Terms and Conditions



1 DEFINED TERMS

This clause 1 defines certain terms used in this agreement. Other terms are defined elsewhere in this agreement.

1.1 Participants

  1. Customer‘ means a person who visits a Member Website for the purposes of viewing or purchasing Photographs.
  2. we‘ means PhotoMerchant Pty Ltd (ACN 129 981 826) with its principal place of business at Suite 2a, 49-51 Eton Street, Sutherland, NSW, Australia, 2232, and, where it would be appropriate in the context, includes PhotoMerchant Pty Ltd’s subsidiary, related or affiliated entities and all officers, employees, agents and contractors of PhotoMerchant Pty Ltd or its subsidiary, related or affiliated entities.
  3. Member‘ means any person or entity to whom we agree to supply the Service, including you.
  4. you‘ means the person or entity entering into this agreement by accepting our offer to supply the Service on the terms of this agreement. That person will be the person in whose name your account is held.

1.2 Service

  1. Fotomerchant‘ means an interactive online platform operated by us for, among other things, managing workflow, presentation and sales of photographs.
  2. Member Website‘ means the individual website that Fotomerchant allows each Member to create as an interface between the Member and Customers, but excludes any independent website that you link to your Member Website.
  3. Service‘ means access to Fotomerchant and its features for a Member who already has appropriate internet access and computer equipment.

1.3 Content

  1. Account Data‘ means data generated by Fotomerchant in the course of your use of the Service, including sales data.
  2. Content‘ includes any written, pictorial, graphic, visual, audio, design, static or moving material, data, information or thing, taken individually or together (e.g. a compilation) depicted, embodied in or available at or within Fotomerchant, including written works (including this agreement), artistic works, sound recordings, films, animations, data bases, logos, word marks and metadata, and copies of any of those things. òContent’ excludes Photographs.
  3. Fotomerchant Content‘ means Content supplied by us in the course of providing the Service.
  4. Intellectual Property‘ means existing and future copyright, trademarks, designs, patents or circuit layouts, whether registered or not.
  5. Photograph‘ means a photograph, or a copy of a photograph, that a Member uploads to Fotomerchant using the Service for the purposes of storing, presenting or selling the Photograph via their Member Website.
  6. Member Content‘ means:
    1. Content supplied by a Member in the course of using the Service; and
    2. a domain name (not sub-domain name) supplied by a third party and registered by us in a Member’s name,

    but excludes Account Data and mere personal information such as Member name and address details.

  7. upload‘ includes to program, post, email, transmit, distribute or otherwise make available, publicly or privately, to or on Fotomerchant.


2 FOTOMERCHANT & SERVICE

2.1 Fotomerchant

  1. Subject to this agreement, we may operate and configure Fotomerchant in any manner and at or for any particular time or period of time.
  2. You acknowledge that Fotomerchant is as-is at any given time.
  3. The Service will vary according to the subscription package you select for the purposes of this agreement.

2.2 Supply

While, and only while, this agreement is in effect, we must supply the Service to you, and must do so in accordance with the terms of this agreement.

2.3 Access & integrity

  1. We give no warranty that the Service
    1. will be continuous, uninterrupted or secure;
    2. will not be interfered with or adversely affected by factors or circumstances outside of our control.
  2. We give no warranty that we will maintain back-up of, or disaster recovery facilities in relation to, Member Content and Photographs.

Note: Clause 8.2 also deals with warranties we give or disclaim in relation to the Fotomerchant and the Service.

2.4 Maintenance & support

  1. We may:
    1. modify or upgrade the Service;
    2. remove functionality; and
    3. temporarily disable the Service for the purposes of doing the above acts.
  2. If we intend to temporarily disable the Service for more than 12 consecutive hours, we must use reasonable endeavors to give notice to you of that intention. Otherwise, we may do the acts in paragraph (a) without notice to you.


