THESE TERMS AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS. PLEASE READ THEM CAREFULLY BEFORE USING THE SERVICES OF FOTOREF.
Terms and conditions to use Fotoref’s website and its services are set forth in the following documents:
1. General Terms and Conditions
2. Privacy Policy
1. Buyer – A person, who purchases Products or downloads Products that are available free of charge from the Site.
2. Fotoref – Larga Ltd trading as Fotoref, PO Box 105454, Auckland, New Zealand, 1143.
3. Content – any material published at the Site including but not limited to photos, videos, audio materials and any other information.
4. General Terms – this General Terms and Conditions in its entirety and including all terms and (or) information, accessible via any links, provided in this document.
5. Contributor – any person who creates a contributor account at the Site, enabling to upload Products to Fotoref’s store and to offer them for sale or free download.
6. Product – any Content, uploaded by a Seller to the Product section of the Site and thus offered by the Seller to the potential Buyers for purchase or free download.
7. Seller – a Contributor.
8. Site – fotoref.com website.
9. Privacy Policy – collection and process of personal data, available here.
1. License to Use This Site
1.1. This agreement will become effective upon creating a Contributor Account and will remain in effect for the duration of your Account. To register for an Account, you must be and hereby represent that you are a legal entity or an individual 18 years or older who can form legally binding contracts.
1.2. This Site is protected by copyright law and international treaty. You are allowed to use the Site for your personal, non-commercial internal use only, unless specifically licensed to do otherwise by Fotoref or unless it is expressly indicated otherwise.
This right to use this Site constitutes a license, not a transfer of title, and you may not nor permit anyone else to:
1.3. You agree to prevent any violations of this General Terms, including the licensing terms for the Site. Any violation of this General Terms can lead to account cancellation and a revocation of all licenses.
2. Site Ownership
2.1. All information on the Site is copyrighted proprietary material of Fotoref and (or) Contributors and may not be copied, reproduced, modified, published, uploaded, posted, transmitted, or distributed in any way, without Fotoref’s prior permission. Except as expressly provided herein, Fotoref and its suppliers do not grant any express or implied right to you under any patents, registered design, copyrights, trademarks, or trade secret information of Fotoref.
Fotoref’s logos, slogans trademarks whether registered or unregistered may not be used without Fotoref’s specific written consent to do so.
3. Contributors
3.1. In consideration of your use of the Site, you agree to:
3.2. You are responsible for all activity that takes place under your Contributor user ID. It is your responsibility to maintain the confidentiality of your user ID and password.
3.3. By signing up to this Site you agree to register using a valid email address that you are entitled to use and that is not hosted by any temporary email service.
3.4. You acknowledge that your uploaded Products will be rated by Buyers. You agree to allow your reputation score to be shown in your account profile.
3.5. Fotoref may terminate or deactivate the account of any person or entity for any reason at any time without notice.
4. Uploading and posting Content
4.1. You are entirely responsible for all Content that you upload, post or otherwise transmit via the Site. You agree not to upload, post or otherwise transmit via the Site any Content that:
4.2. Fotoref reserves the right to edit or remove Content that violates the aforementioned terms.
4.3. Fotoref pre-moderates all uploaded Content before making it available in the Site’s store thus may reject the Content provided by a Contributor if Fotoref’s staff finds the Content not meeting quality requirements.
4.4. Fotoref does not claim ownership of the Content you place on the Site and shall have no obligation of any kind with respect to such Content. Any Content you provide in connection with this Site shall be deemed to be provided on a non-confidential basis.
5. Determining and changing type of Content
5.1. Fotoref retains the right, in its sole and absolute discretion, to monitor, edit, prohibit, or remove any Content, at any time, without prior notice, for any reason. This right of Fotoref shall in no context be interpreted as Fotoref’s obligation to monitor the accuracy and quality of the Content.
