CUSTOMER LICENSE POLICY

Last updated: 1st July 2020

AGREEMENT TO CUSTOMER LICENSE POLICY

 

This license agreement (“Agreement”) between you and Kiwi Pics NZ Limited (“we”, “us”, “our”) explains how you can use photos and illustrations (individually and collectively known as “Images”) that you license from us.

Upon downloading your first Image from us, you accept the terms of this Agreement in full.

You acknowledge that you are acquiring the right to use the Image in a certain way, not the property of the Image itself. The Author/Photographer/Photo Agency/Contributor (collectively known as “Suppliers”) who created the Image is still the owner of the Image. He/she/they hold the copyright, being the official term identifying the ownership of the Image. For purposes of this Agreement, “use” means to copy, reproduce, modify, edit, synchronise, perform, display, broadcast, publish, or otherwise make use of. Please make sure you read the Restricted Uses section below for exceptions.


Permitted Uses.

We grant you a royalty free license, whereby the license fee, as set by the Supplier is paid once and there is no requirement to pay an additional fee to re-use the Images. 

You may use the Images:

Worldwide, meaning the Images can be used in any geographic territory. 

Unlimited, meaning the Images can be used an unlimited number of times.

Perpetually, meaning there is no expiry or end date on your rights to use the Images. 

For any and all media, meaning Images can be used in print, in digital or in any other medium or format. 

Non-Exclusively, meaning that you do not have exclusive rights to use the Images. We can license the same images to other customers. If you would like exclusive rights to use royalty-free Images, please Email via our Contact page: https://kiwi-pics.nz/contact to discuss a buy-out.


Restricted Uses.

No Unlawful Use. You may not use Images in a pornographic, defamatory or other unlawful manner, or in violation of any applicable regulations (including for sports content, any restrictions or credentials issued by a sports league or governing body) or industry codes.

No Use in Trademark or Logo. You may not use Images (in whole or in part) as the distinctive or distinguishing feature of a trademark, design mark, trade name, business name, service mark or logo. Additionally, you shall not be entitled to register (in any jurisdiction) such Images (in whole or in part) as a trademark or rely on any such registrations, prior use, and/or accrued goodwill to prevent any third party use of the Images or any similar content (including by us, our customers, or the copyright owner of such Images).

No Alteration of Content. Images may be cropped or otherwise edited for technical quality, provided that the editorial integrity of the Images is not compromised, but you may not otherwise alter the Images.

No Standalone File Use. You may not use Images in any way that allows others to download, extract or redistribute Images as a standalone file (meaning just the Image file itself, separate from the project or end use).

No Sensitive Use Without Disclaimer. If you use Images that features models or property in connection with a subject that would be unflattering or unduly controversial to a reasonable person (for example, sexually transmitted diseases), you must indicate: (1) that the Image is being used for illustrative purposes only, and (2) any person depicted in the Image is a model. For example, you could say: “Stock photo. Posed by model.” 

No Machine Learning, AI, or Biometric Technology Use. Unless expressly authorised by us, you may not use Images (including any caption information, keywords or other metadata associated with the Images) for any machine learning and/or artificial intelligence purposes, or for any technologies designed or intended for the identification of natural persons. Additionally, we do not represent or warrant that consent has been obtained for such uses with respect to model-released Images.

No Metadata Exploitation. Unless expressly authorised by us, you may not use the caption information, keywords, accompanying text, or other metadata associated with Images separate and apart from the Images, or allow any third parties to access or use any such information associated with the Images.

No Electronic Templates. You may not use Images in electronic or digital templates intended for resale or other distribution (for example, website templates, business card templates, electronic greeting card templates, and brochure design templates).

No “On Demand” Products. You may not use Images in connection with “on demand” products (e.g. products in which a licensed image is selected by a third party for customisation of such product on a made-to-order basis), including, without limitation, postcards, mugs, t-shirts, calendars, posters, screensavers or wallpapers on mobile telephones, or similar items. This includes the sale of products through custom designed websites, as well as sites such as gumroad.com and printful.com.

No False Representation of Authorship. You may not falsely represent that you are the original creator of a work that is made up predominantly of licensed Images. For instance, you cannot create artwork based solely on licensed Images and claim that you are the author.

No Sample Use. You are not permitted to use Images from our website on a complimentary basis for test or sample (composite or comp) use. 


Shared Uses.

The rights granted to you are non-transferable and non-sublicensable, meaning that you cannot transfer or sublicense them to anyone else. There are two exceptions:

Employer or client. If you are purchasing on behalf of your employer or client, then your employer or client can use the Images. In that case, you represent and warrant that you have full legal authority to bind your employer or client to the terms of this Agreement. If you do not have that authority, then your employer or client may not use the Images. The rights purchased may only belong to you or your employer/client, depending on who is named as the “Customer” at the time of purchase. In other words, if you purchase one of our Images, only one of you (and not both) may reuse that Image for multiple projects.