3 FULFILLMENT OF PURCHASE ORDERS

  1. You may use self-fulfillment or direct-fulfillment to meet any orders from Customers (Purchase Orders) you receive.
  2. You hereby engage us as an agent to act on your behalf in fulfilling each Purchase Order, including transactions with a laboratory for the manufacture and delivery of copies of Photographs.
  3. You acknowledge that title (but not any Intellectual Property subsisting) in all electronic copies of Photographs vests in us upon creation and title in all other copies of Photographs, or products embodying or containing Photographs, passes from the laboratory to us. Title then passes from us to your Customer upon delivery to them of the copies (including digital downloads) of the Photographs or other products.
  4. Without limiting clause 9.2 (our liability), we disclaim all responsibility and liability for any loss suffered by you or your Customers arising from your using the self-fulfillment or direct-fulfillment method of meeting Purchase Orders, including our selection of any particular laboratory to provide its services to you through Fotomerchant.
  5. Under direct-fulfillment, in the event of non-delivery of goods, or delivery of defective or damaged goods, please contact us at helpme@fotomerchant.com and we will pursue the matter with the photo imaging laboratory or relevant delivery service provider. We warrant that we have made enquiries of the laboratories we have selected for direct-fulfillment and that those laboratories have confirmed that they have policies and procedures designed to minimize the risk of, and respond to instances of, non-delivery, or delivery of defective or damaged goods.


4 FEES & CHARGES

4.1 Fees & charges

  1. We will charge you the subscription and transaction fees ( òFees‘) set out in the fees section of Fotomerchant.
  2. We will also charge you photo imaging laboratory charges and other miscellaneous charges where applicable, such as domain name registration (‘Charges‘).
  3. The subscription fees will correspond to the subscription package you select for the purposes of this agreement. The transaction fees will correspond to the subscription package you choose and the amount of the transaction. The Charges will be communicated to you through Fotomerchant. Special offers, trials and the like may affect Fees and Charges.
  4. You must pay all Fees and Charges we charge you and pay them in accordance with this agreement, including any terms of payment set out on Fotomerchant. We may charge Fees and Charges against your credit card. We may charge transaction fees against your credit card when you receive Purchase Orders from Customers.
  5. Subject to clause 12.4 (variation), we may increase the Fees from time to time and, if we do so, we must use our reasonable endeavors to give you notice of the increase.

4.2 Refunds

We are not obliged to refund or credit any Fees or Charges unless failing to do so would be contrary to law.



5 INTELLECTUAL PROPERTY & CONTENT

5.1 Ownership

  1. Except as expressly set out in this agreement, you acknowledge that, as between you and us:
    1. you do not own any Intellectual Property in Fotomerchant Content;
    2. you do not own, nor are entitled to exercise, any other rights in Fotomerchant Content.
  2. Except as expressly set out in this agreement, nothing in this agreement transfers ownership to you in, or licenses to you, any Intellectual Property or other rights in Fotomerchant Content.
  3. We acknowledge that, unless you transfer ownership to us under this agreement or otherwise, we do not own any Intellectual Property in your Photographs or Member Content.
  4. Other than as expressly set out in this agreement, nothing in this agreement transfers ownership to us in, or licenses to us, any Intellectual Property or other right in your Photographs or Member Content.