5.2. Fotoref implements and maintains business practices of categorizing Content in various categories (such as “Most Popular”, “Best Quality”, “Top Sales” etc.) in order to maximize customer satisfaction and sales. By accepting this General Terms the Seller hereby grants the right to Fotoref to perform such Content categorization upon Fotoref’s own judgment.
6. Privacy and Security
Fotoref takes privacy very seriously and shall never sell, share, or otherwise disclose any of your personal information to anyone. Information that is collected upon sign up is used only to enhance your experience on the Site and for troubleshooting purposes. The principles of the personal data process are set forth in Privacy Policy document.
7. Termination of this License
7.1. Fotoref may unilaterally terminate this license for the use of the Site at any time, without any prior notifications, if you are in breach of any of these terms and conditions of use, as judged in the sole discretion of Fotoref. Termination of this license is in addition to the other rights and legal remedies available to Fotoref and those rights are reserved.
8. Notifications
All Fotoref’s notifications shall be sent to your notifications section under your profile dashboard or via email at the address you provided to Fotoref when you created your account or as later updated. You hereby agree and acknowledge that Fotoref shall notify you using either of aforementioned notification means at its own discretion and is not responsible to notify you in any other way.
11. General Information
This section contains important information regarding the liability of Fotoref that every Contributor should read carefully and, if necessary, with the appropriate assistance of his legal advisor.
12. Indemnification
You agree to indemnify, defend and hold harmless Fotoref, its affiliates, and their respective officers, shareholders, partners, representatives, agents and employees from any and all liability, loss, damages, claim and expense, including reasonable attorney’s fees, related to or arising from your violation of General Terms, your use or misuse of the Site and (or) Content, or any infringement of any intellectual property or other right as a result of the of Content or your use or provision of the Content. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, in which you will cooperate with us in asserting any available defenses.
13. Limitation of Liability
In no event shall Fotoref or any of its affiliates, or their respective officers, shareholders, partners, representatives, agents and employees be liable for any direct, indirect, punitive, special, incidental, exemplary or consequential damages or any damages whatsoever (including without limitation, damages for loss of use, data, information, profits or business interruption) arising out of or in any way related to the use or performance of this Site or any linked web site or to any Content or other material obtained through this Site, or otherwise arising out your inability to use this Site or any decision made or action taken by you in reliance of any information, advice or materials on this Site, whether such damages are based in tort, contract, negligence, strict liability or otherwise, even if Fotoref has been advised of the possibility of such damages. Your sole and exclusive remedy is to discontinue your access to and use of the Site, even if this remedy fails of its essential purpose. As some jurisdictions do not allow the exclusion or limitation of liability to a certain extent, some of the above exclusions or limitations may not apply to you.
14. No Warranty
14.1. Fotoref makes all commercially reasonable efforts to ensure that all material, information and data on this Site are accurate and reliable; however, accuracy cannot be guaranteed.
14.2. This Site is provided by Fotoref on an “as is” basis. Fotoref makes no warranties with respect to this site, and disclaims all applicable warranties, express or implied, including without limitation all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement for the Site and all Content and any warranties arising from course of dealing or usage in trade. Fotoref makes no warranty or representation regarding results that may be obtained from use of this site, or use of material, information or data downloaded or otherwise obtained from this Site, or regarding the accuracy or reliability of any information obtained from this Site. Fotoref does not warrant or guarantee the accuracy, completeness, correctness, timeliness, or usefulness of this Site or any Content or other material, obtained through use of this Site or that use of this site or any product/content on this Site will meet any requirement, be uninterrupted, timely, secure or error-free. Fotoref shall have no responsibility for the timeliness, deletion, misdelivery or failure to store any user communication.
14.3. No advice or information, whether oral or written, obtained by you from Fotoref or in any manner from this Site shall create any warranty.
14.4. As all uploaded Content is pre-moderated before being published in the Site’s store in no event will Fotoref be liable for any delays in reviewing the Content.
