter called the LICENSOR) will license to you (in this document, you will be referred to as “you” or the “LICENSEE”) certain usage rights for items purchased from the LICENSOR, pursuant to the terms and conditions of this End User License Agreement (EULA or License). Items purchased from the LICENSOR may be entirely tangible, tangible with digital content and/or entirely digital format and will be hereinafter referred to as “MEDIA”.
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. BY COMPLETING YOUR ORDER FROM THE LICENSOR AND BY MAKING PAYMENT THROUGH THE APPROVED PAYMENT METHOD(S), YOU IMMEDIATELY BECOME BOUND BY THE TERMS AND CONDITIONS OF THIS LICENSE.
- LICENSE TYPE
The LICENSOR grants to the LICENSEE a limited non-exclusive, non-transferable License to the LICENSEE for the purchased MEDIA as follows. This License is conditional upon the LICENSEE paying all applicable license fees and respecting the terms hereof. The licenses below apply only to the specific MEDIA license purchased and agreed for by the LICENSEE.
(a) Personal Usage – Personal use means non-commercial and non-editorial use of the MEDIA. Acceptable use includes display on personal websites, social networking websites and computers, or for making prints for personal use.
(b) Editorial Usage – Each license purchased includes a one-time use for each MEDIA purchased in an editorial environment such as a magazine, newspaper or website for which its use is accompanied by an article or story. Any commercial use such as advertising or promotion is not permitted.
- OWNERSHIP AND LIMITS TO USE
The MEDIA shall remain at all times the sole and exclusive property of the LICENSOR. In order to protect the rights of the LICENSOR, the LICENSEE undertakes to comply with the following:
(a) The LICENSEE shall not sell, sub-license, loan or otherwise transfer all or part of the MEDIA or any interest therein to or for the benefit of a third party;
(b) The LICENSEE may not modify and re-distribute the MEDIA as part of a product and/or service;
(c) The LICENSEE shall not use or display the MEDIA as part of a digital archive and/or reference source;
(d) The LICENSEE shall not use the MEDIA to create obscene, offensive or illegal products and/or services;
(e) The LICENSEE shall not remove, alter or obliterate any copyright notices found in the MEDIA;
(f) The LICENSEE shall ensure that its personnel, including any consultants, comply with all of the terms and conditions of this License and shall be liable for any breaches thereof.
- LIMITATION OF LIABILITY
THE MEDIA ARE PROVIDED TO THE LICENSEE AS IS. EXCEPT AS EXPRESSLY STIPULATED HEREIN, THE LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, RELATING TO THE USE, PERFORMANCE OR RESULTS WHICH MAY BE OBTAINED THROUGH THE USE OF THE MEDIA. THE LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE LICENSOR SHALL IN NO EVENT BE LIABLE TO THE LICENSEE UNDER ANY CIRCUMSTANCES FOR ANY LOST PROFITS OR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OR ALTERATION OF DATA, INTERRUPTION OF BUSINESS AND/OR LOSS OF EMPLOYEE WORK TIME. IN ANY EVENT, THE TOTAL LIABILITY OF THE LICENSOR SHALL NOT EXCEED THE AGGREGATE PAYMENTS RECEIVED BY THE LICENSOR HEREUNDER. THIS DISCLAIMER APPLIES WITHOUT LIMITATION REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES ARE OR WERE FORESEEABLE.
- LIMITED WARRANTY ON MEDIA
The LICENSOR warrants that its MEDIA will be free from defects of material and workmanship under normal use for thirty (30) days from the date of delivery, as evidenced by a copy of your receipt. The LICENSOR may either replace the MEDIA or refund the purchase price, at its sole discretion. If the LICENSOR determines the MEDIA has been misused or modified while in your possession, this warranty will not apply.
- NON TRANSFERABILITY
Neither this License nor any rights or licenses granted hereunder may be assigned, transferred, delegated, sub-licensed or time shared without the prior written consent of the LICENSOR. Any such assignment, transfer, delegation, sub-license or time sharing in breach of this undertaking is void and results in the immediate termination of this License.
The LICENSOR shall have the right to terminate this License immediately without notice in the event that:
(a) the LICENSEE breaches any of the terms and conditions of this License; or
(b) the LICENSEE files a petition in bankruptcy or for the appointment of a receiver, or if an involuntary petition in bankruptcy is filed against the LICENSEE and said petition is not discharged within thirty (30) days, or if the LICENSEE becomes insolvent or makes a general assignment for the benefit of its creditors, or if the business or property of the LICENSEE comes into the possession of its creditors or of a governmental agency or of a receiver. The LICENSEE undertakes in the event of termination of this License to immediately cease any and all use of the MEDIA, to deliver up to the LICENSOR the MEDIA and to destroy any copies made.
- ENTIRE LICENSE
All prior proposals, understandings, and/or agreements between the parties that relate to the subject matter of this License are hereby superseded and merged into this License.
If any provision of this License Agreement is held invalid, illegal or unenforceable by a court of competent jurisdiction, the remainder of the Agreement will be valid and enforceable and the LICENSOR and LICENSEE will negotiate in good faith a substitute, valid and enforceable provision which most nearly puts into effect the intent of the LICENSOR and LICENSEE.
- NO WAIVER
This Agreement may not be altered, modified, or amended in any way except in writing signed by both parties. The failure of a party to enforce any provision of the Agreement will not be construed to be a waiver of the right of such party to thereafter enforce that provision or any other provision or right.
- GOVERNING LAW
This License, its construction, performance, scope, validity and effects are governed and shall be construed in accordance with the laws applicable and in force in the jurisdiction of the location of the LICENSOR.
The LICENSEE shall pay a fee to the LICENSOR in the amount previously agreed in consideration for the rights and licenses granted herein.
Due to the nature of certain MEDIA products, refunds to the LICENSEE will only be granted in extenuating circumstances and will be at the sole discretion of the LICENSOR.
- ATTORNEYS’ FEES
If either party brings legal action to enforce its rights under this Agreement, the prevailing party will be entitled to recover from the other party its expenses (including reasonable attorneys’ fees and costs) incurred in connection with the action of any appeal.
- COPYRIGHT NOTICES & MEDIA CREDITS
The LICENSEE must include a credit or copyright notice in the name of the LICENSOR on all MEDIA when used in an Editorial environment. A credit or copyright notice in the name of the LICENSOR on all MEDIA is optional when used by the LICENSEE for Personal Use.
All notices, demands or other communications to be given under this Agreement by either Party to the other may be effected either by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Notices delivered personally will be deemed communicated as of actual receipt. Mailed notices will be deemed communicated as of two (2) days after mailing.
Any dispute arising from this Agreement shall be resolved through mediation. If the dispute cannot be resolved through mediation, then the dispute will be resolved through binding arbitration conducted in accordance with the rules of a certified Arbitrator within the jurisdiction of the location of the LICENSOR.
The parties agree, for any claim or judicial proceedings for whatever reason relating to this License, to designate and hereby designate the courts of the judicial jurisdiction of location of the LICENSOR, as the appropriate venue for the hearing of any such claims or judicial proceedings, to the exclusion of any other courts, judicial district or jurisdiction that may have the right to hear such dispute.
The parties hereby confirm that they each require that this License and all documents and notices in connection therewith be drawn up in English.