5.2 Licences

  1. To the extent that your using the Service and performing your obligations in accordance with this agreement would infringe our Intellectual Property or other rights subsisting in or relating to Fotomerchant Content, and only to that extent, we authorize you to do such acts in connection with Fotomerchant Content as are reasonably necessary for the purposes of your using the Service and performing your obligations in accordance with this agreement (‘Fotomerchant License‘). The Fotomerchant License:
    1. continues in effect until this agreement is lawfully terminated;
    2. is non-exclusive;
    3. is royalty-free (other than insofar as payment of Fees is a royalty); and
    4. is personal to you and otherwise not transferrable or sub-licensable.
  2. To the extent that Fotomerchant Content comprises images subject to a creative commons license, the Fotomerchant License does not apply and the license to use the images is between you and the owner of the Intellectual Property in the image (Creative Commons License). The terms of the Creative Commons License are those specified in the creative commons license accessible via the link accompanying the image. You must comply with all terms of the creative commons license. We warrant that if you use such an image in accordance with the applicable Creative Commons License, that use will not infringe the Intellectual Property in the image.
  3. To the extent that our supplying the Service to you, exercising our rights and performing our obligations in accordance with this agreement would infringe your Intellectual Property or other rights subsisting in or relating to your Photographs and Member Content, and only to that extent, you authorize us to do such acts in connection with your Photographs and Member Content as are reasonably necessary for the purposes of operating Fotomerchant, supplying the Service, exercising our rights and performing our obligations in accordance with this agreement (‘Member License‘). To be clear, subject to this paragraph (c), the Member License entitles us to do acts including the following:
    1. making and storing copies of your Photographs and Member Content on our servers;
    2. enabling and adapting the presentation of your Photographs and Member Content on your Member Website;
    3. communicating your Member Content to the public;
    4. making and sending or enabling access to copies of your Photographs in response to purchase orders from you or Customers.
  4. The Member License:
    1. continues in effect until this agreement is lawfully terminated;
    2. is non-exclusive;
    3. is royalty-free;
    4. worldwide;
    5. perpetual;
    6. irrevocable; and
    7. is transferable or sub-licensable to third parties, but only for the purposes of supplying the Service to you and performing our obligations in accordance with this agreement.
  5. If you expressly authorize us to use a Photograph for another purpose, such as the promotion of Fotomerchant, then your authorization is on the terms of the Member License except that the license is revocable by you at any time by giving us notice in writing.

5.3 Infringement

  1. You acknowledge that:
    1. nothing in this agreement authorizes you to do;
    2. we have not authorized, sanctioned, countenanced, approved or permitted your doing; and
    3. we have taken reasonable steps to prevent your doing,

    any act that would infringe any Intellectual Property or other rights subsisting in or relating to Photographs or Member Content.

  2. You warrant that your use of the Service, including uploading, publishing, communicating, using and trading in Photographs and Member Content, will not infringe any Intellectual Property or other rights subsisting in or relating to Photographs or Member Content, nor breach any laws.
  3. You must not do any act that infringes any Intellectual Property or other rights subsisting in or relating to Photographs or Member Content.

Note: Clause 10 (response to breach) provides for some of the action we may take if you infringe, or are alleged or believed to infringe, Intellectual Property.

5.4 Moral rights

You consent to, and relinquish all right, title and interest you may have in any right, action or remedy against us for, infringement of any moral rights in your Photographs or Member Content, except to the extent that we falsely attribute authorship of your Photographs or Member Content. You warrant that any other person who has Moral Rights in relation to your Photographs or Member Content gives the same consent and waiver.



6 FOTOMERCHANT SECURITY

6.1 Your obligations

  1. You must keep confidential any password, login or other information related to the integrity and security of the Service and that relates to your use of the Service (‘Security Information‘).
  2. If you become aware that any of your Security Information has been lost, compromised or misappropriated, you must notify us immediately.
  3. Except in the course of making bona fide use of the Service, you must not:
    1. modify or alter any part of Fotomerchant;
    2. use the Service for (other) commercial purposes; or
    3. use the Service merely as a data storage facility,

    without our express written consent.

  4. You must not:
    1. reverse engineer, infiltrate, sabotage, impose excessive load upon or otherwise interfere with;
    2. engage in any form of data extraction or data mining in relation to; or
    3. use any robot, botnet, script, spider or other automatic device or manual process in or on,

    any part of Fotomerchant.

6.2 Our rights

Among other things, if you operate any botnet where a hostname is used as command and control points, we may direct the relevant hostname to a honeypot, loopback address, logging facility or any other destination.



7 MISUSE OF THE SERVICE

7.1 Your obligations

Each of the obligations below is to be read on as a stand-alone obligation without limiting any other obligation. You must not use the Service for the purpose or with the effect of:

  1. creating a platform or vehicle for furthering political, religious or any other similar agendas. However, to be clear, this does not mean that your Photographs cannot depict political, religious or similar subject-matter;
  2. publishing or supplying Photographs depicting persons under the age of 18 with intimate parts of their anatomy visible, regardless of the consent of the subject or their parent or guardian or the artistic merit of the Photographs;
  3. publishing or supplying Photographs depicting any sexually explicit, pornographic or violent subject-matter;
  4. embarrassing, humiliating, defaming, compromising the privacy of, harassing or intimidating any person;
  5. offending ordinary, reasonable standards of decency and morality prevailing in any country to which you supply the Photographs, including by using misspellings or other substitutes for offensive language;
  6. sending any electronic communication in contravention of the Spam Act 2003 (Cth) (Australia) or similar legislation in your jurisdiction, including by failing to include a functional unsubscribe facility with every communication;
  7. engaging in disruptive or anti-social online behavior, including flaming, trolling, flooding, invading, impersonating others, off-topic messaging, uploading unnecessary ASCII art files, uploading multiple identical or hard-to-read or nonsense messages;
  8. infringing the Intellectual Property of any person, including the misuse of our trademarks and copyright in the photographs of other photographers;
  9. engaging in misleading or deceptive conduct or misrepresenting your photography services, including by implying that we endorse your photography business;
  10. embodying links to inappropriate websites, including websites associated with pornography, violence or gambling;
  11. disseminating surveys, contests, pyramid schemes, chain letters or any other form of spam;
  12. mining any database or cultivating information for any purpose;
  13. storing data, including Photographs and Member Content, without engaging in any photography business;
  14. engaging in any business pursuit other than pursuing your own photography business;
  15. soliciting clients or candidates for any purpose or rival photography business;
  16. laundering money or other things of value; or
  17. engaging in any (other) unlawful activity.

7.2 Our rights

  1. If we become aware of conduct of yours that may breach clause 7.1 (misuse of Service), we will decide whether, for the purposes of enforcing this agreement, that conduct does breach clause 7.1. However, we must not do so capriciously or without any regard to the merits the case.
  2. You acknowledge that decisions we make pursuant to paragraph (a) (‘Decisions‘):
    1. may involve an element of subjective judgment; and
    2. are final and binding.

7.3 Safe harbor for Photographs

  1. We provide a safe harbor facility (‘Safe Harbor‘) into which you may submit Photographs for the purpose of enabling us to make a Decision about the Photograph before you make it available on your Member Website. You may submit your Photographs to safeharbour@fotomerchant.com.
  2. If:
    1. you submit a Photograph to the Safe Harbor for a Decision;
    2. we review and consider the Photograph; and
    3. we notify you that, until further notice, our Decision is that the Photograph does not breach clause 7.1 (misuse of Service) of this agreement,

    then, if and until we notify you that we revoke the Decision:

    1. you may upload the Photograph; and
    2. we must not suspend or terminate your account pursuant to clauses 10 (response to breach) and 11 (termination of agreement) on the ground that we believe the Photograph in question breaches clause 7.1.


8 ADDITIONAL WARRANTIES

8.1 Additional warranties you give

In addition to and without limiting any warranty you give elsewhere in this agreement, you continuously warrant that:

  1. you are aged 18 years or older;
  2. all personal information you upload is true, accurate and complete;
  3. if any of your Photographs depict as a subject of the Photograph an identifiable or recognizable individual, you obtained the express or implied consent of that individual, or their parent or guardian if the individual was under the age of 18 years at the time, to take the Photograph and upload it;
  4. if any of your Photographs depict a private, religious, culturally sensitive scene or site, you obtained the express or implied consent of the relevant party, authority or custodian of the scene or site to take the Photograph and upload it;
  5. if any of your Photographs depict a dramatic, artistic, sporting or other performance, whether performed for profit or otherwise, you obtained the express or implied consent of the relevant individuals, host, administrator or other organization to take the Photograph and upload it;
  6. in the course of taking any Photograph, you have not contravened any law;
  7. in relation to the above circumstances where consent was obtained, you obtained a corresponding consent to use the Photograph in connection with the Service, including for commercial gain;
  8. your use of the Photographs in connection with the Service, including for commercial gain, is not reasonably likely to embarrass, humiliate, defame, compromise the privacy of, harass, intimidate or offend any subject of such a Photograph;
  9. your use of the Photographs in connection with the Service, including for commercial gain, is not reasonably likely to offend ordinary, reasonable standards of decency and morality in any country to which you sell the Photographs;
  10. you maintain appropriate back-up of all your Member Content and Photographs, outside of Fotomerchant; and
  11. you have obtained all necessary consents for the purposes of sending electronic messages to any Customer or other third party in compliance with your obligations under the Spam Act 2003 (Cth) (Australia) or similar legislation in your jurisdiction;
  12. you do not rely on any representation or warranty from us that is not made by law or expressly contained in this agreement.