15. Third-Party Web Sites
This Site may link to, or be linked to, other web sites not maintained by or related to Fotoref. These links are provided only as a service to our users. Fotoref is not, directly or indirectly, implying any approval, association, sponsorship, endorsement or affiliation with any linked or linking web site. Fotoref has not reviewed all third party web sites and is not responsible for their content, accuracy, or policies. If you link to or retrieve any other pages or web sites it is at your own risk.
16. OTHER TERMS
16.1. Fotoref reserves the right at any time to modify, suspend or terminate the services (or any part thereof) provided at the Site, and/or your use of or access to them, with or without notice. Fotoref may also delete, or bar access to or use of, all related information and files. Fotoref will not be liable to you or any third-party for any modification, suspension, or termination of the Services, or loss of related information. Fotoref may amend General Terms and Privacy Policy at any time without notice, as all terms and conditions will be posted on this URL and should be consulted by you prior to use.
16.2. The laws of New Zealand govern General Terms and Privacy Policy as well as any other terms of the Site without regard to any choice of laws or conflicts of law provisions. You agree that any lawsuit arising from or related this Site, General Terms or Privacy Policy shall be brought exclusively courts located in Auckland, New Zealand and you consent to the exclusive jurisdiction of such courts. The United Nations Convention for the International Sale of Goods does not apply to this agreement.
16.3. If any provision of this General Terms or Privacy Policy is held invalid, void, or for any reason unenforceable, that provision shall be severed and the remaining condition will remain in force to the fullest extent provided by law.
16.4. Any waiver of any portion of General Terms will be effective only if in writing and signed by an authorized officer of Fotoref. This is the entire agreement applicable to Content and your use of the Site.
16.5. Fotoref has a right to amend General Terms and Privacy Policy or any other document containing terms and conditions of Fotoref services without any prior warning. Such amendments shall be notified to the Contributors.
16.6. No partnership, joint venture, employer-employee, or franchiser-franchisee relationship is intended or created by General Terms.
17. Applicability
17.1 By uploading a Product on the Site and offering them for Sale or free download, the Seller accepts the terms herein. By purchasing or downloading Products on the Site, the Buyer accepts the terms herein.
17.2 These terms apply in conjunction with General Terms.
18. Rights, Obligations and Representations of the Seller
18.1. Contributors may only upload Content they own or otherwise have the right to use and upload. Fotoref does not own any Content uploaded by Contributors.
18.2. By uploading a Product, the Seller shall be deemed to represent that such Product and use of this Product permitted by General Terms does not infringe the intellectual property of any other party and that the Seller had obtained all necessary model or property releases for use and licensing of the Product. All Contributors should consult their own legal advisors to determine whether a particular model or property release form and (or) any applicable contract is suitable or necessary for uploading particular Product or for a particular use of a Product, or whether such use is a fair use. Sellers should understand that licenses of Product without a release attached may be negatively impacted, if a release is deemed necessary by Buyers or their legal advisors.
18.3. Sellers may not upload Product or add Content that violates any international or domestic law, statute, ordinance, or regulation. Content cannot be defamatory, libelous, pornographic, obscene, offensive or evocative of racial hatred of any kind, and cannot contain any viruses, spam, malware or other programming routines that detrimentally interfere with computer systems or data.
18.4. Sellers should keep a backup of their own uploaded Products at all times. Sellers’ files uploaded to the Site cannot be used as a backup source.
18.5. For any Product/Content uploaded to the Site or otherwise submitted to Fotoref, the Seller grants and represents that he has the authority to grant to Fotoref a non-exclusive, worldwide, royalty-free, license in any medium now known or hereinafter invented to:
All of the aforementioned license rights shall be used by Fotoref exclusively to ensure proper administration and promotion of the Site.
18.6. Seller retains ownership of the copyrights and all other rights in the Product, uploaded to the Site, subject to the non-exclusive rights granted to the Fotoref and the Buyer. Seller is free to grant similar rights to others during and after the term of this General Terms.