Subcontractors. You may allow subcontractors (for example, your printer or mailing house) or distributors to use Images in any production or distribution process related to your final project or end use. These subcontractors and distributors must agree to be bound by the terms of this Agreement and may not use the Images for any other purpose.

Please note that sharing and storage restrictions apply. Up to 10 individuals (total, not at any given time) may use an individual Image, and all individuals must be from the same legal entity, however you may make RF content available for viewing by any of your employees, clients and subcontractors. There are no restrictions on where each individual may store the Images. The raw file of content may not be provided to anyone outside of your legal entity other than subcontractors. If you require Images to be available to more than 10 users, please contact us to purchase rights for additional users. If you are downloading Images under a committed solution (i.e. a Membership Plan), unless renewed prior to the end of your term, all sharing rights terminate at the end of the term and all content must be removed from your shared server, digital asset management system or other storage system and stored only on individual devices.


User Accounts. 

You will be responsible for tracking all activity for each user account, and you agree to: (a) maintain the security of all passwords and usernames; (b) notify us immediately of any unauthorised use or other breach of security; and (c) accept all responsibility for activity that occurs under each user account. We reserve the right to monitor downloads and user activity to ensure compliance with the terms of this Agreement. If we determine that you are in breach of this or any other term of this Agreement, it may suspend or revoke access to your account and seek further legal remedies as explained further in our Terms and Use.

Intellectual Property Rights.

All Images are owned by us and/or Suppliers. We and/or Suppliers reserve all rights not expressly granted in this Agreement. You may not assert any right to revenue from a collecting society, social media website, content sharing platform or any other third party in respect of photocopying, digital copying, sharing, distribution or other secondary uses of the Images.

Attribution.

You do not need to include a photo credit for commercial use, but if you are using Images for editorial purposes, you must include a credit adjacent to the content or in production credits. The credit should be in the following form or as otherwise stipulated in the caption information accompanying the Images on our website: “[Supplier Name]/[Image Category] via Kiwi Pics NZ”

You may use our name and the names of our Suppliers as necessary to give attribution, but you may not otherwise use such names, logos or trademarks without prior written approval.


Termination/Cancellation/Withdrawal.

Termination. We may terminate this agreement at any time if you breach any of the terms of this or any other agreement with us, in which case you must immediately: cease using the Images; delete or destroy any copies; and, if requested, confirm to us in writing that you have complied with these requirements.

Social Media Termination. If you use the Images on a social media platform or other third party website and the platform or website uses (or announces that it plans to use) the Images for its own purpose or in a way that is contrary to this Agreement, the rights granted for such use shall immediately terminate, and in that event, upon our request, you agree to remove any Images from such platform or website.

Refunds/Cancellation. We do not permit any requests for refunds/cancellations. Once you have purchased the Image and the download links have been issued, we have no meaningful way of verifying whether you have or have not utilised the content and therefore deem all Images and Membership Plans sold on Kiwi Pics’ website to be non-refundable/cancellable. In the event of any request for cancellation, your rights to use the Images terminate, and you must delete or destroy any copies.

Content Withdrawal. We may discontinue licensing any individual Image at any time in its sole discretion. Upon us notifying you, or upon your knowledge, that any Image may be subject to a claim of infringement of a third party’s right for which we may be liable, we may require you to immediately, and at your own expense: cease using the Image, delete or destroy any copies; and ensure that your clients, distributors and/or employer do likewise. We will provide you with replacement content (determined by us using reasonable commercial judgement) free of charge, subject to the other terms of this Agreement.


Representations and Warranties.

We make the following representations and warranties:

Warranty of Non-Infringement. For all licensed Images Kiwi Pics warrants that your use of such Images in accordance with this Agreement and in the form delivered by us (that is, excluding any modifications, overlays or refocusing done by you) will not infringe on any copyrights or moral rights of the Image Supplier.

Additional Warranties for Certain Content.

RF: For licensed Images, we warrant that your use of such content in accordance with this Agreement and in the form delivered by us (that is, excluding any modifications, overlays or refocusing done by you) will not infringe on any trademark or other intellectual property right, and will not violate any right of privacy or right of publicity.

Warranty Disclaimer. Unless specifically warranted above, we do not grant any right or make any warranty with regard to the use of names, people, trademarks, trade dress, logos, registered, unregistered or copyrighted audio, designs, works of art or architecture depicted or contained in the content. In such cases, you are solely responsible for determining whether release(s) is/are required in connection with your proposed use of the Image, and you are solely responsible for obtaining such release(s). You acknowledge that in some jurisdictions provide legal protection against a person’s image, likeness or property being used for commercial purposes when they have not provided a release. You are also solely responsible for payment of any amounts that may be due under, and in compliance with any other terms of, any applicable collective bargaining agreements as a result of your use of the licensed Images.