8.2 Additional warranties we do and do not give

  1. We warrant that we will supply the Service to you with due care and skill.
  2. Subject to paragraph (a), we give no warranty that:
    1. Fotomerchant Content comprising advice, tips, directions or guides, is true, accurate or reliable;
    2. your use of the Service will result in any particular commercial outcome for you;
    3. Customers or other Members will not breach any agreement, policies or rules governing their use of Fotomerchant or that we will enforce our rights in response to such breach;
    4. links to other websites, being links embodied on Fotomerchant, and those websites themselves, will be safe, appropriate or reliable; or
    5. Fotomerchant or the Service is appropriate, lawful or available for use in other jurisdictions.


9 INDEMNITY & LIABILITY

9.1 Your indemnity of us

You indemnify us against any loss suffered by us:

  1. as a result of any breach of this agreement (including its warranties) by you;
  2. such loss including general loss, special (indirect, consequential, incidental) loss and pure economic loss (including loss of revenue or profits); and
  3. including where such loss arises from legal action brought against us by a third party or brought by us against a third party.

9.2 Our liability

  1. Subject to paragraphs (d) and (e), we are not liable to you for:
    1. any special (indirect, consequential, incidental) loss or pure economic loss (including loss of revenue or profits);
    2. regardless of how such loss arises, including for interruption to or our ceasing to operate Fotomerchant, misrepresentation, infringement of moral rights, breach of contract, breach of confidence, loss of chance or opportunity, or negligence; and
    3. whether suffered by you or a third party.

    To be clear, this clause applies whether or not you have advised us of the likelihood or possibility of your suffering such loss.

  2. Without limiting paragraph (a) but subject to paragraphs (d) and (e), we are not liable to you or to Customers for any loss arising from Purchase Orders being directed to the self-fulfillment or direct-fulfillment methods of satisfying Purchase Orders.
  3. Without limiting paragraph (a) and (b) but subject to paragraphs (d) and (e), if the Service is of a kind ordinarily acquired for personal, domestic or household use or consumption, then we limit our liability to the quantum of all Fees you have paid to us on your account.
  4. Subject to paragraph (e), paragraphs (a), (b) and (c) do not apply to the extent that the loss arises from our breach of a consumer guarantee that we will supply the Service with due care and skill, or any other consumer guarantee. To be clear, paragraphs (a), (b) and (c) are subject to clause 12.5 (consumer rights).
  5. If:
    1. the Service is not of a kind ordinarily acquired for personal, domestic or household use or consumption; or
    2. the amount of fees and charges payable for the Service exceeds any statutory threshold under applicable consumer law,

    then we limit our liability, at our election, to supplying the Service again or paying the cost of having the Service supplied again.



10 RESPONSE TO BREACH

10.1 Response to breach

Subject to clause 7.3 (safe harbor for Photographs), but otherwise despite any other provision of this agreement, if:

  1. we believe that you are infringing or are likely to infringe Intellectual Property or other rights;
  2. we receive a complaint or, pursuant to any statutory regime, an apparently bona fide notice, from a third party alleging that you are infringing Intellectual Property or other rights;
  3. we are requested or directed to do so by any law enforcement, governmental or regulatory authority; or
  4. you otherwise breach this agreement,

we may do any or all of the following, with immediate effect and without notice to you:

  1. investigate the matter;
  2. modify, disable or delete Member Content or Photographs;
  3. modify, limit, disable or suspend your account pending the outcome of the investigation;
  4. supply such information (including personal information about you) to third parties (including private claimants, law enforcement, government or regulatory authorities) as appropriate, requested, directed or otherwise required by law; and
  5. take any other action we deem appropriate and that is not unlawful.

Note: We may take further action pursuant to clause 11 (termination of agreement).