18.7. By uploading a Product to the Site, the Seller represents and warrants that:
19. General Terms of Licensing
19.1. Following the payment of any applicable license fee for Product, the Buyer acquires a license in accordance with the terms and conditions of this section. Any license rights relating to the Product are contingent upon the transfer of money (except for the free Products) from the Buyer to Fotoref. All license rights terminate immediately and without notice if a sale is reversed for any reason.
19.2. Upon uploading the Product to the Site, the Seller shall indicate the terms of license, upon which a respective Product is licensed to the Buyer.
19.3. Certain Products with third party copyrighted or trademarked images, logos, brand names, etc., may require additional licensing, rights, permissions, releases, or clearance for use. It is the sole responsibility of the Buyer and their legal advisor to determine, before purchasing, downloading or using any Product, whether additional licensing, rights, permissions, releases, or clearance are necessary for the intended use of Product. It is the Buyer’s sole responsibility to obtain any licensing, rights, permissions, or clearance. Buyers should understand additional licensing, rights, permissions, releases, or clearance may be relevant for Product, if the intended use involves religious groups or affiliations, pharmaceuticals, health care, tobacco, liquor, adult entertainment, personal hygiene, birth control, or any other area that could be considered sensitive, offensive, or immoral.
19.4. All licenses of the Products are non-transferrable. Buyers do not own any Product and are only licensed to use it in accordance with terms and conditions of the applicable license. The Seller retains copyright in Products purchased or downloaded by any Buyer.
19.5. The license to use the Product is non-exclusive, non-transferable and is granted only to the original Buyer.
19.6. Any Product, returned to Fotoref and (or) the Seller in accordance with applicable law for whatever reason must be destroyed by the Buyer immediately. The license to use any Product is revoked at the time Product is returned. Product obtained by means of theft or fraudulent activity of any kind is not granted a license.
19.7. By using the Site and (or) accepting this agreement the Seller agrees that any additional end user license agreements, licenses, custom licenses, or Seller requirements inserted into Seller Products in any area outside that explicitly provided by Fotoref for additional license terms are invalid, void ab initio, and without effect as they relate to those purchases made on the Site.
19.8. Nothing in this agreement shall be construed to mean that a Seller may not submit or delete Content from the material submitted by such Seller as part of general maintenance of such Seller’s account.
19.9. The resale or redistribution by the Buyer of any Product, obtained from the Site is expressly prohibited.
20. Process of purchases and payments
20.1. Seller authorize Fotoref to collect money from the Buyer and distribute payment amounts to Seller, tax authorities, or other entities as the case requires under this agreement and in compliance with legal regulations.
20.2. Royalty payments and accompanying statements will be issued monthly, on or about the 15th day of each month, for the previous month’s downloads. Payments are automatic and do not need to be requested.
20.3 Fotoref shall pay Seller a royalty for each purchase of Content for which Fotoref receives payment. The current royalty rate is 80%. There may be a reporting delay for Buyer downloads reflected in Contributor account.
20.4. Fotoref reserves the right to withhold payments in the following cases:
20.5. Fotoref provides each Seller detailed sales information including:
20.6. If a sale is reversed after payment to the Contributor, or if the Contributor has received an overpayment for any reason, the Contributor acknowledges that they owe the overpayment to Fotoref and authorizes Fotoref to deduct it from future payments. If the Contributor becomes aware of an overpayment, they agree to notify Fotoref of such occurrence and settle it accordingly.
20.7. The parties are solely responsible for determining whether it is required by applicable law to issue any formal invoices and pay any other taxes that might apply to them. Fotoref takes no responsibility for determining the necessity of or for issuing any other formal invoices, or for determining, remitting, or withholding any taxes applicable to paid fees, except for the New Zealand GST tax.
This agreement will be governed by New Zealand law.
In the event of changes to these terms, Fotoref will provide notification to the Contributors.
Effective as of Thursday, November 15, 2016.