Caption/Metadata Disclaimer. While we have made reasonable efforts to correctly categorise, keyword, caption and title the Images, we do not warrant the accuracy of such information, or of any metadata provided with the Images.

No Other Warranties. Except as provided in this section above, the Images are provided “as is” without representation, warranty or condition of any kind, either express or implied, including, but not limited to, implied representations, warranties or conditions of merchantability, or fitness for a particular purpose. We do not represent or warrant that the Images will meet your requirements.


Indemnification and Limitation of Liability.

Indemnification. You agree to defend, indemnify and hold harmless us and our parent, subsidiaries, affiliates and Suppliers, and each of their respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside legal fees) arising out of or in connection with (i) your use of any Image outside the scope of this Agreement; (ii) any breach or alleged breach by you (or anyone acting on your behalf) of any of the terms of this or any other agreement with us; and (iii) your failure to obtain any required release for your use of Images.

 

Limitation of Liability. WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY LOST PROFITS, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER SIMILAR DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF KIWI PICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY.


General Provisions.

Assignment. This Agreement is personal to you and is not assignable by you without our prior written consent. We may assign this Agreement, without notice or consent, to any corporate affiliate or to any successor in interest, provided that such entity agrees to be bound by these terms.

 

Audit. Upon reasonable notice, you agree to provide to us sample copies of projects or end uses that contain licensed Images, including by providing us with free of charge access to any pay-walled or otherwise restricted access website or platform where Images are reproduced. In addition, upon reasonable notice, we may, at our discretion, either through our own employees or through a third party, audit your records directly related to this Agreement and your use of licensed Images in order to verify compliance with the terms of this Agreement. If any audit reveals an underpayment by you to us of five per cent (5%) or more of the amount you should have paid, then in addition to paying us the amount of the underpayment and any other remedies to which we are entitled, you also agree to reimburse us for the costs of conducting the audit.

 

Electronic storage. You agree to retain the copyright symbol, our name, the Image’s identification number and any other information or metadata that may be embedded in the electronic file containing the original Image, and to maintain appropriate security to protect the Image from unauthorised use by third parties. You may make one (1) copy of the Image for back-up purposes.

 

Governing Law/Arbitration. This Agreement is be governed by the laws of New Zealand without reference to its laws relating to conflicts of law. Any disputes arising from or related to this Agreement shall be finally settled by binding, confidential arbitration by a single arbitrator selected using the rules and procedures for arbitrator selection under the JAMS’ Expedited Procedures in its Comprehensive Arbitration Rules and Procedures (“JAMS”) if you are in North America, or of the International Centre for Dispute Resolution (“ICDR”) or JAMS if you are outside of North America (the applicable rules to be at your discretion), in effect on the date of the commencement of arbitration to be held in the following jurisdiction: Wellington, New Zealand. The arbitration proceedings shall be conducted in English and all documentation shall be presented and filed in English. The decision of the arbitrator shall be final and binding on the parties, and judgement may be entered on the arbitration award and enforced by any court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. The prevailing party shall be entitled to recover its reasonable legal costs relating to that aspect of its claim or defence on which it prevails, and any opposing costs awards shall be offset. Notwithstanding the foregoing, we shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against you in the event that, in our opinion, such action is necessary or desirable to protect its intellectual property rights. The parties agree that, notwithstanding any otherwise applicable statute(s) of limitation, any arbitration proceeding shall be commenced within two years of the acts, events or occurrences giving rise to the claim.

 

Severability. If one or more of the provisions in this Agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions should not be affected. Such provisions should be revised only to the extent necessary to make them enforceable.

 

Waiver. No action of either party, other than express written waiver, may be construed as a waiver of any provision of this Agreement.

 

Entire Agreement. No terms of conditions of this Agreement may be added or deleted unless made in writing and accepted in writing by both parties, or issued electronically by us and accepted by you. In the event of any inconsistency between the terms of this Agreement and the terms contained on any purchase order sent by you, the terms of this Agreement will prevail.

 

Notice. All notices required to be sent to us under this Agreement should be sent via Email on our Contact page: https://kiwi-pics.nz/contact All notices to you will be sent via email to the email set out in your account.

 

Taxes. You agree to pay and be responsible for any and all sales taxes, use taxes, value-added taxes, withholding taxes and duties imposed by any jurisdiction as a result of the license granted to you, or of your use of the licensed Images.

 

Interest on Overdue Invoices. If you fail to pay an invoice in full within the time specified, we may add a service charge of 2% per month, or such lesser amount as is allowed by law, on any unpaid balance until payment is received.

 

Licensing Entity. Our licensing entity under this Agreement is determined based on your billing address.

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