10.2 Consequences of suspension

For so long as your account is disabled or suspended, our supply to you of the Service will cease. When our supply to you of the Service ceases, you will be unable to access your account or any Account Data, Member Content or Photographs.



11 TERM & TERMINATION OF AGREEMENT

11.1 Term

This agreement commences when you become a Member and continues indefinitely until terminated.

11.2 Your rights

  1. You may terminate this agreement at any time by using the Fotomerchant account termination facility.
  2. The termination will take effect from the end of the current or next subscription period for which you have already paid subscription Fees.

11.3 Our rights

  1. We may terminate this agreement at any time, with immediate effect and without notice if:
    1. subject to clause 7.3 (safe harbor for Photographs), we receive, pursuant to any statutory regime, an apparently bona fide notice from a third party alleging that you are infringing Intellectual Property or other rights;
    2. requested or directed to do so by any law enforcement, governmental or regulatory authority; or
    3. you breach clauses 6.1 (Fotomerchant security), 7.1 (misuse of the Service) or 8.1 (additional warranties) of this agreement.
  2. We may terminate this agreement at any time by:
    1. giving you 30 days written notice; or
    2. if you have not paid and continue to fail to pay all Fees and Charges due and owing under this agreement, by giving you 14 days written notice.
  3. This agreement terminates automatically with immediate effect if we cease supplying the Service for a period of 14 consecutive days and we do not, during that time, notify you in writing explaining why the Service has ceased and stating that the Service will be resumed within 30 days of the first day that the Service ceased.
  4. You hereby relinquish your common law rights to terminate this agreement outside of the express terms of this agreement.

11.4 Consequences of termination

  1. When this agreement terminates, our supply to you of the Service will cease. When our supply to you of the Service ceases, you will no longer be able to access your account or any Member Content, Photographs or Account Data.
  2. We will reactivate your account if, within 30 days of termination, you rejoin as a member and request that we reactivate your account.


12 THIS AGREEMENT

12.1 Formation

By creating an account with Fotomerchant, you accept our offer to supply the Service to you on the terms of this agreement and thereby enter into this agreement.

12.2 Scope

  1. This agreement includes all other agreements, policies and rules relating to Fotomerchant:
    1. referred to in this document; or
    2. referring to this agreement in the documents embodying those other agreements, policies and rules (‘Other Agreements‘),

    and this agreement hereby incorporates the terms of all Other Agreements. To be clear, the following are Other Agreements, whether going by the names below or similar names:

    1. Member Privacy Policy.
  2. To the extent there is any irreconcilable inconsistency between this agreement and any Other Agreement, the terms of this agreement prevail.
  3. Subject to clause 12.4 (variation), this agreement:
    1. governs all aspects of our supply and your use of the Service;
    2. is the only agreement between us and you in relation to the Service; and
    3. as a document, embodies all the express terms of the agreement.

    To be clear, this agreement supersedes or excludes all other agreements, arrangements, understandings and representations, written or oral, in relation to the Service.

  4. Insofar as they apply to you, you must comply with the terms of all Other Agreements.

12.3 Principles of interpretation of agreement

In this agreement, unless expressly to the contrary and as appropriate in the context:

  1. an expression in the plural may be read in the singular, and vice versa;
  2. other parts of speech and grammatical forms of a word defined in this agreement have a corresponding meaning;
  3. headings are for convenience only and do not affect the interpretation of this agreement;
  4. in relation to an expression reflecting a present state of affairs, if the existence of an obligation is conditional on the existence of that state of affairs, the obligation survives only to the extent that that state of affairs exists during the term of this agreement;
  5. a reference to a thing or things includes a reference to any, some or all, or part or whole, of the thing or things; however, nothing in this paragraph means that partial performance of an obligation constitutes complete performance of the obligation;
  6. a reference to an act includes an omission and to the causing to be done of that act or omission;
  7. a reference to a person doing an act includes a reference to the doing of the act on behalf of the person;
  8. a reference to one alternative does not, of itself, exclude any other alternative;
  9. an expression of the exercise of right means the exercise of that right at the sole and absolute discretion of the relevant party;
  10. an expression prohibiting the doing of an act includes the prohibiting of:
    1. offering, attempting or purporting to do the act; or
    2. aiding, abetting, authorizing, approving, contributing to, directing or materially being involved with the doing of the act;
  11. an expression of ownership includes the legal or beneficial ownership;
  12. a list of rights is not to be read as an exhaustive list of rights;
  13. a reference to a òcopy’ of a thing includes the original embodiment in material form of the thing;
  14. a reference to òloss’ includes any loss, damage, cost, expense or liability, including legal costs;
  15. a reference to òthis agreement’ includes a reference to the terms and conditions of this agreement, or this document, regardless of whether the terms and conditions of this agreement, or this document, are sometimes expressly referred to in this agreement;
  16. a reference to an assignment or transfer of proprietary rights is a reference to the absolute and irrevocable assignment or transfer; and
  17. a reference to a provision, clause or paragraph is a reference to a provision, clause or paragraph of this agreement, and a reference to a paragraph is a reference to a paragraph of that same clause or provision.

12.4 Variation

  1. We may vary this agreement:
    1. at any time by amending the version of this document (i.e. this agreement) accessible by you via Fotomerchant, but only if the amendment would not materially adversely affect your rights; or
    2. otherwise by using reasonable endeavors to give you sufficient notice such that if you exercise your right to terminate this agreement as a result of the variation, the termination will take effect before the notice period ends.
  2. You cannot vary this agreement.

12.5 Consumer rights & severability

  1. We acknowledge that:
    1. there is a guarantee that the Service will be supplied with due care and skill and that certain agreements may contain certain terms, conditions, warranties or liabilities (whether by implication or otherwise) or may be subject to certain laws (‘Consumer Rights‘);
    2. by operation of law, Consumer Rights cannot or must not be excluded, modified or limited; and
    3. to the extent that an agreement includes provisions that exclude, modify or limit Consumer Rights (or purports to do so) or that are unfair, then by operation of law (including the Australia Consumer Law 2010 (Cth)) those provisions may be unlawful, unenforceable or void.
  2. Notwithstanding anything else in this agreement, this agreement does not, nor purports to, exclude, modify or limit any Consumer Right.
  3. To the extent that any provision of this agreement would be unlawful, void or unenforceable for any reason (including by reason of the matters acknowledged in clause paragraph (a)), the other provisions of this agreement are valid and enforceable.

12.6 Additional waiver & release

  1. You unconditionally waive all right, title and interest you may have in any right, action or remedy against us arising from our exercise of any lawful discretion expressly provided in this agreement, including the making of Decisions.
  2. Subject to this agreement, no relinquishing of rights, actions or remedies is effective unless it is in writing. To be clear, the failure of any party to exercise or enforce a right, action or remedy under this agreement, or otherwise, does not mean that they have relinquished that right, action or remedy.

12.7 Assignment and novation

  1. We may assign our rights under this agreement.
  2. On condition that that assignment will not materially adversely affect your interests, you:
    1. acknowledge that we have given you notice in advance of any such assignment; and
    2. waive any right or remedy in relation to the giving of notice in relation to the assignment.
  3. We may novate our rights and obligations under this agreement.
  4. On condition that that novation will not materially adversely affect your interests, you:
    1. acknowledge that we have given you notice in advance of any such novation;
    2. consent to the novation; and
    3. waive any right or remedy in relation to the giving of notice or consent in relation to the novation.
  5. If a proposed assignment or novation will materially adversely affect your interests, then you must not unreasonably disapprove of or delay the assignment or withhold or delay your consent to the novation.
  6. Subject to the express terms of this agreement, you cannot assign, novate or otherwise transfer any of your rights or obligations under this agreement.

12.8 Notices

If we are required to give written notice to you under this agreement, we may do so by any reasonable means, including by email or by posting a notice on your Fotomerchant account that you will only see next time you log into that account.

12.9 Governing law and jurisdiction

  1. The laws of the state of New South Wales, Australia, govern this agreement.
  2. You acknowledge that the courts of NSW are an appropriate forum for the settlement of disputes.
  3. To the extent they come before any court, all disputes will be determined in the courts of NSW.